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SERVICE TAX
2019-TIOL-739-CESTAT-MAD
Ceeyes Metal Reclamation Pvt Ltd Vs Commissioner of GST & CE
ST - Demand confirmed under Maintenance & Repair Services and under GTA service along with interest and penalty - SCN had invoked the extended period of limitation while raising the demand - order-in-original upheld by Commissioner(A), therefore, appeal before CESTAT - appellant argued that mere non-disclosure of particulars cannot be concluded as willful suppresion in order to invoke extended period; that in para 43 of the o-in-o, adjudicating authority has viewed that there was no malafide on the part of the assessee and that they had availed exemption notification 12/2003-ST under a bonafide belief. Held: When there is a finding arrived at by the adjudicating authority that there was confusion regarding exemption of service tax during the relevant period and that there was no malafide on the part of the appellant, the latter conclusion that the extended period is rightly invokable is highly contradictory - department has not been able to establish any positive act on the part of the appellant to show that there was suppression of facts with intent to evade payment of duty - Bench finds that there are no ingredients in the present case for invocation of extended period, therefore, SCN is time-barred - impugned order is set aside and appeal is allowed with consequential relief: CESTAT [para 5.1, 5.2, 7] -Appeal allowed
: CHENNAI CESTAT
2019-TIOL-738-CESTAT-MUM + Case Story
Kyal Trading Pvt Ltd Vs Commissioner of GST
ST - Admittedly, there is delay in payment of Service Tax and once the duty is admitted, interest cannot be detached from the duty liability - It is to compensate the loss sustained by the Revenue that the interest is imposed - show cause notice and the orders of the authorities below invoking the provision of Section 75 ibid for demanding interest is perfectly in order and is within the framework of law - : CESTAT [para 5, 6]
- Appeal rejected
: MUMBAI CESTAT
2019-TIOL-737-CESTAT-MAD
Sify Technologies Ltd Vs CGST & CE
ST - CENVAT - Input Service - Rule 2(l) of CCR, 2004 - Errors and omission insurance policy is a form of insurance policy which covers the risk on failure to perform or the part of financial loss caused or shortage in the service provided or the products sold - Tribunal in the appellant's own case 2018-TIOL-3738-CESTAT-MAD had analyzed this issue with regard to errors and omission policies and allowed credit - Following the same, disallowance of credit on errors and omission insurance policies is unjustified and requires to be set aside: CESTAT [para 5]
CENVAT - Input Service - Rule 2(l) of CCR, 2004 - Transit insurance policy - Such insurance policy is taken to cover the risk of accident or damage of the goods such as computers, routers etc. which are transported to the premises of the customer - Any input service used for providing output service is eligible for credit in the case of an output service provider, hence disallowance of credit on this policy is unjustified and requires to be set aside: CESTAT [para 5.1]
CENVAT - Input Service - Rule 2(l) of CCR, 2004 - Umbrella fixed asset policy - Appellant has taken this insurance policy to cover the risk such as fire, theft, weather damages of the fixed assets of the appellant as well as those goods that have been installed within the premises of the customer - Routers and such equipment are installed in the premises of the customers for providing output service - These are assets of the company and are owned by the company and only for providing service, it is installed in the customers' premises - Such insurance policy is taken to cover the risk of fixed assets and is eligible for credit - disallowance unjustified - in the appellant's own case, the Commissioner (Appeals) for the earlier period has allowed the credit on this insurance policy: CESTAT [para 5.2]
- Appeal allowed: CHENNAI CESTAT
2019-TIOL-731-CESTAT-HYD
Gmr Hyderabad International Airport Ltd Vs CC, CE & St
ST - The assessee has constructed Rajiv Gandhi International Airport at Shamshabad under "Build Own Operate Transfer" scheme (BOOT) arrangements by an agreement, on entered with the authorities - By the said agreement completion of the international airport they were granted an exclusive right and privilege to carry out development, design, financing, construction, commissioning, maintenance, operation and maintenance of green field international airport so constructed - Assessee during the period and prior authorized to charge user development fee based upon the correspondence with Ministry of Civil Aviation and discharge the same - Subsequently, they were advised that no service tax is required to be paid on user development fee (UDF) - Accordingly, assessee filed the refund claim for the amount discharged by them as service tax during period April, 2008 to December, 2008 - The Revenue Authorities issued a SCN seeking to levy of service tax on UDF charges so collected by assessee and also proposing to reject the refund claim - The issue in short is regarding taxability of an amount collected as user development fees under airport services - The difference of opinion arising in this appeal referred to a 3rd member for resolving the issue as to whether user development fee charged by assessee in the case in hand, is taxable under FA, 1994 under the head of airport services as held by Member (T) or not to be taxed as held by Member (J): CESTAT
- Case deferred: HYDERABAD CESTAT
2019-TIOL-730-CESTAT-DEL
Paramount Communication Ltd Vs CCE
ST - The assessee is a manufacturer of wire & cables having their factory at Bhiwadi, Rajasthan - They have set up another unit at United Kingdom - For this purpose, they required finance in year 2006-2007 and they raised capital by issuing external commercial borrowing and foreign currency convertible bond (FCCB) and by offering share to procure subscribers for Global, Depository Receipt (GDR) - They did not pay any service tax being under the belief that services have been received and consumed outside India - The issue is; whether the part of cause of action, with regard to suo moto re-credit taken by assessee and the SCN issued by Jaipur Commissionerate survives - Neither the transaction is relating to Bhiwadi Unit nor there were any account of said transaction maintained in books of accounts maintained at Bhiwadi factory office - The Audit objection was raised on basis of annual accounts or report, a copy of which was available at Bhiwadi Unit and the said audit objection was raised as per the balance sheet and Director' report - Further, provisions of Central Excise and Service Tax Act & Rules thereunder do not provide for multiplicity of proceedings - The Commissioner has rightly dropped the demand and erred in upholding the part of SCN and also erred in objecting the part of SCN relating to suo moto taking of re-credit by assessee - In this view of matter, order of Commissioner, Jaipur is set aside and the issue does not survive in part - Accordingly, this appeal is allowed for statistical purposes only as the main issue having been held against the assessee by the Division Bench of this Tribunal: CESTAT
- Appeal allowed: DELHI CESTAT
CENTRAL EXCISE 2019-TIOL-542-HC-KOL-CX CCE Vs Bata India Ltd
CX - Whether duty paid inputs were sent to job workers for work to be carried thereon and returned back to the factory; if not, no credit on input duty was allowable and the assessee was required to pay entire duty on that particular item or on those items that were sent to job workers - The Tribunal in impugned order 2018-TIOL-2628-CESTAT-KOL held that the issue was no longer res integra and Commissioner (A) in assesse's own case had set aside the duty demand and reduced the penalty - This order of tribunal or the said finding in the earlier case has not been challenged by revenue in a higher forum - The court do not know how at the appellate stage, more so at the stage of admission of an appeal under Section 35G of CEA, 1944, this Court can upset those findings of fact and declare that a substantial question of law is involved in the matter - The tribunal has correctly followed its earlier decision in pronouncing the impugned judgment: HC
- Appeal dismissed: CALCUTTA HIGH COURT
2019-TIOL-541-HC-ALL-CX
Commissioner Of CGST & CE Vs Wizard Fragrances
CX - Appeal filed by revenue against impugned order of Tribunal in 2017-TIOL-3716-CESTAT-ALL - Ultimately the Tribunal itself has come to the conclusion and recorded findings of fact that no attempt had been made by assessee to remove any goods in clandestine manner and all the goods were found available in factory premises - Such being the findings, Tribunal has held that the order of confiscation, duty and penalty against assessee was unsustainable and therefore the impugned order is set aside - Court is not inclined to interfere in this matter as no substantial questions of law has been raised: HC
- Appeal dismissed: ALLAHABAD HIGH COURT
2019-TIOL-540-HC-AHM-CX
Bhairav Rolling Mills Pvt Ltd Vs CCE
CX - The applicant seeks condonation of delay of 42 days caused in filing the captioned tax appeal against, wherein the order dated 7.3.2018 passed by Tribunal is subject matter of challenge - Considering the averments made in memorandum of application, the court is of the view that the delay caused in filing the tax appeal has been sufficiently explained - The application, therefore, succeeds and is accordingly allowed - The delay caused in filing the tax appeal is hereby condoned: HC
- Application allowed: GUJARAT HIGH COURT
CUSTOMS
2019-TIOL-536-HC-AHM-CUS
Macro Polymers Pvt Ltd Vs UoI
Cus - By this petition under Article 226 of the Constitution of India, the petitioners sought direction or order declaring "pre-import condition" in FTP 2015-20 inserted vide Notfn 33/2015-2020 and such "pre-import condition" inserted vide Clause (xii) in Notfn 18/2015-Cus. vide Notfn 79/2017-Cus. to be ultra-vires Articles 14 and 19(1)(g) of the Constitution of India; and be further pleased to strike down "preimport condition" laid under para 4.14 of FTP 2015- 20 and in Clause (xii) of Notfn 18/2015-Cus - The controversy involved in present case would stand squarely covered by the decision in case of M/s Maxim Tubes Company Pvt. Ltd. and allied matters - Thus, the petition succeeds and is, accordingly, allowed - Consequently, all proceedings initiated for violation of "pre-import condition" would no longer survive: HC
- Petition allowed: GUJARAT HIGH COURT |
