2021-TIOL-148-SC-ST

Pr.CCT Vs Film Nagar Cultural Center

ST - The assessee is a club - During the relevant period, the Central Excise Department observed that the assessee was providing services, facilities and advantages to its members in respect of (i) Membership Fee, Contribution to Building Fund, Membership and Sports Subscription, Sports Receipts, Card Room Charges, Guest Room Charges, New Year & Other Function Receipts, Guest Fee, Minimum User Charges, Tambola Receipts, Banquet Hall Receipts & Miscellaneous Receipts - Duty demand was raised with interest and penalties - On appeal, the Tribunal held that the amounts have been collected by the appellant from their own members - The assessee might be rendering same services to non-members as well and may also be generating a surplus - However, these factors do not change the character of the assessee as that of a club or association - As settled by the Apex Court in the case of State of West Bengal vs Calcutta Club Ltd and several previous judgments, no service tax can be levied on a club or association on the amounts collected by them from their own members either towards subscription or towards some other services because the club is held to be not a different legal entity but the same as that of the members - Since there is no distinction between the identity of the members and the identity of the club, there is no service provider - Service recipient relationship in such transactions - Hence, no service tax can be levied upon the assessee & the demands was quashed:

Held - There is 353-day delay in filing of appeal - As there is insufficient explanation for such delay, the appeal is dismissed on grounds of delay: SC LB

-Revenue's SLP dismissed :SUPREME COURT OF INDIA

2021-TIOL-736-HC-MAD-CUS

Lieutenant Colonel S Ganesan Vs CC

Customs - DRI received specific intelligence to the effect that a consignment of biscuits in four cartons covered under bill dated 09.04.2015 has arrived from Singapore and that foreign marked gold bars were concealed in the said consignment and the consignment would be stored in the cold storage shed in import examination area of the Air Cargo Complex, Chennai Airport and that it would be cleared by one Mr.K.Francis , Field Officer of the Security Agency being run by the appellant with the assistance of fellow security personnel - Recovery made of 6kg of foreign marked gold bars and which led to issuance of show cause notice dated 07.10.2015 to the appellant and five others - Insofar as the appellant is concerned, the Adjudicating Authority by order dated 29.04.2017, confirmed the proposal in the show cause notice and imposed penalty of Rs.20,00,000/- under Sections 112(a) and 112(b) of the Act and Rs.30,00,000/- under Section 114AA of the Act - Commissioner (Appeals) partly allowed the appeal by confirming the penalty to be under Section 112(a) of the Act and vacated the penalty under Section 114AA of the Act - Further appeal in Tribunal was futile, therefore, appeal before High Court.

Held : Main contention raised by the appellant is that the order passed by the Tribunal is a non-speaking order and that the Tribunal, being the final fact finding authority, should give considered finding, after delving into the evidences on record - Bench is of the considered view that there can be no quarrel over the settled position of law that an order passed by an appellate Tribunal can be held to be a perfunctory order if the Tribunal fails to consider the evidence being the final fact finding authority or if it has not discussed or analysed the moot point before it and only then such order would call for interference - After analysis of the entire factual position, the Tribunal concluded that the Revenue has made out a case by linking chain of events, phone calls etc. towards the scheme planned well in advance for executing anti-national activity by defrauding the Revenue, which was succinctly brought on record by the Adjudicating Authority in the form of unchallenged statements and the call records and, therefore, held that there is no reason to interfere with the orders passed by the lower authorities - Considering the manner in which the Tribunal has proceeded, it can hardly be said that the order is a non-speaking order - Adjudicating Authority was right in holding that the statements are un-retracted statements - This finding was considered for its correctness by the Tribunal and after examining the facts, it found that the statements remained un-retracted and if that is so, then there is no bar for the authority to rely on and refer to the said statement - This appeal does not raise any question of law, much less substantial question of law for consideration, as the entire matter is fully on facts and the order passed by the Tribunal would not require any interference - Appeal dismissed: High Court [para 23, 24, 33, 34, 35, 36]

- Appeal dismissed: MADRAS HIGH COURT

2021-TIOL-735-HC-KAR-CUS

Medical Relief Society of South Kanara Vs UoI

Cus - Writ Appeals are preferred against the common order dated 4.1.2018 passed by the Single judge.

Held: A plain reading of the Order passed by the first respondent clearly shows that proper opportunity has not been granted by the first respondent to the appellants in considering their case - Bare reading of the order clearly indicates that the first respondent has not considered the case of the appellants or not even discussed the materials placed by the appellants before it - The first respondent being the quasi-judicial authority was duty bound to consider the materials placed before it in its proper perspective and should have passed a speaking order assigning the reasons - The first respondent has failed to do so in the case on hand - Suffice to say that in the absence of considering the case of the appellant in its proper perspective by discussing the materials placed by it and assigned reasons, reached a conclusion has resulted in miscarriage of justice which has not been properly adjudicated by the Single Judge - Matter requires a fresh consideration by the first respondent, hence Writ Appeals are allowed by setting aside the order of the Single Judge - Remanded to the first respondent: High Court [para 9, 11, 12]

- Appeals allowed: KARNATAKA HIGH COURT

2021-TIOL-732-HC-ALL-CX

Choubay And Company (Agencies) Vs CGST, C & CE

CX - The refund application was filed asserting that the said sum was erroneously deposited as service tax on certain contract which were exempted from service tax by virtue of Mega Exemption Notification No. 25/2012-ST for the period September, 2012 to August, 2014 - Same was denied by Adjudicating authority - On appeal, the Commissioner (A), however, had simply ignored the said plea while rejecting the refund claim being time barred i.e. having been filed beyond time limit specified under Section 11B of Central Excise Act, 1944 - In appeal, the Tribunal had conveniently by-passed the said issue - The appellant have filed the appeal, mainly, on the ground that their refund claim was not time barred, as they had deposited Service Tax on activities which were exempted under the Mega Exemption and as such, the time limitation specified under Section 11B was not applicable - In fact, the amount which they had paid, was not Service Tax but was in the nature of deposit - There is no adjudication on the issue that, in case, the exemption sought by appellant under the Mega Exemption Scheme is allowed, the limitation for refund claim under Section 11B of the Act would not come into play - On the limited issue to examine the claim of appellant seeking for benefit of Mega Exemption Scheme, the matter is remanded to the Commissioner (A), as the validity of the finding on the said issue in the order of rejection has to be examined by him: HC

- Matter remanded: ALLAHABAD HIGH COURT

2021-TIOL-731-HC-MAD-CX

Devi Crop Science Pvt Ltd Vs CCGST & CE

CX - The case of petitioner is that they are both a trader as well as an importer - They are also manufacturer of fertilizers for the purpose of export - The revenue had levied duty with interest and penalty on petitioner by classifying the goods in question under Chapter 38 of Central Excise Tariff Act - According to petitioner, the goods will fall only under Chapter 31 - The stand of authority is that the issue of classification cannot be gone into in writ jurisdiction - However, the petitioner states that he is not entering into the merits of matter for the present - He would only confine himself to demonstrating the violation of principles of natural justice - In impugned order, it is seen that the authority had placed reliance on the pamphlet of petitioner for the purpose of classifying the goods in question under Chapter 38 - The petitioner would point out that this pamphlet that has been heavily relied upon by assessing authority has not been projected in SCN - It was also not a subject matter that cropped up during personal hearing - Only in the final order for the first time, the said pamphlet had been introduced - It is well settled that what is not finding place in SCN cannot be introduced for the first time in the final order - That would amount to taking the noticee by surprise - This is clear violation of principles of natural justice - So on this ground, impugned order is quashed: HC

- Writ petition allowed: MADRAS HIGH COURT

2021-TIOL-730-HC-MAD-CUS

Mohamed Siddiq Rahman Vs JCC

Cus - The petitioner challenges the impugned order whereby the first respondent had ordered confiscation of gold bars and also levied penalty on them - The primary ground taken is that the first respondent has violated principles of natural justice by not permitting the noticee to cross examine the co-noticees, even though their statements recorded under Section 108 of Customs Act were relied upon - The petitioner has not gone into the merits of matter - Since the impugned order is appealable, the petitioner is permitted to file an appeal before appellate authority: HC

- Petition rejected: MADRAS HIGH COURT

2021-TIOL-175-CESTAT-CHD

Maharaja Crane Services Vs CCGST

ST - The appellant is engaged in manufacture of tangible goods service - A SCN was issued on 6.4.2018 under section 73 of Finance Act, 1994 for demand of service tax pertaining to the period 1.7.2012 to 31.3.2013 by invoking extended period of limitation - In terms of section 73 of Finance Act, 1994, the demand can be raised within five years by invoking the extended period of limitation - Admittedly, the SCN dated 6.4.2018 was issued for the period 1.7.2012 to 31.3.2013 which is beyond the period of five years for the said demand - The Commissioner (A) has invoked the Limitation Act - The said provisions are not applicable to the facts of the present case - As the limitation prescribed for the matter is governed under section 73(1) of the Finance Act, 1994, therefore, the provisions of Finance Act, 1994 are applicable in the present case for limitation - Thus, the impugned order is set aside: CESTAT

- Appeal allowed: CHANDIGARH CESTAT