I-T - If assessment has almost come to closure while issuing notice u/s 148A(b) and assessee was able to establish its case, consequential reopening order cannot be sustained: HC

I-T - No further adjudication required on PIL based on CBDT's roadmap for disposal of appeals, if such map drawn by CBDT has adequately addressed concerns regarding disposal of appeals raised by AIFTP: HC

I-T - Since for re-opening of assessment u/s 148, no objection was raised by the Comptroller and Auditor General of India, it cannot be allowed merely on the basis of change of opinion: HC

I-T - Expression 'valuable article'/'thing' being of wide amplitude and inclusive in nature would by all means include liquor : HC

I-T - Order passed without affording opportunity of personal hearing by not following prescribed procedure laid down as per section 144B, for Faceless assessment, merits to be quashed – YES: HC

I-T - AO would not assume jurisdiction to reassessment unless he records his own independent satisfaction to effect that he has reason to believe that income chargeable to tax has escaped assessment: HC

I-T - If there was concededly mistake in reassessment proceedings against assessee based on wrong name introduced by Investigation Wing, reopening notice u/s 148(d) deserves to be quashed: HC

ST - Commission received by Assessee on account of export of service is rightly exempted from tax; Extended limitation cannot be invoked for raising tax demand, where Assessee is registered for provision of service & discloses commission amount received: CESTAT

Cus - Appellant was whole time director of M/s Laser and was responsible for its operations and M/s Laser violated section 58 of the Act and appellant mislead the department, no reason found to interfere with penalty imposed on appellant under section 117: CESTAT

2023-TIOL-1012-CESTAT-MUM

Hariyana Metals Ltd Vs CCE

CX - The Assessee undertakes 're-rolling' of 'mild steel billets and ingots' supplied by M/s Larsen & Toubro Ltd, Pondicherry under an agreement that reassures quality in terms of the finished goods returned to the principal containing 90% of the supplied raw material - According to central excise authorities, the implication therein is that the residue of upto 10% of material supplied is to be treated as concealed consideration to the extent of value realized upon 'scrap' being sold - It was held so by the first appellate authority, and by drawing upon the decisions of the Supreme Court in General Engineering Works v. Commissioner of Central Excise, Jaipur and in Commissioner v. Lloyd Steel Industries - Thereafter, the Appellate Commissioner proceeded to set aside the findings of the Adjudicating Authority in dropping the demands raised and in confirming the recovery of tax under Section 11A of the Central Excise Act 1944 - Demand for interest under Section 11AB was also confirmed, as was penalty imposed under Section 11AC of the Act.

Held - The Counsel for Assessee contests the finding with the plea that the decision in re General Engineering Works is applicable only when central excise authorities are able to evince concurrent depression of 'conversion charge' in the transaction - It was further contended that, on the admitted discharge of duty on 'landed cost of raw materials and conversion charges', there can be assertion of duty liability on 'scrap' sold by them in the guise of resort to a particular contingency in rule 6 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - Though the value adopted for discharge of duties in clearances effected by the assessee in re General Engineering Works is not incorporated therein, it would appear from the illustrative computation that the decision that 'cost of raw materials' was in dispute therein and not of conversion charges not reflecting the true consideration - Hence the corollary of establishing that it was depressed - There is no finding of such nature in the impugned order, in the appeal of jurisdictional Commissioner of Central Excise before the first appellate authority or in the Show Cause Notice - Therefore, reliance placed in the impugned order on the said decision is not appropriate; the outcome therein is, thus, jeopardized - Here too, it is not in dispute that the landed cost of raw materials is not doubted and that the impugned 'scrap' has been generated from such raw material - That value, having been included once, is not required to added once again for assessment to duty - Hence the order in question merits being set aside: CESTAT

- Appeal allowed: MUMBAI CESTAT

2023-TIOL-1011-CESTAT-KOL

Howrah Gases Ltd Vs CCGST & CE

ST - The Assessee is registered under the provisions of Service Tax and was engaged in providing ‘Business Auxiliary Services' (BAS) - The Assessee has jointly with ‘M/s Kirtanlal Steel Export, Mumbai' (KSE) carried out sale and marketing of seamless steel pipes produced by ‘M/s Mittal Steel, Romania' (MS) (Manufacturer – Principal) in the Indian market as per Memorandum of Understanding dated 24.12.2005 signed between the parties and have earned a commission of Rs.79,77,026/- for such services rendered between the period 01.01.2006 to 31.03.2006 and for which the Assessee charged 50% of total commission received from M/s MS in terms of MoU between the Assessee and its business partner M/s KSE - The case of the Department was that - such service provided by the Assessee would not qualify as ‘export of service' in as much such services have not been directly provided to M/s MS and commission has not been received in freely convertible currency, rather they worked on behalf of M/s KSE for marketing the product of M/s Mittal Steel - Accordingly, SCN dated 03.12.2010 has been issued to the Assessee to pay an amount of Rs.8,13,657/- on such services provided by the Assessee, as the same does not qualify as export of service for the period 01.01.2006 to 31.03.2006, by invoking extended period of limitation - The Assessee contested the SCN by refuting each and every allegation leveled by the Department, however, the Adjudicating Authority confirmed the same vide OIO dated 04.05.2011. On Appeal, the Commissioner (Appeals) vide OIA dated 29.12.2017, rejected the Appeal filed by the Assessee.

Held - The Assessee has provided services, being BAS, in Joint Venture or partnership, to M/s MS of Romania - As the service has been provided in respect of marketing of products manufactured by M/s MS of Romania, the Joint Venture partner - M/s KSE cannot be the recipient of such service in the first instance - It is found that the element of partnership is present in the MoU between the Appellant and M/s KSE, as they have agreed to share the profits from the commission earned by providing service to the foreign principal located at Romania - Further, it is an admitted fact that the service in question has been received by M/s MS of Romania who have paid for the same in convertible foreign exchange - It is held that that it does not make any material difference that the Assessee have received their share of commission through M/s KSE - There is no element of fraud, suppression, misdeclaration, etc in this case, as the Assessee was registered with the Department and have disclosed such turnover or receipt of commission for BAS, and they have rightly claimed the same to be exempt, being export of service - Accordingly, extended period of limitation is not invokable, in the facts and circumstances of the case - The order in question stands quashed: CESTAT

- Appeal allowed: KOLKATA CESTAT

2023-TIOL-1010-CESTAT-DEL

Deepak Singh Vs CCGST, CE & C

Cus - Appellant filed this appeal to assail impugned Order whereby the Commissioner confirmed demands of Customs duty and Central excise duty from M/s. Laser Scanning Systems Pvt. Ltd, the main noticee, ordered confiscation of imported goods under section 111(o) and allowed their redemption on payment of fine and imposed penalties - It is not disputed that Laser had imported goods as a 100% EOU and obtained a Customs bonded warehouse licence for its premises - The duties would have been payable but for exemption available to 100% EOUs - Exemption is available to some conditions including main condition that importer manufactures and exports goods and thereby achieves the Net Foreign Exchange (NFE) requirement and that Laser failed to achieve it and therefore, requested to de-bond the good - In such a case, duties have to be paid as appropriate - Therefore, duties were recoverable from Laser - At the time of import of goods, exemption was allowed subject to execution of bonds on which appellant signed as surety - If the main person fails to pay amounts (duties) due, they can be recovered from surety - Impugned order confirmed demands only against importer and the duties were ordered to be recovered from appellant only to the extent that they could not be recovered from Laser - Insofar as recovery of dues from appellant is concerned, the order is legally correct and is also fair and balanced and it calls for no interference - The impugned order recorded that Laser violated the provision of section 58 of Customs Act as they did not renew the bank guarantee despite several requests by department and thus violated the condition of bond and thus, the goods shall be deemed to have been removed without payment of duty - It also recorded that appellant was responsible for day to day affairs of Laser and had executed a bond on its behalf and in the event of failure to do so, to pay all duties, fine and penalty - He was the whole time Director of Laser and had persistently mislead the department that the unit will be made functional and obtained extension of license - Section 117 provides for penalties for contraventions not expressly mentioned - Appellant was the whole time director of Laser and was responsible for its operations and Laser violated section 58 of the Act and appellant mislead the department, no reason found to interfere with penalty imposed on appellant under section 117 - Impugned order is upheld: CESTAT

- Appeal rejected: DELHI CESTAT