SERVICE TAX
2018-TIOL-2082-HC-MAD-ST Presidium Constructions Coimbatore Pvt Ltd Vs CCE
ST - The appeal was filed well beyond the period of limitation, to be precise, 1557 days after the expiry of the limitation period - Undoubtedly, Tribunal has power to condone the delay, if sufficient cause is shown by assessee - The Tribunal in impugned order held that the cause shown by assessee is neither persuasive nor convincing and the delay being inordinate, rejected the application - Undoubtedly, the reason given by assessee for not being able to present the appeal in time was found to be factually incorrect, because, the ex-employee was subsequently made as a Director of the Company - Therefore, if this fact alone is taken into consideration, the Court may be left with no option, but to affirm the order of the Tribunal - However, the peculiar facts and circumstances of the case precludes the court from doing so - One more reason, which has convinced the court to decide in favour of assessee is Board's Circular 108/2/2009-S.T. which is wholly in favour of assessee pertaining to imposition of service tax on builders - There is no proper adjudication on the effect of said Circular - Ordinarily, an appellant does not stand to benefit by lodging an appeal belatedly unless and until it is established that for certain mala fide reasons, the appeal was lodged well beyond the period of limitation - There is no such material placed warranting such a conclusion - In case of Shoeline 2017-TIOL-289-SC-ST, the Supreme Court held that as the service tax levied for the period in question was paid by the appellant therein, allowed the appeal and held that equities would be balanced by not insisting on payment of penalty and interest - Thus, for the said reasons, appeal filed by assessee should be heard on merits - In the result, the substantial question of law, as framed for consideration, is answered in favour of assessee and against the Revenue: HC
- Appeal allowed: MADRAS HIGH COURT 2018-TIOL-3037-CESTAT-HYD
CC, CE & ST Vs Zenith Energy Services Pvt Ltd
ST - SCN was issued alleging that assessee's activity of providing various government agencies in relation to 'Biomass availability studies' falls under category of either 'Consulting Engineer' or 'Management Consultant' services, hence they are liable to pay service tax on the amounts so received and proposed for interest on tax liability and also for imposing penalty - Assessee has under taken some study as also filing a report to the government organisation of Biomass availability in order to understand the capability of particular district / village for considering Alternate Renewable Energy Resources - On glancing on the scope of work as per the work order it seems that assessee has not undertaken any activities that may fall under consulting engineering services - Reading of the work allotted to assessee by Karnataka State Electricity Board is also on similar lines - On the back ground of such factual matrix, first appellate authority was correct in coming to conclusion that there is no liability on assessee - Impugned order which set aside demands on merits, is correct - The cross objection filed by assessee is devoid of merits hence dismissed: CESTAT
- Appeal disposed of: HYDERABAD CESTAT
CENTRAL EXCISE
2018-TIOL-2083-HC-MUM-CX + Case Story
CCGST & CX Vs Mahindra & Mahindra Ltd
CX - Valuation - Maintainability of appeal - High Court jurisdiction in a statutory Appeal is determined by the terms of the statute and, therefore, it cannot exercise jurisdiction in equity - when High Court exercises jurisdiction u/s 35G of the CE Act, it is bound by its provisions and cannot travel outside it - Therefore, when Section 35G of the Act very clearly excludes its jurisdiction in respect of the orders of the Tribunal relating to the rates of duty and the value of goods for the purposes of assessment, among other things, High Court cannot entertain an Appeal on the above issue on ground of perceived hardship - submission of the Revenue that paragraph 19 of the Apex Court decision in Steel Authority of India Ltd. - 2017-TIOL-173-SC-CUS only sets out parameters for admission and not maintainability is hair splitting - question of valuation, though raised in the Appeal before it, was not examined by the Tribunal which set aside the demand on ground of Revenue neutrality - impugned order does relate to the valuation of goods for the purposes of assessment and, therefore, appeal lies before the Supreme Court - Revenue Appeal not maintainable, hence dismissed - Remedy, if any, to the Revenue is to approach the Supreme Court: High Court [para 11 to 15]
- Appeal dismissed: BOMBAY HIGH COURT
2018-TIOL-2081-HC-KAR-CX
CCE Vs Ghodawat Industries Pvt Ltd
CX - The appeal is preferred by appellant under Section 35-G of CEA, 1944 against the Order in 2016-TIOL-1827-CESTAT-BANG confirming the order in Original - Assessee raised preliminary objection with regard to maintainability of appeal before this Court and contended that in view of provisions of Section 35(L)(b) of CEA, 1944, the present appeal is not maintainable and appellant has an alternative remedy to prefer an appeal before the Supreme Court - Commissioner dropped the proceedings under SCN issued to assessee which was the subject matter of the appeal before Tribunal - The Tribunal by impugned order rejected the appeal - Provisions of Section 35L(b) clearly indicates that any order passed by Appellate Tribunal relating, to among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment, the appeal lies before the Supreme Court - When the appellant has an alternative remedy to prefer an appeal before the Supreme Court, the present appeal is not maintainable - In view of decision in case of Mangalore Refineries and Petrochemicals Ltd. 2011-TIOL-366-HC-KAR-CX court decline to interfere with the matter - Accordingly, the appeal is dismissed as not maintainable: HC
- Appeal dismissed: KARNATAKA HIGH COURT
2018-TIOL-2080-HC-MAD-CX
TVS Srichakra Ltd Vs CCGST & CE
CX - The petitioner is a company engaged in manufacture of various types of tyres and tubes and availing credit of duty paid on inputs, capital goods and service tax paid on input services - The case of department is that in view of deemed removal of capital goods from the factory premises of the petitioner as per the sale invoice and the leasing back only with effect from 01.04.2013, the petitioner is liable to reverse the cenvat credit availed by them - The petitioner in response pointed out that the capital goods were never removed from the factory premises - The petitioner has made out a convincing case for bye-passing the statutory alternative remedy available to it and for directly invoking the jurisdiction of this Court - There is one other aspect of the matter - The stand of the writ petitioner is that the revenue has not questioned the legality of the sale and the rental agreement - In the counter affidavit it has been stated that the revenue has not accepted the transaction as genuine at any point of time - If according to respondent, the sale is not genuine, the question of deemed removal of goods will not even arise - Court is of the view that while assessee can argue in alternative, the department cannot - The respondent must take a clear and definite stand - For all these reasons, the order impugned in writ petition is quashed - The matter is remitted to the file of the respondent for fresh consideration in accordance with law - The respondent no doubt has filed a counter affidavit seeking to sustain the order impugned in this writ petition - But it has been quashed - The respondent must now proceed in the matter as if the slate has been wiped clean: HC
- Writ petition allowed: MADRAS HIGH COURT 2018-TIOL-3036-CESTAT-MAD
Carboline India Pvt Ltd Vs CCE
CX - The assessee company is engaged in manufacture of Epoxy, Polyurethane, Zinc & Thinners - It availed Cenvat credit on service tax paid on freight charges incurred for outward transportation of goods up to the customer's premises - The Department opined that such availment was incorrect - Duty demands were raised with interest to recover the same and penalties were imposed as well.
Held - The issue of as to whether the assessee is eligible for credit when the outward transportation is on F.O.R. basis up to the buyer's premises has been settled by the Apex Court in C.C.E. & S.T. Vs. M/s. Ultra Tech Cement Ltd. - Following relevant findings in the decision, as the period involved is post 01.04.2018 the assessee cannot avail credit - Hence the denial of credit is justifiable: CESTAT (Para 1,4)
- Appeal dismissed: CHENNAI CESTAT
2018-TIOL-2079-HC-MAD-CUS
Industrial Mineral Company Vs CC
Cus - The petitioner is a registered 100% EOU and manufacturer and exporter - The export consignment of petitioner was classified as falling under CTH 26140010 by the respondent - But the petitioner's contention is that they fall under CTH 26140020 - Since, there was a dispute in matter, the petitioner paid export duty under protest - Later, the writ petitioner applied for refund - The petitioner has enclosed a copy of the final order passed by Tribunal in the typed set of papers - There is absolutely no doubt in mind of this Court that the case on hand is similar to the case that was allowed in favour of assesse by the Tribunal in V.V.Minerals 2016-TIOL-141-CESTAT-MAD - In fact, this Court need not undertake the exercise of establishing the similarity between the two cases - The Adjudicating Authority has himself called it as similar to the case on hand - When the order passed by Tribunal has not been stayed or set aside by Supreme Court, it is the bounden duty of Adjudicating Authority to follow the law laid down by Tribunal - Since a binding decision has not been followed by Adjudicating Authority in this case, this Court can interfere straight away without relegating the assesse to file an appeal - The order passed by Adjudicating Authority shall stand quashed - The second respondent is directed to refund the amount in question to the petitioner within a period of four weeks after taking immovable property security from the petitioner as indicated: HC
- Writ petition allowed: MADRAS HIGH COURT 2018-TIOL-3035-CESTAT-BANG
Continental Exporters Vs CC
Cus - The assessee companies imported 10800 boxes which were declared as plastic boxes - The assessee claimed benefit under Notfn No 21/2002-Cus - Pursuant to investigations by the Department, the Revenue raised duty demand on grounds that the assessees did not fulfil the conditions laid down in the Notfn and also on grounds that the goods imported are not covered under the Notfn - Demands for interest were raised and penalties were imposed.
Held - Sr No 140 of the Notfn provides benefit to tags, labels, printed bags & stickers imported by bona fide exporters - Notfn is to be interpreted directly as per the words appearing therein - It is seen that only tags are permitted to be imported duty free - While the assessees claimed to have imported tags, the Department claimed that they were tag pins - Considering the definition of tag pins, it is clear that that the item in question are 'tag pins' and or 'Tag Loops' are not 'tags' - The imported goods contain any tag pin with the help of which tags are attached to the apparel - Hence it is clear that the items imported are not tags & are at best tag pins or tag loops - Any notification giving benefit of exemption must be construed strictly & any claimant must clearly establish eligibility for exemption - Hence burden of proving applicability lies on the assessee - The assessees did not import 'tags' & the imported items classify as 'tag loops' or 'tag pins' which are ineligible for exemption under Notfn No 21/2002-Cus - Regarding the issue as to whether or not the assessees are bona fide importers, the assessees claimed that their previous exports were permitted due to which the present imports be permitted as per past practice - It is settled law that principles of estoppel do not apply in taxation matters - Only because such imports were permitted in earlier years does not mean that they can be continued where the Department unmasks a certain wrong practice - The penalties imposed on the assessees are justified in this regard, but nonetheless merit being reduced so as to be commensurate with the offence: CESTAT (Para 1,6.2-6.7)
- Appeals partly allowed: BANGALORE CESTAT |
