2019-TIOL-3611-CESTAT-ALL

Sudama Singh Contractor Vs CCE & ST

ST - 'Management, Maintenance & Repair Services' - Appellants are engaged in 'Works Contract Service' with the M/s Obra Thermal Power Project, alongwith supplying of the material - They were discharging Service Tax liability on the value of the services indicated in the said contract - appellant submits that on the materials supplied, they have paid VAT and as such if the value of material is excluded from the gross value, they have correctly paid the Service Tax of the service element - Original authority did not consider this plea and confirmed the demand raised but the Commissioner(A) accepted the assessee's stand that the value of VAT paid on material during the course of service has to be excluded from the gross value; however, he calculated the value of the such materials and excluded the same and brought the demand to the extent of Rs.19,92,170/- - said order is appealed before CESTAT - Appellant's contention is that in terms of Notification No.12/2003-ST dated 21.08.2003 read with subsequent Notification No.24/2012 dated 06.06.2012, in case of composite contract, service tax shall be payable at the rate of 40% of the gross amount charged; that they have already paid service tax on 76% of gross contract value and in some cases, the same is 82%; that the Lower Authorities have erred in not disputing the calculation of material cost and wrongly confirmed the demand.

Held: Issue is no longer res integra - in view of Allahabad High Court decision in Mahendra Engineering Ltd. - 2014-TIOL-1501-HC-ALL-ST - impugned order is set aside and the appeal is allowed with consequential relief to the appellant: CESTAT [para 6, 7]

- Appeal allowed: ALLAHABAD CESTAT

2019-TIOL-3610-CESTAT-DEL

Ram Minerals Vs CCE

ST - Appellant is engaged in providing taxable services namely site formation and clearance, excavation, earthmoving and demolition service and survey and exploration of mineral service - Issue is whether service tax confirmed by the Commissioner (Appeals) on the value of free supply of the explosives by J.K. White Cement to the appellant is includable in the assessable value of the taxable service or not in terms of the provisions of the Finance Act, 1994.

Held: Value of the free supplies of the explosives by the service recipient to the appellant is not includable in the taxable value in view of the apex court decision in B hayana Builders (P) Ltd - 2018-TIOL-66-SC-ST - impugned order is, therefore, set aside and appeal is allowed: CESTAT [para 7 to 9]

- Appeal allowed: DELHI CESTAT

2019-TIOL-2900-HC-MAD-NDPS

Senthil Kumar Vs Asst CC

NDPS - Special Judge has come to the conclusion that the accused/appellant is guilty for the offence under sections 8(c) r/w.22 (c) of NDPS Act and convicted him for the above said offence and sentenced him to undergo 10 years rigorous imprisonment and to pay a fine of Rs.1,00,000/-, in default to remit the fine amount, the accused to undergo six months rigorous imprisonment - challenging the said conviction, the present appeal has been filed before the High Court.

Held: Contraband recovered from the appellant was Metha Phetamine Hydrochloride (Ephedrine), which is a prohibited substance under the NDPS Act - The appellant has not produced either any licence or permission to possess the contraband. Therefore, he has committed the offence under Sections 8(c) r/w.22 (c) of NDPS Act - On reading of the entire materials available on record, Court finds that the prosecution has proved its case for the offence of the appellant under Sections 8(c) r/w.22(c) of NDPS Act and on reading of the judgment of the trial Court also, the trial Court has found that the prosecution has established its case beyond reasonable doubt and also there is no violation of mandatory provisions of NDPS Act - Therefore, this Court does not find any perversity in the judgment of the trial Court - This Court also finds that the prosecution has proved its case through cogent and reliable evidence and there is no merit in the appeal and the appeal is liable to be dismissed and accordingly dismissed: High Court [para 18, 20]

- Appeal dismissed: MADRAS HIGH COURT

2019-TIOL-2899-HC-MAD-CUS

Shailesh Jariwala Vs CC

Cus - Grievance raised in the appeals is that the CESTAT could not have dismissed the apeals for want of prosectuion, contrary to the decision of the Supreme court in the case of Balaji Steel Re-rolling Mills - 2014-TIOL-92-SC-CX-LB - When applications were filed for recall of that order and hearing of the appeals on merits, the Tribunal again dismissed the said applications on 18.04.2017, distinguishing the above judgment of the Supreme Court in Balaji Steel Re-rolling Mills (supra).

Held: Bench is satisfied that the Tribunal has erred in unnecessarily finding ways to distinguish the ratio and applicability of the said judgment of the Supreme Court in the case of Balaji Steel Re-rolling Mills (supra), which was binding on all the lower Courts and the Tribunals without exception and, therefore, the Tribunal was bound to decide the appeals on merits - Being the final fact finding body, a duty is cast on the Tribunal to decide the appeals on merits - Tribunals are not Constitutional Courts - At the same time, if repeated adjournments were sought, the Tribunal could impose some costs on the appellant, but the appeals could not have been dismissed for want of prosecution or without deciding the merits of the case even though ex-parte, if it becomes necessary, in terms of the aforesaid judgment of the Hon'ble Supreme Court in the case of Balaji Re-rolling Mills Ltd. (supra) - Civil Miscellaneous Appeals are allowed - Orders of the Tribunal are set aside and appeals are restored to the file of the Tribunal with a direction to decide the appeals on merits and by following the principles of natural justice - Matters to be decided by Tribunal subject to the appellants depositing cost of Rs.10,000/- for each appeal restored by this order, with the Consumer Welfare Fund, maintained by the Central Government: High Court [para 5 to 7]

- Appeals allowed: MADRAS HIGH COURT

TII

TP - Appeals having low tax effect than what was prescribed as per CBDT Circular, merits dismissal per se, leaving substantial question open: HC

I-T - Question as to existence of PE which requires detailed enquiry, cannot be determined at stage of deciding application for issuance of tax certificate u/s 197: HC

TIOL CORPLAWS

IBC - After liquidation order, liquidator to consider scheme of arrangement filed under Companies Act rather than allow re-start of resolution process : NCLAT

Arbitration - Appointment of arbitrator should be in terms of agreement and HC is not right in appointing independent arbitrator ignoring the original Contract: SC Larger Bench