2021-TIOL-1725-HC-KERALA-CUS

Modi Aluminium Traders Vs CC

Cus - The petitioner sought a direction to the respondents to finalise the provisional release of goods; and also prays that respondents be directed to call for the records and set aside the re-assessment made on it, which they allege, has been done by escalating the value - The competent among the respondents will issue final orders qua the provisional release of goods after affording an opportunity of hearing to the petitioner within one month and the petitioner shall produce all relevant documents which they rely on within a period of 7 days - As regards Bill of Entry is concerned, respondents shall issue the petitioner a speaking order as required under Section 17(5) of Customs Act, within a period of two weeks: HC

- Writ petition disposed of: KERALA HIGH COURT

2021-TIOL-1724-HC-KERALA-CUS

Commissioner Vs Jennis K L

Cus - The department is aggrieved by direction of Single Judge to release the gold ornaments seized from the shop of petitioner - It is seen from memorandum of appeal that pursuant to the interim order of Single Judge, a review petition was preferred by Department which was dismissed - The Single Judge had while dismissing the review petition observed that if the Department was aggrieved by order under Section 110A issued by Commissioner, the remedy was to challenge the said order and not to prefer a review, which was nothing but an appeal in disguise - The attempt of Department is to bypass the remedy of an appeal and that too when, in the appeal preferred by them, interim orders have not been obtained as of yet - The extraordinary jurisdiction under Article 226 of Constitution of India cannot be utilised by a party to a lis to arm themselves with a sword from this Court, while their statutory remedies are being pursued, unless there are extraordinary circumstances - The claim of Department that there are extraordinary circumstances based upon the Circular issued on 16.08.2017, though attractive in the initial blush, is, on a deeper analysis, not of much substance - Since it is submitted across the Bar that the appeal against impugned order is pending consideration before the Appellate Tribunal, it is not proper to express any opinion on the merits of the issue - In the circumstances that prevailed at the time of issuing the interim order, no cause arises to interfere with the same: HC

- Appeal dismissed: KERALA HIGH COURT

2021-TIOL-1723-HC-MAD-CUS

Jeyyemaarr Vs CC

Cus - Order in original dated 29.06.2016 passed by the respondent is under challenge in the present writ petition.

Held: Instead of preferring an appeal for the redressal of the grievances, the petitioner has chosen to file a writ petition raising several grounds, which are all to be adjudicated based on certain facts and on verification of documents and evidences in original - Even in cases where mixed question of fact and law is raised, the appellate authority, is competent to adjudicate both factual and legal grounds and made a finding and pass orders - The appellate authority is the final fact finding authority - Thus, importance attached to the appellate remedy at no circumstances be undermined - Petitioner is granted liberty to approach the appellate authority and file an appeal within a period of 60 days and such appeal is directed to be entertained without reference to the period of limitation, and the matter has to be adjudicated on merits and in accordance with law as expeditiously as possible - Decision in Sri Sathya Jewellery - 2021-TIOL-960-HC-MAD-CUS referred - Petition disposed of: High Court [para 3, 5]

- Petition disposed of: MADRAS HIGH COURT

2021-TIOL-487-CESTAT-AHM

Symphony Ltd Vs CCE

CX - The penalty under Rule 26 of CER, 2002 was imposed on appellant - Demand confirmed against the supplier Mutual Industry has been settled under SVLDR Scheme - The SCN issued to Mutual Industry and appellant alleged that the appellant had helped in undervaluation of goods - Impugned order admits that the purchase agreement entered by appellant with various other OEM reveals that content of all the agreement are same - SCN examine the evidence recovered from appellant and records the statement of their various employees to allege that the sale price of appellant is much higher than the price at which they purchasing coolers - The agreement of appellant with various vendors including Mutual Industry was same as other - The allegations in SCN are also same - In the case of Ravi Kiran Plastics Pvt. Ltd. 2014-TIOL-1513-HC-AHM-CX , a similarly place manufacturer, Tribunal has examined the facts and came to the conclusion that the charges levelled against the manufacturers are not sustained, consequently, no penalty was imposed on appellant - Relying on the same, penalty imposed upon appellant is set aside: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

2021-TIOL-486-CESTAT-MAD

Amity Logistics Vs CC

Cus - Assessee is in appeal against impugned order whereby, the Commissioner has imposed penalty on them under Regulation 18 of CBLR, 2018 - The findings arrived at by Adjudicating authority interalia reveal that offence report was sent by Assistant Commissioner vide letter dated 07.06.2019, which was received on 12.06.2019 - This would mean that the time limit provided under Regulation 17 of CBLR, 2018 would start ticking from 12.06.2019 and the Revenue has an upper limit of 90 days from the date of receipt to issue a notice in writing - Undisputedly, the SCN was issued on 15.10.2019, which is clearly beyond the prescribed 90 days statutory period - This being the settled position of law, the excuse pretended by adjudicating authority that some of the documents required translation, is no ground to endorse inaction in the non-issuance of SCN within 90 days - The notice having been issued beyond the prescribed period which is itself irregular and therefore, penalty imposed on appellant cannot be sustained: CESTAT

- Appeal allowed: CHENNAI CESTAT

2021-TIOL-485-CESTAT-MAD

Steel Authority of India Ltd Vs CGST & CE

ST - The period involved in appeal is after 01.07.2012 and the case set out by Department is that the appellant had agreed to tolerate breach of timelines stipulated in contract; the amount imposed as liquidated damages are consideration for the act of tolerating contractual default; and that the appellant had rendered declared service of 'agreeing to the obligation to refrain from an act, or to tolerate an act or a situation or to do an act' contemplated under section 66E(e) of Finance Act, 1994 - There is substance in the submission advanced by appellant that no service tax is payable on the amount collected towards liquidated damages as this issue has been decided by Tribunal in favour of appellant in case of South Eastern Coalfields 2020-TIOL-1711-CESTAT-DEL wherein the Tribunal rejected the contentions advanced on behalf of Department that penalty amount, forfeiture of earnest money deposit and liquidated damages had been received by said appellant towards "consideration" for "tolerating an act" leviable to service tax under section 66E(e) of the Finance Act - This decision of Tribunal in South Eastern Coalfields was followed by Tribunal in M.P. Poorva Kshetra Vidyut Vitran 2021-TIOL-105-CESTAT-DEL - In view of the said decisions of Tribunal, it is not possible to sustain the view taken by Commissioner that since the task was not completed within the time schedule, the appellant agreed to tolerate the same for a consideration in the form of liquidated damages, which would be subjected to service tax under section 66E(e) of the Finance Act - As service tax could not be levied, imposition of interest and penalty also cannot be sustained: CESTAT

- Appeal allowed: CHENNAI CESTAT

2021-TIOL-484-CESTAT-BANG

Thorogood Associates India Pvt Ltd Vs CCT

ST - Appellant filed refund claim of unutilised CENVAT credit of service tax availed on inputs/input services used for providing output services viz. Information Technology Software Services exported under Notfn 27/2012-CE r/w Rule 5 of CCR, 2004 - The adjudicating authority rejected the refund claim of Rs.761/- as ineligible and remaining claim amount of Rs.21,05,968/- in terms of condition 2(h) of Notfn 27/2012 as the amount claimed was not debited from their CENVAT account at the time of filing refund claim - When the appellant filed the refund claim in February 2018, by that time, the erstwhile Service Tax Regime was repealed with GST Regime and the refund claim was filed under Rule 5 of CCR, 2004 and there was no occasion to debit the CENVAT credit account and reflect the same in ST-3 Returns as the company by that time was filing GST Returns under GST law - Appellant had not transitioned said credit to GST Regime and has submitted the proof for not transitioned the credit to GST Regime - In view of the decisions in Chariot International Pvt. Ltd. 2021-TIOL-346-CESTAT-BANG and 2015-TIOL-2076-CESTAT-MUM delay in debiting the CENVAT account will not defeat the substantial right of refund of the claimant - Appellant is also entitled to claim refund of Rs.761/- because ‘Event Management Service' falls within the definition of input service as provided in Rule 2(l) of CCR, 2004 - Hence, the impugned order is not sustainable in law: CESTAT

- Appeal allowed: BANGALORE CESTAT

2021-TIOL-483-CESTAT-BANG

Outsource Partners International Pvt Ltd Vs CCT & CE

ST -   CENVAT credit on Works Contract Service and service tax paid on Quiz Competition has been denied on the ground that the CENVAT credit pertains to execution of Works Contract Service in respect of the building/civil structure occupied by the appellant, which is excludible from the purview of Rule 2(l) of the CENVAT Credit Rules, 2004 - Appellant relies upon CBEC Circular No. 943/4/2011-CX dated 29.04.2011 which clarified that the credit of input services used for repair or renovation of factory or office is allowed - Insofar as CENVAT credit of service tax paid on conducting of Quiz Competition is concerned, appellant submitted that such recreation activities are conducted on a regular basis for its employees as a part of team building efforts and to enhance the morale of the employees, hence the credit should be allowed.

Held: It has been consistently held in various decisions cited by the appellant that repair and maintenance of the office premises fall under the definition of Input Service and the assessee is entitle to avail credit of the same - Moreover, Circular No. 943/4/2011-CX dated 29.04.2011 also clarified in this regard, hence denial of CENVAT credit on works contract is not sustainable - As far as CENVAT credit of service tax on conducting quiz competition is concerned, Bench is not inclined to allow the CENVAT credit on these re-creational activities, hence CENVAT credit of service tax paid on conducting quiz competition is denied - Appeal is, therefore, partly allowed: CESTAT [para 6, 7]

- Appeal partly allowed: BANGALORE CESTAT