| 2020-TIOL-2167-HC-MAD-ST
West Asia Maritime Ltd Vs ACGST & CE
ST - Respondent passed Order-in-Original dated 15.11.2017 and the petitioner received the same on 23.12.2017 - Petitioner did not prefer any appeal before the Appellate Authority but has instead filed this Writ Petition on 02.05.2018 challenging the order passed by the Respondent beyond the maximum limitation period of three months from the date of receipt of copy of that order.
Held: Supreme Court in Glaxo Smith Kline Consumer Health Care Limited = 2020-TIOL-93-SC-VAT has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the Appellate Authority concerned - In the result, the Writ Petition, which cannot be entertained, is dismissed: High Court [para 3]
- Petition dismissed: MADRAS HIGH COURT
2020-TIOL-1694-CESTAT-MUM
Man Infraprojects Ltd Vs CCGST
ST - Rejection of refund claim of Service Tax paid for construction of residential complex before 30.06.2012 on the ground that appellant failed to establish that it comprised of less than 12 residential units so as to be covered under exemption clause is assailed in this appeal.
Held: Because of availability of 13 floors, Commissioner (Appeals) had failed to reach at a conclusion that the complex had less than 12 residential units to admit refund as the same was not taxable - However, going by the Architect certificate [Annexure 3], floor plan referred and the full occupation certificate issued by the Executive Engineer (building proposal) of the Municipal Corporation of Greater Mumbai dated 02.08.2013 would clearly indicate that the complex comprised of 9 residential units, taking each duplex to be counted as one unit - Therefore, the appellant is entitled to get the refund sought for - Appeal is allowed by setting aside the impugned order - Respondent-department is directed to refund Rs.45,13,475/- with applicable interest as per Section 11AA of the Central Excise Act, 1994 within 3 months of receipt of this order: CESTAT [para 6, 7]
- Appeal allowed: MUMBAI CESTAT
2020-TIOL-1692-CESTAT-MUM
Sai Food Services Vs CCGST
ST - Appellant had entered into an agreement with M/s. Ceat Ltd., whereby the appellant was required to run a canteen in their factory premises - As per the terms of the agreement, appellant was responsible for providing the manpower for preparing and serving food for the employees within the factory premises and elsewhere as and when required - The department has alleged that the exemption provided under Entry 19A in the notification dated 22.10.2013 is not available to the contractor/outdoor caterer providing services to M/s. Ceat Ltd. - The matter arising out of the SCN was adjudicated vide order dated 17.07.2018, wherein the Original Authority confirmed the service tax demand of Rs.1,32,40,938/- along with interest and also imposed penalties under Section 77 and 78 of the Finance Act, 1994 against the appellant - appeal to CESTAT.
Held: Entry 19A inserted in notification 25/2012-ST by notification 14/2013-ST dated 22.10.2013 reads as "Services provided in relation to serving of food or beverages by a canteen maintained in a factory covered under the Factories Act, 1948 (63 of 1948), having the facility of air-conditioning or central air-heating at any time during the year" - On reading of entry 19A in the notification dated 22.10.2013, it reveals that the canteen maintained in a factory has been provided with the exemption from payment of service tax - The said notification nowhere specified that canteen maintained by or run by the factory can only be considered for the benefit of such exemption - Thus, irrespective of the person, who maintains the canteen in a factory, the service tax exemption as per Entry 19A is available to such person and the benefit cannot be restricted to the owner of the factory alone - In the present case, since the appellant had provided the services of serving food and maintaining the canteen located in the factory, belonging to M/s. Ceat Ltd., the benefit of service tax exemption as per the above referred notification should be available to it - In an identical situation, this Tribunal in the case of M/s ICS Food Pvt. Ltd. - 2018-TIOL-2349-CESTAT-ALL has set aside the demand and allowed the appeal in favour of the said party, holding that canteen maintained by the outdoor caterer should fall under the purview of Entry No. 19A and service tax exemption cannot be whittled down - Revenue appeal against this Tribunal order has been dismissed by Apex Court vide judgment dated 03.01.2019 - No merits in the impugned order, hence same is set aside and appeal is allowed: CESTAT [para 6, 7]
- Appeal allowed: MUMBAI CESTAT
2020-TIOL-1691-CESTAT-MUM
Alumatic Cans Pvt Ltd Vs CCGST
CX - Assessee had filed refund applications in terms of Rule 5 of CCR, 2004 r/w Notfn 27/2012-CE (NT) - Same was rejected by lower authorities - The issue is no longer res integra and has been adjudicated by Tribunal in Trimurti Plast Containers Pvt. Ltd. 2018-TIOL-928-CESTAT-MUM, Arrow Engineers 2018-TIOL-628-CESTAT-MUM, Wave Mechanics Pvt Ltd 2019-TIOL-3178-CESTAT-BANG and Unity Pharma Chem 2019-TIOL-3244-CESTAT-MUM - Admittedly the goods were cleared by assessee, not for physical exports, but were cleared by them to their sister concern, who is an 100% EOU - Since these goods were not cleared for physical exports by assessee, in view of the definition of "export goods", as per explanation (1A) inserted in Rule 5 of CCR, 2004, they do not qualify to be included in export turnover of assessee for the purpose of computing refund under rule 5 - Hence no infirmity found in impugned order - It is requirement in law for claiming the refund under Rule 5, the claimant has to make a debit of amount claimed as refund from CENVAT Account - In case the refund is allowed in his favour the amount of debited from CENVAT Account gets adjusted against the refund paid in cash, and in case the refund is rejected or even rejected in part, then the amount of refund which is rejected either in toto or in part, which was earlier debited from CENVAT Account gets restored in CENVAT Account of the claimant - The argument advanced need to be considered in light of order of Tribunal in case of Wave Mechanics Pvt Ltd 2019-TIOL-3178-CESTAT-BANG - Since the condition of debit of amount claimed as refund under Rule 5, is a condition prior to filing the refund claim, the consequence of rejection will be the restoration of credit which was debited by applicant - This restoration cannot be considered as new ground: CESTAT
- Appeal disposed of: MUMBAI CESTAT
2020-TIOL-1689-CESTAT-MAD
Mckinsey Global Services India Pvt Ltd Vs CGST & CE
ST - This appeal is filed by assessee against order of Commissioner (A), whereby their refund claim partially rejected by adjudicating authority came to be upheld - The First appellate authority has given some excuses to not to follow the orders of CESTAT, in assessee's own case - It is not even the case of FAA that the earlier order/s of this Bench that are referred in his own order, have been reversed by High court or have been set aside - The facts may or may not vary, but the principle that is laid down by a higher forum is required to be followed - For these reasons, the impugned order has to set aside at once - But since there is no justifiable finding given by FAA in the impugned order on merits, the matter is required to be remanded to the file of FAA to pass fresh order on merits after hearing the assessee - When the assessee claims that the issue on hand stands covered by an order of a higher forum, in respect of the very same assessee but for a different period, such previous order/s of a higher Forum shall be followed as long as the same are not stayed/set aside by High court - Further, FAA shall follow the hierarchical judicial discipline and also adhere to the principles of natural justice by providing reasonable opportunities to the assessee herein, but however, considering the peculiar history of the case, FAA shall pass de-novo Appellate order within a period of six months from the date of receipt of this order: CESTAT
- Matter remanded: CHENNAI CESTAT
2020-TIOL-1688-CESTAT-KOL
Laltanpuii Vs CC
Cus - The issue arises for consideration is, whether Revenue has established the allegation that seized betel nuts are of foreign origin and are smuggled - Revenue bases its case on the certificate issued by Arecanut Research and Development Foundation (ARDF), Mangalore and the fact that the owners could not establish the Indian origin of the arecanut - Regarding the allegation against Smt. Laltanpuli, it is averred that although she submitted a number of purported purchase vouchers, she could not tell the detailed address or contact numbers of the sellers; purchaser issued the vouchers and not the sellers; the signatures of sellers appear to be forged; Smt laltanpuli has given contradictory statements and retracted them; Shri Shashi Chowdhury, who is alleged to have been involved in this case as a consignee, was a habitual offender and was involved in smuggling of arecanut seized in earlier cases; the drivers stated that after proceeding some distance on Guwahati Kolkata Road they were asked to come back to Guwahati - The evidence collected by investigation could establish a reasonable doubt as to the origin of arecanut - But the same is not enough to prove the smuggled nature of the arecanut - Investigation was only in the direction to conclude that there was no proof for indigenous and licit procurement of betel nut seized and that the claim of assessee cannot be verified in some cases - The betel nut is not notified under Section 123 of Customs Act, 1962 and therefore, the burden of proof lies with the department to prove the same - There is not even a reference or narration as to how and wherefrom the impugned goods are smuggled - In view of decision of Tribunal in case of Dharmendra Kumar Jha, the betel nut being non notified goods; burden to prove the fact of smuggling lies on the department and the same has not been discharged - The report of ADRF, Mangalore cannot be relied upon - On the issue of goods being held to be unfit for human consumption, it is held that as the goods are neither imported nor proved to be smuggled, no action by Customs is warranted - Seizure of impugned betel nut is not justified: CESTAT
- Appeal allowed: KOLKATA CESTAT |
