SERVICE TAX
2019-TIOL-385-HC-ALL-ST
CC, CE & ST Vs Prithvee Propmart Pvt Ltd
ST - The assessee-company is registered for providing Construction services, in respect of commercial or industrial buildings and civil structure, construction of residential complex classifiable u/s 65(105)(zzq) & section 65 (105)(zzzh) respectively of the Finance Act, 1994 - During the relevant period, the Revenue issued SCNs alleging short-payment of duty - It was also alleged that the assessee did not obtain registration for Real Estate Agent service or pay tax under this category - On adjudication, duty demands were raised with equivalent penalty u/s 76, 77 & 78 of the Finance Act 1994 - On appeal, the Tribunal found there to be no short-payment of duty and so quashed the penalty imposed - It also remanded the matter for re-conciliation of tax paid and verification of amount to be admissible by the Tribunal, as well as for verification of challan allowing credit which was not allowed earlier - Hence the Revenue's appeal.
Held - The Tribunal in its order, recorded that the assessee filed its returns paid the taxes due - It also recorded that in case of delayed deposit of tax, interest has also been paid - In view of Master Circular No. 97/8/2007 dated 23.08.2007 read with Circular/Instruction No. F-137/167/2006-CX.4 dated 03.10.2007, once the taxes have been paid along with interest, the entire proceedings under the Finance Act, 1994 stand concluded - Hence the Revenue's appeal lacks merit: HC
- Revenue's appeal dismissed : ALLAHABAD HIGH COURT
2019-TIOL-524-CESTAT-MUM + Case Story
Idea Cellular Ltd Vs CST
ST - Negative list introduced w.e.f 01.07.2012 - Section 65B(44) of Finance Act, 1994 - Mobile Telephone services rendered to employees - service can only be between two separate persons and a bill raised on oneself does not meet that requirement - no service and no taxability: CESTAT [para 8]
ST - Section 73(1A) of Finance Act, 1994 - facts and circumstances of the transactions themselves are vastly dissimilar - section 73(1A) of Finance Act, 1994 is not invokable and the deficiency in invoking section 73(1) of Finance Act, 1994 is irreparable - impugned order set aside and appeal allowed: CESTAT [para 9]
- Appeal allowed: MUMBAI CESTAT
2019-TIOL-519-CESTAT-MAD
Eid Parry India Ltd Vs GST & CE
ST - The dispute relates to the period July, 2014 to February, 2016 - By this appeal, the assessee is challenging the penalty - Much before the issuance of SCN, the assessee has paid taxes along with applicable interest and there is no dispute on this - In the orders of lower authorities, Revenue has but for reiterating the wordings in the Section itself, has not gone beyond that to put on record any reasons on the alleged fraud or suppression - In the event, impugned penalty cannot sustain for which reason same is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2019-TIOL-518-CESTAT-MAD
CST Vs Hathway Cable And Datacom Pvt Ltd
ST - CENVAT - Assessee provides Cable Operator services - Head Office (HO) of the assessee imported Head End and Distribution Equipments such as cable, nodes, amplifiers, splitters, set top boxes etc. - Credit of CVD was transferred by the head office, registered as Input Service Distributor (ISD), to the respondent assessee through Material Receipt Order (M.R.O) - SCN dated 30.09.2008 issued for recovery of credit for the period 2004-05 and April 2007 on the ground that it is violative of Rule 2(m) read with Rules 7, 9 of CCR, 2004; that an ISD can distribute only service tax paid on ‘Input Service'; that the MRO is not a prescribed document as per Rule 9 of CCR, 2004 - Service Tax also demanded for the period September 2003 to January 2008 on rental charges received from customers in respect of Set Top Boxes - Demands confirmed along with interest and penalty - Commissioner(A) held that demand is hit by limitation and only the demand from 01.04.2007 survives; penalty u/s 78 of FA, 1994 set aside - Department in appeal before CESTAT.
Held: Distribution of capital goods credit by the head office prior to introduction of Rule 7(a) of the CCR 2004, or, for that matter, the transfer of credit availed on the basis of a M.R.O which is not listed as an acceptable document for the purpose of Rule 9 of the CCR cannot be disallowed only on the basis of such procedural infractions - No infirmity in the conclusion of Lower Appellate Authority (LAA) that alleging suppression of facts on an appellant who is filing returns and is paying service tax regularly is a weak argument - LAA has correctly held that the demands upto 1.4.2007 is hit by limitation - Portion of order setting aside demand in respect of credit availed on capital goods distributed by head office, both on merit as well as limitation, does not call for any interference - Revenue appeal rejected: CESTAT [para 5.2, 5.3, 6]
- Appeal rejected: CHENNAI CESTAT
CENTRAL EXCISE
2019-TIOL-66-SC-CX + Case Story
ACCE Vs Nova Industries Pvt Ltd
CX - Imposition of exemplary costs by High Court on Assistant Commissioner on the ground that frivolous litigation was initiated; that acts of the Assistant Commissioner was not bonafide and amounts to harassment of genuine taxpayers by taking advantage of his official position; that respondents were un-necessarily made to suffer huge expenses towards legal fee and other miscellaneous expenses - SLP to Supreme Court.
Held: Permission granted to petitioner to file additional documents - in the meantime, order of the High Court insofar as imposition of cost of Rupees Two lakhs is concerned is stayed - Appeal to be tagged with Civil Appeal no. D. No. 23209 of 2017 - 2017-TIOL-340-SC-CX : Supreme Court
-Stay ordered : SUPREME COURT OF INDIA
2019-TIOL-383-HC-P&H-CX + Case Story
ACCE Vs Nova Industries (P) Ltd (Dated: November 30, 2018)
CX - Application seeking Condonation of delay in filing revision application rejected by Revisional Court - petition before High Court u/s 482 of CrPC.
Held: Costs on officer - Frivolous litigation - Demand raised by the petitioner Assistant Commissioner had already been dropped/cancelled by the Tribunal, therefore, the petitioner ought not to have filed the instant petition - Despite knowledge of above said fact, filing of instant petition by the petitioner, his mala fide action with some ulterior motive and extraneous consideration, best known to him, amounts to grave harassment to the innocent tax payers - Filing of the petition amounts to gross abuse of the process of law inasmuch as after cancellation of demand raised by him from the respondent, the petition was not maintainable - story put forth (being the cause of delay) by the petitioner seems to be completely false and concocted one just to hide his negligence of not filing revision within the period of limitation - acts of the petitioner being not bona fide are liable to be condemned - Petitioner warned to be careful in future with advice not to harass genuine taxpayers by taking advantage of his official position - it is the need of hour that the official machinery should sensitise itself and may think thousand times before adopting any legal course against any citizen of this country, which un-necessarily made him to suffer huge expenses towards legal fee and other miscellaneous expenses - Petition dismissed with exemplary costs of Rs.2,00,000/- to be recovered from the erring officer from his own pocket - copy of order to be sent to Secretary, Ministry of Finance, Department of Revenue and Chairman, CBIC for recovery of costs from the erring officer and compliance to be reported within two months: High Court
- Petition dismissed : PUNJAB & HARYANA HIGH COURT
2019-TIOL-517-CESTAT-MAD
Indian Oil Corporation Ltd Vs Commissioner of GST & CE
CX - Refund - Revenue has time and again changed its stand without being consistent in each stage, just to deny refund nor has the Revenue justified issuance of a second Show Cause Notice when what was required was to give effect to direction of Commissioner (Appeals) - Appellant's refund application having not been specifically found to be wrong and the Revenue having accepted the directions of the Commissioner (Appeals) contained in Order-in-Appeal dated 22.09.2016, without challenging the same, cannot be found to go beyond the directions therein - rejection of refund on any other ground is unsustainable being contrary to law - impugned Order set aside and appeal allowed with consequential benefits: CESTAT [para 7]
- Appeal allowed: CHENNAI CESTAT
2019-TIOL-516-CESTAT-HYD
Madras Cements Ltd Vs CC, CE & ST
CX - Intermediate products viz. clinkers is used in the manufacture of cement cleared to SEZ units without payment of Central Excise duty - whether benefit of exemption under Notification No. 67/95-CE is available to clinkers - demand is on the ground that clearances to SEZ is not export, hence duty is to be paid on clinkers - appeal to CESTAT.
Held: On identical issue, in respect of the very same appellant, for the earlier period, in an appeal filed by Revenue, by Final Order No. 43174/2017 dated 18.12.2017, Tribunal has rejected the Revenue's appeal and upheld the contention of the assessee - Tribunal had in that case held that the issue stands covered by the decision in Ultratech Cement Ltd. 2015-TIOL-2110-CESTAT-MAD where it is concluded that the goods supplied to the SEZ units/developers are neither chargeable to nil rate of duty nor the goods are exempted from payment of duty by any Exemption Notification issued under Rule 5A - no reason to deviate from the view already taken - Assessee appeal allowed: CESTAT [para 4]
- Appeal allowed: HYDERABAD CESTAT
CUSTOMS
DGFT PUBLICE NOTICE
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Export Policy of Red Sanders wood exclusively sourced from cultivation origin obtained from private land (including Pattaland)-Procedure to obtain export license
DGFT NOTIFICATION
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Export Policy of Red Sanders wood exclusively sourced from cultivation origin obtained from private land (including Pattaland)
CASE LAWS
2019-TIOL-515-CESTAT-BANG Geneva Industries Ltd Vs CCT
Cus - The assessee was allowed to import capital goods at concessional rate of duty with a condition to export under EXIM policy with certain conditions - It is a fact that assessee has failed to fulfill export obligation and therefore, ADGFT proceeded against the assessee and passed the order demanding duty foregone and also imposed penalty - For the same offence of not fulfilling the export obligation, the customs department has also initiated proceedings and confirmed the demand and imposed the penalties - The ADGFT has taken care of interest of revenue and initiating of proceedings by customs department is not warranted in this case - Further, demanding the duty foregone and also imposing the penalties by customs department in spite of the fact that for the same offence, the ADGFT has already passed the order dated 7.11.2016 amounts to double jeopardy which is not permissible in law - The assessee has also relied upon the decision in case of Sarala Performance Fibers - 2010-TIOL-408-CESTAT-AHM wherein it has been observed that Foreign Trade Policy, Central Excise Law and Customs Law and Notification thereon forms an integrated scheme of indirect taxation, proceedings concluded by DGFT may be considered and present proceedings to be dropped - The impugned order demanding duty and also imposing penalty for non-fulfillment of export obligation amounts to double jeopardy and not legally sustainable and therefore, same is set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT
