SERVICE TAX

2019-TIOL-725-CESTAT-DEL

Premium Real Estate Developers Vs CST

ST - The assessee is a partnership firm and is in the business of real estate trade - The main objective of partnership firm is to carry on the business of purchase, sale, develop, take and exchange or otherwise, whether for investment or sale in any real estate including lands to carry on the business of builders, contractors, dealers in land, building and any other activity in connection therewith and incidental thereto - It appeared to Revenue that assessee was liable to pay service tax under classification ‘Real Estate Agent Service' under section 65(88) of Finance Act which defines a ‘real estate agent' as a person who is engaged in rendering any service in relation to sale, purchase, leasing and renting, of real estate and includes a real estate consultant - There is no consideration defined and/or provided for alleged service - In absence of any defined consideration for alleged service, there is no contract of service at all, and hence the transaction is not liable to service tax - From the perusal of Memorandum of Understanding (MoU) between the assessee and M/s Sahara India Ltd., it is very obvious that MoU is not only for providing purely service for acquisition of land but involves many other function such as verification of title deeds of the persons from whom the lands are to be acquired and obtaining necessary rights for development of land from the Competent Authority - Since the exact amount of remuneration for providing any service, if any, has not been quantified at the same time since most of the MoU remained to be fully executed and therefore the exact amount of remuneration, which was the difference in amount paid to the seller of land and average price decided in MoU, could not be finalized and therefore taxable value has not reached finality and therefore demanding service tax on the entire amount paid to assessee for acquisition of land is not sustainable in law - The issue relates to interpretation, and there is no malafide on the part of assessee - The transaction is duly recorded in the books of accounts maintained by assessee - Further there is no suppression of information from the revenue - Accordingly, extended period of limitation is not applicable - Consequently, impugned order is set aside: CESTAT

Appeal allowed: DELHI CESTAT

019-TIOL-721-CESTAT-HYD

CCT Vs Imagination Technologies Hyderabad Pvt Ltd

ST - The appellant is engaged in exporting information & technology software solution services - It filed refund claim as per Rule 5 of CCR 2004, seeking refund of input goods & services used in export of services - The appellant subsequently shifted to new premises and then applied for change of address - The new premises fell within the jurisdiction of a different range - The assessee's refund claim was denied on grounds of jurisdiction - On appeal, the Commr.(A) remanded the matter to the lower authorities, for transferring the application to the jurisdictional officer of the new premises - Hence the Department's appeal, claiming that the premises should have been registered at time of exporting service & the new address had not been registered at this stage - Thus the Department claimed that the appellant was not entitled for refund u/r 5 of CCR 2004.

Held - It is not disputed that the appellant was registered with the Excise Department as required u/r 5 of CCR 2004, for claiming refund at the time of export - The premises were shifted and the new premises were yet to be registered - The old premises were registered & the change of address resulting in change in the jurisdiction - Change of jurisdiction per se does not disentitle an appellant from claiming refund u/r 5 of CCR - Hence the O-i-A in question warrants no intervention: CESTAT

- Revenue's appeals dismissed: HYDERABAD CESTAT

Gamuda Wct India Pvt Ltd Vs CCE

ST - The appellant, a Government contractor engaged in construction of National Highways and roads, engaged trucks and availed GTA service for transporting different materials from one place to another - During the relevant period, the appellant availed benefit under Notfn No 32/2004-ST and Notfn No 12/2003-ST - It was served SCNs for two periods, proposing to raise duty demands - The demands were confirmed during adjudication proceedings.

Held - The appellant claimed to have filed certificate from transporters stating that the latter did not avail credit of duty paid on inputs or capital goods used for providing such taxable service - It also claimed to have not availed any benefit under Notfn No 12/2003-ST - A similar issue stands resolved by the High Court in Gujarat in Commr. Of C.Ex, Cus & Service Tax vs. Neral Paper Mills Pvt. Ltd., wherein it was held that exemption is provided by way of Notfn and that the Board could prescribe the procedure for availing such benefit - It was also held that as per the facts therein, it was nowhere alleged or held by the authorities therein that the credit was availed on inputs or capital goods used to provide taxable service or that benefit under Notfn No 12/2003-ST was availed - Hence following such findings, the O-i-O in challenge in the present case warrants being quashed: CESTAT (Para 1,5,6)

- Assessee's appeal allowed: KOLKATA CESTAT

CENTRAL EXCISE

2019-TIOL-719-CESTAT-CHD

Hindustan Coca Cola Beverages Pvt Ltd Vs CCE & ST

CX - The appellant cleared certain inputs during the relevant period - It then reversed credit on such inputs - The Revenue claimed that the appellant was liable to pay duty on the assessable value at the time of the clearance of these inputs - Hence duty demands were raised.

Held - As per mandate of Rule 3(5) of CCR, 2004, the appellant is required to reverse credit availed on inputs if they cleared them as such - As the appellant cleared inputs during the relevant period, it is required to reverse the credit availed on these inputs: CESTAT

- Assessee's appeal allowed: CHANDIGARH CESTAT

2019-TIOL-718-CESTAT-DEL

Krishna Polymers Vs CCE & ST

CX - The assessee is engaged in manufacture of Printed Roll and Pouches - They have received additional consideration from their customers in guise of advance security - During scrutiny of record of assessee, it has been observed that they had shown Rs. 5,07,282/- as miscellaneous income under the sub-heading of other income in their Manufacturing, Trading and Profit & Loss Account for the year ended on 31.03.2006 - A SCN was issued to assessee by invoking extended period - There is no doubt that the case was made out on the basis of examination of balance sheet - The amount in question was duly reflected in audited balance sheet and profit and loss account of assessee - It is not the allegation of Department that assessee was showing different amounts in balance sheet, ledgers and books of accounts in order to avoid payment of tax - The demand for extended period is suitable only when the duty was not paid by reason of fraud or by reason of collusion or willful mis-statement or suppression of facts with intent to evade payment of duty, but the same is not the case here - The entire dealing of assessee are on records and all the payments, have been made through banking channels - The amount in question was duly reflected in audited Balance Sheet and Profit & Loss Account of assessee - Since the balance sheet is a public document and the amount in question was duly reflected in said document therefore, there is no intention to evade duty on the part of assessee and the same is supported by decision of Supreme Court in matter of Cosmic Dye Chemical 2002-TIOL-236-SC-CX-LB and also of Tribunal in matter of Hindalco Industries Ltd. - As the demand is based on the basis of information appearing in balance sheet, suppression of such information with an intention to evade duty cannot be alleged and therefore, the demand raised by the Department is hit by limitation and as a result of which the extended period cannot be invoked - The impugned order is set aside on the ground of limitation only without going into further merits of the matter: CESTAT

- Appeal allowed: DELHI CESTAT

CUSTOMS

2019-TIOL-539-HC-DEL-CUS

Muskan Exim Inc Vs CC

Cus - Petitioner assails order dated 27.9.2018 passed by the Additional Commissioner of Customs principally on the ground that the matter was then pending consideration before the Customs, Central Excise and Service Tax Settlement Commission [Commission] : HELD - In the present case, it is clear that the petitioner's application had been acknowledged by the communication of the Commission dated 29.8.2018 - by virtue of section 127F (2) of the Customs Act, 1962, during the pendency of the application, the adjudication of the SCN by the customs authorities was clearly premature -the said provision denudes the customs authorities of their powers in relation to a matter pending before the Commission and vests jurisdiction in respect of those matters in the Commission itself -the adjudication of SCN in respect of which a settlement application has been made (and allowed to be proceeded with) is not just contrary to the statutory scheme, but also defeats the very purpose of the settlement provisions - the impugned order dated 27.9.2018 passed by the Additional Commissioner of Customs is hereby quashed -it is open to the parties to proceed with the petitioner's pending application before the Commission in accordance with law - the petition is allowed in the aforesaid terms : HIGH COURT [para 7, 8, 11, 12]

- Writ Petition allowed: DELHI HIGH COURT

2019-TIOL-537-HC-MAD-CUS

Sri Balaji Valves Pvt Ltd Vs JDGFT

Foreign Trade (Development and Regulation) Act, 1992 [FTDR Act] - Petitioner seeks directions to the second respondent to pass orders on merits with respect to review applications dated 23.9.2014 filed by the petitioner against the Orders-in-Original dated 4.8.2011 and 1.10.2012 passed by the first respondent HELD - Perusal of section 16 of the FTDR Act and the order passed by this Court in W.P. Nos.316 & 421 of 2013 dated 2.6.2014 would show that the reason stated for not considering the review applications cannot be sustained - the review application filed by the petitioner has to be considered by the second respondent on merits and appropriate orders shall be passed accordingly - writ petition is disposed of by directing the second respondent to pass orders on the review applications dated 23.9.2014 on merits and in accordance with law : HIGH COURT [para 5, 6]

- Writ Petition disposed of: MADRAS HIGH COURT

2019-TIOL-538-HC-MAD-CUS

Point 2 Point Logistics India Pvt Ltd Vs CC

Cus-(i) Whether it is legal and proper for the Appellate Tribunal to confirm substantial penalty after it renders a finding that the appellants were not aware of the export restrictions and further they have not chosen to redeem the goods of value of Rs.51.60 lakhs? (ii) Whether in the facts and circumstances of the case, imposition of a nominal penalty is not justifiable for the technical violation of wrong declaration of the products sought to be exported which will meet the ends of justice? : HELD - Having been satisfied that the appellant had lost the goods and the plea raised by them that they were not aware of the export restrictions or the market value, the Tribunal could have exercised discretion and imposed a minimum penalty - the appellant provided the bills in the name of M/s.Raj Oil Traders and have shipped 250 MTs of Industrial salt chemical grade to Malaysia till date - in reply to the SCN, the appellant had pointed out that they never contested the allegations of the Department about the non-existence of the companies, which are said to have supplied the goods -appellant pointed out that as per the Fertilizer Control Order, 1985, the Test Report by the Customs was not an authenticated one and the test was not conducted properly as per the specification under the said Control Order - considering all these factors and especially when the Tribunal took note of the fact that the appellant has not redeemed the goods which are valued nearly at Rs.52 lakhs, the penalty can be reduced -the appeal is partly allowed and the penalty imposed on the appellant at Rs.7 lakhs is reduced to Rs.2 lakh - except for such modification, the order passed by the Tribunal in other respects is confirmed : HIGH COURT [para11, 12, 13]

- Appeal partly allowed: MADRAS HIGH COURT