2023-TIOL-457-HC-MUM-CUS
Bora Mobility Vs UoI
Cus - Revenue states that O-I-O is passed on 25 February 2023 - It is stated by petitioner that in light of this order passed, their grievance stands redressed as regards the subject matter of petition is concerned and as regards the other issue such as interest, petitioner will adopt other remedies: HC
- Writ petition disposed of: BOMBAY HIGH COURT
2023-TIOL-456-HC-DEL-CUS
CC Vs Reliance Commercial Dealers Ltd
Cus - Revenue has projected questions for consideration i.e., whether Tribunal is right in holding that Customs Authority cannot examine whether the appellants have fulfilled condition of exemption notification - Whether Tribunal is right in holding that non-scheduled (passenger) operator can carry out charter service - Insofar as first question is concerned, same is covered in favour of Revenue and against assessee by a recent decision of this Court in East India Hotels Ltd. 2023-TIOL-156-HC-DEL-CUS - The question whether an undertaking, as furnished in terms of Condition No.104 of Notification in question is complied with or not is required to be considered by Customs Authorities - The Customs Authorities are not bound by decision of DGCA - The other questions relate to whether assessee had complied with Condition No.104 of Notification and had used aircraft for providing non-scheduled (passenger) services - Said question is also covered by decision in East India Hotels Ltd. - Assessee has provided said services for remuneration - Notwithstanding that assessee has not published its tariff for providing said services, it has nonetheless complied with conditions of providing non-scheduled (passenger) services as defined in Explanation to Condition No. 104 of Notification in question - Insofar as question whether assessee has complied with Condition 104 of Notification is concerned, said question is answered in favour of assessee in view of decision of this Court in East India Hotels Ltd. - A ppeal is disposed of: HC
- Appeal disposed of: DELHI HIGH COURT
2023-TIOL-305-CESTAT-DEL
Pr.CC Vs Telecare Network India Pvt Ltd
Cus - Revenue is in appeal against impugned order passed by Commissioner (A), whereby he upheld the O-I-O sanctioning refund to assessee - Issue was decided by High Court of Delhi in its judgement and matter was remanded to original authority to decide the refund on merits - It is also evident from judgment that question of limitation was asserted by Revenue before High Court and it was not accepted - Therefore, there was no error on part of either the Assistant Commissioner or Commissioner (A) in sanctioning the refund without considering limitation as both authorities were bound by order of Delhi High Court - As far as unjust enrichment is concerned, from Chartered Accountant's certificate it is evident that duty was not passed on and it was treated by assessee as a receivable - Revenue has not produced even a shred of evidence either to establish that Chartered Accountant's certificate was wrong or to establish that duty was indeed passed on to the buyers - Assessee asserts that M/s Naveen Associates were their statutory auditors during relevant period - In absence of any evidence by Revenue on this count, submission by assessee that during relevant period, M/s Naveen Associates were their Chartered Accountants must be accepted - Even otherwise, there is no requirement in law that a certificate must be issued only by statutory auditors - So long as the certificate is issued by a Chartered Accountant and it is consistent with accounts such as Balance Sheet and Profit and Loss statement, certificate deserves to be accepted - Appeal filed by Revenue deserves to be dismissed: CESTAT
- Appeal dismissed: DELHI CESTAT
2023-TIOL-304-CESTAT-BANG
Musthafa Rowther Vs CCT & CE
ST - Appellant is registered under the category of "Commercial Training or Coaching Services" -Commissioner (Appeals) in his order dated 11.11.2016 while deciding the twin issues i.e., (i) whether it is the appellant is required to pay service tax on the total amount collected from the students, or whether they are to pay service tax on only the amounts they receive from NIFE, which is 80% of the amounts collected from the students and (ii) whether the cost of study materials are to be included in the gross value of taxable services, held both the issues in favour of the appellant and set aside the demands - Consequently, the appellant filed refund claims which were rejected by the original and appellate authorities on the ground that the supplementary payments made by the appellant were amounts paid in excess and, hence, the Commissioner(A) order cannot be considered as relevant date; that the relevant date will be the date of payment of tax and since the claim is beyond one year from the date of payment of tax, the claims are time barred - Appeal filed before CESTAT. Held: In the impugned order dated 11.11.2016, the Commissioner(A) it has been categorically that the amounts paid by the appellant is an excess amount over and above the tax liability - Karnataka High Court in the case of Way2wealth Brokers (P) Ltd. [ 2021-TIOL-1969-HC-KAR-ST ] has held that when there is a lack of authority to collect such service tax not liable to be paid by the Assessee, it would not give the department the authority to retain the amount paid by the Assessee; that relevant date as stipulated in s.11B (as made applicable to service tax matters) is not applicable when the amounts are paid in excess and collected without any authority of law - Madras High Court in the case of Electro Steel Castings Ltd. [ 2013-TIOL-595-HC-MAD-CX ] has held where the appellant has challenged the levy of duty/tax, the payments made are to be deemed to be made under protest - Bench, therefore, sets aside the impugned order of Commissioner(A) and allows the refund claims - Authorities are directed to refund the amount within a period of three months: CESTAT [para 5.1, 5.3, 5.4, 6]
- Appeal allowed: BANGALORE CESTAT
2023-TIOL-303-CESTAT-AHM
HIL Ltd Vs CCE & ST
CX - The issue involved is that whether appellant is liable to pay 6/7% of value of traded goods considering the same as exempted goods when cenvat credit was availed on common input service attributed to dutiable goods as well as exempted service i.e. trading activity, in this case, when appellant was admittedly reversing proportionate credit attributed to trading activity along with interest - Though initially the appellant have taken cenvat credit on common input service which were used for manufacture of dutiable goods as well in relation to exempted service i.e. trading activity, however, on pointing out by department, appellant have calculated proportionate credit in respect of common input service attributed to trading activity and paid the same along with interest - After payment of such proportionate credit, situation became as if no cenvat credit was taken in respect of common input service attributed to trading activity as held by Supreme Court in case of CHANDRAPUR MAGNET WIRES (P) LTD. 2002-TIOL-41-SC-CX - This tribunal time and again taken a view that whether option is availed in advance or later stage it is prerogative to assesse to choose any one of the option - Therefore, merely because the appellant at relevant time did not opt for any of option, revenue cannot impose upon the appellant a particular option i.e. payment of 6/7% of value of goods/service - Therefore, once it is admitted fact that appellant have reversed the cenvat credit in respect of common inpout service attributed to trading activity and also paid the interest thereon at relevant time, no demand of 6/7% of value of trading activity will sustain - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
