SERVICE TAX
2019-TIOL-65-SC-ST
UoI Vs Makemytrip India Pvt Ltd
ST - Revenue cannot bypass Section 73A of the Finance Act, 1994 before going ahead with arrest u/s 90, 91 of FA, 1994 - Conclusion by Delhi High Court concurred - no reason to deviate from the same - Revenue appeals dismissed: Supreme Court
- Appeals dismissed: SUPREME COURT OF INDIA
2019-TIOL-354-HC-KOL-CX
CST Vs Ixia Technologies Pvt Ltd
CX - The assessee-company raised the issue regarding eligibility of DGCEI officer to issue SCN - On appeal, the Tribunal remanded the matter to the original adjudicating authority, with directions to decide the issue as and when the issue is resolved by the Apex Court, pending before it in Mangli Impex Vs Union of India - Hence the Revenue's appeal contesting such findings.
Held - It is seen that a matter may be pending before a superior court, considering that it takes some time for an appeal to be disposed of - However, this does not imply that the lower court becomes functionless if an identical matter is placed before it - Now, if the judgment of the superior court is awaited within a short time frame, it is prudent to wait for it - But if the pending matter shows no signs of being settled in the near future, the lower court is obliged to apply the law as applicable on the day on which the matter is being heard - Moreover, in the present case, there is no stay order restraining the court from disposing of the matter - Thus the Tribunal did not follow the proper procedure by remanding the matter - Hence the matter is remitted back to the Tribunal, to be disposed off within 3 months period commencing from receipt of this order: HC
- Case remanded/ In favor of Revenue: CALCUTTA HIGH COURT
2019-TIOL-353-HC-JHARKHAND-ST
Lodunlod Enterprises Vs UoI
ST - The assessee-company was served SCNs for the relevant periods, which culminated into a duty demand being raised - Such demands arose on account of difference in opinion over the nature of the assessee's activities - While the assessee sought to treat its activities as Manpower Recruitment & Supply Agency service, the Department treated them as Cargo Handling Services - On appeal, the Tribunal directed that the assessee pre-deposit 10% of the duty demanded - The assessee drew attention to a notice which was served to another company, to withhold an amount equivalent to the duty demanded with interest & penalty, from the amount which such firm was due to pay to the assessee - The assessee claimed that such notice was in effect a garnishee notice & thus filed the present writ, seeking to restrain the Department from recovering the pre-deposit amount.
Held - It is seen that the assessee has already made the pre-deposit - This satisfies one of the grounds for dismissal of appeal - Moreover, an interlocutory application is pending disposal, seeking revival of the appeal - Thus, the Department is directed to not act upon the garnishee notice till the assessee's application is disposed off by the Tribunal - The operation of the notice is stayed up to March 11, 2019 & the Tribunal is meanwhile directed to dispose the assessee's application at the earliest - Matter be listed again on March 07, 2019: HC (Para 3,6)
- Case deferred: JHARKHAND HIGH COURT
2019-TIOL-352-HC-AHM-ST
Nirma Ltd Vs CST
ST - Upon audit of records for the relevant period, the Department noticed that the assessee availed Cenvat credit, for which it was not entitled - Hence the Department issued SCN invoking extended period of limitation and raising duty demand with interest, for recovery of such credit - Penalties were imposed too - On appeal, the Tribunal sustained such demands - Hence the assessee's appeal.
Held - The assessee claimed that the adjudicating authority acknowledged that the assessee mentioned details of service tax payable as well as aggregate of credit availed and utilized in their ST-3 returns - It is also stated that the adjudicating authority could have called for such details when needed - Thus, the assessee claimed that it could not be charged with having suppressed any facts - The Tribunal dismissed the assessee's appeal on grounds that the assessee did not declare service-wise credit in the ST-3 returns - The assessee claimed that Form ST-3 u/s 70 of the Finance Act did not envisage individual service wise credit details to be filled in - In light of such contentions, the assessee's appeal is admitted on the issues as to whether the Tribunal was justified in upholding the demand and that if such credit could be denied to the assessee: HC
Notice issued: GUJARAT HIGH COURT
2019-TIOL-497-CESTAT-ALL
Anuradha Sharma Vs CC, GST & CE
ST - The demand of Service Tax stand confirmed against assessee under category of "Renting of Immovable Property" - As per investigations made by Revenue, it was found that assessee, who is an owner of properties at Mumbai as also at Agra had rented the same to tenants under agreement and was receiving the rent on monthly basis from them - The assessee was neither registered with Service Tax Department nor was discharging its obligation under the "Renting of Immovable Property", by paying the appropriate service tax - They have raised only two grounds before Original Adjudicating Authority i.e., one relatable to threshold exemption and the other relatable to premises lying vacant during a particular period - Both said issues stand accepted by Adjudicating Authority - It is not the assessee's case that they have not provided services during period in question and the only dispute is to value of the same - Whereas assessee have contended that receipts reflected in their bank accounts should be considered as value of services, the Revenue has gone by the terms of agreement entered into between the assessee and their tenants as also by the value reflected in Form 26 AS - No infirmity found in impugned orders confirming the differential duty - However, as regards penalty which stands imposed under Section 78 of the Finance Act, the taxability under category of "Renting of Immovable Property" was under dispute and subject matter of litigation before various Courts - In such a scenario, non-payment of tax by assessee cannot be held on account of any mala fide, thus requiring any invocation of Penal provisions against assessee - Accordingly, no justification found for imposition of penalty, same is set aside: CESTAT
- Appeal disposed of: ALLAHABAD CESTAT
2019-TIOL-489-CESTAT-MAD
CGST & CE Vs Anantha Inn Pvt Ltd
ST - During the period of dispute, proceedings were initiated against the assessee-company for non-payment of service tax under Health and Fitness Services and Mandap Keeper Services - Duty demands were raised with interest & penalties - Later, the Commr.(A) dropped the demand under Health & Fitness Service on grounds that therapeutic massage was out of the service tax net - Besides, the demand under Mandap Keeper service was held to be time-barred.
Held: The Commr.(A) relied upon Circular dated 16.08.2012 which has clarified that therapeutic massage does not come within the ambit of taxable service - It further clarifies that therapeutic massage is one provided by qualified professionals under medical supervision - In this case, the masseurs are not trained professionals & so the assessee deserves benefit of doubt - Regarding mandap keeper service, it is seen that the demand is raised for a period which precedes the date when the assessee obtained registration under mandap keeper service - Hence the demand is time-barred & Department's appeal lacks merit: CESTAT (Para 1,1.2,5.1-6)
- Revenue's appeal dismissed: CHENNAI CESTAT
CENTRAL EXCISE
2019-TIOL-496-CESTAT-ALL
K K Industries Vs Commissioner of Central GST
CX - The assessee-company manufactured Usha brand sewing machines during the relevant period and availed exemption under Notfn No 01/2011-CE & so paid duty @ 2% - The Revenue opined that the assessee was ineligible for benefit under such notification because the Sewing machine head had fly wheel with a groove, which could facilitate attachment of electric motor to the Sewing machine heads - Demand for differential amount of duty was raised.
Held: Considering the relevant entries, it is seen that if Sewing Machine are cleared in such a manner that they are not operated with electric motors then such Sewing Machines are cleared from the factory of manufacturer, then they are eligible for the benefit of Notification No.1/2011-CE - It is undisputed that the assessee was manufacturing only Sewing machine heads which were cleared without any electrical control or electric motor - Hence the assessee is eligible for the benefit under Notfn No 01/2011-CE: CESTAT (Para 2,5)
- Assessee's appeal allowed: ALLAHABAD CESTAT
2019-TIOL-495-CESTAT-KOL
Kalyan Confectionery Pvt Ltd Vs CCE
CX - The assessee-company, engaged in manufacturing Sugar confectionaries, cleared goods in the relevant period, after valuation as per Section 4A of the CEA 1944 - It availed abatement as per Notfn No 13/2002-CE - After such period, the assessee began determining and paying duty u/s 4 of the Act - Upon audit, the Department noted that the assessee collected excess amount of duty from its customers owing to determination u/s 4 of the Act - On being pointed out, the assessee paid duty by debiting amount from RG-23A Part II - Later, SCN was issued proposing to recover duty demand with interest and penalty u/s 11AC r/w Rule 25 of the CER 1944 - Such demands were confirmed by the Commr.(A).
Held: It is seen in the present case that no adjudication proceedings u/s 11A of the CEA or any other provisions had been conducted - Further, perusal of provisions of Section 11AB and Section 11AC make it clear that they can be invoked only in cases where determination regarding evasion of payment of duty took place u/s 11A - Therefore the order passed u/s 11AC & 11AB cannot be sustained - Penalty u/s 11 AC cannot be imposed without any proceedings on a charge of duty evasion - The demands merit being quashed: CESTAT
- Assessee's appeal allowed: KOLKATA CESTAT
CUSTOMS
NOTIFICATION
cnt11_2019
Govt notifies Customs exchange rate for South African Rand currency
cnt10_2019
Govt notifies tariff rate for Palm Oil, Palmolein, Soya Bean oil, Brass scrap, Poppy Seeds, Gold, Silver & Areca Nuts
CASE LAW
2019-TIOL-494-CESTAT-DEL
Ankit Mehta Vs CGST & CCE
Cus - The assessee failed to pre-deposit 7.5% of the duty demanded as per Section 129E of the Customs Act, despite being given ample opportunities & adjournments - This shows the assessee's lack of interest in pursuing the appeal - Hence the same merits being dismissed: CESTAT
- Assessee's appeal dismissed: DELHI CESTAT
