2017-TIOL-3056-CESTAT-MUM + Story
IL AND FS MARITIME INFRASTRUCTURE COMPANY LTD Vs CST: MUMBAI CESTAT (Dated: July 7, 2017)
ST – It was not open for the adjudicating authority as well as the Commissioner (Appeals) to visit an issue which was not the subject matter of the SCN - during the material time the rate of service tax was applicable as on the date of provision of service and not as per the date of receipt of service charges - since both the lower authorities had not gone into this aspect which was the core issue, the matter is remanded to the original authority - it is also made clear that it is not open for the AA to revisit the issue of abatement under notfn. 9/2004-ST since it was not the subject matter of the SCN – matter remanded: CESTAT [para 4]
Matter remanded
2017-TIOL-1642-HC-MUM-IT
CIT Vs Rajesh Khanna : BOMBAY HIGH COURT (Dated: August 10, 2017)
Income Tax - Civil Procedure Code - Rule 4.
Keyword - Condonation of Delay.
Whether when the death of the assessee, a popular figure in the Hindi Film industry, was widely reported, the Revenue can still seek CoD on the ground that it was ignorant of his death - NO: HC
Whether the Revenue is right in attributing the delay on its part to amend the Review Petition to the prevailing confusion about who would succeed the estate of the assessee - NO: HC
Whether such an attitude of the Revenue warrants impostion of costs - YES: HC
This review petition was filed by the Revenue seeking condonation of delay on the ground that they were ignorant that noted Hindi Cinema Actor Rajesh Khana had expired. Revenue also contended that there was an alleged dispute about who would succeed to the estate of the respondent.
Held that,
++ the explanation of the Revenue does not inspire confidence in the sense the assessee was well known figure in the cinema industry. He commanded huge popularity and his death was widely publicized in the media. Therefore, the Revenue cannot say that they were ignorant about his death. Secondly, the alleged dispute about who should succeed to the estate of the deceased can in no way influence, and in law, any decision, much less an obligation to proceed with the review petition by substituting the heirs and legal representatives of the deceased;
++ the Revenue is directed to pay costs of Rs 25000/- to the legal heir of the late assessee. Steps are also to be taken to remove all office objections by carrying out the requisite amendments to the memo of the review petition and also include the name of the widow Mrs. Dimple Khanna and thereafter, the names of the proposed legal heir(s).
Case disposed of
2017-TIOL-1634-HC-MAD-ST
MOOGAMBIGA TYRE RETREADING COMPANY Vs UoI: MADRAS HIGH COURT(Dated: August 2, 2017)
ST - Writ petition filed challenging the show-cause notice issued by the Additional Commissioner demanding Service Tax for the period from 16.06.2005 to 29.08.2008 and proposing to levy penalty and demand interest by invoking the extended period of limitation - petitioner contending that they are engaged in the business of retreading of tyres and the invoice raised by them gives all particulars and so far as samples purchased by them is concerned, they are all subject to Tamil Nadu General Sales Tax Act and the Service Tax is being paid only with regard to the labour component, therefore, SCN is without jurisdiction. Held: Petitioner contending that Service Tax can be levied only with regard to the retreading aspect excluding the cost of materials/goods - However, this aspect cannot be examined at this stage since the petitioner has not submitted themselves to the process of adjudication of the show-cause notice - In the Safety Retreading case, 2017-TIOL-28-SC-ST, the matter travelled upto the Supreme Court exhausting all the remedies available under the Act - Therefore, the petitioner has to necessarily submit their objection to the impugned SCN and assessing officer has to take note of the apex court decision (supra) while adjudicating the case - unless and until the petitioner produces the full details, which according to them is available at their hands, including the assessment under the TNGST Act and TNVAT Act, the Authority will not be able to take a decision what would be the quantum on which the Service Tax has to be remitted, hence SCN cannot be quashed - Writ Petition dismissed and petitioner directed to file reply to the SCN within thirty days: High Court [para 5]
Petition dismissed
2017-TIOL-1633-HC-MAD-CUS
CMS INFO SYSTEM LTD Vs ACC: MADRAS HIGH COURT (Dated: August 1, 2017)
Cus - the petitioner-assessee filed a claim for refund of Special Additional Duty (SAD), before the Refund Deptt. of the Chennai IV commissionerate - Such application was sent back with direction to the assessee to approach the appropriate authority - On appeal, the Commr.(A) upheld such action, on grounds that the Refunds Deppt. lacked the jurisdiction and the locus standi to accept and process such a claim and held that the only plausible thing to do was reject the application or point the claimant in the direction of the correct authority, which had been done.
Held - in pursuance of earlier directions from this court, the revenue authorities stated in a communication, that the Assistant/Deputy Commr. of Customs, Chennai VII Air Cargo Commissionerate, was the proper officer for dealing with the refund claim - Therefore, the impugned O-i-A is set aside and petitioner directed to present the refund application before the aforementioned proper authority: High Court (Para 3,4,5,7)
Writ petition allowed
2017-TIOL-1632-HC-MAD-CUS
BV LEATHERS Vs PR CC: MADRAS HIGH COURT (Dated: August 4, 2017)
Cus - Some goods belonging to the petitioner-assessee, were seized by the Customs authorities who demanded payment of export duty, with bond for fine & penalty - On appeal, this Court in an earlier order, substituted such condition of payment of export duty, with one requiring furnishing of a bank guarantee of a nationalized bank equivalent to 30% of export duty - However, when the petitioners sought provisional release of the goods, the Customs authorities again demanded bank guarantee for penalty amount - Once again this Court intervened and held that such bank guarantee was uncalled for & diluted the essence of the earlier order, as in the earlier round, the Customs authorities had not mentioned that they would be needing bank guarantee towards fine and penalty - Therefore, part of the earlier order requiring furnishing of security in the form of bank guarantee was directed to be stayed, and the Customs authorities were directed to release the goods upon fulfilment of the conditions imposed on the assessee - The assessee thus filed the present appeal seeking direction to the Customs authorities to release the goods.
Held - the stand taken by the Customs authorities is no different from that in he earlier round of litigation - Customs authorities directed to release the goods within one week from date of receipt of this order: High Court (Para 2-7,11)
Writ petition allowed
2017-TIOL-1631-HC-MAD-CX
ANKIT ISPAT PVT LTD Vs CCE: MADRAS HIGH COURT (Dated: July 27, 2017)
CX - the petitioner-assessee firm is engaged in manufacture of MS Ingots & was declared a 'sick company' due to low demand for the products - A search of the factory revealed shortage of MS Ingots owing to difference between the book and the physical stock - The statement of a General Manager of the assessee firm was taken, apparently forcibly - Of the duty demand imposed the assessee paid some amount - Later, six SCNs were issued for multiple periods, invoking limitation - The assessee obtained copies of the relied-upon documents from the revenue, but such documents were damaged when the assessee's office in Chennai was flooded due to natural calamity - Thereby, the assessee was unable to file a timely reply and sought refixing of the date of personal hearing, on more than one occasion, before filing the reply to SCN later - However, the assessee then alleged that the impugned O-i-O was passed without granting a personal hearing.
Held - The principles of natural justice and adherence thereof, cannot be put in a straight jacket formula - The factual aspects in each case have to be tested on the anvil of the conduct of parties - Considering the facts, the assessee had not been denied a chance to present its case, but instead deliberately failed to avail each opportunity granted - The floods hit Chennai much after the proceedings had started against the assessee - Besides, the assessee has not put anything on record to show that the documents had been sent to its Chennai branch - Since the assessee did not file the reply to SCN despite havign knowledge of the proceedings, the fault lies with them and they cannot claim violation of principles of natural justice - Besides, other grounds raised by the assessee would be better decided by the Appellate Tribunal - Hence, present writ merits being dismissed as equally efficacious remedy in the form of appeal before the Tribunal, is available: High Court (Para 2,3,8,9,11)
Writ petition dismissed
