2023-TIOL-926-HC-DEL-VAT
Ramky Infrastructure Ltd Vs Commissioner of Trade And Taxes
Whether refund would be made only to extent of the amount that remains payable after discharge of any other amount due from taxpayer - YES: HC
Whether scheme of Section 38 of the DVAT Act requires adherence to strict timelines - YES: HC
Whether processing of refund in terms of Sections 38(2) and 38(3)(a) of DVAT Act, will exhaust and discharge taxpayer's claim for refund in full, which is either made by furnishing return or otherwise - YES: HC
Whether where withholding of amount due to assessee was in breach of Section 38 of DVAT, then interest would be payable to assessee on said amount - YES: HC
- Assessee's petition allowed: DELHI HIGH COURT
2023-TIOL-711-CESTAT-MAD
Rani Meyyammai Towers Vs CST
ST - The appellant, who is a developer was rendering typical works contract service for which reason they had started paying Service Tax w.e.f. December 2007, thereby availing benefit under Works Contract (Composition Scheme for payment of Service Tax) Rules, 2007 - The fact however remains by virtue of construction agreements entered into with their prospective buyers, that in essence, they were rendering works contract service in construction of flats and this aspect has not been denied by Revenue either in SCNs or in impugned order - The Tribunal in case of M/s. Real Value Promoters Pvt. Ltd. 2018-TIOL-2867-CESTAT-MAD has following the dictum of Supreme Court in M/s. Larsen & Toubro Ltd. 2015-TIOL-187-SC-ST , held that in respect of projects executed prior to 01.06.2007, being in nature of composite works contract could not be brought within the fold of commercial or industrial construction service or construction of complex service and for the period post 01.06.2007, liability to Service Tax could be fastened only if activities were in nature of services simpliciter - Period of dispute is from February 2007 to June 2010 and from July 2010 to March 2011 and there is no dispute that from December 2007, appellant is remitting Service Tax under works contract service - The co-ordinate Hyderabad Bench of Tribunal in case of M/s. Pragati Edifice Pvt. Ltd. 2019-TIOL-3095-CESTAT-HYD also had an occasion to consider an identical issue - From the said decision, position of law is that there is no Service Tax liability as and when construction of flat is for personal use of service recipient - Admittedly, by virtue of agreements entered into by appellant with prospective buyers, which is reflected in SCN, it appears that there is no dispute that construction of flats was for service recipients per se - Demand as confirmed in impugned order cannot sustain, for which reason the same is set aside: CESTAT
- Appeals allowed: CHENNAI CESTAT
2023-TIOL-710-CESTAT-AHM
CST Vs BSNL
ST - Assessee filed a refund claim pertaining to the amount of service tax deposited by them vide TR-6 challan in pursuance to Tribunal Order dated 01.12.2008 - The department issued two SCNs to assessee wherein short payment of service tax has been alleged - The assessee deposited Rs. 2.37 crores with Revenue during inquiry for alleged short payment of service tax - Subsequently, matter got adjudicated and finally Tribunal has decided that there is no short payment of service tax on the part of assessee and therefore there is no demand against assessee with regard to alleged two SCNs which was subject matter of litigation in this regard - The amount which was deposited has also been taken as pre-deposit at the time of admission of appeal of assessee and it is a settled principle of law that deposit taken during investigation or as a pre-deposit at the time of admission of appeal will not be hit by provision of Section 11B of CEA, 1944 r/w Section 83 of FA, 1994 - Otherwise also, element of unjust enrichment is not present - The amount of Rs. 2.37 Crores deposited by assessee with revenue, could not have been passed by assessee to its customers - Firstly as the charges of telephone/mobile phones which are charged by BSNL from its customers cannot be changed on discretionary basis, at the same time department has not established that assessee have issued any supplementary invoices of mentioned amount to their customers - Since the rate of BSNL for telephone/mobile phone are pre-determined and therefore expenditure incurred later on by assessee cannot be directly be passed on to customers by any chance - CA of assessee has certified that incidence of amount deposited by them has not been passed on by them to their customers - Element of unjust enrichment is not present and assessee is entitled for refund of deposit which was made by them during inquiry and which was further taken as pre-deposit by Tribunal while admission of their appeals: CESTAT
- Appeal dismissed: AHMEDABAD CESTAT
2023-TIOL-709-CESTAT-AHM
Transpek Industry Ltd Vs CCE & ST
CX - Whether the cost of empty cylinder received from customers free of cost and used for packing of Sulphur Dioxide Gas supplied to such customers is to be included in assessable value of final product under section 4 of Central Excise Act, 1944 - Issue is no longer res- integra particularly in appellant's own case as Tribunal has decided the issue in their favour holding that the value of empty cylinders owned by buyers is not includible in assessable value of Sulphur Dioxide in hands of appellant - Issue is covered by said decision - Accordingly, impugned order is not sustainable, same is set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2023-TIOL-708-CESTAT-AHM
Ingersoll Rand India Ltd Vs CCE
CX - The appellant is manufacturer of Air Compressors, Air Motors, Spares for Air Compressors, Bus Air Conditioning Systems and parts thereof falling under Chapter 84 of CETA, 1985 - It has been contention of department that appellant making clearances of finished goods for home consumption by two methods direct sales to customers who are actual users and to distributors appointed by the notice who in turn sold the goods to actual user buyers - It was noticed by department that when the goods cleared directly to actual users, the goods were assessed at the values mentioned in invoices - However, in respect of goods cleared through distributors, the distributors were given a discount called "Base Discount" of up to 15% of price declared in invoices - It was noticed that there were two sets of assessable value for same product i.e. the higher value in case of direct sales and discounted value for clearances made to distributors - Discount is not being given in the form of a reimbursement for distributors undertaking installation and after sale services during warranty period - Since both the activities are beyond the place of removal and post sale activities and therefore it is not a liability of manufacturer assessee to undertake such activity - Thus, it is wrong on the part of department to assume that distributors are being compensated in form of discount for expenditure which they have incurred on undertaking installation and after sale service during warranty period - It has also been held under various decisions of Tribunal that such expenditures are not includable otherwise also in assessable value - Issue under consideration has already been settled by Supreme Court in case of M/s. Purolator 2015-TIOL-193-SC-CX which have also been followed by Tribunal in Biochem 2016-TIOL-567-CESTAT-MUM - Since the sale invoice which have been issued to distributors by appellant offering 15 % discount is normally a trade discount and department has failed to discharge its responsibility to establish that there has been any flow back of consideration from buyer to appellant - Thus, transaction value declared by appellant is correct assessable value for the payment of central excise duty and discount cannot be added to assessable for charging central excise duty: CESTAT
- Assessee's appeals allowed: AHMEDABAD CESTAT
2023-TIOL-707-CESTAT-AHM
Reliance Industries Ltd Vs CC
Cus - Appeals have been filed by appellant against demand of customs duty by inclusion of High Seas Sale Commission of 2% in their declared assessable value - The issue regarding addition of Notional Commission at the rate of 2% of high Seas Sale price has been examined by Tribunal in case of Indian Farmers Fertilizer Co-Operative Limited. 2020-TIOL-706-CESTAT-AHM - In view of the same, it is apparent that addition of 2% High Seas Sale on Notional Basis Cannot be sustained - As regards the objection raised by revenue regarding genuineness of transactions price and failure of appellant to produce the documents, it is found that same has no merit - The documents that the Commissioner (A) has sought is the invoice which is always produced at the time of filing of bill of entry - The agreement between the public sector undertaking and the appellant is also produced before Commissioner (A), therefore objection raised by revenue cannot be sustained - Impugned orders are set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2023-TIOL-706-CESTAT-BANG
ABB Ltd Vs CC
Cus - The issue to be decided is as to whether loading of amounts of royalty paid to their different entities in terms of 10 agreements in Bills of Entry, as per SVB Mumbai order is in order - Impugned order relied upon SVB's order dated 19.6.2008 issued by Mumbai Commissionerate for loading the value in specified Bills of Entry - The Commissioner in his order clearly states since the SVB Mumbai order dated 19.6.2008 has not been appealed against or set aside the implementation of that order by original authority, needs no interference - However, as seen from submissions made from appellant, the SVB order has been set aside and present issue has now been settled in their favour by Tribunal's Final Order dated 30.10.2012 - The present issue in impugned order deals with 10 agreements based on which the value has been loaded - Since the original Mumbai SVB order itself stands set aside all orders based on that will have to be set aside - By following the judgment of Tribunal in appellant's own case, impugned order is set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT |
