Central Excise – Refund claim of duty paid on freight component from the factory gate to the premises of the buyer – Rejection of refund – duty paid on self assessment or not – HELD - the Revenue has misconceived the facts, as the appellant had deposited the amounts post clearance and had filed refund claim on 10.08.2016 and thereafter, revised refund claim on 21.09.2016, before the issue of SCN. Thus, evidently the amount in question has not been deposited by way of closure/settlement or self assessment in terms of Sec 11A(2B) of the CEA, 1944 – the amount relating to duty on the freight component from the facto... [Read more]
Central Excise – Refund claim of duty paid on freight component from the factory gate to the premises of the buyer – Rejection of refund – duty paid on self assessment or not – HELD - the Revenue has misconceived the facts, as the appellant had deposited the amounts post clearance and had filed refund claim on 10.08.2016 and thereafter, revised refund claim on 21.09.2016, before the issue of SCN. Thus, evidently the amount in question has not been deposited by way of closure/settlement or self assessment in terms of Sec 11A(2B) of the CEA, 1944 – the amount relating to duty on the freight component from the factory gate to the premises of the buyer, was not included at the time of clearance or self assessment. Accordingly, the said amount is not part of the self assessed tax/admitted tax. It is also not the case of the Revenue that the appellant had revised the returns and included the said amounts in the assessable value - the said amount does not form part of the self assessed tax or admitted tax of the appellant/assessee and accordingly, the assessee are entitled to refund of the said amount with interest as per Rules – the appeal is allowed [Read less]
Service Tax - Export of services – Rendering of ITSS services or not - Refund of Cenvat Credit – Denial of refund of CENVAT Credit on the ground that ITSS Services rendered by the appellant are not in terms of the agreement and hence, do not qualify to be considered as export of service - whether the appellants are eligible refund on the ITSS Services rendered to M/s Agilent Technologies, Singapore – HELD – The ITSS Services became taxable w.e.f. 16.05.2008. The appellants have entered into an agreement titled “Research & Development Services Agreement” on 01.08.2004 with M/s Agilent Technologies, Singapore; it... [Read more]
Service Tax - Export of services – Rendering of ITSS services or not - Refund of Cenvat Credit – Denial of refund of CENVAT Credit on the ground that ITSS Services rendered by the appellant are not in terms of the agreement and hence, do not qualify to be considered as export of service - whether the appellants are eligible refund on the ITSS Services rendered to M/s Agilent Technologies, Singapore – HELD – The ITSS Services became taxable w.e.f. 16.05.2008. The appellants have entered into an agreement titled “Research & Development Services Agreement” on 01.08.2004 with M/s Agilent Technologies, Singapore; it was amended and restated w.e.f November 1, 2008 - the certificate issued by M/s Agilent Technologies, Singapore was placed on record to claim that ITSS Services were rendered - It is the case of the Department that the proviso to Rule 3(1)(iii) of Exports of Service Rules 2005 is not satisfied as no order for provision of ITSS Services was in place during the relevant period - On going through the agreement, one gets understanding that the same are not in the field of ITSS. An addendum of a later date cannot be construed to be an order valid during the relevant period. Therefore, there was no specific order placed by M/s Agilent Technologies, Singapore, on the appellant, for providing ITSS Services during the relevant period - the argument of the appellants that development of Software Services rendered is linked to the R & D Agreement is not acceptable - during the relevant period, the appellants are not entitled to refund of CENVAT credit on services utilized for ITSS Services, they would be eligible for the refund of CENVAT credit on services utilized for other services, if otherwise, applicable. For this reason, matter requires to go back to the Original Authority - The appellants have not fulfilled the conditions of proviso to Rule 3(1)(iii)of Export of Service Rules, 2005 in respect of claim of export ITSS Services, in the impugned period. However, refund is admissible for the reason that no demand has been raised on the appellant for provision of these services held not eligible to be considered as export – appeal is allowed by remand - Revenue seeks to deny credit on the ground that their supplier has paid service tax on the generators supplied under the head “Supply of Tangible Goods Services” before the same became taxable w.e.f. 16.05.2008 – HELD – there is no dispute regarding the fact of duty being paid on the generator - the service tax being paid, credit cannot be denied – Ld. Authorized Representative for the Department submits that all the cases cited by the appellant are in the realm of Central Excise and therefore, not applicable to the issue of service tax. Not inclined to accept this proposition - The basic principle of CENVAT credit being same under Central Excise & Service Tax regime, any differentiation in this regard would be artificial - The appellants are eligible to avail CENVAT credit on the service tax paid on the generator provided to them by their supplier and are eligible for refund of the same - Rejection of refund for the reason that the ST-3 Returns do not tally with the CENVAT credit Register – HELD - refund cannot be rejected for the reason that there is a discrepancy between the CENVAT record and ST-3 Returns - The appellants are eligible for refund of credit even if there is a mis-match between CENVAT credit records and ST-3 Returns, provided the appellants demonstrate that such services have been procured on payment of tax and are used in the provision of services exported - the issue requires to travel back to the Original Authority for a re-consideration. [Read less]
Service Tax – Demand of service tax on corporate guarantee provided on behalf of sister concerns – Validity of service tax demand absence consideration - HELD - There is no dispute that no consideration whatsoever was received by the respondent for the corporate guarantee which it had provided on behalf of its sister concerns - The demand has been made only on a notional amount calculated on the basis of the prevailing market rates for bank guarantees obtained from various banks - Service tax can be charged on the consideration received for providing taxable services. In other words, there must be a service provider, a... [Read more]
Service Tax – Demand of service tax on corporate guarantee provided on behalf of sister concerns – Validity of service tax demand absence consideration - HELD - There is no dispute that no consideration whatsoever was received by the respondent for the corporate guarantee which it had provided on behalf of its sister concerns - The demand has been made only on a notional amount calculated on the basis of the prevailing market rates for bank guarantees obtained from various banks - Service tax can be charged on the consideration received for providing taxable services. In other words, there must be a service provider, a service recipient, a taxable service and a consideration. The service provider shall be liable to pay service tax on the consideration which it receives for providing a taxable service. Any amount which is received but which is not a consideration for providing a taxable service is not exigible to service tax. Similarly, if a service is rendered, but no consideration is received no service tax can be charged - In the present case, there is not an iota of doubt that no consideration was received by the respondent-assessee - the impugned order is correct and proper and calls for no interference – Revenue appeal is dismissed [Read less]
GST - Liability of GST on renting of hostel rooms for residential purpose – Rendering of services by way of ‘renting of residential dwelling for use as residence' - Meaning of term “residential dwelling unit” - Whether the hostel and residential accommodation extended by the assessee-hostel would be eligible for exemption under Entry 12 of exemption Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 dated 28.06.2017 – Petitioners of the contention that hostels would fall within the purview of 'residential dwelling' occurring in Entry 12 of Exemption Notification No.12/2017, dated 28.06.2017 and thereby,... [Read more]
GST - Liability of GST on renting of hostel rooms for residential purpose – Rendering of services by way of ‘renting of residential dwelling for use as residence' - Meaning of term “residential dwelling unit” - Whether the hostel and residential accommodation extended by the assessee-hostel would be eligible for exemption under Entry 12 of exemption Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 dated 28.06.2017 – Petitioners of the contention that hostels would fall within the purview of 'residential dwelling' occurring in Entry 12 of Exemption Notification No.12/2017, dated 28.06.2017 and thereby, exempted from levy of GST whereas in the impugned order the Appellate Authority for Advance Ruling concluded that hostel building cannot be considered as residential dwelling, but a non-residential complex, hence hostel accommodation supplied by assessee are not eligible for exemption - HELD - the expression ‘residence’ and ‘dwelling’ have more or less the connotation in common parlance and therefore, no different meaning can be assigned to the expression ‘residential dwelling’ and accordingly, the term ‘residential dwelling’ includes hostel which is used for residential purposes by students or working women - From the term 'services by way of renting of residential dwelling for use as residence' contained in the exemption Notification, it is clear that the services provided by way of renting of residential dwelling for residential purpose are covered under the exemption. Therefore, the AAAR ought to have dealt with the matter in regard to the services provided by the petitioners by renting out the hostel rooms to the girl students and working women and whether such services are in the nature of residential or commercial in order to find out whether the petitioners are entitled to the exemption. But AAAR has dealt with the matter pertaining to the building/premises let out by the petitioners and compared the same with that of the hotels and came to the conclusion that the building/premises rented out by the petitioners are not residential dwelling for use as residence - GST is not applicable if a residential property is rented out to any persons in their personal capacity and for use as their own residence i.e., if a residential property is rented out, that too for residential purpose, then the rental income derived from such property does not attract GST - the word “residential dwelling” referred in Entry No.12 of the Exemption Notification No.12 of 2017 would include the hostel facilities provided by the petitioners to the working women, students, professional, etc. For the working women and professionals also, the said hostel room is residential dwelling unit for them - the imposition of GST on the Hostel accommodation should be viewed from the perspective of the recipient of service and not from the perspective of service provider – the 'hostel services' provided by the petitioners to the girl students and working women will squarely amount to the 'residential dwelling' and accordingly, the same will be squarely covered under the Entry No.12 of Exemption Notification No.12 of 2017 – the impugned orders passed by the Appellate Authority for Advance Ruling is set aside the writ petitions are allowed - Authorities have to look into the aspect as to whether the particular place is a dwelling unit or not. When such being the case, since the hostellers are staying in the room for months together, it cannot be construed as non-residential unit and certainly it is a residential dwelling as provided in the Entry No.12 of Exemption Notification No.12 of 2017. Thus, the 'hostel services' provided by the petitioners would squarely fall within purview of Entry No.12 of Exemption Notification No.12 of 2017. Further, in the present case, no commercial activities can be attributed against the owners of the hostels since they have been providing only 'residential accommodation' to the girl students, working women, etc., who are using the 'hostel premises' as their residence and not for business purpose - While adverting to the imposition of GST on hostel accommodation, it has to be looked into as to whether the inmates of the hostel rooms, are using the premises as their residential dwelling or commercial purpose since renting of residential unit attracts GST only when it is rented for commercial purpose. So, in order to claim exemption of GST, the nature of the end-use should be 'residential' and it cannot be decided by the nature of the property or the nature of the business of the service provider, but by the purpose for which it is used i.e. 'resident dwelling' which is exempted from GST. Therefore, this Court is of the considered view that the issue of levy of GST on residential accommodation should be viewed from the perspective of recipient of service and not from the perspective of service provider, who offers the premises on rental basis. [Read less]
GST - Cancellation of Registration – Fulfilment of supply towards pending orders - Petitioner prayer that cancellation of registration be kept on hold to enable the petitioner to complete the supply towards pending orders – HELD - the order cancelling the GST registration of the petitioner is modified to the extent that the petitioner would be permitted to make supplies to BHEL against the pending orders. BHEL is also directed to deposit the entire amount payable to the petitioner with the CGST Faridabad, South Division - the deposit made by BHEL with the said Authorities shall be subject to further orders to be passed... [Read more]
GST - Cancellation of Registration – Fulfilment of supply towards pending orders - Petitioner prayer that cancellation of registration be kept on hold to enable the petitioner to complete the supply towards pending orders – HELD - the order cancelling the GST registration of the petitioner is modified to the extent that the petitioner would be permitted to make supplies to BHEL against the pending orders. BHEL is also directed to deposit the entire amount payable to the petitioner with the CGST Faridabad, South Division - the deposit made by BHEL with the said Authorities shall be subject to further orders to be passed by this Court – this order has been passed in the peculiar facts and circumstances of the case and also because supplies are to be made to a PSU-BHEL and also the fact that non-supply is likely to affect some important projects of the State – Ordered accordingly [Read less]
GST - Assessment Order - Short payment of GST on unreconciled sales turnover - Reporting of incorrect turnover in the GSTR 3B return - Rectification of turnover in GSTR-9 annual return - Non-reversal of Input Tax Credit on account of sales rejection of defective goods – imposition of tax along with interest and penalty – HELD – the petitioner had made inadvertent errors while filing the GSTR 3B returns and such errors were rectified while filing the GSTR-9 annual return - adjudicating authority rejected the petitioner's explanation because the petitioner was lethargic in maintaining its accounts and proceeded on the ... [Read more]
GST - Assessment Order - Short payment of GST on unreconciled sales turnover - Reporting of incorrect turnover in the GSTR 3B return - Rectification of turnover in GSTR-9 annual return - Non-reversal of Input Tax Credit on account of sales rejection of defective goods – imposition of tax along with interest and penalty – HELD – the petitioner had made inadvertent errors while filing the GSTR 3B returns and such errors were rectified while filing the GSTR-9 annual return - adjudicating authority rejected the petitioner's explanation because the petitioner was lethargic in maintaining its accounts and proceeded on the basis that the petitioner was lax in reporting the mistake within a reasonable period - merely on the finding that the petitioner was lethargic in rectifying the error committed while filing the GSTR 3B returns does not justify the imposition of liability on the basis of a turnover which is reported wrongly - If the said amount is excluded and some allowance is made for the ITC reversal against the head relating to excess availment of ITC, the remittance of a sum of Rs.5 crore as a condition for remand would safeguard revenue interest pending adjudication of remanded proceedings since it would be equivalent to approximately 10% of the remaining disputed tax demand - the impugned order is quashed and the matter is remanded for reconsideration – the writ petition is disposed of [Read less]
Central Excise – Valuation - Inter-plant transfer of inputs – demand as per Rule 8 of the Central Excise Valuation Rules, 2000 - Department is of the view that 110% of the cost of production of inputs received from sister unit is to be taken into consideration for payment of duty – Applicability of decision of Larger Bench of this Tribunal passed in the case of ITC Ltd. Vs. Commissioner of Central Excise, Chennai - HELD - for the period involved in these appeals namely from May 2003 to December 2008, Circular dated 13.02.2003 issued for the purpose of determination of cost of production to meet the requirement of Rul... [Read more]
Central Excise – Valuation - Inter-plant transfer of inputs – demand as per Rule 8 of the Central Excise Valuation Rules, 2000 - Department is of the view that 110% of the cost of production of inputs received from sister unit is to be taken into consideration for payment of duty – Applicability of decision of Larger Bench of this Tribunal passed in the case of ITC Ltd. Vs. Commissioner of Central Excise, Chennai - HELD - for the period involved in these appeals namely from May 2003 to December 2008, Circular dated 13.02.2003 issued for the purpose of determination of cost of production to meet the requirement of Rule 8 was applicable and the said Circular clearly states that CAS-4 issued by ICWAI would be taken for the purpose of determination of cost and CAS-4 has clearly stated that cost of “material consumed” shall be the cost of material, duties and taxes, freight inwards, insurances and other expenses directly attributable to the procurement and therefore, Appellant’s contentions that cost of billets for Tarapur Unit (Thane) is the cost of billets determined by the Jamshedpur factory without addition of 10% is untenable for the reason that Rule 8 does not state about additional or notational profit at 15/10% but it states that the value in case of Inter-plant transfer would be 110% of the cost of production or manufacture of such goods and in making a comparison between Rule 6(b)(ii) of the Valuation Rules, 1975 with Rule 8 of the Valuation Rules, 2000, notional profit, which was envisaged in the old Rule, is no more available in the present Rule 8 for which definition of cost in CAS-4 would determine the cost of material received at Tarapur unit and as per Rule 8 it would be 115/110% of the cost of production of Billets and not cost of raw material consumed for manufacturing of Billets - in respect of the rule of precedent and in obedience to the decision of Hon'ble Supreme Court, these appeals are decided on the basis of the finding of the Larger Bench, that has accepted the reasoning of the Division Bench of Mumbai on point of law but departed to give a contrary finding on the basis of apparently erroneous observation of the decision of the Hon'ble Supreme Court passed in connection with the erstwhile provision contained in Valuation Rules, 1975 existing prior to the relevant period would cause further hardship to the parties - it would not be a breach of judicial propriety to give a finding that Appellant is liable to pay the duty, interest and penalty as demanded in the Show-cause notice that was also confirmed by this Tribunal vide its earlier order – the appeals are dismissed [Read less]
GST - Bonafide mistake of claim of input tax credit of IGST instead of CGST/SGST – Demand of tax, interest and penalty for ITC wrongly availed as IGST instead of CGST/SGST - petitioner placed reliance on the judgment of the Karnataka High Court in the case of M/s. Orient Traders to contend that disallowance of the input tax for bonafide mistake is not correct and the ITC claimed wrongly availed as IGST instead of CGST should be allowed – HELD - Section 54 read with Section 49 of the CGST Act, 2017 prescribes for refund of excess tax etc., paid by the registered dealer by moving an application within the period of two ... [Read more]
GST - Bonafide mistake of claim of input tax credit of IGST instead of CGST/SGST – Demand of tax, interest and penalty for ITC wrongly availed as IGST instead of CGST/SGST - petitioner placed reliance on the judgment of the Karnataka High Court in the case of M/s. Orient Traders to contend that disallowance of the input tax for bonafide mistake is not correct and the ITC claimed wrongly availed as IGST instead of CGST should be allowed – HELD - Section 54 read with Section 49 of the CGST Act, 2017 prescribes for refund of excess tax etc., paid by the registered dealer by moving an application within the period of two years from the last date of filing the returns for the relevant year - In the present case, the financial year is of 2017-18 for which the due date for filing the application for correcting the mistake or claiming the refund of the IGST was 23.04.2019. Admittedly, the petitioner did not move any application within the time prescribed and even the extended time - in exercise of its limited jurisdiction this Court cannot amend the statute and prescribes different time limit for moving such an application – in the judgment of the Karnataka High Court in the case of M/s. Orient Traders, the statutory provisions have not been taken into consideration. The said Judgment does not have any binding precedent – the writ petition is dismissed [Read less]
Customs - Seizure of gold biscuits - Confiscation of gold and levy of penalty on the ground that seized gold was smuggled in nature –territorial jurisdiction of Rajasthan High Court to entertain the instant writ petition when as no part of cause of action arose in the State of Rajasthan – HELD – in the instant case, the gold biscuits were confiscated at Guwahati, the enquiry had been held at Guwahati and Shillong, the charges had been framed at Shillong and further the order was also passed by Commissioner of Customs at Shillong – the entire proceedings, including confiscation, recording of the statements, hearing ... [Read more]
Customs - Seizure of gold biscuits - Confiscation of gold and levy of penalty on the ground that seized gold was smuggled in nature –territorial jurisdiction of Rajasthan High Court to entertain the instant writ petition when as no part of cause of action arose in the State of Rajasthan – HELD – in the instant case, the gold biscuits were confiscated at Guwahati, the enquiry had been held at Guwahati and Shillong, the charges had been framed at Shillong and further the order was also passed by Commissioner of Customs at Shillong – the entire proceedings, including confiscation, recording of the statements, hearing of the case etc. were conducted at Shillong (Meghalaya), and that, the gold biscuits i.e. the articles in question, never reached the territory of the State of Rajasthan – only on count of the fact that the residence of the petitioner is situated in the State of Rajasthan, the territorial jurisdiction does not lie with this Court - the Court is conscious of the fact that the present matter is quite old, but the same also cannot be the ground to hear and decide the case on its own merits, for lack of jurisdiction - petition is accordingly disposed of, with liberty to the petitioner to avail the remedy before the Court of competent jurisdiction, strictly in accordance with law - the petition disposed of [Read less]
Kerala Value Added Tax Act, 2003 - Payment of tax at the compounded rates on production of granite metals and/or manufactured sand with the aid of mechanized machines – Imposition of penalty for the mis-declaration of the maximum capacity of the vertical/horizontal shaft Impactors – HELD – the proviso to Section 8(b) of the KVAT Act, 2003 makes it clear that where the vertical/horizontal shaft impactor machines are used along with other machines in the factory of the assessee dealer, the payment of compounded tax will only be in an amount equivalent to 60% of the rate of compounded tax for the vertical/horizontal sha... [Read more]
Kerala Value Added Tax Act, 2003 - Payment of tax at the compounded rates on production of granite metals and/or manufactured sand with the aid of mechanized machines – Imposition of penalty for the mis-declaration of the maximum capacity of the vertical/horizontal shaft Impactors – HELD – the proviso to Section 8(b) of the KVAT Act, 2003 makes it clear that where the vertical/horizontal shaft impactor machines are used along with other machines in the factory of the assessee dealer, the payment of compounded tax will only be in an amount equivalent to 60% of the rate of compounded tax for the vertical/horizontal shaft impactor machines, in addition to the tax on the crushing machines available in the factory. In the instant case, appellants-dealers had mis-declared the production capacity of the machines and declared a lower production capacity based on their experience of having been able to produce only a lesser amount of goods using the machines in question - the action of the dealers was wholly illegal in that the scheme of the Act makes it clear that it is only the production capacity of the machine, as declared by the manufacturer of the machine, that is relevant for the purposes of determining the tax liability in respect of those machines. If it was the case of the dealers that the actual production capacity was less than the total production capacity declared by the manufacturer, it was open to them to resort to the normal assessment procedure contemplated under Section 6 of the KVAT Act. This not having been done, and the dealers in question having opted for payment of tax on compounded basis, it was not open to them to take a stand contrary to the express provisions of the statute while determining their tax liability - no reason to interfere with the orders impugned in the Revision Petitions/Writ Petition for the said orders have correctly interpreted the statutory provision – notwithstanding that there was a mis-declaration of the production capacity of the machines in question, the assessees had reasonably believed that it was the actual production capacity of the machines that had to be taken for the purposes of payment of compounded tax. In view of the genuine belief of the assessee in this regard the imposition of the maximum penalty of twice the tax sought to be evaded by the assessee, is not justified – the penalty imposed is reduced to the actual amount of compounded tax, that was found to have been evaded and not twice the said amount. The Intelligence Officer shall pass a revised order of penalty in respect of these assesees showing the reduced amount of penalty, for the record - Revision Petitions and Writ Appeals are partly allowed [Read less]
GST - Cancellation of registration without assigning any reason – the appeal preferred by the petitioner against cancellation of registration dismissed on the ground of delay - HELD - no reason has been assigned for cancellation of the registration of the petitioner. The order of cancellation is in the teeth of various judgments of this Court - The reasons are heart and soul of any judicial and administrative order. In absence of the same the order cannot be justified in the eye of law. Further since the appeal of the petitioner was dismissed on the ground of delay, the doctrine of merger will have no application conside... [Read more]
GST - Cancellation of registration without assigning any reason – the appeal preferred by the petitioner against cancellation of registration dismissed on the ground of delay - HELD - no reason has been assigned for cancellation of the registration of the petitioner. The order of cancellation is in the teeth of various judgments of this Court - The reasons are heart and soul of any judicial and administrative order. In absence of the same the order cannot be justified in the eye of law. Further since the appeal of the petitioner was dismissed on the ground of delay, the doctrine of merger will have no application considering the facts and circumstances of the present case – the impugned order is set aside and the writ petition is allowed [Read less]
Service Tax – Short payment of service tax - Composition scheme for Works Contract Service – appellant deposited service tax @4.12% of the taxable value instead of 10.30% of the taxable value - issue of Show cause notice on the ground that the cost of materials was not taken into account for payment of the service tax - demand of short paid service tax along with interest under Section 73(2)/75 of the Finance Act, 1994 and penalty under Section 77 and 78 of the Act – HELD – not convinced with the contention submission made by the appellant that the period of October to December, 2009 (subject matter in issue) was a... [Read more]
Service Tax – Short payment of service tax - Composition scheme for Works Contract Service – appellant deposited service tax @4.12% of the taxable value instead of 10.30% of the taxable value - issue of Show cause notice on the ground that the cost of materials was not taken into account for payment of the service tax - demand of short paid service tax along with interest under Section 73(2)/75 of the Finance Act, 1994 and penalty under Section 77 and 78 of the Act – HELD – not convinced with the contention submission made by the appellant that the period of October to December, 2009 (subject matter in issue) was already considered by the earlier Audit team and the appellant had voluntarily paid the differential amount - there is a standard practice that the Departmental Audit is conducted for a specified period, which has been clearly mentioned in IAR as April, 2006 to September, 2009 in Col.-9 in Part-I and the appellant has not shown anything that the period specified was extended by the proper officer, there is no merit in the submission of the learned Counsel that IAR No.07/2010 dated 20.04.2010 covered the period from October – December, 2009 - in the interest of justice that the appellant may be granted an opportunity to place on record the requisite documents as the stand taken by the appellant is that the bills of VAT/Sales Tax on materials used in the ‘Works Contract Service’ have already been provided to the Superintendent, Service Tax - matter is remanded to the Adjudicating Authority, granting liberty to the appellant as well as to the Department to place on record the documents and the Adjudicating Authority may consider the same on merits - The appeal is allowed by way of remand [Read less]
Central Excise - Classification of ‘Reusable Insulin Delivery Device’ - appellant case that Reusable Insulin Delivery Device are classifiable under Chapter sub-heading 9018 3100 - Department of the view that the subject product falls under Serial No. 309 of the Notification No. 12/2012-CE dated 17.03.2012 as amended which covers “parts and accessories” of the goods of heading 9018 and 9019 and attracts nil rate of duty - Whether the product “Reusable Insulin Delivery Device” cleared as “Syringes without needles” is exempted from duty under serial No. 309 of Notification No. 12/2012-CE dated 17.03.2012 or it... [Read more]
Central Excise - Classification of ‘Reusable Insulin Delivery Device’ - appellant case that Reusable Insulin Delivery Device are classifiable under Chapter sub-heading 9018 3100 - Department of the view that the subject product falls under Serial No. 309 of the Notification No. 12/2012-CE dated 17.03.2012 as amended which covers “parts and accessories” of the goods of heading 9018 and 9019 and attracts nil rate of duty - Whether the product “Reusable Insulin Delivery Device” cleared as “Syringes without needles” is exempted from duty under serial No. 309 of Notification No. 12/2012-CE dated 17.03.2012 or it is liable to concessional rate of duty at the rate of 6% under serial No. 310 of Notification No. 12/2012-CE dated 17.03.2012 - demand of Cenvat credit availed on input and input services on the ground that finished goods are eligible for complete exemption and appellants have wrongly paid Central Excise duty at the on final product – HELD – The only dispute is whether the impugned finished product namely Syringes with or without needle will fall under Serial No. 309 or 310 of Notification No. 12/2012-CE dated 17.03.2012 - Reusable Insulin Delivery Device is nothing but a “Syringe without needle” and is rightly classifiable under Chapter sub-heading 9018 3100 - So far as the availability of Notification No. 12/2012-CE is concerned, the entry at Serial No. 309 covers only parts and accessories of goods of heading 9018 and 9019 whereas more specific serial number for concessional rate of duty under the exemption Notification No. 12/2012-CE for the product will be under Serial No. 310 which reads as “All goods (other than parts and accessories thereof)” - the impugned manufactured product is “Syringes without needle” and the same cannot be classified as “parts and accessories” of the goods of heading 9018. Therefore, the impugned product will be entitled for concessional rate of duty under Serial No. 310 of exemption Notification No. 12/2012-CE dated 17.03.2012. Accordingly, the appellants have rightly been paying excise duty at the concessional rate of 6% and they are entitled for Cenvat Credit on the inputs and input services availed by them - the impugned orders-in-appeal is set aside and appeal is allowed [Read less]
Service Tax – Appellant arranged for transportation for delivery of finished goods manufactured by them to their clients/buyers - Collection of an amount in excess of the actual freight incurred towards the transportation and delivery of goods to customers - Demand of service tax under Business Auxiliary Service on part of freight charges retained while making payments to the transporters – Demand beyond the scope of show cause notice - HELD - the show cause notice was issued alleging the amount in question to have been charged by the appellant for rendering Business Auxiliary Services whereas Commissioner (Appeals) ha... [Read more]
Service Tax – Appellant arranged for transportation for delivery of finished goods manufactured by them to their clients/buyers - Collection of an amount in excess of the actual freight incurred towards the transportation and delivery of goods to customers - Demand of service tax under Business Auxiliary Service on part of freight charges retained while making payments to the transporters – Demand beyond the scope of show cause notice - HELD - the show cause notice was issued alleging the amount in question to have been charged by the appellant for rendering Business Auxiliary Services whereas Commissioner (Appeals) has held that the said amount to be a difference between the actual freight paid to the transporter and gross freight collected from the buyers of the goods is nothing but the brokerage or commission - Commissioner (Appeals) has gone beyond the scope of show cause notice and confirmed a demand on a different count which was not brought to the notice of the appellant, such confirmation of the service tax amounts to confirmation of tax under new categories and the same is not legally permissible – On merit on the case, facilitating the delivery of goods by engaging transporters cannot be said to be any of the activities under clause (i) to clause (vii) of Section 65(19) of Finance Act defining Business Auxiliary Service. The buyer of goods manufactured by appellant cannot be held to be the service recipient being the party to contract of sale/purchase order. Thus, there is no activity of appellant which may be called as Business Auxiliary Service - The transaction in question is between principal manufacturer to principal buyer. The freight charges are in addition to the value of the goods. The surplus is earned by the appellant by not acting as a service provider to the transporter nor to the buyer - the mere activity of sale cannot be called as taxable service. Earning profit in the said arrangement therefore cannot come under the service tax net - the order under challenge is set aside and appeal stands allowed [Read less]
Service Tax - Section 73(3) of the Finance Act, 1994 - Non-payment of service tax - Revenue neutrality - Revenue appeal against CESTAT order allowing Respondent-assessee’s appeal and holding that there is no wilfull mis-statement or evidence of fraud or collusion to invite imposition of penalty – HELD – Though the Tribunal agreed with the Revenue and the laws laid down that the tax has to be paid regardless of Revenue neutrality, however, the Tribunal had rightly reached to the conclusion that there was no fraud attempted on the part of the respondent-assessee to evade the service tax – Further, the regime was amen... [Read more]
Service Tax - Section 73(3) of the Finance Act, 1994 - Non-payment of service tax - Revenue neutrality - Revenue appeal against CESTAT order allowing Respondent-assessee’s appeal and holding that there is no wilfull mis-statement or evidence of fraud or collusion to invite imposition of penalty – HELD – Though the Tribunal agreed with the Revenue and the laws laid down that the tax has to be paid regardless of Revenue neutrality, however, the Tribunal had rightly reached to the conclusion that there was no fraud attempted on the part of the respondent-assessee to evade the service tax – Further, the regime was amended by the changes made to the Act of 2012 whereby only specified taxable services, which were chargeable to service tax earlier, were changed to services being taxable to all except those in the negative list. The issue is relating to the tax after the amendment i.e. 2012 - no case is made out in favour of the Revenue, and no error can be said to have been committed by the Tribunal – the Revenue appeal is dismissed [Read less]
Jharkhand Value Added Tax Act, 2005 – Transportation of goods without valid Road Permit in Form JVAT-504B – Levy of penalty on the presumption of attempt of evasion of tax on non-production of Road Permit in Form JVAT-504B - Interpretation of Statute – HELD - This is general rule of interpretation that wherever “comma” appears that would imply a break in the provision which shall be construed in this case as providing alternative penalty for the breach of the provisions under section 3(a) of the JVAT Act – The Legislative intention of sub-section (6) of section 72 of the JVAT Act is clear and unambiguous, the a... [Read more]
Jharkhand Value Added Tax Act, 2005 – Transportation of goods without valid Road Permit in Form JVAT-504B – Levy of penalty on the presumption of attempt of evasion of tax on non-production of Road Permit in Form JVAT-504B - Interpretation of Statute – HELD - This is general rule of interpretation that wherever “comma” appears that would imply a break in the provision which shall be construed in this case as providing alternative penalty for the breach of the provisions under section 3(a) of the JVAT Act – The Legislative intention of sub-section (6) of section 72 of the JVAT Act is clear and unambiguous, the alternative penalty of Rs.5000/- is not intended to vest a general power in the officer authorized to impose penalty equal to three times of the tax leviable on goods, even though the goods in movement is not taxable in Jharkhand. If such an interpretation is given to the provisions under sub-section (6) of section 72 that shall amount to conferring arbitrary powers on the officer empowered who can misuse this power in any or every case. The alternative penalty of Rs.5000/- provided under sub-section (6) of section 72 shall be imposed for committing breach under clause (a) sub-section (3) in cases where the goods in transportation is not liable to be taxed in Jharkhand - Respondents drawn an inference as to evasion of tax on mere non-production of Road Permit in Form JVAT-504B and approved demand of three times the tax leviable on such goods. While drawing such inference, the statutory Authorities clearly ignored the provisions under sub-section (6) of section 72 of the JVAT Act that there is an alternative amount of tax which can be imposed by way of penalty for violation of clause (a) of sub-section (3) of section 72 if the goods in movement are not taxable in Jharkhand – the appellate order and the demand notice are set aside and the petitioner shall be saddled with the penalty of Rs.5000/- and the balance amount of penalty deposited by it shall be refunded – writ petition is allowed [Read less]
GST - Bail application in connection with case registered under Sections 132(1) of the CGST Act, 2017 – issue of fake invoices for the purpose of claiming bogus Input Tax Credit without actual receipt and supply of goods – HELD - the petitioner was arrested on 21.01.2021 and is in custody since then. The offences are triable by the Court of Magistrate and the final report under Section 173 Cr.P.C. has already been presented before the competent Court - no purpose would be served by keeping the petitioner behind bars. Moreover, the pendency of the other criminal case is no ground to reject the bail application of the pe... [Read more]
GST - Bail application in connection with case registered under Sections 132(1) of the CGST Act, 2017 – issue of fake invoices for the purpose of claiming bogus Input Tax Credit without actual receipt and supply of goods – HELD - the petitioner was arrested on 21.01.2021 and is in custody since then. The offences are triable by the Court of Magistrate and the final report under Section 173 Cr.P.C. has already been presented before the competent Court - no purpose would be served by keeping the petitioner behind bars. Moreover, the pendency of the other criminal case is no ground to reject the bail application of the petitioner as he has been able to make out a case for grant of bail in the peculiar facts and circumstances of the present case - petition is allowed and the petitioner is ordered to be released on bail subject to his furnishing bail bonds/surety bonds to the satisfaction of the trial Court/Duty Magistrate/Chief Judicial Magistrate, concerned – the petition is allowed [Read less]
GST - Assessment order - Mis-match in turnover as per Form 26AS and GSTR-3B Return - Non-furnished reconciliation statement of Form 26AS – petitioner aggrieved by rejection of its reply to show casue notice and confirmation of demand - HELD – the assessing officer rejected the petitioner's reply on the ground that such reply was descriptive and on the ground that no re-conciliation statements were uploaded - The reply from the Chartered Accountant in Form GST ASMT-11 refers categorically to a re-conciliation statement being attached along with sample invoices for review – however, petitioner failed to submit all rele... [Read more]
GST - Assessment order - Mis-match in turnover as per Form 26AS and GSTR-3B Return - Non-furnished reconciliation statement of Form 26AS – petitioner aggrieved by rejection of its reply to show casue notice and confirmation of demand - HELD – the assessing officer rejected the petitioner's reply on the ground that such reply was descriptive and on the ground that no re-conciliation statements were uploaded - The reply from the Chartered Accountant in Form GST ASMT-11 refers categorically to a re-conciliation statement being attached along with sample invoices for review – however, petitioner failed to submit all relevant invoices pertaining to alleged expenses as to justify the non-inclusion of such expenses in the taxable turnover. Nonetheless, the order calls for interference since the explanation of the petitioner was not duly considered - the impugned order is quashed and the matter is remanded for re-consideration. The petitioner is permitted to submit any additional documents to explain the disparity between the taxable turnover reported in its returns and the details contained in Form 26AS – the writ petition is disposed of [Read less]
Customs - Refund of SAD – Rejection of refund of 4% SAD on the ground that Appellant failed to show the due amount of refund as receivable in the books of account which amounts to non-compliance of mandatory condition of Notification No. 102/2007-Cus dated 14.09.2007 and failed to pass onus of unjust enrichment – HELD – it is well settled that once the Appellant produced certificate from concerned Chartered Accountant wherein it is certified that the Appellant had not collected additional levy from the customers in respect of the goods imported and sold by the appellant, it is sufficient to meet the requirement of un... [Read more]
Customs - Refund of SAD – Rejection of refund of 4% SAD on the ground that Appellant failed to show the due amount of refund as receivable in the books of account which amounts to non-compliance of mandatory condition of Notification No. 102/2007-Cus dated 14.09.2007 and failed to pass onus of unjust enrichment – HELD – it is well settled that once the Appellant produced certificate from concerned Chartered Accountant wherein it is certified that the Appellant had not collected additional levy from the customers in respect of the goods imported and sold by the appellant, it is sufficient to meet the requirement of unjust enrichment and compliance of the conditions of Notification. Further, Chartered Accountant has also compared the price of item prior to and thereafter on introduction of 4% SAD, certified that burden of duty has not been passed on the customers - The Department have no case that the goods were sold without payment of VAT or Sale Tax as applicable. In the absence of any other objection, impugned order rejecting the refund claim is unsustainable - rejection of the refund claim alleging non-compliance with the Notification No. 102/2007 dated 14.09.2007 is unsustainable - Chartered Accountant certificate produced by the Appellant is sufficient to allow refund – the appeal is allowed [Read less]
GST - GSTR 3B and GSTR 2A mis-match - Initiation of two separate proceedings in respect of the same assessment period and in respect of same issue – Withdrawal of proceeding by rectification order upon realizing that two proceedings were initiated in respect of the same assessment period – Demand of tax, interest and penalty despite payment of amount by the petitioner - HELD – considerable confusion has been created by initiating two separate proceedings in respect of the same assessment period and in respect of the same issue. The rectification order is also unclear with regard to the reasons for rectification. Such... [Read more]
GST - GSTR 3B and GSTR 2A mis-match - Initiation of two separate proceedings in respect of the same assessment period and in respect of same issue – Withdrawal of proceeding by rectification order upon realizing that two proceedings were initiated in respect of the same assessment period – Demand of tax, interest and penalty despite payment of amount by the petitioner - HELD – considerable confusion has been created by initiating two separate proceedings in respect of the same assessment period and in respect of the same issue. The rectification order is also unclear with regard to the reasons for rectification. Such order indicates that there is no tax liability. In these circumstances, the petitioner is entitled to another opportunity to explain the mis-match between the GSTR 3B and GSTR 2A returns - the impugned order is quashed subject to the condition that the petitioner remits a sum of Rs.2 lakhs towards the disputed tax demand made therein - Subject to being satisfied that the sum of Rs.2 lakhs towards disputed tax liability is received, the Assessing Officer is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh assessment order - writ petition stands disposed of [Read less]
GST – Payment of tax on RCM basis under Notification No.13/2017-CT (Rate) on providing services of transportation of goods - Filing of NIL turnover in Form GSTR-1 - Validity of Assessment Order confirming demand of tax with interest and penalty taking turnover on Pan-India basis on the ground that the petitioner did not provide documents with regard to turnover from Tamil Nadu – HELD - Although the petitioner had submitted the balance sheet and ITR details, the assessing officer recorded findings contrary to the documents on record - the assessing officer notices that the all India balance sheet discloses other income ... [Read more]
GST – Payment of tax on RCM basis under Notification No.13/2017-CT (Rate) on providing services of transportation of goods - Filing of NIL turnover in Form GSTR-1 - Validity of Assessment Order confirming demand of tax with interest and penalty taking turnover on Pan-India basis on the ground that the petitioner did not provide documents with regard to turnover from Tamil Nadu – HELD - Although the petitioner had submitted the balance sheet and ITR details, the assessing officer recorded findings contrary to the documents on record - the assessing officer notices that the all India balance sheet discloses other income and after noticing such other income, tax liability with interest and penalty is imposed in respect of the turnover which, according to the petitioner, is taxable entirely on RCM basis. Therefore, the impugned assessment order is vitiated by non-application of mind. Hence, such order is not sustainable and set aside - the impugned assessment order is quashed and the matter is remanded for re-consideration – writ petition is disposed of [Read less]
Central Excise - Disposal of waste generated in the course of manufacturing - Non-reversal of credit availed in respect of exempted services – Dropping of proceedings – Dept of the view that Respondent-assessee is required to follow Rule 6(3) of CCR, 2004 and proportionately reverse CENVAT Credit involved on exempted waste in terms of Rule 6(3)(ii) of the CENVAT Credit Rules, 2004 – Demand beyond the Show-cause notice - HELD – demand was solely based on the ground that out of two varieties of manufacturing waste, one is exempted from payment of Excise Duty for which demand is raised against non-reversal of the alle... [Read more]
Central Excise - Disposal of waste generated in the course of manufacturing - Non-reversal of credit availed in respect of exempted services – Dropping of proceedings – Dept of the view that Respondent-assessee is required to follow Rule 6(3) of CCR, 2004 and proportionately reverse CENVAT Credit involved on exempted waste in terms of Rule 6(3)(ii) of the CENVAT Credit Rules, 2004 – Demand beyond the Show-cause notice - HELD – demand was solely based on the ground that out of two varieties of manufacturing waste, one is exempted from payment of Excise Duty for which demand is raised against non-reversal of the allegedly inadmissible credit availed on those exempted products - it is a settled principle of law that duty is not payable on waste and scrap of packing material of inputs – Further, Dept has raised a new ground before the Tribunal seeking its indulgence in reversing the order passed by the Commissioner that assessee was engaged in providing exempted services like trading of goods, which was not alleged in the Show-cause notices - demand is not sustainable if it had travelled beyond the Show-cause notice or made contrary to it - the order passed by the Commissioner is confirmed and revenue appeals are dismissed [Read less]
GST - Section 6(2)(b) of the CGST Act, 2017 - Parallel proceedings - Initiation of action by State Authorities – issuance of the summons under Section 70 of the CGST Act by the DGGI - validity of summons issued by the DGGI when the State Authorities had already initiated action on the same subject matter – Whether summons issued under Section 70 of the CGST Act can be said to be initiation of proceedings – HELD – scope of Section 6(2)(b) and Section 70 of the CGST Act is different and distinct, as the former deals with any proceedings on subject matter, whereas the latter deals with power to issue summon in an inqu... [Read more]
GST - Section 6(2)(b) of the CGST Act, 2017 - Parallel proceedings - Initiation of action by State Authorities – issuance of the summons under Section 70 of the CGST Act by the DGGI - validity of summons issued by the DGGI when the State Authorities had already initiated action on the same subject matter – Whether summons issued under Section 70 of the CGST Act can be said to be initiation of proceedings – HELD – scope of Section 6(2)(b) and Section 70 of the CGST Act is different and distinct, as the former deals with any proceedings on subject matter, whereas the latter deals with power to issue summon in an inquiry and therefore, the words “proceedings” and “inquiry” cannot be mixed up to read as if there is a bar for the respondents-Revenue to invoke the power under Section 70 of the CGST Act - issuance of summons is not initiation of proceedings referable to under Section 6(2)(b) of the CGST Act - issuance of summons for conducting an inquiry and to obtain a statement from the appellant cannot be construed to be bar under Section 6(2)(b) of the CGST Act. Hence, issuance of summons under Section 70 of the CGST Act is not hit by Section 6(2)(b) of the CGST Act - the writ petition is dismissed [Read less]
GST - Section 29(2) of the CGST Act, 2017 - Cancellation of registration with retrospective effect without specify any cogent reason - Violation of principles of natural justice – HELD – Show Cause Notice also does not put the petitioner to notice that the registration is liable to be cancelled retrospectively. Accordingly, the petitioner had no opportunity to even object to the retrospective cancellation of the registration – further, the Show Cause Notice and the impugned order are also bereft of any details accordingly the same cannot be sustained and neither the Show Cause Notice, nor the order spell out the reas... [Read more]
GST - Section 29(2) of the CGST Act, 2017 - Cancellation of registration with retrospective effect without specify any cogent reason - Violation of principles of natural justice – HELD – Show Cause Notice also does not put the petitioner to notice that the registration is liable to be cancelled retrospectively. Accordingly, the petitioner had no opportunity to even object to the retrospective cancellation of the registration – further, the Show Cause Notice and the impugned order are also bereft of any details accordingly the same cannot be sustained and neither the Show Cause Notice, nor the order spell out the reasons for retrospective cancellation – since the Petitioner does not seek to carry on business or continue the registration, the impugned order is modified to the limited extent that registration shall now be treated as cancelled with effect from the date when the Petitioner closed down his business activities - Petition is accordingly disposed of [Read less]
GST - Rule 26 of the CGST Rules, 2017 – Un-singed SCN and assessment order - Validity of show cause notice and the assessment order having not been signed either digitally or physically – HELD – since the impugned order is an un-signed document it loses its efficacy in the light of requirement of Rule 26(3) of the CGST Rules, 2017 - The show cause notice as also the impugned order both would not be sustainable and the same is set aside – the Writ Petition stands allowed
Customs - Recovery of Merchant Over Time charges for using service of Central Excise Officers during office hours – Whether MOT charges would be payable for examination and supervision of loading export goods undertaken by the Central Excise Range Officer at the factory premises of the manufacturers within normal working hours situated in their territorial jurisdiction – Revenue contention that MOT charges are payable by the appellant as the Central Excise Officers are discharging their duties in capacity and style of Custom Officers - HELD – overtime fee is collected under section 36 of the Customs Act read with Cus... [Read more]
Customs - Recovery of Merchant Over Time charges for using service of Central Excise Officers during office hours – Whether MOT charges would be payable for examination and supervision of loading export goods undertaken by the Central Excise Range Officer at the factory premises of the manufacturers within normal working hours situated in their territorial jurisdiction – Revenue contention that MOT charges are payable by the appellant as the Central Excise Officers are discharging their duties in capacity and style of Custom Officers - HELD – overtime fee is collected under section 36 of the Customs Act read with Customs (Fees for Rendering Services by Customs Officers) Regulations, 1998 made thereunder - It is not in dispute that the place of working/ supervision was at the factory of the appellant and it is also not in dispute that supervision was made by the Range Central Excise Officer in whose territory the factory of the appellant is located - Chapter 13 of the CBEC Customs Manuals deals with “Merchant Overtime Fee” wherein it is provided that if services are rendered by the Custom Officer at a place which is not his normal place of work or place beyond the custom area, overtime is levied even during the normal working hours - in the facts of the case, none of the condition for levy of the MOT charges is satisfied. Accordingly, the appellant would not be liable to pay MOT Charges for carrying out examination and supervision of loading of export goods at the factory premises of the manufacturer during the office hours on working day by the Central Excise Officers - the appeal is allowed [Read less]
GST - Provisional attachment of Bank Account - Prayer for lifting of attachment of Bank Account for the purpose of payment of pre-deposit to avail statutory right of appeal under Section 107 of the CGST Act, 2017 – HELD - prayers as made by the petitioner are required to be permitted, as such amount is to be utilized by the Petitioner for making the pre-deposit, hence, it would not fall under the description of the amount being used for any private purpose, but to deposit the same, with the Government for maintaining the Appeal - The Petitioner is permitted to operate its Bank Account to withdraw 10% of the disputed tax ... [Read more]
GST - Provisional attachment of Bank Account - Prayer for lifting of attachment of Bank Account for the purpose of payment of pre-deposit to avail statutory right of appeal under Section 107 of the CGST Act, 2017 – HELD - prayers as made by the petitioner are required to be permitted, as such amount is to be utilized by the Petitioner for making the pre-deposit, hence, it would not fall under the description of the amount being used for any private purpose, but to deposit the same, with the Government for maintaining the Appeal - The Petitioner is permitted to operate its Bank Account to withdraw 10% of the disputed tax amount to be deposited for the purpose of filing of the Appeal in assailing the impugned Order-in-Original - The Petitioner is also permitted to avail of the facility of electronics (NEFT/ RTGS) transfer for making such deposit. To such extent and only in respect of the said amount, the provisional attachment of the Bank Account in question shall stand lifted, and for no other purpose. It should be a single transaction – the petition is disposed of [Read less]
GST - Section 6 of the CGST/TNGST Act, 2017 - Cross-empowerment - Jurisdiction of Proper officers – Validity of proceedings initiated by the Central Tax Authorities in respect to the taxpayers assigned to the State Tax Authorities in the absence of proper Notification under Section 6 of the respective GST enactments for cross-empowerment - Whether the petitioners-assessees who are assigned to either the Central Tax Authorities or the State Tax Authorities can be subjected to investigation and further proceeding by the counterparts under the respective GST enactments – HELD – under Section 4(1) and (2) of CGST Act, 20... [Read more]
GST - Section 6 of the CGST/TNGST Act, 2017 - Cross-empowerment - Jurisdiction of Proper officers – Validity of proceedings initiated by the Central Tax Authorities in respect to the taxpayers assigned to the State Tax Authorities in the absence of proper Notification under Section 6 of the respective GST enactments for cross-empowerment - Whether the petitioners-assessees who are assigned to either the Central Tax Authorities or the State Tax Authorities can be subjected to investigation and further proceeding by the counterparts under the respective GST enactments – HELD – under Section 4(1) and (2) of CGST Act, 2017, CBIC can authorize any officer referred to in clauses (a) to (h) of Section 3 of CGST Act, 2017 to appoint any officers of the Central Tax below the rank of Assistant Commissioner of Central Tax to be the Central Tax Officer for the administration of the CGST Act, 2017 alone. Thus, under Section 4(2) of the CGST Act, 2017, there can be only a linear delegation. Similarly, under Section 4(2) of the TNGST Act, 2017, such delegation is only to officers appointed under TNGST Act, 2017 and here also the delegation is linear - Neither the Board under Section 4(1) and (2) of CGST Act, 2017 nor the Government and/or the Commissioner under Section 4(1) and (2) of SGST Act, 2017 can appoint such officers in addition to the officer notified under Section 3 of the respective Act. Thus, the Board can appoint and delegate only to Central Tax Officers appointed under the CGST Act, 2017 for CGST Act and the Government and/or the Commissioner can appoint and delegate only to State Tax Officers appointed under the TNGST Act, 2017 for SGST Act - Section 6(1) of the respective GST enactments empowers Government to issue notification on the recommendation of GST Council for cross-empowerment. However, no notification has been issued except under Section 6(1) of the respective GST Enactments for the purpose of refund although officers from the Central GST and State GST are proper officers under the respective GST Enactments - if an assessee has been assigned administratively with the Central Authorities or State Authorities, pursuant to the decision taken by the GST Council as notified by Circular No.01/2017, the State Authorities or Central Authorities respectively have no jurisdiction to interfere with the assessment proceedings in absence of a corresponding Notification under Section 6 of the respective GST Enactments - in absence of any notification for cross-empowerment, except for the purpose of refund of tax, impugned proceedings are to be held without jurisdiction - Officers under the State or Central Tax Administration as the case may be cannot usurp the power of investigation or adjudication of an assessee who is not assigned to them - the impugned proceedings are set aside and writ petitions are allowed [Read less]
GST – Application for anticipatory bail apprehending arrest - allegation against the petitioners availment of fraudulent Input Tax Credit and passed ITC without actual supply of goods – HELD – it is considered fit to grant anticipatory bail to the petitioners on stringent conditions - The petitioners shall surrender before the Investigating Officer / Apprehending Authority within 15 days from the date of this order and on such surrender they shall be released on bail on their furnishing a personal bond - The petitioners shall surrender their passports before the Investigating Officer / Apprehending Authority and shal... [Read more]
GST – Application for anticipatory bail apprehending arrest - allegation against the petitioners availment of fraudulent Input Tax Credit and passed ITC without actual supply of goods – HELD – it is considered fit to grant anticipatory bail to the petitioners on stringent conditions - The petitioners shall surrender before the Investigating Officer / Apprehending Authority within 15 days from the date of this order and on such surrender they shall be released on bail on their furnishing a personal bond - The petitioners shall surrender their passports before the Investigating Officer / Apprehending Authority and shall not leave India without prior permission of the Investigating Officer / Apprehending Authority and shall co-operate in the investigation and shall appear before the Investigating Officer / Apprehending Authority as and when summoned - The petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case; and the petitioners shall provide their mobile numbers and keep them operational at all times - Breach of any of the above conditions would entail in cancellation of the bail - the Criminal Petition is allowed [Read less]
Service Tax – Section 65(104c) of Finance Act, 1994 – Sale of cargo space – Collection of ocean freight – Tax liability – Department issued Demand-cum-Show Cause Notice to Appellant alleging that receipt collected by Appellant from clients towards ocean freight is liable to Service Tax under Support Services of Business or Commerce as defined under Section 65(104c) of the Act – Commissioner upheld demand of service tax as proposed in SCN – Whether Appellant is liable to pay Service Tax on ocean freight collected from customers – HELD – Appellant is engaged in facilitating clearance of export/import cargo ... [Read more]
Service Tax – Section 65(104c) of Finance Act, 1994 – Sale of cargo space – Collection of ocean freight – Tax liability – Department issued Demand-cum-Show Cause Notice to Appellant alleging that receipt collected by Appellant from clients towards ocean freight is liable to Service Tax under Support Services of Business or Commerce as defined under Section 65(104c) of the Act – Commissioner upheld demand of service tax as proposed in SCN – Whether Appellant is liable to pay Service Tax on ocean freight collected from customers – HELD – Appellant is engaged in facilitating clearance of export/import cargo at various ports for which they book space in ocean going vessels for their customers/exporters and coordinating with shipping lines for terminal handling of containerized cargo – Amount paid towards freight by Appellant to shipping lines/airlines could be less than what Appellant receives from selling of space to clients or more than that or similar also, thus, there could be profit or loss or no-profit no-loss to Appellant in buying & selling of cargo space – Mere purchase and sale of booking cargo space is not a Service and surplus income/receipts earned is not consideration towards rendition of Business Support Service to their clients and hence not liable to service tax – Demand of service tax confirmed vide impugned order is not sustainable and is liable to be set aside – Appeal allowed [Read less]
Central Excise – Section 3A of Central Excise Act, 1944 – Rule 21 of Central Excise Rules, 2002 – Rules 8 and 10 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 – Claim for remission of duty – Maintainability – Appellant is engaged in manufacture and clearance of Pan Masala and was discharging Central Excise duty on basis of capacity of production under Section 3A of the Act read with 2008 Rules – Due to fire accident broke out on top floor of unit, Appellant stopped production for 5 days – Appellant filed a remission claim requesting for remission of Central Excis... [Read more]
Central Excise – Section 3A of Central Excise Act, 1944 – Rule 21 of Central Excise Rules, 2002 – Rules 8 and 10 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 – Claim for remission of duty – Maintainability – Appellant is engaged in manufacture and clearance of Pan Masala and was discharging Central Excise duty on basis of capacity of production under Section 3A of the Act read with 2008 Rules – Due to fire accident broke out on top floor of unit, Appellant stopped production for 5 days – Appellant filed a remission claim requesting for remission of Central Excise Duty under Rule 21 of 2002 Rules on ground that manufacturing activities in factory remained suspended on account of natural causes resulting in loss of production for 5 days – Commissioner disallowed claim for remission of central excise duty – Whether claim made by Appellant for remission of duty as per Rule 21 of 2002 Rules is maintainable – HELD – Rule 21 of 2002 Rules provides for remission of duty in respect of finished goods lost or destroyed prior to clearance of same from factory of production – Wording of the rule is very clear and unambiguous – It is not the case of Appellant that any goods which were to be cleared on payment of duty subsequently have been destroyed in fire – Case of Appellant is that on account of fire accident that occurred in their factory, they were unable to produce goods for a period of 5 days and hence there was a loss of production capacity – Rule 21 of the Rules do not provide for such a situation – Rule 21 of the Rules is not applicable to present case – Appeal dismissed - Interpretation of provisions – Whether interpretation placed by Commissioner on second proviso to Rule 8 of 2008 Rules is tenable – HELD – It is settled principle of interpretation of statute that Court or Tribunal should interpret the word as used in law without any addition or deletion from same – Second Proviso to Rule 8 of the Rules needs to be considered in terms of Section 3A(3) of the Act and Rule 10 of 2008 Rules – Rule 10 of 2008 Rules provides that in case a factory did not produce notified goods during any continuous period of fifteen days or more, duty calculated on a proportionate basis shall be abated in respect of such period – Section 3A(3) of the Act itself provides for closure of unit for fifteen days or more for allowing abatement on proportionate basis – It is not the case of Appellant that their unit was not operational continuously for fifteen days or more – As per submission of Appellant, unit was non-operational for five days, hence, benefit of abatement could not have been allowed – Interpretation placed by Commissioner on second proviso to Rule 8 of 2008 Rules is tenable. [Read less]
Tamil Nadu VAT Act, 2006 – Works Contract - Petitioner adopted the method suggested by the Enforcement Wing Officers while discharging the liability in respect of the works contract on the basis of deemed sales value basis under Section 5 of the TNVAT Act – petitioner challenge levy of penalty under Section 27(3) of the TNVAT Act, 2006 for alleged wilful non-disclosure of assessable turnover – HELD - the pre-requisite for invoking Section 27(3) of the TNVAT Act is that there exist wilful non-disclosure of assessable turnover by the dealer - There is no finding of wilful non-disclosure of assessable turnover for levy ... [Read more]
Tamil Nadu VAT Act, 2006 – Works Contract - Petitioner adopted the method suggested by the Enforcement Wing Officers while discharging the liability in respect of the works contract on the basis of deemed sales value basis under Section 5 of the TNVAT Act – petitioner challenge levy of penalty under Section 27(3) of the TNVAT Act, 2006 for alleged wilful non-disclosure of assessable turnover – HELD - the pre-requisite for invoking Section 27(3) of the TNVAT Act is that there exist wilful non-disclosure of assessable turnover by the dealer - There is no finding of wilful non-disclosure of assessable turnover for levy of penalty, independent of the fact, that the turnover was found to have been suppressed resulting in best judgment assessment and levy of tax - Though there may be reasons for making a best judgment assessment, penalty does not automatically follow in all cases of best judgment. In the impugned orders of assessment, there is no finding of wilful non-disclosure of assessable turnover while invoking penalty under Section 27(3) of the Act. Thus, the levy of penalty is without jurisdiction - The petitioner had discharged the liability only on the basis of the instructions of the Enforcement Wing Officers made during the course of inspection. The petitioner having acted on the basis of the instructions of the Enforcement Wing authorities, cannot be imputed with motives - Mere rejection of reasons for the difference of turnover reported by the petitioner and its purchaser may not necessarily result in concluding that there was wilful non-disclosure of assessable turnover - the impugned orders insofar as the levy of penalty under Section 27(3) of the TNVAT Act are set aside and the remaining portions of the impugned orders of assessment remains undisturbed – the writ petition is disposed of [Read less]
Central Excise – Rule 3(5A)(a) of Cenvat Credit Rules, 2004 – Demand of excise duty – Sustainability – Appellant is engaged in manufacture of motor vehicle parts for Ford India Pvt. Limited – During course of audit, department noticed that Appellant has procured certain tools and moulds on payment of duty and availed Cenvat credit of duty paid on tools and moulds and sold them to Ford India by issuing invoices on which VAT was discharged, however, no central excise duty was paid in terms of Rule 3(5A)(a) of the Rules – After following due process of law, Adjudicating Authority confirmed demand of Central Excise... [Read more]
Central Excise – Rule 3(5A)(a) of Cenvat Credit Rules, 2004 – Demand of excise duty – Sustainability – Appellant is engaged in manufacture of motor vehicle parts for Ford India Pvt. Limited – During course of audit, department noticed that Appellant has procured certain tools and moulds on payment of duty and availed Cenvat credit of duty paid on tools and moulds and sold them to Ford India by issuing invoices on which VAT was discharged, however, no central excise duty was paid in terms of Rule 3(5A)(a) of the Rules – After following due process of law, Adjudicating Authority confirmed demand of Central Excise duty – Whether Cenvat credit availed by Appellant is hit by provisions of Rule 3(5A)(a) of the Rules – HELD – According to Rule 3(5A)(a) of the Rules, Cenvat credit is to be reversed only if capital goods on which Cenvat credit has been availed by any assessee have been physically removed from factory – No evidence has been adduced by department to prove that tools and moulds which were purchased and used by Appellant have been physically removed from their factory of manufacture – Though tools and moulds purchased by Appellant have been sold by them on record on VAT-able invoices, it is mater of record that such tools and moulds are still being used by Appellant for manufacture of automobile components which were being supplied by them to Ford India Pvt. Limited – Since tools and moulds were being used in manufacture of excisable goods, it was wrong on part of department to ask for payment of Central Excise duty on such tools and moulds that these are physically available in Appellant’s manufacturing premises – Impugned order-in-original is without any merit and is therefore, set-aside – Appeal allowed [Read less]
Customs – Section 28(1) of Customs Act, 1962 – Import of goods – Classification – Appellant filed Bill of Entry for import clearance of goods declared as Rotary Power Weeders by classifying same under CTH 84322990 and claiming exemption under Notification No.12/2012-Cus @2.5% BCD & nil CVD – Department alleged that Appellant has mis-declared Brush Cutters as Power Weeders and mis-classifying goods under CTH 8432 2990 instead of appropriate classification under CTH 8467 8990 thereby evading duty – Adjudicating authority rejected classification claimed by Appellant and demanded differential duty in terms of Secti... [Read more]
Customs – Section 28(1) of Customs Act, 1962 – Import of goods – Classification – Appellant filed Bill of Entry for import clearance of goods declared as Rotary Power Weeders by classifying same under CTH 84322990 and claiming exemption under Notification No.12/2012-Cus @2.5% BCD & nil CVD – Department alleged that Appellant has mis-declared Brush Cutters as Power Weeders and mis-classifying goods under CTH 8432 2990 instead of appropriate classification under CTH 8467 8990 thereby evading duty – Adjudicating authority rejected classification claimed by Appellant and demanded differential duty in terms of Section 28(1) of the Act – Whether goods imported by Appellant are ‘Power Weeders’ or Brush Cutters’ – HELD – On verification by department, products were mentioned as Agrimate and on package, it was mentioned as “this cutting blade is designed exclusively for brush cutter” – Commissioner in impugned order has clearly brought out difference between power weeder and brush cutters – Power weeders are devices used for removing weeds, stirring, pulverizing and for loosening soil before the crop is grown, while brush cutters are used for clearing thick grass, brush and shrubs – Based on descriptions and literature placed along with manuals, it is very clear that item imported is a brush cutter – Appeal partly allowed - Rejection of declared classification – Whether imported goods are classifiable under CTH 8432 as claimed by Appellant or under CTH 8467 as claimed by Revenue – HELD – Claim of Appellant is that product is classifiable under CTH 8432 2990, since this product is meant for agricultural purposes and cleared to farmers and its use for agricultural purposes has been supported by certificates issued by University of Agricultural Sciences – Use of product for agricultural purpose cannot be the criterion for determination of appropriate classification – Hand tools explained in explanatory note under CTH 8467 includes ‘brush cutters’, hence, product in dispute would fall under CTH 8467 – Impugned goods are classifiable under CTH 8467 as brush cutters - Concessional rate of duty – Denial of benefit – Whether Notification No.12/2012 granting benefit of concessional rate of duty is applicable to brush cutters – HELD – Machinery mentioned in above notification are all those machineries, namely weeder, planters, transplanters, rotary tiller and root tuber harvesting machine which are specifically designed and used for purpose of agriculture and brush cutters are nowhere to be considered a machinery – Notification No.12/2012 is available only for items listed therein and it allows only rotary tiller/weeder and not brush cutters – Since it is already decided that item imported is a brush cutter, question of extending benefit of Notification does not arise - Invoking of extended period of limitation – Raising of demand – Whether invoking of extended period of limitation is justified in facts and circumstances of case – HELD – Though it is admitted by Appellant that they were aware about fact that power weeder is a machinery, they have obtained expert opinion from different sources to make proper preparation regarding classification – Goods were subjected to examination by proper officer of Customs and burden to prove that an article falls under a particular entry lies upon Revenue – In absence of any specific averments regarding wilful suppression of fact on part of Appellant, extended period of limitation cannot be invoked – Invoking of extended period of limitation cannot be sustained – Duty demand is confirmed only for normal period. [Read less]
Service Tax – Sections 65(94) and 72 of Finance Act, 1994 – Providing of security agency services – Demand of tax – Appellant is registered with service tax department for providing Security Agency Services as defined under Section 65(94) of the Act – Based on information received to effect that Appellant had not paid its full liability of service tax, department issued show cause notice to Appellant by invoking best judgment assessment under Section 72 of the Act – After due process of law, Adjudicating Authority confirmed demands proposed in both show cause notices – Whether demand raised in first show caus... [Read more]
Service Tax – Sections 65(94) and 72 of Finance Act, 1994 – Providing of security agency services – Demand of tax – Appellant is registered with service tax department for providing Security Agency Services as defined under Section 65(94) of the Act – Based on information received to effect that Appellant had not paid its full liability of service tax, department issued show cause notice to Appellant by invoking best judgment assessment under Section 72 of the Act – After due process of law, Adjudicating Authority confirmed demands proposed in both show cause notices – Whether demand raised in first show cause notice is sustainable – HELD – First SCN was issued invoking best judgment assessment under Section 72 of the Act based on information available on record – Once all information was provided in reply to SCN including contracts which Appellant had entered into with its clients, it was incumbent on Commissioner to classify services appropriately and confirm service tax – At that stage, Commissioner may not have a clear idea of exact nature of services provided – There is no justification for Commissioner to confirm a demand without specifying any head – Said vagueness in impugned order makes it impossible for Appellant to defend itself against confirmed demand – Part of demand raised in first SCN cannot be sustained and needs to be set aside on ground of vagueness – Rest of demand is on account of security services rendered to Mauritius High Commission – Appellant could not produce any documents to establish that these services were exempted – Confirmation of demand of service tax on security agency service rendered to Mauritius High Commission by Appellant is upheld – Appeal partly allowed - Cancellation of services – Issuance of credit notes – Confirmation of demand – Whether Commissioner is justified in confirming demand raised in second show cause notice – HELD – Only demand in this SCN is on account of credit notes issued by Appellant to its clients for cancellation of services – Commissioner considered it as amounts received by Appellant towards providing taxable services and confirmed demand of service tax – Issue of a credit note means paying someone and issue of a debit note means receiving from someone – Commissioner has clearly erred and mis-understood the credit notes as amounts which Appellant had received, when, in fact, these are the amounts which Appellant had paid and therefore, service tax cannot be charged from Appellant on amount which it had paid to other parties – Matter remanded to Commissioner to consider credit notes and re-determine service tax, if any, is payable for period covered by this SCN. [Read less]
GST – Validity of proceedings initiated under Section 73 of the CGST Act, 2017 against petitioner-Company which has gone into liquidation - petitioner No.1 was the corporate debtor which was a going concern and petitioner No.2 was the firm which has acquired petitioner No.1 by way of an auction – petitioner’s case that by virtue of NCLT order with all liabilities having been extinguished, proceedings under Section 73 proposed to be initiated is not sustainable – HELD – Taking into consideration the authoritative decision of the Hon’ble Supreme Court in the case of Ghanashyam Mishra and Sons Private Limited and ... [Read more]
GST – Validity of proceedings initiated under Section 73 of the CGST Act, 2017 against petitioner-Company which has gone into liquidation - petitioner No.1 was the corporate debtor which was a going concern and petitioner No.2 was the firm which has acquired petitioner No.1 by way of an auction – petitioner’s case that by virtue of NCLT order with all liabilities having been extinguished, proceedings under Section 73 proposed to be initiated is not sustainable – HELD – Taking into consideration the authoritative decision of the Hon’ble Supreme Court in the case of Ghanashyam Mishra and Sons Private Limited and also the view taken by the Gujarat High Court in the case of KRBL Limited, the order under Section 73 issued by respondents is totally without jurisdiction – the writ petition is allowed [Read less]
Central Excise – Disallowance of credit – Supply of relied upon documents – Compliance of principles of natural justice – Appeals seeks to assail common order passed by Principal Commissioner disallowing Cenvat credit and ordering for its recovery from Appellants with interest and penalty – Whether Principal Commissioner has erred in passing impugned order without supplying copies of documents relied upon in show cause notice, thereby violating principles of natural justice – HELD – Impugned order mentioned that Appellants have been served with show cause notices with copies of relied upon documents and in su... [Read more]
Central Excise – Disallowance of credit – Supply of relied upon documents – Compliance of principles of natural justice – Appeals seeks to assail common order passed by Principal Commissioner disallowing Cenvat credit and ordering for its recovery from Appellants with interest and penalty – Whether Principal Commissioner has erred in passing impugned order without supplying copies of documents relied upon in show cause notice, thereby violating principles of natural justice – HELD – Impugned order mentioned that Appellants have been served with show cause notices with copies of relied upon documents and in support thereof, acknowledgment receipts have been referred – It is quite clear from above that copies of all relied upon documents were received by Appellants under proper acknowledgement receipts – Enough opportunity was granted to Appellants to file their replies to show cause notice, but Appellants evaded filing reply to show cause notice by alleging non-supply of Relied Upon Documents – Appellants were also permitted to inspect Relied Upon Documents, but no efforts were made by Appellants to obtain copies – As Appellants failed to submit replies to show cause notice and even failed to appear, Principal Commissioner was left with no alternative but to decide appeal on merits, as more than 15 months had lapsed – Appeals dismissed [Read less]
Service Tax – Section 35FF of Central Excise Act, 1944 – Refund of pre-deposit – Entitlement of interest – Appellant is engaged in providing taxable services under category of Construction of Complex Services – Original authority confirmed demand of Service Tax against Appellant – After deposit of amount of pre-deposit, Commissioner (Appeals) allowed appeal filed by Appellant and set aside demand – Pursuant to said order, Appellant filed an application praying for refund of pre-deposit along with interest – Adjudicating Authority sanctioned refund, but without interest – Whether Appellant is entitled to i... [Read more]
Service Tax – Section 35FF of Central Excise Act, 1944 – Refund of pre-deposit – Entitlement of interest – Appellant is engaged in providing taxable services under category of Construction of Complex Services – Original authority confirmed demand of Service Tax against Appellant – After deposit of amount of pre-deposit, Commissioner (Appeals) allowed appeal filed by Appellant and set aside demand – Pursuant to said order, Appellant filed an application praying for refund of pre-deposit along with interest – Adjudicating Authority sanctioned refund, but without interest – Whether Appellant is entitled to interest on refund sanctioned by Adjudicating Authority – HELD – Amount in question is admittedly an amount which was deposited by Appellant for filing appeal before Commissioner (Appeals) when duty demand as was proposed vide Show Cause Notice was confirmed by original adjudicating authority – Amount in question is purely in nature of amount of pre-deposit which is mandatorily to be deposited while filing appeal before Commissioner (Appeals) – After order was passed by Commissioner (Appeals) setting aside confirmation of demand, original adjudicating authority sanctioned refund of pre-deposit, but without interest – Adjudicating authority has wrongly relied upon pre amended Section 35FF of the Act for denying entitlement of interest to Appellant – Board clarified that matters of refund other than amount of duty would not be covered under provisions of Section 35FF of the Act – Appellant is entitled for interest from date of deposit to date of refund at rate of 12% – Appeal allowed [Read less]
Customs – Sections 111(b) and 123 of Customs Act, 1962 – Seizure of gold bars – Order of absolute confiscation – Sustainability – Customs Officers intercepted Appellant Nos.1 to 4 and recovered gold bars from them – Officers seized said gold on a reasonable belief that gold bars had been smuggled into India through an unauthorized channel and is liable for confiscation – Department issued show-cause notice to Appellants for confiscation of seized gold – Adjudicating authority ordered for absolute confiscation of seized gold bars under Section 111(b) of the Act – HELD – Per: Ashok Jindal, Member (Judicia... [Read more]
Customs – Sections 111(b) and 123 of Customs Act, 1962 – Seizure of gold bars – Order of absolute confiscation – Sustainability – Customs Officers intercepted Appellant Nos.1 to 4 and recovered gold bars from them – Officers seized said gold on a reasonable belief that gold bars had been smuggled into India through an unauthorized channel and is liable for confiscation – Department issued show-cause notice to Appellants for confiscation of seized gold – Adjudicating authority ordered for absolute confiscation of seized gold bars under Section 111(b) of the Act – HELD – Per: Ashok Jindal, Member (Judicial) – At time of pre-trial notice for disposal of seized gold, Appellant Nos.1 to 4 claimed that impugned gold pertains to Appellant No.5 – Appellant No.5 has produced invoices of seized gold purchased from Appellant No.6 – Appellant No.6 produced all records for verification of impugned transactions with regard to possession of seized gold of Appellant No.5 – Said documents have not been rejected by adjudicating authority – Appellant No.5 has discharged his onus in terms of Section 123 of the Act, therefore, seized gold is not liable for confiscation – Impugned order passed by Adjudicating authority is set aside – Appeals allowed - Per: Rajeev Tandon, Member (Technical) – Appellant No.5 did not produce any evidence of licit purchase within a reasonable time after seizure – Prepared invoices/bills submitted to department by Appellant No.5 in support of his claim to licit acquisition of foreign marked gold are grossly incomplete in details – Purported invoices submitted do not even indicate brand of gold or marks and number of gold bars – Appellants have failed to discharge onus cast upon them under Section 123 of the Act and consequently, seized gold is liable for confiscation – Order passed by adjudicating authority is upheld – Appeals dismissed - Difference of opinion – In view of difference in viewpoints of two members, matter referred to a third member for resolution of conflict and difference of opinion – Whether Appellants have discharged their burden under Section 123 of the Act and hence goods are not liable for confiscation as held by Member (Judicial) or Appellants have failed to discharge their burden under Section 123 of the Act and hence goods are liable for confiscation as held by Member (Technical) – HELD – Section 123 of the Act clearly states that burden of proving that seized goods are not smuggled goods shall be on person who claims to be owner thereof – Appellant Nos.1 to 4 uniformly state that gold in question was procured for Appellant No.5 – It cannot be denied that Appellant No.5 is the owner of gold – Only person responsible to discharge burden of proof could be only Appellant No.5 – Show Cause Notice has proceeded on an erroneous notion that burden of proof is required to be jointly discharged by Appellant Nos.1 to 4 along with Appellant No.5 – Framing of charges on Appellant Nos.1 to 4 is erroneous – Appellant No.5 has claimed that he has purchased gold in a licit way through invoices issued by Snehal Gems Pvt Ltd. – Appellant No.5 had duly produced original copies of such purchase invoices before investigating authority at time of investigation – Snehal Gems have confirmed transactions in respect of invoices – Onus under Section 123 of the Act stands discharged by Appellant No.5 – It is proper to agree with Member Judicial that burden of proof stands discharged under Section 123 of the Act and seized goods are not liable for confiscation – Reference is answered and difference of opinion stands resolved on above terms. [Read less]
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