TODAY'S CASE (INDIRECT TAX)

February 29, 2024

++ Service Matter - Claim for compassionate appointment not to be considered as regular mode of appointment; is intended to address penurious situation in immediate aftermath of breadwinner passing away: SC

++ Cus - Liability incurred by noticee company which merged with petitioner company cannot stand extinguished on account of its merger: HC

++ Cus - Merger or amalgamation of companies is not a tool under law to either facilitate avoidance and evasion of tax liability already incurred by a transferor company - SCN proceeding cannot be scuttled: HC

++ ST - Classification of services - Only remedy available is to file an appeal before the Supreme Court u/s 35L of the CEA, 1944 - Petition is dismissed as withdrawn: HC

++ GST - Cancellation of registration - Order records that petitioner did not reply to SCN or appear in person, however, counsel for revenue submits otherwise - Matter remanded - In the meantime, petitioner will not enjoy benefits of registration: HC

++ GST - Issuance of fake invoices - None of the documents produced show that the petitioner is physically occupying the building or conducting any business - Electricity consumption also zero - Blocking of ITC proper: HC

++ GST - Section 107 operates as a complete code in itself, explicitly delineating limitation periods for filing appeals and implicitly excluding the application of general limitation provisions: HC

++ GST - Cancellation of registration - Cryptic notices and orders - Respondent authorities will not be able to exercise revisional powers, hence orders set aside and matter remanded: HC

++ ST - Where extended period of limitation could not have been invoked, it is immaterial whether demand is confirmed for period within five years or beyond: CESTAT

++ Cus - CBLR - Regulation 10(n) - IEC & GSTIN are issued by Govt Departments - Customs Department cannot expect Customs Broker to bear responsibility for correctness of certificates issued - Charges of contravention on Regulation 10(n) are unfounded : CESTAT

++ CX - One consolidated hearing notice granting opportunity of hearing on three different dates clearly violates principles of natural justice; case remanded for de novo hearing: CESTAT

February 28, 2024

++ Cus - Revenue cannot be permitted to enrich itself at the cost of the petitioner - It is under obligation to grant interest on whole amount and not just on pre-deposit amount: HC

++ CX - Matter remanded by Tribunal to adjudicating authority to consider Board Circular 97/2007-ST - Appellant does not press the appeal, hence same is disposed of without entering into the merits: HC

++ GST - Input Tax credit allegedly wrongly availed/utilized is totalling Rs.20 lakhs - Superintendent, CGST adjudicating this case is without jurisdiction in terms of Circular 31/2018- GST: HC

++ GST - Since petitioner has filed reply to SCN, he is relegated to approach respondent authority for redressal of grievance: HC

++ GST - Production of invoice & E-way bill after interception cannot absolve petitioner from liability of penalty - Very purpose of imposition of penalty is to act as deterrent: HC

++ Cus - That Customs Department did not raise objection against past exports of Alprazolam tablet consignments, is invalid defense to justify export of Alprazolam tablets without proper export authorization: CESTAT

++ Cus - Penalty imposed u/s 114(i) of the Act does not require intent to be proved; only condition to be satisfied is that goods should be liable for confiscation: CESTAT

++ CX - Where input goods received are utilised for manufacture & clearance of excisable goods cleared on payment of tax, Cenvat credit thereon cannot be disallowed: CESTAT

++ ST - Assessee supplied goods under Asset Licensing Agreement for R&D in Oncology - Such supply is deemed sale, as effective control & possession is retained by assessee, which granted exclusive right to use - Ergo, service tax levy not applicable on such supply: CESTAT

++ ST - Show Cause Notice proposing to raise tax demand based solely on differences in value between Income Tax Returns & Service Tax Returns, is unsustainable: CESTAT

February 27, 2024

++ GST - The order of cancellation is modified to the extent that same shall operate w.e.f 23.02.2023, i.e. the date on which petitioner made an application for cancellation of registration and same was suspended: HC

++ GST - Registration - Grounds for cancellation are different from the grounds in SCN - Order set aside: HC

++ GST - Petitioner is permitted to file a detailed response to SCN and provide all requisite details and information, as sought for by department within two weeks: HC

++ GST - SCN does not put petitioner to notice that registration is liable to be cancelled retrospectively - Order of cancellation is modified to the extent that same shall operate from date on which petitioner discontinued his business: HC

++ GST - Order of cancellation of registration is modified to the extent that the same shall operate w.e.f the date on which petitioner is alleged to have last carried on business: HC

++ Cus - Adjudicating Authority shall consider impact assessment of the injury arising out of dumped import based on data produced - Tribunal observations are prima facie and AA to independently decide: HC

++ ST - Penalty imposed u/s 78 of Finance Act 1994 merits being waived by invoking provisions of Section 80, as no evidence is submitted to establish suppression of facts with intent to evade payment of tax: CESTAT

++ ST - Allegation against assessee of not paying Service Tax on advance payments, yet no evidence exists to show any advance payment received by assessee or which escaped tax payment; demands dropped: CESTAT

++ Cus - Anti Dumping - Appeal filed by Domestic Industry to assail decision of Central Govt to not accept recommendation of Designated Authority to impose ADD - Appeal delayed without reasonable cause, hence not admissible: CESTAT

++ CX - Even if instant coffee pouches less than 10 gm were cleared in bulk & not meant for retail sale, they would be exempted under Rule 34; Ergo, provisions of Section 4A of Central Excise Act, 1944 will not be attracted: CESTAT

++ CX - Extended limitation need not be invoked where case involves interpretation of law, with assessee being under impression of not being covered u/s 4A despite having C&F agents transacting with institutional buyers: CESTAT

February 26, 2024

++ GST - Pure services received from vendors - AIIMS, Telangana is a 'governmental authority'; is not entitled to exemption in terms of Sl. No. 3, 3A of 12/2017-CTR: AAR

++ GST - Rent received from the Govt. Social Welfare College Boys Hostel ( SWCBH) is taxable: AAR

++ GST - Appeal was electronically filed within the time permitted - First and second proviso to Rule 108 would not apply: HC

++ GST - As sole proprietor passed away, no returns were filed thereafter - As the legal heir does not seek to continue registration, same shall now be treated as cancelled w.e.f date of demise and not retrospectively: HC

++ GST - During period 01.02.2018 to 31.03.2018 the requirement of e-way bill was unenforceable, therefore, neither seizure of goods was justified nor imposition of penalty: HC

++ GST - Delay beyond condonable period - For the further delay of 24 days, petitioner has provided cogent reasons - Moreover, entire tax liability is paid - Appellate authority to decide appeal: HC

++ GST - As opportunity of hearing has not been given, order cannot be sustained in the eye of law: HC

++ GST - Rule 23 - COD - Subject to Petitioner depositing all taxes, interest, late fee, penalty etc. due and complying with other formalities, application for revocation will be considered: HC

++ GST - Law favours the diligent and not the indolent - Where there are alternate remedies available and assessee has not been diligent in availing such alternate remedies within the stipulated time, no reason to invoke extraordinary jurisdiction: HC

++ GST - Both, Petitioner and department want cancellation of registration, though for a different reason - Registration to be treated as cancelled w.e.f date SCN was issued and not retrospectively: HC

++ GST - Neither the SCN nor the impugned order give any details of the alleged invoices /bills that have been issued by petitioner without underlying supply of goods or services - Same cannot be sustained: HC

++ Cus - Discharge of liability by one of the noticees , either by making a payment without contest or by settlement before Settlement Commission would not absolve other noticees from their liability: HC

++ Cus - Question whether the adjudication order is barred by limitation or not is a mixed question of law and fact, which cannot be adjudicated in the writ petition: HC

February 24, 2024

++ GST - Since SCN does not provide petitioner the complete information, respondents are directed to provide, within one week, all the material to petitioner in support of SCN: HC

++ GST - Merely, because a taxpayer has not filed returns for some period does not mean that taxpayer's registration is required to be cancelled with retrospective date also covering the period when returns were filed and taxpayer was compliant: HC

++ GST - It is not apparent as to why or on what basis findings have been returned that petitioner does not fulfil the eligibility conditions, the order is cryptic which cannot be sustained and the matter calls for a remit: HC

++ GST - Merely because a taxpayer has not filed returns for some period does not mean that taxpayer's registration is required to be cancelled with retrospective date also covering the period when returns were filed and taxpayer was compliantL HC

++ VAT - Re-assessment order merits being quashed where assessee is to be given another opportunity of hearing: HC

++ GST - Merely because representations from Tamil Nadu Kerosene Dealers Association for exemption from GST and exemption from TDS are pending consideration, petitioner cannot evade obligation to respond to a notice alleging discrepancies in returns filed by petitioner: HC

February 23, 2024

++ Misc - Sec 5 of Limitation Act can be invoked to condone delay to file criminal appeal against acquittal u/s 378 CrPC: SC

++ GST - Petitioner has not produced on record the letter received by M/s Deepak Estate Agency from revenue to put on hold the consignment lying with it, in absence of pleadings and documents on record, petition can not be entertained: HC

++ GST - Neither SCN nor the order of cancellation of registration contained any reason whatsoever except standard reason of misrepresentation and fraud committed by petitioner, matter remanded for issuance of fresh SCN with detailed reasons for cancellation of registration: HC

++ GST - Since petitioner has remitted 10% of disputed tax demand and period of delay is only about 20 days, petition is disposed of by directing appellate authority to receive and dispose of petitioner's appeal on merits: HC

++ GST - The Deficiency Memo Form-RFD-03, so far as it relates to aspect of applicability of decision of Apex Court is concerned, is quashed and set aside, authorities are directed to process refund application in accordance with law: HC

++ GST - Petitioner is granted instalment facility to clear off the liability and he is permitted to operate bank account on payment of first instalment: HC

++ Cus - Observation of Tribunal that even if goods are found to be restricted or prohibited at the time of import would still be subject to provisional release, would not amount to expression of opinion and is held to be restricted to facts of this case: HC

++ Cus - Appellant is willing to deposit a sum to make good the pre-deposit, appeal allowed with condition that in case, deposit is made within a period of two weeks, appeal will be restored and heard on merits: HC

++ GST - Earlier period SCN set aside by Bench as being bereft of details, yet for subsequent period, another SCN reproduces contents verbatim - Strange behaviour of respondent - SCN quashed: HC

++ GST - Failure to generate e-way bill on time - Mere technical errors, without having any potential financial implications, should not be a ground for imposition of penalties: HC

++ GST - A taxpayer's registration can be cancelled with retrospective effect only where such consequences are intended and are warranted: HC

++ GST - Hearing fixed on 26.12.2023 and notice in this regard was issued only on 24.12.2023 at 08:39 PM after the close of office hours; next day was a gazetted holiday - Adequate opportunity not granted to defend SCN: HC

++ GST - In view of cancellation of registration, it is likely that petitioner would not have reason to access the portal - Since petitioner did not participate in assessment proceedings, order set aside and matter remanded: HC

++ Cus - Sum of Rs.4 lacs is the ceiling with regard to imposition of penalty u/s 117, whereas, in the impugned order, a penalty of Rs.5 lacs was imposed - Order set aside: HC

++  Cus - Enhancement of penalty imposed under Customs Act, 1962 is not tenable where no reasons are rendered for justifying such action: CESTAT

February 22, 2024

++ GST - Cancellation of registration - Order is completely bereft of any reasoning, details or discussion and simply is a cryptic one liner - SCN and order set aside: HC

++ GST - SCN does not put the petitioner to notice that the registration is liable to be cancelled retrospectively - Order set aside: HC

++ GST - Filing of appeal - Since the action of petitioner is bonafide and petitioner appears to be diligently prosecuting the appeal, delay condoned: HC

++ GST - Once the registration stood cancelled, there was no cause for the petitioner to file any returns: HC

++ GST - Not providing an opportunity of hearing - Bench quashes and sets aside order passed in Form GST MOV-11: HC

++ GST - Court shall be compelled to pass appropriate orders for cost against the Officers if directions contained in Aggrawal Dyeing & Printing is not followed: HC

++ Cus - Import of hexane, food grade - Since submission of mandatory BIS certificate no longer exists in view of DGFT Notification No. 24/2015-2020 , petitions have become infructuous - Bonds to be released: HC

++ Cus - Importer cannot be made to wait indefinitely for finalisation of assessment in relation to goods imported - Request for provisional release deserves to be considered favourably: HC

++ GST - Assessment made on the basis of SIB report, which copy ought to have been provided to petitioner - Proceedings were in gross violation of principles of natural justice: HC

++ GST - Bonafide error in filing return - No loss of revenue - Technicalities should not come in the way for allowing rectification: HC

++ GST - In case Proper Officer was of the view that reply is incomplete and further details were required, same could have been sought - Passing ex parte order is uncalled for: HC

++ GST - Assessing officer recording a bizarre conclusion that petitioner is engaged in sale of painting and art works whereas, in reality, petitioner provides coaching in relation to art and culture - non-application of mind - Matter remanded: HC

++ CX - Banking services were availed by appellant in connection with their manufacturing activity; same falls within definition of 'input service' as definition includes phrase 'activities relating to business': CESTAT

++ ST - Demand raised on supposed commission income, is unsustainable, where no service provider is found & where consideration for any such service is absent as well: CESTAT

February 21, 2024

++ GST - Collection towards GST & penalty from assessee was by way of economic duress since assessee had no choice but to pay it to secure release of vehicle and so assessee is entitled to refund of same: SC

++ GST - Applicant is eligible to avail ITC in respect of GST charged by canteen service provider for canteen facilities provided to its permanent employees: AAR

++ GST - Restaurant and hotel rooms housed together - Applicant is not eligible to claim ITC incurred in respect of restaurant service: AAR

++ GST - When efforts are on to promote the ease of doing business and to minimise official discretion, withholding refunds due to red tape should not be encouraged: HC

++ GST - Order passed without complying with mandatory procedure prescribed u/s 73(5) and (8) of Act - Said defect cannot now be cured - Appeal is, therefore, allowed: HC

++ GST - No detailed reasons for cancellation of registration - Revenue to initiate suo motu revision proceedings u/s 108 in respect of such orders and pass fresh orders: HC

++ GST - Unutilised ITC refund - Shipping bills not uploaded - Law should not be so rigid so as not to permit claimant to rectify mistake that has been committed inadvertently: HC

++ GST - Cancellation of registration - All tax dues including interest and fees relating thereto duly discharged - Matter remanded for reconsideration: HC

++ Cus - When only calcination process is carried out and CaO content is less than 98%, than the quicklime used by appellant in their manufacture of paper is correctly classification under CTH 2522 10 00: CESTAT

++ ST - Dismissal of appeal before Commr. (A) on limitation, is not tenable, where Department omits to furnish evidence to show that delay beyond 60-days' limitation period is attributable to assessee, or that O-i-O being appealed against was delivered to Assessee in a timely manner: CESTAT

++ Cus - Penalty u/s 112(a) cannot be imposed when no evidence exists to show suppression of facts & where imported goods are offered for examination - Ergo, penalties on Customs Broker & its employee, are unwarranted also: CESTAT

++ CX - Allegation of clandestine removal of consumable Steel, was levelled based on unaccounted differential consumption between ER-4 & ER-6 returns - No evidence furnished by Department to fortify such allegations - Tax demands rightly dropped: CESTAT

February 20, 2024

++ GST - If Proper Officer was of the view that reply is incomplete and further details were required, same could have been sought - Order passed without giving such opportunity is quashed and set aside: HC

++ GST - Cancellation of registration - Allegation of incorrect ITC availment - Respondents are apparently using a template for issuing SCNs without providing any particulars: HC

++ GST - Supplier registration cancelled with retrospective effect - ITC cannot be denied solely on this ground - Petitioner to prove transaction was genuine - Matter remanded: HC

++ GST - Two e-way bills were generated inadvertently in respect of a single transaction, which had already suffered tax - Respondent to initiate fresh proceedings: HC

++ GST - Concessional rate of tax - Persons with Disabilities - Since application was submitted before policy was amended, same was liable to be considered under the 2018 policy and could not have been returned: HC

February 19, 2024

++ GST - Circulars 3/2017, 31/2018, 169/2022 cannot be said to be legally infirm: HC

++ GST - It is not profitable to extract a sentence here and there from the judgment and to build upon it: HC

++ GST - Cash cannot be seized u/s 67 of the Act, 2017 - Return Rs.1.91 crores with interest: HC

++ GST - Irrespective of the fact as to whether Petitioner had asked for a personal hearing or not, respondent was bound to give one when an adverse decision is contemplated: HC

++ GST - s.80 - Payment of tax dues in instalment - System is accepting such request electronically, only for the entire amount - Facility for part liability acceptance needs to be envisaged: HC

++ ST - Assessee acts as a 'pass through', wherein funds from contributors are consolidated and invested by investment manager - Doctrine of mutuality applies - No service to self: HC

++ ST - There is no dispute with regard to rate of duty - The question is whether assessee is liable to pay duty/tax - Appeal maintainable before High Court: HC

++ Cus - Assessee cannot claim that principles of natural justice were violated, where assessee was validly served SCN, filed reply thereto & the objections were considered by AO before passing order: HC

++ Cus - Enhancement of value based on data gathered from Zaubacorp, a private website of questionable authenticity, is unsustainable, where the Department fails to discharge the burden of rejecting declared value through cogent evidence: CESTAT

++ Cus - As per settled position in law, enhancing transaction value based on NIDB data is not sustainable in law: CESTAT

++ Cus - Affixation of MRP & RSP price on imported items is a curable defect & does not amount to contravention of Standards of Weights and Measures (Packaged Commodities) Rules, 1977: CESTAT

++ Cus - Penalty u/s 111(d) of Customs Act is upheld where consignments of Deoderants were imported through Tuticorin Port, which was not authorised port for importing such items: CESTAT

++ ST - Assessee purchases cargo space from shipping lines on principal-to-principal basis on behalf of its customers - Excess ocean freight collected is not tantamount to commission received; as per settled law, no Service Tax is leviable on excess ocean freight collected: CESTAT

++ CX - As per settled law, EC & SHEC can be levied only once on Additional Customs Duty & Basic Customs Duty; Cesses cannot be levied again, where EC & SHEC are already included while computing aggregate tax payable by EoU: CESTAT

++ ST - Unless alleged service is brought under specific sub-provision, demand raised under BAS is not tenable, as BAS covers various categories of service: CESTAT

++ ST - Where activity in question involves provision of services as well as supply of goods, such activity qualifies as Works Contract service; demand raised under Erection, Commissioning and Installation service is not tenable: CESTAT

February 17, 2024

++ ST - SVLDRS, 2019 - Amount that was pre-deposited by petitioner is available for being set off in terms of Section 124(2): HC

++ Cus - Failure on part of enquiry Officer to communicate enquiry report within period of 90 days stipulated in Regulation 17(5) of the CBLR, 2018 is fatal: HC

++ Cus - Import of 'premium cold coffee' - Edible goods which are perishable - Petitioner ought not to have been meted out discriminatory treatment of denying clearance: HC

++ CX - Parle was justified in distributing credits on input services attributable to final product on a pro-rata basis proportionate to turnover of each unit between manufacturing plants of Parle and its contract manufacturing units, including appellant, under rule 7(d) of CENVAT Rules: CESTAT

February 16, 2024

++ GST - s.15 - No scope for confusing discount offered to petitioner and the discounted price at which petitioner effects further sale to customers - They are two independent transactions and there is no scope for intermingling them for demanding tax: HC

++ GST - Rigidity in administration of tax may not serve the purpose and can be counterproductive: HC

++ GST - Technologically challenged traders - Serve another notice through any other mode of service prescribed u/s 169: HC

++ GST - Rule 52 of the T.N. GST Rules, 1959 and s.169 of Act, 2017 are not exactly pari materia : HC

++ GST - Due to ill-health of Managing partner, returns not filed - In interest of justice, registration to be restored and petitioner to pay GST dues: HC

++ GST - Traders not accustomed to handle emails - SCNs be issued in regional languages and sent by SMS/registered post - Cancellation of registration amounts to capital punishment: HC

++ GST Refund - Second application after removing the deficiency could not have been rejected on the ground that it was time barred: HC

++ GST - Glaring mistake in jurisdictional fact - Pragmatic, not a pedantic approach be adopted - Petitioner was duly registered, therefore, passing assessment order u/s 63 is invalid: HC

++ Cus - As per settled precedent, classification is a question of law & cannot be treated as misdeclaration or misstatement; penalty imposed on Customs Broker for alleged mis-classification is not tenable where no mens rea is attributed on broker's part: CESTAT

++ ST - As per settled precedent, sale incentive, advertisement & publicity charges, cannot be taxed under Business Auxiliary Services: CESTAT

++ Cus - Confiscation of goods & redemption fine are unwarranted where IGST & interest were paid by importer & where Revenue was aware of goods being moved to importer's factory premises: CESTAT

++ CX - Wastes such as scrap, spent earth & sludge emerging incidentally as by-product from manufacture of refined oil, cannot be treated as manufactured product: CESTAT

February 15, 2024

++ GST - Allegation of availing bogus ITC - After registration has been issued and tax paid by supplier Company, allegation made against supplier Company does not stand: HC

++ GST - Registration cancelled retrospectively - Order to operate from the date when SCN was issued and registration was suspended: HC

++ GST - Merely, because a taxpayer has not filed returns for some period does not mean that his registration is required to be cancelled with retrospective date, also covering the period when returns were filed: HC

++ GST - Appellate Tribunal not constituted, hence petition admitted - Petitioner to deposit 20% of tax assessed - Further demand to be kept in abeyance till disposal of petition: HC

++ Cus - To implicate the appellant with commissioning of fraud, charge has to be led by positive and reliable evidence and vague hypothesis and presumptions cannot be the basis for any unilateral action initiated against Broker: CESTAT

++ ST - Where input receipient receives duty-paid invoices & has paid duty as charged, it is entitled to avail Cenvat Credit - Department cannot question assessment done by officers of the supplier's jurisdiction, so as to deny credit to the recipient: CESTAT

++ ST - Penalties imposed u/s 77 & 78 of Finance Act, 1994 are upheld where assessee is found to have indulged in mis-declaration & suppression of facts : CESTAT

++ Cus - Appellant imported Heavy Metal Scrap & sought mutilation thereof - Request was denied as size of scrap panels was different from size declared by Appellant-importer - Importer can only verify conditions in Import Policy & has no opportunity to verify contents before shipment - Request for mutilation of scrap wrongly denied: CESTAT

++ CX - No provision exists in Section 11B of Central Excise Act, 1944 to reject a refund claim, solely on grounds that the refund amount claimed is in excess of the refund amount actually due: CESTAT

February 14, 2024

++ GST - Cancellation of registration for non-filing of returns - Petitioner is willing to regularise the returns and clear all the dues - Registration to be restored: HC

++ GST - Cancellation of registration - SCN fails to record basic details - Petitioner has not filed a detailed response to the show cause notice, therefore, a fresh opportunity is granted: HC

++ GST - Retrospective cancellation of registration - Order modified to the extent that the same shall operate with effect from 01.10.2019, i.e. the date business was shut down: HC

++ UP GST - Alternate remedy of appeal will not hinder writ remedy where principles of natural justice are violated for no good reason: HC

++ GST - Bench does not find any ground to interfere with assessment order that denies input tax credit on the ground that the same is not supported with cogent evidence: HC

++ Cus - Refund of SAD - Department cannot deny refund by deeming CA's certificate as being invalid, where CA has examined records pertaining to import & sales as accounted & has issued co-relation certificate: CESTAT

++ Cus - RCRCM Typhoon glider is prohibited for import & was imported without obtaining prior clearance & license to import - Penalty imposed u/s 112 is upheld, albeit with reduced quantum, considering item was imported for static display: CESTAT

++ ST - Tax demand raised under Business Auxiliary Service heading but relevant sub-clause of Section 65(19) is not mentioned in Order - duty demand quashed: CESTAT

++ ST - Subscription fee faid to foreign institutes for providing coaching & training via online mode, is not taxable in India under Commercial Coaching or Training Service, since taxable activity is not performed in India: CESTAT

++ ST - As already settled, sponsorship of an IPL team has to be considered as sponsorship of sports event itself; Department's view of IPL being an entity of franchisee teams & thus taxable, is not tenable: CESTAT

++ CX - Since appellant have not submitted all the documents to adjudicating authority, matter is remitted back to for considering the refund claim on the basis of documents to be submitted: CESTAT

February 13, 2024

++ GST - Valid e-way bill but on account of non-production of delivery challan, penalty imposed - Petitioner did not have intention to evade tax, therefore, imposition of 200% penalty appears highly disproportionate - Matter to be revisited by adjudicating authority: HC

++ GST - Solely for the purposes of providing a personal hearing to petitioner, impugned order calls for interference: HC

++ GST - No proof of service of hearing notice - As petitioner not heard before order issued, same warrants interference - Order set aside and matter remanded: HC

++ GST - Court is not an appellate authority against an assessment order passed under the Act, 2017 - Petition wholly misconceived: HC

++ GST - No reason to transfer investigation from Kasaragod to Thiruvananthapuram - Kasaragod is not situated beyond the boundaries of State of Kerala: HC

++ CX - Appellant have provided insulation service along with insulation material to their service recipient, demand of Service Tax by denying abatement of 67% under Notfn 1/2006-ST is not sustainable: CESTAT

++ CX - Without use of welding electrodes, during maintenance of capital goods whenever necessary, machine may not function and manufacture would be impossible or commercially inexpedient, eligibility of said inputs for CENVAT credit cannot be denied: CESTAT

++ Cus - Despite the fact that appellant did not have EPCG license and they got their 100% EOU de-bonded without payment of duty, therefore it will be well within their knowledge that duty is payable and they avoided to pay duty, it is clearly a mala fide on the part of appellant: CESTAT

++ Cus - Since the imported goods were nothing but Clear Float Glass which attracted Anti-Dumping Duty, confiscation of same with an option of redemption fine is correctly ordered : CESTAT

++ ST - As per settled position in law, Show Cause Notice cannot be issued after lapse of 5 years limitation period - Notice issued thereafter is invalidated, as is consequent Order-in-Original confirming such notice: CESTAT

February 12, 2024

++ GST - Demo vehicle - If there is further supply, then ITC is available - However, if the demo vehicle is retained by workshop, no ITC: AAR

++ GST - Pre and post GST period - Petitioner seeks direction to respondent authority to bear additional tax liability for execution of subsisting Government contracts - Representation should be made to Addl. Chief Secretary: HC

++ GST - Notification 53/2023-CT - Condonation of delay in filing appeal - No rationale for cut-off date of 31 st March 2023 - Order set aside and matter remanded to Appellate authority for consideration: HC

++ ST - Merely on the basis of Form 26AS issued by Income Tax Department, the demand of Service Tax is not sustainable: CESTAT

++ ST - Rule 2(l) of CCR, 2004 - Service tax paid by Insurance Company on the premium paid by appellant is an input service: CESTAT

++ Cus - Filter bag made of 100% glass fibres and which is meant for filtering the gaseous items are rightly classifiable under CTH 8421: CESTAT

++ Cus - O-i-A upholding levy of demurrage charges is not tenable, where based solely on third party's statements & passed in ignorance of faulty investigation & without considering relevant facts & legal grounds: CESTAT

++ ST - Jewel service charges collected by cooperative society from its members for appraisal of jewels for loan purposes, is not taxable under Auctioneer Service or under Business Support Service : CESTAT

++ Cus - As per settled precedent, quantum of penalty imposed u/s 114A cannot exceed quantum of tax amount recoverable; the discretion of imposing penalty or interest along with tax amount cannot be interpreted to mean that both equivalent penalty & interest can be imposed: CESTAT

++ ST - If Service Tax is not chargeable, then an amount paid was not Service Tax - Assessee cannot take credit of amount paid under mistake of law because Cenvat credit can only be taken of Service Tax paid: CESTAT

February 10, 2024

++ Cus - An exemption notification cannot determine the classification: CESTAT

++ Cus - Classification of goods under Customs Tariff cannot be decided by MeiTY, which is a policy making body: CESTAT

++ Cus - Front cover, middle cover and back cover of mobile phones are not classifiable under CTH 3920 9999: CESTAT

++ GST - Recovery - Difference in ITC claimed - FORM GSTR-3B and FORM GSTR 2A - Matter requires examination - Revenue not to act on SCN till next hearing date: HC

++ GST - Using template for SCNs bereft of any particulars - Retrospective cancellation of registration without putting petitioner to notice - SCN/order set aside: HC

++ GST - Merely because a taxpayer has not filed returns for some period does not mean that registration is required to be cancelled with retrospective date also covering the period when returns were filed: HC

++ GST - It would be almost impossible to enforce surety bonds of a person who does not belong to this State - Interest of the State is required to be secured: HC

++ Cus - Provisions of s.111 and 112(a) apply on a strict liability concept - No requirement of any mens rea - Penalty and fine rightly imposed: HC

++ Cus - Import of Apples priced @Rs.50/- per kg - Goods not to be detained on the ground that these are prohibited under DGFT Notification No.5/2023: HC

++ Cus - SCN/order passed by DRI - Issue covered by SC decision in Canon India - Impugned order stayed - ad interim relief granted: HC

++ GST - Punching HSN code in 'taxable value column' results in tax demand 1817 times than really due - Officer confirming demand with penalty/interest which raises it to 3870 times - Clear error in punching details - Petitioner permitted to correct bonafide mistake: HC

February 09, 2024

++ CX - As per settled precedent, Cenvat credit availed by one unit of a company on account of excess tax paid by another unit of the same company, cannot be denied: CESTAT

++ Cus - Refund - Protest cannot survive for perpetuity - Where a protest is vacated by issue of an order, second proviso to s.27(1) ceases to apply and s.27(1B)(b) takes over: CESTAT

++ ST - Tax demand was confirmed by the Commr. (A) without giving opportunity of hearing to the Assessee - case remanded for de novo hearing: CESTAT

++ CX - There is no tangible evidence to prove clandestine removal beyond doubt, therefore, demand, interest and penalties are set aside: CESTAT

++ Cus - As mandated by Section 72 of Customs Act, licensee of Duty-Free shop is liable to pay tax & in case of contravention of these provisions, the passengers who purchase items from the shop cannot be made liable to pay tax: CESTAT

++ Cus - Valuation - O-i-O was passed holding that Royalty paid to overseas supplier is includable in transaction value - Royalty payments do not obligate importer to purchase capital goods from one supplier only; no evidence submitted to show that relationship between parties influenced price - O-i-O was correctly quashed: CESTAT

February 08, 2024

++ Cus - Drawback - Circulars only clarified that benefit under Exim Policy 1992-1997 was available to civil construction as well - Therefore, such benefit would take effect from date of Exim Policy: SC

++ GST - Mistakes - Mismatch in figures - Once a bonafide mistake has occurred, it needs to be rectified as there is no loss of revenue - Respondents to permit petitioner to amend and rectify form GSTR-01: HC

++ GST - Tax liability - Short balance in electronic credit ledger - On payment of interest, revocation application can be considered: HC

++ Cus - Unless DGFT initiates any proceeding to cancel license, the customs authorities cannot assume any jurisdiction to issue notice u/s 28 AAA: HC

++ Cus - Jurisdiction - Mangali Impex decision stayed by Supreme Court - Tribunal to decide matter, one way or other, on merits: HC

++ Cus - Error apparent on the face of record, hence order recalled - Duty payable on fresh Garlic is 30%: HC

++ ST - Payment of Royalty, FDT & other taxes by buyers of Iron Ores to Monitoring Committee, as per price of Iron Ore purchased in auction, is not liable to Service Tax - Buyer of Iron Ore is not service recipient from State Government for purposes of Service Tax liability: CESTAT

++ ST - It is not open for Department to raise demands on the basis of other statutory returns like Income Tax Returns or balance sheets without proving that such service has been rendered by appellant and consideration thereof has been received: CESTAT

++ ST - As per settled position in law, Assessee is entitled to avail cenvat credit in respect of Service Tax paid even when the Service Tax is paid under a mistake of law; extended period of limitation not invocable as Assessee filed regular returns & was regularly audited: CESTAT

++ Cus - Flanges  are  parts  required  for  Wind  Operated  Electric Generators and are correctly classified under CTH 8503 as claimed by importer: CESTAT

++ Cus - There is no requirement under CBLR for Customs broker to physically verify address of importers; suspension of Customs Broker's license on grounds of not physically verifying importers' address, is unsustainable: CESTAT

February 07, 2024

++ GST - Assessee routinely failed to file returns within periods prescribed by law; claims for ITC are rightly denied: HC

++ Cus - As per settled precedent, punishment for contravening terms of CBLR must be in consonance with severity of the offence; revocation of license and forfeiture of security deposit is too harsh punishment & must be dropped where broker has already been out of work for 5 years: CESTAT

++ ST - Appellant has not abetted the offence, if any, committed by company in claiming the benefit of exemption provided under Notfn 20/2007-CE, penalty imposed on appellant is not sustainable: CESTAT

++ ST - Distribution of SIM Cards & vouchers on principal-to-principal basis is pure trading activity & on which no Service Tax can be levied, more so where no agency or sales promotion service is involved: CESTAT

++ Cus - As per settled precedent, penalty need not be imposed on an assessee where tax amount with interest is paid before issuance of Show Cause Notice: CESTAT

++ CX - Processes undertaken by Assessee-company are necessary to put product in marketable condition & thus amounts to manufacture - Hence, Cenvat credit availed on tax paid on inputs received, is admissible to Assessee: CESTAT

++ CX - Cenvat credit on Steel Plates - this issue was not considered in O-i-O; O-i-A rejected claim for credit after relying on a Tribunal order which was subequently held to be incorrect law - case remanded for reconsideration: CESTAT

++ ST - Assessee, engaged in manufacture, had bona fide belief that its activity of Bill Discounts given to suppliers of spare parts did not amount to activity taxable under Banking and Financial Services - As issue is interpretational in nature, no penalty is imposable on assessee - Demand raised under extended period is also quashed: CESTAT

February 06, 2024

++ GST - If petition is not admitted and petitioner is asked to participate in the proceeding u/s 73, it would seem as if it is pushed from 'Caesar to Caesar's wife' and such a proceeding would be a mirage: HC

++ GST - A substantive right cannot be put to jeopardy by bringing into operation fiscal law with retrospective effect: HC

++ GST- s.75(4)- Opportunity of hearing - When the word 'or' is used, it serves as a disjunctive conjunction, indicating two or more alternatives - Attempting to read 'or' as 'and' would impose stricter conditions than intended by statute: HC

++ ST - Refund - Contempt petition - We are in difficult times - Officials are neither trained nor any inculcation is imbibed in them to respect the Orders passed: HC

++ ST - Penalty imposed u/s 112(a) merits being quashed where Revenue has not discharged onus of proving that goods imported were prohibited items: CESTAT

++ Cus - Extended period of limitation cannot have been invoked for raising tax demand after rejecting importer's claim for remission of tax, where no fraud or suppression of facts on part of the importer, is made out: CESTAT

++ ST - Tax demand raised by invoking extended period of limitation merits being set aside where the situation is found to be revenue-neutral: CESTAT

++ ST - As per settled law, certificate issued by a professional must not be disregarded or over-looked without citing cogent evidence to prove that certificate is incorrect - Commissioner's order passed without considering CA's certificate, is incorrect & hence, quashed: CESTAT

++ Cus - Re-valuation of imported goods is not tenable where imports relied on for re-valuation have not been disclosed to the importer, thus contravening the rules of natural justice: CESTAT

February 05, 2024

++ GST - Petitioner's registration has been cancelled without any specific reason, revenue is directed to forthwith restore the petitioner's GST registration: HC

++ GST - Appellant could not produce any documents to substantiate his contention that he is entitled to concessional rate of tax, the respondent chose to impose condition while granting stay: HC

++ GST - Appellant can be granted twelve instalments as against five instalments granted by Single Judge to discharge outstanding service tax and interest: HC

++ Cus - As per settled position in law, comparison of two invoices is per se insufficient to presume there to be undervaluation of duty: CESTAT

++ Cus - Unjust enrichment - As per settled law, unless importer proves that incidence of duty has not been passed on to buyer, no question of claiming refund arises: CESTAT

++ ST - For purposes of seeking refund of tax paid, photocopy of invoice can be taken as evidence of underlying transaction, where it is verified by Department: CESTAT

++ CX - When main appellant has settled dues under Sabka Vishwas Scheme Rules, 2019 which allows waiver of interest and penalty to co-noticee if duty is discharged by main noticee, no merit found to sustain penalty against appellant who is a co noticee: CESTAT

++ ST - Cenvat credit cannot be denied solely because it has been utilised late: CESTAT

++ ST - Extended period of limitation cannot be invoked solely based on information received from the Income Tax Department, more so where no evidence of suppression, mis-statement or fraud commited by assessee, is put forth: CESTAT

February 03, 2024

++ GST - Principles of natural justice cannot be put into a straitjacket - It should be borne in mind that obligation of establishing eligibility for ITC is cast on assessee: HC

++ GST - Notices were issued u/s 73 and not u/s 74, therefore, imposition of 100% penalty calls for interference - Matter remanded: HC

++ GST - Letter requesting for a month's time to appear for hearing as consultant out of station - Letter disregarded and order passed - Breach of principles of natural justice - Order set aside and matter remanded: HC

++ GST - Nothing in language of s.65 to indicate that audit report should contain findings of fraud or wilful-misstatement or suppression of facts - Proper officer can initiate action u/s 73 or 74: HC

February 02, 2024

++ GST - Holding of shares by M/s. Yonex Co., Japan [the holding company] in its subsidiary, the petitioner, at Bengaluru, cannot be treated or classified as 'supply of service': HC

++ GST - s.50 - Interest only on net cash liability w.e.f 1st July, 2017 - Matter remanded to re-determine interest payable - Attachment of bank account to be lifted after payment: HC

++ GST - Since efficacious alternate remedy is available, Bench does not find it proper to entertain petition - However, limitation shall not come in the way if appeal is filed within twenty days: HC

++ VAT- Any application made to Tribunal against order of Commissioner is to be treated as Revision and would be maintainable before Tribunal only : HC

++ CX - A notification has to be issued for providing exemption under said source of power and that in absence of notification containing an exemption to such additional duties in nature of education cess and secondary and higher education cess, they cannot be said to have been exempted: CESTAT

++ ST - Substantive benefit of Cenvat credit cannot be denied due to procedural infractions; Department must proactively establish assessee's ineligibility for credit rather than on averment that Assessee failed to supply requisite information: CESTAT

++ ST - As per settled precedent, where a contract is for a particular activity or job, service provided in furtherance of the contract cannot be classified under Manpower Recruitment or Supply Agency Service: CESTAT

++ Cus - Extended period of limitation cannot be invoked & penalty u/s 112(a) of Customs Act 1962 is not imposable where no mis-declaration of facts is attributed to Assessee: CESTAT

++ Cus - Imported Bra Cups are correctly classifiable under CTH 6212 which clearly includes Brassiers & hence provides for a more specific description that under CTH 3926: CESTAT

++ Cus - As per settled precedent, Revenue can reopen own assessments within time limits prescribed in the Act, for the reasons mentioned therein, provided that parties are put to notice & given reasonable opportunity to present objections: CESTAT