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2020-TIOL-1967-HC-P&H-NDPS
Kulwinder Singh Vs State Of Haryana
NDPS - 600 tablets of Tramadol recovered - Petitioner seeks regular bail under Section 439 Cr.P.C in case registered under Sections 22-B, 61 of NDPS Act - Petitioner submits that Vice Principal, Government ITI, Odda is not competent to act as a Gazetted Officer under NDPS Act.
Held: Bench is of the view that firstly the recovered contraband falls under commercial category - Vide notification dated 05/08.04.1996 issued by the Financial Commissioner and Secretary to Government of Haryana, Revenue Department, Naib Tehsildars of the Revenue Department were granted status of Class-II Gazetted Officers on their regular appointments after completion of prescribed departmental examination - An amendment was carried out vide Act No.9 of 2001 in Section 42 of the NDPS Act - Co-ordinate Bench of this Court in CRM-M No.15538 of 2020 titled Tejpal @ Teju Vs. State of Haryana decided the issue on 03.11.2020 - It is observed therein that - "On careful reading of Section 42, it is apparent that the Parliament while enacting the Act did specify that the Gazetted Officers before whom the search can be carried out must be posted in some particular department(s) enlisted therein. Apart from enlisting certain Departments in Section 42, the Parliament uses the phrase 'any other department' of the Central or the State Government. Thus, the Gazetted Officer can be from any Department. Only requirement is that he should be empowered in this behalf by general or special order by the Central or the State Government" - In view of aforesaid factual position on record, Bench does not find any reason to hold that Raj Kumar, Vice Principal, Government ITI, Odda was not authorized to act as Gazetted Officer - This petition is found to be totally devoid of merits and is accordingly dismissed: High Court [para 6 to 8]
- Petition dismissed: PUNJAB AND HARYANA HIGH COURT
2020-TIOL-1966-HC-P&H-NDPS
Ravinder Singh Vs State Of Haryana
NDPS - Four plastic bags containing 26 kgs each poppy husk were recovered - Petitioner(s) seeks regular bail under Section 439 Cr.P.C in case registered under Section 15 of the NDPS Act (Sections 61/85 of NDPS Act added later on) - Petitioner submits that Naib Tehsildar was not authorized to act as a Gazetted Officer under NDPS Act.
Held: Bench is of the view that firstly the recovered contraband falls under commercial category - Vide notification dated 05/08.04.1996 issued by the Financial Commissioner and Secretary to Government of Haryana, Revenue Department, Naib Tehsildars of the Revenue Department were granted status of Class-II Gazetted Officers on their regular appointments after completion of prescribed departmental examination - An amendment was carried out vide Act No.9 of 2001 in Section 42 of the NDPS Act - Co-ordinate Bench of this Court in CRM-M No.15538 of 2020 titled Tejpal @ Teju Vs. State of Haryana decided the issue on 03.11.2020 - It is observed therein that - "On careful reading of Section 42, it is apparent that the Parliament while enacting the Act did specify that the Gazetted Officers before whom the search can be carried out must be posted in some particular department(s) enlisted therein. Apart from enlisting certain Departments in Section 42, the Parliament uses the phrase 'any other department' of the Central or the State Government. Thus, the Gazetted Officer can be from any Department. Only requirement is that he should be empowered in this behalf by general or special order by the Central or the State Government" - In view of aforesaid factual position on record, Bench does not find any reason to hold that Naib Tehsildar, Barwala was not authorized to act as Gazetted Officer - The petitions are found to be totally devoid of merits and are accordingly dismissed: High Court [para 7 to 9]
- Petitions dismissed: PUNJAB AND HARYANA HIGH COURT
2020-TIOL-1629-CESTAT-KOL
S J Fabrics Pvt Ltd Vs CC
Cus - Commissioner(A) dismissed the appeal as being time barred and without deciding the appeal on merits - appellant submits that they had received the order dated 3 rd October 2018 on 5 th October 2018 and they had filed an appeal on 4 th December 2018 and which is within the statutory period of sixty days, therefore, there is no delay - Bench agrees, therefore, the impugned order is set aside and matter is remanded to Commissioner(A) for decision on merits: CESTAT [para 4]
- Matter remanded: KOLKATA CESTAT
2020-TIOL-1628-CESTAT-HYD
CCT Vs K Ramachandra Rao Transmission And Projects Ltd
ST - Issue is whether the respondent has rightly claimed exemption under Sl. No. 12(a)/12A of Notification No. 25/2012-ST dated 20.06.2012 in their ST-3 returns for the period 01.04.2012 to 30.06.2017, in respect of 'Works Contract Service' being erection, commissioning and installation of transmission lines for various Government companies/corporations and also whether they had rightly not paid service tax on the reimbursement of amount towards crop compensation, right of way, from the service recipient, being incidental to the works contract executed.
Held: Whether the view of Member (Judicial) is correct, holding that within the extended meaning of Article 243W, read with 12th Schedule of the Constitution, 'Transmission and Distribution of Electricity' is included OR as held by learned Member (Technical) that 'Transmission and Distribution of Electricity' is not included in Article 243W read with 12th Schedule of the Constitution? - Difference of Opinion - Matter referred to the Third Member: CESTAT
- Matter referred: HYDERABAD CESTAT
2020-TIOL-1627-CESTAT-KOL
Harinagar Sugar Mills Ltd Vs Commissioner, CGST & CE
CX - Issue involved herein is the applicability of Rule 6 of the CCR on electricity generated from Bagasse as the source of fuel and cleared to the State grid for a consideration - Self-same issue had fallen for consideration of the Allahabad High Court in the Gularia Chini Mills case - 2013-TIOL-568-HC-ALL-CX wherein the Court observed that electrical energy generated from Bagasse is not covered under Chapter 27 of the CETA and is therefore, non-excisable, thereby not attracting the provisions of Rule 6 at all - Since the issue involved is no more res integra, Bench is inclined to drop the demand under Rule 6 of the CCR for the period upto 1 March 2015 by following the decision(s) cited: CESTAT [para 6]
CX - Period post 1 st March 2015 - Even after the insertion of the Explanation 1 Rule 6 of the CCR with effect from 1 March 2015 equating non-excisable goods with exempted goods for the purpose of Rule 6 of the CCR, the factual position remains that no Cenvat availed inputs were used by the Appellant in the generation of electricity from Bagasse - Bagasse remains non-excisable and the question of availing any credit thereon does not arise - Insofar as the common input services are concerned, Bench is in agreement with the contention of the Appellant that the maintenance of separate records was an impossibility and that the suo moto reversal of proportionate credit for common input services for the year 2015-16 was sufficient compliance with the provisions of Rule 6(1) and Rule 6(2) of the CCR as the objective thereof is not revenue maximization but credit neutralization - Since no Cenvat availed inputs / input services have been used in the generation of electricity from Bagasse, demand under Rule 6(3)(i) cannot sustain even after 1 March 2015: CESTAT [para 7]
CX - Limitation - Adjudicating Authority himself has accepted at para 4.31 that a Notice for the prior period was issued on the self-same issue for the period 2013-14 and the demand covering of 6% under Rule 6(3) was dropped by the Adjudicating Authority therein - Under these circumstances, the subsequent Notice could not have been issued invoking the extended period of limitation in view of the decision of the Hon'ble Supreme Court in the Nizam Sugar Factory - 2006-TIOL-56-SC-CX case - impugned order is set aside and the appeal is allowed both on merits as well as limitation with consequential relief: CESTAT [para 8, 9]
- Appeal allowed: KOLKATA CESTAT
2020-TIOL-1626-CESTAT-KOL
Bengal Beverages Pvt Ltd Vs CGST & CE
ST - Department has raised a demand of service tax under reverse charge mechanism on the entire remuneration paid to the whole-time Directors i.e. the fixed part as well as the variable pay, in terms of Notification No.30/2012-S.T., dated 20th June 2012, as amended - It is the case of the Department that the said remuneration paid to the Directors would constitute 'service' liable to service tax in the hands of appellant assessee under reverse charge mechanism - appeal to CESTAT.
Held: Only dispute herein is for payment of remuneration in the nature and form of commission based on percentage of profit to whole time directors, which is a fact on record - Section 2(94) of Companies Act, 2013, duly defines 'whole-time director' to include a director in the whole-time employment of the company - A whole-time Director refers to a Director who has been in employment of the company on a full-time basis and is also entitled to receive remuneration - The certificate issued by the Company Secretary states that the remuneration is given in various form as allowed under the Companies Act, 2013 - Moreover, a whole-time director is considered and recognized as a 'key managerial personnel' under Section 2(51) of the Companies Act - Further, he is an officer in default [as defined in clause (60) of Section 2] for any violation or non-compliance of the provisions of Companies Act - Thus, the whole-time Director is essentially an employee of the Company and accordingly, whatever remuneration is being paid in conformity with the provisions of the Companies Act, is pursuant to employer-employee relationship and the mere fact that the whole-time Director is compensated by way of variable pay will not in any manner alter or dilute the position of employer-employee status between the company assessee and the whole-time Director - Bench is thoroughly convinced that when the very provisions of the Companies Act make whole-time director (as also in capacity of key managerial personnel) responsible for any default/offences, it leads to the conclusion that those directors are employees of the assessee company - Tribunal decision in the case of MAITHAN ALLOYS LTD - 2019-TIOL-2737-CESTAT-KOL is squarely applicable to the facts of the case - impugned order is set aside - Appeal allowed with consequential relief: CESTAT [para 8 to 10]
- Appeal allowed: KOLKATA CESTAT 2020-TIOL-1625-CESTAT-KOL
Dewanchand Ramsaran Industries Pvt Ltd Vs CCE & ST
ST - Show Cause Notice dated 29.10.2007 (SCN) was issued to the assessee, which was previously adjudicated vide Order dated 22.02.2008 and whereby the demand of Service Tax as proposed in the SCN was confirmed alongwith interest, however, the entire penalty was dropped by invoking Section 80 of the Finance Act, 1994 (the Act) - Both assessee and Department preferred appeals before the Tribunal - Appeal No. ST-81/2008 filed by Department was rejected on the very ground of maintainability holding that the Review Order passed by the Review Committee lacked jurisdiction - The assessee's appeal No. ST-88/2008 was allowed by way of remand with the direction that the documents which were relied against the assessee be provided to them and a reasoned order be passed in a time bound manner afresh by providing adequate opportunity of being heard - High Court vide Order dated 04.06.2010 rejected the appeal filed by the Department upholding the order of the Tribunal with the finding that the very constitution of Review Committee was a nullity and hence, the appeal filed by the Department against the Commissioner's Order was not proper - Against the said High Court's order, the Department has further preferred an appeal before the Apex Court which is pending as on date - present appeal has been filed against the de novo Order dated 25.03.2009 passed by the Commissioner, Central Excise, Dibrugarh, whereby the demand of Service Tax of Rs.2,63,36,665/- has been confirmed under the category of 'Maintenance and Repair service' for the period July 2003 to March 2006 alongwith applicable interest - CESTAT has by its order dated 26.07.2010 - 2010-TIOL-1367-CESTAT-KOL ordered pre-deposit of interest of Rs.75 lakhs - appeal heard.
Held: Question to be decided is whether the subject service rendered by the assessee is classifiable under the category of Maintenance, Management or Repair service - contract is primarily for "Charter hire of workover rigs" - Commissioner, in page No. 7 & 8 of the impugned order, after having noted the scope of work, has hurriedly concluded that the work is nothing but maintenance and repair of workover oil wells - No basis whatsoever has been assigned - The Commissioner completely lost sight that the workover job has been desired by ONGC to complete the development and exploratory wells by deploying the mobile workover units at locations identified by ONGC to exploit natural hydrocarbons - On perusal of the above scope of work, Bench is not inclined to accept the conclusion reached by the Commissioner to hold that the service rendered by the assessee is for repair or maintenance - In response to the query raised by the Department, it is stated by ONGC that they have charter hired workover rigs from the assessee (appellant herein) for workover operations in various onshore oil fields of Assam during the material period and that the workover rigs were owned by the assessee - It has also been expressly stated therein that ONGC has not hired operation and maintenance service from assessee - Bench agrees with the submission that the said services have been appropriately brought within the tax net subsequent to the period in dispute under the category of Mining service or Supply of tangible goods, as the case may be - In view of the above findings, Bench is of the view that the impugned demand raised in the category of 'Maintenance, Management and Repair service' cannot be sustained and hence, set aside - Only finding that has been made by the Commissioner is that the assessee has not intimated the fact of rendering the said service, which in view of the department is taxable under 'Maintenance, Management and Repair service' - On the basis of said findings, the extended period of limitation has been invoked, which is also not proper and would not meet the test of law, more so in view of the fact that issue pertained to interpretation of taxability - Hence, on that count also, the demand confirmed by invoking the extended period of limitation fails - impugned demand of Service Tax and interest are set aside and the appeal filed by assessee is allowed with consequential relief - Appeal of Department is rejected: CESTAT [Para 7, 9, 10, 11]
- Assessee appeal allowed/Department appeal rejected: KOLKATA CESTAT
2020-TIOL-1623-CESTAT-AHM
Gaurav Contract Company Vs CCE & ST
ST - The assessee-company is engaged in providing Mining service, Supply of Tangible Goods for use services & GTA service to various customers - The assessee paid the applicable service tax amounts - The assessee also availed the benefit of Cenvat Credit of duties paid on input and capital goods and also service tax paid on input service - In the relevant period, the assessee purchased Dumpers/trippers for use in providing mining service - Upon audit, it appeared to the Revenue that the assessee wrongly availed CENVAT credit on dumpers/trippers by treating them as capital goods - SCN was issued, proposing to disallow cenvat credit u/r 14 of CCR 2004 r/w Section 73(1) of FA 1994 - Penalty u/r 15 of CCR 2004 was also imposed - Interest was also demanded u/s 75 of the Act - On adjudication, the duty demands were sustained - Hence the present appeal.
Held - The present case can be disposed off on limitation itself without going into the merit of the case - The assessee availed the Cenvat Credit in respect of Dumpers/trippers, under bona fide belief, and the details of the credit was declared in their ST-3 Returns - Moreover, on the query from the Range Officer, the assessee submitted invoice wise details of credit which contained the Cenvat Credit taken on invoices of Dumpers/trippers also - Therefore, there is no suppression or wilful suppression of facts to take the undue benefit of Cenvat Credit on the part of the assessee - It is also observed that the issue involves interpretation of Cenvat Credit Rules - On the same issue number of judgments were passed wherein the Tribunal has allowed the credit considering the same goods i.e. Dumpers/trippers as inputs - Moreover, there were multiple litigation on the issue involving the interpretation of law - In such a situation it cannot be alleged that the assessee wilfully suppressed the fact to evade the Service tax - Hence it is clear that there is no suppression of facts on the part of the assessee in availing the Cenvat Credit on Dumpers/trippers therefore, the entire demand raised beyond the normal period is time barred: CESTAT
- Assessee's appeal allowed: AHMEDABAD CESTAT
2020-TIOL-1622-CESTAT-KOL
AR Stanchem Pvt Ltd Vs CCE
CX - The Commissioner(A) has not decided the case on merits, but has dismissed the appeal on the ground of noncompliance with provisions of section 35F of CEA, 1944 - After filing appeal before Tribunal, assessee has deposited an amount of Rs.10,00,000/-, which is sufficient to hear their appeal on merits - The appeal filed by assessee is allowed by way of remand to Commissioner(A) for deciding the case on merits, without insisting on any further predeposit: CESTAT
- Matter remanded: KOLKATA CESTAT
2020-TIOL-1621-CESTAT-KOL
Krishna & Company Vs CC
Cus - The respondent department, who was unable to proceed with his submissions owing to non-availability of some documents in this file, prayed for a short adjournment - Assessee did not object to such prayer - Accordingly, the matter is adjourned to 9 September 2020: CESTAT
- Matter listed: KOLKATA CESTAT |
