SERVICE TAX
2018-TIOL-2015-HC-MUM-ST + Case Story
ST - Once it is held that no penalty under Section 78 of the Act is imposable as non-payment of tax was not for wilful misstatement or collusion etc. i.e. identical to the ingredients for invoking the extended period, then the same is to be applied and the demand for extended period is also to be set aside - moreover, Revenue has accepted the order dated 4 January 2013 of Commissioner of Service Tax holding that no penalty is imposable as there was a reasonable case for non-payment of service tax - view taken by the Tribunal on facts is a possible view and would not merit interference - Revenue appeal dismissed: High Court [para 4, 7]
- Appeal dismissed
: BOMBAY HIGH COURT
Parbhjit Singh Sarna Vs Commissioner of Central Goods and Services Tax
ST - The petitioner approached this Court seeking quashing of impugned letter/notice whereby revenue asked the petitioner to furnish certain information with reference to levy of service tax on the fee paid for award of license for sale of liquor - Respondent fairly submitted that he has received instructions to the State that in 26th meeting of GST Council held on 10.03.2018 it has been decided that no GST/Service Tax is leviable on the fee paid for grant of license sale of liquor for human consumption: HC
- Petition disposed of : PUNJAB AND HARYANA HIGH COURT
2018-TIOL-2938-CESTAT-DEL
TPG Construction Ltd Vs CST
ST - The assessee is engaged as a sub-contractor - On audit of the main contractor's records, the Department claimed that the assessee had provided commercial or industrial construction services and works contract services - The Department alleged that the assessee was neither registered for providing such service nor did it pay service tax for the same - Based on best-of-judgment assessment, duty demands were raised & penalties u/s 76, 77 & 78 were imposed.
Held: The construction of road & activities in relation to the same are exempted - This point has been settled by various decisions of the Tribunal and the High Courts - Hence the exclusion clause for activities regarding construction in relation to road also covers the type of the activities undertaken by the assessee - Thus no service tax is leviable on sub-contractor's activities for construction of roads - Duty demands are set aside: CESTAT (Para 1,9,10)
- Appeal allowed: DELHI CESTAT
2018-TIOL-2937-CESTAT-AHM
SMP Constructions Pvt Ltd Vs CCE & ST
ST - The assessee company is engaged in providing Commercial or industrial construction services - In some contracts, it paid service tax on 100% of gross value without availing abatement under Notfn No 01/2006-ST & availed credit of such payment of duty - In some contracts, it paid duity on 33% of the gross value and availed abatement of 67% - The Department claimed that the assessee in respect of some the contracts availed cenvat credit and discharged the service tax on 100% gross value of the service, the benefit of abatement could not be availed for the remaining contract - Hence duty demand was raised to recover the same.
Held: Considering provisions of Notfn No 01/2006, the CICS is exempted subject to conditions - The Notfn does not apply in cases where Cenvat credit is availed on inputs or capital goods or input services used to provide taxable service - As the assessee did not avail credit on inputs used to provide such taxable services, the conditions in the contract would be deemed as complied with - Merely because credit is availed in some contracts does not affect the service where exemption Notfn No. 1/2006-ST was availed - Hence the demands are set aside: CESTAT (Para 1,5,7)
- Appeal allowed: AHMEDABAD CESTAT
CENTRAL EXCISE
CST Vs Wartsila India Ltd
CX - The genesis of this proceeding is that during audit of assessee's activity, it was noticed that assessee was receiving commission from foreign based principals for promotion of sale of its products/goods in India - Revenue views that the services provided by assessee would fall under category of BAS chargeable to tax on account of commission received - Thus, a SCN was issued under Section 73 of Act, demanding service tax for the period 2008-09 - It was assessee's case which was accepted by Commissioner that services rendered by assessee to its foreign principals constituted export of service and covered by Export of Service Rules, 2005 - Issue is no longer resintegra - An identical nature of services as rendered by assessee to its foreign clients had come up for consideration before this Court in ATE Enterprises (P) Ltd. - 2017-TIOL-1906-HC-MUM-ST - This Court followed its earlier decision in SGS India (P) Ltd. - 2014-TIOL-580-HC-MUM-ST and held that services of procuring orders and passing it to its overseas principal/parties and receiving payments for the same in foreign exchange, is an activity of export of services covered by the Export of Service Rules, 2005 - Therefore, the issue stands concluded in favour of assessee - Further, Circular No.111 of 2009 issued by CBEC also supports the case of assessee - Nothing has been shown to court as to why said Circular cannot be read in the manner in which the Commissioner of Service Tax and the Tribunal has read it - The decision of Tribunal in case of Blue Star Ltd. which was also a subject matter of appeal before this Court being - 2018-TIOL-1976-HC-MUM-ST - This appeal on an identical issue was dismissed as not giving rise to any substantial questions of law: HC
- Appeal dismissed : BOMBAY HIGH COURT
Nasik Strips Pvt LtdVs CCE & C
CX - The assessee is manufacturer of M.S. Ingots and avails Cenvat Credit facilities on inputs and capital goods - During year 200102, assessee procured CI Moulds and availed Cenvat Credit of 50% of duty paid on said capial goods in year 2001-02 and the balance 50% of the duty paid, was availed in the August 2002 i.e. 2002-03 - A SCN was issued to assessee alleging that he was not entitled to balance 50% of Cenvat Credit of the duty paid on capital goods as the same were not in its possession in Financial Year 2002-03 - The impugned order of Tribunal held that Notfn 70/2003 (M.T.) Central Excise is prospective in effect and would not apply to period prior to 15th September, 2003 - In this case, the balance 50% credit was availed in August, 2002 - This by following the decision of its Coordinate Bench in case of M/s. Sri Krishna Alloys - 2015-TIOL-502-CESTAT-MAD wherein an identical fact situation, the appeal of the Assessee therein was rejected - In that view of the matter, the Tribunal had deleted the penalty imposed upon assessee therein - The impugned order of Tribunal while upholding the order of Commissioner (A), followed the decision of its Coordinate Bench in Sri Krishna Alloys on merits - It ought to have also followed the decision on deletion of penalty - Nothing has been shown which would justify imposition of penalty, nor any reason has been shown for the Tribunal not to follow the decision of its Coordinate Bench in Sri Krishnan Alloys in the present facts: HC
- Appeal partly allowed : BOMBAYHIGH COURT
Bimetal Bearings Ltd Vs CCE
CX - Whether the assessee was entitled to avail suo-motu credit of central excise duty which they have reversed - The department opined that once the assessee pays back the duty of excise and that CENVAT credit availed on SKO, the proper course is to seek refund claim under Section 11B of the Central Excise Act and therefore, taking suo-motu recredit of the duty reversed appears to be incorrect - Thus, Commissioner (A) misinterpreted the order passed by Original Authority by stating that assessee's eligibility to credit was never disputed - In fact, that is the very core of dispute - Hence, the order passed by Commissioner (A) to that extent has to be necessarily held to be erroneous, though not the ultimate conclusion arrived at by Commissioner (A) in upholding the order of Adjudicating Authority - Unfortunately, before the Tribunal, the parties appears to have not made any endeavour to put-forth their factual contentions - Thus, unless and until the factual contention is properly considered, the question of applying the decision in case of M/s.ICMC Corporation Limited does not arise - Furthermore, the question as to whether to what extent supplementary invoices would aid the stand of assessee is also required to be gone into, since admittedly IOCL was a registered dealer of SKO only on 26.10.2005, much after the purchases effected by assessee which was during the period from 01.02.2005 to 30.10.2005 - Hence, court is not inclined to accept the finding of Tribunal as well as finding of Appellate Authority insofar as it relates to the finding that assessee's entitlement was never in dispute and consequently, matter has to be remitted back to the Adjudicating Authority for denovo consideration - Accordingly, the impugned order is set aside - Consequently, matter is remitted back to the Adjudicating Authority for fresh consideration: HC
- Matter remanded : MADRAS HIGH COURT
CUSTOMS
NOTIFICATIONS
ctariff18_070
Customs duties on 19 categories of items hiked - includes white goods such as air-conditioners, refrigerators, washing machines, radial car tyres, footwear, gems, travel bags and aviation turbine fuel (ATF)
ctariff18_069
Customs duties on 19 categories of items hiked - includes white goods such as air-conditioners, refrigerators, washing machines, radial car tyres, footwear, gems, travel bags and aviation turbine fuel (ATF)
ctariff18_068
Customs duties on 19 categories of items hiked - includes white goods such as air-conditioners, refrigerators, washing machines, radial car tyres, footwear, gems, travel bags and aviation turbine fuel (ATF)
ctariff18_067
Exercising emergency power to increase import duties, Central Government amends First Schedule of CTA, 1975 dgft18not035
Amendments to Foreign Trade Policy 2015-2020 - Extension of Integrated Goods and Service Tax (IGST) and Compensation Cess exemption under Advance Authorisation, EPCG and EOU scheme upto 31.03.2019
CASE LAWS
CC Vs Abdul Azeez
Cus - The assessee was a passenger in an Indian Airlines' flight - In Chennai Airport, a personal check was made on assessee and three packets containing 80 Nos. gold biscuits with foreign markings were found concealed by him in his trousers - The gold biscuits were seized - Assessee was not able to establish either before Adjudicating Authority or before the Tribunal that he was lawfully entitled to possess the gold seized from him or he was the owner of contraband - In such circumstances, the question would be as to whether the discretion should be exercised in favour of assessee - This question has been answered by Division Bench of this Court in the case of P.Chinnasamy - It is an appeal filed by Revenue against the Tribunal's order, which was referred to by Tribunal in the impugned order - The Division Bench of this Court held that the discretion ought not have been exercised in favour of a smuggler giving an option to redeem the goods and that the Tribunal ought not to have interfered with the order passed by Competent Authority, who had denied the release of the goods - Considering the said decision, there is no room for remanding matter to the Commissioner for a fresh consideration as the facts clearly show that no discretion can be exercised in favour of assessee - During pendency of this appeal, the 80 gold bars were sold by Department through the State Bank of India and that the amount has been credited to the account of Government of India - The substantial questions of law framed for consideration are answered in favour of Revenue: HC
- Appeal allowed : MADRAS HIGH COURT
Lakshman Lal Das Vs Chief Commissioner of Customs
Cus - Petitioner submits that a request was made for cross-examination of witness of prosecution - He refers to O-I-O and submits that, although the written notes of defence was taken on record, the petitioner was not afforded an opportunity to cross-examine the prosecution witness nor was the request for cross-examination dealt with by impugned order - Apparently the prosecution was relying upon evidence adduced by natural persons in the proceeding - The prosecution, therefore, ought to have allowed such persons to be cross-examined - The petitioner made a request to the adjudicating authority for an opportunity to cross-examine - The adjudicating authority took such written request on record - However, it did not allow the petitioner to cross-examine the prosecution witness - It is not necessary that a party to a proceeding, specify the reason why it requires the cross-examination of the witness - When, a contesting party in adversarial litigation adduced evidence through a natural person, it results in a corresponding right to the opposite party in such adversarial proceeding to cross-examine such natural person - In absence of such cross-examination being allowed or facilitated the evidence given by such natural person has no evidentiary value and cannot relied upon - The adjudicating authority not having considered the request for grant of cross-examination of the prosecution witness, the impugned order stands vitiated by breach of the principles of natural justice - The impugned order is quashed: HC
- Writ petition disposed of : CALCUTTA HIGH COURT
|
by Shailendera Kumar 
