2023-TIOL-131-SC-MISC
S Narahari Vs S R Kumar
Whether dismissal of a Special Leave Petition by way of a non-speaking order does not attract the doctrine of merger - YES: SC
- Assessee appeal dismissed: SUPREME COURT OF INDIA
2023-TIOL-1155-HC-DEL-ST
CCT Vs Singtel Global India Pvt Ltd
ST - Refund claimed by the respondent, M/s. SingTel Global (India) Pvt. Ltd. under Rule 5 of the CENVAT Credit Rules, 2004 read with the Place of Provision of Service Rules, 2012, of the unutilized input service credit of input services by SGIPL towards export of telecommunication services to Singapore Telecommunication Limited located in Singapore, has been allowed - Aggrieved, Revenue is in appeal.
Held : It is borne out from the record that while SingTel is a licensed telecommunication service provider in Singapore and on its own as well through a network of affiliates or suppliers, is engaged in providing telecommunication services to its registered consumers in Singapore and other foreign territories - On the other hand SGIPL is a licensed provider of certain telecommunication services in India, which has undertaken to ensure seamless global telecommunication services to the customers registered with SingTel in Singapore and elsewhere - The plea that SGIPL is not providing any services on its own account is misplaced - It is manifest that there is no contract between SingTel and service providers in India like Airtel, Vodafone, Reliance etc., and the agreement between SGIPL and SingTel is on principal-to-principal basis - Indeed, SGIPL has entered into separate contracts with the telecom operators in India but on its own account and not as in the nature of a broker or agent for SingTel - The agreement envisages that SGIPL has to provide, at its own expenses, all necessary infrastructure in order to provide the services to SingTel and its customers - It further envisages that SGIPL shall raise invoices upon SingTel in US dollars for the services rendered on a monthly basis and on such transfer prices as may be agreed upon from time to time - No legal infirmity or irrational approach adopted by the CESTAT when it comes to conclude that SGIPL is not providing 'intermediary services' - Appellant department has not even alleged that the aforesaid agreement is a camouflage, fraudulent or designed to get over the service tax dragnet - Submissions advanced by the Standing counsel for the appellant overlooks the fact that the recipient of services is based outside India - SingTel has no contract with telecom service providers in India and the end consumers are based in Singapore and other foreign territories covered by SingTel and are independently entitled to demand service from SingTel and pay for the services accordingly to it too - Revenue Appeals are bereft of any merit and accordingly, the same are dismissed: High Court [para 17, 18, 20, 22]
- Appeals dismissed: DELHI HIGH COURT
2023-TIOL-1154-HC-DEL-CX
Gopal Corporates LLP Vs Commissioner Delhi East GST Central Tax
CX - Appeal is preferred under Section 35G of the Central Excise Act, 1944 challenging an order dated 02 November 2017 passed by the Central Excise and Service Tax Appellate Tribunal and which has in essence affirmed the Order in Original as well as the view as taken by the appellate authority - Issue arises out of the quantum of duty which the appellant / petitioner was liable to pay in terms of the provisions contained in the Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010.
Held : As is manifest from a reading of Section 3A(2)(a), the Union Government is empowered not only to prescribe the manner for determination of annual capacity of production of a factory, the said provision by way of a legal fiction stipulates that the capacity of production as determined in accordance with the Rules shall be "deemed" to be the annual production of goods in that factory - The computation of annual production and the same being computed by virtue of a statutory deemed fiction does not owe its genesis to Rule 8 - The said legal fiction stands incorporated in Section 3A(2)(a) itself - It becomes significant to note that Rule 8 speaks of both operating packing machines as well as packing machines installed - The said Rule too incorporates a deeming fiction as would be evident from the usage of the phrase "shall be taken as" - As we read Rule 8, it is manifest that in case a machine is added to the production capabilities existing in a factory, the number of operating packing machines of the month shall be deemed to be the maximum number of packing machines installed and existing on any day during that month - The fact that a particular packing machine is operated only for a few days during the month does not result in the duty liability being proportionately reduced or enhanced - This is further evident from the Second Proviso to Rule 8 which stipulates that in case an installed packing machine falls into a state of disuse for any reason whatsoever, notwithstanding the same, it shall be deemed to be an operating packing machine for the month - Challenge to Rule 8 must also fail when tested on the anvil of the Second Proviso to Section 3A(2)(b) - Bench is of the firm opinion that the Proviso has no inhibiting effect on the deeming fiction which stands incorporated and embodied in Rule 8 - For all the aforesaid reasons, Bench is unable to hold Rule 8 as being ultra vires Section 3A nor do we find any error in the view as expressed by the Tribunal while passing the order impugned - Appeal stands dismissed: High Court [para 20, 22, 23, 24, 28]
- Appeal dismissed: DEHI HIGH COURT
2023-TIOL-1153-HC-MUM-VAT
Oasis Realty Vs Commissioner of Sales Tax
Whether where contractor opts for Composition Scheme, it is not necessary to enquire and determine extent or value of goods which have been transferred in course of execution of works contract - YES: HC
- Assesses appeal dismissed: BOMBAY HIGH COURT
2023-TIOL-839-CESTAT-MUM
Romil Jewelry Vs CC
Cus - Issue is of empowerment accorded to officers of customs to discard 'certificate of origin' and to decide on non-entitlement to benefit of preferential duty claimed on imports of 'gold jewellery'/ 'diamond studded gold jewellery' effected from Thailand under notification no. 85/2004-Cus dated 31st August 2004 - Impugned goods had been imported from Thailand, over a span of time and, upon furnishing of 'certificate of origin,' purportedly issued by the authorized person in that country - It appears that the validity of the said certificate came under suspicion and, on completion of investigation by the Directorate of Revenue Intelligence (DRI), proceedings were initiated culminating in the orders now impugned - Essence of the findings is that the 'certificates of origin' so produced were not acceptable owing to apparent non-compliance with 'value addition' requirement prescribed as threshold for deeming the goods to have originated in that country - Scheme stipulates that addition - which is the labour/making charges including that of metal loss, processing, profit and any other direct/indirect cost - be at least 20% to be eligible thereon - Case of customs authorities is that the certificates indicating 'changed at 4-digit HS level + 22% LVAC' were not consistent with other documents recovered during the investigation but not furnished with the relevant bills of entry; that the actual addition being less than the threshold had been admitted to in statements recorded u/s 108 of the Act, 1962.
Held : Sans any allegation of collusive arrangement of buyer and seller, statements and other documentation are not really evidentiary reference points for ascertainment of origin particularly in the absence of investigation carried out at supplier end - The formula in rule 6(d) is verifiable only upon availability of value of 'non-originating materials' which is markedly absent in the investigation as narrated in the show cause notices and impugned orders - Ascertainment through domestic agencies or purported admissions in statements recorded by investigation agencies cannot substitute for this essential foundation - In the light of the factual matrix and law settled in the judicial decisions, Bench finds no justification for discarding of the 'certificates of origin' by the adjudicating authority - Accordingly, the impugned orders are set aside and appeals are allowed: CESTAT [para 9, 13, 17]
- Appeals allowed: MUMBAI CESTAT
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