SERVICE TAX SECTION
2018-TIOL-1078-CESTAT-MAD
Kari Kubel Institute of Development Education Vs CCE
ST - Assessee is having facilities of Training hall with all equipments and facilities for giving training to NGO as well as to others for conducting programmes - They collect rent and other charges for the facilities provided fo - The department felt that their activity of letting out the hall would attract service tax under category of "Mandap Keeper" and they were addressed to register with the department for service tax on 17.1.2005 - Course rooms, conference halls of assessee provided to their customers were used for conducting training programmes - It is not disputed that main activity of assessee is to organize and set up a foundation to promote welfare of family and children of poor status - In order to achieve this objective, assessee provide need-based training programmes and continuing education to personnel in the NGO, Government and Corporate sectors - These facilities are also used by others for conducting programmes such as training, workshops and conference - Viewed in this context, Tribunal is unable to appreciate how assessee can fall within the definition of "Mandap Keeper" - There is no dispute that assessee is a charitable, non-profit organization and for the period at least upto 1.5.2006, assessee cannot be called a "commercial concern" and hence there cannot be any tax liability till that date in respect of "convention service" - The period of dispute being January to September 2005, there cannot be any tax liability for services rendered by assessee - Activities of assessee cannot fall within the ambit of Mandap Keeper service - Impugned order set aside: CESTAT - Appeal allowed : CHENNAI CESTAT
2018-TIOL-1077-CESTAT-MAD
K S Ranganath Vs CST
ST - Assessee is a proprietor of M/s.K.S. Ranganath Architecture and providing Architecture services which was taxable from 16.10.1998 - It was alleged that assessee was charging and collecting service tax from the clients but had not remitted the same to the department - Issue of taxability of Architect Services was mired in litigation till it was finally settled by Supreme Court in landmark judgment of All India Fedn. of Tax Practioners 2007-TIOL-149-SC-ST - This being so, there definitely was lack of clarity on taxability of impugned services during the period of dispute - In the circumstances, no justification found for imposition of the penalty under Section 76, 77 & 78 of Finance Act, 1994, same are set aside - Assessee has contended that the allegation of having collected service tax from their clients but not paid up the same to the Government is incorrect since although they had charged service tax in their bills, the clients had refused to pay the same - These rival contentions concerning collection or otherwise of service tax from the clients can also be best settled in de novo proceedings by the adjudicating authority - Hence it is ordered that in addition to directions for reworking of demand of Annexure-II & III, as ordered by Commissioner (A), the de novo adjudicating authority will also look into other contentions of assessee that they have in fact not collected any tax from their clients that as per the settled law, there cannot be any service tax liability in respect of tax already discharged by sub-contractor and also in respect of reimbursable expenses - All these issues should be therefore dealt in the de novo proceedings: CESTAT - Appeal partly allowed : CHENNAI CESTAT
CENTRAL EXCISE SECTION
2018-TIOL-1081-CESTAT-MUM
CCE Vs Triumph Purified Water Industries
CX - Issue is whether the respondent is entitled for exemption under Notification No. 8/2003-CE when they have not availed the CENVAT credit in respect of goods on which the exemption was availed, but CENVAT credit was availed on the inputs used in the branded goods.
Held: In respect of branded goods, the respondent assessee have not availed the exemption notification 8/2003-CX inasmuch as they have cleared the branded goods on payment of full duty without availing exemption - 'specified goods' means such goods on which exemption under notfn. 8/2003-CX is availed - as respondent have not taken CENVAT credit on inputs used in manufacture of specified goods on which they claim exemption, they have not contravened the conditions of notfn. 8/2003-CX - Bench concurs with the findings of the Commissioner(A) - order is upheld and Revenue appeal is dismissed: CESTAT [para 4] - Appeal dismissed : MUMBAI CESTAT
2018-TIOL-1080-CESTAT-MUM
CEAT Ltd Vs CCE
CX - Interest - Section 11AB of the CEA, 1944 - Period January 2008 to March 2011 - Appellant had, under agreement with supplier and their job worker entailed delivery of inputs directly to the premises of the job worker - It is the case of the department that CENVAT credit should have been availed only upon receipt of the processed goods in the appellants premises and such ‘premature' availment of credit was liable to be visited with interest - It is the case of the appellant that upon receipt of the inputs at the premises of the job worker, the ERP system generated ‘goods receipt notes' and challans against which credit was availed -Appellant also draws attention to their letter dated 29 June 2007 intimating the department the procedure that was intended to be followed by them.
Held: Conditions for allowing CENVAT credit is prescribed in rule 4 of CCR, 2004 and the three events for availment include delivery of goods at the premises of the job-worker on direction of the manufacturer with the clock ticking from the receipt of goods at such premises - provisions of CCR, 2004 do not disbar the availment of credit at any time subject to the condition that the receipt and utilization of the inputs is not in dispute - no justification for demand of interest u/r 14 of CCR - impugned order set aside and appeal allowed: CESTAT [para 7 to 9] - Appeal allowed : MUMBAI CESTAT
2018-TIOL-1079-CESTAT-MUM
CEAT Ltd Vs CCE
CX - CENVAT - Rule 2(l) of CCR, 2004 - Services of Membership of Trade bodies and Renting of Immovable property, whether Input service.
Held: Exclusion in the definition of Input Service is restricted to membership to Social clubs and not Trade bodies - appellant is entitled to credit in view of the decision in Finolex Cables - 2015-TIOL-2632-CESTAT-MUM - As regards tax paid on utilization of renting of immovable property, denial of credit is on the ground that storage space is used after removal of goods - Tribunal in the case of Barmalt (India) - 2014-TIOL-2668-CESTAT-DEL has held that ‘place of removal' in section 4(3)(c)(iii) of CEA, 1944 did not exclude such storage places - following the said decision, disallowance of CENVAT credit on Renting of Immovable Properties would appear to be incorrect - Impugned order set aside and appeal allowed: CESTAT [para 4, 5] - Appeal allowed : MUMBAI CESTAT
CUSTOMS SECTION
INSTRUCTION/ NOTIFICATION
Customs Instruction No 7
Need to issue speaking order
csnt31-2018
CBIC notifies Customs exchange rate w.e.f. April 6, 2018
CASE LAWS
2018-TIOL-603-HC-MAD-CUS
Ruby Overseas Vs DGFT
Cus – Petitioner before High Court seeking quashing of the communication dated 18.12.2017 attributable to the 1st respondent and further directing the 2nd respondent to permit clearance of the goods 'Pigeon Peas' imported by them in terms of Sale Contract dated 10.10.2017 and cause release of the same in terms of the 'No Objection Certificate' [NOC] dated 28.11.2017 :
HELD – by the proceedings dated 18.12.2017, the 1st respondent has withdrawn the NOC granted to the petitioner for import of ‘Pigeon Peas' from Mozambique on the ground that subsequently the Government of Mozambique [GoM] informed the Government of India mandating only ICM [Institute de Cereasi de Mozambique] to be the sole designated agency responsible for regulating export of pulses to India under MoU –the decision taken by the GoM is much after the sale contract dated 10.10.2017 was entered into for supply of pigeon peas and after issuance of the NOC by the 1st respondent vide proceedings dated 28.11.2017 -it is not the case of the respondents that the decision taken by the GoM would operate retrospectively and that there was a request made by the GoM to withdraw all the NOCs issued by other agencies prior to their decision-when the 1st respondent had issued the NOC in favour of the petitioner, they cannot withdraw the NOC merely because the GoM had taken a subsequent decision asking the importers to get NOC from ICM -in the case on hand, there is no statutory prohibition for the issuance of NOC - when the communication of GoM is silent about the withdrawal of existing NOCs, the judgment relied upon by the 1st respondent [Godfrey Philips India Ltd. – 2002-TIOL-384-SC-CX-LB ] is not applicable to the present case -on the other hand, the judgments relied upon by the petitioner [Asian Food Industries – 2006-TIOL-147-SC-CUS , MRF Ltd. – 2006-TIOL-124-SC-CT , Himsheel International – 2011-TIOL-462-HC-DEL-CUS and Rex Trading Company – 1996 (86) ELT 189 Mad] squarely applies to the facts and circumstances of the present case -applying the ratios laid down in the judgments relied upon by the petitioner, the impugned order dated 18.12.2017 is set aside –however, the petitioner should approach the GoM for getting clearance for the import of Pigeon Peas based on the NOC issued by the Chamber of Commerce of Mozambique – Beira - writ petition is allowed : HIGH COURT [para 7, 8, 11, 12, 13, 14, 15, 16] - Writ Petition allowed : MADRAS HIGH COURT
2018-TIOL-591-HC-MUM-CUS
Rajuram Purohit Vs UoI
Cus - There are allegations against petitioner of having smuggled gold bars into India - It is alleged that by ostensibly carrying on air conditioners' and television sets' trading activity, petitioner together with Amrut Purohit is regularly smuggling the good bars by concealing them in air conditioners - If it is a serious allegation and made on oath, then, least it is expected that by now a SCN to be issued, petitioner's reply called for, an opportunity of personal hearing and an order of adjudication - Leave alone any adjudication order till date, no SCN is also issued to the petitioner - The Revenue prays for time to issue such a notice - How in these circumstances the Revenue justifies this act and prayed that bank account may be continued under attachment and then within a time frame SCN will be issued - How a bank account can be freezed or not allow the petitioner to deal with it until the SCN is issued and final orders are passed thereon - Impugned communication cannot be sustained: HC - Writ petition allowed : BOMBAY HIGH COURT
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