|
2023-TIOL-94-SC-CX
CCE & Customs Vs Reliance Industries Ltd
CX - Section 11A of CEA, 1944 - Appeals by Revenue are directed against the order passed by CESTAT [ 2009-TIOL-530-CESTAT-AHM ] allowing the appeals filed by the assessee - CESTAT has held that during the relevant period the Appellant could have entertained a bonafide belief that it had correctly discharged its duty liability in view of the view taken by the Tribunal in the case of IFGL Refractories Ltd. [IL's case] which came to be reversed by this Court only on 9.8.2005 [ 2005-TIOL-103-SC-CX ] - Insofar as the decision on time bar is concerned, the view of the two learned members who constituted the division bench of CESTAT was unanimous, however, difference of opinion, arose only on the merits of the matter, which also came to be decided in favour of the assessee by a 2-1 majority - Arguments before the Bench in the present Civil Appeals are confined to the issue of limitation.
Held: Bench has seen the format of the ER-1/RT-12 return which the assessee was required to file on a monthly basis for intimating to the department the value of clearances effected and the amounts of duties paid thereon - Bench does not find any separate column or requirement in these forms for declaring the value and other details of clearances effected to the deemed export buyers i.e. holders of advance licenses - Note 4 under Form ER-1 does require separate details to be mentioned for exports under bond - In the absence of any specific column or note similar to note 4, requiring separate disclosure of the value of deemed export clearances, Bench does find any merit in the findings of the adjudicating authority that there was suppression of facts as a consequence of assessee's failure to separately disclose the value of deemed export clearances - An accusation of non-disclosure can only be made if there is in the first instance a requirement to disclose - Revenue cannot be permitted to argue its matters by going beyond the written pleadings filed by it before this Court - The mere fact that the oral arguments are supported by findings of the adjudicating authority, which is not the order impugned before this Court, does not entitle the Revenue to resurrect a point which, though made at the original stage, was never pressed before the Tribunal or even incorporated in the memo of appeal filed before this Court - Bench cannot allow the Revenue to blow hot and cold in the same breath by relying upon IL's case on merits while at the same time arguing that the same had no relevance for the purposes of examining the plea for a bonafide belief - The mere fact that the belief was ultimately found to be wrong by the judgment of this Court does not render such belief of the assessee a malafide belief particularly when such a belief was emanating from the view taken by a division bench of Tribunal - An assessee can be accused for suppressing only such facts which it was otherwise required to be disclosed under the law - Assertion that there was suppression of facts is therefore clearly not tenable - In the result both the appeals filed by the Revenue are dismissed on the ground that the demands are time barred: Supreme Court [para 20, 21, 22, 23, 25, 26]
- Appeals dismissed: SUPREME COURT OF INDIA
2023-TIOL-765-HC-MUM-CUS
Dipali Electronics Pvt Ltd Vs UoI
Cus - Petitioner was engaged in manufacture and selling of various electrical/electronic goods which used to be sold to various domestic buyers and held a small scale industries license in Daman - A SCN was issued alleging that petitioner had conspired in alleged mis-declaration and undervaluation of Modems imported by one M/s. Hindustan Engineering Corporation - By an order dated 30th December 2008, CESTAT was pleased to waive predeposit of entire penalty imposed on Petitioner and stayed recovery thereof till disposal of appeal - On or about 14th December 2017, after 9 years of petitioner being granted stay, their appeal came to be dismissed by an ex-parte order - It is petitioner's case that it had never received any notice of hearing and hence could not attend the hearing before CESTAT - Petitioner immediately filed an application for rectification of mistake before CESTAT which came to be rejected by an order dated 16th October 2018 - When petitioner has been accused of having played role in procurement of electronic systems and parts for manufacture of automated teller machines and petitioner has been imposed penalty of Rs. Seventy Five Lakhs under Section 112 of Customs Act, 1962 for its alleged role in import effected by M/s. Hindustan Engineering Corporation and petitioner having challenged those findings in appeal, CESTAT should have specifically dealt with grounds of challenge raised by petitioner and should have given independent findings as regards role of petitioner - Not having done so and in view of the fact that averment of petitioner that they were not given notice of hearing, which has not been denied, in the interest of justice, petitioner should be given hearing by CESTAT - If a party does not turn up, it is not possible for CESTAT to go through the entire appeal of party, consider the grounds and pass a detailed order - At the same time, CESTAT ought to have checked if a party has been properly served before proceeding to hear the matter and pass the order - Impugned order is set aside: HC - Petition disposed of: BOMBAY HIGH COURT 2023-TIOL-764-HC-P&H-ST
Schlumberger Asia Services Ltd Vs UoI
ST - SVLDRS, 2019 - Petitioner claims to have deposited an amount of Rs.5,94,68,006/- under protest qua show cause notice issued for the financial year 2016-17 - During the pendency of the appeal, respondent promulgated the 2019 Act with an intent to achieve resolution and settlement of legacy cases of Central Excise and Service Tax - The petitioner claims himself to be eligible to claim the benefit of scheme by filing requisite declaration - However, it has been claimed that provision as contained in Section 124 of the Act only allows adjustment of pre-deposits made during the appellate proceedings or deposit made during an enquiry, investigation or audit, but any amount deposited other than the pre-deposit is not qualified for adjustment - Petitioner submits that the offending provision as contained in Section 124(2) and the proviso appended thereto and so contained in Section 130(2) of the Act breed hostile discrimination - Petitioner claims that it benefits those who merely deposited pre-deposit amount viz-a-viz honest assessee like the petitioner, who are contesting the demand after having deposited the same under protest - Respondent UOI have submitted in their written statement that the scheme is optional in nature and there is no compulsion for an assessee to opt for the same which itself is sufficient to demolish the case of the petitioner.
Held: While declaring the scheme, legislature in its own wisdom has repeatedly reiterated that the declarant under the scheme shall not be entitled for any refund irrespective of the fact as to whether the amount of pre-deposit or deposit already paid by the declarant exceeds the amount payable under the scheme - Petitioner is wrong in ascertaining that Section 124 violates Article 14 and breeds hostile discrimination - Trite it is wooden equality is neither feasible nor the mandate of Part-II of the Constitution of India - The object of the scheme is to liquidate the legacy dispute and not to grant any kind of amnesty. It is a legislation to reduce the legacy litigation against positive payment of a part of the disputed dues of tax to encourage voluntary disclosures of undisclosed evaded taxes with an intent to end old or pending indirect tax disputes - As per settled law statutes are not to be construed as theorems of Euclid but with some imagination of the purpose which lie behind them - The interpretation cannot be too literal in meaning of words that it misses the soul and sees the skin only - Provisions contained in Sections 124 and 130 of the Act have close nexus and are in consonance with the objective sought to be achieved by the legislature in enacting the Act - The object sought to be achieved is to end the disputes without creating liabilities - Legislature in its own wisdom in order to achieve the objective of encashing the disputes has reiterated the underlying condition i.e. no refund has to be granted - The scheme is optional - The petitioner is under no obligation to opt for the same - Petitioner may opt after weighing benefits or may opt to continue with pending appeal - Petition dismissed: High Court [para 10, 11, 13, 14, 16]
- Petition dismissed: PUNJAB AND HARYANA HIGH COURT
2023-TIOL-763-HC-MUM-ST
Pr.CCGST & CE Vs ICICI Bank Ltd
ST - Revenue is in appeal against the order passed by CESTAT [= 2020-TIOL-370-CESTAT-MUM ] whereby the Tribunal has allowed the respondent's appeal - Counsel for the respondent has raised a preliminary objection to the maintainability of this Appeal inasmuch as it is submitted that the question as raised in the appeal relates to the valuation and, therefore, such matters would be appealable only before the Supreme Court u/s 35L of the CEA, 1944.
Held: On perusal of the question of law and the grounds of appeal relating to the issue which were required to be contested by the respondent and replied in the show cause notice, necessarily the issue is in regard to the taxability and valuation of Facility Services rendered by the respondent - This was the issue which required adjudication in the statutory appeals as also before the tribunal - Bench is of the clear opinion that the issue in the present appeal is in regard to taxability and valuation - The remedy for the appellant in terms of what has been provided for under section 35G(1) read with Section 35L(1)(b) would be to approach the Supreme Court by filing an appeal - Accordingly, appeal is disposed of this by permitting the appellant Revenue to file an appeal before the Supreme Court: High Court [para 11, 15]
- Appeal disposed of: BOMBAY HIGH COURT
2023-TIOL-762-HC-P&H-CX
CCE Vs Hansa Tube Pvt Ltd
CX - CENVAT - During the audit of 2002-03 and 2003-04, the Central Excise Officer observed that the company had wrongly availed Cenvat credit to the tune of Rs.1,21,86,295/- on C.R. Coils and Zinc inasmuch as the said goods were used in the process of galvanization of C.R. Coils for conversion into G.P. Coils and the process of conversion of C.R. Coil into G.P.Coil involves only process of galvanization which does not amount to 'manufacture' - SCN dated 04.05.2005 was issued for disallowing CENVAT Credit amounting to Rs.1,21,86,295/- and also out of the said amount, an amount of Rs.88,71,269/- was to be recovered in cash and for imposition of penalty and interest - Against the order confirming the demand, the appeal came to be allowed by CESTAT by relying upon the Gujarat High Court decision in Delta Corporation and holding that credit could not be denied on the ground that no manufacturing activity was carried out - Revenue is in appeal before the High Court.
Held : Counsel for the revenue has not been able to cite any judgment reversing the view given by High Court of Gujarat in Delta Corporation's case (supra) - Sub-rules 3, 4 and 5 of rule 3 of CCR are very clear as the word 'removed' does not mean the word 'manufacturing goods' - Sub-rule 3 of Rule 3 of the CENVAT Credit Rules, 2002 makes it very clear that the CENVAT credit may be utilized for payment of any duty of excise on any final products or for payment of duty on inputs or capital goods themselves if such inputs are removed as such or after being partially processed or such capital goods are removed as such - Credit cannot be denied on ground that no manufacturing activity was carried out - Appeal dismissed as being devoid of merits: High Court
- Appeal dismissed: PUNJAB AND HARYANA HIGH COURT
2023-TIOL-97-AAR-GST
SBT Textiles Pvt Ltd
GST - Applicant has sought an advance ruling on the following questions viz. (i) Whether unutilized balance of E-credit ledger can be transferred on merger of distinct persons as specified in Section 25(4) i.e., on merger of two distinct GSTINs of same PAN within State in terms of section 18(3) of CGST Act, 2017 ? & (ii) Whether un-utilised balance of E-credit ledger can be transferred between distinct persons as specified in section 25(4) i.e., from one GSTIN to another GSTIN in same State within same PAN without following the process of merger?
Held: In the instant case there is neither any issue involving applicability of a Notification issued under the provision of Act, 2017 nor this is a case regarding admissibility of input tax credit of tax paid or deemed to have been paid - Here, the issue being raised by the applicant is admissibility of transfer of un-utilised balance of Input Tax Credit in E-credit ledger and not regarding the admissibility of Input Tax Credit of tax paid - In other words, in the instant case, eligibility/ admissibility or otherwise of such Input Tax Credit is not the issue, as stipulated under Section 97(2)(d) - Thus, Authority comes to the considered conclusion that as Section 97(2)(d) specifies about the admissibility of input tax credit of tax paid and not regarding admissibility of transfer of un-utilised balance of Input tax credit lying in E-credit ledger, the issues raised by the applicant in the instant ARA-01 is out of the scope of advance ruling and accordingly their application merits rejection - Application is rejected, being out of the scope of “advance ruling” as stipulated under Section 97 (2) of CGST Act, 2017 : AAR
- Application rejected: AAR
2023-TIOL-96-AAR-GST
CAE Simulation Training Pvt Ltd
GST - Commercial pilots licence holder cannot seek the job of flying an aircraft for which he has undergone Type Rating Training unless an endorsement to that effect is made in the licence of the CPL holder by the DGCA - It is the endorsement which makes him eligible to obtain employment with Airlines to fly the aircrafts for which he has been type rated and not the fact of having completed the training with the institute - Therefore, supply of education and training services to commercial pilots in accordance with the training curriculum approved by the Directorate General of Civil Aviation for obtaining the extension of aircraft type ratings on their existing licenses is only upgradation of skill in specific field and would not be covered under Sl. No. 66 (a) of the Notification No. 12/2017 -Central Tax (Rate) dated 28.6.2017 and, thereby, not exempted from levy of GST: AAR
- Application disposed of: AAR
2023-TIOL-572-CESTAT-DEL
Lupin Ltd Vs CCGST & CE
CX - The issue arises is, whether the claim for refund of service tax paid on input services has been filed within time limit in terms of para 3 (III) (e) of Notfn 12/2013-ST and if the same is hit by latches, is appellant entitle to condonation of delay - It is evident that appellant fulfilled the criterias of eligibility to claim refund of service tax paid on input services in terms of Notfn 12/2013-ST - It is not the case of revenue that appellant is not eligible to make such claims - Their only objection is to the claim being filed beyond period of one year as per notification - Once the appellant is found to be eligible to claim refund, the substantive conditions are complied with and condition of time limit for making claim under notification being only a procedural requirement, needs to be construed liberally - Considering the beneficial object of establishing SEZ tax free, without any burden of duties, the procedural lapse, if any, cannot be the basis to deny refund to appellant - The exemption is intended to be absolute is further evident from para 3 (II) of Notification which provides for ab-initio exemption - This strengthens the conclusion that SEZ Act and Rules read with notification is intended to be a beneficial policy for SEZ, therefore has to be construed liberally - The beneficial purpose of exemption must be given full effect to and before interpreting a statute - For the period January to March 2017, service tax was paid prior to 01.10.2016 and refund claim was filed on 10.10.2017 and therefore it is beyond the period of one year - Even, if one calculates the actual delay same appears to be somewhere around 10 days or so - Similarly, for period April to June, 2016 service tax was paid prior to 01.03.2017 and refund claim was filed on 28.03.2018 - In both cases, the delay is neither exorbitant nor unreasonable which on the face of it cannot be condoned - Adjudicating authority should have considered the issue of condonation of delay taking a wider and liberal approach - It is well established principle that eligibility criteria laid down in an exemption notification are required to be construed strictly, however once it is found that the applicant satisfies the same, the exemption notification should be construed liberally - It is also relevant to refer the decision of Apex Court in Suksha International 2002-TIOL-660-SC-EXIM , observing that interpretation restricting the scope of beneficial provision should be avoided so that it may not take away with one hand what the policy gives with the other - Also in Formica India 2002-TIOL-599-SC-CX , the Apex Court observed that once a view is taken that a party would have been entitle to benefit of notification had they met with the requirements of concerned rule, the proper course was to permit them to do so rather than denying to them the benefit on technical grounds that the time when they could have done so had elapsed - Refund claims of appellant are allowed - The impugned order is, accordingly, set aside: CESTAT
- Appeal allowed: DELHI CESTAT |
|
