2021-TIOL-24-SC-ST-LB
CCE & ST Vs Rosmerta Technologies Ltd
ST - The Tribunal had held that when the Commissioner in regard to the Appellant's own case for a subsequent period held that Service Tax cannot be levied under the category of BAS, which order of the Commissioner attained finality, the Department cannot be permitted to contend in this Appeal that Service Tax under the category of BAS can be levied upon the Appellant - Main objection is that in an arrangement between two private parties there is no question of discharging sovereign or statutory function - The registration of vehicle is a statutory obligation and non-compliance will attract penal consequences – Government of Maharashtra is implementing such statutory provision - The fee for issuing such smart optical card based vehicle registration certificates SOC-VRC is fixed in terms of motor vehicle regulations and on payment of such fee only the process of preparation of smart card can be initiated - The fact that the Government has outsourced some part of the work and paid certain consideration for such outsourced work does not take away the merit that the whole process of issue of smart card for applicant is statutory function which only the Government Road Transport Authority can do - no Service Tax under the category of BAS could have been levied on the appellant - The Tribunal allowed the assessee's appeal.
Held - Appeal is admitted - Notice issued in respect of Stay Application, returnable in four weeks' time: SC LB
- Notice issued: :SUPREME COURT OF INDIA
2021-TIOL-23-SC-CX-LB
PLA Component Vs CCE
CX - Whether ‘Relays' cleared by the appellant are liable to be assessed u/s 4A of the CEA, 1944 as alleged by Revenue instead of under s.4 as claimed by assessee - Whether the extended period of limitation is invokable - Whether the brand name ‘PLA Relays' belongs to the assessee and whether the SSI exemption is available to the assessee - both assessee and Revenue are in appeal, assessee on the grounds above and Revenue in the matter of imposition of penalty u/s 11AC of the CEA, 1944 - The Tribunal then held that the manner of assessment of ‘Relays' sold in the manner as have been cleared by the assessee is no longer res integra - Tribunal has in the case of Schneider Electric India (P) Ltd .held that assessment of goods manufactured and cleared by appellants is required to be done in terms of s.4A of the CEA, 1944 - insofar as brand name issue is concerned, it is an admitted fact that the appellants were using the brand name on their goods which did not belong to them but was owned by someone else - in view of the apex court decisions in Kohinoor Elastics P Ltd ., Parle Bisleri Ltd , Grasim Industries Ltd , Ace Auto Comp. Ltd . and the facts determined by the adjudicating authority in his order, the benefit of exemption under notifications 9/2002-CE, 8/2003-CE has been correctly denied to the appellants - in the matter of cross examination sought by appellant, the view of the Commissioner that because the depositions made by the sub-dealers is acceptable to him, there is no need for granting an opportunity of cross examination is contrary to the principles of natural justice and against the principles of fair administration of justice - on this count the matter needs to be remanded - in the matter of appeal no. E/89384/2013, as the Commissioner(A) while accepting the appeal filed by Revenue of confirmation of demand has not rendered any finding on limitation, the matter is required to be remanded moreso since the adjudicating authority had set aside the demand only on the merits of the case - as the matter of imposition of penalty u/s 11AC is directly linked to the decision in invocation of extended period of limitation as held by the apex court in the case of Rajasthan Spinning Mills, the subject matter is also remanded to the adjudicating authority.
Held - The Counsel for the assessee pled that certain additional documents were to be incorporated & that other documents were yet to be filed - The amendment be carried out within four weeks' time - Notice be issued to the parties & the matter be tagged with Civil Appeal No.5993 of 2019: SC LB
- Notice issued: :SUPREME COURT OF INDIA
2021-TIOL-22-SC-CUS-LB
Asstt CC Vs Petronet LNG Ltd
Cus - Challenge in this petition is the dismissal of the Appeal filed by petitioner challenging the order dated 2.1.2017 rejecting the claim of petitioner for refund, as prayed therein, on the ground that provisions of section 27 of the Customs Act, 1962 [Act] would operate and the claim of refund was time barred - Later the High Court held that it is true that Appellate Commissioner rendered its decision in favour of petitioner on 4.12.2013 and one can say that the petitioner was entitled to seek refund based thereupon -however, it deserves to be noted that the appeal challenging the said order was preferred by the Department before the CESTAT and CESTAT rendered its decision on 8.9.2014 -the said order dated 8.9.2014 was received by the petitioner on 29.9.2014 -therefore, within one year therefrom, the refund claim was made on 9.9.2015 -the order rendered by the Appellate Commissioner on 4.12.2013 could not be said to have rested the controversy as the Department itself had chosen to prefer an appeal challenging the same and therefore, till the Tribunal rendered its judgment on 8.9.2014, and the order was received by the petitioner, it can be said that the claim of the petitioner for refund could not have been said to have been finally decided by the Court or Tribunal so as entitled him to raise the refund claim -the plain and simple reading of sections 131A and 153 of the Act, in the light of the decision rendered by this Court in the case of Vadilal Industries [2006 (197) ELT 160] would clearly indicate that the petitioner's claim of refund raised on 8.8.2015 and said to be received on 9.9.2015, could be said to be well within time under section 27 of the Act - when the petitioner's claim that it was not liable to pay duty on the quantum mentioned in the bill of lading as the actual quantity landed was lesser than the quantity mentioned in the bill of lading, was justified and upheld, the difference in duty levied, was required to be refunded -the petitioner's contention was upheld by the Appellate Commissioner under order dated 4.12.2013 and confirmed by the Tribunal under order dated 8.9.2014 - therefore, there was no justified reason whatsoever for denying the refund to the petitioner -even otherwise also, the withholding of refund amount was not justified in any manner especially when the undisputed facts would clearly indicate that the Tribunal upheld the claim of the petitioner only on 8.9.2014 and that being the date of attaching finality to the petitioner's entitlement to seek refund, the petitioner was well within its right to approach the authority for seeking refund as prescribed under section 27 of the Act -the stand of the Authority and Tribunal that the petitioner's claim for refund could not have been said to have been filed within a period of one year from the 4.12.2013 was, therefore, wholly erroneous, incorrect and deserves to be quashed and set aside and is accordingly, quashed and set aside -as a result, the petitioner is entitled to receive refund as per his claim contained in his application dated 8.8.2015 in accordance with law and the same shall be granted to the petitioner within a period of four months.
Held - Leave granted - Matter listed for hearing in first week of April 2021 - The operation of the High Court's judgment is stayed in the intervening period: SC LB
- Case deferred: SUPREME COURT OF INDIA
2021-TIOL-20-SC-CUS
Pr CC Vs Lubi Industries LLP
Foreign Trade (Development and Regulation) Act - Petitioner seeking quashing and setting aside appellate order dated 14.5.2018 made by the Appellate Committee of the Ministry of Commerce and Industry, New Delhi - petitioner also seeking directions to the Joint DGFT, Ahmedabad to amend two Advance Authorisations by substituting name and IEC number of the petitioner in these Authorisations with extension of export obligation period by 6 months - Later the High Court held that from the reasons recorded by the Appellate Committee for rejecting the review application, it is apparent that the Appellate Committee has not applied its mind to the controversy in issue and has merely placed reliance upon the orders passed by the subordinate authorities, without taking into consideration the fact that it was these very orders which had given rise to the review appeal - the Appellate Committee has failed to take into consideration the fact that there is a provision in the Handbook of Procedures for extension of export obligation period - moreover, there are subsequent Public Notices which extend the time of the export obligation period to include even the Advance Authorisations issued under Foreign Trade Policy, 2009-2014 - the Circular dated 16.11.2011 specifically provides for transfer of Advance Authorisation to new IEC number - however, all these provisions have been ignored and the Appellate Committee has mechanically dismissed the review appeal of the petitioner - in the above view of the matter, the impugned order dated 14.5.2018 passed by the Appellate Committee suffers from the vice of non-application of mind to the relevant issues and is contrary to the provisions of the Handbook of Procedures, 2009-14, the Circular dated 16.11.2011 as well as the Public Notices issued in this regard from time to time, which renders the impugned order unsustainable in law - the petition, therefore, succeeds and is, accordingly, allowed to the following extent : the impugned order dated 14.5.2018 passed by the Appellate Committee in respect of Advance Authorisation No.0810086954 dated 3.3.2010, is hereby quashed and set aside - the impugned order dated 22.8.2017 passed by the Policy Relaxation Committee refusing to accept the petitioner's request to change IEC and name in the Authorisation and extension of time for fulfilling the export obligation in respect of Advance Authorisation No.0810090670 dated 21.7.2010, is also hereby quashed and set aside - the second respondent - Joint DGFT is hereby directed to forthwith amend both the Authorisations, viz., Advance Authorisation No.0810086954 dated 3.3.2010 and Advance Authorisation No.0810090670 dated 21.7.2010, by substituting the name and IEC number of the petitioner, that is, M/s.Lubi Industries LLP in both the Authorisations with extension of export obligation period by six months from the date of such substitution.
Held - Notice issued to the parties, returnable within four weeks' time: SC
- Notice issued: SUPREME COURT OF INDIA
2021-TIOL-19-SC-NDPS-LB
UoI Vs Jitendra
NDPS - The Union filed the present appeal to contest bail allowed to the respondent, by the High court - The appellant claimed that the High Court failed to consider the mandatory requirements of Section 37 of the NDPS Act.
Held - the explanation given is hardly satisfactory and, in fact, is a saga of gross negligence on the part of the concerned officers for prosecuting the remedy - The Court has repeatedly been deprecating the practice of authorities coming before this Court after inordinate delays assuming as if the Law of Limitation does not apply to them - Repeatedly, reliance is placed on the judgments of vintage when technology was not easily available - The presumption is as if this Court will condone the delay for the asking & such a course cannot be followed - Costs of Rs.25,000/- are imposed on the petitioner to be recovered from the officers concerned - The cost be deposited in Supreme Court Advocates on Record Welfare Fund within four weeks along with the certificate of recovery from the officers concerned - The special leave petition is dismissed on the ground of delay: SC LB
- Application stands disposed of: SUPREME COURT OF INDIA
2021-TIOL-18-SC-ST-LB
CCE, C & ST Vs Shriram Chits Pvt Ltd
ST - The assessee-company entered into agreement with M/s Shriram Financial Services Holding Pvt Ltd (SFSH) with title of agreement being 'Agreement for providing access to branch network' with period of ten years - The assessee received an amount with the prelude that the assessee agreed to grant M/s SFSH or its nominees the right to access to its entire branch network and agency force - Second agreement was for payment of another amount and for the same reason - SCN was issued to the assessee on grounds that the consideration received was taxable under BSS and that the assessee had provided operational assistance for marketing to M/s SFSH or its nominees for keeping intact the entire branch network and agency force ready to use whenever requested - It was also alleged that the assessee contravened provisions of Section 68 of Finance Act r/w Rule 6 of STR 1994 and Section 70 r/w Rule 7 by not reflecting the consideration received towards value of taxable services in ST-3 returns - Duty demand was raised with interest & penalties and was confirmed upon adjudication - Later the Tribunal held that documents relied upon for issuing SCN are balance sheet, P&L a/c & ST-3 returns, which are statutory documents which have to be preapred and filed before the authorities in the time frame prescribed in the respective Acts - The network access fee has been picked up from these statutory documents and hence there cannot be any scope to allege suppression of the same - The BSS introduced w.e.f. 01.07.2012 covers only specific activities in the inclusive part of its definition and only those specific activities, if carried out, would get covered under Business Support Services - Admittedly, the assessee is nowhere alleged to have provided any of those services which are specified therein, but rather was only asked to 'keep intact …' for access whenever required - The exclusive definition of Business Support Service clearly does not cover this service - The SCN alleged wilful and intentional suppression of facts - It is trite law that the suppression can never be said to exist when material and relevant facts forming the basis for raising demand were already within knowledge of the Revenue - Hence the pre-conditions for application of proviso to Section 73(1) are not satisfied - Hence extended limitation cannot be invoked and the demand is to be confined within normal limitation period.
Held - Notice be issued to the parties, returnable within four weeks' time.
- Notice issued: SUPREME COURT OF INDIA
2021-TIOL-13-SC-CX-LB
Bajaj Auto Ltd Vs Commissioner, CGST
CX - Petitioner submits that this Court may transfer the Appeal No. 84/CE/APPL/DDN/2019-20 from the Commissioner, Central Goods & Services Tax (Appeals), Dehradun to this Court to be heard along with M.A. No. 2043-52 of 2020 in SRD Nutrients Pvt. Ltd - 2017-TIOL-416-SC-CX .
Held: Bench is of the view that M.A. No. 2043-52 of 2020 [where the issue as to whether two Judges' judgment to be recalled or not is to be considered] being pending in this Court, the Commissioner, Central Goods & Services Tax (Appeals), Dehradun in the appeal should await the decision of the M.A – Bench sees no reason to transfer Appeal No. 84/CE/APPL/DDN/2019-20 to this Court - transfer petition is accordingly dismissed: Supreme Court Larger Bench
-Petition dismissed :SUPREME COURT OF INDIA
2021-TIOL-117-HC-MUM-ST
Sanjiv Madhusudan Shah Vs Asstt. CCE & ST
ST - Petitioner is an advocate by profession - Challenge is made to the SCDN issued by the Assistant Commissioner of CGST, Mumbai West dated 28.12.2020 seeking to levy service tax upon the petitioner for the financial year 2014-15 - Petitioner submits that Central Government has issued several exemption notifications whereby services provided by an individual as an advocate or as a partnership firm of advocates by way of legal services are exempt from the charge of service tax; that there is a provision for recovering service tax from the service recipient that ignoring the above, the impugned show cause cum demand notice has been issued mechanically.
Held : Issue notice returnable eight weeks - Bench directs that as an interim measure, there shall be stay of the impugned show cause cum demand notice dated 28.12.2020 until further orders - Matter to stand over to 15.03.2021: High Court [para 7, 8]
-Notice issued/Matter listed :BOMBAY HIGH COURT
2021-TIOL-116-HC-DEL-CUS
Amrut Impex Vs UoI
Cus - Petitioners have sought grant of extension of two months to enable them to complete the import of "poppy seeds", for which registration certificates have been issued by the Central Bureau of Narcotics - The Petitioners also pray for quashing and setting aside the impugned order dated 21st October, 2020, passed by the Director, Department of Revenue, Ministry of Finance, Government of India, by which the representation of the Petitioners seeking an extension for completing the imports was also rejected.
Held:
+ A perusal of the impugned order dated 21st May, 2020, shows that the Union of India has considered merely factual circumstances to decide that in February, 2020, there was no outbreak of COVID-19 pandemic, and, therefore, the plea of extension in light of the Chinese exporter being unable to supply the consignment, is not justified.
+ Finally, the reasoning that has been adopted in the impugned order is that since 1802 metric tons out of 2499 metric tons had already been imported by the end of February, 2020, there is no justification to not have had imported the remaining portion of the said consignment. [para 10]
+ The outbreak of the pandemic around early 2020 is a matter of fact which cannot be disputed. The period when the outbreak may have taken place in China, as per the Chinese exporter's letter, ought not be doubted in the manner in which the impugned order doubts the same.
+ The COVID-19 pandemic originated in China, and hence the adverse effects and problems due to the outbreak could have been much earlier in China, than in India. The Chinese exporter has repeatedly contacted the Petitioners and has expressed its willingness to complete the contract and to supply the product. However, despite repeated letters and reminders requesting an extension by the Petitioners, the Government has not responded to the same, leading to the filing of these writ petitions. [para 13]
+ The only reasoning which the impugned order provides is that there is no justification for not having completed the supplies prior to March, 2020. This court is of the opinion that this reasoning is not acceptable, as it seeks to completely ignore the fact that the outbreak had begun earlier in China, as compared to India, and COVID-19 related problems were present in China in February, leading to the non-supply of the said consignments. [para 14]
+ The Petitioners being Indian importers, who have paid huge sums of money to the Chinese company, which is the only recognized company for the import of poppy seeds from China, would be put to severe financial difficulties if the extension is not granted. They may not be able to recover the advances paid.
+ Considering that the pandemic has had a debilitating effect on Indian businesses, including Indian importers and exporters, there seems to be no rationale whatsoever to refuse extension. Moreover, the threat that the Chinese company may not enter into further transactions with the Petitioners, cannot be said to be devoid of merit. Even a reasonable apprehension that the said Company may either refuse to export in future or impose stringent conditions would be sufficient to consider the case for extension. [para 15]
+ A perusal of the counter affidavit shows that the main reason for which the non-grant of extension is stated to be justified is that the lock-down in India was imposed from 24th March, 2020. The Government seeks to ignore the fact that the lock-down and the impediments caused due to the outbreak, could have been earlier in China and hence in the opinion of this Court, the non-grant of extension is not tenable. [para 16]
+ Court is of the opinion that the impugned order is not rational or logical, and also completely ignores the harsh realities of the commercial world, especially during the pandemic. [para 17
+ Court directs that the Petitioners, in all these petitions, are permitted to import the permitted and licensed quantity of poppy seeds in accordance with the guidelines on or before 31st March, 2021. It is made clear that no further extension shall be granted. [para 19]
+ The CBN is accordingly directed to validate the registration certificate issued in favour of the Petitioners in order to ensure that the imports can be executed and effected on or before 31st March, 2021. [para 20]
-Petitions disposed of :DELHI HIGH COURT
2021-TIOL-39-CESTAT-DEL
Jet Airways India Ltd Vs CC
Cus - The assessee, a scheduled airline operator is engaged in business of transportation of passengers and goods by air - In order to carry out the scheduled operations in India, assessee imported aircrafts and it is stated that when the engines/ auxiliary power units or other parts of the aircrafts began to develop defects, they were exported out of India for repairs - It is further stated that at times, the aircrafts also have to be exported out of India for repairs and maintenance - The repaired parts/ aircrafts are thereafter re-imported into India and at the time of re-import, Bills of Entry are filed - These Bills of Entry are assessed to basic customs duty and integrated tax at the applicable rates - The dispute is as to whether the assessee is justified in claiming exemption from payment of integrated tax under Exemption Notfn 50/2017 on re-import of repaired parts/ aircrafts into India during the period commencing August, 2017 to March, 2019 - There is no dispute that it is serial no. 2 of Exemption Notfn that is applicable to aircrafts/ parts re-imported into India after repairs - What would, therefore, be payable in terms of serial no. 2 would be the duty of customs on the fair cost of repairs carried out including cost of materials used in repairs, insurance and freight charges, both ways - Though the expression 'duty of customs' has not been defined under Exemption Notification but it can only have that meaning which has been assigned to the meaning of 'duty' under section 2(15) of the Customs Act - It would, therefore, mean the "duty of customs" leviable under Customs Act and any other duty not levied under Customs Act, would not be duty of customs for the purposes of any Notification issued under Customs Act - Integrated tax has also not been defined under Exemption Notification - It has been defined under section 2(12) of Integrated Tax Act to mean the tax levied under Integrated Tax Act - Integrated Tax is levied under section 5 of Integrated Tax Act and not under section 12 of Customs Act and therefore, cannot be called as duty of customs and Section 3 (7) of Tariff Act only provides the manner of collection of integrated tax by customs authorities in case of import of goods - The meaning assigned to duty of customs in Exemption Notification has to be understood - Mention of duty of customs, integrated tax and compensation cess in main body of Exemption Notification implies that the Government was conscious of distinction between the three - What is also important to notice is that after the phrase "duty of customs levied thereon which is specified in said First Schedule", there is a comma before "and the integrated tax, compensation cess leviable thereon" - This also clearly shows that duty of customs, integrated tax and compensation cess are three different entities - Above all, all the three, namely, duty of customs, integrated tax and compensation cess have been used in the main body of the same Exemption Notification - There is a specific reference to integrated tax in column (3) in connection with serial no. 1 (d) and to integrated tax and compensation cess in connection with serial no. 1(e) - There is, therefore, enough intrinsic evidence in Exemption Notification itself to show that integrated tax cannot be understood as duty of customs in Exemption Notification - The inevitable conclusion is that the absence of mention of integrated tax and compensation cess in column (3) under serial no. 2 of the Exemption Notification would mean that only the basic customs duty on the fair cost of repair charges, freight and insurance charges are payable and integrated tax and compensation cess are wholly exempted - The assessee has also through an application dated December 15, 2020 brought to the notice of Tribunal that it is currently undergoing a corporate insolvency resolution process as directed by the National Company Law Tribunal at Mumbai by its order dated June 20, 2019 and consequently an Interim Resolution Professional (IRP) has been appointed - The assessee is, therefore, being managed by Resolution Professional - Thus, the order passed by Commissioner (A) is, accordingly, set aside and it is held that the assessee is entitled to exemption from payment of integrated tax under Exemption Notification on re- import of repaired parts/ aircrafts into India: CESTAT
- Appeals allowed :DELHI CESTAT
