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Untitled Document

TODAY'S CASE (INDIRECT TAX)

Taxindiaonline.com



August 31, 2020

++ No ITC has been availed in post-GST period and, therefore, there was no additional benefit of ITC which had accrued - no case of profiteering, application dismissed: NAA

++ GST - There is no requirement to mention the details of tax payment in the copy of e-way bill that accompanies goods - detaining consignment is unjustified - release ordered of goods and vehicle: HC

++ ST - Exemption granted for FY 2014-15 and 2015-16 by the Income Tax authorities which is applicable to Charitable Trust registered u/s 12AA, hence service tax exemption available under 25/2012-ST, Sl. 13(c): CESTAT

++ CX - For valuation u/s 4 of CEA 1944, value of goods is transaction value at which goods are sold for delivery, at time & place of removal - no Excise duty is leviable on costs of transportation of goods from seller's to buyer's premises: CESTAT

August 29, 2020

++ VAT - CST paid by assessee in excess of what was payable, due to absence of Form C, merits being refunded & cannot be withheld on grounds of unjust enrichment: HC

++ GST - A statute is to be given interpretation which suppresses mischief and advances remedy: HC

++ GST - Expression 'things' in s.67(2) of Act, 2017 covers 'money'- cash rightly seized; cannot be released unless matter is finally adjudicated: HC

++ ST - Charges collected by respondent for supply of SKID equipment to its customers is taxable under 'Supply of tangible goods service': SC LB

++ Cus - Fraudulent availment of drawback of more than 5 lakhs - proper officer for issuance of SCN could not have been Dy. Commr - SCN quashed: HC

++ Cus - Order raising duty demand is unsustainable where solely based on the assumption that assessee did not fulfil export obligation against import of certain goods: HC

++ CX - Where availment of CENVAT credit on capital goods is suspended for period in which assessee also avails SSI exemption, such credit does not lapse & can be availed when assessee stops availing SSI exemption: CESTAT

++ CX - Where packages are made for retail sale, the manufacturer is legally obliged to affix MRP of the goods - hence, duty on such goods is payable u/s 4A of CEA 1944: CESTAT

++ Cus - Machinery imported on DDU basis, after clearance for home consumption got damaged in accident  en route before reaching factory and, therefore, re-exported - refund of duty is covered u/s 26A of the Act: CESTAT

August 28, 2020

++ ST - SVLDRS, 2019 - Designated Committee cannot embark upon an exercise of adjudication; is only meant to verify correctness of declaration made: HC

++ While it is open for State Government to prefer appeal for inadequate sentence u/s 377, Cr.PC but similarly no appeal can be maintained by victim u/s 372, Cr.PC on ground of inadequate sentence: SC

++ GST - Silicone Insole and Heel Cushion are rightly classifiable under HSN 6406 as parts of footwear; attract GST @18%: AAR

++ GST - Security Excise Labels is classifiable under HSN heading 4911 and attracts 12% GST: AAR

++ GST - Plastic latex collection cup used for rubber tapping is an agricultural implement classifiable under HSN 8201 90 00 and is exempted: AAR

++ Cus - SCN issued to COO of KPMG for alleged breach of FTP and wrong availment of benefits under SFIS - objections articulated by petitioner are of a nature which can be taken before respondent authorities - Petition is premature, hence dismissed: HC

++ Cus - It is a settled proposition of law that it is the ratio decidendi of a judgment which forms a precedent: HC

++ Cus - Action cannot be taken on a vessel imported in 2011 on the basis of a clarification issued vide Circular in 2012: CESTAT

++ Cus - If the department can view the issue differently at different periods of time, the appellants also can understandably, entertain a bona fide belief - extended period of limitation not invokable: CESTAT

++ Cus - SCN was made answerable jointly and severally and adjudication order passed accordingly - Such a joint confirmation has no sanctity of law: CESTAT

++ Collection of Octroi tax by Mumbai Port Trust is in pursuance of discharge of sovereign privilege - service tax is not leviable on such collections: CESTAT

++ CX - Charges of clandestine removal cannot be sustained if based solely on third party evidence & where no clinching evidence exists to prove such allegation: CESTAT

++ CX - Amended provisions of Rule 5 of CCR 2004 do not permit refund of CENVAT credit which was not utilized at time of closure of factory - request to refund such credit in cash is inadmissible: CESTAT

++ CX - Penalty cannot be waived off entirely where assessee is unable to establish that it had some bona fide belief behind non-payment of Excise duty on extra charges collected from buyers or while taking credit otherwise inadmissible: CESTAT

++ ST - Sale to DTA is part of authorized operations of SEZ & turnover from such sale forms integral part of total turnover of SEZ unit, for purpose of calculatng refund of service tax paid on authorized operations: CESTAT

August 27, 2020

++ GST - Prayer of petitioners for transfer of investigation to Kollam is rejected - In matters of investigation, respondents are to be given certain degree of leeway - administrative decisions cannot be interfered: HC

++ CX - Area based exemption under Notfn No 50/2003-CE is allowable for that period wherein production is initially commenced on a small scale due to low demands: CESTAT

++ ST - Stevedoring service - duty demand is quashed on limitation where during period of dispute, Port services did not include activity of stevedore, leading to bona fide belief that such activity was not dutiable: CESTAT

++ CX - Electricity used in factory for lighting & running of exhaust fans cannot be equated to use of electricity in the processing of fabric - charges of evasion of Excise duty are not tenable: CESTAT

++ Cus - Maximum redemption fine imposable on confiscation is equal to the market value of the goods: CESTAT

++ CX - Appeal to Commr.(A) is maintainable where assessee sought modification of the order being challenged & such request was rejected, which proves that assessee did not agree with such order: CESTAT

August 26, 2020

++ EXIM - Notwithstanding s.9A, Central Govt. continues and has authority to impose quantitative restrictions by an order under Section 3(2) of FTDR Act: SC LB

++ Telangana State Regulations cannot supersede anti-profiteering provisions of CGST/Telangana SGST Act, 2017 in matter of lowering of ticket prices consequent upon reduction in GST rates: NAA

++ GST - Violation of Anti-Profiteering provisions is not covered u/s 122 of CGST Act, 2017 - no penalty imposable: NAA

++ VAT - Where sale & delivery of DEPB pass book is completed in Maharashtra as per the MVAT Act & is taxed there, then such sale cannot be taxed again in Tamil Nadu: HC

++ ST - Proceedings for recovery of duty u/s 87 of the Finance Act 1994 can be initiated only after adjudication proceedings are completed: HC

++ Cus - Enhancement of value of imported goods based on NIDB data is not permissible, without first rejecting the transaction value: CESTAT

++ CX - Bogus purchases - It is trite law that proceedings cannot be intiated against assessee on basis of assumption & presumptions & without any cogent evidence: CESTAT

++ ST - No SCN is to be issued where service tax with interest is paid before issuing of SCN & information of such payment is intimated to the Revenue: CESTAT

August 25, 2020

++ Cus - Related persons - No discussion on as to why the value declared by appellant needs to be rejected and why it should be arrived at u/r 7/8 of Valuation Rules - matter remanded: CESTAT

++ ST - Department has only proved despatch of O-in-O but has not proved receipt of the same by appellant - COD application allowed: CESTAT

++ CX - Charges of suppression of facts are not tenable where assessee filed refund claim periodically, in respect of the relevant input service & where ER-2 returns are also filed regularly: CESTAT

++ Cus - Refund claim of additional duty as per exemption Notfn No. 102/2007 is to be filed within one year in view of subsequent Notfn No. 93/2008-Cus & as per Section 27 of Customs Act, 1962: CESTAT

++ Cus - No proof that order was served by Dept. - COD application allowed by giving benefit of doubt, subject to depositing Rs.50,000/- as cost, payable in the PM CARES fund: CESTAT

August 24, 2020

++ Fuel surcharge, insurance surcharge, administrative charge, passenger service fee & airport taxes are not includable in the gross taxable value for payment of service tax by airline company: CESTAT

++ ST - Assessee-company can avail CENVAT credit on Term Insurance Policy, taken in respect of Keyman-person, where the policy holder is a registered company, in which case, no nomination is required: CESTAT

++ CX - It is trite law that there exists no bar to utilising accumulated CENVAT credit for payment of Excise duty, even during default period: CESTAT

++ Cus - Notification 52/2003-Cus, para 4(iii) - Expression of 'job work' should be interpreted in liberal terms: CESTAT

++ Cus - Where importer draws samples of Iron Ore fines for purpose of determining Fe content & tests the same in private laboratory without the knowledge or presence of a Departmental officer, such test report cannot be relied on against the test reports of Govt laboratories: CESTAT

August 22, 2020

++ GST - Well settled that no investigating officer has right to use any method which is not approved by law to extract information - in case it is so done, he has to face consequences: HC

++ GST - COVID-19 gloom - Profiteered amount allowed to be deposited in six EMIs - interest payment ordered by NAA stayed: HC

++ Cus - Bank guarantee fixed by Pr. Commissioner at Rs. 1.6 Crore is very excessive as against the total differential duty involved of Rs. 59 Lakh approx: CESTAT

++ ST - Cross examination of SIO, who is part of the investigation, is impermissible - cross examination of other witnesses, whose statements, letters & opinions was relied upon, is allowed: CESTAT

++ CX - That two separate units are being managed by members of the same family or by the same person, is not grounds enough for clubbing clearances of both units: CESTAT

++ ST - Duty demand raised under reverse charge for period prior to introduction of Section 66A, is not sustainable: CESTAT

++ CX - Bagasse, press mud & bio-manure emerging as by-products during manufacture of Sugar & Molasses, qualify as waste & are not manufactured products - duty demand raised is set aside: CESTAT

++ ST - Order confirming demand under Works Contract Service for period after 01.06.2007 cannot be sustained where SCN was issued proposing demand under Erection, Commissioning or Installation service: CESTAT

++ CX - Classification of Lace as determined by CRCL is incorrect where process of manufacture is not examined & where re-test of samples is denied: CESTAT

August 21, 2020

++ GST - Lackadaisical attitude of the department - Revenue has to put its house in order and strive to achieve the lofty targets set by the CGST Act: HC

++ GST - Issue of fraudulent invoice to enable ITC availment - Case is an eye opener to ascertain whether registered establishments are doing business at registered places; install RFID to track goods: HC

++ CX - Being revenue neutral situation, the appellants cannot be saddled with intention to evade payment of duty - equal penalty unjustified: CESTAT

++ Cus - Acquiescence by importer so as to expedite its clearances through Customs does not form the basis to infer that declared value has been misdeclared, more so when the enhancement was marginal: CESTAT

++ CX - When appellant paid duty on exempted final product, they must have paid same by utilizing credit in respect of common inputs in which case there would be no question of further neutralization of cenvat credit - rule 6(3) demand unsustainable: CESTAT

++ ST - Even after 01.06.2007, service tax on composite contracts can only be demanded under Works Contract and not under CICS etc.: CESTAT

++ CX - CENVAT credit on inputs such as TMT cutting, MRM Roll Spoils & end cutting is admissible where such inputs are used for manufacture of rolled products: CESTAT

August 20, 2020

++ RTI - CIC should have gone into minutes of Board Meetings/AGMs and determined which information is exempted from disclosure and which can be parted with - CIC cannot leave it to discretion of GSTN: HC

++ GST - 'Rebuild Kerala' Project - Activity undertaken for Sri Sathya Sai Trust is construction of 45 individual residential houses at different locations on land belonging to individual beneficiaries; is Works Contract and attracts GST@12%: AAR

++ GST - Activity of renting / leasing water channel [chaal] by Grama Panchayat to applicant for fish farming for consideration determined through auction is exempted: AAR

++ Cast protector is not pharmaceutical product; not fracture appliance [HSN 9021 10] - appropriately classifiable under HSN 3926 9099: AAR

++ GST - Penalty prescribed u/s 171(3A) of CGST Act cannot be imposed retrospectively: NAA

++ GST - Merely on a bald statement of an employee, it cannot be held that applicants were in-charge and responsible for functions of company - applicants had resigned from Directorship of company eleven years ago - bail granted: HC

++ GST - Service of an assessment order through email/web portal is statutorily prescribed u/s 169(1)(c)/(d)  - petitioner cannot aspire to get benefit u/s 62(2) when returns were filed after 71 days of date of service: HC

++ GST - Facts are a paramount consideration for granting or refusing the protection of a pre-arrest bail - It is nowhere stated that the anticipatory bail is barred by law or cannot be granted in a case registered under GST Act: HC

++ ST - Principle of mutuality - duty demand raised against a limited company by guarantee is not sustainable, where such company provides services to group companies & promoters: CESTAT

++ CX- Water Treatment Plant erected at site cannot be considered as 'goods' - fact that about 60% of the Plant can be dismantled without damage thereof, cannot be a reason to reject the aforesaid conclusion: CESTAT

++ ST - R&D services have direct nexus with manufacturing process in pharmaceutical industry - where assessee is registered as ISD, credit availed on inputs used in R&D unit can be distributed to varioud manufacturing inits: CESTAT

++ CX - CENVAT credit cannot be denied where input goods have been purchased through a dealer & are directly received from manufacturer of such goods: CESTAT

++ Cus - Clandestine removal - There are adequate safeguards in SEZ Act without the need to indulge in misadventure under the Customs Act, 1962 that does not extend to SEZ: CESTAT

August 19, 2020

++ CX - Valuation - under-invoicing of goods - Guidelines and clarification issued on legal issues so that AA knows how to proceed with re-adjudication: SC LB

++ GST - Chapter XIX [Offences & Penalties] and Chapter XII [Assessment] are distinct and application of provisions thereunder are distinct and not subject to each other: HC

++ GST - Scheme of Act does not make provisions of Section 122 to 138 applicable, subject to 'assessment': HC

++ GST - Circular Trading - fraudulent ITC of Rs.63.50 crores - in larger interest of public and State, Bench is not inclined to grant pre-arrest bail: HC

++ GST - If FORM GST EWB-01 does not contain a field for entering details of tax payable, then non-mentioning of same cannot be seen as an act in contravention of rules - detention u/s 129 unjustified: HC

++ ST - CENVAT credit on Outdoor Catering Service is allowed as such input service is essential for rendering output services, as it enables employees to function more efficiently: CESTAT

++ Cus - Revenue cannot be absolved from not conducting re-assessment in proper manner as per law, solely because importer submits a consent letter - enhancement of value is unsustainable where proper principles of valuation are not followed: CESTAT

++ ST - Penalty imposed u/s 77 & 78 of Finance Act 1994 merits being quashed where tax & interest is deposited before issuing SCN & where issue at hand is subject to litigation, leading to multiple interpretations thereof: CESTAT

++ CX - Residential colony for workers situated at remote location and not served by municipal corporation - Security agency services hired are Input services, credit admissible: CESTAT

++ ST - Findings of the Commissioner in denovo proceedings are outside the directions of the Tribunal, with which he was bound - order unsustainable: CESTAT

August 18, 2020

++ GST - Profiteering proved -  Penal provisions inserted by s.s (3A) in s.171 by FA, 2019 from January 2020 cannot be applied for the prior period: NAA

++ GST - Penal provisions of section 122(1)(i) do not cover within its ambit  violation of s.171 of the Act: NAA

++ GST - Allegations raised of harassment and high-handedness cannot be considered in a petition under Article 226 of the Constitution: HC

++ GST - A search and seizure operation necessarily brings with it certain discomforts, which are to be endured in the best interest of the person under investigation - no harassment or high handedness: HC

++ GST - Issuance of cheque of one crore is voluntary and its receipt by the SIO, is sanctioned by the statute and the rules prescribed thereunder - Extortion charges fall flat: HC

++ GST - If notice is issued before attachment, then the account holder could as well defeat the purpose, by withdrawing the amounts kept in such accounts - rule for a hearing does not arise: HC

++ ST - No service tax is payable on construction of private railway sidings: CESTAT

++ CX - CENVAT - Tax paid on transportation of final product from place of removal upto the first point, whether it is depot or customer, has to be allowed: CESTAT

++ Cus - Revocation of Customs Broker's license is not tenable where broker is not directly involved in the alleged illegal import & where requisite KYC details of importer have been obtained: CESTAT

++ ST - Employees seconded to assessee-company by its AEs located abroad, cannot be made taxable as supply of manpower service, where assessee pays salaries to such seconded personnel: CESTAT

++ CX - Provisions of Section 4A of CEA 1944 are inapplicable in cases where goods are sold in retail or in loose or unpackaged condition: CESTAT

++ Supplies made by assessee to Indian Navy & Coast Guard ships are eligible for nil rate of duty as per Notfn No 64/95-CE, where assessee possesses requisite certificate issued by the proper officer of the Navy: CESTAT

August 17, 2020

++ GST - Merely because petitioner feels that GST rate of 18% on alcohol based sanitizers is excessive, this cannot be reason for issuing writ of mandamus and directing respondents to reduce tax to 5% - PIL dismissed: HC

++ What items are to be included under Essential Commodities Act, 1955 as 'Essential Commodity', is policy decision of Govt: HC

++ SVLDRS - Expression 'quantified' in s.121(r) of FA, 2019 has been widened by Board Circulars - department cannot challenge such Circulars even if they are inconsistent with the statute: HC

++ Retrospective amendment to s.140 of CGST Act - Whether ITC is vested right and whether deprivation of same by prescribing time limit would amount to double taxation: HC

++ Cus - Alert Circular issued by Directorate General of Valuation cannot be adopted for the purpose of enhancement of assessable value of imported goods: CESTAT

++ CX - Claiming wrong classification cannot form grounds for invoking extended period of limitation: CESTAT

++ ST - Whereas SCN is issued for disallowance of credit for contravening provisions of Rule 9 of CCR, 2004, Commissioner proceeds to deny the credit on co-relation between input service and output service - impugned order not legally sustainable: CESTAT

++ CX - Refund - Rule 5 of CCR - Claim pending for almost 16 years - It would be wrong to expect assessee to hold on to credit for such a long period - condition 5 of 11/2002-CE (NT) does not mean that appellant should not be able to utilize the credit at all: CESTAT

++ CX - Aloe Vera juice & Amla juice are rightly classifiable under Heading 2009 of Chapter 20 of the CETA 1985 - however, Aloe Vera powder & Amla Powder cannot be classified under this heading: CESTAT

August 14, 2020

++ Apex Court holds Prashant Bhushan guilty of contempt for his tweets against Chief Justice

++ Cus - MEIS benefit - Ticking 'N' instead of 'Y' - procedural defect - an inadvertent mistake apparent from the Shipping bill - amendment allowed: HC

++ Cus - Appeal was filed by Revenue inspite of CBEC laying down monetary limits for filing appeal - wastage of time of the Court, ROM application rejected: CESTAT

++ CX - Rule 25 does not envisage confiscation of raw material; consequently no ground for imposing penalty: CESTAT

++ ST - There is no mention in contract of any person to be supplied to M/s NTPC to work under their instructions, so as to hold that assessee has provided Manpower Supply Services: CESTAT

++ CX - Nil rate under 12/2012-CE cannot be extended to pre-fabricated structures manufactured at factory and taken in CKD/SKD condition for installation at petrol pump site: CESTAT

++ Cus - CBLR 2013 - Inquiry report & consequent order are both unsustainable where no SCN is issued to the Customs Broker & where request for cross examining relevant witnesses is also denied by the Revenue: CESTAT

++ CX - CENVAT - There is no investigation as to how final product was manufactured without receipt of inputs, therefore, there is no merit in allegation that appellant did not receive inputs: CESTAT

August 13, 2020

++ CX - It cannot be said that notification 65/95-CE is unconditional and absolute - sub-section (1A) of Section 5A is not attracted - no irregularity in availment of CENVAT credit and payment of duty: CESTAT

++ ST - Intelsat, being a relay station itself, cannot be said to be a 'broadcaster'- charges paid by appellant to Intelsat not taxable under reverse charge: CESTAT

++ Cus - If issue is to be adjudicated by just reiterating the findings and decisions recorded in previous o-in-o which has been set aside by tribunal, then the AA has failed in task assigned to him for reconsideration of matter: CESTAT

++ ST - Condonation of delay - delay in filing appeal is not sufficiently explained where applicant does not mention the date on which it received a copy of the order appealed against: CESTAT

++ CX - Charges of suppression of fact are not tenable where assessee informed the Revenue about captive clearance of goods manufactured, for purpose of civil construction, repair & maintenance: CESTAT

++ ST - Impugned order confirmed a demand more than what has been reflected in the SCN - discrepancy in quantification, matter remanded: CESTAT

++ ST - Assessee availed CENVAT credit of service tax paid on free services rendered by other dealers, under a bona fide belief - hence penalty merits being waived: CESTAT

++ CX - Apex Court's judgment directing payment of compensation for delayed disbursal of interest on refund claimed, cannot be construed as a precedent to seek interest on delayed disbursal of interest - such claim is rightly disallowed: CESTAT

August 12, 2020

++ Hindu Succession Act, 1956 - Amended Sec 6 confers status of coparcener on daughter born before or after amendment in same manner as son with same rights and liabilities: SC Larger Bench

++ NDPS - It is difficult to sustain a conviction solely on the basis of a statement/testimony of a co-accused - bail granted: HC

++ NDPS - On the date of commission of offence, contraband called khat leaves were very much included in the list of psychotropic substances under NDPS Act, 1985 - date of booking package, immaterial - proceedings cannot be quashed: HC

++ Cus - Non-Basmati rice will not be hit by prohibition imposed on 24/3/2008 inasmuch as these goods were entered for export on or before 6/3/2008: CESTAT

++ CX - Reversal of CENVAT credit u/r 6(3) of CCR 2004 is not warranted where separate accounts are maintained for dutiable & exempted goods - case remanded to verify if such separate accounts were maintained: CESTAT

++ CX - Interest u/s 11BB is payable upon lapse of three months from date of receiving application u/s 11B(1): CESTAT

++ CX - Nestle Milky Bar & Nestle Milky Bar Eclairs eligible for exemption as per Notfns No 6/2002-CE, 3/2006-CE & 12/2012-CE as they qualify as white chocolate & as Revenue could not establish that such items did not contain Cocoa Butter: CESTAT

August 11, 2020

++ GST - 'Toto' is classifiable under HSN 8703 as an electrically operated vehicle provided it is fitted with battery pack - Otherwise, it will be classifiable under HSN 8706 but not under HSN 8708: AAR

++ GST - Couplers, Knuckle, Locks, Toggle, Yoke etc. supplied to Indian Railways are classifiable under HSN 8607 (and not under HSN 7325) and attract GST @5%/12% (and not @18%): AAR

++ GST - Activity of assignment is service classifiable under 'Other miscellaneous service' (SAC 999792) and taxable @ 18%; tax paid on transfer fee is admissible as credit: AAR

++ CX - Rule 8(3A) of CER - There is no bar in making use of accumulated Cenvat Credit in making payment of CE duty even during the default period: CESTAT

++ CX - Rule 6 of CCR - There being no duty leviable on Electricity, there is no question of Government issuing any exemption notification, hence, same cannot be considered as exempted goods: CESTAT

++ ST - Service tax paid under reverse charge on import of services from abroad would be available as CENVAT credit, leading to revenue-neutral situation - hence charges of suppression of facts with intent to evade payment of duty cannot be levelled in such circumstances: CESTAT

++ CX - s.4 of CEA - When inspection is done by third party on the request of buyer, such charges should not be included in the assessable value: CESTAT

August 10, 2020

++ Cus - Pre-deposit - Statute itself has waived 90% or 92.5% of duty amount - Courts cannot be more charitable than law: HC

++ GST - When it is specific contention of department that goods in conveyance is not belonging to respondents and they are not owners, then Single Judge ought not to have passed order u/s 129(1)(a) of Act: HC

++ GST - Supply of food to hospitals by applicant on a contractual arrangement is chargeable to GST - exemption available only when clinical establishment itself provides this service: AAR

++ GST - Poultry meal is classifiable under CSH 2301 1090 [GST @5%] and Poultry Fat is classifiable under CSH 1501 9000 [GST @12%]: AAR

++ GST - Tax paid on Lease Premium Charges, Lease rentals and on maintenance charges collected by lessor are not Input services in view of s.17(5)(d) of Act: AAR

++ ST - BIS library is a public library and exempt from tax vide exemption notification 25/2012-ST: CESTAT

++ ST - Contributions for discharge of liabilities or for meeting common expenses of a group of persons aggregating for identified common objectives will not meet criteria of taxation: CESTAT

++ ST - Taxability of commission paid to agents for handling of vessels outside India as well as for out-charter of vessels, fails: CESTAT

++ CX - CENVAT - Penalty - Allegation of issuing fake invoices - No investigation conducted to ascertain whether buyer has not received goods and wherefrom they procured inputs to manufacture final products that were cleared on payment of duty: CESTAT

++ CX - Capital goods lying in factory & awaiting installation are treatable as capital goods in possession & meant for use in manufacturing - CENVAT credit is allowed on such capital goods: CESTAT

++ ST - Provisions of POPS Rules, 2012 cannot override provisions of Section 64 provided in FA, 1994 - services were provided and consumed in State of J&K - not taxable: CESTAT

++ Cus - Penalty imposed u/s 114 of Customs Act is not sustainable where based solely on laboratory reports & where such laboratory does not accept the onus to use such reports as evidence in courts of law: CESTAT

++ ST - ST-3 Returns filed periodically by the appellants were assessed by the Department, therefore, longer period of limitation is not invokable: CESTAT

August 08, 2020

++ NDPS - There is no recovery being effected from petitioner either for substance or money trail - Petitioner to be released on bail: HC

++ GST - Anti-Profiteering - Direction of Authority to expand scope of investigation to 'other impacted products' and letters of DGAP in this regard seeking details/documents stayed: HC

++ CX - CENVAT credit is allowed in respect of CHA service, Port service & Steamer Agent service availed at port of shipment for export of finished goods on FOB basis: CESTAT

++ ST - Activity of supervising Coal production to meet specific standards of consumers & liaisoning to ensure smooth supply of Coal is not taxable as Clearing and Forwarding service: CESTAT

++ Cus - No refund can be claimed in respect of any assessment including self assessment unless the assessment itself is challenged and set aside by the appellate authority: CESTAT

++ ST - SCN proposes classification of services under BSS whereas adjudicating authority confirms tax under BAS - as order has gone beyond scope of SCN, same is set aside: CESTAT

++ CX - Charges of clandestine manufacture & removal are not sustainable where based solely on purchase of a certain input used as fuel & where manufacture of final product, its movement or receipt of consideration is not established: CESTAT

August 07, 2020

++ ST - When original provision itself has been substituted, procedure contemplated in original notification becomes redundant - it cannot be construed as new amendment for giving effect to certain procedures prospectively: HC

++ ST - Merely mentioning citations in order is not enough - order of final fact finding body has to be self contained and should discuss relevant facts and reasons for arriving at particular conclusion: HC

++ ST - Tax paid under wrong head - refund cannot be rejected on technical grounds: CESTAT

++ CX - Permission granted under assignment deed to use brand name does not make the user, the owner of such brand name - SSI benefit unavailable: CESTAT

++ Cus - Revenue is only seeking enhancement of penalty from that imposed of Rs.7500/- - In view of litigation policy, appeal dismissed on monetary limit: CESTAT

++ ST - As appellant is not liable to pay service tax, therefore, time limit u/s 11B of CEA for filing refund is inapplicable: CESTAT

++ CX - There is no 'manufacture' in the activity of blending of MS and HSD with multi-functional additives to make branded MS and HSD: CESTAT

++ ST - Demand is hopelessly barred by limitation as entire figures for raising demand were collected from the records maintained by assessee: CESTAT

++ Cus - U/s 33 of FTDR Act, 1992, it is only such goods, to which an order u/s 32 has been issued that can be deemed to be prohibited goods u/s 11 of CA, 1962 - no such order issued, hence import of gold jewellery is not prohibited: CESTAT

August 06, 2020

++ ST - Appellant bank cannot be said to be recipient of service for activities undertaken by Foreign Banks situated outside India, charges for which are deducted at source on export bill - no tax under reverse charge: CESTAT

++ NDPS - Consideration of evidence by Trial Court and affirmed by HC borders on perversity - Gross misappreciation of evidence, let alone poor investigation, has resulted in appellant having to suffer incarceration for an offence he had never committed: SC

++ SVLDRS, 2019 - A liberal interpretation has to be given to Scheme as its intent is to unload baggage relating to legacy disputes and to allow businesses to make fresh beginning: HC

++ ST - Appellant admits that order was received on his behalf by his wife - service of order proved - delay of six years in filing appeal not condonable: CESTAT

++ CX - Where goods are not removed from factory without payment of duty, they do not become contravening goods & so are not liable for confiscation: CESTAT

++ Cus - There is no estoppel in revenue matters and Customs are not bound by any contradiction taken in the past - Neither can the precedence of past justify continuance of a statutorily criminalized deed: CESTAT

++ ST - Refund - Time limit prescribed u/s 11B of CEA is not applicable where appellant is not liable to pay tax: CESTAT

++ ST - Hiring of chartered vessel for dredging activity, qualifies as transfer of right to use of goods, where the party which hired such vessel enjoys right to use the vessel to the exclusion of the owner - such activity will not attract service tax: CESTAT

++ CX - Central Excise Act deals with manufacture of goods & no duty is payable as long as goods are not manufactured - hence, authorities under CEA 1944 are not empowered to seize & confiscate raw material: CESTAT

August 05, 2020

++ ST - No service tax payable under 'reverse charge mechanism' in respect of service charges paid to Rajasthan Police who are performing statutory function of safeguarding currency chest: CESTAT

++ Cus - 'GoPro HERO5 Black' Action Camera is classifiable under CTH 8525 8020 and entitled for benefit of duty exemption provided under 50/2017-Cus: CESTAT

++ ST - Mining as a separate category of service liable to Service Tax was introduced only w.e.f. 01/06/2007, therefore, no demand prior to this date: CESTAT

++ CX - Buyers' premises can never be place of removal - Therefore, no CENVAT credit is admissible on outward transportation of goods even though sale of goods is on FOR destination basis: CESTAT

++ ST - Activity of conducting Government transactions on behalf of RBI, carried out by assessee-bank, is of the nature of sovereign function performed on behalf of the Government & hence is not taxable: CESTAT

++ Cus - Betel Nuts are not notified goods u/s 123 of Customs Act & so onus of proving foreign origin & smuggled nature of a particular consignment, rests with the Revenue - seizure of such goods is not tenable where proper documents are submitted by importer: CESTAT

August 04, 2020

++ Supply of Duracell battery - respondent accepts charges and pays profiteered amount along with interest - no penalty is, therefore, imposable u/s 171(3A) of CGST Act, 2017: NAA

++ GST - It is settled law that in order to bring case within realm of judicial review, it is imperative for petitioner to make out case of gross illegality, irregularity and without jurisdiction or against principles of natural justice: HC

++ GST - As petitioner did not furnish a valid return within 30 days from service of assessment orders u/s 62(1) of Act, it would follow that they cannot obtain the benefit u/s 62(2) - recovery proceedings to be kept in abeyance so that appeal can be filed: HC

++ GST - S.140 of Act nowhere provides for petitioners to submit any credit transfer document (CTD) to claim transitional credit: HC

++ GST - Business at standstill due to COVID - Installment facility granted to pay past tax liability: HC

++ ST - Any activity of de-silting of slimes after the construction of the Dam would not fall in the category of 'Site Formation': CESTAT

++ Cus - Rejection of refund claims on grounds of limitation is not tenable, where such claims are filed within one year from date of communication of order finalizing assessment of BoE: CESTAT

++ ST - Since extended period of limitation is not available to Revenue, penalty u/s 78 of FA, 1994 is not imposable: CESTAT

++ CX - Merely based on some production ratio stated by assessee in ER-5 return, allegations of clandestine manufacture and removal without payment of duty cannot survive: CESTAT

++ Cus - Appellants were helping importers in evasion by allowing them to warehouse goods and subsequently allowing clearances without payment of said SAD; penalties rightly imposed: CESTAT

++ ST - Section 97 of FA, 1994 does not mention any condition that the roads in respect of which maintenance or repair is carried out should be for use by general public - Notification cannot go beyond the statute: CESTAT

August 03, 2020

++ Fake invoice - Bogus ITC - Fraud committed is having humongous ramification on revenue collection - Attempt to dampen spirit of GST implementation needs to be curbed with an iron fist - Bail application rejected: HC

++ ST - Construction of housing complex at agreed price - As no service tax is payable by appellant, therefore, question of recovery of service tax does not arise - bar of unjust enrichment is not applicable: CESTAT

++ CX - Where Excise duty is levied on an item for the first time, the issue of availing CENVAT credit on capital goods during cut off date arises as a one-time affair caused by an inadvertent error not attributable to wilful suppression or deceit to avail irregular credit - penalty set aside: CESTAT

++ Cus - Once the Customs Broker licence of the appellant has already expired, there was no need to pass an order of suspension: CESTAT

++ CX - Cement and Iron & Steel procured duty free for construction are not capital goods as defined in SEZ Rules, 2006 - no duty payable on debonding of unit: CESTAT

++ Cus - Commissioner should not have denied renewal, moreso, when there are extraordinary circumstances prevailing on account of spread of pandemic Covid-19 during which appellant is supposed to pay wages to its employees as per the instruction issued by GOI: CESTAT

August 01, 2020

++ ST - Services rendered by petitioner outside territory of India to its parent Company would have to be considered 'export of service': HC

++ CX - Amendment in rule 4(7) of CCR has got only prospective effect - for goods and invoices received prior to 1st September, 2014/11th July 2014, Cenvat Credit can be taken, being a vested right: CESTAT

++ CX - Assessment orders passed by the Income Tax Department are insufficient basis to allege that assessee availed CENVAT credit without receiving any input services, where no corroborative or independent evidence is put forth by the Revenue: CESTAT

++ ST - Activity of providing consultancy & advice to Indian Council of Agricultural Research to help develop standardized methodology, qualifies as Scientific and Technical Consultancy Services: CESTAT

++ ST - Benefit of Exemption under 1/2006-ST is admissible as it provides that Notification shall not apply only if the Credit has been used for providing 'such taxable service': CESTAT

++ ST - 'Consulting Engineer Service' cannot be considered as a composite service with 'Commercial Construction Service' since it has an essential character of construction: CESTAT