2022-TIOL-1055-CESTAT-MUM
Prajapita Brahma Kumaris Ishwariya Vishwa Vidyalaya Vs CCGST & CE
ST - Assessee is in appeal against impugned order wherein Commissioner (A) has upheld the rejection of refund claim filed by assessee - The only ground for rejection of claim is denial of exemption as claimed by assessee in terms of Sl No 13 (c) of Notfn 25/2012-ST - Said entry has been reproduced by Commissioner (A) in impugned order - Revenue has relied upon the decision of Apex Court in case of Dilip Kumar & Co 2018-TIOL-302-SC-CUS-CB and the decision of Delhi High Court in case of J.Kultar Exports 2020-TIOL-676-HC-DEL-ST to hold that by applying the principles of strict interpretation of Notification the exemption claimed by assessee cannot be allowed - Undisputedly, assessee is an entity registered under section 12AA of Income Tax Act, 1961 and the premises held by them are meant predominantly for religious use by general public - Thus, assessee is entity who are eligible to claim the benefit of this exemption - Revenue also do not dispute this aspect - The only objection which has been raised is to the word "building" used in notification whereas assessee are claiming exemption in respect of shop and flats purchased by them from M/s Yog Reality - The word "building" used in entry at Sl No 13 (c) of Notfn 25/2012-ST is wide enough cover the shop and flats purchased by assessee in project being developed by M/s Yog Reality - That being so benefit of exemption under said entry cannot be denied to assessee on this ground - Revenue has raised the issue of unjust enrichment - However, he has failed to specify how the same can be applied in present case where the claimant is recipient of services and the consumer of service - Thus, no merits found in impugned order on the grounds challenged in this appeal: CESTAT
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-1054-CESTAT-DEL
Universal Industries Vs CCGST
ST - Appellant is in appeal against demand of service tax on ocean freight under Reverse Charge Mechanism - In spite of fact that appellant had paid IGST on ocean freight, revenue demanded service tax on ocean freight under Reverse Charge Mechanism, alleging that Bills of Entry had been filed - Demand was confirmed alongwith interest and penalty under Section 78 - Admittedly, appellant have purchased fertilizers which is their inputs, at CIF value which includes the ocean freight element - Thus, demand under service tax is not attracted - SCN is also on wrong facts as the date of filing of two Bills of Entry is on 6/7/2017 and 14/7/2017, but it is wrongly alleged that these have been filed on May & June 2017 - Thus, SCN is also erroneous on this score - Impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-1053-CESTAT-MUM
ICICI Prudential Life Insurance Company Ltd Vs CCGST & CE
ST - Appellant is engaged in rendering 'life insurance service' that, before 1st July 2012, was taxable under section 65(105)(zx) of Finance Act, 1994 and operates through agents who interface with potential subscribers of various products offered by them - It is the contention of tax authorities that 'non-compete fee' and 'exclusivity bonus' paid to agents from 2007 to 2011 was not consideration for such forbearance as agents were not working exclusively for them and hence, was 'commission', and liable to tax of Rs. 24,25,76,897 on the amount disbursed by stealth beneath the radar of regulatory oversight - Issue of taxing 'non compete' fee as provision of 'business support service' has been decided by Tribunal in Sargam Retails Pvt Ltd 2019-TIOL-2066-CESTAT-MUM and in Jamna Auto Industries Ltd 2017-TIOL-2923-CESTAT-DEL - Demand of tax of Rs. 24,25,76,897 should have been subjected to test of conformity with these decisions, that were either not available then or not brought to the notice of adjudicating authority by either side - It has been submitted by appellant that payment towards 'market support' rendered by M/s India Infoline Services Ltd for the period from 1st October 2007 to 31st March 2008 on which tax of Rs.4,90,27,118 has been confirmed in adjudication order was, in reality, towards salaries of employees hired by agent for sale of policy at the behest of assessee and that there is no evidence to substantiate the allegation that this payment is linked to business generated by agent - This submission has not been examined in impugned order and would need to be decided afresh - It is on record that appellant had produced evidence of tax payment by M/s ICICI Bank and M/s ICICI Securities for various activities undertaken by them at their behest - Said invoices were not discarded but tax discharge indicated therein were found to be incompatible for not having been discharged by appellant - The facts need to be ascertained for conformity with decisions of Supreme Court and of Tribunal, the attempt to foist levy afresh on assessee-appellant does meet the test of law and must be set aside - Accordingly, dropping of demand in impugned order is upheld - The recoveries confirmed under section 73 of Finance Act, 1994 and demand on payments made to M/s India Infoline Insurance Services Ltd towards 'rewards and recognition' and towards 'market support/administration' support are set aside and the dispute remanded to enable the adjudicating authority to decide afresh after considering the submissions of the assessee-appellant: CESTAT
- Appeals partly allowed: MUMBAI CESTAT
2022-TIOL-1052-CESTAT-MUM
Crompton Greaves Ltd Vs CCE
CX - Appellants are holders of central excise registration for manufacture of excisable goods - During audit, it was observed that appellant had sold scrap of stamping by auction and as per the terms and conditions, bidder was required to lift the agreed quantity of scrap within a specified period on auctioned value - The person bidding was required to deposit certain amounts as earnest money for participating in bid process and it was provided that if successful bidder failed to lift the entire quantity and amount proportionate to quantity of scrap not lifted will be deducted from security deposit given by bidder - The deduction from security money made by appellant from money deposited by bidder as earnest money is sought to be added to bid value for determining transaction value for payment of central excise duty - A SCN was issued to appellant seeking to demand and recover an amount being amount of duty on additional consideration to the extent of forfeiture of security deposit made - Further, the notice also demanded interest under Section 11AB of Central Excise Act, 1944 and proposed penalty under Rule 25(l) of Central Excise Rules, 2002 read with Section 11AC of Central Excise Act, 1944 - Appellant submits that Earnest money deposit was taken by them to protect themselves in the event of breach of contract and not as a part of auction price - That Earnest money deposit is liable to be returned to purchaser after removal of scrap sold to him and cannot be adjusted against deliveries - Forfeiture of EMD is in case of non-payment and non-lifting of sold scrap and forfeited Earnest money deposit is an income on which income tax is paid - Once the full payment of auction sale is made by purchaser, full payment of excise duty is made simultaneously by the appellant - No merits found in impugned order, same is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-1051-CESTAT-AHM
Metal Gems Vs CCE & ST
CX - Appellant is engaged in manufacture of Copper and Copper Alloy articles - SCN was issued to appellant - Appellant have been requesting adjudicating authority to provide copy of relied upon and non-relied upon documents, same was not considered and impugned order was passed confiscating goods, confirming duty demand and imposition of penalty - Lower Adjudicating Authority had failed to follow requirement of Section 9D of the Act regarding examination in chief of witness - Charges of clandestine removal of goods cannot be upheld merely on assumptions and presumptions, but has to be proved with positive evidence such as purchase of excess raw materials, consumption of excess electricity, seizure of cash and transportation of clandestinely removed goods - Onus of proof of bringing clinching evidence is on Revenue - Clandestine manufacturing and removal of excisable goods is to be proved by tangible, direct affirmative and incontrovertible evidence relating to receipts of raw materials inside the factory premises, and non-accountal thereof in statutory records, utilization of such raw materials for clandestinely manufacture of finished goods, manufacture of finished goods with reference to installed capacity, consumption of electricity, amount received by the consignees, statement of the consignees, receipts of sale proceeds by the consignor and its disposal - All these material evidences are missing and the evidences brought into the record by department are incomplete, inconsistent and not a reliable piece of evidence to prove charges of clandestine removal - On this account also, no force found in department's finding - Accordingly, Tribunal do not hold the seizure/confiscation and set aside the redemption fine imposed on appellant: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-1050-CESTAT-AHM
West Wing Infrastructures Pvt Ltd Vs CC
Cus - The appellant have imported furniture from China - On the intelligence gathered by the DRI officers they have conducted detail investigation - A per outcome, it was found that under a systematic modus operandi, the appellant in collusion with the Chinese counterpart have undervalued the furniture to the extent of 17% and the undervalued amount have been transacted through hawala - Therefore, there was a clear admission of under valuation of the imported goods - Order-in-Original was passed wherein the declared value of the goods was rejected and value of goods was re-assessed - The goods were confiscated and redemption fine u/s 125 of the Act was imposed - Differential amount of duty was ordered to be recovered - Interest u/s 28AB was imposed - Personal penalties were imposed u/s 112(a) and 114A of the Customs Act - Penalty u/s 114A was also imposed on the appellant. Held - Under valuation has been established on the basis of confessional statements given by various witnesses in their statement - Therefore, more or less there is no dispute about the charge of under valuation against the appellant - The appellant have mainly harped on the excessive imposition of redemption fine - Considering the gravity of the offence committed by the appellant under a systematic modus operandi, the redemption fine imposed by the Lower Authority appears to be proper - The Commissioner (Appeals) in his order has dealt with each and every point very carefully and elaborately - From the finding and the facts of the present case, it is seen that the offence committed by the appellant has not been rebutted by the appellant in many words - Moreover, the under valuation has been clearly established on the basis of the statements given by various persons, which were never retracted - The transaction of the deferential value due to under valuation made by hawala has also been proved by the Revenue - In this facts and circumstances, we do not find any reason to interfere in the impugned order: CESTAT
- Appeal dismissed: AHMEDABAD CESTAT |
