2023-TIOL-941-HC-MAD-VAT
Kumutham Agencies Vs State Tax Officer
Whether seizure of vehicle by VAT Department cannot be set aside in entirety, since the vehicle was not covered by proper invoice and transport documents & where assessee was liable to pay VAT duty - YES: HC
- Writ petition disposed of: MADRAS HIGH COURT
2023-TIOL-940-HC-DEL-VAT
Chitra Hardware Vs Commissioner of VAT
Whether assessment order cannot be set aside on grounds of mala fide alone, where the same are not specifically pleaded with full particulars - YES: HC
- Appeal dismissed: DELHI HIGH COURT
2023-TIOL-939-HC-KERALA-CT
State Of Kerala Vs Sesame Software Solution Pvt Ltd
Whether where a software is customised for a particular user, does not lead to the software ceasing to be goods for the purposes of levy of sales tax - YES: HC
Whether penalty under a taxing Statute is normally levied for wilful suppression or other like contumacious conduct on the part of the assessee in evading tax that is due to the Government - YES: HC
- Revision petition in favor of assessee: KERALA HIGH COURT
2023-TIOL-725-CESTAT-BANG
Jewel Rocks Hire Purchase And Kuries Pvt Ltd Vs CCT, CE & Customs
ST - The appellant was providing services under category of ‘Banking & other Financial Services' - Issue relates to taxability of chit fund - The issue regarding taxability of Chit Fund is pending before Supreme Court since 2007 and attained finality only in 2017 - As per the judgment dated 14 March, 2018, High court specified that the limitation for filing refund application will be extended for one year from 14.03.2018 - However, Commissioner (A) has not extended the period of limitation on the ground that the appellant was not party to the proceedings pending before High Court. Such finding is unsustainable - If benefit can be denied on the ground that appellant is not a party to such a proceeding, Adjudication/appellate authority have no reason to consider even the date of judgment of Supreme Court on 4.07.2017 as date of commencement of the period of limitation since appellant was not party to proceedings before Supreme Court also - From the records, it is evident that appellant is a Member of All Kerala Chitty Formen's Association who is one of the petitioner in Writ Petition No.32097 of 2007 and revenue had filed an appeal against judgment of Single bench to clarify as to whether the decision of Supreme court in case of Margadarshi Chit Funds 2017-TIOL-240-SC-ST applies to the period post introduction of Negative list in 2012 - Thus, entire issue regarding taxability on chit fund attained finality only as per the judgment dated 14.03.2018 and not w.e.f 04.07.2017 as held by adjudication authority - Considering the guidelines issued by High Court vide judgment dated 09.10.2019 in Petition No. 26647 of 2019 and the judgment of Division Bench dated 14.03.2018 , the appellant are eligible to claim the benefit of extended period of limitation for one year from 14.03.2018 - Since there is no other issue raised by Adjudication/Appellate Authority, appeal is allowed with consequential relief: CESTAT
- Appeal allowed: BANGALORE CESTAT
2023-TIOL-724-CESTAT-MAD
CCGST & CE Vs Commissioner Theni Allinagaram Municipality
ST - The assessee was issued SCN proposing to demand service tax under category of 'Renting of Immovable Property Service' - Adjudicating authority confirmed the demand along with interest - But, however, did not impose any penalty invoking section 80 of Finance Act, 1994 - Aggrieved by said order, department has come in appeal before Tribunal - There was confusion with regard to levy and liability to pay service tax under category 'renting of immovable property service' - There were several litigations pending before various forums - The amendment brought forth in section 65(105)(zzzz) vide Finance Act, 2010 made the provisions applicable retrospectively - The Commissioner has recorded that there was confusion during relevant time and assessee was under bonafide belief that there was no liability to pay service tax - It is also noted by Commissioner that being a statutory authority, under the Government, there cannot be any malafide intention to evade payment of service tax - It was thus held that there exists reasonable cause on the part of assessee for the failure in discharging service tax liability - No ground found to take a different view as there was indeed confusions and litigations with regard to payment of service tax on renting of immovable property service - In case of ETA Engineering Ltd . , Tribunal observed that appellants being under bonafide doubt whether their activity was taxable there existed a reasonable cause for non-payment of tax - The penalties were set aside in terms of sec. 80 of the Act - There is nothing brought out by evidence that assessee had not paid service tax with deliberate intention to evade tax - Instead there was confusion going on as to the levy of tax itself - No reasons found to interfere with impugned order, same is sustained: CESTAT
- Appeal dismissed: CHENNAI CESTAT
2023-TIOL-723-CESTAT-KOL
B And M Chemicals Ltd Vs CCGST & CE
CX - Appellant is engaged in manufacture and clearance of Basic Chrome Sulphate and major raw materials are Sulphur and Sodium Bi-Chromate - SCN was issued for availment of excess cenvat credit on Sulphur - The ground for present appeal is that Department has done theoretical calculation for admissible cenvat credit on assumption and presumption and no actual verification of consumed inputs has been done - There is no basis for arriving at quantity of inputs which is presumed to be in excess of so called appropriate quantity of inputs for manufacture - It is beyond the jurisdiction of adjudicating authority to decide as to what is appropriate quantity of inputs required for manufacture of specified quantity of final product - It is, therefore, clear that SCN was issued on the basis of presumption and therefore, same is not sustainable: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-722-CESTAT-AHM
P I Industries Vs CCE & ST
CX - Case of department is that since the assessee has availed Cenvat credit in respect of common input service used in manufacture of dutiable and exempted goods, appellant is required to pay 10% of value of goods cleared without payment of duty (exempted goods) - Appellant have been reversing Cenvat credit proportionate to credit on input service used for exempted goods along with interest, therefore, first the credit though availed at the time of receipt of input service but after reversal thereof along with interest the position is as if credit was not availed - Rule 6 of Cenvat Credit Rules is not enacted to extract illegal amount from assessee - The main objective of Rule 6 is to ensure that assessee should not avail Cenvat Credit in respect of input or input services which are used in or in relation to manufacture of exempted goods or for exempted services - If this is the objective then at the most amount which is to be recovered shall not be in any case more than Cenvat Credit attributed to input or input services used in exempted goods - Moreover, this issue has been consistently considered in various judgments wherein it was held that if assessee reverse the Cenvat credit in respect of common input service used in manufacture of exempted goods, demand equal to 10%/5% will not sustain - Therefore, no merits found in impugned order confirming demand for period April 2008 to June 2009 - Since the Commissioner has demanded 10% of value of exempted goods, he has not verified the correctness of actual Cenvat credit attributed to exempted goods as reversed by assessee - Therefore, only for the purpose of verification of such quantification of reversal, matter is remanded to adjudicating authority: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2023-TIOL-721-CESTAT-AHM
Lucky Steel Industries Vs CC
Cus - When matter came up for hearing, appellant took through various documents to indicate that price of Ship Breaking was re-negotiated - It was his contention that they could not do inspection earlier as ship was on the high seas and same could be subjected to inspection only after entry into Indian waters and also that original agreement provided clearly that delivery will be in indian water and after due inspection by them - Therefore, submission was that in view of original agreement, the price could not be finally determined and same was earlier tentative or provisional price, which was subjected to condition of inspection by them and arriving at final price, which was re-negotiated on 30.11.2011 - Therefore, matter is remanded back to Commissioner (A) to look into various aspects - Specially, the evidence of international market prices having come down during relevant period - Date of entry will be relevant but also whether re negotiated transaction value was correct and final in terms of re-negotiated contract, it is also to be seen whether same was in consonance with terms of original agreement, which allowed them to examine the ship in Indian waters - Impugned order is set aside: CESTAT
- Matter remanded: AHMEDABAD CESTAT |
