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Showing 321 to 340 of 18016 Records
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2023 (12) TMI 1118
Excess depreciation claimed on crawler cranes - depreciation @ 30% OR 15% - assessee–company is engaged in the business of material handling and erection of heavy equipment on contract basis and providing equipment on hire during the year under consideration - whether the cranes are to be considered as 'Motor lorries' and be allowed depreciation @ 30% or be treated as machinery and allowed depreciation @ 15%? - HELD THAT:- As relying on Gujco Carriers vs. CIT [2002 (2) TMI 48 - GUJARAT HIGH COURT] assessee can claim higher depreciation on cranes @ 30%, therefore, we do not find any infirmity in the conclusion reached by ld CIT(A). That being so, we decline to interfere with the order of Id. CIT(A) in deleting the aforesaid additions. His order on this addition is, therefore, upheld and the grounds of appeal of the Revenue are dismissed.
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2023 (12) TMI 1117
Scope of limited scrutiny - mandation of recording satisfaction before extending/expanding scope of scrutiny - case of the Assessee was selected for ‘limited scrutiny’ for the purpose of verifying Large interest expenses relatable to exempt income (u/s 14A) and High interest expense as compared to business turnover, but the additions have been made other than the reasons for which the limited scrutiny has been selected for, which is not only illegal, arbitrary but also contrary to the circulars of the CBDT - HELD THAT:- As found that the AO travelled beyond the issues involved in the “limited scrutiny” and made enquiries and the additions u/s 68 on account of unsecured loan, on account of unaccounted expenditure and further made addition on account of interest expenses.
We find it handy to refer the instructions of CBDT issued in respect of examination of issue other than the reasons taken up in limited scrutiny case.
Assessment order passed by the Assessing Officer disregarding the instructions of the CBDT are liable to the set aside and no substantial of law arises. CBS International Projects Pvt. Ltd. [2019 (2) TMI 1748 - ITAT DELHI] and Best Plastics Pvt. Ltd. [2006 (4) TMI 53 - HIGH COURT, DELHI]
Considering CBDT Circular and the Judicial Precedents, we hold that the Assessing Officer can widen the scope of scrutiny even the case is selected for limited scrutiny under CASS, however, the condition precedent for such widening of the scope is that the Assessing Officer has to seek prior approval of the authorities mentioned. Such prior approval and the permission of the PCIT is lacking in the instant case. There was no satisfaction about the merits of the issue which necessitated complete scrutiny in the instant case. Hence, the Assessment framed by the Assessing Officer on the issues which are not inconsonance of the instruction of CBDT are liable to be quashed. The additions made by the Assessing Officer being beyond the scope of the limited scrutiny and the same is deleted. Decided in favour of assessee.
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2023 (12) TMI 1116
Addition u/s 68 - receipt was not declared in the ROI and the receipt remain unexplained - taxation of additional income u/s 115BBE - additional income disclosed during the course of Survey in the revised return - Counsel stated that assessee did not have any other source of income other than the income which is generated from the hospital owned by the assessee company - HELD THAT:- In spite of offering this additional income found undisclosed during the course of Survey, the assessee returned loss in both the revised returns only because of claim of deduction u/s 35AD of the Act. Thus, if the assessee has already offered the additional income disclosed during the course of Survey in the revised return filed, there was no reason to add the same again in the assessment.
AO has brought it to tax u/s 68 r.w.s 115BBE of the Act. During the course of Survey in the hospital premises, unaccounted receipts of the hospital in the name of certain doctors were found. As the receipts in question are relating to the business operations of the assessee's hospital. Therefore, such income should be brought to tax as the business income u/s 28 of the Act. Therefore, we note that additional income earned in the course of business ought to be taxed as regular income and not u/s 68.
CIT(A) has rightly noted that the assessee is in the business of running of the hospital. During the course of survey u/s 133A of the Act, some loose papers were found showing unaccounted hospital receipts. Since the hospital receipts are part of the business receipts, therefore CIT(A) held that the provisions of section 68 cannot be made applicable, in view of the decision of Shilpa Dying & Printing Mills Pvt. Ltd [2015 (7) TMI 691 - GUJARAT HIGH COURT].
Section 68 of the Act can be invoked only if no explanation is offered by the assessee about the nature and source of income / receipts and such explanation is not found to be satisfactory in the opinion of the AO. However, in the instant case, the loose papers found during the course of Survey and the statements of the directors recorded during the course of Survey showed that the undisclosed receipts were pertaining to the undisclosed income of the hospital ran by the assessee- company.
CIT(A) held that the undisclosed hospital receipts found during the course of Survey need to be taxed as income from business and are to be brought to tax as per the normal provisions of the Act. The said income is already offered in the revised return, therefore has to be taxed as income from business, and therefore the provisions of section 115BBE of the Act are not applicable with reference to the said income. Based on above reasoning, the ld CIT(A) deleted the addition made by the assessing officer - We have gone through the above findings of ld CIT(A) and noted that there is no infirmity in the order of ld CIT(A). That being so, we decline to interfere with the order of Id. CIT(A) in deleting the aforesaid additions. His order on this addition is, therefore, upheld and the grounds of appeal Nos.1 and 2 of the Revenue are dismissed.
Disallowance of deduction of capital expenditure u/s 35AD - We note that during the course of Appellate Proceedings, the assessee submitted all the details of capital expenditure. As the capital expenditure details were not furnished before the assessing officer, the details furnished during Appellate Proceedings were in the nature of additional evidence under Rule 46A and hence, were forwarded by CIT(A) to the assessing officer for verification and remand report. The assessing officer vide letter dated 05.09.2018 has submitted the remand report wherein he has stated that the assessee has only 92 beds as against 100 beds as required for eligibility u/s 35AD of the Act.
The assessee submitted a rejoinder dated 10.10.2022 before ld CIT(A). In the said rejoinder, the assessee has stated that the Inspector from the assessing officer's office who visited the hospital has not counted the second beds in the twin sharing rooms under the presumption that the second bed is for the patient's attendant. The assessee has also submitted before ld CIT(A), the photographs of the twin sharing rooms with bed numbers in support of his claim. It was further submitted sharing rooms the attendants are provided small sofas and not the beds. The assessing officer during remand proceedings has recorded the statement of Mr. Kirit N Panchal, from Yogesh Surgicals, the firm which has supplied the beds and other equipments to the assessee's hospital. In the said statement, Mr. Kirit Panchal has stated that he has supplied 64 semifaller beds and 36 ICU beds and 3 hydraulic emergency trolley beds. Thus, the supplier has also confirmed that he has supplied more than 100 beds to the assessee hospital which fulfills the eligibility that the assessee has more than 100 beds to claim deduction u/s 35AD of the Act. All these beds and other capital goods to the tune of Rs. 3,16,29,353/- were purchased by the assessee before the date of commencement of the hospital and hence, was found to be eligible for deduction u/s 35AD of the Act.
Whether the claim of deduction u/s 35AD of the Act, which is not made in the original return can be made in the revised return filed? - In the assessee's case, as the assessee has filed the original return in time as per the provisions of section 139(1) of the Act, the revised return filed as per the provisions of section 139(5) of the Act, claiming the deduction u/s 35AD of the Act for the first time needs to be allowed to the assessee. Therefore, the deduction u/s 35AD being 150% of the capital expenditure incurred before the commencement of business has to be allowed to the assessee. Therefore, ld CIT(A) has allowed the deduction u/s 35AD of the Act. No valid reason to interfere with the decision and findings of the Ld.CIT(A), hence we dismiss ground Nos. 3 to 8 raised by the Revenue.
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2023 (12) TMI 1115
Unaccounted interest receipts - Survey action u/s 133A of the Act was carried out in the premises of one Vatika Group/ third party - AO on the basis of the seized documents, it emerged that the assessee company alongwith the other group entities had actually entered into the loan agreements with the entities of Vatika Group, whereas such transactions were otherwise camouflaged as transactions of sale and purchase of properties - CIT(A) deleted addition - HELD THAT:- Evidences relied upon by the AO could not be considered to indicate that the property transactions between the Vatika group and the assessee were actually loan transactions. Thus, the Tribunal has upheld the action of the CIT(A) in deleting the addition made by the Assessing Authority on account of interest income as being misplaced. In view of the similarity of the case set up by the AO in the present case viz-a-viz that in the case of M/s SEH Realtors Pvt. Ltd, following the decision of our Coordinate Bench [2023 (4) TMI 1276 - ITAT DELHI] we hereby affirm the findings of the CIT(A) on the issue in dispute and accordingly the Appeal of the Revenue for Assessment Year 2006-07 is hereby dismissed.
Assessment u/s 153A - disallowance u/s. 14A - CIT(A) deleted addition as observed that there is no incriminating material unearthed during the search, on the basis of which, the said disallowance has been made by the AO - HELD THAT:- In our view, in the absence of any material to dislodge the factual finding of the CIT(A) that the disallowance u/s. 14A is not based on any incriminating material found during search, the action of the CIT(A) in applying the ratio of the judgement of the Hon’ble Delhi High Court in the case of Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] cannot be faulted. Moreover, the judgment in the case of Kabul Chawla (supra) has since been approved by the Hon’ble Supreme Court in the case of PCIT vs. Abhisar Buildwell Pvt. Ltd. [2023 (4) TMI 1056 - SUPREME COURT] Accordingly, the order of the CIT(A) on this issue is also affirmed, and the Ground No. 5 raised by the Revenue in AY 2011-12 is also dismissed.
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2023 (12) TMI 1114
Depriving duty credit under RoDTEP on exports - exports fall under the restricted category or not - prior period i.e. 01.01.2021 to 31.05.2022 - subsequent period i.e. 01.06.2022 to 13.12.2022 - HELD THAT:- Having considered the facts of the case which are identical to the case of M/s. Shree Renuka Sugars Ltd. [2023 (4) TMI 789 - GUJARAT HIGH COURT], it is opined that the respondents could not have denied the benefit of rebate under the RoDTEP scheme to the petitioners, more particularly, when the petitioners have exported product after fulfilling the conditions as prescribed by the Directorate of Sugar as well as the Notifications issued by the Central Government from time to time. The Coordinate Bench of this Court has also passed the order permitting rebate to the petitioner of the said case.
As per the Government circular dated 5th November 2022, the schedule quantity of sugar for export in Sugar Season for 2022-23 was also issued with various conditions, whereby the quantity for export of sugar to various mills was also quantified - By Notification dated 21st October 2022, the Government has also issued export release order for sugar from Somalia.
In view of the Notifications issued by the Government from time to time permitting export of sugar, the basic objective of the RoDTEP scheme is to grant benefit of rebate to the exporter as an incentive or exporting product.
The respondents are directed to grant benefit of rebate under the RoDTEP scheme to the petitioners who have exported sugar with specific permission under the specific condition prescribed by the Directorate of Sugar as per Notification No. 19/2015-20 dated 17th August 2021 and Clause 3 of paragraph 2 of the Notification No. 76/2021-Customs (N.T.) dated 23rd September 2021 - petition allowed.
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2023 (12) TMI 1113
Clearance of warehoused Goods - Seeking clearance to export the consignment of Crude Palmolein imported by the petitioner and warehoused for its own consumption - HELD THAT:- The question for consideration would be whether an importer of a warehoused consignment could, pending investigation as regards the previous imports and when the clearance is not issued under Section 68 of the Customs Act, have recourse to the right to export as contemplated under Section 69 of the Customs Act without paying import duty, and the concerned must examine this question simultaneously with the question whether the petitioner, even if it does not derive any profit from export of the warehoused consignment, would be liable to pay import duty, and conversely, whether the Revenue would be entitled to recover import duty. These aspects will have to be considered recording reasons for the conclusion to enable complete adjudication.
In view of the exigent circumstance viz. that the consignment is a perishable commodity with a shelf life which expires on 21.12.2023 and the petitioner proposes to export the consignment within this time filing shipping bills and other documents to demonstrate that it cannot receive a price which is more than the price at which the consignment is imported, the proper officer must consider these questions and take a decision within a reasonable time, and this Court must observe that if the petitioner is permitted to export upon furnishing a Bank Guarantee, and the Bank Guarantee is so furnished, the same will be subject to the final decision on the questions as aforesaid.
The petition is disposed of with liberty to the petitioner to file a request to export the warehoused consignment of Crude Palmolein imported and warehoused under Section 69 of the Customs Act with the shipping bills and such other documents to demonstrate the price that it will receive on export of crude Palmolein.
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2023 (12) TMI 1112
Classification of imported goods - T4 Fingerprint Time & Attendance System and K200 Proximity Time & Attendance System - to be classified under Customs Tariff Heading 8471 4190 or under 8543 7099? - crossing over the remand directions or not - HELD THAT:- The claim of the appellant that the authorities have gone beyond the remand directions is baseless in as much as from the orders it is seen that the authorities have limited themselves to the directions in deciding the classification. The Tribunal while remanding the case also observed that “He will not be hindered in the exercise by our views on the issue appearing in the order”. Therefore the authorities have only restricted themselves in analysing the impugned item as per its features to arrive at the correct classification.
As noted by the Original Authority, the device captures the data from the employee’s card or the data of the particular employee who key in the PIN into the device. The device does not do anything except for collecting the data at the time of entry or exit and this data is transmitted to a central server for further processing like marking the attendance, preparation of payroll or for other purposes. These facts are not in dispute. Based on the General Rules of Interpretation and the Chapter Notes, the item needs to be classified in the heading akin to it or where the specific description is provided. In this case, the data collection device imported by the appellant is nothing but a card reader working in conjunction with the server. Thus, this device functions as proximity readers/badge readers, which are specifically classified under Chapter Heading No.8543.
Since the specific function of the imported item is to mark attendance or to take note of the persons of the employees for the purpose of attendance or payroll or leave, they cannot be classified under Chapter 84 as it excludes from this Chapter as per the Chapter Note 5(E).
This Tribunal, recently, in the case of COMMISSIONER OF CUSTOMS, BANGALORE VERSUS M/S. KRONOS SYSTEMS INDIA PVT. LTD. [2023 (10) TMI 1006 - CESTAT BANGLORE], in an identical issue held the product to be rightly classifiable under Chapter 8543.
Thus, by following the decisions of this Bench, it is found that the product is rightly classifiable under Chapter 8543 - the impugned order is upheld and the appeal is dismissed.
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2023 (12) TMI 1111
Validity of remand orders made by the learned trial Judge concerned - whether the arrest of the petitioners was terms of the relevant provisions embodied in Sections 17-A, 18(1), and, in Section 19(1) of the Prevention of Money Laundering Act, 2002? - HELD THAT:- It has but clearly emerged rather from the evident fact, qua the accused, thus respectively accompanying the officials of the E.D., on 27.10.2023, respectively in the seized car or in the car belonging to them. Therefore, the said manner of the accused accompanying the E.D. officials, does tantamount to theirs being then unlawfully restrained, and, as such, the accompanying of the accused in the said vehicles, thus on 27.10.2023 but also becomes the actual date of theirs being, thus arrested then. However, when on the said date the accused were not supplied with the grounds of arrest or the reasons to believe, that they have committed offences punishable under the Act of 2002. Consequently, thereby pervasive breach is caused to the mandatory provisions.
The argument, if any, as addressed before this Court by the learned ASG concerned, that the said accompanying of the accused in the vehicles, was only in pursuance to summons, becoming issued upon them, for ensuring that thereby, they are interrogated at the E.D. headquarters located at Delhi, is but also liable to be rejected - The reasons for rejecting the above argument, but is again planked, upon the trite evident fact, that unless the accused had willingly accompanied the E.D. officials concerned, thus in their private vehicles or in the vehicle of their relatives, thereupon theirs in the above mode of theirs accompanying the E.D. officials to the E.D. headquarters, located at Delhi, would be construed to be theirs thereby then, thus becoming unlawfully restrained.
The above argument, cannot become accepted by this Court, in view of the mandate recorded by the Hon’ble Apex Court in case titled as V. Senthil Balaji V. State Represented by Deputy Dikrector and Others [2023 (8) TMI 410 - SUPREME COURT], wherein, it has been expostulated, that when material, does emerge rather suggestive that the parameters laid thereins, relating to application of judicial mind by the learned trial Judge concerned, to the makings of the relevant statutory breaches but become infringed, thus in his making the impugned order of remand, as such, upon, the vice of non-application of mind rather emerging, thus planked, upon breach being caused to the mandate of Section 19 of the Act of 2002, thereby the orders of remand are illegal.
This Court quashes the order of remand, and, in the exercise of writ jurisdiction, declares the arrest of the petitioners to be non-est and void.
In consequence, after allowing the instant petitions, this Court quashes the impugned order of remand (Annexure P-1 in both petitions), and, orders that the petitioners be released from judicial custody, but subject to theirs furnishing personal, and, surety bonds in the sum of Rs. 5,00,000/- each, before the learned trial Court/Chief Judicial Magistrate/Duty Magistrate concerned, and, to his satisfaction, and, also subject to theirs not tampering with prosecution evidence, and, also theirs not influencing prosecution witnesses - Petition allowed.
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2023 (12) TMI 1110
Waiver of demand for service provided by the appellant as a sub-contractor for the period prior to the Board Circular No. 23/3/97-ST dated 13.10.1997 - Circular prescribes that when the Service Tax on the entire value was discharged by the main contractor the sub-contractor is not required to pay service tax - applicability of clarification via Circular No. 96/7/2007-ST dated 23.08.2007 - HELD THAT:- It is found that this case can be decided even without going into merit of the case that whether the service provided by the sub-contractor is liable to Service Tax or otherwise.
It is found that including the case laws cited by the respondent this Tribunal taking consistent view that during the period prior to 2007 when the Circular No. 23/3/97-ST dated 13.10.1997 dated 23.08.2007, was in force which clarified that sub-contractor is not required to pay Service Tax when the main contractor has discharged the Service Tax. In this case this fact is not under dispute - on this similar fact this Tribunal has taken view that there is no mala fide on the part of the assessee.
The demand for extended period was set aside - appeal of revenue dismissed.
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2023 (12) TMI 1109
Levy of service tax - construction of complex service - construction of flats at Uttar Pradesh Awas Vikas Yojna - demand dropped by the Commissioner on the ground that they were constructed by the Government for their personal use and hence were exempted from service tax - HELD THAT:- The assessee did not pay service tax on the plea that there were not more than 12 dwelling units in one block constructed by them. According to the Revenue, block and complex are not one and the same. As per the letter issued by the UP Awas Vikas Yojna to the assessee there were five separate agreements for construction of 42 blocks comprising 504 residential units in total at different locations in Gonda District for providing accommodation to weaker sections. There was no specific exemption to the services rendered by the assessee and, therefore, the Commissioner should have confirmed the demand on the services under construction of complex service.
Business of construction of civil structures either residential or commercial - demand dropped holding that the income declared to the income tax department has no co-relation with the service provided - HELD THAT:- The land in question was agricultural land. It was not converted into non-agricultural land. In some cases the agreements specifically provided that the site formation was meant for agricultural purposes. It, therefore, appears that the assessee had rendered these services on agricultural land for the real estate developers. The case of the assessee is that the intention of the client is irrelevant to taxability and as long as the service is rendered on agricultural land, it is non-taxable. On the other hand, according to the revenue, the demand on ‘site formation service’ has been correctly confirmed in the impugned order because although the land was agricultural land during the relevant period, the nature of the contracts makes it abundantly clear that it was rendered to real estate developers for investment purpose which is undisputed.
Whether the services rendered by the appellant are excluded as being provided in relation to agriculture? - HELD THAT:- Nothing in the records suggests that the service recipient builders were engaged in agriculture, although the land was during the relevant period was agricultural land. Evidently, the land was meant for developing into real estate although such development can take place only after the land was is got converted into non-agricultural land by the land revenue authorities. Unsurprisingly, the contracts do not mention that the site formation must be done by the appellant for non-agricultural purposes because non-agricultural activities could not have been taken up on the land before it was converted to non-agricultural land. Seeing the contracts as a whole, it is evident that the purpose of site formation was for the builder to develop it into real estate and it was not for agricultural purposes - the demand cannot be sustained and hence needs to be set aside.
Dropping of service tax under three heads. Under “commercial or a industrial construction service - demand was dropped on the construction of three buildings for Aligarh, Muslim University, hostels at IIT Roorkee and construction in respect of Tehri Hydro development corporation - HELD THAT:- Section 65 (25b) is very clear. ‘Commercial or Industrial construction’ means the service which is rendered for construction, prepare alteration etc., of a building which is used or is to be used, occupied or is to be occupied or engaged or is to be engaged primarily in commerce and industry or works intended for “commerce or industry”. By no stretch of imagination can we call the amounts collected by the Aligarh Muslim University when the buildings are used for campus recruitment as commercial activity. Even if it is considered as a commercial activity, the building is not primarily for commerce or industry. Similarly universities, as a matter of course, provide consultancy services as a part of their extension programmes and do collect some consultancy fee when such services are provided. That does not make them organizations primarily engaged in commerce or industry nor can a building which is used for providing such consultancies be considered as a building primarily for commerce or industry.
The contention of the Revenue that the hostels in IIT constructed by the assessee should be considered as buildings primarily for commerce or industry simply because some hostel fees is collected from students by the IITs. Similarly, Tehri Hydro Electric Development Corporation is national project meant for generating hydro electricity and supplying it - The buildings in hydro electric project cannot, therefore, also be considered as buildings primarily meant for commerce or industry - there are no error in the Commissioner’s order dropping the demand with respect to the commerce or industrial construction service.
Construction of complex service - demand to the extent the services were rendered to Uttar Pradesh Avas Vikas Yojna for construction of residential complexes for weaker sections dropped - HELD THAT:- If there are several buildings and each one fewer than 12 residential units and the total number of residential units in all the buildings together is more than 12, such complexes does not fall under section 65(91a). Therefore, no service tax can be levied on such complex - It is found that the Commissioner committed no error in dropping the demand on construction of complex services on the buildings which the appellant constructed for UP Avas Vikas Yojna.
Demand of service tax on the declaration made to the income tax during survey operation - HELD THAT:- According to the Revenue, the Commissioner had erred in not appreciating the declaration by the Director of the appellant that the amount was collected from various investors for real estate projects to be launched. However, this statement was not considered is not correct as the balance sheet of the noticee for the relevant period revealed that they were into construction of business only and were not developers. Further, even if the statement of the Director is held to be correct, the amounts so collected would have been squarely covered as amounts collected for service to be provided under section 65 (105) of the Finance Act, 1994 - Several services were rendered by the appellant which were exempted from payment of service tax. If Revenue alleges the service tax has to be paid on this income received by the appellant, it has to establish that this income is earned by rendering a taxable service. Revenue has not done so, therefore, the demand was correctly dropped under this head by the Commissioner in the impugned order.
Appeals disposed off.
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2023 (12) TMI 1108
CENVAT Credit - input tax credit availed on common input services such as advertisement, banking and finance, courier service, manpower service, renting of immovable property service, security service, telecommunication service etc. for trading also - non-maintenance of separate accounts as contemplated under Rule 6 (2) - HELD THAT:- There is nothing to show that the department has verified as to whether the trading units have availed credit on input services. It is merely stated that the trading units have provided installation services for which they have collected service tax and paid to the Government and so is engaged in services also - such installation services are output services of the trading unit and not input services. Credit cannot be availed on the service tax paid on output services viz; installation charges. On perusal of records, in the invoices issued for sale of products, the trading unit while collecting service tax on installation charges has mentioned the service tax registration number of the service unit of the appellant. This might have created confusion to the department to assume that the trading unit has availed credit on input services.
Merely because the appellant trading unit had mentioned the service tax registration number of the service unit while issuing invoices, the department has assumed that the appellant trading unit must be availing credit on input services also. The department has made a conclusion that the trading units are also to be considered as service units and the demand has been raised alleging that the appellant has availed credit in regard to activity of trading. It also requires to be mentioned that while quantifying the duty demand the turnover of the trading units has been applied against the total credit availed by the service units. Thus, the appellant has been required to pay 6% of the value calculated by such formula.
The department has failed to establish the allegation in the SCN that credit on common input services have been availed in regard to trading - the demand raised being factually and technically incorrect cannot be sustained.
The impugned order is set aside, the appeal is allowed.
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2023 (12) TMI 1107
Adjustment of excess amount deposited by the petitioner towards the amount demanded - SVLDR provide for adjustment or not - Circular No. 1074/07/2019-CX dated 12.12.2019 - HELD THAT:- The finding of the writ court is that SVLDR was introduced to provide amnesty and resolution of disputes by making mutual adjustment with regard to the disputed pre-deposit made by the petitioner. It is further held that merely because the assessee has to file a separate declaration for each period, in the absence of a specific bar or prohibition for consolidating or clubbing two cases and making mutual adjustment, it cannot be said that mutual adjustment in respect of the very same assessee in relation to same subject matter or commodity for the two different periods is impermissible.
The petitioner has not claimed refund. Merely for the reason that SVLDR does not provide for adjustment, in view of circular issued by the department, adjustment is permitted. It is to be noted that declarant is always one person and the declarations are for different periods. So any money deposited by a declarant in respect of demand for one period can be adjusted in respect of demand for another period.
There are no infirmity in the impugned order. Hence writ appeal is dismissed.
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2023 (12) TMI 1106
Clandestine removal - Acoustic Enclosures - manufacture and clearance without payment of duty or the said goods were manufactured on job-work basis by other manufacturers and cleared to the customers directly - relevant period i.e. 01/04/2000 to 04/06/2002 - HELD THAT:- The Revenue could be able to establish that even though the appellant claimed to have manufactured the acoustic enclosures on job work basis from M/s. SBN Engineering Works and M/s. Steel Engineering works, in fact the same were manufactured in their premises during the relevant period and cleared without payment of duty. The claim of the evidence from the stage of procurement of raw-materials, receipt in the factory, manufacture using their labour force adduced by the Department in the demand notice and confirmed in the impugned order by learned Commissioner (Appeals), the owner shifts to the appellant to establish that the goods acoustic enclosures manufactured on job-work basis.
It is found that the submissions advanced by the appellant are of general in nature and devoid of rebuttal of evidences brought on record indicating procurement of raw materials, processing of the same in the factory premises, stock of the glass wool etc. used in the manufacture of acoustic enclosures found in their factory, low conversion charges reflected in the invoice of job-worker etc. overwhelmingly indicate that the acoustic enclosures were manufactured and cleared without payment of duty from their factory.
The appeal of the appellant is rejected and order of the Commissioner(Appeals) is upheld.
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2023 (12) TMI 1105
Wrongful availment of SSI Exemption - use of brand name ‘BASANT’ owned by another person - ‘BASANT’ is the name inherited by both BMW and the appellant - whether the use of the brand name ‘BASANT-KS’ by suffixing the letters ‘KS’ (abbreviation for Kanwarjit Singh, Partner of the appellant firm) to the inherited name ‘BASANT’ is entirely fortuitous and is not a case of use of brand name belonging to the other person?
HELD THAT:- On an identical issue regarding the brand name ‘BASANT’ this Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE & ST, LUDHIANA VERSUS M/S. BASANT PRESSES (INDIA) [2017 (6) TMI 805 - CESTAT CHANDIGARH] had held that the trademark BASANT was being used by BMW and the same even if used by M/s Basant Presses (India), they were still eligible for SSI exemption.
The impugned order denying the benefit of SSI exemption is not sustainable in law - Appeal allowed.
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2023 (12) TMI 1104
Valuation - includability of the sales tax concession retained by the Appellant in the assessable value for the purpose of levy of Central Excise duty - extended period of limitation - penalty - HELD THAT:- The issue is no more res integra as the Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II VERSUS M/S. SUPER SYNOTEX (INDIA) LTD. AND OTHERS [2014 (3) TMI 42 - SUPREME COURT], has held that the sales tax concession retained by the assesses is required to be added in the assessable value for the purpose of levy of Central Excise duty. By relying on the above decision of the Hon’ble Supreme Court, it is held that the sales tax concession retained by the Appellant is required to be added in the assessable value for the purpose of levy of Central Excise duty - the demand for the normal period is to be computed by taking the amount collected as cum-duty.
Extended period of limitation - penalty - HELD THAT:- It is observed that there were decisions of the Tribunals that the sales tax concession retained by the assesses is not required to be added in the assessable value for the purpose of levy of Central Excise duty. Thus, the appellant cannot be faulted for not including the same in the assessable value. In the impugned order, the adjudicating authority while agreeing that extended period not invocable in this case, imposed penalty equal to the duty confirmed under Section 11AC of the CEA, 1944 - the adjudicating authority has not given any proper finding for imposing penalty under Section 11AC. Accordingly, the penalty imposed under Section 11AC not tenable - Further, Board has issued Circular No. 1063/2/2018- CX dated 16.02.2018, clarifying acceptance of some of the orders passed by the Hon’ble Supreme Court, High Courts etc, wherein no review petition has been filed - In the said clarification, the order passes by the Hon’ble Supreme Court in the case of Super Synotex has also been included and it has been categorically stated that extended period not invocable in such cases. In the present case, we observe that the Adjudicating Authority has failed to show any positive act of suppression on the part of the Appellant. The details of VAT collected and retained by the Appellant are reflected in the audited Profit & Loss account and balance sheet of the impugned periods. Accordingly, by following the above Circular issued by the Board, the extended period not invocable in this case and for the same reason penalty under Section 11AC of the CEA, 1944 also not imposable.
Appeal allowed in part.
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2023 (12) TMI 1103
Exemption under N/N. 67/95-CE - Clearances of acetylene gas for captive consumption - benefit denied merely on the ground that the acetylene gas is not used in the repair and maintenance of machinery directly, rather the same is being used via intermediate products - HELD THAT:- Notification 67/95 exempts from payment of duty all goods specified therein manufactured in a factory and used within the factory of production in or in relation to manufacture of final products. The scope of this notification is wide enough to cover the acetylene gas manufactured by the Appellant and used in the traffic department for repair and maintenance of railway track, wagons etc., and the acetylene gas used in 30 shops/departments for repair and maintenance of machineries.
The issue of whether railway tracks used in the plant form a part of manufacture is no longer res-integra since the Hon’ble Supreme Court in the case of Jayaswal Neco Limited v. Commissioner of Central Excise, Raipur [2015 (4) TMI 569 - SUPREME COURT] held It is clear from the above that the use of railway tracks inside the plant not only form the process of manufacturing, but it is inseparable and integral part of the said process inasmuch as without the aforesaid activity for which railway tracks are used, there cannot be manufacturing of pig iron.
Thus, the use of railway tracks are meant for production of goods. The acetylene gas used in 30 shops/departments for repair and maintenance of machineries was also used in connection with the manufacture of the finished goods for the Appellant - the Appellant is eligible for the benefit of exemption notification no. 67/95-CE. Hence, the demand confirmed in the impugned order by denying the benefit of exemption notifications 65/95 or 67/95 is not sustainable - appeal allowed.
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2023 (12) TMI 1102
Denial of refund of unutilised input tax credit (ITC) accumulated in respect of the Goods and Services Tax paid on inputs - zero-rated supplies - period from July 2017 to March 2018 - petitioner’s application for refund rejected on the ground that it was filed beyond the period of two years as specified under Section 54(1) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- A plain reading of Sub-section (1) of Section 54 of the CGST Act indicates that any person who is claiming a refund of tax or interest, if any, paid on the amount is entitled to make an application before the expiry of two years from the relevant date and in such form and manner as may be prescribed. The term “relevant date” has been defined in Explanation (2) to Section 54 of the CGST Act - There is no cavil that the petitioner was required to make an application for refund under Sub-section (1) of Section 54 of the CGST Act within two years of the goods leaving India or crossing its territorial frontiers.
The controversy essentially revolves around whether the petitioner did make an application within the period and/or was prevented from doing so. It is not disputed that at the material time, there was confusion regarding the implementation of the Goods and Services Tax regime which had been rolled out - In the present case, there is no dispute that the petitioner had attempted to upload its application for refund but could not do so on account of technical glitches - it is difficult to accept that the petitioner’s legitimate right to seek refund could be foreclosed on account of such technical glitches.
There is no dispute that the petitioner had attempted to file an application for refund on the GST portal twice but its application could not be uploaded on account of technical glitches. It is not disputed that the petitioner had also made a complaint and a ticket for the same was also raised.
It cannot be accepted that the petitioner’s claim for refund is required to be denied on the ground of delay - the proper officer is directed to examine the petitioner’s claim for refund and process the same, if it is found that the petitioner is entitled to the same.
Petition allowed.
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2023 (12) TMI 1101
Seeking refund claim - petitioner submitted the requisite for complying with the directions of furnishing the solvent security and requested the respondent No. 1 to refund the amount with up-to-date interest - HELD THAT:- The order passed by the appellate authority while rejecting the prayer of the respondent on an application filed under Section 54 (11) of the Act, 2017 was very clear and specifically required the proper officer to process the application of refund as per the provisions of Act/Rules provided the petitioner furnishes the solvent security as per his satisfaction.
It appears that the respondent No. 1, who had passed the original order, which came to be set aside by the appellate authority and ordered for refund so made, has been trying to somehow block the refund to be made to the petitioner. Initially, he moved an application under Section 54 (11) of the Act, 2017 which came to be rejected by the authority and direction was given to the petitioner to provide solvent security. Once solvent security was produced by the petitioner, the respondent No. 1 again, apparently not willing to refund the amount, has demanded bank guarantee from the petitioner.
The solvent security is that of a person who is entitled to/recipient of the amount. Whereas, the ‘bank guarantee’ is a guarantee given by the bank on behalf of the applicant to cover the payment obligation to a third party. As such, it cannot be said that the demand of bank guarantee by respondent No. 1 could be equated with providing solvent security in terms of the order passed under Section 54 (11) of the Act, 2017.
The action of respondent No. 1 in seeking bank guarantee from the petitioner is ex facie contrary to the directions of respondent no. 2 and, therefore, the same cannot be sustained - Petition allowed.
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2023 (12) TMI 1100
Grant of Conditional bail - Direction to surrender passport before the Trial Court and direction to not to leave India, without prior permission of this Court - HELD THAT:- In this case, Nitesh Wadhwani is also one of the accused persons, who has been granted bail by this Court with the same condition and against which, he approached the Apex Court in NITESH WADHWANI VERSUS UNION OF INDIA [2023 (4) TMI 1275 - SC ORDER], the Apex Court has permitted him to leave the country, without requirement of reporting to the Court - Against Nitesh Wadhwani also Adjudication Proceedings are initiated. He is also facing ECIR along with this applicant.
Condition No.11 (v) imposed on the applicant by this Court vide order dated 13.08.2020 (Annexure A/1) passed in Miscellaneous Criminal Case No.26653 of 2020 is hereby relaxed - Application disposed off.
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2023 (12) TMI 1099
Payment of amount to the supplier through banking channel - HELD THAT:- As the respondents are represented through their counsel, notice need not to be issued - Let this petition be listed on 07th February, 2024.
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