SERVICE TAX SECTION

2018-TIOL-518-HC-AP-ST + Story

Venkateswara Rao Bolla Vs Senior Intelligence Officer

ST - Petitioners collected service tax to the tune of Rs. 4,05,77,984/- and Rs.2,16,89,832/- from the service recipients but did not pay the same to the credit of the Central Government – Section 89 of FA, 1994 - Arrest – Bail granted subject to petitioners furnishing bank guarantee for the remaining due amount – Petition before High Court. Held: Conditions of Section 73A(3) of the FA, 1994 should be fulfilled before invoking section 89 of the Finance Act, 1994 as held by Delhi High Court in the cases of eBIZ.COM PVT. LTD -  2016-TIOL-2896-HC-DEL-ST  and  MAKEMYTRIP (INDIA) PVT. LTD. =  2016-TIOL-1957-HC-DEL-ST   – undertaking by the counsel for the petitioners is not binding on the petitioners as there can be no estoppel against the Constitution and Statutes - Court, on the basis of the undertaking given by a party, cannot convert itself into an executing Court to execute the terms agreed by the party, while deciding the bail application - condition imposed by the Court below to the extent of directing the petitioners to furnish bank guarantee for the remaining amount cannot be sustained and is set aside – Criminal Petitions allowed: High Court [para 11 to 15] - Petitions allowed: ANDHRA PRADESH HIGH COURT

2018-TIOL-951-CESTAT-ALL

ST - The issue in this appeal is, whether the assessee, a manufacturer of Electronic & Electrical goods who have incurred expenditure in foreign exchange in sponsoring sports bodies located outside India, is liable to pay Service Tax on reverse charge basis under classification ''Advertisement Agency Service'' defined under Sub-clause (e) of Clause 105 of Section 65 read with Section 65 Clause (2 & 3) of Finance Act, 1994 - Issue contained in this appeal is squarely covered by ruling of Tribunal in the case of Hero Motocorp Ltd. 2016-TIOL-02-CESTAT-DEL on all four corners - Very same nature of agreement with the same M/s GCC PTE Ltd. had been entered into by Hero Motocorp Ltd. and other world sports bodies, as in the case of the present assessee and after examining the issues and details this Tribunal held that the service received is not taxable under head "Advertising Agency Services" - Accordingly, appeal allowed on merits, setting aside the impugned order: CESTAT - Appeal allowed : ALLAHABAD CESTAT

CENTRAL EXCISE SECTION

2018-TIOL-953-CESTAT-HYD

CX - Assessee removed electronic items intended to Indian Navy, claiming the benefit of notfn 64/95 - Revenue views that these goods cannot be considered as ship builders as the goods were used for construction of ships by Indian Navy - Benefit of notfn 25/2002-CE requires conditions of providing or producing a certificate signed by an Officer not below the rank of Rear Admiral of Indian Navy or of any other officer of the Indian navy equivalent to the Joint Secretary to the Government of India, before clearances of goods and that the goods intended for the use in Indian Navy - For the clearances made from 11.04.2002 to 28.02.2003 were done so, without such certificate, hence claiming the benefit of Notfn 25/2002-CE does not arise - As regards the benefit of notfn 64/95, Bench has already taken a view in Final Order dated 10.09.2007, which is against the assessee and nothing is brought to notice that said final order has been appealed against by assessee - In absence of any proceedings against said order, benefit of said Notfn is not available to them, and claim to the same is rejected - The question of limitation needs consideration by this Bench - Demand of duty liability for period beyond one year from the date of issuance of SCN is hit by limitation and demand needs to be set aside - Lower authorities will recalculate the demand within the limitation period and inform the assessee to discharge the same alongwith interest - As regards to penalty imposed on assessee, assessee being a Government organization, could not have had any intention to remove the goods without payment of duty and more specifically when they have subsequent clearances, produced various certificates issued by Navel authorities indicating that these goods are used as stores in the ship - This could be the mis-interpretation and mis-conception of notfn 64/95 - Accordingly, penlty need not be imposed on assessee: CESTAT - Appeal partly allowed : HYDERABAD CESTAT

2018-TIOL-952-CESTAT-HYD

CX - The assessee filed a claim for refund claiming that they had paid Education Cess @2% and Secondary & Higher Education Cess @1% on the amount (i.e., 6%) paid by them on the value of the non-excisable goods during period from April 2012 to February 2015 contending that since amount on the value of non-excisable goods cannot be considered as duty of excise, they are not liable to pay Education Cess and Secondary & High Education Cess on such amount but they paid the said Cess inadvertently - First Appellate Authority after considering the entire case laws and the provisions of Rule 8 of Central Excise Rules read with Rule 2 of CCR, 2002 and Section 3 of CEA, 1944, held that the amounts paid by assessee which is equivalent to 6% or 8% of value of exempted goods by any stretch of imagination cannot be considered as duty - The findings by First Appellate Authority on this point are correct - If the amounts which is required to be paid as reversal for exempted goods cleared is in itself has not a duty but an amount, question of levy of Education Cess would not arise - The amount paid by assessee being an amount and does not amount to duty, the provisions of Section 11B, would not get attracted to such refund claims, and the bar of unjust enrichment will not apply, as the said provisions of Section 11B will apply to refund is a duty - As regards to question of applicability of unjust enrichment, Revenue Authorities are unable to controvert the detailed findings of First Appellate Authority and allowing the appeal of assessee - I mpugned order is correct and legal and does not suffer from any infirmity: CESTAT - Appeal rejected : HYDERABAD CESTAT