TMI Tax Updates - e-Newsletter dated: August 27, 2018 - with Direct Tax, Indirect Tax and GST Updates and Updates on FTP, FEMA, IBC & Corporate Laws etc. published on TMI with Latest Case Laws

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TMI Tax Updates - e-Newsletter August 27, 2018 Case Laws in this Newsletter: GST Income Tax Customs Insolvency & Bankruptcy Service Tax Central Excise CST, VAT & Sales Tax Indian Laws Highlights / Catch Notes GST Release of detained vehicle with goods - e-way bill was not tendered for the goods in movement - The modus operandi adopted by the petitioner is to transport the goods without e-way bill and as and when he is caught and the Truck is detained, he will make payment of tax and get the Truck released. - HC refuses to grant any relief. Visit to Get Source Seeks to extend the due dates for filing FORM GSTR-3B for the months of July, 2018 and August, 2018 Visit to Get Source Income Tax Diallowance of expenses after estimation of profit u/s 144 - ITAT deleted the additions - It is not required for the AO to apply net profit at a particular rate while finalising the assessment u/s144 of the Act. Method for estimating the income in the previous year of the assessee on the basis of net profit at a particular rate cannot be applied for all subsequent years - Order of ITAT set aside. Visit to Get Source Reassessment of a case beyond 6 years - directions were issued u/s 150(1) - adequate opportunity of hearing to the concerned party was not given - The directions issued by the CIT (A) insofar as it records adverse findings, is hereby quashed. In case, the CIT(A) wishes to proceed against the petitioner, he shall do so provided he shall issue appropriate notice in that regard. Visit to Get Source Penalty u/s 271B - AO observed that, assessee had got prepared a bogus / fabricated audit report - assessee, in making submission, contradicts his earlier version that the books of accounts had been misplaced. - levy of penalty confirmed. Visit to Get Source Minimum alternate Tax (MAT) - Corporation established under DVC Act, 1948 - The proviso to sec. 211(2) of the Companies Act, 1956 was not applicable. - the provisions of section 115JB of the Act imposing tax liability on the book profit were not applicable. - Moreover, as per Section 115JC also assessee did not have any alternate minimum tax liability. Visit to Get Source Income from other sources u/s 56 - Taxability of Awards for Sportsmen - assessee has received various awards - Indian professional shooter - benefit of exemption allowed. Visit to Get Source TDS u/s 194I on payment of annual lease rent aid to UPSIDC - assessee in default - the deductee has shown the amount paid as income and also paid taxes thereon, therefore, the assessee cannot be treated as ‘assessee-indefault’ and consequently, no interest u/s.201(1A) can be charged. Visit to Get Source TDS u/s 194C - there is no express or implied contract between the assessee and the transporter. It is a case of engaging the transporters by the supplier and supply the goods to the assessee. Therefore, there is no case for deduction of tax at source u/s 194C. Visit to Get Source Customs Interest on delayed Refund of SAD - relevant date - The period of limitation sought to be imposed upon refunds claimed and a restriction on the claim for interest, especially brought in by way of so called clarification by the CBEC Circular could not have override the law. Visit to Get Source Classification - Ethylene Di-chloride (EDC) - insecticide imported for a non-insecticidal purpose - EDC imported by the petitioner being not a product put up in forms or packings for retail sale or as preparations or articles and since EDC is specifically included as an item in Chapter 29 of Schedule-1 of ITC, it cannot be contended that the same would fall under heading 3808 of Chapter 38 of Schedule-1 of ITC. Visit to Get Source Import of medical equipments duty free - Since the conditions of exemption notification are not fulfilled by the Appellant the benefit of exemption Notification No 64/88-Cus is not admissible to them and accordingly the goods are liable for confiscation under section 111(0) of the Customs Act, 1962 Visit to Get Source Central Excise Liability of Excise duty - whether the statements of the buyers can be used against the Appellants - it was not open to the Adjudicating Authority to rely upon the said statements without following the mandatory procedure contemplated by Section 9D of the Act. Visit to Get Source Refund - unjust enrichment - excise duty has not been claimed from the buyer of the goods and the same has been reflected in “Excise Duty Refund Receivable Account” - the refund claim will not be denied on the ground of doctrine of unjust enrichment - refund allowed. Visit to Get Source Refund claim - unjust enrichment - it is found that refund amount, in question, had not been reflected by the respondent under the heads of account of Loans & Advances, as “claims receivable” from the Central Excise Department. - Refund cannot be allowed. Visit to Get Source VAT Detention of goods with vehicle - KVAT - The vehicle had evaded checking by the authorities and as is seen from the records, it had to be chased and intercepted for carrying out the inspection. This clearly brings out the connivance of the dealer in having attempted to evade tax - penalty upheld. Visit to Get Source Maintaining Duplicate copy of Invoice - Carbon copy or otherwise - When there is a specific mandate to maintain a duplicate it can only be with a carbon copy. Otherwise, there would be duplication of the bills and also multi-transports carried out on the very same bill. This definitely would not apply to a computer generated bill. Here, it is not a computer generated bill - rejection of accounts was proper. Visit to Get Source Articles KRISHI KALYAN CESS: ITC IN GST NOT ALLOWED DIR-3 KYC - A step towards updating directors database Proposed Changes in GST Form Notifications Customs F.No.354/59/2018 –TRU - G.S.R. 812 (E) - dated 24-8-2018 - ADD Corrigendum – Notification No. 40/2018-Customs (ADD), dated the 20th August, 2018 42/2018 - dated 24-8-2018 - ADD Import of ‘Jute Products’ Jute Yarn/Twine (multiple folded/cabled and single), Hessian fabric, and Jute sacking bags - imports from subject countries are undercutting and suppressing the prices of the domestic industry. 41/2018 - dated 24-8-2018 - ADD Import of ‘Jute Products’ namely, Jute Yarn/Twine (multiple folded/cabled and single), Hessian fabric, and Jute sacking bags - imports from subject countries are undercutting and suppressing the prices of the domestic industry. GST 38/2018 - dated 24-8-2018 - CGST Seeks to prescribe the due dates for quarterly furnishing of FORM GSTR-1 for those taxpayers with aggregate turnover of upto ₹ 1.5 crores for the quarter July, 2018 to September, 2018 37/2018 - dated 24-8-2018 - CGST Seeks to prescribe the due dates for furnishing of FORM GSTR-1 for those taxpayers with aggregate turnover of more than ₹ 1.5 crores for the months of July, 2018 and August, 2018 36/2018 - dated 24-8-2018 - CGST Seeks to extend the due dates for filing FORM GSTR-3B for the months of July, 2018 and August, 2018 Circulars / Instructions / Orders Income Tax - F No 279/Misc. 142/2007-ITJ (Pt) - dated 20-8-2018 Amendment to para 10 of the Circular No. 3 of 2018 dated 11.07.2018-reg Income Tax - Instruction No. 03/2018 - dated 20-8-2018 Subject : Conduct of assessment proceedings through ‘E-Proceeding’ facility during 2018-19-regd. Income Tax - 04/2018 - dated 14-8-2018 Computation of admissible deduction u/s 10A of the Income Tax Act, 1961 - Regarding News Importance of strong Governance & Secure IT Operations for Urban Co-operative Banks to Remain Relevant (N S Vishwanathan, Deputy Governor, Reserve Bank of India, August 04, 2018 - Gujarat Urban Co-operative Banks Federation at Gandhinagar) IBBI inaugurates One-Day Refresher Programme for Insolvency Professionals supported by Pradhan Mantri Kaushal Vikas Yojana Case Laws: GST 2018 (8) TMI 1376 Release of detained vehicle with goods - detention on the ground e-way bill was not tendered for the goods in movement, bill amount is under invoice and LR is blank - It was the case on behalf of the petitioner that the petitioner is ready and willing to pay taxes determined in accordance with law - Held that:- When the petitioner is reported to be a habitual defaulter and tax evader and is found to be involved in atleast 10 cases wherein the petitioner was caught without e-way bills, this Court refuses to exercise discretion in favour of the petitioner - The modus operandi adopted by the petitioner is to transport the goods without e-way bill and as and when he is caught and the Truck is detained, he will make payment of tax and get the Truck released. Challenge to the impugned order passed under Section 129(3) of the Act - Held that:- The same is appealable order and all the defences /contentions may be available to the petitioner as and when the appeal is preferred. Petition dismissed - decided against petitioner. Income Tax 2018 (8) TMI 1374 TDS u/s 194I - TDS on annual lease rent paid to Greater Noida - Scope of the term Rent - reliance on the Circular issued by the CBDT before amendment to the provisions of the act - Held that:- Noida/Greater Noida is entitled for the benefit of Section 194A(3)(iii)(f) has to be approved. - Held that:- A perusal of the above circular indicate that circular was issued on the strength of Section 10(20A) and Section 10(20) as it existed at the relevant time. Section 10(20) has been amended by Finance Act, 2002 by adding an explanation and further Section 10(20A) has been omitted w.e.f. 01.04.2003. The very basis of the circular has been knocked out by the amendments made by Finance Act, 2002. Thus, the Circular cannot be relied by Noida/Greater Noida to contend that there is no requirement of deduction of tax at source under Section 194-I. Thus, deduction at source is on payment of rent under Section 194-I, which is clearly the statutory liability of the respondent-company. The High Court has adjusted the equities by recording its conclusion in Paragraph 20 and issuing a direction in Paragraph 21. Decided against the assessee. 2018 (8) TMI 1373 Capitalisation of interest received from the bank fixed deposits and set-off of this interest from the preoperative expenses - Held that:- It is an accepted and admitted position that the respondent/assessee had not commenced and was not engaged in any business activity as the business of manufacture and production of styrene butadiene rubber had not started. - no substantial question of law arises and the appeal is dismissed in limine - Decided against the revenue. 2018 (8) TMI 1372 Diallowance of expenses after estimation of profit u/s 144 - bogus/unverifiable purchase - bogus/unverifiable expense - Tribunal deleted the disallowance on the ground that, once the books of account had been rejected, the AO should not have disallowed the expenses for computing the income of the assessee which were claimed by the assessee. The AO should have estimated the income of the assessee by applying the net profit rate to the gross receipt of the assessee. Held that:- the AO while finalising the assessment under Section 144 of the Act had disallowed the claims of expenditure made by the assessee which could not be verified in absence of evidence led by the assessee to support the claim. It is permissible for the AO to disallow the claims while finalising the assessement in the manner provided under Section 144 of the Act to make best judgment assessment. It is not required for the AO to apply net profit at a particular rate while finalising the assessment under Section 144 of the Act. Method for estimating the income in the previous year of the assessee on the basis of net profit at a particular rate cannot be applied for all subsequent years. The impugned order passed by the Tribunal is not in accordance with law and, therefore, we set aside the impugned order passed by the Tribunal and remit the matter back to the Tribunal to decide the appeal of the assessee on merit and not on the basis of method of net profit @ 11.5% applied for assessing the estimate of profit of the assessee for the previous year i.e. 2009-2010. Decided in favor of revenue. 2018 (8) TMI 1371 Reassessment of a case beyond 6 years - directions were issued u/s 150(1) - fulfillment of per-conditions for opening a case - Addition of income u/s 2(24)(iv) - Protective assessment - Held that:- It is not disputed by the parties that the extended period of limitation as it were, for issuing re-assessment notices under Section 147/148 of the Act, is spelt out in Section 149, i.e. six years provided the other jurisdictional conditions are fulfilled. There is, however, one exception to this absolute bar of limitation as it were : Section 150. That provision is applicable in the case where the assessment of any entity or assessee is considered in Appeal or by the higher authority or Tribunal. In the present case, there is nothing on record to indicate that before the CIT(A) concluded that the amounts were properly assessable in the hands of the present petitioner/assessee, any notice/opportunity of hearing was not afforded to them. It, however, urges that opportunity would be available before the final assessment of such amounts in the hands of the present assessee is completed. We are of the opinion that the revenue’s position is untenable; given the expressed mandate, the third explanation to Section 153(3) unequivocally postulates that any adverse order has to be proceeded by adequate opportunity of hearing to the concerned party. In this Court’s opinion, although Section 153 enables and in some measure, empowers the Revenue to proceed and complete with assessments beyond the stipulated six year period, in the few exceptional circumstances indicated in the main proviso that empowerment is conditioned upon due exercise of power, i.e. after issuing notice and granting opportunity to the party likely to be affected adversely. Clearly that procedure is given the go-by in the present case. The directions issued by the CIT (A) contained in paragraph 11 insofar as it records adverse findings, is hereby quashed. In case, the CIT(A) wishes to proceed against the petitioner, he shall do so provided he shall issue appropriate notice in that regard. 2018 (8) TMI 1370 Penalty u/s 271B - AO observed that, assessee had got prepared a bogus / fabricated audit report - AO initiated penalty proceedings under Section 271B of the Act as the appellant failed to produce books of account and audit report under Section 44AB of the Act. - Held that:- The statement of assessee was contradicted and controverted by the Chartered Accountant in his statement, who had stated that he had not examined books of accounts - The facts reveal blatant and brazen defiance of law and Section 44AB of the Act. The contention of the appellant-assessee that he had not maintained books of accounts etc. and, therefore, penalty under Section 271B of the Act for failure to get books of accounts audited, is unacceptable. Appellant-assessee, in making this submission, contradicts his earlier version that the books of accounts had been misplaced. Even otherwise, failure to maintain the books of accounts was a lapse and a failure to comply with statutory provisions. - Levy of penalty confirmed - Decided against the assessee. 2018 (8) TMI 1369 Taxability of Capital Gains from sale of property - income to be included in the hands of assessee or HUF of the assessee - Held that:- There are concurrent findings of facts recorded by all the authorities below on appreciation of evidence and consideration of surrounding circumstances, viz. (I) that the same was executed by the assessee in his individual capacity and not as ‘karta’ of the HUF, (II) that in the same deed, PAN of the assessee in his individual capacity has been given and not PAN of the HUF, (III) that in the earlier years, property in question was not shown as owned by the HUF in the return of HUF and (IV) that the sale consideration has not been deposited in the HUF’s bank account. No substantial question of law arises. - Decided against the assesse. 2018 (8) TMI 1368 Disallowance of expenses - selling expenses - promotional expenses - expenses towards packaging material purchases - genuineness of the transactions - failure to deduct TDS u/s 194C/ 194H on selling expenses and promotional expenses - Disallowance u/s 40(a)(ia) - CIT(A) deleted the additions - ITAT confirmed the order of CIT(A) Held that:- The Tribunal accepted the findings of the First Appellate Authority on the counts we have referred to in the preceding paragraphs. The Tribunal has analysed the provision of Section 194C and has given a specific finding that the said provision was not attracted in the subject case. So far as the assessee’s claims for deduction in respect of packaging material expenses, sales promotional expenses as well as selling expenses, the Tribunal accepted the findings of the First Appellate Authority. Before the Tribunal, it was urged on behalf of the Revenue that the distributors to whom incentives were paid could not be sent notices under Section 133(6) as the assessee had not provided complete address. This submission was made in support of Revenue’s stand that the recipients thereof were not genuine. But in the appendage to the assessment order, to which we have referred to earlier, there is specific reference to such notices being sent. The Tribunal further found that there was no violation of Section 194H of the Act as the transactions involved were all purchases and sales. There was no actual transaction between the parties for the target incentives and only credit notes were provided to the distributors who had achieved the target which they could redeem at the time of subsequent purchases. Decided in favour of assessee. 2018 (8) TMI 1367 Levy of penalty u/s 271(1)(c) - assessee contended that, mere acceptance of the disallowance by the Appellant does not tantamount to furnishing of inaccurate particulars of income and more particularly on account of the fact that the Appellant had suo-moto accepted the disallowance and decided not to file any appeal with the ITAT to avoid genuine hardship, mitigate compliance cost and facilitate liquidation process and in view of the substantial past losses which would eventually lapse going forward. - assessee also contended that, the disallowances made represent just 1% of the expenses which is highly immaterial with the nature of business and expenses incurred by the company. Held that:- In present year as well it is not a case of the Revenue that assessee furnished inaccurate particulars of the income or there is concealment of income on part of the assessee. Thus, the provisions of Section 271(1)(c) of the Act will not be attracted in the present case as well. - Penalty deleted - Decided in favor of assessee. 2018 (8) TMI 1366 Additions u/s 43B - delay in deposit of Employees Contribution of ESI and EPF - allowable deduction under s. 36(I)(va) read with sec. 2(24(x) and sec. 43B - Held that:- It is apparent that the ld. CIT(A) has given the reason for upholding the disallowances that no proof of deposit was produced by the assessee whereas the Assessing Officer itself has not disputed the factual position of making the payments by the assessee as reproduced in the assessment order and quoted in the foregoing paragraph of this order. Hence, even if there was no appearance by the assessee before the ld. CIT(A) and the appeal was decided on merits then the ld. CIT(A) was not expected to ignore the admitted facts as recorded in the assessment order. Decided in favor of assessee. 2018 (8) TMI 1365 Additions u/s 68 - capital introduced by the assessee in the the proprietorship firm - the amount was received from M/s. Smarsh Fasteners, a proprietorship firm where the assessee is a partner and that this was not shown in the balance sheet of the assessee. - Held that:- CIT(A) observed that, the AO has examined the books of account produced by the assessee including the cash book, bank book and ledger accounts etc. as is clearly mentioned in para 3 of the assessment order. The cash repayments having been duly recorded in the cash book, there is no need for the assessee to explain the sources of such repayments .separately. It appears that the AO has not understood the implications of the entries in the books of account and made the impugned addition in a careless manner. - CIT(A) deleted the additions - no good reason to interfere with the order of the CIT(A) - Decided against the revenue. Additions of an amount which was outstanding from husband of the assessee - Assessing officer treated the same as undisclosed income - Held that:- it is obvious from the accounts of the assessee as well as of her husband that no amount was outstanding against the husband of the assessee as on 31.3.2013. Hence, in the balance sheet of the assessee, there was no entry showing any outstanding amount due from the assessee’s husband. - Additions made by the AO was not proper - Decided against the revenue. 2018 (8) TMI 1364 Disallowance u/s 14A r.w.R 8D - expenses towards exempted income - assessee had made suo-moto disallowance under section 14 A of the Act. Ld. AO issued show cause notice calling upon assessee to explain disallowance computed by assessee under section 14 A of the Act. - Held that:- following the ratio laid down by Hon’ble Bombay High Court in case of B.R Bamsi vs. CIT (1970 (2) TMI 45 - BOMBAY HIGH COURT), do not find any infirmity in order passed by Ld. CIT (A) for Assessment Year 2008-09 and 2009-10. - Decided against the revenue. 2018 (8) TMI 1363 Minimum alternate Tax (MAT) u/s 115JB - applicability on assessee Corporation. - The assessee corporation was constituted with three participating government namely, Union government, State Govt. of Bihar (now Govt. of Jharkhand) and State Govt. of West Bengal. - Damodar Valley Corporation Act, 1948 - Held that:- the accounts were prepared inconformity with the provisions of the DVC Act, 1948 and annual financial statement were prepared in the form prescribed under the said Act even though the format approved by the Government of India u/s. 47 of the DVC Act, 1948 was on the lines of Schedule VI of the Companies Act, 1956. On perusal of the provisions of section 115JB of the Act as were in force in the relevant year, it is noted that provisions of subsection (2B) of section 115JB of the Act clearly clarified that the said section is applicable to every assessee being a company to which proviso to sub-section (2) of section 211 of Companies Act, 1956 is applicable. We, however, find that assessee corporation though assessed in the status of a company was not a company within the meaning of Companies Act, 1956 and, therefore, the proviso to sec. 211(2) of the Companies Act, 1956 was not applicable. - the provisions of section 115JB of the Act imposing tax liability on the book profit were not applicable. Further, as per the specific provisions of section 115JC of the Act, however, the assessee did not have any alternate minimum tax liability. - Decided against the revenue. Diallowance u/s 14A - assessee derived exempt income in the form of interest from CPF investment, interest from tax free RBI Bond and dividend of shares of Power Trading Corporation and Bokaro Power Supply Corporation Ltd. - Held that:- following the decision for the earlier years, no disallowance can be made - Decided against the revenue. 2018 (8) TMI 1362 Additions u/s 43B - elayed payment of employees contribution towards Provident Fund - according to assessee, the assessee deposited the said amount before due date of filing of income tax return - Held that: -amendment to the second proviso to section 43B of the Act as introduced by Finance Act, 2003 was curative in nature and is required to be applied retrospectively with effect from 1st April, 1988 - No additions - Decided against the revenue. Deduction of expenses - truck operating expense - payment of cash on account of salary to truck helper - Held that:- We note the books of the assessee are audited and the AO has not been able to point out any defect in the books maintained by the assessee. The AO has not rejected the books. In such a scenario, if the AO finds that assessee has not maintained any evidence/material to substantiate the expenses claimed by it, can disallow item wise expenditure claimed. Ad hoc disallowance (10%) of expenditure is not in accordance to law and can be termed as arbitrary exercise of power which has no sanction of law and, therefore, we do not find any infirmity in the order of the Ld. CIT(A) and so we confirm the same. - Decided against the revenue. 2018 (8) TMI 1361 Computation of capital gains - value of house property u/s 50C - AO failed to consider the specific request of the assessee to refer the matter of valuation to the DVO - the assessee, at the outset, submitted that since the property is a leasehold property, therefore, the provisions of section 50C are not applicable. - Held that:- a perusal of the assessment order and the order of the ld. CIT(A) nowhere mentions that it is a leasehold property since nothing is coming out from the record. It is also not coming out of record as to what has happened in the case of the co-owner. Considering the totality of the facts of the case and in the interest of justice, I deem it proper to restore the issue to the file of the Assessing Officer with a direction to adjudicate the issue afresh. While doing so, he has to give his opinion as to whether the property is a leasehold property or not and whether long term capital gain is chargeable on the leasehold property or not. Decided in favor of assessee for statistical purposes. 2018 (8) TMI 1360 Income from other sources u/s 56 - Taxability of Awards for Sportsmen - assessee has received various awards - Indian professional shooter - Held that:- As mentioned elsewhere, the awards received by the assessee are all from Central Government or the State Government. Therefore, subsequent clarification mentioned hereinabove squarely applies on the facts of the case in hand. 2018 (8) TMI 1359 Exemption u/s 54/ 54F - purchase of residential property / house outside India - assessment year in this appeal is 2014-15 and the provision in section 54F comes w.e.f. 01.04.2015 - Held that:- before the amendments, the benefit can also be given to the residential house acquired in abroad. - Since the Tribunal has taken a view in similar set of facts, we find no justification to take a contrary view in this appeal. Accordingly, following the same, we hold that the assessee is entitled for deduction under section 54F of the Act. - Decided against the revenue. 2018 (8) TMI 1358 TDS u/s 194I on payment of annual lease rent paid to UPSIDC - assessee in default - it was contended that the lease rent was paid as onetime payment for lease of land for long period of 99 years on a lump sum basis; and only 1% of the plot premium was treated as lease rent for the period of 1st ten years. Held that:- It has been brought on record that UPSIDC had submitted its account where it has duly confirmed that the amount paid by the assessee has been credited in the statement of P&L account and income tax has been paid thereon on the taxable profit. The entire account has been credited to the head ‘Lease Rent Received Account’. Once that is so, then in view of the proviso to Section 201 which came into effect from 01.07.2012, then assessee cannot be held as ‘assessee-in-default’. In view of the CBDT Circular and also the fact that the deductee has shown the amount paid as income and also paid taxes thereon, therefore, the assessee cannot be treated as ‘assessee-indefault’ and consequently, no interest u/s.201(1A) can be charged. Accordingly, Revenue’s appeal is dismissed. - Decided against the revenue. 2018 (8) TMI 1357 Disallowance u/s 40(a)(ia) - Failure to deduct TDS u/s 194C - absence of contract between the transporter and assessee - Held that:- the assessee has placed an order for supply of the goods which was transported by the supplier and as per the instructions of the supplier, the payment was made. The assessee has neither engaged the services of the transporter nor the transporter rendered the services to the assessee, on receipt of goods the assessee has made the payment as per the ‘to pay’ bill issued by the supplier. The revenue has not made out any case to establish that the assessee had engaged the services of transporter to carry the goods. From the above facts, there is no express or implied contract between the assessee and the transporter. It is a case of engaging the transporters by the supplier and supply the goods to the assessee. Therefore, there is no case for deduction of tax at source u/s 194C. Once it is established that the assessee does not require to deduct the tax at source, there is no case for disallowance u/s 40(a)(ia) of the Act. - Decided in favor of assessee. 2018 (8) TMI 1356 Levy of penalty u/s 271(1)(c) - assessee contended that, (a) mere addition to income, ipso facto, cannot lead to imposition of penalty, (b) not challenging the addition during assessments does not tantamount to acceptance of wrong doing. - Held that:- In the facts of the present case assessee was under the belief that due to the ‘make available’ Clause in Article 12 (4) (b) of India Singapore DTAA, the consideration paid by the Indian customers to assessee cannot be regarded as ‘fees for technical services’ and further since there was no transfer of technology involved in the services extended by assessee, the consideration for such services could not be taxed under Article 12(4)( b) of the DTAA. In the facts of the present case assessee had offered explanation and the submissions as to why receipts were not offered to tax for the year under consideration, by relying on the legal position. Thus assessee had acted in a bona fides manner and had also furnished all material facts and particulars in respect of the same. - No penalty - Decided in favor of assessee. Customs 2018 (8) TMI 1355 Refund of SAD - Unjust enrichment - Whether the Tribunal was correct in not considering the express evidence on the sale invoice which showed that the incidence of Special Additional Duty of Customs was passed on to the next buyer which was germane in deciding if the respondent was entitled to refund? - secondary evidence in the form of CA certificate and the certificate by the Superintendent of Central Excise. Held that:- The plain reading of the endorsement is that the buyer of goods from the respondent would not be entitled to avail of any credit of Special Additional Duty. Therefore, even if the invoice is taken as primary evidence, the endorsement therein is in accord with the certificates issued by the Superintendent of Central Excise and the Chartered Accountant. It does not support the contention on behalf of the Revenue - the findings of the Tribunal cannot be said to be perverse so as to warrant our interference - appeal dismissed - decided against appellant. 2018 (8) TMI 1354 Quantum of penalty u/s 114(i) of Customs Act - cross-examination of witnesses - Statement made under duress and/or threat - Held that:- The impugned order of the Tribunal has examined these very contentions raised by the appellant before us and reduced the penalty imposed upon Smt. Bharti Bhutada and the appellant from ₹ 25 lakhs to ₹ 1 lakh and ₹ 50 lakhs to ₹ 5 lakhs taking into account the role attributable to each of them in illegal export of foreign currency. This is a finding of fact and in the absence of it being pointed out that the role of Smt. Bharati Bhutada was much more than mere handing over the foreign currency, no reason to interfere with the impugned order can arise. Cross-examination of witnesses - Held that:- The impugned order of the Tribunal has considered the same and held that some of the witnesses had been offered for cross-examination and those not offered for cross-examination were not shown to have prejudiced the appellant in any manner - no fault in these fact can be found in not granting cross-examination of some of the witnesses. Statement made under duress and/or threat - Held that:- It has been recorded that there was no complaint made by the appellant when he was produced before the Magistrate. Besides holding that retraction of the statement by the appellant was an after thought. Thus, partially dismissing the appeal while reducing the quantum of penalty. There is no merit requiring interference - appeal dismissed - decided against appellant. 2018 (8) TMI 1353 Conversion of Bills of Entry - Bills of Entry for Home Consumption to Bills of Entry for Warehousing - N/N. 79/2017-cus issued on 13.10.2017 - Held that:- On 12.12.2017, the Central Board of Excise & Customs (CBEC) has issued instructions or a Circular with respect to the refund claims in respect of countervailing duties as drawback duties - the respondents are directed to proceed to consider whether the petitioners fulfil their export obligations, and pass appropriate orders, if necessary, at the earliest - petition disposed off. 2018 (8) TMI 1352 Interest on delayed Refund of SAD - relevant date - N/N. 102/2007-Cus dated 14.09.2007 - Circular 6/2008-Cus dated 24.04.2008 - Held that:- This Court in Micromax Informatics Limited [2018 (2) TMI 35 - DELHI HIGH COURT] held that there was no period for refund of SAD, so could not be circumscribed by any period of limitation prescribed by mere executive instructions such as in the case of Circular. The period of limitation sought to be imposed upon refunds claimed and a restriction on the claim for interest, especially brought in by way of so called clarification by the CBEC Circular could not have override the law. The substantive law nowhere limits the claim for refund, which would otherwise ensure to the benefit of Assessee - petition allowed - decided in favor of petitioner. 2018 (8) TMI 1351 Pre-export restrictions/obligations sought to be imposed by the 1st and 2nd respondents - Illegal mining - paramount contention advanced by learned Senior Counsel for the petitioner is based on Sec.2(33) of the Customs Act, 1962 - whether Exts.P2 and P3 issued by respondents 1 and 2 are in accordance with law and in accordance with the provisions of the Customs Act, Foreign Trade (Development Regulation) Act and the Foreign Trade Policy? Held that:- Even though various contentions are raised by the petitioner by producing documents along with the reply affidavits as well as additional affidavits, they are not transforming themselves into pleadings, since no amendment is made to the writ petition and the reliefs sought for against the respondents are based on alleged illegality in Exts.P2 and P3 - It is also made clear that, no reliefs are sought for by the petitioner against the action of the Government of Tamil Nadu, issuing various orders stopping the mining operations, transportation etc. etc. If the intention of the Parliament was only the law relating to export as specified above, it should have been made specific in the Customs Act. Having not done so, and taking into account the provisions of MMDR Act, 1957, it is patent and clear, a harmonious and coordinated action is envisioned in the matter of providing mining lease, despite the fact that the Central Government is vested with powers for making Rules - It is also clear from the provisions thereunder, the entire operations are regulated, controlled and managed by the State Government. Apart from the same, a harmonious relationship is existing by and between the Union and the States, in accordance with the Federal principles. There is mutual respect for the laws made by the Central as well as the State Governments, unless there is clear transgression in the area of legislation, as contemplated under the Constitution of India. Moreover, the insistence made by the Customs officers is not with respect to garnet as is sought to be exported by the petitioner. The Customs Authorities have issued Exts.P2 and P3 in accordance with the powers conferred on them under the Customs Act, the notifications issued by the Government of India specified above under the provisions of Foreign Trade Policy, 2015-2020 read along with Sec.5 of the Foreign Trade (Development Regulation) Act. There is no case made out by the petitioner, justifying interference of this Court under Article 226 of the Constitution of India, there being no illegality, arbitrariness, or unfairness on the part of respondents 1 and 2 in issuing Exts.P2 and P3 - however, it is made clear that if the petitioner is able to produce the necessary documents as is required in Exts.P2 and P3, it is for the Customs Authorities to consider the same in accordance with law. Petition dismissed. 2018 (8) TMI 1350 Scope of the right of persons involved in quasi judicial proceedings to adduce oral evidence and cross-examine persons - statements of persons forming part of the materials against them - principles of natural justice - Held that:- No doubt, principles of natural justice have been held to be sacrosanct and have been placed at a high pedestal in the adjudication proceedings which are judicial, quasi judicial or administrative. The question as to which of the principles of natural justice or which of the facets of it is applicable, would depend on the nature of the litigation and the statute under which the adjudication is undertaken. It is settled by now that every departure from principles of natural justice may not result in miscarriage of justice, unless prejudice is caused or demonstrated (useless formality theory). The question as to what extent the principles of natural justice needs to be stretched in a given case has to be considered with an element of flexibility. The question as to whether in a given case, the decision declining permission to adduce evidence or cross examine persons is correct can be considered only after the conclusion of proceedings, having regard to the prejudice, if any, caused to the party on account of the same. Petition dismissed - decided against petitioner. 2018 (8) TMI 1349 Classification of imported goods - Ethylene Di-chloride (EDC) - insecticide imported for a non-insecticidal purpose - whether EDC would fall under heading 3808? Held that:- It is evident from the description of the items included under headings 3808 that only insecticides, rodenticides, fungicides, herbicides, anti-sprouting products and plantgrowth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles alone would fall under heading 3808. EDC imported by the petitioner being not a product put up in forms or packings for retail sale or as preparations or articles and since EDC is specifically included as an item in Chapter 29 of Schedule-1 of ITC, it cannot be contended that the same would fall under heading 3808 of Chapter 38 of Schedule-1 of ITC. The contention raised by the learned Standing Counsel for the first respondent, relying on the Insecticides (Fourth Amendment) Rules, 2017 is also without substance as it is well settled that conferment of Rule making power by an Act does not enable the Rule making authority to make a Rule that travels beyond the scope of the enabling Act. Petition allowed. 2018 (8) TMI 1348 Confiscation of export goods - Export of prohibited goods - non-basmati rice - Circular No. 32/2008 dated 30th September 2008 - Held that:- It is seen from the circular of the Director General of the Foreign Trade that even if there was some dispute on the nature of the goods being exported, the consignment was to be allowed for export after drawal of samples. On going through the records of the case, however, upon detection of the non-basmati rice, the goods were permitted to be taken back without completing the export. The export consignment had to be permitted or subject to testing upon the existence of certain parameters. It would appear from the record that no such preliminaries had been ascertained. Furthermore, it also appears from the statement of the Director of the appellant-exporter that export of non-basmati rice had occurred by oversight following which the export consignment itself had been withdrawn - even though the confiscation may have been justified from the admission made by the appellant at the time of attempting to export, the imposition of redemption fine and penalty does appear to be excessive - the redemption fine reduced to ₹ 1 lakh and reduce the penalty to ₹ 50,000/-. Appeal allowed in part. 2018 (8) TMI 1347 Import of medical equipments duty free - benefit of N/N. 64/88 dated 01.03.1988 - end use exemption - Subsequently since the Appellant did not fulfill the conditions as prescribed by the notification, the said Certificate issued by DGHS was cancelled and withdrawn - Demand under section 125(2) of the Customs Act, 1962. Held that:- It is an admitted fact that for non fulfillment of the conditions of exemption notification No 64/88-Cus, DGHS has withdrawn the certificate issued by them for claiming the benefit under the said exemption notification - Since the conditions of exemption notification are not fulfilled by the Appellant the benefit of exemption Notification No 64/88-Cus is not admissible to them and accordingly the goods are liable for confiscation under section 111(0) of the Customs Act, 1962. Hon’ble Supreme Court has in case of Commissioner of Customs (Import) Mumbai Vs Jagdish Cancer Research Centre [2001 (8) TMI 113 - SUPREME COURT OF INDIA] has upheld the confiscation of the goods for non fulfillment of the conditions prescribed even after importation and clearance of the goods. In the said judgment they have also held that duty in terms of section 125(2) of the Customs Act, 1962 is also payable in case Appellant opts to redeem the confiscated goods. Appeal dismissed - decided against appellant. Insolvency & Bankruptcy 2018 (8) TMI 1375 Corporate insolvency process - failure to pay debt - Held that:- the present Petition is filed by Operational Creditor ignoring the order passed in the past. Therefore, the subject claim is in dispute and therefore Petition is liable to be dismissed. It is the contention of the Corporate Debtor that only ₹ 7 lakhs is due since 75% of the amount awarded i.e. ₹ 24,50,046/- was already deposited and withdrawn by Operational Creditor. The liability according to the Corporate Debtor is ₹ 7 lakhs whereas the claim is filed for ₹ 3,79,61,269/-. Thus, it is clear dispute is existing with regard to quantum of liability. Therefore, Petition cannot be admitted in view of the dispute by virtue of Section 9 (5) (ii) (d). Service Tax 2018 (8) TMI 1343 Business Auxiliary Service - appellants are engaged in distilling and bottling of Indian Made Foreign Liquor (IMFL) which includes their own brand as well as brands owned by United Sprits Ltd., Bangalore - N/N. 39/2009-ST dt. 23.09.2009 - Time Limitation. Time Limitation - Held that:- Just because the two audit objections were conveyed in a single letter dt. 05.12.2013 by the department to the appellants, the fact of first show cause notice having been issued on earlier date for the first objection cannot be put forth as a ground that second SCN issued subsequently is barred by limitation - time limitation not invoked. Taxability of activity of contract bottling pending before the Hon’ble Apex Court - Held that:- The appeal filed by ISWAI has only been admitted by the Hon’ble Apex Court. However, no stay on taxability has been ordered by the Hon’ble Apex Court. Hence this contention of the appellant also does not stand to scrutiny and is therefore rejected. Benefit of N/N. 39/2009-ST dt. 23.09.2009 - Held that:- The intention of disallowing taking of credit to become eligible for any duty / tax exemption is to disallow double enrichment to the assessee in such cases. Discernably therefore, when credit has been taken, the duty / tax exemption cannot be availed. However if such credit taken is reversed with interest even after clearance of final products, there is no reason why the assessee cannot thereafter become ab-initio eligible for the benefit of such exemption notification - though cenvat credit had been taken by the appellant herein, if it is reversed with interest, after clearance of the final products even at the Tribunal stage, the benefit of Notification No.39/2009-ST dt. 23.09.2009, which otherwise mandates non-taking of credit for duty exemption, will now become available to the appellant. The Annexure-I to the SCN gives the value of the raw materials used in the manufacture of the IMFL under contract bottling during the impugned period. As the details have been worked out by the department themselves it appears to reason that condition (b) of the notification namely, “there is documentary proof specifically indicating the value of such inputs “ is also fulfilled. - thus, the appellants should be extended the benefit of Notification No.39/2009-ST dt.23.09.2009 subject to the appellants paying up the disputed quantum of credit taken during the impugned period and also paying up the interest as applicable thereon. The matter is remanded to the adjudicating authority for the limited purpose of confirming the fact of payment of such predeposit, payment of interest on the cenvat credit amount taken by the appellant and re-work the service tax liability accordingly after extending the benefit of N/N. 39/2009-CE. - appeal allowed by way of remand. 2018 (8) TMI 1342 Rebate claim - rebate of Service Tax paid on the commissions received for the business auxiliary services provided to various customers abroad - Export of Service - rejection of rebate claim on the ground that the service is rendered in India and that the appellant has not complied with the conditions in terms of Rule 3 and Rule 5 of Export of Service Rules, 2005. Held that:- Tribunal in the case of Simpra Agencies Vs. CCE, Delhi-II [2014 (6) TMI 354 - CESTAT NEW DELHI], on identical facts remanded the matter holding that the assessee is to be entitled to rebate of service tax if the procedures and conditions prescribed in the notification followed and fulfilled. The impugned order is not sustainable in law - appeal allowed - decided in favor of appellant. 2018 (8) TMI 1341 Condonation of delay in filing appeal - delay of filing appeal after 29 days of statutory period of 60 days - Held that:- The changes made into rule in squeezing the limitation period to two months to file appeal, which appellant claims to have not gone to its notice appears to be sufficient cause and the delay of 29 days in filing the appeal is within the condonable period of 30 days available with the Commissioner (Appeals), which could have been exercised by him generously in order to ensure substantial justice to the appellant. Therefore such delay of 29 days being within the condonable period, is condoned at this end - delay condoned - COD application allowed. 2018 (8) TMI 1340 Penalty under sub-rule (3) of Rule 15 of CENVAT Credit Rules, 2004 read with Section 78 of the Finance Act, 1994 - disallowance of CENVAT credit - it is contended that the ingredients contained in the above statutory provisions are not fulfilled for imposition of penalty on the appellant. Held that:- The appellant had taken the stand that CENVAT credit inadvertently availed by it had not been utilised for payment of Service Tax - Since the appellant had sufficient balance in its CENVAT account during the disputed period, taking of excess credit and subsequent reversal thereof, cannot be interpreted to say that there was intention to defraud the Government Revenue. Imposition of penalty cannot be sustained - appeal allowed - decided in favor of appellant. 2018 (8) TMI 1339 Rent-a-cab service - non-payment of service tax on lease rentals - CENVAT credit - input services utilized both in providing taxable and exempted services - Rule 6(3) of the Cenvat Credit Rules, 2004. Held that:- The issue of taxability of said service is now pending before the Hon’ble Delhi High Court. Once the said issue is determined, the present issue would be settled accordingly - the matter be remanded to the adjudicating authority to decide the present issue depending on the outcome of the writ petition pending before the Hon’ble Delhi High Court. Appeal allowed by way of remand. 2018 (8) TMI 1338 Benefit of N/N. 12/2003-ST dated 20.6.2003 - denial on the ground that the appellant had availed the CENVAT Credit on the inputs utilized for providing taxable output services. Held that:- A plain reading of the above notification makes it crystal clear that to avail the benefit of the said notification, the assessee should not avail the credit on the inputs/raw materials used in providing the output services - Even though the appellant in the grounds of appeal, claimed that the value of the components/ parts etc. have been included in the value of taxable services, however, no evidence has been produced in this regard. Benefit cannot be allowed - appeal dismissed - decided against appellant. 2018 (8) TMI 1337 Manpower Recruitment and Supply Agency Service - whether the amounts paid to ESIC and EPF in the course of providing taxable services to the customers under the category of Manpower Recruitment and Supply Agency service be included in the gross taxable value or otherwise? Held that:- This Tribunal in the case of Neelav Jaiswal [2013 (8) TMI 147 - CESTAT NEW DELHI] observed that the amount contributed towards EFP in relation to Manpower Recruitment and Supply Agency service is includible in the taxable value of the services rendered - there is no merit in the appeal - appeal dismissed. Central Excise 2018 (8) TMI 1336 Liability of Excise duty - manufacture of branded jeans - whether the statements of the buyers can be used against the Appellants despite the facts that those statements are hit by the provisions of Section 9D of the Central Excise Act, 1944? Held that:- From the facts of the present case it is clear that the witnesses, of whom the statements have been relied upon by the department, have not been examined by the department before the Adjudicating Authority - The evidentiary value of the statements, insofar as proving the truth of the contents thereof is concerned, is completely lost, unless and until the case falls within the four corners of Section 9D(1). In the absence of the circumstances specified in Section 9D (1), the truth of the facts contained in any statement, recorded before a Gazetted Central Excise officer, has to be proved by evidence other than the statement itself. In the present case, the Adjudicating Authority has not invoked clause (a) of Sub-Section (1) of Section 9D of the Act, and also has not recorded anywhere that the attendance of the makers of the said statements, which have been used against the Appellants, could not be obtained for any of the reasons contemplated by Section 9D of the Act. That being so, it was not open to the Adjudicating Authority to rely upon the said statements without following the mandatory procedure contemplated by Section 9D of the Act - the Adjudicating Order has been passed in violation of the mandatory procedure prescribed by Section 9D of the Act. Matter remanded back to the adjudicating authority for de-novo adjudication after following the procedure as contemplated under section 9D of the Central Excise Act, 1944 - appeal allowed by way of remand. 2018 (8) TMI 1335 Penalty u/r 15(2) of the CCR read with Section 11AC of the CEA - Held that:- Section 11AC of the Central Excise Act, 1944 will not have any application, in case of reversal of excess availed CENVAT credit, in terms of Rule 6(3)(b) of the CENVAT Credit Rules - the impugned order stands, so far as it dropped the penalty imposed on the respondent. Demand of interest for delayed reversal of CENVAT credit - Held that:- Hon'ble Supreme Court in the case of Union of India Vs. Ind-Swift Laboratories Ltd. [2011 (2) TMI 6 - SUPREME COURT] have ruled that under the amendment provisions of Rule 14 of the CENVAT Credit Rules, 2004, the respondent-assessee is liable to pay interest, even when it had sufficient balance in the books of accounts - demand of interest upheld. Appeal allowed in part. 2018 (8) TMI 1334 Demand of interest for delayed payment of differential duty through supplementary invoice - Held that:- Considering the fact that the matter is subjudice before the Larger Bench of the Hon’ble Apex Court, in the case of Steel Authority of India Ltd. vs. Commissioner of Central Excise, Raipur [2015 (12) TMI 594 - SUPREME COURT], the present matter should be remanded back to the adjudicating authority for deciding the issue on the basis of resolution of dispute by the Hon’ble Apex Court - matter remanded. 2018 (8) TMI 1333 Penalty u/s 11AC - CENVAT Credit availed on goods transferred to another company - supplementary invoices - Whether penalty under Section 11AC of the Central Excise Act, 1944 is imposable on the respondent for availing CENVAT Credit on supplementary invoices when goods were already transferred earlier to their another company? Held that:- Even though the respondent initially availed credit on the supplementary invoices pertaining to the entire quantity of inputs received from the inputs supplier on payment of differential duty, but later on realizing the mistake, reversed the credit attributable to the quantity cleared as such to another unit namely, M/s Ispat Metallic India Ltd. - there is no justification to invoke penalty provision namely, Section 11AC of the Central Excise Act - appeal dismissed - decided against Revenue. 2018 (8) TMI 1332 CENVAT Credit - GTA Services - recipient of service - place of removal - Held that:- It is an admitted fact on record that the goods were removed from the factory of the respondent for onward sale to its buyers. Thus, the place of removal should be considered at the “factory gate” and not the “premises of the buyer” - the respondent should not be eligible for the CENVAT benefit in respect of Service Tax paid by it under Reverse Charge Mechanism, as recipient of GTA service, for transportation of goods, for delivery at the buyer’s premises - appeal allowed - decided in favor of Revenue. 2018 (8) TMI 1331 Refund of excess Excise Duty paid - refund was rejected on the ground that no excess duty had been paid by the appellant in respect of the excisable goods removed from the factory and sold to the ultimate consumer - unjust enrichment - Held that:- It’s evident that the appellant had paid excess excise duty, than the duty amount actually payable on the goods ultimately sold to the consumers. The invoice and other documents available in the case records, clearly show that the excess duty has been paid by the appellant. Doctrine of unjust enrichment - Held that:- The Chartered Accountant firm in its certificate dated 25.06.2015 has certified that the Balance Sheet maintained by the appellant clearly showed that excise duty has not been claimed from the buyer of the goods and the same has been reflected in “Excise Duty Refund Receivable Account” - the refund claim will not be denied on the ground of doctrine of unjust enrichment. Appeal allowed - decided in favor of appellant. 2018 (8) TMI 1330 Condonation of dely in filing appeal - Time limitation - appeal filed beyond the condonable period provided under the statute - Held that:- It is an admitted fact that the appellant had preferred the appeal before the office of Commissioner (Appeals) beyond the period of 41 days from the date of expiry of the limitation period of 60 days from the date of receipt of the adjudication. As per the judgment of Hon'ble Supreme Court in the case of Singh Enterprises [2007 (12) TMI 11 - SUPREME COURT OF INDIA], the Commissioner (Appeals) is not statutorily empowered to condone the delay in filing the appeal beyond the prescribed time limit - delay cannot be condoned. Appeal dismissed - decided against appellant. 2018 (8) TMI 1329 Refund claim - the respondent had received the differential Central Excise duty from its buyers through debit notes - unjust enrichment - Classification of goods - Bio-95 and Herbal Pet wash - Held that:- It is evident that the respondent had enjoyed the duty benefit all along and utilised such amount for its business requirement. Hence, it cannot be said that the respondent had suffered any injury or loss on account of payment of such differential duty, for which the refund claimed amount should be paid to it and not credited to the Consumer Welfare Fund - Further, on perusal of the Balance Sheet for the year 2005-06, it is found that refund amount, in question, had not been reflected by the respondent under the heads of account of Loans & Advances, as “claims receivable” from the Central Excise Department. There is no merit in the impugned order, so far as it allowed the refund benefit in favour of the respondent - appeal allowed - decided in favor of Revenue. 2018 (8) TMI 1328 CENVAT Credit - common inputs services used for manufacture of both the excisable goods and trading of goods - Rule 6 of the CENVAT Credit Rules, 2004 - Held that:- On a question from the Bench whether, the decision relied upon by the Learned Commissioner (Appeals) have been stayed or over ruled by any higher judicial forum, Learned DR for Revenue has answered the question negatively - the respondent should not be liable to pay the amount as provided under Rule 6 ibid - appeal dismissed - decided against Revenue. CST, VAT & Sales Tax 2018 (8) TMI 1327 Detention of goods with vehicle - goods were perishable in nature - Why the person who has proceeded to transport the goods in question, which is Gambier, has not come forward before this Court and has not filed his affidavit? Held that:- Without entering into this controversy which can be adjudicated by the authorities in due course and since the goods are admittedly detained and seized since more than 14 months back and are perishable in nature, this Court finds it proper to release the goods on deposit of cash, security and bank guarantee - revision petition disposed off without entering into the merit of the case. 2018 (8) TMI 1326 Penalties imposed under Sections 47 and 69 of the Kerala Value Added Tax Act, 2003 - detention of goods with vehicle - detention on the ground that there were no documents supporting the transport - whether penalty could be imposed under Sections 47 and 69 of the Act, thus, in effect, mulcting the petitioner/dealer with a double jeopardy on the same defalcation? Held that:- Merely because the dealer himself is the owner of the vehicle, it cannot be said that the proceedings under Sections 47 and 69 of the Act cannot be taken simultaneously. The proceedings under Section 47 of the Act is with respect to the defalcation of, supporting documents having not accompanied the transport, thus attempting an evasion of tax due to the Government. The said defalcation warrants imposition of penalty on the dealer at maximum of twice the amount of tax sought to be evaded. The transporter too has a liability to ensure due compliance of the provisions of the Act, and hence, there can be no defect found in the owner of the vehicle being proceeded against for such defalcation. The vehicle had evaded checking by the authorities and as is seen from the records, it had to be chased and intercepted for carrying out the inspection. This clearly brings out the connivance of the dealer in having attempted to evade tax - penalty upheld. The dealer was imposed with a penalty at twice the tax amount sought to be evaded and the security deposit made at the time of detection was converted to penalty - there are no question of law arising from the order impugned. The allegation as to multiple transport for reason of correction carried out in the delivery note is quite plausible. Revision petition disposed off. 2018 (8) TMI 1325 Maintaining Duplicate copy of Invoice - Carbon copy or otherwise - Best judgement assessment - case of petitioner is that there is no clear mandate of the defect noticed, of maintaining carbon copies, based on which the estimation was carried out - Rule 58(11) of the Kerala Value Added Tax Rules, 2005 - Held that:- When there is a specific mandate to maintain a duplicate it can only be with a carbon copy. Otherwise, there would be duplication of the bills and also multi-transports carried out on the very same bill. This definitely would not apply to a computer generated bill. Here, it is not a computer generated bill. The duplicate bills having been entered in ink, the defect noticed on that count, cannot be faulted - the contention of petitioner is rejected. Revision dismissed. 2018 (8) TMI 1324 Principles of Natural Justice - Validity of assessment order - CST Act - it was alleged that interstate sales camouflaged as High Sea sales - Held that:- To establish the same, the respondent should have sufficient material to confront the petitioner so as to deny the benefit of exemption. If that material was available with the respondent, it should be made known to the dealer so that the dealer would be in a position to to effectively defend. If the respondent has recorded any statement from third parties, then those statements should be provided to the petitioner and on verification, it was found that the transactions were not genuine High Sea Sale transactions. It is clear that the impugned assessment order has been passed in total violation of the Principles of Natural Justice. The matter is remanded to the respondent for fresh decision - appeal allowed by way of remand. Indian Laws 2018 (8) TMI 1346 Tenure of the Chairperson and the Judicial/Administrative/Expert/Technical Members of all the Tribunals - Held that:- A member of the judicial service would have ordinarily continued until the date of superannuation in the state judicial service, subject to the service rules. It would be manifestly inappropriate to adopt an interpretation as a result of which, upon assuming office as Member (Judicial) in CESTAT the officer will have a tenure which will expire after five years, if it falls prior to attaining the age of 62 years. A person selected as Member of the CESTAT will continue until the age of 62 years while a person holding the post of President shall continue until the age of 65 years - Members of the Armed Forces Tribunal shall hold office until the attainment of the age of 65 years. Chairpersons who have been former Judges of the Supreme Court shall hold office until the attainment of the age of 70 years. 2018 (8) TMI 1345 Conviction and sentence under Section 138 of the Negotiable Instruments Act, 1881 - Held that:- Since the parties have settled the disputes, to do complete justice, the disputes should be given a quietus, subject to appropriate terms - these appeals are allowed and the conviction and sentence imposed on the appellant(s) is set aside. 2018 (8) TMI 1344 Validity of additional evidence - further evidence with regard to certain documentary evidence filed therewith - Held that:- Prima-facie it is quite evident that the document obtained by the Respondent recently and sought to be relied upon has direct bearing to the present case. In the circumstances this Court is of the view that the additional evidence sought to be produced is necessary and further that not examining the said documents may occasion a failure of justice. It is directed that the records of the present case be remitted to the Court of Judicial Magistrate, First Class, East Sikkim at Gangtok to take the additional evidence relating to the documents filed by the Respondent in I.A. No.13/2018 in Criminal Revision Petition No.08/2015 giving opportunity to the Revisionist to rebut the same as per law - petition allowed by way of remand.
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