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SERVICE TAX
2019-TIOL-1904-CESTAT-MUM
Raheja Regency Cooperative Housing Society Ltd Vs CCGST
ST - Appellants filed refund claims for the period 2014-15 and 2015-16 on the ground that they have paid service tax under protest and since they are a co-operative society which is not engaged in any activity of profit the services provided by them to their members is not liable to service tax under Club or Association Service - claims rejected by lower authorities, hence appeal before CESTAT.
Held: It is settled principle that for a service to be taxable, it is necessary that the service has to be rendered and by one person to another - Without a perceived service, money contribution cannot be held to be a consideration that is liable to tax - Commissioner noticed the submission about the principle of mutuality but he failed to discuss the same and give any findings before reaching the conclusion in the impugned order - Issue requires to be examined and failure to do so would render the impugned order invalid - order set aside and matter remanded to the Commissioner to decide the appeal afresh: CESTAT [para 4, 5]
- Matter remanded : MUMBAI
2019-TIOL-1900-CESTAT-AHM
Kishunji Yadav Vs CCE & ST
ST - The assessee is engaged in providing Man Power Service during period 01.07.2012 to 31.12.2013 and they paid service Tax on 100% of gross value charged to their client - Very limited issue of time bar is involved in refund matter - As per lower authority, the refund was rejected on the ground that the refund of Service Tax paid by assessee was not filed within one year from the date of payment of Service Tax - At the time of payment of Service Tax, there was no dispute that they have paid Service Tax on 100% gross value of Man Power Service - The dispute arose only when the audit has raised objection at the end of recipient of service regarding availment of Cenvat Credit on Service Tax paid by assessee - As per audit, assessee was not supposed to pay Service Tax on 100% gross value, whereas, in terms of Notfn 30/12-ST, they were supposed to pay on 25% of the gross value - Since, assessee paid the Service Tax on 100% and the same was availed by recipient as Cenvat credit, there was no occasion for filling any refund claim, refund has arisen only as per the audit objection and compliance thereof by making the payment towards Cenvat credit and interest thereon - Therefore, the relevant date should be from the date when audit has raised an objection and compliance thereof - The assessee admittedly filed the refund claim well within one year of that date i.e. on 22.02.2015 - Thus, the refund is not time barred, as the same was filed within one year from the relevant date - Accordingly, the impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2019-TIOL-1899-CESTAT-DEL
Makson Healthcare Pvt Ltd Vs CGST, CE & CC
ST - Issue is whether transport services availed by the appellant for export of their goods from their factory to the gateway port has been rightly denied under Notification No. 31/2012-ST - alleging that the appellant have filed form EXP-2 with the Department on 8th November, 2013 for the period April, 2013 to September, 2013 whereas they were required to file for EXP-2 by 15th October, 2013, service tax has been demanded by denying the exemption notification - appeal before CESTAT.
Held: Once form EXP-1 is filed, it is valid till there is variation in the details contained therein - procedural requirement of filing of declaration in the circumstances cannot be held to be mandatory - for admitted delay of about 22 days in filing form EXP-2, the benefit of exemption from service tax for admitted export of goods, cannot be denied - impugned order is set aside and appeal is allowed with consequential relief: CESTAT [para 8]
- Appeal allowed: DELHI CESTAT
CENTRAL EXCISE
2019-TIOL-1902-CESTAT-ALL
CCE, C & ST Vs Raj Construction Company
ST - Interlocking of Tiles along both sides of the road and repair of Nala (Drains) cannot be, by any stretch, considered to be Construction Services - Laying of Cable Feeder Line is covered by Notification No.45/2010-(ST) inasmuch as, the same relate to Transmission & Distribution of Electricity - assessee appeal allowed: CESTAT [para 3]
ST - Majority of the demand is raised by invoking the longer period of limitation - since interpretational issue is involved, extended period of limitation cannot be invoked: CESTAT [para 4] Revenue appeal rejected/Assessee appeal allowed -
ALLAHABAD CESTAT 2019-TIOL-1901-CESTAT-KOL
National Plywood Industries Ltd Vs CCE
CX - Valuation - Cash and volume discounts stipulated in agreement between assessee and buyers known at or prior to clearance of the goods is to be deducted from sale price in order to arrive at value of excisable goods and there is no change in the legal position after amendment of Sec.4 of C.Ex Act - From the said invoices/bills Bench also finds that the appellant during the relevant period, had claimed discounts of exactly the quantities thereof passed on to the customers - appellant has rightly availed abatement of the discounts involved and the Commissioner has erred in disallowing the same - impugned order set aside and appeal allowed with consequential relief: CESTAT [para 9, 10, 12]
- Appeal allowed: KOLKATA CESTAT
CUSTOMS
NOTIFICATION
dgft19pn016
DGFT extends date to 01.04.2010 for implementing Track & Trace system for exporting drug formulations manufactured by SSI & non-SSI units
cnt48_2019
CBIC notifies Customs exchange rates for import & export purposes CASE LAWS
2019-TIOL-1403-HC-MAD-CUS
Hira Traders Vs DGFT
Cus - Petitioners import pulses, cereals or spices from various suppliers from different countries - While so, the first respondent in terms of the powers conferred under the Foreign Trade (Development and Regulation) Act, 1992 amended the import policy pertaining to the import of pigeon peas by Notification N.19/2015-2020, dated 05.08.2017 - By virtue of the said notification, the import policy of items of Chapter 7 of the ITC (HS), 2017, Schedule I with respect to Pigeon Peas/Toor Dal was revised from "free" to "restricted" with an annual (fiscal year) quota of 2 lakh MT - said notification was followed up with another notification No.22/2015-2020 dated 21.08.2017 once again seeking to amend the import policy and in terms of which the import policy of Beans of the species Vigna Mungo (L.) Hepper (Moong Dal) from "free" to "restricted" with an annual (fiscal year) quota of 3 lakh MT – another Notification No.6/2015-2020 on 04.05.2018 was issued seeking to partially modify the Notification No.22/2015- 2020, dated 21.08.2017 to the effect that the import of Urad and Moong Dal shall be subject to an annual (fiscal year) limit of 1.5 lakh MT each, totalling to 3 lakh MT - accordingly Trade notices came to be issued - As per the trade notice 12/2018, dated 18.05.2018, it was clarified that "already imported" will include shipment already arrived from 01.04.2018 till 25.04.2018 and those shipments backed by Irrevocable Commercial Letter of Credit (ICLC) and Advance Payment of 100% made through Banking Channel before 25.04.2018 - Petitioners in these writ petitions pray for quashing the notifications and the consequential trade notices issued either by the Director General of Foreign Trade (DGFT) or the Joint Director of Foreign Trade - petitioners contend that an executive action cannot modify the statutory prescription.
Held: If the contracted quantity in terms of the contract between the local importer and the person abroad, is specified and if the entire amount has been secured in terms of Irrevocable Commercial Letter of Credit or full advance payment irrespective of whether the delivery of the goods will be made in part or not will be covered by the words 'already imported' - Therefore, it can be understood that if there is an Irrevocable Commercial Letter of Credit, the shipment backed by such Irrevocable Commercial Letter of Credit and if they are already imported between the said notified date, they will be registered as per para 1.05 of FTP 2015-2020 - With respect to advance payments made to the extent of hundred percent, they will also be qualified to register with the regional authorities of the DGFT - Thus, the transitional arrangement is already clarified by the trade notices, which are not in contravention to the substantive provisions of the notifications or Section 3 of the FTDR Act - Court is of the opinion that the restrictions imposed by the Government of India are justified, which are brought out by the Government of India through the DGFT for the benefit of the farmers, who are cultivators of indigenous peas, as the import of Peas flooding the market reduce the demand for locally grown peas - Hence, the peas growers in India are unable get the right price resulting in loss to small farmers - In such a view of the matter, the restriction imposed can never be said to be in violation of Article 19(6) of the Constitution – Petitions fail and hence are dismissed: High Court [para 11 to 13]
- Petitions dismissed: MADRAS HIGH COURT
2019-TIOL-1903-CESTAT-MUM
Alca Technologies Vs CC
Cus - Assessee had imported goods under EPCG Scheme of Foreign Trade Policy and was required to fulfil their export obligation by 11th February 2014 - As this obligation prescribed in said exemption notfn 97/2004- Cus entitling the assessee to concessional rate of duty was not evidenced, by production of 'export obligation discharge certificate', to have been complied with, SCN was issued to them - The application to licensing authority was made almost nine months after the prescribed period for discharge application had expired - Considering the voluminous records that were to be submitted, no anomaly found in this lapse of time - At the stage of issue of SCN as well as of impugned order, the customs authorities were not unaware that the application for 'export obligation discharge certificate' was yet pending with the licensing authority - Had the licensing authority been dissatisfied on this score, a SCN under FTDR Act, 1992 would have been on record - It was not necessary for adjudicating authority to proceed with such haste to dispose off the SCN - That this was premature is apparent from the issue of discharge certificate from the licensing authority barely six months after that - The proper course of action for original authority would have been to keep the notice pending till the licensing authority had responded one way or the other - Matter remanded to the original authority for a decision on liability to duty in the light of evidence of having fulfilled the prescription in notification: CESTAT
- Appeal disposed of: MUMBAI CESTAT |
