2021-TIOL-18-AAAR-GST

Sumeet Facilities Ltd

GST - The appellant is in appeal against the order in 2020-TIOL-291-AAR-GST on the application for advance ruling filed by appellant - They are engaged in supplying services of Waste Management, Mechanized Road Sweeping, Business Support Staffing and other services relating to Integrated Facility Management to private sector entities as well as public sector entities and Governmental organizations - On 10th March 2020, they have entered into two separate Service Agreements for supply of waste collection, segregation, treatment, transportation and disposal services for the Greater Chennai Corporation - They had sought Advance Ruling as regards to the classification for supply of services in terms of notfn 11/2017- C.T.(Rate) and whether the said activities carried out by them is exempted from Goods and Services Tax in terms of entry no.3 of Notfn 12/2017-Central Tax (rate) - The AAR pronounced a ruling that the supply of services by applicant relating to waste collection, segregation, treatment, transportation and disposal services under the Service Agreements entered with both concessionaries are classified under SAC 9994 in terms of Notfn 11/2017 C.T. and the activity undertaken by applicant under Service Agreements entered with both concessionaries are not exempted from Goods and Services Tax in terms of entry no.3 of Notfn 12/2017- Central Tax (rate) - The submissions made by appellant have already been looked into by AAR and there is nothing new which has been brought to persuade the AAR - The case laws and arguments pertaining to Service Tax law are specific to that law as there were provisions catering specifically to subcontractors whereas in GST the provisions are very restricted - Exemption benefit are not available to sub-contractors ex facie since those entries under 12/2017 specific to subcontractors occur only at two sl. Nos. that too pertaining to works contract - They restrict the exemption to only three sub clauses of sl. No. 3, performed by main contractor and NOT extended to all the activities performed as a part of works contract - This itself proves that the purpose of exemption notification unless specifically provided, cannot be extended to subcontractors automatically on par with service suppliers (main contractors) - Appellant is a totally different entity than from concessionaires in as much as they are all separately incorporated and separately registered with GST and they are distinct persons as per GST Act - So, on the basis of holding equity, they cannot claim to be on par with the concessionaire, who otherwise too are ineligible for the exemption, being the provider of composite supply of goods and services to GCC anyway - No reason found to interfere with the order of Advance Ruling Authority in this matter: ARA

- Appeal disposed of: AAAR

2021-TIOL-134-AAR-GST

Analytica Chemie Inc

GST - Pharmaceutical Reference Standards (Prepared Laboratory Reagents) imported and supplied by the Appellant and classified under Tariff Item 3822 00 90 of the Customs Tariff Act, 1975 is covered under Entry No. 80 of Schedule-II to Notification No. 1/2017-Integrated Tax (Rate) @ 12% - Karnataka AAAR ruling in M/s. Chromachemie Laboratory Pvt. Ltd. = 2020-TIOL-06-AAAR-GST relied upon: AAR

- Application disposed of: AAR

2021-TIOL-1119-HC-MP-MISC

Manish Sharma Vs State of Madhya Pradesh

CrPC - Bail - The complainant has filed the written complaint before police station mentioning therein that he does the work of taxation and GST Collection and he was well introduced with the applicant who was working as Broker of share market - The allegation found against the applicant is that he induced the complainant to invest himself and others in his scheme to get higher benefit but he neither fulfilled his promise nor returned their money - As per the applicant, the complainants have invested in share market scheme and he is not responsible for their loss - He also pointed out the fact that the entire alleged sum has not been credited in his bank account through the complainant and he is ready to deposit the deposited sum under protest - As per the statements of complainants and bank statement, prima facie, Rs. 17,00,000/- were found deposited in the account of applicant by the complainants - The co-accused has already been released on bail by trial Court - Investigation is completed, charge-sheet has been filed and on account of COVID-19 pandemic, there is every possibility of consuming time in conclusion of trial - The applicant has no criminal past, therefore, there is no possibility of his absconding or tampering with the evidence of prosecution witnesses - The court is inclined to grant bail to the applicant subject to depositing total amount of Rs. 17,00,000/- in three installments before the trial Court - Therefore, the first application for bail under Section 439 of Code of Criminal Procedure filed on behalf of applicants is allowed - It is directed that the applicants shall be released on bail on fulfilling the conditions and furnishing his bail bond with two solvent sureties in the like amount of Rs. 50,000/- each to the satisfaction of concerned trial Court for his appearance before Trial Court on the dates given by concerned Court: HC

- Application allowed: MADHYA PRADESH HIGH COURT

2021-TIOL-1116-HC-MAD-VAT

P Rajendran Vs CCT

Whether when imposing penalty under Section 27 of the TNVAT Act, the same will have to form part of the assessment order and cannot be levied though a separate order - YES: HC

- Writ petitions allowed :MADRAS HIGH COURT

2021-TIOL-1115-HC-AHM-CUS

Lazio Exports Vs UoI

Cus - It is the grievance on the part of the applicant that when specific details were sought for about the pending matter under the Right to Information Act by application dated 15.06.2020, it was realized that pendency of Departmental Appeal was the reason for not proceeding with the matter and for not complying with the directions issued by this Court – Therefore, the present Civil Application.

Held: [para 5, 6, 8]

+ From the time this Court had disposed of the matters, there was no communication on the part of the respondents until the applicant chose to communicate on dated 10.06.2020. The only aspect which has been referred to is about the pendency of Departmental Appeal and the transfer of the matter to the callbook by Principal Commissioner of Customs.

+ Court was aware of the pendency of Special Leave petition No. 18214 of 2017 before the Apex Court, as has been referred to in the case of M/s. Parimal Textiles vs. Union of India , = 2017-TIOL-2395-HC-AHM-CX . This very issue was contended by the Department and the Court had negated the same in Special Civil Application No. 16615 of 2020 vide order dated 12.02.2021.

+ This direction was also carried to the Apex Court by filing Special Leave Petition No. 18214 of 2017 and the Apex Court has not entertained the same.

+ As this Court has kept open all the legal issues, the Central Government Standing Counsel, on taking instructions, submitted that the matter shall be decided within a period of 8 weeks.

- Applications disposed of: GUJARAT HIGH COURT

2021-TIOL-1114-HC-AHM-CUS

Devharsh Infotech Pvt Ltd Vs UoI

Cus - Notification No. 102/2007-Cus - Petitioner is seeking refund from the respondents of SAD of customs after the sale of imported materials into the domestic tariff area by the unit of petitioner-company in the Surat Special Economic Zone - Refund was rejected by the Specified Officer of the Surat Special Economic Zone on the ground that there are no provisions in the Special Economic Zone Act, 2005 and the Special Economic Zone Rules, 2006 for refund of the customs duty paid - Appellate Commissioner held that the Specified Officer could not have adjudicated the refund claim and should have referred to the Development Commissioner or the Board of Approval or the Central Government - Orally it was conveyed to the petitioner by the respondent No. 3 that appeal was preferred before the CESTAT against the order in appeal and, therefore, petitioner obtained the copy of memo of appeal and filed an appeal before the CESTAT - However, the CESTAT had disposed of the appeal of the department holding that vide amendment dated 5.8.2016, the jurisdictional Central Excise and Customs authorities have been empowered to deal with the refund cases and accordingly, it remanded the matter to the original adjudicating authority to decide the refund claims, offering the opportunity of personal hearing to the party - Based on the said order, the company followed up with the respondents by writing on 1.11.2018 again, giving reference of the order of the CESTAT and sought the refund - This also has not been responded to and, therefore, it approached High Court on 24.4.2019.

Held : [para 17 to 19]

+ From March 31, 2017 [Circular No. 11/2017-Cus ] issue as to who could adjudicate in the matter of refund, also had been unequivocally clarified without any semblance of doubt.

+ There was no earthly reason as to why thereafter also, when the request was made in the year 2018, the same has not been considered by the authority concerned, when the officer had been provided with the legal backing they needed for discharging their statutory obligations.

+ It is unfathomable as to why the litigant be tossed from one office to another and wait for their legitimate dues only because, there was initial uncertainty in the minds of officers. There is no semblance of reason why that has not happened in post judgment period of CESTAT. This can surely amount to judicial indiscipline when appeal was of the department and not challenged further.

+ Petition is allowed. Bench directs the respondents to decide refund claim of the petitioner without any further delay within six weeks and the same shall be, once decided, paid with interest. It shall also regard disbursement by electronic mode through NEFT.

Cost

+ Noticing the apathy and carelessness on the part of the officers in dealing with this issue, Bench deems it appropriate that the erring persons need to be identified for recovery of the cost.

+ In absence of any other allegations of moral turpitude, Bench accedes to the request of Standing Counsel and direct the officer at the helm of affairs to contemplate stringent actions against erring officers who attempt to shirk their responsibilities at the cost of the citizens.

- Applications disposed of: GUJARAT HIGH COURT

2021-TIOL-277-CESTAT-KOL

Steel Authority of India Ltd Vs CCE & ST

CX - The appellant manufactures various dutiable iron, steel and allied products - For such manufacture a large number of capital goods and input materials are required - A SCN was issued alleging that the appellant had availed cenvat credit of specified duty paid on inputs and input services which were used in or in relation to manufacture of hard coke and mixed coke, which were chargeable to nil rate of duty during the period July 2010 to February 2011, without maintenance of separate inventory and accounts of inputs and input services and that though the appellant had opted to follow the option of sub-rule 3(ii) and exercised option as per sub-rule (3A), on scrutiny it was found that several specified provisions of Rule 6(3A) had not been followed - Therefore, the option exercised being incomplete, improper and not as per prescribed provisions, was unacceptable and the appellant was liable to pay the amount equal to 5% of the price/value of coke cleared in terms of Rule 6(3)(i) of Cenvat Credit Rules along with interest under Rule 14 of Cenvat Credit Rules, read with Sections 11A and 11AB respectively of the Central Excise Act and the appellant was liable to penalty under Rule 15 of Cenvat Credit Rules r/w Section 11AC of the said Act - The issue is no longer res integra - The Telengana High Court, in Tiara Advertising has held that the appellant is found to have availed Cenvat credit wrongly, Rule 14 of Cenvat Credit Rules empowers the Authority to recover such credit which had been taken or utilized wrongly, along with interest and that the statutory scheme does not vest the Revenue authorities with the power of choice under, inter alia, Rule 6(3)(i) of Cenvat Credit Rules - This decision has been followed by Division Bench of Tribunal in case of Tata Steel Ltd. wherein it has been held that the demand confirmed under Rule 6(3)(i) by Adjudicating Authority/Commissioner (Appeals) by choosing such option in SCN cannot be sustained - It is an undisputed fact that the appellant had reversed the entire amount of Cenvat credit as required under Rule 6(3)(ii) read with Rule 6(3A)(c) of Cenvat Credit Rules - The demand confirmed by lower appellate authority is unsustainable - The impugned order of Commissioner (Appeals) is therefore set aside: CESTAT

- Appeal allowed: KOLKATA CESTAT