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SERVICE TAX
2019-TIOL-551-CESTAT-DEL
Indian Oil Corporation Vs CGST, CCE
ST - The assessee is a Public Sector Company - They are regularly assessed to central excise and service tax and the accounts are audited by CAG of India - As per SCN, it is alleged that for the year 2010-11, assessee have received rental income of Rs.55, 25, 268/- - On enquiry, assessee informed that they have collected and paid service tax on rental income of Rs. 21, 05, 168/- only - The balance receipt of Rs.34,20,100/- received from IRCTC (PSU), the assessee had neither collected nor paid the service tax - The transaction was duly recorded in books of accounts maintained in ordinary course of business - Further, admitted fact is that assessee had paid the service tax along with interest under intimation to revenue, prior to issuance of SCN - Issue of SCN for the demand along with interest & proposed penalty, is bad under provisions of section 73(3) read with proviso and explanation - The provisions of section 73 are not attracted - Accordingly, the impugned order is set aside so far it has confirmed the demand and the penalty under the sections as mentioned - All the penalties imposed are hereby set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2019-TIOL-550-CESTAT-DEL
Janta Tyre Works Vs CCE
ST - The assessee is engaged in retreading of tyres as a franchise of M/s. MRF Ltd. and the said activity is covered under category of management and maintenance or repair work as defined under Section 65 (105) (zzg) of FA, 1994 - The dispute concerns the availability of benefit of abatement in terms of Notfn 12/2003 - The claim of abatement in terms of Notfn 12/2003 is required to be re-considered in the light of pronouncement of law on the subject by Supreme Court in case of Safety Retreading - 2017-TIOL-28-SC-ST - For re-consideration of matter, the impugned order is set aside and matter is remanded to original authority for re-consideration of the issue in light of the Apex Court decision - The assessee will be at liberty to provide additional submissions establishing their claim - The Revenue's contention that penalty under Section 78 will also be liable is to be re-considered before passing the order in the de-novo proceedings - Matter remanded to the adjudicating authority: CESTAT
- Matter remanded: DELHI CESTAT
CENTRAL EXCISE
2019-TIOL-73-SC-IT-LB + Case Story
Pr.CIT Vs Aarham Softronics
Whether the definitions of 'Initial Assessment Year' used in Ss 80IB and 80IC are materially different - YES: SC Larger Bench
Whether if an enterprise sets up a unit in the State of HP as per Section 80IC(2)(ii), it is entitled to deduction of 100% profits for five AYs commencing with the 'Initial Assessment Year' - YES: SC
- Revenue's appeal dismissed: SUPREME COURT OF INDIA
2019-TIOL-549-CESTAT-KOL
CCE Vs La Opala Rg Ltd
CX - The assessee is engaged in manufacture of Glass and Glassware - The dispute covered the period April, 2003 to March, 2005 - During said period, they cleared the goods manufactured by them by availing the benefit of Notfn 06/2002-CE - The Department observed that assessee was manufacturing the glassware by using mouth-blown process, but were also subjecting such goods to the processes of printing, decoration or ornamentation before clearing the same from their factory - Accordingly, SCN was issued to assessee proposing to deny the benefit of Notfn - It is not in dispute that the glassware manufactured by assessee is through the process of mouth-blowing process - It is also a fact that glassware so produced is further subjected to processes such as printing, decorating or ornamenting before clearing the same from factory - The glassware is classifiable under Chapter 7015 irrespective of whether they are subjected to additional process or not - Sl.No. 166 has extended the benefit of 'Nil' rate of duty to all goods falling under Chapter 70, irrespective of sub-heading of the goods - Since the additional process of printing, decorating or ornamenting does not bring about any change in the classification of goods, the goods manufactured in assessee's factory will be entitled to benefit of Notfn granted under Sl.No. 166 - Consequently, no infirmity found in the Order passed by lower authority, which is sustained: CESTAT
- Appeal rejected: KOLKATA CESTAT
2019-TIOL-548-CESTAT-ALL
Digital Electronics And Telecom Vs CCE
CX - The assessee is engaged in manufacture of Cellular Coin Phone, GSM Terminal & Accessories and EPABX & Spare Parts - Inasmuch as assessee's factory was located in industrial area, Mayapur, Haridwar, they were availing area based exemption Notfn 50/2003-CE which exempted the goods manufactured by them from whole of duty of excise or additional duty of excise - Proceedings were initiated against them by way of issuance of SCN proposing to confirm the demand of NCCD for the period April, 2007 to April, 2010, by invoking the longer period of limitation - Admittedly, assessee was filing requisite returns showing the amount of excise duty or additional excise duty and claimed the exemption of same in terms of Notfn - The fact of non-payment of NCCD was writ clear on said returns, in which case the observations of appellate authority that the assessee never approached the Revenue by seeking clarification on payment of NCCD cannot be appreciated - By applying the ratio of decisions in Chemphar Drugs & Liniments - 2002-TIOL-266-SC-CX, Pushpam Pharmaceuticals Company - 2002-TIOL-235-SC-CX , Nestle India Ltd. - 2009-TIOL-26-SC-CX and Pioneer Scientific Glass Works - 2006-TIOL-50-SC-CX to the instant case, it is noted that inasmuch as entire facts were being placed before the Revenue, by way of filing returns and inasmuch as the Revenue was aware of the fact of non-payment of NCCD, it cannot be said that there was any mala fide suppression or mis-statement on the part of assessee so as to evade payment of duty - Accordingly, extended period was not available to Revenue: CESTAT
- Appeal allowed: ALLAHABAD CESTAT
2019-TIOL-547-CESTAT-HYD
Matrix Laboratories Ltd Vs CC, CE & ST
CX - The issue is regarding liability to pay education cess and secondary & higher education cess on the amount of excise duty determined in terms of provisions of Sec.3(1) of CEA, 1944 to be payable by 100% EOUs on clearances to DTA - This issue was referred to Larger Bench and the Larger Bench in the case of Kumar Arch Tech Pvt Ltd - 2013-TIOL-614-CESTAT-DEL-LB and has recorded it which holds that education cess and secondary & higher education cess cannot be levied third time - Since, both sides agree the issue is covered by the Larger Bench ratio, impugned order is unsustainable and same is set aside: CESTAT
- Appeal allowed: HYDERABAD CESTAT
CUSTOMS
NOTIFICATION/CIRCULAR
cnt13_2019
CBIC notifies Customs exchange rates w.e.f February 22, 2019
cuscir07_2019
Discontinuation of printing of Advance Authorisations/Export Promotion Capital Goods (EPCG) Authorisations on security paper by DGFT for authorisations issued with EDI ports as port of registration
CASE LAWS 2019-TIOL-403-HC-DEL-CUS
Jindal Stainless (Hisar) Ltd Vs UoI
Cus - Anti Dumping Duty - Cold Rolled Coils - In these two petitions, the grievance urged is that the CESTAT, by a common impugned order, rejected the appeals preferred before it under section 9C of the Customs Tariff Act, 1975 [CTA] - the CESTAT, by its impugned order, took note of the rejection of a similar appeal in the case of M/s. Maruti Suzuki India Ltd.
Held: The CESTAT's approach is wholly inconsistent with this Court's order and directions in Manali Petrochemicals Limited - 2017-TIOL-154-HC-DEL-CUS - the Court had on that occasion, in similar circumstances, noted the nature of section 9C of the CTA - the failure of the CESTAT to adjudicate the petitioners appeal is inexplicable - its impugned order is completely at variance with the directions in Manali Petrochemicals - the Court is also cognizant of the fact that the proceedings before the Supreme Court have not in any manner restrained CESTAT from performing its statutory duty of adjudicating on the appeals pending before it - the CESTAT's approach of "washing its hands" of the duty cast upon is, therefore, deprecated in the strongest terms - the impugned order is set aside and the appeals preferred by the petitioners before it are restored to the file of CESTAT - consequently, the CESTAT shall proceed to hear and decide the pending appeals before it in accordance with law - the writ petitions are disposed of in the above terms : HIGH COURT [para 4, 5, 6, 7]
- Writ Petitions disposed of : DELHI HIGH COURT
2019-TIOL-402-HC-AHM-CUS
D Jewel Vs CC
Cus - Applicant seeks release of the confiscated gold bars and diamonds/precious stones/moti (pearls) valued at Rs.2.70 crore and also confiscated gold and studded jewellery valued at Rs.3.20 crore belonging to M/s.Choksi Vachhraj Makanji & Co. on such terms and conditions, as may be deemed fit by the High Court - applicant also seeks stay of recovery of penalties imposed on it and M/s.Choksi Vachhraj Makanji & Co. during the pendency of the tax appeal.
Held: From the impugned order of the Tribunal, it is apparent that the case of Dharmesh Pansuriya - 2017-TIOL-3730-CESTAT-AHM is identical to the case of the appellants - considering the fact that this court has found that a prima facie case has been made out and has admitted the appeal on substantial questions of law, the confiscated goods are required to be released on appropriate terms and conditions - the application succeeds and is, accordingly, allowed to the following extent - by way of interim relief, it is directed that upon paying redemption fine to the extent of 10% of the value of the confiscated goods and penalty to the extent of 1% of the value of the confiscated goods, and furnishing bank guarantees of Rs.50 lakh by each of the applicants, to be kept alive till the final disposal of the appeal, before the Commissioner of Customs, Surat, the authority is directed to release in favour of the applicants all the confiscated goods at the earliest - upon payment of 1% of the value of the confiscated goods, the penalties imposed on the applicants shall remain stayed till the final disposal of the appeals : HIGH COURT [para 7, 8, 10]
- Civil Application allowed : GUJARAT HIGH COURT
2019-TIOL-401-HC-KAR-NDPS
Intelligence Officer Vs Parimalagan Arumugam
Narcotic Drugs and Psychotropic Substances Act, 1985 [Act] - Petition filed by Intelligence Officer, NCB under section 439(2) of Cr.P.C. for cancellation of bail granted by XXXIII Addl. City Civil and Sessions Judge and Special Judge for NDPS, vide order dated 9.1.2017.
Held: On close reading of section 37 of the Act, there is bar to grant bail, if the quantity of the contraband goods is more than a commercial quantity - but, however, there is no absolute bar as such - while passing the impugned order, the trial Court has not assigned any specific reason as contemplated under section 37 of the Act - only by quoting the decision of this Court, the Court below held that the accused petitioner is entitled for bail as he is no more required for investigation - it is not fit and just to cancel the bail and to take the accused into custody - however, as could be seen from the order, the trial Court while giving bail has imposed simple conditions, in that light, if some conditions are imposed to secure the presence of the accused for trial, it is going to meet the ends of justice i.e., the accused shall regularly attend the trial without fail - he shall give his attendance on 1st of every month in between 10.00 a.m. to 7.00 p.m. to the nearest police station where he resides so as to confirm about his residence in the said locality - with above condition, the petition is disposed of : HIGH COURT [para 8, 9, 11]
- Criminal Petition disposed of : KARNATAKA HIGH COURT
2019-TIOL-546-CESTAT-BANG
CC Vs Octel Networks Pvt Ltd
Cus - In terms of Litigation Policy with reference to Board's Instruction F.No.390/Misc./116/2017-JC and since the disputed amount involved in each case is less than Rs.20 lakhs, the appeals are not maintainable: CESTAT
- Appeals dismissed: BANGALORE CESTAT |
