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EC kicks off updation of Electoral Rolls for Haryana, Jharkhand, Maharashtra & J&KMany beneficial legal provisions proposals in plate for GST Council’s meeting todayMinister launches 10th tranche of commercial Coal Mine AuctionsSwiss Court sentences Hinduja family members to 4-yr jail-term for exploiting Indian staffers at Geneva mansionCentre imposes stock limits on tur and chana until Sept 30thGovt notifies new law enacted to stymie malpractices in competitive examinationsHaj Pilgrimage: Govt sets up portal real time monitoring of patients, OPDs and critical care treatmentAnti-tax protest turns ‘taxing’ in Nairobi; 200 injured in police lathi-chargeChouhan assures 100% procurement for Tur, Urad and MasoorUS Supreme Court upholds ban on guns in domestic abuse casesI-T- AO cannot travel beyond the mandate, he cannot proceed to make any other additions beyond the reasons recorded to reopen the assessment: ITATSouth Korea to supply arms to UkraineI-T- Provisions of Section 68 place burden on assessee of proving identity, creditworthiness of parties & genuineness of the transaction; assessee must disprove allegations levelled to AO's satisfaction: ITATChina threatens EU of intensified trade warI-T-CIT(A) cannot absolve assessee from rigors of Section 68, where assessee does not furnish evidence to prove identity, creditworthiness of parties & genuineness of transaction: ITATJapanese company Nissan pauses production at Chinese plantI-T- Furnishing of audit report for claiming a deduction or exemption is mandatory requirement, while mode & stage of filing thereof is a procedural aspect: ITATFlorida family seeks compensation from NASA after space junk wrecks houseI-T- Where requisite audit report is available with AO before assessment order is framed, then claim of deduction cannot be denied to assessee, even if audit report may not have been filed along with ITR: ITATArmenia recognises Palestinian StateCus - Musk Melon Dried Seeds imported by Assessee found to be unfit for human consumption; order directing re-export thereof is sustained; penalty quashed as Assessee may have been unaware of changes in import policy for this item: CESTATIndia to bid for 2036 Olympics; to push for inclusion of cricket and KabaddiST - Tax demand raised under Business Support Service - No evidence exists to show that Assessee had any contract for provision of said service; SCN itself mentions that Assessee only engaged in organizing transport of goods - demand unsustainable: CESTATFails to drub Pawan Kalyan; YSRCP leader changes his nameCX - Since the exempted goods have been exported out of India, therefore, provisions of sub rule (1), (2) & (3) of Rule 6 of Credit Rules are not applicable: CESTAT
Untitled Document

TODAY'S CASE (INDIRECT TAX)

Taxindiaonline.com



May 31, 2024

++ GST - A taxpayer's registration can be cancelled with retrospective effect only where such consequences are intended and are warranted: HC

++ GST - Reply filed is a detailed one, therefore, if proper officer was of the view that the same is incomplete, he could have sought further details - Order set aside for re-adjudication: HC

++ GST - There is no material on record to show as to why the registration is sought to be cancelled retrospectively - As petitioner does not wish to continue business, registration is to be treated as cancelled from the date of such application: HC

++ GST - No reasoning in the show cause notice and in the impugned order as to why the cancellation has been done retrospectively - Matter relegated for re-adjudication: HC

++ GST - Digital signatures on notices and orders - Setting house in order - No remedial steps despite lapse of nearly two years - Additional Commissioner assures steps for correcting system error - Matter listed: HC

++ GST - Appeals dismissed on the ground of limitation - Liberty is granted to the petitioner to file an application seeking condonation of delay within a period of two weeks: HC

++ GST - No material on record to show as to why the registration is sought to be cancelled retrospectively: HC

++ GST - Amounts deposited before the search ended and the officers left shows that it was not voluntary - Amounts to be refunded along with interest @6%: HC

++ GST - ITC refund - Case of petitioner is covered u/s 54(8)(b), which is one of the excepted provisions in proviso to 89(2) (l) and (m) - Deficiency memos issued, requiring the petitioner to furnish a certificate of CA are not sustainable - Interest payable: HC

May 30, 2024

++ GST - Date of filing appeal is always taken as the date of initial filing through the online mode if other steps as required in the law are also taken by the appellant: HC

++ Cus - ADD - Respondent to consider the representation of the petitioner that their goods are excluded from the purview of notification 15/2023-Cus(ADD): HC

++ GST - Portal re-designed - SCN was uploaded in the category Additional Notices - Petitioner missed noticing the same - One opportunity to be granted to respond: HC

++ GST - Petitioner has shut down all business activities and deposited a sum of Rs.7,50,107/- after finding a discrepancy in their return - Application for cancellation of registration is accepted: HC

++ GST - Order does not qualify as an order of cancellation of registration since there are no dues stated to be due against petitioner: HC

++ ST - Since party had provided corporate guarantee on behalf of its sister concern to its lenders, who had not charged any commission or fee for providing guarantee and hence such activity is not chargeable to service tax: CESTAT

++ CX - As per settled law, advertisement expenses incurred by dealers on their own accord, is not to be included in assessable value for computing Excise duty: CESTAT

++ CX - Extended limitation need not be invoked where issue at hand involved interpretation of law & where differing orders had been passed by Tribunal benches on such issue - No intent to evade payment of tax attributed: CESTAT

May 29, 2024

++ GST - Cancellation of registration - SCN and order are bereft of any details; cannot be sustained: HC

++ GST - Since cash is not goods, it could not have been seized under the provisions of the Act, 2017, as seizure is limited to goods liable for confiscation -Cash seized to be returned along with interest: HC

++ GST - Neither the show cause notice, nor the order spell out the reasons for retrospective cancellation - SCN and order are set aside - Registration is restored: HC

++ GST - No material on record to show as to why registration is required to be cancelled retrospectively - Order modified: HC

++ GST - Complex architecture of the web portal - Failing to find SCN under the heading 'Notices' - Petitioner to be granted one opportunity to respond to SCN: HC

++ ST - Reimbursable expenses received in connection with rendering of C&F agent services, are includable in assessable value: CESTAT

++ ST - Clearing & Forwarding Agent service - Levy was new in relevant period, leading to confusion in respect of taxable value; assessee paid tax on commission received on being apprised of tax liability; allegations of wilful mis-statement & suppression of fact for imposing penalty, not tenable: CESTAT

++ Cus - There was no question of passing on incidence of duty, First Appellate Authority is justified in ordering refund: CESTAT

May 28, 2024

++ GST - Commissioner to undertake disciplinary proceedings against erring officials where fundamental principles of natural justice may be violated by the adjudicating authorities: HC

++ GST - Merely because a taxpayer has not filed the returns for some period does not mean that registration is required to be cancelled with retrospective date also covering the period when the returns were filed and taxpayer was compliant: HC

++ GST - Registration cancellation retrospectively - Show cause notice and the impugned order are bereft of any details, accordingly the same cannot be sustained: HC

++ GST - SCN does not put the petitioner to notice that the registration is liable to be cancelled retrospectively - Order not sustainable: HC

++ GST - Retrospective cancellation of registration - SCN and impugned order are bereft of any details, therefore, the same cannot be sustained: HC

++ ST - Purchase and sale of SIM Cards by franshisee/distributors appointed by telecom companies not leviable to Service Tax under category of Business Auxiliary Service especially when such companies already discharged service tax on gross amount of Such SIM cards: CESTAT

May 27, 2024

++ GST - Withholding of refund and blocking of ITC - Counsel for Revenue assures completion of investigation within three months: HC

++ GST - As to on what basis the respondents have proceeded to make attachment of petitioner's property, is not known - Impugned order is illegal and cannot be sustained - Order is certainly in breach of the rights guaranteed under Article 14, read with Article 300A: HC

++ GST - It is reasonable that the petitioner would not monitor the GST portal continually once their registration was cancelled - Petitioner to be provided an opportunity to contest the tax demand after remitting 10% of disputed tax: HC

++ GST - Registration cannot be cancelled with retrospective effect mechanically - It can be cancelled only if the proper officer deems it fit to do so: HC

++ GST - Order merely states 'The taxpayer neither attended personal hearing on stipulated date and time nor submitted requisite reply against the query raised' - Such order cannot be sustained: HC

++ GST - If the Proper Officer was of the view that reply is incomplete and further details were required, the same could have been sought from the petitioner - Matter remitted for re-adjudication: HC

++ Cus - s.150 - On the ground of statement recorded u/s 110, the authorities should not proceed to dispose of the seized items if the same are not perishable and before disposal, adjudication proceedings must precede: HC

++ Cus - When the CESTAT has allowed the appeal by setting aside the seizure order, the detention of goods was not valid and legal from the day of detention - No demurrage charges payable: HC

++ Cus - Commissioner of Customs has not lodged any claim before the Resolution Professional within specified time limit as per the provisions of IBC - Appeal is required to be disposed of as having become infructuous and abated with regard to any liability of any nature: HC

++ CX - CENVAT - Charging of interest on the amount of credit lying unutilized is not correct in law: HC

++ ST - Collection/retention of tax without authority of law entitles person from whom it is collected to claim its refund: CESTAT

++ CX - When admittedly the Appellant is not required to pay any amount, then Appellant was clearly entitled to refund of amount deposited under-protest and consequently revenue has no authority to retain such amount: CESTAT

++ Cus - Goods imported by appellants are only 'Polyester Quilt Cover' and accordingly they have paid duty, allegations of mis-classification and under-valuation are not sustainable: CESTAT

May 25, 2024

++ Kerala General Sales Tax - Review Petition can be resorted to only if there is error apparent on face of record & cannot be utilised as means of re-hearing or appeal: HC

++ CX - Clandestine removal - Appellant filed affidavit containing arguments against imposition of penalty; Adjudicating Authority did not conduct any examination of the statement, thus violating principles of natural justice - matter remanded: CESTAT

++ Cus - Gold coins are such articles of Gold which are in form of coin, but being coins of non legal tender, cannot covered under CTH 7018 - Being articles of precious metals, Gold Coins are appropriately classifiable under CTH 7114: CESTAT

++ ST - The services rendered by appellant as a co-loader to courier agency are not liable to Service Tax : CESTAT

May 24, 2024

++ GST - Registration suspended on ground that petitioner is a non-existent firm - Claim made is that new address uploaded on portal - Petitioner to appear before Anti evasion cell: HC

++ GST - Proper officer has opined that the reply filed is unsatisfactory - Proper Officer is directed to intimate to the petitioner details/documents, as maybe required to be furnished and thereafter re-adjudicate the SCN: HC

++ GST - SCN was uploaded on the portal in the category of 'Additional Notices' and the petitioner missed it, hence could not respond - Order set aside and matter remanded: HC

++ GST - A taxpayer's registration can be cancelled with retrospective effect only where such consequences [of denying ITC to customers] are intended and are warranted: HC

++ GST - SCN does not put the petitioner to notice that the registration is liable to be cancelled retrospectively, thus, the petitioner had no opportunity to even object to the retrospective cancellation: HC

++ Kerala General Sales Tax - Review Petition can be resorted to only if there is error apparent on face of record & cannot be utilised as means of re-hearing or appeal: HC

++ GST - Reason to reach a conclusion is the essence of fairness of an adjudication proceeding - Unless such reasons are given in black and white, adjudication order may remain laconic: HC

++ GST - In the absence of notification issued for cross empowerment, the authorities from the counterpart Department cannot initiate proceedings where an assessee is assigned to the counterpart: HC

++ GST - Proper Officer had to at least consider the reply on merits and then form an opinion whether the reply was not satisfactory - Matter remitted for re-adjudication: HC

++ Kerala General Sales Tax - Review Petition can be resorted to only if there is error apparent on face of record & cannot be utilised as means of re-hearing or appeal: HC

++ CX - It is incumbent on Commissioner to pass an order on each and every proposal made in SCN and he cannot be silent in operating portion of order on any of proposal made in SCN, therefore, there is a clear error in order: CESTAT

++ Cus - If Customs Department doubts validity of DEPB scrips, it ought to have had them cancelled; Department cannot deem scrips to be fraudulent obtained, without taking any action: CESTAT

May 23, 2024

++ GST - High Court, while setting aside the seizure/prohibition order, had observed that search and seizure power is an intrusive power and needs to be veiled with utmost care and caution - Revenue appeal is dismissed: SC

++ GST - Since Petitioner does not wish to carry on business or continue with registration, impugned order is modified to the limited extent that registration shall now be treated as cancelled with effect from 27.06.2019 i.e., the date when order cancelling the GST registration was issued: HC

++ GST - Neither the SCN nor the order spell out the reasons for retrospective cancellation, therefore, the same cannot be sustained: HC

++ GST - SCN adverts to Annexure-B and petitioner requested for a copy of the same - Respondent submits that Annexure-B is embedded in the SCN itself - Such stand taken for first time in writ proceedings - Order set aside and matter remitted: HC

++ GST - Petitioner could not file reply to SCN as accountant suffered jaundice - No response received from adjudicating authority for extension of time to file reply - Order set aside and matter remanded: HC

++ GST - System generated orders - Ex facie demonstrate non-application of mind Order of cancellation of registration refers to a reply when no reply has been filed: HC

++ Kerala General Sales Tax - Review Petition can be resorted to only if there is error apparent on face of record & cannot be utilised as means of re-hearing or appeal: HC

++ CX - Even though the demand is prima facie time bar but assessee have admittedly paid the amount of proportionate credit of input and input services attributed to exempted goods, penalty should not be imposed: CESTAT

++ ST - Tamil Nadu State Transport Corporation Ltd is a State Transport Corporation owned by the State Government, ergo cannot be brought under definition of Rent-a-cab operator - demand raised under this heading, be quashed: CESTAT

++ Cus - Appellant though initially has not claimed ownership, but has come forward to redeem the same on payment of redemption fine and relevant payment of Customs duty, penalty imposed on appellant is reduced: CESTAT

May 22, 2024

++ Cus - Notification No. 3/2020-Customs (ADD) rescinding the anti-dumping duty imposed on Purified Terephthalic Acid originating in or exported from the People's Republic of China, Iran, Indonesia, Malaysia, Taiwan, Korea RP and Thailand is quashed and set aside: HC

++ GST - No notification for cross-empowerment - Officers under the State or Central Tax Administration, as the case may be, cannot usurp the power of investigation or adjudication of an assessee who is not assigned to them: HC

++ GST - Cryptic order - Proper Officer has not applied his mind to the reply submitted by the petitioner - Proper Officer shall re-adjudicate SCN: HC

++ GST - Since the petitioner has already shut his business and intimated the Department, they could not have been found functioning at the given address - Registration shall be deemed cancelled: HC

++ ST - Issue pertaining to the value of service cannot be agitated before the High Court - Appeal dismissed: HC

++ CT- Power to penalise must be exercised reasonably; every case of default cannot lead to mechanical imposition of penalty - proportion of penalty must be commensurate to gravity of offence: HC

++ Kerala General Sales Tax - Review Petition can be resorted to only if there is error apparent on face of record & cannot be utilised as means of re-hearing or appeal: HC

++ Cus - CBLR - Custom Broker cannot escape duty of KYC verification solely by obtaining photo copies of identity and interest-proof documents; Regulation 11(n) contravened; revocation of broker's license & forfeiture of security deposit amount is sustained: CESTAT

++ CX - As per settled precedent laid down in SC's judgment in Ranbaxy Laboratories Ltd., Assessee is entitled to interest on expiry of three months from date of filing refund claim: CESTAT

++ ST - In case of indivisible composite works contract, demand under Erection and Commissioning or Installation Services cannot be sustained: CESTAT

May 21, 2024

++ GST - Petitioner has rushed to Court seeking to quash the SCN without even giving written explanation to enable authority to consider his defence and pass appropriate orders - Such practice is frowned upon - Petition dismissed: HC

++ GST - Whether powers of adjudication have been conferred upon Jt. Commr., Enforcement Wing, Rajasthan-I, Jaipur to include Udaipur jurisdiction - Matter requires serious consideration - No coercive action: HC

++ GST - Notices and orders hitherto were being uploaded under the 'View Notice' tab - Upon redesigning the dashboard, the same now feature under the Tab 'View Additional Notices and Orders' - Petitioner to be afforded an opportunity to put forth his points: HC

++ GST - When report of Irrigation and Waterways Directorate formed the foundation of adjudication, it was incumbent upon the authority to supply a copy thereof to the petitioner: HC

++ Cus - Appellant's request for conversion of free shipping bills to drawback shipping bills cannot be accepted for the reason it changes entire nature of Shipping Bills and it is not merely amendments to them CESTAT

++ ST - The issue of service tax liability in respect of general insurance premium has already been dealt in elaborately by the Tribunal in the case of Bajaj Allianz General Insurance Co. Ltd. holding that the service tax liability is calculated on the basis of prevalent rate of Service Tax at the relevant period on the amount of premium received and that the enhanced rate of service tax is not applicable to the policies, which were issued prior to the enhancement of the rate: CESTAT

++ ST - Demand for short payment of Service Tax, without firstly determining grounds on which such short payment was liable to be recovered, were made out without any legal basis in the impugned order and therefore, on this ground itself the impugned order is not sustainable: CESTAT

++ CX - Assessee has correctly availed cenvat credit on the amount of service tax paid for services provided by dealers to customers on behalf of appellant for fulfilling their warranty obligations: CESTAT

May 20, 2024

++ Cus - Subsequent to order under challenge, Customs Broker Licence of appellant has been revoked, appeal becomes infructuous: CESTAT

++ Cus - Since the licence has ultimately been revoked, appeal directed against confirmation of suspension of Customs Broker licence, has been rendered infructuous: CESTAT

++ Cus - Once verification of address is complete, if client moves to a new premises and does not inform authorities or does not get his documents amended, such act or omission of client cannot be held against Customs Broker: CESTAT

++ Cus - Once verification of address is complete, if client moves to a new premises and does not inform authorities or does not get his documents amended, such act or omission of client cannot be held against Customs Broker: CESTAT

++ Cus - Subsequent to order under challenge, Customs Broker Licence of appellant has been revoked, appeal becomes infructuous: CESTAT

++ Cus - Subsequent to order under challenge, Customs Broker Licence of appellant has been revoked, appeal becomes infructuous: CESTAT

++ Cus - Warehoused goods cleared for export & was bound for foreign-going vessel; Customs officers issued Let Export order; Department's allegation of goods being diverted not backed by evidence, hence unsustainable: CESTAT

++ ST - Dry Leasing - Agreement between assessee & party for leasing jet aircraft with possession solely at risk of lessee along with maintenance, is not Supply of Tangible Goods; transaction amounts to Deemed Sale under Article 366(29A) of Constitution & hence excluded from Service Tax levy: CESTAT

++ ST - Commissionerate at Raipur lacks jurisdiction to issue SCN demanding tax for such service which was provided by assessee's unit in Delhi, where service in question is rendered outside jurisdiction of Raipur Commissionerate: CESTAT

++ ST - No question of suppression of facts would arise where assessee regularly files returns & maintains proper books; extended limitation need not be invoked in these circumstances: CESTAT

May 18, 2024

++ CX - Though Commissioner mentions that he refrains from imposing penalty under Rule 27 of CER, 2002, same is not invoked in SCN, there is no way that Adjudicating Authority could have imposed penalty under said Rule: CESTAT

++ Cus - Order re-determining transaction value based on CRCL test report is not correct & hence unsustainable: CESTAT

++ Cus - If price is not sole consideration for sale, then transaction value can be rejected under Rule 8 of Export Valuation Rules & then must be redetermined sequentially through Rules 4 to 6: CESTAT

++ Cus - If there is additional consideration for sale, then proper course for the officer is to reject transaction value & re-determine value under Rule 4 or Rule 5 or Rule 6 sequentially: CESTAT

++ ST - Assessee transports coal for M/s WCL; demand raised under Cargo Handling Service on activity of loading/unloading/packing of Coal - Activity of loading/unloading/packing may take even longer time than actual transportation, but main purpose of contract is to transport goods - Demand raised is not tenable, more so where M/s WCL already paid tax under reverse charge on transportation service: CESTAT

May 17, 2024

++ Cus - Revenue appeal - Monetary limit - For the purposes of determining threshold limit, it would only be the duty element which would be taken into account and the same could not be clubbed with penalty and redemption fine: HC

++ ST - Refund - Judgment is binding upon the sub-ordinate authority, more particularly, when the same is not stayed by the higher authority inspite of the fact that the judgment is pending before the Apex Court for adjudication: HC

++ ST - SCN is issued without disclosing the facts as to what type of services is rendered by petitioner for which service tax was leviable - Entire basis of SCN is frustrated: HC

++ GST - Reply filed is a detailed one with supporting documents, therefore, observation of proper officer that the reply is incomplete and unsatisfactory ex facie shows that he has not applied his mind - Matter remitted: HC

++ GST - Notified Area Authority, Vapi cannot be considered as 'local authority' or 'Governmental Authority' - Benefit of 12/2017-CTR unavailable: HC

++ GST - Language used in both the SCN and impugned order is identical - Adjudication process would be robbed of meaning unless the authority undertaking adjudication acts in an objective manner without predetermining the issues: HC

++ GST - Participation in exhibition abroad - Services received outside India is taxable at the hand of the receiver of services, who is a registered person in taxable territory: HC

++ Cus - Penalty of Rs.51 crores - Facts are so gross to the effect that petitioners are involved in smuggling of 4886.206 kgs gold allegedly from March 2013 to May 2019 - Petitions not entertained - Petitioners at liberty to approach appellate authority: HC

++ Cus - Exclusion from levy of anti-dumping duty upon users of Metcoke in the manner provided in Notification 69/2000-Cus - Central Government is entitled to grant exemption: HC

++ Cus - No interference can be made while exercising writ jurisdiction as it would be in the domain of Central Government to decide as to whether the anti-dumping duty should be continued in public interest: HC

++ GST - E-Way Bill was not present in the vehicle - Violation is only a technical one - Tax and penalty paid to be refunded: HC

++ GST - Refund denied on the ground that petitioner did not pay interest with regard to reversal of ITC - As no SCN was issued proposing such denial, order quashed and matter remanded: HC

May 16, 2024

++ Cus - Petitioner is only an intermediary for procuring containers and giving the same on lease to the consignees - Directions cannot be issued, while exercising extraordinary jurisdiction, to authorities to release the containers by destuffing the goods: HC

++ GST - Petitioner asserts that he was unaware of the proceedings - Since the tax dues appear to have been recovered, revenue interest has been secured - Matter remanded: HC

++ GST - No opportunity of hearing is granted to the petitioner by the respondent authority while taking adverse view - Only recourse is to remand the matter for passing fresh order in accordance with law: HC

++ GST - Tax demand and penalty were confirmed entirely on the basis of the statement recorded on 26.09.2022 and by disregarding the reply filed and documents annexed thereto - Orders unsustainable, matter remanded: HC

++ GST - Refund - Proper officers have to comply with the provisions of s.54(7) - Claim to be processed within two weeks: HC

++ GST - Since the only reason for passing impugned order is that petitioner had not filed any reply, one opportunity needs to be granted - Matter remitted: HC

++ Cus - Without checking authenticity of certificate of origins, the same cannot be discarded & based on the same, benefit of exemption cannot be denied: CESTAT

++ CX - Since the appellant has fulfilled procedural requirement as mentioned in Clause 2(a) of Notfn 33/99-CE , refund applications filed by appellant cannot be rejected: CESTAT

May 15, 2024

++ ST - In absence of any finding recorded by Commissioner that construction was primarily for purpose of 'commerce or industry', it is not possible to sustain demand under section 65(105)(zzzza) of Finance Act: CESTAT

++ CX - Since both the Notifications 22/ 2014 and 24/2014 were not issued for publication in official gazette not offered for sale on said date, appellant is not liable to pay duty as per said Notifications: CESTAT

May 14, 2024

++ Cus - Failure to abide by obligation to export finished goods - Penal provision must be strictly construed - There is no allegation of attempting to make an export or import, which is covered by s.11(2) of the FTDR Act, 1992 - Demand of penalty cannot be sustained: SC

++ GST - Cash Credit Account and OD Account cannot be provisionally attached: HC

++ GST - Cancellation of registration with retrospective effect - Since the Show Cause Notice is itself defective and the order is cryptic without any reason, the same cannot be sustained: HC

++ GST - Petitioner has filed a detailed reply with supporting documents, therefore, conclusion of the proper officer that the reply is incomplete ex-facie shows that Proper Officer has not applied his mind: HC

++ GST - Neither the Show Cause Notice, nor the order spell out the reasons for retrospective cancellation of registration, therefore, the same cannot be sustained: HC

++ GST - Order has been passed solely on the ground that there was no response received from petitioner - One opportunity should be granted to file a response and thereafter SCN shall be re-adjudicated: HC

++ Cus - Rejection of refund application post finalisation of provisional Bills of Entry, on grounds of limitation, is unsustainable, where Revenue is unable to establish the dates on which O-i-O was conveyed to Assessee & that Assessee's refund application was barred by limitation: CESTAT

++ ST - Appellant's claim of payment of Service Tax has not been taken into account while reconciling net Service Tax payable by them, Accordingly, matter remanded to verify the claim of appellant and arrive at actual Service Tax payable by appellant, if any: CESTAT

May 13, 2024

++ ST - In absence of clear finding for demand of reversal of Cenvat credit and for demand of service tax on 'other income' without examination of documents, same cannot be legally sustainable: CESTAT

++ ST - Purchase and sale of SIM Cards by franshisee/distributors appointed by telecom companies not leviable to Service Tax under category of Business Auxiliary Service especially when such companies already discharged service tax on gross amount of Such SIM cards: CESTAT

++ CX - It is the duty of Tribunal even without an alternative submission, to pass necessary consequential orders, suo motu, to give further directions in matter as situation may warrant: CESTAT

++ Cus - Bio-metric Access Control System capable of storing data in the Automatic Data Processing Machine, is appropriately classifiable under CTH 8471: CESTAT

May 11, 2024

++ GST - Mens rea to evade tax is essential for imposition of penalty, revenue is directed to refund the amount of tax and penalty deposited by petitioner: HC

++ GST - When the statute provides for procedure for hearing, Constitutional Courts are duty bound to uphold such procedure and must ensure that meaningful opportunity of hearing must be provided: HC

++ ST - As per settled position in law, liability to Service Tax on Works Contract Service could only be after 01.07.2010 - Demand raised for period prior to such date is not tenable: CESTAT

++ Cus - Regulation 10(n) of CBLR 2013 is not contravened, where broker verified antecedents & correctness of IEC, KYC, GST documents on DGFT, GST & I-T portals, before clearance of goods; revocation of broker's license not tenable: CESTAT

++ CX - Extended limitation is to be invoked only if requisite ingredients of fraud, collusion, wilful mis-statement or suppression of fact, have been established; cannot be invoked merely because assessee operates under self-assessment: CESTAT

++ CX - Provisions for normal period of limitation will be rendered otiose if extended limitation is invoked in cases of assessees operating under self-assessment or if AO invokes extended limitation based on own opinion: CESTAT

++ CX - Return forms are designed by the Government & not by an assessee - Assessee cannot be faulted for not disclosing any information which was not required to be disclosed: CESTAT

++ CX - Intention to evade duties is always secret for which documentary evidence will not be available but if record indicates prima facie case and assessee is not able to give plausible explanation then allegation is proved: CESTAT

May 10, 2024

++ GST - Classification - 'Mango pulp' would go with mango sliced, dried - Tax is payable at the rate of 12% from 1st July 2017 and not @5% as claimed or @18% as demanded: HC

++ GST - Even assuming that dues to sundry creditors were not discharged, only the trade payables and not receivables should have been taken into account: HC

++ GST - Proper officer observes that reply filed is unsatisfactory and since taxpayer did not avail opportunity of being heard, he is passing an ex parte order - No evidence that proper officer sought clarification/further documents from petitioner - Matter remanded: HC

++ GST - Neither the Show Cause Notice nor the order spell out the reasons for retrospective cancellation, hence same cannot be sustained: HC

++ GST - Merely because a taxpayer has not filed returns for some period does not mean that registration is required to be cancelled with retrospective date also covering the period when returns were filed: HC

++ GST - Adjournment is not a right - s.75(5) empowers the proper officer to grant upto three adjournments, if sufficient cause is shown: HC

++ GST - Cancellation of registration - Order on the one hand states that no reply has been filed and on the other hand refers to a reply dated 14.11.2022 - This shows complete non-application of mind, particularly when Proprietor had passed away and no reply was filed: HC

May 09, 2024

++ Cus - Warehousing of imported solar panels/solar modules - Instruction dated 9 th July 2022 appears to travel far beyond the advisory and clarificatory function which stands placed in the Board by virtue of s.151A of CA, hence quashed: HC

++ Cus - Petitioner had opted for conversion from a less rigorous procedure of availing Duty Drawback Scheme to a more rigorous procedure under Advance Authorisation Scheme and as per Circular 36/10-Customs, same was not possible: HC

++ CX - Respondents cannot go beyond the Reward Scheme as no discretion is vested with them to release any amount towards the reward, before finalization of the proceedings against assessee: HC

++ GST - Petitioner is given liberty to manually file an appeal against impugned order regarding transitional credit of SGST for which they had valid evidence for payment of VAT of same amount: HC

++ GST - For the period for which return was filed, registration cannot be cancelled retrospectively: HC

++ ST - In case of payment received through cheque, it is the date of honouring cheque, which has to be construed as date of receipt of advance payment and since amount was received by appellant on or after appointed date, appellant would not be entitle to benefit of exemption notification: CESTAT

++ Cus - When undervaluation of goods is alleged solely based on value of contemporaneous imports, all details relating to such imports are to be necessarily established by Revenue: CESTAT

May 08, 2024

++ Cus - CHA - AA has clearly brought out the modus adopted by the appellant and how he was a party to the entire under valuation exercise - Factual finding affirmed by Tribunal - No question of law arises for consideration: HC

++ Cus - CHA - AA has clearly brought out the modus adopted by the appellant and how he was a party to the entire under valuation exercise - Factual finding affirmed by Tribunal - No question of law arises for consideration: HC

++ GST - Proper officer has not applied his mind while passing the order; confirmed demand by opining that reply is not satisfactory - Proper Officer is directed to withdraw all punitive actions taken against petitioner pursuant to impugned order: HC

++ GST - Cancellation of registration for non-filing of returns - Suspension/revocation of license would be counterproductive and works against the interest of revenue - Pragmatic view needs to be taken to permit petitioner to carry on his business: HC

++ GST - Cancellation of registration for non-filing of returns - Suspension/revocation of license would be counterproductive and works against the interest of revenue - Pragmatic view needs to be taken to permit petitioner to carry on his business: HC

++ ST - Civil work for construction of tower in port area, is exempt from tax as per Notfn No 25/2007-ST; constructing draining pipes for municipal corporation is not commercial activity & so no Service Tax is payable thereon: CESTAT

++ Cus - That appellants were aware of dutiable nature of Gold found from baggage & of procedure for declaration at Customs, reveals intent to smuggle said Gold without payment of tax - conditions for valid import of Gold not satisfied either; absolute confiscation upheld: CESTAT

++ CX - Excise duty is determines based on how goods are cleared - What happens to goods post their removal, is not manufacturer's lookout, unless manufacturer is involved in fraud or wilful mis-declaration: CESTAT

++ CX - Manufacturer of Single Sugar Phosphate (SSP) meant for agricultural use, cannot be held liable for use of SSP for industrial purposes, by a tertiary purchaser of SSP: CESTAT

++ ST - Since the demand itself is not sustainable, question of demanding interest and imposing penalty does not arise: CESTAT

May 07, 2024

++ GST - Appellate Authority has not noticed the provisions of Section 12 of the Limitation Act, 1963 which mandates that the day on which the judgment complained of was pronounced, is also to be excluded: HC

++ GST - If the Proper Officer was of the view that the reply filed was insufficient, he could have sought more clarification - Without providing any such opportunity, impugned order could not have been passed - Matter remanded: HC

++ GST - Notice requiring petitioner to furnish additional information/clarification does not mention that petitioner had to appear for personal hearing - Since no opportunity of personal hearing was given, order is unsustainable: HC

++ GST - For the purposes of DNB and FNB courses, petitioner clearly falls within the scope of an educational institution imparting education to students enrolled with it as a part of a curriculum - Services exempted: HC

++ GST - Candidates appearing for the screening tests are not students of the petitioner - Petitioner's claim of exemption on such examination fees is unmerited: HC

++ GST - NEET examinations are in the nature of an entrance examination - Petitioner would be entitled to the benefit of an exemption by virtue of Serial No.66(aa) of the 2017 Notification, which came into effect on 25.01.2018: HC

++ Cus - Technological innovation and advancements would result in obsolescence of raw materials imported duty free - Destruction of such imports allowed after intimation to Customs authority: CESTAT

++ ST - No evidence has been adduced to negate the specific findings of adjudicating authority holding that the service tax on all these expenses, by including same in gross transaction value has been discharged by assessee: CESTAT

++ CX - As assessee is able to prove that all the items in question have been used in fabrication of structures for installation of capital goods which were ultimately used in manufacture of their final product, CENVAT Credit is allowed to assessee: CESTAT

May 06, 2024

++ GST - Record does not reflect that any opportunity was given to petitioner to clarify its reply or furnish further documents/details - In such scenario, proper officer could not have formed an opinion - Matter remitted: HC

++ GST - Mapping of PAN number with GST number - No fault of petitioner - Respondent authorities directed to activate GST number within two weeks: HC

++ GST - Circular 183/2022 - Petitioner to prove his case that he had received the supply and paid the tax to the supplier/dealer - Matter remitted: HC

++ GST -Petitioner to produce all documents as required under summons -Petitioner to be heard by respondent and a decision to be taken, first on the preliminary issue raised with regard to applicability of CGST/SGST: HC

++ GST - s.73 - Extension of time limit for issuance of order - Notifications 13/2022-CT and 09/2023-CT are not ultra vires s.168A of the Act, 2017: HC

++ VAT - Timeline for frefund must be followed mandatorily while recovering dues under Delhi VAT Act: SC

++ CX - All the information was available to department in 2003 itself, therefore, SCN issued four years after gathering information is not sustainable and is highly barred by limitation: HC

++ CX - Clearance to sister concern for captive consumption - Department cannot compel assessee to perpetuate the illegality and in such circumstances the whole exercise was revenue neutral: HC

++ Cus - Revenue involved in the appeal filed by Commissioner is far below the threshold monetary limit fixed by the CBEC, therefore, department cannot proceed with this appeal - Appeal stands disposed of: HC

++ Cus - Export of non-basmati rice - Since the objective of Central Government in imposing ban with immediate effect was to avert a food crisis in the country, a strict compliance of exemption conditions would further the said intent of the Notification(s): HC

++ CX - Appellant should not be left without an opportunity to put-forth his case on merits, particularly, when matter was decided during period of Covid-19 pandemic and also appellant contends that no opportunity of virtual hearing was granted by adjudicating authority: HC

May 04, 2024

++ GST - Payment of pre-deposit through Form GST DRC-03 instead of the prescribed Form APL-01 - Petitioner attributes it to technical glitches - Respondent is the proper authority to decide the question of fact: HC

++ GST - Since SCN is bereft of any details and suffers from infirmities that go to the root of the cause, SCN is quashed and set aside: HC

++ GST - Once Appellate Authority comes to the conclusion that SCN was issued by an officer who was not competent; reply was also considered by an incompetent authority and the Competent Authority had not applied its independent mind, Appellate Authority could not have assumed original jurisdiction and proceeded further with the matter: HC

++ GST - Neither the Show Cause Notice nor the order spell out the reasons for retrospective cancellation of registration, therefore, the same cannot be sustained: HC

++ GST - If the proper officer was of the view that the reply is unclear and unsatisfactory, he could have sought further details by providing such opportunity - Having failed to do so, order cannot be sustained - Matter remanded: HC

May 03, 2024

++ Cus - When there is nothing on record to show that appellant had connived with other three persons to import AA batteries under the guise of declaring goods as Calcium Carbonate, penalty imposed on appellant are set aside: HC

++ Cus - The penalty imposed on assessee was set aside by Tribunal against which revenue is in appeal is far below the threshold limit fixed under Notification issued by CBDT, thus on the ground of monetary policy, revenue cannot proceed with this appeal: HC

++ GST -Since both the SCNs and orders pertain to same tax period raising identical demand by two different officers of same jurisdiction, proceedings on SCNs are clubbed and shall be re-adjudicated by one proper officer: HC

++ ST - Since Department itself admits that service carried out by appellant is that of 'Mining Services' w.e.f. 01.06.2007, thus demand for earlier period has been made only to fasten excess Service Tax demand on appellant which cannot sustain: CESTAT

++ CX - When physical stock verification carried out by Officers was not fool proof and there were anomalies, benefit of doubt should be extended to assessee, duty demand confirmed on alleged clandestine removal is not sustainable: CESTAT

May 02, 2024

++ GST - Statutory requirement to carry the necessary documents should not be made redundant - Mistake committed by appellant is not extending e-way bill after the expiry, despite such liberty being granted under the Rules attracts penalty: HC

++ GST - Tax paid under wrong head of IGST instead of CGST/SGST - 'Relevant Date' for refund would be the date when tax is paid under the correct head: HC

++ GST - Petitioner was given no opportunity to object to retrospective cancellation of registration - Order is also bereft of any details: HC

++ GST - Proper officer should have at least considered the reply on merits before forming an opinion - Ex facie, proper officer has not applied his mind: HC

++ GST - A Rs.17.90 crores demand confirmed on Kendriya Bhandar by observing that reply is insufficient - Non-application of mind is clearly written all over the order: HC

++ GST - Neither the SCN nor the order spell the reasons for retrospective cancellation of registration, therefore, they are set aside: HC

++ ST - Appellant was performing statutory functions as mandated by EPF & MP Act, and the Constitution of India, as per Board's Circular 96/7/2007-ST , services provided under Statutory obligations are not taxable: CESTAT

May 01, 2024

++ CX - Alleged clandestine removal - Not replying to SCN on the ground that letter is not furnished by department is only a ruse as reliance is not placed on the same by the respondent authority for adjudicating the SCNs: SC

++ GST - Proper officer observes that the reply filed is not satisfactory and since the assessee has nothing more to say, demand is confirmed - Officer has not applied his mind - Matter remitted: HC

++ GST - Petitioner had no opportunity to even object to the retrospective cancellation of registration - Petitioner does not seek to continue his business and has sought cancellation of registration - Order modified accordingly: HC

++ GST - Seizing the outward movement of funds from petitioner's bank account - Life of an order of provisional attachment u/s 83(2) is only one year - HDFC Bank, henceforth, cannot restrain operation of bank account: HC

++ GST - Efficacious alternative remedy available, therefore, petition filed seeking quashing of order passed by proper officer is dismissed: HC

++ GST - 1/2017-CTR - Boilers / thermal heaters does not qualify as Waste to Energy Plants and devices - Not entitled for concessional rate of tax: HC

++ GST - Application for revocation of cancellation of registration - Proper Officer to decide the application within two weeks: HC

++ GST - Merely mentioning that the reply is unsatisfactory while confirming the demand raised is non-application of mind - Proper officer should have sought further documents/details - Matter remitted: HC

++ GST - Once registration is cancelled retrospectively, petitioner would not have been able to access online portal and as such would not have received the SCN which led to passing of the impugned order: HC

++ GST - Applicant, a SEZ unit, is not required to pay GST under RCM on specified services subject to furnishing a LUT or bond: AAR

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