TODAY'S CASE (INDIRECT TAX)

June 29, 2019

++ Questioning levy of RCM - AAR does not have authority to dwell on this question: AAR

++ Services to UP Skill Development Society is not exempt: AAR

++ Mounting of Bus/Truck/Ambulance body on supplied chassis is Service, taxable under SAC 998881: AAR

++ Fabrication of bus body on chassis supplied by OEM is Service, taxable under SAC 998881: AAR

++ GST -  Final selling price had remained same, therefore, reduction in MRP did not indicate that there was commensurate reduction in price charged from ultimate consumers - Profiteering proved: NAA 

++ Views of Consultants or publications which are not supported by statutory provisions are not legally tenable: AAAR

++ OEM suppliers are not party to appeal, AAAR refrains from passing any specific order in r/o import by such OEM supplier: AAAR

++ CX - Post insertion of Rule 3(5A) in CCR, duty is payable on waste & scraps of capital goods on which Cenvat credit has been availed: CESTAT

++ ST - SSI exemption - Value of service required to be computed for such benefit is to be arrived at after allowing abatement: CESTAT

++ Cus - Adjudication order merits being quashed where it is based on statements found to be exculpatory: CESTAT

++ CX - Denial of credit on on procedural grounds is untenable if there are no findings such as non-payment of tax on input service or their non-utilization in manufacturing final product: CESTAT

++ CX - Reversal of credit in respect of goods which have been cleared on payment of duty is tantamount to double taxation: CESTAT

June 28, 2019

++ GST - Prohance-D is classifiable under CH 2106 9050 and attracts GST @18%: AAR

++ Seeking answers to questions on admissibility of CENVAT credit under pre-GST regime - AAR does not have jurisdiction to pass any ruling

++ Under CGST Act, Authority is not allowed to answer question on classification of imported goods - AAR of Customs, Central Excise & Service Tax is appropriate authority: AAR GST

++ Hydraulic kits are correctly classifiable under CH 8412 as 'Other engines & motors': AAR

++ GST - Extra packs of cigarettes supplied to distributors as marketing strategy is not leviable to tax again; they cannot be considered as exempt supplies or free samples, no ITC embargo: AAR

++ GST - Bogus entity created for purpose of originating irregular and inadmissible ITC - bogus transactions of more than Rs.500 Crores depriving Exchequer of more than Rs.100 Crores of GST - serious offence, applicant cannot be released on bail: HC

++ CX - No manufacturing activity undertaken but credit availed on goods - since appellant had paid excise duty on clearance, situation becomes revenue neutral - denial of credit illegal: CESTAT

++ ST - E-statement issued by NPCI is a self-contained document incorporating all the mandatory requirements of proviso to Rule 4A of STR, credit admissible: CESTAT

++ CX - AA has not conclusively established that post-sale activities, repairing works, quality control, affixation of sticker amounted to 'manufacture' within the meaning of Section 2(f) of the Act - demand cannot sustain: CESTAT

++ CX - Cost of transportation from place of removal upto place of delivery is excluded from computation of excise duty provided it is charged to buyers and separately shown in invoices: CESTAT

++ Cus - Adjudication has forayed into areas that should not have been - Matter remanded: CESTAT

++ GST - Activity undertaken toward development of irrigation and waterways is in relation to function listed under Sl. No. 5 of Eleventh Schedule as entrusted to a Panchayat under Article 243G; exempted under Sl. No. 3A of 9/2017-ITR as amended: AAR

++ GST - Irrespective of whether dwelling unit is let out to individuals or a commercial entity, supply of such service is exempt under Sl. No. 12 of 12/2017-CTR, if dwelling unit is meant for residential accommodation: AAR

++ GST - Applicant's supply to BMC/HMC is a function mentioned under the Twelfth Schedule - service exempt under notification 12/2017-CTR - no TDS: AAR

++ Cus - Once appeal on merit is allowed, question of penalty for alleged misuse of Scrips cannot hold field: HC

++ ST - Banking charges relate to commission on import payment processing & for forex received - insurance is taken on stocks and fixed assets in factory premises - Services are input services: CESTAT

++ CX - Allegation of clandestine removal cannot be upheld on assumptions/presumptions - not even a single case detected where any clandestinely removed Sponge Iron was intercepted in transit although duty demand pertains to a fairly long period of time: CESTAT

++ ST - Assessee was earlier known as Vodafone Essar South Ltd. and its name was changed to Vodafone Idea Ltd. - CENVAT cannot be denied on the ground that invoices bore the earlier name: CESTAT

++ Cus - Concessional rate is available for OE parts imported by manufacturing division - There is no scope for loaning of goods to Spare Parts Division with an understanding that a corresponding quantity of goods will be returned after some time: CESTAT

June 27, 2019

++ GST - Anti Profiteering - Submitting invoices which describe size of tiles sold does not establish that their price was actually reduced - Profiteering charges sustained where requisite invoices are not produced: NAA

++ CX - Mere pendency of appeal before Apex Court would not justify Revenue ignoring statutory provisions of CEA - Interest payable u/s 11BB: HC

++ ST - Hotel construction is not the end activity of appellants but various taxable services like accommodation, restaurant services, spa services in hotel - credit availed on Input services is proper: CESTAT

++ Cus - Delay of 484 days in filing appeal - Inaction shows negligence on the part of Revenue in challenging the order: HC

++ CX - International Competitive bidding - Goods not supplied directly to the contractor - Notf. 6/2006-CX cannot be denied: CESTAT

++ Cus - Market survey report does not indicate that fabrics which were referred in survey were same as impugned goods - findings questionable: CESTAT

++ CX - Naphtha procured from HPCL under ICB - Rules, 1996 have not fixed any responsibility on purchaser of naphtha for complying with any conditions - duty demand of Rs.1,77,16,104/- set aside: CESTAT

++ CX - Appellant did not have facility of machining, grinding, finishing etc. in their factory, therefore, aluminium and zinc castings manufactured are correctly classifiable under CSH 7907.90/7616.90 and not as M.V parts under CSH 8708: CESTAT

++ CX - For mere procedural lapse, substantial benefit of CENVAT credit cannot be denied: CESTAT

++ ST - Merely because Mumbai office has not obtained centralized registration, CENVAT credit availed on input services which are undisputedly utilized in providing taxable output services cannot be disallowed: CESTAT

++ CX - Value of copper scrap declared by raw material supplier for job work cannot be revised at the end of job-worker: CESTAT

++ ST - Construction service relating to modernization, renovation and repair of the factory continued to be within the meaning of 'input service' post 01.04.2011: CESTAT

++ CX - Department has actually supplied word 'first' before the expression 'storage facilities' and denied exemption, whereas Notification as interpreted on the basis of language used therein, cannot restrict exemption: CESTAT

June 26, 2019

++ Applicant's service of leasing out cranes and locomotives for shunting of rakes/wagons/oil tankers is classifiable as 'railway pushing and towing service' SAC 996731 and attracts GST@18%: AAR

++ GST - Base price of footwear was increased when rate of tax was reduced - Profiteering proved: NAA

++ Clinical research services provided by applicant to entities located outside India is not an 'export of service': AAR

++ Applicant is not entitled to ITC of GST paid on expenses incurred towards promotional schemes of Shubh Labh Loyalty programme and goods given as brand reminders: AAR

++ Legal errors apparent on face of record - Rectification order issued u/s 102 of CGST Act, 2017 on own accord: AAR

++ CX - It is settled law that no reliance can be placed on a document which is not tested in cross examination, if specifically sought: CESTAT

++ Cus - It is clear from reply given by Publication Department on RTI application filed that Notfn. 12/2016-Cus(ADD) was published on 02.04.2016 - Importer not liable to pay Anti-Dumping duty on 29.03.2016 when he filed Bill of Entry: CESTAT

++ CX - Once department was aware of procedure followed by assessee for taking CENVAT credit, subsequently they cannot allege suppression: CESTAT

++ ST - Manpower Recruitment or Supply Agency services - assessee conducted preliminary interview of candidates & forwarded select names to other firm - entire process of recruitment till its conclusion is a continuous one and are not two separate services: CESTAT

++ CX - Manufacture of ‘bus bodies' on behalf of owners of ‘chassis' - AA had erred in adding back the freight and Cess: CESTAT

++ ST - Labour legislations in India mandate that employer covers risk of untoward incidents or injuries that may happen to employees at work site - Overseas mediclaim policy is an Input service: CESTAT

++ CX - Claiming exemption on mis-declarated product is a positive act of mis-representation of the facts with sole intention to evade duty - extended period rightly invoked: CESTAT

++ Cus - HP Dream Screen All-in-One 400 PC is correctly classifiable under CTH 8471 3010 - heading does not require presence of a physical keyboard - since the product has a touch screen and virtual on-screen keyboard, classification sought by importer under CTH 8471 5000 is incorrect: CESTAT

++ CX - Objective of Rule 5 of CCR cannot be defeated by invoking provisions of Rule 11 of CCR: CESTAT

++ CX - Merely on the ground that assessee is PSU is not sufficient to set aside SCN as being barred by time - major duty difference on misdeclared product is a strategy of tax evasion: CESTAT

++ CX - Rule 3 of CCR allows a manufacturer to avail cenvat credit on 'input services received'; such availment is not qualified by condition that such service must be received within the factory: CESTAT

++ CX - AA has ignored all provisions of Rule 6(6) of CCR to demand cenvat credit lying in balance by invoking Rule 11(3) in isolation, which is absolutely illegal & incorrect: CESTAT

June 25, 2019

++ CGST - Much before notice u/s 46 came to be issued or rather, much before assessment could be undertaken u/s 62 of Act, authority straightway proceeded to pass orders of provisional attachment of goods as well as Bank Accounts and which action is not in accordance with law - orders quashed: HC

++ ST - Appellant has really not gained anything by instituting appeal beyond prescribed period of limitation, therefore, it cannot be said that no 'sufficient cause' was made out to explain delay of 102 days in institution of appeal - Appeal allowed: HC

++ ST - Refund - An assessee is not entitled to take advantage of a decision rendered in a case filed by another person to get extension of the period of limitation: HC

++ CX - Quoting wrong assessee code - As long as duty is paid and credited duly to GOI account, procedural infractions which are curable in nature will not nullify such payments - Demanding such duty second time is certainly harsh and has no sanction of law: CESTAT

++ CX - Software is an integral part of computer systems, though shown separately in invoices - value of software has to be included in AV for payment of Excise Duty: CESTAT

++ Cus - Goods missing from CFS - duty demand confirmed but o-in-o appears contradictory inasmuch once proceedings under Regulation 11 & 12 were dropped, penalty could not have been imposed: CESTAT

++ Whether for consideration of interim stay application, the authority concerned has to see balance of convenience of the parties, merit of the case and financial status as well - YES: HC

++ Whether if assessee purchaser demonstrates discharge of tax liability to seller, benefit of input tax cannot be deprived to such buyer - YES: HC

++ ST - Notfn. 12/2003 - Abatement available even if same was not separately shown in invoices if verifiable documentary proof was otherwise produced as there was no such condition to show value of same separately in invoices: CESTAT

++ CX - Grounds of appeal are beyond scope of SCN, hence Revenue appeal is dismissed: CESTAT

++ Cus - Diamonds were not presented to proper officer but were found in office of courier company - since the assessee has not done any act towards exportation, sec 113(d) has no application: CESTAT

++ CX - When assessee has reversed credit and intimated department, allegation that assessee has suppressed facts with intention to evade payment of duty is unjustified: CESTAT

June 24, 2019

++ GST - Anti-Profiteering - There is no statutory provision for withdrawal of complaint made: NAA

++ GST - DGAP is under statutory obligation in terms of rule 129 of CGST Rules to complete investigation in case of receipt of any reference from Standing Committee; subsequent withdrawal is not a legally valid ground to discontinue proceedings: NAA

++ GST - By not reducing pre-GST base price by 9.68% on account of additional benefit of ITC and charging GST at increased rate of 12%, respondent has contravened provisions of s.171 of the CGST Act, 2017 - Profiteering proved : NAA

++ ST - WCS were used for maintenance & repair of UPS systems and ACs - are to be treated as Input Services: CESTAT

++ CX - Merely because there are certain cash deposits in the account of director of company, it cannot be concluded that these are amounts received from sale of clandestinely removed finished products: CESTAT

++ Cus - Transgression of courier company was a manifestation of folly rather than deliberate connivance with the smuggling - penalties set aside: CESTAT

++ Kachhuwa Chhap Agarbatti already stands classified by way of Notification as 'Mosquito Repellant Coil' - order of the Tribunal treating Mosquito Repellant Coil as unclassified item is not sustainable: HC

++ CX - Petitioner delayed institution of appeal and, therefore, cannot expect that High Court converts itself into an appeal court whilst exercising powers of judicial review under Art. 226 of the Constitution: HC

++ Cus - Before s.111(m) of CA, 1962 could be invoked, exercise to be carried out by Revenue would be to re-determine value of imported goods - jurisdiction of High Court is ousted: HC

++ ST - Grounds that are being canvassed turn on facts and, therefore, it would be appropriate to relegate writ petitioner to the alternate remedy of appeal to Commissioner (A): HC

++ CX - Question as proposed by Revenue does not arise from impugned order of Tribunal: HC

++ ST - No discussion on the contentions raised by parties - Tribunal order is in breach of principles of natural justice, set aside: HC

++ CX - Any interpretation that makes specific entry, 'motor spirit' and its definition appearing in supplementary notes, otiose, cannot be the correct interpretation: CESTAT

++ ST - Activities carried out are in the nature of 'Works Contract' and hence would be liable for service tax under WCS w.e.f. 01.06.2007 only and not earlier: CESTAT

++ CX - It is a settled law that allegation of clandestine removal should be based upon clinching evidences: CESTAT

++ CX - When Tribunal has set aside demand against Kanpur unit made by alleging clandestine manufacture on the basis of clandestinely received raw materials from appellant, demand against appellant for alleged clandestine clearance cannot sustain: CESTAT

June 22, 2019

++ Setting up of network for BSNL qualifies as Composite supply of Works Contract; is not an ‘original work', attracts GST @18%: AAR

++ Printing of exam question papers, OMR sheets, answer booklets, mark sheet, certificates etc. for Educational boards, classifiable under heading 9992, GST exempt vide Entry no. 66 of notification 12/2017-CTR: AAR

++ Printing Railway tickets using paper supplied by Railways, heading 9988(iia), CGST @6%;using own paper heading 9989(i), CGST @6%, Notfn. 11/2017-CTR: AAR

++ Cheque printing using own paper, heading 9989(i), CGST @6%, using paper supplied by client, heading 9988(ii)(c), CGST @2.5% Notf, 11/2017-CTR: AAR

++ Packaging materials viz. Cut to size blanks in flat form with folding classifiable under TI 4819 @ GST 12%; Hanging Cards, TI 4823 @ GST 18%: AAR

++ GST - Supply to related persons - no breach if applicant changes method of determination of value by application of rule 28 in place of rule 30 of Rules: AAR

++ CX - It is clear that an alternate remedy qua impugned order is available for writ petitioner - case does not fall under any of exceptions adumbrated by apex court: HC

++ ST - Merely raising a contention that petitioner was entitled to benefit of exemption notification really does not suffice - it cannot be said that AA acted in flagrant disregard to law: HC

++ ST - Since construction was for State Intelligence Bureau of Government, it cannot be treated as Commercial or Industrial construction - demand rightly dropped: CESTAT

++ ST - Services were rendered by appellant to unit in SEZ who was supposed to follow provisions of law, which they did not do so, would not mean that appellant should be saddled with  tax liability: CESTAT

++ CX - Rule 7 of CCR, 2004 shows that word 'sale' does not appear anywhere in Rule - no fault in assessee distributing credit availed by them in respect of services availed at their offshore facility: CESTAT

++ Cus - Cross-examination cannot be claimed in every case as a matter of right - confessional statement of assessee and other persons who were involved in smuggling fully corroborated by documentary as well as circumstantial evidences: CESTAT

June 21, 2019

++ CX - It is impossible that assessee, a very large oil company, with experts employed in taxation field do not know valuation rules - Penalty rightly imposed u/s 11AC: CESTAT

++ CX - s.11BB of CEA, 1944 - Refund application was filed in 1992 and, therefore, with effect from 25.08.1995 interest has to be paid: CESTAT

++ CX - Denial of CENVAT credit on the basis of discrepancies in invoices, which are treated as technical, is neither justified nor warranted: CESTAT

++ Cus - Assessee supplied imported goods to DESU at a much higher price than that declared in BE - same cannot be reason for rejection of transaction value in course of international trade: CESTAT

++ CX - Machinery cannot be held suspended in air - structures do not merely offer structural support but are very much integral part of these machines manufacturing sponge iron - credit admissible: CESTAT

++ ST - BAS - Scrap is nothing but a raw material for use in melting and further manufacture of dutiable steel products - benefit of notification 8/2005-ST is available: CESTAT

++ CX - Goods cleared under Chapter X procedure are not exempted goods and there is no need to reverse credit under Rule 6(3)(i) of CCR 2004: CESTAT

++ CX - Valuation - Price nearest to time of removal would mean the price which will be available to the assessee at time of removal - a future price cannot be applied: CESTAT

++ CX - There is no reason for interpreting first proviso to Rule 8 of Packing Machine Rules, 2008 in a manner which would result in levy of duty on the quantity which is more than the deemed production per machine per month: CESTAT

++ CX - Revenue was actively in the picture and in the know of events, therefore, larger period is seen to have been invoked for no reason: CESTAT

++ CX - Rule 6 of CCR will not apply where exempted by-product or waste emerges in the course of manufacture of dutiable products: CESTAT

++ CX - It is well settled law that when the statute is clear and unambiguous; it has to be given effect to without adding any words to it or subtracting any words from it: CESTAT

++ CX - ‘New retail sale price' would mean the retail sale price which had not been declared in respect of that machine in the Form-I declaration: CESTAT

++ CX - Case not of 'no opportunity' but 'no adequate opportunity' - It is not sufficient for petitioner to merely allege failure of natural justice but they have to make out a case of consequent prejudice - exercise of extraordinary jurisdiction not warranted: HC

++ ST - Delay in filing appeal before Commissioner(A) beyond condonable period - no prohibition for High Court under Articles 226 and 227 of Constitution in exercising extraordinary jurisdiction to condone said delay subject to costs: High Court

++ CX - Even with minimum scrutiny of service tax returns, range could have been aware of the nature of activity undertaken - no case for invoking extended period of limitation: CESTAT

++ ST - Unintended credit transferred inadvertently can be 'returned' to such Input Service Distributor - nothing in the law bars it: CESTAT

++ CX - Bulletproof SPVs deserve to be classified under CH 8705 - entitled for benefit of exemption notification 6/2006-CE, Sr.50: CESTAT

++ ST - No service tax payable on difference between the fund value and surrender value in case of pre-mature surrender/discontinuance of ULIP: CESTAT

++ CX - Rule 4(7) of CCR does not provide for a proportionate reduction of CENVAT Credit where value of services rendered is reduced subsequently: CESTAT

June 20, 2019

++ GST - Authority is a creature of statute and has to function within the legal boundary mandated by the Act - determination of 'place of supply' is not within its jurisdiction: AAR

++ Applicant need not take separate registration in the State of Odisha since the place of supply is the location of the importer, which is Maharashtra: AAR

++ Ordnance Factory cannot be treated as 'government'; however, being a 'defence formation', E-way bill is not required to be generated for movement of goods: AAR

++ Since applicant is required to pay tax on reverse charge on GTA service, registration is compulsory notwithstanding that they manufacture only exempted goods: AAR

++ Even if the applicant has godowns in different States, they can clear the goods on the basis of invoices issued by Mumbai HO on payment of IGST in the State of Maharashtra: AAR

++ GST - Providing labour services for setting up fire lines, plantation of trees, river maintenance, clearing of truck path in forest are pure services covered in twelfth Schedule - exempted by 12/2017-CTR: AAR

++ CIDCO is a government entity - lease of plots to NMMC for construction of Indoor Recreation Centre, Slaughter House, to PMC for Ward Office would be exempt as per sr. no.3 of 12/2017-CTR: AAR

++ Recovery of amount pursuant to assessment order can be relaxed till time stay petition is considered by Appellate Tribunal: HC

++ ST - Without determining whether difference between figures reflected in ST-3 and those in Form 26AS is on account of exemption or abatement availed, demand cannot be sustained: CESTAT

++ Cus - Penalty is an instrument of deterrence - Re-export is not without any financial consequence to importer and same should be sufficient deterrent: CESTAT

++ CX - Registers, answer sheets, certificates, writing pads, books, receipts, school diaries and school prospectus are all classifiable under Ch.49 being goods of printing industry: CESTAT 

++ ST - Assessee has failed to provide even a shred of evidence to show that output services were rendered from seven premises  - services used in these premises are not CENVATable: CESTAT 

++ ST - Services provided to SEZ - Tribunal can exercise jurisdiction to condone delay in filing refund claim as per Clause (e) of Para 3(III) of Notfn 12/2013-ST: CESTAT

++ ST- A SCN on same issue having been already issued and assessee submitting returns regularly, department has not made a case for invoking extended period: CESTAT

++ Cus - Courier licence - Eternity is accepted only in matters of faith - No statute can, or should, arrogate such - Banning operation for all time to come is not permissible: CESTAT

June 19, 2019

++ CX - Courier returning goods since buyer not taking delivery - CENVAT credit is admissible on Courier service: CESTAT

++ ST - During disputed period 2004-05, service tax was required to be paid on receipt basis - assessee correctly asserts that demand pertaining to outstanding amount is unsustainable: CESTAT

++ CX - CENVAT - Bar under Rule 9(1)(bb) of CCR, 2004 is not applicable to transaction where service receiver is paying service tax under reverse charge mechanism: CESTAT

++ Cus - Bulk Polio Vaccine imported under notification 21/2002-Cus for manufacture of polio drops supplied to govt. - part of bulk drugs left unutilized were sold to private party - date of sale of bulk drugs was considered as relevant date for denying exemption - proceedings hopelessly time barred: CESTAT

++ Cus - Without any amendments in VABAL by licensing authority, value of imported goods cannot s uo motu  be altered by Customs authorities: CESTAT 

++ ST - Animation film produced by assessee is not covered under ‘Video Tape production Service' - assessee is not liable to pay service tax: CESTAT

++ CX - Invoice not contaning the address of registered premises of assessee but their other premises cannot be a ground to deny CENVAT credit: CESTAT

++ ST - Computer Animation software training is similar to CAD software or TALLY software - entitled to benefit of exemption notfn 24/2004-ST: CESTAT

++ Cus - A plain reading of section 129E does not say that where entire amount of duty demanded is paid, it is duty and not pre-deposit: CESTAT 

June 18, 2019

++ CX - SCNs were issued in a routine manner without proper justification; were issued beyond normal period of limitation merely to impose penalty - rightly quashed: CESTAT

++ ST - A service gets covered under BAS even for procurement of goods or services, which are inputs for the clients : CESTAT

++ Cus - Refund of SAD - Since appellant-buyer has borne burden of both Customs Duty and Sales Tax/VAT they have correctly filed refund claim - word ‘importer' in notification 102/2007-Cus needs to be interpreted by reading the notification as a whole: CESTAT

++ ST - Assessee is only collecting samples, modifying them, conducting analysis, preparing report & submitting same to client - does not qualify as Scientific or Technical Consultancy service: CESTAT

++ ST - Services of commission agent provided to China based company for which assessee received commission in convertible foreign exchange - service qualifies as export service, not taxable: CESTAT

++ ST - Since demand is under reverse charge mechanism, if tax is paid, assessee would be eligible to avail Credit as input service - revenue neutral situation, demand cannot sustain: CESTAT

++ Cus - Non-adherence to the time limits laid down in regulation 20 of CBLR, 2013 - impugned order of revocation of licence and forfeiture of security deposit cannot be sustained: CESTAT

++ CX - Amounts were collected by distributors as representing excise duty and not by assessee themselves - demand u/s11D does not sustain against assessee: CESTAT

++ ST - Construction of residential complex in terms of Development Agreements with land owners and prospective buyers - Service tax is not chargeable during the period prior to 01.07.2010: CESTAT

++ CX - Use of bus is for MRTS project - as DMRC remains owner of buses, benefit of exemption 6/2006-CE cannot be denied: CESTAT

June 17, 2019

++ GST - Bat signed by legendary sportsperson Sachin Tendulkar, when sold in auction, cannot be called as second-hand or used goods so as to apply rule 32(5) of CGST Rules: AAR

++ CX - Refund of un-utilized CENVAT credit cannot be given in cash on account of closure of manufacturing activity: HC LB

++ CX - SC decision in Slovak India is not a declaration of law under Article 141 of Constitution: HC LB

++ ST - If 'Intellectual Property Right' was sold by appellant and not transferred temporarily for use, then provisions of s.66(55b) of FA, 1994 are not applicable: CESTAT

++ ST - Erroneous entries made inadvertently in the books of account by the accountant - no tax demand: CESTAT

++ ST - No provision in CCR mandating that Output services should be provided simultaneously - Credit cannot be denied on Security & Legal services availed before commencing Output service: CESTAT

++ Notfn. 32/99-CX - Neither the assessee nor department has arrived at the cost of production as per CAS-4 standards - charge of over valuation to claim excess refund is not proved: CESTAT

++ CX - Marketing and festival expenses incurred on various occasions like Holi, Deepawali, Roza, Iftar party - activities promote business/sales, are Input services: CESTAT

++ Cus - Lead alloys cannot be manufactured from Vacuum - Revenue has not even alleged that appellant have procured lead ingots from other sources - allegation of diversion of imported lead ingots is on weak legs and unsustainable: CESTAT

++ CX - Charge of clandestine clearance simply on the basis of statement, though not retracted, cannot be sustained: CESTAT

++ CX - Profile sheets used to comply with statutory requirement of Pollution Control Laws; are not part of the civil structure; are Inputs u/r 2(k) of CCR - Credit admissible: CESTAT

++ CX - Credit is not available in respect of input services which is used for electricity production that is sold outside - SCN issued after SC decision, no suppression can be alleged: CESTAT

++ ST - Construction of guest houses and temple complex; buildings for CDAC, NFC & APHMHIDC, ICFAI - no tax liability arises for pre and post 01.07.2012: CESTAT

++ ST - Benefit under SEZ Act shall have an overriding effect as long as input services are consumed within SEZ - refund has to be sanctioned: CESTAT

++ ST - Rule 5 of CCR - Since Revenue has not first denied credit availed, their objection as regards nexus, adopted at time of deciding refund application, is unsustainable: CESTAT

++ Cus - Procedural relaxations and facilitation measures are for facilitating speedy clearance of imported goods and are not for purpose of perpetuating fraud/misdeclaration: CESTAT

June 15, 2019

++ GST is payable on Advisory & Management Fees received in Indian currency from domestic contributors for financial services provided to AIF Fund: AAR

++ ITC cannot be availed of GST paid on goods & services used for constructing Tie-in pipeline for delivering re-gasified LNG from Floating Re-gasification unit to national grid: AAR

++ It is settled law that some extraneous condition cannot be introduced in any Notification; hence Revenue cannot insist upon its fulfiment when no such condition exists: CESTAT

++ Sand Lime Fly Ash Bricks which essentially comprise of Sand & Lime with Fly Ash being used in least quantity are classifiable under Tariff Entry 68109990: CESTAT

++ Benefit of Circular dated 22.12.14 cannot be denied where it was effective during relevant period but was later withdrawn - It is settled law that beneficial Circular cannot be withdrawn retrospectively: CESTAT

++ Clean Energy Cess - Duty demand raised for reversal of Cenvat credit availed on it stands quashed considering similar findings in assessee's own case for earlier period: CESTAT

June 14, 2019

++ GST - S.171 of Act - ITC ratio to turnover during pre-GST period was 5.13% as compared to 7.79% during post GST period - Profiteering proved: NAA

++ GST - Requirement of adhering to principles of natural justice is required to be read into, in absence of any specific stipulations in Statute to contrary: HC

++ GST - Appellate Authority, in relying upon 'new grounds', has violated principles of natural justice, by not putting petitioner to any notice: HC

++ ST - Collecting tax from customers but not depositing with exchequer - Financial difficulties can never justify appellants' non-payment of tax - penalty rightly upheld by Tribunal: HC

++ ST - Board Circular cannot be allowed to supersede the law which has already been laid down by statute as well as by Jurisdictional Courts: CESTAT

++ CX - Goods were not sold and only rule that is applicable to clearances of such goods is Rule 8 of Valuation Rules: CESTAT

++ ST - BSNL, Jodhpur is entitled to take credit on capital goods, input services and inputs which are received in one SSA and are distributed to other SSA: CESTAT

++ Cus - When role of main culprit itself could not be established, then it is ex-facie wrong to fasten liability on co-accused - In any case, a co-accused cannot be worse off than prime accused: CESTAT

++ CX - Notfn. 30/2004-CX is not an absolute exemption - condition envisaged in rule 11(3)(i) and (ii) of CCR are separate - balance credit does not lapse: CESTAT

++ Cus - DGFT - Relevant date is date of import and date on which contract has been entered into is not relevant: HC

++ Cus - Restriction on Import of Peas - There is nothing arbitrary or capricious about policy which appears to have been made in public interest: HC

++ Cus - In absence of any proof of non-availment of CENVAT credit by manufacturer, merchant exporter was entitled only to get the reduced duty draw back: HC

++ CX - All transactions have been recorded in books of accounts and are verified by audit party -no suppression, extended period of limitation not sustainable: CESTAT

++ ST - Penalties u/s 76 and 78 of FA, 1994 are mutually exclusive - When AA has imposed penalty u/s 76, same cannot be set aside in Revenue appeal requesting to impose penalty u/s 78: CESTAT

++ CX - Consequential refund cannot be denied on a fresh ground not indicated to the assessee: CESTAT

June 13, 2019

++ GST - In terms of s.107(6) of Act, an appeal can be filed provided appellant makes statutory deposit before appellate authority - to circumvent efficacious alternative remedy, petitioner has approached High Court - Petition dismissed: High Court

++ CX - 'Cream Mix' used within factory for manufacture of biscuits is not marketable and hence not excisable: CESTAT

++ ST - Transaction of appellant of leasing of gas cylinders to group company does not fall under 'Supply of Tangible goods' services: CESTAT

++ CX - Clubbing of clearances of different units can only be done when there is irrefutable evidence that they are actually running as one: CESTAT

++ ST - Appellants have discharged service tax under GTA by including margin money in taxable value, therefore, department cannot argue that said amount has to fall under BAS: CESTAT

++ CX - Section 4(1)(a), Proviso (i) provides for different normal prices for different classes of buyers - each contract price can be considered as applicable to a particular class of buyers: CESTAT

++ Cus - Since description as has been given by foreign supplier is declared on BE, assessee cannot be held guilty of misdeclaration: CESTAT

++ Non-availability of cogent and reliable evidence - provisions of s.171 of CGST Act are not attracted - no evidence to prove that Respondent had charged more price in GST era: NAA

++ Cus - Condonation of 582 days delay in filing appeal - Inaction shows negligence on part of the Revenue - no sufficient cause shown for condonation of delay: High Court

++ CX - Witnesses whose cross examination were sought were not the witnesses in support of SCNs - Tribunal had rightly upheld reasoning given by Commissioner for non-giving of cross examination: HC

++ CX - Oxygen gas manufactured from air is filled in gas cylinders, therefore, CENVAT credit is admissible even though used for transportation: CESTAT

++ ST - Rule 5 of CCR - Car parking services are Input services: CESTAT

++ CX - Iron fills emerge as an unavoidable and inevitable waste - appellant cannot be vested with any liability on account of Rule 6(3)(b) of CCR, 2004 : CESTAT

++ ST - While concluding that refund claim cannot be rejected on ground of being time-barred, the Bench erroneously stated that rejection of refund is 'justified' in place of mentioning 'unjustified' - being error apparent, same is rectified: CESTAT

++ Cus - Having accepted that goods are not Homoeopathic Medicines which was the primary charge, AA should have vacated proceedings instead of moving ahead and confiscating the goods on an altogether different ground: CESTAT

++ ST - Lessee is not entitled to own or does not have an option to own asset at the end of lease period, which is the distinguishing feature between an Operating Lease and a Financial Lease - no demand on income received from Operating Leasing transactions: CESTAT

++ Delay in making payment of taxes ipso facto attracts liability to pay interest as well: HC

June 12, 2019

++ ST - Air Travel Agent Service was utilized by assessee's executives who travelled in order to achieve business objectives & not for personal needs - since used for business purpose, it is an input service: CESTAT

++ CX - Once proceedings against main noticee i.e. company is concluded on payment of reduced penalty of 15%, proceedings against co-noticee also stands concluded: CESTAT

++ ST - Audit in 2010 did not question the eligibility of CENVAT credit, but in 2012 objection raised and SCN issued in 2015 - no suppression, demand barred by limitation: CESTAT

++ Cus - Possible detriment that may arise on a future date is not a grievance that should be entertained - appeal dismissed as premature: CESTAT

++ CX - Classification - O-in-A does not deal with items product-wise but is a general order and is non-speaking in nature - matter remanded: CESTAT

++ CX - Where goods are cleared from factory for sale, even though on FOR basis, place of buyer cannot be place of removal - Freight not includible in AV: CESTAT

++ Cus - Non supply of documents relied against assessee before passing impugned order is denial of natural justice - matter remanded: CESTAT

++ CX - Goods removed on invoice - Non-payment of duty by itself cannot lead to ipso facto presence of any mala fide ; no penalty: CESTAT

June 11, 2019

++ GST -Re-sectioning of river is related to function listed under Sl. No. 5 of Eleventh Schedule; applicant's service to Irrigation and Waterways Directorate, WB govt. is exempt: AAR

++ GST - Complaint relates to pre-GST period - anti-profiteering provisions contained in s.171(1) of Act are not attracted - application dismissed: NAA

++ CX - Assessee has acted on basis of notification issued by Central Government through Commerce Ministry - assessee should not be penalized for delay in issuing corresponding customs notification: CESTAT.

++ ST - It would be unfair and improper to demand service tax alleging that every service which is provided within airport area would fall under airport services: CESTAT

++ Cus - Since goods stand transferred by assessee with permission, differential duty liability on account of incorrect rate of exchange adopted at first stage of importation, will also have to be necessarily fastened only on transferee: CESTAT

++ CX - CENVAT - Additional Customs Duties paid through debit in certificate issued under DFCE - CBEC was expected to re-confirm and/or complement notification issued by DGFT simultaneously: CESTAT

++ ST - Transaction charges, SEBI turnover fees paid to NSE/BSE by the stock broker being statutory charges as per SEBI Rules are not liable to tax: CESTAT

++ Cus - Lower authorities, exercising jurisdiction under Customs Act, 1962 cannot make any reference to or impose any condition not contemplated in exemption notification: CESTAT

++ ST - Revenue having collected, without any demur or reservation, central excise duty, now cannot turn around and contend that appellant was liable to make payment of service tax under BAS: CESTAT

++ CX - Reversal of credit attributable to inputs used in manufacture of exempted goods is sufficient in view of retrospective amendment to rule 6 of CCR by FA, 2010: CESTAT

++ Cus - No latitude is vested with officers of Customs to enforce any condition on whim or according to their wisdom: CESTAT

++ CX - Once duty is paid along with interest before issuance of SCN and there is no suppression of facts, then assessee not liable to pay penalty: CESTAT

June 10, 2019

++ GST - Resuscitation of river is related to function listed under Sl. No. 5 of Eleventh Schedule; applicant's service to Irrigation and Waterways Directorate, WB govt. is exempt: AAR

++ GST - Up-gradation of Jalda Khoti Landing Centre has a direct nexus with fisheries development - is related to function listed under Sl. No. 4 of Eleventh Schedule - applicant's service to WB Fisheries Corporation is exempt: AAR

++ GST - Conservancy/solid waste management service provided by applicant to Conservancy department of Howrah Municipal Corporation is an exempt supply in terms of Sl. No. 3 of 12/2017-CTR; no TDS applies: AAR

++ Cab rental service provided by applicant to WB Postal Service is classifiable under SAC 9966 as renting of motor vehicle; GST paid on purchase of motor vehicles is not admissible as credit in view of s.17(5)(b)(i) of Act: AAR

++ CX - Distance between 'might have' and 'must have' is required to be covered by production of positive evidences - demand cannot be upheld on basis of surmises and conjectures: CESTAT

++ ST - CENVAT - Services of renting of godowns and stevedoring provided to clients by Custom House Agent, and which expenses are reimbursable, are not Input Services: CESTAT

++ CX - Credit available on inputs/capital goods used in R & D within factory premises as such activity is indispensable part of manufacturing: CESTAT

++ CX - ISD cannot be compelled to comply with requirement of pro-rata distribution of CENVAT Credit prior to 1.4.2012: CESTAT

++ CX - Appellants supplying refractory materials and also carrying out lining of furnace - charges for such 'Application Services' not includible in AV because manufacture of goods has been already completed in factory: CESTAT

++ Cus - Although lorry receipts were issued for Hyderabad, goods were used for execution of contracts awarded by the Pune Municipal Corporation - Benefit of 21/2002-Cus rightly denied: CESTAT

++ CX - S.4 - Revenue is not correct in taking the view that VAT liability discharged by utilizing subsidy challans cannot be taken as VAT actually paid: CESTAT

++ ST - Assessee being a Government undertaking would have been under bonafide impression that tax liability may not arise - law was in a flux situation during the impugned period - penalty not imposable: CESTAT

++ CX - While assessee is a proprietorship concern, M/s. Tubas is a Private Limited company - cannot be treated as related person - basic charge in SCN fails: CESTAT

++ If cognate products made from jute sutli was already covered in prior notification fixing rate of tax @ 5%, then Revenue cannot levy higher rate by resorting to a defence that estimate tax on jute yarn was only covered in subsequent notification: HC

++ CX - Appeal being one relating to rate of duty does not lie before High Court - Revenue appeal not maintainable: HC

++ ST - Activity of assessee is incidental/ ancillary to completion of manufactured product and thus, falls under Section 2f(i) of CEA, 1944 - not taxable under BAS: CESTAT

++ CX - Revenue appeal relates to grant of SSI exemption under notification 8/2003-CX - appeal relating to rate of duty from order of Tribunal is not maintainable: HC

++ Cus - It is a settled principle that goods are to be assessed in the way it is presented unless contrary is established: CESTAT

++ CX - 6/2002-CX - There is no restriction on sale/purchase activities on last date of FY - since no investigation was made by revenue, bill produced has to be accepted as correct reflection of facts: CESTAT

June 08, 2019

++ ST - Reversal of credit would lead to an inevitable conclusion that no credit stands availed - Benefit of 26/2012-ST available: CESTAT

++ CX - When Commissioner (A) has rejected the appeal on ground of being time-barred, Tribunal cannot go into the merits of the matter: CESTAT

++ ST - Without testing adjudication order on basis of submissions made, Tribunal concluded that the same is bad and allowed appeal - since passed in breach of principles of natural justice, order set aside: HC

++ CX - Once proportionate credit is reversed along with interest, if any, arising due to delay, demand under Rule 6(3)(ii) of CCR cannot be made: CESTAT

June 07, 2019

++ GST - Single Judge had dismissed petition primarily on challenge made to constitutional validity of s.174 but failed to advert to other contentions taken and decide petition on merit - writ appeal allowed: HC

++ ST - Without testing adjudication order on basis of submissions made, Tribunal concluded that the same is bad and allowed appeal - since passed in breach of principles of natural justice, order set aside: HC

++ GST - It is well settled law that unless tax and penalty are quantified, no confiscation order could be passed - fundamental flaw which goes to root of matter cannot be cured by referring to s.160 of Act: HC

++ ST - Revenue is not permitted to reject refund claim on one ground and when said ground is held unsustainable, to raise a hue and cry that there are also other grounds: CESTAT

++ CX - VAT liability discharged utilising investment subsidy granted in Form 37B can be considered as VAT 'actually paid' for purposes of s.4 of CEA, 1944: CESTAT

++ Cus - Matter pertains to goods imported as baggage - appeal not maintainable: CESTAT

++ ST - It is a settled position of law that a mere procedural lapse cannot take away substantial benefit, more so, when there is no dispute as to eligibility of Notification: CESTAT

++ Cus - Provisions of Project Import Regulations cannot be imported into provisions of Notfn 102/2007-Cus to interpret and deny refund of SAD: CESTAT

++ NDPS - Conspiracy is hatched in secrecy and it may be difficult, if not impossible, to obtain direct evidence to establish same - conspiracy can be proved by indirect circumstantial evidence: HC

++ ST - Hiring of vehicles and Rent-a-cab service are Input Services, credit admissible: CESTAT

++ CX - Merely because a SCN has been issued or is pending adjudication, it cannot be said that any other appeal proceedings has to be kept in abeyance: CESTAT

++ Cus - Misclassification cannot be a reason for invoking penal provisions against importer: CESTAT

++ CX - Value of bought out items need not be included in valuation of boilers cleared by respondent and installed at premises of their clients: CESTAT

June 06, 2019

++ CX - Notifications 5/98-CE & 5/99-CE - An extraneous condition cannot be imposed by adjudicating authority on its own: CESTAT

++ CX - Vehicles purchased in the name of partner - since same is used in furtherance of business and other related work by the Director of the Company, credit of tax paid admissible: CESTAT

++ ST - Appellants have not collected any mark up or retained any part of the charges collected from customers as agents of their principal - since no service provided, tax demand cannot sustain: CESTAT

++ CX - When provision of service was completed and invoice was also raised before 01.04.2011, availment of credit post 01.04.2011 is not hit by embargo brought into force w.e.f 01.04.2011: CESTAT

++ CX - Conditionalities that are required to be fulfilled when goods are imported under a customs exemption notification cannot be insisted upon in respect of clearances made by domestic manufacturers: CESTAT

++ ST VCES, 2013 - Rigid interpretation given to term 'shall' of Section 107(4) is unjustified - delay in making deposit due to non-functional online payment link of CBIC is a technical defect: CESTAT

++ Cus - It is incumbent on Commissioner to pass an order on each and every proposal made in SCN and he cannot choose to remain silent on some of them: CESTAT

++ ST - An individual or proprietor or proprietorship concern is not considered as a commercial concern - no service tax payable under BAS by such entity: CESTAT

++ CX - Cenvat Credit is available in respect of items used as structural support for capital goods: HC

++ CX - Undervaluation - Duty demand of Rs. 98,29,809/- would have involved cash transaction of more than Rs. 8 crore - no cash recovery or other evidence  - demand correctly dropped: CESTAT 

++ ST - Assessee is a private organization & its appointment by statutory notification is absent - assessee is merely carrying out an outsourced job of LPG cylinder testing - not exempt: CESTAT

++ ST - Contention that they faced difficulties in getting payments from clients is not backed by documents -  could have discharged tax with interest rather than wait for SCN - no relief u/s 80: CESTAT 

June 05, 2019

++ GST - There is no bar in Act on lodging an FIR under IPC for offences punishable under Penal Code even though, for same act/conduct, prosecution can be launched under U.P. Act: HC

++ GST - Prima facie, necessary ingredients of an offence of cheating, by submitting false information and documents, are clearly spelt out in FIR - same are cognizable offences punishable under Penal Code: HC

++ GST - Offences punishable under Penal Code are qualitatively different from an offence punishable under U.P. Act: HC

++ GST - Contention that no FIR can be lodged under provisions of CrPC for offences punishable under IPC as proceeding could only be drawn under the U.P. GST Act, 2017 , is rejected: HC

++ GST - There is no provision in U.P. Act which may suggest that provisions of the U.P. Act overrides or expressly or impliedly repeals the provisions of Penal Code: HC

++ CX - Assessee did not utilize credit availed on un-used inputs before reversal of same, therefore, no interest liability arises: CESTAT

++ ST - When entire exercise is revenue neutral, assessee could not have achieved any purpose by evading tax payable under reverse charge - penalty set aside: CESTAT

++ CX - Correction of anomaly - substituted provision of sub-rule (3A) in rule 6 of CCR shall have retrospective effect being clarificatory: CESTAT

June 04, 2019

++ ST - Services provided up to date of obtaining OC (on 28.10.2014) would not qualify as exempted services and, therefore, provisions of Rule 6 of CCR will not be applicable: CESTAT

++ CX - Even if valuation is u/s 4 or u/s 4A, benefit of Sl. No. 7, Notfn. 10/2003-CX would be available if price at which 'watches' are sold is less than Rs. 500/- per piece: CESTAT

++ ST - Invoice mentions 'service charge only' - benefit of abatement - whether works executed are service simplicitor or composite - facts not forthcoming - matter remanded: CESTAT

++ CX - Watches having been notified items under 4A(2) are definitely assessable under Section 4A of Act: CESTAT

++ ST - Electricity charges recovered on actual consumption basis and not on floor area basis - same cannot be clubbed with amount of rent: CESTAT

++ Cus - Applicant failing to intimate change of address to Registry - also exhibited lack of diligence in appointing counsel - princples of natural justice cannot be stretched this far - exparte order cannot be restored: CESTAT

++ ST - Benefit of Notfn 21/2003-ST cannot be extended to assessee as they received payment in Indian currency: CESTAT

++ ST - Rule 5 of CCR, 2004, does not stipulate registration of premises as a necessary prerequisite for claiming refund: CESTAT

++ Cus - Smuggling of diamonds - Appellant acted as an interpreter for foreigners and was fully aware of illicit activities, however, she merely acted as a witness and was not directly involved - penalty unjustified: CESTAT

++ CX - Charges paid to M/s MPAKVN for the maintenance of industrial area beyond factory are also Input Services: CESTAT

++ ST - Even if tax was paid under RIPS which is otherwise a Port service, a separate demand cannot be raised - Service-wise sub-code is only for statistical purposes: CESTAT

++ Cus - Impugned order is entirely against assessee and, therefore, Revenue could not have been aggrieved - appeal wrongly filed: CESTAT

June 03, 2019

++ CGST - Proposal recommending constitution of State Bench of GST Tribunal at Lucknow and 20 Area Benches in 16 cities is a reasoned one - GST Tribunal Benches to be constituted expeditiously within three months': HC

++ CGST - High Court does not find the use of word 'Principal Seat' for establishing a permanent Bench of a Tribunal in the cited apex Court decisions; words used are 'Seat of High Court': HC

++ CGST: There are two Seats of High Court of Judicature at Allahabad, one at Lucknow and other at Allahabad, none of which is permanent: High Court

++ ST - Defence that assessment is correct in the light of non co-operation by assessee is not a defence at all, and is rejected: HC

++ CX - Press-mud & Bagasse are not arising out of manufacturing activity and same are agricultural Waste & Residue - rule 6 of CCR, 2004 has no application: CESTAT

++ ST - Refund - Rule 5 of CCR, 2004 - Period of one year is to be considered as extended to end of quarter in which such claims are made: CESTAT

++ CX - Levy of VAT and service tax are mutually exclusive - Service tax cannot be demanded on value of works contract which has already suffered VAT: CESTAT

++ Cus - Valuation - Law only recognizes an expert's opinion as an evidence and undoubtedly, data available on internet is not one: CESTAT 

++ ST - When no suppression of facts can be attributed, imposition of penalty u/s 78 of FA, 1994 is an overkill: CESTAT 

++ Cus - Supervision of erection, commissioning cannot be done in country of origin because a commissioned plant cannot be imported - such charges not includible in AV: CESTAT

++ ST - Assessee renders philanthropic services - when such conclusion was arrived at to set aside penalty u/s 76, same findings would also apply u/s 78: CESTAT 

June 01, 2019

++ ST - IPR Service - Assigning part of copyright in cinematograph films to television channels - Conclusion of department to effect that a perpetual transfer or a transfer for 99 years, is temporary, appears, fundamentally unsound and defies logic: HC

++ ST - Stand of Department that the use of word 'perpetual' in the documentation entered by Petitioners with Television Channels is a mere camouflage is only a suspicion: HC

++ ST - Medical services provided to patients through panel/non-panel doctors - in absence of any consideration being received by hospitals from consultant doctors, no service tax is required to be paid: CESTAT

++ Cus - Instruction of DRI to MMTC to not release security deposited cannot tantamount to 'seizure' - Section 110(3) of Customs Act cannot be invoked for such purpose: High Court

++ ST - Reimbursable out-of-pocket expenses are not includible in gross value of taxable services, not being amounts charged by service provider for such services: CESTAT

++ Cus - Notfn 17/2009-Cus. - condition No. (iii) (a) although given retrospective effect w.e.f. 1.5.2006 was impossible for compliance for the period prior to issue of Notfn 19.02.2009: CESTAT

++ CX - Appellant is claiming refund as a representative of MES and not on his own account and, therefore, principle of unjust enrichment is not applicable: CESTAT