2023-TIOL-840-HC-AHM-GST
Panji Engineering Pvt Ltd Vs UoI
GST - Refund of IGST - Petitioner has challenged inaction on the part of respondents of not sanctioning refund claims of Integrated Goods and Service Tax paid on export of goods and duty drawback eligible to the petitioner without any reason - The petitioner on 23.07.2021 lodged a grievance at Centralized Public Grievance Redress and Monitoring System - After reminders, grievance was closed on 01.09.2021 without granting refund, hence the present petition.
Held : It is worthwhile to note that pending this petition, respondent authority has released the refund to the petitioner except the refund involved in the Shipping Bill No.8723678 dated 17.02.2021 - However, the respondent authority has not granted interest on the delayed refunds, which according to this Court, is against the provisions of Section 56 of Central Goods and Services Tax Act, 2017 - Petitioner is entitled to interest on delayed refund - Present petition is disposed of with a direction to the respondent authority to release the refund involved in the Shipping Bill No.8723678 dated 17.02.2021 and grant interest on the delayed refunds as per the provisions of law - Petition disposed of: High Court [para 14, 15]
- Petition disposed of: GUJARAT HIGH COURT
2023-TIOL-839-HC-DEL-ST
Pr.CCE & CGST Vs Blackberry India Pvt Ltd
ST - Respondent had filed claims for refund of unutilised CENVAT Credit amounting to Rs. 8,55,34,345/- - Adjudicating Authority issued a Show Cause Notice dated 22.01.2020 proposing to reject respondent BlackBerry India's claim on the ground that the place of provisions of service appeared to be in India as the services rendered by BlackBerry India were as an intermediary - CESTAT in its order dated 07.12.2022 accepted the contention that BlackBerry India was neither an agent nor was involved in the arrangement or facilitation of supply of services in question; that BlackBerry India was not an intermediary within the meaning of Rule 2(f) of the Place of Provision of Services Rules, 2012 - Aggrieved, Revenue is in appeal in terms of s.35G of CEA, 1944 r/w s.83 of FA, 1994.
Held: In the present case, the services rendered by BlackBerry India to BlackBerry Singapore under the Agreement, were not in the nature of facilitating services from another supplier - BlackBerry India, as an independent service provider, was required to render the promotional and marketing services; technical marketing assistance; and other related services - BlackBerry India did not arrange or facilitate these services from another supplier - It is clear from the Circular dated 20.09.2021 issued by CBIC that BlackBerry India cannot be considered as an intermediary in the context of the services rendered by it under the Agreement - CESTAT has rightly concluded that all services except those specifically mentioned in Rule 3(1) of the Export of Services Rules, 2005 are covered within the scope of Export of Taxable Services - The Adjudicating Authority had clearly misread the said Rule - Present petition does not raise any substantial question of law - Appeal dismissed: High Court [para 22, 24, 26, 28]
- Appeal dismissed: DELHI HIGH COURT
2023-TIOL-838-HC-DEL-CX
Goldy Engineering Works Vs CCE
CX - Common question raised is of the date from which interest is leviable on an asserted delay in disbursal of refund under the CEA, 1944 – Petitioners contend that interest is liable to run from the date when the refund is determined and would not be dependent on any application or other positive step being taken by an assessee – It is the submission of the department that the moving of an application is a prerequisite for computation of the date from which interest would be payable on a refund.
Held: Section 11B(1) in clear and unambiguous terms contemplates the making of an application for refund being made by any person claiming refund of any duty of excise and interest paid on such duty - The claim of refund arose in the backdrop of the order in original coming to be set aside in appeal - The petitioner appears to have made an application for refund ultimately and only after the departmental appeal before the CESTAT came to be dismissed - The order of stay would, in any case, be deemed to have never existed once the appeal comes to be dismissed - The subject of interest on delayed refund which is governed by Section 11BB itself prescribes the starting point for payment of interest on delayed refunds to be the date when an application under Section 11B(1) is received - On a conjoint reading of Sections 11B and 11BB, Bench comes to the irresistible conclusion that interest on delayed refund is clearly dependent upon the making of a formal application as stipulated by Section 11B of the 1944 Act - Regard must also be had to the fact that in the case of refund of duty, it is also incumbent upon the assessee to declare and establish that the burden of tax has not been passed on - The making of an application and a declaration to the aforesaid effect is thus not merely an empty formality - A levy of interest on refund must undoubtedly follow where it is found that the amount has been unjustifiably retained or remitted with undue delay - The respondents cannot be permitted to retain moneys which are otherwise not due or are otherwise liable to be returned - Instant writ petitions shall stand disposed of on the following terms viz. The respondents shall revisit the issue of payment of interest in light of the observations made - Interest, if any, shall be liable to be computed and paid to the petitioners if it be found that the refund was effected beyond a period of three months when computed from the date when the respective applications were made and received: High Court [para 23, 24, 25, 29, 30, 33]
- Petitions disposed of: DELHI HIGH COURT
2023-TIOL-837-HC-DEL-CUS
Gautam Spinners Vs CC
Cus - Various notices issued [by a Deputy Commissioner of Customs] u/s 28(4) of the Customs Act, 1962 are challenged primarily on the ground that since the period for completion of proceedings as prescribed in Section 28(9) of the Act has expired, the authorities would retain no jurisdiction to adjudicate upon the same.
Held: In terms of sub-section (9) and since the notice had been issued with reference to Section 28(4), the proceedings were liable to be brought to a close within one year from the date of the notice and in the facts of the present case, the same being computed from 05 August 2021 - The words "where it is possible to do so" came to be deleted by the FA, 2018 - The statutory amendment as introduced in terms of the aforenoted Act, 13 of 2018 thus clearly lends credence to the submission of the petitioner that the period of one year as prescribed in clause (b) was legislatively conferred a mandatory flavour - Clause (c) of s.28(9A) speaks of SCN proceedings being kept pending in light of directions that may be issued by the Board - It significantly employs the phrases "similar matter", "specific direction" and "such matter" - Undisputedly, the SCNs' which had been issued against Anil Aggarwal and 11 other individuals did not stand on the same pedestal as the SCNs' impugned here since the former, undisputedly, had been issued by the officials of the DRI - In fact, it was those SCNs' which formed the primary subject matter of the Board's directives dated 17 March 2021 and 16 April 2021 - As noticed hereinbefore, the SCNs' which stand impugned in these petitions had admittedly been issued post the promulgation of those directives by the Board and admittedly by the competent jurisdictional Commissionerates - Bench is unable to accept the position of any legal impediment which could be recognised to have either fettered the jurisdiction or restrained the jurisdictional Commissionerates concerned from proceeding to finalize the SCNs' in accordance with Section 28(9)(b) of the Customs Act, 1962 - Competent authority of Customs would have been justified in placing the impugned SCN proceedings pending only in a situation where the original SCNs' had been issued by an officer of the DRI - SCNs' would also not fall within the ambit of Section 28(9A)(c) - Since admittedly, the maximum period as prescribed under Section 28(9) has expired, those proceedings would not survive in law - Impugned SCNs are quashed and set aside - Writ petitions are allowed: High Court [para 10, 11, 13, 14, 15, 16]
- Petitions allowed: DELHI HIGH COURT
2023-TIOL-836-HC-DEL-SERVICE
Dinesh Bishnoi Vs UoI
Service - Petitioner, a Deputy Commissioner, was suspended based on a report by the Chief Commissioner, CGST wherein it is alleged that the petitioner has committed irregularities while processing the refunds of nearly Rs.30 crore - Suspension was extended beyond the initial period of 90 days and which was challenged but the Central Administrative Tribunal, Principal Bench dismissed the appeal on merits - Aggrieved, the present petition is filed.
Held: Tribunal is justified in upholding the continuance of the suspension of the petitioner for a further period of 180 days by dismissing the OA - Charges being serious, this Court is of the view that the impugned order should not be interfered with, more so in exercise of power under Article 226 of the Constitution of India - Petition dismissed: High Court [para 13, 14]
- Petition dismissed: DELHI HIGH COURT
2023-TIOL-637-CESTAT-DEL
Segmental Consulting And Support Services Pvt Ltd Vs CST
ST - Service tax/CENVAT credit demands were confirmed by the adjudicating authority viz. Commissioner of Service Tax, Delhi-III and being aggrieved the present appeals have been filed - It is the contention of the appellant that service tax was not paid by the appellants on two grounds viz. Service was provided in relation to construction of road (an immovable property) in the state of J&K, a non-taxable territory and Service Tax Trade Notice No. 13/2004 based on the Board's letter F. No. 137/62/ 2003-CX.4, dated 22.3.2004 , says that service tax is not applicable to services provided in the State of Jammu & Kashmir, irrespective of the service provider being from the State or otherwise.
Held:
+ Questions to be decided by the Bench are - ( i ) Whether the appellant is liable to pay service tax on Consulting Engineer Services rendered by the appellant; (ii) Whether the appellants have wrongly availed the Cenvat credit without support of input documents and, as such, the same is recoverable from the appellants and (iii) Where the extended period of limitation has wrongly been invoked while issuing the show cause notice.
Taxability:
++ Defined role in the impugned agreement makes it clear that the scope of service of appellant in the given facts and circumstances was that of a Consulting Engineer for construction of a road in the territory of State of Jammu & Kashmir; appellant had to visit the said site situated in non-taxable territory although it could be possible that such consultation was also rendered while being in his office situated in taxable territory - Hence, Bench is of the opinion that the findings of the Adjudicating Authority holding that the services provided by the appellant are in intangible in nature and have no relation to the immovable property of non-taxable territory are apparently wrong and, as such, are liable to be set aside. [para 13]
++ Appellant as well as service recipient, though both have their Head Offices in taxable territory but the provision of service was outside the taxable territory i.e. in the State of J&K. Hence the Department herein was not liable to charge the service tax qua the said provision of service. [para 15]
++ It has been clarified [14/2004 dated 28.04.2004] that the service tax is not applicable on the services provided in the State of J&K irrespective of the service provider being from the said State or otherwise - Even Mega Notification No. 25/2012 dated 20 June, 2012 [Clause 13 (a)] also comes to the rescue of the appellant as the said notification exempts certain services from the whole of service tax - it is an admitted fact that the services provided by the appellants are towards the construction of a road meant for use by the general public. [para 16]
++ Held that the appellant is not liable to pay service tax for providing the Consulting Engineering Services to its clients for construction of road in State of J&K.
CENVAT:
+ Reason for denying the availment is that the address mentioned on these invoices was not the registered premises of the appellant. Hence, the invoice was the improper documents in terms of Cenvat Credit Rules, 2004 [para 18]
+ Though the address mentioned thereupon is different from the registered address, but as apparent from show cause notice itself the appellant was found existing at the address mentioned in the invoice with explanation of the circumstances about shifting to the different address. Hence the objection about address is nothing but simply a procedural lapse. Substantial benefit of availment of Cenvat credit cannot be denied on the grounds of procedural lapse. [para 20]
Limitation:
+ Once admittedly the returns were filed regularly by the appellant, the Department cannot alleged suppression against the appellant/assessee. It is mandatory for them to bring on record a positive act to prove the alleged suppression, that too with an intent to evade tax.
+ The question of imposition of penalty upon the appellants also does not at all arise.
Conclusion:
++ Orders under challenge are set aside. Consequent thereto, both the appeals stand allowed.
- Appeals allowed: DELHI CESTAT
2023-TIOL-636-CESTAT-BANG
Abharan Jewellers Vs CCE
CX - Branded Jewellery - Limitation - s.11A of the CEA, 1944 - It is a fact that with effect from 1.3.2005 branded jewellery was chargeable to Central Excise Duty at the rate of 2% advalorem - Wide publicity was given and various circulars were issued to educate the trade and the revenue authorities - When these amendments were introduced, it was widely publicised that all the persons engaged in sale of branded articles of jewellery are to be registered and pay the required taxes - The fact that these appellants are well known manufacturers of the articles of jewellery is not disputed - The observation of the Commissioner that it came to the notice of the department only when the departmental officers started the investigation by visits to the premises of the appellants and the job workers is not acceptable - The various Board's Circulars issued from time to time clearly show that there was confusion on what is considered as branded jewellery - There is no allegation of wilful suppression or any intent to evade payment of duty either in the show cause notice nor there is any finding to that effect in the impugned orders - Moreover, the Board's clarification dated 2.3.2012 specifically admits to the fact there is confusion among the officers to the leviablity of duty on branded jewellery and clarifies that only those articles of jewellery where the brand name is embossed alone will be liable for duty - This clearly shows that the liability to pay duty on branded jewellery was not free from doubt - Therefore, to state that the appellants should have come forward to pay the duty was far-fetched - Where facts are known to both the parties, the omission by one to do what he might have done and not that he must have done does not constitute suppression of fact - The appellants, therefore, cannot be said to suppressed the facts as they were under the impression that they were not liable to pay duty - Proviso to section 11A cannot be invoked when there is no evidence of wilful suppression with intent to evade duty is alleged by the revenue - Therefore, we hold that the goods cleared by the appellants are branded goods and they are liable to pay duty as per Rule 12AA of the Central Excise Rules - Since no allegation of wilful suppression with intent to evade payment of duty is established from the records, the demand is restricted to normal period - In view of the fact that suppression is not established, personal penalty are also not sustainable and consequently set aside - Appeal Nos. E/199/2007; E/547/2008; E/549/2008 and E/3088/2012 are allowed partially and remanded to the original authorities for re-quantification of the demands for the normal period along with interest - Penalty under 11AC and under Rule 25 is set aside - Appeal Nos. E/200/2007; E/548/2008; and E/550/2008 are allowed: CESTAT [para 38, 40, 41, 42, 43]
- Appeals disposed of: BANGALORE CESTAT |
