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2023-TIOL-1660-HC-DEL-GST
Narendra Polypack Industries Vs Addl. Director General
GST - The petitioner is aggrieved by search and seizure operations conducted in their premises - During said operations, silver was seized from petitioner's premises - It is the revenue's case that petitioner had invested sale proceeds of such clandestine trade in purchasing silver - Concededly, silver found at the premises of petitioner was seized as unaccounted wealth - This Court had, accordingly, directed revenue to forthwith release the silver bars and coins seized from petitioner - In compliance with said order, silver seized by revenue was released to petitioner at their office - However, after releasing said silver, revenue had once again, seized the same from petitioner at the ground floor of premises - Thus, in effect, the petitioner was permitted to carry the silver out of the office but a seizure was once again effected on the ground floor of said premises - Clearly, revenue had no ground to believe that silver was being secreted at said premises - The fact that petitioner was in possession of silver, is not disputed, this is subject matter of proceedings in present petition - Nonetheless, revenue have carried out the charade of releasing silver from their office and then attempting to repossess the same at ground floor - This action was done to over-reach the orders passed by Court - It is contended on behalf of revenue that there is cogent material to believe that petitioner was also involved in trading in silver and, therefore, the said goods were, otherwise liable for confiscation under Section 130 of CGST Act - It is also fairly stated by revenue, that said goods may be released to petitioner with sufficient protection for Revenue, which he states, would amount to Rs. 16,00,000/- - Subject to petitioner depositing the sum of Rs. 16,00,000/- with Registry of this Court, within a period of one week, revenue shall release and deliver the silver in question, at the residence of petitioner: HC
- Matter listed: DELHI HIGH COURT
2023-TIOL-1659-HC-DEL-GST
Narendra Polypack Industries Vs Addl. Director General
GST - Issue relates to seizure of silver bars by revenue in exercise of power under Section 67 of Central Goods and Services Tax Act, 2017 - The search was carried out after recording reasons to believe that petitioner is engaged in clandestine manufacturing and supply of their product, that is, various types of laminations - Therefore, silver, though being a movable asset, is not “goods” liable for confiscation while exercising the power under Section 67 of CGST Act in relation to products being traded by petitioner - The argument that petitioner has not been able to produce lawful evidence of purchase of silver is of no consequence insofar as the action under Section 67(2) of CGST Act, as initiated is concerned - Revenue has also not been able to dispute that said issue is squarely covered by decision rendered by this Court in Deepak Khandelwal Proprietor M/s. Shri Shyam Metal 2023-TIOL-1007-HC-DEL-GST - As far as argument that in subsequent investigation petitioner is found to be trading in silver is concerned, it is clarified that revenue is not precluded from proceeding further with investigation and taking appropriate action under the Act - There is no dispute that in case the revenue have reason to believe that petitioner has suppressed any transaction, in relation to supply of goods and services, that may involve silver, in contravention of any provisions of CGST Act or the rules made thereunder, an appropriate action under Section 67 of the Act can be initiated - Revenue is directed to forthwith release the silver bars and coins seized from petitioner - Petitioner has filed an affidavit in response to affidavit filed on behalf of revenue on 19.08.2023 - Since the revenue has not received copy of affidavit in reply filed on behalf of petitioner, let a fresh copy of affidavit filed on behalf of petitioner be supplied to them: HC
- Matter listed: DELHI HIGH COURT
2023-TIOL-1096-CESTAT-BANG
IBM India Pvt Ltd Vs CCE & C
Cus - Appellant imported parts and accessories of computers and availed the benefit of Notification No. 06/2006-CE - Later, the classifications declared by the appellant are disputed by the Revenue and the products were re-classified denying the benefit of Notification No. 06/2006-CE - Consequently, differential duty of Rs.93,622/- was confirmed along with interest of Rs.16,388/- and penalty of Rs.93,622/- imposed under 114A of the Customs Act, 1962 - Appellant paid the entire amount of duty, interest and penalty - Revenue disputed the determination of the quantum of penalty and filed an appeal - Commissioner(A) allowed the Revenue's appeal observing that the quantum of penalty under Section 114A of the Customs Act, 1962 should be equivalent to the amount of duty plus interest payable - Hence, the present appeal by importer.
Held: Short issue involved in the present appeal is whether the penalty under Section 114A of the Customs Act, 1962 be equivalent to the duty OR interest or it should be duty AND interest - Issue has been considered by the Karnataka High Court in the case of CC & ST, Bangalore vs. Sony Sales Corporation ( 2021-TIOL-425-HC-KAR-CUS ) and wherein it is observed that the expression used is "or" which is disjunctive between duty or interest and further use of expression 'as the case may be' clearly suggest that aforesaid provision refers to two different persons and two different situations viz., one in which a person will be liable to duty and in other he may be liable to pay interest only and provisions that in both the situations the person liable to duty would be liable to penalty equal to duty and person liable to interest would be liable to penalty equal to interest - Therefore, the word "or" cannot be interpreted as "and" - Interpretation recorded by the Commissioner (Appeals) in computing the penalty under Section 114A of the Customs Act, 1962 is unsustainable in law - Consequently, the impugned order is set aside and the appeal is allowed with consequential relief: CESTAT [para 6, 7]
- Appeal allowed: BANGALORE CESTAT
2023-TIOL-1095-CESTAT-KOL
Ashok Kumar Pathak Vs Pr.CCGST & CE
ST - A SCN was issued to appellant alleging that they are engaged in providing services namely Commercial or Industrial construction service, Maintenance & Repair and Cleaning Service and demanded service tax - However, the main services provided in purchase orders/work order are held as prima facie classifiable under category of "Management, Maintenance or Repair" Services - Finally, it has been concluded that appellant is liable for payment of service tax under category of "Management, Maintenance or Repair" Service - Regarding the nature of service rendered by appellant, it is observed that all the work orders were awarded by M/s Tata Steel Ltd. - Appellant executed various contracts for M/s Tata Steels Ltd. against different work orders awarded by them for "Fabrication" & "Erection" "Cleaning" & "Up keep" and "Replacement" Works - Appellant submits that department is demanding tax only under category of 'Management, maintenance or Repair Service' not any other category of service, hence, they are not liable to pay tax under any other category of service - The work of "Fabrication" undertaken by appellant amounts to "Manufacture" as held by Larger Bench of Tribunal in Mahindra & Mahindra Ltd. 2005-TIOL-1215-CESTAT-DEL-LB and hence, it cannot be made taxable under Chapter V of Finance Act, 1994 - Accordingly, 'Repalcement' works and fabrication of immovable property work undertaken by appellant would not fall under category of "Management, Maintenance or Repair Service' - Appellant has not undertaken any periodical maintenance - They have undertaken repair works as per work orders, as one time activity, which were not liable to service tax under category of 'Management, maintenance or repair service' during relevant period - Thus, demand of service tax under this category is not sustainable - Appellant has paid service tax on activities which did not amount to manufacture - For Example, the work of "Removal of silt from Drain & Tunnel Cleaning Work", the work of "Cleaning, Upkeep and removal of Silt" are not related to manufacture process, accordingly, service tax has been collected and deposited by appellant and subject matter is not in dispute - Accordingly, the activity undertaken by appellant cannot be classified under category of 'Management, maintenance or Repair service' and hence the demand of service tax confirmed in impugned order under category of "Management, Maintenance or Repair Service, is not sustainable - Since the demand itself is not sustainable, question of demanding interest and imposing penalty does not arise - Impugned order is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT |
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