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2022-TIOL-754-HC-DEL-CX
Suresh Kumar Garg Vs CCE
CX - Appeal is directed against the order dated 20.04.2017 - In the connected matters, a coordinate bench of this Court vis-à-vis the very same impugned order i.e., 20.04.2017 has rendered a judgment dated 16.05.2018 in a batch of matters, with the lead matter being CEAC 7/2018, titled Prabhat Zarda Factory Co. vs. Commissioner of Central Excise, Delhi-I - 2018-TIOL-987-HC-DEL-CX and via the aforementioned judgment dated 16.05.2018, has remanded the matters to the Tribunal, for a fresh hearing on merits - Impugned order dated 20.04.2017 is set aside qua the appellant - The Tribunal, in this case, like in the Prabhat Zarda Factory Co. case, is to decide the matter afresh on merits: High Court [para 3, 3.1, 3.2]
- Appeal disposed of: DELHI HIGH COURT
2022-TIOL-753-HC-DEL-CX
Rudraksha Marketing Vs CCE
CX - Delay involved is in re-filing the appeal - The period mentioned in the prayer clause is 411 days - A coordinate bench of this Court vis-à-vis the very same impugned order i.e., 20.04.2017 has rendered a judgment dated 16.05.2018 in a batch of matters, with the lead matter being CEAC 7/2018, titled Prabhat Zarda Factory Co. vs. Commissioner of Central Excise, Delhi-I = 2020-TIOL-1003-CESTAT-ALL and via the aforementioned judgment dated 16.05.2018, has remanded the matters to the Tribunal, for a fresh hearing on merits - Therefore, Bench is of the view that the delay ought to be condoned, as the appeal before it cannot be subjected to a different treatment - Delay is condoned - Impugned order dated 20.04.2017 is set aside qua the appellant - The Tribunal, in this case, like in the Prabhat Zarda Factory Co. case, is to decide the matter afresh on merits: High Court [para 3, 4, 6, 11.1, 11.2]
- Appeal disposed of: DELHI HIGH COURT
2022-TIOL-752-HC-GUW-CX
North East Hi Tech Vs UoI
CX - Petitioner's applications were filed on 18/3/2021 for fixation of the special rate for value addition - Present writ petition has been filed challenging the Order dated 5/8/2021 and for a direction to the Respondent Nos. 2 and 3 to expedite the proceedings relating to special rate fixation and not to initiate any recovery proceedings till the special rate is asserted by the Respondent No. 2.
Held: Supreme Court in VVF Ltd. - 2020-TIOL-83-SC-CX-LB has held that Notification Nos. 20/2008-CE and 38/2008-CE were clarificatory in nature and the same is to be applied retrospectively - Government came out with the impugned Notifications/industrial policies to grant refund of excise duty on actual and calculated on the basis of actual value addition - It was categorically observed that the object of the subsequent notifications/industrial policies was the prevention of tax evasion and by issuance of the subsequent notifications/industrial policies the Government only rationalized the quantum of exemption and proposing rate of refund on the total duty payable on the genuine manufactured goods - It was observed that the entire genesis of the policy manifesting the intention of the Government to grant excise duty exemption/refund of the excise duty paid was to provide such extension only to actual value additions made in the respective areas - A reading of Paragraph 24.3 also makes it clear that the purpose of the original scheme was not to give benefit of refund of the excise duty paid on the goods manufactured only on paper or in fact not manufactured at all - In the instant case, the Petitioner pursuant to the judgment of the Supreme Court in V.V.S. Ltd.(supra) had filed its application for special rate - Approach of the Respondent/Adjudicating Authority in rejecting the application for special rate on the ground of being barred by limitation, in the opinion of this Court, is not in consonance to the observations of the Supreme Court in Paragraph No. 26 of the judgment in the case of V.V.F. Ltd.(supra) - Vide an order dated 10th of January, 2022, the Supreme Court observed that where the limitation would have expired during the period between 15/3/2020 till 28/2/2022, notwithstanding the actual balance period of limitation remaining, all persons shall have the limitation period of 90 days from 1/3/2022 - Court deems it appropriate and accordingly directs the Principal Commissioner of Central Goods and Service Tax, Dibrugarh, the Respondent No. 2 herein to decide the applications of the Petitioner dated 18/3/2021 on its own merit as regards the claim for fixation of the special rate to actual value addition to the manufactured goods of the given financial years - Court also deems it appropriate and accordingly directs the Respondent Authority concerned not to give effect to the said order dated 16/2/2022 till such decision of the Respondent No. 2 to the applications for fixation special rate dated 18/3/2021 filed by the Petitioner - Writ petition stands allowed: High Court [para 22, 23, 26, 30, 32, 33]
- Petition allowed: GAUHATI HIGH COURT
2022-TIOL-446-CESTAT-DEL
Kruger Ventilation Industries (North India) Pvt Ltd Vs CC
Cus - The appellant is engaged in manufacturing industrial fans - It imported various parts for use in manufacturing its final products from M/s Kruger Ventilation Industries Pte. Ltd., Singapore and M/s Kruger Ventilation Asia Co. Ltd., Thailand - The three issues arises are, whether the buyer and seller are related persons in terms of Rule 2(2) of CVR, 2007; whether the transaction between buyer and seller are influenced by such relationship and whether any addition is required to be made to assessable value of imported goods under Rule 10 of Valuation Rules - It is undisputed that the appellant and its overseas supplier are sister concerns and are related persons - It is also undisputed that relationship has not affected the transaction value - The next question is includibility of royalty/license fee paid by appellant to its holding company as a percentage of its total sales turnover in assessable value - It is true that the royalty is paid is as percentage of the net turnover of goods manufactured, which includes not only the component which are domestically procured but also which are imported as well as any value addition by appellant - However, this in itself, is not sufficient to add royalty to assessable value - It needs to be seen whether the payment of such royalty is pre-condition to sale of imported goods - No such condition emerges from agreement - The goods were also not imported under the agreement - The royalty cannot be included in assessable value - Impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-445-CESTAT-MUM
ATA Freightline India Pvt Ltd Vs CCGST & CE
ST - M/s ATA Freightline (India) Pvt Ltd is in the business of integrated logistics and cargo transportation and in conjunction with M/s ATA Freightline Ltd, New York, provides end-to-end delivery; the recompense from overseas entity for the period between July 2012 and March 2015, to the extent attributable to carriage within India, was sought to be taxed by recourse to Place of Provision of Service Rules, 2012 - The span of the dispute lies entirely within scheme of levy under section 66B of Finance Act, 1994 imposed on all 'services', as defined in section 65B (44) of Finance Act, 1994, that were either not excluded by section 66D of Finance Act, 1994 or not exempted by notification issued under section 93 of Finance Act, 1944 - There is no demand for pre-'negative list' period and that it was only the inevitable passage of 'export goods' through India at commencement of outward journey till loading on 'foreign going' vessel/aircraft that was considered to be necessary and sufficient reason for invoking rule 4 of Place of Provision of Service Rules, 2012 - In this implied convergence of rule 4 and rule 10 of Place of Provision of Service Rules, 2012, transaction between M/s ATA Freightline Ltd, New York and M/s ATA Freightline (India) Pvt Ltd was split–as one within India and one thereafter–by appropriating accountal segregation adopted by appellant - The adjudicating authority has complicated the transaction set by assigning the role of agent of M/s ATA Freightline Ltd, New York to appellant entrusted with charge of taking delivery of related goods made available by exporter for rendering service - Besides that artifice, it was further held that 'ex works' service terminated at the port of export which, in the context of statutory provision predicated on 'goods', is tantamount to erasure of existence of goods - Both these are presumptions of adjudicating authority without any evidence to render these as acceptable conclusions and far removed from reality of a composite transaction for carriage of goods from within India to a place outside India - Place of Provision of Service Rules, 2012 is not a provision for charging of tax; it is limited to determination of location of taxable entity as an adjunct to charging provision in section 66 B of Finance Act, 1994 - The impugned order has not evaluated the impugned activity from that perspective - In the context of identifiable recipient of service located outside taxable territory, and concomitant absence of 'goods provided by recipient of service' as well as marked absence of recipient of service in truncated segment of impugned activity and of the goods being put to use for rendering of service, rule 4 of Place of Provision of Service Rules, 2012 is not applicable - That the activity is transportation of goods is foundation of proceedings against appellant, as is evident from contrived segmentation of stages according to geography and from unarguable existence of recipient outside India; rule 10 of Place of Provision of Service Rules, 2012 is unambiguously clear about the consequent non-taxability - Impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT |
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