Indusind Media Communications Ltd Vs UoI

GST – Petitioner no. 2 transferred a part of its business to Petitioner no. 1 – as on 1 st July 2017, there was Input Credit available to the Petitioner no.2 from the earlier CENVAT regime and which they sought to carry forward by filing TRANS-1; by a revised TRANS-1, u/s 140(8) of the CGST Act, 2017, they sought to distribute Input credit available amongst its branch offices/locations which have separate registrations – however, due to technical difficulties, although the revised TRANS-1 was accepted, the distribution of credit available to it amongst its various branches/locations was not reflected on the website and, therefore, the branches/locations are not able to utilise the Input Credit by filing the GSTR 3B - Respondents do not dispute that the Petitioners are entitled to distribute the credit in terms of Section 140(8) of the Act nor dispute that it is entitled to and/or covered by the Assessees' who can file form GSTR-3B, nor that the provisions of Section 16(4) of the Act apply, nor dispute that the last date for filing the GSTR-3B is 20th October 2018 and not doing so would result in the lapse of the credit - Petitioners location at Delhi had filed a Writ Petition in the Delhi High Court wherein they had made a grievance of not being entitled to take the transition credit i.e. the Input Credit available prior to 30th June 2017 for payment of tax post 1st July 2017 – Delhi High Court had also noted the fact that the Grievance Redressal Forum of the GST Council in the Meeting held on 21st August 2018 had recorded in its minutes that the Delhi branch/location could not file its GSTR-3B and take credit in view of technical problems in uploading TRANS-1 and that the grievance needs to be addressed - pending the redressal of the Petitioners' grievance, the Delhi High Court by its order dated 16th October 2018 - 2018-TIOL-141-HC-DEL-GST has allowed the Delhi branch/location to file GSTR-3B Form manually and take the credit distributed to it in terms of the third proviso to Section 140(8) of the Act subject to the final outcome of the Petition.

Held: Undisputed position is that the Petitioners are entitled to distribute the Input Credit available with it as on 1st July 2017 amongst its branches/locations - This distribution has not been possible on account of technical problems of the Respondents. Further, the availment of input tax credit available on 1st July 2017 has to be done on or before 20th October 2018 in view of Section 16(4) of the Act - It is likely that the Petitioners may be deprived of the facility of the input tax credit available with it on 1st July 2017, if the same is not taken before 20th October 2018 - Respondents have extended the time to file TRANS-1 and TRANS-2, but no such extension has been granted to extend the time to file GSTR-3B - Thus, in the above facts, pending the final disposal of the Petition (when these issues will be considered in greater depth), as the system is not accepting it, the Petitioners would manually file with the Respondents a copy of its revised TRANS-1, ITC-01 and also GSTR-3B at Mumbai (in physical form) - On the basis of the revised TRANS-1, ITC-02 and the GSTR-3B at Mumbai (to be certified by the Commissioner at Mumbai), the Petitioners will be entitled to take the credit reduced at Mumbai (Maharashtra) to its locations in Delhi, Gujarat and Karnataka subject to the satisfaction of the Commissioner having jurisdiction over those locations - appropriate orders from the jurisdictional Commissioners on the basis of the certificates issued by the Mumbai Commissionerate be obtained by the Petitioners locations/branches subject to the satisfaction of the concerned Commissioners in accordance with law: High Court [para 7, 8]

- Petition disposed of: BOMBAY HIGH COURT

SERVICE TAX

2018-TIOL-2238-HC-GUW-ST + Case Story

Laxmi Narayan Sahu Vs UoI

ST - Section 6A of the General Clauses Act, 1897 - Even if an enactment stands omitted by a subsequent amendment, a proceeding initiated under the omitted enactment on its own does not come to an end - SCDNs issued u/s 73 of FA, 1994 for recovery of Service Tax and pending adjudication are saved by 174(2)(e) of the CGST Act, 2017 - although Chapter V of the Finance Act of 1994 stood omitted under Section 173, but the savings clause provided under Section 174(2)(e) will enable the continuation of the investigation, enquiry, verification etc., that were made/to be made under Chapter V of the Finance Act of 1994 - Petitions dismissed: High Court [para 28, 29, 31 to 34]

- Petitions dismissed: GAUHATI HIGH COURT

2018-TIOL-3194-CESTAT-BANG

Adecco Flexione Workforce Solutions Ltd Vs CCE & ST

ST - The assessee is engaged in providing services categorized under 'Manpower Recruitment or Supply Agency' service - The Department alleged that the assessee had not discharged tax liability for several periods - Duty demands were raised with interest & penalty.

Held: The assessee admittedly did not discharge duty liability for the periods of dispute - As the assessee is not contesting the duty demand or the interest, both are upheld - Regarding penalty imposed u/s 76, the assessee claimed to have deposited service tax late due to pre-occupation with other business obligations & financial crunch - However, such explanation does not hold much water & does not warrant exercise of discretion u/s 80 of the Finance Act 1994 - The assessee also admitted to have recovered service tax but did not immediately deposit the same with the Government - Regarding the assessee's claim for benefit of the 2011 amendment to Section 76, it is seen that the amendment has prospective effect only and so will not benefit the assessee in the present case: CESTAT (Para 6,8,9)

- Assessee's appeals dismissed: BANGALORE CESTAT

Arjun Tours and Travels Pvt Ltd Vs CCT

ST - Assessee was issued a SCN demanding service tax under the category of 'Tour Operator's Service' and 'Business Auxiliary Service' for the period from April 2000 to September 2005 and July 2003 to March 2005 along with penalties - Same was confirmed alongwith interest and penalty - Assessee submitted that the impugned order passed by Commissioner setting aside the order passed by original authority in remand proceedings is unsustainable and is contrary to the binding judicial precedent and the provisions of Section 84 of the Act - He further submitted that in the present case O-I-O was passed by Joint Commissioner which was challenged by assessee before Commissioner (A) and later before the Tribunal and the order which was reviewed by Commissioner under Section 84 of the Act was passed by original authority in remand proceedings as per the direction of Tribunal - He further submitted that once the appeal has come up to the Tribunal for consideration on merit and the original authority has passed the De novo order after considering the direction of Tribunal then the Commissioner does not have the power of revision to review such order passed by the original authority in remand proceedings - The impugned order passed by the Commissioner by exercising his revision power under Section 84 of the Act is not sustainable in view of the Division Bench decision of Tribunal in case of Vardhaman Fabrics Pvt. Ltd. - By following the ratio of said decision, impugned order is not sustainable in law and the same is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT

CENTRAL EXCISE

2018-TIOL-3196-CESTAT-ALL

Hi-Tech Medicare Devices Pvt Ltd Vs CCE & ST

CX - Assessee crossed the SSI Exemption limit during period 2006-07 till 2011-12 and were not paying the duties on the excess clearances - In such a scenario, assessee's belief of bona-fide cannot be appreciated in as much as, the assessee's non-payment of duty continued for a long period and it cannot be said that the assessee was not aware of such limit - In as much as, they themselves were availing the benefit of SSI Exemption Notification and are expected to know the value of exempted clearances - It is for them to bring to the notice of Revenue or to start paying duty on their own, once they cross the limit - The plea of assessee that they were reflecting the entire clearances in their books of account cannot be appreciated, in as much as, the exemption limit is based upon the sum total of all the clearances and Revenue cannot be expected to keep adding the clearances of a particular assessee so as to ascertain, when the said clearances cross the exemption limit - As such, no merits found in assessee's prayer for setting aside the penalty on the said count - In view of the foregoing discussions and findings, while setting aside the duty confirmed in respect of traded clearances, demand of Rs. 18,75,963/- upheld along with imposition of penalties on the said count - As regards the separate penalties on the others, same would not be justified, in as much as, the manufacturing unit has been penalized - Similarly, confiscation of the finished goods and the raw-material is not called for - Accordingly, the confiscation of seized goods as also penalties on the individual is set aside: CESTAT

- Appeals partly allowed: ALLAHABAD CESTAT

Kedar Metals Pvt Ltd Vs CCE & ST

CX - The assessee is engaged in manufacture of excisable goods, Litharge and Sulphate - They are availing CENVAT Credit on common input service, subsequently on audit raised the issue, they have reversed the entire credit of common input service along with interest, subsequently the revenue issued the SCN proposing demand of amount under Rule 6 of CCR, 2004 - Though the assessee had availed the credit in respect of common service which are attributing to dutiable goods as well as trading activity, however, on pointed out by the audit party, they have reversed not on pro rata credit but entire credit along with interest before issuance of SCN, accordingly the provision of rule 6 shall not apply - Even under Rule 6(3A), there is provision for reversal of the proportionate credit attributing to the exempted service therefore after reversal of the credit along with interest, the demand under Rule 6 does not sustain - Accordingly, the demand does not sustain and the same is set aside: CESTAT

AHMEDABAD CESTAT

CUSTOMS

NOTIFICATION

dgft18not042

Amendment of import policy condition of Pet Coke

CASE LAWS

Global Agencies Vs CC

Cus - Assessee, who is holder of Customs Broker licence issued by Thiruvananthapuram Customs were permitted to operate in Chennai Customs Commissionerate having validity on par with their main licence issued to them - A consignment of 940 cartons of 'Fish Tanks' was consigned to M/s. J.J. Enterprises and subsequently assessee filed Bill of Entry in the name of M/s. J.J. Enterprises - It is the case of department that on specific intelligence, consignment was detained and examined by officers - It was found that some undeclared item such as acquarium lamp, plastic light clips, fish tank cleaner and trolley bags were found - The department was of the view that assessee had thus violated Regulation 11(d) and 11(n) of CBLR, 2013 - The prohibition order is issued for the reason that importer has not declared a few items such as aquarium lamp, plastic light clips, fish tank cleaner and trolley bags - The consignment has been declared to contain fish tanks - The weight of allegation is that one of the employees has given a statement that no authorization was obtained from the importer - It is seen that the assessee has obtained authorization and produced it before the authorities - Another allegation is that the assessee failed to verify the identity of the importer at the declared address by using independent data or information - The High Court in case of Kunal Travels (Cargo) - 2017-TIOL-894-HC-DEL-CUS had observed that aforesaid clauses in Regulations do not obligate the CHA to look into such information which may be made available to him from the exporter / importer - The CHA is not an inspector to weigh the genuineness of the transaction - It is a processing agent of documents with respect to clearance of goods through customs house - It was observed that it would be far too onerous to expect the CHA to inquire into and verify the genuineness of IEC given to it by a client for each import / export transaction - When such code is mentioned, there is a presumption that an appropriate background check in this regard i.e. KYC would have been done by customs authorities - Thus, IEC was mentioned in the documents - Therefore, assessee cannot be saddled with obligation that they have not verified the antecedents of importer namely M/s. J.J. Enterprises - There is no material ground for issuance of prohibition order or its continuance - Moreover, it is to be stated that such continuation of the probation order without prescribing a time-limit would be bye passing Regulation 20 with regard to suspension / revocation of the licence: CESTAT

- Appeal allowed: CHENNAI CESTAT

Volex Interconnect India Pvt Ltd Vs CC

Cus - The assessee had filed Bill of Entry for clearance of goods declared as Telecom cable and claimed benefit from whole of customs duty leviable thereon under Sl. No. 28 of Notfn 25/2005-Cus. - The imports were taken up for investigation by SUB of the Custom House - The department took the view that the cables imported by assessee are power cables of voltage of more than 80V and not all the cables are designed for telecommunication use as evident by the manufacturer's product data sheet - The impugned imported goods will not be eligible for exemption under Sl.No.28 of Notfn 25/2005-Cus - At the same time, it is noted that assessee, right from the stage of oral and written submissions in adjudication proceedings have contended that even if imported cables are considered as having an operating voltage in excess of 80V, they would still be eligible for benefit of Sl.No.33 under the same Notfn - Assessee could very well have been under a reasonable belief, albeit misconceived, that they were eligible for exemption under entry at Sl.No.28 - Further, assessee subsequent to the dispute, have been importing the same goods with benefit of Sl.No.33 of the Notification without any controversy - It is also seen that the assessee vide a letter addressed to the Commissioner of Central Excise, i.e. even before the issue of SCN on 1.6.2010, had conveyed their intention to avail exemption under Sl.No.33 of Notfn for future exports - Assessee is correct in their reliance on the law as laid down by Apex Court in Formica India Division 2002-TIOL-599-SC-CX which held that exemption cannot be denied on the ground that required procedures having not been followed - In view thereof, while holding that assessee cannot take benefit of exemption under Sl.No.28 of notfn 25/2005-Cus. for the impugned imported goods, they can very well avail the benefit under Sl.No.33 of the same notification instead - The penalty of Rs.4,66,000/- imposed on assessee under Section 112 (a) of Customs Act, 1962 is also unjustified and the same is therefore set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT