| SERVICE TAX
2020-TIOL-1281-HC-KERALA-ST
Silpa Projects And Infrastructure India Pvt Ltd Vs PR CCT & CE
ST - SVLDRS, 2019 - It is admitted by the petitioner that, within the period mentioned in the statute for submission of half yearly returns, the returns were not filed by the petitioner - However, they seek to file the returns belatedly in manual form so as to get the benefits applicable to persons who had filed returns, under the 'Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019' - It is the case of the petitioner that when he approached the respondent with the belated returns in manual form, the respondents refused to accept the same and it is, therefore, that they have approached Court through the present writ petition.
Held: There is force in the contention of the counsel for the respondents that Sub Rule (3) of Rule 7 only qualifies Sub Rule (1) of Rule 7 - while Sub Rule (1) of Rule 7 specifies the form that has to be used while filing the half yearly returns, Sub Rule(3) clarifies the manner in which the half yearly returns have to be filed by an assessee after 01.10.2011 - When so read harmoniously, it would follow that the half yearly return that has to be submitted in the particular form mentioned in Sub Rule (1) had necessarily to be submitted electronically with effect from 01.10.2011 - In the instant case, the petitioner not having filed the returns in electronic form within the period specified in the statute, cannot now be heard to contend that he can file the return in manual form for the purposes of obtaining the benefit applicable to the said category of persons, under the SVLDRS, 2019 - Prayers sought for in the writ petition cannot be granted, therefore, petition is dismissed: High Court [para 4]
- Petition dismissed: KERALA HIGH COURT
2020-TIOL-1277-HC-MAD-ST
Navin Housing And Properties Pvt Ltd Vs CST
ST - SVLDRS, 2019 - Dispute resolution scheme is an attempt to close legacy tax disputes and a certain amount of fairness should be seen in the interpretation of the provisions of the Scheme - since the two SCNs relate to identical transactions, time periods and demands, they constitute a duplication of proceedings and, therefore, the argument of the Revenue counsel that a dispute raised under one SCN cannot be settled by utilising a deposit made under a different SCN is untenable - Writ petition is allowed: High Court [para 15]
- Petition allowed: MADRAS HIGH COURT
2020-TIOL-1123-CESTAT-MUM
Sabre Travels Network India Pvt Ltd Vs CCGST
ST - Disputed amount in the Revenue appeals is below that prescribed in Circular no. F. No. 390/Misc/116/2017 dated 11th July 2018 of Central Board of Excise & Customs, therefore, the same are dismissed under the litigation policy along with respective stay application – rest of the appeals of Revenue as well as those filed by assessee are to be listed together at an early date: CESTAT [para 3, 6]
- Applications disposed of: MUMBAI CESTAT
2020-TIOL-1122-CESTAT-KOL
Prathyusha Associate Shipping Pvt Ltd Vs CCE & C
ST - The assessee is engaged in Iron ore mining activity in Joda Mines, Orissa - A SCN was issued to assessee demanding Service Tax along with interest and for imposition of penalty under section 76, 77 and 78 of FA, 1994 - The assesse has already paid the entire Service Tax along with interest much before the issuance of SCN and hence there is no cause of action to issue the SCN by the department - The 'mining services' was introduced in June 2007 and there was lot of confusion on the actual taxability of said services - However, once it was ascertained by department that tax is payable, the assessee did not dispute its liability and made immediate attempt to pay the same with interest - The issue at hand is no more res integra and is covered by the decision of Tribunal in case of Ruhit Shukla & Associated 2007-TIOL-610-CESTAT-KOL - The impugned orders are set aside to the extent of confirmation of penalty on assessee: CESTAT
- Appeal partly allowed: KOLKATA CESTAT
2020-TIOL-1121-CESTAT-KOL
CST Vs Ismart BPO Services Pvt Ltd
ST - The assessee provided certain services classifiable under category of BAS - The Department noticed that while making payment of service tax, assessee did not include the full consideration received by them - Accordingly, SCN was issued - The demand for differential duty stand confirmed by the Adjudicating Authority - He has imposed penalty under Sections 77 and 78 - The only ground agitated by Revenue is that penalty should be imposed under Section 76 also - Both the Section 76 and Section 78 deal with payment of penalties under different circumstances - Whereas, Section 76 provides for payment of penalty for failure to pay service tax - Section 78 provides for payment of penalty where such non-payment of service tax is for reasons of fraud - The Adjudicating Authority, has upheld the demand on the basis of SCN alleging suppression of facts - Consequently, penalty under Section 78 has been rightly imposed - There is no justification for imposition of penalty under Section 76, in addition to Section 78 - In view of such discussions, no justification found for the grounds of appeal by Revenue - Accordingly, the appeal of Revenue is dismissed: CESTAT
- Appeal dismissed: KOLKATA CESTAT
CENTRAL EXCISE 2020-TIOL-1120-CESTAT-DEL
Sacos Indigo Pvt Ltd Vs CCGST & CE
CX - Amount of penalty of Rs. 2,55,920/- imposed u/r 26 of CER, if read with the show cause notice reveals that the same has actually been confirmed against M/s Neo Corp International Ltd. which is a noticee No. 2 to the show cause notice and who is not before the Commissioner (Appeals) and, therefore, this amount cannot be included in the amount of penalties imposed against the appellant themselves for determination of mandatory pre-deposit amount - a penalty of Rs. 2,55,920/- has been imposed under Rule 25 of CER, 2002 and a penalty of Rs. 5,000/- has also been imposed under Rule 27 of Central Excise Rules, 2002 and thus for the purpose of calculation of the pre-deposit amount, the penalties i.e. of Rs. 2,55,920/- + Rs. 5,000/- need to be considered and an amount equivalent to 7.5% of these penalties (of Rs.19,569/-) need to be deposited before filing an appeal before Commissioner (Appeals) - Taking the amount of Rs. 19,569/- which have admittedly already been deposited by the appellant as the proper compliance of the requirement of the pre-deposit, impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to consider the appeal on merits: CESTAT [para 5]
- Matter remanded: DELHI CESTAT
2020-TIOL-1119-CESTAT-KOL
TATA Motors Ltd Vs CCE & ST
CX - The demand was confirmed on the ground of wrong availment of CENVAT Credit on inputs - As per Cost Audit Report, there are shortages of certain inputs on which Credit had been availed - It is the case of assessee that the shortages are merely theoretical shortages influenced by several internal factors - As evident from the records that these are also theoretical errors, the said shortages/excess have also been booked to the consumption account by application of relevant accounting practices and standards- The theoretical shortages arose due to reasons such as errors in conversion factors of inputs, discrepancies in BOM and usage of alternate parts - The demand was for four years and the total credit availed by assessee was more than Rs.2000/- crores - During this period, assessee was engaged in the manufacture of motor vehicles and in vehicle, approximately 50,000 inputs were used - The contention is that if the total shortage is taken into consideration, the same will come to 0.224% - It is also contended that some of the inputs were issued for the manufacture of final products and on the assembly line or at the shop floor, some were found defective or became defective during manufacturing process, and these are not taken into consideration - These parts/inputs were again issued from the Stores - In view of this, the demand is not sustainable and there is no evidence on record that the inputs on which the Credit was taken, were not received in the factory or removed as such from the factory - Hence, the demand is not sustainable - The shortage is negligible - The impugned order is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2020-TIOL-1118-CESTAT-ALL
Merino Industries Ltd Vs CCE
CX - The assessee availed Cenvat credit of service tax paid on tour packages provided to their dealers - It appeared to revenue that tour packages provided to dealers had nothing to do with the sales promotion and therefore, Cenvat credit of service tax paid on tour packages to dealers was not admissible as Cenvat credit to the assessee - The Gujarat High Court in the case of Gujarat State Fertilizers & Chemicals Ltd. 2016-TIOL-270-HC-AHM-ST had examined the particular agreement and it was clear that as per the said agreement the agents were appointed as stockiest - The tour packages were arranged for dealers - The Tribunal in the case of M/s Simbhaoli Sugar Ltd. have held that if commission is paid to sales commission agent for effecting sale of goods manufactured by assessee then service tax paid on such commission would be available as input service credit to the manufacturer - It was possible for the assessee to pay in cash expenses for tour - Instead they have provided them tour packages - Therefore, the said tour packages can be considered as dealer's commission - Therefore, Cenvat credit of service tax paid on tour packages are admissible as Cenvat credit: CESTAT
- Appeal allowed: ALLAHABAD CESTAT
CUSTOMS
2020-TIOL-1283-HC-DEL-CUS
Alex International Trading Vs CC
Cus - The present petition was filed seeking that directions be issued to the Revenue authorities to provisionally or finally assess consignment of Dry Dates imported by the petitioner - An order or direction towards the provisional release of the goods was also sought, where the goods were seized without the petitioner's knowledge - The petitioner also claimed that it would suffice for the present petition if the respondents be directed to conduct provisional assessment of the subject goods.
Held - In keeping with the limited plea of the petitioner, the Revenue authority concerned is directed to conduct provisional assessment of the subject goods, i.e., dry dates, as per applicable law - Such exercise be conducted within two weeks' time: HC
- Writ petition disposed of: DELHI HIGH COURT
2020-TIOL-1117-CESTAT-DEL
BL Goyal Vs CC, CGST & CE
Cus - The importer-appellant has filed bills of entry describing the import consignment as Natural Gum/Natural Gum No. 3/Natural Gum Sifting - The import consignments were classified under CTH 1301 2000 ('Gum Arabic') and claimed exemption from payment of customs duty by availing benefit of Notification No. 96/2008 - Customs dated 13 August 2008 - if the importer-appellant had entered into purchase agreement with the foreign supplier for purchase of 'Gum Arabic', then in that case the purchase invoice would be for 'Gum Arabic' and the supplier cannot give a general description to the import consignment while finalizing purchase of specific goods - It is common sense and prudent trade practice that any purchase agreement has to be for a specific variety/category, quality of goods because such details only determine the nature and value of the import goods - It is an established trade practice that the goods negotiated need to be specifically described in the accompanying import documents such as letter of credit, invoice, Bill of lading and packing list - The Natural Gums have several varieties, such as Asafoetida, Benjamin ras, Karaya gum as well as Gum Arabic - It is a common knowledge that market price of all these Natural Gum(s) differ widely and, therefore, the import consignments have to be invoiced as per their actual nomenclature and not by a general name like "Natural Gum" - By giving a general description to the import consignments, the importer had not made a true description of the import consignments and, therefore, the appellant is not justified in claiming that consignment pertained to 'Gum Arabic' and is classifiable under CTH 1301 2000 - The Appellant has also not adduced any evidence to claim that consignment is Gum Arabic - The import documents and the chemical examination report of the consignments establish that consignments were 'other Natural Gum' - As the Notification No. 96/2008 - Customs exempts only Gum Arabic, classifiable under CTH 1301 2000 from the levy of the customs duty and it is established that the consignments are not Gum Arabic but other Natural Gum, it has to be held that the imported consignment were classifiable under Chapter sub-heading 1301 9019 and are not entitled for exemption notification - no infirmity in the order of the Commissioner (Appeals) confirming the demand amount - impugned order upheld and appeal dismissed: CESTAT [para 16, 21, 27]
Cus - None of the requirements provided u/s 112(b) have been established against the clearing agent - Since the importer appellant himself has sought benefit of the exemption notification by classifying the goods under chapter sub-heading CTH 1301 2000, which was allowed by provisionally assessing the Bills of entry subject to chemical test by the Department itself, the Department is not justified in alleging any malafide on the part of the CHA firm and its Director - Thus, there is no ground to levy any penalty on the appellant CHA firm - M/s Bharti Freight Forwarders Pvt. Ltd. and its Director - Anil Kumar Tiwari - Penalty which has been imposed is, accordingly, set aside: CESTAT [para 25]
- Appeals disposed of: DELHI CESTAT |
