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Showing 81 to 100 of 1903 Records
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2019 (8) TMI 1824 - MADRAS HIGH COURT
Permission for withdrawal of writ petition - liberty sought to raise all the grounds before the original authorities - HELD THAT:- This Writ Petition is dismissed as withdrawn with liberty to raise all the grounds before the original authorities. There shall be no order as to costs.
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2019 (8) TMI 1823 - MADRAS HIGH COURT
Violation of principles of Natural Justice - Seizure and Confiscation of Gold - no opportunity was provided to him when the confiscation order in original came to be passed - HELD THAT:- From a perusal of the Order in Original dated 17.02.2015, it is seen that the Joint Commissioner of Customs had observed that the personal hearing was granted on 12.08.2014 and 17.09.2014, at which point of time, the authorised representative of the petitioner requested for adjournment which was also considered and the time was extended to 29.09.2014. On that date, no one had appeared for the personal hearing and no written reply was filed and therefore, the impugned order came to be passed - there are no infirmity in such an observation that inspite of opportunities being granted on earlier three occasions, the petitioner was not ready to get along with the adjudication and thereby, it can be said that opportunities were extended to the petitioner. Nevertheless, it is also seen from the letter of the authorised representative of the petitioner that a mention has been made with regard to the pendency of this Writ Petition before this Court and therefore, they sought for time challenging the show cause notice issued prior to the confiscation order.
This Court is of the view that if an opportunity is granted to the petitioner to substantiate his claim before the original authorities by taking a lenient view, the ends of Justice would be met. As such without going into the merits of the case or any of the other grounds raised by the petitioner, the Order in Original is set aside and the matter is remanded back to the respondent herein for fresh consideration - petition disposed off.
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2019 (8) TMI 1822 - ITAT AHMEDABAD
Rectification of mistake u/s 154 - Return processed u/s 143(1) - assessee has accumulated income out of the income derived from the trust, which was not utilised for the objects of the trust - disallowance of deduction for amount of TDS for which credit has been claimed against tax payable on the returned income - HELD THAT:- As we consider the scope of section 154 for making prima facie adjustment while processing return under section 143(1)(a) of the Act i.e. process of dealing with the return is an ex parte process. It is pertinent to observe that whenever any debatable issue is involved an explanation of the assessee is required, then on such issue, no prima facie adjustment in an ex parte proceedings can be made.
Reading of judgment of Hon’ble Kolkatta High Court in case of Natwarlal Chowdhury Charity Trust [1989 (8) TMI 19 - CALCUTTA HIGH COURT ] and if facts are looked into, then it would reveal that both the issues were debatable one, where more than one opinion was possible. Adjustment under section 143(1)(a) is not permissible on both these aspects. Therefore, we allow appeal of the assessee, and delete both the disallowances. Appeal of assessee allowed.
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2019 (8) TMI 1821 - ITAT MUMBAI
Exemption u/s 11 - as per revenue appellant-Corporation cannot be treated as State within the Article 12 of the Constitution of India - claim denied assessee is engaged in commercial activity carrying out arranging tour and travel packages on commercial basis for fees/charges - scope of introduction of proviso to section 2(15) - assessee in this case is a Trust registered with DIT(E), Mumbai u/s. 12A - first contention of assessee that it is the agency of Government of Maharashtra and its income is not taxable - AO concluded that the assessee apart from running simple buses is also running luxury buses in large scale and is also engaged in providing parcel/courier service in large scale from one location to another for fees/charges - HELD THAT:- As noted above the assessee is a State Corporation engaged in the business of public transportation. The objects of the corporation are development and growth of public, trade and industry of the development of road transport, facilities of road transport in any area and providing an efficient economical system of road transport services and coordination between any form and road transport or any other form of road transport. Surplus of receipts over expenses after payment of interest/dividend on capital as provided by Central/State Government and providing for depreciation and reserves etc. is to be applied for amenities to the passenger, welfare of labour employed, financing the expansion programme etc., as approved by the Government and remainder, if any, is to be handed over to the State Government for the purpose of development. It is noted that there is no change in the activity of the assessee since beginning and it is all along providing road transportation facility to the general public for a ticket as a token contribution.
Prior to introduction of proviso to section 2(15), there was no dispute that the assessee was established for charitable purpose and assessee has all along been granted relief u/s. 2(15) and exemption under section 11 of the Act.
Revenue’s plea that amendment to section 2(15) of the Act shall take assessee’s activity subject to denial of exemption u/s. 11 has been rejected by Hon'ble Karnataka High Court in the case of Karnataka State Road Transport Corporation [2016 (2) TMI 1291 - KARNATAKA HIGH COURT] - Also as relying on ANDHRA PRADESH STATE SEED CERTIFICATION AGENCY VERSUS CHIEF COMMISSIONER OF INCOME-TAX - III, HYDERABAD [2013 (1) TMI 63 - ANDHRA PRADESH HIGH COURT] we are of view taken by the authorities below that the assessee should be denied exemption u/s. 11 simply because of amendment to section 2(15) is not sustainable.
Upto A.Y. 2011-12, there was no dispute that the assessee was entitled to exemption u/s. 11 of the Act. The dispute has only arisen pursuant to introduction of proviso to section 2(15) of the Act. Considering the objects for which the assessee is set up and manner in which it is managed and the manner in which funds generated are utilized, there is no doubt that there is no profit motive in carrying out the activity of the assessee. No doubt there may remain some surplus but that by itself does not mean that the motive is to earn profit. Hon'ble Apex Court in the case of American Hotel and Lodging Association (2008 (5) TMI 17 - SUPREME COURT] has expounded that it may not be possible to carrying on activities in such a way that expenditure exactly matches income and there is no resultant profit. There is no case made out by the Revenue that the surplus is not applied for the purpose of company stated objects. When the assessee was accepted to be entitled to exemption upto preceding assessment year there is no case that the activities of the assessee have undergone a change which warrant denial of exemption.
Assessee is engaged in commercial activity and that also in large scale - This so called large scale has been observed from the data of buses operated by the assessee. Out of 15500 buses, from the website data gathered by the Assessing Officer himself this includes Deluxe buses-48, air conditioned buses-46 and midi-10. From the above how can the Assessing Officer make a deduction that the assessee is running luxury buses in large scale defers all sense of proportionality. To state the obvious assumption of the Assessing Officer is absurd.
Assessee is engaging into profit oriented activities is that the assessee is arranging tour and travel packages on commercial basis for fees/charges - AO has noted eight trips from the website. How will these eight trips stand against thousands of trips undertaken by the assessee for transporting ordinary passengers is beyond comprehension. The Assessing Officer’s inference is totally unjustified. Details of other income which has been considered by the Revenue to be of a large scale pale into absolute insignificance when the same is considered as percentage to the non-operative revenue to operating revenue, which bring them to be lesser than 1% to the operating revenue. Hence figures quoted by the Assessing Officer for inferring that the assessee is engaged in profit motive activity in large scale is totally absurd - the finding given by the Assessing Officer that assessee is engaged commercial and profit motive activity is totally unsustainable.
It may not be out of place to mention here that to remove/prevent the mischief which can be caused to the assessee such as the present large State, the present proviso No. (ii) to section 2(15) provides that if the aggregate receipt from such activity or activities during the previous year do not exceed 25% of the total receipts of the entity, the exclusion provision will not apply. - Decided in favour of assessee.
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2019 (8) TMI 1820 - MADRAS HIGH COURT
Maintainability of appeal before HC on low tax effect - Deduction u/s 80P - Is not the finding of the Tribunal bad by holding that the assessee is not in banking business and not a cooperative bank hit by provisions of Section 80P(4) of the Income Tax Act? - Whether Tribunal was right in holding that the revenue has failed to provide that the assessee is covered by Explanation (a) and (b) of Section 80P(4) without appreciating the fact that the assessee's activity are not confined to a Taluk as stipulated in the Explanation pertaining to Primary Cooperative Agricultural and Rural Development Bank? - HELD THAT:- As the above appeal is not pursued by the Revenue on account of the low tax effect in terms of Circular No.17/2019 dated 08.8.2019 issued by the Central Board of Direct Taxes. By the said Circular, the monetary limit for filing or pursuing an appeal before the High Court has been increased to Rs.1 Crore - tax effect in this case is less than the threshold limit.
Thus the above tax case appeal is dismissed on account of the low tax effect. The substantial questions of law framed are left open. In the event the tax effect is above the threshold limit fixed in the said circular, liberty is granted to the Revenue to make a mention to this Court to restore the appeal to be heard and decided on merits. No costs.
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2019 (8) TMI 1819 - ITAT CHANDIGARH
Denial of grant of exemption u/s 11 - AO held that the donation made to the hospital was not in pursuance to its objects of carrying out religious activities and further was for the benefit of a person which was related to the assessee trust - HELD THAT:- We find are not sufficient to establish this charge. Undisputedly, the amount was paid to the hospital which had also been granted registration u/s 12A - The consistent pleading of the assessee before the AO and the CIT(A), we find, has been that the donation was made was in consonance with its stated religious objects which included service to humanity and humanitarian purpose. In this backdrop, we find, the facts relating to the hospital need further investigation whether it was being run on purely charitable lines with very low fees or no fees being charged from patients or otherwise. Since it is only then it can be said that the donation made by the assessee was in furtherance of its religious objectives of serving humanity.
As far the denial of exemption for the reason that by virtue of this donation a related person of the assessee had been benefited, the Ld. DR himself pointed out that there is no finding of fact as to how the hospital was related to the assessee society in terms of the definition so provided u/s 13 (3) - In the absence of this essential fact the applicability of section 13 (1) (c) of the Act cannot be enforced.
For the aforesaid reasons we consider it fit to restore the issue back to the CIT(A) to adjudicate the issue afresh after bringing out all relevant facts on record as pointed above and any other facts considered necessary by him for adjudicating the issue at hand. Needless to add the assessee be granted adequate opportunity of being heard and the issue thereafter be decided in accordance with law. - Appeals of the assessee and the Revenue are allowed for statistical purposes.
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2019 (8) TMI 1818 - KERALA HIGH COURT
Dishonor of Cheque - effect of amendment in section 148 of NI Act - case of appellant is that Section 148 was brought into N.I. Act, by Amendment Act 20 of 2018 and was effective only from 01.09.2018 and cannot have application in an appeal filed on 15.11.2016, wherein the sentence under challenge was suspended forthwith - HELD THAT:- Section 148 is a new provision incorporated into N.I Act by Negotiable Instruments (Amendment) Act, 2018, directed by the Parliament to be effective from 01.09.2018. On a reading of the provision it is unambiguous that the Parliament intends it to be invoked in appeals preferred by the accused challenging the judgment passed against them.
The power under Section 148 is meant to be invoked by the appellate court while entertaining an appeal from a judgment of conviction imposing sentence on the accused. That is why, it was held as applicable to complaints filed to launch the prosecution under Section 142 N.I. Act and pending before the courts, prior to 01.09.2018 - That does not mean that the provision is meant to be invoked in all Crl.Appeals pending before the appellate court which are at the fag end of trial or pronouncement of judgment, why because, with the pronouncement of the judgment there is possibility for the accused being acquitted also. Therefore, no purpose will be served by directing the accused to deposit any sum, at that stage in view of the provision incorporated under Proviso to sub-Section (3) of Section 148 N.I Act directing to refund the amount in deposit within 60 days or 90 days as the case may be, after the judgment turns against the complainant.
The power is meant to be invoked at a point of time when appeal is preferred or to say more specifically, prior to passing of an order suspending the execution of sentence in an application preferred under Section 389(1) Cr.P.C in the Appeal. The application preferred by either party to the appeal beyond that time shall not be entertained by the appellate court in view of sub-sections (2) and (3) and proviso thereunder, which stipulate time for making deposits, provision for release of the amount deposited to the complainant and for refund of the amount to the appellant/accused on himself being acquitted.
Section 148 can have only prospective application i.e. invocation of Section 148 N.I Act is confined only to appeals filed after 01.09.2018.
Application allowed.
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2019 (8) TMI 1817 - ITAT CHENNAI
Capital gain computation - whether the cost of improvement borne by the previous owner in the case of acquisition of the property by one of the modes specified u/s.49 of the Act is allowable deduction for the purpose of calculating gains? - HELD THAT:- As relying on case of MANJULA J. SHAH [2011 (10) TMI 406 - BOMBAY HIGH COURT] we direct the Assessing Officer to allow the cost of improvement borne by the previous owner as inflated by indexation.
Penalty proceedings u/s.271(1)(c) - assessee had failed to disclose the capital gains on sale of immovable property and also made a wrong claim u/s.35(1)(iii) - HELD THAT:- Admittedly, the penalty was levied in respect of addition made on account long term capital gains on sale of immovable property and the addition on account of alleged bogus claim u/s.35(1)(iii) of the Act. In respect of assessment of capital gains, the assessee has claimed exemption of capital gains u/s.54 of the Act, but the assessee had failed to produce evidences in respect of construction of a new house. In the circumstances, the Assessing Officer had made an addition of capital gains. Thus, the addition was made by the Assessing Officer for failure to prove the claim.
Similarly the addition u/s.35(1)(iii) of the Act was made by the Assessing Officer only for assessee’s inability to produce necessary approval from CBDT. Therefore, it is settled proposition of law that mere inability to substantial claim does not entail levy of penalty u/s.271(1)(c) of the Act, reliance in this regard can be placed on the decision of Supreme Court in the case of C.I.T Vs. Reliance Petroproducts Pvt Ltd.[2010 (3) TMI 80 - SUPREME COURT] accordingly, we are of the considered opinion that it is not a fit case for levy of penalty. Assessee appeal allowed.
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2019 (8) TMI 1816 - ITAT DELHI
Reopening of assessment u/s 147 - Rectification u/s 154 dropped - change of opinion - disallowance being alleged ad hoc provision made for liability on account of rent - HELD THAT:- The assessee enclosed a copy of the claim letter of the Directorate of Estates to substantiate that this amount was an ascertained liability. It is also seen that both the parties have accepted that the 154 proceedings were dropped by the Assessing Officer. Thus, it is very much apparent that the issue of the rent of ‘A’ Barracks was duly examined by the Assessing Officer, first during the course of assessment proceedings and for the second time during the course of proceedings u/s 154 and in both these proceedings, no adverse inference was drawn by the Assessing Officer inasmuch as the returned income was accepted during the course of original assessment proceedings and the proceedings initiated u/s 154 were dropped without making any addition.
A perusal of the record as well as the reasons would also indicate that there was no fresh material which had come in possession of the Assessing Officer prior to the issuance of notice u/s 148 and even in the reasons, the Assessing Officer has duly stated that the issue came to light after the assessment records were examined and it was found that as per Schedule 10 of the balance sheet, certain amount of provision was made which should have been disallowed and added back to the income of the assessee. Thus, it is a clear case where the Assessing Officer has had a change of opinion on the issue since the Assessing Officer had raised a specific query regarding fall in gross profit and it had been submitted that the reason for the fall in gross profit, amongst other reasons, was also rent of ‘A’ Barracks. It follows by implication that the issue was duly considered by the Assessing Officer at the time of original assessment itself. Secondly, even the proceedings u/s 154 which were initiated on the same issue were subsequently dropped by the Assessing Officer. Therefore, on the facts of the case, we are prima facie of the view that the Assessing Officer has by necessary implication allowed the assessee’s claim in the original assessment proceedings itself.
It is also an accepted position that the assessment orders would necessarily deal with the claim being disallowed and not with the claims being allowed.
The Hon’ble Gujarat High Court in the case of C.I.T. vs. Nirma Chemical Works Pvt. Ltd [2008 (2) TMI 373 - GUJARAT HIGH COURT] has held that if the Assessing Officer was to deal with all the claims which were to be allowed in the assessment order, the result would be an epic tome as it would cast an impossible burden on the Assessing Officer considering his work load and period of limitation. Thus, in the present case, it must necessarily be inferred that the Assessing Officer had applied his mind at the time of passing of the assessment order by not disallowing the same in the assessment order framed u/s 143(3) as he was satisfied with the same. Therefore, assumption of jurisdiction, in our considered opinion, would prima facie amount to change of opinion.
Thus it is our considered opinion that since the reassessment proceedings in this case were based on a change of opinion, the same cannot be sustained. Accordingly, we set aside the order of the Ld. Commissioner of Income Tax (A) and quash the reassessment proceedings. - Decided in favour of assessee.
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2019 (8) TMI 1815 - GUJARAT HIGH COURT
Tax to be deducted from the claim amount, and to be paid / deposited by the Insurance Companies - HELD THAT:- Ld. advocate for Mrs.Bhatt, learned advocate for the newly added respondent – Income Tax Authorities seeks time to file affidavit in reply on behalf of the Income Tax Authorities.
List on 06.09.2019. Since the controversy raised in this petition is not restricted to individual claim petition of the present respondent(s), but is a wider issue pertaining to the tax to be deducted from the claim amount, and to be paid / deposited by the Insurance Companies, and stage thereof, it is directed that no coercive steps shall be taken against the Insurance Companies, qua the controversy raised in this petition.
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2019 (8) TMI 1814 - ITAT JAIPUR
Maintainability of appeal - low tax effect - HELD THAT:- The appeal of the department is not maintainable being monetary limit is less than/not exceeding Rs. 50,00,000/-.
The department is at liberty to file the Miscellaneous Application in case the tax effect in this appeal is found to be more then Rs. 50,00,000/- or the case falls in any of the exceptions of the circular.
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2019 (8) TMI 1813 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- As per the directions of this Bench, the Applicant duly served court notice to the Respondent on 22.12.2018, and the same was received by the Corporate Debtor on 24.12.2018. The affidavit of service of the petition is filed on 04.01.2019 with this Bench. But the Corporate Debtor chose not to make any representation before this Tribunal. No objection has been raised by the Corporate Debtor to date, despite service of Court Notice and after providing ample opportunities.
On perusal of the documents submitted by the Applicant, it is clear that debt amounting to ₹7,00,020/- is due and payable by the Corporate Debtor to the Applicant against the invoice dated 21.11.2015 for goods supplied. The outstanding debt is acknowledged by the Corporate Debtor vide its email dated 24.02.2016 by assuring to clear the due amount by the end of the month. Further, the Corporate Debtor has marked its appearance through its counsel but did not file an objection against admission of this application. The outstanding amount that is admittedly in default is more than ₹1,00,000/-.
The Application under section Section 9 of I&B Code, 2016 filed by the Operational creditor for initiation of CIRP in prescribed Form No.5, as per the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 is complete. The existing operational debt of more than rupees one lakh against the corporate debtor and its default is also proved. Accordingly, the petition filed under section 9 of the Insolvency and Bankruptcy Code for initiation of corporate insolvency resolution process against the corporate debtor deserves to be admitted.
Petition admitted - moratorium declared.
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2019 (8) TMI 1812 - DELHI HIGH COURT
Assessment in the name of a non-existent company - Assessment in the name of company amalgamated - whether the ITAT erred in holding that the AO had passed the assessment order in the name of a non-existent company consequent upon amalgamation - HELD THAT:- This issue has been answered against the Revenue by the judgment in Pr. Commissioner of Income Tax, New Delhi v Maruti Suzuki India Limited [2019 (7) TMI 1449 - SUPREME COURT]
Therefore, no substantial question of law arises in the present appeal. The appeal is dismissed.
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2019 (8) TMI 1811 - GUJARAT HIGH COURT
Dishonor of Cheque - non-prosecution - acquittal of accused - section 138 of NI Act - HELD THAT:- The record & proceedings clearly indicates that the complaint came to be dismissed for non-prosecution as the complainant was not available. The record & proceedings also indicates that the complainant died on 24.01.2016, whereas the order came to be passed on 22.03.2017.
This Court is of the considered opinion to quash and set aside the judgment and order - Appeal allowed - decided in favor of appellant.
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2019 (8) TMI 1810 - ITAT DLEHI
TP Adjustment - Adjustment on account of expatriate cost - HELD THAT:- As in assessee’s own case [2017 (10) TMI 1259 - ITAT DELHI] where the Revenue preferred the appeal challenging a similar deletion and found that following the consistent view taken in assessee’s own case by the Revenue as well as by the Tribunal, the Tribunal held that employment of the CUP method by the taxpayer in respect of the international transaction relating to the payment of royalty was proper and rule of consistency is required to be followed by the Revenue.
Since the facts are similar and issue is identical, we find no reason to take a different view for this assessment year. While respectfully following the consistent view taken by the Tribunal in assessee’s own case for the Assessment Years 2006-07 to 2009-10, we hold that the impugned addition cannot be sustained and there was no illegality or irregularity in the findings of the Ld. CIT(A). We, therefore, while upholding the findings of the Ld. CIT(A) find the appeal of Revenue as devoid of merits and accordingly dismissed the same.
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2019 (8) TMI 1809 - DELHI HIGH COURT
Maintainability of petition - requirement of deposit of 7.5% of the service tax demand confirmed - Section 35F of Central Excise Act, 1944 - HELD THAT:- It is trite that no court can issue a direction to any authority, to act in violation of the law. A reading of Section 35F of the Central Excise Act reveals, by the usage of the peremptory words “shall not” therein, that there is an absolute bar on the CESTAT entertaining any appeal, under Section 35 of the said Act, unless the appellant has deposited 7.5 % of the duty confirmed against it by the authority below - The two provisos in Section 35F relax the rigour of this command only in two respects, the first being that the amount to be deposited would not exceed ₹ 10 crores, and the second being that the requirement of pre-deposit would not apply to stay applications or appeals pending before any authority before the commencement of the Finance (No.2) Act, 2014, i.e. before 6th August, 2014.
Allowing the CESTAT to entertain an appeal, preferred by an assessee after 6th August, 2014, would, therefore, amount to allowing the CESTAT to act in violation, not only of the main body of Section 35F but also of the second proviso thereto, and would reduce the command of the legislature to a dead letter - the prayer of the petitioner for being permitted to prosecute its appeal before the CESTAT without complying with the condition of mandatory pre-deposit, cannot be granted. There is, therefore no substance in these writ petitions which are, consequently, dismissed.
Petition dismissed.
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2019 (8) TMI 1808 - SC ORDER
Jurisdiction - power of Court to look into the documents whether or not the Petitioner has been confronted or not with the same - Whether the Court is to look into the documents, produced in a sealed cover by the Respondent-Directorate of Enforcement, when the Petitioner has not been confronted with the said documents during the interrogation on 19.12.2018, 07.01.2019, 21.01.2019 and also on the subsequent dates? - HELD THAT:- Without prejudice to the contentions of both the parties, the Respondent-Directorate of Enforcement is directed to produce the documents in a sealed cover with the authenticated seal of the Directorate of Enforcement.
List the matter on Thursday, the 05th September, 2019, "For Orders".
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2019 (8) TMI 1807 - NATIONAL COMPANY LAW TRIBUNAL, CHENNAI
Seeking admission of the claim towards damages and compensation - claim towards short fall in upliftment of furnace oil - HELD THAT:- In view of the Clause 8 of this application, this Applicant is entitled for calculation of the payment for non-upliftment of furnace oil as per the quantity mentioned in Clause 8, therefore the Liquidator admitted the claim of 9,87,93,000 for non-upliftment of furnace oil. As to rent on fuel handling capacity, since the Applicant has charged it as 7,000, the Liquidator has admitted. As to investment made in storage facility for 2.35 Crores and 2.90 Crores towards interest vide an email dated 23.04.2019 claimed by this Applicant, the Liquidator rejected these components on the ground that there is no agreement entered into between the parties in respect to these components.
Whether this Applicant is entitled to claim which is claimed as damages and compensation for 2.35 Crores and interest portion for 2.90 Crores? - HELD THAT:- The Applicant is not entitled to claim anything that has not been crystallized in the agreement and that has not been agreed between the parties, therefore, this Liquidator has rightly rejected those two claims - When claim itself not claimable, for the sake of giving reasons in detail, that procedure is required to be repeated. For the Applicant has failed to place any material reflecting that this Corporate Debtor is obliged to pay on these two counts, we are of the view that not giving any reasons in detail cannot become a ground for invalidating the claim already considered and rejected by the Liquidator.
Application dismissed.
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2019 (8) TMI 1806 - ITAT KOLKATA
Rectification u/s 154 - ex parte order passed by the Tribunal - HELD THAT:- At the time of hearing Ld. AR submitted that on the date of hearing the assessee could not appear before the bench since the assessee had not been served any notice of hearing. Therefore, he prayed before the Bench to recall the Tribunal’s order passed ex parte on 03.06.2019 for hearing on merits. Since there is reasonable cause for the assessee not to appear before us on the date fixed for hearing, we are inclined to recall our order passed on 03.06.2019 dismissing the appeal for non appearance of the assessee. Registry is directed to fix the appeal in normal course.
Misc. application of assessee is allowed
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2019 (8) TMI 1805 - APPELLATE AUTHORITY FOR ADVANCE RULING, HARYANA
Classification of goods - pizza topping - classifiable under Heading 0406 as claimed by the appellant or classifiable under Heading 2106 as determined by the Authority for Advance Ruling, Haryana? - applicability of S. No. 13 of Schedule-1 of Notification No 1/2017-Integrated Tax (Rate) dated June 28, 2017 - HELD THAT:- The impugned item contains “vegetable fat” as a substantial portion being 22% of the ingredients, apart from mozzarella cheese which is only 14.5% of the combination of ingredients. Thus, the impugned item mainly comprises of “vegetable fat”. It is apparent from the above definition of “process cheese” as appearing in the HSN explanatory notes, that “vegetable fat” is not a prescribed ingredient for process cheese, hence, the presence of “vegetable fat” in substantial quantity, results the impugned item do not qualify to be categorized as “Process cheese” or a type of cheese.
The appellant relied upon the decision of Appellate Authority for Advance Ruling, Uttar Pradesh in the case of IN RE : SAVENCIA FROMAGE AND DAIRY PVT. LTD. [2019 (4) TMI 1545 - APPELLATE AUTHORITY FOR ADVANCE RULING, UTTAR PRADESH]. In this case Appellate Authority for Advance Ruling, Uttar Pradesh has held that the product “Breaded Cheese” is classifiable under Heading 0406 - On going through the said case, it is found that cheese form the most important constituent (55% of total volume). Since the product in question in this case consisting predominantly cheese, hence the Authority has correctly classified the product under Heading 0406. However, in the present case, cheese is not the predominant constituent. Hence the case relied upon by the appellant is not at all applicable in the case.
Thus, the impugned item “pizza topping”, is not covered under the Chapter Heading 0406 of the 1st schedule to the Customs Tariff Act, 1975, in the light of HSN explanatory notes, as discussed in preceding paras and accordingly, not covered by serial number S.No 13 of schedule II to Notification No 1/2017-Integrated Tax (Rate), Notification No.l/2017-Central Tax (Rate) and Notification no.35/ST-2 and chargeable to GST @ 12%.
Applicability of Chapter 2106 - HELD THAT:- Chapter 21 essentially covers ‘Miscellaneous Edible Products’. Obviously, the term ‘Miscellaneous’ indicates that this particular chapter would contain all such edible products which are not specifically covered elsewhere under the Tariff. The Chapter Headings further describes various edible preparations such as extracts of Coffee, tea, Yeast, Soups, broths, Sauces etc. under Heading 2101 to 2105. Further as is the convention, Heading 2106 has been given to include all those items which are not elsewhere specified. Furthermore, 2106 further sub-divides and classifies various edible items like Protein Concentrates, Pan Masala, Sharbats, Supari, Custard Powder etc. under Sub-headings 2106 10 00 to 2106 90 80 and to conclude there is a residual entry as ‘Others’ under 2106 90 99.
The product in question i.e. ‘‘Pizza Topping’ is a product made out of mozzarella cheese, vegetable oil and milk solids as main ingredients with premixes of emulsifiers and stabilizers. The mozzarella cheese is blended with other ingredients and heated upto a required degree. After heating, the materiel is transferred to a mould of requisite capacity for packing the product into pouches containing smaller quantities (1 kg and 200 grm). These pouches are sealed and packed in an outer carton. The product cannot be termed as ‘Processed Cheese’ as already discussed above. However, there is no doubt that being edible preparation for human consumption, it would merit classification under Chapter 21 i.e. ‘Miscellaneous Edible Preparations’ - the impugned product viz. “Pizza Topping’ would merit classification as ‘Food preparations not elsewhere specified or included’ under Chapter Heading 2106 of the schedule to the Customs Tariff Act, 1975, and chargeable to GST as applicable.
Thus, the impugned goods shall be aptly classifiable under Chapter Head 2106 of the schedule to the Custom Tariff Act, 1975 as ‘Food preparations not elsewhere specified or included’ and chargeable to IGST @ 18%.
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