TODAY'S CASE (INDIRECT TAX)

January 31, 2020

++ Cus - Exporters do face difficulties in realization of export proceeds and, therefore, not all cases where there is a delay in producing BRCs, penalty u/s 117 is to be imposed: HC

++ Cus - Court has not been shown any statutory provision that pendency of appeal by itself would amount to a stay: HC

++ ST - A subsequent entry having been enacted covering the activity without any change of the existing entry, the same has to be interpreted as if the earlier existing entry did not cover the subsequently created entry: CESTAT

++ Cus - Department is not obliged to prove its case with mathematical precision - It must establish a degree of probability based on which a prudent man may believe in existence of facts in issue: CESTAT

++ CX - As per Notfn No 24/2012-CE(NT), Cenvat credit taken or utilized of the duty, tax or cess paid on input goods or services or capital goods used in making the final product, need not be reversed, notwithstanding that cutting, slitting or printing aluminum foils is not tantamount to manufacture: CESTAT

++ GST - Since clauses (a) and (b) of sub-section (1) of s.129 commence with the phrase on payment, it is not sufficient for the consignor to merely make an offer or undertake to remit the tax, but actually remit the payment: HC

++ GST - Activity of printing of question papers is activity of supply of 'services' - attracts Nil tax where supplied to 'educational institutions' and attracts GST @12% if otherwise: AAR

++ Supply of packed food items at general minor units at railway platforms is 'supply of service' - GST will be 5% without ITC: AAR

++ Cus - CBIC is to frame new regulations superseding incumbent ones, having regard to prevalent circumstances - Reducing number of attempts for appearing in Customs Broker exam is not arbitrary or contravening of Article 14: HC

++ ST - Adjudicating authority is obliged to examine evidences, payments & agreements to determine their taxability or otherwise - Rhetorical questions are no substitute for well-reasoned findings: CESTAT

++ CX - Four different High Courts have struck down the constitutional validity of Rule 8(3A) of CER, 2002 and appeals to Supreme Court have been admitted but not decided - stay granted in only one case but not others - HC order is required to be followed: CESTAT

++ CX - Mere fact that assessee had not followed procedure u/r 6 of CCR to reverse proportionate credit, it cannot lead to a conclusion that they have wilfully suppressed any material information from department: CESTAT

January 30, 2020

++ ST - It is settled law that charges collected towards electric sub-station installation is a bundled service u/s 66F of the Finance Act 1994: CESTAT

++ CX - Clandestine removal - statement of employees cannot be relied upon when the request of cross-examination has been denied on vague ground: CESTAT

++ Cus - Its is not open to Revenue to invoke extended limitation where assessments completed have not been challenged by way of filing appeal: CESTAT

++ CX - Department does not have any source data of the pen-drive and in absence thereof, said electronic data cannot be relied upon to prove charges of clandestine removal: CESTAT

++ ST - Rent-a-cab service - Post 1.4.2011, Cenvat credit can be taken only if services are used to provide taxable service for which credit on motor vehicle is available as capital goods: CESTAT

++ CX - It is trite law that refund arising from an assessment cannot be sanctioned unless such assessment itself has been challenged - Refund claim rejected where assessment is not contested: CESTAT

++ CX - There is no material on record to prove that Silico-Manganese supplied by the assessee were not of inferior quality but were prime material - allegation of under-valuation cannot sustain: CESTAT

++ Cus - An assessee is not barred from seeking re-consideration of conditions imposed for provisional release of seized goods - Adjudicating authority to dispose of representation in keeping with Circular No 35/2017-Cus: CESTAT

++ Cus - Rejection of transaction value - MRP of assessee's goods is not comparable with MRP of contemporaneous importer's goods, if the latter also provides free installation & after sales services not being provided by the former: CESTAT

January 29, 2020

++ Carry forward of EC/SHEC/KKC as transitional credit under GST regime - Order of Single Judge stayed as it is likely to be applied in other such similar cases: HC

++ Cus - Standalone Antenna cannot be considered as a 'machine' so as to attract classification under CSH 8517 6290; rightly classifiable as 'parts' of Base Transmission Station under CSH 8517 7090: CESTAT

++ CX - In no circumstances, Rule 6 of CCR should be used as a measure to extract illegal amounts from the assessee - proportionate credit reversal sufficient: CESTAT

++ CX - 32/99-CE - Since according to the SCN and the impugned order themselves, there was no manufacture, there can be no levy and hence no requirement to make payment of any duty: CESTAT

++ Cus - Opinion of Harmonized Systems Committee has lot of weight and should ordinarily be taken as binding: CESTAT

++ CX - There is no sanction u/s 11 of CEA for recovery of a sum of money due from a person from another person, a separate legal entity, unless the said sum in the hand of the said other person is owed or due to or on account of or payable to the person against whom duty has been confirmed: CESTAT

++ CX - If CAS-4 is relied on to compute transaction value, then overall duty liability or short payment of duty is to be determined after considering duty already paid in such FY: CESTAT

++ Cus - Persons other than State Trading Enterprises can import Low Aromatic White Spirit upon obtaining authorization from DGFT - Order directing re-export is not tenable: CESTAT

++ ST - CICS - WCS - Exclusions from railways, roads & dams extends to all forms thereof, in absence of any terms restricting them to public railways, roads or dams: CESTAT

++ CX - Only on the basis of statements, CENVAT cannot be denied when the records are not held to be untrue or falsified: CESTAT

++ Cus - S.128 of CA, 1962 has not provided for an appeal against a 'speaking order' but against 'any order', which is of wide amplitude - self-assessment order is appealable: CESTAT

++ CX - Exemption as per Notfns No 10/97-CE & 6/2006-CE cannot be denied if claimant furnishes requisite certificates showing specific end use of goods supplied by it: CESTAT

++ Cus - Assessee imported perfumes without cover of CDSCO certificate & violated provisions of Drugs & Cosmetics Act - Absolute confiscation of goods u/s 111(d) is sustained: CESTAT

++ Cus - Offending goods were wrongly supplied to importer due to cross-stuffing - Importer requested for their re-export - Hence, quantum of redemption fine & penalty merits reduction: CESTAT

January 28, 2020

++ ST - Refund denied for non-compliance with Notfn No 27/2012-CE(NT) - Matter remanded as no finding given by lower authorities in debit entries made by assessee: CESTAT

++ CX - Whether 'casino vessels' are 'pleasure boats' - View of CE Officers that gambling gives pleasure and the inclusion of such expression in heading no. 8903 would suffice for resorting to that classification is unreasonable: CESTAT

++ Cus - Penalty u/s 112A is imposable on CHA which failed in its duty of ensuring compliance with Customs Act & rendered the consignment liable for confiscation: CESTAT

++ ST - No 'toleration' here -  Notice pay, in lieu of sudden termination, does not give rise to rendition of service either by the employer or employee - s.66E(e) of FA, 1994 not attracted: HC

++ Cus - Adjudication process cannot be interfered with as it is left on discretion of authorities concerned & with expectation that applicable rules & laws would be followed: HC

++ CX - Claim for Cenvat credit is not absolute - Assessee must prove receipt, storage & use of inputs/capital goods to manufacture final products or intermediate items used in final products, to justify claim: CESTAT

++ ST - Supply of packaged software to end user & charging license fee, results in transfer of right to use software - Such transaction is deemed sale as per Article 366(29A) & will not attract service tax: CESTAT

++ Cus - In the proceedings under Customs Act, 1962, CHA has been cleared of all allegations - foundation of allegation having failed, forfeiture of security deposit cannot sustain: CESTAT

January 27, 2020

++ Fortified rice kernels are correctly classifiable under HSN 1904 9090 [GST @18%] as Prepared foods and not under HSN  1006 1090 as Rice-Others: AAR

++ Ancillary services like Elephant Ride at Amber Fort, Guide charges, Boat ride at Udaipur, Camel Ride at Jaisalmer, Saree/Turban tying etc. provided to Tour operators are Support Services classifiable under SAC 9985 and attract GST @18%: AAR

++ Ready to eat 'Fried Fryums' is not 'Papad' but classifiable under heading 2106 and attracts GST @18%: AAR

++ Mandi Board is not a government authority - Parking lot services provided by applicant to Market Committee at Jalandhar is not exempted; attracts GST @18%: AAR

++ NDPS - Liberal approach in matter of bail under the NDPS Act is uncalled for - High Court has completely overlooked the underlying object of Section 37: SC

++Cus - Matter relating to imposition, deletion or reduction of amount of penalty is within discretion of fact finding bodies - Tribunal being the highest fact finding body, in its fair exercise of discretion, reduced penalty - no question of law arises: HC

++ CX - Same order of CESTAT cannot be again assailed by an Appeal u/s 35G of CEA once the appeal has been dismissed by the Supreme Court: HC

++ ST -Export of Service - Appellant has no role in fixation of price nor they negotiate in any manner between CPC Global and their clients relating to sales promotion of goods sold - appellant cannot be called as an 'intermediary': CESTAT

++ Cus - So long as demands have not attained finality, same cannot be called as arrears which could be adjusted against the refund sanctioned: CESTAT

++ ST - Duty demand consequent to denial of credit cannot be raised from an ISD - no legal provision in Rule 14 of CCR to recover credit from an ISD: CESTAT

++ CX - Warehousing services have not been wholly utilized by appellant but ISD distributed the whole of credit - Whatever service tax has been paid, the appellant is entitled to avail Cenvat credit - moreover, distribution of credit has not been disputed: CESTAT

++ Cus - Appellants cannot be faulted for a lacuna in the law - Any change in the law is to be applied prospectively only and cannot, in any case, be applied retrospectively to the detriment of appellants: CESTAT

++ Cus - Inactive Dried Yeast - Animal Feed Supplement is raw material used to prepare animal feed - It cannot be classified alongside animal feeds by virtue of inclusive definition given in HSN Explanatory Notes for CTH 2309: CESTAT

++ ST - On death of sole proprietor, appeals and demand and recovery proceedings against appellant abate: CESTAT

++ CX - There is absolutely no requirement that capital goods at time of receipt must be owned by manufacturer or that same would cease to be capital goods, if they are installed in factory and become fixed to earth - Orders have been passed without any application of mind: CESTAT

++ Cus - Quasi judicial authorities are bound by law and not by any administrative instructions, opinions, clarifications or circulars: CESTAT

January 25, 2020

++ When a similar activity is performed by a similarly placed entity in India who is acting to fulfil the same function for another Indian entity, same would normally be exigible to GST - To hold otherwise, in appellant's case would go against the grain of expressed intention of  legislature: AAAR

++ CX - Amendment carried out in Rule 6(6) of CCR by way of Notification No.50/2008-CX(NT) is retrospective - supplies made to SEZ developer are also to be considered as export: CESTAT

++ ST - If transporters engaged are goods transport owners, not registered under service tax, there is no question of assessee availing credit on inputs - Conditions for availing abatement under Notfn No 32/04-ST are satisfied: CESTAT

++ Cus - Appellant is not entitled to refund without having first challenged assessment order itself: CESTAT

++ Cus - It was not open to Commr.(A) to revisit a decision taken in favour of appellant, save on appeal authorised by Commissioner of Customs: CESTAT

January 24, 2020

++ GST - Odomos is a mosquito repellent and neatly fits into description under HSN 3808 9191 - claim of classification as medicine is clearly misconceived: HC

++ GST - Order of Appellate Authority can be judicially reviewed and not appealed against: HC

++ Cus - Failure to enclose notification copy - State stands in a category apart, having a solemn and constitutional duty to assist court in dispensation of justice - it is absolutely no defence of authorities to contend that they were not aware of their own notification: SC

++ ST - Use of phrase principal to principal basis cannot be construed to mean that any arrangement between assessee & its agents would constitute Franchise Service: CESTAT

++ CX - Purchasing lead ingots with purity of 99.5% and thereafter increasing the purity to 99.9% does not amount to manufacture: CESTAT

++ Cus - Re-determination of value of imported goods is not tenable where based on alleged contemporaneous imports, which are not identical to the imports made by the assessee: CESTAT

++ CX - There has to be a manufacturing activity for invoking Rule 6 of CCR - Removal of Press Mud falls outside the scope of this rule: CESTAT

++ ST - Assessee imparts training in educational courses - Assessee is not recognised by law to grant any degree- Such activity is taxable under Commercial Coaching & Training: CESTAT

++ Cus - Valuation - OIO proceeds on a curious admixture of Rule 5 & Rule 7 which is nowhere provided for - arbitrarily 30% has been loaded without any authority of law : CESTAT

++ CX - Spirit behind Rule 5 of CCR is to allow refund of CENVAT credit even against deemed export viz. clearance to 100% EOU : CESTAT

++ ST - Refund - Procedure is the handmaid of justice which is meant to serve justice rather than defeat the purpose - time-limit prescribed u/s 104(3) of FA, 2017 is only directory, but the time prescribed u/s 11B applies in full: CESTAT

++ CX- Perverse observation - Original authority viewing that documents cannot be accepted at adjudication stage but should have been produced before investigating authorities is contrary to the tenets of natural justice: CESTAT

January 23, 2020

++ GST - No tax is leviable under the IGST Act, 2007 on ocean freight - 8/2017-IT(R) [Entry 9(ii)] and 10/2017-IT(R) [Entry 10] declared ultra vires and unconstitutional as they lack legislative competency: HC

++ ST - Notifications and the Rules made thereunder laying down that importer was the person liable to pay service tax on ocean freight is ultra vires the charging section as well as the machinery section of FA, 1994: HC

++ ST - Issue relating to territorial jurisdiction ordinarily does not go to root of matter - contention as to incompetence and inapplicability of Notification 13/2017-CX(NT) is negatived: HC

++ ST - Refund - Respondent provides the service on his own account, therefore, cannot be termed as an 'intermediary' - respondent independently sold the license to the overseas customers, after purchasing them from Microsoft - service is an export of service: CESTAT

++ Cus - Diversion of raw materials received duty free - case against Appellant is based upon documentary evidence and not merely on statements,hence not granting cross examination is not fatal to the proceedings: CESTAT

++ ST - Contract, being for mining and essential character of service rendered is that of mining, it can only be taxable under 'Mining of Minerals, Oil or Gas Service' - cannot be vivisected into different elements and charged to tax separately: CESTAT

++ CX - It will not be appropriate to ask the Appellant not to avail the rebate of the duty paid by it under the provisions of Rule 18 of the CER: CESTAT

++ Leasing goods transport vehicles without operator is classifiable under SAC 997311 and taxable under Sl. no. 17(iii) of 12/2017-CTR; ITC on inward supply of motor vehicles is admissible: AAR

++ Unauthorised action of officers concerned may tantamount to an offence u/s 348 of Indian Penal Code; what is not permissible in law cannot be done under guise of discharge of statutory functions: HC

++ There is no provision under GST Acts which empowers authorised officer to confine family members of a dealer: HC

++ Though power u/s 67(2) of Act was to be exercised for carrying out search and seizure of goods liable to confiscation, documents, books or things at place in respect of which authorisation of search was given, search was converted to a 'search for dealer' : HC

++ It is regretful that Chief Commissioner of State Tax has attempted to justify wrongful action on part of officers of department: HC

++ Infringement of fundamental rights under Article 21 of Constitution - Protection of such action u/s 157 of GST Acts may unleash a regime of terror insofar as taxable persons are concerned: HC

++ ST - If service tax & interest is waived under Notfn No 9/2017-ST, no penalty is is to be imposed: CESTAT

++ CX - Rails are used for the transport of raw material inside the factory for manufacturing final product, CENVAT credit admissible: CESTAT

++ Cus - Dairy machinery including the packing machine is an integrated plant and is to be classified as Dairy Machinery [CTH 8434 2000] in view of Section Notes 3, 4 and 5 of Section XVI of Customs Tariff: CESTAT

++ Cus - Benefit of Notfn No 24/2011-Cus cannot be denied solely because provisional assay certificate was produced instead of the final assay certificate: CESTAT

January 22, 2020

++ GST - Power u/s 83 of Act is to be used in only limited circumstances and it is not an omnibus power: HC

++ GST - Section 83 does not provide for an automatic extension to any other taxable person from an inquiry specifically launched against taxable person: HC

++ GST - Act does not empower Authority to give ruling on Place of Supply of goods or services, hence question raised by applicant cannot be answered: AAR

++ CX - Appellant, a 100% EOU, exports fruit & vegetables - Insecticide procured under Notfn No 22/2003-CE is sent to farmers outside EOU - benefit of exemption undeniable: CESTAT

++ Cus - Case is made on basis of report prepared by external auditors as part of internal assessment & control mechanism adopted by appellants to verify & manage inventory of imported goods - no mala fide intent attributed to validate penalty: CESTAT

++ ST - It is settled position in law that electricity charges reimbursed to service provider by service recipient are not to be included in gross value of taxable service: CESTAT

++ Benefit extended under Customs Act in terms of waiver of duty cannot be construed as waiver of sales tax: SC

++ ST - Order merely quotes provisions of law & Board clarifications - it does not discuss its applicability to present set of facts - Order is a non-speaking order bereft of any reasoning, which is heart & soul of any order: CESTAT

++ Cus - Forged scrip - Duty liability cannot be fastened on the appellant being a bona fide purchaser of such DEPB scrips: CESTAT

++ ST - Refund of interest & penalty paid upon objection by Audit Wing, is justly denied, where assessee filed declaration waiving of SCN & when payment of penalty without issuing SCN is in keeping with Clarification dated 18.8.2015: CESTAT

++ CX - By relying merely on description, which does not reveal actual nature of scrap, it cannot be held that scrap sold to independent buyers is different from waste & scrap captively consumed: CESTAT

January 21, 2020

++ ST - It is settled law that it is not open to the Department to question the eligibility to Cenvat credit while adjudicating upon a claim for refund of credit: CESTAT

++ CX - Rule 10 of Valuation Rules requires that the entire sales should be made through related person - only 25-30% sales are through related person and remaining sales are to independent buyers and to Govt. bodies: CESTAT

++ Cus - When penalty is imposed on partnership firm, separate penalty cannot be imposed on its partner: CESTAT

++ ST - Assessee paid duty with interest & 25% of penalty u/s 78 upon being informed of its liability - Commr.(A) modified O-i-A to accept reduced penalty - Relief sought against penalty u/s 78 is already allowed: CESTAT

++ CX - Credit cannot be denied in the hands of the recipient even if the duty was legally not payable by the supplier: CESTAT

++ CX - Two SCNs issued on the basis of the same EA-2000 report but contrary to each other - Orders set aside & matter remanded: CESTAT

++ Cus - Discharge certificate issued under Indirect Tax Dispute Resolution Scheme, 2016 is binding on all authorities, including Commr.(A) - O-i-A finding faults in it is unjustified: CESTAT

January 20, 2020

++ CST - Cancellation of registration - SCN invoked s.7(4) of the CST Act, 1956 whereas order refers to s.7(5) - as both sub-sections deal with different contingencies, order is unreasoned and without application of mind, hence quashed: HC

++ GST - IGST paid under CGST head - No plausible reason, whatsoever, exists to deny the petitioner the benefit of refund under the provisions of Section 77(1) of the CGST Act read with Section 19(2) of the IGST Act: HC

++ ST - Assessee reversed credit availed on SAD before issuing of SCN - Matter remanded to verify quantum of credit claimed to be reversed & to verify claims of sufficient balance of unutilised credit from date of availment till its reversal: CESTAT

++ ST - As adjudicating authority has observed that  short payment was detected   based on records maintained, therefore, charges of suppression & mis-statement of facts cannot be levelled: CESTAT

++ CX - SCN is the foundation of the case and if there is a lacuna in the SCN, it cannot be rectified at the appellate stage or in remand proceedings: CESTAT

++ GST - A ctivity of fabrication of body building on Tippers, Trailers etc. merits classification under SAC 998881 and attracts GST @18%: AAR

++ Filters manufactured by the appellant solely and principally for use by the Indian Railways and supplied directly to the IR or through a distributor are rightly classifiable under CH 84.21 and not under CH 86.07: AAAR

++ GST - Rule of ejusdem genesis has no inverse application inasmuch as general words preceding the enumeration are not governed by this rule: AAAR

++ ST - Appellant does not offer 'Convention services' but gets events organised by professionals and, by collecting fees, which are transmitted in full to such organisers, enables its members to participate in them: CESTAT

++ CX - Cenvat credit is permissible to job worker or to manufacturer at intermediate stage in respect of inputs like lubricants, soaps & chemical: CESTAT

++ CX - If there is lack of authority to demand Excise duty or Service Tax, then Revenue has no authority to collect such amounts - Such amount paid erroneously is not Excise duty or Service Tax & so provisions u/s 11B of CEA are inapplicable in such cases: CESTAT

++ Cus - O-i-O denying benefit under Notfn No 21/2002-Cus and charging 5% BCD on import of Coking Coal, is unsustainable, where based on a test report which is later established to be non est & so proves unreliable: CESTAT

January 18, 2020

++ Ruling is applicable within particular State only, therefore, questions relating to requirement of GST registration in another State is beyond jurisdiction: AAR

++ GST - ITC not available on goods and services used for setting up of Maintenance, Repair and Overhaul (MRO) facility: AAR

++ Charges collected for entry into Municipal park as well as on ticket charges for Toy train, Pedal boat facility is chargeable to GST @18%: AAR

++ Deposit returned by GIDC along with interest to parties as per direction of Supreme Court since SEZ could not be set up due to people protest - compensation paid is 'supply of service' under Schedule II, clause 5(e) of GST Act; attracts tax liability: AAR 

++ ST - For claiming Cenvat credit on cash vans, the claimant must be proved that such vans are capital goods & that such vans were registered in the claimant's name during period of dispute: CESTAT

++ Penalties imposed on importer & on CHA are upheld where both confessed to their respective roles in mis-declaring consignment of goods prohibited for import: CESTAT

++ CX - Allegation of availing fraudulent CENVAT credit without receipt of inputs - There is an entry at Information Collection Centre (ICC) of the State VAT which shows that the goods have passed through ICC and reached the factory of the assessee - credit cannot be denied: CESTAT

January 17, 2020

++ GST - Demo Motor Vehicles are capital goods used in course of furtherance of business - Tax paid on inward supply of Motor vehicle is available as ITC: AAR

++ Joyville Virar -  Building completion and finishing services will not be regarded as separate services but are a part of composite supply of WCS with principal supply of building construction - concessional rate @12% on pro-rata basis in respect of low cost houses: AAR

++ GST - Benefit of concessional rate of tax @12% in respect of low cost houses would also be available in respect of Society formation charges, Club house development charges, Legal Service Charges etc. which are collected from buyers of such 'low cost houses': AAR

++ GST - Power conferred u/s 83 upon Commissioner by legislature could not have been delegated to subordinate officers: HC

++ CX - Denial of exemption under Notfn No 254/87-CX on man-made fabrics is untenable where relevant Board letter relied upon by the assessee is applicable to Polyester as well: CESTAT

++ ST - Assessee provided services on behalf of principal, which holds license to distribute electricity - Exemption as per Notfn No 32/2010-ST which is available to the principal is also available to the assessee: CESTAT

++ Cus - It is settled law that no refund can be claimed once assessment has been finalized without challenge to the same, irrespective of self-assessment: CESTAT

++ ST - Recipient of service can claim refund on the strength of the STTG certificate issued by Indian Railways: CESTAT

++ ST - Matter remanded to adjudicating authority for determining if principal manufacturer is required to pay duty in final product so as to make intermediate job worker exempt from payment of duty: CESTAT

++ CX - Buyers' premises can never be the place of removal - freight and insurance charges is not required to be included in the assessable value: CESTAT

++ Provisions of Section 4(1)(a) of the Central Excise Act do not bar existence of two transaction values for the same product & for same receiver - Matter remanded where Revenue rejects transaction value as declared by assessee, without recorded any reasons: CESTAT

++ Cus - Any error in classification or in exemption claimed on BoE cannot be construed as mis -declaration with intent to evade payment of duty - Extended period of limitation cannot be invoked: CESTAT

January 16, 2020

++ ST - Assessee sold food to persons who also availed Mandap facilities - Charges claimed for Mandap Keeper service & Catering service were demonstrated separately - Duty demand raised by clubbing value of food items with those of Mandap Keeper service, is unsustainable: CESTAT

++ CX - Activity of testing of DG set at the site of the customer is not part and parcel of sale of DG set - Cost of diesel not includible in transaction value: CESTAT

++ CX - Cenvat credit is allowable in respect of rent paid on premises leased for use as guesthouse & for back office purposes: CESTAT

++ Cus - Verification of DRI's report did not establish any non-conformity between goods imported & their description in BoE - Charges of manipulating or concealing the origin of seized goods are untenable: CESTAT

++ Service Tax is payable on work undertaken by sub-contractor in respect of construction of residential complex - Matter remanded to consider it's claims of having supplied material as well: CESTAT

++ ST - Activity of maximising toll collections, minimising incidents on toll road & maintenance against damage or deterioration, is promotion or marketing of service provided by client - Such activities are taxable as Business Auxiliary Services: CESTAT

++ CX - Charges of shortage of petroleum products are untenable, where based on loss of such items which are within condonable limit or have not been measured correctly & no evidence points to their removal: CESTAT

++ Cus - Enhancement of value is unsustainable where Revenue rejects transaction value without recording sufficient reasons & if description of contemporaneous exports do not match that of the goods imported by assessee: CESTAT

January 15, 2020

++ Cus - Provisions of Section 14 do not specifically mention the person required to pay freight - It is nowhere stated that only freight paid by importer is includible in trasaction value - Freight paid by overseas supplier merits consideration as well: CESTAT

++ ST - Refund of unutilised cenvat credit cannot be denied where assessee voluntarily debits credit amount in Form GSTR-3B for the relevant period, which satisfies conditions of the Notfn No 27/2012-CE: CESTAT

++ CX - Cenvat credit allowed on input services pertaining to engineering, design, erection & commission and installation, used for laying foundation for support of capital goods: CESTAT

++ CX - No reversal of credit u/r 6(1) of CCR is warranted on MS drums used for packing inputs, on which credit has been taken, when cleared from the factory of the manufacturer: CESTAT

++ VAT - ITC not to be denied if purchaser has paid tax but selling dealer defaults in depositing tax: HC

++ CX - Assessee is ineligible to avail Cenvat credit on capital goods which are found to not have been used to manufacture any excisable products: CESTAT

++ CX - Clandestine removal - Such charges are untenable where original authority does not permit cross examination of witnesses whose statements were relied upon to issue SCN: CESTAT

++ ST - Place of Provision of Service Rules - Revenue omitted to consider application of Rule 2(1)(b(i) which prescribes that location of business establishment as being relevant - Where service is consumed by entity located abroad, no duty is payable by its provider in India: CESTAT

++ Cus - Confiscation of imported goods & redemption fine is sustained where examination of goods revealed them to not be Shredded Aluminum Scrap as declared by the importer: CESTAT

January 14, 2020

++ ST - A ppellant is providing cleaning service to educational institution through manpower engaged under its control and supervision - not taxable as Manpower Supply service: CESTAT

++ ST - Activities of transportation with incidental loading & unloading including wagon loading is principally & dominantly for transportation of coal within mines - Hence not taxable under Cargo Handling Service: CESTAT

++ CX - Assessee is ineligible to avail Cenvat credit on capital goods which are found to not have been used to manufacture any excisable products: CESTAT

++ Cus - Right of refund accrues from exemption Notification - It is not open to importer to selectively follow conditions stated therein - SAD refund rightly rejected where claimed after one year limitation period: CESTAT

++ GST - Attachment of current account having debit balance does not protect interest of revenue, instead, merely ruins the business of dealer - Orders quashed: HC

++ VAT - Where processed commodity retains its composition, commercial identity or use from its parent product, then the processed item is to be categorized on same criteria as its parent product: HC

++ CX - Though there are two registrations, the factory continues to remain one - benefit of Notfn No 6/2000-CX unavailable: CESTAT

++ ST - Duty demand raised under SOTG is unsustainable where effective control and possession over equipment in question have not been transferred to assessee: CESTAT

++ Cus - There is no allegation of the Customs broker having been involved in the process of negotiations, or dealings, with the shipper - Penalty of revocation of licence is disproportionately harsh: CESTAT

++ CX - Rule 6(2) of CCR 2004 does not require separate stock of inputs to be maintained or that inputs be bought under different invoices - It only mandates maintenance of separate accounts: CESTAT

++ CX - Issue in the earlier case was grant of twin registration to bifurcated premises - issue of admissibility of notification, since not examined by Tribunal, it's order cannot be an authority on that issue: CESTAT

January 13, 2020

++ Cus - SCN alleging mis-declaration of imports made in June 2011 issued on 07.02.2014 and was pending adjudication as on 29.03.2018 - since no order passed by 28.03.2019 and no extension granted in terms of s.28(9) of CA, 1962, SCN lapses: HC

++ Sales Tax - Process of converting Wet Blue Leather into Finished Leather amounts to manufacture as per Section 3 of TNGST Act: HC

++ ST - Re-stacking & re-conditioning expenses pertain to arrangement & re-arrangement of goods in depot, which is core of C&F agent's activity - Charges for the same are part of assessable value for CFA service: CESTAT

++ CX - Cenvat credit is allowed on lubricating oil & paint considering enlarged scope of input service w.e.f. 1.4.2011 & where such items are used in upkeep & smooth functioning of plant & machinery: CESTAT

++ Cus - Amendment of shipping bill is permissible where the assessee omitted to tick 'YES' in the reward column of shipping bill for availing benefit under MEIS: CESTAT

++ GST - Life of an order of provisional attachment u/s 83(2) of the CGST Act is one year - since the period of one year has come to an end, provisional attachment of the bank accounts stands removed: HC

++ ST - It is settled law that the power conferred upon competent authority with reference to 'territorial jurisdiction' is not an instance of total lack of jurisdiction, so as to make the order null and void: HC

++ Cus - After the release of imported goods in April 2016 from the custom area, there was no power with the DRI, much less u/s 144 of the Act, to draw samples at a subsequent stage i.e. in August 2016 from the factory premises: HC

++ ST - It is the duty of the adjudicating authority to pass a fair order and it is no part of the duty to deny the benefit which was legitimately available to the petitioner if materials were brought to the knowledge of the respondent though subsequently: HC

++ ST - Refund of tax paid cannot be rejected where CA's certificate categorically states that burden of duty was not passed on by the assessee: CESTAT

++ CX - Taking credit after two years is not barred either by CCR or by Board Circulars: CESTAT

++ ST - Provisions of Section 66A & Rule 2(1)(d)(iv) of Service Tax Rules 1994, are inapplicable, where assessee provided services to overseas group companies - Duty demand raised is unsustainable: CESTAT

++ CX - Circular is trying to clarify a situation which was already existing and it does not in any way indicate that itis a clarification for future: CESTAT

++ CX - Assessee is entitled to interest to be calculated from date of deposit till its realisation, in respect of amount pre-deposited u/s 35F prior to filing appeal: CESTAT

++ Cus - Penalties imposed u/s 112(d) & 114AA on a Customs Broker are not sustainable where no mala fide intent is attributed to the broker so as to satisfy the pre-requisites to invoke these provisions: CESTAT

January 11, 2020

++ Cus - To avail exemption of duty under any Notification, Rules and Regulations and the conditions prescribed therein have to be strictly adhered to and there is no place for equity or intendment in the interpretation: HC

++ Cus - Very purpose of Customs (Import of Goods at Concessional Rate of Duty) Rules, 1996 and requirement of Assessee to apply u/r 4 for intended imports in future would be frustrated, if the Rule 3 (Registration) and 4 were to be applied retrospectively to the imports already made: HC

++ Cus - Controversy is not with regard to valuation of goods in question or rate of duty, but question is of wrong exemption claimed by Assessee and granted by Tribunal - Appeal is maintainable before High Court: HC

++ CX - Supplies made by DTA unit to SEZ qualifies as export & such clearances are not hit by Rule 6 of CCR 2004 - Reversal of 10% of value of clearances is unwarranted: CESTAT

++ ST - Suppression of facts cannot be alleged against assessee, where relevant & material facts forming basis for duty demand, were within knowledge of the Department: CESTAT

++ Cus - O-i-O confiscating goods is quashed where it invokes Section 111(d) instead of the correct Section 111(m) - Redemption fine set aside as well: CESTAT

January 10, 2020

++ GST - Hearing fixed on 08.07.2019 but order passed on 02.07.2019 - opportunity which s.129(4) of the Act is talking about has to be meaningful opportunity and not just an eye wash - gross violation of principles of natural justice: HC

++NDPS - Mere fact that the case of the prosecution is based on the evidence of official witnesses does not mean that same should not be believed: SC LB

++ ST - Refund of cenvat credit be allowed where input services in question were essential for assessee's business & if no evidence exists to show inputs were availed for other than business activity: CESTAT

++ CX - Penalty is not imposable on job worker where principal entity paid service tax on activity which Revenue sought to classify as manufacture, hence showing no intent to evade payment of duty: CESTAT

++ CX - Approval of declaration in classification list is deliberate consequence of due ascertainment - In context of specific description of manufactured goods, such onus cannot be wished away by alleging mis-declaration by assessee: CESTAT

++ Cus - Provisions of s.114A make it very clear that penalty under this Section is imposable on the person who is liable to pay duty & interest thereupon and not on the authorized signatory: CESTAT

++ ST - Promotion of sales - Commission earned by Managing Director - If the entire remuneration stands considered by Income Tax Authorities as salary, same cannot be considered as service: CESTAT

++ CX - Draft Circular, since never issued, should be completely ignored - Findings of adjudicating authority based on Draft Circular is unsustainable: CESTAT

++ CX - PVC Pipes manufactured & cleared for irrigational purposes in agriculture or horticulture, are correctly classifiable under CETH 8424 9000: CESTAT

++ Cus - Charge of customs duty u/s 12 is on importer or exporter - hence penalty u/s 114A is also imposable on the importer, not on Customs broker - misdeclaration of facts by Customs broker is instead punishable u/s 114AA: CESTAT

January 09, 2020

++ Cus - Letter Rogatory - Supreme Court grants interim stay of operation of Bombay High Court order in Adani case

++ Cus - Only a general statement is made that there were transfers of officers due to AGT and there was heavy workload - In absence of any particulars, Tribunal has rightly dismissed the application seeking COD of 452 days: HC

++ CX - Results of the test reports against the appellant are to be applied prospectively only, since earlier test result was in favour of appellant: CESTAT

++ CX - Merely on the basis of statements of dealers, it cannot be concluded that the goods cleared in the past are also similar to the goods presently tested - invocation of extended period is not justified: CESTAT

++ CX - Revenue erred in passing separate orders for confiscation of goods & penalty, where both arise from same investigation - If one O-i-O concludes all proceedings, including confiscation, then other O-i-O is non est: CESTAT

++ CX - Amount deposited before Tribunal as pre-deposit u/s 35F for considering stay application, is to be refunded without following procedure u/s 11B, where stay order is passed & duty demand is dropped: CESTAT

++ ST - Contract for supply of material & installation & commissioning of equipment, with no clear vivisection of service & material component, is a composite contract & is taxable as WCS - Demand raised under ECIS is invalid: CESTAT

++ Cus - It is trite law that Customs authorities do not have jurisdiction to deal with Gold imported by units located in SEZ - O-i-O seizing Gold from person in SEZ area is unsustainable: CESTAT

++ GST - Reversal of ITC by respondent on his own accord  before getting Occupancy Certificate is a malafide act aimed with an intention of denying passage of ITC benefit to customer and does not alter the computation of profiteering by the DGAP in any manner: NAA

++ Cus - Duty free baggage allowance that is permitted under the Baggage Rules cannot be clubbed with duty free allowance permitted to another passenger who even falls within the definition of the family of first passenger: HC

++ ST - When the service provided is exempt, what has been paid cannot be called service tax - limitation u/s 11B of CEA, 1944 inapplicable: CESTAT

++ CX - Issue of classification is subject matter of service provider & cannot be disputed in the hands of the service recipient, so as to deny cenvat credit: CESTAT

++ ST - Extended limitation invoked to raise duty demand is sustained where assessee was aware of liability to pay tax under GTA service but did not obtain registration for its unit: CESTAT

++ Cus - Revocation of CHA's license is excessive punishment if no mala fide intent to file BoE under collusion or connivance to conceal brand name & actual value of goods, is attributed to CHA: CESTAT

January 08, 2020

++ GST - Anti-Profiteering - Respondent contention that applicant has filed complaint only to blackmail him is untenable as applicant is an interested party in terms of rule 137(c)(b) of CGST Rules: NAA

++ CX - CENVAT - It is well settled that no suppression can be alleged on basis of audit objection: CESTAT

++ NDPS - While considering an application for bail with reference to Section 37 of the NDPS Act, the Court is not called upon to record a finding of 'not guilty': HC

++ Cus - Final assessment u/s 18 of Customs Act, 1962 cannot be made after the expiry of five years from the date of bill of entry: HC

++ Cus - Department has taken frivolous plea just to conceal their negligence/incompetency and mislead the Court, which cannot be appreciated: HC

++ Cus - Computer systems supplied to Export Oriented Units on payment of Terminal Excise Duty - since tax has been wrongly paid, it cannot be retained by respondent Revenue - refund admissible: HC

++ CX - Appellants were paying duty on provisional value and after finalization of books of accounts they were calculating the exact cost of manufacture and paying differential duty - Interest is chargeable from the due date as prescribed u/r 8 of CER, 2002: CESTAT

++ CX - Cenvat credit - Matter remanded to ascertain assessee's claim of certain goods being returned & taking back credit on the same: CESTAT

++ ST - Payment of service tax under wrong accounting code or under wrong head is invalid reason to deny valid refund claimed of service tax erroneously paid by assessee: CESTAT

++ Cus - Rejection of declared value of imported goods is untenable if no reasons are recorded for rejecting the same & if Revenue does not follow provisions of Customs Valuation Rules 1988 in sequential manner: CESTAT

++ ST - Activity of providing cash van with security guard is taxable under Cash Van Service & not under Security Service, as dominant service involved is transportation of cash in such vans: CESTAT

++ Cus - Revocation of CHA's license for alleged manipulation of weighment of imported consignment, is too harsh punishment, where based on contradictory statements & incomplete investigations: CESTAT

++ CX - Excise duty is not payable upon mere clearance of goods from any place under manufacturer's control, but is due when such goods are transferred to the buyer against consideration: CESTAT

++ ST - Labor supplied for filling gas in cylinders, handling, loading & unloading of cylinders, is covered under Processing of goods on behalf of client, rather than Manpower Supply & Recruitment Agency service: CESTAT

++ CX - Clandestine clearance - Quantum of duty demand merits reduction where based on statements recorded under duress & which were later retracted after 8-year gap between their recording & the deponents' cross examination: CESTAT

January 07, 2020

++ GST - Supplies by two different taxable persons - Concept of enhancement of utility of instrument through supply of reagents etc., while relevant for purposes of valuation of supply of instruments, cannot be imported into concept of composite supply under GST Act: HC

++ GST - Creating 26 fake firms for issuing fake invoices to the tune of Rs.494.16 Crores and facilitating claim of input credit of Rs.108.36 Crores - Proprietor does not deserve bail: HC

++ ST - It is trite law that a composite contract is appropriately classifiable under Works Contract Service & not under any of the other defined category of service: CESTAT

++ CX - Department coerced the appellant to reverse credit - if the amount is not voluntarily paid and later on the case is decided in favour of the assessee, then he is entitled to interest from the date of deposit made: CESTAT

++ CX - Clandestine clearance - Matter remanded to consider assessee's request for cross examination & to proceed with adjudication only after recording reasons for permitting or disallowing the same: CESTAT

++ Cus - Undervaluation of goods - Revenue made self-contradictory estimations by not amending declared value but instead enhanced it to account for estimated undeclared weight - Such charges are unsustainable: CESTAT

++ Cus - Order passed under Regulation 23 of CBLR, 2013 would be appealable before the CESTAT u/s 129A of CA, 1962 - Regulations cannot stipulate conditions or procedures contrary to those stated in the Act: HC

++ Cus - Merely because BE was not filed at the time of importation in 2012 and the manual bill of entry was filed in 2018, duty and tax cannot be levied based on the law prevalent in 2018, no IGST: HC

++ CX - Change of opinion of law cannot be taken as a 'mistake apparent on the face of record' which could be rectified by invoking section 35C(2) of CEA: HC

++ CX - When the appeal was decided by Tribunal, the decision was taken based on the law as it stood then - subsequent decision of the Supreme Court declaring the law as otherwise cannot be utilized for reopening a concluded decision, which had attained finality between parties inter se : HC

++ VAT - When conducting best of judgment assessment, AO is not vested with jurisdiction to also determine eligibility under amnesty scheme - such assessment order is unsustainable: HC

++ ST - At the time of filing of refund claim u/r 5 of CCR, entitlement for CENVAT credit cannot be questioned: CESTAT

++ CX - Both units form part of the same corporate entity - even if Hyderabad unit pays tax in place of Visakhapatnam unit for services rendered in latter unit, Cenvat credit cannot be denied as there is substantial compliance: CESTAT

++ ST - It is trite law that cenvat credit can be availed based on debit notes if all details as per Rule 9 of CCR are contained therein: CESTAT

++ CX - Proceedings for cancellation of bond cannot be used to also determine eligibility for exemption as claimed by assessee at time of filing BoE for clearing imported goods: CESTAT

++ Cus - Application for amending BoE is pending - initiating proceedings against importer unjustified as no intent to indulge in mis-declaration of goods is attributed, more so if there is no corresponding mis-declaration in Bill of Lading: CESTAT

January 06, 2020

++ ST - Department can travel only backward from current assessment to past period and not like audit people who usually move forward from year last audit was closed: CESTAT

++ CX - Matter remanded for reconsideration of refund claim where such claim made by assessee had been allowed by the Commr.(A) in earlier period: CESTAT

++ CX - Clandestine removal of goods is a serious charge which is to be established through cogent evidence of manufacture of goods, their delivery to some parties or receipt of some consideration: CESTAT

++ Cus - Mis-declaration of goods - Importer cannot shift blame on CHA as the latter will not be benefitted in any manner from such misdeclaration: CESTAT

++ Cus - Board Circular dated 22.08.2019 is inapplicable to Customs matters - appeal earlier disposed off based on such Circular, is restored to file: HC

++ CX - Revenue cannot solely be held liable for loss of confiscated goods where the assessee is responsible for their loss by not seeking provisional release as soon as provisional order was passed: HC

++ ST - Rule 6(1) of CCR precludes availment of credit attributable to input service used in providing exempt services, except where separate accounts are maintained & credit is taken only to extent attributable to taxable service: CESTAT

++ CX - Plain reading of Rule 5 of CCR r/w Rule 19 of CER 2002 & Notfn No 42/2001-CE (NT) clarifies that refund of accumulated credit is admissible if goods are supplied for manufacturing goods subsequently exported: CESTAT

January 04, 2020

++ Cus - Social Welfare Surcharge is an independent levy collected under a different enactment & is intended for a different purpose; hence does not take the color of parent levy: HC

++ ST - It is trite law that refund of duty paid in excess cannot be refunded to claimant where burden of such duty has been passed on to the customers: CESTAT

++ CX - Classification of industrial paints - Matter remanded to consider effect of letter written by jurisidictional Asst Commr. in respect of examination report issued by National Test House: CESTAT

++ CX - Exemption on MS Pipes/Tubes - Notfn No 23/2011-CE retrospectively exempts goods falling under Chapter Heading 7305 - O-i-O allowing such exemption warrants no interference with: CESTAT

++ Cus - Confiscation of imported Cold Rolled Stainless Steel & Hot Rolled Stainless Steel Sheets u/s 111(m) & penalty u/s 112(a) are sustained where importer admits misdeclaration of goods to evade Anti Dumping Duty: CESTAT

January 03, 2020

++ HDPE Tarpaulins is not classifiable under  either of HSN 6306/6301/5903: AAAR

++ Printing of Trade advertisement material is supply of service of printing, classifiable under SAC 9989 and not supply of goods: AAAR

++ Import of yellow peas - supply of services like loading, unloading after the cargo is imported is not entitled to exemption under Sl. no. 54(e) of 12/2017-CTR - legislature intends to boost agriculture sector of home country and not foreign land: AAAR

++ CX - Any amounts which are received over & above the sale price of excisable goods, in any form or manner, are additional consideration & must be added to the transaction value: CESTAT

++ CX - Place of removal - Matter remanded to verify whether sale is on FOR basis & if freight is integral part of sale price & if duty paid includes value of freight: CESTAT

++ ST - It is trite law that sales tax & service tax are mutually exclusive - sales transaction does not cease to be as such merely if exemption is availed - Service tax demand is untenable if declaration in Form E-1 & Form C are submitted: CESTAT

++ Cus - Import of old clothes - Reduction in quantum of redemption fine & penalty to 10% & 5% respectively, is sustainable, where they are are in keeping with precedent decisions: CESTAT

++ GST - Passing on discount/rebate on account of GST cannot amount to passing on the benefit of ITC as per the provisions of s.171(1) of the CGST Act, 2017: NAA

++ ST - Cenvat credit on availment of insurance policy cannot be denied on grounds of personal use by key employee, if assessee-company is the policy holder & benefit under policy is payable to it: CESTAT

++ Repair & Maintenance Service - Service tax cannot be demanded on spare parts used in course of providing service, if sales tax is already paid on value of such goods: CESTAT

++ CX - Cenvat credit on Furnace Oil used to generate electricity in captive power plant was allowed in previous years, even though part of such power was used in factory office & canteen; no reason to take different stand in current year: CESTAT

++ Cus - Benefit of notification 52/2003-Cus is available only when goods are re-imported for repair or reconditioning - As repacking of bulk drugs,as per chapter note 6 to Ch.30 of CETA, 1985, amounts to manufacture u/s 2(f) of CEA, 1944, exemption rightly denied: CESTAT

January 02, 2020

++ GST - TRAN-1 - Legitimate rights of the petitioners to carry forward of unutilized credit of duty/tax already paid cannot be denied on technicalities: HC

++ ST - Refund of CENVAT - Nowhere in rule 5 of CCR is there a provision to determine whether availment of CENVAT Credit in the first place is correct or otherwise: CESTAT

++ CX - CENVAT amount claimed as refund appropriated against dues u/s 79 of CGST Act - Tribunal does not have any jurisdiction to decide such case: CESTAT

++ CX - It is settled law that a standard formula cannot be adopted to impose & calculate quantum of redemption fine, as each case is to be examined on its own facts: CESTAT

++ Cus - Refund of SAD - Amendment to Notfn No 93/2008 clarifies that claimant must satisfy condition of limitation as well, which is one year from date of payment of duty: CESTAT

++ ITC unavailable against any goods or services received for construction of Marriage Hall which is rented out: AAR

++ ST - Service provider is liable to be charged service tax qua service rendered by him and the valuation of taxable service could not be anything more or less than the consideration paid for rendering such a service: HC

++ Customs officer who seized imported goods is statutorily required to record reasons to believe of such goods being liable for confiscation; besides, provisions of Customs Act are inapplicable if goods are found unfit for consumption: HC

++ ST - It is trite law that indivisible works contract is taxable only w.e.f. 1.6.2007 with introduction of separate taxable service of Works Contract Service: CESTAT

++ CX - Onus lies on Revenue to justify the demand by stating the quantities of inputs not received or returned - merely because debit notes have been raised on supplier of inputs, CENVAT credit cannot be denied: CESTAT

++ ST - Issue of determining duty liability regarding transactions with foreign entity is to be decided based on provisions of Export of Service Rules 2005; Revenue's reliance on Article 286(1)(b) of Constitution is misplaced: CESTAT

++ CX - Packing material lying unused in factory for more than three years - as long as the same is not written off in books of account or removed from factory, CENVAT credit reversal cannot be sought: CESTAT

January 01, 2020

++ GST - IGST Refund - Taxpayers are reeling under confusion - Revenue needs to realise that inefficient implementation of the law has had adverse fallout on the taxpayer: HC

++ GST - Cardinal rule is that taxes should not exported - Denial of IGST refund is causing severe financial crunch to the exporters business: HC

++ ST - Service of upgradation of software, received under AMC from foreign service providers, is taxable under Information Technology Service & not under Maintenance or Repair services: CESTAT

++ CX - Cenvat credit - Matter remanded where assessee produced insufficient evidence to show that freight charges were included in assessable value: CESTAT

++ Assessee's appeal merits dismissal where its counsel seeks repeated adjournments & fails to obtain SCN & O-i-O on file, thus displaying lack of interest in pursuing appeal: CESTAT