SERVICE TAX

2018-TIOL-2011-CESTAT-AHM

ST - The assessee exported some goods & such exports were made by utilizing the services on which service tax was payable for the exported goods - It filed refund of service tax paid on various services used in export of goods for the quarter - A SCN was issued rejecting the claim for refund - The Commr. (A) rejected the appeal as well -

Held: The Department did not reject the refund claim and returned the same to the assessee for deficit of document, namely, proof of payment of service tax - Therefore, the refund claim cannot be rejected on the ground of time bar - In addition, the assessee complied with the condition of filing the refund claim within 6 months from the date of export of goods for the relevant quarter - Hence, the order challenged is set aside: CESTAT (Para 2, 3, 5) - Appeal Allowed: AHMEDABAD CESTAT

2018-TIOL-2010-CESTAT-DEL

ST - The assessee provides services classifiable as 'Business Auxiliary service' to various banks - The Department claimed that the assesse collected cheques on behalf of a bank for which it had received commission, and that the assessee had short-paid tax on such amount received - The assessee paid the duty demanded - Later, he filed refund claims u/s 11B of the CEA, 1944, which was granted on grounds that reimbursable expenses were not taxable during prior to 18.04.2006 - However the Commr.(A) set aside such findings -

Held: The nature of the assessee's refind claim has not specifically been discussed - Thus to determine applicability of service tax on reimbursable expenses, the matter merits remand to determine whether expenses incurred were reimbursable in nature: CESTAT (Para 3,5) - Case remanded: DELHI CESTAT

2018-TIOL-2009-CESTAT-MAD

ST - The assessee is engaged in customer management service - It offers IT-enabled service, technical help service, call centre service on behalf of clients whose customers are located outside India - It availed credit on group medical insurance premium and insurance paid by the assessee - On audit, it was noticed that assessee availed ineligible Cenvat credit - Duty demand was raised for recovery of Cenvat credit along with interest and penalty - The Commr. (A) deleted the recovery proceedings as it opined that assessee has explained use of various input services on which credit has been availed were used for trading activity -

Held: The period involved is prior to amendment in the definition of input services - The meaning of input servies had a wide ambit as it included the words "activities relating to business" - Almost all the services come within the phrase activity relating to business - Following the decision of Bombay HC in the Coca Cola India Pvt. Ltd. Vs. CCE, the Tribunal order challenged is upheld: CESTAT (Para 1, 5) - Revenue's Appeal Dismissed: CHENNAI CESTAT

CENTRAL EXCISE

2018-TIOL-2014-CESTAT-HYD

CX - The assessee is a Navratna PSE with 100% ownership of GOI - It received inputs out of which some of them were used for manufacturing purposes and some for other than business - The assessee-company availed Cenvat credit and reversed credit on those inputs which were used for purposes other than business - However, the Revenue took a view that assessee is liable to pay interest on the same - Duty demand was raised and confirmed, hence the present appeal before the Tribunal against interest & penalty -

Held: Where the assessee itself reversed the credit availed for purposes other than business, no interest need be imposed - For the same reason, penalty need not be imposed as well: CESTAT (Para 4, 7, 8, 9) - Appeal Allowed: HYDERABAD CESTAT

2018-TIOL-2013-CESTAT-MAD

CX - Assessee engaged in manufacture of TMT bars and rods - Based on investigations, SCN was issued to assessee inter alia alleging that during period 20.11.2004 to 2.12.2004, they had clandestinely cleared CTD / TMT bars - It was also alleged that for such manufacture and clearances, assessee had unaccounted raw material from DSML plus MS ingots - main documentary evidence in this case is the loose sheets recovered from assessee's factory and hard disc recovered from computer installed in the premises of DSML - The allegation is that unaccounted raw materials, i.e. MS ingots were received by assessee from DSML - However, no documents have been unearthed from the premises of assessee to show such unaccounted receipt of raw materials or unaccounted manufacture and clandestine clearance of finished products - The use of electricity consumption or accounts of finished products manufactured during relevant period as recorded in registers do not show any discrepancy - So also there is no evidence to support the transportation of unaccounted receipt of raw materials or the unaccounted / clandestine clearance of finished products - The main evidence which is computer printout taken from the hard disc of computer of DSML also does not relate to the accounts of assessee - The department has no case that these in any manner deal with the accounts/ registers maintained by assessee - In fact, case of Revenue is that the accounts in computer printout matches with the pocket diary maintained by employee of DSML - Commissioner (A) has rightly observed that those documents cannot be relied being third party document and having no correlation with the accounts of assessee - Commissioner (A) has rightly appreciated the facts and evidence in the case to set aside the demand / interest and penalties - No infirmity found in the order passed by Commissioner (A) same is upheld: CESTAT - Appeal dismissed: CHENNAI CESTAT

2018-TIOL-2012-CESTAT-MAD

CX - Simultaneous searches conducted in premises of SASAI, a partnership firm in factories and godowns of its group concerns i.e. Amman Enterprises (AE), Sri Ulaganayagi Amman Steels(SUAS), Ramalingam Steel Agencies (RSA), Amman Steel Corporation(ASC), the residences of employees of group concerns namely, Ms. Usha and Ms. Ponnalagu (both of ASC) and Amman Lodge - SASAI manufactures iron rods and bars - SUAS manufactures ingots and billets - AE deals in iron rods and bars and ASC & RSA deal in scrap - At SASAI the officers conducted stock taking and found excess stock of bars/rods and shortage of raw materials, namely, ingots/billets - Private accounts also contained details of transactions reflected in statutory registers - A copy of P & L Accounts and Daily Transaction Reports of SUAS seized from residence of Ms. Usha contained a lot of information which mirrored the computer printouts generated later - The Commissioner held that the entire electronic data loses its credibility and is not reliable and therefore discarded - For the purpose of adjudication, by confining to the evidence other than that obtained from computer floppies opened using unauthenticated software, Commissioner has dropped the demand of Rs.7,60,79,469/-.

One of the points agitated before Tribunal by assessee was that the evidence recovered from computer floppies cannot be relied upon for the reason that department had used unauthenticated software for opening the files - Thus, Tribunal had clarified that Revenue has no right to use any files opened with unauthenticated software in the remand proceedings - In denovo proceedings, Commissioner has therefore excluded the evidence obtained from files opened with unauthenticated software - Therefore, no merit found in the appeal filed by department - Commissioner has observed that there is no evidence that co-noticees have directly indulged in clandestine production of clearance of excisable goods - Further, when separate penalties have been imposed on SUAS for very same offence, there is no need to impose penalty for the same offence under Rule 26 of CER, 2002 - A ppeal filed by assessee is dismissed as withdrawn: CESTAT - Appeal dismissed: CHENNAI CESTAT

2018-TIOL-57-HC-KERALA-GST

Assistant State Tax Officer Vs Alfa Aluminium

GST - the petitioners were transporting some goods to their business premises after process of powder coating - The goods were accompied by purchase invoice & another invoice for the service of powder coating - The goods were detained in transit for not uploading the e-way bill - The Department claimed that only on uploading the e-way bill would it be informed of the movement of goods & in absence of the same, an evasion would be suspected - When the petitioners contested the detention before the Single Judge, it was held that the petitioners were covered by a High Court precedent & so directed furnishing of bond by both petitioners.

Held - There are factual differences between the precedent and the present circumstances - In the precedent case, the petitioner therein was covered under a delivery challan under Rule 55 of the Kerala GST Rules & whose genuineness was undoubted - Following such precedent, the Single Judge assumed that there could not be any tax evasion - However in the present case, the dealer intended to re-sell the goods, due to which suspicion of evasion cannot be brushed aside - Thereby, the furnishing of bond by the petitioners is not sustainable - Hence the goods be released on furnishing of simple bond for the value of goods & furnishing of bank guarantee equivalent to the tax & penalty amount payable - No opinion expressed on merits: HC (Para 2,3,4) - Writ Petition Disposed Of: KERALA HIGH COURT

2018-TIOL-56-HC-KERALA-GST

Whispower Generators Sales and Services Pvt Ltd Vs CBEC

GST - the petitioner, a dealer, claimed to be unable to upload Form GST TRAN -1 & consequently was unable to avail input tax credit available to it on migration to GST - The petitioner further claims that its attempts to upload the Form GST TRAN -1 were frustrated by a system error - Hence appropriate directions were sought.

Held - The petitioner is directed to approach the Nodal Officer concerned & place its grievance before said officer - The officer directed to take appropriate decision within a week's time from reciept of petitioner's application for redressal - Where petitioner found unable to upload Form GST TRAN - 1 for reasons beyond its control, then appropriate measures be taken to enable it to avail input tax credit: HC - Writ Petition Disposed Of: KERALA HIGH COURT

2018-TIOL-84-AAR-GST

Zaver Shankarlal Bhanushali

Advance Ruling - Act of vacating premises for facilitating the developer implies that the applicant has agreed to do an act and such act, of vacating the premises, by the applicant, squarely falls under clause 5(e) of the Schedule II of the CGST Act, 2017 and, therefore, the amounts received by the applicant for having agreed to do such an act would attract tax liability - GST is applicable on the compensation for alternate accommodation received by applicant and is also applicable on the damages for delayed handover of possession of new premises: AAR - Application disposed of : AUTHORITY FOR ADVANCE RULING

2018-TIOL-83-AAR-GST

Five Star Shipping

Advance Ruling - Whether ‘Marine Consultancy Service' provided to foreign ship owners constitute ‘composite supply' with the principal supply of ‘Consultancy service'. Held: Answered in the negative: AAR

Advance Ruling - Consultancy service will not qualify as business consultancy service - Support service qualifies as ‘Intermediary Service' in terms of section 2(13) of the IGST Act, 2017: AAR - Application disposed of : AUTHORITY FOR ADVANCE RULING

2018-TIOL-82-AAR-GST

Basf India Ltd

Advance Ruling - Applicant to purchase goods from overseas related party based on purchase goods received from customers - while the goods are in transit and before they are entered for customs clearance in India, the same would be sold to customers - Ruling sought as to whether such sale effected would be leviable to IGST. Held: In the negative, no IGST leviable: AAR

Advance Ruling - Ruling sought as to whether if IGST is not leviable/treated as exempt supply, the input tax credit will have to be reversed to the extent of inputs, input services and common input services used for the above transaction. Held: I n the affirmative, credit will have to be reversed: AAR - Application disposed of : AUTHORITY FOR ADVANCE RULING