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SERVICE TAX
2020-TIOL-525-CESTAT-MAD
TV Sundaram Iyengar And Sons Ltd Vs CCE
ST - Issue as to whether "Club" or "Association" Services is subject to levy of service tax is decided by the Apex Court in the case of M/s. Calcutta Club Ltd. - 2019-TIOL-449-SC-ST-LB in favour of the assessee - Commissioner (Appeals) observed that the issue whether the refund claim is hit by the bar of unjust enrichment is too premature to be considered, however, he has proceeded to reject the refund claim - Bench is, therefore, of the considered opinion that the appellant has to be given a further opportunity to prove whether the burden of tax has been passed on to another - order set aside and matter remanded to the adjudicating authority: CESTAT [para 4]
- Matter remanded: CHENNAI CESTAT
2020-TIOL-522-CESTAT-MUM
V Xpress Vs CST
ST - The appeal of M/s V Express [appellant], impugns order dated 24.12.2014 - in addition, there are two demands of Rs.7.62 lakhs and Rs.2.15 lakhs representing recoveries made from the recipients of taxable service which, even if not due was, nevertheless, required to be deposited with the exchequer as provided for in section 73A of Finance Act, 1994 [Act] - the appellant, as a 'goods transport agency', had been rendering service of 'transportation of goods by road' and demand of Rs.12.91 crores proposed in SCN dated 28.3.2012 for the period from 1.11.2009 to 31.12.2011 and of Rs.1.89 crore for 2011-12 was founded on investigations that allegedly was liable as 'courier agency service' - though both services are, admittedly, taxable, the differential tax arises from the benefit of notification no.35/2004-ST dated 3.12.2004 available to providers of 'transport of goods by road service' - vide impugned order, the Commissioner upheld the proposal to revise the taxable service but, accepting the plea of interpretational confusion, restricted the recovery to the normal period of limitation in the first of the two notices and confirmed the entire demand in the second - appellant before CESTAT - in identical proceedings against M/s V Trans Ltd. [the parent entity of M/s.V Express], in relation to the rendering of 'transportation of goods by road service' which, according to ST authorities, was, in reality, 'courier agency service', demand of Rs. 40.87 crores as differential tax for the period from 1.10.2006 to 31.3.2011was proposed in SCN dated 28.3.2012 and for every year thereafter in four different SCNs demanding Rs. 15.71 crores, Rs.23.02 crores, Rs.16.58 crores and Rs. 18.96 crores respectively - however, the Principal Commissioner, vide impugned order dated 19.9.2017 declined to confirm the proposals in all the five notices and upheld the claim of M/s V Trans Ltd. leading to the appeal of Revenue - the issue is limited to determining the classification of the impugned taxable service.
Held: The first of the two impugned orders is not convincing in the refutation of the claim of the assessees that carriage of goods or articles from door to door suffices to exclude the ambit of 'transportation of goods by road service' from such activity - neither does the ground of appeal against the second of the impugned orders - though there is overwhelming emphasis on 'door-to-door' in the circulars relied upon by that authority, this does not constitute the sole defining distinction between the two rival entries - doubtlessly, 'time sensitive' is of critical relevance; however, neither of the two SCNs advert to any special treatment accorded to one or more of the several consignments sought to be covered within the taxability as 'courier agency service'; indeed, it would appear that, in the absence of any evidence other than the statements relied upon in the two SCNs, the determination in the first adjudication order is founded upon assumptions and presumptions - both the impugned orders are in consensus that there is no person in evidence other than the obvious 'driver' of the goods carriage and, while the latter does not consider that to suffice for conformity with the definition, the former deems that to be sufficient - there is an inherent flaw in this logic: the rendering of 'transportation of goods by road service' cannot be bereft of the presence of the driver and would, in circumstances of door-to-door delivery, transform such activity to that of 'courier agency service' even in the ostensible absence of 'time sensitivity' - the distinction between the two taxable entries cannot be left to such vaguely founded conclusions as revealing of legislative intent - this is apparent in the contradictory viewpoints in near identical proceedings emerging from the two adjudication proceedings - in the circumstances of clarificatory confusion, uncertain conformity with the definition of 'courier agency' in its entirety and inability to discard, with certainty, the claim of being 'goods transport agency', the demand of differential tax is not maintainable - the assessee-appellant has acknowledged one of the computations of tax recovered but not deposited - the adjudicating authority, after appropriating the subsequent deposit, along with interest thereon, has concluded as due compliance - the Bench has no reason to interfere with that portion of the order - insofar as the contested amount of Rs. 2.15 lakh along with interest thereon, alleged to have been recovered from recipients of service is concerned, no evidence has been presented before the Bench of not being obliged to comply with section 73A of the Act - therefore, no grounds found to interfere with that portion of the order, too - accordingly, the appeal of Revenue is dismissed and the appeal of M/s V Express is allowed to the extent of setting aside the differential tax arising from the reclassification in the first impugned order : CESTAT [para 9, 10, 12, 13, 14]
- Appeals disposed of: MUMBAI CESTAT
CENTRAL EXCISE
2020-TIOL-521-CESTAT-DEL
Motherson Automotive Technologies And Engineering Ltd Vs CCE & CGST
CX - Case of the Department is that since VAT was adjusted against the subsidy, there is no actual payment of VAT and, therefore, the adjusted amount cannot be considered as payment of VAT and the same is not excludible from the transaction value in terms of Section 4(3)(d) of CEA, 1944 - demand issued and confirmed by the original authority, hence appeal before CESTAT.
Held: Issue involved herein is not res integra as the identical issue has been considered by Tribunal in the case of Shree Cement - 2018-TIOL-748-CESTAT-DEL where it is held that even though the VAT payment was adjusted against the subsidy received by the appellant, there is VAT payment and the same is excludible from the assessable value - following the same, impugned order is set aside and appeal is allowed: CESTAT [para 5, 6]
- Appeal allowed: DELHI CESTAT
CUSTOMS
2020-TIOL-708-HC-MUM-CUS
TBK India Pvt Ltd Vs UoI
Cus - Royalty - the petitioner challenged the order dated 10.5.2019 - 2019-TIOL-1667-CESTAT-MUM passed by CESTAT and the order dated 5.7.2012 passed by the Commissioner (Appeals) - vide impugned order, the Tribunal observed that to render a decision on the goods which are yet to be provisionally assessed would be a premature venture and dismissed the appeal as premature - petition before High Court.
Held: In the impugned order passed by the Tribunal, no reference found to the other orders passed by the Tribunal - the Division Bench of this Court in the case of Mercedes Benz India Pvt. Ltd. - 2010-TIOL-195-HC-MUM-CX has stressed upon the Tribunal the need to give deference to the decisions of its co-ordinate benches - since the Tribunal has dismissed the appeal as premature and that, prima facie , it is found that, in identical circumstances, the Tribunal has taken a different view, this Court is inclined to entertain this petition, more particularly in the law laid down by this Court in the case of Mercedes India Ltd . - however, before concluding finally on the issue, this Court finds that it will be appropriate to let the Tribunal examine the decisions rendered by the co-ordinate benches and then take an informed decision whether the appeal is premature or otherwise - accordingly, the impugned order passed by the Tribunal is quashed and set aside - the Appeal No. C/995/2012 is restored to the file of the Tribunal - the Tribunal, after considering these decisions, will take a decision regarding maintainability of the appeal - if the Tribunal holds that the appeal is maintainable, the Tribunal shall decide the appeal on its own merits - writ petition is disposed of in the above terms: HIGH COURT [para 9, 10, 12]
- Petition disposed of: BOMBAY HIGH COURT
2020-TIOL-707-HC-MAD-CUS
Kedia Clothing Company Vs ACC
Cus - The assessee-company is engaged in the manufacture and export of garments - In course of business, the assessee imported certain capital goods under the EPCG scheme and availed exemption on the condition that it would meet the export obligations within the stipulated time prescribed by the licensing authority - To such effect, the assessee executed a bond binding itself to pay the duty leviable on demand, in case of failure to meet the export obligation - Even after the expiry of the stipulated period, the assessee did not produce the Export Obligation Discharge Certificate - Hence notice was issues, proposing duty demand with interest - As the assessee did not pay the duty demanded, the goods were detained and sold - Hence the present petitions contesting such actions of the Revenue.
Held - The assessee is permitted to submit the redemption certificate to the Revenue authorities within two weeks' time from date of receipt of a copy of this order - The Revenue authorities are to consider the same and pass order accordingly: HC
- Writ petitions disposed of: MADRAS HIGH COURT
2020-TIOL-678-HC-MAD-CUS
ACC Vs Jai Matha Enterprises
Cus - Import of luxury motor vehicles into India by misusing the provisions of Exim Policy and mis-declaring the Chassis number, year of manufacture and assessable value of the vehicle - Vide impugned judgment dated 27.4.2018, the Additional Chief Metropolitan Magistrate (E.O.I), Egmore, Chennai acquitted the first respondent from the charges - appeal by Revenue.
Held: On a careful perusal of evidence of P.W.7 [Ms.Sushmita Sen], it is seen that she clearly admitted that she purchased the car from the first respondent - from day one, the 2nd respondent absconded and subsequent investigation would reveal that one Shriniwasa Bala Shetty Nama went to Dubai for working, thereafter, he obtained bogus passport in the name of Vasu Pandri Thamala and the car was also imported in the name of Vasu Pandri Thamala, which shows that it is not a genuine export - from the evidence of P.W.7 and the letters received from the principal of M/s. Toyota Corporation, it is clearly mentioned that the date of manufacturing year of engine is 20.12.2003 - therefore, the first respondent knowing fully well that the vehicle was new one, in order to evade the Customs duty, he sold the vehicle to P.W.7 - therefore, he has violated the Exim Policy of the Customs - on reading of the prosecution witnesses and also both the oral and documentary evidence produced by the prosecution would reveal that the offence has been an organized and planned one - the nature of the offence is to import the foreign vehicles into India and to sell the vehicles at lower price - they produce false documents to bring the said vehicles to India - on the basis of such papers they gained monetary benefits - all the records would reveal that the 2nd respondent prepared the bogus passport and imported the car viz., Toyota Land Cruiser bearing registration No.MH-01-PA-0047, to India - during the execution of N.B.W against the 2nd respondent, it would reveal that the vehicle has been brought to India on the basis of bogus passport - the Government was also put to loss of revenue because of the said transaction of the vehicle - therefore, now it is clear that the name of the 2nd respondent itself is totally different one based on the submission given by Ms. Sushmita Sen - therefore, in view of the subsequent developments, the judgment of the Magistrate is liable to be set aside - accordingly, it is set aside and the matter is remitted back to the Magistrate, who shall conduct trial afresh and dispose of E.O.C.C.No.118 of 2011 on merits in accordance with law - the 2nd respondent was identified and he was arrested as per the directions of the Supreme Court and he has also obtained bail - therefore, the Magistrate is directed to conduct a fresh trial in both E.O.C.C.Nos.118 of 2011 & 250 of 2013, jointly and dispose of the same on merits in accordance with law - in view above facts and circumstances, the criminal appeal is allowed: HIGH COURT [para 12, 14, 15, 16, 17]
- Matter remanded: CHENNAI CESTAT
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