2022-TIOL-1367-HC-TELANGANA-ST
Meil Sew Maytas Bhel Vs State of Telangana
ST - The case of the petitioner is that they are exempted from paying any service tax in respect of the contract work, however, the respondents pursuant to clause 18.1 of the General Instructions (to bidders) has deducted service tax @ 4.12% from the running account bills of the petitioner - It is the specific grievance of the petitioner that the impugned letter has been issued proposing to effect the recovery of service tax for an amount of Rs. 14.7329 crores and credit the same to the work, hence, W.P. No. 10387 of 2020 is filed.
Held: There is no dispute that the petitioners have undertaken the work for digging up the canal system for the purpose of Kaleshwaram Project on behalf of the Government, which is admittedly not a commercial activity, and which only is chargeable to service tax - Once the Government of India, through the Ministry of Finance, has granted the exemption [41/2009-ST] to the work contracts in respect of canals and once the Circular 116/10/2009-S.T . dated 15.09.2009 has been issued clarifying the same, the endorsement made by the Director of Works Accounts is without jurisdiction and contrary to the said exemption granted by the Government of India - Once the exemption of Service Tax has been granted by the Government of India, the question of deducting any amounts for the said purpose cannot be countenanced and the benefit of the exemption has to be extended without any condition - It is well settled principle of law that any endorsements or orders made by the officials/departmental heads cannot override the provisions of the Act/Rules/Circulars - Officers of the respondent Departments cannot be made liable or be prosecuted for not recovering the Service Tax amounts for the works undertaken by the petitioners which is impugned in the present writ petitions - Impugned orders are set aside and the official respondents are directed not to recover or deduct any amounts towards Service Tax pursuant to the endorsement of the Director of Works Accounts - Writ petitions are allowed: High Court [para 12, 13]
- Petitions allowed: TELANGANA HIGH COURT
2022-TIOL-976-CESTAT-DEL
ICON Industries Vs CCGST
CX - The present appeal was filed to challenge dismissal of appeal filed by assessee, as deemed to have been withdrawn, solely because the assessee filed application under SVLDRS, 2019 whereas the same has been withdrawn subsequently .
Held - The main objective of the scheme is to provide for the settlement of pending disputes related to indirect taxes - The Appellant although applied under the said scheme but the same was withdrawn later on for the reasons best known to them - Admittedly, no payment had been made by them within the period stipulated under Section 127(5) of the Finance Act and as a result no discharge certificate in form SVLDRS-4 in terms of Section 127(8) of the Finance Act was issued to the Appellant - Unless the tax dues as pointed out by the Designated Committee have been paid by the applicant under the said scheme, the issue cannot be said to have settled and therefore, without looking into it merely on applying under SVLDRS, the Commissioner (Appeals) erred in dismissing the Appeal as deemed to have withdrawn - Hence reliance placed by the Commissioner on section 127(6) ibid for deemed withdrawal of appeal is misplaced as that sub-section comes into play only after payment of the amount by the applicant under sub-section (5) ibid as indicated in the statement issued by the designated committee therein whereas no such payment had been claimed by the Appellant - Thus the order in questions stands quashed - Case remanded for re-consideration: CESTAT
- Case remanded: DELHI CESTAT
2022-TIOL-975-CESTAT-DEL
Hindustan Zinc Ltd Vs CCE
ST - The appellant is engaged in the manufacture of lead, zinc and other concentrates - The Department believed that the appellant had not paid/ short paid service tax on some of the cases of foreign remittances liable to service tax and consequently a show cause notice dated 21.04.2014 was issued to the appellant proposing demand of service tax on foreign currency expenditure - The Commissioner, by order dated 28.07.2015, adjudicated the show cause notice - Out of the total demand of Rs. 68,05,821/- proposed in the show cause notice, a demand of Rs. 59,94,929/- was confirmed with interest and penalty - Hence the present appeal.
Held - With regard to the period from July 01, 2012 to March 31, 2013 the demand has been proposed under section 66A of the Finance Act which did not exist - This precise issue was considered by a Division Bench of the Tribunal in M/s Frisco Foods Private Limited wherein it was held that the provisions of Section 66A did not exist post 01.07.2012 and that as per settled law, the charging section in any taxing statute must be strictly construed and in case of any ambiguity it should be interpreted in favour of the assessee - Following such findings, the demand could not have been raised in the present case - Hence the orders merit being set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-974-CESTAT-MAD
Penanshin Shipping India Pvt Ltd Vs CC
Cus - Appellant is aggrieved by direction of Commissioner (A) remanding the matter to adjudicating authority to reconsider non-imposition of penalty on appellant under section 114 of Customs Act, 1962 - Adjudicating authority had absolved the appellant from imposing penalty - Commissioner (A) has noted that one consignment was already cleared and this was the second consignment that was intercepted by DRI - They had taken a view that it is obvious that appellant has abetted Shri Sabarivasan and his aides in misusing the IEC of M/s. Polyhose India (Rubber) Pvt. Ltd. and therefore is liable for penalty under section 114 of Customs Act, 1962 - Though adjudicating authority has ordered for confiscation of red sander logs / saw dust, he has refrained from confiscation of container under section 119 of Customs Act, 1962 - So also he has refrained from imposing penalty under section 114 of Customs Act, 1962 on appellant - Role of appellant as brought out from evidence is in arranging the container - Said goods namely 'container' has not been confiscated - Further, appellant has raised argument on the basis of recent Notfn 56/2015-2020 - Therefore, whether items namely red sanders was restricted item during relevant time has to be examined, as Commissioner (A) has only remanded the matter to relook into non-imposition of penalty - Appellant would be getting sufficient chance to put forward documents and arguments to establish their innocence - No grounds found to interfere with the view taken by Commissioner (A) in remanding the matter - Decision of Commissioner (A) is upheld - However, it is directed that adjudicating authority shall give opportunity of personal hearing to appellant as well as opportunity to produce any further documents: CESTAT
- Appeal dismissed: CHENNAI CESTAT
