KPH Dream Cricket Pvt Ltd

GST - When the applicant issues a ‘complimentary ticket' to any person, the applicant is certainly displaying an act of forbearance by tolerating persons who are receiving the services provided by the applicant without paying any money, which other persons not receiving such complimentary tickets would have to pay for - Monetary value of this act of forbearance would naturally be pegged to the amount of money charged from other persons not receiving such ‘complimentary tickets' for availing the same services - Activity of providing complimentary tickets free of charge to some persons would, therefore, be considered supply of service as per provisions of s.7(1)(a) and 7(1)(d) of the CGST Act and would, therefore, be leviable to tax as per provisions of section 9 of the CGST Act - applicant has clearly missed the import of clause (b) in the definition of ‘consideration' given in section 2(31) of the CGST Act which covers the present activity of giving out ‘complimentary tickets' - Since all tickets suplied by the applicant including complimentary tickets would be taxable, the applicant would clearly be eligible for claim of Input Tax Credit as per provisions of section 16 of the CGST Act, 2017: AAR

- Application disposed of: AAR

2018-TIOL-205-AAR-GST

Evergreen Publication India Ltd

GST - Lab Manual being printed/published by applicant for classes 6th to 12th and which comprises of a bulk of instructional/educational printed material as per syllabus of educational board and which also contains some blank pages for the students to practice or write would be classifiable under GST Tariff Heading 4901 as Printed books and which currently carry Nil rate of tax: AAR

- Application disposed of: AAR

SERVICE TAX

K Bit Brave Sourcing Pvt Ltd Vs CGST & CE

ST - Assessee is engaged in providing services under category of BAS, fashion design and also received various input services like manpower recruitment and supply agency service, management or business consultant service for providing the output service - The refund claim of assessee was rejected as time barred - The authorities below have applied the decision in case of GTN Engineering (I) Ltd. 2012-TIOL-369-HC-MAD-CX - The issue as to how the period of limitation has to be computed in the case of export of service has been settled by decision in case of mPortal India Wireless Solutions Pvt. Ltd. - 2011-TIOL-928-HC-KAR-ST relied by assessee in their appeal memorandum, wherein it is held that date of FIRCs has to be taken as the relevant date for computing the period of one year for filing the refund claim - Further, the Larger Bench of Tribunal in case of Span Infotech (India) Pvt. Ltd. - 2018-TIOL-516-CESTAT-BANG-LB has also recently held that in case of export of service, it is the date of receipt of FIRC which has to be taken as the relevant date and not the date of invoice - Rejection of refund claim on the ground of limitation is unjustified, same is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

2018-TIOL-3100-CESTAT-MAD

Kripa Outdoor Publicity Vs CCE & ST

ST - Assessee is providing Advertising Agency Services - Pursuant to audit, it appeared that the assessee though required to discharge service tax liability on various activities, however, had failed to do so - As regards to issue, namely, the services provided to other advertising agencies, matter is well settled in favour of assessee not only by the decision of Zee Telefilms Ltd. 2006-TIOL-945-CESTAT-MUM but also in a number of other decisions by the very Bench - Hence the tax liability proposed in the work sheet to SCN on this count, will therefore not sustain - In respect of door to door sales, Tribunal is not convinced that ingredients of Section 65 (19) (1a) of FA, 1994 are satisfied and that the assessee have provided BAS to their clients - This being the case, tax liability on this count will not sustain - In respect of tax demanded on reimbursement expenses, matter is fully covered by the law laid down by Apex Court in Intercontinental Consultants and Technocrats Pvt. Ltd. 2018-TIOL-76-SC-ST - Said demand is also set aside - On the controversy concerning the alleged services in respect of printing of Leaflets/flex materials, the matter now stands covered by Apex Court's judgment in Zodiac Advertisers 2009-TIOL-78-SC-ST - Hence, following the consequential decision of Tribunal in Zodiac Advertisers 2006-TIOL-955-CESTAT-BANG, matter remanded to the adjudicating authority who shall provide an opportunity to assessee to produce necessary evidence in form of purchase bills, sales invoice and purchase orders to justify the nature of work undertaken by them and take a decision accordingly - On the issue involving painting of van/vinyl software, taking note of the assessee's averments that they had only received the reimbursement for the work that has done for their clients, matter remanded to the adjudicating authority to have a relook based on these averments - On the issue of penalty, matter was interpretational in nature, and some of the issues were also mired in litigation - For these reasons, imposition of penalties will not sustain and is therefore set aside: CESTAT

- Appeal partly allowed: CHENNAI CESTAT

CENTRAL EXCISE

CE & ST Vs Chairman Processors Ltd

CX - The assessee company is engaged in manufacturing man-made fabrics - During the period of dispute, the assessee availed Cenvat credit on capital goods - The assessee was also availing exemption under Notfn No 30/2004-CE which permiots clearance at nil rate of duty, subject to condition that no Cenvat credit be availed - During such period, the assessee cleared some goods without availing benefit of such Notfn and upon payment of duty - The Department opined that the assessee is not entitled to benefit of credit on such capital goods in view of Rule 6(4) of the CCR 2004 which bars the availment of credit on capital goods used exclusively in the manufacture of exempted goods - Later, the Commr.(A) allowed the credit.

Held: Such capital goods have predominantly used to manufacture & clear finished goods without payment of duty by availing exemption under Notfn No 30/2004 - The Commr.(A) held that although a portion of the goods were cleared on payment of duty, it cannot be held that the capital goods were used exclusively to manufacture exempted goods - Considering the Tribunal's decision in Commissioner of Central Excise, Maduari V/s Eastman Spinning Mills Pvt. Ltd. 2011 (271) ELT 256 (Tri.-Chennai) - 2011-TIOL-376-CESTAT-MAD the reasoning adopted by the Commr.(A) is valid & so the bar specified in Rule 6(4) is inapplicable: CESTAT (Para 1,5,6,7)

- Revenue's appeal dismissed: DELHI CESTAT

2018-TIOL-3098-CESTAT-MAD

CCE Vs Harts Cocoa Products Pvt Ltd

CX - From the records, it is noticed that assessee was not present for early hearings - In the last mentioned hearing, the matter was adjourned to 06.07.2018 as a last chance for assessee - However, despite of the same, assessee is not present - The very same issue has been decided by Tribunal in Velvette International - 2010-TIOL-1088-CESTAT-MAD. The original authority has also referred to adjudication order in Velvette International Pharma Products Ltd. which was the very impugned order appealed against in the Tribunal decision - This being so, no reason found why the classification as affirmed by earlier order of Tribunal should not be reiterated in this case also - Impugned SCN has clearly indicated that extended period is being invoked on account of assessee having misdeclared the ingredients, formula and method of manufacture of Nivaran-90 cough syrups supplied as per Ayurvedic texts in their classification list / declaration filed and further that they suppressed the actual ingredients used by them in the said product, with intention to evade payment of duty - In the event, impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

CUSTOMS

Dilip Kr Paul Vs CC

Cus - The issue involved is regarding carrying of scraps in Truck and on the suspicion that these goods were of foreign origin, same was intercepted and after fulfilling legal formalities, the truck was put to seize and goods were detained - It is not clear that on what grounds, Adjudicating Authority has arrived at the conclusion that goods are of Bangladesh Origin whereas the report sent by their own Asstt. Commissioner states that it is not possible to substantially justify the origin of these scraps to be of Bangladesh origin - Regarding carrying of two consignment notes, it is not clear from the investigation report that these consignment notes were of the same date - Possibly the driver of the truck has forgotten to unload the consignments of previous journey, which has not been verified by the department - Tribunal also perused the letter of Tripura Metal Scraps Merchant Association stating that the scraps are locally produced scraps from different small hawkers, who collect them from different households of Tripura - The adjudicating authority has not arrived at the correct conclusion by holding that the scraps are of Bangladesh origin and in the circumstances impugned order is set aside: CESTAT

- Appeal allowed: KOLKATA CESTAT

Technical Associates Ltd Vs CC

Cus - Differential Customs duty held payable on the ground that the appellant importer had attempted to pass off 'secondary/defective cold rolled grain oriented steel sheet coils' as 'prime cold rolled grain oriented steel sheet coils' and thus claim ineligible concessional rate of import duty prescribed in notification 21/2002-Cus - appeal to CESTAT.

Held: Claim of the importer for testing to validate the visual examination by amateurs appears to have been studiously avoided and instead, the provision of the Customs Act, 1962 pertaining to relevancy of statements and presumptions in relation to documents in section 138B and section 139 have been overly relied upon - the distinction between prime and secondary is not defined in the notification and it would be the common trade parlance that should enable distinguishment - neither the SCN nor the adjudication order have even glanced in this direction - Bench is deprived of the expert opinion - necessity of a test report is the pith of the instruction contained in Standing Order no. 62/2009 - Visual examination and photographic display will not suffice as acceptable substitutes - no case has been made by Revenue that the goods were underinvoiced against the bench mark of prices of prime steel sheet coils so as to warrant a suspicion of such upgraded declaration - declared value is appropriate to the prime goods - there is no material evidence to sustain the allegation of misdeclaration and statements, in the absence of facts and circumstances, fail the test of law - impugned order is not sustainable, hence set aside - appeal allowed: CESTAT [para 6, 7, 8, 9, 10, 12, 13]

- Appeal allowed: MUMBAI CESTAT