2021-TIOL-908-HC-MAD-ST
BNP Paribas Global Securities Operations Pvt Ltd Vs Assit.CGST & CT
ST - Refund - Petitioner submits that Rule 2(h) of Notification No.27/2012-CE(NT ) dated 18.06.2012 contemplates the amount that is claimed as refund under Rule 5 of the CCR shall be debited from the CENVAT credit account at the time of making the refund claim - It is further submitted that these refund claims have been filed in time but after the GST was implemented - For the exports prior to implementation of GST, refund claims were filed within the period of one year from the date of exports in terms of Rule 5 of CENVAT Credit Rules, 2004 read with the above notification; that the petitioner has not transferred the proportionate amount of Rs.6,62,67,726/- into GST and, therefore, the reasonings adopted for allowing the refund claim for a sum of Rs.1,65,14,132/- vide Order-in- Original No.81 of 2018 dated 25.10.2018 has to be applied mutatis mutandis - Petitioner submits that the total value of Input Tax credit which was un-utilized was Rs.6,62,67,726/- which was not taken into GST Account by following the transfer application and, therefore, the petitioner was entitled to refund claim of the amount even though the petitioner could not debit the duty in the ST-3 return in view of the change in the law - stand of the respondent revenue while denying refund is that the claimant has not debited the amount that is claimed as refund before or at the time of making the claim; that reversal made in their internal accounting documents cannot be treated as a valid documentary evidence for processing the refund claim inasmuch as the same is not a statutory document under Service Tax Act & Rules to link up with the refund claim on hand.
Held: Refund of CENVAT credit under Rule 5 of the CENVAT Rules 2004 read with Notification No. 27/2012 -CE(NT) dated 18.06.2012 is a legitimate export incentives given to an exporter of services and goods - Therefore, such legitimate export incentives given to exporters of goods or services cannot be denied merely because of intervening changes - Considering the fact that the petitioner has also not been able to utilize the credit of duty under the provisions of GST which came to be effected from 01.07.2017, legitimate export incentives cannot be denied to the petitioner - No merits in denying the benefit of refund claim filed by the petitioner under Rule 5 of the CENVAT Rules, 2004 - The respondent shall, therefore, refund the amount to the petitioner within a period of six weeks - Writ Petitions stand allowed: High Court [para 8 to 10]
- Petitions allowed: MADRAS HIGH COURT
2021-TIOL-907-HC-MAD-ST
M Arun Vs Senior Intelligence Officer
ST - Constitutional validity of the levy of Service Tax on transfer of right to use intellectual property rights - There is a presumption as to the validity of a statute, unless it is struck down as ultra vires - Writ appeal has become infructuous, as the summons issued to the appellant has worked by itself and the appellant has also appeared before the respondent - Writ Appeal is closed: High Court [para 3 to 5]
- Appeal disposed of: MADRAS HIGH COURT
2021-TIOL-906-HC-MAD-CUS
India Pistons Ltd Vs JCC
Cus - Petitioner's contention is that the impugned order has been passed omitting to take note of the Export Obligation Discharge Certificate (EODC) - Bench had opined that if the authority were of the view that the document had been omitted to be taken note of, by inadvertence, he could report the same to the Court on the next occasion - Counsel for Revenue produced instruction dt. 27.03.2021 to the effect that the EODC was indeed omitted to be taken into account and thus the demand raised under the impugned order would have to be reversed.
Held : Impugned order-in-original is quashed and the writ petition is allowed: High Court [para 2, 3]
- Petition allowed: MADRAS HIGH COURT
2021-TIOL-219-CESTAT-AHM
AK Fashions Vs CC
Cus - The appellant is in appeal against impugned order whereby the Commissioner (Appeals) has rejected the appeal on the ground that as regard enhancement of custom value of imported goods, the appellant has given their consent to enhance the value - Though the appellant, at the time of clearance of goods, given consent for the enhancement of value, however at the same time they have protested the enhancement by requesting for speaking order vide letter dated 14.05.2019 and a reminder letter dated 27.05.2019 - Thereafter, the assessing authority passed a speaking order dated 15.05.2019 - The appellant has right to appeal against the speaking order - Therefore, it cannot be said that only because the appellant has given the consent, appellant cannot challenge the enhancement of value - However, it is observed that the Adjudicating Authority/ Assessing Authority while passing the speaking order neither supplied any documentary evidences in support of enhancement of the value to the appellant nor given any personal hearing to the appellant - There is a clear violation of principles of natural justice on the part of the assessing authority - The speaking order, which was passed in violation of principles of natural justice, will not sustain - Matter remanded to the Adjudicating Authority for passing a de- novo speaking order: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2021-TIOL-218-CESTAT-BANG
Harman Connected Services Corporation India Pvt Ltd Vs CCT
ST - The appellant had filed a refund claim towards refund of service tax paid on various input services set to have been used for authorized operations of SEZ units in terms of Notification No. 12/2013-S.T, as amended by Notification No. 07/2014-ST, Notification No. 02/2016-S.T. and Notification No. 30/2016-S.T. - Same was partly rejected on the ground that certain specified services were not mentioned in Approved List issued by Development Commissioner of SEZ - There is no dispute that the said services have been used by appellant for authorized operation in the SEZ - Not mentioning the said services in the Approved List is only a technical defect and it should not debar the substantive benefit to the appellant who has utilized those services for carrying out authorized operation - Both the input services have been subsequently included by Development Commissioner of SEZ in the List of default services - This issue has been considered by Tribunal in number of cases - The impugned order is not sustainable in law and the impugned order is set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT
2021-TIOL-217-CESTAT-BANG
Keltech Energies Ltd Vs CCE & CT
CX - The appellant is engaged in manufacturing and clearing of excisable goods and are availing the benefit of cenvat credit facility - During verification of record of appellant, it was observed that the appellant has availed irregular cenvat credit on service tax paid on the freight, on final product cleared from their factory gate to the place of buyer for the period March 2005 to May 2005 - Thereafter, a SCN was issued to the appellant proposing to disallow the cenvat credit - On an identical issue, this Tribunal in the case of Bharat Fritz Werner 2019-TIOL-3492-CESTAT-BANG has remanded the case back to the original authority to pass a fresh order after examining various documents for the disputed period - By relying on the ratio of said decision, the impugned order is set aside and matter remanded to the original authority to pass a fresh order after examining the various documents for the disputed period in the light of the Circular issued by the Board dated 08/06/2018: CESTAT
- Matter remanded: BANGALORE CESTAT |
