| SERVICE TAX
2019-TIOL-3576-CESTAT-MUM
CCE Vs Flemingo Airport Retail Pvt Ltd
ST - The issue to be decided is whether the Service tax borne by assessee, on the rent paid by them to Mumbai International Airport Ltd. (MIAL) for its two outlets in International Airport at the departure terminal is eligible for rebate under Notfn 41/2012-ST - The assessee has procured duty/tax paid goods from domestic market and sold them at its departure terminal outlets to the international passengers going abroad - It is true that there was no option for passengers going abroad but to take the goods out of India which were purchased by them from these two outlets of assessee - The goods sold by assessee to passengers at the International departure terminal are neither cleared for home consumption nor for removal to another warehouse or otherwise provided in the Customs Act, 1962 and these goods are cleared without payment of duty only for export under Section 69 of Customs Act under an invoice which is also deemed to be a shipping bill - It is not the case of department that the sales are to the passengers travelling on domestic flights nor it is the case of the department that the goods sold at these outlets are cleared for home consumption or for removal to another warehouse - Therefore, the sale of goods at these outlets at International departure terminals is an export of goods under Customs Act - The assessee can very well claimed to be an exporter under Section 2(20) of Customs Act, 1962 since it is the assessee who is the seller and is selling the goods in Security Hold Area (SHA) at the International departure terminal to the international passengers going abroad - These goods are ultimately taken outside India by those passengers - In this way the passengers can be termed as carrier only and not the exporter of those goods - The exporter is the assessee - Therefore the issue of unjust enrichment will not arise here - Earlier also between the same parties for earlier years, twice this issue came up before this Tribunal and in both the cases, this Tribunal decided in favour of the assessee - It is not the contention of the Revenue that any appeal has been filed by them against the aforesaid two decisions of Tribunal in assessee's own case, therefore judicial discipline demands that Tribunal should follow these decisions of Tribunal in assessee's own case, which are directly on this issue and are still holding the field - The amount involved in all the four appeals filed by Revenue is either Rs. 12 lakhs or less, which is much lower than the threshold limit fixed by the litigation policy, therefore on that ground also the appeal filed by department is liable to be dismissed, but still, since the litigation policy dated 22.08.2019 is of a later date i.e. the date after the conclusion of hearing and reserving of orders in these Appeals, in order to avoid any debate as to whether these appeals falls under the category of "pending cases" as on 22.08.2019 i.e. the date of litigation policy, Tribunal is deciding these appeals on merits - Assessee is therefore eligible for rebate under Notfn 41/2012 - Therefore, the appeals filed by Revenue are devoid of merit and are accordingly dismissed: CESTAT
- Appeals dismissed: MUMBAI CESTAT
2019-TIOL-3575-CESTAT-MAD
Guardian India Operations Pvt Ltd Vs CCE
ST - The assessee is involved in export of ITSS Services and filed a refund claim under Rule 5 of CCR, 2004 - After processing the claim, the original authority disallowed the credit in respect of Parking Charges as well as Work Contract Services - The first issue is with regard to Parking Charges paid by assessee - Assessee have availed the said services in order to use the premises of another person for parking of vehicles - The said services having been used for providing output services, both credit as well as refund is eligible - Therefore, the disallowance of credit on Parking Charges is unjustified and the same is allowed - The second issue is with regard to Works Contract Services - The authorities below have rejected the credit availed on the said services alleging that these are availed for setting up of the office of assessee - On perusal of invoices, the services availed is Works Contract Services - However, there is no mention of construction of new building or civil structure - So also, there is no work provided in nature of laying of foundation or making of constructions for support of capital goods - Thus the exclusion clause provided in clause (A) of the definition of "input services" cannot be pressed into application on Works Contract Services, availed by assessee - It is seen that there are certain supply of goods which do not go into the Works Contract Services - The assessee has to furnish details of the amount relating to supply of such items - Therefore, this matter requires to be remanded to the original authority for verification as to eligibility of credit on Works Contract Services after giving an opportunity to the assessee to furnish details with regard to the supply of goods in the nature of carpets, modular furniture and chairs - The amount relating to carpets, modular furniture and chairs will not be eligible for credit - Refund in respect of the Parking Charges is allowed - The issue with regard to Works Contract Services is remanded to the adjudicating authority: CESTAT
- Appeal partly allowed: CHENNAI CESTAT
CENTRAL EXCISE
2019-TIOL-2860-HC-P&H-CX
SN Consultants Vs CC
CX - The consignment of petitioner imported from Sri Lanka under the Incentive Scheme does not invite payment of any custom duty - The grievance is that the consignment has not been released for the last two months on the alleged ground of verification of certificate of place of region while illegally demanding 100% bank guarantee of the proposed custom duty - The respondent states that the goods have been released without seeking any bank guarantee and therefore, seeks exemption from filing the affidavit in compliance of the previous orders - In response, the petitioner submits that the writ petition has become infructuous and the same may be dismissed as such: HC
- Petition dismissed: PUNJAB & HARYANA HIGH COURT
2019-TIOL-2859-HC-P&H-CX
CCE & ST Vs Somsugandh Industries Ltd
CX - The assessee is engaged in manufacturing of Pan Masala, Khaini, Gutka in their plant - During search in the premises of the factory, DGCEI found that there was suppression of production and clandestine removal of the product - A SCN was issued raising a demand which was confirmed by Adjudicating Authority - The assessee filed an appeal before the Tribunal which was allowed by setting aside the order passed by the Adjudicating Authority and remanding the matter back for fresh adjudication - Since the adjudication process did not make any substantial headway, the assessee filed an application for refund of an amount which was voluntarily deposited during search proceedings and subsequently to avail the benefit of lesser penalty - The application was dismissed by the Adjudicating Authority, resulting into the assessee filing an appeal before Commissioner (A) - The First Appellate Authority upheld the order passed by Adjudicating Authority - Thereafter, assessee filed an appeal before the Tribunal which directed the Adjudicating Authority to refund the aforesaid claimed amount - Assessee states that in compliance of fresh order passed by Tribunal, the amount of claimed refund already stands sanctioned by Department vide order dated 31.07.2019 passed by the Adjudicating Authority - Hence it is claimed by assessee that the appeal would not survive - The appeal is disposed of having been rendered infructuous: HC
- Appeal disposed of: PUNJAB & HARYANA HIGH COURT
CUSTOMS 2019-TIOL-2858-HC-DEL-CUS
Ambay Industrial Corporations Vs UoI
Cus - The petitioner has deposited Rs. 50 lakhs vide Demand Draft with the Respondent No.3 - It appears that the investigation is going on for the alleged violation of provision of Customs Act, 1962 wherein, the investigation agency has already recorded the statements of petitioner and the relevant persons under Section 108 of the Customs Act, 1962 - The amount which is deposited by petitioner cannot be ordered to be refunded by this Court because the argument canvassed by petitioner cannot be accepted that amount of Rs. 50 lakhs with respondent no. 3 was deposited under coercion because allegation of "coercion cannot be established by way of annexures in the writ petition" - In fact, cogent and convincing evidences are required to be led to establish coercion; as the investigation for alleged breach of provisions of Customs Act, 1962 is already going on and at this stage, it will be absolutely premature to come to a conclusion that the amount deposited by petitioner was not required to be deposited by the petitioner before the respondent no.3 - No reason found to pass any order in favour of petitioner for refund of the amount as prayed for in this writ petition: HC
- Writ petition dismissed: DELHI HIGH COURT |
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