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Untitled Document

TODAY'S CASE (INDIRECT TAX)

Taxindiaonline.com



October 31, 2020

++ Tax rate reduced w.e.f January 2019 - Respondent reducing cinema ticket prices from 11.03.2019 and later increasing same from May 2019 which increase cannot be correlated to s.171 - Profiteering only during the period up to 10.03.2019: NAA

++ Sales figures of  BOGO Offer rolled out on World Sandwich Day excluded while arriving at the profiteered amount - in similar cases, DGAP had included the same, therefore, the present computation is an aberration and unacceptable - reinvestigation ordered: NAA

++ Cus - When Respondents had already issued licence and granted partial benefit under Target Plus Scheme, there cannot be any valid and justifiable reason for non-release of balance amount of benefit which has now become due: HC

++ Cus - Alleged non-submission of Bank Realization Certificate after receipt of remittance on successful completion of an export cannot be construed to be a government due: HC

++ Cus - Article 226 is not meant to short-circuit or circumvent statutory procedures - no acceptable explanation for not having resorted to alternative remedy provided in statute - Petition dismissed: HC

++ GST - Whole objective of digitization is to convenience taxpayers and not to harass them - merely because there were no technical glitches on GSTN side, transitioning of credit could not have been rejected by IT-GRC: HC

++ Methodology adopted is not in line with that adopted by the DGAP himself in similar cases of profiteering wherein average pre-rate reduction base prices have been compared with actual post rate reduction prices to compute profiteered amount - re-investigation ordered: NAA

++ CX - As the order was passed by the authorities below before issuance of s.11C notification, matter is remanded to determine applicability of the exemption notification: CESTAT  

++ Cus - 228-day delay in filing appeal is condoned where assessee's employee who was handling the matter, indulged in theft & left the assessee's employment without informing anybody, leading to disruption of normal functioning of the office - Cost of Rs 1 lakh imposed on assessee: CESTAT

October 30, 2020

++ Statement recorded u/s 67 cannot be used as a confessional statement in the trial of an offence under the NDPS Act: SC by Majority

++ Officers who are invested with powers u/s 53 of the NDPS Act are 'police officers' within the meaning of s.25 of the Evidence Act: SC by Majority

++ Cus - 200% Customs duty on imports from Pakistan not applicable as goods entered territory of India prior to the issuance/uploading of the notification 5/2019-Cus dt. 16.02.2019 at 8.45 pm: HC

++ Cus - Kerala gold smuggling case - Power of Customs Department to question applicant u/s 108 cannot be curtailed by granting anticipatory bail: HC

++ ST - Advertisement and Business Promotion, Bank Charges, Brokerage, Housekeeping Services, Insurance Service, Legal and Professional Service, Manpower Consultancy Service, Security services, Telephone & Internet Services are Input services; credit admissible: CESTAT

++ CX - Once the proportionate reversal of CENVAT credit takes place, it tantamounts to non-availing of credit: CESTAT

++ Cus - Ignorance of law and cooperation in investigation are mitigating factors & per se cannot take away the guilt of attempting to bring goods into India without payment of duty: CESTAT

October 29, 2020

++ ST - SVLDRS, 2019 - Summary rejection of an application without affording any opportunity of hearing to declarant would be in violation of the principles of natural justice: HC

++ Cus - To say that operative part of order was recorded and reasons/discussion and findings would come later is to put the cart in front of the horse rather than behind it - such approach by a quasi judicial authority is shocking: HC

++ GST - Profiteering - Respondent cannot deny benefit of ITC availed on taxes and cesses which he was not getting in the pre-GST regime on the ground that in view of the price cap under AHP, they could not increase the price: NAA

++ Penalty u/s 171(3A) of CGST Act cannot be applied retrospectively for the profiteering made during the period July 2017 to December 2018: NAA

++ IIT Madras Alumni Association is supplying 'services' and is liable to be registered under the CGST Act: AAR

++ ST - Refund - Tax paid erroneously although service exempted - Whether such payment is to be treated as 'deposit' so as to not attract limitation - difference in opinion: CESTAT

++ Cus - Red sanders falsely declared as detergent cakes - No corroborative evidence to pinpoint that appellant, a transport agent, had knowledge of illegal activities of exporter - Penalty cannot be imposed merely on basis of suspicion : CESTAT

October 28, 2020

++ GST - Evasion of tax - Reason to believe - Power to arrest u/s 69 can be invoked by the Commissioner without there being any adjudication: HC

++ High time that the GST department prescribes a standardized format for the arrest memo: HC

++ Applicant seeks a ruling on a supply to be received by it - in view of s.95(a) of the Act, said question cannot be taken up for consideration: AAR

++ Renewable energy certificate (REC), taxable under GST, is also an output of generation of electricity - proportionate claim of ITC admissible: AAR

++ Activity of body building undertaken on a truck chassis made available by a customer to the applicant amounts to supply of services: AAR

++ Services provided by applicant relating to testing of chemicals in fresh table grapes are not classifiable under SAC 9986 and is not exempt: AAR

++ Supply of cigarettes mentioned in the menu by the restaurant is a mixed supply and taxable @28% GST plus GST compensation cess: AAR

++ Printing of content provided by recipient on PVC materials and supply of printed trade advertising material is a supply of service, SAC 998912; attracting GST @18%/12%: AAR

++ Credit Card services imported by applicant is chargeable @18% IGST on reverse charge: AAR

++ Pre-mix popcorn maize packed with edible oil and salt is correctly classifiable under CTH 2008 and chargeable to GST @12%: AAR

++ Recipient of supply cannot seek advance ruling: AAR

++ Chennai Metro Rail acquired property for public purpose and gave the right to use pathway to the earlier owner to access main road - act of agreeing to grant easement rights for a consideration is a supply classifiable under SAC 999794; GST @18%: AAR

++ IGST Refund - Import under AA - Rule 96(10) - Insertion of Explanation - 54/2018-CT is effective from 23 October 2017 - Exporters who already claimed refund under second option need to payback IGST along with interest and avail ITC: HC

++ NDPS - 1.230 Kg of Charas recovered qualifies as commercial quantity as per Sec 20(ii)(c) of NDPS Act - conviction of accused upheld: SC

++ NDPS - Non-examination of independent witnesses would not ipso facto entitle one to seek acquittal - Compliance with Sec 50 need not be examined where accused possessed commercial quantity - conviction upheld: SC

++ NDPS - If the accused applies for bail u/s 167(2), CrPC r/w s.36A(4), NDPS Act upon expiry of 180 days or the extended period, as case may be, the Court must release him on bail forthwith without any unnecessary delay: SC LB

++ ST - When credit was reversed without utilization, no interest can be recovered: CESTAT

++ Cus - Supply to SEZ is be counted towards NFE - Since capital goods were supplied by appellant to SEZ unit duly approved by Development Commissioner, requirements of EXIM policy have been duly complied with: CESTAT

++ CX - Appellants are entitled for Cenvat credit in respect of inputs procured by themselves and used in manufacture of job work goods cleared under 214/86-CE: CESTAT

++ ST - Services rendered to SEZ units - 9/2009-ST issued u/s 93 of FA, 1994 has no application as they are not ‘prescribed' under SEZ Act: CESTAT

October 27, 2020

++ Revised E-way bill not uploaded on portal - goods and vehicle detained - same can be released on furnishing BG for the amount covered by the notice issued u/s 129(3): HC

++ Inadequacy of reasons or the correctness of reasons can always be effectively agitated in an appeal - Petitioner relegated to alternate remedy available: HC

++ GST - Department's interest is to be taken care of - as per s.107(6) of the Act, against a crystallised demand, assessee has to deposit 10% of disputed demand - SCN proceedings stayed subject to petitioner maintaining minimum of 10% of disputed ITC availment in electronic credit ledger: HC

++ ST - Since matter is settled under the SVLDRS, 2019, appeal dismissed as withdrawn: HC

++ Cus - Since permission granted for mutilation of imported goods, no live issue survives for adjudication: HC

++ Cus - Considerable discretion is vested on Licensing Authority with regard to grant or rejection of a licence under Ammonium Nitrate Rules - order refusing to grant a P5 licence needs no interference: HC

++ Cus - There is no reasoning given for adoption of revised values and the Rules under which the same is arrived at - This certainly amounts to violation of principles of natural justice: CESTAT

++ CX - Buyer's premises can never be the place of removal, therefore, freight charges from factory/depot/consignment agent up to the buyer's premises cannot be included in the assessable value, even if the goods are sold or delivered at the buyer's premises: CESTAT

++ ST - Objection of the Department that appellant has not debited the cenvat credit account before filing refund claim is not factually correct - ST-3 return clearly evidences the same: CESTAT

October 24, 2020

++ Cus - Case remanded for reconsideration where Adjudicating Authority passes contradictory order remanding the matter due to infringement of principles of natural justice, while concurrently enhancing value of the subject goods as per CVR 2007, without any reasons: CESTAT

++ CX - CENVAT credit of additional duty of customs paid on imported goods under Customs Notification 12/2012 dated March 17, 2012 is available for credit - Commissioner has mixed up rule 3(1)(i) and rule 3(1)(vii) of CCR: CESTAT

++ ST - OIDAR - Ad-hoc Exemption Order will be applicable even if the demand is in respect of imported services since the Appellant is deemed to be a service provider u/s 66A of FA, 1994: CESTAT

October 23, 2020

++ Cus - Interpretation, by Revenue, of phrase 'in existence' in s.149 to mean that only if documents relied upon by petitioner seeking amendment were, in fact, 'on record' that such amendment could even be considered is disagreed with: HC

++ Cus - Seizure of areca nut - 'Reasons to believe' must be based upon acceptable materials, which have to be more than a moonshine: HC

++ Cus - Betel Nuts - Reasons given for seizure fail the test of 'Wednesbury principles' as no reasonable person can reach a conclusion about country of origin upon examination by naked eye: HC

++ Cus - Penalty imposed on employee of CHA for alleged abetment of mis-declaration of imported goods, is unsustainable where such person was acting on orders & no collusion or abetment is established: CESTAT

++ CX - General insurance services only with respect to motor vehicles are covered under the exclusion part of the definition of input services - Marine insurance services for goods are Input services: CESTAT

++ ST - Mere reference to a paragraph in the SCN does not constitute a proper adjudication that devolves upon the original authority: CESTAT

October 22, 2020

++ GST - Profiteering - While the petitioner wants to pay, the State CWFs are neither operational nor functional - Strange : HC

++ GST - Anti-Profiteering - Directions of NAA to undertake further investigation with regard to other projects, notice and summons issued by respondent stayed: HC

++ Cus - Notification prohibiting export was uploaded digitally on 14.09.2020 at 22:28:11 hours - Export of onions in respect of shipping bills which were presented and generated prior to this date/time shall be allowed: HC

++ Cus - When the Court is in session of a matter, an administrative or executive authority cannot start parallel proceeding on very same subject matter at its own ipse dixit and record finding: HC

++ VAT - Orders directing recovery of duty from an assessee are unsustainable, where they are non speaking orders & contravene the principles of natural justice: HC

++ Cus - CBLR - It is established principle of law that mere facilitation without knowledge of consequences, would not amount to abetting an offence: CESTAT

++ CX - Only for the reason that M/s Vedanta paid duty amount much prior to issuance of SCN and without contesting went for settlement of their case, no adverse inference can be drawn so as to deny CENVAT credit availed by their consignee on supplementary invoices: CESTAT

++ ST - Insurance service provided to banks by Deposit Insurance Corporation, qualifies as input service - CENVAT credit can be availed of service tax paid by banks for such service provided to them in course of rendering output services: CESTAT

++ Cus - SCN has tripped upon itself in its haste to carry the impugned goods beyond the scope of eligibility of the exemption notification: CESTAT

October 21, 2020

++ Pure consultancy services (without supply of goods) provided to private individuals is taxable @18%: AAR

++ Patient does not have any choice of medicines - No ITC available on inward supplies of medicines that are used for providing exempted healthcare services to inpatients: AAR

++ ST - Refund - Findings should only be confined to ascertain whether requirement of Rule 5 of CCR has been complied with or not and establishment of nexus of services cannot be insisted upon: CESTAT

++ Cus - Department cannot reclassify the goods unilaterally on the basis of the examination report of officers alone and by ignoring pre-shipment inspection certificate: CESTAT

++ ST - Insurance service provided by Deposit Insurance and Credit Guarantee Corporation to banks is an "input service", CENVAT credit admissible: CESTAT

++ CX - Clandestine removal - Such charges cannot be sustained based on private records & must be established through clinching evidence - moreover, duty demand & penalty are unsustainable as assessee's request to cross examine relevant witnesses was denied: CESTAT

October 20, 2020

++ From frying pan to fire? - Service of street lighting is classifiable under heading 9991 12 and attracts GST @18%: AAAR

++ ROM order passed by AAR is not appealable u/s 100 of the CGST Act, 2017: AAAR

++ Rejection order on ROM application does not merge with the original advance ruling: AAAR

++ Printing is a service rendered by appellant to himself in order to execute the supply of trade advertising material - supply is of goods [SH 4911 10] attracting GST @12%: AAAR

++ VAT - Assessment order based entirely on proposals made by Enforcement Wing & ISIC authorities, is unsustainable, where it does not involve independent application of mind by AO: HC

++ Cus - Application for early hearing merits being allowed where the applicant seeks release of live consignment of goods & where applicant is required to produce certificate from BIS Authority for release of goods: CESTAT

++ CX - Rebate of duty paid on exported goods - As per proviso to Section 35B(1), the Tribunal is not vested with jurisdiction to hear cases pertaining to rebate of duty: CESTAT

++ ST - Club & Association service - CENVAT credit is allowed where such service is used to obtain conference halls & cabins at short notice, for conducting business meetings & where such input service has direct nexus with assessee's output service: CESTAT

October 19, 2020

++ Supreme Court of India cannot be a place for the governments to walk in when they choose, ignoring the period of limitation prescribed - Petition  dismissed as time barred; costs imposed on State for wasting judicial time - amount to be recovered from officers responsible: SC

++ Cus - Goods re-imported for repair and re-exported - Merely because Assessee could claim duty drawback later on and it may give rise to a revenue neutral situation, it cannot be said that period of one year prescribed in 158/95-Cus is without any meaning: HC

++ ST - Payment of mobilization advance is a separate financial transaction within contract for providing of service & so is not to be included in gross taxable value as per Section 67 of Finance Act 1994 - duty demand cannot be raised thereon when there is no allegation of any part of contracted value having evaded taxation: CESTAT

++ CX - It is settled position in law that an assessee is entitled to interest on delayed disbursal of refund after three months from date of filing of refund claim till date of its realisation: CESTAT

++ Cus - Drawback - After turning down request for taking test samples, Revenue cannot brush aside report given by an expert Committee simply for the reason that sample was not drawn and referred by Department: CESTAT

October 17 , 2020

++ Education Cess, SHE Cess and KKC were not subsumed in new GST laws, therefore, question of transitioning them into GST regime cannot arise: Division Bench HC

++ ST - Insurance service provided by the Deposit Insurance Corporation to banks is input service - CENVAT credit of service tax paid such service can be availed by banks: CESTAT

++ Cus - Delay of 212 days in filing appeal is condoned, where attributable to mix up of documents in the office of the assessee's counsel & where there is no deliberate delay on assessee's part: CESTAT

++ CX - Notfn. 33/99-CE - Refund - Limitation - Non-following of procedural requirement cannot deny the substantive benefit, otherwise available to the assessee: CESTAT

October 16 , 2020

++ Cus - Penalty - Bench is not inclined to interfere as no perversity is pointed out in the factual findings arrived at by both the lower authorities: HC

++ ST - Classification of services - Revenue in appeal against Tribunal order - Appeal lies before the Supreme Court, hence not maintainable: HC

++ Cus - Arrest of Customs officials at Chennai airport - Delay in allowing transshipment - since Single Judge remanded matter to Commissioner, question of payment of Demurrage for the said period of delay cannot be sustained for the time being: HC

++ ST - There is no requirement for an assessee to prove a direct nexus between input and output services for the purpose of claiming refund u/r 5 of CCR: CESTAT

++ CX - It is incumbent on Revenue to point out any discrepancy in books of account at time of audit - Assessee cannot be charged with suppression of facts with mala fide intent to evade paying duty, where Revenue did not raise any objection during relevant period: CESTAT

++ Cus - Mis-declaration - Importer had ordered Crystallised Glass Panel, but overseas seller erroneously shipped Agglomerated Marble - redemption fine & penalty upheld, albeit with reduced quantum, as importer failed to check cargo before presenting BoE: CESTAT

++ Cus - Alleged mis-declaration of value and description of goods for availing excess drawback amount - appellant sought amendment of SB and FOB value was redetermined and goods allowed for export - quantum of redemption fine and penalty reduced: CESTAT

October 15 , 2020

++ GST - Haldi milk with black pepper extracts is classifiable under HSN 0401 and exempt: AAR

++ GST - Supply of WCS to M/s Numaligarh Refinery Ltd. for the construction in Bangladesh of Siliguri - Parbatipur, Bangladesh oil pipeline is not an export as recipient of service is in India: AAR

++ Cus - Appellant has indirectly facilitated exporter in inflating FOB value for the purpose of wrongly claiming higher DEPB benefits - liberal view taken, penalty reduced: CESTAT

++ ST - Since the appellant is engaged in the business of asset management and portfolio management service, event management service availed by them for conducting training, meetings etc. is an input service: CESTAT

++ CX - Job work - As per scheme of CEA 1944, the principal manufacturer is not liable to pay Excise duty in respect of goods manufactured & cleared from job worker's premises: CESTAT

++ Cus - Refund of Mica Cess - Assessees reliance upon an Office Memorandum will not help it to override the legal position emanating from provisions of the Customs Act: CESTAT

October 14 , 2020

++ GST - Casual Taxable person - Due to pandemic, supply of services remained incomplete and registration extension could not be sought - respondent directed to grant two-week extension: HC

++ GST - Detention of goods in transit, by alleging misclassification, is unjustified - verification report ought to have been prepared and sent to assessing officer of petitioner: HC

++ ST - Fulfilment of obligation to contribute to the capital of the joint venture is beyond the scope of taxation under Finance Act, 1994 as it does not amount to consideration: CESTAT

++ CX - In view of the lack of evidence of physical dealing by appellant of the impugned goods allegedly removed without payment of duty, penalty is not imposable u/r 209A of CER, 1944: CESTAT

++ Cus - Classification - Split Air Conditioners are classifiable under CTH 84151010 of First Schedule to Customs Tariff Act 1975: CESTAT

++ ST - Penalty u/s 76 of Finance Act 1994 merits being set aside where assessee puts forth reasonable cause for late payment of service tax: CESTAT

++ Cus - General Rules of Interpretation preclude classification of goods under general residuary description, where conformity with specific description is not found to be incorrect: CESTAT

October 13 , 2020

++ GST - Pandemic sounds death knell for automobile dealers - Ten months installment facility granted to pay past tax liability/interest/late fee: HC

++ CX - Tribunal cannot take up exercise of re-appreciating the evidences and embark on an act of reviewing the decision under the guise of rectification of mistake: CESTAT

++ ST - In case settlement under SVLDRS, 2019 fails, assessee can file an application before Tribunal for restoration of their appeal: CESTAT

++ Cus - Delay of 4700 days in filing appeal is condoned where O-i-O being challenged is served at assessee's old address which is not in use & where certified copy of such order is served to assessee only after passage of many years: CESTAT

++ ST - Credit cards - 'Mark-up' charged by appellant is neither received nor billed in convertible foreign currency - claim of appellant that such amount is exempt from tax fails: CESTAT

++ CX - Property in the goods passed from the appellant to his buyer only at the port where they have obtained Let Export Order - services of CHA, CNF, testing and sampling etc. are Input services: CESTAT

October 12 , 2020

++ GST - Absence of reasons by an adjudicating authority in order passed by him would suggest a non-application of mind: HC

++ Processing of waste sand of foundry industry of Nil commercial value to reclaim sand and make it reusable - activity is not 'job work' but 'manufacture' - applicant is supplying goods and not services: AAR

++ No reason whatsoever seen as to why appellate mechanism contained in the statute should be dismantled and petitioner should be allowed to bypass the appeal route and approach Court directly in Writ petition: HC

++ Services of Renting of e-bikes and bicycles is correctly classifiable under SAC 9966 attracting GST @18%: AAR

++ Cus - Appellant was not provided with the Chartered Engineer certificate before adjudication of the dispute - principles of natural justice violated: CESTAT

++ ST - Refund - Rule 5 of CCR - Relevant date can be taken as the end of the quarter in which FIRC is received since the refund claim is filed for the quarter: CESTAT

++ Cus - There is no specific mention that s.4A CEA notification will have retrospective effect, therefore, same cannot be made applicable to imports before the date of notification: CESTAT

++ CX - Since the basic objective of availment of Cenvat credit is satisfied, it cannot be said that credit taken on the basis of supplementary invoice issued by the depot of the refinery was improper: CESTAT

++ ST - It is settled law that noticee cannot be denied an opportunity to rebut the grounds on which proceedings are initiated against them: CESTAT

October 10 , 2020

++ GST - s.50 of Act, 2017 - CBIC Administrative instruction dated 18.09.20 - Interest payable only on the cash component of the liability - grievance of petitioner no longer survives: HC

++ Cus - Extended period of limitation upto six months as per first proviso to s.110(2) stood extended by s.6 of the Ordinance till 29.09.2020 - SCN u/s 124(a) issued under such extended period is legal and proper: HC

++ CX - s.35D(3) of CEA, 1944 - Single Member Bench has jurisdiction to decide the issue of interest irrespective of monetary limit: CESTAT

++ ST - CENVAT - Employee life/health insurance, whether input service - In absence of ascertainment of actual use, it is difficult to address the issue in hand: CESTAT

++ Cus - Declared value of Aluminium Scrap Tread imported by appellant is rightly rejected, where correct information was not furnished in import documents: CESTAT

++ CX - Where goods are cleared to SEZ or a 100% EOUs, CENVAT credit is allowed on final products which are exported - restrictions under Rule 6(1) to 6(4) of CCR are inapplicable in such circumstances: CESTAT

October 09 , 2020

++ NDPS - Tampering of sample -  Since the seal as well as recovered contraband continued to be in possession with Custom Officers, possibility of same being opened and re-sealed cannot be ruled out: HC

++ GST - TRAN-1 - Instead of complying with innocuous order of Single Judge, appeal filed - Frivolous litigation, totally unnecessary and sheer wastage of time and money of State - Costs imposed on Revenue: HC

++ Cus - Department cannot take its own sweet time to file appeal and pursue the same - Petitioner is after all asking for his money - refund to be disbursed with interest: HC

++ CX - Judicial discipline - Scant respect towards binding precedents - Court expresses its disappointment on conduct of departmental authorities: HC

++ GST - Officials who get their salaries in the first week of every month may not be conscious of cost of delays - respondents may not be in hurry but common sense dictates that petitioner is allowed to do business - Provisional release ordered: HC

++ ST - In absence of any qualification for term 'railway' incorporated in exclusion component of taxable service, any railway (metro/monorail), irrespective of ownership, is covered: CESTAT

++ Cus - Expression of inability to verify compliance with provisions of exemption Notfn, does not take away benefit of exemption granted to importer at time of import, more so where the Revenue sought to examine records at a later date: CESTAT

++ Cus - Classification of imported Heavy Melting Scrap as favored by the Revenue is not tenable where such goods' testing & inspection has not been done by the Bureau of Indian Standards - mutilation of such goods is impermissible in absence of any rules framed for the same: CESTAT

October 08 , 2020

++ GST - In view of an order having been passed u/s 130, ownership of vehicle now stands vested with State Government and if petitioner seeks its release, same can be permitted only if tax, penalty and redemption fine is paid: HC

++ GST - SCN is as vague as possible and to such SCN no response can be given by any assessee - SCN and order arising therefrom quashed: HC

++ CX - Once penalty is imposed on the entity, there is no scope for imposing penalty on the proprietor or partner separately: CESTAT

++ ST - Service Tax notifications are procedural in nature & cannot override provisions of SEZ Act 2005: CESTAT

++ Cus - Refund of differential duty paid under protest cannot be allowed where claimant does not fulfil conditions of unjust enrichment by failing to prove that incidence of excess duty paid was not passed on to other parties or was borne solely by it: CESTAT

October 07 , 2020

++ VAT - Assessment order based solely on reports of Enforcement Wing & ISIC officials warrants being quashed, where it does not involve independent application of mind on part of the AO: HC

++ ST - Where assessee birfurcated contract as Event Management Service & hiring of goods to carry out such service, it cannot be concluded that charges paid for use of goods are excluded from ambit of Event Management Services: CESTAT

++ CX - Outdoor Catering service - CENVAT credit allowed thereon where such service ensures proper working conditions for employees & reduces loss of man hours: CESTAT

++ Cus - Undervaluation - Penalty imposed on CHA u/s 114 of Customs Act is unsustainable where CHA was not present at time of stuffing of container for shipping & where CHA is not guilty of any act of ommission or commission as per Section 113: CESTAT

October 06 , 2020

++ ST - Tribunal is bound to follow decision of the Coordinate Bench, whether it is situated in the same region or any other region on the similar facts - Tribunal has committed a breach of judicial propriety: HC

++ Cus - 'Non-pareil seeds 40-60 Mesh Sugar sphere' (pharmaceutical grade) is correctly classifiable under CTH 1701 9990: CESTAT

++ Cus - Date of shipment is relevant for compliance of import licence conditions and not the date of import: CESTAT

++ ST - Appellant entered into secondment agreement with its parent company for deployment of company personnel in their factory - expenditure incurred towards payment of salary is not taxable under RCM as Manpower supply service: CESTAT

++ Cus - IGST paid by importer is not to be included while determining quantum of bank guarantee payable for securing release of confiscated goods: CESTAT

++ CX - Opinion of the Ministry of Finance rendered through Audit Reports is not conclusive & is also not a statement of law - hence it is not a binding judicial precedent: CESTAT

++ CX - Benefit of Cum Duty price is available to assessee only if it is shown that the price taken for computing assessable value & duty demand, includes Excise duty & cess: CESTAT

++ ST - Service of providing non-binding investment advisory service is classifiable under Management, Business Consultancy Services - As service recipient is located outside India, such activity qualifies as export of service & no tax is leviable thereon: CESTAT

++ It is settled position in law that reimbursable expenses are not to be included in the gross taxable value of the service: CESTAT

October 05 , 2020

++ GST - SCN is such that no response can be given by 'any' assessee - SCN is as vague as possible and does not refer to any particular fact so as to enable noticee to give his reply - SCN and consequent order is quashed: HC

++ Parota fluffed - It is trite law that when one comes for justice, one should come with clean hands - Applicant guilty of having not revealed the fact of an investigation pending against them by DGGI, Chennai Zonal Unit - AAR order void ab initio : AAAR

++ Words 'any proceeding' in proviso to s.98(2) of the CGST Act, 2017 will encompass within its fold investigation launched by the agencies: AAAR

++ An objection regarding jurisdiction can be raised at any time even in appeal proceedings and the mere fact that no objection was taken before the lower authority would not by itself bestow jurisdiction to the said authority: AAAR

++ CX - Extended period of limitation cannot be invoked where the adjudicating authorities have divergent views in respect of the issue at hand: CESTAT

++ Cus - Rejection of transaction value of imported goods is unsustainable, where the Revenue does not call for additional information & documents from the importer - nonetheless, confiscation is upheld due to subject goods being restricted for import: CESTAT

++ ST - Support Service of Business or Commerce covers only that service which is of supporting nature to main business & does not cover service of renting of machinery & equipment for production or manufacture which is activity relating to conduct of main business: CESTAT

October 03 , 2020

++ Cus - Proceedings under CrPC and those under Customs Act, 1962 are on a different footing - standard of proof in a criminal proceeding is proof beyond doubt whereas in adjudication proceedings, it is preponderance of probability: CESTAT

++ Cus - It is not brought out as to why DRI was particularly interested in fixing the appellant - no personal enmity is also alleged towards appellant, who was a senior officer of department: CESTAT

++ Cus - Considering the lengthy legal proceedings and the investment made by appellant (then AC) in smuggling of red sanders, penalty reduced from Rs.2 crores to Rs.25 lakhs: CESTAT

++ Cus - Certificate of Origin cannot be rejected solely due to minor discrepancies therein & such anomaly can be ignored - concessional tariff under Notfn No 96/2008-Cus allowed where appellant produces rectified certificate of origin: CESTAT

++ ST - Assessee provided construction service to Govt-run entity & also supplied material in the process - such service qualifies as Works Contract & is taxable as such - duty demanded under Commercial or Industrial Construction Service is unsustainable: CESTAT

++ CX - Clandestine removal - onus rests on Department to prove manufacture & clearance of illicit goods - such charges do not sustain in absence of any investigation or corroborative evidence - penalty is set aside as well: CESTAT

October 01 , 2020

++ GST - Petitioner wants to get the best of both worlds - such an exercise is not permissible - exemption from requirement of paying interest and penalty while availing the option of payment of tax u/s 74(5) for the purposes of avoiding SCN cannot be accepted: HC

++ Cus - Well settled principle is that the Courts should not issue writs that are futile in nature: HC

++ Cus - Section 108 of the Act does not provide for attachment of any bank account: HC

++ Cus - Section 110(5) speaks of provisional attachment - Provisional means 'temporary or conditional', therefore, statute has provided a definite time line beyond which the attachment becomes bad in law: HC

++ Cus - Being a coercive provision, sub-section (5) to Section 110 can only have prospective operation from 1 st August 2019 - freezing of bank account in March 2019 is without any authority of law: HC

++ Cus - In the absence of any conviction in any criminal case, referring to any person as a hardened criminal that too in a sworn affidavit filed before the Court is not proper: HC

++ C&F Agent service - Where reimbursement of expenses received in respect of different charges is not in relation to provision of taxable service, such reimbursed amounts are not to be included in gross value for payment of service tax: CESTAT

++ CX - Where assessee complies with provisions of section 35F of CEA, 1944, it would be appropriate for Revenue authorities concerned to hear the appeal without insisting on pre-deposit: CESTAT

++ Cus - Any finding given by Adjudicating Authority on the issue which was not raised in SCN has no meaning and the same will stand nullified: CESTAT

AR not Afar by SK Rahman

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