2019-TIOL-06-HC-DEL-GST

Bhargava Motors Vs UoI

GST - Section 140(3) of the CGST Act, 2017 - Petitioner's grievance is that the credit it claimed in TRAN-1 Form, uploaded on 27.12.2017, did not result in reflection of appropriate credits of Rs.74.96 lakhs and Rs. 10.5 lakhs available to it but rather the electronic ledger reflected no figure at all, as credit available to it - Respondent filed an affidavit stating that the petitioner filed Form GST TRAN-1 but all the ITC fields were zero - petitioner points out that the intimation of its having successfully uploaded the TRAN-I Form, was received and its screenshot has been produced.

Held: Given the circumstances and the fact that the petitioner has asserted that substantial credit was available to it on the transactions which it conducted prior to 30.03.2017, for which the law entitled it to credit, it appears to the Court that the authorities have so far not looked into the merits of the claim for input credit but rather rejected his entire entitlement itself on the ground that the credit reflected in the electronic ledger does not show any figure - It also appears that after the electronic form is filled, no provision for its “review” was made available to the assessee before uploading it - lack of this facility has complicated the issue, because if such facility or provision would be made available, the individual assessees could have obtained screenshots just before uploading the form - Court is of the opinion that the respondents should disclose as to what was actually filled in the TRAN-I Form by the petitioner and the basis of its assertion that no credit was available to it, having regard to the fact that the petitioner claims credit on the basis of real transactions in real goods - Respondents shall file affidavits before the Court within two weeks - Matter listed on 13 March 2019: High Court [para 5 to 8]

- Matter listed: DELHI HIGH COURT

2019-TIOL-11-AAR-GST

Nuetech Solar Systems Pvt Ltd

GST - Applicant imports Vacuum Tubes (Evacuated Tube Collector/Vacuum Tube Collector) for manufacture of Solar Water heater - Applicant contends that the Solar Evacuated Tube Collector (ETC) is a part of Solar Water Heater, a Renewable Energy device, and is used specifically for the particular function i.e heating the water - Applicant claims classification of ETC under 8419 19 and being entitled for benefit of Sl. No. 234, Schedule I of Notification 1/2017-ITR - They seek confirmation in this regard by filing the present application before the Authority for Advance Ruling.

Held: ETC merits to be a part of Solar Water heater systems under Chapter heading 8419 - To claim concessional rate of 5%, the product must satisfy the conditions namely (i) it must fall under either chapter 84 or 85 and (ii) it must be a solar power based device (renewable energy device) or part thereof - Solar water heater in question does not appear to be a 'Solar Power based device' inasmuch as the solar energy is absorbed by the coated surface of the inner tubes (of the Evacuated Tube Collector, ETC) thereby heating them which in turn heats the water contained therein - the term 'power' means electricity and, therefore, the term 'Solar Power' means the electricity generated from solar energy - Solar Power based devices should be such devices which are operated by electricity generated out of solar energy - in the instant case, the product ETC does not generate electricity at any stage and hence cannot be construed as either Solar Power based device or part thereof - Product ETC is not entitled for concessional rate of 5% IGST under Sl. No. 234 of Schedule I of Notification 1/2017-ITR: AAR

- Application disposed of : AUTHORITY FOR ADVANCE RULING

2019-TIOL-76-HC-KAR-VAT

Venkateshwara Bar & Restaurant Vs ACCT

Whether once dealer has complied with the pre conditions of bank guarantee for seeking interim stay from recovery proceedings, then he deserves such stay in his favour - YES: HC

- Case disposed of : KARNATAKA HIGH COURT

SERVICE TAX

2019-TIOL-96-CESTAT-CHD

Frontier Agrotech Pvt Ltd Vs CCE

ST - The assessee is a service provider to their principal under an agreement - A SCN was issued to assessee for the period January, 2015 to March, 2016 by invoking extended period of limitation to demand of service tax from assessee - The assessee has provided ample evidence in respect of nature of services provided by them by way of photographs and agreement of other materials but Revenue has not come with an evidence that assessee was engaged in marketing and promoting the product of their principal while providing Agricultural Extension Service - Therefore, assessee is not providing any taxable service but is providing only Agricultural Extension Service - Another ground for confirmation of demand is that assessee is receiving remuneration in terms of sale by assessee of the product of their principal - In fact, it is only mode of calculation of remuneration of service provided by assessee but the same cannot be termed that assessee received remuneration by way of marketing and promotion or sale of the product of their principal - For that, assessee is getting separate commission on which they are discharging service tax liability - Therefore, on the basis of remuneration, it cannot be held that assessee is providing service of marketing and promotion - As on merits, the services rendered by assessee are "Agricultural Extension Services" and are covered under negative list as per section 66D of FA, 1944, therefore, assessee is not liable to pay service tax - As the issue was decided on merits, therefore, Tribunal is not going into the issue of penalty: CESTAT

- Appeal allowed : CHANDIGARH CESTAT

 

 

 

CENTRAL EXCISE

2019-TIOL-94-CESTAT-BANG

MNM Triplewall Containers Pvt Ltd Vs CCT

CX - Assessee is engaged in manufacture of corrugated boxes and corrugated rolls and are availing CENVAT credit on capital goods, inputs and input services - During audit, the records of assessee revealed that during period March 2010 to September 2011, assessee had availed the CENVAT credit paid on pest control and building/PR construction services - Department entertained the view that CENVAT Credit availed is irregular as the said services do not fall in definition of input service as per Rule 2(l) of CCR, 2004 as the same was not used either directly or indirectly in or in relation to manufacture of final product and does not cover the category of services as mentioned in the definition - The construction of the factory was completed in June 2009 and the definition of input service was amended only w.e.f. 01.04.2011 excluding the credit in respect of setting up of a factory building - During relevant time, the setting up and modernization of factory building was included in definition of input service - Moreover this issue has been settled in favour of assessee by the decisions in AryaVaidya Pharmacy (Coimbatore) Ltd. - 2012-TIOL-1685-CESTAT-BANG , Navaratna S.G. Highway Prop. Pvt. Ltd. - 2012-TIOL-1245-CESTAT-AHM and SaiSahmita Storages (P) Ltd. - 2011-TIOL-863-HC-AP-CX - Therefore, by following the said decisions, impugned order denying the CENVAT credit of construction service of factory building during the relevant time is not sustainable in law, same is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT

2019-TIOL-93-CESTAT-AHM

Mohit Industries Ltd Vs CCE

CX - The assessee shifted their factory including plant & machinery equipments and raw-material to their Surat Unit - They have also transferred the unutilized credit lying in books of Silvassa Unit to Surat Unit under Rule 10 of CCR, 2004 - Revenue has denied the credit on the ground that assessee have not obtained the prior permission for transfer of credit and stock of the goods - Rule 10 does not prescribe any procedure to be followed for transfer of the credit lying unutilized from transferred unit to transferee unit - The only requirement is that if any stock of raw-material, capital goods and other goods on which Cenvat credit had been availed, the same should also be transferred to the transferee unit - Since, there is no requirement, Adjudicating Authority imposing condition on assessee that they should have taken prior permission is absolutely unwarranted - As regard the ground that the shifting was done before registration, the same is not the condition before transfer of unutilized credit - It is obvious that if any unit has to be transferred it can be transferred during the registration only and there is no mandatory requirement that shifting can be done only after surrender of registration of the transferred unit - Therefore, this condition was also unnecessarily imposed by the Adjudicating Authority - Moreover, it is observed that assessee intimated to Jurisdictional Assistant Commissioner of Silvassa as well as Surat regarding the transfer of factory including plant & machinery, stock of raw-material and transfer of unutilized credit - Merely on assumption basis allegation made against the assessee is not tenable - However, the Adjudicating Authority denied the credit transferred from Silvassa to Surat only on the ground which is not supported by any authority of law - At the same time, no verification of records of Silvassa and Surat was carried out by Adjudicating Authority or the Jurisdictional Assistant Commissioner - The Adjudicating Authority must get the records verified and thereafter pass a reasoned order - Only on the ground which was made in the adjudication order such as the shifting was done without permission and without surrendering the registration, the Cenvat credit cannot be denied: CESTAT

- Matter remanded: AHMEDABAD CESTAT

 

 

CUSTOMS

NOTIFICATIONS/ CIRCULAR

dgft18not052

Errata to Notification no. 49/2015-2020 dated 7th January, 2019 notifying Export Policy of Fertilisers under Chapter 31 of ITC(HS) Classification of Export and Import Items 2018

dgft18not051

Amendment in Import Policy of Aviation Gasoline under Exim Code 27101219 in the ITC (HS) 2017, Schedule-I (Import Policy)

dgft18not050

Import policy for electronics and IT Goods under Schedule - I (Import Policy) of ITC (HS), 2017

dgft17cir016

Guidelines to RAs for following Standard Operating Procedure (SOP) for EODC monitoring of both Advance as well as EPCG authorizations using software in website http://eodc.online

dgft18pn068

Directives for processing of application for MEIS claims under Foreign Trade Policy 2015-20

CASE LAWS

2019-TIOL-92-CESTAT-AHM

MB Kotak Vs CC

Cus - A case was booked involving smuggling of Cigarettes at JNCH Nhava Sheva Port - Proceedings against the assessee were initiated by suspension of their license - The proceedings culminated in impugned order revoking the license of assessee - A perusal of regulation 17(1) shows that a custom broker is required to verify the antecedents of employees before hiring by identifying the antecedents and identity at declared address by using reliable independent authentic documents, data or information - It is seen that the charge made in proceedings does not clearly bring out as to how the custom broker has failed in this regard - In instant case, the importer was not client of Custom Broker and hence no charge under Regulation 11(e) can be substantiated - The charge under Regulation 11(i) relates to Customs Broker attempting to influence the officials of Custom Station in any matter - In instant case, there is no charge that the custom broker tried to influence the officials of Customs Stations - The charge if any of influencing the officer is against Shri Jaikishan B. Kotak and Shri Bipin Pragi Kotak of the Custom Broker and the Employee Shri Dinesh Ojha - Since there is no charge against the custom broker of attempting to influence the Customer Officer, the charge under Regulation 11(i) cannot be upheld - It is seen that in said case the facts were different in so far as assessee in that case was the Custom Broker through which the import documents were filed - No merit found in the impugned order and the same is set aside: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

2019-TIOL-91-CESTAT-HYD

CC Vs Osi Systems Pvt Ltd

Cus - The assessee had imported goods paying appropriate amounts of duty including SAD - Thereafter, they claimed refund of SAD paid in terms of Notfn 102/2007-CUS - Same was partly rejected - The short point to be decided is whether SAD refund under Notfn 102/2007 is available when goods are cleared on payment of appropriate rate of VAT and that VAT is nil - The first appellate authority has relied on the judgment of Tribunal in case of Gazal Overseas - 2015-TIOL-2454-CESTAT-DEL and held that the SAD refund is available - The appeal of the revenue is on the ground that ratio of this order of Tribunal does not apply because in the case of Dhiren Chemical Industries - 2002-TIOL-83-SC-CX-CB , the Supreme Court held that nil rate of excise duty is not payment of excise duty - In the case of Malhotra Imports & Exports Corporation, the Tribunal has considered this argument and has, after taking into consideration the ratio of the order of the Tribunal in the case of Gazal Overseas as well as the judgment of Supreme Court in case of Dhiren Chemical Industries , come to the conclusion that SAD refund is payable even if no VAT is chargeable on the goods which were sold - The department is also of the same view as evidence by CBEC Circular 6/2008 : CESTAT

- Appeals rejected: HYDERABAD CESTAT