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2023-TIOL-1252-HC-DEL-ST
CCE & ST Vs Oriental Insurance Company Ltd
ST - Respondent is engaged in the general insurance business and was registered with the Service Tax Department under the categories of "General Insurance Service" and "Re-insurance Services" - It had been engaged by the Government of Uttar Pradesh to provide insurance services under the Rashtriya Swasthya Bima Yojana - Undisputedly, in terms of the Notification dated 01 March 2011, exemption was accorded under Section 65(105)(d) of the 1994 Act in respect of services provided by an insurer to any person, for providing insurance under the scheme as aforenoted - However, and inadvertently, the respondent continued to pay service tax between March 2011 to November 2011 till that mistake was ultimately rectified - This led to the filing of a refund claim on 23 December 2013 - The CESTAT has taken note of various decisions rendered by different High Courts and which had held that where service tax had been paid under a mistake, there would exist no justification for the assessee being bound by the period of one year as prescribed under Section 11B of the Act, and that in such a situation, it would be the date when the mistake was discovered which would be relevant - Aggrieved with this stand of the CESTAT, the Department is in appeal. Held : Bench notes that two Division Benches of this Court have also answered the aforesaid issue in favour of the respondent as would be evident from the decisions rendered in National Institute of Public Finance and Policy = 2018-TIOL-1746-HC-DEL-ST as well as Alar Infrastructures Private Limited = 2015-TIOL-2549-HC-DEL-ST - High Courts across the board have taken a consistent view that where once it is found that the assessee was not liable to be subjected to a service tax, it would not be bound by the limitation as prescribed under Section 11B of the Act - In terms of Article 265 of the Constitution, the Union can only levy a tax which is authorized by law - Since it is conceded that the respondent was not liable to pay any service tax, it would be wholly unjust to permit the Union to retain monies which were not liable to be collected or were authorized by law - In view of the aforesaid, Bench finds no ground to interfere with the view as expressed by the CESTAT - CESTAT, however, has completely failed to allude to the issue of unjust enrichment - Bench is informed at the conclusion of the hearing that the refund has already been granted along with interest - In that view of the matter, Bench directs that appropriate material be placed for the consideration and satisfaction of the competent Assessing Authority by the respondent - Appeal of department dismissed subject to above observation: High Court [para 9, 12, 13, 14, 17, 18]
- Appeal dismissed: DELHI HIGH COURT
2023-TIOL-1251-HC-DEL-GST
Mahalaxmi Exports Vs Commissioner of Delhi GST
GST - Petitioner is essentially aggrieved by the denial of refund of its unutilised Input Tax Credit in respect of zero-rated supplies - According to the authorities, the petitioner's application was not filed within the stipulated period of two years from the relevant date as required under Section 54(1) of the Act, 2017 - Petitioner's refund application was rejected by the impugned order dated 28.01.2022 - Petitioner contended that the delay was for bona fide and genuine reasons as the pandemic was raging since March, 2020, and the petitioner could not file his application for refund, due to the disruption caused as a result of the outbreak of COVID-19 - It is the petitioner's case that it was entitled to the refund in view of the orders passed by the Hon'ble Supreme Court in Suo Motu Writ Petition (Civil) No. 3 of 2020 in Re: Cognizance for Extension of Limitation, as well as the notification no. 13/2022-Central Tax dated 05.07.2022. Held : Undisputedly, the petitioner's application for refund was within the time limit as prescribed under Section 54(1) of the CGST Act, if the said period is excluded - The benefit of the said circular/notification has not been provided to the petitioner, as the same was issued after the petitioner's refund application was rejected - Impugned orders are set aside and the petition is allowed - Respondents are directed to process the petitioner's refund application along with the applicable interest within a period of two weeks: High Court [para 13, 14, 17]
- Petition allowed: DELHI HIGH COURT
2023-TIOL-895-CESTAT-KOL
Arasan Amuthan Construction Vs CCE & ST
ST - Appellant has been rendering taxable services under category of " construction of residential complex service" - During year under challenge, it is mentioned in SCN that appellant had undertaken construction of residential complex service for Tamil Nadu Police Housing Corporation Limited (TNPHCL), but however had not paid Service Tax on taxable value of services rendered - It is also mentioned that appellant did not even file any Service Tax return - It also comes out from SCN that appellant claimed that value of contract included materials such as cement, steel and as such it was proposed in said SCN to allow abatement in terms of Notfn 01/2006-S.T. and thereby allowed 67% of abatement on value of services in terms thereof - Consequently, further proposal was made to demand Service Tax, along with applicable interest and penalties - Appellant submitted that by granting abatement of 67% in terms of said Notfn the Revenue has not denied the fact that service if at all rendered by appellant, was works contract per se - It was thus argued that the contract being a composite contract, demanding Service Tax under category of construction of residential complex service was out of question - The period involved is clearly prior to 01.06.2007 and there is also no dispute that nature of service alleged to have been rendered by appellant was works contract - In view of specific decision in M/s. Larsen & Toubro Ltd. = 2015-TIOL-187-SC-ST and undeniable claim of appellant that what they provided was only works contract service, no tax is liable to be demanded on construction contracts executed prior to 01.06.2007 - Consequently, impugned order, which cannot sustain, is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-894-CESTAT-KOL
CC Vs Master Handicrafts
Cus - The Assessee imported old and used worn clothing, completely fumigated which were assessed after value enhancement, confiscation and imposition of redemption fine and penalty - The declared value was enhanced from USD 1.05 per kg to USD 1.316 per kg and redemption fine and penalty were also imposed on the ground that the old and used worn clothing articles are classifiable under Tariff Item No.63090000 of the First Schedule of the Act and is restricted item for import as per Para 2.17 of Foreign Trade Policy 2009-2014, read with ITC HS Classification of import and export items 2009-2014 - Import of goods under Tariff Item No.63090000 is restricted and their import is allowed only against the valid specific license - On adjudication, the Adjudicating Authority has imposed redemption fine of Rs. 6,06,000/- and penalty of Rs. 2,52,000/- respectively - On appeal, the Commissioner (Appeals) vide the impugned order reduced the Redemption Fine to Rs. 2,02,000/- and penalty to Rs. 1,01,000/- under the condition that the goods could not be confiscated on the second charge of misdeclaration of value under section 111 (m) of the Customs Act, 1962 as the Department could not bring any evidence which showed that the value declared in the subject bills of entry were misdeclared thus leaving non-possession of a valid license as the only offense to render the goods fit for confiscation under section 111(d) of Customs Act, 1962. Held - The issues involved in the present appeal have been resolved vide the judgment in the case of Venus Traders Vs. Commissioner of Customs (Import), Mumbai - Considering the order passed herein, the redemption fine and penalty as reduced by the Commissioner(Appeals) is sufficient to meet the end of justice - Hence the impugned O-i-A warrants no interference with: CESTAT
- Revenue's appeal dismissed: KOLKATA CESTAT
2023-TIOL-893-CESTAT-CHD
Sportking Synthetics Vs CCGST
ST - The refund claim has been rejected only on the ground that service tax paid on Terminal Handling Charges, demurrage charges, total logistic solution, BL Charges and documentation charges, nomination charges are not covered under port services and therefore exemption provided under Notfn 41/07 are not applicable - There is no dispute with regard to availing of services for the purpose of export as well as payment of service tax thereon - In view of the decision of High Court of Rajasthan in case of Arihant Tiles and Marbles Pvt. Ltd, registration under a particular service is not necessary for the purpose of exemption under Notfn 41/07, hence, impugned order is set aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT |
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