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Untitled Document

TODAY'S CASE (INDIRECT TAX)

Taxindiaonline.com



July 31, 2020

++ SVLDRS, 2019 is an attempt to close legacy tax disputes and certain amount of fairness should be seen in interpretation of provisions: HC

++ GST - Serial number of invoices used for supply of goods not being continuous is no justification for detaining vehicle/goods u/s 129 of Act: HC

++ ST - Petitioner not having filed returns in electronic form within the period specified, as mandated by statute, cannot now be allowed to file manual returns so as to obtain benefit under SVLDRS, 2019: HC

++ CX - Amount of penalty imposed on co-noticee is not required to be taken into consideration (by appellant) while making pre-deposit u/s 35F of the CEA, 1944: CESTAT

++ Cus - If importer has entered into agreement with foreign supplier for purchase of 'Gum Arabic', then in purchase invoice, supplier cannot give a general description as Natural gum - Benefit of exemption notification 96/2008-Cus not available: CESTAT

++ CX - CENVAT credit cannot be denied in respect of defective inputs issued for manufacturing final products, where it is clear that such inputs were received in factory & were removed as such: CESTAT

++ ST - Penalty imposed u/s 78 of FA 1994 is upheld where assessee did not include full consideration received, while paying service tax & so is guilty of suppression of facts: CESTAT

++ CX - Tour packages provided by assessee-company to its dealers can be treated as dealer's commission for effecting sale of goods manufactured by assessee - CENVAT credit is available of service tax paid on such packages: CESTAT

July 30, 2020

++ No deeming provision but a stipulation by Act to consider location of service provider of intermediary to be place of supply - it cannot be said that the provisions of s. 13(8)(b) r/w s. 2(13) of IGST Act are ultra vires or unconstitutional: HC

++ GST - Refund - Inverted duty structure - Explanation (a) to rule 89(5) which denies refund of  'unutilised input tax' paid on 'input services' is ultra vires  provisions of section 54(3) of Act: HC

++ GST - Refund - Net ITC should mean 'input tax credit' availed on 'inputs' and 'input services': HC

++ NDPS - NCB has failed to garner any hard evidence - either on account of being highly economical in carrying out any investigation or for some ulterior motives - appellants are acquitted: HC

++ NDPS - Import of Poppy seeds - Determination of Country Cap would be in the realm of economic policy and unless found to be malafide, unreasonable, arbitrary or unfair, Court in exercise of its powers of judicial review cannot interfere with the same: HC

++ ST - Booking of a room in a hotel - retention amount (on cancellation made) is not chargeable to tax: CESTAT

++ ST - Tax can be levied if there is an element of "Service" involved which would typically be the case where the food is served in restaurant - when food is served in room, there arises no taxable service: CESTAT

++ ST - Penalty u/s 78 of Finance Act 1994 cannot be imposed where no suppression or concealment of facts with intent to evade payment of duty, is attributed to assessee: CESTAT

++ CX - Refund of accumulated CENVAT credit u/r 5 of CCR 2004 cannot be sanctioned where the claimant-assessee has also claimed rebate of duty u/r 18 of CER 2002: CESTAT

++ Cus - Penalty imposed u/s 112(b)(i) for possession of seized Gold is not sustainable if based on assumptions & presumptions & where the person being penalized is unaware of the contraband nature of such Gold: CESTAT

++ Cus - Allegations of Gold smuggling are not justified where the subject Gold bears no foreign markings & where genuine documents are submitted to show how such Gold was obtained - confiscation of Gold & penalty are set aside: CESTAT

July 29, 2020

++ ST - Due and sufficient opportunity of being heard was extended, however, same not availed - it seems that intention of petitioner was to indulge in procrastination - petition dismissed: HC

++ ST - Mistake made by petitioner in not stating about penalty imposed in Form SVLDRS-1 cannot be said to be mistake by which petitioner claimed an undue benefit which they otherwise are not entitled under law - application to be made for correction: HC

++ Cus - Notification would come into effect from date and time when it was electronically printed in gazette and mere uploading on website would have no significance: HC

++ Cus - Penalty u/s 114A and other penal provisions cannot be invoked when goods were permitted to be cleared by officers: CESTAT

++ Cus - Water Signal/sensors imported is correctly classifiable under CH 9026 as these are not capable of triggering stop or start of engines so as to be classified under CH 9032: CESTAT

++ ST - If assessee deposits service tax duty with interest before issuing of SCN, then no penalty is payable, where elements of fraud, wilful mis-statement or suppression of fact are not attributable to assessee: CESTAT

++ CX - No time limit can be imputed for re-availment of CENVAT credit earlier reversed under protest: CESTAT

++ Cus - Pendency of writ-petition by consignor does not seem to extend any benefit to the present applicant - no sufficient cause shown for condoning the delay in filing appeal: CESTAT

++ ST - Refund filing - 41/2007 - AA decided the SCN on 31.03.2009 and by which time the period of 60 days was extended to six months, therefore, the extended period should have been considered: CESTAT

++ CX - Clandestine removal - It is trite law that such charges cannot be levelled based on input-output ratio alone & merit being quashed where not backed by other evidence: CESTAT

++ Cus - Valuation - Rejection of transaction value by applying Rule 12 of Customs Valuation Rules & determining enhanced value as per Rule 9 r/w Rule 14 is not sustainable, where sequential application of Rules 3,4,5,7 & 8 was not followed: CESTAT

July 28, 2020

++ CX - Refund of Rs.3.63 crores to be paid within 24 hours - also interest @18% to be paid along with costs of Rs. 1 lakh which amounts are recoverable from officers responsible for delay: HC

++ ST - Service tax being a central levy, requires all the assessees to be treated on the same platform: CESTAT

++ CX - CENVAT credit allowed on input services utilised in respect of Jarofix yard site & monsoon shed, which are necessary for disposal of hazardous waste arising from mining activity, as per directions of State PCB : CESTAT

++ Cus - Power to suspend Customs Broker's license is to be exercised only if such action is to be taken immediately - continuation of suspension of license is not tenable where four years pass between date of alleged contravention & date of suspension order: CESTAT

++ CX - Charges of clandestine removal of finished goods are unsustainable, where based on statements taken from persons who were neither examined by the Adjudicating Authority nor whose cross-examination was not permitted to the assessee: CESTAT

July 27, 2020

++ FERA - Imposition of penalty u/s 50 of Act must necessarily be preceded by enquiry being held & reasonable opportunity being given for making representation in matter: SC

++ Tamarind seed supplied to Millers is classifiable under HSN 1207 and attracts GST @5%: AAR

++ Construction of Millennium Tower for Andhra Pradesh Industrial Infrastructure Corporation Ltd. is classifiable under Construction Services (SAC 9954) and attracts GST @18%: AAR

++ Supply of print on flex used for non-commercial purpose does not change classification per se and attracts same rate of tax of 12%, TI 4911: AAR

++ GST - Sanitizer manufacturer - arrests and deposit of Rs.8 crores under protest - no further recovery till demand is raised in accordance with law, assures Revenue counsel - Interim protection - no coercive action: HC

++ ST - Appellant has taken suo moto registration after being pointed out by service receiver - no tax charged or collected - extended period of limitation not invokable: CESTAT

++ CX - Removal of used capital goods - As amendment was made to rule 3(5A) of CCR to mitigate hardships caused to trade, this is a beneficial piece of legislation and is required to be given a retrospective effect: CESTAT

++ Cus - Charges of mis-declaration cannot be levelled against importers where goods other than those ordered are shipped by overseas supplier, who also admits to having shipped the wrong goods: CESTAT

++ ST - 219-day delay in filing appeal before Commr.(A) could not have been condoned & was righty dismissed, more so where neither application for Condonation of Delay is filed nor mandatory pre-deposit is made: CESTAT

July 25, 2020

++ ST - Renting of Immovable Property service - Assessee is a State Govt entity engaged in renting out warehouses to Food Corporation of India for storing food grains - such activity is exempted from levy of duty as per Section 66D(d) of FA 1994: CESTAT

++ CX - Seizure of goods lying in assessee's factory on grounds that they were allegedly meant for clandestine removal, is not sustainable, if such action is based solely on such goods not being entered in records & if no evidence is presented to corroborate such charges: CESTAT

++ CX - Charges of clandestine clearance of goods are not sustainable where based solely on documents retrieved frpm pen drive & where such documents are not corroborated by other evidence: CESTAT

++ CX - CENVAT credit is allowed on certain Iron & Steel goods which are used for repair & maintenance of capital goods and satisfy the user test: CESTAT

++ It is fit case for remand where Revenue relies on Chemical Examiner's report to determine Fe content in Iron Ore Fines exported by assessee, but does not provide the assessee with a copy of such report: CESTAT

July 24, 2020

++ ST - Appellant is admittedly an educational institution, which is wholly owned by GOI - no mala-fide can be attributed to them so as to justifiably invoke the longer period of limitation: CESTAT

++ ST - It is trite law that willful suppression of facts cannot be alleged in revenue-neutral situations - penalty merits being waived u/s 80 of Finance Act 1994 where duty & interest are paid before issuing SCN: CESTAT

++ CX - Matter warrants remand where Revenue contravened principles of natural justice by not providing opportunity of personal hearing to the assessee & where request seeking time extension for placing corrected figures, is rejected: CESTAT

++ CX - Procedure u/s 9D of the CEA, 1944 has to be followed by adjudicating authority in respect of every statement he wishes to rely upon: CESTAT

July 23, 2020

++ GST - COVID has resulted in continuous lockdown and businesses are affected - as petitioner has undertaken to pay entire dues in six months, bank account ordered to be de-freezed: HC

++ GST - Anti-Profiteering - Penal provisions inserted by s.s 3A in s.171 by FA, 2019 w.e.f 01.01.2020 - whether applies for prior assessment period - proceedings for recovery of penalty stayed: HC

++ ST - No malafide could be attributed since the contracts were entered with a PSU - extended period of limitation cannot be invoked: CESTAT

++ Cus - Simply presenting BoE for clearance of goods does not make a person the importer of such goods or an agent of the importer - hence such person cannot be held responsible for short levy of duty: CESTAT

++ CX - It is trite law that any new findings not forming part of the allegations made in the Show Cause Notice, are not sustainable: CESTAT

++ Cus - Classification - SCN issued to importer is unsustainable where based solely on ATIRA and Textile Committee reports: CESTAT

++ Cus - Letter issued to importer by jurisdictional Deputy Commr., denying cross examination sought by importer qualifies as a decision by adjudicating authority & so merits being set aside: CESTAT

++ CX - scope of term machinery as per Notfn No 281/86-CE is not restricted to any single machine & rather extends to group of machines which perform some useful function - hence all goods manufactured in assessee's workshop & utilised for repair & maintenance of such machines are eligible for exemption under Notfn No 281/86-CE: CESTAT

July 22, 2020

++ GST - Petition challenging FORM GST DRC-01A issued u/s 74(5) of the Act is not maintainable as it is just an intimation and it is up to the writ applicant, whether to pay attention to such intimation or not: HC

++ ST - Activity of constructing roads, power plants, airports & other commercial, industrial & civil works buildings, is taxable as Works Contract Service and not Construction service, where performance of service also involves supply of material by assessee: CESTAT

++ Cus - Provisions of S.149 of CA, 1962 do not prescribe time limit for amendment of shipping bills - Board Circular cannot go beyond mandate of law: CESTAT

++ ST - Invoices mentioning old address is an inadvertent error and assesse should not be deprived of their legitimate claim of credit: CESTAT

++ CX - Outdoor catering service - CENVAT credit allowed thereon since it is integrally connected with manufacture of final products & where such service is obtained for consumption by all employees in factory: CESTAT

++ Cus - It is trite law that report of CSRI-CLRI cannot be adopted to ascertain fair price of goods, since CLRI is not the competent agency to determine current market value of export-bound consignment: CESTAT

July 21, 2020

++ Supply undertaken outside Mah. State by  different and distinct entity - application cannot be entertained by Maharashtra AAR

++ No ITC on paver blocks used to create parking area: AAR

++ CX - Existence of common director in two companies, or both sharing common premises & facilities is insufficient to infer that both companies are related entities: CESTAT

++ CX - CENVAT - Rule 6(3) - assessee cannot be asked to reverse more credit than it availed - duty demand set aside where proportionate amount of credit is already reversed: CESTAT

++ CX - Allegations of clandestine manufacture & removal of goods cannot be upheld, where based solely on loose papers & on statements taken from a third party, without permitting cross examination of their depositor: CESTAT

++ Cus - OIA is very cryptic and does not give any cogent reasons for rejecting the declared AV - It is not correct to reject the transaction value just because there are imports at a higher price by third parties: CESTAT

++ Cus - Continuous suspension of Customs broker's license without having conducted enquiry or without issuing notice for revocation of license or for imposing penalty, is unsustainable: CESTAT

July 20, 2020

++ Mounting/fabrication of bodies on chassis provided by customer - Taxable @18% GST, SAC 998881: AAR

++Amusement park -  ITC related to land development shall not be available: AAR

++ Coal handling and distribution charges will be taxable @18% GST and not @5% as applicable on supply of coal: AAR

++ Error apparent on face of record - Order rectified - Bio-processed meal used only as animal feed; classifiable under 2309 9090, exempted under 02/2017-CTR: AAR

++ ST - A statement u/s 73(1A) of FA, 1994 demanding service tax was issued giving reference to earlier SCN - when that SCN was found to be unsustainable, the present demand cannot sustain: CESTAT

++ CX - Service tax paid on rent for job workers premises is not an Input service for assessee: CESTAT

++ Cus - It is trite law that redemption fine @ 10% and penalty @ 5% of the value of imported goods, are appropriate in cases of such imports violating EXIM policy provisions: CESTAT

++ CX - Reflection of entire fact in the balance sheet would amount to disclosure of factual position and would not involve any suppression of fact - penalty not imposable: CESTAT

++ Cus - Importer made wrong declaration of no prohibited articles or Gold items being imported, while concealing Gold bars with mala fide intent to evade payment of duty - absolute confiscation thereof, is upheld: CESTAT

July 18, 2020

++ GST - ITC of tax paid on lifts procured & installed in hotel building is not available, as such lift is blocked as per Section 17(5)(d) of CGST Act, becoming an integral part of building: AAR

++ GST -Supply, installation & fixing of furniture consists of two taxable supplies of goods & services which are naturally bundled, and qualifies as composite supply, classifiable under Heading 9403: AAR

++ CX - Penalty u/r 25 of CER 2002 r/w Section 11AC of CEA 1944 is unsustainable, where no suppression or wilful mis-statement of fact with intent to evade payment of duty, is attributed to assessee, who deposited duty with interest before issuing of SCN: CESTAT

++ CX - Objection, which was not raised by Revenue at the time of availment of original credit, cannot be raised at the time of re-credit: CESTAT

++ ST - Show Cause Notice issued by invoking extended limitation, is bad in law, where such proceedings are based solely on change of opinion of the Revenue: CESTAT

++ Cus - Employee of CHA unwittingly aided in import of prohibited goods by being negligent in ensuring KYC compliance of importer - as no case of connivance is made out against such employee, the quantum of penalty imposed u/s 112(a) of Customs Act, merits being reduced: CESTAT

July 17, 2020

++ GST - TRAN-1 - Bench concurs with conclusion of Bombay HC in Nelco but is unable to subscribe to view taken by Delhi HC in SKH Sheet Metals : HC

++ GST - Rule 117 - Time limit is mandatory and not directory - if construed as directory, it would adversely impact Government's revenue interest: HC

++ GST - It is not logical corollary that time limits for availing ITC and, in particular, Transitional ITC, are inimical to object and purpose of statute - Section 140 clearly warrants necessity to be finite: HC

++ GST - Interest paid - If Section 50(1) of CGST Act, 2017 is amended in future and if Applicant is entitled to seek refund of any such amount, they would be at liberty to make an application: HC

++ Services provided by Leprosy Mission Trust India, Platinum Vocational Training Centre is exempted in terms of 12/2017-CTR being an 'educational institution': AAR

++ Chit fund - Additional amount charged on delayed payment of subscription amount  cannot be treated as 'interest';  is to be taxed as per original supply; @12% GST: AAR

++ Supply of services of Municipal Solid Waste management to  Tirupati Smart City Corporation is exempted: AAR

++ ST - It is not the case that any subsequent amendment in law has changed the legal position and, therefore, the earlier judgments cannot be followed - Revenue appeal dismissed: HC

++ ST - Services in respect of marketing, procurement of order & sales provided to an entity abroad & for which consideration is received in foreign exchange, qualifies as export of service - no service tax is leviable: CESTAT

++ Cus - Original authority has allowed appellant to re-export goods but ordered confiscation and imposed RF - If appellant does not choose to redeem the goods then same remain in India and cannot be re-exported - Bench, therefore, sets aside confiscation: CESTAT

++ CX - Co-ownership agreement entered into for use of Trademark - it cannot, therefore, be said that the brand name is owned by others and hence the exemption 8/2003-CX cannot be denied: CESTAT

++ ST - Show Cause Notice need not be issued & penalty u/s 78 of Finance Act 1994 need not be imposed where differential duty with interest is paid well before issuance of SCN: CESTAT

++ CX - CENVAT credit cannot be denied where duty-paid goods are received from a registered dealer, by assessee in its factory & but were not used in manufacture of final products: CESTAT

++ CX - Excisable goods should be used for 'consumption' in the production or manufacture of other articles - CTD bars/rods cleared to sister concerns in expansion projects (civil or construction works) cannot be valued under rule 8 of the Valuation Rules: CESTAT

July 16, 2020

++ Building was constructed for purpose of running lodge house - applicant's claim that she had rented out dwelling for use as residence is incorrect inasmuch as lessee is engaged in commercial activity of renting rooms, therefore, taxable @18% GST: AAR

++ Sri Satya Sai Water Supply Project Board is not 'governmental authority' - services received are not exempted in terms of Entry 3 of 12/2017-CTR: AAR

++ Tamarind seed sold to millers is classifiable under HSN 1207 and attracts GST @5%: AAR

++ CX - There is direct nexus between manufacture of final products and services used for setting up of plant by leasing land - main part of definition of Input service is wide enough to allow such credit: CESTAT

++ Healthcare services is Composite supply, principal supply being healthcare, which attracts Nil rate, Sl. no. 74 of 12/2017-CTR refers, therefore, in view of s.8 of Act, implants, stents are also not liable to tax: AAR  

++ GST - Business transfer - 'going concern' which was excluded from list of 'supply of goods' would automatically fall under 'supply of services' - transaction not liable to tax: AAR

++ Reverse charge mechanism is not applicable to goods issued by contractee on cost recovery basis, however, s.15(2)(b) stands attracted: AAR

++ CX - Service tax paid on management, maintenance and repairs and rental charges of warehouse is admissible as Input service: CESTAT

++ ST - Appellants had no intention to evade tax and it was only a case of mere delay in paying tax on account of delay in receiving payments from clients - penalty u/s 76 unwarranted: CESTAT

++ ST - Once ER-1 returns are filed, it is reasonable to expect them to be assessed & demand, if any, be raised within normal limitation period - demand raised under extended limitation is time barred where no collusion, fraud or wilful suppression of fact is attributed to assessee: CESTAT

++ CX - Mistake in Certificate issued by the District Collector, Nalgonda mentioning the wrong notification number cannot be the sole reason for denying benefit to the assessee which they were otherwise eligible: CESTAT

++ Cus - Customs Broker did not verify identity of importer & overlooked clearances made by third parties, rather than by IEC holders - provisions of CBLR have been violated due to gross negligence in performing of duties & forfeiture of security deposit & penalty is upheld: CESTAT

July 15, 2020

++ CX - SVLDRS, 2019 - Although scheme has come to an end, Department shall accept payment in view of fact that this litigation was pending before Court: HC

++ ST - Foreclosure charges are recovered as compensation for disruption of service and not towards 'lending' services, so not taxable: LB CESTAT

++ GST - Students who prepare on their own can also appear for CA and ICWA exams and qualify - Coaching imparted is only a facilitation/improvisation - same cannot be construed as leading to grant of certificate, qualification etc. recognised by law - not exempted: AAR

++ As to whether applicant is required to file form GSTR-9C is not question that can be answered by Authority as same does not fall within confines of s.97(2) of Act: AAR

++ CX - It is trite law that an exemption notification is to be strictly construed against the claimant of exemption - higher rate of refund under exemption notification is not allowable where application is filed beyond the prescribed limitation period: CESTAT

++ CX - Assessee substantially expanded its unit by way of 25% increase in value of fixed capital investment in plant & machinery & is entitled for benefit under Notfn No 01/2010-CE where such expansion took place after 06.02.2010, in compliance with terms of Notfn: CESTAT

++ Cus - Redemption fine is not imposable where goods have been redeemed solely for purpose of export - nonetheless, penalty imposed for importing those goods which do not conform to FSSAI Regulations, is sustainable: CESTAT

July 14, 2020

++ Alcobase Hand Sanitisers is classifiable under heading 3808 of HSN; GST @18% - declaration as 'essential commodity' by Ministry of Consumer Affairs is not passport for GST exemption unless notification provides for same: AAR

++ NDPS - Expeditious conclusion of trial against foreigners is also in public interest because it cannot be ruled out that some foreigners would like to unduly prolong their stay in India, taking advantage of pendency: HC

++ NDPS - Grounds raised are all matters of fact and require to be proved during trial - If any finding is recorded with regard to legal infirmities, it would amount to pre-judging the issue: HC

++ VAT - A club comprising of a body of persons & incorporated with some common objective in mind, will not attract VAT liability: HC

++ ST - Construction activity by appellant is not an activity of charity and is rather contract for profit - appellant is doing construction work not for any loss: HC

++ CX - Expansion Bellow is used for jointing the pipes while laying pipeline is not a pipe or part - benefit of 3/2004-CX unavailable: CESTAT

++ Cus - Since the goods were provisionally released in terms of a bond submitted by the importers, redemption fine is liable to be imposed: CESTAT

++ NDPS - Successive bail applications can be considered only if there are any changes in circumstances: HC

++ ST - Even if contention is that appellant was not liable to service tax, it was question of fact, which had to be determined on strength of contract agreement - no error in approach of Single Judge in dismissing writ on ground of alternative remedy: HC

++ ST - Appellant is a PSU and the amount demanded as tax is admissible as CENVAT credit - although penalties are imposable u/ss 76, 77 & 78, they are waived by application of s.80: CESTAT

++ Cus - Where declared value & accepted assessable value of relevant goods are same at different ICDs, importing two consignments at higher prices cannot lead to such price being adopted as contemporary import value: CESTAT

++ ST - Activity of transportation or shifting or Iron Ore involving incidental loading of tipper or unloading tipper at Railway Track Head or Railway Siding, is not taxable under Cargo Handling Service: CESTAT

July 13, 2020

++ VAT - Revenue rejected ITC claims in respect of purchases made from registered dealers - no reasons recorded for rejection of credit - matter remanded: HC

++ ST - Royalty - Only right which licensor has is to supervise whether products manufactured by Appellant are in conformity with the quality since brand name of the licensor is being used - no reason to classify such service under Franchise service: CESTAT

++ CX - When cenvat credit is availed and the same is utilized for payment of CX duty on goods which were not attracting excise duty, under such circumstances such cenvat credit cannot be recovered: CESTAT

++ CX - Evidence relied upon for dropping demand of Rs.32 lakhs is the very evidence relied for confirming demand of Rs.3.16 crores - contradiction in order: CESTAT

++ Cus - Wrong BIS number embossed on drivers for LED panel lights by foreign manufacturer - confiscation cannot sustain: CESTAT

July 11, 2020

++ GST - Refund - Petitioner cannot be asked to wait endlessly for the respondents to challenge the order of Commissioner(A) - non-functioning of the GST Appellate Tribunal not an excuse: HC

++ NDPS - Procedure adopted for drawing samples neither conforms to procedure prescribed u/s 52A of NDPS Act nor under Standing Orders: HC

++ NDPS - Mixing of contents of packages (in one lot) and then drawing representative samples is not permissible since such sample would cease to be representative sample of corresponding package: HC

++ CX - Fiscal laws are to be interpreted as they are, regardless of consequences - no refund of MODVAT credit can be sanctioned u/s 11B if assessee fails to utilise it on account of cessation of manufacture activity: CESTAT

++ CX - Clearances of two Pvt Ltd companies cannot be clubbed where both are separate entities, manufacture different products, have separate power connections & use different raw material & where creation of both units is known to the Revenue: CESTAT

++ ST - Activity of provision & transfer of information & data processing, in relation to depository operations, is covered under scope of Banking & Financial services and is taxable as such: CESTAT

++ Cus - Rejection of transaction value u/r 12 of Customs Valuation Rules 2007 is not tenable, if no reasons are recorded for not proceeding sequentally as per the Rules & no grounds are stated for rejecting contemporaneous value submitted by importer: CESTAT

++ Cus - CHA's license cannot be revoked where no evidence points to its involvement in under-valuation - provisions of Regulation 5(e) of CBLR 2013 are inapplicable on to CHA, where CHALR 2004 does not contain a corresponding provision: CESTAT

July 10, 2020

++ Impugned product is presently not manufactured and no sample is submitted, so no ruling can be given by AAR

++ Entire Villa is to be treated as 'unit of accommodation' - GST chargeable @18%: AAR

++ Mapping services provided by applicant to Municipal Corporations is pure service exempted under 12/2017-CTR: AAR

++ Movie Tickets - Reduction in GST rate but benefit not passed by increasing base prices - profiteering proved: NAA

++ Once Authority has ordered the DGAP to cause further investigation,  DGAP has no authority to refuse on the ground that there is no complaint: NAA

++ Cus - Where an assessee is entitled in law to refund of tax paid, it is immaterial whether the payment is in cash or by debit of DEPB scrip: CESTAT

++ It was only when Authority had directed DGAP to reinvestigate, the respondent was found to have profiteered by an amount of Rs.19.72 crores - office of DGAP to be careful while carrying out investigation: NAA

++ Cus Valuation Related person - If the price fluctuation is reasonably explained, the same can be accepted: CESTAT

++ ST - Credit on input services used for repair or renovation of a factory or office is allowed: CESTAT

++ ST - Commissioner has traveled beyond the scope of SCN and passed order which is also in excess of the directions given by Tribunal in remand proceedings - Order set aside: CESTAT

++ CX - It is trite law that extended limitation cannot be invoked through subsequent Show Cause Notice: CESTAT

++ CX - Where manufacturer of physician samples sells goods to principal manufacturers, such sale is to industrial consumer & not to retail consumer - valuation u/s 4A of CEA is not tenable: CESTAT

++ Cus - Order of revocation of CB licence cannot be upheld as the charge has been confirmed on the basis of statement which has not been provided to appellant: CESTAT

July 09, 2020

++ Citing 'Principle of mutuality' to establish that applicant society and its members are not distinct entities is untenable insofar as taxability in  GST regime is concerned: AAR

++ GST - Petitioner seeks issue of direction for carrying out search of premises in presence of an Advocate - no statutory provision or legal right in favour pointed out: HC

++ Cus - Adopting a methodology of first-come-first-serve has inherent flaws and anybody having access to power corridor at some level is likely to secure unfair advantage at the cost of other applicants who may not have similar access: HC

++ CX - Question of law raised is whether amending notification 13/2008-CX is prospective in nature or retrospective - appeal u/s 35G is not maintainable - Revenue should pursue its grievance by filing appeal before apex court: HC

++ Cus - It is a settled principle of law that adjudicating authority is not to assume upon itself the role of an investigating agency and go on to investigate something which has not been alleged in SCN: CESTAT

++ Cus - Where DEPB/TRA/DFIA was fraudulently procured by the predecessor of appellant, the duty demand from the appellant cannot be withdrawn: CESTAT

++ ST - SCN need not be issued where assessee paid service tax duty with interest based on own ascertainment of liability or immediately on being pointed out by Department - penalty imposed u/s 78 of FA 1994 is set aside: CESTAT

++ CX - Quantum of penalty imposed for failure to file ER-6 return, warrants reduction, where assessee was under bona fide belief of being exempted from filing such return where duty paid through PLA did not exceed Rs 1 crore: CESTAT

++ CX - It is settled position in law that CENVAT credit can be claimed in respect of commission paid to agents located in & outside India, for providing sale & marketing service: CESTAT

July 08, 2020

++ CST - Commissioner directed to unblock portal so as to enable petitioner to access and procure requisite statutory forms: HC

++ SVLDRS - Where Form No 3 is not issued to applicant, then DA is obliged to issue discharge certificate within 30 days' time of filing the application - appeal disposed of as withdrawn under the Scheme: CESTAT

++ ST - Penalty imposed u/s 78 of FA 1994 for non-payment of tax on Renting of Immovable Property Service, merits being set aside, if assessee was under bona fide belief of not being liable to pay duty but nonetheless deposits the same with interest: CESTAT

++ CX - Rule 4(5)(a) of CCR 2004 allows availment of credit even where processed goods are sent to job worker for further processing & which are established to have been received back in 180 days' time: CESTAT

++ Cus - It is trite law that burden of classification of an imported item, is on the Department - Superior Kerosene Oil is correctly classifiable under CTH 2710 1990 where the Department is unable to prove otherwise: CESTAT

July 07, 2020

++ ST - Charges of wilful suppression of facts with intent to evade payment of duty cannot be leveled against assessee, where Revenue is aware of assessee's inability to discharge duty liability: CESTAT

++ ST - Activity of providing marketing support service to a foreign company to help maximise its sales in India & for which consideration is received in foreign currency, qualifies as export of service, as such service is delivered & consumed outside India - no service tax payable: CESTAT

++ CX - Appellant continued to pursue with AA in the matter of non-payment of interest although Asstt. Commr. had advised them by letter dated 22.06.2017 to file appeal - Commissioner(A) has rightly held the appeal filed on 11.01.2018 as time barred: CESTAT

++ CX - Whether Revenue is legally right in issuing show cause notice for the second time in the same case - vital issue not answered - matter remanded: CESTAT

++ Cus - 90 days' time prescribed in CBLR 2013 for passing order is mandatory & not obligatory - order passed beyond such time period prescribed in Regulation 17(7) thereof, is unsustainable: CESTAT

July 06, 2020

++ GST - When appeal is provided under statute, writ remedy cannot be invoked by making High Court as middle authority between respondent CTO and appellate authority: HC

++ ST - Assessee collects, processes & stores data of MNREGA beneficiaries on behalf of a State Govt entity - such activity entails discharge of sovereign function & no service tax can be demanded thereon: CESTAT

++ CX - Valuation - Approach of Revenue by disintegrating the wholesale package and determining the value of individual components under separate provisions of the same Act is not permissible: CESTAT

++ CX - Construction service was availed for construction of own manufacturing premises - credit admissible: CESTAT

++ Cus - Transaction value of imported goods cannot be rejected without showing any contemporaneous evidence of higher price - charges of undervaluation are unsustainable where no evidence exists to show that assessee & overseas buyers are related parties: CESTAT

July 04, 2020

++ Cus - Charges of violating terms of EPCG license are not sustainable where imported vehicle is in possession of the importer & where no evidence shows that it is not being used for that purpose for which its import was allowed: CESTAT

++ CX - It is trite law that charges of clandestine manufacture of goods have to be based on some concrete evidence, such as stock verification of raw material, material supplied to other entities, or transportation of such material: CESTAT

++ CX - An assessee is not obliged to inform the Revenue about each & every transaction - charges of suppression & mis-statement with fraudulent intent, are not tenable, where regular returns are filed & proper records are maintained & if such charges are based on change of opinion: CESTAT

++ ST - Receipt of Infrastructure Support Service by assessee to support its business of broadcasting service, is classifiable as Business Support Service u/s 65(104c) - assessee's argument of revenue neutrality is not tenable where service tax is demanded by service recipient on reverse charge basis - duty demand & penalties upheld: CESTAT

++ CX - BIFR - Corporate Insolvency Resolution Process - Final Resolution Plan approved by NCLT - since one-time settlement amount has been paid, appeals have been infructuous: CESTAT

July 03, 2020

++ ST - Sale or purchase of items from M/s BSNL on principal to principal basis, is pure trading activity - duty demand cannot be raised against assessee where M/s BSNL already paid service tax on the relevant transaction: CESTAT

++ CX - Dross and skimming of Aluminum arising as by-product during manufacture of Aluminum non-ferrous sheets and foils, will not attract Excise duty: CESTAT

++ CX - Benefit of doubt goes in favour of appellants that they have received inputs against cenvatable invoices since final product has been manufactured and cleared on payment of duty: CESTAT

++ CX - Clearance of Waste and Scrap by 100% EOU into DTA is entitled for benefit of exemption notification No.52/2003-Cus and 22/2003-CE: CESTAT

++ Cus - There is no legal obligation on a CHA to physically verify address of exporters - charges of violating Regulation 11(n) of CBLR 2013 are unsustainable: CESTAT

July 02, 2020

++ GST - Rule 142(1)(a) of CGST Rules, 2017 is valid and is in no manner in conflict with any of provisions of Act: HC

++ ST - Assessee cannot avail CENVAT credit pertaining to trading activities & such amount is liable to be reversed with interest - waiver of penalty u/s 80 of FA 1994 is allowed where reasonable cause exists for non-payment of service tax before initiation of proceedings: CESTAT

++ CX - As per Notfn no 8/2003-CE, exemption is allowed to a factory situated in rura area, even if it manufactures goods of other brands - assessee is eligible for SSI exemption where it produces certificate from Gram Panchayat stating that its factory is situated in rural area: CESTAT

++ CX - Charges of clandestine removal based on production pattern of other assessees have no legal or scientific basis & so are unsustainable: CESTAT

++ Cus - It is settled law that valuation is to be done as per provisions of Section 14 of Customs Act r/w Customs Valuation Rules 2007 - NIDB data cannot be adopted as substitute: CESTAT

July 01, 2020

++ GST - For single transaction and same movement of goods, there cannot be multiple consignment notes - applicant cannot be treated as GTA: AAR

++ Accounting entry made for purpose of Indian accounting requirements in books of accounts of Project Office towards salary cost of Expat employees paid by Head Office - not liable to GST: AAR

++ Applicant is not entitled to claim ITC of GST paid on inputs and input services used for construction of commercial immovable property, which is subsequently used for renting: AAR

++ ST - CCR 2004 - Rule 5 - Refund of CENVAT credit is allowed in respect of input goods or services in respect of goods which are exported: CESTAT

++ CX - Law does not dictate that an assessee can avail only 50% CENVAT credit in one given year or that remaining 50% credit can be availed in following year: CESTAT

++ CX - Unrest in factory - OIO dated June 2014 received in August 2016 and appeal filed in September 2016 - RTI reply mentions that mode of despatch of order is not ascertainable - benefit of doubt goes in favour of assessee; appeal not time barred: CESTAT

++ CX - Melamine Formaldehyde Resin & Cardanol Phenolic Formaldehyde Resin captively consumed to manufacture Plywood, De-laminates & Industrial Laminates are classifiable under CETH 3506 & are eligible for exemption under Notfn No 50/2003-CE: CESTAT

++ Cus - Importer is not liable to pay 200% duty on items imported from Pakistan where time of entry of goods into India & time of filing BoE is before time of issuance of such Notfn raising rates of duty: CESTAT