2023-TIOL-953-HC-AHM-GST
Britannia Industries Ltd Vs UoI
GST - What this Court needs to decide, despite the factual issues which are not similar, is whether the petitioners' contention that they were handicapped in filing the appeal, which can only be filed through electronic mode, in absence of uploading of the Orders-In-Original, is an acceptable stand or not - Main issue, which is common to all petitions i.e. were the petitioners prevented from filing their appeals through the electronic mode merely because the orders were not uploaded, when it is undisputed that the petitioners otherwise were communicated the orders and had received the same manually.
Held: In para 12 of the judgement [ Meritas Hotels Pvt. Ltd - 2021-TIOL-2280-HC-MUM-GST ], it has been held that Rule 108 no doubt prescribes that the appeal has to be filed electronically, but it nowhere prescribes that the same is to be filed only after the impugned order is uploaded on the GSTN Portal - The date of communication of the order by email was taken as the date of communication of the order for the purposes of limitation - In both the petitions namely in Special Civil Applications No. 4876 and 5731 of 2023 , the petitioners have filed the appeals only after the orders of recovery have been passed, though being aware and being manually served with the orders dated 31.3.2021 and 29.4.2021 and, therefore, merely because the orders were subsequently uploaded will not render or save their appeals from the same having been time barred especially when recovery proceedings have already been done and orders to debit freeze accounts have been made in exercise of powers under Section 79 of the CGST Act [Section 79(1)(c) of the CGST Act empowers the department to directly debit the amount lying in the bank accounts] - As far as the case of the partners in these petitions to contend that they are now not liable, Section 90 of the CGST Act provides that the firm and each of the partners of the firm shall be jointly and severally liable for any dues - Petitions are accordingly dismissed: High Court [para 10, 12, 14.5, 15, 16, 17]
- Petitions dismissed: GUJARAT HIGH COURT
2023-TIOL-952-HC-MAD-GST
Tvl Rida Industries Vs Asstt. Commissioner (ST)
GST - Petitioner has challenged the impugned order [DRC-07] passed u/s 61 of the Act, 2017 and where there is a determination of tax, interest and penalty - Impugned order precedes the notice of intimation DRC-01 issued u/r 100 and wherein the petitioner was given 15 days time to respond and also to come for personal hearing - Petitioner has acknowledged the receipt of DRC-01 and replied to the notice but has not asked for any personal hearing - In the present petition, the challenge is made on the ground that they were not given an opportunity of hearing.
Held: Such a challenge cannot be countenanced as the petitioner has given a reply but has failed to appear before the respondent in response to DRC-01 on 26.03.2021 - There is no merit in the petition, hence same is liable to be dismissed - Petitioner is at liberty to file a statutory appeal within a period of thirty days - If such appeal is filed, the appellate Commissioner shall dispose of the same on merits and in accordance with law - Petition dismissed: High Court [para 7, 8]
- Petition dismissed: MADRAS HIGH COURT
2023-TIOL-951-HC-MUM-ST
Board Of Control For Cricket In India Vs CST
ST - Appellant was issued show cause notices classifying the assessee as a 'Franchisee' within the meaning of Section 65 (47) of Chapter V of the Finance Act, 1994 in relation to services rendered by it to MSM Satellite (Singapore) which were in respect of telecast of Indian Premier League (IPL) Cricket matches, being played on the Indian soil - Tribunal has held that the transaction was not a transaction of export of service and thus rejected the appellant's appeals thereby confirming the Order-in-Original passed by the Assessing Officer - Against these orders, the appellant has filed appeals before the High Court.
Held : Case of the appellant is on the issue that services in question are not taxable as 'Franchisee', as the appellant is undertaking export of services - In other words, the issue is, as to whether in relation to services in question, any tax can at all be levied under the provisions in question, is the question which falls for determination - Thus necessarily the issue is in relation to the determination of taxability - Such issue can be considered and adjudicated only by the Supreme Court, as per the mandate of the provisions of Section 35L of the 1944 Act - Even otherwise, Section 35H of the 1944 Act which provides for an appeal to the High Court, clearly carves out an exception in regard to exclusion of matters not relating, amongst other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment, which is now the legislative clarification as provided by an amendment as incorporated to Section 35L by insertion of sub-section (2), which is a clarification in relation to the entire Chapter in question namely Chapter VI-A dealing with the Appeals - Since the present appeals raise an issue on the taxability of the services in question, hence these appeals are not maintainable before this Court - Appeals disposed of by permitting the appellant to present these appeals before the Supreme Court: High Court [para 9, 10, 13]
- Appeals disposed of: BOMBAY HIGH COURT
2023-TIOL-740-CESTAT-BANG
CST Vs Gokuldas Images Pvt Ltd
ST - Charging section for levy of service tax on reverse charge basis came into force w.e.f 18 April 2006, therefore, service tax on overseas payments cannot be subjected to levy prior to that date - Issue settled by the Bombay High Court in the case of Indian National Ship Owners Association [ 2008-TIOL-633-HC-MUM ] and later upheld by the Supreme Court [ 2009-TIOL-129-SC-ST ] - Impugned order is, therefore, upheld and the Revenue's appeal is dismissed: CESTAT
- Appeal dismissed: BANGALORE CESTAT
2023-TIOL-739-CESTAT-BANG
Komet Precision Tools India Pvt Ltd Vs CCE
CX - Short issue involved in the present appeals is - Whether the CENVAT credit availed on imported/locally procured inputs when subjected to the processes by the appellant, disputed as not to be a process of manufacture [but in the nature of trading] by the Revenue, then the CENVAT credit availed on such inputs and utilised in discharging duty applicable on the processed goods, be recoverable.
Held: Appellants are engaged in the manufacture of various high precision tools, and also import certain parts used as inputs from their group companies located in Germany, Sweden and Italy - The tools were customised and sold by the appellant on payment of appropriate duty of excise on its transaction value, which was more than the credit availed on the inputs - Issue has already been settled in the case of Ajinkya Enterprises [ 2012-TIOL-578-HC-MUM-CX ] - Held therein that when once duty is paid by the assessee treating the activity as manufacturing activity, then CENVAT credit is available - In view of the settled principle of law, no merit in the impugned orders - Consequently, same are set aside and appeals are allowed with consequential relief: CESTAT [para 5, 6]
- Appeals allowed: BANGALORE CESTAT
2023-TIOL-738-CESTAT-BANG
Kavveri Telecom Products Ltd Vs CCE
CX - Appellant imported the inputs viz. 7/8 Radio Frequency (RF) Cables on payment of customs duties - The said inputs are processed and converted into two types viz. Jumper Cables and RF Feeder Cables - They have availed and utilised CENVAT credit on various duties paid at the time of import, which were later utilised in the clearance of the finished goods, after carrying out the process like connectorising, testing, repacking and relabelling on the said feeder cables in their factory - On the basis of statements of transporters, it is alleged that the said cables have not been received by the appellant in their factory but transferred out-and-out from the place of import to the customers premises for its installation/use and alternatively alleging that the activities carried out do not result into manufacture - SCNs were issued for recovery of CENVAT credit of Rs.32,75,68,671/- for the period February 2007 to March 2009 - Demands were confirmed along with interest and penalties by the adjudicating authority, hence the present appeal.
Held: The Department have proposed to deny CENVAT credit availed on imported inputs alleging that firstly the inputs were not received in the factory and cleared out-and-out from the place of import to the customers' premises; and alternatively the processes undertaken by the appellant on the inputs do not result into manufacture; hence credit on input is inadmissible - Bench finds the approach of the Department is ambivalent and not clear as to which charge they intend to pursue for denying the CENVAT credit availed by the appellant on imported inputs - Both stands taken by the Department are contrary to each other - If the Department alleges that the inputs were not received in the factory and leads evidence in this regard, then there was no need to make an allegation that after receipt of the inputs in the factory, the inputs then subjected to certain processes do not result into ‘manufacture' as defined under Section 2(f) of the Central Excise Act, 1944 - Appellant furnished data relating to activity of manufacture carried out by them i.e. amounts spent on electricity consumption, fuel consumption, factory overheads etc., which indicate that processes on the inputs were undertaken in their factory premises after the inputs brought into their factory - Also, the statements of two transporters relied upon by the Commissioner do not inspire confidence inasmuch as further investigation was not carried out by the Department and the transporters have not categorically claimed to have not transported the goods during the period they have employed by the appellant - Besides, the statements of two transporters among 13 to 14 transporters cannot be generalised and made applicable to the entire period - Alternative argument pursued by the Department in denying the credit that the processes do not result into manufacture has already been settled by the Bombay High Court in the case of Ajinkya Enterprises [ 2012-TIOL-578-HC-MUM-CX ] inasmuch as when once duty is paid by the assessee treating the activity as manufacturing activity, then CENVAT credit is available - No merit in the impugned orders - Consequently, the same are set aside and appeals are allowed with consequential relief: CESTAT [para 5 to 7]
- Appeals allowed: BANGALORE CESTAT
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