UFV India Global Education Vs UoI

GST - Petitioner prays for the issuance of a writ in the nature of certiorari for quashing the order dated 29.07.2020, provisionally attaching the bank account.

Held: Account of the petitioner maintained with the HDFC Bank was attached by the impugned order dated 29.07.2020 while exercising powers under Section 83 of the Act on the ground that the proceedings have been launched under Section 67 of the Act - It is also an admitted fact that the proceedings under Section 67 have already been over and no proceedings under any other provisions much less under Section 63 or 74 have been initiated so far - The bare reading of Section 83 of the Act would show that the Commissioner has to form an opinion that for the purpose of protecting the interest of the Government revenue, it is necessary to provisionally attach either the property or the bank account belonging to the taxable person by passing an order in writing but this exercise can be made by the Commissioner when any proceedings under Sections 62 or 63 or 64 or 67 or 73 or 74 is pending - The Legislature has cautiously used the word "or" for each and every Section of the Act for the purpose of giving powers to the Commissioner to initiate proceedings to provisionally attach the property or the bank account of the taxable person but it is not provided anywhere that the property or the bank account can remain attached under the order passed under Section 83 of the Act if the proceedings initiated under Section 67 is culminated into the proceedings under Section 63 or Section 74 - In our considered opinion, the effect of Section 83 of the Act shall come to an end as soon as the proceedings pending in any of the aforesaid Sections i.e. 63 or 64 or 67 or 73 or 74 are over because pendency of the proceedings is the sine qua non and in case the Commissioner still feels or is of the opinion that it is necessary so to do in the interest of protecting the Government revenue, it still can pass an order in writing to attach any property or even the bank account of the taxable person if the proceedings are initiated in any of the aforesaid provisions and are pending but for the provisions in which the proceedings have earlier been initiated and are over - impugned orders passed by the respondents are patently illegal specially when the proceedings initiated under Section 67 of the Act has already been over - impugned orders Annexures P-1 to P-3 are hereby set aside with a direction to the respondents to release the aforesaid bank account of the petitioners forthwith which has been provisionally attached vide order dated 29.07.2020: High Court

- Petiton allowed : PUNJAB AND HARYANA HIGH COURT

2020-TIOL-251-AAR-GST

GST - Nimba Nature Cure Village is a unit of M/s. Oswal Industries ltd - The applicant has stated that this is one of the largest Naturopathy Centers in India and offers physical, psychological and spiritual health overhaul with the help of power of nature; that Nimba nature cure borrows name from a 'Nimba' well-known tree which brings perfect, complete and imperishable health to everyone, which is why it is also known as 'Arista' and every part of a nimba tree gives amazing health benefits - applicant has further stated that they provide different types of wellness facilities at Nimba such as Naturopathy, Ayurveda, Yoga and meditation, Physiotherapy and Special therapy - It is their contention that the classification of services provided by them is Heading 9993 (human health and social care services) and exempted in view of Sr. no. 74 of 12/2017-CTR - Ruling sought.

Held : The packages offered by the applicant, as evident from their website www.nimba.in, indicates that the therapy offered by them is strictly on a residence basis and the same is evident from the fact that the consideration is solely dependent on the type of room opted by the customer - This fact creates an impression that stay is mandatory and the charges of stay depend on the above factors - Thus, the AAR observes that the element of accommodation becomes the primary activity in the entire package - The fact that the package is strictly a residence package is fortified by the schedule of the programme which is shown in the sub-menu 'Dincharya' of the website - In all the packages, 3 types of rooms viz. amukha, sumukha and pramukha are offered either on a single occupancy basis or double occupancy basis - The rates of the room per night have been specified, which forms the major part of the consideration towards the selected package - In the above circumstances, the issue of composite supply, as defined as per Section 2(30) of the CGST Act, 2017 comes in play - Entire package consists of the above 3 components of Accommodation, Food & Therapy and the packages would not be possible without any one of the 3 components - In other words, the packages offered by the applicant are naturally bundled and would be aptly covered under the definition of Composite Supply - Further, the principal supply would be the accommodation services since the therapy can in no way be administered without accommodation - In fact, there is no option available for the customer to avail the wellness package without opting for the accommodation - Thus, the accommodation service attains the nature of the principal supply and the other two components attain the nature of ancillary services - in view of Section 8(a) of the Act, it can be seen that a composite supply comprising of two or more supplies, one of which is a principal supply, shall be treated as a supply of such principal supply - Therefore, in the instant case, the composite supply of services would be treated as a supply of accommodation service falling under Heading 9963 and specific heading 996311 (Room or unit accommodation services provided by Hotels, Inn, Guest House, Club and the like) as per Notification No. 11/2017-Central Tax (Rate) and tax would be charged accordingly - The exemption at Entry No.74 of Exemption Notification No. 12/2017-Central Tax (Rate) is applicable to services falling under the Heading 9993 - However, since the nature of services provided by the applicant is covered under the Sub-Heading 9963 11, the exemption available at Entry No.74 of Exemption Notification No. 12/2017-Central Tax (Rate) is not applicable to the applicant: AAR

- Application disposed of :ADVANCE RULING

2020-TIOL-250-AAR-GST

GST - Products 'Rhyzomyx' and 'Rhyzomyco' manufactured and supplied by applicant M/s. Novozymes South Asia pvt. ltd., are classifiable under Tariff item No.30029030 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and covered under Entry Sr.No.61 of Schedule-II of Notification No. 1/2017-Central Tax (Rate) dated 28.06.2017 on which rate of GST chargeable is 12% (6% SGST +6% CGST) - Online information guide viz. Vikaspedia launched by the Government of India relied upon : AAR

2020-TIOL-249-AAR-GST

GST - Applicant had sought a ruling as to whether GST is payable under Reverse Charge Mechanism (RCM) on the salary paid to Directors of the company who is paid salary as per employment contract - applicant submitted a letter dated 29.06.2020 addressed to this authority requesting to withdraw their application - accordingly, their request to withdraw the application is considered: AAR

2020-TIOL-248-AAR-GST

GST - 'Maize Bran' manufactured and supplied by applicant M/s. Gujarat Ambuja Exports Ltd. is covered under Entry Sr.No.103A of Notification No. 1/2017-Central Tax (Rate) dated 28.06.2017 on which rate of GST chargeable is 5% (2.5% SGST + 2.5% CGST): AAR

2020-TIOL-247-AAR-GST

GST - Educational assessment examination (ASSET) with its variants provided by the applicant to school/educational organization is exempted from payment of GST under Sr. No. 66(b)(iv) of the Not. No. 12/2017-CT (rate) dated 28.06.2017 and entry No. 69(b)(iv) of Not. No. 9/2017-Integrated Tax (Rate) dated 28.06.2017 as well as equivalent SGST Notification: AAR

2020-TIOL-246-AAR-GST

GST - In case the applicant receives the chasis from the principal on Job work challan/ delivery challan and builds body on it and thereafter clears to the principal by raising the Invoice of Job work charges, it would amount to supply of service classifiable under SAC 9988 - In cases where the applicant owned the chasis and built the body and thereafter supplies the same as complete body built motor vehicle to the customer by raising invoice of value of motor vehicle, it would amount to supply of goods classifiable under CTH 87 - in case of supply of service, rate of GST will be 18% and in case supply of goods i.e. motor vehicle GST rate will be 28%: AAR

GST - Classification and applicable rate of tax for the activity of accident repairing job on the vehicle supplied by the owner for such job, if a lump sum price is charged that includes cost of material and labour, would be under SAC 9987 and GST is leviable @ 18 %: AAR

- Application disposed of :ADVANCE RULING

Mangalore Force Vs ACCT

On considering the review petition, the High Court observes there to be inconsistencies and factual errors in the order passed by the Single Judge. Hence the court proceeds to rectify the same u/s 114 and Order 47 Rule 1 of the Code of Civil Procedure, 1860.

- Review petition allowed: KARNATAKA HIGH COURT

SERVICE TAX

2020-TIOL-1380-CESTAT-MUM

Rohit Equipments Vs CCE

ST - Appellant had specifically requested the jurisdictional authorities to provide the particulars with regard to the basis of computation of the service tax liability - appellant has also stated that the documents/records relating to the case matter were still lying with the investigating wing of the department, hence the proceedings cannot be sustained - Appellant had also submitted that the invoices were prepared on the basis of accrual income on which service tax liability cannot be fastened but this too has not been considered by the original authority - Bench is, therefore, of the considered view that the tax liability has been confirmed in gross violation of the principles of natural justice and for that purpose the issues involved are required to be re-examined at the original level - Impugned order is, therefore, set aside and the matter is remanded to the original authority for adjudication afresh - Adjudicating authority should provide the requisite information/documents to substantiate the basis of computation of the tax liability and upon receipt of defence reply, re-adjudication process should commence and be completed within a reasonable time frame - appeal allowed by way of remand: CESTAT [para 5 to 7]

- Matter remanded: MUMBAI CESTAT

2020-TIOL-1379-CESTAT-DEL

SITI Cable Network Ltd Vs CST

ST - Siti Cable is a Multi System Operator and is also engaged in providing services of broadcasting channels/ advertisement in local cable network - Siti Cable also entered into agreement with local cable operators - According to Siti Cable, necessary hardware and network access was provided to the cable operators to enable them to render cable operator services to home customers - The dispute is with regard to levy of service tax on Siti Cable w.e.f. June 16, 2005 under the amended definition of "franchise" - It has been defined under section 65(47) of Finance Act to mean an agreement by which the franchisee is granted a representational right to provide service or undertake any process identified with the franchisor, whether or not a trademark, service mark, trade name or logo or such symbol, as the case may be, is involved - Thus, what is important to note is that the party should be granted a representational right to provide service or undertake any process identified with the franchisor - "Representational right" means a right that is available with the "franchisee" to represent the "franchisor" and in that case the "franchisee" loses its individual identity and is known only by the identity of the "franchisor" - It is not possible to hold that the service contemplated under agreement is a "franchise" service - The confirmation of demand for the period commencing June 16, 2005 upto March 31, 2008 cannot, therefore, be sustained - It is, accordingly, set aside - The confirmation of demand for interest under section 75 and penalty under section 76 of the Finance Act is also set aside - The penalty under section 78 of the Finance Act cannot be imposed once the demand itself has been set aside: CESTAT

- Assessee's appeal allowed: DELHI CESTAT

2020-TIOL-1378-CESTAT-ALL

Narsi Apartments Pvt Ltd Vs CCGST & CE

ST - The assessee was engaged in 'Construction Activities' - Investigations were initiated and various records were resumed and statements were recorded - On the basis of examination of documents, it appeared to revenue that assessee was providing 'Construction of Residential Complex Service' for the period upto 30.06.2012 and same service after 01.07.2012 being covered by the provisions of Section 66 E of FA, 1994 - It was stated in SCN issued to assessee that they had informed through a declaration that for each independent complete villa and/or flat sold from 01.04.2010 to 30.09.2015, carpet area was less than 2,000 square feet and the amount charged for each such complete villa or flat was less than Rs.1 crore - Through the said SCN, service tax was demanded under proviso to Sub-section (1) of Section 73 of FA, 1994 - There is no evidence on record to establish that the assessee had constructed a residential complex before 30.06.2012 or they had constructed a complex with more than 2 residential units together after 01.07.2012 - Assessee did not provide residential complex service prior to 01.07.2012 and they were eligible for exemption under Notfn 25/2012-ST for activity of construction undertaken by him for the period subsequent to 01.07.2012 - Further, assessee was not liable to pay Service Tax under Reverse Charge Mechanism - The impugned order is therefore set aside: CESTAT

- Appeal allowed: ALLAHABAD CESTAT

CENTRAL EXCISE

2020-TIOL-1382-CESTAT-KOL

Manaksia Ltd Vs CCE

CX - The assessee is registered with the Central Excise Department for manufacture of various machineries falling under Chapter 84 of CETA, 1985 - For the purpose of such manufacture, they availed cenvat credit on various machineries, parts of machineries and accessories - The dispute covers the goods cleared from the factory in two different periods for export - The assessee was known by two different names during the different periods - However, the dispute concerns the export of machinery described as 'Continuous Automatic Coil to Coil galvanizing Line' under Chapter 8419 - This being complex machinery, assessee procured various components and sub-systems from different vendors - It is not in dispute that all the various components/sub-systems were received in assessee's factory and subject to various processes - The adjudicating authority has observed that the complex machinery was never put together or assembled in the assessee's factory even for testing purposes - They were cleared in completely knocked down form and were ultimately assembled at the customer's premises abroad - By taking the view that no manufacture has happened in assessee's premises, he has proceeded to disallow the cenvat credit on receipts of various components/sub-systems - The assessee has justified the cenvat credit mainly with the argument that complex machinery can only be assembled at the site of customers - It has also been submitted that any cenvat credit availed stands reversed at the time of clearance of goods on payment of duty for export - Consequently it is argued that the Revenue cannot ask for repayment of cenvat credit all over again - The adjudicating authority has denied such cenvat credit mainly citing the reason that no manufacture has happened in the assessee's factory - The dispute can be decided without giving a categorical finding on this issue - It is settled position of law that subsequent reversal of Modvat credit is to be considered as non-taking of the credit - Such view finds support in the decision of Allahabad High Court in case of Hello Minerals Water (P) Ltd. 2004-TIOL-57-HC-ALL-CX - Such credits are to be considered as non-taken abinitio - There is no justification for ordering payment of cenvat credit all over again: CESTAT

- Appeals allowed: KOLKATA CESTAT

2020-TIOL-1381-CESTAT-MUM

Svizera Labs Pvt Ltd Vs CCE

CX - During the relevant period, the appellant had carried out manufacture of goods on job work basis for Maneesh Exports, an 100% EOU - Inputs were received by the appellants under Rule 4(5)(a) of CER against Annexure-II - The job worked goods were later exported by Maneesh Exports - Pursuant to the visit of the Preventive Officer to their factory on 31.03.2007 and objection taken in the matter of credit availed on such inputs, they reversed the credit – later, on 03.04.2007, they have taken re-credit of the said amount – Notices were issued to deny this re-credit as well as seek reversal of credit initially taken – as demands were confirmed, appeals filed before CESTAT.

Held: Short issue involved is whether the appellants are entitled to credit of duty paid on inputs received under Rule 4(5)(a) of Cenvat Credit Rule, 2004 - Issue has been considered at length by the Larger Bench of this Tribunal in Sterlite Industries case - 2005-TIOL-305-CESTAT-MUM-LB in the context of old provisions which was later upheld by the Bombay High Court - No contrary decision has been placed by the Revenue - The proviso to Rule 4(5)(a) is pari materia with the provision discussed in the said judgment, hence, the ratio laid down thereunder is squarely applicable to the present case - Another argument advanced on behalf of the Revenue is that, in the present case, the goods cleared by the appellants to M/s Maneesh Pharma Pvt.Ltd. were ultimately exported and, therefore, the principle of law settled in Sterlite Industries (I) Ltd's case is not applicable - No merit in the said contention inasmuch as the ratio laid down by the Larger Bench of the Tribunal is applicable to the present case also even if the goods were ultimately exported, when one takes into consideration the provisions contained in Rule 6(6) of CENVAT Credit Rules, 2004 - Appellants are eligible to the CENVAT credit amount availed - appeals are allowed with consequential relief: CESTAT [para7]

- Appeals allowed: MUMBAI CESTAT

CUSTOMS

2020-TIOL-1539-HC-DEL-COFEPOSA

COFEPOSA - Petition has been instituted by Sushmeet Kaur who is the wife of Shri Greeshm Sharma (Detenue), and essentially prays for a writ in the nature of habeas corpus seeking quashing of the Detention order.

Held: On a conspectus of the decisions of the Supreme Court in Dimple Happy Dhakad ( 2019-TIOL-279-SC-CUS ) and Ankit Ashok Jalan ( 2019-TIOL-503-SC-COFEPOSA-LB ), it is axiomatic that, though procedural safeguards are required to be rigorously adhered to and that although the courts must lean in favour of personal liberty of the citizens and remain conscious and zealous in upholding the personal liberties of citizens but in appropriate cases the liberty of an individual has to be subordinated within reasonable bounds to the good of the people - It is observed that an order of detention is clearly and unequivocally a preventive measure devised to afford protection to the society and particularly where the preventive detention is aimed to protect the security and safety of the nation, the Courts must strike a balance between the liberty of an individual and the needs of the society - In the present case, it is observed that huge volumes of gold had been smuggled into the country, illegally and unabatedly for the last five years and that about 8350 grams of gold has been brought into India during the period from November 2018 to May 2019 by the Detenue camouflaging the same as accessories of garments and buckle rings of bags - It is further observed that the Detaining Authority was justifiably satisfied, founded on the relevant material placed before it by the Sponsoring Authority, that the Detenue demonstrably has the propensity to indulge in the same acts of smuggling, if not prevented by way of the Detention Order from so doing - It is trite to state that the order of preventive detention is a preventive measure and that predicated on the admissible voluntary statements of the Detenue, which clearly bring out the role of the Detenue in the smuggling of Gold, as well as, other materials placed before the Detaining Authority, the subjective satisfaction of the Detaining Authority, recorded in the Detention Order qua the continued propensity and inclination of the Detenue to continue to indulge into acts of smuggling in a planned manner, to the detriment of the economic security of the country, cannot be faulted and does not warrant interference of this Court in exercising its extraordinary jurisdiction - Writ petition is devoid of merit and the same is accordingly dismissed: High Court [para 13 to 15]

-Petition dismissed : DELHI HIGH COURT