2023-TIOL-726-HC-KERALA-MISC
State of Kerala Vs Hotel Diana
Whether Section 17A of the Kerala Tax on Luxuries Act,1976 contemplate the mandatory imposition of a penalty de hors a consideration of the circumstances that led to the submission of an incorrect or untrue return - NO: HC
- Writ Petition dismissed: KERALA HIGH COURT
2023-TIOL-534-CESTAT-DEL
Ajay Enterprises Pvt Ltd Vs CST
ST - The dispute relates to 'administrative charges' collected by appellant - The appellant is engaged in business of construction and development of real estate projects and selling the same to buyers, but if buyer subsequently transfers the ownership to some other person than appellant charges certain amount towards 'administrative' expenses - According to appellant, this amount is charged for correcting the entries in their records by substituting the name of earlier buyer with that of main buyer and are not towards 'real estate agent' service - Appellant is not involved in any sale or purchase of real estate per se nor is the appellant involved in introducing prospective buyer to any seller - The sale-purchase transaction takes place between two independent parties without involvement of appellant - It cannot, therefore, be urged that appellant has rendered any real estate agent service - Since the earlier decision rendered in own case of appellant has been considered and distinguished by subsequent Benches of Tribunal and it has been held that real estate agent service is not provided in such circumstances it has to be held that appellant has not rendered real estate agent service - It is, therefore, not possible to sustain the order passed by Commissioner, same is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-533-CESTAT-MUM
Credit Suisse Business Analytics India Pvt Ltd Vs CCGST
ST - The issue involved is, whether without invoking provisions of Rule 14 of Cenvat Credit Rules, 2004 the refund of Cenvat credit can be denied under Rule 5 ibid - In the matter of BNP Paribas India Solution Pvt. Ltd. 2021-TIOL-831-CESTAT-MUM this Tribunal while allowing the appeal of assessee therein allowed the refund claim u/r 5 ibid by holding that since the provisions of Rule 14 ibid has not been invoked, refund of Cenvat credit as claimed by assessee under Rule 5 ibid cannot be denied - It is settled legal position that in absence of any notice for recovery as provided by Rule 14 ibid, refund claimed by assessee under Rule 5 cannot be denied - The decision of Tribunal in Qualcomm India Pvt. Ltd. 2019-TIOL-3938-CESTAT-HYD has been affirmed by High Court of Hyderabad in 2021-TIOL-2305-HC-TELANGANA-ST by dismissing the appeals filed by revenue against aforesaid decision of Tribunal - The authorities below have erred in rejecting the refund claim of assessee - Accordingly, impugned order is set aside: CESTAT
- Appeals allowed: MUMBAI CESTAT
2023-TIOL-532-CESTAT-KOL
Bharat Coking Coal Ltd Vs CCGST & CE
CX - Appellant has availed CENVAT Credit of central Excise on inputs and service tax paid on input services, received in connection with construction and setting up of Coal Handling Plant (CHP) incl. Silo facilities, as its coal mines - Authorities have denied said credit on the ground that input services received by appellant does not constitute eligible 'input service' in terms of definition under Rule 2 (l) of Credit Rules, under the exclusion clause - Appellant submits that issue is no longer res-integra and has been decided in their favour by Division Bench of Tribunal in 2021-TIOL-682-CESTAT-KOL , wherein the credit was sought to be denied for earlier period from June 2013 to November 2015 - In view of categorically findings of Division Bench in favour of appellant, issue is no more res-integra and impugned order is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-531-CESTAT-KOL
CC Vs Best Mega International
Cus - The assessee imported old and used Digital Multifunction Printer and filed various bills of entry - The goods of the assessee were examined in the presence of Customs Officials, Chartered Engineer and representative of the appellant and found to be old and used having residual life of more than six years and the said machines were found to be minor reconditioning and values were assessed on the enhanced value as compared to declared value - The said value was arrived by Chartered Engineer after inspection and production of market value recommendations based on several aspects like useful life of machines/Make & Model/technology/country of origin/physical condition/comparison with similar goods imported in past/internet information/reconditioning etc. - It was held that the said consignment being second hand was restricted item in terms of Para 2.17 of Foreign Trade Policy, 2009 - 2014 and Para 2.33 & 2.33A of HBP and could be imported against valid license - On appeal, the Commissioner (Appeals) held that for the impugned goods, no license is required in terms of restrictions made under Para 2.17 of the Foreign Trade Policy 2009-2014 and Para 2.33 and 2.33A of HB Procedure - It was also held that the value can not be enhanced based on Chartered Engineer's Valuation - Hence the present appeal. Held - As was held in the case of Bhawani Enterprises for earlier import of identical goods, it was held that there was no restriction of import of the subject goods, we hold that no specific license is required for import of the impugned goods - We further find that for enhancement of value, the Chartered Engineer's Certificate cannot be relied upon unless there is corroborative evidence, we hold so - Hence there is no infirmity in the O-i-A in question and the same is upheld: CESTAT
- Appeal dismissed: KOLKATA CESTAT
2023-TIOL-530-CESTAT-DEL
Jai Kunkan Foods Vs CC
Cus - Appeal filed against impugned order whereby Commissioner (A) dismissed the appeal filed by appellant and affirmed the classification of their product, namely 'Papad' (Topioca) under CTH 19030000 and consequent differential duty - Appellant is engaged in business of manufacturing, trading and importing 'Papad' and clearing under heading 19059040, which is meant for 'Papad' - The settled principle for considering issue of classification as laid down in catena of judgments is principle of common parlance, how the product is known in commercial world - The term 'Tapioca' in Hindi is commonly known as 'Sabudana' and is available in market in granulated form by name of Sabudana - If a common man asks for Sabudana (Tapioca) he will not be given Papad (Tapioca) or vice-a-versa -So the basic test to determine the classification is how the product is known in market - Apex Court in Krishna Carbon Paper Co. 2002-TIOL-390-SC-CX emphasized that when no definition is provided in statute, correct guide is trade meaning and when trade meaning is not available ordinary meaning is to be preferred over scientific or technical meaning unless contrary intention is clearly expressed by Legislature - The reliance on Rule 3(a) by Revenue is solely on the basis of nomenclature, 'Tapioca' under CTH 1903 - Tribunal do not agree with submissions of revenue rather find that same principle would be more appropriately applicable, as 'Papad' is specifically provided under CTH 19059040 whereas the same do not find mention under CTH 1903 - In terms of Rule 3(a) goods in question cannot be classified under CTH 1903 and Rule 3(b) has no application and so on the principle of Rule 3(c), the term 'Papad' under CTH 19059040 occurs last in numerical order and it equally merits consideration therein - It is a settle principal of law that classification of goods is a matter relating to chargeability and burden to prove is squarely on revenue - If department intends to classify the goods under a particular heading or sub-heading different from that claimed by appellant, department is required to adduce proper evidence and thereby discharge the burden of proof - Said burden has not been discharge at all by revenue - Since issue of classification of product Papad (Tapioca) is decided in favour of appellant, question of extended period of limitation or of penalties do not survive: CESTAT
- Appeals allowed: DELHI CESTAT |
