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2023-TIOL-1453-HC-MP-CX
Gail India Ltd Vs CCE & Customs
CX - Assessee has filed a refund claim for Rs. 32,65,057/- on 6/10/2003 consequential to finalisation of their provisional assessment of their product LPG for the period from November, 1996 onwards - Lower authorities as well as Tribunal has rejected their claim, therefore, the present appeal u/s 35G.
Held: All the three forums below have reached the conclusion that nothing concrete had been submitted by the assessee that excess excise duty of Rs.32,65,057/- for the relevant period Jan. 1999 to October 1999, has not been recovered from the buyers - The certificate dated 9/3/2004 issued by the Chartered Accountant with annexures indicates details of Basic Price & Excise Duty as per invoices, details of Basic Price & Excise duty received as payment and short recovery of duty; the excess paid amount of Rs.32,65,057/- is shown as outstanding balance as receivables in their balance-sheet - Nonetheless, nothing concrete has been placed on record that the duty element shown in the invoices issued to customers has not been recovered from the customers - Under such circumstances, the concurrent finding of Tribunal that it is a case of unjust enrichment cannot be faulted with and the assessee has rightly been held not entitled to refund of Rs.32,65,057/- as excess amount of excise duty - Further, in none of the documents viz. Books of Accounts or certificate from Oil marketing PSUs, as mentioned in the substantial question framed, the assessee has shown to have not actually recovered the excess excise duty from the buyers - Appeal fails and is dismissed: High Court
- Appeal dismissed: MADHYA PRADESH HIGH COURT
2023-TIOL-1452-HC-DEL-CUS
Khandwala Finstock Pvt Ltd Vs UoI
Cus - Petitioner questions the validity of the impugned orders dated 04 & 07 September 2020 passed by the Principal Commissioner of Customs, the second respondent herein - By the impugned order, the second respondent has rejected the classification of gold coins imported vide Bills of Entry under CTH 7114 1910 as claimed by the petitioner and held that these goods are correctly classifiable under CTH 7118 9000 of the Customs Tariff Act, 1975.
Held: Both CTH 7118 1000 and CTH 7118 9000 are placed under the generic heading of "Coins" - While CTH 7118 1000 deals with coins [excluding those made of gold] and not being legal tender, CTH 7118 9000 is the residuary entry and encompasses all other coins, whether they be of gold or any other precious material - The expression 'coin', however, as appearing, must necessarily draw colour and meaning from the explanatory notes which stand placed therein - While explaining CTH 7118 1000, the explanatory note provides that the aforesaid entry seeks to bring within its ambit coins which were legal tender but have since been withdrawn as well as coins which may be struck in one country to be placed in circulation in another as also those which are yet to obtain the character of legal tender - However, the word 'coin' as appearing in that entry would necessarily have to answer the characteristics of having been issued under government control with the purpose of being used as legal tender - Thus, every gold coin, as that expression has come to be loosely used, would not fall within CTH 7118 1000 or 7118 9000 - Thus, unless an article is found to have been issued in exercise of sovereign authority for the purposes of current or future use as legal tender or one which in the past constituted the basis for money transactions, it would not be a coin which would fall within the ambit of CTH 7118 1000 or 7118 9000 - Court is thus of the firm opinion that the observations as appearing in Paras 49 and 50 [ Khandwala Enterprise Private Limited - 2019-TIOL-2742-HC-DEL-CUS ] have been clearly misinterpreted by the respondents as the Court having held or purporting to hold that all articles of gold which may be colloquially referred to as coins would be liable to be placed under CTH 7118 9000 - If it were the intent of the Court to conclusively hold that the articles imported by the petitioner were liable to be classified either under CTH 7118 1000 or 7118 9000, there would have been no necessity or justification for the respondents being accorded the liberty to adjudicate upon the SCNs' thereafter - Principal Commissioner would thus be obliged to decide the SCN proceedings afresh bearing in mind the observations rendered hereinabove - Impugned orders are set aside and the petition is allowed by remitting the matter to the Principal Commissioner for decision afresh: High Court [para 40, 41, 42, 43, 44, 48, 54, 55]
- Matter remitted: DELHI HIGH COURT
2023-TIOL-1451-HC-MAD-ST
Pondicherry University Vs Joint CGST & CE
ST - Petitioner, the service provider, is aggrieved by the Order in Original dated 29.10.2019 passed by the first respondent and consequential recovery order dated 06.10.2020 of the second respondent - By the impugned Order in Original, the first respondent has confirmed a sum of Rs.1,19,85,616/- towards service tax due from the petitioner - Petitioner is providing services to various colleges seeking affiliation with it - Prior to affiliating colleges, the petitioner inspects the colleges and charge fees - At the time of renewal of the affiliation, the petitioner again inspects the colleges and charges a sum towards inspection for renewal of the existing affiliation - The petitioner also has immovable properties in its campus which have been rented out for various activities - Court has [in the cases of Manonmaniam Sundaranar University = 2021-TIOL-888-HC-MAD-ST , The Tamil Nadu Dr.MGR Medical University, Chennai and The Madurai Kamaraj University = 2021-TIOL-1812-HC-MAD-ST ] granted relief by holding that the service provided by the three above named Universities to their colleges, viz constituted colleges were not liable to tax under Finance Act, 1994 - It is submitted that the service provided by the petitioner to the colleges affiliated are nothing but services "by way of education" as a part of a curriculum for obtaining a qualification recognized by law for the time being in force and, therefore, all through the period up to deletion of Section 66D(l)(ii) from the Finance Act, 1994 till 14.05.2016, petitioner was not liable to pay service tax under Section 66B of the Finance Act, 1994; that after the above amendment to Finance Act, 1994 with effect from 15.05.2016 vide Finance Act, 2016 (28 of 2016), the petitioner was exempted from payment of Service Tax in terms of Entry 9 [service provided by the petitioner to various "educational institutions"] of Mega Exemption Notification No.25 of 2012-ST-dated 20.06.2012 as amended.
Held: Since the present writ petition was filed only on 21.10.2020, after the expiry of limitation prescribed, it is liable to be dismissed on account of latches - Even, on merits the challenge to the impugned Order-in- Original dated 29.10.2019 based on the decision cited by the petitioner cannot be granted - There is no scope for interpretation of Section 66D(l) of Finance Act, 1994 as the language is plain and clear - Section 66D(l) of Finance Act, 1994 calls for no interpretation - A reading of the above clarification [in The Educational Guide of the Central Board of Excise and Custom, para 4.12.1, 4.12.5] indicates that the services provided by the petitioner to colleges for grant/renewal of affiliation was not in contemplation of the Parliament when it introduced Section 66D(l)(ii) by Finance Act, 2012 into Chapter V of the Finance Act, 1994 with effect from 01.07.2012 - Supreme Court has repeatedly held that the operation of the notification has to be judged not by the object which the rule making authority had in mind but the words it has employed, effectuate the legislative intent - Therefore, there is no scope for extending the benefit of Section 66 D(l)(ii) of the Finance Act, 1994 to the petitioner - Only specified category of services provided to "educational institution" were grouped in the "negative list" in Section 66D(l) of the Finance Act, 1994 - The service of the petitioner while affiliating a college with it or renewing the affiliation already granted to colleges was not in the contemplation of the Parliament when it amended Finance Act, 1994 in 2012 and introduced Section 66D(l)(ii) to Finance Act, 2012 - What was contemplated in Section 66D(l)(ii) by Finance Act, 2012 was service provided by an "educational institution" by way of education to students/scholars as a part of a curriculum for them to obtain a qualification recognized by any law for the time being in force - The said activity cannot be termed as a service by way of "education" as was contemplated in Section 66D(l)(ii) of the Finance Act, 1994 - Exclusion from Service Tax levy in Section 66D(l)(ii) of the Finance Act, 1994 was intended to cover only colleges so that they do not charge service tax on the students for provision of services by way of "education" as a part of curriculum for them to obtain a qualification recognized, by any law, for the time being in force - Therefore, to begin with the services provided by the petitioner did not fall within the purview of "negative list" as defined in Section 65B(34) read with Section 66D(l)(ii) of the Finance Act, 1994 and/or as amended by Notification No.9 of 2016-S.T dated 01.03.2016 - Therefore, the contention of the petitioner that the petitioner was outside the purview of Service Tax levy under Section 66B of the Finance Act, 1994 is liable to be rejected - Exemption under Entry 9(b)(iv) to Mega Exemption Notification No.25/2012-S.T dated 20.06.2012 as amended by Notification No.6/2014-S.T. dated 11.07.2014 would be applicable to the petitioner only if the services provided by the petitioner were "relating to admission to an "educational institution" for admission, or conduct of examination by such "educational institution" as defined in definition clause 2(oa) to Mega Exemption Notification No.25/2012-S.T dated 20.06.2012 - Even if meaning of the expression "service relating to admission to, or conduct of examination to an educational institution" is to be interpreted assuming there is an ambiguity in the language, in Entry 9(b) (iv) of Mega Exemption Notification No.25/2012-S.T dated 20.06.2012, it has to be interpreted by applying the principle of " Noscitur a sociis" - Merely because "educational institutions" impart education as a part of a curriculum for obtaining a qualification recognized by law, it will not mean that the amount charged by the petitioner was exempted under Mega Exemption Notification No.25/2012-S.T - It cannot be said services provided by the petitioner to such "educational institution" while inspecting the colleges for affiliating them or renewing the affiliation would be services provided to such "educational institution" by way of services relating to admission to, or conduct of examination by, such institution - There could be affiliation after inspection or renewal of affiliation already granted after such inspection - There could be also decision not to grant affiliation after inspection or not to renew affiliation after such inspection - These are independent services provided by the petitioner which are "commercial" in nature and facilitate a private "educational institution" to provide education to students as a part of a curriculum for student/scholar to obtain a qualification recognized by any law for the time being in force - It is an independent business vertical carried by the petitioner which is a "service" not exempted and is, therefore, liable to service tax - Even otherwise, there is no scope for telescoping the benefit of Section 66D(l)(ii) of Finance Act, 1994 into Entry No.9 of Mega Exemption Notification No.25/2012-ST dated 20.06.2012 as amended by Notification No.9 of 2016-S.T dated 01.03.2016 and Notification No.6/2014-S.T dated 11.07.2014 - Thus, there is no scope for conferring exemption which is not available to the petitioner - The affiliation work and the charges collected and similar amounts collected for renewal of affiliation cannot be said to service provided in relation to relating to admission to, or conduct of examination by, such institution - Similarly, there is no scope for exempting the petitioner from service tax for renting of immovable property after 1.4.2013 - This writ petition has to fail, on all counts except, for "renting of immovable property" for a brief period between 01.07.2012 and 31.03.2013 - The said exemption is not available with effect from 01.04.2013 in view of amendment to vide Notification No.3/2013-ST dated 01.03.2013 - Since the decision of the Single Judge in the case of Madurai Kamaraj University is pending appeal before the Division Bench, liberty is given to the petitioner to file a statutory appeal before the first Appellate Authority within a period of thirty (30) days - The views in Madurai Kamaraj University and Manonmaniam Sundaranar University referred to supra as mentioned above would require a reconsideration as there is no scope for interpretation when the language in the Notification was clear - Writ petition stands dismissed: High Court [para 35, 42, 48, 51, 61, 62, 63, 64, 65, 80, 95, 103, 104, 106, 108, 109, 115, 116, 118, 120]
- Petition dismissed: MADRAS HIGH COURT
2023-TIOL-985-CESTAT-BANG
Bharti Trading Company Vs CC
Cus - The issue arises for determination is about quantum of penalties - Appellants have not disputed the case on merits but vehemently argued about excessive imposition of penalties which in their submission is disproportionate considering the fact that all the 24 Nos. of pressure washer pumps which were imported by them and the gold concealed inside the pressure washer pumps have been absolutely confiscated - It is also argued that once heavy penalty under Section 112 is imposed, further penalty under Section 114AA would cause undue hardship and resulted into injustice - Considering the overall facts and circumstances including the fact that imported goods and gold suffered absolute confiscation, imposition of penalty under Section 114AA if reduced from Rs.10,00,000/- to Rs.5,00,000/- it would meet ends of justice in case of appellant-company - No justifiable reason found to interfere with personal penalty imposed on second appellant: CESTAT
- Appeals partly allowed: BANGALORE CESTAT
2023-TIOL-984-CESTAT-AHM
Kashyap Sweeteners Ltd Vs CCE & ST
CX - The Assessee is engaged in the manufacture of Sorbitol Liquid Glucose classifiable under Chapter 29 of Central Excise Tariff Act, 1985 - While clearing the Excisable goods, the Assessee in addition to value of the goods, charged transportation charges as per the pre-determined amount to their customers - It is observed that at times the actual amount of freight paid to transporters is less than the amount of freight collected from the customers - It is also the case whether the freight paid to transporters is higher than the pre-determined and collected from the customers - The case of the Department was that the excess freight collected as compared to the actual freight paid to the transporters should be included in the assessable value and excise duty should be discharged on the said difference - Accordingly, the Show Cause Notice was issued and by adjudication the demand was confirmed - The Commissioner (Appeals) has also upheld the demand therefore, the present appeal filed by the Assessee.
Held - An issue identical to the issue at hand stands resolved in the Assessee's own case, where the CESTAT vide Final Order No. A/11559-11561/2023 dated 24.07.2023 held that excess amount of freight collected from the customers is profit on account of transportation and not part and parcel of the value of the goods and thereby not included in the assessable value - In view of the decision in the Assessee's own case only for the different period, there being identical issue involved in the present case, the issue is no longer res integra accordingly, the demand and penalties are not sustainable - The impugned order is set-aside and the appeals are allowed: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2023-TIOL-983-CESTAT-MAD
Talking Technologies Pvt Ltd Vs CGST & CE
ST - The first issue is with regard to demand under 'Business Support Service' - Appellant does not dispute that premises of class room along with its infrastructure were used by NIIT for conducting computer classes - Appellant has given the premises on rent along with its infrastructure facilities to NIIT - However, they had not been able to establish this argument with supporting evidence in nature of lease/licence deed or rent receipts - The said contention of appellant is neither tenable nor acceptable - Demand under BSS is sustained - The second issue is with regard to demand under 'Manpower Recruitment or Supply Agency Service' - The very same issue was considered by Tribunal in appellant's own case and vide Final Order dated 03.03.2020 , Tribunal has upheld the demand - The Tribunal relied upon decision in case of M/s. Future Focus Infotech India (P) Ltd. 2010-TIOL-835-CESTAT-MAD - It is submitted by revenue that appeal filed by party before Apex Court against such decision has been dismissed as withdrawn - Following the decision of Tribunal in appellant's own case, it is held that demand is legal and same is sustained - As regards to third demand under category of "Commercial Training or Coaching Services", appellant has received income from NIIT for imparting computer coaching services - It is not denied that appellant is a franchise of M/s.NIIT for providing such classes - The classes provided may be theory classes or practical training classes - The category of 'Commercial Coaching or Training Services' covers the practical training classes also - No ground found to set aside the demand under this category - Appellant has also argued on the ground of limitation - The main contention put forward by appellant with regard to MRSS is that said issue being an interpretational one and as there was decision rendered in case of Cognizant Tech. Solutions (I) Pvt. Ltd. 2010-TIOL-698-CESTAT-MAD in favour of assessee, SCN invoking extended period cannot sustain - It has to be pointed out that Business Associate Agreement entered between appellant and M/s. WTI clearly shows that the employees are deputed to work for M/s.WTI and its clients and consideration is paid on monthly basis - The terms agreed thereupon stipulate that employees deputed to WTI are not eligible for overtime charges - The conditions with regard to number of holidays that can be availed by employees is also stipulated - When the agreement was so clear, appellant ought to have discharged service tax under MRSS - Therefore, no ground found to hold that SCN is barred by limitation - Impugned orders are sustained: CESTAT
- Appeals dismissed: CHENNAI CESTAT |
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