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2023-TIOL-689-CESTAT-DEL
Trans Bharat Aviation Pvt Ltd Vs Pr.CST
ST - The assessee-company filed the present appeal to contest the vires of duty demand raised under the heading of Supply of Tangible Goods Service u/s 65(105)(zzzzj) of the Finance Act 1994, demand raised under Management, Maintenance or Repair Service u/s 65(105)(zzg) of the Finance Act 1994 and demands for interest u/s 75 of the Act and penalties u/s 77 & 78 of the Act - The appellant was supplying aircraft/helicopter owned by it to various entities for their use - The said services were being rendered by the appellant to the service recipient on mutually agreed terms and conditions - While providing the said helicopter/aircraft on charter hire, it supplied its own crew i.e. pilot and other flying staff along with the said helicopter/aircraft, keeping an effective control and possession of the said helicopter/aircraft with them - The assessee believed that the services provided would fall under the category of "Transportation of Passengers by Air service" of the Finance Act 1994 under which it discharged with service liability. Held - The issue at hand stands settled vide the judgment in the case of Chimes Aviation Pvt. Ltd. wherein it was held that "...aircraft/helicopter that was hired against money consideration which was a lump-sum amount irrespective of the number of passengers, as even the details of the passengers were not indicated in the invoices. No document has been shown by learned counsel for the appellant which may dispel this finding. If passengers were to be transported, certainly tickets would have been issued to them and the invoices would also indicate the amount received from the individual passengers, but it is not so..." - The demands raised in this case as well as the penalties imposed were both sustained - Following such findings, the demands raised in the present appeal are sustained as well: CESTAT
- Appeal dismissed: DELHI CESTAT
2023-TIOL-688-CESTAT-DEL
Saubhagya Tilak Hotels Pvt Ltd Vs CCE
ST - Appeal filed against impugned order confirming demand of service tax under "mandap keeper" service, as defined under section 65(67) of Finance Act, 1944 and made taxable under section 65(105) (m) of Finance Act, with penalty and interest - A Circular dated 23.08.2007 clarifies that halls or rooms let out by hotels/restaurant for a consideration for organizing any official, social or business function would be covered under definition of 'mandap' and such hotels and restaurant would be covered within scope of 'mandap keeper' - Accordingly, service tax would be leviable on services provided by hotels and restaurant in relation to letting out of halls or rooms for organizing any official, social or business function - The details of amount realised by appellant during period from 2008 to 2011-12 have been indicated in chart contained in order - The manager (operation) stated that appellant provides services in relation to birthday party, kitty party and marriage party and that appellant can arrange parties for a group comprising of 700 to 800 people and advance of Rs. 10000/- to Rs. 25000/- is taken - It would be clear from data entered by appellant in daily receipt and expenditure sheets for years 2008-09 to 2010-11 and corresponding gross amount received as reflected in sales details that the value of cash sales pertains to income received from restaurant business and bakery business - Appellant has also shown 'other income' amounting to Rs. 8,32,03,871/- in daily receipt and expenditure sheets - It is clearly a case where appellant had suppressed material facts on department in order to evade payment of service tax and therefore, extended period of limitation was correctly invoked under proviso to section 73(1) of Finance Act - Imposition of penalty and interest by Commissioner in impugned order also does not suffer from any illegality : CESTAT
- Appeal dismissed: DELHI CESTAT
2023-TIOL-687-CESTAT-MAD
Srf Ltd Vs CGST & CE
CX - The only issue to be considered is relevant date for calculating interest arising due to a delay in payment of consequential refund arising from order of a coordinate bench of Tribunal's Final Order - The issue regarding relevant date for payment of interest was examined by Supreme Courts in its judgment in Ranbaxy Laboratories Ltd 2011-TIOL-105-SC-CX - The Court cited Boards instructions which covered consequential refunds and stated that provisions of section 11BB of the Act, are attracted automatically for any refund sanctioned beyond a period of three months and that jurisdictional Central Excise Officers are not required to wait for instructions from any superior officers or to look for instructions in orders of higher appellate authority for grant of interest - Liability of Proper Officer to pay interest commences from date of expiry of three months from date of receipt of application for refund under Section 11B(1) of the Act, as stated under Section 11BB of the Act and not from the date of reversal of credit under protest as sought by appellant or the date of filing the revised claim as per impugned order - The rate of interest payable would also be governed by relevant interest rate notification issued under the Act and was prevalent at that time - This is not a case where refund was delayed by appellant for want of critical documents that would be necessary to quantify the refund - It was mainly because the department wanted the appellant to pay interest amount due first, which could very well have been adjusted by department from their refund claim as consented by appellant - Hence, as per statutory mandate of Section 11BB of the Act department is under a legal obligation to sanction the refund claim along with interest after expiry of 3 months from the date of filing of the refund claim and not from the revised date of filing the claim as decided in impugned order - Relevant date for calculating interest commences from the date of expiry of three months from the date of receipt of application for refund by department i.e. from 05/10/2018 in terms of Section 11BB of Central Excise Act, 1944: CESTAT
- Appeal disposed of: CHENNAI CESTAT
2023-TIOL-686-CESTAT-MAD
Esa Sterlite Ltd Vs CGST & CE
CX - The prayer in appeal was for setting aside the impugned order - Now the appellant has orally accepted the value as determined in impugned order - He only requests for netting the excess payment against amounts short-paid before department raises a demand, if any - They have not given any written application amending their plea and making a fresh prayer, perhaps knowing that it is not maintainable - It was pointed out to appellant that the prayer in the appeal was to set aside the impugned order and what they were stating now was a fresh plea - Further for any appeal to be taken up there must be an existing dispute involving a question of law or fact, on which the existence or extent of a legal right depends - By their acceptance of impugned order the earlier dispute does not survive - Issue now submitted by appellant is what may arise post finalization of demand, if any, by department, based on impugned order and is currently not the subject matter - Issue of valuation being settled, no issue remains to be decided by Tribunal - Hence, the impugned order is upheld: CESTAT
- Appeal dismissed: CHENNAI CESTAT
2023-TIOL-685-CESTAT-KOL
CC Vs Tube Traders
Cus - Assessee imported old and used worn clothing, completely fumigated which were assessed after value enhancement, confiscation and imposition of redemption fine and penalty - The declared value was enhanced from US$ 0.45 per kg to US$ 0.60 per kg and redemption fine and penalty were also imposed on the ground that old and used worn clothing articles are classifiable under Tariff Item No.63090000 of First Schedule of the Act and is restricted item for import as per FTP 2009-2014, read with ITC HS Classification of import and export items 2009-2014 - Import of goods under Tariff Item No.63090000 is restricted and their import is allowed only against valid specific license - The Adjudicating Authority has imposed redemption fine and penalty at the rate of 19.5% & 7.8% of assessed value respectively - In some of the cases where goods are not available, no redemption fine is imposed - Revenue is before Tribunal for enhancement of redemption fine and penalty - This issue came up before Tribunal in case of Venus Traders wherein it was observed that in the light of admitted failure to comply with licensing requirements, confiscation of goods under Section 111(d) of Customs Act, 1962 is upheld - Following the said decision of Tribunal, it is held that redemption fine and penalty imposed on assessee by adjudicating authority is sufficient to meet the end of justice - Therefore, redemption fine and penalty confirmed by adjudicating authority are upheld : CESTAT
- Appeal dismissed: KOLKATA CESTAT |
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