I-T - Once Department gets hold of information which has potential of undermining its findings previously made in original assessment, then it has powers to initiate reassessment: HC

I-T - Advance tax or self-assessed tax paid cannot be set off against tax liability arising IDS declaration for lack of specific provision in Scheme: HC

I-T - Only such transactions which involve transfer of trade mark by assignment for a consideration are to be taxed as capital gains u/s 55(2)(a): HC

CST Vs Reliance Infocomm Ltd

ST - The issue at hand pertains to Telephone services - Dhirubhai Ambani Pioneer Offer has neither been provided by the respondent nor is the respondent responsible for the scheme as any remuneration towards the scheme were not received by the respondent - Club membership and club privilege charges is not liable to be included in the taxable service relating to telephone connection service - Hence the Tribunal dismissed the Revenue's appeal.

Held - Delay condoned - Notices be issued to the parties: SC

- Notice issued: SUPREME COURT OF INDIA

2019-TIOL-881-CESTAT-ALL

CC, CE & ST Vs Zep Infratech Ltd

ST - The assessee is providing output services namely "Erection Commissioning & Installation, Construction services in respect of Commercial and industrial buildings and civil structure, WCT and GTA services" - During audit, it was observed that they had short paid service tax on account of wrong availment of abatement of 67% under Notfn 01/2006-ST for construction services in respect of Commercial or industrial buildings and civil structure - The demand was confirmed by adjudicating authority along with interest and penalty - On appeal, Commissioner (A) allowed the party's appeal on issue of limitation - It has been held that there was no suppression of facts and thus extended period could not be invoked in issuing the SCN - No justifiable reason found to interfere in the impugned order - Admittedly the SCN stands issued after the normal period of limitation - The fact of availment of credit as also the exemption Notification was being reflected by assessee in their statutory records and returns, in which case no mala fide can be attributed to them - Otherwise also, assessee had reversed the Cenvat credit so availed, thus making him entitled to benefit of Notfn - Impugned order is upheld: CESTAT

- Appeal rejected : ALLAHABAD CESTAT

2019-TIOL-880-CESTAT-MAD

Auromatrix Hotels Pvt Ltd Vs Commissioner of GST & CE

ST - The assessee is providing consultancy and management services to hotels and resorts - They are registered under category of Management Consultancy Services and Intellectual Property Service - During audit, it was noticed that they did not pay service tax within the prescribed statutory due dates and belated the payment of service tax for period from April 2007 to December 2007 - M/s. SHRIL had entered into an agreement with assessee for operating the various resorts owned by SHRIL - However, both the parties later agreed mutually to terminate the agreement by a final settlement agreement dated 1.3.2006 - From the settlement terms between the parties, it is seen that out of the total consideration to be paid by SHRIL to assessee an amount of Rs.2.50 crores was agreed between the parties to be paid by transferring immovable property situated at Kanyakumari - The department has sought to demand service tax upon this amount of Rs.2.50 crores which is contested by assessee - The assessee have received consideration in the nature of money as well as in the nature of immovable property - They paid up the service tax on consideration received in the form of money - Even if value of immovable property is shown in the books of accounts in terms of money, it will not change the nature of the consideration received - The amendment brought forth w.e.f. 18.4.2006 makes it clear that prior to this date there was no intention to levy service tax on consideration received in the nature other than money - The SCN has relied upon the amended provision of Section 67 which would not be applicable on the date when the settlement took place - In Vistar Construction (P) Ltd. - 2013-TIOL-73-HC-DEL-ST, the High Court of Delhi held that taxable event for service tax was rendition of service and that rate of tax applicable is the one on date on which services were rendered and not the rate on which payments were received - Since the amended Section 67 has come into effect only w.e.f. 18.4.2006, the immovable property which is part of consideration of Settlement Agreement dated 1.3.2006 would not be subject to levy of service tax - For these reasons, the demand of service tax on value of immovable property to the tune of Rs.30,60,000/- with the penalties thereon cannot sustain - As the assessee is not contesting the demand of service tax of Rs.33,53,890/- with interest thereon, no interference is made in respect of this demand - It is a fit case for invoking section 80 to set aside the penalties imposed on this score also - Accordingly, the total penalty of Rs.75 lakhs imposed under section 78 is set aside: CESTAT

- Appeal partly allowed : CHENNAI CESTAT

2019-TIOL-883-CESTAT-BANG

Vajra Rubber Products Pvt Ltd Vs CCT & CE

CX - The assessee is manufacturer and exporter of various moulded rubber and plastic products and availed CENVAT credit of service tax paid by them on commission paid to their foreign commission agent as a service recipient which was sought to be denied by Revenue on the ground that the same does not fall in definition of input service and therefore the assessee is not entitled for CENVAT credit - The issue is no more res integra and has been settled by decisions in Willis Processing Services (India) Pvt. Ltd. - 2017-TIOL-2072-HC-MUM-ST, Ambika Overseas - 2011-TIOL-951-HC-P&H-ST, Carrier Airconditioning & Refrigeration Ltd. - 2015-TIOL-2998-CESTAT-DEL and Birla Corporation Ltd. - 2013-TIOL-2483-CESTAT-DEL - Further, this Tribunal in case of Stanely Seating has held that the assessee is entitled to CENVAT credit on sales commission - Since the issue involved is squarely covered by decision of Tribunal in case of Stanely Seating, the impugned order is not sustainable in law: CESTAT

- Appeal allowed : BANGALORE CESTAT

2019-TIOL-882-CESTAT-CHD

Vee EI Cee Industries Vs CCE & ST

CX - A case has been made out against assessee that they are not doing any manufacturing activity in their factory and just showing the same on papers - The assessee had setup their factory in year 2006 and started their commercial production in July 2006 - They have invested in land, plant and machinery and also installed a DG Set - Raw material namely PVC Scrap, PE scraps was declared by assessee to be used in manufacturing of their final product i.e. Plastic granules - They paid duty in cash and availed self credit thereof, of duty paid in cash - They had also shown expenses on diesel for running of DG set - Receipt of PVC scrap was examined by District Industries Department who verified the manufacturing of finished goods - The assessee has produced copies of sale invoices, GRs, Toll receipts, Weighment slips in the form of evidence and the same were not disputed - The sole case has been made out by Revenue on the basis of statements of Shri Hemraj Takasia, Shri Ramesh Kumar and Shri Jodhraj Sharma the employees of assessee who retracted their statements on the very next day, stating that statements were taken under threat and pressure - Further, these statements were never examined in terms of Section 9D of the Act - Therefore, in view of Tribunal in case of Ambika International and Jindal Drugs Pvt. Limited - 2016-TIOL-1230-HC-P&H-CX, without following the procedure of Section 9D of the Act, the said statements are not relaibale - In that circumstance, it cannot be alleged that assessee was not doing manufacturing activity - The adjudicating authority has also held that as the goods manufactured by assessee were exempt from payment of duty in terms of Notfn 4/2006-CE, in that circumstance, assessee was not required to pay duty - Admittedly, it is taken on record that assessee was not required to pay duty and whatever amount has been paid by assessee was not duty - If the said amount is not a duty, then the provisions of Section 11A of the Act are not applicable to the facts of this case as the said provisions are invokable only in case of non-payment of duty, short payment of duty or erroneously refund of duty - But, in this case no duty is involve, therefore provisions of Section 11A of the Act are not invokable - Therefore, the amount already refunded to assessee is not recoverable under Section 11A of CEA, 1944 - No merits found in impugned order and the same is set-aside: CESTAT

- Appeals allowed : CHANDIGARH CESTAT

2019-TIOL-884-CESTAT-MAD

CC Vs Trishiv Logistics Pvt Ltd

Cus - Revenue is in appeal against impugned order imposing penalty and ordering for forfeiture of security deposit on assessee - The assessee draws attention to Regulation 21 of CBLR 2013 whereby only a Customs Broker aggrieved by any order of Commissioner of Customs under said Regulations can file appeal to the CESTAT under Section 129A of Customs Act, 1962 - It is submitted that even in new CBLR 2018, the provision for appeal under Regulation 19 therein is provided only for Card Holder - In the circumstances, there is no provision for appeal to be filed by Revenue in respect of any order passed under CBLR 2013 - In consequence, the Tribunal has no powers to hear the appeal - Revenue submits that notwithstanding the provisions of Regulation 21 of CBLR 2013, under Section 129D of Customs Act, 1962 the Committee of Chief Commissioners are fully empowered to review an order or decision for filing an appeal before the Appellate Tribunal - Matter reserved for orders - Both sides to note that in case the assessee fails to submit copies of case law relied upon and/or the revenue fails to submit the report on said case laws, before 18.03.2019, the appeal will be taken up for finalisation and orders without any further reference to either side: CESTAT

- Appeal disposed of : CHENNAI CESTAT