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SERVICE TAX
2019-TIOL-1018-HC-KAR-ST
Praxair India Pvt Ltd Vs CCE & ST
ST - COD - It is contended in support of application for COD that the Chartered Accountant, who was looking after the affairs of company expired on 25.7.2013 - The impugned order was received on 21.9.2013 - The sudden death of Chartered Accountant has caused disturbance in the functioning of Company - At the same period of time, their office was shifted from Ulsoor to Marathhalli - During the process of shifting, the file was misplaced - The reasons assigned by petitioner constitutes sufficient cause - It is a bonafide error that has occasioned which is beyond the control of petitioner - Even otherwise, rights of the parties should be determined and not rejected merely on technicalities and that too when there is substantial cause shown for the delay - On the other hand, the condonation of delay would not affect any of the legal rights of the respondent - While condoning the delay, the petitioner requires to be saddled with costs - Therefore, court deem it just and necessary to direct the petitioner to pay costs of Rs.50,000/- with the Registry within a period of one week: HC
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Writ petition allowed
: KARNATAKAHIGH COURT
2019-TIOL-1313-CESTAT-DEL
Career Point Info Systems Ltd Vs CCE
ST - Appellant was providing Commercial Training and Coaching Services (CTCS) and for advertising its center, the appellant had engaged various advertising agencies so as to get their advertisement published in the newspapers - invoice itself is sufficient to prove that it is the appellant who is the service recipient qua the advertising services though the services have been received from the provider thereof by the appellant after engaging an agency for the purpose - payment made by the appellant for the purpose definitely becomes an input for him for providing a Commercial Coaching and Training Service - CENVAT credit on the payment made to the advertisement agency cannot be denied to the service recipient thereof - finding of the Commissioner (Appeals) for holding that impugned services are Business Auxiliary Service which are not taxable hence not eligible for taking credit are, therefore, held to be an erroneous finding - impugned order set aside and appeal allowed: CESTAT [para 5]
- Appeal allowed: DELHI CESTAT
ST - Notification 20/2003-ST dated 21.08.2003 exempted services provided to a customer in relation to maintenance or repair of computers, computer systems or computer peripherals from payment of service tax - Later, it was clarified vide Circular dated 17.12.2003 that the maintenance of software is also a part of computer systems and, therefore, would be covered by the exemption Notification - This Notification was later rescinded by Notification No. 07/2004 dated 09.07.2004 and although the Notification rescinded the above exemption Notification, the said services were not brought into the levy of service tax by the specific Notification - It is, therefore, apparent that for the period from 09.07.2004 to 31.03.2006, there was much confusion as to whether Maintenance and Repair of computer software is subject to levy of service tax during the disputed period - pursuant to the decision of the Supreme Court in M/s. Tata Consultancy Services - 2004-TIOL-87-SC-CT-LB , Circular No. 81/2/2005-ST dated 07.10.2005 clarified that maintenance or repair or servicing of software is leviable to service tax - Madras High Court in the case of M/s. Kasthuri & Sons Ltd. - 2011-TIOL-240-HC-MAD-ST had quashed the said Circular holding that service tax cannot be levied by issuing a Circular - Therefore, for the disputed period although the Circular made the said services taxable, the same is not applicable for the levy of service tax since the jurisdictional High Court has quashed the Circular - respondents have been paying service tax from 2006 onwards noting that the Board had issued Circular dated 07.03.2006 again clarifying that the said services are taxable from 10.07.2004 - Commissioner (Appeals) has, therefore, rightly applied the law and precedents so as to set aside the demand, interest and penalties - Revenue appeal dismissed: CESTAT [para 5.1, 5.2, 6]
- Appeal dismissed: CHENNAI CESTAT
ST - Demand of service tax liability within the fold of 'Commercial or Industrial Construction Service (CICS)' on construction of mobile tower foundation and related civil works performed by the appellant for M/s. Bharathi Airtel Ltd. during the period from December 2004 to June 2007 – appeal to CESTAT.
Held: Issue in dispute is squarely covered in favour of appellant by the Apex Court decision in M/s. Larsen & Toubro Ltd. - 2015-TIOL-187-SC-ST for the period up to 01.06.2007 - For the period after 01.06.2007, the CESTAT in the case of M/s/ Real Value Promoters Pvt. Ltd. - 2018-TIOL-2867-CESTAT-MAD have extrapolated the ratio laid down by the Apex Court in M/s. Larsen & Toubro Ltd. (supra) and held that even after 01.06.2007, service tax liability for composite contracts can only be demanded under Works Contract Service and not under CICS, etc. - For this reason, the impugned Order demanding the amount of tax liability under CICS for a composite contract will not survive and will be required to be set aside – appeal allowed with consequential relief: CESTAT [para 5 to 7]
- Appeal allowed: CHENNAI CESTAT
Aviram Knitters Vs CGST & CE
ST - Appellant had engaged overseas commission agents for procuring orders for their products - SCN issued on the ground that the appellants ought to have discharged service tax liability under reverse charge mechanism for the period from 18.4.2006 to 31.3.2009 - demand confirmed along with penalties and interest by lower authorities, therefore, appeal before CESTAT.
Held: Tribunal in the case of Texyard International - 2015-TIOL-1618-CESTAT-MAD has held that levy of service tax cannot sustain in view of the exemption available vide notification 14/2004-ST - following the same, demand cannot sustain - appeal allowed with consequential relief: CESTAT [para 5]
CHENNAI CESTAT
ST - The assessee is engaged in providing Port services in respect of incoming and outgoing vessels - It also handles the import & export of goods - The Revenue was under the belief that the assessee was not paying service tax on all the services provided, the Revenue directed the assessee to submit details of amounts received as licence fee, upfront charges, rent on jetties & estate rentals for the relevant period - SCNs were issued proposing duty demands - On adjudication, the same was confirmed with interest & penalties - Hence the present appeals.
Held: An identical issue stands settled in the assessee's favor in its own case for an earlier period - Besides, the Revenue's appeal against such order had been dismissed by the jurisdictional High Court - Following such precedent, the duty demands are found to be untenable: CESTAT
- Assessee's appeals allowed: BANGALORE CESTAT
CENTRAL EXCISE
2019-TIOL-204-SC-CX-LB
Steel Authority Of India Ltd Vs CCE
CX - The assessee-company manufactures various products, including rail sold to the Indian Railways - The goods were cleared on payment of Excise duty on payment of price fixed based on Circular dated 24.04.2005 - Later, the prices of the goods were enhanced by way of a Circular dated 20.07.2006 & such revision was with retrospective effect - In light of such revision, the assessee deposited Excise duty of about Rs 142 Crores - Later, upon considering the clearances made, the assessee was found liable to pay interest on the sum of Rs 142 Crores based on date of removal of goods during Jan 2005-July 2006 - On appeal, the Tribunal referred to the judgment of the Apex Court rendered in CCE v. SKF India Ltd. 2009 (13) SCC 461 and settled the issue against the assessee - When the matter reached the Apex Court, a Division Bench raised doubts regarding the correctness of the CCE v. SKF India Ltd. and so referred the matter to the Larger Bench - Hence the issue at hand is as to whether interest is payable on differential Excise duty with retrospective effect that becomes payable based on escalation clause u/s 11AB of the CEA 1944.
Held - The provisions of Section 11A must necessarily be read with those of Section 11AB - This because the interest u/s 11AB is premised upon Excise duty not being levied or not being paid or being short levied, short paid or erroneously refunded - In any of these circumstances, namely, non-levy, non-payment, short-levy and short-paid, any duty has been determined or paid as has been provided under Section 11A, necessarily the assessee becomes liable to pay interest from the first date of the month succeeding the month in which duty ought to have been paid - The exact question is the month in which the duty ought to have been paid - The reasoning of this Court that for the purpose of Section 11AB, the expression “ought to have been paid” would mean the time when the price was agreed upon by the seller and the buyer does not square with our understanding of the clear words used in Section 11AB and as the rules proclaim otherwise and it provides for the duty to be paid for every removal of goods on or before the 6th day of the succeeding month - Interpreting the words in the manner contemplated by the Bench which referred the matter would result in doing violence to the provisions of the Act and the Rules interpreted - When an assessee in similar circumstances resorts to provisional assessment upon a final determination of the value consequently, the duty and interest dates back to the month “for which” the duty is determined - Duty and interest is not paid with reference to the month in which final assessment is made - While differential duty becomes crystalised only after the escalation is finalized under the escalation clause but it is not a case where escalation is to have only prospective operation & is to have retrospective operation only - This entails that the value of the goods which was only admittedly provisional at the time of clearing the goods is finally determined and it is on the said differential value that admittedly that differential duty is paid - while the principle that the value of the goods at the time of removal is to reign supreme, in a case where the price is provisional and subject to variation and when it is varied retrospectively it will be the price even at the time of removal - The fact that it is known later cannot detract from the fact that the later discovered price would not be value at the time of removal - Hence, Sections 11A & 11AB as they stood at the relevant time did not provide read with the rules any other point of time when the amount of duty could be said to be payable and so equally the interest - Hence the rulings in CCE v. SKF India Ltd. merit being sustained: SC Larger Bench -
Appeal dismissed
: SUPREME COURT OF INDIA
CX - Rebate claims filed by the appellants were granted by the original authority but the said amounts were appropriated against the demand of Rs.3.91 crores confirmed by the CCE, Noida - appeal filed by the assessee was rejected by Commissioner(A) - appeal to CESTAT.
Held: It is noticed that against the demand of Rs.3.91 crores the assessee had filed an appeal and the Tribunal had vide order dated 16.01.2018 set aside the o-in-o and remanded the matter to the original authority for fresh consideration - since as on date there is no confirmed demand against the appellants, there is no justification for appropriation of the amounts claimed as rebate - impugned order does not sustain hence the same are set aside and the appeals are allowed: CESTAT [para 2]
- Appeals allowed: ALLAHABAD CESTAT
CX - Appellants were manufacturing goods on their own account and claiming Nil rate duty under SSI notfn. 8/2003-CE - they were also manufacturing and clearing goods on behalf of "loan licensee" where the goods were cleared under brand name of loan licencee and duty was paid at tariff rate - Allegation of Revenue is that since the appellant is situated in ‘rural area' they are entitled for SSI exemption even in respect of branded goods; that if so, then for the year 2003 - 04 their aggregate value of clearances exceeds the SSI Turnover and they would be liable to pay duty from the first clearance for the period 2004 - 05 - SCNs issued and demands confirmed and which were upheld by Commissioner(A), so appeal before CESTAT.
Held: Based on the RTI reply received by the appellant, it is absolutely clear that the survey number of the land where the appellant's unit is located has been acquired for establishment of GIDC and the land falls under GIDC for which notification has been issued - moreover, even though the GIDC land parallely falls under authority concerned of village but it will not remain as rural area in terms of definition given in Notification No. 08/03-CE - Therefore, it is absolutely clear that the place i.e. GIDC-Dholka where appellant's unit is located is not rural area and resultantly, the contention of the Revenue is baseless and without support of any evidence contrary to the various evidences produced by the appellant - impugned orders are set aside and appeals are allowed with consequential relief: CESTAT [para 6 to 9]
- Appeals allowed: AHMEDABAD CESTAT
CX - Valuation - It is an admitted fact that the chewing tobacco is first packed in a retail package (weighing 6, 8 and 9 grams) to be sold to the ultimate consumer - Being less than 10 grams, the said pouch is exempted to declare the retail price on the package in terms of Rule 26 of Legal Metrology (PC) Rules, 2011 - assessee has declared the number of retail packages in multi-piece package, weight of each retail package and MRP affixed thereon - Multi-piece packages in such circumstances, does not require MRP to be fixed for the simple reason that such multi-piece package is a wholesale package as per the definition in Rule 2(R) of Legal Metrology (PC) Rules, 2011 - package cannot be considered as the retail package merely because the multi piece package also can be purchased by the individual or the group of individual - ultimate consumer shall not be often purchasing the multi piece packages - Had that been the fact, there was no need for the manufacturer to create retail pouches of less than 10 grams of weight - wholesale package requires the declaration only about the name and address of the manufacturer/ packer, the identity of commodity contained in the package and the total number of retail packages contained in a wholesale package or the net quantity - Once there was no such requirement of declaring MRP, the question of valuation in accordance of Section 4A of the CE Act does not arise - Commissioner(Appeals) has rightly interpreted the provisions of the Act holding that Section 4A is not applicable to the given facts and circumstances and, therefore, no question of short payment, as alleged, at all arises - Impugned order upheld and Revenue appeal is dismissed: CESTAT [para 8]
- Appeal dismissed: DELHI CESTAT
CX - Cenvat Credit availed by the appellant cannot be denied merely because there was some typographical error on the part of the manufacturer-supplier in mentioning the registration number on the invoices issued by the manufacturer/supplier - moreover, the said mistakes were admitted and rectified later by manufacturer/supplier - it is not the case that the goods covered by the said invoices were not received/accounted for or not utilised in the manufacture of final products which were cleared on payment of duty - impugned order set aside and appeal allowed with consequential relief: CESTAT [para 7]
- Appeal allowed: KOLKATA CESTAT
2019-TIOL-1299-CESTAT-MAD
Bannari Amman Sugars Ltd Vs CGST & CE
CX - Rule 2 of CCR, 2004 - MS Angles and Channels used for fabrication of storage tanks are capital goods - services like Port Services and CHA Services are Input services - credit rightly availed - reversal made under protest upon being insisted by Audit and refund claimed later - rejection of refund claim unjustified - impugned order set aside and appeal allowed with consequential relief: CESTAT [para 5, 6]
- Appeal allowed: CHENNAI CESTAT
2019-TIOL-1298-CESTAT-AHM
Premier Heavy Engineering Corporation Vs CCE & ST
CX - This appeal has been filed by assessee against failure of Revenue to grant cost of refund claim sanctioned to them - The assessee had deposited the amount of Rs. 4,97,348/- on 16/02/1998 in a case being investigated against FAME - While SCN was issued to FAME, which included the allegation that the assessee was dummy unit, but no SCN was issued to assessee - Consequently, the assessee sought refund of the amount claimed by them during investigation in the said case - The matter reached Tribunal, which directed the Revenue to issue notice to the assessee - The said direction of Tribunal was challenged by assessee before the High court of Gujarat in - 2016-TIOL-950-HC-AHM-CX who set aside the said direction and directed the Revenue to decide the refund issue before 30/09/2016 - Revenue consequently sanctioned the refund before 30/09/2016 and did not grant interest on the ground that the refund has been sanctioned under directions of High Court within the time limit prescribed by High Court and thus, no interest need to be sanctioned - It is seen that the assessee had filed a refund claim on 12/10/2001 - Apex Court in the case of Ranbaxy Laboratories Ltd. - 2011-TIOL-105-SC-CX has examined the provisions of section 11B and section 11BB along with the instruction issued by CBEC at the material time - Following the ratio of aforesaid judgment, the relevant date for the purpose of calculation of refund would be the date of filing of refund claim - Consequently, the assessee is entitled to interest on the said amount of refund after the expiry of 3 months from the date of receipt of the application for refund: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
CUSTOMS
2019-TIOL-1020-HC-MAD-CUS
International Flavors And Fragrances India Pvt Ltd Vs ACC
Cus - The writ petition is filed for a writ of Certiorarified Mandamus seeking quash of letter dated 19.07.2016 issued by Assistant Commissioner of Customs and to direct the respondents to refund the excess duty paid in Bill of Entry - The Supreme Court had occasion to consider the interpretation of Section 27 and in case of Priya Blue Industries 2004-TIOL-78-SC-CUS had opined that a refund would lie in context of Section 27 as it stood then only if an assessee has been served with an order of assessment - Subsequent to amendment of Section 27, the provisions of Section 27 have been considerably widened, as a result of which, after 08.04.2011, a claim for refund would lie in respect of any amount paid or borne by a person - The sole ground on which the refund application has been returned is that the Bill of Entry submitted by petitioner has not been re-assessed by concerned assessing officer - This observation falls in the face of position that the passing of an order of assessment is not within the control of an assessee - In the light of Section 27 as it stands now, the Assistant Commissioner ought not to have insisted upon an order of assessement having been passed - Reliance upon the case of Priya Blue Industries is unwarranted and untenable - The impugned letter is quashed and the petitioner is permitted to re-submit its application for refund within a period of two(2) weeks - The said applications will be considered by respondents on merits and in accordance with law - The provisions of Section 27(2), extracted elsewhere in this order, provide for a refund to be granted only upon satisfaction of Officer concerned that the whole or any part of the refund sought is refundable - His reliance on Section 149 has also no merit in so far as the operation of Section 149 is different and distinguishable from the provisions of Section 27 - Section 149 deals with amendment of documents - The refund application is filed under Section 27 and refund is to be granted upon a satisfaction of assessing authority in this regard - The refund is sought on the basis of a error in the Unit Price as mentioned in the Bill of Lading - If satisfied, the Assessing Authority would grant the same - It is not necessary that a formal amendment of document be carried out to warrant the refund, if the claim is otherwise in order: HC
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Writ petition allowed
: MADRAS HIGH COURT
2019-TIOL-1019-HC-MUM-CUS
CC Vs Advance Technology Devices
Cus - Notice of Motion was taken out by applicant which was made absolute in terms of prayer clauses i.e. for condonation of delay of 483 days and for setting aside the order passed by the Prothonotary and Senior Master and for restoration of the appeal - Such a long delay is mentioned in notice of motion as the delay is not calculated from expiry of time mentioned in order dated 24th August 2018 passed in Notice of Motion but the delay is computed from the date of original rejection - It appears that the appeal stood rejected under Rule 986 of said Rules on the ground that though all office objections were removed, it was not got numbered - There is sufficient explanation for delay - Moreover, the objections were removed within the stipulated time - Therefore, a case is made out for restoration of appeal - On 21st December 2017, an order was passed by Prothonotary and Senior Master which is in a standard format - It is the duty of party filing a matter is to see that office objections therein are removed - However, after the office objections are removed, it is the duty of the Registry to get the matter numbered and registered - The delay of 2,386 days in filing notice of motion is only a technical delay which deserves to be condoned - Accordingly, notice of motion is made absolute in terms of prayer clauses: HC
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Appeal disposed of
: BOMBAY HIGH COURT
2019-TIOL-1306-CESTAT-KOL
CC Vs Ceratizit India Pvt Ltd
Cus - Valuation - Knowhow fees paid to the foreign supplier had no direct nexus to the importation of the coating plant - Since the condition specified in Rule 9(1)(c) of Valuation Rules, 1988 is not satisfied, there is no justification to add the technical knowhow fee to the transaction value of the imported goods - no infirmity in the order passed by the lower authority, same is upheld and Revenue appeal is rejected: CESTAT [para 13, 14]
- Appeal rejected: KOLKATA CESTAT
2019-TIOL-1301-CESTAT-KOL
CC Vs Ganpati Rai Sriram And Company
Cus - In view of the reasons as explained, the delay in filing the appeals before this Tribunal, is condoned - The disputed duty involved in this case is below the monetary limit of Rs.10 lakhs which has been notified by the Government vide Circular 390/Misc./163/2010-JC and F.NO.390/Misc./116/2017-JC - Accordingly, the appeal is dismissed under National Litigation Policy - Stay Petition also gets disposed off: CESTAT
- Appeal dismissed: KOLKATA CESTAT
2019-TIOL-1300-CESTAT-MAD
L Harish Gandhi Vs CC
Cus - The assessee was importer of goods - The department was of the view that the value of the goods was not declared properly and SCN was issued proposing to enhance the value along with interest and also for imposing penalties - However, the noticee M/s. M.G. Trading Company on receiving the SCN itself paid-up the entire enhanced duty along with interest and also paid-up 25% penalty - The present proceedings were continued against the assessee herein as co-noticee - As proviso to sub-section (2) of section 28 of the Customs Act states that the proceedings in relation to co-noticees will stand concluded when such demand, interest and 25% penalty has been paid-up by one of the notices - The clarification issued by Board in Circular dated 15.03.2016 makes this clear - However, the Tribunal in case of S. Jaikumar - 2017-TIOL-2407-CESTAT-BANG as well as in the case of M/s.Welspring Universa l- 2017-TIOL-1034-CESTAT-DEL has considered the very same issue and held that the proceedings against the other noticees has to be considered as concluded when one of the noticees has complied with the provisio to sub-section (2) of section 28 - Therefore, the confirmation of penalty on assessee is unwarranted - The same requires to be set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT |
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