SERVICE TAX

2019-TIOL-1396-HC-KAR-ST

Global Agency Vs Pr.CCT

ST - It is the grievance of petitioner that the respondent No.2 had issued a SCN to tax the cleaning activity carried out by petitioner, the services rendered to the railways under FA, 1994 - Rejecting the reply filed by petitioner, final orders have been passed demanding service tax as well as penalty of the same amount for the period 01.04.2012 to 31.03.2017 treating the services of cleaning of Railway platform and coaches as taxable service - The focal point of dispute relates to interpretation and application of Mega Notfn dated 20.6.2012 as well as 22.08.2016 issued by Ministry of Finance - It is not in dispute that several agreements have been entered into by the petitioner with the Railways to render the services of cleaning activity in railway coaches and Railway platforms for the period relating to 1.4.2012 and 31.3.2017 which is the subject matter of this writ petition certainly has to be considered in the light of the Notification issued by the Ministry of Finance for the period up to 30.6.2012 and for the period with effect from 1.7.2012 as discussed by the original authority - These aspects are not mere questions of law which can be examined under writ jurisdiction but the mixed questions of fact and law which necessarily requires to be adjudicated before the appellate Forum, the machinery provided under the statute - It is well settled law that applicability of notification has to be examined qua the Clauses of the agreements and related matters - In such scenario entertaining the writ petition would not be justifiable - Without expressing any opinion on the merits or demerits of the case, writ petition is dismissed with liberty to the petitioner to approach the appellate forum: HC

2019-TIOL-1885-CESTAT-DEL

Tanay Landcon India Pvt Ltd Vs CST, CGST & CE

ST - The assessee-company provides services in respect of Commercial or Industrial Building and Civil Structure, Maintenance & Repair Service and Execution of Work Contract Services - Upon audit, the Revenue observed that the assessee availed credit on some input services & capital goods, which did not qualify as input goods, services or capital goods - SCN was issued proposing to recover the credit alleged to be wrongly availed by the assessee, along with interest & imposition of penalty - Such proposals were confirmed by the adjudicating authority - Such demands were confirmed by the Commr.(A) - Hence the present appeal.

Held: The assessee claimed that the prior to the SCN in issue, another SCN had been issued, which was an outcome of the same enquiry about the same amount of credit - The earlier SCN was adjudicated upon and the allegations of incorrect availment of credit were set aside - No appeal was made by the Revenue against such order - The assessee claimed that due to an inadvertent error, such order could not be placed before the Commr.(A) when the O-i-A under challenge was being passed - Persual of such earlier order clarifies that an identical issue stands settled in favor of the assessee - Hence the interests of justice are better served if the SCN issued subsequently is re-adjudicated: CESTAT

2019-TIOL-1884-CESTAT-MAD

Raj Kishor Constructions Vs CGST & CE

ST - The assessee is a proprietary concern engaged in providing site formation services which are in the nature of leveling the ground and excavation of earth with the help of excavators - During audit, it was noticed that they had not paid service tax on services rendered as sub-contractor under "Site Formation and Clearance Services" - The period of dispute is from 16.6.2005 to December 2008 - The demand on site formation and clearance services is defended by assessee contending that the main contractor has discharged service tax liability entirely - This aspect has to be looked into by adjudicating authority - On perusal of the quantification of demand also, there are certain discrepancies to the quantification which needs to be rectified by clarifications that has to be produced by assessee - The assessee is also contending that the activities of construction of roads are exempted from service tax as these services were provided for development of SEZ - All these aspects, whether the construction activity with regard to site formation or construction of roads are rendered within SEZ area has to be looked into by adjudicating authority - The assessee has requested for further chance to furnish documents with regard to the discharge of service tax by main contractor as well as the construction activities done within the SEZ area - For these reasons, the matter is remanded to the adjudicating authority - The demand with respect of wrong availment of abatement also can be looked into afresh by adjudicating authority who shall consider the issue of penalty on this score also - The impugned order is entirely set aside: CESTAT

2019-TIOL-1883-CESTAT-BANG

Viraj Projects India Pvt Ltd Vs CCT

ST - The assessee-company renders taxable services under Construction of Commercial or Industrial Buildings - Upon audit, it was observed that the assessee charged & recovered service tax & cess during the relevant period but did not deposit the same to the Govt on the due dates - SCN was issued to the assessee seeking recovery of duty with interest for the relevant period, along with penalty u/s 76 & 78 of the Finance Act - On adjudication, the Asst. Commr. confirmed the duty demand with interest & penalty u/s 77 & 78 - Some amount of duty and interest already paid was appropriated - On appeal, the Commr.(A) quashed penalty u/s 77 & reduced the quantum of penalty imposed u/s 78 - Hence the assessee's appeal. Held: It is also seen that the assessee is not entitled to benefit u/s 73(3) of the Finance Act 1994 because it collected service tax & did not pay the same - Hence suppression is proved on part of the assessee - Thus the assessee is also liable to be penalized u/s 78 of the Finance Act - Hence the O-i-A dismissing the assessee's appeal is sustained: CESTAT

- Assessee's appeal dismissed : BANGALORE CESTAT

CENTRAL EXCISE

2019-TIOL-1395-HC-KAR-CX

CCT Vs Netapp India Pvt Ltd

CX - The revenue has impugned the Final Order in 2018-TIOL-1295-CESTAT-BANG by the Tribunal - The Appellate Tribunal by this impugned order has allowed the respondent's appeal against the common order by Commissioner (A) - The High Court of Madras, which was considering allowing interest on delayed refund of unutilized credit under MODVAT Credit Scheme, has also concluded that the MODVAT Credit taken was nothing but payment of duty which would be available to assessee on the assessee paying duty on inputs at the time of clearance of final bills and therefore, there is statutory obligation on the part of revenue under Section 11BB of the Act to pay interest for the delayed refund of the duty - Revenue is unable to persuade this court to hold that the obligation to refund unutilized CEVANT Credit under Rule 5 of the CENVAT Credit Rules & Notification dated 18.6.2012 is distinct and separate from the obligation under Section 11B of the Act in the light of the reasoning in the aforesaid decisions - This Court concurs with the reasons assigned in aforesaid decisions to hold that the revenue would be obliged to pay under interest for the delayed refund as contemplated under Section 11BB of the Act even for the delayed refund of Unutilized CENVAT credit under Rule 5 of the CENVAT Credit Rules & Notification dated 18.6.2012 - There is also considerable force in submissions on behalf of assessee that in view of the decision of Supreme Court Ranbaxy Laboratories 2011-TIOL-105-SC-CX that there cannot be any dispute about the liability of Revenue to pay interest under Section 11BB of the Act commencing from the date of expiry of three months from the date of receipt of application for refund under Section 11B(i) of the Act - The Appellate Tribunal has referred to this decision in its impugned order - Similarly, in view of the orders of the Assistant Commissioner which has remained unchallenged as regards the quantum of refund of unutilized CENVAT credit, there cannot be any lis even as regards the quantum - This court is of the considered opinion that no substantial questions arise for consideration, and the appeals are dismissed accordingly: HC

2019-TIOL-1394-HC-MAD-CX

Yes and Yes Hi-Tech Promoters India Pvt Ltd Vs CCE & ST

CX - The assessee filed the appeal before Tribunal challenging the O-I-O in and by which the demand of service tax made in SCN demanding service tax - There is also a demand for interest and levy of penalty - Before the Tribunal, assessee filed an application seeking for complete waiver of pre-deposit - The Tribunal vide interim order directed the assessee to deposit the sum within six weeks - The assessee filed petition for restoration and as there was a delay, they prayed for condonation of delay and restoration of this appeal and this application was dismissed by Tribunal as Tribunal has no jurisdiction as it would become the funtus officio - The substantial questions of law raised in this appeal has been considered by Division Bench of this Court in case of Classic Builders (Madras) Pvt. Ltd. 2016-TIOL-465-HC-MAD-ST and the same were answered in favour of assessee - It is submitted by assessee that the pre-deposit ordered by Tribunal has been subsequently complied with by assessee on 11.03.2016 though belatedly - By applying the decision in the case of Classic Builders (Madras) Pvt. Ltd., the substantial questions of law have to be answered in favour of assessee: HC

- Appeal allowed : MADRAS HIGH COURT

2019-TIOL-1392-HC-MP-CX

Rai Enterprises Vs CC, CE & ST

CX - Before the Tribunal, there was a delay of 4 years; condonation whereof, was sought - The Tribunal dismissed the application for condonation observing that no sufficient cause was shown - In the case at hand though as evident from impugned order that the department did not respond to the letter dated 28.06.2018 sent by the Tribunal seeking the date and proof of service - However, the facts on record reveal that all the notices right from 12/02/2007 were addressed at the registered address of the assessee and were received by them - The appellate order dated 30/04/2014 is shown to be served on same address - In this fact situation, since the assessee failed to discharge the onus that it was prevented by sufficient cause from filing the appeal within limitation, the Tribunal was justified in declining to condone delay - In view whereof, since no substantial question of law arises for consideration, no indulgence is caused: HC

- Appeal dismissed : MADHYA PRADESH HIGH COURT

2019-TIOL-1391-HC-MUM-CX

CCE, C & ST Vs Sun Pharmaceutical Industries Ltd

CX - It is an agreed position between the parties that the questions raised herein stand concluded against Revenue by the order of this Court in M/s. IVP Limited - The questions as proposed do not give rise to any substantial question of law, hence, not entertained: HC

- Appeals dimissed : BOMBAY HIGH COURT

2019-TIOL-1390-HC-MUM-CX

CCT Vs Thermax Engineering Construction Company Ltd

CX - By the impugned order, the Tribunal has disposed of two appeals filed before it - One by the Revenue and other by the assessee - The question (a) has been raised in the appeal filed by the assessee and question (b) arose in the appeal filed by Revenue - It would be necessary for Revenue to file two appeals as held by this Court in The Shipping Corporation of India Ltd. - In said case, this Court has directed that where more than one appeal before the Tribunal has been disposed of by a common order and if a party is aggrieved by common order passed in appeals before the Tribunal then it is incumbent upon party so aggrieved to file that many number of appeals as have been disposed of adverse to the party by Tribunal - The Revenue states that so far as this appeal is concerned, he would urge only question (b) for consideration - However, he seeks liberty to file a separate appeal in respect of question (a) which arises from appeal filed by assessee before the Tribunal - Thus, this appeal is restricted only to question (b) which alone is pressed: HC

CUSTOMS

2019-TIOL-1389-HC-MUM-CUS

Murari S Sawant Vs CC

Cus - The grievance of petitioner is that the order of Additional Commissioner contains error apparent on record, which has lead to imposition of a penalty much higher then what, according to the petitioner, can be imposed in law - It is a settled position that a right of appeal is a statute given right and in the absence of statute providing for the same, there is no natural or fundamental right to file an appeal before the Appellate Authorities under the Act - This right of appeal can always be bestowed subject to such conditions, as are thought fit by legislature - The Act provides that any party aggrieved by an order of Officer of Customs below the rank of Commissioner of Customs, is entitled to file appeal under Section 128 of Act to the Commissioner (A) - However, this right of appeal is not unconditional - It is circumscribed by requirement of the party, seeking to appeal making necessary predeposit of 7.5% of duty and penalty which has been confirmed by lower authority - This deposit has to be made under Section 129E of the Act - This provision was held to be reasonable by this Court in Security Guards Board - 2017-TIOL-853-HC-MUM-ST - This Petition does not advisedly challenge the constitutional validity of Section 129E of the Act as the same has been rejected by this Court in Haresh N.Vora - 2017-TIOL-1205-HC-MUM-CUS - Therefore, it is not open to direct the statutory authority, functioning under the Act to ignore the requirement of the Act for the purpose of entertaining the appea - The court decline to entertain the Petition - However, dismissal of this Petition will not preclude the Petitioner from adopting any other remedy available to it under the Act, if permissible, such as rectification application in terms of Section 154 of the Act: HC

2019-TIOL-1388-HC-MUM-CUS

Nobal Jewels Pvt Ltd Vs UoI

Cus - The challenge in this petition is to the letters issued by DRI to the IDBI Bank Ltd and Kotak Mahindra Bank Ltd virtually freezing the specified account maintained by Petitioner by allowing debit operation subject to the maintenance of minimum balance in the Accounts - The Petitioner is stated to be in the business of import/export trading of rough and polish diamonds - The issue raised herein stands concluded by the decision of this Court in Rajen Shinde - 2015-TIOL-2937-HC-MUM-CUS and Rajaram Purohit - 2018-TIOL-591-HC-MUM-CUS - In Rajen Shinde , the Court observed that notwithstanding the seriousness of the allegations made by Revenue, the attachment of the Petitioner's bank account will bring to halt the Petitioner business - In Hinel Impex, in virtually identical circumstances, this Court interfered with the communication which operated as Debit freeze to the extent of the amount of Rs. 1,04,765/- in the bank account - Applying the reasoning in the aforesaid decisions, the impugned communications dated 2nd November, 2018 are set aside and the rule made absolute in terms of prayer clause (a) and (b) of the Petition - In the present case, court was considering imposition of costs against the Respondents because despite the decision of this Court in virtually identical circumstances, the Respondents persist in ordering Debit freezing without issuing of any SCN or completing investigations within the reasonable period - The Respondent are directed to issue consequential direction to the IDBI Bank Ltd. and Kotak Mahindra Bank Ltd. further intimating the bank that the impugned communications have been set aside: HC