| SERVICE TAX 2019-TIOL-2132-HC-MUM-ST
Kathawala Realtors Llp Vs UoI
ST - Petitioner challenges SCN dated 24 th April 2019 issued by Jt. DGGSTI demanding service tax allegedly not paid during October 2013 to June 2017; also challenges 26/2012-ST as amended by 8/2016-ST on the ground that it could not determine valuation of the service of construction of complex/building in absence of the same being provided in the manner prescribed; that the notice is bad and without jurisdiction.
Held: Petitioner's contention is that the assessment being subjected to tax is a loan and not on advance, therefore, outside the ambit of consideration to be taxed for service provided; that the impugned notice is time barred - Bench is of the view that the issues are issues which are best adjudicated before the Authority as it involves investigation into facts - Bench is not inclined to entertain the petition as only SCN is issued - It is appropriate for the petitioner to respond to the same on merits and also bring to the notice of the Adjudicating authority the decisions which, according to the petitioner, would conclude the issue in its favour - challenges in the present facts are premature - Petition dismissed: High Court [para 2 to 4]
- Petition dismissed: BOMBAY HIGH COURT
2019-TIOL-2634-CESTAT-CHD DLF Ltd Vs CST
ST - The assessee is in appeal against impugned order wherein demand of service tax for transfer of land development rights has been confirmed - On the basis of the facts of the case which are based on various agreements relied in SCN alleges that the assessee has acquired land development right from M/s DLF Commercial Projects Corporations and further transferred those rights to various parties, therefore, assessee is liable to pay service tax - The Tribunal have gone through the facts of the case in case of M/s DLF Commercial Projects Corporations 2019-TIOL-1514-CESTAT-CHD wherein it has been held that they have not transferred any development right to the assessee in question, therefore, no service tax is payable - As the assessee has not acquired any land development right from DCPC, then how the assessee can transfer development right of third party - Thus, the SCN is based on incorrect facts - In fact, the assessee has not acquired any development right as per the agreements relied upon by revenue in SCN, therefore, the question of transfer of development right by assessee does not arises - Consequently, the demand against the assessee is not sustainable: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
2019-TIOL-2633-CESTAT-DEL
Dhillon Aviation Pvt Ltd Vs CCE
ST - Acting on intelligence that the assessee was registered with Department for providing "Supply of Tangible Goods Services" and that the assessee had not deposited Service Tax collected by the them with the Government Exchequer, the officers of DGCEI conducted search at the office premises of assessee - The officers resumed certain document relevant for further investigation, under Panchnama - In all the SCNs, it was proposed to recover the Service tax alleging that the Service Tax was collected but not deposited in respect of the services rendered by assessee under the category of "Supply of Tangible Goods for Use" - The notices also proposed to recover interest on the service tax demanded and to impose penalties under the provisions of FA, 1994 - In respect of service claimed to be provided in J&K, assessee was directed to submit year wise details of value of service provided in J&K - The assessee submitted that the required details are also available duly certified by CA and that the Commissioner has also invoked extended period for subsequent period in respect of SCN, the same is contrary to the law and in the teeth of the ruling of Supreme Court in Nizam Sugar - The Commissioner has confirmed the demand starting from 01.04.2008 whereas the Service Tax on Supply of Tangible Goods Service came w.e.f. 16.05.2008 and prior to that no service tax was leviable on the said service - Further 1st SCN was issued on 21.10.2013, therefore Service Tax for Services provided from 16.05.2008 to 21.10.2008 is beyond the extended period of five years - The value in respect of year 2013-14 has been taken under Section 72 of FA, 1994, on Best Judgment method - The actual value is less than the assessed value - All details, duly certified by CA are already provided in the appeal book - It is admitted in impugned order that the department obtained total receipt value for preceding years from assessee - There is no reason that the department could not get the actual receipts details for the year 2013-14 also - This Tribunal in case of Shubham Electricals 2015-TIOL-1339-CESTAT-DEL has held that a best judgment assessment should be based on material and data on record - It is not a tool in the hands of Adjudicating Authority to punish the assessee - The estimation should be fair and reasonable, and not a wild guess work - The assessee has submitted all calculations of admitted tax liabilities, and deposit of Tax, duly certified by a Chartered Account with the appeal - The impugned order suffers from infirmities as explained and is not sustainable under the law: CESTAT
- Appeal allowed: DELHI CESTAT
CENTRAL EXCISE
2019-TIOL-411-SC-CX
International Tractors Ltd Vs CCE & ST
CX - High Court while dismissing writ petition had held that where an export transaction was used for seeking discharge of Advance Authorizations, the same export transaction could not be used for seeking rebate of duty in terms of rule 18 of CER; that rebate was subject to stipulated conditions, one of which was that a party could not avail of both the exemptions - Special leave petitions before Supreme Court.
Held: No case made out to interfere with the impugned order(s) passed by the High Court - SLPs are dismissed: Supreme Court
- Appeals dismissed: SUPREME COURT OF INDIA
2019-TIOL-2636-CESTAT-DEL
Agya Auto Ltd Vs CCE & ST
CX - The appeal is with regard to admissibility of cenvat credit in respect of MS Angles, MS Channels, MS Beams and joists - The Department after conducting an audit and observing that wrongly the cenvat credit has been availed on these items, served a SCN upon the assessee proposing to not to allow the credit rather to recover the same alongwith interest at the appropriate rate and the proportionate penalties - From the scheme of CCR, 2004, it is apparent that a manufacturer is entitled to avail cenvat credit on the articles, which may either qualify to be called as capital goods as defined under section 2 (i) of CCR, 2004 or qualify as inputs defined under Section 2 (k) of CCR, 2004 - The order under challenge is however silent about the entitlement of assessee to avail cenvat credit, if these goods qualified the definition of being called as inputs - It has specifically been recorded by Commissioner (A) as is apparent from impugned order that assessee submitted while contesting the allegation of Department, that the impugned items were not used for foundation or making of structure for support of capital goods but are used for fabrication/making of capital goods itself - The impugned articles have been used for making of such rolling mills and have nowhere being used for laying of foundation or making of support structure - The perusal of order further shows that these submissions have absolutely been not dealt with by Commissioner (A), except holding that the assessee has failed to produce any documentary evidence to indicate that disputed items were used in manufacturing of said capital goods - The total emphasis of assessee being confused about the impugned goods to be capital goods or inputs also is of no significance, because in either of the case assessee is entitled to avail the cenvat credit - Availment thereof at the rate of 50% in the first financial year again cannot be a ground to disallow the credit availed irrespective that the condition is with respect to capital goods and the impugned goods are not the capital goods - Because once the assessee is entitled for credit due to impugned goods being the inputs, assessee was rather entitled to avail the 100% credit immediately thereafter - Availing the said credit qua inputs at two different stage does not disentitle the assessee to avail the same - In addition, the same is not at all causing any loss to the Department though the vice versa condition may entitle the Department to recover at least the interest - The impugned goods qualify even the user test principle, as has been held by Apex Court in case of Jawahar Mills Ltd. 2002-TIOL-87-SC-CX - It stands clear that the issue of availment of cenvat credit by assessee on the impugned goods was in the notice of Department at least since 2014 - The allegation of suppression, therefore, of fact cannot sustain against the assessee - The period involved in the present SCN is w.e.f. April 2013 to September, 2013 and the SCN is dated 22nd July, 2015 - Apparently it is beyond the normal period of limitation - There was no ground with the Department to invoke the proviso to Section 73 of CEA, 1944 for the extended period of limitation - Resultantly the SCN is held to be barred by time: CESTAT
- Appeal allowed: DELHI CESTAT
2019-TIOL-2635-CESTAT-AHM
Contemporary Targett Pvt Ltd Vs CCE & ST
CX - The assessee is engaged in manufacture of Tooth Brushes - It was noticed that they had cleared the tooth brushes in combo pack/bulk/naked condition to manufacturer of Toothpaste for free distribution by inserting the brush in the tooth brushes pack - The tooth brushes were assessed by assessee on transaction value based on contract price under Section 4 of CEA, 1944 - The case of the department is that the tooth brushes so cleared was required to be assessed under Section 4A of CEA, 1944. i.e. on MRP basis instead of transaction value - The facts is not under dispute that the tooth brushes manufactured and supplied by assessee were cleared either in bulk form or combo pack or in naked condition that means without any retail packing - Goods were supplied to tooth paste manufacturer who in turn used these tooth brushes for making a combo pack with tooth paste for free supply, therefore, the tooth brushes cleared by assessee were neither sold as such in retail either by assessee or the buyers i.e. M/s Colgate Palmolive (India) Limited and Oral care - The issue was considered by Supreme Court in case of Jayanti food processing (P) Ltd. 2007-TIOL-150-SC-CX wherein different appeals on the identical issue has been decided - Relying on the Supreme Court judgment, the Mumbai Bench of Tribunal in case of Nestle India Limited also held that promotional pack of maggi noodles supplied free with Packet of Tata Tea and such packs of maggi noodles were not bearing MRP with declaration "free with Tata Tea", therefore, provisions of Standards of Weights and Measures Act, 1976 and Rules made there under would not apply on such supplies - As such valuation of such goods cannot be done under Section 4A of CEA, 1944 and the appeal of the assessee was allowed - The issue is no longer res integra as the identical facts are involved in the present case, therefore, the tooth brushes supplied by assessee which is not for retail sale but for free supply by the tooth paste manufacturer will not be valued under Section 4A in the hands of assessee - Accordingly, the value adopted by assessee under Section 4 is correct and legal which does not need any interference - Accordingly, the impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
CUSTOMS
2019-TIOL-412-SC-CUS
UoI Vs Larsen And Toubro Ltd
Cus - High Court while allowing the petition had observed that supplying goods from the domestic tariff area to SEZ is taken as equivalent to an export of goods physically from this country to abroad and once a n act of the petitioner is taken to be an export, entitling them to the benefits of the advance authorisation and the scheme in respect thereof, then, all the conditions stipulated in that authorisation ought to be taken as fulfilled and, therefore, the Policy Relaxation Committee (PRC), as an after-thought, could not have directed the petitioner to get the case regularised as per provisions of the Handbook of Procedures 2009-2014, Vol.I or the SEZ Rules; that the decision of the PRC, is wholly arbitrary, unfair, unreasonable and violative of the mandate of Article 14 of the Constitution of India - Revenue is in appeal before Supreme Court.
Held: Delay condoned - Bench is not inclined to interfere with the impugned order in exercise of its jurisdiction under Article 136 of the Constitution of India - Special Leave Petitions are dismissed: Supreme Court
- Appeals dismissed: SUPREME COURT OF INDIA
2019-TIOL-2632-CESTAT-MUM
Dipak Datta Vs CC
Cus - The assessee vide letter dated 07.02.2019 have requested for disposal of the matter and contends that he was a Manager of CHA firm i.e. M/s. R. S. Aurunachalam which is a proprietorship concern to proprietor who passed away on 13.03.2013 - The business of the firm has stopped and they have no money to pay to the Advocate - The factual circumstances of the instant case are different from the case law submitted by assessee - Same may not be of any rescue to the assessee - The role of assessee is established in the Act of commission and omission on the part of Shri Sunil Gupta - However, looking in the request of assessee made on the basis that his financial position is not sound and also considering the fact that he was only an employer of CHA, the penalty is reduced to Rs.50,000/-: CESTAT
- Appeal disposed of: MUMBAI CESTAT |
