| SERVICE TAX
2020-TIOL-743-CESTAT-MUM
CST Vs One Entertainment Network Pvt Ltd
ST - BAS - Case of Revenue is that, in addition to liability to be taxed on the consideration received for offering time slots, sponsorship of channel programmes and from the downstream carriers of broadcast/telecast signals which, admittedly, has been discharged, 'commission' for such handling contractually retained before remitting the dues, received as surrogate, to the overseas entity is also liable to tax as consideration for having rendered 'business auxiliary service', defined in section 65(19) of Finance Act, 1994, under section 65(105)(zzb) of Finance Act, 1994 - Revenue is in appeal against orders passed by Commissioner of Service Tax, Mumbai.
Held: Respondent is deemed provider of service and the range of activities included in the taxable service comprises the very aspects that were sought to be taxed in the proceedings initiated by the show cause notices - The deeming fiction carries with it the burden of tax on the entire consideration receivable by the overseas entity and in the hands of the Indian entity acting as agency of such overseas entity - Perceptibly, the same activity cannot be taxed twice as the classification of services itself provides, by section 66F of Finance Act, 1994, for situation in which more than one competing entry cannot be allowed to sustain -As far as the other contention that various aspects of a contractual transaction could be liable to different taxes, we are afraid that Revenue has got hold of the wrong end of the stick - In the present dispute, the charge of tax does not lie between two statutes but within the same statute which is an absurdism in tax jurisprudence - no merit in the appeals of Revenue, hence dismissed: CESTAT [para 10, 14, 15]
- Appeals dismissed: MUMBI CESTAT
CENTRAL EXCISE
2020-TIOL-742-CESTAT-DEL
Azad Coach Pvt Ltd Vs CCE
CX - The assessee is a fabricator of body on the chassis supplied by M/s Tata Motors and after the complete fabrication on chassis supplied, the same is cleared to DMRC - The issue at hand is whether the assessee is eligible for exemption from payment of Excise duty - The present application was filed by the assessee in pursuance of a decision in another case wherein exemption from Central Excise duty was granted to M/s Tata Motors under Notfn No 6/2006-CE for supply of bus chassis to Delhi Metro Railway Corporation.
Held - The High Court and Supreme Court have directed that as the matter relating to valuation for the levy of duty on such bus supplied to the appellant by Tata Motors and finally to DMRC through Tata Motors, the assessee is also entitled for similar exemption under Notification No. 6/2006 - Accordingly, the High Court read with order of Supreme Court referred to have directed this Tribunal for re-quantification of the value of duty payable in the light of exemption now available for the transaction under dispute - Hence the Final Order of this Tribunal dated 27.09.2016 stands modified and the matter is remanded to the original adjudicating authority for re-quantification of duty liability considering the exemption now available to the assessee as per exemption Notification No. 06/2006 CE: CESTAT
- Assessee's applications allowed: DELHI CESTAT
2020-TIOL-741-CESTAT-AHM
Krupa Trading Company Vs CCE & ST
CX - Issue is whether the denial of Cenvat Credit by the Adjudicating Authority for the reason that invoices of input service bear handwritten serial number is correct or otherwise.
Held: In the appellant's own earlier case, a show cause notice dated 30/05/2011 was issued on the same issue as to whether the appellant is entitled for Cenvat Credit on the invoice issued by the service provider which bears handwritten serial number - That case travelled up to Tribunal and vide order dated 07/02/2019 = 2020-TIOL-489-CESTAT-AHM the matter was decided in appellant's favour - following the same, the impugned order is set aside and the appeal is allowed: CESTAT [para 4]
- Appeal allowed: AHMEDABAD CESTAT
2020-TIOL-740-CESTAT-DEL
Arya Alloys Pvt Ltd Vs Commissioner, CGST
CX - As per the investigation conducted by the Revenue, a belief was entertained that M/s Unnati Alloys is only providing the Cenvatable invoices to M/s Arya Alloys, the appellant, without actually supplying the inputs - It was further alleged that though the payments for the said inputs was being made by M/s Arya Alloys through banking channels but subsequently M/s Arya Alloys was receiving back the said amounts in cash - proceedings lead to denial of CENVAT credit of Rs. 6,39,250/- and imposition of penalties on the appellant as well as the Directors (who are also appellants).
Held: Upon the same set of investigations, proceedings were initiated against a number of other assesses similarly situated and the Tribunal had in the appeals filed by those assessees set aside the demands by its Final Order No. 51800-51808/2018 dated 11 May, 2018 - It was observed by the Tribunal that Department's entire case is solely based on the statement of Shri Amit Gupta and other transporters for which no cross examination was provided; that as regards the payments by cheque, Tribunal observed that the Revenue's case that the said payment was received back in cash is not sustainable for the reason that no cash was seized from the appellant's premises and there is no evidence to that effect; that all the transactions related to inputs purchased was duly recorded in the books of account and inventory records - Moreover, in the present case, Authorised Representative has not been able to bring out any other evidence on record - Revenue has not alleged that the inputs required for making the final product were procured by the appellant from any other source - In the absence of inputs, it is not possible to manufacture final product, which the appellant have shown to have manufactured and cleared on payment of duty - no justifiable reasons to deny the Cenvat credit or to impose penalties upon the appellants - Impugned order is set aside and appeals are allowed with consequential relief: CESTAT [para 4 to 6]
- Appeals allowed: DELHI CESTAT
CUSTOMS
2020-TIOL-936-HC-KAR-NDPS
Kenneth Jideofor Vs UoI
NDPS - Petitioner has taken an exception to the order dated 23rd January, 2020 passed in exercise of powers under sub-section (1) of Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 inasmuch as by the said order, the petitioner was ordered to be preventively detained and which he was on 7th February 2020 - Petitioner submits that though the representation dated 15th April, 2020 was made to the Specially Empowered Officer, the same was never placed before him till 29th April, 2020 and it was placed before him on 29th April, 2020 which was hurriedly decided on the same day - further submits that the grounds of detention were not served within a reasonable time from the date on which the order of detention was passed; that there is material on record to show that when the order of detention was served upon the petitioner on 7th February, 2020, even the grounds of detention were not ready; that the last prejudicial activity alleged against the petitioner is of 17th January, 2019 and in relation to the said activity, the petitioner was enlarged on bail on 13th June, 2019; that after 13th June, 2019, the petitioner was involved in any prejudicial activity; that, therefore, considering the long delay in passing the order of detention, the live link between the alleged prejudicial activities committed by the petitioner and the necessity of passing the order of detention, has been snapped.
Held: There is absolutely no explanation forthcoming for not forwarding the representation dated 15th April 2020 to the Specially Empowered Officer who had passed the impugned order - Even the representation dated 17th April 2020 made by the petitioner to the Central Government through the Superintendent of Central Prison was not forwarded to the Central Government immediately but the same was forwarded on 20th April, 2020 and it is specifically stated that the same was decided on 30th April 2020; that the delay from 20th of April to 30th April 2020 has not been explained at all - Thus, the only conclusion which can be drawn is that there is an inordinate delay in considering the representations made by the petitioner to the Specially Empowered Officer as well as to the Central Government - In fact, there are no efforts made to explain the reasons for such inordinate delay - Hence, there is a complete violation of rights of the petitioner under Article 22 of the Constitution of India and in particular Clause (5) thereof - On account of the inordinate delay in deciding the representations made by the petitioner, the continuation of impugned order of preventive detention is vitiated and, therefore, the impugned order of detention will have to be set aside - petitioner/Mr. Kenneth Jideofor shall be set at liberty forthwith by the Bengaluru Central Prison, if he is not required in connection with any other case - Writ petition is allowed: High Court [para 18 to 21]
- Petition allowed: KARNATAKA HIGH COURT
2020-TIOL-935-HC-AHM-CUS
Geeta Fibres Pvt Ltd Vs UoI
Cus - SCN on 07.03.2000 came to be issued, wherein the petitioner, a 100% EOU, was called upon to show cause as to why the customs duty amounting to Rs.40,25,373/- should not be recovered under section 12 of the Customs Act read with proviso to subsection (1) of section 28 of the Customs Act on non duty paid raw material used in manufacturing of non permitted goods in Bonded premises and for recovery of payment of penalty under section 11AC of the Central Excise Act and other such matters - Petitioner submits that they had replied to the SCN on 24.02.2001; that the first date given for hearing of the show cause notice was on 15.12.2017 - It is the grievance on the part of the petitioner that for the entire period of 17 years, the show cause notice issued in the year 2000 was not heard and surprisingly the date of hearing was given after 17 years - It is also urged that the petitioner was not informed the reason for not deciding the case for a long time, nor the reason for reviving the case of adjudication, and thus there is no justification or reason brought on record by the respondents for transferring the case to call book and for retrieving the case from call book, and thus there is no justification or reason on record showing why the case remained unattended for about 19 long years.
Held: Bench notices that there are no grounds put forth by the department which can attribute any of the reasons to the petitioners for delay, which has been caused in adjudicating the matter - The provisions of law have been made apparently clear and the ratio is emphatically focused on adhering to the time limit while adjudicating the show cause notice - In absence of following statutory details, this Court relies on the findings and observations in the case of Siddhi Vinayak Syntex Pvt. Ltd. - 2017-TIOL-911-HC-AHM-CX wherein it is held that revival of proceedings after a long gap of ten to fifteen years without disclosing any reason for the delay, would be unlawful and arbitrary and would vitiate the entire proceedings - following the said ratio, the petitions are allowed: High Court [para 10 to 12]
- Petitions allowed: GUJARAT HIGH COURT
2020-TIOL-739-CESTAT-MAD
PP Products Pvt Ltd Vs CC
Cus - Refund of SAD - In response to the Show Cause Notice of alleged excess refund, the appellant repaid a sum of Rs. 90,030/- which has not been considered by the original as well as the first appellate authority - challan, although submitted, of repayment of excess refund as well as interest not considered though filed along with written submissions - ends of justice would be met if an opportunity is given to the assessee to explain along with the above documents/challan, to the satisfaction of the adjudicating authority - impugned order is set aside and the matter is remanded to the file of the adjudicating authority: CESTAT [para 6, 7]
- Matter remanded: CHENNAI CESTAT |
