2021-TIOL-1742-HC-MAD-ST

K And K Contech Engineering Ltd Vs C, CE & ST Settlement Commission

ST - Petitioner submits they had paid the entire service tax and there was no due - While so, the interest settled by the Settlement Commission is erroneous and contrary to the facts placed before the Commission, therefore, the present writ petition.

Held : The interest is chargeable based on certain admitted facts and circumstances placed before the Settlement Commission - If at all there is any error apparent in respect of such findings with reference to the original records, the petitioner is at liberty to approach the Settlement Commission for clarification or for rectification of any such error apparent, regarding the facts admitted or pleaded - However, such an adjudication cannot be done by the High Court in a writ proceedings, which requires examination of original records and the admission statements made by the parties before the Settlement Commission with reference to the application filed under Section 32E of the Central Excise Act, 1944 - Court is of the opinion that the order passed by the Settlement Commission, pursuant to the admission made by the parties, need not be interfered with - Writ petition stands disposed of: High Court [para 8, 9]

- Petition disposed of: MADRAS HIGH COURT

2021-TIOL-1741-HC-AHM-CUS

Hazel Mercantile Ltd Vs Chief CC

Cus - Petitioner seeks quashing of the seizure memo and release of the seized goods without any condition - Case of the petitioner is that subsequent to the test report by the Custom House, Kandla, on 15.02.2021, a report of TUV India Private Limited was obtained and the report dated 22.02.2021 confirmed that the goods that were shipped were Naphtha - In the opinion of the authorities, it appears that the imported goods have been mis-declared and mis-classified as Naphtha instead of Natural Gasoline Liquid, which according to the authorities is covered under Tariff Item 2710 12 90 of Customs Tariff Act, 1975 and can only be imported by State Trading Enterprises in view of the Foreign Trade Policy.

Held: What is evident is that this court in exercise of powers under Article 226 of the Constitution of India is called upon to decide the legality and validity of a seizure memo by weighing the pros and cons of the test reports on the quality of the product, reports divergent which are produced by the petitioner and the respondent - Court would be loathe in weighing its options on such disputed questions of fact and disturbing the seizure memo, an exercise which cannot be undertaken in the midst of an investigation - Court, in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India, cannot enter into a roving inquiry on the basis of conflicting test reports to decide the validity of a seizure memo - The exercise of seizure is an interim measure pending investigation - Authorities are required to issue a show-cause notice under Section 124 of the Customs Act, 1962 before confiscation of goods, which stage has yet not reached - The entire issue of the seizure memo being disputed on the basis of test reports essentially being in the realm of disputed questions of facts, Bench does not propose to exercise jurisdiction under Article 226 of the Constitution of India in favour of the petitioner and entertain the petition in context of the prayers made herein - Petitioner may press for the applications for provisional release made under Section 110 the Customs Act, 1962 - Respondents to decide the applications so made within a period of four weeks - Petition dismissed: High Court [para 11, 13, 14]

- Petition dismissed: GUJARAT HIGH COURT

2021-TIOL-513-CESTAT-DEL

Bharat Mines And Minerals Vs CCGST, C & CE

ST - Rebate of service tax paid on specified services used in the export of soap stone - Original authority rejected the rebate claims  on the ground that the activities of the received services had no nexus with export consignment, instead the endeavour of the appellant took place much before any of the export orders were received by the exporter, and the said activities did not require any repetition on regular basis; that the services had not been used beyond factory gate or any other place or premises of manufacture - In appeal, the Commissioner (Appeals) rejected appeals of the appellant on a new ground, that the invoices had been issued by Anuj Maheshwari & Co. a Chartered Accountancy firm for 'professional consultancy' for export, that as per clause 11 of Part I of the First Schedule to Chartered Accountants Act, 1949 as amended, a Chartered Accountant could not engage in any business or occupation other than that of Chartered Accountancy, unless permitted by the Council so to engage; that the work claimed to be undertaken in this case is that of commission agent; that a Chartered Accountant holding certificate of practice could not provide such services; that this was professional misconduct under the Chartered Accountants Act, 1949; and that professional consultancy services in relation to export could not be classified as services of Chartered Accountants.

Held: Invoices in question were issued by the Chartered Accountant - The invoices reads as 'professional consultancy for export against export consignment as per details, giving the export invoice number, date and quantity etc.'  - Further, Service Tax has been charged by the Consultant and it is undisputed that such invoices were paid along with service tax - There is no bar in a professional Chartered Accountant in giving business consultancy for the purpose of export -  Commissioner (Appeals) has travelled beyond the scope of Show Cause Notice rejecting the appeal on a new ground i.e. Chartered Accountant in practice cannot give consultancy for export - Held that the appellant is entitled to rebate on the Service Tax paid on the consultancy bill, for consulting the Chartered Accountant - Impugned order is set aside and the appeals are allowed - Adjudicating authority is directed to grant the rebate amount forthwith within a period of 45 days: CESTAT [para 11 to 13]

- Appeals allowed: DELHI CESTAT

2021-TIOL-512-CESTAT-BANG

Omega Healthcare Management Services Pvt Ltd Vs CCT

ST - The assessee is in appeal against impugned order whereby the Commissioner has partly disallowed the cenvat credit on impugned input services - The Commissioner during appeal proceedings has allowed the cenvat credit on certain input services to the tune of Rs. 13,82,480/- and rejected the cenvat credit of Rs. 18,75,083/- on five input services - Simultaneously refund proceedings were going on with regard to the refund of cenvat credit of unutilized cenvat credit and the lower authority out of Rs. 18,75,083/- sanctioned refund of Rs. 10,17,414/- and rejected the refund of Rs. 8,54,467/- - The cenvat credit on input services are in fact relating to the business activity of appellant and are covered by definition of 'input service' under Rule 2(l) of Cenvat Credit Rules, 2004 - Though in some of the invoices, nature of service mentioned is different but the classification shown in invoice is different but this kind of a discrepancy will not disentitle the appellant to claim cenvat credit once the input service is used for business activity of assessee - In some invoices, the nature of service mentioned is different but the classification as per the invoice is different but definitely all these services have been used by assessee for rendering output service - These services fall in the definition of 'input service' and the assessee has rightly claimed the cenvat credit - Hence, appeal of assessee is allowed subject to verification of various invoices pertaining to period disputed by lower authority: CESTAT

- Appeal allowed: BANGALORE CESTAT

2021-TIOL-511-CESTAT-MAD

Hyundai Motors India Ltd Vs CGST & CE

ST - The appellants were issued SCNs - The appellants availed the credit of service tax paid by them under reverse charge as an input service recipient and utilized the same for payment of service tax - During relevant period, credit availed on service tax was governed by STR, 1994 and credit availed on inputs and capital goods was governed by CCR, 2002 - CCR, 2004 came into force w.e.f. 10.9.2004 and then appellants transferred the unutilized credit to CENVAT account and utilized it for payment of central excise duty also - Department alleges that appellant cannot be considered as a provider of service as they have only received the service from foreign entity and discharged the liability as per section 66 r/w Rule 2(1)(d)(iv) of Service Tax Rules, 1994 - On bare perusal of sub-section (2) of section 68 of Finance Act, 1994, it can be seen that when service tax is paid under reverse charge mechanism as specified under section 66 ibid, provisions of said Chapter shall apply to such person as if he is the person liable to pay service tax - It is indeed clear that STR, 1994 have to be read along with FA, 1994 and the contention of department that the said provision does not have any application to Service Tax Credit Rules or CCR, 2004 is without any substance - Appellants were not liable to pay service tax under reverse charge mechanism prior to introduction of Section 66A in Finance Act, 1994 - The High Court of Bombay held that tax cannot be levied or collected on the basis of Rules only - Although, there was no liability to pay the tax, appellants have discharged the tax liability as a service recipient and availed credit - So the situation is revenue neutral also - The demand cannot sustain - The impugned orders are set aside: CESTAT

- Appeals allowed: CHENNAI CESTAT

2021-TIOL-510-CESTAT-MAD

Hindustan Petroleum Corporation Ltd Vs CGST & CE

CX - The appellants had availed CENVAT credit on various input services based on invoices issued by service provider as well as on the basis of ISD invoices issued by their regional and head office - The department entertained a view that as the appellants were carrying out trading in factory premises where from the lube oil received from other factories were sold and since trading is deemed as exempt service, the appellant have to reverse the credit availed on the input service used for such trading activity - The question as to whether the depot sale can be considered as trading has been analysed in appellant's own case by Commissioner (Appeals) - The appellants had also produced a copy of reply to the RTI application wherein department has stated that no appeal has been filed against the order passed by Commissioner (Appeals) - It was held by Commissioner (Appeals) that no exempt services/trading is rendered by appellant through their registered depot at the Chennai lube plant which is only a place of removal for various manufacturing units - The demand cannot sustain - The impugned orders are set aside: CESTAT

- Appeals allowed: CHENNAI CESTAT

2021-TIOL-509-CESTAT-BANG

West Coast Optilinks Vs CCT

CX - Appellant is supplier of PIJF telephone cables to M/s. BSNL and they were required to arrive at the value of cables supplied based on copper price circulars issued by BSNL headquarters - The appellant had paid differential duty in cases where the copper prices were higher than provisional prices and applied for refund of excess duty paid in cases where copper prices was less than provisional prices - The refund claims were sanctioned in three Orders-in-Original - Department contended that the claims were time-barred as per Section 11B of Central Excise Act, 1944 and the appeals filed by them were rejected in O-I-A - The Tribunal in Final Order held that since the request of appellant for provisional assessment was rejected by Department, refund claims were time barred and set-aside the O-I-A - The notices issued to recover the amount sanctioned earlier were adjudicated in O-I-O and same was demanded under Section 11A ibid - On appeal, Commissioner (Appeals) has modified the said order - Appellant's appeal against the Tribunal's order was pending before High Court of Karnataka and without waiting for the outcome of said appeal, Commissioner (Appeals) proceeded with the matter and confirmed the demand in respect of one SCN as the other two SCNs were infructuous since the Tribunal has dismissed the two appeals on the ground of delay - Since the High Court has set aside the order passed by Tribunal, the O-I-O and O-I-A passed by way of impugned orders are not sustainable in law and therefore same are set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT

2021-TIOL-508-CESTAT-BANG

Muhammed Rafi Kuruthilakath Lafarkantavida Vs CC

Cus - Seizure and confiscation of gold biscuits - The appellant was carrying two gold biscuits weighing 120 grams which was concealed inside inner garments by appellant and the same was not declared and passed through green channel so as to avoid payment of customs duty - As per Notification No. 12/2012-Cus., appellant was not entitled to bring the gold from abroad as his stay in foreign country was of only 35 days - Though in impugned order, Commissioner (Appeals) has noted that appellant has not been able to prove his ownership on impugned goods as appellant has produced a photocopy of bill as proof of his purchase which is not sufficient - Before this Tribunal, appellant has produced the original copy of invoice issued by Malabar Gold and Diamonds and the said bill shows that the appellant is owner of gold which was purchased by him only 2-3 days before the start of journey from Bahrain - But since he was not eligible to bring gold in terms of said Notfn and the same was not declared, impugned goods have rightly been confiscated - But as far as penalty imposed on appellant under Sections 112(a) and 112(b) of Customs Act, 1962 is concerned, imposition of penalty is not justified and therefore same is set aside: CESTAT

- Appeal partly allowed: BANGALORE CESTAT