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SERVICE TAX
2019-TIOL-1003-CESTAT-MUM
Vertiv Energy Pvt Ltd Vs CCE & ST
ST - Common input services used for providing both taxable and for trading activity - Non-filing of intimation/declaration before the jurisdictional CE officer regarding availment of option is a procedural lapse inasmuch as the information required to be contained in the declaration was already available with the department which were furnished in the periodical ST-3 returns filed by the appellant - Tribunal in the case of Mercedes Benz - 2015-TIOL-1550-CESTAT-MUM has held that non-filing of intimation is only a procedural lapse and for which the benefit provided u/r 6(3)(ii) r/w rule 6(3A) of CCR cannot be denied - Since Commissioner(A) had held that non-filing of intimation/declaration is a procedural lapse, he should have allowed the appeal in favour of assessee rather than remanding the matter to the adjudicating authority for quantification of amount to be reversed by appellant assessee - in view of settled position of law, appeal of assessee allowed and Revenue appeal dismissed: CESTAT [para 4, 5]
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Assessee appeal allowed
: MUMBAI CESTAT
2019-TIOL-1002-CESTAT-MUM
Prasanna Purple Mobility Solutions Pvt Ltd Vs CCE & ST
ST - Appellants are engaged in the activity of providing buses on hire to M/s Maharashtra State Road Transport Corporation (MSRTC) and to M/s Pune Mahanagar Parivahan Mandal Ltd. (PMPML) - Issue is whether such activity of providing service would fall under the category of "Supply of Tangible goods service" or "Rent-a-cab service".
Held : Right of possession and effective control should entail in the gainful use or deployment of buses by the fleet owner during the time in which they are not plying the buses for the purpose of MSRTC during the period of contract - As long as the fleet owner cannot use the buses for gainful deployment, by no stretch of imagination can it be said that effective control is with the fleet owner - therefore, such supply of buses by the appellants to MSRTC & PMPML is in the nature of 'Supply of tangible goods' - However, in the case of S.K.Kareemum - 2015-TIOL-80-CESTAT-BANG , Tribunal has taken a stand that providing of buses on hire to APSTRC comes under the ambit of 'Rent-a-cab' service and this judgment has been upheld by the Supreme Court in the case of M Venkat Reddy, therefore, finality has been attained on this issue - Bench, therefore, has no doubt in accepting appellant's contention that the services provided by them attracts tax under 'Rent-a-cab' service and they are eligible for abatement as applicable - extended period is invocable - since the transaction was with public sector undertakings and there were different views on the issue, a lenient view needs to be taken as regards penalties by invoking s.80 of the Finance Act, 1994 - impugned order is set aside and matter is remanded to the original authority to re-examine the classification of service and to quantify the service tax liability: CESTAT [para 5.3, 9, 10, 11]
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Matter remanded
: MUMBAI CESTAT
CENTRAL EXCISE
2019-TIOL-1001-CESTAT-MUM
Pepsico India Holdings Pvt Ltd Vs CCE
CX - Refund - Unjust enrichment - Section 11B of the CEA, 1944 - Tribunal fails to find from the order of the Commissioner(A) as to what other proof he was looking for to get himself satisfied that the appellant had borne the incidence of tax itself - It can very well be said that evidence is weighed and not counted by its numbers - If the evidences produced are found to be unreliable, the Commissioner(A) has every right to reject those and give a finding that no sufficient proof was produced to pass the test of unjust enrichment - merely relying on the decision in SRF Ltd. - 2005-TIOL-1674-CESTAT-DEL-LB where uniformity of price before and after the assessment was taken as sole ground for establishment of burden of passing the duty and without taking into consideration the additional evidences like CA certificate, invoice copies, appellant's own declaration made, appears to be arbitrary - in a judicial proceeding, order has to be a reasoned one based on judicial analysis where whim and caprice have got no role to play - Bombay High Court has in the case of Kumbhi Sahakari SSK Ltd. rejected the appeal of the Commissioner challenging the acceptance of such CA certificate - Bench concludes that appellant has passed the test of unjust enrichment and the denial of refund by Commissioner(A) is not supported by the rule of evidence - impugned order is set aside and appeal is allowed - appellant is entitled to refund of Rs.78.45.431/- along with applicable interest to be paid within three months: CESTAT [para 5, 6]
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Appeal allowed
: MUMBAI CESTAT
2019-TIOL-1000-CESTAT-MUM
CCE Vs Cipla Ltd (EOU)
CX - Revenue, in appeal, has stated that since no Sales Tax/VAT is payable/leviable on the goods cleared in DTA to the sister unit, the exemption from payment of SAD in terms of Sl. No. 2 to notification 23/2003-CX is not admissible to respondent.
Held: Revenue has not disputed the payment of VAT at the time of sale of goods by the respondent from its depot - Tribunal, in an identical situation, in the case of Micro Inks - 2014-TIOL-258-CESTAT-AHM has allowed the appeal of the assessee - following the same, no reason exists to interfere with the impugned order - Revenue appeal is dismissed: CESTAT [para 5, 6]
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Appeal dismissed
: MUMBAI CESTAT
2019-TIOL-999-CESTAT-MUM
Global Wool Alliance Pvt Ltd Vs CCE
CX -MODVAT/CENVAT - By-products emerge unavoidably - Rule 57CC of CER, 1944 or rule 6(3)(b) of CCR, 2002/2004 has no application on the by-product cleared at Nil rate of duty - demand of 8% on the value of the by-products is not sustainable - impugned order is set aside and appeal is allowed: CESTAT [para 4, 5]
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Appeal allowed
: MUMBAI CESTAT
CUSTOMS
NOTIFICATIONS
ctariffadd19_017
Definitive anti-dumping duty imposed, upon review, on Cast Aluminium Alloy Wheels or Alloy Road Wheels used in Motor Vehicles originating in or exported from China PR, Korea RP and Thailand ctariffadd19_016
Notification No. 21/2015-Customs(ADD) imposing definitive Anti-dumping duty on Cast Aluminium Alloy Wheels or Alloy Road Wheels used in Motor Vehicles imported from PR China, Korea RP and Thailand, expiring on 10.04.2019, rescinded CASE LAWS 2019-TIOL-785-HC-MUM-CUS + Case Story
BMS Chemie A Registered Vs Uo
DGFT - The petitioner manufactures drugs, pharmaceutical and fine chemicals - It also manufactures and exports Oxyclozanide BP (Vet) using Trichloro Salicylic Acid - During the relevant period, the HBP prescribed the standard Input-Output norms used for issuing Quality Based Advance License - The final product manufactured by the petitioner is mentioned in such norms, prescribing different norms dependent upon the nature of goods used as raw material/inputs to manufacture such final products - Besides, the items listed in the Input-Output norms would also form the basis for granting benefit under DEPB scheme - The DGFT issued a Public Notice providing 7% credit on FOB value of final product exported under DEPB scheme - The DGFT ultimately enhanced the rate of credit to 15% of the FOB value on exported final products - The petitioners then made a representation before the Additional Director General of Foreign Trade seeking fixation of credit @ 15% of FOB value of exported goods effective from 31.03.2000 to have retrospective effect w.e.f. 01.04.1997 - However, such representation was rejected, thus triggering the present petitions.
Held - The order in challenge records that as per the present policy, no retrospective effect can be given to the DEPB rates notified w.e.f. 01.04.2000 - This policy is found in Para 7.50 of the HBP for the period commencing from 01.04.2000 - Hence the order in challenge cannot be faulted - The petitioner relied upon the retrospective benefit of credit rate under the DEPB scheme in case of marine products to claim retrospective benefit in the present case - However, the reliance on the same has been made without placing on record the public notice by which such benefit is given - Besides, the issue of credit rate for DEPB scheme falls within the realm of delegated legislation - Hence in the absence of any express provision enabling a delegate to make legislation with retrospective effect, the same is beyond the competence of the delegate - Moreover, the fixation of such rates and their date of application depende upon numerous factors involving expertise - Hence it is of the nature of a policy decision - It is settled law that it is not for the courts to interfere in matters of policy: HC (Para 3,5,6,7,14-18)
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Writ petition dismissed
: BOMBAY HIGH COURT 2019-TIOL-784-HC-MAD-CUS
Zoom International Vs CC
Cus - The Writ Petition has been filed by petitioner seeking a Mandamus for the release of consignments under Bills of Entry and further consequently direct the Respondents to issue a Detention Certificate for waiver of Demurrage and Container Detention charges in terms of Regulations6(1)(1) of Handling of cargo in customs Areas Regulations, 2009 - The identical issue has been considered in case of M/s.Royal Impex - 2019-TIOL-596-HC-MAD-CUS - The aforesaid order is applicable to the present cases on all fours - The petitioner will remit the entire duty component of consignments imported by them in cases were such duty is leviable as per paragraph 15(iii) along with a bank guarantee for the 10% of the invoice value - In cases where the duty impact is neutral, the petitioner shall furnish a bank guarantee for 10% of invoice value - Upon satisfaction of aforesaid conditions, the consignments shall be released forthwith - The petitioner has also prayed for waiver of demurrage charges incurred in respect of detained consignments - In the light of Rule 6(l) of Handling of Cargo in Customs Areas Regulations, 2009, which provides that the Customs Cargo Provider shall not, subject to any other law for the time being in force, charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive officer or examining officer, as the case may be, there shall be a waiver of demurrage charges: HC
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Writ Petition disposed of
: MADRAS HIGH COURT
2019-TIOL-783-HC-MAD-CUS
Karumuri Pulses Vs CC
Cus - The Writ Petition has been filed by petitioner seeking a Mandamus for the release of consignments containing "Black Mapte" under Bills of Entry and further consequently direct the Respondents to issue a Detention Certificate for waiver of Demurrage and Container Detention charges in terms of Regulations6(1)(1) of Handling of cargo in customs Areas Regulations, 2009 - The identical issue has been considered in case of M/s.Royal Impex - 2019-TIOL-596-HC-MAD-CUS - The aforesaid order is applicable to the present cases on all fours - The petitioner will remit the entire duty component of consignments imported by them in cases were such duty is leviable as per paragraph 15(iii) along with a bank guarantee for the 10% of the invoice value - In cases where the duty impact is neutral, the petitioner shall furnish a bank guarantee for 10% of invoice value - Upon satisfaction of aforesaid conditions, the consignments shall be released forthwith - The petitioner has also prayed for waiver of demurrage charges incurred in respect of detained consignments - In the light of Rule 6(l) of Handling of Cargo in Customs Areas Regulations, 2009, which provides that the Customs Cargo Provider shall not, subject to any other law for the time being in force, charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive officer or examining officer, as the case may be, there shall be a waiver of demurrage charges: HC
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Writ Petition disposed of
: MADRAS HIGH COURT |
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