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SERVICE TAX
2020-TIOL-33-SC-ST
CCE Vs Emaar Mgf Construction Pvt Ltd
ST - Tribunal had while allowing the appeal of the respondent held that the activity under Project Development Agreement (PDA) is a composite and indivisible works contract and cannot be said to be service simplicitor; that however, the SCN raised duty demand under Construction of Complex Service; Apex Court in Larsen & Toubro Ltd. 2015-TIOL-187-SC-ST, held that a composite Works Contract cannot be taxed under CCS as the latter's scope covers contract of service simplicitor; that the submission of AR relating to the provisions under GST cannot also be accepted since what has to be examined is the service provided by the Appellant under the provisions of the Finance Act, 1994 - Aggrieved, Revenue in Appeal before Supreme Court.
Held: Delay in filing appeal condoned - Notice to be issued and appeal to be tagged with Civil Appeal Diary no. 15616 of 2019: Supreme Court
- Notice issued: SUPREME COURT OF INDIA
2020-TIOL-192-CESTAT-MAD
Iqra Exports Vs CGST & CE
ST - Refund - Show Cause Notices were issued alleging non-compliance with the condition 2 (h) of Notification No. 27/2012 CE (N.T) dated 18.06.2012 - appellant has submitted that they have complied with the condition by causing debit entries in March 2019 - moreover, refunds could not have been denied for mere procedural lapse.
Held: Since there is no finding by both the lower authorities on the debit entries effected by the appellant, matter requires re-adjudication - Matter remanded: CESTAT [para 4]
- Matter remanded: CHENNAI CESTAT
CENTRAL EXCISE
2020-TIOL-34-SC-CX
UoI Vs Sarla Performance Fibres Ltd
CX - High Court had while allowing the petition of the respondent EOU held that Revenue's findings that the refund of duty drawback for Customs duty can only be made through brand rate fixation, are incorrect; that, therefore, the claim for refund as per All Industry Rates of Duty Drawback Schedule cannot be denied - Revenue in appeal before Supreme Court.
Held: After condoning the delay, leave granted - Counter affidavit to be filed within a period of six weeks and rejoinder affidavit within four weeks thereafter: Supreme Court
- Appeal admitte: SUPREME COURT OF INDIA
2020-TIOL-191-CESTAT-MUM
CCE Vs Vijai Marine Services
CX - Classification of 'MV Royale Floatel' - Appellant was contracted for the conversion of 'dumb barge' and 'other equipment' into a self-propelled luxury floating hotel which, the impugned order holds as to be amounting to manufacture and classifiable in chapter 89 of First Schedule to the CETA, 1985 - Clearance, at a declared value of Rs. 11.89 crores, had been effected by the appellant at 'nil' rate of duty applicable to heading no. 8905 with entitlement to exemption under notification no. 12/2013-CE dated 1st March 2013 - SCN proposed recovery of undischarged duty liability on the ground that the vessel was intended for deployment as an 'offshore casino' to be operated on the Mandovi river in Goa and that, under the pretext of clearing the same as a 'conveyance', the true intent of use and actual design of the impugned goods had been concealed to avail the consequences of the claimed classification; that vessel is correctly classifiable under heading no. 89039990 as 'yachts and other vessels for pleasure or sports; rowing boats and canoes' - It is alleged that the 'dumb barge' converted as a 'self-propelled floating hotel' as per contract with M/s Highstreet Cruises and Entertainment Pvt. Ltd was, thereafter, handed over to M/s Delta Pleasure Cruise Company Pvt Ltd on 'bare boat charter' and that the latter was a known operator of floating casinos, including MV Casino Royale, at the same location in Goa - Adjudicating authority came to the conclusion that, notwithstanding the subsequent 'bare boat charter' and ultimate deployment as a floating casino, the evidence on record did not advance the proposal in the notice and that the vessel failed classification, at the time of clearance, as anything other than as conveyance for persons - it was concluded by the adjudicating authority, that floating casinos are not 'vessels for pleasure or sports' - Revenue in appeal before CESTAT.
Held: It appears that, in the view of Officers of Central Excise, gambling gives pleasure and the inclusion of such expression in heading no. 8903 of First Schedule to Central Excise Tariff Act, 1985 would suffice for resorting to that classification - An examination of the headings in chapter 89 of the First Schedule to CETA, 1985, as well as the Explanatory Notes, does not throw light on an exhaustive enumeration of 'boats for pleasure or sport' - It is common ground that the vessel was described as a 'floating hotel' - A vessel, whether of the simplest and most rudimentary structure or as opulent as the Titanic, is a mode of transport/habitation that is capable of buoyancy in water - Even if such floating structure were to include facilities for games of skill, games of pleasure and games of chance, the functionality, as a means of transport, does not undergo transformation - opulence of the vessel or facilities available on board should not metaphonically capsize the classification on the figurative iceberg of taxation - In the absence of a specific description of 'casino vessels' and for the want of definition of 'pleasure boats', recourse to Rules for Interpretation of the Schedule cannot be had - In the light of the decision in re Ashok Khetrapal and the absence of other binding precedent on the classification of 'casino vessels' as 'pleasure boats', Bench finds no reason to interfere with the order of the adjudicating authority - Revenue appeal dismissed [para 5, 6, 13, 14, 15]
- Appeal dismissed: MUMBAI CESTAT
CUSTOMS
2020-TIOL-190-CESTAT-DEL
CC Vs RU Imports Exports Pvt Ltd
Cus - M/s.Ethan Sales and Services had imported a consignment of Dietary Supplements –the department was of the view that since the goods as tested by FSSAI Laboratory, Ghaziabad have been declared as unsafe for human consumption, they become prohibited goods as per section 25 of the Food Safety & Standards Act, 2006 and, therefore, a SCN was issued for confiscation of the imported consignment under section 111(d) of the Customs Act, 1962 [Act] - penal provisions of section under 112A have also been invoked against the importing firm and its Proprietor and various persons – goods absolutely confiscated, penalties imposed by adjudicating authority – Revenue is in appeal before CESTAT on the ground that the CHA firm [respondent] has played a crucial role in violation of the provisions of the Foods Safety & Standards Act, 2006 as well as violation of provisions of the Act, however, the Adjudicating Authority has failed to impose penalty u/s 112A on the respondent CHA firm.
Held: CHA firm is an independent legal entity and responsible for ensuring compliance of the customs provisions -the CHA firm has been provided with a CHA license as per the provisions of the Customs Broker Regulations, CBLR which mandate them to ensure compliance of provisions of the Customs Act and since they have failed in their duty and such act have rendered the subject consignment liable for confiscation as per provisions of section 111 (d) of the Act, a penalty under section 112 (a) of the Act is required to be imposed -the Adjudicating Authority after providing an opportunity hearing to the respondent CHA firm will adjudicate the matter afresh only with regard to issue of the imposition of the penalty under section 112A of the Act –the appeal is, therefore, allowed by way of remand to the original Adjudicating Authority to decide the issue afresh : CESTAT [para 6, 7, 8]
- Matter remanded: DELHI CESTAT
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