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2023-TIOL-567-HC-AHM-GST
Anita Govindkumar Vanjani Vs State of Gujarat
GST - Petitioner has prayed to direct the revenue to rectify the summary order in terms of rectification application filed by petitioner - It is next prayed to set aside the said order and remand the case so as to avail the petitioner an opportunity of being heard - It is the case of petitioner that he informed the authority explaining the discrepancy, however, office has proceeded to issue SCN under Section 73 of Goods and Services Tax Act - It was stated by petitioner that they uploaded the reply to SCN and again explained the differences between two forms submitted for month of October - It was submitted that discrepancy arose because in the first form details of sale transaction of previous month were also mentioned - The explanation did not find favor with revenue who issued impugned order confirming demand raised by authority in SCN - It appears that petitioner has filed rectification application immediately after said order invoking provisions of Section 161 of Goods and Services Tax Act - Said provision permits rectification of errors apparent on face of record, according to petitioner, discrepancy is only an error apparent which does not amount to illegality - Interest of justice would be sub-served if application for rectification filed by petitioner is directed to be decided by competent authority within a time frame - The competent authority is directed to decide rectification application after opportunity to be given to both the sides, within a period of eight weeks - Until the rectification application is decided, impugned order shall not be enforced, subject to outcome of decision of rectification application - This court has not gone into muchless expressed any opinion on the merits of case of petitioner: HC
- Writ petition disposed of: GUJARAT HIGH COURT
2023-TIOL-380-CESTAT-MAD
Molax Powder Coating Vs CCE & ST
ST - The assessee is engaged in the process of "powder coating" on job work basis to M/s. Kanchi Fabrications (P) Ltd. and this prompted the Revenue, for the period from July 2006 to October 2008, to issue a SCN dated 06.07.2009 thereby proposing to demand Service Tax under the category of 'business auxiliary service' - Thereafter, Order-in-Original No. 05/2011 (ADC), dated 31.01.2011 came to be passed confirming the demands, as proposed, against which it appears that the assessee approached the First Appellate Authority; but however, even the First Appellate Authority having dismissed their appeal vide Order-in-Appeal No. CMB-CEX-000-APP-157-13 dated 23.04.2013, the present appeal has been filed before this forum - The only issue that is to be decided in the present case is whether the activity of job work, as involved in the present case, rendered by the assessee would amount to manufacturing activity so as to take the same out of the purview of 'business auxiliary service' under Section 65(19) of the Finance Act, 1994.
Held - The Larger Bench of the CESTAT in the case of Commissioner of Service Tax, New Delhi v. M/s. Melange Developers Pvt. Ltd. has held that the Service Tax liability of a sub-contractor would never cease, even when the main contractor remits Service Tax - Thus, the contention of the appellant that there was no Service Tax liability on the part of the assessee, being a sub-contractor, would not hold any water in view of the decision of the Larger Bench - Hence, the assessee has no case on merits: CESTAT
- Appeal dismissed: CHENNAI CESTAT
2023-TIOL-379-CESTAT-MAD
Hari And Company Vs CCE & ST
ST - The appellant, admittedly, is a Customs House Agent and it appears that the Revenue noted the fact that the appellant had rendered services of loading, unloading and transport of imported Potash from port area to the godown as a sub-contractor of M/s. Aspinwall & Co., Tuticorin, for which they had received an amount of Rs. 2,13,41,222/-, and that made the Revenue to assume that although the above service was classifiable under 'cargo handling service', the appellant had not paid applicable Service Tax for the same - This prompted the issuance of the SCN dated 20.09.2010 thereby proposing to demand the above from the appellant - The appellant had filed its reply claiming that the main contractor namely, M/s. Aspinwall & Co., having remitted the applicable Service Tax, there was no liability on the part of the sub-contractor, i.e. the appellant, to pay Service Tax once again - However, after due process, in adjudication, the Adjudication Authority after considering their explanation, vide Order-in-Original No. 06/ADC/ST/2012 dated 05.03.2012, has proceeded to confirm the demands as proposed - The appellant preferred an appeal before the First Appellate Authority and the First Appellate Authority also disagreeing with their pleadings, thereby dismissing their appeal vide impugned Order-in-Appeal, have assailed the same in this appeal before this forum.
Held - The appellant, as a sub-contractor, was duty bound to discharge the tax liability, perhaps the communication dated 12.07.07 issued by the main contractor i.e., M/s. Aspinwall & Co., prompted them to believe that the tax had indeed been remitted - The villain appears to be M/s. Aspinwall & Co. who misled the appellant or made the appellant believe that it had remitted tax and in turn, made the appellant rely on the letter dated 12.07.07 issued by it in response to Show Cause Notice issued by the Department - This, according to us, is a sufficient reason and other than this, we do not find any documents being brought out on record by the Revenue to prove mala fides on the part of this appellant, so as to justify invoking the larger period of limitation in this case. It is also a fact borne on record that the main contractor has not denied the fact of having collected full consideration including Service Tax from the clients - On a similar set of facts, in the case of another sub-contractor viz. M/s. Vinoth Shipping Services , we find that the Chennai Bench of the CESTAT has given a finding that there was no factual basis for invoking the extended period, though declining to entertain the appeal on merits, but allowing the assessee's contention on invoking of the extended period of limitation - The fact of suppression, etc., has not been established by the Revenue to justify invoking the extended period of limitation and therefore, in view of our discussions in the above paragraphs, the ratio of the order of this Bench in the case of M/s. Vinoth Shipping Services , wherein the order of the Larger Bench in M/s. Melange Developers Pvt. Ltd. was followed, squarely applies here too - For these reasons, the order cannot sustain - The duty demand pertaining to the extended period cannot sustain - However, the demand pertaining to the normal period is sustained: CESTAT
- Appeal partly allowed: CHENNAI CESTAT
2023-TIOL-378-CESTAT-DEL
Jawaharlal Nehru Sahakari Agri P P Society Ltd Vs CC & CE
CX - Assessee is in appeal against order of Commissioner (A) whereby he dismissed the appeal on account of non-deposit of pre-deposit amount of 7.5% as required - Assessee has now deposited the mandatory pre-deposit of 10% of disputed amount - Since the appeal has been dismissed by Commissioner (A) only on the ground that mandatory pre-deposit of disputed amount was not complied with by assessee at the time of filing appeal, said compliance has been made by assessee and thus requisite pre deposit has been deposited - Matter is remanded back to Commissioner (A) to be considered on merits, more so as the stand taken by assessee is that the issue on merits is covered by decision of Apex Court in DSCL Sugar Ltd., 2015-TIOL-240-SC-CX - Impugned order is, therefore, set aside: CESTAT
- Matter remanded: DELHI CESTAT
2023-TIOL-377-CESTAT-DEL
Sourabh Rolling Mills Pvt Ltd Vs CCE & ST
CX - Appellants are in appeal against impugned order wherein demand of duty has been confirmed against them and also penalties on both the appellants have been imposed - A SCN was issued to appellants to demand duty on yield production worked out on raw material and duty of finish goods as per assessable value - Charge of clandestine removal cannot be based on series of assumption and presumption, where it should be based on evidence like unaccounted purchase of raw material receipt and consumption of raw material - Therefore, demand on the basis of yield production of raw material of sponge iron 403.51 metric ton found short is not acceptable, but at the same time, as no explanation was given by appellant for shortage of raw material, if any Cenvat credit taken by appellant on sponge iron is required to be reversed alongwith interest - With regard to shortage of M.S. Ingot, no explanation was given by appellant during investigation and defence taken by appellant that no search warrant was issued to appellant, Investigating Agency found during the course of investigation of another unit, some illegal activity like clandestine removal of goods found, in continuation of search, search of Unit can be done - Therefore, said argument is not acceptable - Further, appellant has submitted that SCN is barred by limitation - As if investigation could not have been done, clandestine removal of goods could not be detected and investigation was continuing process and after completion of investigation, SCN has been issued to appellant - Therefore, it cannot be held that SCN issued to appellant is barred by limitation - Appellant argued that cross-examination of witnesses has not been granted - It is an evidence based case as at the time of search, raw material and finish goods were found short which is evident from records and duty has been demanded on the basis of said records - This case is based on records found during investigation and no statement is relied to demand duty - Thereafter, appellant is liable to pay duty on shortage of finish goods - Appellant is required to reverse Cenvat credit on shortage of sponge iron (if any) and liable to pay duty on M.S. Ingots found short - Duty is payable alongwith interest and penalty imposed on appellant shall be equivalent to duty payable - Penalty on Shri Pankaj Agrawal is reduced to Rs. 5,00,000/- : CESTAT
- Appeals disposed of: DELHI CESTAT
2023-TIOL-376-CESTAT-DEL
Gurmeet Singh Kohli Vs CC
Cus - The only part of impugned order relevant to appellant is imposition of penalty on him under Section 114AA of Customs Act, 1962 for his omissions and commissions - It is undisputed that appellant had sold DEPB licences to M/s. Whirlpool India and these licences were obtained from DGFT by submitting forged documents - In his statement, appellant admitted to having sold these DEPB licences but said that he was not aware that they were obtained based on forged Bank Realisation Certificates - He also said that he kept no record of licences which he sold and received commission in cash - In subsequent statement, he agreed that he had prepared/created forged Bank Realisation Certificates against exports and submitted them to DGFT and obtained DEPB licences and sold them - For these reasons penalty of Rs. 3,00,000/- was imposed on appellant under Section 114AA of Customs Act, 1962 - Evidently, appellant has, by his role caused fraudulently obtained DEPB certificates to be used in Bills of Entry filed by importer which falls squarely within the scope of Section 114AA ibid - DEPB certificates obtained based on forged bank realization certificates were sold by appellant to importer and thereby caused the importer to make incorrect declarations in Bills of Entry - Impugned order is just and fair and calls for no interference: CESTAT
- Appeal dismissed: DELHI CESTAT
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