2021-TIOL-1813-HC-DEL-CUS

Fresh Fruit Flowers And Vegetables Traders Association Vs DGFT

DGFT - The challenge is to an order dated 02.03.2021 and Notfn dated 09.07.2020 issued by Respondent, imposing a complete ban on import of various types of cut-flowers through all the Airports of country except Chennai Airport, on the ground that it is violative of Articles 14, 19 and 21 of the Constitution of India as it discriminates between Flower Traders of Delhi, NCR and other parts of country - The matter needs adjudication at the earliest looking to the fact that the goods in question, i.e., cut-flowers are a highly perishable commodity - Instead of expediting the process of filing the counter-affidavit, it appears that the Respondents are completely oblivious of urgency of matter and the prejudice caused to petitioner due to delay in filing the counter-affidavit - Last opportunity granted to the Respondents to file a counter-affidavit on or before 31.08.2021, subject, however, to a cost of Rs.10,000/-: HC

- Matter listed: DELHI HIGH COURT

2021-TIOL-1812-HC-MAD-ST

Madurai Kamaraj University Vs Joint Commissioner

ST - Controversy has arisen as to whether services of providing affiliation to its affiliated institutions by the petitioner university can be treated as a taxable service within the meaning of service tax as provided under 1994 Finance Act, till June 2017 -From 01.04.2013 till 30.06.2017, it is the claim of the respondent revenue that the petitioner's university's services towards affiliation and other allied or related services are to be treated as taxable service -Claim was made by the university to seek exemption for the services of affiliation and related services rendered by the University from the purview of service tax net, by invoking the negative list clause provided under Section 66-D of the Finance Act and also the subsequent mega exemption notification and also the consequential notification No.9/2016-ST, during the relevant period i.e. from 01.04.2013 to 30.06.2017, -Therefore, petitioner contends that the claim made by the revenue against the petitioner university is bad in law and, therefore, a challenge has been made as to the action taken by the respondent revenue to issue show cause notice F.No.IN/DGGI/CoZU/M/39/2018 dated 23.10.2018, followed by the order dated 30.05.2019, confirming the proposal made in the show cause notice and demanding service tax for the said period.

Held:

+ Only question posed is whether the services rendered by granting affiliation and its allied activities and also by providing shelter in their campus to the service providers like Bank, Post Office, or catering etc., directly beneficial to the students, staff and faculty of the university, are exempted services within the meaning of Section 66-D of the Finance Act and also under the Mega Exemption Notification of the year 2012. [para 11]

+ Affiliation activity is an integral part of imparting education for any student for getting qualified to get a qualification like degree or diploma. The college cannot independently function without the affiliation of the University. Therefore, for the purpose of providing the services of education, both, the university as well as the college concerned, who get affiliated to the university, cannot be separated. This is the purposive interpretation which is only possible, because, the services relating to admission and also the conduct of examination by such institution has been exempted. [para 19, 20]

+ Narrow or pedantic interpretation cannot be possible in the words "conduct of examination". The reason being, the very prime function of the petitioner university under the statute, under which it has been created, under Section 4(4) of the University Act is to hold examinations and to confer degrees, titles, diplomas and other academic distinctions. Therefore, holding or conducting an examination is primarily a job of the university and the colleges affiliated to the university are only facilitators. Therefore, examinations are not conducted directly by the colleges, it is being conducted by the university, but the facilitator is the college.

+ The word "conduct of examination by such institution" means, conduct of examination by the university and the college and not by the college alone. The examination is the examination of the university, for which, facilitation is given by the college, wherein the examinations are conducted and ultimately, valuation is to be done by the university and marks are awarded and degree is conferred by the university. Therefore, it is the university, where, the facilitator is the college, where, the examination is taking place and therefore, the word "conduct of examination", cannot have such a narrow and pedantic interpretation as has been given by the Advance Ruling Authority in their order dated 19.11.2020. Court is not subscribing the said view given by the Advance Ruling Authority in their order dated 19.11.2020.[para 21]

+ The word "educational institution", cannot denote only the college affiliated to the university, but, it includes the university. Without the university, college cannot impart education on its own. [para 22]

+ Throughout the regime between 2012 and 2017, the educational institution had been provided with the exemption. Accordingly, the stand taken by the revenue for levying service tax for the services being provided by the petitioner university cannot be approved. [para 23]

+ Services such as renting of immovable property for the purpose of bank, post office, canteen etc. are all allied services of education which are also included in the purview of educational services, in view of clause 9, which has given an expanded meaning of educational services which includes the services to be provided not only to the students, but also faculty and staff. Therefore, demand made for levying service tax on the services provided by the petitioner institution under the heading renting of immovable property, cannot be sustained. [para 24]

+ Petitioner educational institution i.e., the university cannot be assessed for demanding any service tax for the services of education provided by them, which includes affiliation or other services provided for the students, faculty as well as the staff of the university. Impugned order does not stand legal scrutiny. [para 26]

- Petition allowed: MADRAS HIGH COURT

2021-TIOL-1811-HC-DEL-ST

CCE & ST Vs Oriental Insurance Company Ltd

ST - The revenue has already issued an order of refund on 24.07.2020 and same has been paid to the Respondent - The Principal Commissioner is directed to state on an affidavit the exact date on which the process was initiated in relevant file for filing the present appeal challenging the impugned final order passed by Tribunal - Present proceedings are merely an eye wash and an empty formality by appellant, for the sake of completing the record: HC

- Appeal disposed of: DELHI HIGH COURT

2021-TIOL-555-CESTAT-MAD

Vinoth Shipping Services Vs CCE & ST

ST - The appellant is engaged in providing various services - On intelligence gathered that the appellant did not discharged Service Tax liability for the services rendered under category of "Cargo Handling Services", summons was issued to the appellant - The appellant has produced document issued by M/s. ACL wherein it is stated that the said company has discharged entire Service Tax on consideration received from the clients - Although the Department was directed to verify and submit as to whether the main contractor had discharged the Service Tax on these services, Department submits that inspite of sending letters with the above query, they have not received any reply from the concerned Commissionerate - It is seen that the amount received from clients have been subjected to Service Tax at the hands of main contractor - However, since the appellant, as a sub-contractor, has provided services to the main contractor, is liable to discharge Service Tax on the consideration received from the main contractor namely, M/s. ACL - The main contractor would then be eligible to take credit of such Service Tax paid by appellant as these are input services for the main contractor - The issue is no longer res integra and is settled by decision of Larger Bench of Tribunal in case of M/s. Melange Developers Pvt. Ltd. 2019-TIOL-1684-CESTAT-DEL-LB - Following the same, it is held that the appellant/sub-contractor is liable to pay Service Tax even if the main contractor has discharged liability - The issue on merits is found in favour of the Department.

The appellant has argued on the ground of limitation also - There is no clear allegation that the appellants have wilfully suppressed facts with intention to evade payment of Service Tax - The main contractor/M/s. ACL collected the full consideration including Service Tax from clients, which is clear from the records - Appellants from the very beginning have raised the contention that they were instructed by M/s. ACL that they are not required to pay the Service Tax - No factual basis found for invoking extended period - The demand raised by invoking extended period cannot be sustained - However, demand for the extended period of limitation, if any, cannot sustain and the impugned order to this extent is set aside, without disturbing any demand that falls within the normal period - For the same reasons, penalties cannot sustain - The appellant succeeds on the ground of limitation only: CESTAT

- Appeal partly allowed: CHENNAI CESTAT

2021-TIOL-554-CESTAT-AHM

Rallis India Ltd Vs CCE & ST

CX - The issue involved is that whether the appellant is entitled for Cenvat Credit in respect of service tax paid on outward transportation of finished goods upto the depot of appellant when the valuation was done under Section 4A of Central Excise Act, 1944 - The facts in the present case as well as in the identical case which was decided by Tribunal vide order dated 31.10.2017 are absolutely identical - Considering the Chhattisgarh High Court decision in case of Ultratech Cement 2014-TIOL-1437-HC-CHHATTISGARH-CX and Rallis India Limited of this Tribunal and Board circular dated 02.02.2016 it is held that whether valuation is done under section 4 or 4A of Central Excise Act, the depot being place of removal the credit upto depot on outward transportation is admissible - The issue is no more under dispute and has been settled as there is no appeal filed by revenue as per record of this appeal - Accordingly, the Cenvat credit on outward transportation upto depot is admissible: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

2021-TIOL-553-CESTAT-CHD

Industrial Equipment Company Vs CCE & ST

CX - The core issue arises is, whether the amount for which the refund claim has been filed by appellant is duty or a deposit - As it is clear from the order of Commissioner (Appeals) that it is not duty, therefore, provision of Section 11B of Central Excise Act, 1944 and time-limit prescribed under Section 11B ibid is not applicable to the facts of this case - The same view was taken by High Court of Karnataka in case of KVR Construction as well as the Apex Court in ITC Limited - The case law relied upon by revenue is not applicable to the facts of this case as the said case law deals with refund of duty, therefore, refund claim filed by appellant is not barred by limitation - Therefore, the impugned order is set aside: CESTAT

- Appeal allowed: CHANDIGARH CESTAT

2021-TIOL-552-CESTAT-DEL

Rahul Sehgal Vs CC

Cus - The appellant is the importer of bicycle products - Admittedly, the impugned consignment was not in the name of M/s. Rahul Traders the importing firm of appellant, but was in the name of M/s. Kirat Sales Corporation - Though the SCN recites that the consignment was initially booked in the name of M/s. Rahul Traders but in the light of the statement of Mr. Manish Shrivastava, Dy. Manager of Orient Overseas Life, the shipping agency and in the light of the document as that of Bill of Lading, the said allegations is not sustainable and the confirmation based thereupon is nothing but a result of presumption - This being a clear cut case of absence of any evidence against Rahul Sehgal, it shall be appropriate to hold that the adjudicating authority below has erred fastening liability upon the appellant by way of imposition of penalty - Further, basic allegation against appellant appears to be that of conspiring with Mr. Saurabh Aggarwal to get smuggled the prohibited goods - As apparent from the Final Order that said Saurabh Aggarwal has been given clean chit for want of any evidence to establish his involvement, in the form of conspiracy or otherwise, in the impugned imports - The question of meeting of mind of appellant with said Saurabh Aggarwal gets closed with element of doubt - Conspiracy being a criminal offence, principle of criminal jurisprudence gets readily attracted - The foremost principle being that the benefit of doubt has to be extended in favour of accused - There is not merely the doubt but the lack of substantial evidence as against Rahul Sehgal that the findings of authorities below cannot sustain - The impugned order is set aside: CESTAT

- Appeal allowed: DELHI CESTAT