I-T- Reopening assessment solely on the basis of an audit objection amounts to a clear case of change of opinion, in which case, re-assessment is not permissible : HC

I-T- Assessment order passed rushedly since time limit to complete assessment was ending - assessee's request for hearing ignored in the process - order stands quashed; case remanded for re-hearing: HC

I-T- Assessee given 4 days' time to file reply to notice of demand, is lesser than the minimum 7-day time limit given under relevant SOP: HC

I-T- Best of judgment assessment resorted to due to non furnishing of reply merits being quashed, where insufficient time was given to furnish reply: HC

I-T- SOP prescribes minimum of 7 days' time to file reply to SCN, whereas Assessee was given only 5 days' time to furnish reply - rules of natural justice contravened: HC

CX - Adjudicating Authority grossly violated the principle of natural justice by not affording cross examination of witnesses, matter remanded for passing a fresh de novo order: CESTAT

Cus - Even if waiver of SCN has been granted by appellants, still it was incumbent upon authority passing original order to give its reason as to why the documentary evidence had to be rejected: CESTAT

2023-TIOL-780-CESTAT-AHM

Neem Biocide Plant Vs CCE & ST

CX - The issue involved is, whether the product namely Neem Blended Organic Manure Gronimix manufactured by appellant is classifiable under CETH 31010099 as other fertilizers claimed by appellant or under CETH 38089910 as pesticides not elsewhere specified and included is claimed by department - The issue of classification is not free from doubts and it is a debatable one - In same pamphlet of product, it describes the product as fertilizer and on same pamphlet it also mentions that the product is pesticide - Moreover, only because the product Gronimix is made pre-dominantly by Neem, it cannot be conclusively said that because of this reason the good is fertilizer as there are pesticides/insecticides made of Neem/Neem oil - On the other hand, adjudicating authority has ignored so many vital material relied upon by appellant such as department has not discharged the burden which is required in matter of classification - The details mentioned in pamphlet/advertisement of product were not considered properly - Though there are statements of dealers which states that product is used as insecticide/pesticide but those dealers have not been cross examined as requested by appellant - When there are evidence available in case it becomes incumbent on adjudicating authority to allow the cross examination of witnesses - Adjudicating authority has seriously defied the mandatory provision of Section 9D of Central Excise Act, 1944 - Therefore, it is necessary that Adjudicating Authority must allow cross- examination of witnesses - Appellant has relied upon test report which states that the product Gronimix is not a pesticide - Statement of farmers were also recorded who have stated that Gronimix is used as a fertilizer which was ignored by Adjudicating Authority - Adjudicating Authority grossly violated the principle of natural justice while passing impugned order - Therefore, matter remanded for passing a fresh de novo order after considering various materials available on record in proper prospective - Appellant shall be given the opportunity for personal hearing and making their submission, if any, required before passing the de novo order - Since the case pertains to period 2007 to 2014, the de novo order shall be passed within a period of two months - Accordingly, the appeal is allowed by way of remand to Adjudicating Authority: CESTAT

- Matter remanded: AHMEDABAD CESTAT

2023-TIOL-779-CESTAT-AHM

Italik Metalware Pvt Ltd Vs CC

Cus - The case pertains to rejection of transaction value on the basis of certain NIDB data and resort having been taken to Rule 12 of Customs Valuation Rules, 2007 by the department to decide the issue - His submission was that there was no reason at all and simply the higher value was resorted in relation to bill of entry only, while doing assessment - The department was given an opportunity to indicate on what basis the rejection of transaction value was done and whether any SCN was issued after seeking documents or information from importer while rejecting the transaction value by department under proviso and explanation to Rule 12 - The rule empowers proper officer to seek various invoices, in case the value is doubted by him - Such documents, inter alia, can be invoices, purchase order or any supporting contract and this depends upon whatever was duly given by appellant - The decision also requires if such documents are available, then it is for the Assessing Officer to indicate as to why he is not convinced, despite such documents and given reasons for the same - Even if waiver of SCN has been granted by appellants in this case, still it was incumbent upon authority passing the original order, to give its reason as to why the documentary evidence by way of invoice, packing list, Certificate of origin or whatever was available had to be rejected - Reasons in this case, are not available therefore, there is a breach of provision of Rule 12 of Customs Valuation Rules, 2007: CESTAT

- Appeals allowed: AHMEDABAD CESTAT

2023-TIOL-778-CESTAT-CHD

CCE & ST Vs Himachal Futuristic Communication Ltd

ST - The main issue that requires consideration is as to whether the impugned SCN is time barred and as to whether the Adjudicating Authority was correct in holding so - Revenue submits that the assessee has been filing Returns from time to time and as such there is no wilful suppression on the part of assessee - Adjudicating Authority though finds that exemption contained in Notfn 19/2003-ST and Notfn 1/2006-ST is not applicable to assessee as the service receiver has not supplied any plant, machinery or equipment - However, Adjudicating Authority holds that the issue is time barred - The submissions of assessee based on Manual for Scrutiny of Service Tax Returns make it clear that it was incumbent upon Department to scrutinise the records of assessee and to raise any queries, in case they are not satisfied with Returns - It is seen that no queries of any sort have been raised or no mistakes were pointed out by Department on the basis of scrutiny of Returns of assessee - It is not open to Department to allege that there has been wilful suppression of material facts on the part of assessee - Tribunal has gone into the very same issue, in respect of assessee's office in Delhi, in respect of SCN issued on similar lines and vide Final Order - 2016-TIOL-573-CESTAT-DEL have upheld the order of Adjudicating Authority who dropped the proceedings - The issue is loaded in favour of assessee both on limitation and merits - Issue of merit is not under consideration - As far as limitation is concerned, Adjudicating Authority has correctly found that there is no suppression and hence provisions of Section 73 of Finance Act, 1994 are not attracted to invoke extended period - Therefore, impugned order is legally correct and tenable and that the Revenue's appeal is not maintainable: CESTAT

- Appeal dismissed: CHANDIGARH CESTAT