2020-TIOL-397-HC-AP-ST

Vasudha Bommireddy Vs Assistant Commissioner of Service Tax

ST - Maintainability - claim in the Writ Petition is for refund of the amount collected as service tax without authority of law - Article 265 of the Constitution of India states that 'no tax shall be levied or collected except by authority of law', therefore, appeal is maintainable: HC [para 35]

ST - Construction of residential complex - There are no disputed questions of fact, which need to be gone into for deciding the claim for refund and since the claim for refund is based on the decision of the Delhi High Court in Suresh Kumar Bansal's case - 2016-TIOL-1077-HC-DEL-ST ) wherein it is held that in respect of the composite contracts for purchase of the immovable property along with goods used therein and also a part of the undivided land, service tax cannot be levied on composite price as per the provisions of the Act, inasmuch as the said statute did not contain any mechanism to segregate/bifurcate the value of goods and the cost of land from the gross value for determining the value of service, on which service could be levied - it cannot be said that there is any inordinate delay in the petitioners seeking refund of the tax paid by them since the application for refund was filed on 19.08.2016, barely two months after the decision of the Delhi High Court (supra) - Writ Petition is allowed and the 1st respondent is directed to refund a sum of Rs.33,77,539/- to the petitioners with interest @ 9% per annum from the date of payment of the same by the petitioners to the 4th respondent i.e., 19.06.2014 till the date of payment to the petitioners - Petition allowed: High Court [para 37, 38]

- Petition allowed: ANDHARA PRADESH HIGH COURT

2020-TIOL-315-CESTAT-KOL

CX - The assessee is a 100% EoU engaged in manufacture and sale of mouth freshener classifiable under Tariff Entry 21069070 of CETA 1985 - In course of business, the assessee purchased mouth freshener in bulk pack of 1 kg pouch as input, which it re-processed and re-packed in 200 gm and 500 gm packets and small cardboard boxes, which were then exported - On export, the assessee paid the duty by utilising for Cenvat credit and cleared the final product from its factory for export, under the prescribed procedure under supervision of Excise officer in charge of the factory - As the entity from whom the assessee procured goods, assessed the same u/s 4A of the Act, the same was followed by the exporter - In the relevant AY, the assessee availed cenvat credit on the purchases made by it, out of which, an amount was debited towards payment of Excise duty at time of final clearance - The assessee came to know about CBIC Circular F NO. 828/05/2006-CX clarifying that EoUs were not needed to pay Excise duty on exports and so it sought for re-credit of duty paid by it at time of export - The same was denied by the Revenue, which opined that a 100% EoU was fully exempt from payment of Excise duty as per Notfn No 24/2003-CE and that the assessee deliberately paid the duty in order to avail extra benefit of rebate as the valuation of the mouth freshener in the hands of the supplier was inflated - SCN was issued, denying the rebate claimed on grounds that the supplier overvalued the mouth freshener meant for export - The proposals in the SCN were confimed upon adjudication - Hence the present appeal.

Held: There is no dispute regarding the viability of duty free export by 100% EoU in terms of Notfn No 24/2003 - As the assessee paid the duty which was not required to be paid, there is no reason for denial of refund by way of credit in Cenvat a/c - Hence the O-i-O is incorrect on this score - Regarding the denial of rebate by the assessee as merchant exporter, the export goods were purchased on payment of duty to the supplier of the goods & so the assessee is permitted to avail rebate on the export product to the extent of Excise duty paid - Any violation at the end of the supplier of the goods, is not within control of the assessee - The Revenue did not object to the payment of duty at the time of their clearance from the assessee's factory - The goods in fact suffered Excise duty at the declared value - The assessee has not taken anything other than the duty paid at the time of procurement of raw material, as cenvat credit, which after processing, was exported by a value addition at the assessee's end - Hence the assessee is rightly entitled to claim rebate of the Excise duty paid at the time of procurement from supplier - Besides, the Customs Department did not object to the value declared by the assessee at the time of export under the Export Valuation Rules 2007 - Therefore, the assessee is entitled for recredit/refund of cenvat credit duty availed while exporting the goods through its 100% EoU and also the rebate claimed: CESTAT

- Assessee's appeal allowed: KOLKATA CESTAT