TMI Tax Updates - e-Newsletter
June 28, 2017
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Highlights / Catch Notes
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Income Tax:
Penalty u/s 271(1)(b) - non compliance to notice 142(1) - It is evident that date of service of the statutory notice in question issued u/s 142(1), has not been established by the ld DR. Its date of service is also not mentioned in the penalty order and assessment order passed by the AO - no penalty.
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Income Tax:
Since assessee’s incomes were accepted u/s 44AF, after due examination of assessee’s cash deposits in the first assessment completed u/s. 143(3) r.w.s. 148 vide order dt. 09-02-2009, the addition made in the second assessment order is not sustainable.
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Customs:
Import of one aircraft engine - Exemption from Customs duty and CVD - The lease for aircraft has already been terminated. There is no way the aircraft can be considered as used for operating scheduled air transport service - exemption rightly denied.
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Customs:
Misdeclaration of imported goods - imported Pregnancy (HCQ) Test Strip and Pregnancy (HCQ) Test Cassettee - Appellant made attempt to be enriched at the cost of Revenue making deliberate misdeclaration. That made the goods liable to confiscation being smuggled goods.
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Corporate Law:
Conversion from public to private - alteration of articles - the conversion from public to private is in the interest of the Company which is being made with a view to comply efficiently with the provisions of Companies Act, 2013 causing no prejudice either to the members or to the creditors of the Petitioner. Therefore, the conversion is hereby allowed.
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Service Tax:
Refund claim - N/N. 41/2007-ST - when the appellant availed services provided by others, in the port or other specified services and produced the evidence of payment of service tax to such provider, the claim cannot be rejected on the ground of non-submission of proof of payment of service tax by the service provider to the Government.
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Service Tax:
Determination of consideration for taxable services - amount debited to the books of accounts - The admitted facts are that the appellant is a branch project office of the Japanese company and not an associated enterprise of the Japanese company. The above said explanation will cover only transactions between associated enterprises as clarified by the Board.
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Service Tax:
CBEC vide their Circular dated 12.3.2007 clarifies to the effect that IUC will not be liable to pay service tax under the category of telephone services since it is not a charge recovered by the telegraph authorities for providing of telecommunication services to the subscriber. This clearly takes the IUC outside the service tax levy as far as telephone service is concerned.
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Central Excise:
Area based exemption - The conditions do have specific legal implication and by no means be considered as a simple procedural requirement, infringement of which is condonable - the conditions inserted in Notification No. 50/2003-CE are mandatory and cannot be held as mere procedural requirement
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Central Excise:
CENVAT credit - the availment of CENVAT credit on bus service and recovery of the service charges from the employee were not disclosed to the department by the appellant, therefore there is a clear suppression of fact on this count.
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Central Excise:
The parts of the Non-conventional Energy Devices/Systems would be eligible for full exemption from duty under this notification only when such parts are used within the factory in which the same have been manufactured for manufacture of non-conventional energy producing systems.
Articles
Notifications
Circulars / Instructions / Orders
News
Case Laws:
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Income Tax
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2017 (6) TMI 1050
Penalty u/s 271(1)(c) - disallowance of loss - Held that:- The loss on Information Service Division was subsequently allowed by the Assessing Officer in the consequential orders. Therefore, the major amount itself does not call for penalty. The balance three amounts are bona fide claims. The same has been appreciated by the CIT(A) and the Tribunal after considering the entire material on record. In the facts of the present case, the Tribunal has rightly relied on the judgment in the case of Commissioner of Income Tax Vs. Reliance Petro Products (P) Ltd., (2010 (3) TMI 80 - SUPREME COURT). No substantial questions of law arise.
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2017 (6) TMI 1049
Addition made u/s 69B - comparable prevailing rates of the properties of the same locality and the valuation report of the said property obtained from the DVO as per Section 55A ignored by Tribunal deleting the addition - Held that:- As observed by the Tribunal that the comparable sales instances produced on record are of commercial properties and the property in question is a residential flat. The explanation given by the assessee has been considered by the Tribunal. The assessee has given explanation that after 1981, the said property was lying vacant, the property was ill-reputed inasmuch as the Municipal Corporation had issued notice under Section 52 of the MRTP Act for illegal possession. The agreement of sale is also produced on record. The initial burden is upon the Revenue. The explanation given by the assessee is required to be considered objectively. The Tribunal has also held that the explanation given by the assessee is a plausible explanation. Tribunal has arrived at a reasonable and plausible conclusion. No substantial question of law arises.
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2017 (6) TMI 1048
Non grant approval u/s. 10(23C)(vi) - Tribunal directing the CIT(E) to grant approval - Held that:- Trust has been in existence since long and is engaged exclusively in the activities of education purposes. The Commissioner was not correct in holding that the Trust had not satisfied the condition of section 10(23C)(vi) of the Act. Even if the requirement that Trust must exist solely for educational purpose and not for purposes of profit is to be strictly complied, in the present case, the trust deed provided sufficient safeguard in this regard. Clause (a) of the trust deed envisaged the object of the Trust to spread amongst people of Dharmaj education and to employ suitable means for the spread of intellectual, physical and moral education. Clause (b) pertains to collection of funds, to accept trust funds and to execute them for the accomplishment of the above mentioned aim. Clause (c) merely enable the Trust to manage any public institution of the village. This clause cannot be divorced from the earlier two clauses as to allow a freehand to the Trust to involve itself into management of any public institution irrespective of the fact whether it is engaged in education activity or not?. Tax Appeal is dismissed.
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2017 (6) TMI 1047
Entitlement for the deduction u/s 80IB(10) - whether the residential housing project executed by the assessee firm got completed within stipulated time? - whether the respondent assessee sold the TDR for commercial activity? - Held that:- Commencement Certificate has been given to the respondent assessee on 7th September, 2004 for residential project. The project was completed in Financial Year 200708 and received full occupancy on 2nd December, 2008 from the local Authority. The assessee had from the sale of flats declared profit of ₹ 15,47,18,442/for Assessment Year 200809 and the same has been assessed by the Assessing Officer and the necessary benefit has been given to the assessee. In the year under consideration, the profit declared is 3,53,34,185/from the sale of the said housing project. It has been observed that the conditions laid down under Section 80IB(10) of the Act has been complied with. It is observed that the Commencement Certificate was given before 31st March, 2005 i.e. prior to the amendment - Decided against revenue.
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2017 (6) TMI 1046
Dependent agent in India - Double Taxation Avoidance Agreement between India and the USA - permanent establishment in India - Held that:- Perusing the facts on record, the Tribunal and the Commissioner of Income Tax (Appeals) have correctly held that there is no creation of agency. The transaction between the respondent and M/s.Komali Inc. US is on 'Principal to Principal' basis. The transaction is at arm's length. Considering the said nature of transaction, it has been held that there is no creation of agency. The transaction is at arm's length. Merely, because some of the Directors are common that itself would not lead to irresistible conclusion of permanent establishment in India. Both the authorities on appreciation of facts on record have arrived at a plausible conclusion. No substantial question of law arises
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2017 (6) TMI 1045
Addition made under section 68 - the said bank account was not disclosed in assessee's return - family connection - Held that:- The total cash deposit in the said bank was ₹ 18,95,000/- and the explanation of assessee in respect of ₹ 4 lakhs cash deposit being out of withdrawals from his sole proprietary concern, has been accepted and no addition has been made in the hands of assessee. In case the bank account has not been disclosed by the assessee and that is the reason for making the addition, then the addition in the hands of assessee should have been made of ₹ 18,95,000/- and not ₹ 14,95,000/-. The authorities below have taken different stands in respect of cash deposit of ₹ 4 lakhs and cash deposit totaling ₹ 14,95,000/- and there is no merit in the stand of authorities below in this regard. Coming to the explanation filed by the assessee that his father agreed to sell his share of ancestral land to his brother for sum of ₹ 40 lakhs, against which sum of ₹ 6 lakhs was received in the preceding year and ₹ 14,95,000/- was received during the instant assessment year. The assessee has placed on record the copy of agreement to sell and the ‘Rock pavati’ issued by the father of assessee on different dates accepting the said cash. The said cash has also immediately been transferred to the bank account of father of assessee. Thus because of family connection between the persons transacting the said transaction, there is no merit in not accepting the plea of assessee and in making the aforesaid addition. Accordingly, AO directed to delete the addition - Decided in favour of assessee.
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2017 (6) TMI 1044
Rejection of CUP method adopted by the assessee as the MAM for the purpose of benchmarking its international transaction with AE - Held that:- In the present case, it is not the case of the assessee that the assessee has purchased all from its A.E. Being so, the ratio laid down by the case laws as relied upon by assessee have no application to the assessee’s case. Hence, we are of the opinion that the application of Berry Ratio is most appropriate method adopted by AO/TPO. DRP is justified and the same is confirmed. This ground of appeal of the assessee is rejected. Disallowing the provisions for warranty by AO/TRP/DRP - Held that:- If the provisions for warranty claimed by the assessee is based on the scientific basis it is to be allowed, provided if the assessee has reversed the excess provisions made in the subsequent assessment years. Accordingly, we remit the issue to the file of AO to examine whether the assessee following the same method of making provisions for warranty expenses and consistent basis year to year and reverse the excess provisions in the subsequent year Addition on delayed payments of Employees contribution to PF and ESI - payment before due date - Held that:- We are of the opinion that the grievance of the assessee pertaining to employee’s contribution towards PF & ESI before due date as prescribed under the Act is squarely covered by the judgment of jurisdictional High Court in the case of CIT v. MIs. Industrial Security & Intelligence India Pvt. Ltd. [2015 (7) TMI 1063 - MADRAS HIGH COURT]. In view of the above judgement of jurisdictional High Court, this ground raised by the assessee is allowed subject to verification by AO.
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2017 (6) TMI 1043
Addition made u/s 69A - assessee had made cash deposits in Axis Bank - Held that:- In the current year, the assessee had disclosed net agricultural income of ₹ 3,85,000/-. Even in the subsequent assessment year, a perusal of the return of income shows that the assessee had declared net agricultural income of ₹ 3,70,000/-. The payments made by M/s. A.N. Rubbers aggregating to ₹ 4,78,055/- match with the deposits made by the assessee in the Axis Bank. Since the assessee had disclosed net agricultural income of ₹ 3,85,000/- in the current AY which has not been disputed by the Assessing Officer, no hesitation to hold that the claim of the assessee that the deposits made on 09/04/2008, 18/10/2008, 06/11/2008, 09/12/2008 and 25/03/2009respectively has been properly explained. Hence delete the addition made amounting to ₹ 4,51,000/-. It is ordered accordingly. For the balance ₹ 10,05,000/- added u/s. 69A, it is claimed that the source of funds are deposits made out of withdrawals from the assessee’s OD account and the margin loan money received from District Industries Centre, Trivandrum. In the interest of justice and equity, one more opportunity needs to be granted to the assessee to explain the source of cash deposits with Axis Bank. Appeal of the assessee is partly allowed for statistical purposes.
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2017 (6) TMI 1042
Penalty u/s 271B - not getting the books of account audited as required U/s 44AB - Compulsory Tax Audit - Held that:- CIT(A) confirmed the penalty by relying on the decision of S.J. Agarwal & co. Vs. ITO (2007 (2) TMI 285 - ITAT PUNE ) wherein the assessee filed trading account and P&L account showing figures and decimals while in assessee’s case return was filed U/s 44AB of the Act and no trading and P&L account and balance sheet was filed. Further in the case of S.J. Agarwal & co. Vs. ITO (supra), the Assessing Officer gave a finding that the assessee was maintaining books of account, which were not got audited and in that case no penalty U/s 271A for not maintaining the books of account were levied. Thus, the case law relied by the ld CIT(A) is distinguishable on the facts itself. Therefore, the reliance of the ld. CIT(A) for sustaining the penalty is not justified. - Decided in favour of asessee.
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2017 (6) TMI 1041
Disallowance of assessee’s claim for credit of TDS - Held that:- It is no doubt true that the condition stipulated in Rule, i.e. 37BA(2) for claiming credit for TDS in the hands of the person other than the deductee is to avoid allowing double credit for TDS amount as rightly contended by the ld. D.R. However, as submitted by the assessee in this regard, the concerned proprietor Shri Soumendu Porel has not claimed credit for TDS amount in question nor the same has been allowed to him even by the Department. He has submitted that this mater can be verified by the Assessing Officer to ensure that there is no double crtedit allowed for the TDS amount in question and if it is found on such verification that no credit is allowed for the TDS in the hands of the proprietor/individual, the claim of the assessee for credit of such TDS may be allowed. I find merit in this contention of the assessee and since the ld. D.R. has also not raised any objection in this regard, set aside the impugned order of the ld. CIT(Appeals) and restore the matter to the file of the Assessing Officer for deciding the same afresh after necessary verification. Appeal of the assessee allowed for statistical purposes.
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2017 (6) TMI 1040
Determination of Net profit rate of 8% on gross contract receipt - Held that:- AO has neither pointed out any specific deficiency, in the purchase invoices or the expense invoices, nor discussed any comparable case on identical facts, to form the basis for application of a particular net profit rate on gross total receipts, in the case of the assessee. On perusal of the comparative ‘Net Profit Chart’ of the assesses’s past history on profit rate, as above, it is evident that the Net Profit Rate before interest paid to partners capital is reasonably declared at 3.54% as against 3.3 % and 3.8% of the previous years. However, after interest paid to partners capital, it is reduced to below 1% as compared to 1.18% and 1.6% from the earlier assessment years as above. The profit rate applied by Authorities below at 8% is too much on the higher side and is unreasonable. Following the order in the case of M/s Om construction Company [2014 (5) TMI 1026 - ITAT AGRA] on identical facts, we find it just, fair and reasonable to estimate the income of the assessee at the Net Profit rate of 4% of the gross total receipts before salary and interest to the partners of the firm, for the year under appeal. - Decided in favour of assessee partly. Addition on account of current liabilities and provisions, being creditors for goods - Held that:- As the books of account of the assessee are rejected by the assessing Authority in which case the same books of account could not be relied on for an addition on account of trade creditors. See CIT vs. Bahubali Neminath Muttin [2017 (1) TMI 820 - KARNATAKA HIGH COURT ] - Decided in favour of assessee.
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2017 (6) TMI 1039
Penalty u/s 271(1)(b) - non compliance to notice 142(1) - Held that:- The instant case does not fall in the arena of deliberate or wilful defiance by not appearing before the AO on the specified date. Nothing has been brought on record by the lower Authorities to show that the instant case is an attempt of deliberate defiance on the part of the assessee. In fact, the assessment having been completed u/s 143(3) as the assessee appeared from time to time and filed written submission and details in compliance to said notice 142(1), means that not only the subsequent compliance in the assessment proceedings was considered as good compliance, but the very charge of non-compliance to the statutory notices was itself conceded. It is seen that ld CIT (A) has rejected the submission of the assessee on mere presumptions and surmises, without support of any specific documentary evidence and legal precedent. See Akhil Bhartiya Prathmik Shikshak Sangh Bhawan Trust Vs. ACIT [2007 (8) TMI 386 - ITAT DELHI-G ] It is evident that date of service of the statutory notice in question issued u/s 142(1), has not been established by the ld DR. Its date of service is also not mentioned in the penalty order and assessment order passed by the AO and the appellate order being passed by the CIT (A). - Decided in favour of assessee.
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2017 (6) TMI 1038
Disallowance of deduction claimed u/s 80IB(11C) - non filing of return of income on or before the due date u/s 139(1) - Held that:- The assessee has filed return on 1.3.2012. The assessee stated that the delay in filing the return of income is attributable to reconciliation of turnover quantified during the course of survey, which is having nexus with impounded material found during the course of survey, because of this, there was a delay in filing return of income within the due date specified u/s 139(1) of the Act, which is beyond its control. We find that the reasons given by the assessee for not filing return of income within the due date is neither intentional nor avoiding filing return, which is evident from the fact that the assessee has filed return within the due date specified u/s 139(4) of the Act. Deduction u/s 80IB(11C) is a beneficial provision, which entitles tax payers deduction towards profit derived from the hospital set up in a specified area to boost the economic activity of the locality. Therefore, deduction cannot be denied merely on the ground that the assessee has not filed the return within the due date u/s 139(1)inspite the assessee has explained the reasons for not filing the return. Considering the facts and circumstances of this case and also respectfully following the decision in case of CIT Vs. M/s. S. Venkatesh [2013 (6) TMI 715 - ANDHRA PRADESH HIGH COURT] we are of the view that the assessee cannot be denied deduction u/s 80IB(11C) on technical issues when the assessee is otherwise entitled for deduction. - Decided in favour of assessee.
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2017 (6) TMI 1037
Revision u/s 263 - cash payments u/s 40A(3) addition - Held that:- There is no merit in the findings of the CIT, for the reason that during the assessment proceedings, the A.O. has verified cash payments with reference to books of accounts and bank statement filed by the assessee and disallowed certain cash payments u/s 40A(3). CIT failed to point out specific defects in the books of accounts and did not make out even a prima facie case of any prejudice caused to the interest of the revenue. The CIT, merely on suspicious grounds directed the A.O. to disallow certain payments on the pretext of banking transaction tax debited by the bank in the statement. On perusal of the bank statement filed by the assessee, we find that on the date mentioned by the CIT in his order, there is no cash payments or bearer/cash cheques payments towards purchase of land. Therefore,the assessment order passed by the A.O. is neither erroneous nor prejudicial to the interest of the revenue. Hence, we set aside the order passed by the CIT, u/s 263 and restore the assessment order passed by the A.O. u/s 143(3) of the Act. - Decided in favour of assessee.
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2017 (6) TMI 1036
Reopening of assessment - addition of peak credit - Held that:- Since in the first assessment order completed u/s. 147, the source of deposits having been examined, on the very same issue the second officer is precluded in reviewing the same and making the addition in a different manner. In view of that, the addition of peak credit in the bank account cannot be sustained. Not only that, assessee has already offered higher income estimating the income at 5% u/s 44AF. The deposits in bank account were within the turnover disclosed by assessee. Therefore, it cannot be stated that the deposits in the bank account are not unaccounted amounts. Since assessee’s incomes were accepted u/s 44AF, after due examination of assessee’s cash deposits in the first assessment completed u/s. 143(3) r.w.s. 148 vide order dt. 09-02-2009, the addition made in the second assessment order is not sustainable.
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2017 (6) TMI 1035
Validity of re-assessment order - no notice u/s 143(2) have been issued and served upon assessee subsequent to the filing of the return accepted by AO - Held that:- Since the assessee did not file valid return of income within the stipulated period as directed in the notice under section 148, therefore, there is no question of issuing any notice under section 143(2) of Income Tax Act to the assessee. The proviso to Section 143(2) deals with the period of service of notice from the end of the month in which the return is furnished. Since no valid return is filed, therefore, there is no question of compliance of proviso to Section 143(2) of the Act. The assessee filed return of income belatedly at the fag end of completion of re assessment proceedings on 13.02.2013. Therefore, there is no question of service of notice upon assessee under section 143(2) of the Act when assessment was completed in March,2013 itself. - Deided against assessee. Addition u/s 69 - proof of agricultural income - Held that:- Assessee has been able to prove earning of genuine agriculture income which were only source of income for assessee which have been deposited in the bank account of the assessee. Therefore, there was no justification to make the addition of ₹ 8,71,000/- against the assessee on account of peak of investment in the bank account. In this view of the matter, set aside the orders of authorities below and delete the addition. This ground of appeal of the assessee is allowed. Addition as bank interest on bank deposit - This income is not shown in the return of income despite assessee earned it during the year under consideration - Held that:- As we have deleted the substantial addition of ₹ 8,71,000/- therefore, no taxable income is left for consideration. Accordingly, the addition made by Assessing Officer of ₹ 2990/- is confirmed in principle. However, since no taxable income is left, therefore, Assessing Officer will not make it taxable in the computation of income because the addition would be below taxable income. This ground is accordingly, disposed off in terms above.
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2017 (6) TMI 1034
Addition as income from undisclosed sources instead of agricultural income - Held that:- A Khasra Girdawari is the primary document evidencing cultivation of agricultural crops, or absence thereof over land. If such documentary evidence is produced, non-consideration thereof would result in an order passed as a result of non-reading of such material documentary evidence, rendering the order unsustainable in law. Therefore, in the interest of justice, we deem it appropriate to remit this matter to the file of the AO, to be decided afresh in accordance with law on taking into consideration these Khasra Girdawaries, provided the assessee files before him the original certified copies thereof in the vernacular along with the English translation copies filed before us. The assessee shall be afforded adequate opportunity of hearing to support his case and, no doubt, the assessee shall cooperate in the fresh proceedings before AO. All pleas available to the assessee under the law shall remain so available to him. - Decided in favour of assessee for statistical purposes.
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2017 (6) TMI 1033
Incorrect estimation of profit - Held that:- The argument that estimated profits should be considered for the whole of the contract cannot be accepted and accordingly, the order of the AO and CIT(A) on this issue are approved. Computing the percentage of work sub-contracted by assessee - Held that:- During the year, on standalone basis, the subcontract works of assessee out of the total cost of contract comes to 95.21%. There is no dispute on that, as AO also accepts that statement working out the ratios. However, what AO has done is taking the total sub-contract works over a period of five year contract which comes to ₹ 88.27%. Since the estimation is only pertaining to the year under consideration, the AO should have determined the sub-contract receipts pertaining to this year only on standalone basis, instead of the whole contract period. As assessee’s contention of estimating the profits for the whole contract and adjusting the profits declared in other years is not accepted the contention that the sub-contract percentage should be worked out on standalone basis on the receipts of this year alone has to be accepted. Therefore, modifying the order of AO, the profit should be estimated on receipts during the year- at 95.21% of the receipts at 5% being sub-contracted work and balance at 8% being contract work on own basis. Non-granting of credit of taxes paid - Held that:- It was the contention that AO has erred in not granting the credit of taxes of ₹ 21,30,490/- being refund granted to assessee in AY. 2005-06, which has been adjusted against the tax demand of AY. 2004-05. This contention requires examination by the AO of the record for AY. 2004-05 and 2005-06. In case, such refund was already granted to assessee and adjusted to the demand in this year, necessary credit should be given. AO is directed to examine the record and do accordingly after giving due opportunity to assessee.
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2017 (6) TMI 1032
N.P. determination - the defects pointed out for invoking the provisions of section 145(3) are in respect to the job work only and no doubts were created in respect to sales made. - Held that:- The assessee has carried out sales activity which has been shown and reflected separately in the profit/loss account as an independent stream of purchase and sale activity and corresponding revenues have been offered as sales receipts. Regarding the observations of the ld CIT(A) that the expenses relating to the business of supply of material (relating to sales) and contract receipts cannot be bifurcated and the expenses relating to job work expenses and labour charges would pertain to both the revenue streams, the ld AR has submitted that the said observation of the ld CIT(A) is not correct as the same is not arising out of facts on record. Thus the estimation of net profit of 7% should be restricted to the contract activity only. At the same time, given that there are no segmental profit/loss account in respect of contract activity and trading activity available on record, the matter is set-aside to the file of the AO to apply net profit rate of 7% in respect of contract activity only after examining the segmental profit/loss account.
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2017 (6) TMI 1031
Disallowance of deduction claimed 80-IB(10) in respect of ‘Guru Shikhar’ Housing Project -non-fulfilment of the conditions specified in section 80IB(10)(a)(iii), (e) & (f) by assessee - Held that:- As decided in earlier AYs wherein held that as the assessee has itself reached out to the JDA which establishes beyond any doubt that the project area falls within the jurisdiction and the authority of JDA and it is JDA which is to approve the building plan and issuance of the completion certificate. In light of above, we are of the considered view that housing project falls with the Jaipur region and the JDA is the approving authority for development and construction of the housing projects and it shall be the local authority for the purposes of claim of deduction under Section 80IB(10) of the Act. Also as the construction has been completed and completion certificate has been issued by JDA in respect of block H & I. Accordingly, the assessee shall be eligible to claim proportionate deduction u/s 80IB(10) in respect of Block H & I. And the matter require to be setaside to the file of AO for fresh examination so that all relevant facts and documents are brought on record to determine the actual date of completion of blocks A to G
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Customs
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2017 (6) TMI 1016
Non-speaking order - case of petitioner is that petitioner, essentially, uses the Ethernet Switches, which are, in effect, non-carrier Ethernet Switches or Enterprise Switches, within a defined area, such as, a campus or a building. The carrier Ethernet Switch, on the other hand, are used over a dispersed geographical areas. These are switches, which are used by service providers, such as BSNL, Airtel and Vodafone. The petitioner, therefore, clearly falls within the ambit of the exemption notification dated 01.03.2005 - whether or not, respondent Nos.1 and 2 are required to pass speaking orders, with respect to BEs, filed by the petitioner, at the time of seeking clearance of the subject goods? Held that: - the petitioner has cleared goods via seven (7) BEs. In six (6) BEs, the goods are described as 'network switches', while in the seventh (7th) BE, i.e., BE No.2968893 dated 19.10.2015, the goods are described as "Enterprise Ethernet Switch". - In respect of all BEs, save and except BE No.2968893 dated 19.10.2015, the petitioner had paid duty under protest, which has been registered with the concerned authority. As a matter of fact, each of the letters of protest, which is on record, bears a stamp, to that effect. Only if, the petitioner's assessment was doubted, verification, examination or testing of goods would have taken place and thereafter, perhaps, led to reassessment of duty. The respondents, thus, took the stand that, it is only when re-assessment of duty is carried out under sub-section (4) of Section 17 of the Act, and, it is contrary to self-assessment carried out by an importer or an exporter (as the case may be), with respect to valuation of goods, classification, exemption or concession of duty availed consequent to any notification that an obligation is cast on the respondents to pass a speaking order, under sub-section (5) of Section 17 of the Act within the defined period. Whether there was a duty cast on the "proper officer" to verify, examine or test the subject goods, in view of the protest registered by the petitioner? - Held that: - under sub-section (2) of Section 17 of the amended provision, it is incumbent on the part of the proper officer to verify the claim of the petitioner, in the light of the protest registered by him. In so far as BE No.2968893, dated 19.10.2015, was concerned, even though the BCD rate was mentioned as 'nil', the petitioner was not allowed to either clear the goods or, register a protest, in contrast to other BEs. The petitioner, in fact, paid duty at the very same rate and cleared the goods after executing a test bond - the proper officer took the view that duty was payable in respect of the goods cleared. This view was applied across all seven (7) BEs. The petitioner is right that the proper officer is duty bound to pass a speaking order in terms of sub-section (5) of Section 17 of the Act - petition allowed - decided in favor of petitioner.
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2017 (6) TMI 1015
Exemption from Customs duty and CVD - N/N. 12/2012-CUS dated 17/03/2012 and N/N. 12/2012-CUS dated 17/03/2012 - import of one aircraft engine - condition No. 21 (relevant to Sl. No. 454 in the table attached in the N/N. 12/2012-CUS) - Held that: - It is manifestly clear that the engine was brought into India only for the purpose of fitting into the aircraft, MSN 3089 and to take the aircraft out of India on termination of lease. The lease was terminated, prematurely, on 29/10/2012 by the appellant. To fly the aircraft out of India, the engine was found necessary and accordingly the import was made. In such factual matrix, we cannot accept the argument of the appellant that on the date of import of engine KFA could still be considered as authorized airline operator and the exemption available in terms of the above notification should be extended to them. As already noted that purpose of exemption is specific and categorical. The aircraft engine should have been for servicing, repair or maintenance of aircraft which is used for operating scheduled air transport service. In the present case the aircraft to which the engine was intended to be fitted is not to be used for operating scheduled air transport service. The lease for aircraft has already been terminated. There is no way the aircraft can be considered as used for operating scheduled air transport service - exemption rightly denied. N/N. 12/2012-CE dated 17/03/2012 - Sl. No. 448 of Notification 12/2012-CUS condition No. 73 - Held that: - the eligibility for exemption under Customs Notification 12/2012-CUS is relevant and applicable to claim exemption under the Central Excise notification. The aircraft to which the imported engine is intended to be fitted is not to be used in scheduled air transport service and the purpose of fitting the engine is, admittedly, to fly the aircraft out of India. Such operation is not covered by the scope of exemption as discussed, at length by the Original Authority and examined by us in terms of above discussion. As such, we are in agreement with the Original Authority regarding denial of exemption to the imported aircraft engine. Confiscation - Section 111 (o) - Held that: - it is an admitted fact that the aircraft engine never left the customs warehouses or cleared for home consumption for any other reason. The engine was intended to be fitted in an aircraft to be flown out of India as the lease agreement for the aircraft has already been terminated. In such situation, we find there is no scope to apply the provisions of Section 111 (o) for confiscation of the engine. There is no concessional import with condition and there is no violation of such condition attracting provisions of 111 (o) - confiscation of the imported engine is not legally sustainable. Time limitation - Held that: - show cause notice was issued on 28/11/2013. The said notice was issued within one year of the assessment - demand not time barred. Penalty - Section 112 (a) of the Customs Act, 1962 - Held that: - The denial of exemption to the engine was mainly on the basis that KFA was no more a scheduled airline operator at the time of import and in any case, the engine was not imported for repair and maintenance of aircraft for scheduled airline operation the import is mainly to take the aircraft out of country. The appellants came into the picture later when the engine was detained for recovery of service tax arrears and also relating to proper maintenance and upkeep of the engine. The appellant had interest in the said engine as a owner. In such situation, we find no justifiable reason for imposition of penalty on the appellant - penalty set aside. Duty Drawback - Held that: - the appellants prayed for granting of drawback of 98% of the Customs duty paid as imported aircraft engine was in fact taken out of country after being fitted into the aircraft. We note that the impugned order and the present appellate proceedings are not with reference to export of the said engine or eligibility or otherwise for drawback on such export. As such, we cannot take up the plea of the appellant in the rpesent proceedings. Denial of exemption on the imported aircraft engine upheld - confiscation and penalty not sustained - appeal allowed - decided partly in favor of appellant.
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2017 (6) TMI 1014
Natural justice - request for re-testing of samples - Held that: - the impugned order of Commissioner (Appeals) is a reasoned order and implementation of the said order will not cause any injustice to Revenue - stay applications rejected.
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2017 (6) TMI 1013
Conversion of shipping bills - free shipping bills into DEPB shipping bills - Held that: - the goods in question were exported by the appellant and same were sealed at the factory in the presence of jurisdictional Central Excise authorities and duly certified by the said authorities - the condition of receipt of foreign inward remittance certificate in respect of payment in support of exportation of goods has also not been disputed by the jurisdictional Commissioner of Customs - in terms of Circular dated 16.1.2004, he should have examined the case on merits and thereafter to order conversion of free shipping bills into draw back shipping bills (All Industry Rates). Since power conferred in Circular No.4/2004 has not been exercised by the Commissioneris, the matter should go back to the Commissioner of Customs for re-consideration of the request of appellant for conversion of free shipping bills into draw back shipping bills (All Industry Rates) - appeal allowed by way of remand.
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2017 (6) TMI 1012
Customs House Agent - penalty - Held that: - Investigation proved its case very successfully when the origin and termination of the goods were traced. Learned adjudicating authority has also brought out from the oral evidence of the appellant that based on the instructions of the proprietor of MPC, goods came to his godown and that was delivered from the warehouse where that was stored. There is no scope to intervene with the order of adjudication in view of the aforesaid materials, evidence surfaced when that remained unrebutted - penalty upheld - appeal dismissed - decided against appellant.
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2017 (6) TMI 1011
Import of prohibited goods - gun cartridges - Revenue is of the view that the goods imported were not covered by the import license and hence these were to be considered as prohibited goods - Held that: - similar issue decided in the case of CC (I&G) , New Delhi Versus M/s Nanda Shastralaya [2017 (4) TMI 633 - CESTAT NEW DELHI], where it was held that the controversy can be decided by getting a sample of the imported cartridges with 7.65 bore goods examined and certified by a competent authority such as the Armourer of the Police Department - in the present case also, matter remanded with similar directions to the original adjudicating authority to get the samples of the imported cartridges tested and get the expert opinion regarding the impugned goods - appeal allowed by way of remand.
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2017 (6) TMI 1010
Joint and several basis demand - failure to fulfill export obligation - Exemption under N/N. 49/2000-Cus dated 27/04/2000 - the department has issued a show-cause notice alleging that the appellants have not fulfilled the export obligation inasmuch as the car imported under EPCG was not used for earning foreign exchange, no log book was maintained - Held that: - This Tribunal has consistently held in various judgements that any demand of duty cannot be confirmed against various persons on jointly and severally basis - the matter needs to be remanded to the original adjudicating authority to decide against whom the demand can be made - appeal allowed by way of remand.
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2017 (6) TMI 1009
Valuation - additional duty of customs - N/N. 49/08-CE (NT) dated 24.12.2008 - The value for additional duty is to be arrived at based on retail sale price of the goods after allowing abatements or otherwise? - Held that: - the examination of legal provisions especially the provisions of Section 4 A and the scope of RSP as defined in the said Section as well as the application of the provisions of the Standards of Weighs and Measures (PC) Rules, 1977 have not been done in detail. More specifically for application of the facts of the present case. While the rejection of RSP declared by the appellant is prima-facie supported by the evidences as recorded by the ld. Authority to arrive at the correct RSP, the reasoning has to be recorded - matter requires re-consideration - appeal allowed by way of remand.
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2017 (6) TMI 1008
Jurisdiction - power of Tribunal to entertain an appeal - whether, the Tribunal has the power to entertain the appeal against the order passed by the Commissioner (Appeals) against the demand of draw back claimed by the exporter? - Held that: - order passed by the Commissioner (Appeals) under section 128 with regard to payment of draw back will not lie before the Tribunal and the Tribunal is not empowered to decide such issues decided in the order of Commissioner (Appeals). Whether matter involving both draw back as well as classification decided by the Commissioner (Appeals), can be appealed against before the Tribunal? - Held that: - in the case of CCE Rohtak vs. Jindal stainless Ltd. [2013 (1) TMI 611 - CESTAT NEW DELHI] has held that the appeal involved mixed question of fact/ law of both draw back as well as classification and thus, appeal cannot be maintainable before the Tribunal. Appeal dismissed - decided against appellant.
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2017 (6) TMI 1007
Misdeclaration of imported goods - imported Pregnancy (HCQ) Test Strip and Pregnancy (HCQ) Test Cassettee - benefit of N/N. 21/2002-Cus. dated 1.3.2002 - Held that: - When no evidence was led by appellant to claim the exemption, that established deliberate misdeclaration to Customs. Customs proved its case against the appellant. Appellant made attempt to be enriched at the cost of Revenue making deliberate misdeclaration. That made the goods liable to confiscation being smuggled goods under section 2(39) read with section 2(33) of the Customs Act, 1962. Questionable conduct and oblique motive of the appellant contributed to its implication to the charge. When fraud surfaces, that unravels all - Revenue’s stand is fortified from the Apex Court judgment in the case of UOI v. Jain Shudh Vanaspati Ltd. [1996 (8) TMI 108 - SUPREME COURT OF INDIA]. Appeal dismissed - decided against appellant.
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Corporate Laws
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2017 (6) TMI 1004
Conversion from public to private - alteration of articles - Held that:- The Petitioner has given the “Undertaking” that no prejudice is going to be caused to any of the member from the Creditors if the conversion is sanctioned. The Petitioner has stated that there are only 11 Sundry Creditors as on 15th February, 2017 who have “No Objection” if the conversion is allowed. Public Notice by advertising in Newspapers viz. “Loksatta” and “Financial Express” was published on 13th April, 2017, relevant evidence is placed on record The Petitioner has complied with provisions of Section 14 to be read with Rule 68 of NCLT Rules, 2016. Therefore, having regard to all the circumstances, the conversion from public to private is in the interest of the Company which is being made with a view to comply efficiently with the provisions of Companies Act, 2013 causing no prejudice either to the members or to the creditors of the Petitioner. Therefore, the conversion is hereby allowed. The Petitioner is hereby directed to give effect of the conversion by requisite alteration in its Articles which is hereby addressed and communicate the altered Articles within a period of 15 days to the Registrar.
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Service Tax
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2017 (6) TMI 1030
Refund claim - N/N. 41/2007-ST dated 6.10.2007 - documentation charges - terminal handling charges - bill of lading charges, etc. - denial on the ground that the services are not port service - Held that: - as long as the said services were availed by the exporter/appellant in the course of export of goods, within the port premises and they have suffered the service tax, the claim has to be entertained for sanction - It is repeatedly decided by this Tribunal that the classification of service or the category under which the provider of service paid the tax to the Government, should not be the basis for rejection of refund claim filed by the appellant as long as the services have been received by them in connection with the export of goods in the port - in Western Agencies Pvt. Ltd. [2011 (3) TMI 528 - CESTAT, CHENNAI (LB)], the Tribunal observed that the services provided, in any manner, directly or indirectly by a port or other port, bring such services to the fold of port services for taxation under the category of port services. Denial of refund also on the ground that the appellants did not submit proof of payment of service tax to the Government - Held that: - when the appellant availed services provided by others, in the port or other specified services and produced the evidence of payment of service tax to such provider, the claim cannot be rejected on the ground of non- submission of proof of payment of service tax by the service provider to the Government. Refund claim - GTA service - denial on the ground of non- submission of proper invoice or proof of deposit of service tax - Held that: - When the provider of service charged service tax from the appellant on transport of goods by road and evidence by way of invoice has been issued, the same should be considered by the sanctioning authority - matter on remand. Refund claim - technical testing services - denial on the ground that the written agreement was not submitted by the appellant to justify such testing - Held that: - The appellants exported edible product and it is mandatorily required to export the product in a container in a hygienic condition. The Board vide circular dated 11.02.2008 clarified that refund on testing services may be allowed without any copy of agreement with a buyer of goods, if such testing and analysis is statutorily stipulated by domestic rules and regulations. This aspect requires re-examination by the Original Authority. In many cases the claim was denied on the general ground that the documents are not proper or conditions of notification were not fulfilled. On perusal of the detailed submissions made by the appellant, it is clear that all the supporting evidences and the clarifications submitted by the appellant have not been duly taken into consideration before rejecting their claims. Appeal allowed by way of remand.
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2017 (6) TMI 1029
Refund claim - N/N. 9/2009-ST dated 3.3.2009, as amended, by N/N. 15/2009-ST dated 20.05.2009 - case of Revenue is that it is for the appellant to establish that they did receive the approved services in relation to the operation by them as co-developers inside the SEZ - Held that: - the terms of the agreement and other documents like invoices will indicate the nature of service received by the appellant and then, the correct classification of such taxable service can be ascertained from the same. We note that as long as it is satisfied that the appellant have discharged service tax and the services received by them are falling under overall categories of approved services, the refund claim should be considered for sanction. Adequate documentary support has been placed before us to support the claim of the appellant that they did discharge the service tax on the services received. Extended period of limitation - Held that: - when the original claim was filed in time, as recorded by the Original Authority, the same should be considered for verification and sanction - extended period not invoked. The matter is remanded back to the Original Authority for examining the refund claims for sanction - appeal allowed by way of remand.
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2017 (6) TMI 1028
Manpower supply service - deployment of employees by the Japanese Company to their project office in India - whether or not the appellants are liable to pay service tax as a recipient of taxable service in terms of Section 66A? - Held that: - the appellants are an establishment in India and the provisions of Section 66A is made applicable to any permanent establishment in India. Section 66 A (2) Explanation – 1, clearly stipulates that a person carrying on a business through a branch or agency in any country to be treated as having business establishment in that country. Admittedly, the appellants are a branch of Japanese company, undertaking the project work in India. As such, we hold that the appellants are covered by the provisions of Section 66A for any tax liability, on reverse charge basis, when such taxable services were received from outside India. The deputation of employees within the company cannot be considered as supply of manpower. Further, the Japanese company is not shown to have been engaged in the activity of manpower recruitment or supply services. In these factual situations, we find that the liability of the appellant on such tax entry cannot be held as legally sustainable. Determination of consideration for taxable services - amount debited to the books of accounts - Held that:- The transaction in the present case is not between two associated enterprises. There is nothing on the record to indicate that the branch project office in India can be considered as an associated enterprise of Japanese company. The admitted facts are that the appellant is a branch project office of the Japanese company and not an associated enterprise of the Japanese company. The above said explanation will cover only transactions between associated enterprises as clarified by the Board vide letter dated 29.02.2008. Appeal allowed - decided in favor of appellant.
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2017 (6) TMI 1027
Liability of interest - delayed payment of service tax - Held that: - there is delay in payment of service tax of ₹ 1,18,59,571/- - adjudicating authority must reconsider the issue of non imposition of penalty and interest commensurate to the amount of service tax of ₹ 99,00,373/- - appeal allowed by way of remand.
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2017 (6) TMI 1026
Liability of interest - delayed payment of service tax - Held that: - The total amount of service tax paid by the appellant on 30.03.2017 is ₹ 1,26,41,442/-. If this amount includes any demands pertaining to the services rendered to BALCO which stand set aside by the Tribunal vide its order dated 10.03.2017, there can be no demand of interest in terms of Section 75 inasmuch as the tax demand itself does not survive. However, for the rest of the amounts paid by the appellant beyond the period specified in the statute for making such service tax payment, the interest liability in terms of Section 75 is to be upheld - it is necessary to remand the matter to the adjudicating authority for purposes of verification and determining the quantum of service tax which has been paid with delay - appeal allowed by way of remand.
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2017 (6) TMI 1025
Business Support Service - appellant was providing interconnection link facility to various basic telephone service providers, infrastructure and space and was charging infrastructure charges, port charges, rent for space etc - Revenue was of the view that the appellant was liable to pay Service Tax on these charges with effect from 1.5.06 under the category of a new service Business Support Service under section 65(104c) - Held that: - such interconnected facility is not provided on its own by the appellant but is a mandatory direction to all the telecommunication companies so as to facilitate interconnection of various service providers. It is also to be noted that such charges have been recovered by the appellant from other basic telephone service providers and not telephone subscribers. CBEC vide their Circular dated 12.3.2007 clarifies to the effect that IUC will not be liable to pay service tax under the category of telephone services since it is not a charge recovered by the telegraph authorities for providing of telecommunication services to the subscriber. This clearly takes the IUC outside the service tax levy as far as telephone service is concerned. Appeal allowed - decided in favor of appellant.
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Central Excise
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2017 (6) TMI 1024
Area based exemption - N/N. 50/2003-CE dated 10/06/2003 as amended by N/N. 76/2003-CE dated 05/11/2003 - denial on the ground that appellant failed to comply with the condition of notification is as much the appellants started manufacturing the excisable goods from 15/06/2005 and effected first clearance on 17/06/2005. In terms of the said notification, they were required to file their option to avail exemption before affecting first clearance and such option shall be effective from the date of exercising the same. Held that: - the N/N. 50/2003-CE dated 10/06/2003 did not contain the conditions regarding exercising option in writing, when it was first issued. The said notification was amended on 05/11/2003 which brought in specifically three conditions for availing the notification - these are basic and substantial requirements to avail the exemption. These are specifically inserted after the issue of notification and clearly are intended to counter any misuse of the ‘area based exemption’ and also to make aware the jurisdictional officer about the exemption being availed by the assessee. These conditions do have specific legal implication and by no means be considered as a simple procedural requirement, infringement of which is condonable - the conditions inserted in Notification No. 50/2003-CE are mandatory and cannot be held as mere procedural requirement - appeal dismissed - decided against appellant.
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2017 (6) TMI 1023
Closure of proceedings - application of provisions of Section 11A(1A) of the Central Excise Act, 1944 as inserted by Taxation Laws (Amendment) Act, 2006 - Held that: - as the appellant did not make specific plea regarding the said legal provision no finding was recorded on this by the original authority. Considering the above admitted facts, we find it fit and proper to set aside the impugned order and remand the matter to the original authority to examine the legal provisions as inserted in 2006 in Section 11A - appeal allowed by way of remand.
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2017 (6) TMI 1022
Clandestine manufacture and removal - Held that: - When the appellants made categorical assertion regarding their production capacity, and submitted whatever records in their possession, it is for the Revenue to support the case of possible production in excess of accounted quantity by the appellant. The appellant will not be able to prove non-production, apart from stating that they have no capacity to produce such huge quantity. Power consumption - Held that: - no specific finding was recorded - general observation cannot be considered as analysis of evidence to support the case of clandestine manufacture and clearance. The two lotus note books formed important basis for allegation of clandestine manufacture. It is clear that the author of entries made in the note book was not identified - such basis cannot be relied upon to upheld demand. Quantification of demand - Held that: - it is not clear that what type of co-relation between accounted clearance and the proper records and also how the overall duty liability has been arrived at. No chart or calculation is given in the notice. We also perused photocopies of entries in the note books which were relied upon by the Revenue. It is not clear as to how the entries are co-related to arrive at tangible evidence regarding clandestine manufacture and clearance. On careful consideration of the impugned order and the various submissions made by the appellant, we conclude that the case of the Revenue is not supported by cogent, tangible and credible evidence, to support the allegation of unaccounted clearance. Appeal allowed - decided in favor of appellant.
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2017 (6) TMI 1021
Clandestine manufacture and removal - Gutkha - recovery - railway receipts formed the main basis for quantification of demand - Held that: - non-existence of basic, credible and cogent evidences in the case made by the Revenue - Many presumptions and inferences have been made by the adjudicating authority to arrive at his conclusion. The original authority found that the seizure of gutkha at various premises and railway stations without documents are clear-cut evidence of appellant indulging in calendestine removal. We find that while gutkha was seized in various places, the un-accounted clearance of such gutkha by the appellant has to be shown by supporting evidence. The seizure of gutkha in other places by itself will not establish un-accounted clearance. The case of the Revenue against the main appellant with reference to clandestine manufacture and clearance could not be sustained, for want of credible and cogent evidence - appeal allowed - decided in favor of appellant.
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2017 (6) TMI 1020
CENVAT credit - duty paying invoices - whether the credit of ₹ 11,08,694/- is admissible on debit notes issued by the service provider? - Held that: - all the necessary information which are required to be appeared on the service tax paying document i.e. invoice, challan etc. are clearly mentioned in the debit notes, therefore except the title of the document there is no difference between the details supposed to be appeared in the invoice and the details which actually appearing in the said debit notes. Therefore the credit on such debit notes cannot be denied - issue is covered by the decision in the case of Ad-Manum Packaging Pvt. Ltd. Versus Commissioner of C. Ex., Indore [2017 (4) TMI 209 - CESTAT NEW DELHI], where it was held that as long as such debit notes contained all requisite information as prescribed under Rule 9(1), these should be considered on par with invoices and, hence, credit cannot be denied - credit allowed. CENVAT credit - bus service for which the recovery was made from the employees - time limitation - Held that: - the availment of CENVAT credit on bus service and recovery of the service charges from the employee were not disclosed to the department by the appellant, therefore there is a clear suppression of fact on this count. Hence, the demand for extended period is correct, accordingly the demand of ₹ 1,26,385/- corresponding penalty and interest are upheld. Appeal allowed - decided partly in favor of appellant.
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2017 (6) TMI 1019
Penalty u/r 26b of CER, 2002 - job-work - Held that: - the penalty u/r 26 of the CER, 2002 can be imposed on a person who deals with the excisable goods liable for confiscation. We find from the impugned show cause notice that there was no proposal for confiscation of any goods. Therefore, it is clear that there were no goods, which were liable for confiscation. It is also clear that when the goods were not liable for confiscation, the appellant has not dealt with any goods which were liable for confiscation. Therefore. the appellant was not liable for imposition of penalty under Rule 26 of the Central Excise Rules 2002 - penalty set aside - appeal allowed - decided in favor of appellant.
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2017 (6) TMI 1018
Non-conventional Energy Devices/Systems - N/N. 6/02-CE dated 1.3.2002, Sl.N0.237 List 9(16) - whether the parts of the boilers of Biomass Energy Producing Systems being manufactured by the respondent are devices producing energy in terms of Sr. No. 16 of List 9? - whether the said parts, and which are not consumed within their factory but are used elsewhere in the factory of ISGEC, Yamunanagar, Haryana, would be eligible for exemption under N/N. 6/2002-C.E.? - Held that: - As the scope of entry against S. No. 237 non-conventional energy device/systems specified in List 9 is confined by what is mentioned in List 9, there is no scope for interpreting the word device in this entry so as to cover parts of non-conventional energy system within this entry. By no stretch of imagination, parts can be termed as a conversion device producing energy. Hence, these are not covered in Sr. No. 16 of List 9 of the notification. In List 9, since S. No. 21 cover parts, the parts of non-conventional energy systems would not be covered by S. Nos. 1 to 20 of the List 9. But S. No. 21 covers only those parts which are captively used in manufacture of complete conventional energy systems. Therefore, in our view, the parts of the Non-conventional Energy Devices/Systems would be eligible for full exemption from duty under this notification only when such parts are used within the factory in which the same have been manufactured for manufacture of non-conventional energy producing systems. As the appellant is neither manufacturing Biomass Energy Producing Device/System nor using the manufactured parts for manufacture of Biomass Device/System within the factory premises, they are not eligible for benefit of the notification. Since the demand of duty against the respondent is being upheld without extending the benefit of exemption, the impugned goods are no longer exempted goods. As a consequence thereof, the appellant will go out of the purview of the Rule 6(3) (b) of Cenvat Credit Rules, 2004 and the Cenvat Credit reversed by them @ 8% would no longer required to be reversed. Hence the same is required to be adjusted against the total demand of duty. Appeal allowed - decided in favor of appellant.
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2017 (6) TMI 1017
Restoration of appeal - SSI Exemption - CENVAT credit - It appeared to revenue that since appellant is availing CENVAT facility for colour Television sets they cannot opt for availment of N/N. 8/2002 for Black and White T.V. - Held that: - there is no clear finding by the original authority that CENVAT credit was availed in respect of inputs which were going into manufacture of Black and White T. V. So far as the assessment of Black and White T. V. is concern, there is no violation of conditions of N/N. 8/2002 - appeal allowed - decided in favor of appellant.
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CST, VAT & Sales Tax
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2017 (6) TMI 1006
Vires of Section 13(4)(e) - Form-F - whether the Rules framed u/s 13(4)(e) are directory or mandatory? - Held that: - There is no dispute that the State Government is empowered to frame the Rules thereunder. The Note also is in reiteration and only clarifies that the Form is to be furnished to the Assessing Authority in accordance with the Rules framed u/s 13(4)(e) of the Act. So the said Form will be required to be produced as may be required under the Rules framed by the State Government u/s 13(4)(e) of the Act - It is for the Authority to whom the appeal would be filed to consider whether the Rules framed u/s 13(4)(e) are directory or mandatory - petition dismissed - decided against petitioner.
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2017 (6) TMI 1005
Scope of Sale - Whether the tender of an import licenses called REP licenses/Exim Scrips by the holder thereof after discontinuance of Import Export Policy since 1.3.1992 to the branches of the State Bank of India designated for the purpose at the instance of Reserve Bank of India for forwarding to the offices of the Joint Chief Controller of Imports and Exports on certain amount of premium proportionate to balance of C.I.F. value constitute a sale of goods within the meaning and for the purpose of Bombay Sales Tax and whether the amount of premium is exigible to sales tax? - Held that: - the issue is no longer res-integra and is decided in the case of Commercial Tax Officer & Others Versus State Bank of India & Another [2016 (11) TMI 416 - SUPREME COURT], where it was held that When the RBI acquires and seeks the return of replenishment licences or Exim scrips with the intention to cancel and destroy them, the replenishment licences or Exim scrips would not be treated as marketable commodity purchased by the grantor - appeal dismissed - decided in favor of assessee.
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