2021-TIOL-458-HC-MAD-CUS

CC Vs Premier Tours And Travels Chennai Pvt Ltd

Cus - The Revenue filed the present appeal to contest the Tribunal's findings in not granting the benefit of redemption based on its earlier decisions - The Tribunal, in its order, rejected the case of the assessee upholding the orders passed by the Authorities stating that the travellers cheques are offending goods and hence liable for confiscation - However, the Tribunal permitted redemption of the travellers cheques, by placing reliance on the decision of the Tribunal in the case of Savier Poonolly vs CC, Chennai. Held - It is seen that the Tribunal's decision in Savier Poonolly vs CC, Chennai had been reversed by the High Court in Commissioner of Customs vs Savier Poonolly - Hence the Tribunal erred in permitting redemption of the offending goods - Hence the order of the Tribunal to the extent of permitting redemption of the goods, is set aside - Substantial question of law is answered in favor of the Revenue: HC

- Revenue's appeal allowed: MADRAS HIGH COURT

2021-TIOL-110-CESTAT-MUM

Waterflo Piping System Vs CCE & ST

CX -  Appellants have applied under the Sabka Vishwas Legacy Dispute Resolution Scheme, 2019 with the competent authority and the said authority has already issued discharge certificates in these matters in the form of SVLDRS- 4 for full and final settlement of tax dues under Section 127 of the Finance Act, 2019 r/w Rule 9 of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019. Held:  Appeals filed by the Appellant before this Tribunal, therefore, cease to exist and are accordingly dismissed as deemed to be withdrawn: CESTAT [para 2]

- Appeals dismissed: MUMBAI CESTAT

2021-TIOL-109-CESTAT-MUM

Thane Municipal Corporation Vs CCGST & CE

ST - Application filed for condonation of delay of 367 days in filing the appeal. Held: Law as stated by the Apex Court State Of Haryana Vs Chandra Mani - 2002-TIOL-443-SC-LMT-LB, Amar Nath Yadav [2014 (302) ELT 26 (SC)], The State of Madhya Pradesh vs Bherulal  - 2020-TIOL-160-SC-MISC is very succinct and clear that while examining the applications for condonation of delay, some leeway should be given to the government bodies and agencies, however this does not imply condoning the inordinate and unexplained delays - Further, in all the cases decided by the Apex Court, the appellant government is against the private persons, none of the case is one where the Appellant is one government body and the respondent is the Central Government in a matter of taxation - Undoubtedly, Appellant here, seeking condonation of delay is Thane Municipal Corporation, a government body constituted under Article 243 of the Constitution and the respondent is Central Government - When both Appellant and Respondent are Government and government body the above said decisions do not decide the issue - Bench also observes from the impugned order that huge demand of Rs 46,17,13,528/- (Service Tax) + Rs 46,17,13,528/- (Penalty) + Interest has been made against the appellant even without receiving any reply or conducting an effective personal hearing in the matter - From the facts, it is evident that the appellant was nowhere aware of the completion of adjudication proceedings and the order passed against them - On the passing of the order, as per the affidavit filed by the appellant, they for the first time came to know about the order when the same was forwarded to them as attachment to email dated 14.01.2019, i.e. more than three months from the date of order i.e. 17.08.2018 or 23.08.2018 shown as date of dispatch - So the appellants were definitely not in position to act on the order - Thereafter, there was Lok Sabha Elections announced and the officers of the appellant were busy with the elections as they were assigned election duty - After the declaration of the results on 27.05.2019, in fact, appellant seriously pursued the filing of appeal - It is also worth noting that the certified copy of the impugned order was received by the appellant only on 25.11.2019, and the appeal was filed by the Appellant on 17.01.2020. By issuing the certified copy of impugned order on 25.11.2019, respondent department itself agrees that the impugned order in appealable form was in fact served on 25.11.2019 - If that was not the case and the department was of the view that the impugned order had been served on the appellants when it was issued on 23.08.2018, they should have proceeded to recover the sums due from the appellant after expiry of the period of appeal - On the contrary, department chose to stay mum - There is definitely delay in filing of the appeal but delay has been explained by the appellants in their affidavit - Delay in filing of the appeal is condoned: CESTAT [para 9, 10]

- Application allowed: MUMBAI CESTAT

2021-TIOL-108-CESTAT-MUM

Responsive Industries Ltd Vs CCGST & CE

CX - Miscellaneous application filed on 15th October 2020 seeking an early hearing in the matter of appeal filed - Application was first listed on 26th October and on the request was adjourned to 03.11.2020 - On 02.11.2020, appellants filed a letter seeking a three month adjournment - accordingly, the matter was adjourned to 29th January 2021 - Via email sent on 29th January the counsel for the appellant again sought an adjournment for three months stating that he was not well. Held:  It is quite evident that the appellants/counsel for the appellants are only seeking adjournments to avoid the hearing on this application for early hearing - Can there be any ground for early hearing to be granted when the appellants/counsel for appellants, have them sought adjournment to the hearing of application for early hearing for more than six months - Country is facing the pandemic situation on account of COVID-19, and the tribunal is hearing the matter in virtual mode, whereby the counsel has not even to travel upto the premises of this tribunal for hearing in the matter and can attend the hearing from the comfort of her residence/office - Casual approach on the part of appellant/appellant's counsel in attending the hearing in virtual mode in the present case is quite apparent, and the adjournment of nearly six months sought upto now itself goes contrary to the request for early hearing of the appeal - Application for early hearing is dismissed and the appeal should be listed in normal course: CESTAT [para 6, 7, 8, 11]

- Application dismissed: MUMBAI CESTAT

2021-TIOL-107-CESTAT-DEL

Honda Cars India Ltd Vs CCGST, C & CE

CX - Assessee is in appeal against demand of reversal of CENVAT Credit in terms of Rule 6(3A) of CENVAT Credit Rules, 2004 - The essential issue relates to interpretation of term "CENVAT Credit taken on input services during financial year" appearing in clause ( c) (iii) of sub-Rule 3A of Rule 6 of CENVAT Credit Rules, 2004 as they were prior to amendment on March 01, 2016 - This issue has been deliberated and decided in the decision of Tribunal in case of Reliance Industries - Said decision was challenged by Revenue before the High Court of Ahmedabad - After deliberating on the issue vide interim order dated January 23, 2020, the High Court admitted the Appeal - The said decision in Reliance Industries Ltd. was also followed by Tribunal in case of E-Connect Solutions (P) Ltd. 2020-TIOL-1593-CESTAT-DEL and thereafter in assessee's own case - The assessee have been from time to time submitting intimation under Rule 6(3A) of CENVAT Credit Rules, 2004 showing full calculation of the manner in which they have arrived at the reversal of CENVAT Credit - It is apparent that there was no suppression or mis-declaration on the part of assessee and therefore, the extended period of limitation could not have been invoked - It is also seen that with effect from March 01, 2016, the law has been amended clearly specifying that reversal of CENVAT Credit only on common inputs service is required - Rule 6 of CENVAT Credit Rules, 2004 deals solely with the situation of CENVAT Credit resulting from exempted services and exempted products - The rule itself is clearly designed to deny partial credit of CENVAT credit taken on inputs/input services used in exempted goods and services - The CENVAT credit of other kind has no relevance in this rule - It is obvious that reference to CENVAT Credit in said Rule would be reference to CENVAT Credit on common input services which are used for exempted products and services as well as for dutiable products and services - The impugned order is set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2021-TIOL-105-CESTAT-DEL  

MP Poorva Kshetra Vidyut Vitran Company Ltd Vs Pr. CGST & CE

ST - The appellant has sought quashing of impugned order by which the demand of service tax has been confirmed with interest and penalty - The period of dispute is from July, 2012 to March, 2016 and the dispute raised is as to whether service tax is payable on the amount of liquidated damages/penalty collected by appellant for non-compliance of terms of procurement contracts and the amount collected towards theft charges from consumers for un-authorized use of electricity or for tampering of meters - The appellant is a wholly owned undertaking of Government of Madhya Pradesh and is engaged in distribution of electricity in eastern area of the State - The "transmission or distribution of electricity by an electricity transmission or distribution utility" is included in the negative list of services in section 66D(k) of Finance Act, 1994 - During audit, it was noticed that the appellant was collecting an amount towards liquidated damages from contractors and suppliers when they failed to ensure compliance of terms of contract within the time stipulated and the appellant was also recovering amount from consumers for theft and un-authorized use of electricity - In the course of business, certain contracts were executed by appellant in which a clause provided for levy of penalty for non-observance/breach of the terms of contract - Section 66D of Finance Act provides for a negative list of services - This negative list comprises, amongst others, in sub-clause (k), "transmission or distribution of electricity by an electricity transmission or distribution utility" - Whether the appellant is providing a "declared service" contemplated under section 66E(e) of Finance Act, which service became taxable w.e.f July 1, 2012 - It is clear that where service tax is chargeable on any taxable service with reference to its value, then such value shall be determined in manner provided for in (i), (ii) or (iii) of subsection (1) of section 67 - Each of these refer to "where the provision of service is for a consideration", whether it be in form of money, or not wholly or partly consisting of money, or where it is not ascertainable - In either of cases, there has to be a "consideration" for the provision of such service - Explanation to sub-section (1) of section 67 clearly provides that only an amount that is payable for taxable service will be considered as "consideration" - This apart, what is important to note is that the term "consideration" is couched in an "inclusive" definition - It is not possible to sustain the impugned order confirming the demand of service tax on the amount collected towards liquidated damages and theft of electricity, same is set aside: CESTAT

- Appeal allowed: DELHI CESTAT