SERVICE TAX
2018-TIOL-1642-CESTAT-DEL
Indian Association of Tour Operators Vs CCE & ST
members provides various taxable services, for which it is registered with Service Tax Department under taxable category of "club or association service", "advertisement agency service" and "business exhibition service" - During period 2005-06 to 2009-10, while scrutinizing balance sheet vis-à-vis ST-3 returns, Department observed that there was discrepancy in figures furnished in those two records - For sponsoring the event, assessee was paid with sponsorship amount - Since the orders issued by various Government Departments specified that amount is towards sponsoring event, services provided by assessee should appropriately classifiable under sponsorship service as defined under Section 65 (99) (a) of the Act - Since under such category of service, service receiver is liable to pay Service Tax under reverse charge mechanism, assessee being a service provider cannot be fastened with service tax liability - Therefore, as a provider of sponsorship service, assessee is not liable to pay service tax - Assessee received subscription of membership fees from its member during period 01.04.2005 to 15.06.2005 and Department had confirmed the Service Tax for such service under club or association service - Club or association service defined under Section 65 (105) (zzze) was brought into Service Tax net only w.e.f. 16.06.2005 - Since the services were provided by assessee prior to such effective date, service Tax demand cannot be confirmed under that category of service, and thus, demand confirmed under 'club or association service' set aside - Sale of space for advertisement in print media is specifically excluded from definition provided in Section 65 (105) (zzzm) of the Act - Accordingly, Service Tax demand under such category of service cannot be confirmed against assessee.
With regard to non-payment of service tax on security deposit, submission of assessee is that such deposits received from members in past for road shows and overseas marketing events, were returned to those members in year 2009-10 - Similarly, with regard to membership fees, assessee contended that due to reason of cheque bounce, said fee was not realised by assessee - Thus, assessee submitted that since the membership fee and security deposit were not realised by assessee, no service tax is required to be paid thereon - However, such aspects have not been dealt with by authorities - Therefore, for ascertaining the factual aspects, matter remanded to original authority - If the claim of assessee that it had not realized any amount towards taxable service is correct, then original authority should drop the demand of service tax confirmed on assessee in original order - No justifiable grounds found for confirming penalty imposed on assessee - Accordingly, penalties imposed under Section 77 & 78 of the Act are set aside: CESTAT - Appeal disposed of
: DELHI CESTAT
2018-TIOL-1640-CESTAT-MUM
Commissioner of GST Vs Everstone Capital Advisors Pvt Ltd
ST - Refund - In case of export of service, the same qualifies as export only when convertible foreign exchange is received – In the present case, appellant has admittedly filed the refund claim within one year from the receipt of convertible foreign exchange, therefore, relevant date is the date of FIRC and not the date of service – As regards the receipt of remittance in Indian rupees, the issue is no longer res integra as it has been considered in the case of Sun Area Real Estate Pvt. Ltd . - 2015-TIOL-956-CESTAT-MUM wherein in identical facts, it was held that the Indian rupees received through foreign bank is considered as payment in convertible foreign exchange – impugned order is upheld and Revenue's appeal is dismissed: CESTAT [para 4, 5] - Appeal dismissed
: MUMBAI CESTAT
CENTRAL EXCISE
2018-TIOL-1641-CESTAT-DEL
Sidharth Goel Vs CCE
CX- The Assesee is a manufacturer of bushing metal parts for transformers and parts of locomotives falling under Chapter Heading 8504 of Central Excise Tariff Heading - During enquiry and inspection of books of accounts, it was found that the assessee had sold copper ingots to a first stage dealer based in Delhi - Moreover, on the date of inspection the CENVAT credit was reversed by the assessee - Department was of the view that the sourced copper ingots from the dealer was never used for utilization in the manufacture of dutiable finished products - Further, the assessee has manipulated their books of accounts and documents by showing purchase of scrap - On further enquiry, it was found that the scrap dealers also did not actually supply the scrap and only issued document/invoice of supply - On issuance of SCN the Cenvat credit was disallowed and confirmed by the Authorities alongwith equivalent amount of penalty on the partner & the first stage dealer.
Held - In the statement by the Assessee there is admission that the purchases were being looked after by office assistant and it might be that there was only invoice and no actual receipt of goods - The Tribunal relied on the case of CCE, CUS & ST vs. Juhi Alloys Ltd with similar facts and deleted the penalty on the partner & Assesee-firm- Hence, denial of cenvat credit to the Assessee-company is legitimate : CESTAT (Para 2, 6, 7) - Appeal Allowed
: DELHI CESTAT
CUSTOMS
NOTIFICATION
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Enlistment under Appendix 2E - Agencies Authorized to issue Certificate of Origin - (Non- Preferential)
CASE LAW
2018-TIOL-992-HC-KOL-CUS Pushkar Impex Pvt Ltd Vs CC
Cus - the assessee imported some Petrochemical derivatives which they declared as Polypropylene moplen HP-546J - The assessee claimed to be eligible to utilize duty-free import authorization licenses - The Department did not permit de-stuffing & release of the imported goods, on grounds that the DRI was enquiring into whether the goods were duty-free - Subsequently, the Department imposed certain conditions for releasing the goods - Although the assessee satisfied the conditions for release, the Department did not oblige it.
Held - The conditions imposed for release of the goods have been satisfied on payment of cash as well as invocation of the bank guarantees - It cannot be held that the assessee took additional advantage of the orders passed by the Court at the interim stages of the two writ proceedings as withdrawal of the writ petitions is being prayed for at a stage when the entire sum has been realised by the authorities, which was asked for as duty - The payments made so far is subject to any further adjudication if such adjudication is made in future in accordance with law - The payment already made thus shall not be treated as finally determined duty in such a situation: HC - Writ Petition Disposed Off: CALCUTTA HIGH COURT |
