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SERVICE TAX
2019-TIOL-2013-CESTAT-DEL
Superintendent Of Police Vs CE & ST
ST - The Order to be challenged was announced on 28.04.2016 - No doubt, the applicant has attached a date sheet showing the time taken in getting sanction to file the appeal - But perusal thereof is sufficient to hold that the appellant’s Department has acted absolutely with negligence while dealing with the matter of filing the Appeal for which a specific statutory period is provided - Ignorance of law is no excuse - Otherwise also as far as information about period of limitation for final appeal is concerned, the same is very much available on the preamble of the Order - It was mandatory even for the Government Department to be careful about that statutory time limit - The date sheet produced on record rather reflects the casual and negligent attitude of assessee which is highly unappreciable for a Government Department - Even under the name of administrative constraints, the delay of 780 days is not sufficiently explained - The case law as referred by assessee is not applicable - The Application in hand is hereby dismissed for want of any reasonable explanation or sufficient cause shown for delay of more than two years rather for the apparent negligence on part of the assessee: CESTAT
- Appeal dismissed: DELHI CESTAT
2019-TIOL-2012-CESTAT-BANG
TP Vision India Pvt Ltd Vs CCT
ST - The assessee is engaged in providing various taxable output services viz., Information Technology Software Service, Business Auxiliary Service to their principal abroad M/s. T. P. Vision, Netherlands - They are registered as SEZ Unit and are primarily engaged in exporting Software Development Services to its group company in Netherlands - The assessee have filed two refund claims for refund of service tax amount paid on specified services said to have been used for various operation in SEZ under Notfn 12/2013-ST - Same was partly rejected - The only ground on which refund has been rejected is that the impugned services have not been approved by UAC of SEZ which is a mandatory condition under Notfn 12/2013-ST - Further, both the authorities have not considered the usage of input services procured by assessee during the refund period - The original authority should have verified the usage and the nexus of impugned services with the authorized operations - In the case of Tata Consultancy Services Ltd. - 2012-TIOL-1034-CESTAT-MUM, it was held that services provided to SEZ or a unit in the SEZ is deemed as export as per the provisions of Section 2((m)(ii) of the SEZ Act, 2005 and as per Rule 31 of SEZ Rules, 2006, the assessee is entitled for exemption from payment of service tax on the services which are used or provided to a unit in SEZ - Further, as per Section 51 of said SEZ Act, the said provisions prevail over the provisions contained in any other law for the time being in force - It is the avowed policy objective of the Government of India that exports should not bear the burden of taxes - In the case of Mast Global Business Services India Pvt. Ltd. - 2018-TIOL-3115-CESTAT-BANG, this Tribunal in an identical matter has held that refund is admissible even though the services are not listed in the approved list as long as there is no dispute on usage of the said services for the authorized operations - Further, CESTAT has held that non-inclusion in the approved list is only a procedural lapse - Said decision was also followed by Tribunal in the case of Lowe’s Services India Pvt. Ltd. - By following the ratio of said decision, the impugned order is not sustainable in law and therefore, the same is set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT
2019-TIOL-2011-CESTAT-AHM
Sandeep Traders Vs CST
ST - The assessee is engaged in providing service of 'Commission Agent' in the business of trade - They received commission for their services during year 2004-2005 and 2005-2006 which according to department falls under the ambit of Service Tax under category of BAS as defined under Section 65 of FA, 1994 - A SCN was issued demanding Service Tax for captioned period on the service of 'Commission Agent' which was culminated into the adjudication order, whereby demand was confirmed -
The appeal can be disposed of on the ground of time bar itself without going into the merit of the case - There is a force in the argument of assessee that till 31.03.2006 the commercial concern does not include the individual which was subsequently amended as 'A person' - There is no dispute that admittedly, assessee started payment of Service Tax without pointing out by the department - Therefore, assessee have rightly entertained the bonafide belief regarding the non taxability of their service till 31.03.2006 - Though the assessee have obtained the registration on 19.09.2006, the department has initiated action and record statement on 30.05.2007 - Though the lower authority have not considered the notification as the same was not argued before them - However, even the eligibility of Notfn 14/2004-ST also a debatable issue specifically with regard to the present assessee - Therefore, there is no suppression of fact or malafide intention on the part of the assessee, hence, the demand raised invoking the extended period would not sustain: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
CENTRAL EXCISE
2019-TIOL-2010-CESTAT-AHM
Shah Foils Ltd Vs CCE & ST
CX - The main assessee (M/s SFL) is engaged in manufacture of Stainless Steel Cold Rolled (SSCR) Coils - Based upon investigation they were issued SCN - The demand against assessee is mainly based upon the pen drives seized from the locker whose key was found from ice cream parlour of Shri Manoj Tanna and 11 bundles of loose papers out of which 4 bundles contain the sheets written in gujarati by Shri Ramesh Shah, director of M/s SFL - Alongwith them some other slips and records were found which mainly were written by Shri Dheeraj, employee of M/s SFPL - The Shop was located opposite the office building of M/s Sankalp (M/s SFPL) - The contention of the revenue is that the ledgers found in the pen drive pertains to M/s SFL and depicts the clearances made by M/s SFL - Apart from the ledgers pointed out by revenue one more ledger i.e "Purchase-godown" ledger was maintained which carried details of sales made by assessee - It has not been disputed that the godown at Vasai was owned by M/s SFPL, hence in such case if any godown purchase is shown the same can be only of M/s SFPL - Also even though brokers in their statements had stated that they have purchased goods from assessee but the fact remains that the goods were delivered to them from the Vasai Godown of M/s SFPL - During recording of statement though the brokers stated that the goods were purchased in cash and without any bills as per the details found in "Bombay Sales", however their statements seems to be self contradictory - The department apart from the papers seized from the locker has not been able to give any independent evidence which can corroborate the charges - In such case the denial of cross examination and non following the provisions of section 9D is not correct - No corroborative evidence has been stated in SCN in the form of receipt of unaccounted raw material, transportation of unaccounted such raw material to SFL factory, consumption of unaccounted raw material, production of unaccounted finished goods, production record of unaccounted finished goods, use of consumables, extra labour and excess consumption of electricity, clearance of goods from the factory, receipt of cash from even a single person on account of alleged clandestine sale - The revenue did not undertake any investigation at the end of M/s SFPL from where the clearance of goods has taken place - When the brokers had stated that the delivery was taken from Vasai Godown which was under the ownership of M/s SFPL, the officers should have made investigation - Thus, the demand on account of clandestine removal cannot be made.
As regard to demand on the ground of undervaluation as found from the ledger account "Direct Purchase (Value Diff.)" and "Direct Sales (Value Diff.)", no evidence apart from pen drive data and loose sheets is appearing to show that the assessee has removed goods by making undervaluation - The pen drive data is not a substantial evidence - No evidence of extra receipt has been produced in the form of person from whom such extra consideration was given, how it was received by assessee and in what manner it came to them - In such case only on the basis of pen drive the charges of undervaluation cannot be sustained and the demand on account of undervaluation is not sustainable.
A demand was made on the ground that M/s SFL has availed credit on the basis of invoice without actual receipt of goods - The revenue has not proved the allegation with any evidence as it has to be shown by making investigation at the supplier’s end, statements of suppliers and other corroborative evidences - It has also to be shown as to how the purchase amount paid by the assessee to the supplier came back to them - None of such evidence are on record - The Commissioner has merely relied upon the purchase shown from Golden Metal Pvt. Ltd. to show that the invoices were received without any goods - However the assessee has annexed the declaration in Form 403 issued under Gujarat vat Rules duly stamped by the commercial officer of check post as proof of transit of goods for both the invoices - The allegation and the findings of adjudicating authority is not sustainable - Moreover there is no person who has received the cash from the assessee - Thus the allegations on this account are not sustainable.
Demands and penalties imposed against assessee are not sustainable - The penalty against other assessees is also not sustainable: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2019-TIOL-2009-CESTAT-DEL
Sharda Ceramics Pvt Ltd Vs CCE
CX - The issue involved is regarding the inclusion of freight and insurance in assessable value for manufactured goods delivered at the buyers premises - The Department want to add this element of price in assessable value of goods while seeking that the place of removal at the buyers place - This issue is no more res-integra and covered by the judgment of Supreme Court in case of Ispat Industries Ltd. - 2015-TIOL-238-SC-CX - Following the said ratio, the appeal is allowed: CESTAT
- Appeal allowed: DELHI CESTAT
2019-TIOL-2008-CESTAT-DEL
Tirupati Balaji And Company Vs CE, C & CGST
CX - It was not open to the Adjudicating Authority to rely upon the statements without following the mandatory procedure contemplated by Section 9D of the Act - In other words, the Adjudicating Order has been passed in violation of the mandatory procedure prescribed by Section 9D of the Act - without going into any other aspects of the matter, impugned order is set aside and the matter is remanded back to the adjudicating authority for de-novo adjudication after following the procedure as contemplated under section 9D of the Central Excise Act, 1944: CESTAT [para 8 to 10]
- Matter remanded: DELHI CESTAT
CUSTOMS
NOTIFICATION/ CIRCULAR
ctariffadd19_027 Anti-dumping duty on imports of 'Paracetamol' originating in or exported from China PR extended till 27.10.2019
dgft19not010
Amendment in appointing a new Statistics Office under Collection of Statistics Act 2008
cuscir19_2019
Implementation of PGA eSANCHIT- Paperless Processing under SWIFT-Uploading of Licenses/Permits/Certificates/Other Authorizations (LPCOs) by PGAs
CASE LAW
2019-TIOL-2007-CESTAT-MUM
Mohammad Ali Ghaem Maghami Vs CC
Cus - On the basis of intelligence that Red Sanders was to be smuggled out of the country in the guise of machinery parts under shipping bill filed in the name of M/s. Marvelous Engineers Pvt Ltd., investigation was initiated by Customs department - On completion of investigation, SCN was issued proposing confiscation of Red Sanders and action against various persons involved in the said attempt of illegal export of Red Sanders by proposing penalty against each of them - The Tribunal while considering the appeal filed by M/s Marvelous Engineering Pvt Ltd, arising out of the same O-I-O examined the role of freight forwarder, which is more or less similar to that of the present assessee, who has supplied two containers to shipping line - In the present case also while imposing penalty on assessees more or less similar role of the assessees has been recorded by the adjudicating authority in the impugned order - Following the aforesaid observation of Tribunal and considering that the present assessees are situated at the same plane, the penalty on M/s Perma Shipping Line India Pvt Ltd is reduced and penalty on the director of the company is set aside: CESTAT
- Appeals partly allowed: MUMBAI CESTAT |
