2023-TIOL-566-HC-AHM-VAT
Control Plus Oil And Gas Solutions Pvt Ltd Vs Commissioner of State Tax
In writ, the High Court directs that the appeal be admitted for consideration of the substantial question of law raised therein. Notice be issued w.r.t. all the petitions. As ad interim relief, no coercive steps be taken to recover the tax amount. The petitioner is nevertheless obliged to pay tax with interest if adjudged by the court in conclusion.
- Appeal allowed: GUJARAT HIGH COURT
2023-TIOL-562-HC-DEL-CUS
CC Vs Taneja Aerospace And Aviation Ltd
Cus - The assessee filed the appeal (Customs Appeal No. 57/2010) impugning an order-in-original dated 20.11.2009, whereby the Adjudicating Authority (Commissioner of Customs) had raised a demand of Rs. 6,22,67,295/- (Rupees six crores twenty two lacs sixty seven thousand two hundred and ninety five) and further imposed a penalty of Rs. 3,00,00,000/- (Rupees three crores) under Section 112 of the Customs Act, 1962 - In addition, the Commissioner also directed confiscation of the aircraft imported by the assessee (hereafter 'the aircraft') under Section 111(o) of the Customs Act with an option to redeem the same by payment of a redemption fine of Rs. 6,50,00,000/- (Rupees six crores fifty lacs only) under Section 125 of the Customs Act - The allegation against the assessee was that it had not complied with the undertaking furnished in terms of the Condition 104 of the Notification No.21/2002-Cus. dated 01.03.2002 as amended by the Custom Notification No. 61/2007-Cus. (CUS dated 03.05.2007) - In terms of the Condition No.104, the aircraft is required to be used for providing non-scheduled (passenger) services - According to the Commissioner, the Revenue had not complied with the said condition and had used the aircraft for private purposes and not for providing non-scheduled (passenger) services.
Held - Insofar as the first question is concerned, the same is covered in favour of the Revenue and against the assessee by a recent decision of this Court in East India Hotels Ltd. v. Commissioner of Customs, Central Excise and Central GST, New Delhi - The question whether an undertaking, as furnished in terms of Condition 104 of the Notification in question is complied with or not is required to be considered by the Custom Authorities - The Custom Authorities are not bound by the decision of the DGCA - The other issues relate to whether the assessee complied with the Condition 104 of the Notification and had used the aircraft for providing non-scheduled (passenger) services - The said question is also covered by the decision in East India Hotels Ltd. v. Commissioner of Customs, Central Excise and Central GST, New Delhi - It is not disputed that the assessee has provided the said services for remuneration - Notwithstanding that the assessee has not published its tariff for providing the said services, it has nonetheless complied with the conditions of providing non-scheduled (passenger) services as defined in Explanation to Condition 104 of the Notification in question - Following such findings, the issues raised in the present appeal are also settled in favor of the assessee: HC
- Appeals partly allowed: DELHI HIGH COURT
2023-TIOL-375-CESTAT-MAD
CC Vs Dimension Data India Ltd
Cus - The assessee, an importer, filed an application for refund of 4% Special Additional Duty (SAD) levied under Section 3 (5) of the Customs Tariff Act, 1975 for import of Information Technology Equipment covered under various Bills of Entries through Air Cargo Complex, Chennai - The refund claim was filed in terms of Notification No.102/2007 dated 14.09.2007 - After due process of law, the original authority sanctioned an amount of Rs.37,98,594/- and rejected an amount of Rs.7,23,072/- - The adjudicating authority had rejected part of the refund claim as above pertaining to Bills of Entry where 4% SAD was paid by the assessee on the RSP based assessed goods without claiming the benefit of exemption Notification No.29/2010 dated 27.02.2010 - Thus, the original authority was of the view that the assessee being eligible to claim benefit of exemption Notification No.29/2010 for goods, ought to have sought for re-assessment and filed refund claim u/s 27 of Customs Act, 1962 instead of filing claim under notification 102/2007 - It was therefore held that as the assessee had not claimed the benefit of notification, the bills of entry in respect of such goods had to be reassessed as per the decision in Priya Blue Industries Ltd. Vs CC (Preventive) - Commissioner (Appeals) held that the rejection of refund claim of Rs.7,23,072/- on the ground that the Bills of Entries has to be reassessed cannot sustain and ordered for sanction of refund on this issue - On the other issues, the Commissioner (Appeals) held in favor of the Revenue.
Held - The present case involves a refund claim filed in terms of Notification No.102/2007 wherein the scheme is of refund only after payment of duty - In other words, one of the conditions that has to be fulfilled for claiming refund under Notification No.102/2007 is that the importer has to pay the CVD at the time of import of the goods - The assessment therefore is in order and does not require reassessment - There is no excess duty paid - For these reasons, the reliance placed by A.R on the decisions is not applicable to the facts of the present case - Though the assessee may be eligible for benefit of CVD in terms of Notification No.29/2010, it is it's option to avail or not to avail the exemption - They have later claimed refund of the CVD paid by them - The original authority has rejected part of the refund claim in regard to some of the goods for which the benefit of Notification 29/2010 would be applicable, and held that without reassessment refund claim cannot be sanctioned as they are eligible for benefit of notification No.29/2010 - Such view is not a tenable one - Hence the view taken by the CIT(A) is proper & legal: CESTAT
- Appeal dismissed: CHENNAI CESTAT
2023-TIOL-374-CESTAT-CHD
Lovely Traders Vs CCE & ST
ST - The appellant are franchisee of BSNL for providing the service of promotion and marketing and distribution of various products of BSNL for which they were receiving the commission and was not paying service tax thereon - During the audit, this fact was noticed by the Department and a SCN was issued on12.1.2007 to the appellant for demand of Rs.77,578/- for the period 1.9.2006 to 31.3.2007 which was confirmed ex-parte vide Order-in-Original dated 19.12.2008 - Aggrieved by the said order, the appeal filed by the appellant before the Commissioner (Appeals), who upheld the Order-in- Original - Hence the present appeal.
Held - The issue is no more res integra in view of the judgement in the case of Goyal Automobiles which was not challenged by the Revenue before the appellate authority, wherein the impugned order had built its foundation on the assumption that appellants therein render "business auxiliary service" in relation to SIM cards and hence liable to tax on the commission earned by the appellant therein - Such order had subsequently been set aside in light of settled precedent - In the present appeal, M/s BSNL has already deposited service tax on commission received by the appellant, which is clear from the certificate produced by them on record - Hence the order merits being set aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
2023-TIOL-373-CESTAT-BANG
Ace Test Labs And Consultancy Vs CCT & CE
ST - Issue relates to imposition of penalty under Sections 77 and 78 of Finance Act, 1994 - While imposing penalty of Rs.5000/- under Section 77 and penalty under Section 78, Commissioner(A) observed that since the assessee paid demanded service tax along with interest hence they can avail the benefit of discharging 25% of penalty as per Section 78(1) of Finance Act, 1994 - A plain reading of said section makes it clear that if assessee proves that there was a reasonable cause for failure in discharging service tax liability, then not withstanding anything contained in Section 76, 77 and 78 penalty shall not be imposable - Assessee collected service tax during the period 01/10/2008 to 31/03/2013 from service receivers but failed to deposit the same with Government Treasury - Advancing reasons for non-payment of service tax even though collected, it has been submitted by assessee that during relevant period, they were under severe financial crisis - This cannot be a reasonable cause for non-payment of service tax even though collected from customers but not deposited with Government - Also, the process of payment of collected service tax was commenced only after Department initiated investigation and issued demand notice to appellant - The circumstances of financial difficulty in arranging funds for payment of service tax collected and raising funds for treatment of her daughter cannot be a ground to invoke Section 80 for setting aside the penalty imposed under Sections 77 and 78 of Finance Act, 1994 - If there is reasonable cause for failure to make deposit, then only Section 80 would be attracted - Impugned order is upheld and the appeal, being devoid of merit, is accordingly rejected: CESTAT
- Appeal rejected: BANGALORE CESTAT
2023-TIOL-372-CESTAT-MUM
Saniya Bakers Vs CCE
CX - The issue involved is denial of small scale exemption under Notfn 8/2003-CE as amended, for period from September 2003 to August 2013 on the ground that goods manufactured by appellant under brand name of 'Kwality' which does not belong to them could not be entitled for exemption under said notfn - Revenue after undertaking investigation has concluded that appellant has contravened the provisions of said Notfn as amended, as the brand name or trade name which has been used by them is not belonging to them - Accordingly, SCNs were issued to them - Commissioner (A) has himself for the period from September 2003 onwards allowed the appeal in favour of appellant and held that appellant is entitled to SSI Exemption Notfn 8/2003 CE as amended - Order of Commissioner (A) has been accepted by Revenue and no further appeals have been filed - Impugned orders set aside: CESTAT
- Appeals allowed: MUMBAI CESTAT
2023-TIOL-371-CESTAT-MUM
Shreyas Intermediates Ltd Vs CCE
CX - Appellant is a 100% EOU engaged in manufacture of copper phthallo cynine blue crude - It was alleged that appellant was resorting to suppression of production and clandestine clearances of excisable goods manufactured by it - SCN was issued to appellants - The entire order has been passed without considering any submissions made by appellant, which runs into 83 pages - Though the statements of various persons have been relied upon by Commissioner, specifically of Shri Kamlesh S. Patil, his cross-examination though asked for has not been allowed or rejected in impugned order - Impugned order is totally a non-speaking order passed in violation of principles of natural justice and cannot be sustained - Adjudicating authority is obligated under law to consider the submissions made in response to SCN and any order passed without consideration of submissions is in violation of the principles of natural justice - Matter is remanded back to original authority for passing a speaking order taking into consideration the request for cross-examination of Shri Kamlesh S. Patil - As the matter is 11 years old, Commissioner should finalise the matter in remand proceedings within three months: CESTAT
- Matter remanded: MUMBAI CESTAT
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