2023-TIOL-1104-HC-ALL-VAT
Diamond Cement Vs Commercial of Trade Tax
Whether where manufacturer has failed to show as to how consumption of iron & steel is directly connected with its plant & machinery or its components as ‘capital goods', no exemption on entry tax is permitted - YES: HC
- Assessee's revision dismissed: ALLAHABAD HIGH COURT
2023-TIOL-1103-HC-KAR-CT
Vodafone Idea Ltd Vs UoI
Whether where law does not prohibit multiple assessments and such circumstances could include subsequent production of statutory C-forms, then assessee should not be exposed to travails of multiple proceedings - YES: HC
- Case disposed of: KARNATAKA HIGH COURT
2023-TIOL-1102-HC-ALL-GST
Party Time Hospitality Vs State of UP
GST - Petitioner challenges the order dated 16.11.2021 whereby the demand was confirmed against the petitioner under Section 74 of GST Act as well as the order dated 04.08.2023 whereby the appeal preferred by the petitioner was dismissed - It is the case of the petitioner that they had taken a party lawn for running the same in terms of a lease deed executed in his favor on 01.08.2018 and according to the petitioner, he had nothing to do with the affairs of the party lawn prior to the said date - Nonetheless, a show-cause notice was issued purporting to be under Section 74 of the GST Act on 28.09.2021 demanding tax - Without holding any hearing, an order came to be passed against the petitioner quantifying the demand of tax and penalty against the petitioner for the period July, 2017 to March, 2018 - Petitioner places reliance on the judgment of this Court in the case of M/s Mohini Traders v. State of U.P. & Anr .; Writ Tax No.550 of 2023 decided on 03.05.2023 wherein it was held that it is incumbent to grant an opportunity of hearing irrespective whether a reply was filed or not in terms of the mandate of Section 75(4) of GST Act.
Held : From the order of assessment passed in pursuance to show-cause notice issued under Section 74 of GST Act, admittedly, no hearing has been accorded to the petitioner, which is contrary to the mandate of law prescribed under Section 75(4) of GST Act; as an expropriatory action, even otherwise, the principles of natural justice had to be complied with - Both the impugned orders dated 16.11.2021 & 04.08.2023 are set aside and the matter is remanded for decision afresh - Petition allowed: High Court [para 9, 11]
- Matter remanded: ALLAHABAD HIGH COURT
2023-TIOL-1101-HC-MAD-CUS
Musthafa Vs CC
Cus - Gold chains - Petitioner prays for quashing the impugned order dated 31.07.2021 passed by the 2nd respondent and consequently, to direct the respondents to return the seized 03 numbers of crude gold chain 24 Karat purity totally weighing 348 grams to the petitioner - Respondents have declined to return the jewels through the impugned order.
Held: In the present case, the gold chains, which have been seized from the petitioner, is not a prohibited item - Hence, the Adjudication Officer ultimately, shall give an option to redeem the confiscated gold jewels - In the present case, the petitioner is ready and willing to give a bank guarantee for 50% of the duty involved - It is seen that the respondents have treated the gold as prohibited items - But the Apex Court in the case of Commissioner of Customs vs. Atul Automations Pvt. Ltd. - 2019-TIOL-35-SC-CUS-LB distinguished the prohibited item from restricted item - Delhi High Court in Vaibhav Sampat More [ 2022-TIOL-812-HC-DEL-CUS ] held that import of gold is not prohibited, but restricted subject to prescribed quantity on payment of duty - Section 125 of the Customs Act, 1962, gives rights to the owner or from whom the goods have been seized to redeem such goods on payment of fine - Courts have consistently held that goods can be handed over on executing 50% of the Bank guarantee on the duty amount - In view of the same, the impugned order is quashed and the petitioner is directed to pay 50% customs duty and also execute 50% of the Bank guarantee in lieu of customs duty - And on such payment / execution of the Bank guarantee, the respondents are directed to hand over the gold chains to the petitioner within two weeks - Petition disposed of: High Court [para 8, 10, 11, 12]
- Petition disposed of: MADRAS HIGH COURT 2023-TIOL-817-CESTAT-KOL
CC Vs Swaraj Woolens
Cus - Assessee imported old and used worn clothing, completely fumigated - The declared value was enhanced 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 said Tariff is restricted and their import is allowed only against valid specific license - Adjudicating Authority has imposed redemption fine and penalty at the rate of 19.5% & 7.8% of assessed value respectively - Following the decision of Tribunal in case of Venus Traders , 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
- Appeals dismissed: KOLKATA CESTAT
2023-TIOL-816-CESTAT-KOL
National Building Construction Corporation Ltd Vs CCE & ST
ST - Appellant has undertaken construction of Jiribam Municipal Corporation building, staff quarter building, Guest House building, overhead tank and R. wall for meeting social needs of state of Manipur and for upliftment of needy people of the state in terms of contract awarded by NBCC on behalf of Ministry of Urban Employment and Poverty Alleviation, Govt. of India - The fund required for said construction was released to NBCC by Government out of non-lapsable central pool of resources for development of North- Eastern states - The main contract was awarded to NBCC which is nodal employment agency, which in turn has sub-contracted the entire work on back-to-back basis by retaining 10% of total contract value - Appellant submitted that since the contract has been undertaken for construction of accommodation for Urban employed Youth and Women Vendors on behalf of Ministry of Urban Employment & Poverty Alleviation, Govt. of India, same cannot be said to be for commercial purpose and therefore, classification under category of Commercial or Industrial Construction is not correct - The issue can be decided on the point of classification alone - The Commissioner while taking note of the fact that construction service is inclusive of supply of goods has extended the benefits of abatement to exclude the value of goods so as to arrive at assessable value for raising demand of service tax - Issue has already been examined in detail by Tribunal in case of URC Construction (P) Ltd. - Since the issue is no longer res-integra, instant demand of service tax under category of Commercial or Industrial Construction cannot be sustained and hence, set aside - Since the appeal is being decided on merits, Tribunal refrain from making any observation on the issue of limitation: CESTAT
- Appeals allowed: KOLKATA CESTAT
2023-TIOL-815-CESTAT-CHD
Comfort Polymers Pvt Ltd Vs CCE
CX - Appeal filed against impugned order whereby Commissioner (A) has confirmed demand alongwith interest and penalties - As far as issue regarding reversal of cenvat credit on input lost in fire as such there is no dispute and appellant himself has reversed cenvat credit which is admitted by department itself - Therefore, there is no dispute with regard to this issue - As far as second issue pertaining to cenvat credit on material in process/work in progress destroyed in fire is concerned, original authority as well as appellate authority both have invoked Rule 3(5B) and 3(5C) to confirm the demand - This issue has been considered by various benches of Tribunal, in this regard, it is pertinent to refer the decision in case of M/s CIPY Polyurethanes Pvt. Ltd. = 2021-TIOL-772-CESTAT-MUM where it was observed that where inputs were actually issued and thereafter destroyed in fire accident, there is no requirement of reversal of Cenvat credit - Rule 3 (5B) is applicable only in situation where the inputs or capital goods have become obsolete and written off - It is not applicable in situations where inputs and semi finished goods are destroyed in fire accident - Demand is not sustainable and is set-aside - As far as demand of excess refund of Rs. 4,34,573/- is concerned, SCN is totally vague and does not mention as to when, by whom and vide which O-I-O refund has been granted and in which month - Appellant has categorically stated that no such refund was taken for month of February 2008 as alleged by department - Hence, there is no question of excess refund which is to be paid to department - This issue is also decided against department - Impugned order is not sustainable in law and accordingly same is set-aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT |
