2020-TIOL-NEWS-152, Dated: Saturday, June 27, 2020

2020-TIOL-922-CESTAT-DEL

Moti Talkies Vs CST

ST - Agreements entered into between the distributors and assessee, who is an exhibitor for screening pictures, have been considered to be agreements for "renting of immovable property" as defined under section 65 (90a) of FA, 1994 by the Department and accordingly, SCNs have been issued to assessee demanding service tax - It is more than apparent from bare perusal of agreements that they have been entered into between the assessee as an exhibitor and the distributors for screening of the films on the terms and conditions mentioned therein - The payments contemplated under the terms and conditions either require the exhibitor to pay a fixed amount or a certain percentage, subject to minimum exhibitor share or theatre share of effective shows in a week - It is in the context of aforesaid agreements that it has to be examined whether the assessee is providing service of "renting of immovable property" to the film distributors by way of renting its theatre for screening of films owned by the distributors - Thus, for the assessee to be providing any taxable service to the distributor prior to 1 July 2012, it is necessary that the service provided should be by renting of immovable property or any other service in relation to such renting for use in course of or for furtherance of, business or commerce - It is not possible to accept the reasonings given by Commissioner (A) for confirming the demand of service tax under "renting of immovable property" for the simple reason that the assessee has not provided any service to the distributors nor the distributors have made any payment to the assessee as consideration for the alleged service - In fact, the assessee who has paid money to the distributors for the screening rights conferred upon the assessee - The Commissioner (A) completely misread the agreements to arrive at a conclusion that the assessee was providing the service of "renting of immovable property" - The position in law does not change w.e.f. 1 July, 2012 because even under section 66B of Finance Act, service tax is levied on the value of all services, other than those services specified in the negative list, provided or agreed to be provided in the taxable territory by one person to another - Though, "renting of immovable property" is a declared service under section 66E of Finance Act, then too under section 67(1) of Finance Act, the value shall, in a case where the provision of service is for a consideration in money, be the gross amount charged by the service provider for such service provided or to be provided by him - Thus, for all the reasons, the impugned order cannot be sustained: CESTAT

- Appeal allowed: DELHI CESTAT

2020-TIOL-921-CESTAT-KOL

BSNL Vs CCE

ST - The assessee is engaged in providing telephone services - The input services of assessee comprises both taxable and non-taxable services and they are availing cenvat credit on input/input services/capital goods as per CCR, 2004 - They utilized the cenvat credit in the months of March, 2005 and March, 2006 over the permissible limit in terms of Rule 6 (3)(c) of CCR, 2004 - A SCN was issued to assessee proposing to demand cenvat credit wrongfully availed and utilized along with interest and penalty - It is un-disputed that the assessee has reversed wrongfully availed cenvat credit along with interest and in the present case, they are only contesting equal penalty imposed under Section 78 of FA, 1994 - Further, assessee is a Government of India Undertaking and no malafide intention can be presumed against the assessee - Further, there is nothing in impugned order regarding suppression of material facts with intent to evade tax - It has been consistently held that in cases of statutory Government Body, there could not be presumed any malafide intention to evade payment of tax - Hence, imposition of penalty is not sustainable - Consequently, the appeal is allowed in so far it relates to imposition of penalty: CESTAT

- Appeal allowed: KOLAKTA CESTAT

CX - Only ground taken by the appellant, is that they have not been provided with the documents, which were not relied upon - It is their plea that the impugned order should be set aside since there has been a violation of principles of natural justice.

Held: On perusal of appeal records, Bench finds that the appellants were intimated time and again to collect un-relied upon documents, but the appellants instead of collecting the documents kept on insisting that the Department should deliver the documents at their premises and at the cost of the Department - No violation of principles of natural justice as claimed by the appellant - On merits, the appellants have not denied the allegation made against them and have admitted the offence and have paid the entire amount of demand along with interest and all the penalties imposed on the Firm and also on the individual persons - No justification for interfering with the impugned order - appeal dismissed: CESTAT [para 3 to 5]

CX - The issue in dispute is regarding the rejection of rebate claim in respect of duty paid on the exported goods - However, the period from the date of filing of the appeal before the Tribunal and upto the date of receipt of Tribunal's Order ought to be excluded under Section 14 of Limitation Act, 1963 as has been held by Supreme Court in case of M. P. Steel Corporation 2015-TIOL-89-SC-CUS - The assessee is required to file a Revision Application before the Government of India which is the appropriate forum in respect of the issue/dispute in appeal - This appeal is dismissed with an option to file Revision Application before the appropriate forum: CESTAT

Cus - The issue involved is that the export consignment which was cleared by assessee through the impugned Shipping Bill which pertained to HB wires contained logs of Red Sanders, which is banned for export in terms of export and import policy - The assessee has not obtained the job of clearance of export consignment directly through exporter M/s. Panel Pin Manufacturing, but through series of intermediary which included manipulation of Red Sander smuggling - Though the necessary verification about such KYC was conducted by assessee, however, no physical interaction with the exporter was made - This in itself will not be a major infraction of Provisions of CBLR which does not envisage the physical verification of exporters and antecedent including the verification of factory premises of exporter and the goods contained in the container - More so, when exported goods were container stuffed in presence of Central Excise Officer seals the Excise seals of Shippers found intact at the time of attempted export - But nonetheless, the assessee was required to be more vigilant since their business was obtained through many middle person without any acquaintance with them - This in itself will not render revocation of CB licence when the other punishment are invoked under CHE Licensing Resolution - Revocation of license of CHA is disproportionate of offence committed by them under the various provisions of CBLR, 2013 as amended - So is the case of forfeiture of Security Deposit - Assessee deserves to be cautioned and vigilant in future for taking appropriate precaution while entering into the business through intermediaries - Accordingly, the impugned order is set aside: CESTAT