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SERVICE TAX
2020-TIOL-1436-CESTAT-DEL
Indian Beverage Association Vs CST
ST - Appellant association is engaged in the business of providing services to its members under the head of 'Club Membership and Associations' and is registered - During the audit of the financial statements by the Department for the period 2010-2011 to 2011-2012, it was noticed that the appellant had received an amount of Rs.85,79,282/- towards entry fee, annual membership fee and contribution from members - SCNs dated 18 April 2013 and 16 May 2014 were issued demanding Service Tax amounting to Rs. 12,80,731/- from the appellant – In adjudication, service tax of Rs.10,96,052/- on the amount received by the appellant was held to be in the nature of covering up the deficit in the appellant's finances for a particular event, which was neither relatable to any service nor any service seems to have been provided against this amount and hence dropped – Commissioner(A) allowed Revenue appeal against the order of original authority – Assessee is, therefore, in appeal.
Held: Matter is no longer res integra as section 65(105)(zzze) of the Finance Act, 1994, has already been held ultra vires by the Gujarat High Court in the case of Sports Club of Gujarat Ltd. - 2013-TIOL-528-HC-AHM-ST – Bench also takes note of the judgement of Apex Court in case of State of West Bengal vs. Calcutta Club Ltd. - 2019-TIOL-449-SC-ST-LB and Ranchi Club Ltd. 2019-TIOL-449 SC-ST-LB – in view thereof, impugned Order-in-Appeal cannot be sustained and, therefore, is set aside – appeal is allowed: CESTAT [para 6 to 8]
- Appeal allowed: DELHI CESTAT
CENTRAL EXCISE
2020-TIOL-1439-CESTAT-DEL
Hindustan Zinc Ltd Vs Commissioner, Central Goods And Service Tax, Excise Customs
CX - Rule 2(l) of CCR, 2004 - Factory is located at a remote place and residential colony is in an industrial township where there is no municipality or municipal corporation available to provide the municipal services, therefore, it is the onus of the industry concerned to maintain the civil/municipal services - Appellant requires the residential colony for availability of the workers for manufacture of dutiable goods and, as such, services of which are crucial for maintaining the colony such as repairs and maintenance of Guest House located in residential colony, construction of residential quarters, Swimming Pool, Badminton court, land scaping, annual maintenance of civil work in colony, security services are to be considered as Input services in view of Tribunal decision in the case of Ultratech Cement Ltd. - appeal is allowed: CESTAT [para 8]
- Appeal allowed: DELHI CESTAT
2020-TIOL-1438-CESTAT-MUM
Shri Dnyaneshwar Ssk Ltd Vs CCE & ST
CX - The issue involved is, whether amount paid as pre-deposit under Section 35F ibid pursuant to the stay order passed by Tribunal, should be considered as "deposit of duty/service tax" for the purpose of availment of Cenvat credit - Rule 3 ibid is enabling provision, which entitles a manufacturer or a service provider to take Cenvat credit of various duties and service tax mentioned therein - The said rule nowhere prescribes that amount deposited under Section 35F ibid should be considered as either duty or service tax for the purpose of taking Cenvat benefit - Since, payment made under 35F is not specifically finding any place in Rule 3 ibid, taking of such amount as Cenvat credit is contrary to such statutory provision and hence, denial of Cenvat benefit by authorities below is in conformity with the statutory provisions - In view of the fact that Rule 3 of rules does not consider the amount of pre-deposit as service tax for availment of Cenvat credit by manufacturer/service provider, taking of such credit by assessee is not proper and justified - Thus, the service tax demand confirmed by original authority and upheld in impugned order cannot be faulted with - The ingredients mentioned in Section 11AC ibid are absent and as such, the provisions of Section 11AC ibid cannot be invoked inasmuch as taking of Cenvat credit of the pre-deposit amount in question by assessee was not owing to the reason of fraud, collusion, willful misstatement - Assessee had bona fidely believed that the amount paid by service provider should be entitled as credit to the assessee - Availment of credit based on valid and proper document cannot invite for the penal consequences by reason of fraud, collusion with intent to evade Government revenue - Thus, imposition of penalty under Section 11AC ibid by the department cannot stand for judicial scrutiny: CESTAT
- Appeal partly allowed: MUMBAI CESTAT
CUSTOMS
2020-TIOL-1440-CESTAT-DEL
Aureole Atelier Pvt Ltd Vs CC
Cus - Valuation of sunglasses of "PEPE JEANS" brand - sunglasses are sold on various E-Retail platforms like Flipkart, Snapdeal, Amazon, etc., as "PEPE JEANs" brand sunglasses - Section 14 of the Customs Act provides that for the purpose of valuation the value of imported goods shall be the transaction value of such goods, i.e. to say, the price actually paid or payable for the goods when sold for export to India for delivery at the time of place of importation, or as the case may be for export from India, where the buyer and seller of the goods are not related and price is the sole consideration for the sale, subject to such other conditions as may be specified in the rules made in this behalf - It is further provided that rules made in this behalf may provide for the manner and acceptance or rejection of value declared by the importer or exporter, where the proper officer has reason to doubt the truth or accuracy of such value and determine value for the purposes of this Section - There are no reasons recorded for rejection of transaction value before taking the exercise of revaluation and enhancement of transaction value - In this view of the matter, the impugned order is bad in law and also on facts - Accordingly, the impugned order is set aside - appellant shall be entitled to consequential benefits including refund of differential duty deposited alongwith interest under Section 129EE of the Customs Act - appeal is allowed: CESTAT [para 11, 12]
- Appeal allowed: DELHI CESTAT
2020-TIOL-1437-CESTAT-DEL
Baerocher India Additives Pvt Ltd Vs CC
Cus - Import of Stearic Acid - Customs denied extending the benefit of nil rate under Notification No.50/2017-Customs dated 30.06.2017 on the ground that the concessional rate is applicable only to sub-heading No. 3823 1190 as mentioned but since Stearic Acid now falls under heading No. 3823 1100 which is not mentioned in the notification, 30% BCD as tariff rate is applicable - appellant lodged a protest that there is no such heading No. 3823 1190 available in the Customs Tariff itself with effect from 30.06.2017 but the assessing officer did not agree and allowed import only after payment of 30% BCD on Stearic Acid - Appellant took up the issue with CBEC and on realizing that some inadvertent clerical mistakes had crept into the drafting of Notification No. 50/2017-Customs dt. 30.06.2017, an amending Notification No. 76/2017-Customs dated 15.09.2017 was issued and the earlier sub-heading 3823 1190 was substituted with the chapter heading No. 3823 1100 – appellant, thereafter, filed a refund claim of the duty paid along with penalty but the same was rejected by the adjudicating authority – however, the Commissioner(A) allowed the refund of the duty paid of Rs. 1,12,19,190/- but the refund of Rs. 5,87,047/- paid towards penalty for late filing of bill of entry was rejected – Importer is aggrieved and is in appeal before CESTAT.
Held: Filing of bill of entry has been regulated under Bill of Entry (Forms) Regulations, 1976 - From a plain reading of the regulation 4, it is clear that though the importer is required to present the bill of entry before the end of the next day following the day (excluding holidays) on which the Aircraft or Vessel or Vehicle carrying the goods arrives at a Customs station at which such goods are to be cleared for home consumption or warehousing - However, as per sub-regulation 4(2), it is provided that the penalty for late presentation of bill of entry shall be liable to be paid, if there was no sufficient cause for delay in filing the bill of entry - In the present case, entire event from time of import till the filing of bill of entry is known to the Custom Department that the appellant intended to claim the exemption notification but due to apparent error in the notification, the appellant was not in a position to file the bill of entry on EDI System - Since, the appellant had strong belief that they are entitled for exemption Notification, they followed up the matter with the Customs - Once it is admitted that the goods are exempted, no business person would pay the custom duty and clear the goods and this is the reason the appellant were reluctant to file the bill of entry - However, since the Customs Official did not clear the goods under exemption, the appellant had no option but to file bill of entry without claiming the exemption notification - This entire episode is a sufficient cause for delay in filing the bill of entry, therefore, invoking the sub-regulation-(2) of regulation 4, no charges for late presentation of bill of entry should have been demanded from the appellant - Accordingly, the charges paid for late filing of bill of entry is refundable to the appellant - impugned order is set aside to the extent it rejects the refund of Rs. 5,87,047/- - The appeal is allowed with consequential relief: CESTAT [para 4.1, 5]
- Appeal allowed: DELHI CESTAT
2020-TIOL-1433-CESTAT-DEL
Interglobe Aviation Ltd Vs CC
Cus - The appeal is directed against the impugned order by which the appeal has been dismissed for the reason that it had been filed beyond the period prescribed under section 128 of Customs Act, 1962 - A Division Bench of this Tribunal in Diamond Construction has held that the Commissioner (A) cannot condone any delay if the appeal is presented beyond 30 days after the expiry of 60 days - Thus, the Commissioner (A) committed no illegality in dismissing the appeal: CESTAT
- Appeal dismissed: DELHI CESTAT |
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