Sarvpriya Securities Pvt Ltd Vs UoI

GST - Anti Profiteering - An application was filed before the Haryana State Screening Committee on Anti Profiteering u/r 129(6) of the CGST Rules 2017 - The applicant claimed to have purchased a flat in a project developed by the petitioner herein and alleged that the petitioner had not passed on the benefit of input tax credit through commensurate reduction in price in terms of Section 171 of the CGST Act - The matter was referred to the DGAP, which considering the material submitted by the petitioner, determined the profiteered amount at about Rs 9.96 crores which included GST on the base profiteered amount - The DGAP also observed that the benefit of additional ITC worked out to about 10.65% of the turnover and had to be passed on to 1039 recipients - Thereafter, the NAA observed the profiteered as computed by the DGAP to be correct since it had been arrived at based on returns filed by the petitioner and the ITC as percentage of the turnover available to the petitioner during the pre and post GST period was computed based on records, information and returns furnished by the petitioner - Hence such figures were held to be reliable - The petitioner was held to be under a legal obligation to pass on benefit of ITC to its buyers and that the same could not be appropriated by it - Its claim of having passed on ITC of about Rs 4.08 crores was quashed, considering that though there were certain entries in the petitioner's ledger accounts, it could not be ascertained if such entries were on account of passing on ITC benefit - Hence the petitioner was directed to reduce the prices commensurate to reduction in rate of GST and also to pass on the profiteered amount along with 18% interest - As the petitioner's activity of denying benefit of rate reduction is in contravention of the mandate of Section 171(3A), SCN was directed to be issued proposing to impose penalty u/s 171(3A) r/w Rule 133(3)(d) - Hence the present writ petition.

Held - Notice be issued to the parties - Respondent-Union given six weeks' time to file counter affidavits - Moreover, considering the facts and circumstances, the stay is directed on the operation of the order passed by the NAA, conditional upon the petitioner depositing 10% of the amount of profiteering assessed by the NAA - Such pre-deposit is to be made within four weeks' time: HC

- Notice issued: DELHI HIGH COURT

2020-TIOL-77-SC-MISC-LB

Cognizance for Extension of Limitation

Misc - Supreme Court has taken suo motu cognisance of the situation arising out of the challenge faced by the country on account of COVID-19 and resultant difficulties that may be faced by litigants in filing petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law or under special laws - To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in Courts/Tribunals across the country including the Supreme Court, it is hereby ordered that the period of limitation shall stand extended w.e.f 15th March 2020 till further order/s - Powers exercised under Article 142 r/w Article 141 of the Constitution of India - Order is binding on all Courts/Tribunals and authorities: Supreme

- Notice issued : SUPREME COURT OF INDIA

SERVICE TAX

Choubay And Company Agencies Pvt Ltd Vs Commissioner GST, CC & CE

ST - The assessee filed a refund claim on grounds that it paid service tax on various activities which were exempt from levy of service tax during the relevant period - The refund claim was rejected by the lower authorities on account of being time barred - Hence the present appeal.

Held: It is observed that every refund claim arises on account of the fact that service tax was not required to be paid - Besides, the Apex Court in Porcelain Electric Magg. Co. vs. Collector of Central Excise, New Delhi held that refund claims are governed by the time limit specified in law and on which the general law of limitation is inapplicable - Moreover, the Madras High Court in Assistant Commissioner of Service Tax, Chennai vs. Nataraj & Venkat Associates held that refund claimed beyond the prescribed limitation period is totally barred by law - Hence the subject order rejecting refund does not warrant any interference with: CESTAT

- Assessee's appeal dismissed: ALLAHABAD CESTAT

2020-TIOL-500-CESTAT-BANG

CCT Vs Karnataka Golf Association

ST - The assessee is an Association of Persons - The issue at hand is whether it is liable to pay Service Tax on "advance entrance/enrollment fee" collected from prospective members.

Held: The issue at hand is covered squarely by the decisions in Bangalore Golf Club Vs CCE and Ranchi Club Ltd Vs chief CCE & ST - It is settled position in law that there being mutuality of interest between the club and its members, there is no transfer of ownership of the service - Hence the Revenue's appeals merit being dismissed: CESTAT

- Revenue's appeal dismissed : BANGALORE CESTAT

CENTRAL EXCISE

2020-TIOL-642-HC-SIKKIM-CX

Sikkim Organics Vs UoI

CX - The present Interim Application was filed seeking directions to the CESTAT to restore an appeal filed by the assessee, upon payment of requisite amount being made within the time frame as prescribed - The dismissal of the appeal by the Tribunal was sustained by the High Court of Sikkim on account of the assessee not having deposited the requisite amount within the prescribed time frame.

Held - The counsel for the assessee claimed that the assessee is in no position to pay the requisite pre-deposit amount as per Section 35F of the Act - In such circumstances, there is no option but to dismiss the present interim application - Moreover, the court cannot order stay on recovery of the duty demand, if the notice raising such demand was not challenged in the first place: HC

- Interim Application dismissed: SIKKIM HIGH COURT

2020-TIOL-499-CESTAT-DEL

CCE & ST Vs Rajasthan Explosives And Chemicals Ltd

CX- SCN dated 9.4.1998 was issued to the respondent [M/s.Rajasthan Explosives and Chemicals Ltd.] alleging that it had not paid CE duty on the goods cleared during the period 1995-1996 to 1997-1998 -the demand was confirmed and in the Appeal filed before the Tribunal by the respondent, an amount of Rs.1.23 crore was directed to be deposited as a condition for filing of the Appeal -the Appeal was ultimately allowed by the Tribunal by order dated 20.12.2016 -consequently, the respondent filed a refund claim for Rs.1.23 crore - the Assistant Commissioner, vide order dated 11.4.2018, held that the refund claim was admissible but directed that it shall be adjusted against the confirmed demands - on appeal, the Commissioner (Appeals) held that the Assistant Commissioner wrongly adjusted this sanctioned refund amount from confirmed demands and also directed for payment of interest for the period starting from 19.3.2017 till the date of payment of refund amount - Revenue is in appeal before CESTAT.

Held: As noticed by the Commissioner (Appeals), the dues pertaining to the orders dated 18.10.2001 and 23.2.2001 confirming the demands, were not disclosed by the Department or the earlier management to the BIFR and the same were not considered in the scheme sanctioned by BIFR - the BIFR had also, by order dated 22.5.2002, protected the management from recovery of dues which were not disclosed by the old management or not provided for in the package approved by the BIFR - it is not the case of the Department that the dues pertaining to the aforesaid two orders confirming the demands had been disclosed by the Department or the earlier management to the BIFR - the proceedings before the BIFR had not been assailed before any appellate forum -there is, therefore, no error in the impugned order passed by the Commissioner (Appeals) - the Appeal is, therefore, liable to be dismissed and is, accordingly, dismissed : CESTAT [para9, 10, 11]

- Appeal dismissed: DELHI CESTAT

2020-TIOL-498-CESTAT-BANG

Suvikram Plastic Pvt Ltd Vs CCE

CX - Appellants are manufacturers of HDPE/PP Tapes/fabrics - They have classified the same under CETH 6006 9000 chargeable to duty @ 8% whereas the Department opined that the same are classifiable under CETH 3926 9099 chargeable to duty @16% during the relevant period - Three periodic SCNs were issued and confirmed by the original authority and upheld by the Commissioner(A), therefore, appeal before CESTAT.

Held: Issue is no longer res integra and the 'Shading Net' manufactured by the appellant is rightly classifiable under CETH 6005 9000 as held in the case of Sofeflex International Ltd. - 2018-TIOL-2340-CESTAT-DEL - Accordingly, the impugned orders are set aside and all the three appeals are allowed with consequential relief: CESTAT [para 4, 5]

- Appeals allowed: BANGALORE CESTAT

TP - It is fit case for remand where TPO does not record reasons for rejecting CUP method for benchmarking international transactions, as favored by assessee: ITAT

I-T - Payment received for IT support service rendered by assessee, can be treated as Fees for Technical Service, where no information concerning technical, industrial or commercial knowledge, is being imparted: ITAT

TIOL CORPLAWS

IBC - If resolution plan with respect to insolvent company has been approved by NCLT then such company cannot be prosecuted for any offence committed prior to commencement of CIRP: HC

IBC, 2016 - Time period of resolution process is extendable beyond prescribed period if Tribunal delays in communicating order to Interim Resolution Proffessional: NCLAT