2021-TIOL-1735-HC-MAD-ST

Great Lakes Institute of Management Ltd Vs C, CE & ST Settlement Commission

ST - Petitioner seeks quashing of the order passed by the Settlement Commission and directing the Commission to rehear the application and pass appropriate orders - Settlement Commission rejected the application on the ground that the dispute exists between the Department and the petitioner and, therefore, the jurisdiction of the Settlement Commission under the provisions of the Act, is ousted; that the applicant had not cooperated with the proceedings and made a full and true disclosure of their duty liability; that the Commission cannot take on itself the role of Adjudicator.

Held: Party willing to settle the issues statutorily is expected to approach with true and full disclosure of facts and extend full cooperation for the settlement of issues - Once the doubt in respect of genuineness, cooperation, disclosure of true and full facts are traced or identified by the Settlement Commission, then the Settlement Commission cannot settle the issues by way of adjudicating such issues on merits and with reference to the documents - Findings of the Settlement Commission in the impugned orders are candid and convincing and there is no infirmity or perversity as such - Writ petition fails and the same stands dismissed: High Court [para 30 to 32]

- Petition dismissed: MADRAS HIGH COURT

2021-TIOL-1734-HC-MAD-CUS

Durga Toys Manufacturing Pvt Ltd Vs CEGAT

Cus - Petitioner challenges the order dated 12.04.2002 passed by the Tribunal.

Held: In respect of the question having a relation to the rate of duty of customs or to the value of goods for the purposes of assessment, appeal will not lie before the High Court as stipulated by section 130 of the Customs Act, 1962 - Writ petition filed before this Court is not maintainable and the petitioner is at liberty to approach the appropriate Court for the purpose of redressal of their grievances - Writ petition stands dismissed: High Court [para 5, 6]

- Petition dismissed: MADRAS HIGH COURT

2021-TIOL-498-CESTAT-DEL

WMW Metal Fabrics Ltd Vs Commissioner, CGST

CX - The appellant is engaged in manufacture of Galvanized Transmission and Communication Tower Plants - A refund claim was filed by appellant against the cash amount deposited in their PLA account, for payment of duty as shown in their current account and was also shown in their ER-1 Return for the month of June, 2017 - Same was rejected - Appellant was having account current/ PLA for payment of duty - It also cannot be disputed that the purpose of such account is that the money deposited by appellant in such account has to be debited there-from as and when the duty for clearance of goods is required to be paid by appellant i.e. against a liability that has to reckon in future - Admittedly, the closing balance of said PLA account as on 30th June, 2017 was Rs.2,02,162/- - As on 30.07.2017, duty liability of appellant for impugned period was discharged and aforesaid amount was appellant's money to be adjusted against any duty liability arising after 01.07.2017 which has been the date of transition into GST - The aforesaid amount remained unutilized by appellant - The said closing balance has also been duly reflected in ER-1 Return filed by appellant - These admissions makes it clear that the amount in question was not at all the amount of duty or interest it was rather appellants own amount which either could be utilized by him while discharging his duty liability else the appellant was entitled to get the refund thereof - This amount cannot been made subjected to any other appropriation - Nor the time limit under Section 11B of CEA, 1944 can be invoked when such money is sought to be refunded - High Court of Punjab & Haryana in case of Indian Oil Corporation Ltd. has held that when there was no duty liability of appellant but some amount stands deposited by him, the same has to be refunded back to the appellant without raising any issue of limitation - It was specifically held that state cannot enrich itself unjustly when no duty was liable to be paid by appellant - The Commissioner (A) has wrongly invoked the Section 11 B of CEA,1944 and the concept of limitation embodied in the said section, said order is accordingly, set aside: CESTAT

- Appeal allowed: DELHI CESTAT

Continental Warehousing Corporation Nhava Seva Ltd Vs CC

Cus - A SCN was issued on allegation of attempted smuggling of imitation jewellery raw material glass beads (Chatons) in the guise of clearing glass show piece/scrubbers/foot wear, to the appellant - Admittedly, there is no allegation against appellant as to whether he had any role or was involved in abetting the commission of alleged smuggling activity - The SCN and the impugned O-I-O allege that Regulation 5(1)(i)(n) was violated - Sole allegation in SCN as well as O-I-O is that the two persons who appeared on a particular day, had absconded, whose identity was not established by appellant - The discussion in SCN as well as impugned order points out that during examination, the persons were present, who later on absconded, which per se would not tantamount to breach of Regulation 5(1)(i)(n) because, there is nothing on record to suggest that they had gained unauthorized access into the premises - In any case, it is not the case of Department that those two persons had gained unauthorized access and that the appellant had helped in any way, in accommodating the unauthorized access or exit from the scene - There is otherwise no allegation by Revenue as to security and access control and therefore, the penalty cannot be sustained: CESTAT

- Appeal allowed: CHENNAI CESTAT

Microsoft Research Lab India Pvt Ltd Vs CCT

ST - Appellant is in appeal against impugned order vide which the Commissioner (A) has rejected the refund claims on various input services - The appellant has given detailed justification for each of impugned services involved in appeals with judicial precedents and the said services have been used by them for rendering the output services - The reasoning given by Commissioner (A) in impugned order is not correct in law and the correct position in law is that to test for eligibility is whether input services is used by the provider of taxable service for providing output service and the input services should not be covered by the exclusion clause - All these services on which refund has been rejected consistently held to be input services in various decision relied upon by the appellant - Moreover, Department has not questioned the input service at the time when the CENVAT credit was taken and in the decision of Tribunal in case of K Line Ship Management Pvt. Ltd. 2019-TIOL-100-CESTAT-MUM, it has been held that the department is not permitted to question the eligibility of CENVAT credit at the time of claiming refund - Further, in view of clarification given by tax research unit of CBEC vide their letter dated 16.3.2012, the amended Rule 5 of CENVAT Credit Rules, does not require correlation between the output service exported and the input service used in such output service exported - Therefore, the appellant is entitled to refund of CENVAT credit along with interest in view of the apex court decision in the case of Ranbaxy Laboratories Ltd. 2011-TIOL-105-SC-CX : CESTAT

- Appeals allowed: BANGALORE CESTAT

State Bank of Patiala Vs CCE & CGST

ST - The appellant is a banking company providing service under category of 'Banking and other Financial Service' among others - During audit, it was observed that appellant had taken cenvat credit wrongly on input service- 'Collateral Management charges' as per the invoices raised by 'National Bulk Handling Corporation' which provides services in relation to processing of loans/advances, as is evident from the invoices - It appeared to Revenue that such input service is exclusively used for providing exempt services i.e. service tax is not chargeable on interest earned by bank on loans/ advances - Giving of loans is not a service, rather it is an activity of Bank in which money in real terms which is akin to goods, is given to borrower - Further, for the reason that interest earned by the Bank on loans is not liable to tax, the SCN alleged that giving of loan is an exempt service - SCN have been issued after more than 32 months from the last date when the return was due from the financial year ending 31.03.2010 - Accordingly, the SCN is bad for invoking extended period of limitation - There is no suppression of facts or contumacious conduct on the part of appellant - Impugned order is set aside: CESTAT

- Appeal allowed: DELHI CESTAT