2019-TIOL-07-HC-KERALA-GST

Noushad Allakkat Vs State Tax Officer (WC)

GST - Appellant, a dealer in timber, purchased goods inter-state and while the goods were transported, it was detained within the State of Kerala - invoice accompanying showed collection of CGST and SGST, which is leviable on an intra-state sale, therefore, goods were detained and notice was issued - consequently, an order was passed u/s 129(3) of the  IGST Act demanding tax applicable of IGST and imposing penalty for non-production of goods u/r 140 of the CGST Rules - appellant had obtained provisional release of goods by furnishing bank guarantee for the applicable tax and penalty as also bond for production of goods and security for vaue of goods - order was challenged in a Writ Petition and the Single Judge found there was no reason to invoke the extra-ordinary jurisdiction under Article 226 of the Constitution when appellate remedy was available - appeal before Division  Bench against this order.

Held: Appellant had specifically challenged Rule 140(2) of the CGST Rules - In such circumstances, it would have been appropriate, even if refusing to interfere with the impugned order on grounds of efficacious alternate remedy being available, to independently consider the challenge against the Rule itself - production of goods under Rule 140 is only for invocation of confiscation proceedings, which would not be necessary if the security equivalent to the value of the goods is furnished under Rule 140, in case of detention under Section 129 - Writ Appeal disposed of confirming the order of the Single Judge refusing to exercise discretion under Article 226 in interfering with an order, which could be properly challenged in an alternative remedy - it is made clear that the non-production of goods as noticed in the order is not a ground for imposition of penalty: High Court [para 7, 9]

- Writ Appeal disposed of : KERALA HIGH COURT

SERVICE TAX

2019-TIOL-128-CESTAT-DEL

India Trade Promotion Organisation Vs CST

ST - The assessee is normally engaged in organising and managing trade fairs/exhibitions in India and abroad - During period under dispute, particularly October, 2010 and a few month prior and thereafter holding a trade/business exhibition was banned by Government of India in view of organisation of Commonwealth Games at New Delhi, particularly for security reasons - The providing of space along with some amenities by assessee to another department of Government of India for setting up of media centre for the purpose of dissemination of sports news and telecasting of sports events of Commonwealth Games, 2010 does not amount to holding of a business exhibition and/or providing of any service under the provisions of Section 65(105)(zzo) read with Section 65(19a) of Finance Act - Accordingly, tax demand was set aside along with interest and penalty confirmed in impugned order against the assessee - The assessee was not required to pay any amount of service tax under the head 'business exhibition service' on the amount received by assesese for setting up media centre for the Commonwealth Games 2010 - Assessee is not liable to pay any service tax on reverse charge basis as they are not rendering any taxable service: CESTAT

- Appeal allowed: DELHI CESTAT

2019-TIOL-127-CESTAT-MAD

Maersk Global Service Centres India Pvt Ltd Vs CST, CGST & CE

ST - Two issues are involved in these appeals and the first one is whether the application claiming refund under Section 11B was time barred - The issue with regard to interpretation of time limit prescribed under Section 11B has been set at rest by the larger Bench in decision of Span Infotech (India) Pvt. Ltd. 2018-TIOL-516-CESTAT-BANG-LB - The assessee's claim for refund is within the time limitation as interpreted by larger Bench and therefore allow the above ground with consequential reliefs - The second common issue involved in both the appeals is with regard to the denial of input Cenvat Credit on Air Travel Services which was denied as being an ineligible input service - The adjudicating authority, while arriving at the eligible refund, had reduced an amount of Rs. 60,012/- and Rs. 68,793/- respectively for both years which are the credits availed towards this service, from the total credit availed during the period of Rs. 24,69,317/- and Rs. 28,97,907/- respectively; and arrived at a net eligible Cenvat Credit of Rs. 24,09,306/- and Rs. 28,29,114/- respectively - On appeals, Commissioner (A) has adopted the very same findings of adjudicating authority and has thus rejected the appeals against which, assessee is prosecuting these appeals - Issue is identical to the one which was decided in assessee's own case and for the same reasons, appeals allowed: CESTAT

- Appeals allowed: CHENNAI CESTAT

2019-TIOL-126-CESTAT-KOL

Balmer Lawrie And Company Ltd Vs Commissioner of CGST & Central Excise

ST - The assessee-company is a PSU - It executed a contract of 'Erection, Commissioning & Installation' for M/s IOCL - The activity included designing, engineering, fabrication, erection, testing, painting and commissioning of fixed cum floating roof storage Tank - Duty demand was raised with interest & penalties u/s 76 & 78 of the Finance Act 1994 - Such demands were sustained by the Commr.(A) .

Held - The assessee is liable to pay tax under 'Erection, Commissioning & Installation Services' - The benefit of Notfn No 01/2006 giving abatement of 67% is applicable to the assessee herein - It is also seen that the assessee inadvertently deposited excess of the amount actually received from IOCL & that it also realized some excess amount of tax from M/s IOCL - Moreover, copies of ST-3 returns, challans or annual returns were not filed - Hence the matter warrants remand to the adjudicating authority, so as to consider the assessee's claims afresh: CESTAT (Para 1,5,6)

- Case remanded: KOLKATA CESTAT

 

 

 

 

CENTRAL EXCISE

2019-TIOL-131-CESTAT-BANG

H Ravi Vs CCT

CX - Assessee has purchased the vehicles from Mr. Bolisetty Anuradha and has paid full consideration and has also taken possession of said vehicles - They have also approached the RTO, New Delhi for transfer of said vehicles in their name but the same was rejected on the ground that the assessee being resident of Bangalore and the vehicles are not complied with Bharath Stage-IV Emission norms as per the order of NGT / Supreme Court - The RTO only advised the assessee to approach Bangalore Regional Transport authority for registration - When the respondent refused to release the vehicles, assessee approached the High Court of Karnataka and the High Court directed the assessee to produce affidavit of original owner before the authorities for provisional release of vehicles - But in spite of affidavit of original owner filed by assessee, the respondent did not provisionally release the vehicles simply on the ground that the assessee has not become its owner so far - Further, assessee has produced on record the cash receipts vide which he has made full payment to the owner of the vehicles and has also placed on record the delivery note of the vehicles taking possession of vehicles and produced application whereby he has applied for transfer of vehicles - No reason found for the respondent not to release the said vehicles on provisional basis till the investigation is completed - The trucks seized during the investigation, are directed to be released to assessee on furnishing the security bond of Rs.10 lakhs each for each of the trucks - Assessee is directed not to dispose of said vehicles during the pendency of the case and will produce the said vehicles as and when required by the respondents during pendency of the case: CESTAT

- Appeal disposed of: BANGALORE CESTAT

2019-TIOL-130-CESTAT-KOL

Hindustan Engineering And Industries Ltd Vs CCE

CX - The assessee has two units one of which is situated at Tiljala, where various parts of wagons are being manufactured and from this unit, the parts are cleared to their second unit which is situated at Santragachi - In Unit-2, railway wagons are manufactured and cleared to Indian Railways and others - The dispute is regarding the valuation of goods to be adopted for payment of Central Excise Duty at the time of clearance of goods from Unit-I to Unit-II - Such goods are used by Unit-II, also belonging to assessee for further manufacture of goods - The relevant provisions under went a substantial change with the amendment of Section 4 w.e.f. 01.07.2000 - The dispute covers period both prior to 01.07.2000 as well as the subsequent period - The lower authority has held that valuation adopted by assessee for period prior to 01.07.2000 is incorrect, in as much as while computing the cost of production, no profit element has been added for the reason that the assessee was incurring losses during the relevant period - The re-determination of value and demand for differential duty has been challenged with legal argument that situation is one of revenue neutrality - It is not in dispute that Central Excise Duty paid on goods at the time of clearance from Unit-1 will be available as Modvat credit for the recipient Unit-2 also belonging to assessee - The Larger Bench of Tribunal in case of Jay Yushin Ltd. 2002-TIOL-126-CESTAT-DEL-LB has held that when the goods are cleared from one unit to another belonging the same manufacturer, the situation is one of revenue neutrality, in as much as any differential duty paid by first Unit will be available to second Unit as credit - It has been held that the demand itself is unjustified - Revenue has raised serious objection for allowing the benefit of Revenue neutrality - Revenue neutrality can be considered for only those cases where the clearance is made from one unit to another both belonging to the same manufacturer - Appeal may be allowed on the argument of Revenue neutrality - Impugned order is set aside: CESTAT

- Appeal allowed: KOLKATA CESTAT

2019-TIOL-129-CESTAT-MAD

Cheyyar Cooperative Sugar Mills Ltd Vs Commissioner of GST & Central Excise

CX - The assessee is engaged in manufacture of Sugar and Molasses and were issued SCNs alleging wrongly availed credit for the reasons that they have not maintained separate accounts for common inputs/input services, used for manufacture of exempted products and dutiable products - It was also alleged that credit is not eligible on certain services - It is indeed correct to say that the SCN is silent as to what are the inputs and input services on which the assessee have availed credit for production of Bagasse, Press Mud and Electricity - It is vaguely stated that assessee have availed credit on inputs and input services for production of Bagasse, Press Mud and Electricity - In the annexure to SCN also, there is no specific figure shown regarding credit availed separately on inputs and input services - The assessee have replied stating that they have not availed any credit on inputs/input services for the production of the impugned goods - Even after giving such explanation in reply, the authorities below have not considered the submissions made by assessee in this regard - The Tribunal in case of M/s. Ganga Kishan Sahkari Chini Mills Ltd. had occasion to consider similar issue that assessee has not maintained separate accounts for production of Bagasse and Press Mud - It is pertinent to mention that the demand prior to 01.03.2015 has been dropped by adjudicating authority observing that the requirement to maintain separate accounts would be applicable only to exempted goods prior to such date - That an amendment was brought forth w.e.f. 01.03.2015, wherein even if there is production of non-excisable goods, assessee is required to maintain separate accounts - Therefore, after 01.03.2015, the adjudicating authority has confirmed the demand - Since there is no credit availed on inputs or input services for products of Bagasse, Press Mud or Electricity even after 01.03.2015, the demand cannot sustain - Assessee also argued with regard to the credit disallowed on input services relating to insurance on motor vehicles as well as insurance for transit-in-money - The period involved being prior to 04.04.2011, credit is eligible as these services fall within the category of activities relating to business of manufacture - It is clear that assessee have not availed any credit on inputs/input services upto the stage of production of Bagasse, Press Mud and Electricity - The demand cannot sustain - The impugned orders are set aside: CESTAT

- Appeals partly allowed: CHENNAI CESTAT

 

 

 

 

CUSTOMS

2019-TIOL-125-CESTAT-KOL

CC Vs Praman International

Cus - The assessee has imported certain goods and declared the same as "Bonded Fabric Width 58" - They sought classification of Goods under CTH 5907 00 99 - Department took the view that the goods are not classifiable under Chapter CTH 5907 00 99, as claimed by importer, since the fabric was neither coated nor impregnated - The imported goods were in the form of bonded fabrics made up of two layers- the bottom layer comprising of knitted fabric and the top layer made up of woven fabrics - The two have been bonded together to form the imported goods - The classification claimed by the importer is under Chapter 59 as fabrics which are impregnated or coated - The Commissioner (A) has taken the view that neither of two components can be said to have the essential character of imported goods - Looking at the percentages by weight of knitted as well as woven fabrics, Tribunal agree with the view of Commissioner (A) that neither knitted nor woven can be considered to be the essential character of imported goods - In that case, Rule 3 (c) has to be resorted to whereby classification has to be decided as per the heading occurring last in numerical order among those which equally merit classification - The most appropriate classification would thus be under CTH 6006 32 00 - No infirmity found in the order passed by Commissioner (A), which is sustained: CESTAT

- Appeal rejected: KOLKATA CESTAT

2019-TIOL-124-CESTAT-KOL

S Krishna And Company Vs CC

Cus - The assessee has imported a consignment of jute backed polypropylene carpet from Indonesia - The scrutiny of information received revealed that the invoice value declared before Indonesian Customs was USD 31679 for 9600 Sq. Meter whereas the invoice value declared before Indian Custom was USD 20000 for 10000.4 SQM - Whether the consignment imported by assessee was undervalued - Department has solely relied upon the information received from overseas source i.e. from Ministry of Finance of Republic of Indonesia - There is an information received from the overseas sources which are not tallying with respect to classification of goods and even for the quantity of goods imported by assessee - This discrepancy was never investigated further and the same was made applicable to present and past imported consignment which is contrary to the aforesaid decision of Tribunal in Sony Impex 2006-TIOL-1314-CESTAT-KOL - Having not followed the procedure under Section 14(1) and 14 (1A) read with Customs Valuation Rules by Adjudicating Authority and rejecting the transaction value without the contemporaneous price, the demand confirmed by adjudicating authority in impugned order is not sustainable: CESTAT

- Appeal allowed: KOLKATA CESTAT