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Untitled Document

TODAY'S CASE (INDIRECT TAX)

Taxindiaonline.com



June 30, 2020

++ GST - Sale of assets of applicant by NCLT appointed liquidator is supply of goods by liquidator, who is required to take registration u/s 24 of Act: AAR

++ GST - Applicant is local branch of Russian business entity which entered into Maintenance and Repair Contract with Bharat Coking Coal Ltd - not import of service - recipient not liable to pay GST on reverse charge basis: AAR

++ GST - Applicant, charitable trust, extends legal, medical, psychological and financial support to women and their children surviving violence and abuse - no 'supply' or 'receipt' of any service, hence not liable to tax: AAR

++ GST - Applicant is NGO administering Vocational Training Institute for skill development of underprivileged suffering from leprosy - as applicant is an 'educational institution', supply is exempt: AAR

++ ST - Appellant was paying VAT on the activity undertaken - service merits classifcation under WCS & no tax is payable prior to 01.06.2007: CESTAT

++ CX - Provisions of 35F of CEA requires cash deposit of 7.5% of the dues and there is no provision for adjustment of any other security - Tribunal being a creature of the Act is bound by its provisions: CESTAT

++ CX - Revenue rejected that classification favored by the assessee for Vermax 002 and Vermax 004 products but itself omitted to state the heading under which goods are classifiable - Hence, classification favored by assessee merits being upheld: CESTAT

++ Cus - Order of final assessment sent by the Department through registered post at noticee's old address, cannot be considered to be proper service u/s 153 of Customs Act 1962 - subsequent date on which order was received be considered for calculating limitation period: CESTAT

June 29, 2020

++ Sales Tax - Purchase tax is leviable on purchase turnover of empty bottles purchased by manufacturer of Alcoholic beverages, from unregistered dealers under bought note: SC

++ SVLDRS, 2019 - Letter to supplier calling upon it to stop payment to petitioner and directing that amount due be paid directly to credit of govt. does not show final quantification of tax liability and is, at best, preliminary figure - application rightly rejected: HC

++ GST - Claiming ITC of Rs.11.6 crores without there being any transaction directly affects economy of country, no bail: HC

++ ST - CENVAT credit availed based on photocopies of original invoices, cannot be rejected where neither existence of original invoice is disputed nor that duty is paid & equipment in question is utilised at those sites where credit is taken: CESTAT

++ CX - CENVAT credit is allowed on Welding Electrodes used for repairing machinery which is further utilised for manufacturing Cement: CESTAT

++ Cus - DGOV circular cannot override provisions of Valuation Rules - Enhancement of value is not on the basis of contemporaneous imports data but DGOV Circular, hence absolutely illegal: CESTAT

++ CX - Iron Ore fines emerging during course of manufacture of Sponge Iron are unavoidable & inevitable by-products of such process - hence, such Iron Ore fines cannot be said to have been manufactured, so as to attract Excise duty: CESTAT

++ ST - Business Auxiliary Service - Revenue's rationale behind raising duty demand that sale promotion programme of bottled beverage also involved promotion of the juice concentrate owned by another entity, amounts to promotion of the latter's brand name, is incorrect & incompatible with taxable category defined as BAS: CESTAT

June 27, 2020

++ GST - ITC not passed to buyers - Profiteering of Rs.19.23 crores in respect of project Emerald - DGAP to investigate Emaar's 24 other projects based on self-admission: NAA

++ GST - Frozen green peas - Increase in base price exactly equal to amount of tax reduction is deliberate and has been made with sole intention of pocketing benefit of tax reduction - Profiteering proved: NAA

++ GST - ITC benefit not passed to buyers of flats/shops - profiteering of Rs.4,83,04,692/- proved: NAA

++ ST - Through RIPS is a Declared Service u/s 66E of Finance Act, in cases where service is provided for consideration in money, value u/s 67(1) of Finance Act will be gross amount charged by service provider for such service provided or agreed to be provided: CESTAT

++ Cus - Revocation of CHA's license is disproportionate punishment for CHA not having obtained clearance of export consignment directly through exporter but instead utilised services of intermediaries: CESTAT

++ ST - No mala fide intent to evade payment of duty can be presumed against a Govt undertaking - penalty u/s 78 of Finance Act 1994 is not imposable, more so where no suppression of facts is made out: CESTAT

++ CX - Appellants were reminded time and again to collect un-relied upon documents but they insisted that the department incur the cost and deliver it at its premises - no violation of principles of natural justice while passing order: CESTAT

June 26, 2020

++ GST - Classification of goods does not have anything to do with application of Rule 32(5) of CGST Rules, 2017: AAAR

++ GST - Valuable paintings, antique watches, antique jewellery, though falling under category of valuable goods are at same time also 'second-hand' or 'used goods' and, therefore, they cannot be denied benefit of rule 32(5) of CGST Rules: AAAR

++ GST - There is nothing in rule 32(5) of CGST Rules which says that it is not applicable to valuable or precious objects or objects having antique value: AAAR

++ GST - Ordnance Factory, Bhandara is nothing but 'Central Government' - Order of AAR set aside: AAAR

++ GST - Ordnance Factory, Bhandara is nothing but 'Central Government' - Order of AAR set aside: AAAR

++ GST - Classification of goods does not have anything to do with application of Rule 32(5) of CGST Rules, 2017: AAAR

++ GST - Valuable paintings, antique watches, antique jewellery, though falling under category of valuable goods are at same time also 'second-hand' or 'used goods' and, therefore, they cannot be denied benefit of rule 32(5) of CGST Rules: AAAR

++ GST - There is nothing in rule 32(5) of CGST Rules which says that it is not applicable to valuable or precious objects or objects having antique value: AAAR

++ ST - Without indicating the exact amount payable under specific services, demand confirmed - entire matter needs reconsideration: CESTAT

++ CX - ST paid on renting of guest house near airport for foreign technicians is an Input service: CESTAT

++ ST - Vehicle registration - Whole process of issue of smart card is a statutory function which only Govt. Road Transport Authority can do - outsourcing such works does not attract tax under BAS: CESTAT

++ CX - Providing tea and snacks in morning and evening for which appellant does not recover anything from employees - Cenvat credit on Outdoor Catering Service admissible: CESTAT

++ CX - Marking made on Jute bags in compliance with law & for purpose of identification, monitoring & control by Govt agencies, cannot be treated as brand names - benefit under Notfn No 30/2004-CE is available to their manufacturers: CESTAT

++ Cus - As Gold is freely imported into India & is easily available in markets, some quantity of Gold found on appellant's person cannot be treated as being smuggled in nature - doubts & suspicions may lead to investigation, but are per se insufficient to impose penalty: CESTAT

June 25, 2020

++ GST - Bogus invoices - Whether petitioner had any role or has been made scapegoat, as alleged, can be ascertained once he joins investigation vis a vis documentary evidence already seized - Anticipatory bail granted: HC

++ GST - There is no place for compulsion in composite supply: AAAR

++ GST - Legislature has considered 'money' as 'goods' when'money' is being transported from one place to another - ITC available in respect of cash-carry vans used for transportation of cash: AAAR

++ NDPS - There is an embargo u/s 37 of NDPS Act to grant bail, unless case is established otherwise, however, petitioner has failed - Bail application dismissed: HC

++ Tax avoidance issue is outside purview of Anti-Profiteering Authority and applicant may approach appropriate forum for redressal: NAA

++ ST - It is settled position in law that tax is not payable where no revenue implication is involved & where CENVAT/MODVAT credit is available in respect of such tax paid: CESTAT

++ CX - Allegations of clandestine removal & shortage of goods cannot be sustained on basis of loose sheets recovered from assessee's premises & whose author was not traced: CESTAT

++ Cus - 21/2002-Cus - Product named and known as 'Skin Barriers Micropore Surgical Tapes' exists, therefore, it cannot be inferred that the notification was wrongly worded and that the entry should be read as Skin Barriers, Micropore Surgical Tapes: CESTAT

++ CX - Depositing of duty without protest is highly insufficient to serve as conclusive proof of clandestine removal: CESTAT

June 24, 2020

++ Cus - Interest on customs duty does not have precedence over warehousing charges and rent - claim for interest can come only u/s 150(2)(e) of CA, 1962: HC

++ Cus - Term 'harassment', by itself, has a very wide meaning and hence, what could be harassment to the petitioner may not be the same to the investigating officer - guidelines issued: HC

++ VAT - It is not permissible for an assessee to raise different pleas during different proceedings: HC

++ ST - RIPS - When the property is owned jointly by the appellant and her husband, the demand of service tax raised on the appellant alone cannot be sustained: CESTAT

++ CX - Extended limitation cannot be invoked, where issue of charging transport charges separately in invoices & their inclusion in transaction value u/s 4 of CEA 1944, was debatable during the relevant period & where no suppression of facts was made out: CESTAT

++ CX - Nil Duty paid by 100% EOU at the time of clearance to DTA was duty of excise and, therefore, goods cleared cannot considered as exempted goods - refund u/r 5 of CCR cannot be denied: CESTAT

June 23, 2020

++ GST - Railtel Corporation of India Ltd. does not fall under the category of 'Government Authority': AAR

++ GST - Digging of trenches and laying of OFC for purpose of supply of internet connection to Gram Panchayat - it cannot be construed that OFC laid underground are meant predominantly for use other than for commerce, industry, or any other business or profession - benefit of GST @12% not available: AAR

++ Whirlpool has profiteered on supply of 3-door Protton Refrigerators to customers in 18 States except Delhi and Haryana where tax incidence had marginally increased after introduction of GST: NAA

++ CX - Girder unit is separate and independent unit and Commissioner's finding is contrary to certificate issued by DIC office as well as physical verification report submitted by Superintendent - benefit of 50/2003-CE available: CESTAT

++ GST - Refilling of LPG gas purchased in bulk through Tankers, into bottles - Supplies to Commercial customers in bottles of 17/21 kgs attracts GST @18% and to Domestic customers in 12/15 kgs attracts GST @5% from 25.01.2018 - Entire ITC available on purchases of LPG gas (bulk) through Tanker: AAR

++ GST - Change over switch, emulator, timing advance processor, pressure gauge used to help engine of vehicles namely, motor cars, vans, buses etc. to switch over/change fuel from petrol to CNG/LPG and vice-versa is classificable under HSN Code 8708 9900 and attracts GST @28%: AAR

++ GST - Contention that transportation is being done on River Tapi and which is National Waterway 100 is factually incorrect as per Google Earth Map: AAR

++ GST - Service of transportation of goods from Magdalla Port, Surat to its General Lighterage Area of Magdalla Port (where the Mother Vessel are anchored) or vice versa - such transportation does not fall in definition of 'Inland waterways' - not entitled for exemption under, Sr.18 of 12/2017-CTR: AAR

++ ST - Rule 6 of CCR doesn't become applicable in r/o the same taxable service where part of it is exempted by way of a notification which exempts certain portion of value of the same taxable service provided: CESTAT

++ CX - Assessment order is barred by limitation where SCN is issued in September 2016 while period of dispute is September 2011: CESTAT

++ Cus - Revenue has sought to rely on changes made in FTP which are subsequent to the date of import and thus have no impact on the proceedings: CESTAT

++ CX - Proceedings for confiscation of goods on payment of redemption fine warrant being quashed, where main appeal stands settled on merits in favor of assessee: CESTAT

June 22, 2020

++ Cus - Date of filing of bill of entry is not relatable to the FTDR Act, 1992 or any notification or policy promulgated thereunder: HC

++ GST - SCN did not mention the date, month and year as well as the time for appearance of the petitioner, however, order passed cancelling registration - notice lacks compliance of the principles of audi alteram partem : HC

++ GST - On account of Covid-19 situation and the fact that trial is likely to take some time, petitioner to be released on regular bail: HC

++ GST - Filling up of wrong table in return, not attributed to any ulterior motive & caused by inadvertence arising from inexperience, is invalid grounds for rejection of returns: HC

++ Cus - Petitioner's application for provisional release of seized goods can be adjudicated upon independently of proceedings to be initiated u/s 124 of Customs Act - directions issued to consider the same: HC

++ ST - Assessee not co-operating cannot be a ground to issue a SCN without clarifying as to under what head the tax has to be paid: CESTAT

++ CX - Cenvat Credit Rules do not prescribe any time limit for availing credit on capital goods - balance credit can be deferred for availment in any AY subsequent to that AY in which capital goods were received: CESTAT

++. Cus - In view of s.2(e) of FTDR Act, 1992, importation of the said three textile machines had completed in the month of February, 1999 - In such a fact scenario, the company was not entitled to get the benefit of the amended EXIM Policy since the same was operative w.e.f April 01, 1999: HC

++ Cus - When the amended EXIM Policy was made effective from 1st April, 1999, such interpretation (of the notification 122/99-Cus having a retrospective effect), therefore, leads to an absurdity where the customs notification would be made operative even before the EXIM Policy came into being: HC

June 20, 2020

++ CX - It is settled position in law that CENVAT credit cannot be denied solely because ISD invoices for distribution of input service credit, were issued prior to registration of the unit: CESTAT

++ ST - It is settled law that no demand can be confirmed solely by comparing ST-3 return figures with balance sheet figures: CESTAT

++ ST - Duty demanded under heading of Commercial or Industrial Construction Service is unsustainable where SCN itself states that assessee undertook composite contracts of supply and erection - such activity is taxable under WCS: CESTAT

++ Cus - CVD - Department has not been able to establish by any evidence that the imported cement was sold to any retail consumer at a higher price - Benefit of 4/2006-CX cannot be denied: CESTAT

June 19, 2020

++ Petitioner has leased out property to a company against whom proceedings were initiated under the CGST Act leading to sealing of premises - Prayer to issue a writ of mandamus and handover the premises to petitioner cannot be granted in writ proceedings, as parties shall be governed by terms of lease: HC

++ GST - Supply of Pouch Filling Machine cannot be said to have been used for 'processing agricultural produce' as milk has already undergone various processes of filtration, straining, chilling, pasteurizing, cream processing, standardising etc. - not entitled for lower GST@12%: AAR

++ Sale of 'developed plots' would be covered under clause 'construction of a complex intended for sale to a buyer'; GST payable: AAR

++ Rice Bran (22+Oil) is classifiable under CH3825 9000 and attracts GST @18%: AAR

++ JJ's Pop Corn is classifiable under CSH 1904 1090 as 'Prepared foods obtained by roasting of cereal' and attracts GST @18%: AAR

++ GST - ITC unavailable on project development services for development of Smart Industrial Port City: AAR

++ GST - Applicant is required to consider value of 'taxable supply' and 'exempted supply' of service provided by way of extending deposits, loans or advances for which they earned interest income, to arrive at 'Aggregate Turnover' to determine threshold limit for registration purpose: AAR

++ Respondents directed to permit Petitioner to upload TRAN-1 on or before 30.06.2020 and in case Respondent fails to do so, Petitioner would be at liberty to avail ITC in question in GSTR-3B of July 2020: HC

++ ST - Date of filing the revised return should be reckoned for the purpose of refund of CENVAT credit under notification 12/2014-CX(NT): CESTAT

++ Cus - Appellant need not challenge the assessment before claiming refund of excess duty: CESTAT

++ ST - CENVAT credit is allowed on items, towers, shelter parts thereof being inputs used for providing telecommunication services: CESTAT

++ CX - It is trite law that penalty cannot be imposed when there are conflicting judgments on the relevant issue, which is then finally resolved later by the Supreme Court: CESTAT

++ CX - Refund of unutilised CENVAT credit upon closure or suspension of production is allowed to assessee in current year, where such credit was allowed to assessee in past periods also: CESTAT

June 18, 2020

++ Supply of Automatic Fare Collection System is classifiable under HSN 8470 and attracts GST @18%: AAR

++ GST is payable on goods sold to customer located outside India, where goods are shipped directly from vendor's premises (located outside India) to customer's premises: AAR

++ GST - Charitable Trust, running a medical store where medicines are sold at a lower rate, is taxable supply under Act, 2017 - even if there is no pecuniary benefit, activity is a 'business' - registration required: AAR

++ Mehendi/Henna power is a preparation for use on hair; attracts GST @18%: AAR

++ Product specific entry cannot be overridden by general/residual entry: AAR

++ Cus - When statute provides that power u/s 108 of Customs Act must be exercised in certain manner, then such power has to be wielded in same manner and none other: HC

++ ST - If Revenue submissions are accepted, then in every case, sale promotion activities undertaken by manufacturer of finished product, shall amount to sale promotion of raw material and service so rendered to supplier will be taxable as BAS - this is not the rationale or intention: CESTAT

++ ST - It is settled position in law that reimbursement of expenses is not to be included in the value of taxable service - duty demand & penalty merit being quashed: CESTAT

++ CX - Once actual receipt of duty paid inputs under cover of duty paying documents is not disputed, then CENVAT credit cannot be denied by referring to consumption of such inputs: CESTAT

++ CX - Markings made on Jute bags for identification, monitoring & control by Govt agencies & under compulsion of law cannot be treated as brand names - hence benefit of Notfn No 30/2004-CE cannot be denied: CESTAT

++ Cus - If deductive value of goods is not rebutted by Revenue, such value must be adopted to calculate any adjustment in transaction value as per Rule 3(3) of Customs Valuation Rules - adoption of Rule 4 is not justified: CESTAT

June 17, 2020

++ GST - TRAN-1 filing - Respondent Revenue directed to ensure compliance of judgment in Brand Equity Treaties Limited by 19.06.2020 and publicise same: HC

++ ST - It is trite law that in case of any ambiguity in a notification, that view which favors the assessee is to be adopted: CESTAT

++ CX - Imported coal - Restriction of Rule 3 of CCR is not applicable to notification 12/2012-Cus: CESTAT

++ Cus - Any act performed by a person in respect of other similar or identical goods which are not subject matter of the proceedings, cannot be made reasons to impose penalty u/s 114 of the Customs Act: CESTAT

++ CX - CENVAT - Rule 9 of CCR does not lay down any requirement that the name of the person who is availing credit has to be mandatorily mentioned in the Bill of Entry: CESTAT

June 16, 2020

++ GST -  An uninterrupted and seamless chain of ITC is heart and soul of GST: HC

++ GST -  Restriction that prevents petitioner from taking entire credit by revising return, based on footing of a 'human error' and not 'technical difficulty on common portal' is wholly unreasonable, being irrational and arbitrary and, therefore, violative of Article 14 of Constitution: HC

++ GST - TRAN-1 -  Exactness required in compliance of tax provisions should not be construed so rigidly that permissible flexibility is completely disregarded: HC

++ GST - Fraudulent ITC of Rs.9.05 crores - Offences are not punishable with death or imprisonment for life - There is no statutory bar in the Act for granting anticipatory bail by exercising power u/s 438 of the Cr.P.C: HC

++ GST - Department to accept manual filing of the GST Transition Credit applications as website is not functioning properly and last date is 30 June 2020: HC

++ GST - s.69, 132 of GST Act - Whether power of arrest and prescription of sentence are covered under ancillary and incidental matters; Whether proceedings are without jurisdiction - considerable force in submissions: HC

++ ST - Appellant is not liable to pay any tax on corporate guarantees provided to various banks/FIs on behalf of their holding company/associate enterprises for their loan or overdraft facility: CESTAT

++ ST - Mere sale and purchase of cargo space is trading and is not a taxable activity: CESTAT

++ CX - CENVAT credit on rent-a-cab service is allowed only if the vehicle used are capital goods for the service provider - credit rightly disallowed where claimant fails this test: CESTAT

++ Cus - Provisions of Foreign Trade Policy and those of Customs Notifications must be read in harmony with each other: CESTAT

++ CX - It is trite law that irrespective of availability of sale price to independent buyer, valuation of goods captively consumed must be based on cost construction method u/r 8 of Central Excise Valuation Rules 2000: CESTAT

June 15, 2020

++ ST - Department cannot act  as 'finders keepers' - Amount deposited by petitioner in 2006 to to be refunded along with interest @6%, @7.5% Cost imposed on Revenue of Rs.25000 for indulging in frivolous litigation: HC

++ ST - Activity of printing & sale of photobooks to photography studio or to individual photographers, is not taxable as Photography Service: CESTAT

++ ST - Whether, on the value of SIM cards, the appellant is required to pay service tax or not, was settled by Supreme Court - extended period of limitation is, therefore, not invokable: CESTAT

++ CX - Extended period of limitation cannot be invoked where Revenue is having divergent views in respect of the relevant issue at hand: CESTAT

++ Cus - Refund of SAD - Mis-match in the description of goods cannot be the reason to deny refund claim: CESTAT

June 13, 2020

++ ST - A service is taxable only when there is a service provider, recipient thereof & consideration for the service - it cannot be presumed that consideration is in-built & it is incumbent on Revenue to show consideration in quantifiable terms in order to levy service tax: CESTAT

++ ST - Where no SCN was issued to assessee proposing to deny CENVAT credit, then at time of refunding the credit, admissibility of credit cannot be questioned: CESTAT

++ CX - Items used for fabrication of capital goods and for support of various machines like crusher, kiln, hoopers etc., is eligible for credit: CESTAT

++ Cus - Lapse of assessee in not obtaining NOC before exporting Cisapride Monohydrate BP drug does not warrant confiscation of goods, where the same were already exported u/s 113 of Customs Act: CESTAT

June 12, 2020

++ ST - CENVAT - Insurance service provided by the Deposit Insurance and Credit Guarantee Corporation to the banks is an 'input service': CESTAT LB

++ CX - CENVAT - Prior to 01.04.2011, definition of 'input services' had a wide ambit as it included phrase 'activity relating to business' - Outdoor Catering, Rent for Car Parking, Subscription for Global Tender Information etc. are input services: CESTAT

++ ST - Recovery of interest u/s 11AB of CEA, 1944 & Section 73 of FA 1994 is not a consequence of demand raised u/s 11A of CEA 1944 or Section 75 of FA 1994 but is a consequence of delay in payment of tax: CESTAT

++ CX - CENVAT credit in respect of CR & HR sheets is allowed where they are found to have been used in fabrication work done in factory of production & where the capital goods so fabricated are further used in manufacture & clearance of taxable output goods: CESTAT

++ VAT - Assessment order cannot be revised where six years have elapsed since date of it being passed: HC

 

June 11, 2020

++ ST - 1295 Crore demand  set aside -  KIADB is a statutory body  performing statutory functions  and exercising statutory powers ; no service is being rendered so as to attract service tax: CESTAT

++ ST - Since 'know how' is not recognized as 'intellectual property right' under Indian law, no 'intellectual property right' service can be said to be provided: CESTAT

++ ST - No demand can be confirmed on the basis of an allegation not made in the SCN: CESTAT

++ ST - Amount received by assessee from its customers on account of delayed payment charges is not to be considered as provision of service & such amount is not includible in value of taxable service: CESTAT

++ CX - Credit is admissible on repair and maintenance services utilised for dismantling steel structural works, fabrications & erection of columns, trusses, monkey ladder etc.: CESTAT

++ CX - CENVAT - As situation is revenue neutral, penalty imposed is unjustified: CESTAT

++ Cus - In circumstances of declared classification, denial by customs authorities shifts burden on to them for justifying alternative classification and, in absence of valid reasons, declared classification is to be restored: CESTAT

June 10, 2020

++ TN VAT - Implanting of prosthetics into physiology or body of patient in course of medical/surgical procedure can be construed as 'Works Contract': HC

++ TN VAT - Since same activity/transaction appears to have been exempted under GST Regime from July 2017, petitioner may approach Govt. for suitable retrospective exemption: HC

++ TN VAT - There is not only transfer of possession but also ownership of such prosthetics by patient for consideration in course of provision of medical/health service: HC

++ TN VAT - Respondent Revenue shall exclude value of medicines and other consultation charges while determining taxable value - The demand shall be confirmed to value of prosthetics and charges incurred towards X-ray, C.T.Scan, PET Scan etc.: HC

++ GST - Construction service -  project launched in post-GST regime - no pre-GST tax rate or ITC structure which could be compared with post-GST tax rate and ITC -  respondent has neither benefited from additional ITC nor had there been any reduction in tax rate, therefore, it does not qualify to be a case of profiteering: NAA

++ Cus - Confirmation of demand solely based on statements recorded u/s 108 would require cross-examination by the petitioner of such persons: HC

++ Cus - Stand adopted by the Development Commissioner appears to be an attempt to delay the implementation of the Court's order and is in flagrant disregard of directions issued: HC

++ NDPS - It would be rather hazardous to draw an inference that the income tax search was a subterfuge - response of the I-T officers in taking over and keeping the suspicious substance, in the circumstances, cannot be clothed with the character of 'seizure', in the juristic sense: HC

++ ST - Refund claim - Once order is passed in favour, the appellant is not required to file a refund claim again - view taken by authorities is against the provisions of law: CESTAT

++ ST - Fact of sale and purchase of machinery has been side-lined and fact of installation is bloated to make it as though that is the only activity involved - s.66A has no role as installation carried out by supplier's branches in India: CESTAT

++ CX - It is settled position in law that where words of a statute are clear & unambiguous & from which only one meaning is inferred, courts are bound to give effect to such meaning irrespective of consequences - hence, assessee not entitled to CENVAT credit on capital goods installed in processing plant: CESTAT

++ CX - Scrap arising at jobworker's end - Requirement of principal manufacturer paying duty on Scrap existed only in erstwhile CER 57F(3) and there is no such provision in the subsequent CCR: CESTAT

++ Cus - It is an accepted principle that 'he who asserts must prove': CESTAT

June 09, 2020

++ 'Parota' is not Khakhra, plain chapatti or Roti, hence not covered under Entry no. 99A of Schedule I to 1/2017-CTR: AAR

++ GST - Provision of taking tests online at designated test centres are naturally bundled activities, principal supply being OIDAR service, hence such supply is classifiable as OIDAR service: AAR

++ GST - Since Type 3 test requires more than minimal human intervention in order to complete provision of service, it does not qualify as OIDAR service: AAR

++ Cus - Court cannot, while exercising power under Article 226, exercise judicial review in examining the veracity and genuinity of communications rejecting renewal of licence as the same are appealable under CBLR & s.129 of the Act: HC

++ Cus - Provisions of s.27 do not contemplate returning of refund claims - If at all the application is defective, it would only be an irregularity not illegality interest payable from date of filing refund application: HC

++ ST - Based on audit objection, appellant paid tax with interest - SCN issued after more than year - s.73(3) of FA, 1994 applies - no SCN should have been issued for penalty: CESTAT

++ ST - Credit has been availed on the alleged missing documents and utilized since October 2010 - SCN issued in April 2016 seeking to deny credit is barred by limitation: CESTAT

++ CX - Proceedings initiated on charges of clearing goods without issuing invoice are not sustainable, where based solely on third party evidence & if SCN is issued after 4-year gap: CESTAT

++ CX - Demand raised for reveral of CENVAT credit is sustained, where assessee availed credit on common inputs utilised, without maintaining separate accounts for inputs used in dutiable & exempted goods: CESTAT

++ Cus - Penalty u/s 77 of Customs Act is imposable only upon mis-declaration of any confiscable items items in passenger's baggage - penalty under such provision cannot be imposed for secreting Gold ornaments on passenger's person: CESTAT

June 08 , 2020

++ IGST is chargeable on ex-factory inter-state supplies: AAR

++ Ice cream Parlour falls within term 'eating joint' and hence supply of ice cream with or without service activities would fall within definition of 'Restaurant service': AAR

++ Sales Tax - State Govt Circular denying reimbursement of sales tax paid by contractors, is unsustainable, where it relies on perverse construction of plain contractual terms to enable the State to evade its obligation to sanction such reimbursement: SC LB

++ ST - Service tax can only be charged on the amount received for the services and not on the reimbursable expenses: CESTAT

++ ST - CENVAT - Lower authorities had not adverted to the submissions which were placed before them - matter remanded: CESTAT

++ CX - It is trite law that interest is payable on refund of duty pre-deposited before appeal to Tribunal - such interest be payable after three months till realisation of amount: CESTAT

++ Cus - Exemption as per Notfn No 43/2002-Cus cannot be denied solely because the assessee was initially unable to furnish EODC, but later made good on such lapse & where export obligation is fulfilled: CESTAT

June 06 , 2020

++ CX - Sulfuric Acid & lean gas emerging as by-product from manufacture of detergent, is not final product - provisions of Rules 57CC or 6 of CCR 2004 would not apply on such by-products: CESTAT

++ Cus - If there is no proposal in SCN to deny refund claim on a particular ground & which also is not considered by adjudicating authority, then consideration of such ground by Commr.(A) amounts to travelling beyond the SCN: CESTAT

June 05 , 2020

++ST - Discount offered on sale of vehicles by Indian company to holding company abroad, is adjustment of price of goods as per agreement between them & does not imply provision of any service - demand raised under BAS is not tenable: CESTAT

++ CX - Assessee is entitled to CENVAT credit in respect of EC & SHEC - nonetheless, Adjudicating Authority is at liberty to calculate credit amount as per formula prescribed u/r 3(7) of CCR 2004: CESTAT

++ CX - SCN alleging clearance of goods without issuing invoice & without payment of duty is unsustainable, where issued after passage of 4 years & if based solely on third party evidence: CESTAT

June 04 , 2020

++ CX - Delay in filing appeal is not attributable to the appellant but to his Counsel, hence condoned - matter remanded to Commr(A): CESTAT

++ CX - Clandestine removal - No demand can be sustained solely on the basis of privately maintained, third party records: CESTAT

++ ST - GTA service - no declaration is necessary for availing benefit of exemption Notfn No 13/2008-ST, as GTA service stands excluded from definition of output service w.e.f. 01.07.2012 & CENVAT credit cannot be availed by recipient of such service: CESTAT

June 03 , 2020

++ IGST - Section 105 of the Customs Act is widely worded and does not restrict the search only with regard to importer or exporter; other premises can also be searched: HC

++ GST - Imported Food processor - average tax incidence in pre-GST era of 29.80% reduced to 28% upon implementation of GST - benefit of tax rate reduction not passed by increasing basic price - Profiteering proved: NAA

++ CX - It is settled law that scrap & waste are intermediate goods not liable to duty - hence, value thereof cannot be made taxable in hands of job worker: CESTAT

++ CX - 214/86-CE - When the Department has issued registration to supplier of raw material, duty cannot be demanded from job worker on the ground that supplier does not have a factory: CESTAT

June 02 , 2020

++ Cus - Section 110A does not except its application in the case of 'prohibited' goods: HC

++ Cus - Goods, which are eligible for provisional release u/s 110A cannot be rendered ineligible by virtue of Circular 35/2017 -Cus - Para 2 is void: HC

++ Cus -Mere fact that imported goods, consequent on adjudication may be held liable to confiscation at a later stage, cannot be a ground to refuse provisional release, else, s. 110A would be rendered nugatory and otiose: HC

++ Cus - Complete disruption of service at Air Cargo Complex due to arrest of Customs officers - delay in processing transshipment application should not be at cost of petitioner: HC

++ Cus - Public notice No. 35/2015-2020 dated 26th September, 2019 has, in effect, amended Foreign Trade Policy, in excess of power and jurisdiction of DGFT - same is illegal, hence quashed and set aside: HC

++ NDPS - Once a challan is filed, application u/s 167(2) of Cr.P.C. for grant of bail does not survive for consideration or remain enforceable - completion of investigation is matter of fact and cannot be decided on oral submissions: HC

++ COFEPOSA - It is settled law that principle of constructive res judicata does not apply to petitions alleging violation of Article 21: HC

++ Cus - Alleged cause of action based only on apprehension does not make out case warranting interference under Article 226 of Constitution: HC

++ ST - Reimbursement of expenses is not in the nature of consideration for any services provided by appellant - not includible in gross value: CESTAT

++ Cus - SCN issued to Customs Broker u/s 124 of Customs Act is not superior to any other communication, such as offence report - proceedings initiated under CBLR are unsustainable where offence report issued was not acted upon within prescribed timelines: CESTAT

++ ST - Assessee received contract from Govt for setting up computerized facilities in RTO - assessee simply assisted a statutory body in discharging statutory functions & so cannot be said to have rendered BAS to the RTO: CESTAT

++ CX - CENVAT - Compensation paid to supplier of steam for shortfall in offtake - ST paid on debit note is Input service since expense is directly in relation to manufacture of final product: CESTAT

++ CX - In the absence of any explicit provision for allowing CENVAT Credit for abandoned projects from which no goods were ever manufactured, assessee is not entitled to credit: CESTAT

June 01 , 2020

++ ST - Not mentioning about penalty imposed in SVLDRS-1 form cannot be called mistake by which petitioner intended to claim undue benefit which they were otherwise not entitled - curable mistake - correction allowed: HC

++ GST - Provisional attachment of bank accounts - efficacious alternative remedy available u/r 159(5) of CGST Rules - petition to be treated as objection by respondent Commissioner and decision to be passed within three days: HC

++ ST - Benefit of VCES 2013 scheme was denied solely due to clerical errors in Form VCES-1 - The assessee already declared the tax dues & cannot be asked to do so again as it would violate provisions of FA 1994 & Article 265 of the Constitution: CESTAT

++ In de novo proceedings, penalties must be imposed as per statute - lower authorities must follow provisions of statute where it mandates imposing less penalty if duty & part of penalty are already deposited: CESTAT