2023-TIOL-1575-HC-MUM-GST
Bhumika Highstreet Pvt Ltd Vs Asstt. CGST
GST - Petitioner seeks a direction quashing the refund rejection order and directing the respondent to grant refund of Rs.97,04,185/- claimed by the petitioner u/s 54 of the Act, 2017 - Show cause notice was issued on 18 January, 2023 calling upon the petitioner to show cause as to why the petitioner's refund application be not rejected on the grounds as set out in the show cause notice - It appears that the petitioner submitted its reply to the show cause notice on 02 February, 2023, and the impugned order was immediately passed on 03 February, 2023 - Grievance of the petitioner is that none of the contentions as urged by the petitioner in its reply filed to the show cause notice are addressed in passing the impugned order - Counsel for Revenue fairly accepts that the impugned order fails to consider materials and makes a statement that the respondents be permitted to withdraw the impugned order with liberty to issue a fresh show cause notice, on the refund application, to be adjudicated in accordance with law, after considering the reply of the petitioner as also after granting an opportunity of hearing to the petitioner.
Held : Bench, therefore, disposes of the petition by holding that the impugned order dated 03 February, 2023 stands withdrawn as per statement as made on behalf of the respondents; that the respondents are directed to issue a fresh show cause notice to the petitioner within a period of two weeks; reply thereto within two weeks; petitioner to be heard and reasoned order be passed by the Designated Officer within a period of two weeks - Petition disposed of: High Court [para 6]
- Petition disposed of: BOMBAY HIGH COURT
2023-TIOL-1018-CESTAT-CHD
Punjab Cricket Association Vs CCE
ST - Assessee is providing "Club or Association Services" - On audit, Department noticed that assessee have been receiving payments like registration fees, entrance fees, annual subscription and charges for provision of additional facilities like billiards, swimming pool, lawn tennis, accommodation from its members and have not discharged applicable service tax liability - A SCN was issued and original authority confirmed the demand of service tax along with interest while appropriating an amount paid by assessee; imposed penalty under Section 76 and Section 78 of Finance Act, 1994 - Revenue has not adduced any evidence to demonstrate that assessee have collected charges for providing any services to members - They have submitted that only a few members, who are in the category of 'associated members' are only charged - It is not established with evidence that appellants are rendering any particular service that is taxable - In view of the fact that PCA are registered under Society Registration Act, the assessee is not liable to pay service tax under heading "Club or Association Service" - Therefore, impugned order cannot be sustained and is liable to be set aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
2023-TIOL-1017-CESTAT-KOL
Jaya Perfumery Works Pvt Ltd Vs CC
Cus - The appellant has imported Joss Powder for usage in their finished goods known as Jigged Powder - They were importing these consignments right from May 2003 onwards and goods were classified under chapter sub-heading 44013000 attracting basic Customs Duty @5% - Department took a view that the goods are liable to be classified under Chapter 12 of CTA, 1975 - It is seen from RTI response letter issued by Assistant Commissioner of Customs that he has categorically stated that classification of goods under CET 44013000 is settled and Bill of Entry has been assessed finally in terms of Test Report dated 11/10/2004 - This shows that the goods were being classified by Department itself under CET 44013000 - There is nothing on record to show that this process was undertaken before Customs Department adopted the new classification of CET 12119029 - The Test Report obtained from CRL by Department does not specify that goods in question fall under any of these categories - Thus, no reason found for Department to suddenly change the classification from CET 44013000 to CET 12119029 when several consignments have been imported through Kolkata (Port) as well as Haldia (Port) during the period 2003 to 2004 were allowed to be classified under CET 44013000 - Even provisionally, assessed Bills of Entry has been finalized by classifying the goods under CET 44013000 - No proper evidence being brought in by Customs Department to adopt new classification under CET 12119029, particularly when even Test Reports obtained from CRL do not support the view of Department - Accordingly, impugned Order is set aside: CESTAT
- Appeals allowed: KOLKATA CESTAT
2023-TIOL-1016-CESTAT-BANG
Godrej Properties Ltd Vs CCT
ST - Short issue involved is - Whether the appellant is required to discharge service tax under the category of ‘construction of complex service' during the period January, 2006 to September, 2010 - The facts are that the appellant being a developer, under an agreement with M/s Amco Batteries Ltd, the land owner, constructed seven residential blocks itself and by engaging sub-contractors - The flats/apartments in the said residential blocks were sold to customers by entering into individual agreements with flat owners/buyers - Also, it is not in dispute that the appellant has rendered the services which are composite in nature i.e. comprises of both materials and services and paid state VAT in rendering works contract service - It is appellant's contention that for the period prior to 01.06.2007, the issue of levy of service tax on Works contract service is covered by the judgement of Supreme Court in the case of Larsen & Toubro Ltd ( 2015-TIOL-187-SC-ST ) - And for the period from 01.06.2007 to September, 2010, the appellant has discharged service tax under the category of ‘works contract service' - However, the Commissioner has denied the said benefit considering the appellant as a developer and has not been providing construction service to the service receivers i.e. flat buyers; and for ongoing projects after 01.06.2007 discharge of service tax under the category of ‘works contract service is unacceptable.
Held: Applying the judgement of this Tribunal in Pragati Edifice Pvt. Ltd. 2019-TIOL-3095-CESTAT-HYD to the facts of the present appeal, Bench is of the opinion that service tax is not leviable on ‘construction of complex service' prior to 01.06.2007, being a composite contract in the nature of ‘works contract' service and for the period from 01.06.2007 to September, 2010 the appellant had discharged service tax under the ‘works contract service' - Impugned order is set aside and the Appeal is allowed with consequential relief: CESTAT [para 6 to 8]
- Appeal allowed: BANGALORE CESTAT |
