SERVICE TAX
2018-TIOL-3311-CESTAT-MAD Pvgt Freight Forwarders and Logistics Pvt Ltd Vs CST
ST - The assessee company is registered for providing Clearing and Forwarding Services & Goods Transport Agency Services - The assessee regularly paid taxes & filed returns - On audit, the Department alleged that the assessee provided freight forwarding and logistics services such as clearing export cargo by collecting documents such as Invoice, Bill of Lading & LC Copy - Hence the Department alleged that the services would classify as Business Support Service - It was also alleged that the assessee incurred expenses under various heads & also collected air/ocean freight from clients - The Department sought to add these to the assessable value - Duty demands were raised with interest & penalties u/s 76, 77 & 78 of the Finance Act 1994.
Held - The Tribunal settled identical issues in the case of Bax Global India Ltd. Vs. Commissioner of Service Tax, Chennai - Following the relevant findings in this case, the demands are set aside: CESTAT (Para 1,1.2,6)
- Assessee's appeal allowed: CHENNAI CESTAT
2018-TIOL-3310-CESTAT-MAD
Rajasthani Sangh Vs CCE
ST - The assessee was providing 'Mandap Keeper Service' - Department took the view that the service tax liability should have been discharged by 5th of the succeeding month following the calendar month in which payments are received, which were done belatedly by assessee - Vide a SCN, service tax demand with interest and penalty under various provisions were also proposed - Assessee have not contested the interest liability to the extent of Rs.10,029/- confirmed by original authority in respect of delay in payment of service tax on account of rentals - They have only disputed interest liability of Rs.41,866/- allegedly on account of security deposit being treated as value of taxable service on which service tax is required to be discharged immediately - There cannot be any interest liability in respect of security deposit to the extent of Rs.41,866/-: CESTAT
- Appeal allowed: CHENNAI CESTAT
2018-TIOL-3309-CESTAT-AHM
Rajdeep Automobiles Vs CST
ST - The assessee was facilitating financial companies like ICICI & HDFC to place their counters & desks in the premises of the assessee's Auto Mobile Show room - In exchange, the companies gave an amount as commission - The Department sought to tax such amount under Business Auxiliary Service - Hence duty demands were raised & penalties were imposed.
Held - The issue of taxability stands settled by the Tribunal's decision in Pagariya Auto Centre - Hence the demands for normal period are sustained - As the assessee did not register itself or file returns, the Department was unaware of such activity - Hence the demand for extended limitation is upheld owing to clear suppression of facts - As penalties u/s 76 & 78 cannot be imposed simultaneously, the penalty u/s 76 is set aside while penalty u/s 78 is sustained: CESTAT (Para 1,4,6)
- Appeal partly allowed:
AHMEDABAD
CESTAT
CENTRAL EXCISE
2018-TIOL-2313-HC-MUM-CX
Commissioner of CGST & Central Excise Vs Development Credit Bank Ltd
CX - The impugned order does not record the contentions/submissions made by the parties before it and consequently the manner in which contentions/submissions of the parties are dealt with, is not disclosed in the impugned order - Thus the impugned order is a non-speaking order - It is settled position in law that giving of reasons in support of the conclusion on consideration of the submissions is an integral part of the Rule of law as held by the Supreme Court in Shukla & Bros. 2010-TIOL-131-SC-CT - In the present case, the impugned order merely records the dispute and that the assessee supports the Appeal and the department representative opposes the Appeal - Thus this order being a non-speaking order is in breach of natural justice and cannot be sustained in law - The proposed question is answered in the negative i.e. in favour of Revenue and against the assessee: HC
- Appeal allowed : BOMBAY HIGH COURT
2018-TIOL-2312-HC-MUM-CX
Commissioner of CGST & Central Excise Vs NRC Ltd
CX - This appeal challenges the common order of Tribunal who dismissed two appeals filed by Revenue by allowing the assessee's claim for refund - Revenue before the Tribunal conceded / accepted the position that once the matter is concluded and the appeal has reached to finality, it is not possible to re-open that order in any consequential proceedings - It also seems that the Revenue has accepted the view of the Tribunal that the Revenue's Appeal is devoid of merits - In view of the above concession / submission made on the part of the Revenue, no substantial question of law would arise for consideration - In fact this Court in case of Mahalaxmi Glass Works P. Ltd. 2009-TIOL-233-HC-MUM-IT had occasion to hold that when concession has been made before Tribunal by the department representative then no question of law would arise for consideration - Therefore the question as proposed in these facts do not give rise to the substantial question of law as no debatable question arise for consideration: HC
- Appeals dismissed : BOMBAY HIGH COURT
2018-TIOL-2311-HC-MUM-CX
CCT Vs Sany Heavy Industries (I) Pvt Ltd
CX - The assessee is engaged in providing services to companies situated in China and Hong Kong - They are providing BAS to customers in respect of sales made in India by overseas entities in China and Hong Kong - They had claimed refund of Service Tax on the fround that their services being BAS and not repairs and maintenance which services had been exported - Therefore, not liable to pay the service tax on services rendered to entities abroad as Export of Services Rules, 2005 would be applicable in the facts of this case - The issue raised herein stands concluded by decisions of this Court in M/s. Reliance Money Express Ltd., where the very submission that the decision of Tribunal in Paul Merchant Ltd. 2012-TIOL-1877-CESTAT-DEL is a subject matter of challenge before the Punjab & Haryana High Court and, therefore, the appeal should be entertained, has been considered and negatived by this Court in M/s. Reliance Money Express Ltd. - This on the ground that the issue stands concluded in favour of assessee by the decision of this Court in A.T.E. Enterprises Pvt. Ltd. 2017-TIOL-1906-HC-MUM-ST following the decision of this Court in SGS India Pvt. Ltd. 2014-TIOL-580-HC-MUM-ST - As the question as proposed stands concluded by decision of this Court in Reliance Money Express Ltd. and SGS India Pvt. Ltd. , no substantial question of law arises - Thus, not entertained: HC
- Appeal dismissed : BOMBAY HIGH COURT
2018-TIOL-3308-CESTAT-MUM
Electrica Engineers (India) Pvt Ltd Vs CCE
CX - Appellants are getting their goods manufactured from job worker who has cleared the same after payment of service tax and which tax paid has been taken as CENVAT credit by appellant - Contention of Revenue is that job worker should not have paid service tax as he was entitled to exemption - credit denied by lower authorities, hence appeal to CESTAT.
Held: It is not disputed that job worker has paid service tax - credit of tax "paid" is available to recipient and the law does not talk about tax "payable" - as such, the job worker having paid the tax, whether payable or not, the appellant was entitled to take credit - also, it is a settled law that assessment cannot be reopened at the recipient's end - impugned order set aside and appeal allowed with consequential relief: CESTAT [para 3, 4]
- Appeal allowed: MUMBAI CESTAT
2018-TIOL-3307-CESTAT-MUM
CCE Vs Godrej & Boyce Manufacturing Company Ltd
CX - Contention of the Revenue that differential duty is recoverable by including the ‘Optional Service Charges' and ‘Rustproof protection charges' in the Maximum Retail Price for assessment has been set aside by Commissioner(A) and, therefore, Revenue is before the CESTAT.
Held: Levy of CE duty u/s 4A of the CEA, 1944 is necessarily to be based on the ‘maximum retail price' marked on the package subject to permissible abatement - There is no evidence in the present proceedings that the marked price had been altered at any stage subsequently - There is also no allegation that the two charges are contractually fastened on every purchaser of goods manufactured by the respondent - To the extent that the charges remain optional, it cannot be said that the ‘maximum retail price' should include such charges - impugned order cannot be faulted - Revenue appeal is, therefore, dismissed: CESTAT
- Appeal dismissed: MUMBAI CESTAT
2018-TIOL-3306-CESTAT-HYD
CCE & ST Vs Lanco Industries Ltd
CX - Assessee cleared pipes of various dimensions to various projects claiming exemption under Notfn 6/2002 as amended from time to time for the respective periods - It is the case of Revenue in SCN that the exemption claimed by assessee based upon the certificate issued by certifying authority does not clearly indicate that requisite conditions as stipulated in board circular dated 28.10.2005 are complied with and the pipes are not used for setting up of water treatment plant but used for distribution of water beyond first storage point - The condition attached to such exemption is that the assessee needs to produce certificate issued by the Collector/District Magistrate/Deputy Commissioner of District in which the plant is located and is produced before the lower authorities and the said certificate also indicate that goods are cleared for intended use in specified column (3) of the notification - Assessee brought to notice, the certificates issued by various District Collectors, in respect of the pipes supplied by them - Said certificates clearly indicated that they were issued as required under Notfn 6/2006 and/or Notfn 6/2007 - The first appellate authority has recorded the clear factual finding on this point - Said factual findings are not effectively controverted by Revenue in their grounds of appeal - The impugned order is correct and legal and does not suffer from any infirmity, same is upheld: CESTAT
- Appeal rejected: HYDERABAD CESTAT
CUSTOMS
NOTIFICATIONS
dgft18pn043
Implementation of the Track and Trace system for export of Pharmaceuticals and drug consignments along with maintaing the Parent-Child relationship in the levels of packaging and their movement in supply chain - Extension of date of implementation.
cnt90_2018
CBIC notifies Customs exchange rates effective from November 02 , 2018
ctariff18_077
Seeks to further postpone the implementation of increased customs duty on specified imports originating in USA from 2nd November, 2018 to 17th December, 2018
CASE LAWS
2018-TIOL-2310-HC-MUM-CUS
A R Stanchem Pvt Ltd Vs Commissioner, Central Goods And Services Tax And Central Excise
The petitioner claims that, the impugned order is in excess of jurisdiction - An extended period of limitation was sought to be invoked which the authorities could not have done - With respect, such issue was not raised by petitioner before the adjudicating authority - The issue of limitation is a mixed question of fact and law - It ought to have raised before the adjudicating authority to consider the factual scenario and apply the appropriate law - Not having raised such an issue before the adjudicating authority and, the petitioner having a statutory alternative remedy of appeal where, the factual aspect of limitation could be entered into by the statutory appellate authority adequately and the petitioner not awaiting of statutory appeal, it should not be permitted to convert the writ jurisdiction as an appellate authority and raise such issue - Therefore, on such ground, court is not minded to interfere under Article 226 of the Constitution of India, in the facts of the present case - It is the contention of the petitioner that, the long pendency of the SCN should result in the quashing of the same - The petitioner shifted its office subsequent to the issuance of SCN and the reply thereto - The department was not in a position to locate the petitioner at the new address - Therefore, it consumed some time in disposing of the SCN - . The department cannot be faulted on such aspect - In such circumstances, no merit found in the writ petition: HC
- Writ petition dismissed : BOMBAY HIGH COURT
2018-TIOL-2309-HC-MUM-CUS
Tetra Pak India Pvt Ltd Vs UoI
FTDR - This petition under Article 226 of Constitution of India challenges the two orders dated 4th August 2018 passed by Joint DGFT - The impugned orders rejects the Petitioner's application for advance licence under FTDR Act, 1992 and under FTP 2015-2020 - The impugned orders are neither preceded by a SCN or grant of a personal hearing - Moreover, both the impugned orders are identically worked - Thus, the impugned orders are self evidently non speaking orders - The impugned orders to the Petition are quashed and set aside - The Applications for grant of advance licence leading the impugned orders are restored to Joint DGFT for fresh disposal in accordance with principles of natural justice: HC
- Petition disposed of : BOMBAY HIGH COURT
2018-TIOL-2308-HC-MAD-CUS + Case Story
Vedanta Ltd Vs UoI
Cus - By not allowing exemption of IGST at the time of import, no benefit in the AA scheme is altered by the Government - choice of policy is for the decision maker, in this case the Government, to make and not for the Court - It is not open for the petitioner to chose one scheme and insist the government to modify that scheme to its convenience - It has not been established before this court that the decision suffers from perversity, irrationality or arbitrariness - Writ Petitions dismissed: High Court [para 4 to 11, 13]
- Petitions dismissed : MADRAS HIGH COURT
2018-TIOL-3305-CESTAT-BANG
Oriental Trimex Ltd Vs CC & ST
Cus - Assessee imported polished/semi polished Marble slabs and filed refund claim on the ground that Department assessed the imported goods at the US$60 per SQM CIF instead of US$50 per SQM CIF - The higher valuation adopted by Department has resulted in excess payment of customs duty to the tune of Rs. 21,61,458/- and accordingly the refund claim was filed - Same was rejected on the ground that the duty was not paid under protest and no provisional assessment was adopted and further the claimant has not challenged the assessment in respect of bills of entries assessed prior to issue of DGFT letter - Further the Assistant Commissioner held that the burden of duty has been passed on to the customer and the refund is hit by doctrine of unjust enrichment - On the bar of unjust enrichment, the appellate authority has held that the incidence of duty has been passed on to the buyer - Once the appellate Commissioner has held that the refund has properly been filed and the duty was paid under protest the appellate authority should have also considered the memorandum of understanding between the assessee and his supplier abroad as well as DGFT letter permitting the import at 50US$ per SQM - Further, impugned order has simply rejected the appeal of assessee after holding that the refund claim is barred by unjust enrichment - Once a refund is barred by unjust enrichment then it was incumbent upon appellate authority to credit the said refund to Consumer Welfare Fund which has also not been done in the present case - Consequently matter remanded back to Commissioner (A) with the direction to examine the issue of unjust enrichment: CESTAT
- Matter remanded: BANGALORE CESTAT |
