2019-TIOL-64-HC-MAD-VAT

BCW V Tech India Pvt Ltd Vs Assistant Commissioner (ST)

Whether application filed by the dealer along with Form W, for claiming refund of excess input tax credit, merits proper consideration by the Commercial tax officer - YES: HC

-Case disposed of : MADRAS HIGH COURT

SERVICE TAX

2019-TIOL-81-CESTAT-AHM

Kiran Gems Pvt Ltd Vs CCE & ST

ST - Appellant is engaged in providing the services of 'Renting of Immovable property' and have recovered as reimbursement, charges of Rs.6,44,88,765/- from tenants towards electricity charges in additional to the rent amount - Case of the department is that the said reimbursement is a part of the gross value of the service of Renting of Immovable property and accordingly service tax of Rs.88,02,613/- is payable on the same - demand confirmed along with equal penalty and interest - appellant before CESTAT.

Held: As against renting of immovable property, the only amount collected by the appellant from their tenants is the consideration towards the rent - Electricity is consumed by the service recipient, therefore, they are liable to pay the same at actuals unless the same is included in the rent - In the facts of the present case, the electricity expenses is supposed to be borne by the tenants (service recipient), therefore, merely facilitating the payment of electricity charges by the appellant and subsequently taking the reimbursement of the same will not form part and parcel of gross value of service of renting of immovable property - Issue is no longer res integra as the same has been decided time and again in the following decisions viz. ICC Realty (India) Pvt. Ltd. - 2013-TIOL-1751-CESTAT-MUM , S.B. Developers Ltd. - 2018-TIOL-1866-CESTAT-DEL , Ticel Bio Park Ltd. - 2018-TIOL-2195-CESTAT-MAD and Hotel Lake View Ashok - 2018-TIOL-2891-CESTAT-DEL - following the same, the demand is not sustainable - impugned order is, therefore, set aside and appeal is allowed: CESTAT [para 4]

- Appeal allowed : AHMEDABAD CESTAT

2019-TIOL-74-CESTAT-KOL

Jubilant Life Sciences Ltd Vs CC, CE & ST

ST - Assessee is a company incorporated under Companies Act, 1956 - During audit, revenue came to know that on 25.09.2007 assessee entered into contract with M/s Jubilant Oil and Gas Ltd. to provide certain facilities in corporate office situated at Noida - It appeared to revenue that said facilities were classifiable under 'Business Support Service' - Assessee submitted that if they were providing 'Business Support Service', they would have availed entire Cenvat credit of input services and paid their duty liability by debit of same and since they were not charging any mark up, the situation would have remain revenue neutral and therefore, demand is not sustainable - It is further submitted that they adopted said practice ever since 2007 and several times audit has taken place and audit team has perused the records and were satisfied that assessee was not providing any service in nature of 'Business Support Service' - The assessee's records were repeatedly audited as apparent from correspondence in respect of audit entered into by Revenue and assessee as available at appeal paper book - Tribunal is satisfied that the issue was within the knowledge of Department and therefore, there was no suppression - The entire demand is for the period beyond the normal period of limitation: CESTAT

- Appeal allowed: KOLKATA CESTAT

2019-TIOL-73-CESTAT-MAD

Larsen And Toubro Ltd Vs CST

ST - Assessee is engaged in providing Commercial or Industrial Construction Service and Works Contract Service - On verification of accounts, it appeared that assessee have not paid service tax on the amounts received from M/s. Chemplast Sanmar Ltd., for design and construction of port facility at Karaikal claiming the exemption under Notfn 25/2007-ST - The department was of the view that Karaikal Port is not enumerated in schedule to Indian Ports Act, 1908 and Major Port Trust Act, 1963 and, therefore, exemption under said notification is not eligible construction activated of Karaikal Port for the period from Oct.'04 to Apr.'08 - The period prior to 01.06.2007 will be covered by decision in case of M/s. Larsen & Touboro Ltd. - 2015-TIOL-187-SC-ST for Works Contract Services - The second allegation is that assessee is not eligible for exemption under said Notfn which relates to exemption of service tax on construction of port facilities - The demand is for the period Oct.'04 to Apr.'08 - The SCN is dated 15.01.2010 - On perusal of SCN as well as the records, it is very much clear that there is no evidence to establish that assessee have suppressed facts with intention to evade payment of service tax under this count - For this reason, demand after 01.06.2007 cannot sustain, being time-barred - Impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

2019-TIOL-70-CESTAT-MAD

Commissioner Of Punjai Puliampatti Municipality Sathy Taluk Erode vs Commissioner of & CE

ST - The assessee is local authority, namely, Punjai Puliampatti Municipality and Sathyamangalam Municipality - They were issued a SCN proposing to demand service tax short paid by them under category Renting of immovable Property Services - Demand confirmed alongwith interest and imposed penalties - Assessee, being a municipality, has to take up a lot of formalities before giving the premises for lease as well as for collecting rents - The premises were already leased out for three to five years without incorporating the levy of service tax - It is understandable that such a local self-body would find it very much difficult to collect the service tax from the tenants without proper orders from higher authorities - They have written letters to the Principal Commissioner to obtain sanction for collection of service tax as well as for remitting the service tax - Thus, the delay in payment of service tax occurred due to such reasons - Assessee have put forward reasonable cause for failure to discharge service tax - This a fit case to invoke Section 80 of FA, 1994 to set aside the penalties imposed under Section 77 as well as Section 78 of the Act ibid - The impugned Order is therefore modified to the limited extent of setting aside the penalties imposed without disturbing the demand or interest thereon: CESTAT

- Appeals partly allowed: CHENNAI CESTAT

 

 

 

CENTRAL EXCISE

2019-TIOL-80-CESTAT-MUM + Case Story

Hindustan Aegis Lpg Ltd Vs CCE

CX - In the absence of acceptance of their registration certificate surrendered by them, the assessee unit continued to remain an excisable unit and it is beyond imagination that an excisable unit would file a refund claim relatable to unutilised Cenvat Credit - Whether rejection of refund claim on limitation would be deemed to have been a rejection on all counts including merits and unjust enrichment angle - no deeming clause/provisions in adjudication – Assistant Commissioner rejected refund claim only on the point of limitation without giving any findings on the merits of the case – whether it is open to the Commissioner (Appeals) (or the Bench) to go ahead to discuss the merits - Difference of opinion – Matter referred to Third Member: CESTAT [para 7.3, 9, 20, 23, 24]

- Reference to third Member: MUMBAI CESTAT

2019-TIOL-72-CESTAT-KOL

IOC Ltd Vs CCE

CX - The dispute has arisen about the value of goods, viz. MS and HSD cleared by assessee to the subsidiary M/s IBP Ltd. - Admittedly, the invoices issued by assessee have mentioned two prices, namely ZTVL & ZAVL - The duty has been paid as per ZAVL, but the Department is of the view that the same is required to be discharged as per ZTVL - It is further alleged in SCN that the settlement between assessee and IBP have been made as per ZTVL - It is not disputed that clearance between assessee & IBP, which is subsidiary of assessee, is required to be valued in terms of Central Excise Valuation Rules since this falls within the purview of Section 4(3)(d) of CEA, 1944 - The only reason cited by Revenue for demanding duty as per ZTVL is that the similar stand mentioned in invoices along with ZAVL, based on which duty has been paid - The Adjudicating Authority has recorded the findings that amount has been realized by IOCL from IBP as per ZTVL - Revenue's allegation that assessee has realized the amount as per ZTVL from the subsidiary, has not been supported by any documentary evidences on record - In absence of any documentary report for such allegation, demand for differential duty based only on allegation, which is not supported by any documentary evidences, cannot be sustained - Both the impugned orders are set aside: CESTATs

- Appeals allowed: KOLKATA CESTAT

2019-TIOL-71-CESTAT-BANG

Wipro Kawasaki Precision Machinery Pvt Ltd Vs CCT

CX - The assessee is engaged in manufacture and clearance of excisable goods - During verification of documents of assessee, it was noticed that they have availed CENVAT credit on Customs Education Cess and Customs Secondary & Higher Education Cess on inputs like raw material and capital goods which is ineligible as per Rule 3(1)(vi) and (via) of CCR, 2004 r/w Notfn 13/2012 and 14/2012 - Assessee have reversed the CENVAT credit on Custom Education Cess and Customs Secondary and Higher Education Cess immediately on being pointed out by Department along with interest - Further, assessee have begun their operations just two years before and were not aware of the two exemption Notfns cited in the notice and they have inadvertently taken the CENVAT credit which was reversed on being pointed out by the Department - The department has not been able to bring any material on record to show that assessee has a mala fide intention to take CENVAT credit wrongly - The department vide its Circular 137/46/2015-ST wherein the Board has clarified that in cases not involving fraud, suppression of facts, if the assessee pays the tax along with interest either within 30 days from the date of issuance of SCN or before the issue of SCN, then in such cases, proceedings shall be deemed to be concluded - The penalty imposed on assessee is not sustainable in law and therefore, same is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT

 

 

CUSTOMS

DGFT PUBLICE NOTICE

dgft18pn069

Export of Fertilizers under Chapter 31 of ITC(HS) Classification of Export and Import Items 2018 - Procedure to obtain permission / NOC from the Department of Fertilizers, Government of India

DGFT NOTIFICATION

dgft18not049

Export Policy of Fertilizers under Chapter 31 of ITC(HS) Classification of Export and Import Items 2018

CASE LAWS

2019-TIOL-67-HC-DEL-NDPS

Obiora Ikenna Sunday Vs State

NDPS - the appellant was found in possession of 8 gms of cocaine without license - Further, he was also found to have overstayed in India after the expiry of his visa on 07.02.2010 - Therefore, the Trial court, sentenced him to rigorous imprisonment for three years with fine u/s 21(b) of NDPS Act and rigorous imprisonment for three years with fine u/s 14 of Foreigners Act, 1946, both the sentences were to operate concurrently - However,the appellant did not press the conviction but pleaded to modify the sentence.

Held - it is observed that the appellant was not a previous convict and his overall jail conduct was satisfactory - Thus, the appellant had already served for two years and fifteen days - The appeal lent also submitted that, the time spent in the custody of FRRO for five months should be considered to modify the sentence - Further, submitted that he was not indicted in any other criminal case - Moreover, the appellant submitted that, he had a daughter back in Nigeria and that no one was there to take care of her - Therefore, the High court took into consideration the period served by the appellant as a substantive sentence and acquitted him of all charges - Further, the High court directed the FRRO to immediately deport the appellant on release.

- Appellant's appeal allowed : DELHI HIGH COURT

2019-TIOL-69-CESTAT-ALL

CC & CE Vs Jai Durga Electronics India

Cus - The assessee filed bill of entry for clearance of Acrylic Sheeting Advertisement Grade imported from China - After declaring the value, the assessee classified the goods under CTH 39269990 - On inspection of the goods, the Department disagreed with the description - The Department then called for manufacturer's catalogue & other literature - Samples were drawn & tested at CRCL - The Department noted that another imported had imported identical goods having similar specifications, that too from the same supplier - Hence the Department alleged that the assessee mis-declared the goods & proposed re-valuation - Thereafter, duty demands were raised with interest, the goods were proposed to be confiscated & penalty was imposed - However, the Commr.(A) later dropped the demands.

Held: The Commr.(A) noted that regarding rejection of value of goods earlier imported cannot be taken for determination of value - Hence the Commr.(A) found the duty demands to be unsustainable, as was the confiscation of goods & the redemption fine - Hence the Revenue's appeal has no merits: CESTAT (Para 2,4,7)

- Revenue's appeal dismissed: ALLAHABAD CESTAT

2019-TIOL-68-CESTAT-CHD

JS Steel Traders Vs CC

Cus - The impugned orders have been challenged by assessee on the ground that during adjudication, assessee sought cross examination of chemical examiner as well as chartered engineer, which has not been granted to them, the same is in violation of principles of justice - The provisions of Section 138 (b) of the Customs Act, 1962 are pari materia to the provisions of Section 9D of CEA, 1944 - This Tribunal has examined the issue whether in terms of Section 9D of CEA, 1944, the adjudicating authority is required to first examine the witness in chief for cross examination or not and held in favour of assessee - The adjudicating authority has not followed the procedure laid down under Section 138 (b) of Customs Ac, 1962 - Impugned orders are set aside and matter remanded to the adjudicating authority to re-adjudicate the matter in terms of the observatiaons of Tribunal in case of Alliance Alloys Pvt.Ltd. - 2016-TIOL-1922-CESTAT-CHD : CESTAT

- Matter remanded: CHANDIGARH CESTAT