TODAY'S CASE (INDIRECT TAX)

September 30, 2020

++ ST - In the absence of determination of tax dues, recourse to s.87 of the FA, 1994 would certainly be premature and cannot be justified - respondent directed to forthwith withdraw restraint on petitioner's bank account: HC

++ Cus - Seizure of goods is not an end in itself - It is a means to an end - The end is confiscation, if justified and warranted: HC

++ AAR should take due care to ensure that all submissions of applicant are dealt with properly and with reasons: AAAR

++ Dispute in interpretation of legal provisions of s.97(2)(e) of Act, 2017 is not an error apparent on record requiring rectification: AAAR

++ ITC not available in respect of GST borne on lift installation charges paid to lift contractor - Co-op Hsg. Socy. loses appeal

++ Cus - Recovery of gold from appellant has not been proved and hence he was not required to discharge the burden u/s 123 of Customs Act: CESTAT

++ CX - Refund claimed by assessee cannot be transferred to Consumer Welfare Fund where element of excess duty was borne by the assessee & was not transferred by it to other parties: CESTAT

++ ST - Sale of anti-virus software & updates thereof qualifies as sale of goods & will not attract levy of service tax under Information Technology Software Services: CESTAT

September 29, 2020

++ CX - Refund claim not decided even after 16 years - Revenue blames applicant for not enquiring or following up on claims - SCNs are very interesting to read as it exhibits complete non-application of mind: HC

++ GST - Bribe of Rs.12 lakhs per month paid to Mobile Wing of Taxation department to facilitate evasion - When personal liberty is pitted against a sovereign function, latter would prevail - Arrest is imperative for fair and full investigation: HC

++ GST - Presence of two taxable persons would clearly preclude impugned supplies from being considered as 'composite supply' - AAR order set aside: AAAR

++ Revenue in appeal contending AAR order [holding prize money received from horse racing as liable to GST @18%] is void ab initio - AAAR sets aside order by concluding that there is no supply

++ Investigation proceedings were initiated by DGGI under FA, 1994 and not under CGST Act, therefore, section 98(2) is not attracted: AAAR

++ It cannot be case that service is provided by all and consideration is received only by a few - Difficult to accept that horse owners have supplied a service to club by providing thoroughbred horses for organising races - Prize money will not be subject to GST in absence of any supply: AAAR

++ Only sale of land is outside purview of tax and it is clear that TDR is not land and, therefore, interpreting TDR as a service and, hence, taxable, does not seem to be an absurd conclusion: AAAR

++ GST - Communication only solicits certain particulars - No basis for apprehension to the effect that demands would be raised on this basis itself – Petitions dismissed: HC

++ ST - Trade discount given by Indian merchant exporter to buyer located abroad, in name of commission agent, is not treatable as commission paid for Commission Agent service - duty demanded thereon is unsustainable: CESTAT

++ ST - Even if services are provided within the country under instruction of services recipient located abroad, still the services will be considered as export under Export of Services Rules, 2005: CESTAT

++ Cus - Valuation - Comparative chart along with Bill of Entry showing contemporaneous imports submitted to AA but not considered - Matter remanded: CESTAT

++ Cus - O-i-O passed to change classification of exported goods & to raise duty demand with interest, is unsustainable where it is not a reasoned order & where exporter's request to cross examine Chemical Examiner concerned, is rejected: CESTAT

++ CX - Warehousing services and Third party inspection services are Input services, credit admissible: CESTAT

September 28, 2020

++ GST - Relying upon omitted definition as existed in FA, 1994, gaming zone operated by appellant in Mall held as services by way of admission to 'amusement facility', chargeable to GST @28%: AAAR

++ Advance Ruling Authority should have refrained from passing a ruling on the issue of export raised by the applicant: AAAR

++ GST - Direction to pay penalty and investigation with regard to other projects of petitioner as well as the notices and summons issued by DGAP are stayed: HC

++ SVLDRS - It is axiomatic that when a person is visited by adverse civil consequences, principles of natural justice like notice and hearing would have to be complied with - Non-compliance would impeach the decision making process rendering the decision invalid in law: HC

++ Cus - Declared value of imported goods cannot be enhanced based solely on data retrieved from hard discs & pen drives, where such data is collected without assessee's AR being present: CESTAT

++ ST - Manner in which Appellant was recording journal entry in its Books of Accounts, alone, in absence of any statutory violation, is not sufficient to conclude that there was a delay in payment of tax: CESTAT

++ CX - As per Section 9D of CEA 1944, statements which are subsequently retracted cannot be used as admissible evidence, more so without permitting cross examination of witnesses: CESTAT

++ ST - Not exercising option of rule 6(3A) of CCR is a minor procedural lapse, substantial benefit cannot be denied: CESTAT

September 26, 2020

++ ST - Amount received for covering up deficit in appellant's finances for a particular event was not relatable to any service - not liable to tax: CESTAT

++ Cus - Commr.(A) is not vested with power to condone delay in filing appeal beyond the 30-day extended period after lapse of 60-day limitation period: CESTAT

++ CX - Penalty not imposable where assessee avails CENVAT credit based on valid documents, being under bona fide belief that assessee is entitled to the same- fraud, collusion or wilful mis-statement is not attributable to assessee: CESTAT

++ Cus - Clerical mistake in exemption notification rectified after appellant had followed up with CBEC - No penalty imposable for late filing of bill of entry: CESTAT

++ CX - Factory located in remote location - residential township is not catered by Municipal Corporation, hence services outsourced by appellant for maintaining residential colony are Input services: CESTAT

++ Cus - Pepe Jeans Sunglasses - There are no reasons recorded for rejection of transaction value before taking the exercise of revaluation and enhancement of transaction value - order bad in law: CESTAT

September 25, 2020

++ Cus - Exemption from payment of Cost Recovery Charges - Conditions or performance benchmarks laid down in Exemption Circular 13/2009-Cus are required to be fulfilled simultaneously: HC

++ ST - That challans evidencing payment of service tax cannot be rejected solely on grounds that they did not bear legible bank seal - fresh duty demand raised is quashed: CESTAT

++ CX - It is fit case for remand where Revenue contravenes principles of natural justice by not considering documents furnished by assessee or it's contentions: CESTAT

++ Cus - Enhancement of value of imported goods is not sustainable where it is done is a routine manner & importer is compelled to accept the same to secure delivery of its goods: CESTAT

September 24, 2020

++ GST - If, at expiry of lease tenure, entire deposit or part of it is withheld and not paid back, as charge against damages etc., then such amounts not refunded will be liable to GST: AAR

++ GST - Renting of Immovable Property service - Notional interest on security deposit has to be considered as part of value of supply of service if it influences monthly rent: AAR

++ GST - Examination is an incomplete activity without assessment - Scanning of answer sheets and quantifying marks is main objective of examination process - activity of applicant is exempted: AAR

++ Cus - Onus rests with the Revenue to establish that valuation of imported goods was incorrect & it is not for the importer to prove otherwise: CESTAT

++ CX - Limitation period for filing refund application must strictly be followed - no relief can be allowed if assessee files refund claim after prescribed time period & the same is rejected on limitation: CESTAT

++ ST - When an amount deposited loses the character of service tax, it can only be treated as a deposit - such amount merits adjustment u/r 6(3) and becomes liable for refund: CESTAT

September 23, 2020

++ Cus - Notification 5/2019-Cus dt. 16.02.2019 imposing duty of 200% on all goods originating in or exported from Islamic Republic of Pakistan was uploaded on the e-Gazette at 20:46:58 hours - power of re-assessment u/s 17(4) could not have been exercised for self-assessments made earlier in the day - Revenue appeals dismissed: SC LB

++ GST - Bench cannot sit in appeal and postulate that decision of Council is not what they have unwaveringly held it to be: HC

++ GST - Response of Union Minister to query cannot prevail over decision of Council and also cannot form basis for impugning decision of Council or notification notifying tax rate: HC

++ VAT - Assessee cannot be relegated to invoke appellate remedy, where writ remedy is sought in contest of a non-speaking order which suffers from arbitrariness: HC

++ CX - Revenue cannot refuse to accept surrender of assessee-company's registration certificate where no enforceable dues are recoverable from the assessee: HC

++ Sales Tax - Tribunal upheld assessment order by considering a remand report only & without hearing the assessee - case remanded for passing fresh order: HC

++ ST - Refund claimed by assessee is hit by unjust enrichment where burden of duty was passed on by assessee to the service recipient: CESTAT

++ Cus - Assessee cannot challenge its own self-assessment before the Commr.(A) u/s 128 of Customs Act, since self assessment does not qualify as regular assessment: CESTAT

September 22, 2020

++ GST - If words 'input services' are read into Rule 89(5) then it becomes ultra vires Section 54(3)(ii): HC

++ GST - Un-amended Rule 89(5) exceeded scope of s.54(3)(ii) and extended benefit of refund to credit that accumulates both on account of rate of tax on 'inputs' and 'input services': HC

++ GST - Inverted Duty Structure - Refund - This is clearly in nature of benefit or concession and cannot be equated with refund claim for excessive taxes that were paid inadvertently: HC

++ GST - Parliament has used double negative in proviso to s.54(3) - Proviso performs larger function of limiting the entitlement of refund: HC

++ GST - VKC Footsteps decision disagreed as Gujarat High Court failed to take into consideration scope, function and impact of proviso to Section 54(3): HC

++ ST - SVLDRS, 2019 - Department is duty-bound to take a liberal approach in entertaining declarations under Scheme: HC

++ GST - Refund of ITC - Cryptic orders passed - ends of justice can be secured by remanding matter: HC

++ GST - Single Judge has only directed appellant to raise their grievance before Nodal Officer - no ground for interfering with this order: HC DB

++ Cus - Procedure for rejection of declared value u/r 12 of CVR is mandatory in nature - the mandate of Rules 4 to 9 must be satisfied sequentially before invoking provisions of Rule 12: CESTAT

++ ST - Even if receipts under Club & Association service, earned by a society registered under Societies Registration Act are treatable as its income, no service tax is leviable on such amount: CESTAT

++ Cus - It is a substantive right of the exporter to claim drawback; should not be denied on account of procedural irregularities: CESTAT

September 21, 2020

++ GST - Although value of watches was Rs.4.49 lakhs, supplier had given discount of almost entire amount but paid IGST on actual value - as discounted value is less than Rs.50 thousand, no requirement of e-way bill - detention unjustified: HC

++ GST - Supply of copies of seized documents would enable petitioner to carry out interpolations for reducing or depressing tax liability, therefore, discretion exercised u/s 67(5) by competent authority while withholding such supply is cogent and convincing: HC

++ VAT - Charges of assessee having wrongly procured Low Sulphur Heavy Stock Furnace Oil against Form C, are not tenable where such input is ultimately consumed in the assessee's declared activity of generating electricity: HC

++ CX - Revenue's doubts on genuineness of assessee's activities are misplaced, where assessee undoubtedly manufactured finished goods & cleared them on payment of duty & if no evidence proves clandestine receipt of inputs or illicit production of goods: CESTAT

++ Cus - Judicial indiscipline - Once assessment of identical products has already been decided by Commissioner(A) in favour of appellant, there is no justification in ordering importer to furnish 100% BG of differential duty: CESTAT

++ CX - MS Plates used as Steel Platform for fabrication of finished product is an Input - CENVAT Credit admissible: CESTAT

September 19, 2020

++ Cus - Smuggling of 4kg gold by foreign national - Offence registered is not related to 'passport' of petitioner, therefore, Judicial Magistrate rightly ordered return of same, with conditions: HC

++ GST - Petitioner challenges provisional attachment of bank account - Efficacious alternative remedy available under rule 159(5) of Rules, 2017: HC

++ GST - Deficiency memo - Petitioner challenges refund procedure in Rule 90(3) of the CGST Rules as being arbitrary, illegal and ultra vires - Matter listed: HC

++ ST - Activity of providing warehouse & other ancillary services, i.e. security, insurance provision of main power & weigh bridge operation, is covered under the Negative List vide Entry No 66D(v) - duty demand raised is unsustainable: CESTAT

++ CX - BIS specification - Tests conducted on Ethanol Blended Petrol at Vashi Terminal not accepted by department - Fresh tests conducted at refinery cannot be rejected by treating them as an afterthought: CESTAT

++ Cus - Confiscation of in-shell Walnut & denial of exemption under Notfn No 98/2009-Cus against import item of Dietary Fibre, is not sustainable, where report of technical lab confirming Walnuts as source of Dietary Fibre, is not considered during adjudication: CESTAT

++ CX - Appellants have led evidence that they have received inputs; paid for by cheque, manufactured finished products and cleared on payment of duty - grounds for denying credit are vague and untenable: CESTAT

September 18, 2020

++ DRI Officers are not Police Officers and, therefore, are not obliged in law to register FIR against person arrested in respect of an offence u/s 133 to 135 of Customs Act, 1962: HC

++ Since Customs/DRI Officers are not Police Officers, statements made to them are not inadmissible u/s 25 of Evidence Act: HC

++ Cus - Although imports were made from different customs locations, only Delhi SVB has issued SCN, therefore, there is no question of appointing any common adjudicating authority and keeping the proceedings in abeyance till then: HC

++ Cus - Non-implementation of appellate order strikes at the very root of administrative discipline - result will be undue harassment to assessees and chaos in administration of tax laws: HC

++ Cus - Even if any prayer is made, that cannot be a ground to compel the owner from accepting provisional release of goods with conditions despite there being an appellate order in his favour: HC

++ CX - Principal manufacturer is not liable to pay duty on waste & scrap generated by job worker in course of processing of goods sent by the former: CESTAT

++ CX - Refunds processed under Notfn 32/99 are also covered u/s 11B of CEA & upon attaining finality, parallel proceedings for recovery of alleged erroneous refund u/s 11A are not maintainable: CESTAT

++ ST - Appellants have rightly discharged service tax as recipient of service in terms of 2nd proviso to Rule 7 of the Point of Taxation Rules - Condition No. 3(f)(ii) of 40/2012-ST cannot be misconstrued to deny refund: CESTAT

++ ST - Refund - Rule 5 of CCR - While arriving at the value of total turnover, there is no requirement to include the amount of export invoices for which payment has not been received: CESTAT

September 17, 2020

++ CX - Revenue cannot be allowed to take a different stand at different point of time to suit their convenience and impose additional duty on Assessee: HC

++ CX - Assessee changed their valuation method based on advice of R/Supdt. - AA cannot turn tables on assessee and invoke extended period of limitation: HC

++ Cus - Assessment order cannot be said to have violated principles of natural justice, where sufficient opportunity to make representations, are offered to the assessee but are not availed of by the assessee: CESTAT

++ ST - Activity of liaison & follow up on behalf of power generation companies with collieries & railways, supervising, monitoring of loading of size & grade of coal & ensuring correct weighment thereof, is not taxable as Clearing and Forwarding services: CESTAT

++ CX - Where differential duty, on account of variation/enhancement in price is paid subsequently, interest element gets raised from the date when duty was required to be paid till the date when it was paid: CESTAT

++ ST - Penalty is not imposable on assessee where details of relevant transactions are recorded in the relevant record & none of the grounds for invoking extended period of limitation are applicable: CESTAT

++ CX - Oral statements have no evidentiary value against the documentary evidence available on record - Revenue is confused as while alleging clubbing of units, demands duty from them separately: CESTAT

September 16, 2020

++ GST - ITC - Bogus billing and generation of EWay bills without physical movement of goods to defraud Revenue - Provisional attachment of bank accounts cannot be termed harassment - No interference called for: HC

++ Water charges collected 'separately' from housing society members is exempt from GST vide Entry no. 99 of 2/2017-CTR: AAR

++ Endowment fund collected from member of housing society who is selling the 'site' is liable to 18% GST: AAR

++ Landfilling pit is not Plant and Machinery but Civil Structure: AAR

++ Fly Ash bricks and Fly Ash blocks are classifiable under Tariff Item 6815 9910 & 6815 9990 respectively; attracts GST @18% and 5% respectively: AAR

++ Sale of residential flats after date of receipt of completion certificate in respect of commercial shops in building is not an exempt supply: AAR

++ GST - Applicant is authorized to supply only the goods and services under brand name of 'ALOHA' - Hence, it is a supply on behalf of other taxable person - registration and payment of tax essential: AAR

++ Micro Manipulator used in IVF procedure is Surgical Microscope classifiable under Heading 9011; attracts GST @18%: AAR

++ VAT - AO is not obliged to initiate proceedings against assessee, based solely on reports or proposals of higher authorities such as Enforcement Wing or ISIC authorities & is empowered to deviate from such missives: HC

++ Cus - Passing of assessment order without permitting opportunity of cross examination, contravenes principles of natural justice - matter remanded: CESTAT

++ Cus - Suspension of Custom's Broker's license is unwarranted where such order is passed after passage of over a year after the alleged offence - such long gap raises doubt over urgency of such actions, more so if no justification is given for the same: CESTAT

++ CX - Penalty for two different offences, irrespective of the fact that they are arising out of the same transaction of acts cannot be called as double jeopardy: CESTAT

++ ST - Duty demand raised against a museum trust in respect of admission fee to a museum, is set aside, where such fee is exempt from tax as per Notfn No 9/2017-ST: CESTAT

++ ST - Service Tax under GTA service cannot be demanded where no consignment note has been issued: CESTAT

September 15, 2020

++ NDPS - It is always open to appellate court to re-appreciate evidence, on which order of acquittal is founded: SC LB

++ Revenue cannot object to appellant withdrawing any portion of appeal, provided appellant is not seeking any benefit from Court on account of withdrawal: SC

++ ST - Verification exercise undertaken by Supdt. HQ Prev. is not an integral part of adjudication process - Commissioner cannot delegate his adjudicating power to anyone - By furnishing a copy of report, department is not going to suffer any prejudice: HC

++ GST - Rejection of refund claim - As order is appealable u/s 107, Bench is not inclined to entertain petition ignoring statutory dispensation: HC

++ Cus - When the statute itself provides for provisional release of seized goods, merely on the ground that goods in question is a prohibited one cannot be the reason not to exercise statutory discretion conferred by s.110A: HC

++ Cus - Seizure & confiscation of Indian & Nepali currency is not maintainable u/s 121 of Customs Act, where no evidence goes to show that such currency is proceeds from sale of smuggled goods - no penalty is imposable as well: CESTAT

++ CX - It is trite law that any penalty not proposed in SCN cannot be imposed at time of adjudication - penalties imposed u/r 25 of CER 2002 and Section 114A of Customs Act are set aside, where these were not mentioned in the SCN: CESTAT

++ ST - Bund constructed is used for creating a water body used for extracting salt, therefore, same is excluded from definition of Site Formation service: CESTAT

++ CX - Where CENVAT credit is reversed for purpose of claiming refund, the reversed amount becomes admissible for re-credit where such refund is not sanctioned: CESTAT

++ ST - Agreements granting the right to sell goods using trade mark of another company cannot be taxed under IPR service, where such service is rendered prior to introduction of IPR service as a taxable entry: CESTAT

September 14, 2020

++ GST - Services provided at Nimba Nature Cure Village are accommodation services falling under Heading 9963 and chargeable to tax as per 11/2017-CTR: AAR

++ GST - 'Rhyzomyx' and 'Rhyzomyco' are classifiable under TI 3002 9030 and attract GST @12% - GOI Vikaspedia relied upon: AAR

++ GST - 'Maize Bran' attracts GST @5%: AAR

++ GST - Educational assessment examination (ASSET) with its variants provided by the applicant to school/educational organization is exempted: AAR

++ COFEPOSA - 8350 grams of gold has been brought during November 2018 to May 2019 by camouflaging same as accessories of garments and buckle rings of bags - Detenue demonstrably has the propensity to indulge in the same acts of smuggling, if not prevented by way of Detention Order: HC

++ Cus - When CBEC categorically admits that their Labs were not equipped to test Calcite powder till the year 2019, the reports of Kandla Customs Chemical Lab relied upon have to be discarded: CESTAT

++ ST - Assessee is eligible for exemption under Notfn No 25/2012-ST in respect of construction activity, where Residential Complex service was not provided for period prior to 01.07.2012: CESTAT

++ CX - It is trite law that subsequent reversal of MODVAT credit is to be considered as non-availment of such credit: CESTAT

++ ST - Duty demand raised contravenes principles of natural justice where assessee is not informed of the basis for computing of tax liability & Relied Upon Documents were not provided to it - matter remanded: CESTAT

++ ST - Representational right means a right available with the franchisee to represent the franchisor & where the franchisee loses its individual identity & is known only by the identity of the franchisor - such agreement is not to be considered as franchise service: CESTAT

September 12, 2020

++ GST is not applicable on the nominal amount recovered by Applicant from employees for usage of bus transportation facility: AAR

++ s.98(2) of Act, 2017 does not specify as to with whom issue pertaining to question raised has to be pending - DGSTI having initiated investigation prior to filing application, hence application seeking advance ruling is rejected: AAR

++ Since premises rented out to appellant by owner is non-residential premises, same continues to be non-residential when sub-leased by appellant - It is not of relevance whether employees of Sodexo use premises for residential purposes; taxable @18%: AAAR

++ Order passed by AAR after time period stipulated under statute does not render ruling null and void or unsustainable: AAAR

++ COFEPOSA - Court would not exercise discretionary jurisdiction in favour of person who is evading law: HC

++ COFEPOSA - It is act of deliberate abscondence which disentitles proposed detenue to seek quashing of Detention Order at pre-execution stage: HC

++Cus - Provision to freeze bank account was inserted in s.110 of Customs Act w.e.f 01.08.2019; therefore, order freezing current account of petitioner on 07.12.2018 was oppressive and without any sanction of law: HC

++ ST - Outdoor Catering service - CENVAT credit allowed on this input service, as it is has direct relation with output service, by ensuring that operations are not disrupted due to illness amongst personnel from eating spoilt food: CESTAT

++ Cus - Department cannot insist on assessee furnishing bank guarantee for release of detained goods, in absence of any contemporary import price of higher value or where basis for arriving at such bank guarantee is not discussed: CESTAT

++ CX - It is trite law that Rules are framed to facilitate the implementation of the Act & that the Rules cannot override the provisions of the Act: CESTAT

++ ST - It cannot be disputed that both in ;renting' and 'licensing', de facto possession of the thing is enjoyed - appellant has provided rent-a-cab service: CESTAT

++ CX - Iron Ores emerging as by-product during manufacture of Sponge Iron, cannot be deemed to be product arising from manufacture - no Excise duty is payable on such iron ore cleared without payment of duty: CESTAT

++ CX - Wind operated electricity generator as per Notfn No 06/2006-CE includes entire setup of tower, generator & blades, which combinedly lead to generation of wind energy - exemption under such Notfn is allowed on manufacture of ball or roller bearings utilised in such machinery: CESTAT

September 11, 2020

++ GST - Activity of providing auditing, accounting, taxation to Sardar Sarovar Narmada Nigam Ltd. is not exempted but liable to tax: AAR

++ GST - Sprayer Pump is classifiable under TI 8424 8100 and Stoves under TI 7321 8990 - GST rate is 12%: AAR

++ GST - Applicant is filling ATF fuel in aircraft before supply of rental services - Amount recovered as reimbursement (at actuals) by applicant is includible in value of services: AAR

++ GST - 11/2017-CTR - Even if value of Land is clearly ascertainable, actual cost of Land cannot be deducted for purpose of arriving at taxable value of supply: AAR

++ GST - Plastic Mechanical Liquid Dispenser imported from China is classifiable under CSH 3926.90; attracts GST @18%: AAR

++ GST - Circular Trading - Fraudulent ITC transfer of Rs.63.50 crores to 360 companies - Rejection of pre-arrest bail by Bombay High Court - SLP filed by applicant dismissed: SC LB

++ ST - In the COD application, only casual statements have been made without any details or supporting documents - application rejected: CESTAT

++ CX - Tanks manufactured in assessee's factory will classify as tanks & are taxable under CETH 73090090 of CETA even if such tanks leave the factory in unfinished state & some parts are finally attached at buyer's premises: CESTAT

++ ST - Promotion & marketing of loans & finance on behalf of banking & non-banking financial institutions is classifiable as BAS & service tax liability is payable thereon - duty demands upheld where assessee did not pay tax on incentives/commission received for such service: CESTAT

++ Cus - Quick lime is rightly classifiable under CH 2522 of the CTA as claimed by appellant and not under CH 2825: CESTAT

++ ST - Transportation of Goods through Pipelines/Conduit Services - Assessee a PSU, transported Oil in capacity of seller & not service provider - such activity is not taxable in absence of service provider-service recipient relationship: CESTAT

September 10, 2020

++ NDPS - Merely because ownership of vehicle is not established and/or vehicle is not recovered subsequently, trial is not vitiated since prosecution has been successful in proving recovery of contraband articles from accused on spot: SC LB

++ Bus pass is not an actionable claim - It is only an instrument accepted as consideration while purchasing service from appellant: AAAR

++ GST - Service supplied by CWC to Karnataka Food & Civil Supplies Corporation is Renting of Immovable property service & not Storage or Warehousing service; taxable @18%: AAAR

++ Subscription to J-Gate portal by educational institutions is eligible for exemption - 12/2017-CTR, Sr. 66 does not require that supply is made by one who owns or publishes journal: AAAR

++ GST - Sr. no. 23, 11/2017-CTR - Accommodation and transportation, both are 'must' elements for tour operator to be entitled to tax rate of 5%: AAR

++ ST - License fee received by Port trust through provision of licenses for performing certain functions within port area, is not taxable under Franchise Service: CESTAT

++ Cus - Exemption under Notfn No 92/2004-Cus cannot be denied to importer, where DGFT takes no action against the importer for wrongly availing benefit under SFIS scrip: CESTAT

++ ST - SCN itself was unnecessary and duty and interest having been paid voluntarily, Revenue cannot allege suppression - penalty cannot be sustained: CESTAT

++ Cus - It is well settled principle of interpretation that the terms of an exemption Notfn must be construed strictly: CESTAT

++ CX - Making a wrong claim of classification, per se, is neither fraud nor collusion nor wilful misstatement nor suppression of any facts & the same is insufficient grounds for invoking extended period of limitation: CESTAT

++ CX - If it is proven that assessee paid duty twice, once through CENVAT credit & again in cash along with interest, then assessee is well within its rights to take re-credit of the same: CESTAT

September 09, 2020

++ Cus - When order of confiscation is set aside, order of seizure cannot survive - Department holding on to goods is clearly without any authority of law and per se illegal - violative of Article 300A: HC

++ Cus - BIRD SCARE DEVICE is correctly classifiable under CTH 9303 9000 [Other firearms and similar devices] and not under CTH 8436 2900 as Poultry-keeping machinery: HC

++ ST - Payment of salary to expats, whether liable to be taxed post 1.7.2012 under reverse charge mechanism - Difference of Opinion - Matter referred to President: CESTAT

++ ST - Refund - Exemption restored - As contracts with the U.P. Government were inclusive of all taxes, provisions of unjust enrichment not attracted: CESTAT

++ CX - Assessee who is not output service provider & only is recipient of services, is not liable to pay tax under reverse charge mechanism & is also excluded from purview of Cenvat Credit Scheme: CESTAT

++ ST - Activity of loading of coal into Railway wagons for onward transportation to area outside the mines, will be liable for payment of service tax under "Cargo Handling Service": CESTAT

++ Cus - Revocation of Customs Broker's license for allegedly facilitating import of contraband drugs, is unsustainable where O-i-O does not satisfy tenets of Section 138B of Customs Act & where the police investigation finds no connivance on part of the broker: CESTAT

++ ST - Service of providing pick up & drop facility for elephant ride does not qualify as tour operator service - demand raised under such head is set aside, where assessee is recognized as luxury hotel & not as tour operator: CESTAT

++ Cus - Seizure of consignment of Betel nuts & Black Pepper is invalid where no evidence exists to prove their having been smuggled into India - Revenue cannot continue to detain such goods despite Conmr.(A) having ordered their release: CESTAT

September 08, 2020

++ Cus - Decision on renewal/extension has consequential effect of cancelling letter of approval; is in breach of s.16 of SEZ Act, 2005 - reasonable opportunity of being heard ought to have been given: HC

++ Cus - Once Joint Director General of Foreign Trade issues Export Obligation Discharge Certificate, he becomes 'functus officio'; cannot review his own order: HC

++ Cus - Department has clearly been remiss in not proceeding with enquiry and completing adjudication in time, missing the bus altogether - SCN dated 22.12.2011 quashed: HC

++ GST - Finalization of assessment on the same day when matter was listed for hearing would militate against the requirement of natural justice: HC

++ GST - s.83(2) - Provisional attachment order cannot outlive beyond one year - not issuing directions to bank reflects poorly on Revenue functioning - business environment impacted adversely: HC

++ GST - Filing of appeal and uploading of order are intertwined activities - Without the order being uploaded, petitioner could not file appeal electronically - manually filed appeal cannot be rejected on limitation: HC

++ CX - Grounds on which matter is decided by AA is entirely different from the case made out in SCN - matter remanded: CESTAT

++ Cus - CBLR 2013 - suspension of license is not tenable where hearing is conducted after date of passing of suspension order & where notice is not issued within 90 days of receipt of offence report: CESTAT

++ CX - MODVAT credit scheme - manufacturers are free to choose raw material to be used in manufacture process - Department cannot compel them to use a particular kind of raw material: CESTAT

++ ST - Merely because a portion of total premium amount is taxable would not render the other portion as 'exempt service' - no question of application of rule 6 of CCR: CESTAT

++ Cus - DFIA license - Actual user condition in FTP & which is reflected in corresponding Notfn issued u/s 25 of Customs Act 1962, will not extended to transferees of such license, unless provision to such effect is specified in policy or in notification: CESTAT

++ CX - MODVAT credit cannot be denied by Department where the relevant inputs have been utilised in manufacture & where the Department accepts payment of duty on such input goods: CESTAT

++ ST - Extended limitation cannot be invoked to raise duty demand where assessee, who provided Works Contract service to a Govt-run company, is under bona fide belief that service provided to Govt entity is not taxable: CESTAT

September 07, 2020

++ Cus - Section 25(4) is declared as arbitrary and contrary to Section 25(1) & (2A) of Customs Act, 1962: HC

++ Cus - Alhough there is an alternate remedy of appeal, same shall not be a bar to maintain WP, since there is a violation of procedure prescribed under statute and thereby, order itself is wholly without jurisdiction: HC

++ ST - Penalty is not imposable where assessee paid requisite service tax duty before issuing of SCN, in respect of license fee & commission income derived from discharging Business Auxiliary Service: CESTAT

++ Cus - Seat for motor vehicles is specifically included under heading 9401 i.e. Child Parts - such item imported by assessee is classifiable under CETH 9401 90 00 of Customs Tariff Act: CESTAT

++ CX - Appellant reversing CENVAT credit taken - since appeal is allowed, department to refund the amount in cash, in terms of s.142(5) of CGST Act, 2017: CESTAT

++ ST - Providing project & marketing service to recipient located abroad & for which consideration is received by service provider in convertible foreign exchange, qualifies as export of service - duty demand raised thereon under BAS is set aside: CESTAT

++ CX - Charges of clandestine removal are unsustainable, if raised without verifying relevant transactions & if no evidence goes to establish suppression of production, receipt of excess raw inputs or transport of finished goods: CESTAT

September 05, 2020

++ GST - Petitioner, SEZ unit, is entitled to claim refund of IGST lying in Electronic Credit Ledger as there is no specific supplier who can claim refund since ITC is distributed by ISD: HC

++ Form SVLDRS-1 - Voluntary disclosure of tax dues shown in clause 9.1 instead of clause 9.4 - It cannot be said that by making mistake, petitioner had claimed an undue benefit which they are, otherwise, not entitled - rejection of declaration improper: HC

++ GST - Onerous condition imposed by the Addl.Sessions Judge suffers from the vice of unreasonability and cannot stand the test of judicial scrutiny: HC

++ GST - It is settled principle that bail is the rule and jail is the exception and mere seriousness of the charge is not a factor to be taken into account while denying the valuable right of liberty: HC

++ CX - SVLDRS, 2019 - A declarant cannot be made ineligible to file a declaration for non-payment of redemption fine: HC

++ CX - Sabka Vishwas Scheme - Case involving confiscation / redemption fine cannot be excluded under the Scheme: HC

++ CX - Excise duty liability arises where goods reach stage of finished goods & are entered in RG-1 register - subsequent event of their being damaged in fire accident does not ipso facto extinguish the tax liability: CESTAT

++ Cus - 100% recycled polyester staple fibre is eligible for benefit under Notfn No 12/2012-CE, where CIPET report finds such item to be made out plastic waste/scrap/waste PET bottles flakes - CIPET report is to be considered as conclusive: CESTAT

++ CX - Valuation - Buyer's premises cannot be 'place of removal' and it has to be the seller's premises only even if place of delivery is buyer's premises - cost of transportation and transit insurance from factory to buyer's premises not includible in AV: CESTAT

++ ST - Where rent received from property rented out, is within the threshold limit of SSI exemption as per Notfn No 06/2005-ST, no service tax is payable on such amount: CESTAT

September 04, 2020

++ Profiteering - Contention that only Excise duty benefit which respondent had become entitled to post-GST is to be passed to buyers is untenable as s.171 refers to entire amount of additional ITC: NAA

++ CX - There is no provision in GST law which mandates that credits of Ed. Cess, S&HE Cess and KK Cess would lapse - cash refund allowed: CESTAT

++ CX - Credits earned were vested right - Merely by change of legislation, suddenly, appellants could not be put in position to lose their valuable right: CESTAT

++ GST - Service of any communication at e-mail address provided at time of registration as also by making available same on common portal, is to be treated as an effective communication: HC

++ Cus - CBLR 2013 - Regulation 11 does not require Customs Broker to physically verify registered premises of importer - verification of documents is sufficient: CESTAT

++ CX - It is trite law that penalty u/s 11AC of CEA 1944 can be imposed only where the mens rea or intent to avoid tax liability in full or in part, is attributed to assessee: CESTAT

++ CX - If assessee is entitled to credit on inputs, based on original invoices issued by supplier, then assessee can validly claim credit of additional duty paid on the same goods by supplier under supplementary invoices: CESTAT

++ CX - Duty demand raised on account of shortage of raw material & finished goods, is not sustainable, where such finished goods have not been manufactured by the assessee: CESTAT

++ ST - CENVAT credit is allowed on Insurance policy availed by employer to cover liability of paying compensation to employees, in event of any mishap: CESTAT

September 03, 2020

++ GST - Non-acceptance of returns - Portal can always be amended suitably, for the system is created by human beings and not vice-versa: HC

++ ST - Charges collected from farmers in exchange for helping them multiply seeds for agricultural purposes, are not taxable under Scientific or Technical Consultancy Service : CESTAT

++ Cus - Bill of Lading, a document of title, is key to ascertain who is owner of goods in international trade - seized goods be released to party named in B/L, irrespective of whether the goods are paid for or what is their end use: CESTAT

++ CX - All demands recoverable by issuing SCN u/s 11A of CEA 1944 will not mechanically be covered under Rule 8(3A) of CER 2002 - Moreover Rule 8(3A) already stands quashed, being ultra vires - demand raised u/r 8(3A) is set aside: CESTAT

++ ST - SCN need not be issued to assessee where duty demand & interest are deposited before issuing of SCN - proceedings are deemed to be concluded as per Section 73 of Finance Act 1994: CESTAT

September 02, 2020

++ Cus - Anti-dumping duty - Orders of High Court chastising Designated Authority and even directing his replacement are plainly erroneous: SC LB

++ Cus - Judicial review is to be exercised in a circumspect manner: SC LB

++ Supply of coaching provided to students along with hostel facility qualifies as composite supply - even if hostel charges are @Rs.250/- per day, GST liability would be as per principal supply: AAR

++ Supply of electricity and water are components of main supply, hence cannot be segregated or vivisected - they too are liable to GST @12%: AAR

++ Cus - Customs authorities are not concerned with civil claims which petitioner may have against foreign exporter: HC

++ Cus - To call amendment notification clarificatory or curative in nature, it would require that there had been an error/mistake/omission in the previous notification which is merely sought to be explained: SC

++ Cus - Since the cut flowers are non-excisable goods, the demand for payment of customs duty upon clearance in DTA had rightly been made against EOU: SC

++ Cus - Demand made in SCN 'treating' cut flowers as deemed to have been imported was only for purpose of quantification of customs duty on imported inputs and not imposition of customs duty on domestically grown cut flowers as such: SC

++ Cus - Provision was not an error that crept in but was intentionally introduced to determine the charging rate - That being the position prior to amendment, the amendment brought in cannot be said to be clarificatory in nature: SC

++ NDPS - Bail allowed to applicant on account of COVID-19 pandemic spread in jail premises & where applicant is found to suffer from various allergies: HC

++ ST - There is no scope to levy service tax on lease rentals, on account of absence of a valid machinery provision to such effect in the taxing statute: CESTAT

++ CX - Charges of clandestine removal must be established based on concrete evidence like purchase of excess inputs, transportation of illicit goods or their sale - such charges cannot be sustained based on documents found at third party's premises: CESTAT

++ ST - Service tax leviable only on that amount which represents consideration for provision of service - expenses which are re-imbursed are not taxable under Business Auxiliary Service: CESTAT 

++ ST - Charges received by hotel from its guests towards conversion of currency and the service entails rendering of service by assessee independently and not in capacity of an agent - such charges will not attract service tax: CESTAT

September 01, 2020

++ NDPS - View that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law: SC CB

++ NDPS - Merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias: SC CB

++ Cus - Smuggling of gold - Prayer to go to home town in Kyrgyz Republic on ground that spouse is suffering from COVID-19 - very nature of ailment makes it incumbent on sufferer to be away from other persons whilst in quarantine - prayer declined: HC

++ CX - Factor 'P' - 'Total Cenvat Credit' for the purpose of formula u/r 6(3) is only total Cenvat credit of common input service and will not include Cenvat credit on input/input service exclusively used for manufacture of dutiable goods: CESTAT

++ Cus - Import of Canadian Green Peas - writs challenging Notfn prohibiting its import are pending before Supreme Court - importer cannot seek relief from High Court for importing prohibited goods: HC

++ ST - By not paying Service Tax under reverse charge, the appellant would have lost something but gained nothing - Therefore, the intention to evade payment of service tax is lacking - demand hit by limitation: CESTAT

++ CX - CENVAT credit is not admissible in respect of transportation of goods where ownership of goods is transferred only at buyer's premises: CESTAT

++ ST Refund - Limitation Act is a General Act, whereas the- CEA, 1944 & Finance Act, 1994 are special Acts - It is former that will be applicable had the special Act been silent about any period of limitation: CESTAT