|
SERVICE TAX
2019-TIOL-1165-HC-MAD-ST
Get Water Solutions Pvt Ltd Vs ADDL CGST & CE
ST - Petitioner undertakes contracts for Engineering, Procurement, Erection and Commissioning and Operation and Maintenance of waste water treatment plants and common effluent treatment plants (CETP) - such CETPs in question are not located as part of factories - as to whether the service rendered in connection with operation and maintenance of CETP would also be covered by the exemption 25/2012-ST, Sr. no. 13(d), Notification No.8/2017-S.T. issued u/s 11C of the CEA, 1944 r/w s.83 of the Finance Act, 1994 clarifies the position that from 01.07.2012 till 31.03.2015, the services rendered by operators of CETP stands outside the ambit of levy of service tax - so also exemption is available under notification 6/2015-ST dated 01.03.2015 - objection taken by the respondent that the impugned order is justified since there was non-co-operation on the part of assessee/petitioner viz. non-filing of reply to SCN and not appearing for personal hearing is not a defence and is rejected - impugned order of assessment insofar as it relates to the issue of service tax on operation and maintenance of CETPs is quashed - respondent/department is directed to give effect to the present order by deleting the demand in relation to the activity of operation and maintenance of CETP alone as well as giving credit to any amounts paid by the assessee, in relation to the aforesaid demand - exercise to be completed within four weeks - Petition allowed: CESTAT [para 4 to 8]
- Petition allowed: MADRAS HIGH COURT
2019-TIOL-1572-CESTAT-HYD
Koduri Enterprises Pvt Ltd Vs CCE, C & ST
ST - The assessee had applied for and got Registration Certificate under category of "Authorised Service Station"; he was visited with Officers of Revenue and it was noticed that he has not paid the service tax liability which was subsequently paid by him on being directed - It is his claim that for the first term i.e. 01.04.2005 to 30.09.2005, he is liable to be taxed but is eligible for small scale service provider exemption notification which if applied, he would get the refund of Rs. 37,400/- - It is the case of assessee before the Tribunal also - The first appellate authority in the impugned order on this point has given a detailed findings which are correct and legal and does not require any interference - T he appeal stands rejected: CESTAT
-Appeal rejected : HYDERABAD CESTAT
2019-TIOL-1571-CESTAT-BANG
CCT Vs Huawei Technology India Pvt Ltd
ST - The dispute pertains to three refund claims made by assessee for refund of unutilized CENVAT credit in terms of Rule 5 of CCR, 2004 - The refund of unutilized CENVAT credit is to be considered subject to safeguards, conditions and limitations specified by Government by issue of Notfn 5/2006 (NT) - The first question for decision is whether the registration of premises of assessee is mandatory before carrying out the export of service, for being entitled to the refund in terms of Rule 5 of CCR, 2004 - Admittedly, there is no dispute about the factum of export of service as well as the receipt of foreign exchange for such export but the claim for refund pertains to the period prior to obtaining the registration for premises of assessee - The Commissioner (A) has held that the requirement of registration cannot be held against assessee by following the observations of Karnataka High Court in mPortal India Wireless Pvt. Ltd. 2011-TIOL-928-HC-KAR-ST - In view of said decision, no infirmity found in decision taken by Commissioner (A) - Whether the three refund claims are hit by time bar when they examined with regard to Section 11B of CEA, 1944 - This Section governs the sanction of refund and specifies that the claims for refund are to be filed within a period of one year from the relevant date specified in said Section - The Notfn 5/2006 (NT) provides that the refund claims are to be submitted not more than once in a quarter in a calendar year before the expiry of the period specified in Section 11B - It is seen that the issue of time limitation within which refund claims are to be filed for claim under Rule 5 of CCR, 2004 in cases of export of service has been the subject matter before the Larger Bench of Tribunal in case of Span Infotech India Pvt. Ltd. 2018-TIOL-516-CESTAT-BANG-LB - The import of decision of Larger Bench is that the refund claims are no doubt required to be filed within the period of one year specified in Section 11B, however, the period of one year is to be considered as extended to the end of the quarter in which such claims are made - All the three claims are filed within time - In respect of the claim for the period January to march 2009 filed on 14.9.2009, the benefit has already been allowed by Commissioner (A) - No reason found to interfere with the order passed by Commissioner (A): CESTAT
-Appeal rejected : BANGALORE CESTAT
CENTRAL EXCISE
2019-TIOL-1590-CESTAT-AHM
CCE & ST Vs Indian Oil Corporation Ltd
CX - The applicant company is leading manufacturer of Petroleum products - The issue at hand pertains to benefit under Notfn No No. 14/1997-CE (NT), which restricts admissibility of Cenvat credit in certain cases - Such Notfn was held to be illegal by the High Court of Gujarat in Gujarat Narmada Valley Fertilizers Company Limited vs. UOI - When the applicant's appeal was heard by the Tribunal, a contrary conclusion was arrived at as the judgment of the High Court was not available before the former - Hence the present application seeks modification of such order.
Held - It is not in dispute that the applicant paid duty @ 15% ad valorem - Considering that the benefit of the High Court's judgment was not available to the Tribunal, the order passed by the latter is modified to the effect that credit not be restricted in terms of Notfn No 14/1997-CE as the duty has been paid on the goods - Hence the appeal in such matter is consequently allowed: CESTAT
Assessee's application allowed: AHMEDABAD CESTAT
2019-TIOL-1574-CESTAT-ALL
Bajaj Hindusthan Sugar Ltd Vs CCE & CGST
CX - The assessee was manufacturing Sugar & Molasses and removing Bagasse & Press-mud - The period covered is from 01st March, 2015 to July, 2015 - In view of the amendment in explanation under Sub-rule (1) of Rule 6 of Cenvat Credit w.e.f. 01.03.2015, there was an obligation on the part of manufacturer to pay amount under Sub-rule (3) of Rule 6 of CCR, 2004 at a fix percentage of the value of non-excisable goods removed when Cenvat Credit on input & input services are availed and such input & input services are used in manufacture of excisable goods and exempted goods including non-excisable goods - Proceedings were initiated against assessee for recovery of such amount - The issue is no more res-integra and is settled by Tribunal in assessee's own case - It was held in assessee's own case by relying on Supreme Court's decision in case of DSCL Sugar Ltd. 2015-TIOL-240-SC-CX that Press-mud & Bagasse are not arising out of manufacturing activity and the same are agriculture Waste & Residue - In view of settled possession of law, the impugned order is set aside: CESTAT
-Appeal allowed : ALLAHABAD CESTAT
2019-TIOL-1573-CESTAT-KOL
Calcutta Furniture Vs CST
CX - The assessee was eventually served with a SCN demanding service tax on activities of assessee under taxable categories CICS and ECIS - The assessee is engaged in execution of an indivisible works contract involving supply of both goods and services - They are duly registered as a works contractor under VAT laws and discharged VAT on the gross receipts as evident from Quarterly Sales Tax Returns and the VAT Assessment Orders for the relevant period - The work orders enclosed by assessee as part of the Paper Book and bills raised against them proves it beyond any element of doubt that these were indivisible composite work orders - Therefore, in essence a composite works contract involving supply of both goods and services could not be vivisected for imposition supply of both goods and services - The assessee intended to seek registration as a works contract service provider only, as evident from application for STC Code filed alongwith the application for registration on 30 May 2007 coupled with the fact that even after the grant of registration under CICS, the assessee was discharging service tax at the rate of 2% under the works contract composition scheme for payment of tax rules - The circumstantial evidence is also clearly pointing to the fact that the intention was to take registration under category works contract services as the application was mooted on 30 May 2007 just on the cusp of the introduction of Works Contract Services - Therefore, no negative inferences can be drawn from the fact that registration was initially granted to assessee under the taxable category CICS - In any event, it is well settled that there is estoppel in law and the person cannot be saddled with a statutory liability which was never there on account of an inadvertent mistake committed by such person - The levy of VAT and service tax are mutually exclusive as held by Supreme Court in case of Imagic Creation 2008-TIOL-04-SC-VAT - Therefore, service tax cannot be demanded on the value of the works contract which has already suffered VAT: CESTAT
-Appeal allowed : KOLKATA CESTAT
CUSTOMS
2019-TIOL-1166-HC-MAD-CUS
Care Intra Exim Vs ACC
Cus - BIS registration number embossed on the driver of the LED panel light did not tally with the BIS certificate produced, hence, the drivers numbering 1,15,000 pieces and valued at an amount of Rs.9,77,500/- were confiscated vide o-in-o dt. 25.01.2019 along with the remaining consignment, comprising LED batten fixture and LED panel and flood lights, whose BIS registration number incidentally tallied with the BIS certifcate produced - Petitioner states that they had filed various representations seeking release of the remaining goods, hence the petitions.
Held: Respondent states that there is no difficulty in releasing the remaining goods except the one confiscated vide order-in-original dated 25.01.2019 viz. drivers - petitioner is directed to approach the respondent seeking release of the remaining goods upon which the respondent will release the same forthwith - insofar as confiscated goods are concerned, the respondent is at liberty to finalise the proceedings after hearing the petitioner - petitioner is directed to seek waiver of demurrage charges before the authority concerned, who shall consider the same in accordance with law - Writ Petitions are disposed of: High Court [para 5, 6]
- Petitions disposed of: MADRAS HIGH COURT
2019-TIOL-1164-HC-DEL-CUS
Shubh Impex Vs CESTAT
Cus - The Petitioner is before this Court on a limited issue of requirement of making a pre-deposit in terms of Section 129-E of Customs Act, 1962 for consideration of its appeal by Tribunal - This Court does not consider it appropriate to deal with the merits of case of petitioner except note that on an earlier occasion of this Court had permitted the petitioners appeal to be considered by first Appellate Authority subject to petitioner depositing a sum of Rs.5 lakhs in addition to the Rs.3,70, 008 already deposited by it - Since the financial condition of petitioner has not undergone any significant change, and the above deposit of Rs. 5 lakhs has already been made, it is directed that without requiring the petitioner to make any further deposit, its appeal be considered by Tribunal on merits in accordance with law - The writ petition and application are disposed of: HC
- Writ petition disposed of: DELHI HIGH COURT
2019-TIOL-1570-CESTAT-BANG
Rakheeb Ulla Baig Vs CC
Cus - The assessee had taken up employment at Dubai, UAE during period April 2013 to July 2015 after finishing college - He had gone to Dubai for attending interviews in connection with his employment and n his return from Dubai on 03.10.2016 at Bangalore Airport, removed and handed over the gold chain weighing about 100 gms, which he was wearing, and two Gold Biscuits weighing 233.28 gms for examination - A SCN was issued to assessee - The Additional Commissioner of Customs, Bangalore passed the order confirming confiscation of Gold Chain and 2 Gold Biscuits seized under Mahazar under Section 111(d),(i),(1) and (m) of Customs Act, 1962 and imposing penalty under Section 112(a) and under Section 114AA of Customs Act, 1962 - The fact that the impugned goods were seized from assessee is not dispute nor is there any denial with regard to the Gold Biscuits concealed inside his socks - The contentions of assessee that the Mahazar drawn is not beyond suspicion deserves credit because, there appears to be some serious mis-match with regard to the dates - In this case, Mahazar is the only piece of evidence placed on record and relied on by the Revenue - A perusal of the Mahazar makes it clear that is has recorded what transpired on the eventful day of 03.10.2018 at the Airport upon the arrival of the assessee - The Mahazar dated 03.10.216 has also been signed by witnesses on 03.10.2016 wherein it refers to valuation certificate dated 04.06.2016, i.e, the next day - With this discrepancy, the evidentiary value of the Mahazar cannot therefore be sustained - The assessee is only questioning the validity of SCN on the ground that the same is in violation of Section 110(2) of the Act - The Notice here in this case has gone to the assessee on 04.09.2017, just after the expiry of six months from the date of seizure Mahazar - Further, admittedly, there is no allegation by Revenue that the service of notice in question is for the reasons attributable to the assessee - The time-limit of six months has also been reiterated, even by the CBEC, vide Circular No. 7/2013-Cus - The impugned order is not sustainable for which reason the same is set aside - Assessee pleads that release of the impugned items may be directed to be released on the payment of applicable Customs Duties - Accordingly, Revenue may release the impugned items after collecting the applicable Customs Duty with regard to the penalty under Section 112A, since the appeal is being allowed on the technical ground, Tribunal do not propose to interfere and the same is therefore sustained: CESTAT
-Appeal partly allowed : BANGALORE CESTAT |
