TMI Tax Updates - e-Newsletter
December 16, 2017

Case Laws in this Newsletter:

Income Tax Customs Service Tax Central Excise CST, VAT & Sales Tax

Highlights / Catch Notes

• Income Tax:

  Disallowance of bogus purchase - Since, sales have not been doubted; entire disallowance of purchase is not sustainable - 6% disallowance of bogus purchase sustained by the Commissioner of Income Tax (Appeals) is appropriate - AT
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• Income Tax:

  Grant interest on interest u/s 244A - inordinate delay in granting the refund to the assessee - the assessee could not be granted any interest whatsoever of any nature which was not authorized by the express provisions of law - AT
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• Customs:

  Extra Duty Deposit (EDD) - The imposition of such duty of EDD equivalent to 5% on all the Bill of Entry filed by the petitioner would be beyond the scope of the order passed by the first respondent, as the petitioner succeeded before the LAA - HC
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• Service Tax:

  Levy of penalty - appellant have on discovering the defalcation by its employee, deposited the tax forthwith with interest - the penalty u/s 78(1) is not tenable. - AT
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• Service Tax:

  The term clearing and forwarding would cover only those activities which pertain to clearing of the goods and forwarding thereof to a destination, under the directions of the principal. Beyond this, no other activities shall be taxable under the above said taxing entry. - AT
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• Service Tax:

  Refund claim - denial on the ground that the FIRCs contains an address different from that of claimant STPI and also the FIRCs records the remittances received as advance and therefore, the receipt of remittances cannot be correlated - Declaration made by the exporter cannot be brushed aside - AT
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• Central Excise:

  Activation of adjudicating proceedings after a long gap over a decade - SCN was kept in abeyance - The revival of the proceedings is in complete breach of the principles of natural justice and hence, the impugned show cause notice and the order-in-original passed pursuant thereto, cannot be sustained. - HC
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• Central Excise:

  Classification of goods - FRP Composite Doors and Frames - the essential character is given by the wood and hence, in terms of Rule 3(b) of the Rules for Interpretation, the goods will need to be considered as if they are made entirely of wood. - AT
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• Central Excise:

  Excisability/marketibility - radioactive isotope - isotope does not have any shelf-life and the moment it comes into existence, its start decaying and reduces to half of its weight within the time which is called ‘half-life period’ - not chargeable to duty of Central Excise since it does not have any shelf-life. - AT
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Articles

• GST UPDATE ON PROOF OF EXPORT
• Input Tax Credit on Retention Money
• OPERATION OF ANTI PROFITEERING CLAUSE IN GST

Notifications

• Customs

• 92/2017 - dated 14-12-2017 - Cus
  Seeks to further amend notification No. 50/2017-Customs so as to prescribe effective rate of BCD on various goods.

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• 91/2017 - dated 14-12-2017 - Cus
  Seeks to increase import tariff rate on specified electronic goods under First Schedule to the Customs Tariff Act by invoking section 8A (1) of the Customs Tariff Act.

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• 116/2017 - dated 15-12-2017 - Cus (NT)
  Tariff Notification in respect of Fixation of Tariff Value of Edible Oils, Brass Scrap, Poppy Seeds, Areca Nut, Gold and Sliver- Reg.

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• GST - States

• NO.F.1-11(91)-TAX/GST/2017(Part-VII)-38/2017 - State Tax (Rate) - dated 2-11-2017 - Tripura SGST
  Notification No.38/2017- State Tax (Rate), dated 02/11/2017

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• NO.F.1-11(91)-TAX/GST/2017(Part-VII) - dated 2-11-2017 - Tripura SGST
  Notification on Return Provision for the Taxpayers having Turnover upto ₹ 1.5 Crore and who has not opt for Composition levy

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• NO.F.1-11(91)-TAX/GST/2017(Part-VII) - dated 2-11-2017 - Tripura SGST
  Notification on the TSGST (Ninth Amendment) Rules, 2017

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• NO.F.1-11(91)-TAX/GST/2017(Part-VI) - dated 2-11-2017 - Tripura SGST
  Notification on The TSGST (Eighth Amendment) Rules, 2017

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• NO.F.1-11(91)-TAX/GST/2017(Part-IIIA)-37/2017 — State Tax (Rate) - dated 2-11-2017 - Tripura SGST
  Notification No.37/2017-State Tax (Rate), dated 02/11/2017

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• NO.F.1-11(91)-TAX/GST/2017(Part-IIIA)-36/2017 - State Tax (Rate) - dated 2-11-2017 - Tripura SGST
  Notification No.36/2017-State Tax (Rate), dated 02/11/2017

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• NO.F.1-11(91)-TAX/GST/2017(Part-IIIA)-35/2017-State Tax (Rate) - dated 2-11-2017 - Tripura SGST
  Notification No.35/2017-State Tax (Rate), dated 02/11/2017

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• NO.F.1-11(91)-TAX/GST/2017(Part-IIIA)-34/2017 - State Tax (Rate) - dated 2-11-2017 - Tripura SGST
  Notification No.34/2017-State Tax (Rate), dated 02/11/2017

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• NO.F.1-11(91)-TAX/GST/2017(Part-IIIA) - dated 2-11-2017 - Tripura SGST
  Notification on amendments in the notification of the Government of Tripura in the Finance Department (Taxes & Excise), dated the 29th June, 2017

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• NO.F.1-11(91)-TAX/GST/2017 (Part-VII) - dated 2-11-2017 - Tripura SGST
  Notification on amendments in the notification of the Government of Tripura in the Finance Department (Taxes & Excise) dated the 22nd September, 2017

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• 2159–F.T. - dated 1-12-2017 - West Bengal SGST
  Corrigendum - Notification No. 1277-F.T. dated 14th day of July, 2017

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• 23–C.T./GST- 63/2017 - State Tax - dated 15-11-2017 - West Bengal SGST
  Seeks to extend the due date for submission of details in FORM GST-ITC-04 till 31.12.2017

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• 22–C.T./GST- 62/2017 – State Tax - dated 15-11-2017 - West Bengal SGST
  Seeks to extend the time limit for furnishing the return by an Input Service Distributor in FORM GSTR-6 for the month of July, 2017 till 31.12.2017.

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• 21–C.T./GST- 60/2017 - State Tax - dated 15-11-2017 - West Bengal SGST
  Seeks to extend the time limit for furnishing the return by a non-resident taxable person, in FORM GSTR-5, for the months of July to October, 2017 till 11.12.2017

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• 2035-F.T.- 66/2017-State Tax - dated 15-11-2017 - West Bengal SGST
  Seeks to exempt all taxpayers from payment of tax on advances received in case of supply of goods

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• 2034-F.T.- 65/2017-State Tax - dated 15-11-2017 - West Bengal SGST
  Seeks to exempt suppliers of services through an e-commerce platform liable to collect tax at source under section 52 of the CGST Act from obtaining compulsory registration under section 24(ix) of the Act provided their aggregate all India turnover does not exceed 20 lakh rupees

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• 2033-F.T. - 64/2017-State Tax - dated 15-11-2017 - West Bengal SGST
  Seeks to limit the maximum late fee payable for delayed filing of return in FORM GSTR-3B from October, 2017 onwards to 25 rupees per day. (In case of nil return filers, late fee is to be 10 rupees per day.)

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• 2032-F.T.- 57/2017-State Tax - dated 15-11-2017 - West Bengal SGST
  Seeks to prescribe quarterly furnishing of FORM GSTR-1 for those taxpayers with aggregate turnover upto ₹ 1.5 crore

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• 2031-F.T.- 55/2017-State Tax - dated 15-11-2017 - West Bengal SGST
  West Bengal Goods and Services Tax (Twelfth Amendment) Rules, 2017

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• 20–C.T./GST- 59/2017 - State Tax - dated 15-11-2017 - West Bengal SGST
  Seeks to extend the time limit for filing of FORM GSTR-4 till 24.12.2017.

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• 19–C.T./GST- 58/2017 - State Tax - dated 15-11-2017 - West Bengal SGST
  Seeks to extend the due dates for the furnishing of FORM GSTR-1 for those taxpayers with aggregate turnover of more than ₹ 1.5 crores

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• 18–C.T./GST- 56/2017 - State Tax - dated 15-11-2017 - West Bengal SGST
  Seeks to mandate the furnishing of return in FORM GSTR-3B till March, 2018 by the 20th of the succeeding month

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• 2025-F.T. - 47/2017-State Tax (Rate) - dated 14-11-2017 - West Bengal SGST
  Seeks to amend notification No. 1136-F.T dated 28.06.2017 [Exempt Services]

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• 2024-F.T.- 46/2017-State Tax (Rate) - dated 14-11-2017 - West Bengal SGST
  Seeks to amend notification No. 1135-F.T.. dated 28.06.2017 [Rate on Services]

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• 2023-F.T. - 45/2017-State Tax (Rate) - dated 14-11-2017 - West Bengal SGST
  Seeks to prescribe 2.5% concessional WBGST rates on certain goods supplies to specific public funded research institute and subject to specified condition

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• 2022-F.T. - 44/2017-State Tax (Rate) - dated 14-11-2017 - West Bengal SGST
  Seeks to amend notification no 1129-F.T. dated 28.06.2017 so as to block refund of ITC on certain goods

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• 2021-F.T.- 43/2017-State Tax (Rate) - dated 14-11-2017 - West Bengal SGST
  Seeks to amend notification No 1128-F.T. dated 28.06.2017 so as to include cotton under revere charge under section 9(3) of WBGST Act, 2017

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• 2020-F.T.- 42/2017-State Tax (Rate) - dated 14-11-2017 - West Bengal SGST
  Seeks to amend notification No 1126-F.T.dated 28.06.2017, which exempts certain goods from GST under section 11 of the WBGST Act, 2017

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• 2019-F.T.- 41/2017-State Tax (Rate) - dated 14-11-2017 - West Bengal SGST
  Seeks to amend notification No 1125-F.T. dated 28.06.2017, which prescribes GST rates under section 9 of the WBGST Act, 2017

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• 17–C.T./GST- 54/2017 – State Tax - dated 31-10-2017 - West Bengal SGST
  Seeks to further extend the due dates for filing FORM GSTR-2 and FORM GSTR-3 for the month of July, 2017 till 30th day of November, 2017 and 11th day of December, 2017 respectively

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• 16–C.T./GST- 53/2017 – State Tax - dated 31-10-2017 - West Bengal SGST
  Seeks to extend the due date for submission of details in FORM GST-ITC-04 till the 30th day of November, 2017

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• 15–C.T./GST- 52/2017 - State Tax - dated 31-10-2017 - West Bengal SGST
  Seeks to extend the due date for submission of details in FORM GST-ITC-01 till the 30th day of November, 2017

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• 1908-F.T.- 51/2017-State Tax - dated 30-10-2017 - West Bengal SGST
  WBGST Rules (Eleventh) Amendment

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• 1888-F.T. - 50/2017-State Tax - dated 24-10-2017 - West Bengal SGST
  Seeks to waive late fee payable for delayed filing of FORM GSTR-3B for August, 2017 & September, 2017

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• 1874-F.T.- 40/2017-State Tax (Rate) - dated 23-10-2017 - West Bengal SGST
  Seeks to prescribe state Tax rate of 0.05% on intra-State supply of taxable goods by a registered supplier to a registered recipient for export subject to specified conditions

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• 1852-F.T.- 47/2017-State Tax - dated 18-10-2017 - West Bengal SGST
  West Bengal Goods and Services Tax (Tenth Amendment) Rules, 2017

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• 1763-F.T. - dated 10-10-2017 - West Bengal SGST
  West Bengal Goods and Services Tax (Eighth Amendment) Rules, 2017

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• 1762-F.T.- 30/2017-State Tax (Rate) - dated 10-10-2017 - West Bengal SGST
  Exempting supply of services associated with transit cargo to Nepal and Bhutan

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• 1682- F.T. - dated 20-9-2017 - West Bengal SGST
  Extension of date of disposal of applications by the W.B. A. & R. Board

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Circulars / Instructions / Orders

• GST - States - NO.F.1-11(91)-TAX/GST/2017 (Part-IIIA) - dated 2-11-2017
  Order regarding the Tripura State Goods And Services Tax, 2017 (Removal of Difficulties)

News

• Cabinet approves second financial restructuring of Konkan Railway Corporation Ltd.

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• Cabinet approves special package for employment generation in leather and footwear sector

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• Cabinet approves capital investment subsidy to industrial units located in North Eastern Region (including Sikkim)

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• Change in Tariff Value of Crude Palm Oil, RBD Palm Oil, Others – Palm Oil, Crude Palmolein, RBD Palmolein, Others – Palmolein, Crude Soyabean Oil, Brass Scrap (All Grades), Poppy Seeds, Areca Nuts, Gold and Silver Notified

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• PM's statement to media outside Parliament House at the start of the Winter Session of Parliament

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• Global spillovers: Managing capital flows and forex reserves

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• RBI Reference Rate for US $

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Case Laws:

• Income Tax

• 2017 (12) TMI 751

  Addition on account of discrepancies in brokerage income - discrepancy in the income shown by the assessee and income reflected in Form no.26AS uploaded by the insurance company - Held that:- The assessee has filed the revised Form no.26AS, issued by the Insurance Company, as per which the total brokerage income received by the assessee is ₹ 44,00,963, which is claimed to be lesser than the brokerage income offered by the assessee from the said Insurance Company. Since, the aforesaid revised Form no.26AS was obtained after disposal of appeal by the learned Commissioner (Appeals), the assessee had no opportunity to produce it before the Departmental Authorities. In view of the aforesaid, we restore the issue to the file of the Assessing Officer with a direction to verify assessee’s claim by taking note of the revised Form no.26AS issued by the insurance company and decide the issue after due opportunity of being heard to the assessee. This ground is partly allowed for statistical purposes.

  Disallowance of director’s remuneration paid - addition u/s 40A - Held that:- The assessee has submitted before us that such payment of salary is due to contractual obligation, however, no such documentary evidence has been brought on record to prove such facts and also to indicate the exact nature of work being done by the concerned director and the effect of such work on the business of the assessee to justify such increase in salary. The assessee has to prove that the salary paid to the concerned director is commensurate with his work and not unreasonable as per section 40A(2)(b) of the Act. To afford one more opportunity to the assessee to prove the aforesaid fact by bringing cogent material on record, we set aside the impugned order of the learned Commissioner (Appeals) on this issue and restore the matter back to the file of the Assessing Officer for denovo adjudication after due opportunity of being heard to the assessee. This ground is allowed for statistical purposes.

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• 2017 (12) TMI 750

  Recourse to the provisions of Section 158A - provisions for avoiding repetitive appeals - amortization of depreciation in value of investments disallowed - Held that:- Upon perusal, we concur with the submissions that identical matter is sub-judice before Hon’ble Bombay High Court. Hence, the provisions of Section 158A titled as ‘procedure when assessee claims identical question of law is pending before High Court or Supreme Court’ squarely apply to the facts of the case. The Ld. AR, vide letter dated 10/11/2017 has placed on record application in Form No. 8 read with Rule 16 of Income Tax Rules pursuant to Section 158A. Hence, without delving much deeper into the matter, we restore the matter to the file of Ld. AO for completion of all formalities as envisaged by Section 158A. Needless to say that the matter on merits shall be kept in abeyance till the outcome of the decision of Hon’ble Court in the cited appeals. Resultantly, the assessee’s appeals stands allowed for statistical purposes.

  Grant interest on interest u/s 244A - inordinate delay in granting the refund to the assessee - Held that:- here is no provision in the Income Tax Act to grant interest on interest, whatsoever of any nature and whatsoever are the circumstances. We, as a quasi-judicial authority, could not go beyond realm of the provisions of law and are bound by the statutory provisions. Therefore, on factual matrix, we find ourselves in agreement with the subsequent judgment of larger bench of Hon’ble Apex Court rendered in CIT vs Gujarat Fluoro Chemical(2013 (10) TMI 117 - SUPREME COURT). Therefore, respectfully following the same and in view of the statutory provisions as contained in Section 244A, we are of the considered opinion that the assessee could not be granted any interest whatsoever of any nature which was not authorized by the express provisions of law. Resultantly, the assessee’s appeal stands dismissed.

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• 2017 (12) TMI 749

  Disallowance under section 40(a)(ia) - proof of recipient as offered the finance charges as income - assessee in default - Held that:- Commissioner of Income-tax in the impugned revisional order has recorded a finding of fact that neither the certificate from Chartered Accountant nor any other documentary evidence indicating the fact that the recipient of finance charges has offered it as income has not been produced by the assessee either before the Assessing Officer or before him.

  In view of the aforesaid factual position, while, we hold that the assessee cannot be treated as assessee in default in terms of second proviso to section 40(a)(ia) of the Act in case the recipient has offered the payment received as income, however, the onus is on the assessee to demonstrate with supporting documentary evidence as required under the first proviso to section 201(1) of the Act that the recipient has offered the finance charges as income in the relevant assessment year. Therefore, we direct the Assessing Officer to verify this aspect and in case it is found that the recipient has offered the finance charges of ₹ 7,91,49,028 as income in the return of income filed for the impugned assessment year no disallowance under section 40(a)(ia) of the Act is required to be made. The impugned order is modified to this extent only.

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• 2017 (12) TMI 748

  Penalty u/s 271(1)(c) - disallowance of expenses - Held that:- As the assessee had furnished all the details of its expenditure as well as income in its return, which details, in themselves, were not found to be inaccurate nor could be viewed as the concealment of income on its part. It was up to the authorities to accept its claim in the return or not. Merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the revenue, that by itself would not, in our opinion, attract the penalty u/s 271(1)(c). If we accept the contention of Revenue then in case of every return where the claim made is not accepted by AO for any reason, the assessee will invite penalty u/s 271(1)(c). See CIT versus Reliance Petro Products Private Limited [2010 (3) TMI 80 - SUPREME COURT ] - Decided in favour of assessee.

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• 2017 (12) TMI 747

  Reopening of assessment - addition of bogus purchases - Held that:- AO reached at a fair conclusion that assessee has obtained accommodation entries from these two parties and then notice u/s 148 of the Act was issued. It shows that Assessing Officer has applied his mind to the information received from third party (in the case from the CIT, Central-2, New Delhi). Hence, no fault can be found in the reopening proceedings initiated by the ld AO.

  Assessee has already recorded the sales of the goods allegedly purchased from these bogus parties. Further, the ld CIT(A) has categorically stated at page No. 39 of his order under the heading “actual transaction” that goods have actually been purchased from grey market by cash payment from the cash generated outside the books of account and on quantitative details shown by the assessee, it has to be reasonably presumed that assessee purchased material from market in cash and bills were obtained from the above two bogus concerns of the accommodation entry provider. Therefore, it is apparent that the addition of whole of the amount cannot be made. Therefore we direct the ld Assessing Officer to restrict the addition @25% of the total purchases of ₹ 5247565/- from these tainted parties. Accordingly, the addition is restricted to ₹ 1311891/- and balance addition of ₹ 3935673/- is deleted.

  Enhancement made on account of commission paid for the alleged bogus purchases - Held that:- As the purchases made by the assessee from the above two parties is conclusively proved to be bogus, naturally assessee has paid commission to them for arranging the purchase bills. The estimate made by the ld CIT(A) is also reasonable and therefore, confirmed. Hence, ground No. 8 of the appeal is dismissed.

  Addition of 20% being additional GP earned by the assessee - Held that:- As perused the reasons for making such enhancement by the ld CIT(A), however, as no evidence is available with respect to earning of such higher income by the assessee and further, the profit arising on the sale of the goods has already been offered for taxation by the assessee, there is no justification in making further addition on this count.

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• 2017 (12) TMI 746

  Reopening of assessment - disallowance of bogus purchase - Held that:- As regards the reopening, we find the Commissioner of Income Tax (Appeals) has passed an apposite order. The reopening has been done on the basis of cogent information regarding the assessee dealing with hawala operators. The case laws referred by the Commissioner of Income Tax (Appeals) are germane and support the validity of reopening in this case.

  As regards the merits of the case, facts of the case indicate that the assessee has engaged into obtaining bogus purchase bills. Since, sales have not been doubted; entire disallowance of purchase is not sustainable in light of Hon'ble jurisdictional High Court decision in the case of Nikunj Enterprises [2013 (1) TMI 88 - BOMBAY HIGH COURT ]. We further note that the Assessing Officer has also himself not done any investigation and enquiry. The assessee’s request for cross examination has not been entertained by the Assessing Officer. In these circumstances, 6% disallowance of bogus purchase sustained by the Commissioner of Income Tax (Appeals) is appropriate and does not need any interference on our part. Both the ld. Counsel also fairly agreed to this proposition.

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• 2017 (12) TMI 745

  Penalty u/s.271(1)(c) - Concealment of income - defective notice - Held that:- As relying on case of M/s. SSA's Emerald Meadows [ 2016 (8) TMI 1145 - SUPREME COURT ] Notice issued by AO under Section 274 read with Section 271(1)( c) to be bad in law as it did not specify which limb of Section 271(1)(c) of the Act, the penalty proceedings had been initiated i.e., whether for concealment of particulars of income or furnishing of inaccurate particulars of income. - Decided in favour of assessee.

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• 2017 (12) TMI 744

  Disallowance of expenditure u/s 40(a)(ia) for failure to deduct tax at source - payments outstanding at the end of the year - Held that:- We find that the issue is squarely covered in favour of the Revenue by the decision of the jurisdictional High Court in the case of Thomas George Muthoot v. CIT [2015 (7) TMI 810 - KERALA HIGH COURT] wherein it was observed that whether disallowance u/s 40(a)(ia) can be made only in respect of payments outstanding at the end of the year has held that the language of section 40(a)(ia) does not warrant any interference that it gets attracted only where the amount remains payable on the last date of the financial year.

  The Hon’ble Supreme Court in the case of Palam Gas Services v. CIT [2017 (5) TMI 242 - SUPREME COURT] held that word payable occuring in section 40(a)(ia) not only covers cases where amount is yet to be paid but also those cases where amount has actually been paid. Therefore, we are of the view that there is no merit in the arguments of the assessee that, no disallowance u/s 40(a)(ia), if any, remain payable at the end of the year. The CIT(A) by following the decision of the jurisdictional High Court confirmed the additions made by the A.O. We do not find any error in the order of the CIT(A), hence we are inclined to upheld the finding of the CIT(A) and reject the ground raised by the assessee.

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• 2017 (12) TMI 743

  Reopening of assessment - Lack of proper and sufficient opportunity given by CIT(Appeals) - Held that:- Assessee, who has appeared personally, submits that all the three notices of hearing received from the office of the ld. CIT(Appeals) were duly handed over by him to his Authorized Representative, C.A. Vivek Jaiswal. He submits that his Authorized Representative, however, could not appear before the ld. CIT(Appeals) on the given dates as he was out of station. He submits that he is very much interested in prosecuting his appeal filed before the ld. CIT(Appeals) and should not be made to suffer because of the mistakes committed by his Authorized Representative. Keeping in view all the submissions made by the assessee himself, we consider it fair and proper and in the interest of justice to give one more opportunity to the assessee to put forth his case before the ld. CIT(Appeals). - Decided in favour of assessee for statistical purposes.

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• 2017 (12) TMI 752

  Addition u/s 68 - assessment u/s 153A - Held that:- It was noticed by the Income Tax Appellate Tribunal (ITAT) that in the course of the search proceedings, nothing incriminating was found in the premises, which could have led to the additions made. On the contrary, in some of these Appeals, the Assessee’s Returns, originally filed, had been scrutinized under Section 143(3) of the Act and the declarations with respect to share capital and/or unsecured creditors were accepted.

  As a consequence, applying the ratio in Commissioner of Income Tax versus Kabul Chawla, (2015 (9) TMI 80 - DELHI HIGH COURT ), the ITAT deleted the amounts brought to tax under Section 68 of the Act. Since Kabul Chawla (supra) was the decision rendered by the Division Bench of this Court and the ITAT merely followed it, this Court is of the opinion that no substantial question of law arises. - Decided against revenue

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• 2017 (12) TMI 742

  Determination of long term capital gain - applicability of provisions of 50C - Held that:- Provisions of Section 50C(2)(a) provides an option for the assessee of fair market value instead of valuation adopted for stamp purposes where stamp valuation exceeds the fair market value. On a bare reading of the provisions of the said section, it is evident that the alternative left with the Assessing Officer to refer the matter at the most to the valuation officer which has not been done and the property was in dispute and was the subject matter of litigation and therefore, the property has been sold at market value. Accordingly, we find no defect in the submissions of the counsel for the assessee

  Reliance placed on the decision of the ITAT in the case of Aditya Narain Verma [2017 (6) TMI 542 - ITAT DELHI ], all the grounds raised by the assessee are allowed and the remaining grounds of the assessee for the purpose of capital gain are also decided in favour of the assessee.

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• 2017 (12) TMI 741

  Nature of land - agricultural land - scope of definition of the capital assets u/s 2(14) - Distance from municipal limit - Held that:- The agricultural land situated at such a distance, as the Central Government may prescribe by notification, having regard to the extent and scope of urbanization of that area and other relevant consideration, specify in this behalf. Admittedly, as per notification, the specified distance is 5 Kms and above, so far as the distance of land of the assessee from the concerned municipal limit is concerned. The argument of the Ld. Counsel that each and every rural land is excluded from the scope of definition of the capital assets u/s 2(14) of the Act is not tenable. The reliance of the Ld. Counsel on the decision in the case of ‘DCIT Vs. Arijit Mitra’[2011 (8) TMI 556 - ITAT, KOLKATA] is also misplaced. We, therefore, do not find any infirmity in the order of CIT(A) while dismissing the appeal of the assessee. There is no merit in the appeal of the assessee and the appeal is accordingly dismissed.

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• 2017 (12) TMI 740

  Reopening of assessment u/s 147 - Addition u/s 69C - Held that:- Details of purchases as well as sundry creditors were provided to the assessing officer at the time of assessment proceedings u/s.143(3) of the act. AO has mentioned in the body of the assessment order itself that the assessee has filed the details of purchases and sales and confirmations and the same have been gone through by him. For the purpose of reopening, there was no fresh material available with the assessing officer and from the very same details, opinion was changed about the alleged cash payments to the purchasers.

  In this case, the issue relates to cash purchases made from the farmers. Provisions of rule 6DD(e)(i) of the IT Rules, 1962 are squarely applicable for the cash purchases of agricultural produce. One cannot deny the possibility that during the assessment proceedings u/s. 143(3) of the act, assessing officer took a view that even though payments for purchases are made in cash, they are covered by rule 6DD(e)(i) of IT Rules, therefore, no disallowance is called for u/s. 40A(3) of IT Act. Subsequent to the completion of assessment proceedings u/s. 143(3), ld. assessing officer again on going through the very same documents formed an opinion that such cash payments are disallowable u/s. 40A(3). This act of the ld. assessing officer squarely falls under the category of “change of opinion” and as observed by Hon’ble Apex Court, assessment u/s. 143(3) cannot be reopened merely for the “change of opinion”.

  Respectfully following the judgment of Hon’ble Apex Court in the case of CIT vs. Kelvinator of India (2010 (1) TMI 11 - SUPREME COURT OF INDIA and in the given facts and circumstances of the case, we quash the re-assessment proceedings u/s. 147 r.w.s. 148 of the act and restore the order dated 16-11-2009 passed u/s. 143(3) of the act. In the result, this ground of the assessee challenging the re-assessment proceedings is allowed. - Decided in favour of assessee.

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• 2017 (12) TMI 739

  Addition made u/s 69C towards bogus purchases - rejection of books of accounts - Held that:- In view of the discussion the conclusion arrived at by the Ld.CIT(A) that there should not be separate addition u/s. 69C of the Act when the profit is estimate at 2% by rejecting the Books of Accounts of the assessee is upheld.

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• 2017 (12) TMI 738

  Addition u/s 14A r.w.r. 8D - Held that:- The provisions of Section 14A(2) empower the AO to resort to the prescribed provision under Rule 8D for making disallowance under Section 14A where, having regard to the account of the assessee, the AO is not satisfied with the claim of the assessee. We further note that the Hon’ble Mumbai High Court in the case of CIT Vs Godrej & Boyce Mfg Co ltd vs. DCIT, Mumbai [2010 (8) TMI 77 - BOMBAY HIGH COURT] and the Hon’ble Delhi High Court in the case of Maxopp Investment [2011 (11) TMI 267 - Delhi High Court] have held that such a lack of satisfaction should be on cogent grounds. Such provisions entailed in Section 14A are in the nature of safeguards with the intention to provide natural justice to the taxpayers before invoking the prescribed method which is only presumptive in nature.

  We find that in the instant case, even though the AO has given due opportunity to the assessee to explain its claim that only an amount of ₹ 17,20,346 was in the nature of expenses incurred for earning tax exempt income, however, he was not judicious in examining the claim and dismissed the same as such without any cogent reasoning or any sound basis. The assessee had given detailed explanation in respect of interest expenses and in the absence of identifying any specific expenses incurred for earning the exempt income, had disallowed relevant administrative expenses proportionately on turnover basis. No fault could be pointed out by the AO in it. In view of the above, we find that the Ld. CIT(A) has rightly held that the action of the AO of invoking the provisions of Rule 8D without on any cogent ground was unwarranted and not sustainable. - Decided against revenue.

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• 2017 (12) TMI 737

  Addition on account of unexplained cash deposits in the bank account maintained with Axis Bank - estimating the profit at the rate of 8% on turn over - Held that:- There is no whisper about such remand report from the AO. Under these circumstances, find merit in the submission of the assessee that his profit from fabric trading business should be estimated at 8% on the turn over of ₹ 23,19,870/-. Therefore, direct the AO to adopt the profit @ 8% on turn over of ₹ 23,19,870/- in place of ₹ 16,54,000/- made by AO u/s 68 of the IT Act. Grounds raised by the assessee are accordingly partly allowed.

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• 2017 (12) TMI 736

  Applicability of section 50C - valuation made by the Departmental Valuation Officer - assessee sold property for ₹ 45 lakhs and stamp duty value of the property is ₹ 60.54 lakhs thereby, as the assessee is having 1/3 share only addition in the hand of the assessee of ₹ 5.18 lakhs is confirmed - assessee has contested that the stamp duty rates cannot be applied in the case of assessee as in the same vicinity and sector the plots of the same area have been transferred even for lesser consideration.

  Held that:- Stamp duty is payable by the purchaser & it is for the purchaser to either accept it or dispute it. The assessee could not, on the basis of the price fixed by the Sub-Registrar, have claimed anything more than the agreed consideration of a sum of ₹ 10 lakhs which, according to the assessee, was the highest prevailing market price. It would follow automatically that his case was that the fair market value of the property could not be ₹ 35 lakhs as assessed by the District Sub Registrar. In a case of this nature the AO should, in fairness, have given an option to the assessee to have the valuation made by the Departmental Valuation Officer (DVO) contemplated u/ s 50C.

  Therefore as a matter of course, in all such cases the AO should give an option to the assessee to have the valuation made by the DVO. The valuation by the DVO is required to avoid miscarriage of justice. The legislature did not intend that the capital gain should be fixed merely on the basis of the valuation to be made by the District Sub Registrar for the purpose of stamp duty. The legislature has taken care to provide adequate machinery to give a fair treatment to the citizen/taxpayer. There is no reason why the machinery provided by the legislature should not be used and the benefit thereof should be refused. Even in a case where no such prayer was made the AO, discharging a quasi judicial function, has the bounden duty to act fairly and to give a fair treatment by giving him an option to follow the course provided by law. For the reasons set out above, and with the observations as above, we remit the matter to the file of the AO for recomputation of taxable capital gains. The AO shall decide the matter afresh in accordance with the law, by way of a speaking order and after giving due and fair opportunity of hearing to the assessee. The AO shall also require the DVO to submit valuation report in terms of above provisions of the law. - Appeal of the assessee is allowed for statistical purposes

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• 2017 (12) TMI 735

  Adhoc addition on account of unverified expenses - Held that:- In the present case, it appears that the disallowance had been made by the AO for the reasons that most of the expenses were paid in cash which were treated as unverified expenses. However, the AO did not point out any specific defects in the books of account, at the same time, the assessee also did not furnish the complete vouchers for the expenses incurred. In opinion, the addition made by the AO and sustained by the CIT(A) is on higher side. Therefore, to meet the ends of justice, deem it appropriate to sustain the disallowance of ₹ 50,000/- and as such the assessee will get a relief of ₹ 50,000/-.

  Addition u/s 68 on account of loan taken from Sh. Prem jeet Singh - Held that:- In the present case, it is noticed that the assessee furnished the copy of confirmation received from the creditor Sh. Prem Jeet Singh from whom the loan of ₹ 1,00,000/- was received through cheque which is evident from copy of the bank statement placed. The said bank statement was not available during the course of assessment proceedings. However, it was obtained on 19.03.2015 while the AO closed the proceedings on 16.03.2015. The assessee also requested the AO to issue the summon u/s 131 but that request was not accepted by the AO for the reason based known to him. In the present case, the loan of ₹ 1,00,000/- was received by the assessee through cheque from Sh. Prem Jeet Singh, however, the assessee neither furnished the copy of his Income Tax Return nor produced him to prove the identity and creditworthiness. We deem it appropriate to remand this issue back to the file of the AO to be adjudicated afresh in accordance with law after affording a due and reasonable opportunity of being heard to the assessee.

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• 2017 (12) TMI 734

  Reopening of assessment - no notice under section 143(2) have been issued - Held that:- In the present case, admittedly the AO issued notice under section 143(2) on 17th March, 2015 which have been served upon assessee and assessee participated in reassessment proceedings for year 2008-09. Therefore mere mistake in mentioning assessment year 2008-09 for filing of the return is not fatal to the case of the Revenue. Therefore not inclined to entertain the plea of the assessee that no notice under section 143(2) have been issued and served upon the assessee. The learned DR therefore rightly contended that this ground of appeal of assessee should be rejected. In view of the above discussion, this ground of appeal of assessee is rejected.

  Addition of sales - assessee submitted that it was a sale transaction without monetary consideration and in her alternate contention she has contended that the assessee being a house wife has no source of income - Held that:- The assessee has filed copy of the sale deed on record which clearly shows that assessee has paid ₹ 20,00,000/- to the seller/vendor in cash. Therefore, subsequent affidavits of deed writer, vendor and witnesses to the sale deed are not relevant and are clearly after thought and have been rightly rejected by the authorities below. The assessee failed to explain source of investment in purchase of property. All the contentions raised by the assessee have not been supported by any evidence or material on record. The case of the assessee is covered by judgment of Hon’ble Punjab and Haryana High Court in the case of Paramjit Singh (2010 (2) TMI 262 - PUNJAB & HARYANA HIGH COURT). The appeal of the assessee has no merit, the same is accordingly dismissed.

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• Customs

• 2017 (12) TMI 733

  Whether any vested right is accrued on the basis of the extended licences obtained by the petitioners? - whether the subsequent policy will affect the additional licences which were valid on 1st April 1990 when the subsequent policy came into force?

  Held that: - In this case, the licence in question was issued on 29th June 1981 when import policy of 81­82 was in force. On the basis of the public notice dated 5th June 1981, a notice was issued by the Department to the assessee. Notice was issued on the basis of the contention that after 5th June 1981 import of beef tallow was not permissible. An order of confiscation was passed by the Collector of Customs on the ground that import of beef tallow was not permissible. Accordingly, the assessee preferred an Appeal. The Tribunal held that right to import the goods under OGL is a statutory right and cannot be overruled by a public notice and that the import of beef tallow which ceased to be OGL item when it was canalized by the public notice is governed by the import policy when the licence was issued and not by the public notice.

  We have already referred to the subsequent policy which came into force on 1st April 1990. Sub-clauses 1 of both clauses 223 and 224 thereof provide that additional licences issued to export/trading houses prior to 1st April 1990 shall cease to be valid on or after 1st April 1990. In these petitions under Article 226 of the Constitution of India, there is no challenge to sub-clauses 1 of clause 223 and 224 of the subsequent policy. However, sub­clauses 2 of clauses 223 and 224 protect imports made after 1st April 1990 subject to the conditions mentioned therein. Both the clauses, provided that the restriction imposed by sub­clauses 1 of clauses 223 and 224 will not apply to those licence holders who have already made firm commitments by irrevocable Letters of Credit opened and established through authorised dealers in foreign exchange on or before 31st March 1990 - the petitioners are entitled to relief in respect of the cases which are governed by the sub­clauses 2 of clauses 223 and 224 of the subsequent policy (1990­93).

  In view of sub-clause 2, the import under the additional licences could have been permitted after 1st April 1990 only if the petitioners had made confirmed commitment by irrevocable Letters of Credit opened and established through authorised dealers in foreign exchange prior to 1st April 1990. However, if an extension thereafter is made after 31st March 1990, the same shall be treated as a fresh commitment to which protection under sub­clause 2 will not apply.

  In these writ petitions, we cannot go into the question of fact whether the petitioners had already made confirmed commitments by irrevocable Letters of Credit opened and established through authorised dealers in foreign exchange prior to 1st April 1990.

  Petition disposed off.

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• 2017 (12) TMI 729

  Valuation - enhancement of value - contemporaneous imports - Held that: - The Department is interpreting admission by appellant no. 1 to enhance the value to US dollar 2.6 per kg. by the importer as evidence that the goods were undervalued. However, that enhancement was based on the email/proforma invoices and there is no evidence of contemporaneous imports as the basis to enhance the value - in the absence of actual contemporaneous imports of identical or similar goods, the email from DRI citing prices for different counts of yarn or the proforma invoice is not sufficient basis to redetermine the transaction value under Customs Valuation Rules 2007.

  In the absence of any evidence of contemporaneous imports on record, the enhancement of value is completely unsustainable - penalty set aside.

  Appeal allowed - decided in favor of appellant.

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• 2017 (12) TMI 732

  Validity of summons - The grounds of challenge was that the petitioner had appeared before the second respondent and co-operated with the investigation and submitted all documents, however, he was brutally handled by the officers of the second respondent and issuing further summons calling upon the petitioner to appear without disclosing the reasons for such appearance is not sustainable - whether a Writ Court can injunct or quash the summons and after taking note of the Hon'ble Supreme Court in the case of Commissioner of Customs, Calcutta, vs. MM Exports, [2007 (3) TMI 265 - SUPREME COURT OF INDIA], where it was held that the Writ Petition was not maintainable.

  Held that: - Though the petitioners seek for issuance of a Writ of Mandamus to prohibit the second respondent from proceeding with the enquiry pursuant to the summons dated 06.11.2017, it is an indirect challenge to the summons. The petitioner having been unsuccessful in its earlier attempt, cannot now maintain these Writ Petitions and indirectly challenged the summons issued by the second respondent. Therefore, the petitioner is estopped from approaching this Court for an identical relief for the second time.

  In the instant case, the exercise done by the second respondent is investigation and it does not pertain to a single consignment imported by the petitioners. By the summons, dated 06.11.2017, the petitioners have been called upon to produce documents pertaining to the imports done for the period from 2013-14 to 2016-17. Infact, this Court in the earlier Writ Petition specifically directed that the summons should set out reasons for which the petitioner is being summoned. This has been explicitly stated with summons dated 06.11.2017. Therefore, it is not a singular transaction, which is being investigated, but past transaction as well.

  The petitioners have not made out any case for grant of any relief in these Writ Petitions - petition dismissed - decided against petitioner.

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• 2017 (12) TMI 728

  Principles of natural justice - penalty - case of Revenue is that appellant like Kirit Dhruv who is a repeated offender threaten the basic fabric of the society and any leniency towards them will encourage further fraudsters. - Held that: - it is expected that the appellant shall not follow any dilatory tactics but shall cause appearance before adjudication authority to reduce the litigation as expeditiously as possible - appeal is remanded to learned Adjudicating Authority - appeal allowed by way of remand.

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• 2017 (12) TMI 731

  Whether, in the facts and circumstances of the case, the Hon'ble CESTAT has passed a cryptic and non-speaking order without showing any reasoning or deliberation of the materials that were placed before it for consideration?

  Held that: - reliance placed in the case of M/s. A & S Textiles Ltd. Versus The Commissioner of Central Excise, Coimbatore [2017 (9) TMI 352 - MADRAS HIGH COURT], where it was held that Decision in NGA Steels (P) Limited's case [2016 (7) TMI 127 - MADRAS HIGH COURT], squarely applies to the case on hand, where it was held that When a specific plea regarding violation of principles of natural justice is raised, CESTAT, Chennai, is bound to record a specific finding, which is conspicuously absent.

  Appeal allowed - decided in favor of appellant.

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• 2017 (12) TMI 730

  Extra Duty Deposit (EDD) - matter was remitted back to the Lower Adjudicating Authority (LAA) for a fresh examination with a direction to collect EDD at 5% from the petitioner in respect of the Bill of Entries filed by them - Held that: - The Appellate Authority found that LAA has not gone into the aspect with regard to the impact of Rule 10(1)(c) of the Valuation Rules, 2007 and therefore, the matter requires re-examination and verification covering both direct payment and indirect payments to find out if they are related to imported goods and about the condition of sale - When such is the case, adding a rider to that order by directing the petitioner to pay EDD equivalent to 5% value in all the Bills of Entry filed by them would be without jurisdiction, as the lis before LAA is yet to be adjudicated and the matter is at the stage of remand.

  The imposition of such duty of EDD equivalent to 5% on all the Bill of Entry filed by the petitioner would be beyond the scope of the order passed by the first respondent, as the petitioner succeeded before the LAA - petition allowed - decided in favor of petitioner.

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• 2017 (12) TMI 727

  Refund claim of amount paid under protest - denial on the ground of time limitation - case of appellant is that the amount paid by the appellant during the course of investigation is merely a deposit and this payment does not amount to a duty and Section 27 of the Customs Act, 1962 will not apply to deposits - Held that: - the amount was deposited during investigation and later on the Commissioner has held that the appellant was not liable to pay duty and thereafter the appellant filed the refund claim - in the case of Motorola India Pvt. Ltd. [2006 (4) TMI 390 - CESTAT, BANGALORE], it was held that when the amount is paid during the course of investigation, it is not the duty and it is only a deposit and Section 27 of the Customs Act, 1962 is not applicable to deposits made during investigations - unjust enrichment is not applicable nor it has been invoked by the Department.

  Interest on delayed refund - Held that: - the assessee is entitled to interest from the date of expiry of three months from the date of filing the application for refund till the refund is granted.

  Appeal allowed - decided in favor of appellant.

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• 2017 (12) TMI 726

  Misdeclaration of value of imported goods - smuggling - case of Revenue is that the appellant failed to rebut without leading and cogent evidence to prove their innocence - Held that: - Learned adjudicating authority found that the misdeclaration caused serious prejudice to interest of Revenue and these appellants were consciously and deliberately involved therein to cause subterfuge to Revenue making illegal gain at the cost of Revenue. The bank accounts investigated reveal the money trail involved in the smuggling activities carried out by appellants. They could not detach themselves from the racket of smugglers. Whole evidence on record reveal that all these appellants were members of smuggling racket. Criminal prosecution was also launched by department against conspiracy made by these appellants - The documents recovered revealed commitment of offence against Revenue and movement of the goods also speak against the appellants as to their involvement in routing these smuggled goods to their destination.

  When material facts came to record and that remained unrebutted by the appellants, it can be said that learned adjudicating authority having passed a very detailed order bringing out the evidence and fact in para 73 of his order, that does not call for any intervention - appeal dismissed - decided against appellant.

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• 2017 (12) TMI 725

  Smuggling - gold - non-declaration of goods before the customs authorities - Baggage Rules - section 80 of CA, 1962 - Held that: - any passenger entering into India is empowered to make a declaration of his baggage before entering into India as provided under Section 77 of Customs Act, 1962. Further if it is found that the goods accompanying him which are also called as baggage, import of which is prohibited and in respect of which true declaration has been made under Section 77 the proper officer may at the request of the passenger detain such articles for the purpose of being returned to him on his leaving India under Section 80 of Customs Act, 1962.

  The appellant appears to have proposed such option before the officers of Land Customs Station, Sonauli. However, the said option was not exercised and officers seized the goods and detained the passenger - the appellant was entitled for the benefit of provision of Section 80 of CA, 1962 - appeal allowed - decided in favor of appellant.

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• Service Tax

• 2017 (12) TMI 724

  Business Auxiliary Services - whether demand of service tax amounting to ₹ 10,22,575/- have been rightly made on the brokerage earned for providing taxable services under the head Business Auxiliary Service for the period October, 2009 to June, 2012 and further July, 2012 to March, 2014? - penalty - Held that: - Nomenclature in accounts is not material to classification of service event, taxable entry specifies legislative intent. The description of taxable service in the Act as well as in any of the terms therein are primary determinant for taxation of any service - in the course of audit it was seen that the assessee had ocean freight surplus and it was explained that these profits are arising from purchase and sale of space or slots for ocean transport of container and the same was proposed to be taxed under BAS, this Tribunal held, the notional surplus earned thereby arises from purchase and sale of space and not by acting for a client who has space or slot on a vessel.

  The appellant - assessee have taken adequate measures for meeting the service tax liability, being the facts on record that there was defalcation of the amounts by its staff, drawn towards payment of service tax is not disputed and further appellant have on discovering the defalcation by its employee, deposited the tax forthwith with interest - the penalty u/s 78(1) is not tenable.

  Appeal allowed - decided in favor of appellant.

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• 2017 (12) TMI 723

  Interpretation of statute - clearing and forwarding services - scope of service - case of appellant is that the activity of clearing and forwarding consisting of two activities i.e. clearing and forwarding when carried out cumulatively and simultaneously, that only is taxable - Held that: - It is inconceivable how an activity not being covered by the fold of law shall be taxable beyond its mandate - When law prescribed certain activity shall only be taxable on occurrence of taxable event, without any evidence to that effect, there is no presumption in taxation.

  The term clearing and forwarding would cover only those activities which pertain to clearing of the goods and forwarding thereof to a destination, under the directions of the principal. Beyond this, no other activities shall be taxable under the above said taxing entry.

  Appeal allowed - decided in favor of appellant.

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• 2017 (12) TMI 722

  CENVAT credit - service tax paid to various insurance companies for Group Insurance Scheme of employees - case of Departmnet is that the insurance of employees is only a welfare measure and has no relation to the manufacture of their final product and cannot be treated as an input service - Held that: - even after the amendment to the definition of input service w.e.f 1.4.2011, these services on which CENVAT credit has been denied fall in the definition of input service because they are not primarily for the personal use which has been excluded from the definition - the service charge and the service tax on insurance of plant and machinery, goods in transit, cash in transit and insurance on vehicles and laptops and also group insurance of all employees against sickness being an integral part of the manufacturing business and the same form part of the manufacturing cost of the final product and used in or in relation to the manufacture of final product - appeal allowed - decided in favor of appellant.

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• 2017 (12) TMI 721

  SCN on legal heir of proprietor after the death of proprietor - Whether the SCN can be validly issued on the legal heir of the proprietor for duty allegedly short paid on the ground that his son legal heir is carrying the same business after the death of proprietor under the same name and style?

  Held that: - the proprietor Birendra Singh, with respect to whom SCN was issued after his death, purportedly on the legal heir Shri Jasjit Singh is ab-initio avoid - it is of no consequence or help to the revenue that the legal heir Shri Jasjit Singh have also taken registration under the same name and style and is carrying on similar business. The said proprietorship concern of Shri Jasjit Singh is totally different from the earlier proprietorship concern of his late father Shri Birendra Singh.

  The Revenue have erred in issuing SCN on him after the death of late Birendra Singh - The Adjudicating authority is directed to refund the amount of ₹ 38,24,602/- collected from Shri Jasjit Singh with interest - appeal allowed - decided in favor of appellant.

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• 2017 (12) TMI 720

  Refund claim - denial on the ground that the FIRCs contains an address different from that of claimant STPI and also the FIRCs records the remittances received as advance and therefore, the receipt of remittances cannot be correlated - Held that: - it is not the case of the department that the appellant has not exported the service whereas the appellant has proved that there has been export of service and FIRCs have been received in advance, which has been accounted for in the books of accounts. Further, they have also produced the certificate of Chartered Accountant to the effect that the remittances were received. Further, I find that when the service was rendered, there was no objection by the department that the said service is not an export of service and they have raised the objection only when the refund was claimed. Further, I find that the allegation that FIRCs only talks about advance and thus, the correlation cannot be done is untenable when the exporter has declared that FIRCs are towards the export effected and that the foreign inward remittances has been received, which is not in question or doubt - refund allowed - appeal allowed - decided in favor of appellant.

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• 2017 (12) TMI 719

  Reverse Charge Mechanism - Business Auxiliary Service and Business Support Service received from service provider abroad - validity of SCN - Held that: - Application of mind to the allegation raised in show-cause notice is necessary and learned authority should have read that in the spirit of law and drawn appropriate conclusion. That being absent in his order and he having acted contrary to law. Revenue says that nothing is possible to visualise as to the discharge of tax due by the respondent. Learned adjudicating authority without application of his mind, went against law and aggrieved Revenue.

  Factual aspects of the case argued by ld. Representative for Revenue warrants to direct learned adjudicating authority to readjudicate the matter in the light of allegation made in the show-cause notice in terms of para 2, 9 to 11 thereof. He shall consider the replies given by the respondent and also the figures submitted and pass appropriate order following due process of justice. At the every stage of adjudication respondent is entitled to fair trial.

  Petition disposed off.

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• 2017 (12) TMI 718

  CENVAT credit - penalty u/r 15(3) - N/N. 30/2012-ST dated 20.06.12, read with Rule 2(d)(1) (F) (b) of STR, 1994 - Held that: - the disallowance of cenvat credit of ₹ 8,07,065/- was wrongly demanded by the Commissioner because the appellant had paid 100% service tax to the service provider and thereafter availed the cenvat credit therefore asking the appellant to pay the cenvat credit of ₹ 8,07,065/- is wrong and not sustainable in law. The learned Commissioner has not considered the factum of payment of 100% service tax on the services received by the appellant from the service provider. Further the question of payment of interest under Section 75 and the penalty u/r 15(3) of the CCR is not justified as the appellants have not committed any default - the service tax has already been paid and demanding the same again is wrong and illegal - the service tax has already been paid and demanding the same again is wrong and illegal and therefore the impugned order is not sustainable in law and the same is set aside - appeal allowed - decided in favor of appellant.

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• 2017 (12) TMI 717

  Non-payment of service tax - tax collected but not deposited - penalty - Held that: - appellant has collected the service tax but did not deposit the same. Therefore, he is liable to pay the penalties under various provisions of the Finance Act, 1994 - appeal dismissed - decided against appellant.

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• 2017 (12) TMI 716

  Validity of SCN - whether the SCN is time barred? - service tax collected but not paid - Held that: - immediately on pointing out by the audit, the respondent paid entire amount of service tax along with interest and even excess amount of service tax was paid by the respondent. Further, it has been explained by the respondent that why they could not pay service tax in time as they were regularly paying their service tax liability for the last four to five years - demand with interest upheld.

  Penalty - Held that: - as the respondent is not disputing their service tax liability along with interest. The same has been accepted by the respondent. Further, the excess amount paid by the respondent has been refunded; in that circumstance, the provisions of Section 73(3) of the Act are invokable, therefore, no penalty is imposable on the respondent.

  Appeal allowed in part.

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• 2017 (12) TMI 715

  Refund of unutilized CENVAT credit - input services - exclusion of the words activities relating to business from 1.4.2011 - Held that: - even after the amendment in the definition of input service, there is no requirement of correlation between the input and output services. Further, in all the decisions relied upon by the appellant cited supra, expenses incurred towards maintenance of building has been considered to be an input service as per Rule 2(l) of CENVAT Credit Rules because it is directly connected with the output service - expenses incurred towards maintenance of building has been considered to be an input service as per Rule 2(l) of CENVAT Credit Rules because it is directly connected with the output service. Further, the expenses towards maintenance of building forms part of the rent agreement and therefore, there is a nexus between the input service and the services exported - appeal allowed - decided in favor of appellant.

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• 2017 (12) TMI 714

  Short payment of service tax - short paid amount was paid on being pointed out - demand of interest with penalty u/s 78 - Held that: - the appellant has paid the service tax along with interest much before issuance of SCN and therefore SCNshould not have been issued to the appellant in view of section 73(3) of the FA, 1994 - there is no suppression of material fact on the part of the appellant and therefore the imposition of penalty u/s 78 is not warranted.

  Also, it is a case of revenue neutrality because the appellant are entitled to take credit of service tax paid by them under the provisions of 66A of FA, 1994.

  Appeal allowed - decided in favor of appellant.

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• 2017 (12) TMI 713

  Refund of unutilized CENVAT credit - N/N. 5/2006 CE (NT) dated 14.3.2006 - various input services - denial on account of nexus - Held that: - the appellant is entitled to CENVAT credit of ₹ 21,31,710/- for which he has produced the invoices on record - also the appellant is entitled to the CENVAT credit of ₹ 2,75,224/- with regard to various input services by holding that the same fall in the definition of input services under Rule 2(l) of CCR - the appeal of the appellant is partially allowed to the extent of ₹ 24,06,934/- out of ₹ 24,90,499/-.

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• Central Excise

• 2017 (12) TMI 712

  Activation of adjudicating proceedings after a long gap over a decade - SCN was kept in abeyance - case of the Department, which now emerges is that on account of the fact that a similar issue is pending before the Supreme Court, the proceedings were kept in abeyance - case of appellant is that proceedings were kept in abeyance for over 15 years without any reason or explanation and the reason for the same was never communicated to the petitioners - Held that: - the show cause notices were issued in the years 2001 and 2004. After petitioners filed their replies, no further development took place. No hearing was conducted. Without communication to the petitioners or reason for keeping the proceedings in abeyance, the proceedings were sent to call book. The proceedings were activated in the year 2017, again without any indication or reasons. The proceedings, which prompted the Department to defer the adjudication, came to be decided by the Supreme Court in the year 2012. In the meantime, the unit was shut down since long.

  Reliance placed in the case of SIDDHI VINAYAK SYNTEX PVT LTD. Versus Versus UNION OF INDIA & 2 [2017 (3) TMI 1534 - GUJARAT HIGH COURT], where it was held that After seventeen years, the persons who were conversant with the case may not be available, documentary evidence may have been displaced. Thus, the delay in deciding the proceedings, that too without bringing it to the notice of the petitioner that the case was transferred to the call book and was therefore pending, causes immense prejudice to the petitioner. The revival of the proceedings, therefore, is in complete breach of the principles of natural justice and hence, the impugned show cause notice and the order-in-original passed pursuant thereto, cannot be sustained.

  Petition allowed - decided in favor of petitioner.

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• 2017 (12) TMI 709

  Valuation - includibility of certain costs - whether the valuation of the goods manufactured and supplied by the appellants for execution of turnkey project is correct and legal and whether the deduction claimed from the value is proper and legal?

  Held that: - the cost of manufacture should be based on the CAS-4 certificate which was certified by the Cost Accountant and not by the cost details submitted by the Managing Director.

  Cost of rubber rings - includibility - Held that: - rubber rings supplied by the appellant but it does not take part in or in relation to the manufacture of pipes manufactured by the appellants. The rubber rings is use for jointing of pipes at site which is an activity of laying of pipes, therefore the same cannot be attributed to manufacturing of pipes - cost not includible in the assessable value.

  Transportation cost - includibility - Held that: - the fact is not under dispute that there is no sale of goods through the depot. The clearance of goods is made from the factory gate of appellant to the pipeline site of the customer - the valuation should be done on the basis of cost of manufacture + notional profit therefore the transportation in such valuation method cannot be included - the cost of transportation given in this case cannot be included.

  Written off cost on account of theft or other loss - Held that: - there is no dispute of quantity of pipes cleared by the appellant. Certain quantity of pipe is on account of theft or rejection which has taken place after removal from the factory - After removal if there is any shortage the same cannot be deducted from the overall value of the goods cleared - the value of written off goods cannot be deducted from the value.

  CENVAT credit - denial on the ground that clearance of goods effected prior to Central Excise Registration - Held that: - only for this reason CENVAT credit cannot be denied. If it is found that the duty paid inputs were used in the manufacture of excisable goods on which the excise duty is payable, the credit is admissible irrespective of whether the clearance of goods took place before or after Registration - the Adjudicating Authority needs to re-quantify the demand.

  Matter remanded to the Adjudicating Authority for re-quantification of duty - appeal allowed by way of remand.

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• 2017 (12) TMI 708

  Valuation - classification of goods - FRP Composite Doors and Frames - whether classified under CETH 3925.20 as articles of plastics or under CETH 4410.19 and 4410.90 as articles of wood - Held that: - the appellant is engaged in the manufacture of FRP Composite Doors and Frames. Such articles are made from solid block of sal wood on which skin of fibre reinforced plastic material is glued, which is said to give the plastic moisture resistance - The Chartered Engineer has certified that the products are predominantly made of wood and plastic forms a minor part in terms of weight of the material as well as the value of the material.

  The classification of composite materials is required to be done in terms of Rule 3(b) of the General Rules for Interpretation of Central Excise Tariff. This Interpretation Rule provides that composite goods made up of more than one material shall be classified as if they consisted of the material which gives them the essential character insofar as this criterion is applicable - By appreciating the nature of the present commodity, which is doors and frames, the essential character stems from the wood which forms the core material without which the doors and frames will fail to have any rigidity or shape. No doubt, the plastic gives the door the additional character of moisture resistance but keeping the nature of use of the goods, we are of the view that the essential character is given by the wood and hence, in terms of Rule 3(b) of the Rules for Interpretation, the goods will need to be considered as if they are made entirely of wood. Such a view will decide the classification of the plastic under Chapter 44 i.e., articles of wood.

  Valuation - Held that: - once the goods are classified under Chapter 44, they enjoy the exemption under Notification No.10/2003 and no duty becomes payable.

  Appeal allowed - decided in favor of appellant.

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• 2017 (12) TMI 711

  Writ of mandamus - Section 36(b) of the Central Excise Act, 1944 - Held that: - this Court is fully convinced that the stand taken by the petitioners is only to stall the adjudication proceedings under the guise that the petitioners have not been provided with the documents - there is absolutely no basis for issuing any direction to the authorities to provide any further documents or copies of the compact discs. Thus, the restricted prayer sought for by the petitioners is not maintainable - petition dismissed - decided against petitioner.

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• 2017 (12) TMI 710

  Maintainability of petition - invocation of writ jurisdiction - Held that: - In view of the fact that the petitioner was bona fide pursuing his remedies before this Court in this present petition, if appeal before the Appellate Commissioner is filed latest by 05.12.2017, the same shall be examined on merits without reference to limitation - petition dismissed.

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• 2017 (12) TMI 707

  Refund of excess paid duty - time limitation - Section 11B of CEA - Held that: - in this case the refund claim has been filed after more than four years from the date of finalisation of provisional price - there is no infirmity in the impugned order - appeal dismissed - decided against appellant.

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• 2017 (12) TMI 706

  CENVAT credit - works contract service - input services - Held that: - the work awarded to contractors fall in the definition of input service even after 1.4.2011 and they are not excluded by the amendment to input service w.e.f. 1.4.2011 - all these services availed by the appellant from the various contractors fall in the definition of input service and the appellant is entitled to CENVAT credit - appeal allowed - decided in favor of appellant.

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• 2017 (12) TMI 705

  CENVAT credit - fake invoices - receipt of invoices without receipt of goods - the case of the Revenue is that, as the supplier M/s VS who has supplied the goods to the respondent has not received its raw material from the supplier of inputs and it was alleged that M/s VS is not manufactured the goods. Therefore, the invoices issued by M/s VS appears to be fake invoices - Held that: - I have gone through the statement relied on in the show cause notice of the respondent, namely, Shri Bhaiju Thyagarajan, the said statement is not inculpatory, the same cannot be corroborative evidence - no investigation was conducted at the end of the transporters when the vehicle number was entered in the invoices, name of driver etc. whether those vehicles have transported goods, from Jammu Commissionerate to the respondent unit.

  I do agree with the observations made by the Ld. Commissioner (A) in the impugned order that the short allegation of the Revenue is that the invoices against which the respondent have been availed Cenvat credit appears to be fake. In that circumstances, revenue has failed to prove that respondents have taken Cenvat credit on the strength of fake invoices but, it is only a presumption by the Revenue that the respondent has availed Cenvat credit on the invoices which appears to be fake invoice - in this case the Revenue's allegation is on presumption and assumption basis, therefore it cannot be said the Revenue has made out a case against the respondent with admissible corroborative evidences.

  Appeal dismissed - decided against Revenue.

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• 2017 (12) TMI 704

  Remission of duty - onus to prove - finished goods lost in fire - Held that: - there is no doubt that it is onus on the appellant to prove that the fire accident was unavoidable. The appellant has produced the documents like FIR with panchnama drawn by the police, claim of insurance sanctioned by the insurance company on the basis of survey report - nowhere it is coming out from the police report or the survey report that the appellant was negligent and have not taken proper care to avoid the fire accident. In that circumstances, the claim of remission of duty cannot be rejected on the ground that the appellant has not taken due care to avoid fire accident - the claim of remission of duty cannot be rejected on the said ground.

  CENVAT credit - Held that: - Larger Bench of this Tribunal in the case of Grasim Industries [2006 (8) TMI 69 - CESTAT,NEW DELHI] held that the appellant was not required to reverse the Cenvat credit attributable to inputs gone in manufacturing of final goods lost in fire accident - no reversal of Cenvat credit was required to be reversed by the appellant.

  The appellant is entitled to claim of remission of duty of the finished goods lost in fire accident - appeal allowed - decided in favor of appellant.

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• 2017 (12) TMI 703

  CENVAT credit - MS angels, plates, channels, joists, etc. which were used for fabrication and erection of structures which are embedded to earth - Held that: - this issue has been considered by the Madras High Court in the case of India Cements Ltd.[2015 (3) TMI 661 - MADRAS HIGH COURT], wherein it has been held that the assesse is entitled to avail CCR on various iron and steel items which are used as components for capital goods or for structure support of capital goods which is embedded to earth and thus becoming immovable property - appeal allowed - decided in favor of appellant.

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• 2017 (12) TMI 702

  Penalty - capital goods and inputs sent to sister unit for job-work without proper invoices - Held that: - Admittedly, without following any procedure by way of issue challans, the appellant has cleared these capital goods and inputs to their sister unit and never intimated to the department of such removal. If the investigation would not have been conducted at the appellant's factory, the clearances of these capital goods and inputs would not have come into light. Therefore, it is a clear case of suppression of facts by the appellants, therefore, the authorities below has rightly imposed 25% duty as penalty on the appellant company.

  Penalty on director u/r 26 of CER - Held that: - The Director of the appellant was knowing that the capital goods and inputs which have been cleared to their sister unit without intimating to the department are liable for confiscation, the penalty on Shri Jayeshkumar D Mistry is rightly imposed - however, the quantum is reduced.

  Appeal allowed in part.

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• 2017 (12) TMI 701

  Interest on delayed refund - whether the appellant is entitled to claim interest from the date of deposit to till its realization or not? - Held that: - The said issue has examined by the Hon’ble Madras High Court in the case of Ucal Fuel Systems Ltd. [2011 (9) TMI 903 - Madras High Court] Wherein the Hon’ble High Court has held that Limitation contained in Section 11B of the Central Excise Act is not applicable to the case of the first respondent since the amount in question was not paid towards excise duty but only by way of deposit during investigation, interest is allowable.

  The decision taken by the higher forum and decision taken by the Ld. Commissioner (A) himself in identical facts, unless until the same has been set-aside by the higher forum, he is bound to follow the judicial discipline, otherwise the public shall not have faith in such decisions taken by the appellate forum. The Ld. Commissioner (A) was bound to follow the judicial discipline on the subject.

  Appeal allowed - decided in favor of appellant.

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• 2017 (12) TMI 700

  CENVAT credit - input - lead sub-oxide - appellant reversed Credit on being pointed out - Held that: - description of the goods is Lead Sub-oxide but the first stage dealer had imported Lead Ingots which were subjected to some process and thereafter it was converted into Lead sub-oxide and then Lead Sub-oxide sold to the appellant - the appellant has reversed the credit along with interest also after admitting the mistake therefore I confirm the demand on the appellant that he has taken irregular cenvat credit which was reversed by him along with interest.

  Penalty - Held that: - the appellants have not suppressed any material fact from the Department and he had a genuine belief that the credit shown in the invoice is available to them and therefore had a belief that the first stage dealer must have complied with the conditions and procedure and the provisions of the law - imposition of penalty on the appellant and its Director is not warranted under law.

  Appeal allowed in part.

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• 2017 (12) TMI 699

  CENVAT credit - input services - house keeping and Garden maintenance service - authorised service station - inward transportation of inputs - Held that: - the Madras High Court in the case of CCE Vs. Rane TRW Steering Systems Ltd. [2015 (4) TMI 704 - MADRAS HIGH COURT] has held that the house keeping and garden services where an employer spends money to maintain their factory premises in an eco-friengly manner, the tax paid on such services would form part of the cost of final products and the same would fall within the ambit of input services.

  Authorised service station - inward transportation of inputs - Held that: - this service also falls within the definition of input service and the appellant is entitled to the CENVAT credit on the same.

  Appeal allowed - decided in favor of appellant.

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• 2017 (12) TMI 698

  CENVAT credit - fake invoices - it was alleged that appellant have not received the goods from M/s V.N. Impex, but availed credit only on the basis of invoices - Held that: - the Appellant even though claimed in their letter 12.3.2009, that goods have been utilized, they could not produce investigation report conducted by the Range Supdt. way back in 2006. This aspect should be addressed by the adjudicating authority - The Appellant further claimed that the demand notice was received on 5.2.2010 for the period January 2005 to February 2005, a part of it being more than 5 years, hence, barred by limitation; this aspect also needs to be scrutinized - appeal allowed by way of remand.

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• 2017 (12) TMI 697

  Valuation - job-work - demand of differential Central Excise duty from the appellant for the period 1993-94 on the ground that appellant had undervalued the goods cleared from the factory premises - time limitation - Held that: - If there is a declaration filed by the appellant on 13.04.1994, show cause notice issued on 13.10.1994 for demanding the duty liability for the period 1993-94, seems to be hit by limitation, as the declaration filed by the appellant includes the details of the valuation of goods cleared from the factory premises - appellant had filed declaration on 13.04.1994, hence question of limitation needs to be reckoned from this date.

  SCN hit by time limitation - appeal allowed - decided in favor of appellant.

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• 2017 (12) TMI 696

  Clandestine removal - shortage of raw material and finished goods - Held that: - the Revenue’s entire case for clandestine findings against the appellants, is based only upon the shortages detected at the time of their visit. The matter has not been further investigated by the Revenue and no evidences of such clandestine manufacture and clearance, stands produced by them on record - The Hon’ble Allahabad High Court in the case of Commr. of Central Excise, Kanpur Vs. Minakshi Castings [2011 (8) TMI 896 - ALLAHABAD HIGH COURT] has upheld the Tribunal’s decision laying down that the shortages detected at the time of visit of the officer cannot by itself lead to the findings of clandestine removal - appeal allowed - decided in favor of appellant.

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• 2017 (12) TMI 695

  CENVAT credit - capital goods - structural items used in the construction of structures on which pipelines passes through - Held that: - The Division Bench in the case of Singhal Enterprises Pvt. Ltd. Vs. CCE, Raipur [2016 (9) TMI 682 - CESTAT NEW DELHI] had after considering numerous case laws on the issue of cenvat credit on structural steel, held that cenvat credit can be availed on structural items - appeal dismissed - decided against Revenue.

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• 2017 (12) TMI 694

  CENVAT credit - central excise duty on scrap - case of appellant is that the demand on Cenvat Credit was raised on the basis of consumption of inputs recorded in the private record whereas there were no allegations in the SCN that the inputs covered by the invoices were not received by them - Held that: - the exercise of comparing quantities of inputs recorded to have been received in RG-23 record which is prescribed under the Cenvat Credit Rules and the returns filed under sub Rule (5) of Rule 7 of Cenvat Credit Rules with the claim of the appellant of having received the inputs into their factory has not been done by the Original Authority - the Original Authority has erred in ignoring the relevant evidence produced by the appellant - matter is remitted back to the Original Authority with a direction to compare the quantities of inputs claimed to have been received with the quantities of inputs reported to have been received filed on monthly basis as required under sub Rule (5) of Rule 7 and if there is any difference then only to confirm the demand - appeal allowed by way of remand.

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• 2017 (12) TMI 693

  CENVAT credit - the SCN was issued on the basis of assumption that the closing stock of finished goods lying in stock was manufactured with CENVAT scrap and therefore the appellant is liable to reverse the CENVAT credit taken on the inputs whereas the stand of the appellant from the very beginning was that closing stock of finishing goods was manufactured out of non-CENVAT inputs - Held that: - in the impugned order, Commissioner(Appeals) has not given any reason as to how the Department entertained the view that the closing stock of finished goods is manufactured out of CENVAT inputs. Besides this, the calculation sheets furnished by the appellant were also not considered - the rate of duty during the relevant time was 8% whereas the demand has been confirmed on the assumption that the rate of duty was 10%.

  The impugned order which is based on assumptions and presumption and is not sustainable in law - appeal allowed - decided in favor of appellant.

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• 2017 (12) TMI 692

  CENVAT credit - it was alleged that there was a shortage of the inventory of inputs and credit availed on this shortage - Rule 3 of CCR, 2004 - it was alleged that the assessee has not produced the documents explaining the shortages in the inputs - Held that: - Though the appellant had filed all these documents before this Court but the same were not considered by the learned Commissioner (A) because he did not find the same in the appeal paper-book - this case needs to be remanded to the original authority with a direction to pass a de novo order after considering the documentary evidence produced by the appellant explaining the reasons for the shortage of inputs - appeal allowed by way of remand.

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• 2017 (12) TMI 691

  Excisability/marketibility - radioactive isotope - whether the said isotope is having any self-life, so as to become eligible for charging Central Excise duty on the same? - Held that: - from the knowledge of Physics that it is known that the isotope does not have any shelf-life and the moment it comes into existence, its start decaying and reduces to half of its weight within the time which is called ‘half-life period’ - the goods manufactured by the appellant do not have any shelf-life.

  The goods manufactured by the appellant are not chargeable to duty of Central Excise - appeal allowed - decided in favor of appellant.

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• CST, VAT & Sales Tax

• 2017 (12) TMI 690

  Reassessment of tax - extended period of limitation - Section 29 (7) of the U.P. V.A.T. Act, 2008 - Change of opinion - Held that: - there is no quarrel with the proposition that the reassessment proceedings may be initiated and reassessment order may be passed only after the assessing officer has recorded his 'reason to believe' that any turn over has escaped assessment. The objection of the State in the present case appears to be that the stage of applying the aforesaid principle has not arisen inasmuch as at present, neither the Additional Commissioner had granted the sanction to the petitioner's assessing authority to initiate assessment proceedings in the extended period of limitation nor the assessing authority has yet issued any notice to initiate reassessment proceedings.

  The objection raised by the petitioner assumes significance inasmuch as the said issue was admittedly extensively and squarely dealt with by the assessing officer in the original assessment order dated 19.12.2013 - To allow the revenue to obtain sanction in absence of any 'reason to believe' (as to escapement to tax of any turn over), would be to allow the revenue authorities to find new way to harass the assessee.

  Petition allowed - decided in favor of petitioner.

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• 2017 (12) TMI 689

  Re-opening of assessment - TNGST Act and CST Act - sale of tea - auction sale - exemption towards sales to exporters through auctioneers at Coonoor and Coimbatore auction centers - certificates as per the notification in CTRE/214(d)82-G.O.Ms No.876-CTRE dated 29.07.1982 - Form H - Held that: - A dealer who is effecting sales to merchant exporters for the purpose of export is required to produce a copy of the foreign order; the order should be placed on the local customer specifically to meet the earlier export obligation; and the very same goods should be exported. If the three obligations are fulfilled, the assessee is entitled for exemption on export of sales under Section 5(3) of the CST Act.

  So far as the goods of tea is concerned, which is sold at the public auction for export, the dealers found it difficult to fulfill the three conditions and hence, the Tea Planters' Association of Tamil Nadu submitted their representations dated 31.10.1981 and 02.11.1981, praying for grant of exemption by the State of Tamil Nadu in respect of tea which is sold in public auction for export. The Government considered the same and by G.O.No.876 dated 29.07.1982, decided to exempt the sale of tea at auction centers of Coonoor and Coimbatore for export from liability to tax by notification issued under Section 17 of the TNGST Act and the exemption was subject to the condition that the tea purchased at the auction center is exported within six months from the date of auction and the proof of export is also produced.

  Whether the first respondent was justified in proposing to re-open the assessment on the ground that the petitioner has not produced the declaration form as stipulated in G.O.No.876 dated 29.07.1982? - Held that: - From the certificate, it is seen that all the tea brokers have been registered under the provisions of the TNGST Act and have been assigned registration numbers. Thus, if the impugned assessment orders are allowed to be re-opened for the reasons stated by the first respondent in the impugned notice, it would virtually obliterate the benefit of exemption granted by the Government to promote the tea industry to ensure that the rates offered are competitive. The assessments were completed by the assessing officer stating that the petitioners have produced certificates from the tea brokers, who were registered dealers and tea has been sold in auction centers and tax sufference have been proved and exemption is allowed. Thus, the production of certificates as per the notification dated 29.07.1982, would be required only in cases where the tea brokers are not registered - One more error committed by the first respondent is to issue an identical notice in respect of the assessment year 2000-01 under the provisions of the CST Act, wherein Form H declaration has been produced, which has been specifically recorded by the assessing officer while completing the assessment vide order dated 01.03.2002.

  The reason given in the impugned notices is not tenable and there is no justification on the part of the first respondent in re-opening the assessments - petition allowed - decided in favor of petitioner.

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• 2017 (12) TMI 688

  Rectification of assessment order - TNGST Act - whether the respondent was justified in rejecting the application for rectification on the ground that there is no mistake, which is apparent on the face of the record warranting rectification under Section 55 of the TNGST Act, 1959? - Held that: - the legal position being that if the Supreme Court or the High Court pronounces the true position of law, any decision rendered by any other authority contrary to that is required to be regarded as an error which is apparent on the record - the assessing officer has given certain reasons in the assessment order to state that as to how the petitioner is not entitled for sale against Form XVII declaration and it is not a case where defective Form XVII declaration has been filed. Therefore, the presumption, which was drawn against the petitioner should be discharged by the petitioner by producing necessary documents and records before the concerned authority and not before this Court.

  There is no error to be rectified - petition dismissed - decided against petitioner.

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