| 2020-TIOL-1970-HC-KAR-ST
Indian Machine Tool Manufacturers Association Vs UoI
ST - SVLDRS, 2019 - Petitioner was issued with the Audit Note dated 4.4.2019 with total detection of service tax of Rs.23,86,861/- and corresponding interest in a sum of Rs.1,86,735/- with the petitioner's total liability being computed in a sum of Rs.25,73,596/- - The Audit Note also refers to Rs.8,09,269/- and Rs.3,15,136/- as the total Service Tax and Interest respectively recovered from the petitioner - A SCN dated 05.07.2019 followed this Audit Note and consequently the petitioner filed an application under SVLDRS, 2019 mentioning a sum of Rs.23,86,861/- as the total outstanding Duty - The petitioner was issued with Form No.SVLDRS-3 with the 'amount payable' in a sum of Rs.7,16,058/- along with the remark that since there is specific exclusion in Sec. 125(1)(h) of Finance (No. 2) Act, 2019, the application seeking relief of NCCD to be paid on Beedis is accordingly rejected by the Designated Committee - Petitioner submits that the Designated Committee has issued Form No.SVLDRS-3 without application of mind inasmuch as the petitioner is engaged in conduct of Business Exhibition Services holding Centralised Service Tax Registration and indisputably is not engaged in the business of any tobacco product; that the Form No.SVLDRS-3 issued is with a remark that is completely extraneous to the petitioner - Furthermore, Form No.SVLDRS-3 indicating that an amount of Rs.7,16,058/- is payable by the petitioner is without considering the deposit in a sum of Rs.8,09,269/- - That the petitioner being entitled to seek modification of the Form No. SVLDRS-3 under Section 128 of the SVLDR Scheme because of this apparent error has submitted an application for rectification but the Department has not taken any action on the petitioner's application.
Held:
+ In the present case there is no dispute about the petitioner being issued with Audit Note dated 04.04.2019 which mentions not only the duty demand but also the service tax recovered from the petitioner, and thus, there has been quantification of the duty demand in a sum of Rs.23,86,861/- and acceptance of service tax recovered in Rs.8,09,269/- during audit before the 30th day of June, 2019.
+ If these facts cannot be disputed and the conditions as contemplated under the SVLDR Scheme are satisfied, an accrued substantive right by way of Tax relief cannot be denied on the technical ground that there is an error in filling in the details in Form SVLDRS-1 as 'Nil', especially when there is an onus on the Department to verify the records.
+ In the peculiar facts and circumstances of the case, including the fact that the petitioner is not extended an opportunity as contemplated under the provisions of section 127(3) of the SVLDR Scheme with the issuance of Form SVLDRS-2 and an error apparent in Form SVLDRS-3 cannot be controverted, and also in view of the fact that the SVLDR scheme is envisaged as a time bound exercise, this Court is of the considered opinion that the petitioner is entitled for issuance of Discharge Certificate as contemplated under Section 127(8) of the SVLDR Scheme.
+ Writ petition is allowed in part directing the Designated Committee to expeditiously consider issuance of Discharge Certificate to the petitioner as contemplated under Section 127(8) of the SVLDR Scheme.
- Petition partly allowed: KARNATAKA HIGH COURT
2020-TIOL-1968-HC-KAR-CUS
Malur Tubes Pvt Ltd Vs Additional Director General
Cus - Petition is filed seeking a Writ of Certiorari and to quash detention memo dated 24.09.2020 and to direct the respondents to permit petitioners to have food and medicines if enquiry by the officers of Directorate of Revenue Intelligence Office were to stretch for long duration – Counsel for Revenue submits that Chinese goods are being imported into the country via Malaysia; that the first prayer is dependent on the second prayer because when the enquiry is complete, petitioners can file application under Section 110A of the Customs Act, 1962, seeking interim custody of the goods – Insofar as the allegation that petitioners were not permitted to have their food and medicines during the course of the enquiry, the Revenue Counsel while denying the allegations submitted that DRI shall have no objection if petitioners carry their own food and medicines. Held: Petition is disposed of with following directions viz. (i) Petitioners shall appear on 17.11.2020 in DRI office for further enquiry; (ii) They shall be permitted to carry their own food and medicines; and (iii) Enquiry shall be conducted during the office hours and completed as expeditiously as possible: High Court [para 7]
- Petition disposed of: KARNATAKA HIGH COURT
2020-TIOL-1630-CESTAT-MAD
Uma Sanjay Vs CCE & ST ST - Appellants are co-owners of immovable property which was leased out to customers - Department issued SCN proposing to demand service tax under renting of immovable property services - This Bench of Tribunal in Smt. Rajeswari & others 2019-TIOL-3283-CESTAT-MAD had considered the very same issue as to whether rent received by co-owners can be clubbed together to demand service tax, wherein the Tribunal had relied upon the decision in case of Sarojben Khusalchand 2017-TIOL-2284-CESTAT-AHM and allowed the benefit of exemption notfn 6/2005-ST to the individual co-owners who jointly owned the property and provided the service of renting of immovable property - It was held that service tax is leviable only in proportion to the rent received by each of the co-owners - The Tribunal in the said case had remanded the matter to the adjudicating authority to consider the plea of allowing the benefit of exemption notfn 6/2005 as amended and to look into threshold limit of co-owners - Following the said decision, the matter is remanded to the adjudicating authority who is directed to look into the discussions made in the Tribunal's final order in case of Smt. Rajeswari & others and consider whether the appellants are eligible for threshold exemption: CESTAT
- Matter remanded : CHENNAI CESTAT
2020-TIOL-1624-CESTAT-AHM
Power Build Pvt Ltd Vs CCE & ST
CX - The issue relates to the denial of Cenvat credit of gardening services availed by them - The assessee argued that in their own case the Tribunal vide order 2017-TIOL-1421-CESTAT-AHM has allowed the benefit of similar services namely manpower for gardening - He further argued that the High Court of Karnataka in case of Millipore India Pvt. Ltd. has also allowed the Cenvat credit in similar circumstances on the gardening services - The compliance of various environment related laws and factories act mandate clean environment in factory - Thus, the said service becomes essential for functioning of the factory - The impugned order cannot be sustained, same is set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2020-TIOL-1616-CESTAT-DEL
Rajender Kumar & Associates Vs CST
ST - The assessee is engaged in providing "consulting engineering services" - The Commissioner has held that the assessee was not eligible to avail CENVAT credit on the basis of invoices for two reasons - The first is that most of the invoices raised on the registered premises on the strength of which the assessee had availed CENVAT credit were not addressed to assessee or the said invoices were not in accordance with the conditions as laid down in 1994 Rules and the 2004 Rules - The second is that the assessee did not have a centralized service tax registration for different offices nor it was registered as input service distributor - The assessee has placed on record the certificates issued by architects and interior designers - These certificates give the amount, the name, PAN no. and service tax no. - These details are, therefore, in accordance with the 1944 Rules and the 2004 Rules and thus denial of CENVAT credit of Rs. 26,80,236/- on the invoice addressed to the registered premises is incorrect - As regard to CENVAT credit of Rs. 1,04,10,273/- availed by assessee on the basis of invoices addressed to the office which is not registered with the Service Tax Department, the registration of premise with the Service Tax Department is not a condition for availing CENVAT credit - Once the requirement of rule 4A of the 1994 Rules and rule 9 of the 2004 Rules are satisfied, the benefit of CENVAT credit could not have been demanded - Thus, the Commissioner was not justified in denying the benefit of CENVAT credit on the unregistered premises - The Commissioner has further held that the benefit of CENVAT credit for services received by assessee on the strength of invoices addressed to another unit is not admissible as they failed to take Central Registration or ISD Registration to avail and distribute the CENVAT credit - This finding of Commissioner is also not correct - There is no law that prescribes that the only way to distribute CENVAT credit is registering as an ISD - It has also been contended by assessee that no service tax was payable in respect of services imported prior to April 18, 2006 - In this connection it has been pointed out that demand on Rs. 7038 was confirmed in respect of services imported from M/s P L Design Company Limited during the period 2005-06 - The amount of service tax has been paid by assessee and it has also been appropriated in the impugned order - It is, therefore, not necessary to decide this issue: CESTAT
- Appeal allowed: DELHI CESTAT | 
