| SERVICE TAX
2019-TIOL-2875-HC-MAD-ST
CGST & CE Vs Jeyam Automative Ltd
ST - The Revenue has filed the appeals aggrieved by order passed by Tribunal setting aside the penalties under Section 76 and 78 of FA, 1994 - The assessee has admittedly paid the service tax with interest - Revenue has submitted that the assessee collected service tax from its customers and did not pay it in time and therefore the penalty was justified - Considering the fact that the assessee paid service tax along with interest in question, soon upon getting information from the Department, as noted by Tribunal, setting aside of the penalty on the ground of delay in depositing the penalty was justified and therefore, the Tribunal has not erred in setting aside such penalty imposed upon the assessee - The appeals are devoid of merits and are dismissed: HC
- Appeals dismissed: MADRAS HIGH COURT
2019-TIOL-3583-CESTAT-HYD
Hyundai Motor India Engineering Pvt Ltd Vs CC, CE & ST
ST - The assessee had filed refund claim under Rule 5 for refund of unutilised CENVAT Credit - The refund in respect of construction services, telephone services, canteen services, housekeeping services and group health insurance was rejected - The disputed period is prior to 01.04.2011 - The definition of input services included the words 'activities relating to business’ - Various decisions of Tribunal has held that the services availed for activities relating to business are eligible for credit/refund - In the assessee’s own case, the credit in respect of construction services has been allowed - Further the credit in respect of telephone services, canteen services, house keeping services and group health insurance services has been allowed by department for different periods - The rejection of refund claim in respect of said services is unjustified - The impugned order is set aside: CESTAT
- Appeal allowed: HYDERABAD CESTAT
CENTRAL EXCISE
2019-TIOL-2874-HC-RAJ-CX
UoI Vs Hindustan Zinc Ltd
CX - The assessee was engaged in manufacturing of lead & zinc concentrate; it availed Cenvat credit of excise duty paid on inputs & capital goods and credit of service tax paid on input services - Alleging that the full payment of value of input services was not in fact made to the Service Providers during 2006-07 to 2009-10, a SCN was issued - The Adjudicating Authority dropped the demand - However, revenue appealed to the Tribunal - Relying upon a previous decision in Hindustan Zinc Ltd., the Tribunal allowed the appeal - While doing so, it was mainly influenced by a circular dated 30.04.2010 - It is clear that CESTAT in its finding noticed the clarification issued by Board and held that the withholding of performance guarantee in the present case is covered in para 5 (b) - This Court is of the opinion that the argument of Revenue that performance guarantee amounts withheld by the asseessee are not per se covered by the circular, is incorrect - A clear reference to amounts withheld towards various counts including security, in the opinion of the court, comprehends the withholding of amounts towards performance guarantee - The question of law is answered against the Revenue: HC
- Appeal dismissed: RAJASTHAN HIGH COURT
2019-TIOL-3582-CESTAT-MUM
Indian Oil Corporation Ltd Vs CCT
CX - The appellant-company is a PSU and a dealer of excisable goods, registered u/r 57GG of the CER 1944 for passing Modvat credit as a registered dealer - The appellant did not take credit and utilises the same for payment of duty, but accounted for the credit in its RG-23D register and passed on the same to the customers under the dealer invoices issued u/r 57GG of the CER 1944 on sale of such credit availed inputs as such - The appellate took input credit based on original/duplicate/triplicate/quadruplicate or extra copies of the invoices - SCN was issued to the appellant, proposing to deny credit on grounds that the provisions of Rule 57I of the CER were inapplicable to dealers registered u/r 57GG and thus credit taken on the basis of triplicate and quadruplicate copies of invoices was not valid u/r 57G of the CER - The Revenue opined that Rule 57I was applicable only to a manufacturer or an assessee - The registered dealer was neither of the two, owing to which Rule 57I was inapplicable to the appellant - Such disallowance of benefit was confirmed by the O-i-O - Upon remand ordered by the Commr.(A), the adjudicating authority allowed partial credit only, on grounds that original and duplicate copies of invoices qualified as valid documents - The matter was later remanded again, whereupon the adjudicating authority again held that the appellant produced no additional documents to enable verification of Modvat claim - Such findings were sustained by the Commr.(A) - Hence the present appeal.
Held - There is no allegation of any contumacious conduct, suppression of fact or fraudulent conduct on part of the appellant - There is no allegation of non-receipt of goods by the appellant in respect of which modvat credit was taken - The SCN for alleged violation relating to the relevant period was admittedly issued beyond the normal period of limitation - Rule 57GG(10) mandates filing the monthly return within seven days from the close of each month alongwith the requisite documents - It is also seen that though Modvat credit was disallowed, no penalty was imposed on the assessee - There is also no case of deliberate defiance made out against the appellant, which is a PSU and there can be no element of taking credit wrongly for personal gain - Besides, the grounds of limitation were not raised in the earlier rounds of appeal and is raised before the Tribunal - As question of law arises from the facts on record, such ground merits being entertained - Keeping in mind the facts and circumstances, the SCN is bad in law for invoking extended limitation: CESTAT
- Assessee's appeal allowed: MUMBAI CESTAT
CUSTOMS 2019-TIOL-2873-HC-DEL-CUS
Honda Trading Corporation India Pvt Ltd Vs UoI
Cus - The petition has been preferred challenging the order passed by Revisional Authority who upheld the denial of rebate on the ground that the description of goods in ARE-1 and excise invoices do not tally with the description in shipping bills and commercial invoices as well as purchase orders placed by foreign buyers - The crucial aspect of rebate claim ought to have been tallied before the rebate is given and since the description of goods mentioned in ARE-1 and excise invoices do not tally with the description of the shipping bills and the commercial invoices as well as with the purchase orders placed by the foreign buyers, it is found that no error has been committed by the lower authorities in passing the O-I-O and the O-I-A and in further rejecting the revision petition, vide the impugned order, dated 3rd January, 2018 - Whenever the assessee claims rebate, the primary and foremost consideration is the identity of goods and the onus to prove the same lies on the claimant, who, in this case has failed to do so, even as observed by the Revisional Authority - Moreover, the findings of fact warrant no interference: HC
- Writ petition dismissed: DELHI HIGH COURT
2019-TIOL-2872-HC-MAD-CUS
ACC Vs Navaskhan
Cus - The respondent was convicted under Section 135 of Customs Act, 1962 - The provision relied on by petitioner is very clear that the special reason excludes the first time offender as per Section 135(3)(i) of Customs Act - Therefore, the reliance placed by Magistrate for passing special sentence less than statutory minimum punishment per se appears to be in violation of the provisions of Customs Act and therefore, the same is liable to be interfered with - Therefore, the matter is remanded back to the Judicial Magistrate for fresh consideration and for passing orders strictly in terms of the Section 135 of Customs Act - The Judicial Magistrate is directed to issue notice to the parties concerned and pass appropriate orders on merits and in accordance with law within a period of three months: HC
- Criminal Revision Petition is allowed: MADRAS HIGH COURT |
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