SERVICE TAX

2019-TIOL-2186-CESTAT-MUM

CCGST Vs AGM India Advisors Pvt Ltd

ST - The narrow compass in which department has came up to the Tribunal stage is the grant of interest by Commissioner (A) on delayed payment, if made, against refund claimed for unutilised CENVAT credit accumulated against export of services, while remanding the matter back for verification of requisite documents to test fulfilment of conditions of Rule 5 of ESR, 2005 r/w Notfn 11/2005-ST - Admittedly there is no dispute that assessee had exported services and accumulated CENVAT credits except in respect of those two inputs services, which are considered by the department as admissible credits - Since, assessee had no scope to use accumulated input Service Tax credits as output services are exported, it availed Rule 5 of ESR, 2005 r/w Notfn 11/2005-ST - Assessee is entitled to get rebate since application was considered to be in proper order and only the conditionality of Export of Services Rules were to be verified - In his reasoned order, even by the reproducing relevant portion the judgment passed by Supreme Court in Ranbaxy Laboratories Limited - 2011-TIOL-105-SC-CX, the Commissioner had given his finding regarding eligibility of assessee to get interest on delayed refund - In view of the fact of the matter, since it was held by Supreme Court that explanation appearing below Proviso to Section 11BB introduces a deeming fiction that where the order for refund of duty is not made by Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise but by an Appellate Authority or by the Court, then for the purpose of this Section, the order made by such higher Appellate Authority or by the Court shall be deemed to be an order made under sub-Section (2) of Section 11B of the Act - Therefore, no irregularity can be noticed in the order passed by Commissioner (A): CESTAT

- Appeal dismissed: MUIMBAI CESTAT

CST Vs Navdeep Construction Company

ST - Assessee was providing services of management, maintenance or repairs of roads, without obtaining registration as service provider - They responded stating that though they were contractors of Municipal Corporation of Greater Mumbai, they were not reconditioning any goods equipments, maintenance or management of any immovable property, hence they did not qualify as provider of taxable service - On verification of various documents and work order, the tax authorities were of the view that services provided against work order as detailed below will fall within category of taxable service defined as Management, Maintenance and Repair Services - Since the appeal filed by revenue refers to 94 contracts that were subject matter of SCN, whereas only twelve were referred to in SCN, revenue was directed to produce the complete adjudication file and the review file for examination - However even after adjournment of matter twice the same could not be produced - Revenue produced a letter of Additional Commissioner stating that the said files cannot be traced - In the appeal, revenue has not disputed the findings rendered by Commissioner in respect of twelve contracts referred in SCN, the only reason by which the revenue is aggrieved is that the findings in respect of twelve contracts have been applied to the contracts under consideration and commissioner should have examined all the contracts and rendered the findings individually - Tribunal do not know from where revenue authorities got the magical figure of "94 contracts" it is not in SCN or in impugned order - In absence of any tangible evidence to the effect that there were 94 contracts under consideration while making the demand, said contentions raised by revenue in their appeal are rejected - Revenue has not challenged the findings recorded by commissioner on merits but have questioned the manner in which he have gone about dealing with SCN - The major challenge which has been made is with regards to examination of 94 contracts which Tribunal is unable to find - With regards to all submissions made in appeal, no merit found as all the issues raised in SCN have been well considered by Commissioner in impugned order - In result, the appeal filed by revenue is dismissed: CESTAT

- Appeal dismissed: MUMBAI CESTAT

CENTRAL EXCISE

2019-TIOL-2184-CESTAT-MUM

Deenox Poly Yarn Pvt Ltd Vs CCE

CX - Appellant had accumulated CENVAT credit till 31st March 2006 before reverting to full exemption as provided for in notification no. 30/2004-CE dated 9th July 2004 - Appellant sought refund of accumulated, and unused, credit of Rs 1,28,04,392/- under rule 5 of CENVAT Credit Rules, 2004 which was rejected by the original authority and the rejection was upheld by Commissioner(A) - appeal before CESTAT.

Held: It is seen from the records that the denial of claim for such entitlement to the mantle of CENVAT credit had not been preceded by any notice to the appellant herein of the various grounds on which it was proposed to be rejected - impugned order is, therefore, set aside for having to failed to comply with the principles of natural justice and the application for refund is remanded back to the original authority for necessary action thereon in accordance with the decisions cited - Appeal disposed of: CESTAT [para 8]

- Matter remanded: MUMBAI CESTAT

2019-TIOL-2183-CESTAT-KOL

Sarvesh Refractories Pvt Ltd Vs CCE & ST

CX - The issue involved in this case is regarding the inclusion of performance bonus received by assessee from their buyer towards the out performance of refractory bricks and monolithi as heat guarantee bonus during disputed period - It is the contention of Revenue that the 'heat guarantee' bonus is nothing but an additional consideration and thus liable to be included in assessable value in terms of Section 4 of Central Excise Act, as the part of transaction value - The Revenue also contends that the decision stated by assessee pertained to pre amendment Section 4 of the Act, and hence not relevant after the amendment of Section 4 of the Act that is after 1/7/2000, the Revenue relied upon the decision of Tribunal in case of Ubique Meta Pvt. Ltd - The very same issue is also decided in case of Vishwakaram Refractories Pvt. Ltd. - 2010-TIOL-287-CESTAT-BANG - The stand taken by Adjudicating Authority in conforming the demand against assessee is not in conformity with the law - In fact, the issue is decided both for pre as well as post amendment of Section 4 of the Act, wherein the transaction value concept was brought in for the purpose of assessment w.e.f. 1/7/2000 - The impugned order is not sustainable and same is set aside: CESTAT

- Appeal allowed: KOLKATA CESTAT

2019-TIOL-1647-HC-P&H-CX

Venkys India Ltd Vs CCGST

CX - The assessee is engaged in manufacture of Corrugated Boxes - A SCN was issued calling upon the assessee to show cause as to why duty for short payment of duty for the period 01.06.2007 to 30.09.2007 should not be recovered under Section 11A of the Act - Assessee has argued that initial the assessee took a decision not to file an appeal, however, on the receipt of notice of hearing in the appeal filed by department before the Tribunal in year 2017, the issue was reconsidered and a decision was taken to file an appeal - Hence the delay which had occurred is urged to be bonafide - To a pointed query, it is not denied that notice of appeal filed by department had been received by assessee in the year 2010 itself, therefore, mere fresh receipt of the notice of date of hearing issued by Tribunal would not constitute a sufficient ground at all to urge that fresh cause of action had accrued so as to condone the previous delay since the year 2010 upon taking up a fresh decision to file an appeal - The reasons recorded by Tribunal in not condoning such a huge delay of 2743 days does not suffer from any infirmity: HC

- Appeal dismissed: PUNJAB AND HARYANA HIGH COURT

CUSTOMS

2019-TIOL-1664-HC-DEL-COFEPOSA

Ankit Ashok Jalan Vs UoI

COFEPOSA - Writ petition has been instituted by Ankit Ashok Jalan, seeking quashing and setting aside of the impugned detention orders dated 01.07.2019 issued against his father Ashok Kumar Jalan as well his brother Amit Jalan ('the detenus') respectively, and to set them at liberty forthwith - Senior Counsel appearing on behalf of the detenus vehemently assails the impugned orders, as being the mere ipse dixit of the Detaining Authority and issued mechanically, without due application of mind and also without any compelling reason and further without pointing out any cogent material for the alleged satisfaction.

Held: A perusal of the grounds of detention and in particular paragraph 7 thereof, clearly reflects that, it is completely bereft of any material expressed therein for the Detaining Authority to arrive at the conclusion to the effect that 'there is immediate possibility of your release from judicial custody' - Further, as is axiomatic from a reading of the same paragraph, the Detaining Authority was aware that the detenus were in judicial custody at the Presidency Correctional Home, Alipore, Kolkata, at the time of passing of the impugned order - in the absence of cogent material, the statement in the grounds of detention regarding the alleged imminent possibility of the detenus' coming out on bail, is mere ipse dixit, untenable and without any cogent basis, and consequently has to be ignored - therefore, in the absence of reliable material to this effect, the detention order is vitiated and cannot be sustained - it is clear, categorical and unequivocal that the settled position of law is that when the detenus are in judicial custody and there is no imminent possibility of their release on bail and even no bail applications are pending, the power of preventive detention ought not to be exercised - impugned orders dated 01.07.2019 quashed and set aside and it is directed that the detenus concerned be released forthwith, if not required to be detained in any other case, in accordance with law - Writ petition allowed: High Court [para 9, 10, 18, 19]

- Petition allowed: DELHI HIGH COURT

2019-TIOL-1645-HC-MUM-CUS

Schneider Electric India Pvt Ltd Vs UoI

Cus - The petition under Article 226 of Constitution of India challenges the order dated 7th June, 2017 passed by the respondent no.3 and the consequent alert Notice - The impugned order denied the benefit of Notfn 47/02 for not having fulfilled the export obligations in respect of goods imported without payment of duty - The consequent alert Notice prohibited the petitioners from exporting and/or importing the goods from and into India - No occasion can arise to relegate the petitioner to adopt the alternative remedy of statutory appeal - This as the decision making process leading to impugned order dated 7th June, 2017 was bad - Therefore, the same is set aside: HC

- Writ petition allowed: BOMBAY HIGH COURT

Gupta G And Company Vs UoI

Cus - The petitioner has invoked the jurisdiction of this Court assailing order dated 31.7.2017 passed by Settlement Commission, whereby demand has been confirmed towards custom duty upon a SCN issued by DRI for mis-declaration of description of the goods and their value - Petitioner by way of misc. application has placed on record letter dated 11.12.2018, establishing that said communication dated 25.5.2017 was received back undelivered in office of Settlement Commission - It is thus, evident that an incorrect/false statement has been made by respondents before this Court amounting to contemptuous conduct inviting severe punishment - However, while strongly deprecating such conduct, court is restraining itself from initiating any such action, in view of the sincerest assurance tendered by officer present in Court to be extremely careful in future while filing replies or tendering records before the Court - In view of the now conceded position that the material which was not furnished to the petitioner has been taken into account while passing final impugned order, thereby, violating the fundamental principles of natural justice, parties have agreed for remanding the matter back to the Settlement Commission for a fresh adjudication in accordance with law - On the alternative prayer of petitioner for referring the matter back to the Adjudicating Authority, it is also agreed that in case of non-consensus of claim/counter claim i.e. duty declared by petitioner vis-a-vis duty proposed by DRI, the Settlement Commission shall also consider the aspect of referring back the matter to the adjudicating authority in view of the provisions of Section 127-I of Customs Act, 1962 and case law on the issue - Impugned order is set aside: HC

- Petition disposed of: PUNJAB AND HARYANA HIGH COURT