SERVICE TAX

2019-TIOL-88-HC-MAD-ST

Tamil Nadu Power Finance & Infrastructure Development Corporation Ltd Vs Directorate General Of Goods and Service Tax Intelligence

ST - Petitioner seeks for mandamus to refrain the respondent from issuing further summons - Petitioner's grievance is that they are being repeatedly called upon to appear before the respondent for one reason or other without there being a necessity; that the petitioner is not being treated properly during the previous appearance.

Held: Prayer sought for cannot be entertained since the power to issue summons by the respondent cannot be curtailed when the matter is pending at the stage of investigation - however, court is of the view that the respondent has to complete examination of the petitioner by the next date - Petitioner should co-operate and appear on 11.01.2019 so that the examination can be completed on the said day itself without giving any room for any further allegation in the conduct of the examination - Petitioner is also permitted to take an authorized representative along with her on 11.01.2019 and such authorized representative shall sit within vicinity, however, beyond the hearing distance - Petition disposed of: High Court [para 6 to 8]

- Petition disposed of : MADRAS HIGH COURT

2019-TIOL-118-CESTAT-DEL

Kusum Healthcare Pvt Ltd Vs CCE

ST - The assessee is a manufacturer and exporter of pharmaceutical products - They had established representative offices in different countries to promote its goods and to liaison with the local authorities in such countries - The salaries of employees working at representative offices are remitted by assessee to the representative offices for disbursing the same to employees working therein and also reimburses other expenses incurred by representative offices for their operations - The Department entertained a view that expenses incurred by assessee for maintenance of offices abroad are liable to Service Tax on reverse charge basis - In the light of decision of Tribunal in assessee's own case for earlier period, Tribunal need to consider the change in law w.e.f. 01.07.2012 - After carefully considering the provisions of law prior to and w.e.f. 01.07.2012, there is in essence no substantial change in the law - Section 65 B (44) read with relevant Explanations are parimateria to Section 66A (2) read with Explanation - Consequently, the finding of Tribunal needs no modification even for the period after 01.07.2012 - Hence, there is no justification to demand Service Tax on amounts paid by assessee to their branch office towards reimbursement of their expenses - The Commissioner has failed to discuss the issue in light of provisions, which have been included in statute w.e.f. 01.07.2012 - The impugned order is set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2019-TIOL-117-CESTAT-BANG

Karnataka Exhibition Authority Vs CC, CE & ST

ST - Assessee have given rights to others to lease out stalls, during Annual Dusshera Exhibition, Mysore Palace by the way of calling tenders - The highest bidder was given the right to lease out stalls - A SCN was issued alleging that they have rendered service under Business Exhibition Service in terms of Section 65 (19A) of FA, 1994 - As brought out in original SCN, it is evident from Memorandum of Association that assessee is a registered society constituted with the object of organizing exhibitions; it is also evident from the letter of Sh. D.T. Prakash that the assessee provides for security and maintenance of the entire area provides for an amusement park; invites the dignitaries to declare the exhibition open to the public; invites Government departments to put up stalls and organizes cultural programmes - The main objective of 'Cultural Dusshera Exhibition' is to propagate and project the Cultural and Literary heritage and technical achievements and educational and sociological advancement in State - The stalls are used to put up shops for selling their products; taxable service requires that the Service Tax should be provided to the exhibitor - In the instant case, Tribunal do not found any such service rendered by assessee to the exhibitor, in fact, the successful tenderer will give it to individual shops, the service receiver as well as assessee is concerned, is the tenderer but not the individual exhibitors of the shops - The leasing stalls and land will not fall under category of 'business exhibition services' as held by Revisionary Authority - Going by the facts of the case, the activity undertaken by assessee is not taxable under 'business exhibition services'; at the most, they could have been charged for tax for promoting commercial use or exhibition of any event organized by a person or organization which was taxable only w.e.f. 01.07.2010 - The appeals sustain on merits, the question of charging interest and levying penalty could not survive: CESTAT

- Appeals allowed: BANGALORE CESTAT

 

CENTRAL EXCISE

2019-TIOL-121-CESTAT-AHM

Heubach Colour Pvt Ltd Vs CCE & ST

CX - The issue involved is that whether the assessee being 100% EOU is required to pay excise duty on clearance of Plastic used packing material wherein they received input - The identical issue was raised in case of DTA unit where the empty packing material in which input is received on which cenvat credit was availed, that whether clearances of such empty/used packing material is liable for excise duty - In that case, the Board has issued a Circular 721/37/2003-CX wherein the Board has clarified that no duty shall be payable and no reversal of credit is also warranted on waste package/container used for packing input on which credit has been taken when cleared from the factory of manufacture - He submits that on the same line in case of EOU also, the used packing material would not attract excise duty on its clearances in DTA - He further submits that dispute is related to Notfn 22/03-CE wherein as per conditions, only in those cases duty is required to be paid where the empty container are suitable for repeated use - Once the input contained in plastic container is used, empty containers are not used repeatedly, therefore, as per the conditions of Notfn 22/03-CE, the duty on such empty container need not to be paid - V ery same issue has been decided by very bench in case of Novodigm Ltd and Rubamin Laboratories Ltd . - 2018-TIOL-2824-CESTAT-AHM - The issue is no more under dispute as the same has been settled in favour of Revenue and against the assessee, accordingly, following the ratio of said judgment the impugned order is upheld: CESTAT

- Appeal dismissed: AHMEDABAD CESTAT

2019-TIOL-120-CESTAT-ALL

Indian Potash Ltd Vs CCGST

CX - The assessee who is engaged in manufacture of V.P. Sugar and Molasses, availed the benefit of Cencat credit of duty paid on various raw materials during month of December, 2014 and March, 2015 - As per the objections raised by audit, such availment was not permissible, inasmuch as the invoices, on the basis of which the credit was availed, was older than six months - Inasmuch as, assessee had availed Cenvat credit beyond the period of six months, revenue was of the view that same is inadmissible to them - The assessee have categorically contended that amendment made in provisions of Rule 4 would not be applicable in respect of invoices issued prior to 01.09.2014 - The Tribunal in case of M/s Voss Exotech Automotive Pvt. Ltd. - 2018-TIOL-985-CESTAT-MUM has observed that Notfn 21/2014-CE(NT) should be applicable to those cases wherein the invoices were issued on or after 11.07.2014 for the reason that notification was not applicable to the invoices issued prior to the date of notification, therefore, at the time issuance of invoices no time limit was prescribed and limitation of six months cannot be made applicable - As such, the issue stands decided in favour of assessee by decision of Tribunal - As regards the Cenvat credit in respect of capital goods, same was 50% remaining part of total involved Cenvat credit in capital goods - Even though there is no such amendment in Rule 4 for availing the Cenvat credit of duty paid on capital goods within a period of six months, same stands denied by Commissioner (A) even after observing that there is no such requirement of law - As such, no justification found for denial of credit on said capital goods also - Apart from holding the merits in favour of assessee, the demand is barred by limitation - The entire credit was availed by assessee by reflecting the same in their Cenvat credit records - As such, there cannot be held to be any suppression or misstatement on their part with a malafide intention so as to invoke the longer period of limitation - The revenue has not produced any evidence to show that such availment was with the guilty mind - As such, the demand having been raised beyond the normal period of limitation is barred: CESTAT

- Appeal allowed: ALLAHABAD CESTAT

2019-TIOL-119-CESTAT-HYD

Pearl Beverages Ltd Vs CCE, C & ST

CX - The assessee is manufacturer of beverages and they have appointed distributors/ dealers as per the terms of agreement - The terms and conditions of sale of product by assessee to the dealers are that the dealer shall make full advance payment at the time of placing order or before taking delivery of materials that may be required for the sale of products - The assessee claimed input service credit on GTA services including credit of services rendered on transport of goods to the dealers premises which was disallowed by Revenue on the ground that these services are rendered after the place of removal and in terms of CCR, 2004 the credit of input services is available only up to the place of removal - The assertion of assessee is that the Board Circular 988/12/2014-CX which is binding on the officers has not been followed by adjudicating authority while denying the CNEVAT credit under CCR, 2004 - Aforesaid Board's circular clearly states that the place of removal is the point where the sale has been completed under Sale of Goods Act, 1930, i.e., the ownership of the goods gets shifts to the buyer - It is the assertion of assessee that this transfer of goods takes place only at dealer's premises although they received the payments in advance and hence the dealer's premises are the place of removal - This is a factual aspect to be verified in respect of each of agreements because some agreements indicate that delivery will be made by assessee at the dealer's premises which others are silent on this point - The appeals are allowed by way of remand to the original adjudicating authorities: CESTAT

- Matter remanded: HYDERABAD CESTAT

 

 

CUSTOMS

NOTIFICATION/ TRADE NOTICE

cnt03_2019

CBIC amends exchange rate for South African Rand

dgft_trade_notice_42

Mandatory recording of information on DGFT website about transfer of MEIS/SEIS Scrips issued from 14.1.2019 onward (for EDI ports only)

CASE LAW

2019-TIOL-116-CESTAT-BANG

Welcome Exports Vs CC, CE & ST

Cus - The goods imported by assessee were seized - The assessee contends that he has not filled the Bill of Entry therefore the mis-declaration of value, quantity and nature of the goods cannot be alleged - The Bill of Entry was partially filled up and signed however no number was assigned to it - Entries relating to description, quantity and value of goods were left blank - It is evident from the OIO that there was discrepancy in invoice, Bill of Entry and the goods actually imported - In respect of previous consignments, as per invoices found in file recovered from assessee's premise, were found to be different from that filed before customs - Therefore, there were reasons to believe that importer was habitually attempting to mis-declare the description, quantity and value of goods - The assessee did not prove that he had right intentions - They rather than proving his bona fides was harping on mistakes in the investigation and procedures of clearance - A reasonable case has been made out to show the intentions of assessee in mis-declaring the nature and value with an intention to evade payment of duty - There is no need to interfere with impugned orders in respect of goods imported - Looking into the fact that Commissioner (A) has already given substantial relief in respect of consignments imported earlier and has reduced the penalty imposed on the assessee from Rs.2,50,000/- to mere Rs.50,000/- - The assessee have made no case for setting aside the order of Commissioner (A) and further reduction or waiver of penalty: CESTAT

- Appeal rejected: BANGALORE CESTAT