2023-TIOL-1336-HC-KOL-GST
Krishna Construction Vs State of West Bengal
GST - Petitioner inter alia prays for order or direction on the respondent nos. 1, 4 and 5 to pay the liability of GST incurred on works contract executed and completed after 1st July, 2017 wherein the contracts were awarded in the pre-GST regime or post-GST regime and therefore it was impossible on part of the petitioners as well as the respondent nos. 4 and 5 to include the component of GST in the value of contract awarded prior to GST legislation coming into force or post GST contracts, ongoing projects in the period of 2017-2018.
Held : It appears the respondent authorities concerned have to bear the additional tax liability for execution of subsisting Government contract either awarded to the petitioners during pre-GST regime or in post-GST regime without updating the Schedule of Rates (SOR) incorporating the applicable GST while preparing Bill for payment - Writ petition is disposed of by giving liberty to the petitioners to file appropriate representations stating all the facts and provision as referred in preceding paragraph of this judgment, before the Additional Chief Secretary, Finance Department, Government of West Bengal within four weeks and the Additional Chief Secretary, Finance Department shall take a final decision within four months from the date of receipt of such representations - Till the final decision is taken by the Additional Chief Secretary, no coercive action shall be taken against the petitioners by the respondents concerned - Petition disposed of: High Court [para 11, 12, 13]
- Petition disposed of: CALCUTTA HIGH COURT
2023-TIOL-948-CESTAT-BANG
Karnataka Golf Association Vs CST
ST - Period involved is June 2005 to September 2011 - Common issue involved in all these appeals is leviability of Service Tax on advance entrance/admission fee collected by the appellant from the applicants under the category of "Club or Membership Association Service" during the relevant period -
Held: Supreme Court while analysing the leviability of Service Tax on the Membership fees collected by club or association in the case of Calcutta Club Ltd. ( 2019-TIOL-449-SC-ST-LB ) held that Companies and Cooperative Societies which are registered under the respective Acts being constituted bodies under this Acts were not included in the Service Tax prior to 1.7.2012 - Thus, the membership fees collected by a registered club or associations is held to be not leviable to service tax - Besides, this Tribunal in appellant's own case [ 2020-TIOL-500-CESTAT-BANG ] decided the issue in favour of the appellant for a different period following the above ratio of the Hon'ble Supreme Court - No merit in the impugned orders, hence the same are set aside with consequential relief: CESTAT [para 8, 9]
- Appeals allowed: BANGALORE CESTAT
2023-TIOL-947-CESTAT-MUM
Huawei Telecommunication India Company Pvt Ltd Vs CC
Cus - The issue for consideration is, classification of imported goods as to whether, the same merits classification under Customs Tariff Item 8517 7010 as claimed by appellants; or, is it classifiable under Customs Tariff Item 8517 62 90 as contended by Department, for deciding on appropriate levy of customs duty in respect of such imported goods under First Schedule to Customs Tariff - The contending classification of imported goods discussed in impugned order are either under 8517 7010 or 8517 62 90 of First Schedule to Customs Tariff Act - Thus, it is clear that at the Chapter and Heading level i.e., Chapter 85 and Heading 8517, there is no difference of opinion among appellants and department - The dispute in classification lies in narrow compass of Sub-headings and respective Tariff Items falling there under - The imported goods namely 'interface cards', which are concluded in impugned order as product of Optical Transport Network (OTN), and is being used in cloud engine switches providing function of data packet processing and traffic management, would not be categorised as an 'apparatus or machine' but it could only be a part of apparatus, namely cloud engine switches - Thus prima facie, imported goods would get covered under scope of sub-heading 851770 - It could be concluded that government had provided concessional rate of basic customs duty of 10% on all products covered under scope of tariff item 8517 6290 or 8517 6990, except for eight specified products specified therein - These include Optical Transport Network (OTN) products under entry 20(d) - The said exemption notification does not perse provide for any aid for classification of goods - Hence, Tribunal is not in agreement with conclusion arrived at by Commissioner (A) in impugned order for excluding classification of imported goods under CTH 8517 7010 and for deciding classification under CTH 8517 6290 on the basis of entries under exemption notification - It is a settled law that while statutory notifications may be looked at for purpose of ascertaining the scope of goods covered under exemption notification, they cannot be used to determine classification of goods - The impugned order is not sustainable: CESTAT
- Appeal allowed: MUMBAI CESTAT
2023-TIOL-946-CESTAT-MAD
Orient Flights Pvt Ltd Vs CST
ST - The Assessee-company, which does not own any aircraft, had leased aircraft to a company for its exclusive use - The aircraft was owned by a sister-unit of the Assessee-company - The Assessee did not charge any service tax or VAT - The Revenue opined that not charging VAT implied that there was no transfer of legal right of possession and effective contol, however the description in the invoice was Towards charter flight charges - The Revenue opined that this entailed the aircraft having been leased out by the Assessee for its exclusive use and not just for transportation of passengers - Thus, the Revenue opined that such activity constituted Supply of Tangible Goods For Use service - Clarifications were sought from the Assessee and after exchange of several communications with the Assessee, Show Cause Notices came to be issued proposing to raise service tax demand under this category.
Held - From the record, it is seen that the Assessee seriously contested the tax demand raised under Supply of Tangible Goods service, but only after mich persuasion, did the Assessee pay the tax with interest - Hence it is inferred that the payment of tax and interest is not a voluntary act - It is also worth noting that the Assessee did not collect the Service Tax from its customer - It is also seen that the Assessee was aware of the changes in the law with introduction of supply of tangible goods service with effect from 2008, when admittedly, a tangible goods is being leased/rented, or given to use, without thereby transferring the right of possession or effective control over the same - If there was any genuine doubt, the only option perhaps was to pay the tax instantly and upon being pointed out, and then seek clarification from a tax expert or the Department: CESTAT
Held - Limitation - It is clear that the Assessee is contesting issue of invoking extended period of limitation and that rendering of 'Supply of Tangible Goods Service' is accepted - However, if not for survey proceedings and persuasion by the Department, the tax would have remained unpaid, amounting to evasion of tax - The other fact that the rendering of service and the receipt is not shown in the ST-3 return thus clearly amounts to suppression of facts - Hence, it is a clear case of suppression of facts with intent to evade tax payment - In the corollary, if it is presumed that there was no suppression of facts with intent to evade payment of tax, then the Revenue would be deprived of what would lawfully be due - A refund claim with interest would derail the whole process of collection of lawful tax - Hence the invocation of extended limitation is justified and warrants no interference with: CESTAT
- Appeal dismissed: CHENNAI CESTAT
2023-TIOL-945-CESTAT-MAD
Annai Chemicals And Associators Vs CGST & CE
CX - Appellant is engaged in manufacture of Magnesium Sulphate - The SCN has been issued alleging that appellant has crossed exemption limit of Rs.1 crore in terms of Notfn 8/2003-CE during years 2006-07 and 2007-08 - The appellant has contended that they have made export clearances which are not deducted from aggregate value of clearances for determining SSI exemption for disputed periods - Adjudicating authority has held that appellants have produced Form-H issued to them by merchant exporter - However, the view taken by adjudicating authority is that the subject goods have not been directly exported from SSI unit and hence this cannot be considered as export clearances made by appellant - The Tribunal in case of Vadapalani Press 2007-TIOL-798-CESTAT-MAD had occasion to consider a similar issue - The Board's circular 648/30/2002 was also referred by Tribunal - It was held that when Form-H has been produced to establish that the goods have been exported the value of such clearances would not be included in aggregate value so as to deny the SSI exemption - The demand cannot sustain - Impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT |
