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2023-TIOL-1291-HC-TELANGANA-GST BST Steels Pvt Ltd Vs Supdt. of Central Tax
GST - Petition has been filed assailing the order dated 31.03.2023 passed by Additional Commissioner (Appeals-II) - The point of law in issue was the non-requirement to pay GST on the guarantee/security to the bank provided by the Managing Director by providing the personal properties as security and personal guarantee - The order of the respondent No. 1 rejecting the contention of the petitioner was affirmed also by the respondent No. 3 in Appeal.
Held: Central Government vide notification 13/2017-CTR had specifically notified that the services provided by the Director of a company or a body corporate to the said company or said body corporate be leviable of tax on reverse charge basis and in the said event, the company would become liable to pay the tax for the said services - The said notification is also not under challenge and the same still holds good - In the teeth of the said notification, the finding arrived at by the respondent No. 1 at the first instance dated 18.11.2021 and the order in original dated 31.03.2023 passed by the respondent No. 3 also cannot be said to be in any manner erroneous, arbitrary or bad in law - Writ petition rejected: High Court [para 6, 7]
- Petition rejected: TELANGANA HIGH COURT
2023-TIOL-1290-HC-DEL-GST
Sanal P Vs UoI
GST - Petitioner impugns SCN dated 20.04.2022 calling upon them to show cause as to why his GST registration should not be cancelled - Petitioner also impugns an order dated 15.11.2022 cancelling his registration pursuant to the said SCN - Petitioner has also filed an application for revocation of cancellation of his registration but that application has not been decided as yet.
Held: SCN did not set out any specific reason or allegation on the basis of which the proper officer proposed to cancel the petitioner's registration - Although, it is alleged in the SCN that the registration has been obtained by means of fraud, wilful misstatement or suppression of facts, it does not provide any clue as to the alleged fraud committed by the petitioner; the alleged wilful misstatement made by him; or the material facts allegedly suppressed by him - The SCN was incapable of eliciting any meaningful response as it provided no intelligible reasons for proposing cancellation of the petitioner's GST registration - Considering that the SCN had not set out any specific reason for proposing to cancel the petitioner's registration, the petitioner's response could not be specific either - Letter of the Anti-Evasion Branch, which is mentioned as a reason for the cancellation of the petitioner's GST registration, also did not form a part of the SCN - It is also trite law that the authority which is entrusted with the power to do a particular act under the Statute has to independently apply its mind and cannot do so on the dictates of another authority - Order dated 15.11.2022 is thus void as having been passed in violation of the principles of natural justice - The SCN is also not sustainable for the reason that it fails to meet the necessary standards required of a show-cause notice - Respondent is forthwith directed to restore the petitioner's GST registration - petition is allowed: High Court [para 9, 11, 13, 16, 18, 19, 25, 27]
- Petition allowed: DELHI HIGH COURT
2023-TIOL-922-CESTAT-MAD
Vikaram Trading Company Vs CC
Cus - The Assessee filed bills of entry for import of polished porcelain tiles - The Directorate General of Valuation, Mumbai vide letter dated 12.12.2000, alerted the field formations about under valuation of import of ceramic tiles and consequently the consignments were provisionally assessed by taking the price as USD 10 per sq.m. - Thus the bills of entry were assessed provisionally pending verification of the declared values by taking bond and bank guarantee from the Assessee - Later based on the letter received from the Directorate General of Valuation, Mumbai dated 19.03.2008, wherein it was intimated to finalise the provisional assessment by taking the contemporaneous value, prevalent during the period of importation of the goods, the adjudicating authority finalised the provisional assessments - The value of the goods imported from Malaysia was enhanced under Rule 8 of the Customs Valuation Rules 1988 read with section 14 of the Customs Act 1962, vide order dated 23.12.2010. - The Assessee contented that they did not receive the said order in original and had received the same much later after filing RTI application. After receipt of the copy of the order in original, they filed an appeal before the Commissioner (Appeals) - The appeal was dismissed by Commissioner (Appeals) on the ground of limitation vide order dated 03.09.2015. Aggrieved by such order the appellant preferred an appeal before the Tribunal and by the final order dated 15.11.2016, the Tribunal remanded the matter to the Commissioner (Appals) with the direction to conduct enquiry as to whether the order-in-original was served on appellant and to resolve the issue at his level - In such remand proceedings the Commissioner (Appeals) directed the Department to produce evidence as to the proof of service of order-in-original upon the Assessee - No such evidence was produced by the Department and the Commissioner (Appeals) held that the contention of the appellant that they had received the order-in-original only on 05.06.2015 pursuant to their application under RTI was acceptable - The appeal was thus taken up for disposal on merits by the Commissioner (Appeals). - The Commissioner (Appeals) passed the impugned order by which the enhancement of value was set aside in regard to three bills of entry accepting the declared value - However, in respect of five other bills of entry the Commissioner (Appeals) upheld the finalisation of assessment passed by the original authority enhancing the declared value.
Held - The issue to be decided is whether the enhancement of value by rejecting the transaction value is legal and proper - During the relevant period the Assessee had imported goods from China, Indonesia and Malaysia. - The Commissioner (Appeals) has set aside the enhancement of value with regard to the imports made from China and Indonesia - Rule 10A provides for situations in which the transaction value declared value can be rejected. It says that if the proper Officer has reasons to doubt the truth or accuracy of the value declared by importer, he can proceed to re-determine the value of the goods after rejecting the transaction value - In the present case, there is no evidence put forward by the department as to the reason for doubting the transaction value. In para 5 of the order in original it is merely stated that as per the letter received from the Director of Valuation, Mumbai dated 19.03.2008 the provisional assessment is finalized by taking the NIDB data into consideration - As per the instructions given by the Directorate of Valuation, Mumbai to finalise the assessments on the basis of NIDB data, the original authority has proceeded to re-determine the value and enhance the same - The Department has failed to establish the grounds to reject the transaction value - Further, in the case of Agarwal Foundries (P) Ltd. the Tribunal has held that NIDB data can only be a guideline to the Customs to arrive at the value of the goods and cannot be applied directly, unless the value given therein falls within the parameters of identical goods or similar goods - The said decision has been upheld by the Apex Court - Similar decision was taken in the case of Eicher Tractors Ltd. Vs. Commissioner of Customs, Mumbai - The enhancement of value of imported goods without giving proper reasons to reject the transaction value cannot be sustained - The order is modified to the extent of setting aside the enhancement of value in regard to the bills of entry at sl no. 4-8 in the table: CESTAT
- Appeal partly allowed: CHENNAI CESTAT
2023-TIOL-921-CESTAT-DEL
Dhawan Box Sheet Containers Pvt Ltd Vs CGST
CX - The issue that arises for consideration is as to whether the amount of subsidy received by appellant from State Government under Rajasthan Investment Promotion Scheme, 2010 is includible in assessable value of goods cleared during period in dispute i.e. from 2011-12 to 2015-16, in terms of section 4(3)(d) of Central Excise Act, 1944 - The issue stands settled by an order of Tribunal while answering on reference that had been made on account of difference of opinion between two Members constituting the Division Bench in M/s Harit Polytech Pvt. Ltd. = 2023-TIOL-235-CESTAT-DEL - The subsidy does not reduce the sales tax that is required to be paid by appellant as entire amount of sales tax collected by them from the customer is paid - The subsidy amount, therefore, cannot be included in transaction value for the purpose of levy of central excise duty under section 4 of the Excise Act - In view of aforesaid answer to reference made by Division Bench, order of Commissioner (A) is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-920-CESTAT-BANG
LM Wind Power Blades India Pvt Ltd Vs CCE, C & ST
ST - The present appeal was filed to contest the validity of an order passed by the CST, (Adjudication), Bangalore - The Revenue alleged that the Assessee had entered into an agreement of "know-how transfer" with its parent company, M/s. LM Glassfibre A/S, Rolles Molleveg I, 6640, Lunderskov, Denmark, for receiving the services of technical know-how related to manufacturing and sale of Razor blades in India and abroad; that the right to manufacture and sale were also transferred vide the said agreement - Basing on such observations, show-cause proceedings were initiated, alleging that since the Assessee have been receiving the services of intellectual property service, they are liable to pay service tax for the disputed period in terms of Rule 2(i)(d)(iv) of the Service Tax Rules, 1994 - The proceedings arising out of the show-cause notice dt. 20/04/2012, were adjudicated vide the impugned order dt. 28/08/2014, wherein the original authority has confirmed the service tax demand of Rs. 78,42,628/- along with interest and also imposed penalties under Section 76, 77 and 78 of the Finance Act, 1994.
Held - The Tribunal vide Final Order dt. 27/11/2019 has held that the payments are made for technical know-how, training etc. and not for the use of logo; and that though the use of logo is permitted in terms of the agreement, then unless a specific payment is made for the same, it cannot be said that the Assessee have availed any trademark in terms of the service tax law - On the said observations, it has been held that the Assessee is not liable to pay service tax under the taxable category of service of intellectual property - The issue of classification of technical know-how under IPR has also been settled in the case of ABB Ltd. - Further, in the case of Thermex Ltd., it has also been held that there is no law governing trade secrets/confidential information in India and therefore, such rights would not constitute intellectual property right, as defined in law during the relevant period and as such, would not be chargeable to service tax in India - In view of the above settled position of law, the present adjudged demands confirmed on the Assessee cannot stand judicial scrutiny: CESTAT
- Appeal allowed: BANGALORE CESTAT |
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