SERVICE TAX
2019-TIOL-100-CESTAT-MUM
K Line Ship Management India Pvt Ltd Vs CCGST
ST - Refund - Rule 5 of CCR, 2004 - Since the appellant is a subsidiary of foreign company and provides the output service in entirety to such parent company, there was no scope or occasion on the part of the appellant to utilize input service for providing output service to any service receiver, other than the parent company - In view of the fact that input services were used for providing the output services which was exported, the appellant should statutorily be entitled for refund of service tax paid on input services, wich were lying unutilized in the CENVAT account for a considerable period of time - It is a settled position of law that the authorities while adjudicating the refund application under rule 5 of the rules should not look into the aspect of consideration of the requirement of rule 2(l) of the CCR inasmuch as other provisions exist in the statute for consideration of such dispute - no merit in impugned order, hence set aside and appeals allowed with consequent benefits of refund, excepting on immovable property service as the appellant has conceded the same: CESTAT [para 3, 6, 7]
- Appeal partly allowed: MUMBAI CESTAT
2019-TIOL-99-CESTAT-MUM
Kotak Mahindra Bank Ltd Vs Commissioner of CGST
ST - Appellant had availed CENVAT credit on furniture by considering the same as capital goods and which was denied by the department on the ground that ‘furniture' is classifiable under Chapter 94 and which is not specifically included in the definition under rule 2(a) of CCR, 2004 - appeal to CESTAT.
Held: In view of Tribunal decision in ICICI Lombard General Insurance Co. Ltd . - 2016-TIOL-367-CESTAT-MUM allowing CENVAT credit benefit on furniture items viz. chairs and tables considering the same as required for rendering taxable services, the impugned order is set aside and appeal is allowed: CESTAT [para 3, 4]
- Appeal allowed: MUMBAI CESTAT
CENTRAL EXCISE
2019-TIOL-81-HC-MAD-CX + Case Story UoI Vs Kothari Petrochemicals Ltd
CX - Department cannot upset the apple-cart and try to come to a new conclusion, that too, after a period of nearly 24 years - issuing SCN is a clear case of abuse of process of law - finding recorded by Single Bench affirmed - Writ appeal filed by Revenue dismissed: High Court [para 14, 15]
CX - Excess Poly butylene feedstock remaining after manufacture of Poly Iso Butylene returned to supplier refinery - such quantity is exempted in terms of notification 157/89-CE and continued by notification 4/2006-CE, 12/2012-CE - Treating such exempted clearance as being hit by provisions of rule 6 of CCR, 2004 and demanding 10% amount on the value of such clearances has the effect of destroying the very exemption notification - impugned notice is wholly without jurisdiction and nothing but an abuse of the process of law, enabling the High Court to interfere with the same under Article 226 - Circular 29/3/2018-GST dated 25.01.2018 issued by the Board in the present GST regime and clarifiying that GST will be payable by the supplier refinery only on the net quantity of Polybutylene feedstock and Liquefied Petroleum Gas retained by the manufacturer for the manufacture of Poly Iso Butylene and Propylene or Di-butyl para Cresol and that the refinery would be liable to pay GST on such returned quantity of Polybutylene feedstock and Liquefied Petroleum Gas, when the same is supplied by it to any other person is also very relevant to the issue on hand - Single Bench was perfectly right in entertaining the writ petition and quashing the impugned show cause notice that it has been wholly without jurisdiction - Writ Appeal of Revenue dismissed: High Court [para 7, 8, 12, 13, 15]
- Writ Appeal dismissed: MADRAS HIGH COURT
2019-TIOL-103-CESTAT-MUM
CCE, C & ST Vs GAIL
CX - CENVAT - Rule 6 of CCR, 2004 - Amount demanded on the ground that ‘exempted lean gas' cleared from factory without maintaining separate accounts etc. - appeal to CESTAT.
Held: It was incumbent on the part of the original authority to examine as a pre-requisite for determination of liability the Assessees claim that ‘lean gas' is a byproduct - having failed to do so, Bench is not in a position to examine the validity of the claim of the authorities that liability should be confirmed - to rectify that lack, the matter would be required to be decided afresh - impugned order set aside and matter remanded: CESTAT [para 3, 6]
- Matter remanded: MUMBAI CESTAT
2019-TIOL-102-CESTAT-MUM
Macleods Pharmaceuticals Ltd Vs CCE
CX - Appellants are engaged in manufacture of P&P medicines and were drawing samples which are in fully manufactured condition for testing quality in their in-house laboratory and also for preserving till the expiry period - these samples were thereafter destroyed - department alleging that the proper procedure as per the CER, 2002 was not followed and since the samples were destroyed without payment of appropriate duty, demand issued and confirmed by lower authorities - appeal to CESTAT.
Held: Issue involved is squarely covered by the Larger Bench decision in Dabur India Ltd. - 2005-TIOL-171-CESTAT-DEL-LB and where it is held that no duty is required to be paid in respect of samples drawn for quality control purposes - said decision has been approved by the Himachal Pradesh High Court reported as - 2010-TIOL-831-HC-HP-CX & by the Punjab & Haryana High Court in case of Malcom Pharmaceuticals - 2008-TIOL-317-HC-P&H-CX - similar decision in RPG Life Sciences Ltd . 2010-TIOL-830-HC-MUM-CX - following the same, impugned orders are set aside and appeals are allowed: CESTAT [para 5.1, 5.2, 5.3, 6]
- Appeals allowed: MUMBAI CESTAT
2019-TIOL-101-CESTAT-MUM
Mirc Electronics Ltd Vs CCE
CX - CENVAT - Appellant had availed CENVAT credit of tax paid on services used in common for both, manufacturing and trading activities, without separate accountal of utilization stipulated in rule 6 of the CCR, 2004 - demand confirmed along with imposition of equivalent penalty and interest - reversal of credit along with interest was made before issuance of SCN, question, therefore, remains of penalty imposition u/s 11AC of CEA, 1944.
Held: Wrong availment is claimed to have its genesis in human interface with the SAP system - Circumstances pertaining to impugned availment of credit of tax paid on input services used for exempted activities, such as trading, do not warrant imposition of penalty - appeal is allowed to this limited extent: CESTAT [para 6, 7]
- Appeal partly allowed: MUMBAI CESTAT
CUSTOMS
2019-TIOL-74-HC-DEL-NDPS
Rajesh Sharma Vs DRI
NDPS- The petitioner in the present case, being charged for dealing in psychotropic substances, applied for interim bail- He claimed that his 70 year old mother was suffering from depression & he needed to take care of her- His mother's condition was also substantiated by the Doctor's report.
Held: On considering the facts and such dire circumstances, Petitioner's request for a two week period of interim bail on personal bond & two sureties of Rs 2 lakhs was accepted- Also, certain conditions were imposed wherein he was ordered to mark attendance twice a week before Police station & not to leave the country without trial court's permission: High Court
- Bail Application allowed: DELHI HIGH COURT
2019-TIOL-98-CESTAT-MUM
Abhiman Impex Vs CC
Cus - Appellant imported wooden furniture of different varieties meant to be used in bedrooms and hall etc. - classification was declared as 94036000 and 94032090 of CTA, 1975 which are assessable to duty as unit and not by weight - therefore, noticing excess weight at the time of physical verification of the import by the Customs authorities, cannot in any manner change the transaction value disclosed in the proforma invoices - loading the price on pro rata basis to the extent of excess weight of the furniture noticed during the physical examination is unsustainable in law - impugned order is set aside and appeals are allowed with consequential relief: CESTAT [para 6]
- Appeals allowed: MUMBAI CESTAT
2019-TIOL-97-CESTAT-MUM
Hewlett Packard India Sales Pvt Ltd Vs CC
Cus - Item under import viz. ‘HP Photo Center Microlab Printer' is an ink jet printer capable of being connected to an automatic data processing machine and is used primarily for printing photographs of certain sizes - following the apex court decision in Business Forms Ltd. - 2002-TIOL-277-SC-CUS-LB and Tribunal decisions in Lipi Marketing & Avery Digital Imaging, no merit found in the stand adopted by the adjudicating authority of classification under heading 9010 against the declared classification under 8443 3250 for which reason the impugned order is set aside and the appeal is allowed: CESTAT [para 7, 8]
- Appeal allowed: MUMBAI CESTAT
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