SERVICE TAX
2018-TIOL-939-HC-RAJ-ST
CCGST AND CE Vs Siddha Projects Pvt Ltd
ST - the assessee is engaged in providing services of Real Estate Consultant, Management Consultancy, Consulting Engineer & Business Auxillary Services to the Rajasthan Housing Board - It entered into a contract with the Board for Developing, Designing and Marketing of "Raj Aangan Scheme" - A search of the assessee's premises led to recovery of certain documents, based on which the Department alleged that the assessee had defaulted in payment of tax on services of Designing, Marketing and Management provided - Duty demand was raised & penalties were imposed.
Held - the assessee has not received tax from the Rajasthan Housing Board, which is a Government corporation - Hence assessee cannot be penalised for non receipt of the tax from Rajasthan Housing Board - Despite not receiving tax from the service receiver, the assessee paid the same with interest - Therefore, penalty imposed is unsustainable: HC (Para 3,6,7) - Appeal Dismissed: RAJASTHAN HIGH COURT
2018-TIOL-1571-CESTAT-DEL
Jyot Overseas Pvt Ltd Vs CCE
ST - The Asseesee is a s upplier, manufacturer and exporter of psyllium seed, organic psyllium,psyllium husk powder etc- The Assesee filed refund claims of service tax paid on the services used for export, CHA services and sterilizing of export goods - The claims were made under Notification No. 17/2009-ST – The Revenue rejected all three claims in respect of sterilization of export goods, port services (bills of lading, origin haulage and repo charges) on grounds that they are not covered under port services as the service provider are registered under different category and proof of payment of tax under port services was not produced - Further, Revenue rejected refund claims on CHA services on grounds that the CHA license and copy of license was not produced – In respect of fumigation/sterilization charges, the Tribunal opined that the issue was addressed in Assessee's own case in Final Order No. 55111- 55112/2017 – As per Notification No. 17/2009-ST the fumigation of the export containers are eligible for refund whereas service of sterilization of exported goods is not covered - Therefore, the service tax paid on fumigation/sterilization charges is not allowable : CESTAT (Para 2,3,6) - Appeal Partly Allowed
:DELHI
CESTAT
2018-TIOL-1570-CESTAT-MUM + Case Story
Watson Pharma Pvt Ltd Vs CST
ST - Site Transfer activity involves production or processing of goods not amounting to manufacture and, therefore, the same are taxable under the category of "Business Auxiliary Service" - Providing the results of Technical Testing and Analysis is also performance of service and the purpose of service is not complete until the testing analysis report is delivered to the client – services come under rule 3(1)(ii) of the Export of Services Rules, 2005 – impugned order rejecting rebate claim filed in terms of notification 11/2005-ST is not sustainable in law – order set aside and appeal allowed with consequential relief: CESTAT [para 5] - Appeal allowed
:MUMBAI
CESTAT
CENTRAL EXCISE
2018-TIOL-938-HC-AHM-CX
PR CC GST Vs Maniar And Company
CX - the assessee company, an SSI unit, is engaged in manufacturing bodies which are fitted on the chassis of various automobiles - The assessee thereafter manufactures utility equipments for Municipal Corporations, PWD & Fire department - The assessee received duty-paid chassis from customers on which it fitted manufactured or fabricated bodies & cleared them - The Department opined that the value of the chassis so used be included to ascertain the assessee's home clearances to determine its SSI status - While the adjudicating authority held the value of such chassis in the value of home clearances, the Tribunal subsequently held otherwise.
Held - Relevant portions of the Notfn No 8/2003 clearly provide that to determine the aggregate value of home consumption clearances used as inputs for further manufacture, shall not be taken into account - Hence value of clearances of specified goods used as inputs for further manufacture of any specified goods within the factory of production would be excluded - It is clear that the chassis and the completed motor vehicle are both specified goods - Thus the Tribunal's decision is correct & warrants no interference: HC (Para 3,4,5) - Appeal Dismissed: GUJARAT HIGH COURT
2018-TIOL-937-HC-KAR-CX
CCE Vs Mahindra And Mahindra Ltd
CX - The assessee company manufactures tractors - Under a particular Notfn, the assessee's goods were exempted from Excise duty liability from 09.07.2004 - The assessee also had unutilised cenvat credit balance on Basic Excise Duty and Cess - It claimed refund of such unused credit on grounds that it had suspended operations since 01.08.2004 - However, the Department rejected such refund claim - Later the Tribunal allowed the refund claimed.
Held - the issue at hand already stands settled in favor of the assessee, in the Tribunal's decision in M/s.Slovak India Trding Co. Pvt. Ltd., vs. CCE, Bangalore wherein it was held that since there was no manufacture in the light of the closure of the company, Rule 5 of CCR, 2004 would not be available for rejecting the refund claim: HC (Para 2,4,5) - Appeal Dismissed: KARNATAKA HIGH COURT
2018-TIOL-936-HC-RAJ-CX
Shree Rajasthan Syntex Ltd Vs UoI
CX - The assessee procured raw material at nil rate of duty by claiming exemption under Notfn No 43/2001-CE(NT) - This was conditional upon the assessee exporting the final products manufactured from such raw material - The Board later amended this Notfn to the effect that the export of goods can only be made under Rule 19 of CER, 2002 - Hence the assessee was served SCN proposing to disallow rebate claimed, since the assessee exported such goods under Rule 18 - Later the Board clarified that the amended Notfn would be effective prospectively, but not upon exports made after 2.6.2004 - Upon reconsideration, the Department rejected the rebate claimed, on grounds that goods covered under the relevant ARE-1 had been exported after 2.6.2004 and that date of clearance from factory under ARE-1 cannot be considered to be date of export - The Commr.(A) upheld such findings - The Tribunal too dismissed the assessee's appeal on grounds of lack of jurisdiction - Before the revisional authority, the assessee was delayed in filing appeal and it exceeded the three-month limitation - Hence the appeal before the revisional authority was discussed as well.
Held - Admittedly, the revision petition was filed after a delay of over eight years - The assessee sought to explain such delay on account of time lost in appealing before the wrong forum - The revisional authority did not consider the same to be a bona fide mistake, noting there to be no ignorance of law or lack of resources - The assessee approached the Tribunal even though the Commr.(A) expressly advised the assessee to approach the revisional authority - Besides, the assessee has a history of filing appeals before the revisional authority - Thereby, the assessee was fully aware that the Tribunal is the incorrect forum to adjudicate issue of rebate claim - Hence the mistake cannot be treated as being bona fide in nature - Hence the delay of over eight years in filing appeal is not condonable: HC (Para 3,6,8,9) - Writ Petition Dismissed: RAJASTHAN HIGH COURT
2018-TIOL-935-HC-MAD-CX
Teaserve Vs CCE
CX - the assessee functions under the administrative control of the Govt of Tamil Nadu - It is engaged in coordinating activities of all the Industrial Cooperative tea factories - It was involved in establishing a centre for auctioning tea - During the period of dispute, the Revenue raised duty demand under heading "promotion or marketing or sale of goods produced or provided by or belonging to the client" taxable u/s 65(19)(i) of the Finance Act, 1994 - Duty demand was raised & penalties were imposed u/s 76, 77 & 78 of the Act - On appeal, the Commr.(A) directed pre-deposit of entire duty with 50% of penalties - When the assessee claimed to have no funds to make such pre-deposit, the Commr.(A) dismissed the appeal for non-compliance - On appeal before the Tribunal, the assessee's counsel was unable to appear on date of hearing due to ill health - In its ex parte order the Tribunal dismissed the appeal on grounds that the Commr.(A) had not considered the issue on merits.
Held - Considering the decision of the Madras High Court in Venus Rubbers vs. Addl. Commissioner of Central Excise, Coimbatore and that the Revenue is amenable to the matter being remitted to the Tribunal, the order in challenge is remanded to the Tribunal for consideration of the issue on merits: HC (Para 2-8,16) - Case Remanded: MADRAS HIGH COURT
2018-TIOL-1576-CESTAT-MUM + Case Story
Ispat Industries Ltd Vs CCE
CX - Valuation - Section 4 of the CEA, 1944 - Price prevailing for sale at depot immediately "prior" to the clearance from the factory gate was to be adopted since adopting the price prevailing at the depot at the point of time "nearest" to the time of clearance from the factory gate, as contended by the Revenue, would perforce make all the clearances from the factory provisional and the AV at the time of clearance from factory would always remain indeterminate - interpretation adopted by the appellant appears to be proper - impugned order set aside and appeal allowed: CESTAT [para 4 to 6] - Appeal allowed
:MUMBAI CESTAT
CUSTOMS
2018-TIOL-934-HC-DEL-COFEPOSA
Dharaneesh Raju Shetty Vs UoI
COFEPOSA - the two petitioners were detained u/s 3 of the COFEPOSA - They claimed that they were provided soft copies of relevant Relied Upon Documents (RUDs) & that such documents were put in a CD - The petitioners claimed that they were not provided any hardware like laptop, computers or CD players to open & read such CDs - Thus they claimed to be unable to access the documents relied upon by the authorities when passing the detention order - On this ground, the petitioners challenge the detention order.
Held - RUDs are an integral part of Grounds of Detention, which contain the justification provided by the detaining authority for explaining the need to detain the person - Such justifications provided are to satisfy the necessity of Article 22(5) of the Constitution as well as Section 3(3) of the COFEPOSA - Thereby, it obbligatory for the detaining authority to supply copies of all RUDs to a detained person - The documents supplied through a CD are not per se readable to the human eye and require the use of additional equipment - Hence to enable the petitioners to be able to access the documents, the necessary equipment for reading the CD should have been provided as well - Hence the detention of the petitioners cannot be sustained and so the detention orders are set aside: HC (Para 1,2,3,14,15,24) - Writ Petitions Allowed: DELHI HIGH COURT |
