2023-TIOL-272-HC-AHM-ST
SK Likproof Pvt Ltd Vs UoI
ST - Petitioner challenges the action of respondent no.2 for not issuing Form SVLDRS 4 as per SVLDRS, 2019. Held: Statement under Section 127 of the Finance Act 2019 in SVLDRS form was issued intimating the petitioner to make payment of Rs 81,050.60/- as full and final settlement under the SVLDRS scheme - Petitioner made the payment through NEFT of Rs 81,051/- within six days from the date of SVLDRS-3, however, due to technical glitches, the amount could not be debited and got re-credited in his account - Both the times, it had twice been recredited in his account and therefore, for the third time, it needed to make a payment and by then, the time limit prescribed had already been over - Applying the ratio laid down by the Apex Court [ 2023-TIOL-04-SC-ST ] mutatis mutandis in the case of the present petitioner who was not under the fault when this amount could not get deposited with the bank and was recredited after having once gone to the bank, to deny him the benefit only because there were technical glitches about which it could not have done anything, would amount to leaving the petitioner remediless which is impermissible under the law - When the deposit within the stipulated time period is not disputed by the respondent and the technical glitch being the reason of the software not functioning of the bank that would surely not hold the petitioner liable or accountable for non-payment - Therefore, not only the respondents denial for considering the case but later recovery of the entire amount of Rs 7,68,675/- on 11.7.2022 shall need to be reverted/refunded to the petitioner along with interest - respondent no. 2 is directed to consider the payment made by the petitioner of Rs 81,051/- to appropriate the same towards the settlement dues under the SVLDRS 2019 and the discharge certificate to be issued - Petition is allowed: High Court [para 13, 14, 15, 22, 23]
- Petition allowed: GUJARAT HIGH COURT
2023-TIOL-160-CESTAT-KOL
Bengal Ambuja Housing Development Ltd Vs CCGST & CE
ST - Appellant is engaged in construction of commercial properties - After completing construction, some portion of commercial property is sold and balance portion is retained by them for leasing out to various lessees - A SCN was issued to them by invoking extended period provisions demanding reversal of Cenvat Credit - Appellant has taken Cenvat Credit of Rs. 2,29,99,232/- during period under consideration - When they are not eligible for Cenvat Credit on account of constructed property which is sold, they have been regularly reversing the Cenvat Credit - In respect of constructed portion which is leased out by them, there is no dispute that Service Tax is being paid on the lease amount received by them - On similar/identical issues, Tribunals and High Courts have been consistently holding that inputs used for construction of immovable property is eligible for Cenvat Credit when Service Tax is paid on service provided - As per factual evidence reproduced by appellant in form of ST-Returns and letters filed with Department from time to time with regard to Cenvat Credit taken and reversed by them in course of their business, Department has not made out any case against appellant towards suppression - Therefore, demand for the extended period is required to be set aside on account of time bar: CESTAT
- Appeal allowed: KOLKATA CESTAT 2023-TIOL-159-CESTAT-AHM
Effective Teleservice Pvt Ltd Vs CCE & ST
ST - Appellant have received telecom service from abroad - In normal course, assessee who received the service from abroad is liable to pay service tax in terms of Section 66 A read with Rule 2(1)(d)(iv) of Service Tax Rules, 1994 - Service involved is telecom service which is chargeable to service tax only when service is provided by a person who has been granted a Licence under first proviso to section 4(1) of Indian Telegraph Act, 1885 - Admittedly, appellant do not possess the Licence under first proviso to section 4(1) of Indian Telegraph Act, 1885 - Therefore, even though the service is a telecom service but not as per statutory definition of telecom service hence the same is not taxable - From the circular F.No. 137/21/2011 -ST it is clear that appellant being not holding Licence under Telegraph Act, 1885 is not liable to pay service tax - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT 2023-TIOL-158-CESTAT-BANG
Mangalore Refinery And Petrochemicals Ltd Vs CCE & CT
CX - A SCN was issued to appellant by invoking extended period of limitation proposing to disallow and recover credit in terms of Rule 14 of CENVAT Credit Rules, 2004 - The preliminary objection raised by appellant from very beginning of proceedings is regarding invoking extended period of limitation and in spite of repeated proceedings before adjudication and Appellate Authorities, there is no finding to said aspect - Though, Adjudicating Authority in de novo adjudication held that present de novo proceedings are being taken up on specific remand and directing Original Authority to examine only those issues which have been subjected to matter of original demand hence the issue of refund is neither the subject matter of SCN nor subject to remand order of Commissioner (A) - Therefore raising the refund issue at this stage and also examining the said contentions in this order are travelling beyond the scope of remand directions of the Appellate Authority - Once there is no averment either in SCN or impugned orders regarding availment of benefits by suppression of fact or fraud, invoking extended period of limitation is not proper and considering the law laid down by Apex Court in J.B. V Jewels 2004-TIOL-83-SC-CUS , appeal allowed on the ground of limitation without going into the merits of case: CESTAT
- Appeal allowed: BANGALORE CESTAT
2023-TIOL-157-CESTAT-MAD
Surin Automotive Ltd Vs CGST & CE
CX - SCN was issued to assessee proposing to deny credit for the period from April 2012 to March 2014 along with interest and for imposing penalties under Rule 15(2) of CENVAT Credit Rules, 2004 r/w Sec. 11AC of Central Excise Act, 1944 - Original authority confirmed the demand along with interest and imposed equal penalty - Assessee is contesting only equal penalty imposed by authorities below - Assessee had paid duty along with interest and 25% of penalty on receipt of O-I-O - Adjudicating authority has not given option to pay 25% of penalty in order passed by him - The jurisdictional High Court in AP Steels 2017-TIOL-1571-HC-MAD-CX had occasion to analyse a similar issue and held that assessee has to be given an option to pay 25% penalty if they are paying duty along with interest within 30 days of receipt of order - Similar issue was decided by High Court of Delhi in case of K.P. Pouches (P) Ltd. 2008-TIOL-240-HC-DEL-CX - Following the decision of AP Steels, Tribunal views that payment of 25% of penalty amount paid by appellant would suffice - The impugned order confirming the equal penalty is set aside without disturbing confirmation of duty and interest: CESTAT
- Appeal partly allowed: CHENNAI CESTAT
2023-TIOL-156-CESTAT-DEL
Pr.CC Vs Lava International Ltd
Cus - Issue arises for consideration is as to whether refund could have been claimed by assessee as the Bills of Entry were amended under section 149 of Customs Act, 1962 and whether the refund claims filed by them were barred by time - The order carrying out an amendment in Bills of Entry under section 149 of Customs Act attained finality, as department did not challenge these orders in appeal - It is only during course of refund applications that department took a stand that since the order of assessment was not assailed by assessee in appeal under section 128 of Customs Act, refund applications could not be allowed - Such a stand could not have been taken by Department - If department felt aggrieved by order seeking an amendment in Bills of Entry under section 149 of Customs Act, it was for department to have assailed the order by filing an appeal under section 128 of Customs Act - This plea could not have been taken by department to contest the claim of assessee while seeking refund filed as a consequence of reassessment of Bills of Entry or amendment in Bills of Entry - Commissioner (A), therefore, committed no illegality in taking a view that refund has to be granted to assessee as the order for amendment in Bills of Entry had attained finality - As regards to second issue, Commissioner (A) held that if section 149 of Customs Act relating to amendment in Bills of Entry is made applicable, cause of action for claiming refund would arise only after amendment is made and so the limitation for claiming refund would start from that date - No illegality found in said order of Commissioner (A) holding that the refund claims were not barred by time: CESTAT
- Appeals dismissed: DELHI CESTAT |
