| SERVICE TAX
2019-TIOL-2687-CESTAT-MUM
RPS Infra Projects Pvt Ltd Vs CCGST
ST - In the matter of appeal filed by the assessee against liabilities confirmed by an order-in-original passed by the Commissioner, Service Tax, Revenue has filed a miscellaneous application and seeks out of turn disposal on the ground of high stake revenue involved.
Held: In the changed circumstances of statutory disbarment of recovery beyond that prescribed in section 35F of the CEA, 1944, an application for early disposal is not only a circumventing of this statutory disbarment but also directly in breach of legislative disbarment - Therefore, a plea based on revenue consideration for early hearing of appeal of assessee does not merit consideration - application rejected: CESTAT [para 3, 4]
- Application rejected: MUMBAI CESTAT
2019-TIOL-2683-CESTAT-MAD
M Kailasam Vs CCE & ST
ST -Appellant is engaged in laying of pipes for BSNL - department of the view that the said service falls under 'commercial and industrial construction service' - SCN issued - demand confirmed along with interest, penalties imposed - in appeal, Commissioner (Appeals) upheld the same - appeal to CESTAT - appellant contending that they ought to have allowed the abatement as per the Notification No.1/2006-ST dt. 1.3.2006 and thereafter arrived at the total taxable value to determine whether the appellant is eligible for the threshold limit or not in terms of exemption notification 6/2005-ST; that after deducting the abatement, the appellant would fall within the threshold limit and, therefore, the demand cannot sustain.
Held: Upon perusal of notification no.6/2005-ST dated 1.3.2005, read with Explanation (B) thereto, it is found that department ought to have considered the abatement under notification no.1/2006-ST dated 1.3.2006before determining whether the taxable value falls within the threshold limit or not -therefore, the demand cannot sustain and requires to be set aside and is set aside - appeal is allowed : CESTAT [para 4]
- Appeal allowed: CHENNAI CESTAT
2019-TIOL-2682-CESTAT-BANG
Karnataka State Cricket Association Vs CCT
ST - The assessee is an association affiliated to BCCI and founded with an object to control, regulate, help, encourage, promote and develop the game of cricket in the State of Karnataka - They are registered under Karnataka Societies Registration Act and also exempted from payment of income tax as a charitable institution in terms of Section 12A of the Income Tax Act, 1961 - The Department entertained a view that the assessee is evading the payment of Service Tax under category of Business Advertising Agency, Business Auxiliary Service, and Mandap Keeper Service - Perusal of the "Instadia Advertisement Agreement" entered into with M/s. Sporting Frontiers (India) Pvt. Ltd., shows that the assessee has granted them the right to use advertising sites, right to exhibit advertising of any kind and right to use advertising signs during the cricket matches and extra matches but the assessee is not providing any service connected with the making, preparation, display or exhibition of advertisement activity thereby assessee does not fit into 'Advertising Agency' rather the said activity appropriately fall under 'sale of space for advertisement' whereas the period involved is from October 2005 to March 2006 - Further, this issue has been considered by Tribunal in two different cases viz. Vidarbha Cricket Association- 2013-TIOL-1404-CESTAT-MUM and The Tamil Nadu Cricket Association wherein the Tribunal has examined the same agreement which is involved in the present case entered into with the same party i.e. M/s Sporting Frontiers (India) Pvt. Ltd. and in both the cases, the Tribunal has held that the activity appropriately falls under the category of 'sale of space for advertisement' and not under 'Advertising Agency' - During the disputed period, assessee did not fall in definition of "commercial concern" because there is no profit motive of assessee and the assessee is registered under Karnataka Societies Registration Act as a charitable institution - Further, as per Board's Circular dated 01.11.2006, the activities of assessee do not fall into the definition of "commercial concern" - Consequently, assessee is not liable to pay service tax under 'Advertising Agency' and the demand of service tax confirmed under 'Advertising Agency' is not sustainable in law - As far as 'sponsorship service' is concerned, as per agreement entered with the brand owners, assessee have received sponsorship amount towards teams and in turn the assessee has allowed brand owners to display their brands on all the clothing worn by the team on the field during matches - This activity of displaying the sponsors logo and brand name or trade name fall under the head of 'Sponsorship Service' which is taxable only from 01.05.2006 whereas the period involved in the present case is prior to 01.05.2006 - This issue has been decided in favour of assessee in the case of BCCI, therefore the demand of service tax under 'BAS' is also not sustainable in law - As far as amount received for fund raising activity under category of 'Mandap Keeper Service' is concerned, assessee have let out its ground to one Sangamitra Foundation for a fund raising activity for a consideration of Rs.17,50,000/- but the assessee did not get the service tax from said organization on the bona fide belief that fund raising activity is not business or official or social function - Assessee have not collected the service tax on this activity from the service recipient under a bona fide belief otherwise the assessee have regularly been paying service tax wherever they have charged the same under the category 'Mandap Keeper Service' from the service recipient - Therefore, assessee is not liable to penalty under Section 78 but they are liable to pay interest on this service - The demand of service tax under 'Advertising Agency Service' and 'Business Auxiliary Service' is set aside and the demand under 'Mandap Keeper Service' along with interest is upheld - The original authority will calculate the interest which the assessee is liable to pay on this service - Matter remanded to the adjudicating authority - Accordingly, the appeal is partly allowed: CESTAT
- Appeal partly allowed: BANGALORE CESTAT
CENTRAL EXCISE 2019-TIOL-2681-CESTAT-BANG
CCT & CE Vs Swarnaa Techno Constructions Pvt Ltd
CX - The assessee is engaged in manufacture and clearance of excisable goods i.e. Pre-Stressed Concrete Sleepers used in laying Railway Tracks/Lines and they are also registered as Service Tax assessee engaged in providing services pertaining to contractual works i.e Construction of Staff Quarter, Railway Bridges, Station Building and Platform shelter for the South Western Railway - These works are exempted from purview of service tax vide Notfn 25/2012 ST - They have also taken on lease a Multifunctional Complex with Budget Hotels for 30 years from M/s. Ircon Infrastructure & Services Ltd. which has been rented out for shops and hotel accommodation and also used for office administration - During audit, Department observed that the assessee has availed ineligible cenvat credit on input services - The Commissioner (A) has concluded that cross utilization of credit on input and input services and capital goods is permitted by law - Assessee has rightly taken the cenvat credit and utilized a part of the same as there is no bar in cross utilization - Both the authorities below have dropped the demand raised by Department and has held that assessee has not taken cenvat credit irregularly and therefore the demand raised by Revenue is unsustainable in law - No infirmity found in the impugned order: CESTAT
- Appeal dismissed: BANGALORE CESTAT
CUSTOMS 2019-TIOL-2172-HC-MUM-CUS
UoI Vs CC
Cus - Petitioner challenges the order claiming differential duty and interest, and demand notices issued by the Commissioner of Customs (Imports), Mumbai, in pursuance of the order in original - Petitioner has paid the differential duty and the challenge merely pertains to the claim of the Commissioner of Customs for recovery of interest - Order-in-Original was passed after introduction of Section 28AA in the Customs Act - The assessee was, in the premises, bound to pay the duty within three months of such determination and in the absence of such payment, liable to pay interest immediately after expiry of three months and till payment of such duty - It is pertinent to note that the order-in-original assessing the customs duty payable itself provided for payment of interest under Section 28AA of the Customs Act if the duty assessed was not paid within three months - The Union of India never challenged the order in original or any of its provisions before any statutory appellate authority and accepted the order, therefore, petitioner is not permitted to now challenge the stipulation of interest: High Court [para 7, 8]
Cus - Insofar as Tribunal decision in Ansar and Company = 2019-TIOL-1004-CESTAT-MUM is concerned, the Tax effect in that case was below Rs.50 lakhs and, therefore, the Department had been advised not to file appeal from that order - Non-filing of appeal, thus, does not imply acceptance on the part of the Department of the decision rendered in Ansar and Company's case - no merit in the contention of the assessee - Writ petition is dismissed: High Court [para 9, 10]
- Petition dismissed: BOMBAY HIGH COURT
2019-TIOL-2171-HC-MUM-CUS
Transcon Industries Vs UoI
Cus - Petitioner makes a grievance that Amorphous Alloy Ribbon 5 ply Lamination imported under three Bills of Entry dated July 2019 had been seized under Section 110 of the Customs Act, 1962 and inspite of the petitioners request for provisional release of the goods u/s 110A of the Act, the same is not being granted - Counsel for respondent states that the petitioners' prayer for expeditious release of the goods has been acted upon inasmuch as the goods have been provisionallly released by an order dated 26 th August 2019 and, therefore, nothing survives in the petition - Petitioner, therefore, seeks to amend the petition so as to challenge the order allowing provisional release.
Held: It is a settled position in law that provisional release of the goods is appealable under the Customs Act as held by this Court in Commissioner of Customs (Import) Vs. S.S. Offshore Pvt. Ltd. - 2018-TIOL-53-HC-MUM-CUS - Bench is not inclined to grant any further time as the prayer sought in the petition has been worked out and if the petitioners are aggrieved with the order dated 26th August, 2019 they have an alternative remedy of an appeal under the Act - Petition dismissed: High Court [para 4 to 6]
- Petition dismissed: BOMBAY HIGH COURT
2019-TIOL-2170-HC-MUM-CUS
Forbes Marshall Pvt Ltd Vs UoI
Cus - Petitioner challenges the order dated 18 July 2019 passed by the Additional Director General of Foreign Trade under the Foreign Trade (Development & Regulation) Act, 1992 (Act) - impugned order rejected the Petitioner's contention of having fulfilled its export obligation in terms of Advance Authorization in respect of supplies made to Special Economic Zone (SEZ) - Petitioner seeks a direction to the Respondent No.2- Director General of Foreign Trade to accept the hard copy of the Petitioner's application made in pursuance of Merchandise Export from India Scheme (MEIS) for issuance of MEIS scrip for the exports made in 2015-16 and 2016-17 as the period to make on-line application has already expired.
Held: Issue is no longer res integra as this Court in Larsen & Toubro Limited v. Union of India - 2017-TIOL-2291-HC-MUM-CUS ; Rochem Separation Systems India Pvt.Ltd. v. Union of India - 2018-TIOL-2060-HC-MUM-CUS and Electromech Material Handling System India Pvt.Ltd. v. The Union of India and others - 2018-TIOL-2150-HC-MUM-CUS has taken a view that non-availability of bill of export would not by itself lead to denial of benefit of fulfillment of export obligation, if the export to SEZ can be evidenced by other contemporaneous documents - there is no reason as to why the same is not to be applied in the case of the Petitioner, more particularly, when the authority is satisfied that export obligation has been fulfilled on the basis of contemporaneous documents - As the Petitioner is not in a position to file an application for MEIS scrip on-line since the system would not accept it, Respondent Nos.1 to 4 would accept a hard copy of the Petitioner's application for MEIS scrip, if filed by the Petitioner - Bench has not examined the Petitioner's entitlement to the same - Petition disposed of: High Court [para 9 to 12]
- Petition disposed of: BOMBAY HIGH COURT
2019-TIOL-2680-CESTAT-MUM
CC Vs VS Arunachalam
Cus - Revenue is in appeal against impugned order which dropped the proposals to impose penalty on respondents while imposing penalty of Rs.10,00,000 on the Director of respondent - The primary contention of revenue is that the active connivance of the two respondents enabled M/s Shri Balaji Rollings Pvt Ltd to obtain the imported goods on 'high sea sale' and to have them cleared ex-bond with the benefit of concessional rate of duty - It is also urged that possession of the goods were taken by the respondents herein which would bring them within the ambit of section 112(b) of Customs Act, 1962 - On behalf of the second respondent, it is contended that the appeal should be disposed off at the threshold as the original penalty imposed was Rs. 5 lakhs and that the High Court of Madras in Servo Packaging Ltd- 2016-TIOL-1791-HC-MAD-CX has held that a disputant cannot be placed in a worse condition for having filed the appeal unless there is a cross-appeal by the department - The litigation policy of CBEC communicated vide F. No. 390/MISC/163/2010/JC prescribes monetary limit of Rs.10,00,000 for filing appeal by Revenue - The said circular has been further amended by F. No. 390/Misc./116/2017-JC to directing that, irrespective of the nature of dispute, any matter below the threshold of Rs.10,00,000 shall not be contested and all pending cases shall be withdrawn which, precludes appeal by Revenue for amounts less than this - In the original adjudication proceedings, penalty of Rs.5,00,000 was imposed on the second respondent herein and it was on his appeal that the matter was remanded back to the original authority - If at all, any penalty that could be imposed by original authority in fresh proceedings would have to be limited by this ceiling - No merit found in the appeals of Revenue which are dismissed: CESTAT
- Appeals dismissed: MUMBAI CESTAT | 
