2023-TIOL-852-HC-MAD-VAT
Maris Lodge Vs STO
Whether assessment order merits being set aside where it is passed without giving the assessee an opportunity to file its submissions - YES: HC
- Writ petition allowed: MADRAS HIGH COURT
2023-TIOL-651-CESTAT-MAD
Dassault Systemes Simulia Pvt Ltd Vs CCGST & CE
ST - The main issue is with regard to demand made under 'Technical Testing and Analysis Services' and "Manpower Recruitment or Supply Agency Services" - Appellant has submitted that since these are export of services and for this reason the amount received as consideration is not subject to levy of service tax - They had provided these services to their parent company situated outside India - The appellant has furnished FIRC documents before authorities below - The very same issue was considered by Tribunal in case of Mitsubishi Heavy industries India Pvt. Ltd. 2017-TIOL-2893-CESTAT-DEL - The view taken by the department that appellant has not received consideration in convertible foreign exchange is without any factual or legal basis - The contention of appellant that the services were exported stands established - The levy of service tax therefore cannot sustain and demand is set aside - The second issue is with regard to allegation that appellant has to reverse the cenvat credit which is attributable to value of exempted services provided by them as required under Rule 6 (3) of CCR, 2004 - Appellant has reversed the proportionate credit attributable to the value of exempted services - Issue is no longer res integra - The Tribunal in case of M/s. Reliance Life Insurance Co. Ltd. 2017-TIOL-3839-CESTAT-MUM analysed the issue and held that procedure given in Rule 6 (3A) of CCR, 2004 is intended to make Rule 6 (3) workable and available to appellant - Rule 6 (3) (i) cannot be made automatically applicable on failure to intimate in writing about option to be availed by appellant - Demand cannot sustain and requires to be set aside - The third issue is with regard to demand by which cenvat credit availed on meal passes and group insurance services has been disallowed - Said services were availed for benefit of employees - During relevant period (prior to 01.04.2011) definition of "input services" had a wide ambit as it included the phrase "activities relating to business" - Thus, almost all the services were covered within definition of "input services" if used for providing the output services - There is nothing to show that said services were not used for employees of appellant-company - Tribunal in case of Ford had considered the issue and held that credit is eligible - Appellant is eligible for credit and disallowance of credit is not sustainable - Demands confirmed in impugned order cannot sustain: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-650-CESTAT-MUM
Shelf Drilling Ron Tappmeyer Ltd Vs CCGST & CE
ST - Two appeals of assessee and two of Revenue requiring resolution of identical issue of demand confirmed under section 73 of Finance Act, 1994, on consideration towards 'bare-boat charter' of 'offshore drilling unit' to M/s Transocean Drilling Services (India) Pvt Ltd for encroaching upon constitutional arrangement involving transactions, exclusively assigned to states of Union in List II of Seventh Schedule in Constitution, that are claimed to be 'deemed sale' liable to tax under respective commercial tax laws - Ever since broadening of tax net under Finance Act, 1994, controversy over composite transactions involving sale/deemed sale, which are liable to tax only under the laws of states comprising the Union, as well as service, taxable only under Finance Act, 1994, have been the subject of judicial determination - The plea of exclusion from 'sales tax' imposed by states or of exclusion from 'service tax' stemming from consideration of transaction being already subject to other tax was elaborated at length in decision of Supreme Court in re Bharat Sanchar Nigam Ltd, in Tata Consultancy Services 2004-TIOL-87-SC-CT-LB and in several others thereafter - A perusal of SCNs as well as impugned orders confirming demand thereon shows those to be based entirely on presence of permanent establishment in India, nonpayment of tax on sale and the contractual right to resume control for failure to comply with terms of agreement and chargeability to tax of 'supply of tangible goods' prior to 1 July 2012 - To assume that deprivation of 'right to use' on voidability of contract is erasure of 'right to use' ab initio is an incorrect appreciation of manner in which the law of contract may apply to a transaction without impacting leviability under a taxing statute - The test of 'right to use', as laid down by Supreme Court, has not been applied to transaction by adjudicating authority while deciding on upholding the demand in SCNs - Insofar as the orders impugned in appeal of Revenue are concerned, there is no ground for interference - Impugned order confirming demand is not consistent with law and merits setting aside: CESTAT
- Assessee's appels allowed: MUMBAI CESTAT
2023-TIOL-649-CESTAT-MAD
CC Vs Redington India Ltd
Cus - The appeal is filed by department alleging that authorities below have not correctly considered the issue of unjust enrichment for sanction of refund claim - As pointed out by assessee that in OIO, issue has been elaborately discussed by original authority - It is also noted that CA certificate produced by assessee is in accordance with Board circular - It is also recorded that assessee furnished copies of balance sheet and all relevant documents - The department alleges that CA certificate does not mention that documents have been verified - It needs to be stated that when the original authority has noted that CA certificate is in accordance with Board circular, no merit found in argument put forward by department - Impugned order is sustained: CESTAT
- Appeal dismissed: CHENNAI CESTAT
2023-TIOL-648-CESTAT-HYD
Pelican Rubber Ltd Vs CC
Cus - Issue arises for determination is, whether principle of unjust enrichment is applicable and if so, whether appellant have passed the bar - Original Authority has granted refund based on Tribunal's Judgment without examining the same from angle of unjust enrichment as provided under Customs Act, 1962 against which Department filed an appeal before Commissioner (A) who concluded that appellant did not succeed in establishing their case against presumption provided under Section 28D and in consequence, amount of refund granted has to be held erroneously granted to appellant which is liable to be recovered from them as per law - Appellants have tried to argue that even though they had submitted original CA Certificate regarding non-applicability of unjust enrichment, the ground was not taken up by Original Authority - Considering the fact that appellant tried to submit CA Certificate to Commissioner (A) at appellate stage, which could not be submitted due to delay of few days and the fact that there has not been any occasion for them to defend their claim of not having passed the incidence of duty so as not to be hit by principle of unjust enrichment before Original Authority, merit found in arguments advanced by appellant - They have adduced a CA Certificate in support of their not having passed on the incidence - Appellate Authority doubted the bonafide of CA's Certificate, as it was related to fine and penalty and not duty - Matter referred back to Original Authority to go through documents furnished by them and any other additional evidence or documents which he might require to come to conclusion whether principle of unjust enrichment is invokable - Merely CA Certificate per se cannot be the sole ground for proving that they have not passed on the incidence of duty, if sanctioning authority is not satisfied with documents and he may also rely in addition on any other documents in order to come to conclusion as to whether duty incidence has been passed on to customer - Therefore, Original Authority will decide the matter within a period of three months, after giving them the opportunity to produce all the relevant documents which he might require and after giving them Personal Hearing pass the speaking Order: CESTAT
- Matter remanded: HYDERABAD CESTAT
2023-TIOL-647-CESTAT-MAD
HCL Technologies Ltd Vs CGST & CE
CX - The main issue is with regard to demand of duty alleging that exemption Notfn 10/1997 cannot be availed by appellant - It is the case of department that as per proviso to Section 5A, unless there is specific mention that notification is applicable to 100% EOU, the benefit of duty exemption cannot be availed by 100% EOU - It is clarified by Board circular that wherein CVD is paid equal to excise duty as applicable, exemption of central excise notification shall also be applicable to EOU for computation of duty on DTA clearance - The circular clarifies that there is no bar under proviso to section 5A of Central Excise Act, 1944 to consider the exemption while calculating the additional customs duty payable by an EOU on DTA clearance - The issue whether a 100% EOU is eligible to avail the benefit of exemption notification is no longer res integra and is squarely covered by decision in case of Shanta Biotechnics Ltd. 2010-TIOL-1494-CESTAT-BANG - Applying the Board circular as well as decision of Tribunal, demand cannot sustain - The appeal succeeds on merits - It is not necessary to deal with the issue on limitation: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-646-CESTAT-CHD
Zoloto Industries Vs CCE
CX - Appellant is engaged in manufacture of valves and cocks and are availing cenvat credit of duty paid on inputs and capital goods and service tax paid on input services used in or in relation to manufacture of their final products - Vide SCN, cenvat credit of service tax paid on Courier Agency Services, Exhibition Services, Insurance Services, Internet Services and Website Designing availed during period January to March 2011, was sought to be denied and recovered on the ground that said services were not covered by scope of definition of 'Input Service' as defined under Rule 2(l) of Cenvat Credit Rules, 2004 - All the impugned services have been held to be input services by various decisions of Tribunal; therefore, impugned order is not sustainable in law and same is set aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT |
