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SERVICE TAX
2019-TIOL-1052-HC-MAD-ST
Thiagarajar College Of Engineering Vs Joint Commissioner
ST - It is settled law that a Show Cause Notice can be challenged under Article 226 of the Constitution of India only when it has been issued without authority under law - Respondent submits that the impugned Show Cause Notice has been issued only in accordance with law whereas the petitioner contends otherwise – In view thereof, the impugned SCN cannot be quashed by the High Court - However, the respondent is directed to pass final orders, after considering all the objections raised by the petitioner, in accordance with the law and within a period of twelve weeks – Petition disposed of: High Court [para 10, 11]
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Petition disposed of
: MADRAS HIGH COURT
2019-TIOL-1051-HC-MAD-ST
V Manikandaraju Vs ADDL CCE, C & ST
ST - The issue involved on merits relates to the levy of service tax on Renting of Immovable Property - The litigation in regard to this issue has a chequered history - The decision of Full Bench of Delhi High Court upholding the vires of provision levying tax on service of Renting of immovable property in case of Home Solutions Retail India Ltd. was challenged before the Supreme Court - Leave was granted on 16.03.2015 and an order of interim stay granted in respect of recovery of arrears of service tax, due on or before 30.09.2011 - There is no stay of imposition of service tax for subsequent periods - On 05.04.2018 the matter was listed for final hearing before Supreme Court and has been referred to a Bench of nine judges in case of Mineral Area Development Authority - The period of assessment in present case is 01.06.2007 to 30.06.2008 and 01.07.2008 to 31.01.2015 - As regards the total arrears of Rs.38,14,620, computed as on 19.10.2010 a sum of Rs.24,35,280/- has been collected by service tax department by way of attachment of rents paid by the 3rd respondent, the lessee in the property in question - The petitioner is an individual and states on affidavit filed in support of this writ petition that he is a farmer whose only source of income is from agriculture - The property in question has been rented out for both commercial as well as residential purposes - A substantial portion of disputed demand has already been collected by Revenue, Tribunal is inclined to permit the petitioner to file an appeal challenging the O-I-O before the Commissioner of Service Tax (A) - Such appeal, if filed by petitioner within a period of two weeks along with the statutory pre-deposit, shall be received by the registry/office of the Commissioner of Service Tax(A) without reference to limitation - It is made clear that the attachment of rents from the property in question shall continue subject to order, if any be passed by the Appellate Authority in this regard: HC
- Writ petition disposed of: MADRAS HIGH COURT 2019-TIOL-1343-CESTAT-BANG
BSNL Vs CCT & CE
ST - Excess availment of CENVAT credit which was reversed/paid by the appellant and Service Tax under 'Reverse Charge Mechanism' on Works Contract Service was also paid - Original authority appropriated the amounts paid and imposed penalty u/s 78 of FA, 1994 - Commissioner (A) upheld penalty on the ground that s.80 of FA, 1994 was omitted w.e.f 14.05.2015 - appellant in their appeal before Tribunal submitting that the period involved is January 2013 to November 2013 and at that time, Section 80 was very much in existence.
Held: It has been consistently held that in the case of PSU, there cannot be any malafide intent to avail irregular and unavailable credit - penalty set aside and appeal allowed: CESTAT [para 6
- Appeal allowed : BANGALORE CESTAT
CENTRAL EXCISE
2019-TIOL-1345-CESTAT-ALL
CCE & ST Vs Kurele Pan Products Pvt Ltd
CX - The assessee was manufacturer of Gutkha - On physical stack taking conduced at their factory, it was noticed that there was shortage of 884 Kg of lamination and 1000 Kg perfume as compared to recorded stock of said raw material and there was 15800 Kgs of Gutkha available in ready to pack condition - Assessee has submitted that the entire case is based on presumption that alleged shortage of one raw material, was the evidence to establish clandestine removal and evasion of duty - They have submitted that there is no provision in Central Excise Act to maintain stock of raw material - Further, unlike earlier Rule 173 E, there is no provision in CER, 2002 to declare any ingredient as a key ingredient to monitor and calculate presumed production on the basis of utilization of such key ingredient - Revenue's case is based on statements and revenue's grounds are an attempt to establish as to how such statements are reliable for setting aside the impugned order - However, as recorded by Original Adjudicating Authority, many statements have been retracted and transporters have stated that they have never transported the goods manufactured by assessee - Further, revenue could not establish as to from where other raw materials were procured - No infirmity found in the impugned order: CESTAT
- Appeal dismissed : ALLAHABAD CESTAT
2019-TIOL-1344-CESTAT-AHM
CCE Vs Maize Products
CX - The Revenue is in appeal against impugned order dropping SCN issued to assessee - The assessee is engaged in manufacture of various products and availing CENVAT credit - They are also manufacturing certain exempted, or chargeable to nil rate of duty, excisable goods namely Maize starch powder, Maize Oil and Hydrol - A SCN was issued demanding an amount to be reversed in terms of condition B of sub rule 3 of Rule 6 of CCR, 2004 along with interest - Penalty was also sought to be imposed under Rule 15(1) of CCR, 2004 - The issue has been settled in assessee's own case by decision of Tribunal upheld by High Court of Gujarat in - 2008-TIOL-596-HC-AHM-CX - The SLP against said decision has also been dismissed by Apex Court - Moreover, it is seen that in 2010, Govt. of India introduced a retrospective amendment in section 73 of FA, 2010 to Rule 6 which granted relief to such cases - In case of ICMC Corporation Ltd. , High Court of Madras took node of the said amendment and granted relief in similar circumstances - Relying on the aforesaid decision and on subsequent retrospective amendment, no merit found in the appeal filed by Revenue and the same is dismissed: CESTAT
- Appeal dismissed : AHMEDABAD CESTAT
CUSTOMS
TRADE NOTICE
dgft_trade_notice_12_2019 Discontinuing submission of physical copy of RCMCs with effect from 1.7.2019 while filing application for incentives/entitlements under FTP
CASE LAWS
2019-TIOL-1352-CESTAT-KOL
Suresh Kumar Singh Vs CC
Cus - The Customs Department seized certain readymade garments totally packed in 15 gunny bags and bore markings as "Made in Bangladesh" and "Jack & Jones" - The seizure of goods was made at Patna Railway Station on reasonable belief that the goods were smuggled goods - Further investigations were undertaken and follow-up action was taken in different places where the consignee of goods were said to be located - Upon conclusion of investigation, SCN was issued proposing to confiscate the seized goods - It is not in dispute that readymade garments are not notified goods in terms of Section 123 of Customs Act, 1962 - Consequently, before coming to conclusion that the seized goods are of foreign origin, the Customs Department was required to establish by means of evidence that the goods are of smuggled goods - Mere fact that the goods bore foreign markings, will not be enough to conclude that the goods were smuggled - Hence, the investigation undertaken by Revenue has failed to establish that the goods were smuggled - The seized goods have not been conclusively established as smuggled goods - Hence, by following the ratio of cases in Manish Kakrania and B.Laxmichand 2003-TIOL-374-HC-MAD-CUS , the impugned order is set aside: CESTAT
- Appeals allowed : KOLKATA CESTAT
2019-TIOL-1346-CESTAT-KOL
CC Vs Enterprise International Ltd
Cus - All the appeals have been filed by Revenue against O-I-A - The subject appeals relate to the applicability of notfn 30 of 2004 as amended by notfn 34 of 2015 and 37 of 2015 on imported goods which has been decided by Tribunal in favour of the respondents and against the Revenue - The amendment made by notfn 34 of 2015 provides a condition qua payment of duty on inputs and non-availment of credit in manufacturing - Therefore, the sweep of judgment of SRF Ltd. is not affected - The Notfn 37 of 2015 further relaxes the condition that the nil payment of duty on input would also qualify as payment of duty - The Commissi-oner (A) has considered the judgement of SRF Ltd. and the notfn 34 of 2015 and 37 of 2015 as well as sweep of the judgement of SRF Ltd. vis-a-vis amendments and dealt with the applicability of amendments in the impugned orders - Tribunal dismissed several appeals of Revenue on 27.11.2017 and 21.03.2018 against the respondent by following the previous orders of Tribunal - No appeal has been preferred against the above two orders and limitation period has expired - The orders have attained finality - The Commissioner (A) has followed th; order passed by Tribunal in the case of respondent in which the benefit of notfn 30 of 2004, as amended by notfn 34 of 2007 and 37 of 2015 were extended to the respondent - No reasons found to interfere with the impugned orders and accordingly, the same is sustained: CESTAT
- Appeal dismissed : KOLKATA CESTAT
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