TODAY'S CASE (INDIRECT TAX)

December 31, 2020

++ Profiteering - Since CC received on 17.07.2017, ratio of ITC to turnover  should have been considered up to 16.07.2017 and not up to 31.07.2019 - DGAP to submit fresh report: NAA

++ GST on  Preferential Location charges (PLC) after obtaining CC, whether could be charged - DGAP report silent, alleges applicant: NAA

++ Contradiction in DGAP's reports; products allegedly launched post rate reduction, factual position - DGAP has not examined this claim carefully, hence directed to submit fresh report: NAA

++ Penalty prescribed u/s 171(3A) of the Act cannot be imposed retrospectively for the offence of profiteering during the period July 2017 to August 2018: NAA

++ CX - O-i-O presumed to have been delivered if not returned back - Revenue could not produce clear cut evidence of service of order to assessee - Dismissal of appeal to Commr.(A) on limitation grounds, is not tenable: CESTAT

++ Cus - Import of Canadian Green Peas - The appellant a regular importer, is aware of law & procedure regarding imports & yet contravened conditions of import - redemption fine & penalty imposed in interest of justice: CESTAT

December 30, 2020

++ KMF holds 90% shares and hence has administrative control over applicant - Since there is a DGGI case against M/s KMF, applicant is bound to oblige with the conclusion of said proceedings; application is liable for rejection: AAR

++ Classification - Applicant supplies Flavoured Milk under brand name 'Nandini' against whose owners offence case is pending before DGGI - application rejected u/s 98(2) of Act, 2017: AAR

++ AAR permits withdrawal of application, sought on ground of COVID-19 and business slowdown

++ Form GST DRC-01A  as prescribed u/r 142(1A)  being intimation of tax ascertained as payable has been issued to applicant - application hit by 1st proviso to s.98(2): AAR

++ Promotional items - 'Non-distributable' products qualify as 'capital goods' whereas 'Distributable' products given to franchisees is a 'supply' to related parties exigible to GST & entitled for ITC: AAR

++ Penalty - Violation of anti-profiteering provisions made u/s 171 not covered u/ s.122(1)(i) of the Act, 2017: NAA

++ Cinema Tickets - Reduction in Tax rate not passed to filmgoers - contention that respondent cannot fix ticket prices is without any basis in the absence of any government advisory: NAA

++ No ruling given by AAR on the 'question' raised in application - Such an order rejecting application as 'inadmissible' is not an appealable order: AAAR 

++ CX - Revenue's challenge to merits of Tribunal's order by way of rectification of mistake, amounts to review of Tribunal's own order, which is impermissible in law: CESTAT

++ Cus - Seizure & confiscation of Gold - proceedings commenced against appellant based on statements taken from third party & without any independent enquiry being conducted - such non-action on part of Revenue renders statement unworthy of reliance: CESTAT

++ ST - Lease of motor vehicles - duty demand raised in respect of consideration received as rental from customers - such amount was held to be outside purview of Service Tax, in assessee's own case - demands quashed: CESTAT

December 29, 2020

++ Construction of IIT Director's bungalow, staff/faculty residential quarters attracts GST @18% but construction of boys/girls hostel, auditorium is taxable @12%: AAR

++ Applicant, a Japan based company, supplies consulting service at the sites from fixed establishments as defined u/s 2(7) of the IGST Act - cannot be considered import of service: AAR

++ KSEB is a government entity but supply of WCS to KSEB cannot be considered as that meant predominantly for use other than for commerce, industry or any other business - concessional rate of GST @12% is not available: AAAR

++ Creating fictitious firms, availing and passing on bogus ITC on fake invoices - all these suggests inherent flaws in GST system - fraudsters are taking advantage of inadequacy of electronic trails - however, bail cannot be refused: HC

++ ICT Project - Primary condition of notification 12/2017-CTR, Entry 72 not satisfied - it is not that only 'services' are supplied but property in goods is passed at a future date: AAAR

++ GST - Serving order on driver of vehicle is not a proper mode of service envisaged u/s 169 of the Act - Order erroneous: HC

++ ST - Cenvat credit including Education Cess & SHEC taken on R&D services received to assessee's manufacturing units, can be distributed amongst such units as per Rule 7 of CCR 2004: CESTAT

++ CX - Charges of availing excess Cenvat credit are unsustainable, where not backed by corroborative evidence - allegations of suppression of facts do not hold where assessee's accounts were audited periodically: CESTAT

December 28, 2020

++ IGST - Refund - Drawback rates being the same, it represents only Customs elements, which did not get subsumed in GST and thus, writ-applicant cannot be said to have availed double benefit: HC

++ GST - Jurisdiction - Proprietary firm is registered at Delhi - whether DGGSTI, Zonal Unit, Ahmedabad can issue summons u/s 70 to assessee - no coercive action till next date of hearing: HC

++ ST - Unable to make payment of amount under SVLDRS due to technical glitch on the portal - Applicant to immediately approach Chairman, CBIC with a request to accept payment in any mode that Chairman may deem fit: HC

++ Cus - On Bill of entry, the authorities cannot charge stamp duty under Article 24 of the Schedule-I to the Bombay Stamp Act - refund ordered: HC

++ ST - Where Cenvat credit wrongly taken is subsequently reversed, it is tantamount to non availment of credit - Rule 6(3) of CCR is inapplicable in such circumstances: CESTAT

++ CX - Clandestine removal - SCN issued to assessee is unsustainable, where genesis of such proceedings is in the investigation conducted by DGCEI against some other entity: CESTAT

++ Cus - An exporter is not required to give a declaration of the technical specification, quality and characteristics of inputs used in the resultant product: CESTAT

December 26, 2020

++ ST - SVLDRS - Filing of second application in Form SVLDRS-1 during pendency of original application already filed, renders the original application redundant - rejection of application for duplicate filing upheld: HC

++ CX - Credit taken on Precision tubes rejected by buyer and attempted to be remade but without success - no need to reverse credit when such goods were cleared as scrap on payment of duty: CESTAT

++ Cus - Betel nuts are not covered u/s 123 of Customs Act - Proceedings against appellant dropped were Revenue does not discharge onus of provising smuggled nature of goods: CESTAT

December 25, 2020

++ CX - Classification of HDPE strips and tapes having width not exceeding 5mm and sacks made therefrom - Gujarat HC directs UOI to relook into CBEC 37B Order No.8/92 dated 24.9.1992 - Matter remanded: HC

++ GST - Fraudulent ITC - No vested right accrues before taking credit: HC

++ GST - Government needs to act promptly and lay down guidelines or procedure for purpose of invoking Rule 86A, for in its absence, Rule could be misused: HC

++ GST - It cannot be said that exercise of power u/r 86A for the purpose of blocking the ITC is mala fide or without any application of mind: HC

++ GST - Power conferred u/r 86A for blocking ITC could be termed as a very drastic and far-reaching power - Such power should be used sparingly and only on subjective weighty grounds and reasons: HC

++ GST - Power u/r 86A should neither be used as a tool to harass the assessee nor should it be used in a manner which may have an irreversible detrimental effect on the business of the assessee: HC

++ ST - Once it is determined that the State is holding money beyond what is legally permissible, it has a binding duty to refund the same: HC

++ ST - Claim of ST dues falls under definition of operational creditors - Once a resolution plan is sanctioned by NCLT, the same is binding on all stakeholders including operational creditors - plan provides for settlement of service tax dues at 5% of the amount of principal dues that would be crystallized upon adjudication: HC

++ ST - After retaining 5% of Rs.7.02 crores, respondent would be duty bound to refund balance amount to petitioner which will not only be in terms of the resolution plan and thus in accordance with law but will also be a step in the right direction for revival of the petitioner, which is the key objective of IBC, 2016: HC

++ ST - Exercise of power u/s 87(b)( i ) of the FA, 1994 without determination of amount payable by a person u/s 73 would amount to putting the cart before the horse: HC

December 24, 2020

++ GST - Anti Profiteering provision u/s 171 of CGST Act are inapplicable where no additional ITC has been utilised: NAA

++ GST - Respondent has completely misunderstood the nature of refund claim made by petitioner as also the scope and ambit of sec. 51 and 54 of CGST Act - Order cannot be legally sustained: HC

++ GST - Being possessed of power is one thing and exercise of such power is altogether another thing: HC

++ GST - Power conferred u/s 83 a dmittedly is a very drastic power having serious ramifications - directs withdrawal of provisional attachment of bank accounts: HC

++ GST - E-way bill - When goods of the same consignor covered by different invoices are consigned together in one vehicle, value will be the total of that in multiple invoices: HC

++ GST - Mandate for generation of an e-way bill would be defeated and rendered redundant if consignors are enabled to issue any number of bills having value below Rs.50,000/- and consigning them in one vehicle: HC

++ GST - Hearing appeals through video conferencing during Covid-19 pandemic - Procedure for maintaining a record of personal hearing was a formal one - Appellate Authority ought to have complied with the said procedure strictly - since not complied, orders quashed: HC

++ GST - Service of providing manpower to Amravati Municipal Corporation for collecting vehicle parking fees, is exempted as per Notfn No 12/2017 CT(R): AAR

++ Online gaming service provided through MMOPLAYSTORE.COM - supply of digital goods via CLOUD services located abroad is OIDAR service - since both, supplier and recipient of services are located in taxable territory, the subject services will not be considered as exported - taxable @18%: AAR

++ GST - Entire gamut of supply between the applicant and Prettl GMBH will be performed in India and, therefore, place of supply, being event based, is in India; cannot be considered as Export of Services : AAR

++ GST - Applicant is rendering supply of services for which it is receiving consideration in the form of 'financial assistance' - supply is classifiable under SAC Heading 999792 which pertains to 'Agreeing to do an act': AAR

++ GST - Composite supply of sale of application, registration of course, inspection, etc with the Principal Supply of 'affiliation' provided by Bharathiar University to its constituent colleges is not exempted under 12/2017-CTR: AAR

++ GST - Affiliation services enables institution to conduct course and does not relate to admission of students to such course or conduct of examination for such admission - Exemption under Sr. no. 66 of 12/2017-CTR not available: AAR

++ CX - Once duty is paid on goods cleared & such fact is accepted by Revenue, such activity cannot be passed off as trading activity, so as to trigger mischief u/r 6(3) of CCR 2004 - invocation of extended limitation is unwarranted as well: CESTAT

++ Cus - Transferee of DFIA licence can apply to regional licensing authorities, for amendment in ITC (HS) Numbers of imported inputs which are capable of being used in export of products: CESTAT

December 23, 2020

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

++ ST - Larger Bench decision in Span Infotech Pvt Ltd., holding that limitation period would expire at end of the quarter, remains unaltered even after amended Notfn 14/2016-CE (NT) comes into force - rejection of refund on limitation grounds, is untenable: CESTAT

++ CX - Though third party records are good evidence to suspect, clandestine activity, they cannot be adopted for concluding charges of clandestine removal, in absence of corroborative evidence: CESTAT

++ Cus - The right to file cross-objection is a substantive right conferred by a statute & can be exercised only in accordance with provisions of statute: CESTAT

December 22, 2020

++ Level playing field would be denied if someone bags tender by quoting lesser rate of GST: HC

++ GST - 'Turbo Wheel Impeller Balance Assembly', whether classifiable under Ch.84 @18% or under Ch.86 @5% - GM, Diesel Locomotive Works, Varanasi should seek clarification from GST authorities regarding correct HSN code: HC

++ Cus - Expression 'sufficient cause' should receive liberal consideration so as to advance cause of justice - same should not be used as a penal statute to punish erring parties: HC

++ GST - Profiteering of Rs.4.79 crores during July 2017 to September 2018 - Penalty prescribed under sec.171(3A) is effective from 1st January 2020 and cannot be imposed  retrospectively : NAA

++ ST - Rejection of assessee's refund claim without issuing SCN, violates principles of natural justice - matter remanded for fresh enquiry: CESTAT

++ CX - Non existence of dealer at registered premises, cannot  per se  disentitle the recipient to whom such dealer had sent goods, from availing Cenvat credit: CESTAT

December 21, 2020

++ GST - Although in terms of s. 35(6) of CGST Act, unaccounted goods are 'deemed to be supplied', however, SCN is bound to be served u/s 73, 74 prior to determination of tax leviable on 'deemed supply': HC

++ GST - Even if it is admitted that documents were not maintained at registered office, there is no finding that any supply was made with an intent 'to evade payment of tax' - confiscation wholly arbitrary and illegal - RF of 12 crores set aside: HC

++ GST - Non-maintenance of books of accounts - Maximum penalty that could be imposed u/s 122 of the Act, upon the petitioner is Rs.10,000/- - Penalty imposed of Rs.19.43 crores set aside: HC

++ GST - Subway franchisee - Reduction in GST rate from 18% to 5% not passed by increasing base prices - Argument, that being perishable goods, the profiteered amount computation should be restricted up to March 2018 only, is without any basis: NAA

++ GST - Provisions of s.171 apply to each supply which implies that each homebuyer/recipient is entitled to the commensurate benefit due to him - adjustment of excess benefit passed on to others not permissible: NAA

++ GST - Implementation of GST regime has brought about a major reform in the field of indirect taxation and all key aspects are dependent on a technology driven process: HC

++ GST - Services are provided to concessionaires in terms of agreement entered with applicant; not to Central/State government/UT or local authority or a governmental authority which only are exempted under 12/2017-CTR: AAR

++ CX - Cenvat credit is allowed in respect of manpower service utilized for disposal of hazardous waste arising from manufacture process - denial of credit without assigning any reasons, is unsustainable: CESTAT

++ ST - Cenvat credit taken on R&D services can be distributed along with EC & SHEC, to manufacturing units of the assessee, as per Rule 7 of CCR 2004: CESTAT

December 19, 2020

++ GST - Since there had been no reduction in rate of tax or benefit of additional ITC to  respondent, provisions of s.171 un-attracted - allegation of profiteering not established: NAA

++ GST - Bench is sad to note the manner in which repeated SCNs came to be issued - SCNs are bereft of any material particulars - Proceedings under two SCNs dropped but third confirmed - no application of mind - Order quashed: HC

++ Cus -  Court, under Article 226 cannot go into factual question of deciding ownership or whether petitioner had absolute right, title and interest over seized goods sold in public auction: HC

++ ST - Where admissibility of Cenvat credit is not contested at time of its availment, the same cannot be disputed at time of filing refund claim: CESTAT

December 18, 2020

++ SVLDRS - A mount deposited prior to issuance of SCN may be adjustable against demand confirmed by OIO but it cannot be adjusted for purposes of determination of amount under the SVLDR Scheme: HC

++ GST - Petitioner's refund application rejected without granting personal hearing although rule 92(3) mandates the same - Total non-application of mind - Orders quashed: HC

++ GST - 923 crores excess tax payment case - High Court allowing petitioner to rectify form GSTR-3B for the period to which the error relates - Order stayed: SC LB

++ ST - Factory taken over by bank under SARFAESI Act and leased to appellant - Rent paid to bank and CENVAT credit taken of tax paid under RIPS - merely because tax was paid in name of original owner, no ground to deny credit: CESTAT

++ CX - Assessee is entitled to re-credit of Cenvat credit reversed, prior to introduction of CGST Act 2017: CESTAT

December 17, 2020

++ ST - Building of 13 floors does not mean it has more than 12 residential units - OC by MCGM indicates that building comprises of 9 duplex flats, therefore, no service tax payable - refund admissible: CESTAT

++ ST - Against an order which was not appealed against within the maximum period of limitation before the Appellate Authority, a Writ petition cannot be entertained: HC

++ ST - Irrespective of the person who maintains canteen in a factory, exemption as per Entry 19A of 25/2012-ST is available to such person - Benefit cannot be whittled down by restricting it to factory owner alone: CESTAT

++ GST - Exemption availed allegedly wrongly - Whether  any actionable claim or enforceable right in respect of brand name has been foregone voluntarily is a matter to be decided in adjudication - Bail granted: HC

++ GST -  SCN falls short of all the known principles of natural justice and no prudent man could have given reply to the kind of SCN which was served - Order based on such silent SCN is set aside: HC

++ VAT - Enforcement Wing officers are not empowered to recover tax dues in advance: HC

++ CX - Export of goods - For claiming refund u/r 5 of CCR, law requires debiting of equivalent amount from Cenvat a/c - consequence of rejection will be the restoration of credit which was debited by claimant - such restoration of credit cannot for new grounds to reject refund: CESTAT

++ ST - Commr.(A) is obliged to follow Tribunal's verdict rendered in assessee's own case, unless quashed by High Court - principle laid down by a higher forum is required to be followed: CESTAT

++ Cus - Betel nuts are non-notified goods & hence burden of proving smuggled nature of such goods, rests with Department - seizure of betel nuts unwarranted where burden of proof is not discharged & where the nuts are not imported: CESTAT

December 16, 2020

++ GST - 10.89 crore ITC fraud - Running engineering business from Swift Dzire - Supplying fake invoices to help parties tide over cash payment of GST and increasing own turnover to  enhance bank loans - No bail: HC

++ ST - Without feigning ignorance, petitioner should fully co-operate with investigation, both in letter and spirit - For computing limitation, period when stay order was passed till disposal of review petition stands excluded: HC

++ ST - If no machinery exists to exclude non-taxable service, a composite contract is not taxable since law must provide a measure or value of the rate to be applied and any vagueness in the legislative scheme makes the levy fatal: CESTAT

++ ST - Even when an assessee has suppressed facts, extended period of limitation can be invoked only when 'suppression' is wilful with an intent to evade payment of tax: CESTAT

++ ST - Anchoring TV show/Fees for writing articles - Demand could not have been confirmed under BAS in the absence of any charge relating to this aspect in the SCN: CESTAT

++ ST - Invoking extended period - SCN merely reproduces the words of the statute without providing any specific factual details; demand unsustainable: CESTAT

++ CX - It is not the case that contentions raised in WP could not be agitated in appeal before CESTAT - Article 226 is not meant to short-circuit or circumvent statutory procedures: HC

++ ST - Ship Management Service, involving crew management service provided by Indian assessee to associate overseas company, qualifies as export of service as per POPS Rules 2012 - refund of accumulated CENVAT credit u/r 5 of CCR 2004 r/w Notfn No 27/2012 is allowed: CESTAT

December 15, 2020

++ ST - Any alleged mistake apparent on record, cannot be termed as such, if it is not at all self evident: CESTAT

December 14, 2020

++ CX - Letters/markings on  Jewellery,  whether can be construed as brand/trade name - Bench  finds it difficult to perceive any conflict between the two decisions of Tribunal in  Anopchand Trilokchand &  Titan Industries - DB should decide on merits: LB CESTAT

++ NDPS - An Officer who is neither officer in-charge of police station nor empowered u/s 53A of NDPS Act, cannot dispose of the drugs or move an application before the Magistrate for disposal of drugs: HC

++ SVLDRS, 2019 - Whether Textile Committee (Cess) Tribunal is an appellate forum for purpose of entertaining application? - Matter to be heard in January: HC

++ GST - Cash Credit/Current Bank Account - Bank and the assessee will not have the debtor-creditor relationship, therefore, account cannot be prima facie attached: HC

++ Cus - Confiscation of imported goods is unwarranted where no evidence exists to show that such goods were used for purposes other than for which they were imported - charges of mis-declaration unproven: CESTAT

++ Cus - Classification ipso facto does not decide the eligibility or otherwise to a beneficial Notification - Notification No. 21/2002 does not grant concession based on classification alone, rather on individual items: CESTAT

December 12, 2020

++ Cus - Diversion of imported goods - Customs broker cannot be penalised u/s 112 of Customs Act where no evidence exists to show his involvement in such act of smuggling: CESTAT

++ ST - Incentive paid to car dealer by car manufacturer in form of discounts, cannot be treated as consideration for service - no service tax leviable thereon: CESTAT

December 11, 2020

++ Cus - An evasive denial is no denial in the eye of law; it amounts to admission: HC

++ Cus - Vessel under detention by the Directorate General of Shipping would not preclude exercise of power u/s 110A of the Act: HC

++ Cus - Fact that vessel is engaged in repeated offence would not come in the way of exercise of power u/s 110-A of the Act: HC

++ GST - Deliberate attempt to not pass on benefit of tax reduction and appropriate the same - McDonald's directed to deposit profiteered amount of Rs.7.49 cr along with interest: NAA

++ Authority is under no obligation to suggest ways to increase profit with which the respondent appears to be completely fixated: NAA

++ NAA does not have the trappings of a Court and absence of a Judicial Member does not render the constitution of this Authority unconstitutional or legally invalid.

++ Duties of Authority do not involve settling of any question of law - functions are being discharged by the domain experts who have experience in field of indirect taxation: NAA

++ CX - Article 226 cannot be resorted to circumvent statutory procedures & applies where statutory remedy is ill suited to meet demands of extraordinary situations or if vires of statute are assailed or if public & private wrongs are inextricably mixed: HC

++ ST - Report of CAG cannot be legally recognized as having any evidentiary value for deciding an appeal against an assessee: CESTAT

++ Cus - Early hearing of appeals - application therefor is allowed where livelihood of employees working for the applicant, is being affected: CESTAT

December 10, 2020

++ Cus - Illegality glaring to the naked eye - No provision in Customs Act authorising detention of goods: HC

++ Cus - Words detention and seizure cannot be used interchangeably to mean one and the same thing: HC

++ Cus - First there has to be seizure of the goods, only whereafter the goods can be detained: HC

++ Customs authorities cannot take the plea of detention to avoid consequences of seizure u/s 110(2): HC

++ SVLDRS - Banking error resulted in reversal of payment made under the Scheme - Petitioner's agent (bank) is at fault - rejection of application by Designated Committee indubitable: HC

++ CX -  SVLDRS, 2019 is a complete code in itself - B enefit only in accordance with the provisions: HC

++ CX -  Superior Kerosene Oil is excisable goods set forth in the Fourth Schedule to the Act, 1944, therefore, petitioner was not eligible to make a declaration  as per section 125(1)(h) of FA, 2019 : HC

++ CX - Petitioner has sought  to delete SKO from the Fourth Schedule of Central Excise Tariff Act, 1944 - There is no such Act and the relief sought is without substance: HC

++ CX - Inclusion of SKO in the Fourth Schedule of the Act, 1944 is not violative of Section 174 of the CGST Act, 2017: HC  

++ GST - Against order of provisional attachment passed u/s 83 for purpose of protecting government revenue, petitioner has an opportunity to file objection u/r 159(5) - Petition dismissed: HC

++ Cus - Mis-declaration - Enhanced punishment was awarded without following due process - CHA also penalized despite lack of any directions for initiating adjudication against it - O-i-O merits being quashed: CESTAT

December 09, 2020

++ CX - Reason given for not invoking efficacious alternative remedy of appeal viz. pre-deposit being burdensome, is not appealing - Bench not persuaded to invoke its writ jurisdiction: HC

++ ST - SVLDRS, 2019 - Word 'quantified' does not necessarily mean the amount crystalized following adjudication: HC

++ Cus - Review Applicants cannot re-argue the Writ Petition in the guise of Review Application: HC

++ Callous attitude - Order passed by Asst. Commr. is wholly arbitrary and demonstrates lack of legally trained mind - since petitioner was unnecessarily harassed, cost of Rs.10K to be paid by respondent from own salary: HC

++ Amount credited in favour of HP Tourism Development Board by the Dept. of Tourism, Govt. of HP as grant-in-aid or financial assistance is exempt from GST: AAR

++ Questions raised by the applicant viz. whether they would be entitled to ITC when tax is not paid by supplier or is paid by utilising ineligible credit are beyond the scope and jurisdiction of AAR - application rejected: AAR

++ GST - Service of notice/order on the truck driver or fixation of the copy of order on truck is none of the methods prescribed u/s 169 of  the Act: HC

++ ITC credit fraud of Rs.22 crores - petitioner in custody since June 2018 - maximum punishment is sentence of five years - trial may not be concluded at an early date, hence bail granted: HC

++ ST - Refund of pre-deposit - No interest is payable on principal amount refunded within three months from date of Tribunal's order: CESTAT

++ ST - Services not connected with manufacture or transportion of goods till customs frontier of the country, can be disassociated from use within the country - such services do not qualify as import of services: CESTAT

December 08, 2020

++ NDPS - LSD dots - Process of drying LSD solution on a piece of paper merely facilitates consumption of drug - weight of paper not to be accounted for determining quantity: HC

++ 3-ply mask, Surgical cap, Surgical gown and Surgical shoe cover, all made out of non-woven fabric are classifiable under headings 6307, 6505, 6210 and 6307 respectively: AAR

++ Cus - Confiscated goods are vested with Central Govt & in absence of authority under law or delegation to destroy, the adjudicating authority is obliged protect such goods till appropriate disposition is prescribed by the Central Govt: CESTAT

++ ST - Assessee manufactures fruit pulp-based drink under brand Coca Cola India - Duty demanded on grounds that concentrate owned by CCI also got promoted & that promotion of concentrate was inextricably linked to promotion of brand name - such issue is settled in assessee's own case - demand quashed: CESTAT

December 07, 2020

++ GST - Creation of 26 fake firms  to facilitate availment and utilisation of ITC of Rs.108.36 crores - No case for granting bail: HC

++ GST - s.169 - Service of order on truck driver is not a valid service - appeal not hit by limitation: HC

++ CX -  Deemed production cannot be the basis for demand of duty u/s 3 of the CEA, 1944: CESTAT

++ Job work of fabrication of steel structures and Works Contract of applying paint to erected steel structures - Supply is a mixed supply taxable @12%: AAR

++ CX - Revenue  has not been able to point out any provision in the Act or the notification, which debarred opportunity of hearing to the petitioner - Order set aside and matter remanded: HC

++ ST - Legislative intent behind Rule 5 of CCR 2004 is to allow refund to exporters & avoid cascading effect of taxes on export - Commr.(A) traversed scope of Rule 5 by rejecting refund claim, citing failure to establish nexus between input services & exports: CESTAT

++ CX - Charges of clandestine removal of finished goods, are unsustainable, where based solely on recorded statements not corroborated by material evidence: CESTAT

December 05, 2020

++ ST - Assessee ought not to have invoked Writ Jurisdiction straightway against the Assessment Order adjudicating the issue, which involves mixed questions of facts and law: HC

++ Cus - Multiplying litigation by availing remedies in different forums is a deliberate effort on the part of the petitioner to abuse the process of law: HC

++ Cus - Department cannot be permitted to be a voluntary litigant in the Constitutional Courts especially to challenge orders of Single Judge without any valid rhyme or reason: HC

++ Cus - Confusion between numbers corresponding to claimed entry & eligible entry in respect of imported goods, cannot be construed as mis-declaration - declaration of tariff items & description of goods disprove charges of mis-declaration: CESTAT

December 04, 2020

++ ST - SVLDRS, 2019 - Depriving the petitioner for the fault of the Department would be unfair and unreasonable: HC

++ ST demand communicated in May 2019 revised from 82 crores to 5 crores in December, 2019 - revised figure should relate back to the original quantification - SVLDRS-1 cannot be rejected on ground that liability was not quantified before 30 June 2019: HC

++ Cus - s.110 -  It cannot be that seizure is made by one officer and the 'reasons to believe' are recorded by another officer: HC

++ Cus - Well settled proposition of law that if an order is a nullity then it is invalid and its invalidity can be set up anywhere and everywhere when such order is sought to be executed or enforced: HC

++ NDPS - Ganja recovered is between small quantity and commercial quantity - since appellant has already undergone six years RI out of the maximum punishment of 10 years, appeal allowed in part: SC LB

++ ST - VCES, 2013 - interest should have been computed on unpaid dues and not on declared amount: HC

++ CGST - Tribunal not yet constituted, hence no precipitative action to be taken by respondent: HC

++ Cus - High Court need not entertain petition challenging O-i-O which was not appealed against before the Commr.(A), within the maximum limitation period: HC

++ CX - Refund of duty claimed u/s 11B of CEA 1944 can be rejected only upon being ineligible as per statutory provisions - refund claimed prematurely is no grounds for rejection: CESTAT

++ ST - Appropriation ordered by the adjudicating authority of credit reversed is more for satisfaction than recourse to enforcement mechanism: CESTAT

December 03, 2020

++ GST - There is no hostile discrimination in taxing lottery: SC LB

++ GST - Lottery - Taxable Value - Prize money is not to be excluded: SC LB

++ GST - Taxable value of Lottery - Legislative scheme of other countries not relevant: SC LB

++ DGAP has been conferred with wide-ranging powers of coercion, prosecution and should have exhausted all options available to get requisite data from respondent to arrive at an evidence-based conclusion: NAA

++ UOI directed to install CCTV cameras with night vision and recording equipment in the offices of DRI, NCB, ED : SC

++ All police stations to have CCTV cameras installed inside premises, entry and exit points - adequate funds to be allocated at the earliest - audio and video data to be preserved for 18 months: SC

++ Profiteering - Benefit of ITC post-GST has not been passed on to homebuyers - contention that respondent had suo moto  passed benefit of Rs.3.41 crores is not borne by facts - DGAP told to reinvestigate: NAA

++ ST - Trade Anywhere software - License Fees collected  -  does not attract service tax under the category of Management or Business Consultant Service: CESTAT

++ CX - Decisions rendered by competent appellate authorities or constitutional courts do not cease to be binding upon adjudicating authorities merely because they chose to not accept the judgments - CBIC top brass to evolve methods to ensure respect for rule of law: CESTAT

December 02, 2020

++ Cus - Article 226 is not meant to short-circuit or circumvent statutory procedures - Petition dismissed: HC

++ SVLDRS, 2019 - Final hearing held before 30.06.2019 - declarant ineligible to file declaration under litigation category but eligible under the arrears category since o-in-o not appealed against: HC

++ SVLDRS, 2019 - A liberal view embedded with the principles of natural justice is called for while considering a declaration seeking amnesty: HC

++ Sale of Cinema Ticket - Recipient identified, therefore, profiteered amount of Rs.12/- along with interest to be paid from the Consumer Welfare Fund: NAA

++ GST - Throughout the year we are having festive season sales, hence it cannot be said that sale prices are lowest in December - average sale price of December adopted by DGAP is not unjustified: NAA

++ ST - Writ Petition against an order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the Appellate Authority concerned cannot be entertained: HC

++ Cus - Under-valuation of goods - Parallel invoices - demand raised, being computation of probable under-valuation, is sustained, where assessee disclosed only lesser invoice value: HC

++ CX - CENVAT credit of sales commission paid to agent is allowed, where such agent is engaged in sales promotion of goods manufactured by assessee: CESTAT

++ ST -  Commissioner has ignored the substance and has picked a part of the clause to suit his purpose -  No service tax is applicable on permanent transfer of IP Rights by Foster's to appellant: CESTAT

December 01, 2020

++ ST - New pleas can be raised for the first time before the Appellate Authority, if it is established that such grounds are bona fide and were not raised earlier for good reasons: CESTAT