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SERVICE TAX
2019-TIOL-1515-HC-MUM-ST
Dpj-Dra Tollways Pvt Ltd Vs UoI
ST - SCN dated 09.04.2019 issued for recovery of service tax for the period from October 2013 to June 2017 towards the collection of toll - Challenge made in this petition to the SCN on the ground that the respondent No.3 has no authority to collect the service tax which has already been abolished/repealed with effect from 1-7-2017; that in view of the communications from the Ministry of Finance dated 22-2-2012 and 21-5-2019 clarifying that the service by way of access to a road or a bridge on payment of toll charges is included in the Negative List, no service tax can be levied on the service.
Held: Issue notice for final disposal of the matter returnable on 09.09.2019 - Petitioner at liberty to file reply to the SCN - Proceedings may be continued, however, no coercive steps be taken for recovery of the amount of service tax, if any order is passed: High Court
-Matter posted : BOMBAY HIGH COURT
2019-TIOL-2036-CESTAT-MUM
Shipco IT Pvt Ltd Vs Commissioner of CGST
ST - Rejection of refund claim against unutilised CENVAT credit availed during export of 'Information Technology Software Services' on the ground that FIRCs received from bank do not show the invoice detail on the remittance certificate issued by the bank, is assailed in this appeal by assessee - As found from O-I-O, it has been noted by adjudicating authority that claimant had submitted relevant documents for refund claim - In order, copy of export ledger was stated to have been received for refund processing along with export invoices, FIRCs, export register - Going by Circular dated 12.03.2009 such linkage in FIRCs received by bank with invoice is not required to be obtained from the running account of bank, if self certified statement along with FIRCs showing the details of the export in respect of which FIRC pertains is received to process the refund favourably - It is also found from the letter of M/s Kotak Mahindra Bank that they issued FIRC only for the receipt of FDI and for all other inward remittances and Foreign Inward Remittance Advise is issue for GST calculation in summary of Form - The enclosed bank statement of assessee for the relevant period received from the bank also indicates that out of total FIRCs value of USD 149990 for the month of March, 2015 USD 73853.80 remittance was received for invoices pertaining to April, 2015 to June, 2015 and the balance USD 76136.20 was adjusted towards invoices pertaining to period before 31.03.2015 - Apparently the adjudicating authority had made his observation that FIRCs received from bank had no co-relationship with export invoice may be due to such arrear payment pertaining to previous financial year made after March, 2015 - Be that as it may, since the appellate authority himself tallied the same and found no error in the re-conciliation statement of the assessee, rejection of refund claim on the ground that FIRCs statement submitted by bank did not contained invoice no. is contrary to the procedural requirement in view of clarificatory Circular dated 12.03.2009 - Therefore, in carrying forward the judicial precedence set by the CESTAT, Bangalore Bench in Broadcom India Research Pvt. Ltd. - 2015-TIOL-2870-CESTAT-BANG that self certification of FIRC is sufficient as there is no need for bankers certificate on FIRC, the O-I-A is hereby set aside - The assessee is entitled to get refund along with applicable interest and the department is directed to pay the same within three months from receipt of this order: CESTAT
- Appeal allowed: MUMBAI CESTAT
2019-TIOL-2035-CESTAT-KOL
Rexon Strips Ltd Vs CCE & ST
ST - The assessee is engaged in manufacture of sponge iron and mild steel ingots at their factory for which they are registered under FA, 1994 - They are receiving services from GTA and also from the Goods Transport Owners - The assessee in the capacity of service receivers use to pay service tax in terms of Rule 2(1) (d) (v) of STR, 1994, however no service tax is being paid by them on services received from Goods Transport Owners - The service tax is payable on such service which were not paid by assessee initially, however, the same was paid before adjudication proceedings subsequent to issue of SCNs - The issue is, therefore, as to whether the adjudication authority was correct in imposition of penalty and interest under the provision of FA, 1994 - It is the argument of revenue that but for Audit Objection the issue would not have come to light and the assessee would have continue to make non payment of service tax - And, therefore, imposition of penalty and interest is justifiable - It is the contention of assessee that the situation of revenue neutrality is there as assessee was entitled to take Cenvat Credit of duty paid on reversed charge basis for the payment of service tax - Since the imposition of service tax on goods transport Agency was subject matter of dispute and the same was settled only after issuance of clarification by CBEC by issuance of Circular - Assessee has made his point that there was no deliberate suppression of fact by assessee in this case - In fact, the Audit detected the case is non payment of service tax on the basis of records maintained by the assessee - This transaction of non payment of service tax was duly reflected in their books of account - In such a situation it has been held by Tribunal that no suppression of fact can be alleged - The assessee has also made the plea regarding the waver of interest - There is no justification of imposition of any penalty or interest in these cases as has been held in the impugned order relying on the case laws mentioned - The whole exercise is revenue neutral and accordingly there is no scope of levy of any penalty - As the payment of Service Tax is not contested the same is upheld: CESTAT
- Appeals partly allowed: KOLKATA CESTAT
2019-TIOL-2034-CESTAT-ALL
Tahsildar Vs CCT & CE
ST - The Registry has raised the defect of non-deposit of mandatory pre-deposit by assessee - The defects have not been cured till today - These cases were listed earlier but the assessee failed to meet the mandatory pre-deposit - In the absence of mandatory pre-deposit, the appeals cannot be entertained as per Section 35F - The appeals are dismissed for non-compliance of mandatory pre-deposit: CESTAT
- Appeals dismissed:
ALLAHABAD CESTAT
CENTRAL EXCISE
2019-TIOL-1514-HC-P&H-CX
CCE & ST Vs Komal Impex And Industries
CX - The assessees is engaged in manufacture of knitted readymade garments by processing the yarn in circulating machines - On verification of records pertaining to raw material(cotton) and finished goods(T-Shirts), as also physical verification of the goods, it was found that assessee had clandestinely manufactured and cleared garments (T Shirts) in the open market without discharge of appropriate central excise duty - At the time of hearing, it is admitted that in view of instructions dated 11.7.2018, the instant appeal is not maintainable before this Court, the monetary limit being below Rs.50,00,000/- - In view of the said instructions, appeal dismissed as withdrawn: HC
-Appeal dismissed : PUNJAB & HARYANA HIGH COURT
2019-TIOL-1513-HC-MUM-CX
Mahindra And Mahindra Ltd Vs UoI
CX - The grievance of petitioner is to the decision making process of Tribunal in passing the impugned order dated 11th May 2018 - It is clear from the impugned order of Tribunal that the petitioners had placed reliance upon the two orders dated 20th September 2016 and 21st March 2017 passed by Coordinate Benches of Tribunal in petitioner's own case on identical facts - However, the impugned order dated 11 May 2018 after referring to the reliance placed by petitioner on the aforesaid two decisions, completely ignores the same - It makes no attempt to even distinguish the facts therein with the facts which arose in the present case - The Tribunal in the impugned order seems to do away with its obligation to be bound by the decisions of its coordinate Benches - Once the litigant before the Tribunal placed reliance upon the decision of a coordinate Bench of the Tribunal, then a speaking order would require the Tribunal to consider those decisions and state how and why the aforesaid decisions are not applicable to the facts of the present case - In the absence of this exercise is being done, the impugned order itself suffer from being a non speaking order - Merely stating that the earlier judgments would not be applicable, without more, would not meet the requirement of an order with reasons - In exercise of jurisdiction under Article 226 and 227 of Constitution of India, the impugned is set aside: HC
-Petition disposed of : BOMBAY HIGH COURT
2019-TIOL-2033-CESTAT-AHM
Styrolution Abs India Pvt Ltd Vs CCE & ST
CX - The assessee-company availed Cenvat credit on input services such as Chartered Accountancy Services, IT service and manpower service for providing maintenance staff at their headquarters at Mumbai - The Revenue sought to deny such credit on grounds that these services were not used in the assessee's manufacturing unit located in Gujarat - Hence the present appeal.
Held: The CA services & management consultancy services were claimed to be used for statutory audit and accounting of the operation - Hence these services are specifically included in the definition of input services - Similarly, the advisory services were claimed to have been used for insurance of goods - Both services are otherwise covered in the inclusive part of the definition of input services - Moreover, it is seen that the requirement for distribution of input credit arises only if there are more than one factory premises in respect of which the input services are received at a place - In the present case, the assessee has only one factory & thus the issue of distribution of input credit does not arise - Hence the O-i-O in question merits being quashed: CESTAT
- Assessee's appeal allowed: AHMEDABAD CESTAT
2019-TIOL-2032-CESTAT-AHM
Transformers And Rectifiers India Ltd Vs CCE & ST
CX - The issue at hand in the present case is whether third party inspection charges are includable in the assessable value of excisable goods.
Held: An identical issue was resolved in the assessee's own case for a previous period, whereupon the matter had been remanded - Following such findings, the matter warrants remand in the present case as well: CESTAT
- Case remanded: AHMEDABAD CESTAT
2019-TIOL-2031-CESTAT-HYD
Victor Hitech Vs CCE, C & ST
CX - One of the appeal is filed by M/s SPPL against whom there is an allegation of clandestine removal and a demand of duty and imposition of penalty - Another appeal is filed by M/s VH who are alleged recipients of clandestinely removed goods on whom penalty was imposed - The transporter not only issued GCNs but has also maintained computerised record of goods transported presumably because he is dealing with two large companies - Both the GCNs and the statements by transporter show the actual quantity of goods transported by weight - It is true that the assessee sells the goods by length and not by weight - However, any standard product such as this, the length of the goods and its weight can be correlated - This correlation comes out of the statement of the Vice President of assessee himself - Therefore, no inconsistency found in arriving at the quantity of goods transported against each invoice by dividing the weight of goods transported by weight per unit - In cases where there was no difference between the quantity mentioned in invoice and the quantity arrived at by the weight, no demand was made and such transactions were faithfully recorded in annexure E to the SCN - The test reports in question pertain to only few consignments and not to each consignment because only few test reports could be recovered from buyer's premises - Thus, quality control test reports were made by supplier's own quality control lab which also corroborate with the calculations made based on GCN and statements by the transporter - Therefore, to that extent these test reports serve as additional corroborative evidence - There is sufficient evidence of clandestine removal by SPPL - It is impossible to have every single document to show with mathematical precision the clandestine removal starting from raw material to their production and clearance because by its very nature, clandestine removal is done without recording the figures - If all figures were recorded faithfully in the documents there will not be any clandestine removal - It is true that the officers have searched the premises of SPPL almost one year after the initial detection in premises of M/s VH - If the search was conducted prior to this date they possibly would have found more evidence - No infirmity found in the order of first appellate authority and the impugned order requires no interference - On the question of limitation, section 11A of Central Excise Act provides for demand to be raised within five years from the relevant date in case of suppression of facts which has been the present case - No basis found for the argument of assessee that the demand must be raised within one year from the date on which the department comes to know of the alleged clandestine removal - Impugned order is correct and needs no interference: CESTAT
- Appeals rejected: HYDERABAD CESTAT
CUSTOMS
2019-TIOL-1512-HC-MAD-CUS
CC Vs Flemingo Dfs Pvt Ltd
Cus - The Single Judge, by the impugned order upheld the order passed by Settlement Commission and disallowed the prayer of Revenue to assail the findings of Settlement Commission - Both the Assessee and the Revenue were equal parties and had an opportunity to place their respective case before the Settlement Commission - Without any allegation of fraud played by any party upon such authority viz., the Settlement Commission, the orders passed by the Settlement Commission is final as per Section 127J of Customs Act, 1962 - The court is little surprised that despite dismissal of writ petition by Single Judge, the present writ appeal was preferred before a Division Bench of this Court way back in the year 2010, which has occupied the time of various Judges of this Court, who have dealt with this from time to time until now - The court would have inclined to impose costs on officials, who have filed such writ petition and writ appeal before this Court - However, taking a lenient view of matter, at the request of Revenue, which is not seriously objected by assessee, court refrain from imposing such costs on the Revenue authorities, with a warning that if such frivolous litigation is found in future, the responsibility will be fixed on the officers sanctioning the filing of such cases before the High Court: HC
- Writ appeal dismissed : MADRAS HIGH COURT
2019-TIOL-1511-HC-MAD-CUS
CC Vs S P Associates
Cus - This appeal arises out of the order dated 22.02.2019, disposing of a batch of writ petitions in 2019-TIOL-644-HC-MAD-CUS - The Single Judge, in the operative portion of the said order, had directed the assessees to appear before the adjudicating authority, giving liberty to the adjudicating authority to initiate proceedings for assessment and adjudication of the consignments in question, in terms of the applicable statutory provisions and in accordance with law - Expressing any opinion on the merits of the case may prejudice the rights of parties at this stage, since the case has admittedly been remitted back to the adjudicating authority for adjudication of various issues - It goes without saying that the assessee is at liberty to cite all relevant case laws before the said authority and the said authority has already been directed and is otherwise also expected to pass orders in accordance with law, giving his findings and reasons in respect of the issues raised before him - The concerned adjudicating authority may issue a SCN to the assessee within four weeks: HC
- Appeal disposed of : MADRAS HIGH COURT
2019-TIOL-2030-CESTAT-CHD
Monte Carlo Fashion Ltd Vs CC
Cus - The assessee is in appeal against impugned orders rejecting their refund claims as assessee have failed to pass the bar of unjust enrichment - It is a fact on record that the assessee have paid CVD under protest and the letter of protest has not denied by the Revenue - Moreover, the invoice also confirms that they have not charged any CVD from the buyer - It is also mentioned in the invoice itself that all duties of excise exempted vide Notfn 30/2004-CE - The chartered accountant also certifies that the amount of CVD has not been recovered from the customers and to that effect, the assessee has produced a certificate dt.25.03.2017 on record - The Commissioner (A) in the impugned order has also confirmed that the CVD has been paid and the same was recoverable from the department when the assessee got a favourable order from this Tribunal - Assessee have passed the bar of unjust enrichment - Merely, the assessee have made debit entry in Profit and Loss Account as expenditure and not shown in balance sheet as dues recoverable from the department cannot be the reason to deny the refund claim for the reason that assessee have not passed the bar of unjust enrichment as held by Bombay High Court in case of Sandvik Asia Limited - Assessee is entitled to refund of CVD paid under protest at the time of clearance of the imported goods - In the result, the impugned orders set aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
2019-TIOL-2029-CESTAT-AHM
Nokia India Sales Pvt Ltd Vs CC
Cus - The assessee-company imported mobile phones during the relevant period and paid 6% CVD - Later, as per the verdict of the Apex Court in SRF Industries Ltd. vs C.C. exemption was allowed to the assessee, whereupon CVD was payable @ 1% - The assessee filed refund claim for CVD paid in excess - On adjudication, the refund was rejected on grounds of unjust enrichment - On li mitation, it was held that period for filing refund claim would be reckoned from one month of the Apex Court's judgment - On appeal, the Commr.(A) upheld such findings - Hence the present appeals by the assessee on grounds of unjust enrichment & time bar.
Held: As regards the time bar, the refund will not arise as from the date of the Apex Court's judgment in SRF Industries, the assessee was not the litigant - However the law applies to the assessee's case also subject to refund is filed within one year from the relevant date - In the present case, the relevant date will be date of payment of duty and not from the date of the Apex Court's order - The assessee initially filed the refund claim which was returned & then re-submitted - Hence the initial filing of refund claim shall be considered the date of filing of refund claim & if the same is within one year from date of payment of duty, then the same cannot be rejected on time bar - Regarding unjust enrichment, while the assessee submitted CA's certificate, no documentary evidence was submitted to support its claim such as price structure of mobile, pre and post-payment of excess Customs duty - No books of accounts were furnished - Hence the matter warrants remand to the adjudicating authority for passing a fresh order: CESTAT
- Case remanded: AHMEDABAD CESTAT |
