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SERVICE TAX
2019-TIOL-145-SC-ST
Eih Ltd Vs CST
ST - The assessee is registered for providing Aircraft operator Services - The, Department noted that assessee supplied Aircraft/ Helicopter service to different service receivers as per the agreement entered into - It was alleged that they were providing services under category of supply of tangible goods, for which they neither took any Service Tax Registration nor did they paid any service tax on the said activity - The Tribunal held that the services will be rightly classifiable under the category of "Supply to Tangible Goods Service" - Regarding limitation, it is apparent from SCN that a demand for the period w.e.f. May, 2008 to May, 2010 has been raised - While issuing the SCN, the Department has invoked the longer time limit as mentioned in proviso to Section 73 of the Act - Accordingly, the demand falling beyond one year period preceding SCN is unsustainable and is set aside - The order under challenge was modified confining the demand for a period of one year only - Hence the assessee's appeal.
Held - Delay condoned - Notices be issued to parties - The Tribunal's order is stayed until further orders: SC
- Notice issued: SUPREME COURT OF INDIA
2019-TIOL-144-SC-ST
Craft World Vs JCST
ST - The assessee's appeal was dismissed for not removing office objections in filing of appeal - Another ground was the assessee's non-appearance despite service of notice - On appeal, the High Court noted that the judgments relied on by assessee pertained to Rule 20 of CESTAT Procedure Rules 1982 which requires the Tribunal decide the appeal on merits after hearing the parties - It noted that such requirement was inapplicable in cases of dismissal of appeal for non-compliance with Rule 11(2) of the CESTAT Procedure Rules - Thus the High Court dismissed the assessee's appeal as being non-maintainable.
Held - Delay condoned - The assessee's SLP is dismissed as the High Court's order does not warrant any interference: SC
- Assessee's SLP dismissed: SUPREME COURT OF INDIA
2019-TIOL-994-CESTAT-MUM
Tushmaan Constructions Pvt Ltd Vs CCE, C & ST
ST -Demand of service tax has been made under the head of 'Commercial of Industrial Construction Service' for the services provided to Agriculture Produce Market Committee, Ahmednagar - Issue has been squarely covered in the Tribunal decision in A.B.Projects Pvt. Ltd. - 2017-TIOL-3031-CESTAT-MUM wherein it is held that APMC is constituted for charitable purposes; that the activities of APMC are not commercial in nature, hence the contracts entered by appellant are not covered under the purview of CICS - impugned order set aside and appeal is allowed: CESTAT [para 4]
- Appeal allowed: MUMBAI CESTAT
CENTRAL EXCISE
NOTIFICATION
etariff19_01 Seeks to further amend Notification Nos. 20/2015-Central Excise and No. 21/2015-Central Excise both dated 08.04.2015 to incorporate procedure for utilisation of paperless MEIS and SEIS scrips CASE LAWS
2019-TIOL-149-SC-CX-LB
DJ Malpani Vs CCE
CX – Valuation – Section 4 of the CEA, 1944 - While selling goods, the appellant-assessee charged the customers invoices for the price of goods plus Dharmada, a charitable donation - Dharmada which was paid voluntarily by customers was accordingly credited to charity - show cause notices issued and demand of duty raised in respect of Dharmada, claiming it was part of the price for the sale of manufactured goods and included it for computing assessable value - In view of the decision in Panchmukhi - 2002-TIOL-495-SC-CX which followed the decision in Tata Iron & Steel Co. Ltd. - 2002-TIOL-32-SC-CX holding that Dharmada charged by the assessee is liable to be included in the assessable value and the decision in Bijli Cotton Mills (P) Ltd. - 2002-TIOL-2004-SC-IT holding that these receipts cannot be regarded as income of the assessee, Division Bench of the Supreme Court vide order dated 29.7.2015 had referred the following question to the Larger Bench viz. Whether the Dharmada collected by the appellant which is clearly an optional payment made by the buyer can be regarded as part of the transaction value for the sale of goods.
Held by Larger Bench: [para 14, 18, 22, 23, 24, 25]
+ It is clear that only the money paid for the promise of transferring goods was the valuable consideration contemplated by the Excise Act and the Rules - Thus, if an amount is paid at the time of the sale transaction for a purpose other than the price of the goods, it cannot form part of the transaction value; also for the reason that such payment is not for the transaction of sale i.e. for the transfer of possession of goods - Any payment made alongside such a transaction cannot be treated as consideration for the goods.
+ The receipts on account of Dharmada were voluntary, earmarked for charity and in fact credited as such - Though the payment as Dharmada has been found to be voluntary, it would make no difference to the true character and nature of the receipts even if they were found to be paid compulsorily because the purchaser, purchased the goods out of their own volition - The purchase of the goods is the occasion and not consideration for the Dharmada paid by the customer
+ The decision in Tata Iron & Steel (supra) is completely inapposite to the circumstances of the case - The reliance placed on Tata Iron & Steel (supra) and Panchmukhi - 2002-TIOL-495-SC-CX which was a case of Dharmada, is misplaced - Panchmukhi (supra) cannot be said to be good law.
+ Held that when an amount is paid as Dharmada along with the sale price of goods, such payment is not made in consideration of the transfer of goods - Such payment is meant for charity and is received and held in trust by the seller - If such amounts are meant to be credited to charity and do not form part of the income of the assessee they cannot be included in the transaction value or assessable value of the goods.
+ Dharmada collected by the appellant which is clearly an optional payment made by the buyer cannot be regarded as part of the transaction value for the sale of goods – Order of CESTAT set aside and appeal allowed.
+ In view of the judgment in the case of Civil Appeal No. 5282 of 2005, M/s D.J. Malpani vs. Commissioner of Central Excise, Nashik, the Civil Appeal 531 of 2008 filed by CCE, Bangalore vs. JSW Steel (tagged with tagged with the case of M/s D.J. Malpani vs. Commissioner of Central Excise, Nashik) is dismissed.
- Assessee appeal allowed : SUPREME COURT OF INDIA
2019-TIOL-782-HC-P&H-CX
CGST Vs Banta Singh Kartar Singh Iron And Steel Rolling Mills Mandi Gobindgarh
CX - The tax value involved in the present appeal is lesser than Rs 50 lakhs - The Revenue filed the present application seekinjg withdrawal of the present appeal on account of the monetary limit of the appeal is less than the limit of Rs 50 lakhs for filing an appeal before the High Court.
Held: Considering such situation, the application for withdrawal of appeal is allowed: HC
- Revenue's application allowed: PUNJAB AND HARYANA HIGH COURT
Gulshan Polyols Ltd Vs CCE & ST
CX - The short issue arises for consideration is; whether the Ground Natural Calcium Carbonate is classifiable under chapter heading 25309090 as claimed by assessee or under chapter heading 28365000 of CETA, 1985 as claimed by the Revenue - To know what is the product, the test report is the main document - On the basis of test conducted of chemical compounds of product are relevant to classify the same - Admittedly in this case, the samples were drawn and were sent to a Natural Physical Laboratory, New Delhi and thereafter the samples were sent for examination to the Chemical Examiner, CRCL, New Delhi - As per the test report, the samples do not qualify "Precipitated Calcium Carbonate" - On going through the test report, it is found that the product namely "Ground Natural Calcium Carbonate" is altogether different from "Precipitated Calcium Carbonate", therefore, in the light of the decision of Tribunal in case of Shakshi Makfin - 2016-TIOL-1925-CESTAT-CHD, the product in question having merit classification under chapter heading 25.30 of CETA, 1985 - The assessee has correctly classified the "Ground Natural Calcium Carbonate" under chapter heading 25.30 of CETA, 1985 as Revenue has failed to produce any corroborative evidence in support of their classification: CESTAT
- Appeal allowed: ALLAHABAD CESTAT
CX - The assessee is engaged in manufacture of Ceramic Glaze Mixture - During period 1999-2000 & 2000-20001, the Company was owned by "Kaneria" family - In July 2001, the company was taken over by "Patel" Family - SCN was issued in year 2002 for alleged clandestine clearances made during 1999-2000 & 2000-20001 - The issue regarding the duplication of demand has been finalizing by Tribunal and Commissioner has no jurisdiction to question the said decision - If Revenue had any doubt regarding the aforesaid decision they should challenged the said decision of Tribunal - Having failed to challenge the said decision, it become final and binding on Commissioner - Thus, the impugned order is being in violation of Tribunal order is outside - As regard the issue raised by Revenue regarding non confirmation of interest in the order portion since, impugned order has been set aside for the re-quantification, the matter regarding interest will be decided a fresh by the lower authority - As regard, the second issue raised by the Revenue relating to the adjustment of outstanding the same requires reexamination as the total clearances/ sales have to be re-quantified and the duty liability re-calculated after re-quantification of the sales value arrived at on the basis of computerized sales register - The impugned order is set aside and matter remanded to the adjudicating authority to pass a fresh adjudication order: CESTAT
- Matter remanded: AHMEDABAD CESTAT
CUSTOMS
CIRCULAR
cuscir11_2019
Phasing out of physical copies of Merchandise Exports from India Scheme (MEIS)/Services Exports from India Scheme (SEIS) Duty Credit Scrips issued with EDI port as Port of registration CASE LAW
2019-TIOL-143-SC-COFEPOSA
Narender Kumar Vs UoI
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) - Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 ('SAFEMA') - Deputy Secretary to the Government of Punjab, Home Department, Chandigarh, passed an order on 19.12.1974 under Section 3 of COFEPOSA detaining said Roshan Lal with a view to prevent him from dealing in smuggled goods - Emergency which came into force as a result of proclamation issued by the President on 25.06.1975, was lifted on 21.03.1977 - On the very next day i.e. on 22nd March, 1977 detention orders in respect of 49 detenus, including Roshan Lal, were revoked by the State Government - A notice under Section 6(1) of SAFEMA was issued by the Competent Authority to Roshan Lal on 30.04.1977 calling upon him to show the source of his income, earnings or acts or by means of which he had acquired properties mentioned in the schedule to said notice and to show cause why said properties be not declared to be illegally acquired properties and forfeited to the Central Government under the provisions of SAFEMA - After considering the replies to the notices under Section 6(1) of SAFEMA submitted by Roshan Lal and after considering the material on record, an order under Section 7(1) of SAFEMA was passed by the Competent Authority on 29.05.1978 - It was held that the property mentioned in the Schedule to the order was illegally acquired and that it stood forfeited to the Central Government free from all encumbrances - Civil Writ Petition No.509 of 1996 was filed on 12.08.1996 by the present appellant, as son of late Shri Roshan Lal, seeking to challenge the order of detention dated 19.12.1974 as aforesaid as well as the order dated 29.05.1978 passed by the Competent Authority - High Court found that the dismissal of Writ Petition No.138 of 1975 against the order of detention not having been challenged by Roshan Lal, Writ Petition No.509 of 1996 was barred by principles of res judicata - While setting aside the decision of the High Court, the matter was remanded back by the Supreme Court to the High Court for fresh disposal of the Writ Petition on merits - matter was, therefore, reheard by the High Court and by its judgment and order dated 02.05.2008 said Writ Petition was dismissed - Appeal questions the correctness of the judgment and order dated 02.05.2008 passed by the High Court of Delhi - High Court had held that the detention of Roshan Lal had run right through the duration or continuance of the Emergency and that there was no revocation of detention before the expiry of the Emergency and as such provisions of Section 2(2)(b) of SAFEMA would get attracted - The High Court, thereafter, considered the challenge to the detention order on the grounds as were urged - Submissions that the detention order was passed on the same material as was relied upon in the order passed under the provisions of MISA; that the representation dated 17.01.1975 was not considered; that the documents demanded in said representation were not supplied and that a report in terms of Section 3(2) of COFEPOSA was not forwarded by the State Government to the Central Government, were found to be without any substance and merit ? - appeal to Supreme Court.
Held: In the present case the order of detention under COFEPOSA was passed on 19.12.1974 and the petition challenging the detention was filed on 29.04.1975 i.e. before the proclamation of emergency was issued on 25.06.1975 - The detenu was released after the lifting of the emergency - All through, the Writ Petition was alive and pending in High Court and it was disposed of as having become infructuous on the statement made by the counsel for the Writ Petitioner on 24.02.1978 - The instant case is thus covered by para 41 of the decision of the Supreme Court in Amratlal - However, since the matter was remitted by this Court on 24.02.2004, to be disposed of on merits, Bench now proceeds to consider whether merits were rightly considered - Order of detention in this case was not revoked under any of the postulates of the proviso (to s. 2(2)(b) of SAFEMA) nor was it set aside by any competent court and as such the provisions of SAFEMA must apply - The High Court was right in observing that the detention "had run right through the duration or continuance of the emergency" - Though the petition was pending during the length of this time and was taken up for hearing after the lifting of the emergency, no attempts were made to have the petition disposed of on merits - representation dated 17.01.1975 was considered by the State on 11.02.1975 and the rejection was communicated to the detenu - Moreover, at no stage, any grievance was raised that the grounds of detention were not communicated to him in a language known to him - Similarly, the submission that the grounds of detention were identical, is also without any merit - Insofar as the order of detention under COFEPOSA was concerned, the grounds dealt with instances where the detenu had indulged in smuggling of goods, on the basis of which subjective satisfaction was arrived at as regards his propensity to deal in smuggled goods - Having considered the factual aspects of the matter, the grounds raised by the appellant are without any substance and merit - Bench, therefore, affirms the view taken by the High Court and dismisses the said submission - challenge to order of detention dated 19.12.1974 passed under the provisions of COFEPOSA in respect of Roshan Lal must fail - Competent Authority and the Appellate Tribunal constituted under the provisions of SAFEMA had, after issuance of due notice and granting every opportunity to the noticees, arrived at findings that the properties mentioned in the schedules to the notices were illegally acquired and that they stood forfeited to the Central Government free from all encumbrances - All the prayers made in Civil Writ Petition No.509 of 1996 being meritless, said Writ Petition deserved to be rejected and was rightly dismissed by the High Court - no reason to take a different view - Criminal Appeal is dismissed: Supreme Court [para 13, 19, 25, 26, 27, 28, 30]
- Appeal dismissed: SUPREME COURT OF INDIA |
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