2021-TIOL-1343-HC-TELANGANA-ST
CC & CE Vs National Remote Sensing Agency
ST - Revenue is questioning the order passed by the Tribunal to the extent it held that the assessee had not resorted to wilful suppression with an intent to evade payment of service tax and thus the extended period of limitation prescribed u/s 73(1) of the FA, 1994 cannot be invoked and also held that since there is no evidence of wilful suppression of facts, provisions of Section 80 of Finance Act, 1994 can be invoked to waive the penalties imposed.
Held:
+ From the Order-in- Original, it is evident that the respondent had applied and obtained registration under various categories of services as guided by the authorities of the appellant-Revenue.
+ It is also evident that the authorities, who informed the respondent that its activities would get covered by photography service, scientific or technical constancy service and commercial training and coaching service etc., are guided by Revenue considerations alone and they have not kept in mind the nature of activity undertaken by the respondent – National Remote Sensing Agency (NRSA) and area of operation of its activities, apart from the important role it plays in the affairs of this nation. [para 22]
+ Upon obtaining registration, the appellant-Revenue saddled the respondent-NRSA with the show cause notice for the period prior to registration by invoking the provisions of Section 73(1)(a) of the Finance Act.
+ To justify the action of invocation of extended period of limitation, it has been stated that since, the respondent has been rendering taxable service and failed to observe statutory provisions for registration and payment of service tax, there was suppression of material facts. [para 23]
+ Though the respondent is established as an autonomous body, the same for all purposes like administrative control, its financial needs etc., looks only to the Government. [par 26]
+ There is no incentive for the respondent-NRSA to resort to evasion of tax which could result either in the profits soaring higher or any individual being benefited. On the other hand if there existed a liability, the respondent could have factored the same in its budget proposals and sought for release of more funds from the Government to discharge its liability. Thus, it is only flow of funds from one pocket to the other pocket of the Government and would not result in any gain either to the organization or to any individual.
+ It is absurd to even suggest that the respondent had suppressed facts with an intent to evade payment of tax, and mulct it with payment of service tax by invoking the extended period of limitation. [para 27]
+ It also needs to be noted that organizations like respondent-NRSA are run by Scientists, Academicians and Administrators. Even if there has been any non-payment of service tax, the same cannot be alleged to be by fraud, collusion or wilful misstatement or suppression of facts.
+ Attributing fraud, collusion, suppression or wilful mis-statement to the Scientists and Academicians, will have a demoralizing effect, would not be in public interest. On the contrary, it could contribute to Brain drain from the country. [para 28]
+ Court also records its displeasure in the manner in which the approval was accorded by the authority for filing this appeal, without due consideration of the fact that the activity of the respondent-NRSA involves Nations Safety and Security and that it is not a private commercial concern. [para 30]
+ No substantial question of law arises for consideration in this appeal. Appellants shall pay costs of Rs. 10,000/- to Telangana High Court Legal Services Committee within six weeks. [para 33, 34]
- Appeal dismissed : TELANGANA HIGH COURT
2021-TIOL-1337-HC-MAD-CUS
Aabis International Vs CC
Cus - Import of Areca Nuts - Impugned order merely raises a demand of a sum of duty rejecting the exemption claimed and no reasons are set out therein for the rejection of the exemption - On this very ground, Bench could well set aside the impugned order as being bereft of reasons and non-speaking - Reference need to be made to the celebrated judgment of the Supreme Court in the case of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner and Others (1978 AIR 851) to the effect that an order, to be valid, has to speak for itself, containing reasons to sustain the same; it has to stand or fall on its own merit; it cannot be bolstered or supported by reasoning supplied as an afterthought, either by way of oral argument or by way of counter, as in the present case - To quote the Bench, 'Orders are not like old wine becoming better as they grow older': High Court [para 8] Cus - Import of Areca Nuts - Denial of Customs exemption Notification 26 of 2000 - The certificate of origin (COO) in this case as well as the clarification obtained by the petitioner have been obtained from the Assistant Director acting for the Director General of Commerce in the Department of Commerce, Colombo - The designated Authority under the Indian Sri Lankan Free Trade Agreement (IFSTA) is the Director General of Commerce, Department of Commerce, also the authority which has issued the COO and subsequent clarification - The objection of the respondents in regard to the COO as well as their contention that the clarification dated 19.03.2021 ought to have been received 'through proper channel' is hyper technical, to say the least - Petitioner has satisfied the requirement of production of a valid COO in this case - Department is not foreclosed from making further enquiry in regard to any apprehensions that they may still continue to harbour concerning the COO - Authorities under a Central enactment are expected to adopt consistent views in regard to similar/identical transactions, especially when they relate similar/identical fact and legal patterns. Diametrically opposite conclusions are not expected to be drawn on identical questions of fact and law by statutory authorities - Writ petition is allowed: High Court [para 21, 22]
- Petition allowed: MADRAS HIGH COURT
2021-TIOL-1336-HC-MAD-ST
VD Swami And Company Pvt Ltd Vs Dy.CCE & ST
ST - Petitioner has challenged impugned order dated 23.02.2016 pertaining to the notice issued u/s 87(6) of the Finance Act, 1994 - Court had passed an interim order on 12.06.2017 directing the petitioner to approach the 1st respondent and make their objections in writing within a period of four weeks and the respondent was directed to pass appropriate orders on merits and in accordance with law, after hearing the petitioner as well, within a period of four weeks thereafter - since the respondents have considered the grounds raised by the writ petitioner and passed an order on 18.08.2017, the petitioner is at liberty to redress his grievances, if any, that exist with reference to the subsequent order passed by the respondents in the manner known to law - writ petition stands disposed of: High Court [para 3, 4]
- Petition disposed of: MADRAS HIGH COURT
2021-TIOL-1335-HC-KAR-ST
Pr.CCT Vs Mphasis Ltd
ST - SVLDRS, 2019 - Designated Committee under the Scheme had passed an order on 13.03.2020 and directed the respondent herein to pay tax to the tune of Rs. 36,54,269/- - Petitioner had challenged the said order and the Single Judge had observed that in view of the disputed claims with regard to taking into account the tax claimed to have been paid by the petitioner, it would be just and appropriate to direct the Committee to grant an opportunity of hearing to the petitioner and pass appropriate orders afresh - Writ appeal filed against this order.
Held : Division Bench is of the considered opinion that the Order passed by the Single Judge does not warrant interference; that since the Scheme has come to an end, this Court is permitting the Committee under Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019, to decide the matter, as directed by the Single Judge, within a period of eight weeks - writ appeal is disposed of: High Court [para 4, 5]
- Appeal disposed of: KARNATAKA HIGH COURT
2021-TIOL-333-CESTAT-AHM
Om Drishian International Ltd Vs CC
Cus - The issue arises is that whether the appellant's refund claim in respect of SAD paid is admissible under Notification No. 102/2007-Cus. and whether the time period of one year as provided under Section 27 shall be reckoned from the date of actual payment of SAD or from the finalization of assessment - The assessee though paid SAD but this payment is under provisional assessment of "Bill of Entry" - Admittedly, the same bill of entry have been finalized when the appellant has paid differential amount of SAD therefore, even though the payment was made on 29.8.2013 even the said payment has been finalized with the final assessment of Bill of Entry - Therefore, the date of finalisation of payment should be from the date of finalisation of Bill of Entry, i.e., 07.1.2017 - If this is so, then one year period will start from date of finalization of Bill of Entry - The refund claim was filed on 18.1.2017 which is within one year - The Delhi High Court in the case of PIONEER INDIA ELECTRONICS (P) LTD. 2013-TIOL-731-HC-DEL-CUS considering the same issue held that one year period should be calculated from the date of finalization of the assessment in a case where earlier the bill of entry has been provisionally assessed - The refund claim was filed within one year from the date of finalization therefore, it is not time-barred: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2021-TIOL-332-CESTAT-BANG
Swarna Techno Construction Pvt Ltd Vs CCT & CE
CX - Appeal is directed against impugned order passed by Commissioner (Appeals) dated 04.09.2020 whereby the appeal of the appellant is rejected - The Commissioner (Appeals) vide his order dated 30.12.2014 rejected the appeal of appellant but the said O-I-A was not supplied to appellant and hence, the appellant could not file appeal against the said order before CESTAT - Thereafter, suddenly after more than 4 years, a letter was issued to the appellant directing him to pay the adjudication levies - By this letter only, appellant came to know that Commissioner (Appeals) has passed the order rejecting his appeal - Appellant could get the copy only from office of Commissioner (Appeals) on 29.03.2019 and thereafter immediately, they filed the appeal before Tribunal on payment of 10% of disputed duty under Section 35F of Central Excise Act, 1944 which was admitted by Tribunal by holding that the appeal is filed within time - The authorities below has wrongly considered the said refund under Section 11B of Central Excise Act whereas the appellant has sought the refund on the ground that once he has filed the appeal before Tribunal on payment of 10% duty then the recovery is automatically stayed and the Department cannot retain the amount forcibly recovered from the bank account of the appellant during the pendency of appeal before Tribunal - The retention of money recovered from his bank account is without authority of law and is hit by Article 265 of the Constitution of India read with Section 35F of Central Excise Act, 1944 - It was directed to the Revenue to refund the excess pre-deposit as claimed by appellant - The impugned order is not sustainable in law more so when the appeal of appellant is already pending for disposal before Tribunal: CESTAT
- Appeal allowed: BANGALORE CESTAT
2021-TIOL-331-CESTAT-BANG
Suzlon Energy Ltd Vs CST, CCE & CT
ST - Issue relates to the request of appellant for condonation of delay in filing the refund claim under Notification No. 12/2013-S.T. - Same was rejected - Appellant in their letter filed along with refund claim application have given specific reasons explaining the delay but the Assistant Commissioner did not consider those reasons and simply observed that they are not genuine - The said Notification itself gives him a discretion to condone the delay for bona fide reasons and the reasons given by appellant are very much genuine - The issue is squarely covered by appellant's own case for the previous period as well as the decision of Tribunal in WS Industries (India) Ltd 2019-TIOL-3628-CESTAT-HYD and hence by following the same, impugned order rejecting the refund claim on time-bar is not sustainable in law, same is set aside - Matter remanded to the original authority for deciding the refund claim on merit: CESTAT
- Matter remanded: BANGALORE CESTAT |
