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SERVICE TAX
2019-TIOL-963-CESTAT-DEL Krishna Developers Vs CCE
ST - The assessee is engaged in providing "Construction of residential Complex" services - They have constructed multi storied residential complex named "Gulmarg Valley" and were receiving booking deposits, instalments and final payments against allocation of flats under construction - It was noticed that assessee did not take into consideration the quantum of sundry debtors for assessment of Service Tax in respective ST-3 returns - Apart from this, the book adjustment of certain payments against sale of flat by Noticee was not taken into consideration for calculation of service tax - A SCN was served upon assessee demanding service tax with interest at the appropriate rate and the proportionate penalties - There is no dispute apparently that few of customers cancelled their booking after giving advance amount with the request to refund the same - The adjudicating authorities are of opinion that there is no evidence about the said refund - Also that the amount of credit to be taken was supposed to be shown separately in return form instead of adjusting the same with gross amount of taxable service - But not only from the documents of assessee but from department's own SCN, it is clear that whatever was the alleged difference between consolidated gross amount received and taxable receipts declared by assessee in their ST-3 returns for year 2010-11 to 2012-13 was an account of refunds which were directly deducted from the gross value - The payment challans are on record i.e. the challan for payment of Rs.1,28,432/- and challan dated 23.02.2013 for payment of Rs.1,57,492/- - Not only this the original adjudicating authority has acknowledged the year-wise amount of refund and amount of tax on the refund amount - Thus, there is enough evidence on record to prove compliance of said Rule 6 (3) on the part of assessee - Now coming to the second reason for rejecting the appeal i.e. the amount of credit has not been separately shown in Return Form - Since the documents on record prove that these is no revenue loss, the alleged act is nothing more than the procedural lapse - The law has been settled that Lapses in technical procedures are condonable in Mangalore Chemicals & Fertilizers Ltd. - 2002-TIOL-234-SC-CX - It is not the case of department that assessee has availed credit in excess of requisite proportion - Admittedly tax stands paid - Resultantly, the procedural lapse is mere technical for no substantial loss to the department - Accordingly, it is held that substantial benefit cannot be denied on account of technical procedural lapses: CESTAT
- Appeal allowed: DELHI CESTAT
CENTRAL EXCISE
2019-TIOL-962-CESTAT-DEL
Arora Tobacco Pvt Ltd Vs CCE & ST
CX - Assessee is operating under Chewing Tobacco & Unmanufactured Tobacco Packing Machines Rules, 2010 (CTD Rules) and paying duty on its products based on the periodic orders passed by Deputy Commissioner determining the annual capacity of production of assessee under Rule 6(6) of CTD Rules - The issue involved is whether in respect of such machines which have operated for a part of the month, the duty would be payable only on pro-rata basis for the number of days in the month during which the machine had functioned or would be payable for the whole month without giving abatement for the period for which the machine was sealed or out of operation - As regards the procedure for claiming abatement, the impugned order categorically says that suo moto abatement claimed by assessee is not legally correct, and further, assessee was required to file separate abatement claims - It is a settled legal position that suo moto abatement claim under Rule 10 of the CTD Rules is legally correct - Demand for April 2012 to September 2012 is not sustainable as assessee had correctly paid duty on pro-rata basis under 4th proviso to Rule 9 of the CTD Rules - It is submitted that assessee was legally correct in paying duty on proportionate basis in terms of 4th proviso to Rule 9 and therefore, duty demand confirmed under Rule 7 read with Rule 8 is not legally sustainable - Moreover, in assessee's own case, CESTAT in - 2018-TIOL-1918-CESTAT-DEL allowed the refund/ abatement to the assessee in terms of 4th proviso to Rule 9 of CTD Rules - When demand is not sustainable, penalty is not imposable and interest is not recoverable - Further, it is submitted that the issue involved in the instant case relates to interpretation of various provisions of CTD Rules framed under Section 3A of the Excise Act - Thus, no penalty is imposable where question relates to interpretation of legal provisions - The ruling in case of Shiv Shakti Agrifood Pvt. Ltd. - 2018-TIOL-1848-CESTAT-DEL is per incuriam as the said ruling has been passed without taking notice of provisions of Rule 9 Fourth Proviso and also the earlier precedent judgments of this Tribunal - So far as the issue is concerned, Gujrat High Court in case of Thakkar Tobacco products Pvt. Ltd - 2015-TIOL-2545-HC-AHM-CX held in favour of assessee and the said ruling has been accepted by Revenue as is evident from Circular No. 1063/2/2018-CX - Both the questions/ issues held in favour of assessee and against the Revenue: CESTAT
- Appeal allowed: DELHI CESTAT
2019-TIOL-961-CESTAT-HYD
Binjrajka Steel Tubes Vs CC, CE & ST
CX - The assessee manufactures hot rolled steel strips and tubes and clears the same on payment of duty - As regards to issue; whether the amount paid by assessee as duty at the insistence of department can be considered as payment under duress, there was no evidence to the effect the assessee was coerced into paying the amounts - The amounts were paid voluntarily and not under coercion - The second issue is whether the amount so paid can be considered as payment under Sec.11A(2B) - The assessee paid amount as determined by Central Excise Officer voluntarily and has informed the department - However, they have not paid any interest - The period in question extends beyond the normal period of one year and hence demand could have been issued under Sec.11A without invoking extended period of limitation - Further, they have not paid any interest on the amount paid - Therefore, all conditions of Sec.11A(2B) have not been fulfilled and therefore, the payment cannot be said to be payment under Sec.11A(2B) - If the payment is not under Sec.11A(2B) the demand of interest under Sec.11AB as per the explanation (2) to Sec.11A(2B) does not apply - Thus, no interest is chargeable from the assessee - The first appellate authority has adequately considered the demand for refund on merits and has held against the assessee and no reason found to interfere with such a reasoned order: CESTAT
- Appeals partly allowed: HYDERABAD CESTAT
CUSTOMS
PUBLIC NOTICE
dgft19pn002
Amendment in Appendix 2-K of Foreign Trade Policy, 2015-2020 dgft19pn001
Amendments in Para 2.16 of Hand Book of Procedures of FTP 2015-20 - Regarding CASE LAW
2019-TIOL-960-CESTAT-CHD
Bectors Food Specialities Ltd Vs CC
Cus - The assessee is in appeal against impugned order wherein their exports to shipping bills under Duty Drawback Scheme were rejected for conversion into under Duty Free Import Authorisation (DFIA) Scheme - The assessee is manufacture of Biscuits and Cookies and used to export their goods under DFIA Scheme as well as under Duty Drawback Scheme - Admittedly, at the time of export, assessee was debarred to file their shipping bills under DFIA Scheme in terms of Paragraph 4 of Notfn 31/2013 - The said paragraph 4 of notification has been declared ultra virus by Punjab and Haryana in case of M/s Pushpanjali Floriculture Pvt. Ltd. - 2016-TIOL-1375-HC-P&H-CUS - The effect of decision of Punjab and Haryana High Court entitles assessee to file their shipping bills under DFIA Scheme which was not entitled to assessee in terms of said notfn at the time of export - Therefore, the claim for conversion of shipping bills under Duty Drawback Scheme to DFIA Scheme are within time and cannot be held barred by limitation - The conditions for export under DFIA Scheme as well as Duty Drawback Scheme are same, therefore, assessee has satisfied the decision of Madras High Court in case of Suzlon Energy Ltd. 2013-TIOL-1195-HC-MAD-CUS and same view has been taken by Tribunal in case of Parle Products Pvt. Ltd. - 2017-TIOL-1626-CESTAT-MUM - Assessee is entitled for conversion of shipping bills from Duty Drawback Scheme to DFIA Scheme subject to reversal of benefit taken under Duty Drawback Scheme is paid by assessee alongwith interest: CESTAT
- Appeal disposed of: CHANDIGARH CESTAT |
By Sumit Dutt Majumder 
