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Showing 461 to 480 of 1466 Records
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2024 (6) TMI 1006
Determination of assessable value - non-inclusion of 4% /5% of VAT on the impugned goods - whether the element of VAT that was not paid on the catalyst received from HMIL, is includible by the appellant for arriving at the transaction value of the finished goods for payment of Central Excise Duty at the time of its clearance, from their premises? - Extended period of limitation - penalty.
HELD THAT:- The liability to pay tax for the intermediate goods (catalyst) supplied by HMIL to the appellant, is on HMIL. The demand of VAT if any which was short paid by HMIL has to be realized from them by the concerned authorities, irrespective of their not passing the liability to their customer. There is no provision to include notional duties which have not been paid on the value of intermediate goods cleared by the supplier, onto the transaction value of the buyer who uses the goods in the further manufacture and clearance of finished goods.
Secondly section 4(3)(d) of the Central Excise Act, 1944 at the relevant time clearly stated that ‘transaction value’ does not include the amount of duty of excise, sales tax, and other taxes, if any, actually paid or actually payable on such goods. The impugned order does not explain why the exclusion of taxes from transaction value as stated in section 4(3)(d) of the Central Excise Act, 1944, is not relevant to this case.
The Apex Courts judgment in COLLECTOR OF CENTRAL EXCISE, PUNE VERSUS DAI ICHI KARKARIA LTD. [1999 (8) TMI 920 - SUPREME COURT] would apply in the case of sales tax also as also with other statutory taxes. Hence the transaction value of the goods cleared by the appellant to HMIL need not need incorporate the notional sales tax element.
Extended period of limitation - penalty - HELD THAT:- It has not been shown that there was any role of the appellant in HMIL having not paid sales tax. Neither was any blame worthy act brought out indicating the intention of the appellant to evade duty. They hence cannot be held liable for any omission on the part of the seller. Thereby the question of invoking the extended time period, imposing penalty etc does not arise.
The impugned order is hence set aside - the appeal is decided in favour of the appellant and against the department.
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2024 (6) TMI 1005
100% EOU - Demand of duty - Allegation that the amount of furnace oil consumed in the generation of electricity as per the Input-Output Norms - non-compliance with the condition no. 7 laid of N/N. 22/2003-CE dated 31.03.2003 - HELD THAT:- Admittedly, the appellant was granted permission for generation of power with an annual capacity of 6.2 MW by the Development Commissioner of CSEZ; also granted permission to transfer excess power of 3.5 MW into DTA subject to the Input-Output Norms as recommended by the Central Electricity Authority.
In absence of any diversion of the furnace oil and solely on the ground of less generation of electricity from the quantity of furnace oil consumed, the demand cannot be sustained.
The impugned order is set aside - appeal is allowed.
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2024 (6) TMI 1004
Method of valuation - clearance of physician samples discharging duty on the value arrived adopting Rule 8 of the Central Excise Valuation (Determination of price of Excisable Goods) Rules, 2000 i.e. 110% of the cost of production - extended period of limitation - penalty.
Method of valuation - HELD THAT:- The issue has been considered by this Tribunal in WALLACE LABORATORIES P. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, BELGAUM [2024 (3) TMI 689 - CESTAT BANGALORE] where it was held that 'The physician samples cleared to their principal manufacturer are assessable under Rule 4 read with Rule 11 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. Also, the physician samples manufactured and cleared on job work basis for free distribution also be assessed on the value of retail sale price of similar goods and not under Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000, since the same were not cleared for captive consumption.'
Extended period of limitation - penalty - HELD THAT:- The demand for the normal period of limitation has to be recalculated in the light of the principle of law referred to in the said judgment. However, since the issue relates to determination of assessable value which rests on interpretation of law and the appellant had disclosed the assessable value at the time of clearance of goods from the factory and reflected in the ER1 returns periodically; therefore invocation of extended period of limitation is unwarranted and also imposition of penalty on the appellant is unjustified.
The matter is remanded to the adjudicating authority for redetermination of the duty and interest for the normal period following the principles of law laid down, after observing principles of natural justice - Appeal allowed by way of remand.
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2024 (6) TMI 1003
Distinct legal entities or related persons to the appellant in terms of Sec.4(3)(b)(i) and (iv) of the Central Excise Act, 1944? - price determined by the appellant on the basis of prevailing market price at the time of removal of the finished goods was the “Transaction Value” in terms of Section 4(3)(d), and the price is to be determined in terms of Sec.4(1) of the Centra Excise Act, 1944 or not - extended period of limitation.
Whether M/s. Meghalaya Cast & Alloys Pvt. Ltd., M/s. Shree Ganapati Rolling Mills Pvt. Ltd. and M/s. Pawan Casting (Meghalaya) Pvt. Ltd., private limited companies registered under the Companies Act, 1956, are distinct legal entities or related persons to the appellant in terms of Sec.4(3)(b)(i) and (iv) of the Central Excise Act, 1944? - HELD THAT:- The department failed to establish business interest of the appellant in their other Group companies. Thus, the contention of the appellant is agreed that the customers in this case cannot be considered as ‘related persons’ merely because they have a common director and the appellant company holds some percentage of shares as mentioned above in the Group companies. In view of the above discussion, it is observed that the department has not brought in any evidence to substantiate the allegation that the appellant company is related to the group companies to whom the appellant has sold the goods - question answered in negative.
Whether the price determined by the appellant on the basis of prevailing market price at the time of removal of the finished goods was the “Transaction Value” in terms of Sec. 4(3)(d), and the price is to be determined in terms of Sec.4(1) of the Centra Excise Act, 1944? - HELD THAT:- The transactions between the appellant and their customer were on principal-to-principal basis and the price charged by the appellant to the customer was the sole consideration for the sale. There was no evidence brought on record to establish that the appellant has collected any extra commercial considerations from the customers - the price charged by the appellant was on the basis of prevailing market price at the time and place of removal and the same price has been adopted by them for other independent buyers also. Accordingly, the price charges by the appellant to their group companies is the ‘Transaction Value’ and there is no evidence available on record to conclude that the price is an influenced price - question answered in negative.
Whether the entire issue is barred by limitation of time? - HELD THAT:- The period of dispute is for the period from April 2005 to January 2008, whereas the impugned Show Cause Notice has been issued on 22.04.2010 i.e., after a lapse of one year from the relevant date, by invoking extended period of limitation - there is no suppression of fact with an intention to evade payment of tax exists in this case. Accordingly, the demand cannot be raised by invoking extended period of limitation and hence the demand confirmed in the impugned order is barred by limitation - answer is in the negative.
The demand of duty along with interest and penalty confirmed in the impugned order is not sustainable on merits as well as on limitation - Appeal allowed.
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2024 (6) TMI 1002
Bar of unjust enrichment - onus to prove on appellant - no enquiry by Revenue with the customers to substantiate that customers have received the machine/equipments or not - HELD THAT:- The facts are not in dispute that the appellant had issued 559 invoices during the period January 2010 to March 2010 for clearance of machines and equipments thereof. Revenue has not made any enquiry with the customers to substantiate their case that against these invoices the customers have received the machine/equipments or not? No enquiry was made with the transporters to ascertain the truth. Moreover, the goods lying in their factory premises were seized by the Revenue for which respondent claims that these goods pertains to the seized invoices. Further, as invoices were seized by the appellants and has not been released to the respondent, therefore, the respondent was compelled to issue fresh invoices for clearance of the seized goods on payment of duty. In that circumstances, it is the duty of the appellant to ascertain whether on these 559 invoices which have been seized whether the said goods have been cleared from the factory of the respondent or not, which the appellant failed to do so.
As the Ld. Commissioner(Appeals) passed the order after verifying all the issues regarding the clearance of the goods in question and payment of duty thereof and considering the Affidavits filed by the customers as well as transporters’ gate passes etc., the respondent has paid duty twice for the same goods.
The Ld. Commissioner(Appeals) has rightly sanctioned the refund claim subject to verification of the issue of bar of unjust enrichment by the adjudicating authority - there are no infirmity in the impugned order - appeal of Revenue dismissed.
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2024 (6) TMI 1001
Liability of differential duty on account of finalisation of provisional assessment - liability of interest under Section 11AB of the Central Excise Act, 1944 - requirement to issue SCN when the differential duty has already been paid in terms of Rule 9B(5) - HELD THAT:- Admittedly, the differential Excise Duty payments arose under provisions of Rule 9B(5) of CEA, 1944 during the period under consideration. As can be observed from the extracts of Rule 9B(5), there are no provision for recovery of interest when the differential duty is paid.
In case of SERAI KELLA GLASS WORKS PVT. LTD. VERSUS COLLECTOR OF C. EXCISE, PATNA [1997 (4) TMI 74 - SUPREME COURT], which has been relied upon by the lower authority, in fact supports the case of the Appellant. It has been held therein that after final assessment, there is no need to give any further notice under Section 11A for recovery of differential duty amount. Precisely for this reason, the Commissioner (Appeals) has held that the OIO passed is not proper.
Necessity to issue SCN - HELD THAT:- There was no necessity to issue any Show Cause Notice under Section 11A as has been rightly held by the Commissioner (Appeals). It is also noted that no further Appeal has been filed by the Revenue against this OIA. Therefore, the issue has reached finality. In such a case, the Commissioner (Appeals) is in error in confirming the interest alone under Section 11AA/11AB when the provisions have come into effect from 11/5/2001 and the provisional Assessment was finalized in terms of Rule 9B(5) of CER, 1944.
It is on record that the final assessment has been done in terms of Rule 9B(5) of CEA, 1944. Further, the Department has not come out with any evidence that the belated finalization of assessment in 2008 was due to any delay from the appellant side - there are no merits in the impugned order and the same is set aside - appeal allowed.
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2024 (6) TMI 1000
Valuation of goods cleared on Stock Transfer Basis - cost profit adopted was lower than the actual cost issued - demand confirmed on the ground that the goods cleared to their sister unit does not match exactly with the goods cleared to the 3rd parties and accordingly confirmed the demands - revenue neutrality - Extended period of limitation.
HELD THAT:- During the period under consideration, the Tribunals/Courts were consistently holding that the value adopted would be as per the Rule 4 of the Valuation Rules, 2000. In these cases, it was held that if even a fraction of supply was made to third independent parties, the value adopted has to be as per Rule 4 only. Subsequently, amendment was carried out on 22nd November 2013 to overcome these decisions. After this, for the clearances made to the sister unit, the value has to be arrived as per Rule 8 of the Valuation Rules, 2000.
Revenue neutrality - HELD THAT:- Admittedly, the goods were cleared to their sister unit who were using the materials for further manufacturing process and paying the Excise Duty on the finished goods. Therefore, whatever Excise Duty was paid by the Appellant, the same would have been available to the sister unit as Cenvat Credit. In such a case, the Appellant would not be gaining any additional benefit by lowering the assessable value while clearing the goods to their sister unit.
Extended period of limitation - HELD THAT:- The Tribunals and Courts have held that even if a fraction of clearances are for third parties, Rule 4 would be applicable. Since it’s a matter of interpretation, the Appellant cannot be burdened with suppression clause to confirm the demand. Therefore, the confirmed demand for the extended period is required to be set aside on account of time bar also.
Appeal allowed even on account of limitation in respect of the confirmed demand for the extended period.
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2024 (6) TMI 999
Classification - rate of tax - powers sprayer - falls under Schedule-I of the Rajasthan Value Added Tax Act, 2003 and taxable @ of 4% under Schedule-IV of Rajasthan Value Added Tax Act, 2003 or not? - item “sprayers including their parts and accessories” under S. No. 29 of the ordinary agricultural implements of Schedule-I of the Rajasthan Value Added Tax Act, 2003 would also include the “powers sprayers and its parts and accessories” or not.
Whether in the facts and circumstances of the case, the learned tax board has erred in law in holding that the item “powers sprayer” does not falls under Schedule-I of the Rajasthan Value Added Tax Act, 2003 and is, therefore, taxable @ of 4% under Schedule-IV of the above Act? - HELD THAT:- A bare perusal of the Schedule-I of the Act of 2003 makes it amply clear that there is no specific word like “power sprayers” in Schedule-I. S. No. 1 of Schedule-IV specifically states that the same is taxable. Apparently, the goods power sprayer do not fall under Schedule-I of the Act of 2003 and, therefore, is taxable under Schedule-IV of the above Act.
Whether in the facts and circumstances of the case, the learned tax board has erred in law in not appreciating the fact that item “sprayers including their parts and accessories” under S. No. 29 of the ordinary agricultural implements of Schedule-I of the Rajasthan Value Added Tax Act, 2003 would also include the “powers sprayers and its parts and accessories”? - HELD THAT:- Schedule-V provides for the goods taxable which are not covered in any other schedule under the Act or under any notification issued under Section 4 of the Act. Apparently, the goods in question i.e. “power sprayers” is not specifically included in any Schedule and, therefore, the goods “power sprayers” is taxable as per Schedule-IV and the parts and accessories thereof are taxable under Schedule-V.
The learned Tax Board has not committed any illegality while passing the impugned orders and, therefore, the present revision petitions are dismissed accordingly.
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2024 (6) TMI 998
Violation of principles of natural justice - whether the Commercial Taxes Officer erred in affording reasonable opportunity of being heard to the petitioner-assessee and as such the initial order is vitiated in law and its affirmation by the Tax Board is also against the mandate of law? - HELD THAT:- In the case on hand, it was not verified from the businessmen named in the “Sauda Noon Register” as to whether actually any transaction of sale has taken place nor any other satisfactory report/ evidence was there to substantiate case of tax evasion. Evidently the order of Assessing Officer suffers from arbitrariness and non-compliance of mandates of law in the matter of just opportunity of hearing.
In KALRA GLUE FACTORY VERSUS SALES TAX TRIBUNAL AND OTHERS [1987 (3) TMI 110 - SUPREME COURT], Hon’ble Apex Court upset the conclusion of Assessing Authority which was based on statement of a witness, who was not cross-examined.
Coming to the facts of this case, it is evident that the Assessing Authority did not enquire about correctness of averments made in reply to the notice by the petitioner. In other words it was not verified that the entries in the Saudanoon Register were genuinely a sale transaction. A due enquiry might have given a different result and in absence of enquiry, correctness of the conclusion is not sustainable - The learned Tax Board has not considered this legal infirmity committed by the Assessing Authority while upsetting the reasoned order of the appellate court, therefore, the impugned order of Tax Board is fit to be set aside on this ground alone.
Whether the judgment and order of Tax Board is sustainable in law for non-consideration of the reasons of the Appellate Authority, whose order was under challenge before the Tax Board? - HELD THAT:- The Tax Board for the first time interpreted the abbreviation “WB” as without bills. This aspect was not touched by any of the Lower Authority including the Commercial Taxes Officer. The petitioner had interpreted the said abbreviation as delivery without bardan. The Tax Board has assumed without any precedent or supporting document or other reliable evidence that the abbreviation “WB” would be interpreted as without bill only and no other interpretation is acceptable - The initial order imposing tax, penalty etc., dated 23.03.1999 reveals that the Commercial Taxes Officer had asked the petitioner to deposit Rs. 5 Lacs for compounding. Later on the compounding failed. The Tax Board assumed that since the petitioner had deposited Rs. 5 Lacs, the petitioner admitted evasion of tax.
It is evident that the impugned order and judgment of the Tax Board is bad in law, hence the same is set aside and the order of the Appellate Authority is affirmed - Revision allowed.
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2024 (6) TMI 997
Power to grant exemption in respect of categories other than “registered dealers” under Section 8 (5) (b) of the CST Act - Scope of the expression “ to such person or class of persons as may be specified in the notification” as used in Section 8 (5) (b) of the CST Act - limited to “registered dealers” or not - HELD THAT:- Sections 8 (5)(a) and 8 (5) (b) empowered the State Government to grant total or partial exemption not only in respect of sales of any goods or class of goods to a registered dealer/government, but also empowered to grant total or partial exemption in respect of inter State sales to unregistered dealers of any person or class of persons specified in the notification. - Section 8 (5) (b) remains untouched even after the amendment of 2007, therefore, empowers the State Government to grant exemption in respect of categories other than registered dealers.
This view duly supported by judgment in Prism Cement Limited vs. State of Maharashtra, [2013 (7) TMI 668 - BOMBAY HIGH COURT], wherein it was held as under: "the argument of the Revenue that reference to the words 'sub-section (2)' and the words 'any person or class of persons' in Section 8 (5) as amended by Finance Act 2002 are redundant or surplus cannot be sustained. In this view of the matter, we do not consider it necessary to deal with the decisions relied upon by the counsel for the Revenue in support of their contention that the redundant or surplus words in a statute must be ignored."
To the similar effect is the judgment rendered in Diebold Systems (P) Limited vs. Additional Commercial Tax Officer (Iac), Puducherry, [2010 (2) TMI 1103 - MADRAS HIGH COURT], wherein question No. 3 was framed whether under Section 8 (5) (b) of Central Sales Tax Act, 1956 Act, Government still had power to issue notification without requirement of form C in respect of sales "to any persons or class of persons, who were non-dealers”
Unjust Enrichment - HELD THAT:- The respondent(s/assessee(s) cannot automatically be held entitled to refund of the said amount unless the assessee(s) establishes that it has not passed on the tax liability to the consumers as any person carrying on the activity of manufacture of goods utilizing some raw material which had already suffered some tax would normally include both the tax component and the cost of such raw material into the cost of the final product and pass on the same to the consumer of the manufactured product.
Hon’ble Supreme Court in DECCAN CEMENTS LTD. VERSUS ASST. DIRECTOR OF MINES AND GEOLOGY [2014 (8) TMI 1247 - SUPREME COURT] held that 'Though it appears from the said judgment, their Lordships relied upon the language of Section 27 of the Customs Act in support of their conclusion. In our opinion, the existence or otherwise of such a provision makes no difference for the correctness of the above stated principle of law Any person carrying on the activity of manufacture of goods utilising some raw material which had already suffered some tax would normally include both the tax component and the cost of such raw material into the cost of the final product and pass on the same to the consumer of the manufactured product.'
There are no reason to interfere with the impugned judgment under revision. Consequently, the revision petitions are dismissed.
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2024 (6) TMI 996
Rejection of petitioner’s stay application during pendency of the petitioner’s appeal before the Andhra Pradesh Value Added Tax Appellate Tribunal at Visakhapatnam - seeking grant of stay for the tax period from April, 2015 to June, 2017, during pendency of the appeal before the Tribunal - HELD THAT:- Once the statutory appeal is pending before the Appellate authority for adjudication, ordinarily the recovery of the balance amount deserves stay unless for special reasons, to be recorded in the order, recovery of the balance amount deserves not to be stayed or the balance amount has to be recovered even during pendency of the appeal, which is a statutory and valuable right. The stay may be the subject to imposing some conditions, which is also contemplated by Section 33 (b) of APVAT Act, 2005.
The impugned order does not record any cogent reasons to reject the stay petition. So far as the production of evidence in support of the petition, is concerned, as mentioned in the impugned order to dispute the revisional order, the appeal being pending, such matter has to be seen by the Appellate authority, on merits while deciding the appeal.
The order of rejection of the stay was passed with the conditions. In that case, in addition to the statutory deposit of 25%, the petitioner therein had deposited in total 50% inclusive of 25% of the statutory deposit under the orders of the Court passed in Writ Petition No. 10 of 2023 and considering that total 50% deposit, the stay was granted during pendency of the appeal before the Appellate Tribunal - the respondent No. 1 is not justified in rejecting the petitioner’s stay application. The impugned order, therefore, is set-aside.
Subject to the petitioner depositing 25% more of the disputed tax i.e., total 50% inclusive of the statutory deposit in filing appeal before the Appellate Tribunal, within a period of six (06) weeks, before the assessing authority/ respondent No. 3, the recovery proceedings for the balance of the amount i.e., in respect of 50%, shall remain stayed during the pendency of appeal before the Appellate Tribunal - Petition allowed in part.
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2024 (6) TMI 995
Dishonour of Cheque - acquittal of accused - rebuttal of presumption under Sections 118 and 139 of the Negotiable Instruments Act - HELD THAT:- The accused had not denied her signature on the cheque (Ex.P1). Once the signature is admitted there is a presumption under Sections 118 and 139 of the Negotiable Instruments Act unless the contrary is proved. The trial court judge had infact analysed this aspect and had convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act.
It is seen from the records that the complainant examined himself as P.W.1 on 16.02.2015 and the accused cross examined P.W.1 only on 07.10.2015. In the meantime, the accused was also questioned under Section 313 Cr.P.C. Therefore, the complainant, in the absence of a specific averment in the reply notice with regard to his financial capacity cannot be expected to prove his means at the fag end of the trial.
The trial court Judge had analysed all the documents threadbare and had come to the conclusion that the accused is guilty of the offence punishable under Section 138 of NI Act. On the other hand the appellate court judge, even without a specific plea by the accused that the complainant did not have sufficient means to lend a sum of Rs.4,00,000/- to her, had rendered a finding that the complainant was not possessed of sufficient means. The other aspects of the case have not at all been properly analysed by the appellate court Judge and therefore the judgment and orders passed by the appellate court is liable to be set aside.
The judgment and orders passed by the appellate court judge is set aside and the judgment and orders passed by the trial court judge is restored. The conviction and sentence passed by the trial court judge against the accused is hereby confirmed.
Appeal allowed.
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2024 (6) TMI 994
Dishonour of cheque - insufficient funds - unambiguous notice - procedure under Sections 251 and 252 of the Cr. P.C. not followed - petitioner pleaded guilty and claimed no trial in the same - HELD THAT:- In Shri Mahant Kaushalya Das [1965 (5) TMI 52 - SUPREME COURT], the Supreme Court was confronted with the position where the admission of the accused therein had not been recorded by the Magistrate “as nearly as possible in the words used by him” as required by Section 243 of the Cr.P.C., 1898, which provision is pari materia to Section 252 of the Cr.P.C.
In JUPUDI ANAND GUPTA VERSUS STATE OF ANDHRA PRADESH AND ORS. [2017 (10) TMI 1654 - SUPREME COURT], the Court was again confronted with the position where only the contents of the Charge-sheet had been read over to the accused and it was stated that he had pleaded guilty. It was on those facts that the Court held that the conviction of the accused only on the basis of him pleading guilty cannot be sustained - In RASEEN BABU K.M. VERSUS THE STATE OF KERALA [2021 (6) TMI 1173 - KERALA HIGH COURT], the Kerala High Court held that the record of the plea of guilt should be recorded in words of the accused.
In the present case, not only the Notice that was put to the petitioner was unambiguous, but also his plea was clearly recorded in the words of the petitioner himself.
There are no merit in the present petition. The same is accordingly dismissed.
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2024 (6) TMI 993
Authorization for filing an appeal on behalf of Company - Principal Officer - appeal dismissed on the ground that authorised signatory who filed the appeal, had not produced the Board Resolution copy and authorisation letter before him to file the appeal - HELD THAT:- Appellant being a private limited company, who must have obtained registration from the Registrar of Companies by providing the name and designation of person who can sue or be sued for or on behalf of the Company, need not necessarily require a Board Resolution to represent the company every time the Company as a “legal person” and, therefore, the observation of the Commissioner (Appeals) with reference to Rule, 3(2)(C) of the Central Excise Appeals Rules, 2001 that prescribes for verification to be made by “Principal Officer” filing the appeal can’t be said to have made it obligatory for the “Principal Officer” to submit Board Resolution alongwith his/her signature. Be that as it may, as could be revealed from appeal memo, learned Commissioner (Appeals) had never sought copy of such Board Resolution though, it had specifically asked the Appellant to submit notarised affidavit of the synopsis of appeal and notarised letter of authority, which Appellant stated to have filed as per attachment no. 6 & 7 respectively.
This being the facts on record and having regard to the fact that Section 35(A)(4) dictates that the order of the Commissioner disposing of the appeal shall state the points for determination, the decision their on and the reason for such decision and the same provision being equally applicable to service tax matters would also be applied to this case, it is a fit case to allow the early hearing application and taking consent of both the sides it is considered it proper to remand the matter back to the commissioner to decide the appeal on merit as per provision contained in Section 35(A)(4) of Central Excise Act, applicable to the service tax matters, in view of Sub- Section 5 of section 85 of the Finance Act, 1994.
Appeal allowed by way of remand.
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2024 (6) TMI 992
Availment of Cenvat Credit for clearance of rejected Capital Goods along with their manufactured product - Rule 8 and Rule 8(3A) of the Cenvat Credit Rules, 2002 - matter lis pendens - HELD THAT:- The learned Tribunal has also allowed the assessee’s appeal following the decision by which the portion of Rule 8(3A) of the Central Excise Rules, 1944 was struck down by the High Court of Gujarat in the case of INDSUR GLOBAL LTD. VERSUS UNION OF INDIA & 2 [2014 (12) TMI 585 - GUJARAT HIGH COURT]. The revenue had filed the said judgment before the Hon’ble Supreme Court in Special Leave to Appeal No. 16523 of 2015 and by order dated 24.9.2015 the Hon’ble Supreme Court has stayed the judgment of the High Court of Gujarat in the case of UNION OF INDIA VERSUS INDSUR GLOBAL LTD. [2014 (11) TMI 1101 - SC ORDER].
The matter is now pending before the Hon’ble Supreme Court. Therefore, the best course open would be for the Tribunal to wait for the decision of the Hon’ble Supreme Court and then take a decision in the matter.
The order passed by the learned Tribunal is set aside and the appeal is restored to the file of the learned Tribunal and the matter shall be kept pending and taken up for consideration and decided after the judgment of the Hon’ble Supreme Court - appeal allowed.
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2024 (6) TMI 991
Classification of goods - rate of tax - Classic Malabar Parota - Whole Wheat Malabar Parota - classifiable under Chapter Heading 1905 or same are to be covered under Chapter Heading 2106 - it was held by High Court that 'If the petitioner products are akin / similar to the products mentioned in HSN code 1905 of Chapter 19 with heading Preparations of cereals, flour, starch or milk; pastrycooks’ products as the ingredients used and process applied in their preparations are somewhat similar to the products mentioned in Chapter heading HSN Code 1905, excluding the petitioner’s products from Entry 99A of the Rate Notifications which are almost similar to the three products mentioned in the said Entry, cannot be justified'.
HELD THAT:- Issue notice to the first respondent by speed post - There shall be a stay of operation of the impugned judgment for a period of two months.
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2024 (6) TMI 990
Cancellation of Goods and Services Tax Identification Number (GSTIN) / GST registration of the petitioner-Firm.
Respondents submits that any kind of revenue loss to the GST due to the delays on the part of the petitioner would be unacceptable, but at the same time, if the complete due payments are made, the respondents shall be open to restoring his GSTIN, particularly when the crisis like that of cancer has been reported to be the reason of non-payment.
HELD THAT:- This Court feels that in the given factual matrix, it would be appropriate to restore the GSTIN of the petitioner-firm, if they clear all necessary dues under the GST Law with the respondents.
The impugned orders dated 09.11.2022 & 06.01.2023 are quashed and set aside - the respondents are directed to restore the GSTIN of the petitioner-firm after all the necessary dues, under the GST Law, which are applicable upon the present petitioner-firm, are duly paid.
Petition allowed.
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2024 (6) TMI 989
Excess tax demand compared to SCN - amount mentioned in the show cause notice issued in Form GST DRC-01 is much less - Sub-Section (7) of Section 75 of Uttarakhand Goods and Services Act, 2017 - HELD THAT:- The State concedes that the impugned order is not as per the provision contained in Sub-Section (7) of Section 75 of the Uttarakhand Goods and Services Tax Act, 2017, as the demand raised by the impugned order is much more than the amount indicated in the show cause notice.
Impugned order date 06.11.2023 is quashed - Petition allowed.
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2024 (6) TMI 988
Challenge to assessment order - disallowance of input tax credit - HELD THAT:- A reminder notice was issued on 12.09.2022. However no reply was filed to the reminder notice as well. The 2nd reminder notice was issued to the petitioner in accordance with State Circular No. 07/2023 dated 12.01.2023. However, no reply was given to the 2nd reminder notice as well. The petitioner was also given an opportunity to submit his reply/objections/proof at the time of personal hearing which was scheduled on 20.06.2023. The authorised person of the petitioner appeared for personal hearing on 20.06.2023 and submitted a request asking more time for filing detailed reply and producing evidence in proof of their claims. Thereafter, no detailed reply was filed and no document was produced. Further notices were issued to the petitioner on 29.07.2023 and 210.10.2023, however, no reply was filed by the petitioner herein.
There had been ample opportunities given to the petitioner to prove his claim by submitting documentary evidence regarding their claim for ITC claimed in their return. The petitioner had never come forward to submit any reply as it is evident from the assessment order itself, and now the petitioner is making a prayer for the matter to be remanded back.
There are no substance in this writ petition, which is hereby dismissed.
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2024 (6) TMI 987
Treatment of Exchange Rate Losses - distinction between exchange rate losses on capital account and revenue account - Tribunal justification in law by not considering the exchange rate losses as incidental to the nature of business of the assessee - whether loss arising on the assignment of a loan granted by a foreign parent company to its Indian subsidiary is a capital loss within the meaning of section 2 [14] or incidental to the nature of business of the assessee? - HELD THAT:- We find that the learned Tribunal rightly affirmed the order passed by the Commissioner of Income Tax (Appeals) which followed the decision in the case of V.S. Dempo & Co. (P.) Ltd. [1993 (7) TMI 63 - BOMBAY HIGH COURT]
As not in dispute that the assessee is an NBFC and suffered loss on account of foreign exchange fluctuation on receipt of repayment of loan to a foreign company. The revenue sought to place the decision in the case of Bestobell [India] [1978 (9) TMI 42 - CALCUTTA HIGH COURT] as rightly pointed out by assessee that in the said case it was not contended that it had incurred extra expenditure in order to secure the loan and it is at the point of repayment that the assessee had to provide extra amount of rupees by reason of devaluation on the relevant date. Furthermore, it was not the case of a financial company.
The revenue also placed reliance on the decision in the case of M/s. Siemens Nixdorf Information Systemse GmbH [2023 (5) TMI 501 - SC ORDER] In the said decision the Hon’ble Supreme Court affirmed the interpretation given by the learned Tribunal as well as the High Court as it related to one particular transaction. Therefore, the Court did not go into the other aspects of the mater.Therefore, both the decisions relied on by the revenue will not be of any assistance to their case. Issue decided against revenue.
Allowing the insurance and audit fees expenses on the ground that the agreement between assessee and Ballarpur Industries did not cover the said expenses - HELD THAT:- We have gone through the factual findings recorded both by the CIT (A) as well as by the Tribunal and we find that the factual position has not been shown to be wrong. Therefore, we find that no substantial question of law arises as suggested by the revenue.
Disallowance u/s 14A - HELD THAT:- Tribunal took note of the decision of the High Court of Delhi in PCIT Vs. Era Infrastructure Ltd. [2022 (7) TMI 1093 - DELHI HIGH COURT] which had taken note of the decision in the case of Cheminvest Ltd. [2015 (9) TMI 238 - DELHI HIGH COURT] wherein it was held that amendment by the Finance Act, 2022 of Section 14A of the Act by inserting a non-obstante clause and explanation we take effect from 01.04.22 and cannot be presumed to have retrospective effect and, therefore, on facts the amendment cannot be applied to the assessment year under consideration. We find no error in such conclusion arrived at by the learned Tribunal.
No upward adjustment u/s 115JB [2] [c] for liabilities shown in ‘Provision for doubtful loans & advances’- HELD THAT:- The submissions by the revenue before the learned Tribunal was that the order passed by the first Appellate Authority should be set aside. Tribunal in the above paragraph has noted that the department could not show any factual matrix which may lead the Tribunal to take a view that impugned amount was not certain and was merely a provision. Thus, we find the matter being factual and substantial questions of law arise for consideration as suggested by the revenue in question.
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