SERVICE TAX
2019-TIOL-70-HC-MAD-ST
Inno Infra Pvt Ltd Vs Assistant Commissioner, GST & Central Excise
ST - The petitioner is aggrieved against O-I-O, wherein and whereby, the Adjudicating Authority has confirmed the payment towards service tax liability and also ordered payment of appropriate interest - The Adjudicating Authority further imposed penalty representing 100% tax liability - Admittedly, as against the impugned order, a statutory appeal lies before Commissioner (A), by complying with other statutory requirements - However, the petitioner did not file any such appeal in time - Now, the merits of order passed by respondent is sought to be canvassed before this Court by filing this writ petition after a period of nearly one year and two months - Since a statutory appellate remedy is available to the petitioner, Court is not inclined to entertain this writ petition, that too, when the points raised in this writ petition are touching upon the merits of the order and not on the jurisdictional aspect - Without expressing any view on the merits of contentions raised by petitioner as against imposition of penalty, this writ petition is disposed of by granting liberty to petitioner to file a statutory appeal before concerned Appellate Authority within a period of two weeks: HC
- Writ petition disposed of : MADRAS HIGH COURT
2019-TIOL-86-CESTAT-MAD
Lion 3 Protection Force Vs CCE & ST
ST - The assessee is a proprietorship concern registered for providing security services - On verification of their income and expenditure accounts statements, it appeared that they had shown income by way of contract amounts received in for years 2002-03, 2003-04, 2004-05 and 2005-06 which allegedly was not declared in their statutory ST-3 returns filed by them - The department took the view that said contract amount received and shown as income in gross amount is nothing but charges received for security agency services rendered and provided by them - Adjudicating authority has confirmed demand on the basis of verification conducted by him on invoices submitted by assessee, however such report was not supplied to them - There is no indication as to whether copy of said report was provided to assessee to offer their response and or rebuttal of the same - This being so, the basic principles of natural justice have been given the go by - Interests of Justice will require that assessee is given a copy of said verification report and also given sufficient opportunity to offer their comments / rebuttals on the same within a reasonable time - The matter is therefore being remanded to the adjudicating authority for providing a copy of said verification report and providing sufficient opportunity for assessee to present their case: CESTAT
- Matter remanded: CHENNAI CESTAT
2019-TIOL-85-CESTAT-MAD
Cholamandalam Ms General Insurance Company Ltd Vs Commissioner of GST & CE
ST - The assessee-company provides General Insurance services - It availed services such as re-insurance, maintenance, cleaning, security & accommodation - The assessee availed Cenvat credit on such input services - The Revenue disallowed the credit availed on housekeeping & cleaning services & hotel accomodation services.
Held: It is seen that an identical issue raised in the assessee's own case for a different AY, was remanded back to the lower authority - Hence the matter warrants remand in the present case as well, to consider applicable decisions and then pass a speaking order: CESTAT (Para 1,5,6,7)
- Case remanded: CHENNAI CESTAT
CENTRAL EXCISE
2019-TIOL-90-CESTAT-MUM + Case Story
Khanapur Taluka Co-Op Spinning Mills Ltd Vs CCE
CX - Clearance by 100% EOU to DTA - Benefit of exemption notification 30/2004-CE, whether admissible in view of proviso to sub-section (1) of section 5A of the CEA, 1944 - In case the Tribunal intended to follow the orders in favour of the Revenue by ignoring the orders in favour of the appellant, the matter should have been referred to the Larger Bench - There is no such condition available in any proviso to section 11A of the CEA, 1944 indicating that whenever assessee gives an undertaking to pay the differential duty, the same would lead to availability of larger period of limitation for the Revenue - giving of an undertaking can be reasonably compared to deposits of amounts during investigation and cannot be held to be a criteria justifying invocation of longer period - Difference of opinion - Matter referred to Third Member: CESTAT [para 4.9, 5.5, 8, 13]
- Reference to third Member: MUMBAI CESTAT
2019-TIOL-89-CESTAT-KOL
HPCL Vs CCE
CX - The assessee has procured LBO from Refinery situated at Haldia as well as at Mumbai - LBO is moved from warehouse to the storage tank of assessee without payment of duty - Duty is to be paid at the time of its removal from the storage tank - The dispute is in respect of valuation to be adopted for payment of such duty - The duty has been paid by assessee at the Refinery Transfer Price, which has been fixed by Ministry of Petroleum and Natural Gas, for use in such transfer from one refinery to another - Since transportation charges for bringing the goods to the storage tank, is an element of value accrued prior to such removal, it is required to be included - Such view has been taken by both the authorities below and no reason found to interfere with the same - The original authority has also allowed the benefit of time bar, which has been reversed by Commissioner (A) - The practice of transporting non-duty paid LBO from refinery to the storage tank of the assessee has been used for several years and the same is very much within the knowledge of Department - It cannot be said that non-inclusion of freight element for payment of duty is on account of any malafide intention on the part of assessee - Hence, no justification found to extend the demand of duty beyond the normal time limit - The impugned order is modified and the order passed by original authority is restored: CESTAT
- Appeal partly allowed: KOLKATA CESTAT
2019-TIOL-88-CESTAT-BANG
CEAT Ltd Vs CCT & CE
CX - The assessee is involved in manufacture and sale of automobile tyres, tubes and flaps - Certain types of "CEAT" branded tyres were procured by assessee from M/s. Rado Tyres Ltd., a registered manufacturer of tyres - The assessee filed a refund claim being excess duty paid by M/s. Rado Tyres Ltd. on the goods cleared during period April 2011 to March 2012 and April 2012 to March 2013 respectively - The lower adjudicating authority rejected the refund claim as inadmissible in terms of provisions of Section 11B of CEA, 1944 read with Rule 7 of CER, 2002 on the ground of unjust enrichment - Similarly, original authority has wrongly rejected the refund claim on time bar by holding that the claim has been filed beyond the period of one year from the relevant date i.e. purchase date whereas the original authority should have considered the limitation of one year from the date of finalization of assessment as provided in Rule 7 of CER, 2002 but the same has not been done by original authority therefore, this case is remanded back to the original authority with a direction to consider the certificate of Charted Accountant specifically certifying that the incidence of duty has not been passed on to the buyer - The decision of Apex Court in case of Addison & Co. Ltd. - 2016-TIOL-146-SC-CX-LB is not applicable in the present case because the assessee has produced on record the certificate of Charted Accountant which was not there before both the authorities below - Both the appeals remanded to the original authority: CESTAT
- Matter remanded: BANGALORE CESTAT
2019-TIOL-87-CESTAT-MAD
Inox Air Products Pvt Ltd Vs Commissioner of GST & CE
CX - The assessee-company, engaged in manufacturing various gases, procured inputs from its suppliers - It availed Cenvat credit on such inputs - During the relevant period, the Revenue issued an SCN alleging that the during procurement of liquid oxygen and liquid nitrogen from its suppliers, liquid argon less than the invoiced quantity had been received, whereas the assessee had availed full amount of credit - Hence it alleged that no credit could be availed on the quantity of liquid argon not received, since it was not being used in manufacture of final product - Hence demands were raised for recovery of credit availed in excess - Interest u/s 11AA was demanded & penalty u/r 15(2) of CCR r/w Section 11AC of the CEA 1944 was imposed.
Held: The statute does not mention any provision pertaining to extent of loss & such issue has only been settled by the precedent judgments in various cases - Hence the assessee deserves benefit on account of loss due to evaporation - However, the matter warrants remand because the assessee's claim of the loss being marginal, as well as the Revenue's claim of the loss being substantial, are not backed with any sort of evidence - The original adjudicating authority also rejected the assessee's claim without properly examining its merits - Hence the demands raised are set aside & the matter is remanded for fresh verification of such factors: CESTAT (Para 1,6,7)
- Assessee's appeals allowed: CHENNAI CESTAT
2019-TIOL-82-CESTAT-DEL
Hindustan Petroleum Corpn Vs CGST CE
CX - The assessee is a registered depot of the M/s Hindustan Petroleum Corpn. Ltd. - Upon audit, it was noted that the assessee collected excess amount oif Excise duty from its buyers, upon removal of Excisable goods at the factory gate - Hence the Revenue issued SCN u/s 11D of the CEA 1944, raising duty demand - This was followed by another SCN covering a different period, more so when an amount was reversed to the Department by the assessee - However, the demands were raised nonetheless and then confirmed by the Commr.(A).
Held - The original manufacturer has an option to clear the dutiable products from its depot upon payment of duty, but the same has been cleared from the factory gate - Merely because the depot has taken separate registration as first-stage dealer, this does not mean that it is not part & parcel of the manufacturer assessee - Hence the provisions of Section 11D are applicable to the assessee's case & so it is liable to deposit the excess amount collected by it in the name of Excise duty - Moreover, when interpreting a particular section of the Act, the overall scheme of the Act must be kept in mind, so as to arrive at balanced view of the provisions - Every section cannot be read in isolation from others - Further, from a perusal of the credit note, it is seen that a credit of Cenvat difference had been given back from a particular period - This is not a refund of excess amount & it is possible that the buyer may have availed credit of such Cenvat difference in their books of account & may have used them to pass on credit to their customers - Hence the excess amount collected by the assessee in the name of Excise duty has not been returned to the customers - Besides, the provisions u/s 11D of the CEA 1944 do not envisage any period of limitation - Hence the demand raised is very well within limitation: CESTAT (Para 1,6,7,8,10,11)
- Assessee's appeal dismissed: DELHI CESTAT
CUSTOMS
2019-TIOL-71-HC-P&H-NDPS
Surinder Singh@Sunny Vs State Of U T Chandigarh
NDPS - Car driven by accused was intercepted by a police party and a polythene bag was recovered which allegedly contained intoxicant substances weighing 44 grams; 12 injections of Pheneramine Mealeate and 12 injections (blue colour marka) - Accused was arrested and since regular bail was declined by Additional Sessions Judge, Chandigarh, petitioner/accused is before the High Court.
Held: Matter is left to the trial Court to come to the conclusion as to whether the recovery of contraband effected from the petitioner amounts to commercial quantity or otherwise -Even if it is taken that the recovery does not amount to commercial quantity, even then petitioner obviously dealt in drug trafficking which is a very serious matter and cannot be taken lightly - petitioner had also tried to run over the police officials performing their duties - Such type of persons need to be dealt with sternly and no leniency can be shown by granting them concession of bail lest that should send a wrong signal in the society that one can indulge in serious crimes and then can get away with that - There is reasonable apprehension of the petitioner/accused absconding and trying to tamper with prosecution evidence, if granted bail - Petition for regular bail is, therefore, dismissed: High Court
- Petition dismissed : PUNJAB AND HARYANA HIGH COURT
2019-TIOL-84-CESTAT-HYD
Edelweiss Commodities Services Ltd Vs CC
Cus - The assessee has imported goods under bills of entry and paid Customs Duty including SAD - They have submitted a claim for refund of SAD as per Notfn 102/2007-CUS - The goods in question were imported on 18.12.2013 and sold on 24.12.2013 and the VAT on the goods sold was paid on 16.01.2014 - The refund claim was filed on 29.12.2014 which was rejected on the ground that the application was time barred - The question framed in case of Sony India Pvt Ltd. - 2014-TIOL-532-HC-DEL-CUS by High Court of Delhi is whether the limitation introduced vide Notfn 93/2008 have a retrospective effect or otherwise, although the final order of judgment was to the effect that the Notfn 93/2008 must be read down to the extent it imposes the limitation of time of one year - High Court of Bombay in case of CMS Info Systems Ltd - 2017-TIOL-79-HC-MUM-CUS took a different view and upheld the Notfn 102/2007-CUS in its entirety including limitation of time holding that assessee has not vested interest in getting refund and is bound by the statutory provisions laid down in notfns - On identical issues in case of Sree Krishna Enterprises and Surya Telecom Pvt Ltd - 2018-TIOL-3283-CESTAT-HYD , this Bench had held that the time limitation specified in Notfn 102/2007-CUS as amended applies for refund of SAD - No reason found to deviate from the position already taken - The question of interpretation of a notification has now been settled by Constitutional Bench of Apex Court in case of M/s Dilip Kumar & Co. and others - 2018-TIOL-302-SC-CUS-CB and it has to be strictly interpreted - The applications for refund were correctly rejected to the extent they were time barred and the impugned order needs to be upheld: CESTAT
- Appeal rejected: HYDERABAD CESTAT
2019-TIOL-83-CESTAT-BANG
Fabline Overseas Vs CC
Cus - The assessee presented Bills of Entry on import of "Non-Woven Interlining", intended to be used for Apparel, from M/s ASC International, USA - The issue involves two allegations i.e. allegation of mis-declaration and allegation of under valuation against the importers - It was alleged that in respect of four Bills of Entry, impugned goods were imported by importer from M/s. ASC International from M/s. Millikan & Co., USA and that goods were declared as non-woven fabric whereas the description in Bill of Lading, the description was woven fabric - The importer has alleged that the original declarations were with the Department - In the absence of any special circumstances indicated in Section 14(1) of Customs Act, 1962, the price paid or payable should be taken as transactional value - The charges under invoices have to be supported by evidences of prices of contemporaneous of imports like goods - Invoice price, though, not sacrosanct, the Department has to give cogent reasons before rejecting the invoice price - The Department has to find out whether there are any imports of identical goods or similar goods at a higher price around of same time unless the evidence is gathered in that regard - The question of rejecting the value does not arise - The invoice price has to be accepted in such circumstances if the charge under valuation cannot be supporter either by evidence or information about comparable imports, the benefit of doubt must go to the importer - The Commissioner on the one hand held that there is no mis-declaration of description on the part of assessee - He has not adduced any evidence of payment by assessee over and above the invoice price - No proof of payment either to the foreign suppliers or to the steamer agents for transportation - Differential duty payable has been arrived only on the basis of certain data called for from the steamer agents - The Commissioner has not only traversed beyond the SCN but also has not given due consideration to the contemporaneous imports, if any, of identical or similar goods - Therefore, the impugned order does not stand the scrutiny of law: CESTAT
- Appeal allowed: BANGALORE CESTAT
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