2017-TIOL-396-SC-CUS
CCE & ST Vs M/s SANJIVANI NON FERROUS TRADING PVT LTD : SUPREME COURT OF INDIA (Dated: October 13, 2017)
Cus – Valuation – Section 14 of the Customs Act, 1962 - Assessee imported 843 consignments of 'Aluminium Waste & Scrap' & filed Bills of Entry for each consignment – CESTAT 2017-TIOL-3396-CESTAT-ALL while allowing appeal of importer held that assessable value has to be arrived at on the basis of the price which is actually paid and in a case the price is not sole consideration or if the buyers and sellers are related persons then after establishing that the price is not sole consideration the transaction value can be rejected and taking the other evidences into consideration the assessable value can be arrived at; that since such exercise has not been done, the enhancement of AV is rejected and the appeals were allowed – Revenue in appeal before Supreme Court.
Held: After condoning delay, appeal admitted: Supreme Court [para 2]
Appeal admitted
2017-TIOL-395-SC-CUS
USG BORAL BUILDING PRODUCTS (I) PVT LTD Vs UoI : SUPREME COURT OF INDIA (Dated: October 13, 2017)
Anti Dumping Duty - Based on recommendations of the investigation, ADD was imposed on Plain Gypsum Plasterboard till 06.06.2017 and subsequently, vide a Notfn., the Central Govt. extended the imposition of ADD up to 06.06.2018 - the petitioner challenged such extension of ADD on grounds of a hiatus between the expiry of the original period of the ADD and its extension vide the impugned Notfn, placing reliance on the Apex Court's decision in Union of India v. Kumho Petrochemicals Company Limited -2017-TIOL-232-SC-CUS - High Court distinguished cited decision in Kumho Petrochemicals Company Limited and held that while Section 9A states that the ADD imposed thereunder earlier ceases to have effect on the expiry of five years from the date of imposition, the second proviso holds that where the sunset review is initiated prior to the expiry of the period of five years, then the Central Govt. ' may ' continue the ADD for a further period not exceeding one year; that the termination of the original Notfn. was on the midnight of 6th/7thJune, 2017 and the commencement of the Notfn. continuing the ADD was again at the midnight of 6th/7thJune, 2017; that since no hiatus was found between the original Notfn. imposing the ADD and the impugned Notfn. continuing it, the intent of the Govt. to continue the ADD is clear; that the petitioner had failed to make a case for quashing the impugned Notfn and, therefore, the petition was dismissed – Petitioner filing Special Leave before Supreme Court.
Held: No merit in the Special Leave petition, hence dismissed: Supreme Court [para 3]
Petition dismissed
2017-TIOL-394-SC-ST
CC, CE & ST Vs BRINDESH G AGRAWAL : SUPREME COURT OF INDIA (Dated: October 13, 2017)
ST - Business Auxiliary Service - Respondent arranging finance for borrowers and receiving commission - CESTAT 2017-TIOL-1878-CESTAT-MUM, following its decision in Fulchand Tikamchand v. Commissioner of Central Excise & Customs, Nagpur - 2016-TIOL-502-CESTAT-MUM held that as consideration is not connected with the sale of a product or service belonging to the borrower, appellant does not find fitment under BAS - Tribunal allowing Appeal with consequential relief - Revenue in appeal before Supreme Court.
Held: As identical matter i.e. CA no. 11119/2017 is already pending and appeal in which regard is already admitted for hearing, present appeal also admitted and tagged with CA no. 11119/2017: Supreme Court [para 2]
Appeal admitted
2017-TIOL-393-SC-ST
CC, CE & ST Vs HYUNDAI MOTOR INDIA ENGINEERING (P) LTD : SUPREME COURT OF INDIA (Dated: October 13, 2017)
ST - Export of services - Refund of CENVAT credit under Rule 5 of the CENVAT Credit Rules, 2004 - Tribunal 2014-TIOL-1034-CESTAT-BANG holding that the relevant date is the date of receipt of payment - In Revenue appeal, High Court 2015-TIOL-739-HC-AP-ST held that there is no error in the order of the Tribunal inasmuch as the binding decision relied upon of Eaton Industries P. Ltd. 2011-TIOL-166-CESTAT-MUM had not been appealed against by Revenue nor it has been reversed or overruled by any superior forum - Also CENVAT credit on construction service has been allowed by Tribunal relying on the on the decision in the case of Infosys Ltd. v. C.S.T., Bangalore 2014-TIOL-409-CESTAT-BANG - Special Leave Petition filed by Revenue against this order.
Held: As in similar matters, leave has been granted, delay condoned and leave granted in the present petitions - to be tagged with Civil Appeal nos. 5698-5699 of 2012: Supreme Court [para 3, 4]
Leave granted
2017-TIOL-3713-CESTAT-MUM + Story
SHOPPERS STOP LTD Vs CST: MUMBAI CESTAT (Dated: September 4, 2017)
ST – Any service provided in relation to business or commerce is a 'support service of business or commerce' - In the present case, the concessionaire is solely engaged in the commerce i.e. sale of their goods in the premises of the appellant - The appellant provides their branded store duly air-conditioned, with adequate ambience, lighting, common security, various sales schemes to attract the customer - These facilities contribute in the sale of the goods of the concessionaire from the stores of the appellant, therefore the service of the appellant is clearly covered in the first clause of the definition of 'support services of business or commerce' - Consideration is either in the form of percentage of sale or if the total amount, as per the percentage does not meet to the minimum guaranteed amount then irrespective of percentage the fixed minimum guaranteed amount is charged by the appellant from the concessionaire - This further establishes that the arrangement is not of sale-purchase of goods between concessionaire and the appellant but of service: CESTAT [para 6.1, 6.2, 6.3]
ST - Appellant suo moto classified the service under 'Renting of immovable property service' and started paying service tax, since there is no revenue impact, no dispute arose from either side - Merely because the appellant from 1-6-2007 classified the service under "Renting of immovable property service" and department has not raised any objection, cannot become a law to construe that service involved in the present case is of "Renting of immovable property service": CESTAT [para 6.4]
Limitation & Penalty: Before 1-6-2007, appellant neither declared their service nor filed any ST-3 returns declaring the service of Business Support Service, therefore, department was completely kept in dark about the provision of service under the category of Business Support Service, therefore, there is clear suppression of facts on the part of the appellant - extended period was correctly invoked - For the same reason, penalties imposed are also legal and correct, which do not require any interference: CESTAT [para 6.4]
Appeal dismissed
2017-TIOL-2169-HC-DEL-CUS
BALAJI ENTERPRISES Vs UoI: DELHI HIGH COURT (Dated: October 11, 2017)
Cus - the premises of both the assessees herein were searched by the DRI, which alleged that certain duty free consignments of imported brass scrap were diverted to the market - Pusuantly, the bank accounts of both assessees were frozen & both claimed to have not been served SCNs even though they were regularly appearing for proceedings & providing information & documents.
Held - When the court sought justification for freezing the assessee's accounts, the revenue stated that no proceedings u/s 110 of the Customs Act 1962 were undertaken, on grounds that there were no stock of goods with the assessee firms - Such actions of the revenue are unjustified, as without there being any authority in law to justify the freezing of the bank accounts, requiring the assessees to furnish security for de-freezing such bank accounts would be unjustified - It was always open to the DRI to conclude the investigation and issue a SCN in accordance with law - Considering the High Court decision in Khaja Mustafa Kamal v. Union of India, the revenue was directed to de-freeze the assessees' bank accounts and take steps enabling the assessees' to operate them: High Court (Para 1-6,10,11,14,15)
Writ petitions allowed
2017-TIOL-2168-HC-DEL-CUS
AKS APPARELS Vs CC: DELHI HIGH COURT (Dated: October 10, 2017)
Cus - the assessee herein is engaged in the export of goods - The assessee claimed that the department had frozen its bank account and had restrained the assessee from availing benefit of duty drawback in respect of its exports - The assessee also claimed that the department placed the shipping bills of the assessee on an 'alert' list, due to which the DGFT stopped issuing scrips to the assessee.
Held - the second issue stands resolved as the DGFT resumed issue of 'scrips' to the assessee - Now, w.r.t. the first issue, although the department sought to justify freezing the assessee's bank account as a pre-emptive move aimed at safeguarding the interests of the revenue, there is no mention of any provision of law which justified such action - Considering that the investigation was complete and SCN was issued, there was no point in continuing the freezing of the assessee's account - Hence the Customs department directed to de-freeze the assessee's bank account and take steps to enable the assessee to operate it: High Court (Para 2,4,6,7,8)
Writ petition allowed
