Daily Fresh Fruits India Pvt Ltd Vs ASST STO

GST - According to the petitioner, the carbonated fruit drinks manufactured by them was classified under HSN 2202 9920 and they were discharging GST @ 12% on all intra State and inter-State supplies - On earlier occasions, the petitioner had also brought the aforementioned drinks within the jurisdiction of Kerala and the vehicles carrying the aforementioned goods were intercepted on the premise that the aforementioned goods were wrongly classified, in fact they would be falling under the head 2202 10, for which the GST rate is 28% - Though against the aforementioned detention, the petitioner after paying the tax and penalties, obtained the release of the vehicles, this time again on 31st January 2020, the goods of similar nature being brought within the jurisdiction of the Kerala State were intercepted and detained on the same premise - action of the authorities in detention has been assailed in the present writ petition.

Held: Transit of goods from Tamil Nadu to Kerala, reflecting the payment of Goods and Services Tax as 12% in categorizing drink under the code 2202 9920 are not in dispute - The only point to be pondered is whether the Officers of Kerala would have a jurisdiction to detain and seize the goods or at the best could have intimated the jurisdictional Officer in Tamil Nadu to initiate proper proceedings against the petitioner in view of the report - It is evident that Section 129 opens with a non obstante clause empowering the Officers to detain and seize the goods, if it found to be in contravention of any of the any of the provisions of the Act and release of the vehicles, as per the conditions, enumerated, therein - In case of a bonafide dispute with regard to the classification between a transitor of the goods and the squad officer, the squad officer may intercept the goods and detain them for the purpose of preparing the relevant papers for effective transmission to the jurisdictional assessing officers and nothing beyond - In the present case, it is a case of bonafide miscalculation as to whether the goods would be exigible to 12% or 28% - the charging provisions must be construed strictly but not the machinery provisions which would be construed like any other statute - The upshot of the reasoning aforementioned is that the impugned order of detention and consequential notice in Form GST MOV-07 are not sustainable and hereby quashed - The goods are directed to be released to the petitioner with a further direction that the inspecting authority of Kerala would prepare a report and submit the same to the assessing authority, Tamil Nadu for taking action, if deem it appropriate, in accordance with law: High Court [para 5, 6, 7, 8]

- Petition allowed: KERALA HIGH COURT

2020-TIOL-534-HC-KERALA-GST

Joint Commissioner Vs Alpha Trading Company

GST - Challenge is by Revenue against a common interim order passed by Single Judge observing that the respondent officers need to take steps to facilitate the writ petitioners for uploading 'FORM GST TRAN-1', in compliance with the directions contained in the earlier judgments - appellants contend that the direction in the earlier judgments was only to the extent of permitting the respective writ petitioners therein to approach the Nodal Officer appointed on the basis of Circular No.39/13/2018-GST, dated 03.04.2018 and, therefore, the observations made in the interim order impugned in these appeals, that the 'FORM GST TRAN-1' should be permitted to be uploaded by the petitioners herein, cannot be legally sustainable.

Held: Division Bench notes that the challenge in these appeals are against an interim order which does not contain any specific directions - There is nothing to presume that the Single Judge will not consider such submissions of the appellants, if made with supporting materials - Of course, contention of the appellants will be subject to what the respondents have to say on the issue, before the Single Judge - At any rate, Bench does not think an interference with the impugned order is warranted in these appeals - Writ appeals are dismissed by reserving liberty to the appellants to raise all the contentions raised herein before the Single Judge, in seeking modification of the impugned interim order, if found necessary: High Court [para 3]

- Appeals dismissed: KERALA HIGH COURT

2020-TIOL-414-CESTAT-DEL

Akbar Travels Of India Pvt Ltd Vs PR CST

ST - Appellant contends that out of the seventy three airlines, only four airlines pay commission on fuel surcharge and, therefore, it cannot be said that commission is normally paid to the air travel agent by the airlines on fuel surcharge - It was, therefore, obligatory on the part of the Principal Commissioner to have considered this issue raised by the appellant in response to the show cause notice, but that has not been done - The matter is, therefore, remitted to the Principal Commissioner to decide this issue - It is only when this issue is decided against the appellant that it would be necessary for the Principal Commissioner to take recourse to the provisions of section 72 of the Act for determination of the taxable value - CENVAT credit issue can also be examined afresh - Matter remanded: CESTAT [para 13, 14, 16]

- Matter remanded: DELHI CESTAT

CENTRAL EXCISE

2020-TIOL-417-CESTAT-MUM

CCE Vs Cadbury India Ltd

CX - The facts are that the respondent is manufacturer of cocoa preparations, sugar confectionary falling under Chapters 17 & 18 of CETA, 1985 - Anti Evasion staff alleged that the respondent was manufacturing and clearing 'Milk Crumbs' without payment of any central excise duty, however, the same is classifiable under CSH 1806 2000 and chargeable to Central Excise duty @ 16% ad valorem - accordindly, demand notices were issued for recovery of CE duty and imposition of penalties etc. for the period October 2006 to September 2007 - CCE, Pune-I dropped the demand by making the following observation in paragraph 31 of the o-in-o - "… the show cause notice relies on the fact of transfer of milk crumbs to the job worker as additional evidence to prove the marketability of the product. I find that marketability is not dependent on whether goods move to a job worker, but whether they are sold for a consideration and whether the Sale of Goods Act becomes applicable to such goods. There is no evidence in the show cause notice to prove that the transfer of goods to the job worker was a sale and that Sales Tax has been paid on such goods. Further, the show cause notice also relies on the web site of M/s. International Customs Product which offers milk crumb products for sale. As is evident, the product offered for sale is milk crumb "products" and not milk crumbs per se. The evidence, therefore, cited in the show cause notice does not help the department and is of no value to prove the marketability of the product manufactured by the assessee." - As mentioned, Revenue is in appeal against order of Commissioner dropping the demand of duty amounting to Rs.11,60,39,147/- initiated under two show cause notices.

Held: There is no dispute with regard to the shelf life of the product - Shelf life of the product is one of the determinants of the product being marketable - If some product is having no shelf life or a very short shelf life, then the same could not be held to be marketable as has been held in the decision of the Apex Court in the case of Moti Laminates [ = 2002-TIOL-24-SC-CX-LB ] and which is not the case here - In case of T N State Transport Corpn Ltd, Supreme Court has held that shelf life of 8 to 10 hours is enough to market the goods - The respondent does not dispute that this product has sufficient shelf life - The samples produced before us were in the form of brownish packet in small plastics bags - While looking at these samples, Bench is convinced that these are capable of being taken to market for the purpose of being bought and sold - The size of packing in which this goods can be taken is irrelevant for determining the marketability till the time it can be shown that they are capable of being taken to the market - In view of this also, Bench finds that the test laid down by the Apex Court in various decisions is also satisfied - finding recorded by the Commissioner in respect of revenue neutrality cannot be justified as the same is contrary to the decision of the Larger Bench of the Tribunal in the case of Jay Yushin Ltd. = 2002-TIOL-126-CESTAT-DEL-LB and the in the case of Star Industries = 2015-TIOL-234-SC-CUS - revenue neutrality can never be ground for not demanding the duty on the excisable goods in the form and manner they are being cleared by the assessee - Accordingly, it is held that the goods in question viz. milk crumb is marketable and hence excisable - Revenue appeal is allowed by setting aside the impugned order passed by the Commissioner: CESTAT [para 4.13 to 4.16, 5.2]

- Appeal allowed: MUMBAI CESTAT

2020-TIOL-415-CESTAT-MAD

Sunshine Products Vs CGST & CE

CX - Appellant had paid Rs.3 lakhs during investigation - Adjudicating authority confirmed the demand with interest and appropriated the amount paid - Commissioner(A) allowed the assessee appeal by order dated 29.01.2010 and, therefore, Revenue preferred an appeal before CESTAT - Tribunal by its order dated 23.10.2017 dismissed the Revenue appeal on the ground that the amount involved in appeal is well below the monetary limits laid down under the National Litigation Policy consequent upon which assessee filed the refund claim for the amount of Rs.3 lakhs paid by them - claim was rejected on the ground of being time barred, therefore, appeal before CESTAT.

Held: Since the Revenue had preferred an appeal against the Order-in-Appeal (with the assessee also filing its cross-objection), the matter was sub judice before the Tribunal and naturally, when the matter was lis pendens, no such application for refund could be filed - therefore, appellant's claim for refund is not hit by limitation - impugned order is set aside - appeal allowed with consequential relief: CESTAT [para 5.2, 6, 7]

- Appeal allowed: CHENNAI CESTAT

TP - It is fit case for remand where DRP applies foreign exchange income filter so as to reject one comparable, but omits to consider such filter in respect of another comparable company: ITAT

TP - Loan is advanced in foreign currency, then either LIBOR or EUROBOR rate is an appropriate base for benchmarking rather then applying Indian banks rate: ITAT

TIOL CORPLAWS

Arbitration - Arbitral Tribunal is barred from injunction beneficiary to encash unconditional bank guarantee furnished in construction agreement if there is no case of fraud or irreversible damage: HC

IBC - After approval of Resolution Plan u/s 31 of IBC, is it open to Directorate of Enforcement to attach assets of Corporate Debtor on alleged ground of money laundering by erstwhile Promoters: NCLAT