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SERVICE TAX
2019-TIOL-1995-CESTAT-MAD
Professional International Courier Pvt Ltd Vs CGST & CE
ST - The assessee is engaged in providing Courier Agency Service - During audit, it was noticed that the assessee had provided Courier Agency Service for both inbound and outbound documents, goods or articles and had also provided services as co-loader i.e., forwarding of documents, goods or articles received from M/s. Professional Courier - On verification of accounts, it was noticed that the assessee had not paid service tax on charges collected by them in respect of services provided as a co-loader up to 22.08.2007 - The issue issue has already been considered and laid to rest by the decision of this very Bench of Tribunal in case of M/s. Concord Express Logistics India Pvt. Ltd. - 2018-TIOL-2710-CESTAT-MAD, wherein this Bench after considering the applicability of Board Circular dated 01.11.1996 as well as the judgement in case of United Business Xpress India P. Ltd. - 2016-TIOL-3491-CESTAT-DEL has set aside the demand of service tax with respect to co-loader - Following the said ratio, the demand raised in respect of the services rendered as a co-loader cannot sustain - With regard to the demand for the period post 22.08.2007, case remanded to the file of the adjudicating authority who shall work out the demand for the period post 22.08.2007; and it is for the assessee thereafter to convince the adjudicating authority with regard to its claim of payment of tax - However, there being no suppression of facts on the part of assessee to evade payment of service tax, the penalty imposed on this count is set aside: CESTAT
- Appeal partly allowed: CHENNAI CESTAT
2019-TIOL-1994-CESTAT-MAD
Rajasthani Sangh Vs CCE & ST
ST - Assessee is registered under category of Mandap Keeper Services - The SCN has been issued pursuant to audit of accounts from which the difference between the figures furnished in ST-3 returns and the financial statements was noticed by department - The assessee contend that they have received Rs.16,69,841/- in the form of donation - Undisputedly, the assessee is a charitable organisation - Although, they are rendering Mandap Keeper Services, they may also be receiving funds in the nature of donation - Assessee has furnished the details with regard to the amount received by assessee in the nature of donation - The department has not done any investigation so as to check whether such amounts were received from various persons - Further, during the relevant period, service tax was payable on receipt basis; whereas, income-tax was payable on accrual basis - It is seen that they have collected donations for buildings, putting up dispensary - These were accounted under General Fund Account - Being a charitable organisation, a strong inference can be drawn that the amount received are in the nature of donations only - The demand is raised on mere assumption that assessee has not been able to explain that these are donations - The department has not been able to support their allegation with evidence that the said amount were collected for providing services of Mandap Keeper - The demand cannot sustain: CESTAT
- Appeal allowed: CHENNAI CESTAT
CENTRAL EXCISE
2019-TIOL-1998-CESTAT-MAD
R Stahl Pvt Ltd Vs CGST & CE
CX - The assessee is manufacturer of alarm and signalling devices and light fittings and availed the facility of Cenvat credit of duty paid on inputs and capital goods and service tax paid on input services - The issue is with regard to demand raised alleging that credit was availed on common input services which were used for trading activity (high-sea sales) and manufacturing activity - From the arguments put forward by assessee, it is brought out that high-sea sales has taken place outside the jurisdiction of Central Excise authorities - The Tribunal in the case of M/s. Rajpetro Specialities Pvt. Ltd. had occasioned to analyse the very same issue - When the alleged trading activity has occurred outside the jurisdiction of Central Excise authorities as well as FA, 1994, the demand cannot sustain: CESTAT
- Appeal allowed: CHENNAI CESTAT
2019-TIOL-1997-CESTAT-MAD
Rajshree Sugars And Chemicals Ltd Vs CGST & CE
CX - The assessee is engaged in manufacture of Sugar and Molasses - A SCN was issued to assessee proposing to recover the Credit availed on MS Angles and Plates on the ground that the same do not come within the ambit of definition of "capital goods" vide Rule 2(a) of CCR, 2004 and also proposing to recover the Credit on Welding Electrodes used for repairs and maintenance under Rule 14 of CCR read with proviso to Sub-section 11A(1), along with applicable interest and penalty - The Madras High Court in M/s. Thiru Arooran Sugars - 2017-TIOL-1357-HC-MAD-CX has held that MS Angles and Channels being an integral part of capital goods and manufacturing of final goods, are eligible for credit - Therefore, judicial propriety demands that the binding decision of jurisdictional High Court be followed - The denial of Credit on MS Angles and Plates is not sustainable for which reason the same is set aside - Coming to the issue relating to Welding Electrodes used for repair and maintenance purposes, an identical issue has already been considered and laid to rest by this Bench of Tribunal in case of M/s. UltraTech Cements Ltd. as well as the Hyderabad Bench of Tribunal in case of M/s. The Andhra Sugars Ltd. - 2018-TIOL-2691-CESTAT-HYD and therefore, the same is no longer res integra - Following the same, the denial of Credit on this count is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
CUSTOMS
NOTIFICATION
cnt51_2019
Tariff Notification in respect of Fixation of Tariff Value of Edible Oils, Brass Scrap, Poppy Seeds, Areca Nut, Gold and Silver- Reg CASELAWS
2019-TIOL-1489-HC-MUM-CUS
DK Trading Company Vs UoI
Cus - Petitioner is aggrieved on account of the fact that the export consginment shipping bill dated 23.08.2018 has not been assessed till date and this would result in not only in the petitioner not fulfilling its export obligations but also is likely to result in cancel of the export shipments in view of the delay; that the communication dated 4th December, 2018 at the instance of the respondent Commissioner of Customs granting a provisional release of the said goods is completely without jurisdiction inasmuch as prior to the order dated 4th December, 2018 there was no seizure of the said goods; that the seizure memo dated 5 th April 2019 is not justified and the goods should be assessed and allowed to be cleared expeditiously; that respondents be directed to issue SCN and adjudicate the same at the earliest.
Held: The impugned order dated 4th December, 2018 allowing provisional release of the said goods was under Section 18 of the Act and it is not correct to state that such provisional assessment of the shipping bill can only be done consequent to a seizure of the said goods under Section 110 of the Act - However, the impugned order dated 4th December, 2018 stands superseded / abandoned by the Revenue in view of the seizure of the said goods by order dated 15th April, 2019 under Section 110 of the Act - Therefore, Bench formally sets aside the order dated 4th December, 2018 allowing provisional assessment of the shipping bill dated 23rd August, 2018 filed by the petitioner - However, counsel for the Revenue submits that the investigations are in progress and it would not be possible for them to expedite the issue of show cause notice; that the Commissioner of Customs, Nhava Sheva (the Adjudicating Authority) would consider the petitioner's request for provisional release of the said goods under Section 110A of the Act and that such order under Section 110A of the Act would be passed after hearing the petitioner with regard to the terms and conditions of the provisional release of the said goods, pending issue of show cause notice and adjudication thereof - on instructions, Counsel for Revenue states that the order on provisional release of the said goods under Section 110A of the Act will be passed within a period of three weeks and which statement is accepted - Petition disposed of: HC [para 3, 4, 6, 7]
- Petition disposed of: BOMBAY HIGH COURT
2019-TIOL-1488-HC-MUM-CUS
Ryan Sea Air Agency Vs CC
Cus - Pre-deposit - Section 129E of the Customs Act, 1962 - It is not for the High Court to direct the statutory authority, functioning under the Act to ignore the requirement of the Act for the purpose of entertaining the appeal - Right of appeal against the order of the lower authority is not unconditional - pre-deposit as mandated under the law cannot be waived - Petition dismissed: High Court [para 2]
- Petition dismissed: BOMBAY HIGH COURT
2019-TIOL-1996-CESTAT-DEL
Vijender Kumar Anjan Vs CC
Cus - One Shri V.K. Bansal was the master mind and person behind two companies viz Dollor Poly Pipes (India) Ltd. and Shivalik Plastichem (India) Ltd., who obtained advance scrips authorization for free importation of goods (raw materials), which were supposed to be used in manufacture of finished Products and after manufacture to be exported and to achieve net foreign exchange earning - However, the said Shri Vinod Kumar Bansal in collusion with one Shri Vinod Kumar Garg, Managing Director of Veekay Poly Coats Ltd., Gurgaon imported and diverted the raw materials clandestinely in the open market - Further, the said Shri Vinod Kumar Bansal in order to escape from the clutches of law, always made his employees as Directors in the said companies - Pursuant to investigation, SCN was issued proposing to confiscate the imported raw materials - So far as the Dollar Poly Pipes (India) Ltd. is concerned as regards 40 MT of PVC resins having assessable value of Rs.13,17,236/- imported through Mumbai Sea Port and further demand of customs duty on the same, amounting to Rs.7,82,711/-, which was foregone at the time of import - Further, proposal to impose penalty under Section 112 (a) and (b) and /or under Section 114 A on the present and the past directors including the present assessee Shri V.K. Anjan - The present assessee resigned from directorship of both the companies in April-June, 2004, on coming to know of the nefarious activity and intention of Mr. Vinod Kumar Bansal - Further, the Addl. DGFT, New Delhi have in appellate orders, ordered deletion of name of this assessee from the adjudication orders, with respect to the disputed "Advances Authorisation Licenses" - Further, the adjudicating authority have not found complicity on the part of assessee - Rather it is the finding that Mr. Vinod Kumar Bansal in collusion with Mr. Vinod Kumar Garg of Veekay Poly Coats Ltd., imported and diverted the PVC-resins, in violation of the conditions of the Advance Authorisation Licence - Mr. Vinod Kumar Bansal was the actual owner and mastermind behind the activities of both DPPL and Shivalik Plastichem - Thus, this assessee, being an employee, only accepted directorship of the two companies under instructions of his employer, and was not personally involved - Therefore, the appeal is allowed in part and the penalty under Section 112 is reduced to Rs.50,000/-: CESTAT
- Appeal partly allowed: DELHI CESTAT
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