2019-TIOL-1486-HC-AHM-GST

MK Traders Vs UoI

GST - Petition filed seeking issue of a writ of mandamus, direction etc. directing the respondents to release the seized goods along with truck on such terms and conditions as deemed fit.

Held: Stance of the respondents is that the conveyance and the goods came to be detained applying the provisions of Section 130 of the Act, 2017 - Bench is only concerned, as on date, with the issue, whether it should order release of the conveyance and the goods (betel nut) pending the confiscation proceedings - It goes without saying that the betel nut is a perishable commodity and are lying in the open for the past almost 35 days - By the time the confiscation proceedings are concluded, probably, the goods may get completely destroyed or may suffer extensive damage - writ applicant has deposited the amount of tax to the tune of Rs. 2,29,320/- i.e. 5% under the GST and also deposited the amount of penalty to the tune of Rs 2,29,320/-,i.e. equal to amount of tax amount - According to the respondents, the calculation of fine of confiscation of goods would come to Rs 45,86,400/- - Bench is of the view that the conveyance and the goods should be released pending the confiscation proceedings, subject to the writ applicant executing a personal bond of Rs 44,10,000/- to the satisfaction of the respondents - On executing a personal bond of Rs 44,10,000/-, the respondent shall, forthwith, release the conveyance and the goods, subject to the final outcome of the confiscation proceedings - Writ application disposed of: HC [para 7 to 10]

- Petition disposed of: GUJARAT HIGH COURT

SERVICE TAX

Salem Club Vs CGST & CE

ST - The issue in dispute pertains to the demand of service tax under category of 'Club or Association Service' as defined in Section 65(105)(zzze) of FA, 1994 - The issue is no longer res integra and is covered by a slew of decisions in M/s. Ranchi Club Ltd. - 2012-TIOL-1031-HC-JHARKHAND-ST, and M/s. Sports Club of Gujarat Ltd. - 2013-TIOL-528-HC-AHM-ST - The ratio adopted in these decisions has also been followed by CESTAT, in the case of M/s. The Madras Club and M/s. Cosmopolitan Club - 2018-TIOL-2739-CESTAT-MAD - No new reasons or grounds found to take a different view - The impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

2019-TIOL-1986-CESTAT-CHD

Sanchit Exports Ltd Vs CCE & ST

ST - The assessee is in appeals against the impugned order wherein the appeals have been dismissed for non-compliance of provisions of Section 83 of FA, 1994 r/w Section 35F of CEA, 1944 - The assessee has made a mandatory pre deposit of amounts, as required by Commissioner (A) to entertain the appeals - The Commissioner (A) has not passed the order on merits, therefore, by setting aside the impugned order, the matters is remanded back to Commissioner (A) to decide the issue on merits without insisting any pre deposit from the assessee: CESTAT

- Matter remanded: CHANDIGARH CESTAT

CENTRAL EXCISE

Alkem Laboratories Ltd Vs CGST & CE

CX - Question of lawbefore the High Court was whether the Tribunal was correct and justified in reaching a conclusion that no order on merits of the matter could be passed since a decision of the Tribunal in favour of the appellant was the subject matter of challengebefore the High Court - inasmuch as the Tribunal hadremanded the issue tothelower authoritywith a specific direction that the lower authority should await the result ofthe challenge tothe decision of Tribunal in Shree Rajasthan Syntex Ltd. pending consideration beforethe Rajasthan High Court.

Held: Issue standsconcluded bythe apexcourt decision in Kamalakshi Finance Corp. Ltd. [2002-TIOL-484-SC-CX-LB] where it is held that Revenue has unreservedly to follow the Appellate authority's order unless its operation is stayed by a higher forum; that if this rule is not observed, it wouldlead to unnecessary harassment of litigants - Therefore, Tribunal ought to have directed Revenue to follow the decision of its Coordinate Bench, by itself following it - substantialquestion of law is answered in the negative i.e. in favour ofappellant-assessee and against the respondent-revenue - appeal restored to theTribunal for fresh disposal in accordance with law - Appeal disposed of: High Court [para 1, 3]

- Appeal disposed of: BOMBAY HIGH COURT

2019-TIOL-1985-CESTAT-DEL

Sanwariya Furnaces Pvt Ltd Vs CCGST, C & CE

CX - The assessee was availing benefit of Rajasthan Investment Promotion Scheme, 2010 (RIPS) notified by State Government of Rajasthan with a view to promote investments thereby entitling the assessee to a subsidy up to certain percentage of the VAT paid by them - Said subsidy is credited to the sales tax account of assessee which he receives by way of VAT 37B Challans - It is also an apparently admitted fact that the assessee was paying total VAT charged at applicable rates on sale of goods to the State Exchequer and was filing the VAT returns - The VAT 37B Challans, the assessee was utilising to discharge the output VAT liability for the subsequent period - The Department has treated the said discharge of VAT liability vide the said VAT Challans as retention of sales tax by assessee holding same, while levying/ confirming the impugned demand to have been included in the transaction value - It is clear that discharge of liability by way of VAT 37B challans is a legally sustainable method of discharging tax liability of subsequent period - Hence, no question of intent to evade tax at all arises once it stands so discharged - Thus, the order confirming demand and imposing penalty is apparently erroneous, same is set aside: CESTAT

- Appeal allowed: DELHI CESTAT

Pradeep Kumar Shahoo Vs CC & CCE

CX - None appeared on behalf of assessee nor any application for adjournment has been filed for the defect memo dated 19.02.2018 - Accordingly, no evidence of mandatory pre-deposit has been adduced - There are other defects which have not been amended - If it is so, then the appeal is not maintainable: CESTAT

- Appeal dismissed: DELHI CESTAT

CC & CE Vs Shanti Surgicals Pvt Ltd

CX - The assessee manufactures Absorbent Cotton Wool, Carded Cotton/Non absorbent Cotton, Handloom Gauze, Handloom Bandages and other bandages etc - These were manufactured under product license issued by the Drug Controller - The assessee was under the belief that the goods were classifiable under Chapters 52 & 56 fo the CETA 1985 & would not attract any duty - The Revenue opined that the assessee should have obtained registration with the Excise Department & that the goods were classifiable under Chapter 3005 and would attract duty - SCNs were raised proposing to raise duty demands u/s 11A of the CEA 1944 - Further demands were raised by denying benefit under Notfn No 08/2003-CE - Such demands were confirmed upon adjudication - On appeal, the Commr.(A) set aside the findings in the O-i-O on grounds of wrong appreciation of facts - Hence the present appeal by the Revenue.

Held: It is seen that in one of the SCNs which ultimately culiminated into an appeal before the Tribunal, the Tribunal held that the combined factor which must be taken note of for classification purposes would be the composition of the goods, the product literature, the label, the character of the products and the purpose for which the goods are put to use - It was noted therein that the goods were to be used in hospitals for cleaning or placing over wounds for preventing infection or disease - Hence the products were classified under Chapter Sub Heading 3005 - Following such findings, the O-i-A merits being sustained: CESTAT

- Revenue's appeal dismissed: ALLAHABAD CESTAT

CUSTOMS

NOTIFICATION

cnt50_2019

Seeks to further amend notification No 27/2011-Customs dated 1st March 2011 to reduce export duty on EI tanned leather and Hides, skins and leathers, tanned and untanned, all sorts

CASE LAWS

2019-TIOL-266-SC-CUS

CC Vs Premier Marine Products

Cus - The present writ petitions seek that writ of mandamus be issued, declaring to forbear the Revenue from levying and collecting Cess under the Agricultural Produce Cess Act, 1940 on the export of prawns/shrimps by the assessees - The High Court allowed the writs by following the decision in The Commissioner of Customs, Tuticorin Vs. M/s. Edayam Frozen Foods and another.

Held - Delay condoned - Leave granted - Matter be tagged with Civil Appeal Nos.3047-3083 of 2012: SC

- Notice issued: SUPREME COURT OF INDIA

2019-TIOL-265-SC-CUS

CC Vs Falcon India

Cus - The Revenue filed the present appeal to challenge an order, wrongly styled as order-in-original, granting Customs Broker License under the CBLR 2013 - During the relevant period, the CBLR 2013 was not in force - The O-i-O dealt with the objections raised by the DRI regarding grant of such license & regarding investigation of some allegations of mis-declaration - The Revenue assailed the Commissioner's order before the Tribunal, but was unsuccessful - The High Court held that appeals to Tribunal are maintainable at the behest of persons aggrieved by any order of a Principal Commissioner or by an adjudicating authority - It is settled principle of law that an appeal is a mandate if the statute - Unless the controlling parent enactment is expressed – or by force of necessary implication, it can be inevitably interfered with the subject matter of a particular dispute, is appealable, appeals cannot be claimed as a matter of right - In such circumstances, that the Commissioner's order was styled as an O-i-O or that it mistakenly pointed to an appellate remedy u/s 129A of the Act is inconclusive or where such appeal is maintainable.

Held - Delay condoned - Notice be issued to the parties: SC

- Notice issued: SUPREME COURT OF INDIA

2019-TIOL-1982-CESTAT-ALL

CC Vs Tinna Rubber And Infrastructure Ltd

Cus - The present appeal need not be entertained as the tax value involved is lesser than the enhanced monetary limit of Rs 20 lakhs as specified in Instructions dated 11/07/2018: CESTAT

- Revenue's appeal dismissed: ALLAHABAD CESTAT