TODAY'S CASE (INDIRECT TAX)

December 31, 2021

++ Cus - Adequate and ample opportunity has been given to petitioner but the petitioner has not come forward to pursue the matter, petition is dismissed for default/non-prosecution: HC

++ ST - Even though the invoice is in name of Mumbai address at the time of receipt of capital goods but subsequently when they had taken registration at Surat obviously the same document will be used for taking remaining amount of 50% of credit

++ VAT - Dealer will have to establish as matter of fact and fact so established in sequential way corresponds to HSN Code described in Customs Tariff Act, 1975: HC

++ GST - Since the petitioner's representations have not evoked any response from respondents, same are directed to consider the representations of petitioner and pass appropriate orders: HC

++ GST - Services of supplying, operating and maintaining air-conditioned electrically operated buses is classifiable under TH 9966 and rate of tax is 12% (with ITC) or 5% (without ITC): AAR

++ GST - Dried and Polished Turmeric is not an 'Agriculture Produce' - classifiable under HSN 0910 30 20 and taxable @5%: AAR

++ GST - Services rendered by Applicant as a Commission Agent (in relation to supply of 'Turmeric') in APMC is taxable and not exempt in terms of Sl. No. 54 of 12/2017-CTR r/w Sl. No. 24 of 11/2017-CTR: AAR

++ GST - 'Rava Idli Mix' merits classification under HSN 2106 [and not under HSN 1106] and attracts 18% GST: AAR

++ GST - Vouchers [gift/cashback/electronic] traded by the Appellant are 'goods' and not actionable claims - Rate of tax is 18%: AAAR

December 30, 2021

++ GST - Having decided to pass an adverse order, it was incumbent on the part of the respondents to call upon the petitioner for a personal hearing: HC

++ VAT - Composite orders passed for different periods are not sustainable where law requires passing of independent orders & where assessee's replies are not considered: HC

++ GST - Address of premises used by another person to commit ITC fraud -  Petitioner,  a Cost Management Accountant,  in custody since January 2021 - Bail granted: HC

++ ST - Since GST regime has done away with ST 3 return, no provision remain in GST system to reflect refund claim in CENVAT credit balance, only option was to show its reversal in Books of accounts and such reversal still amounts to non availment of Credit and refund whereof remains eligible: CESTAT

++ Cus - The product Reformate would merit classification under Tariff Item 2707 50 00 of Customs Tariff Act, 1975 and not under Tariff Item 2710 12 19: CESTAT

December 29, 2021

++ GST is not applicable on payment of notice pay by an employee to the employer - Madras HC ruling in  GE T & D India Ltd. squarely applicable - no change in position of law after introduction of GST: AAAR

++ GST is  not applicable on the collection of employees' portion of amount towards foodstuff  supplied by Canteen Service Provider -  appellant is not  making any profit but only working as mediator:  AAAR

++ GST - Puff insulated ice boxes (used by fishermen) are classifiable under CTH 3923 and attract tax @18%: AAR

++ GST - Rice cannot be treated as an 'agricultural produce' - Commission agent services for sale or purchase of rice, branded or unbranded, is not exempted - chargeable to tax @18%: AAR

++ GST - Accommodation service provided by applicant is exempted as the declared tariff of a unit of accommodation is below one thousand rupees, however, supply of food attracts tax @ 5%: AAR

++ Cus - Any assessment including self-assessment needs to be appealed against and in absence of such an appeal and consequential re-assessment, no refund can be sanctioned:CESTAT

++ ST - When service tax is paid by mistake, the claim for refund cannot be barred by limitation: CESTAT

++ CX - Appellant has complied with all provisions of Rule 6 of CCR, 2004, entire Cenvat credit of appellant stood reversed and adjudicated vide O-I-O which had attained finality as no appeal against the same had been preferred by Department: CESTAT

++ CX - The adjudicating authority has grossly violated the principles of natural justice by not providing documents as requested by appellant and also not giving effective hearing to appellants: CESTAT

December 28, 2021

++ GST - Contention that petitioner had indulged in similar commission of offence after release on bail is without any evidence as investigation is still in progress - Order of CMM setting aside bail is set aside: HC

++ GST - Petitioner had flouted the order of CMM to surrender by contending that their petition is pending - As there was no stay of the order of CMM, costs imposed of Rs.1 lakh to be deposited with the Legal Services Committee: HC

++ Cus - The importer having paid duty on declared value and having accepted to pay entire differential duty, condition to furnish Bank Guarantee equivalent to 30% of value of goods is waived

++ CX - Issue of limitation raised in Appeal has no direct or proximate relationship to the rate of duty and value of goods for purposes of assessment - Appeal maintainable before High Court: Larger Bench

++ Cus - COVID-19 fallout - Petitioner filed a new BoE as the old BoE got purged and was erased in ICEGATE - Imposing late fee charges unjustified: HC

December 27, 2021

++ Cus - s.130 of the Act - Whether the vessel is a foreign-going vessel or not - Issue not in exception category - appeal maintainable: HC

++ Cus - It is well known that when a statute directs that things be done in a certain way, it must be done in that way alone - ADG, DRI could not have issued the SCN that is required to be issued by Appraising Officer, ACC: HC

++ Cus - Petitioners' intent was to frustrate adjudication process - Proper officers have an obligation to determine the amount of duty within stipulated period of time else SCNs would have been rendered as null and void: HC

++ CX - It is well settled that when a statute confers a right of appeal, while granting such right, the legislature can impose conditions for exercise of such right, so long as the conditions are not so onerous as to amount to unreasonable restrictions: HC

++ GST - CNG Dispenser is classifiable under HSN 8413 and not HSN 9032 - Attracts GST @28%: AAR

++ GST - Tax paid on Motor cars registered as public vehicle with RTO to transport passengers, provided to different customers on lease or rent or hire will not be available as ITC: AAR

++GST - Services provided by applicant under vocational training courses recognized by National Council for Vocational Training or State Council of Vocational Training are exempt: AAR

December 24, 2021

++ Cus - Section 451 Cr.P.C cannot be invoked for disposal of the goods confiscated under the Customs Act: HC

++ NDPS - Bail - Where an undertrial accused has been charged with offence(s) under NDPS Act which is punishable with minimum imprisonment of ten years, then such an undertrial is to be released if he has been in jail for not less than five years: HC

++ Cus - Since petitioner has challenged the order by filing appeal and in any case such order is not available on record, court do not go into petitioner's first prayer for deleting the name from denied entity list and leave it to the petitioner to pursue the appeal: HC

++ GST - Writs cannot be entertained as petitioner has efficacious alternative remedy before competent authority by filing objections under Rule 159(5) of CGST Rules, 2017 : HC

++ ST - Since availment of credit has not been questioned by department in terms of Rule 14 ibid, refund benefit cannot be denied on the ground of non-establishment of nexus between input and output services: CESTAT

++ Cus - Amendment of free shipping bills to drawback shipping bills is allowed where it is established that failure to failed to comply with provisions of Rule 13 of Drawback Rules, 2017 was due to reasons beyond applicant's control: CESTAT

December 23, 2021

++ Cus - There is no need to challenge the assessment of bill of entry as Section 9A(2)(b) itself has provision for refund in case of Anti-Dumping Duty : CESTAT

++ ST - Though credit is not available as Input Tax Credit under GST law, credit under erstwhile Cenvat Credit Rules is eligible to assessee - Such credit has to be processed under Section 142(3) of GST Act, 2017 and refunded in cash to assessee : CESTAT

++ CX - Accounting practice adopted by appellant allows to avail credit only after making payments to vendors which has made it impossible to carry forward the credit as set out in GST law, when credit is eligible, same cannot be denied by stating procedural requirements : CESTAT

December 22, 2021

++ Service Matter - Not obtaining approval at time of issuing charge memorandum renders such memorandum to be functionally defective & which cannot be validated retrospectively: SC

++ ST - As per settled law, penalty u/s 73(3) of Finance Act 1994 is not imposable where tax with interest is paid before issuance of SCN, except in cases of suppression or wilful mis-statement: CESTAT

++ CX - Appeal filed before Commissioner (Appeals) along with pre-deposit, demand amount of said case could not have been adjusted against sanctioned refund, therefore, refund ought to have been paid on the date of sanction itself : CESTAT

++ CX - In case of non-dutiable goods or exempted goods, even though export was not made under bond, benefit of Rule 6(6)(v) of Cenvat Credit Rules, 2004 cannot be denied and consequently, Rule 6(3)(b) is not attracted: CESTAT

December 21, 2021

++ GST - Cancellation of registration is not tenable where neither reason is given nor notice is served: HC

++ Service Matter - Re-agitation of issue settled by CAT cannot be sustained where limitation provided in Section 21 & 27 of Administrative Tribunal Act, 1985 is exceeded: HC

++ CX - Duty demand - Mere suppression or mis-statement of facts, if not wilful, would not be a sufficient ground to invoke extended period of limitation: HC

++ Cus - Merits of refund claim would require a proper determination on facts and, therefore, the second respondent was required to issue proper SCN - communication is not an order: HC

++ GST - Renting of immovable property - Insufficient material on record - Authority is unable to conclude whether services are entitled for exemption in terms of 12/2017-CTR: AAR

++ GST - Execution of Mumbai Trans Harbour Link project by MMRDA - Mumbai Port Trust has agreed to transfer certain land and water areas belonging to itself by way of long term lease - Payments received from MMRDA is exempted: AAR

December 20, 2021

++ GST - If all the purchases and transactions in question are genuine and supported by valid documents and transactions in question were made before cancellation of registration of suppliers, petitioners shall be given the benefit of input tax credit in question: HC

++ CX - Whenever any amount is paid during investigation it is 'deposit made under protest' and cannot be called as 'duty paid under protest' and once the demand stands set aside, Revenue cannot retain the amount of deposit towards proposal of duty demand: CESTAT

++ ST - As per explanation clause appended to sub-rule (4) of Rule 3 of CCR, 2004, w.e.f. 01.07.2012, Cenvat credit cannot be used for payment of service tax by recipient under RCM : CESTAT

December 18, 2021

++ GST -  There is absence of any mention in s.26 of the SEZ Act, 2005 to provide for IGST/CGST/SGST/ exemptions -  Applicant is, therefore, required to pay IGST under reverse charge on procurement of renting of immovable property services from SEEPZ : AAR

++ GST - Surface coating on new goods received from tool manufacturers is 'job work' (SAC 998898) and attracts tax @12% but when carried out on old/worn out/used goods received from end users is 'repairs' (SAC 998729) and is chargeable @18%: AAR

December 17, 2021

++ GST - Club and members are two distinct persons - Principle of mutuality has no application after the amendment to s.7 of the Act, 2017: AAR

++ GST - Concretisation of Roads - Tax rate to be charged by sub-contractor to main contractor is 12%: AAR

++ GST - Business or advancement of religion - Entry 13 of Notification No. 12/2017-CTR specifically deals with renting out of religious precincts - Supply is taxable if room rent per day is Rs. 1000/- or more and if shop/stall rent is Rs. 10,000/- or more per month: AAR

++ GST - Land filling pit is a civil structure, not a plant or machinery - Such civil structure is clearly excluded from the definition of 'plant and machinery' - not eligible for ITC: AAAR

++ Cus - When the order has attained finality before Apex court, appellant cannot reopen the merit of case again before this court: HC

++ CX - Since the documents are correctly bearing all the information required, therefore, cenvat documents are in confirmation to Rule 4A read with Rule 9 of CCR, 2004: CESTAT

++ CX - The amended Notification whereby the refund was restricted to 75% is valid and legal, therefore, appellant is entitled for refund in respect of Basic Excise Duty only to the extent of percentage prescribed therein and not for the full amount of duty paid from PLA: CESTAT

++ ST - Adjudicating Authority is duty bound to give clear clarification on working of differential service tax with support of necessary documents such as bank statement/ ledger and ST-3 return, matter remanded : CESTAT

December 16, 2021

++ ST - As availment of CENVAT u/r 3 of CCR is not called in question, denial to grant refund u/r 5 without there being any proceedings initiated u/r 14 cannot be held to be justified: HC

++ ST - In case of any cultural or sporting event and/or services related to such event, shall be the 'place' where the event is actually held, since the event was held outside India appellant was not liable to pay service tax: CESTAT

December 15, 2021

++ GST - Transportation of pax service through ECOM operator - Delhi HC orders listing of matter : HC

++ Cus- Officers in dock - The question 'whether refraining from imposition of penalty is valid and legal' is de hors fiscal limits and is pure question of law- Monetary limits laid down in Board Circular inapplicable: HC

++ ST - COVID induced lockdown - Business folded up and hence payment of dues could not be made by deadline - Court is unable to come to petitioner's rescue as SVLDRS is a time bound scheme - Approach CBIC for relaxation: HC

++ GST - Dues of Rs. 43.50 Crores allowed to be paid in 24 equal monthly instalments along with interest on reducing balance - ITC adjustment against last instalment - Order cancelling registration will stand annulled on payment of first instalment: HC

++ GST - SCN merely articulates the case of respondent - There is no pre-determination of tax liability - Reply to be filed and matter decided within a fortnight: HC

++ GST - Refund u/s 77 is also available when the inter-State or intra-State supply made by a taxpayer is subsequently found by taxpayer himself as intra-State and inter-State respectively: HC

December 14, 2021

++ NDPS - Sex Tablets (in large numbers) seized by DRI admittedly contain herbs/medicines meant to enhance male potency and they do not attract the provisions of NDPS Act: SC

++ NDPS - Chemical Examiner report in footnote states 'quantitative analysis of the samples could not be carried out for want of facilities' - In the absence of any clarity, prosecution cannot be heard to state that psychotropic substances have been found: SC

++ Cus - Penalty imposed u/s 112(a) is upheld where appellant is found to have indulged in collusion, forgery & concoction of documents including presenting & filing false invoices with intent to evade payment of duty: CESTAT

++ CVD levied to counter balance Excise component & to protect indigenous manufacturers - CVD seeks to level playing field & is not tax collection activity: CESTAT

December 11, 2021

++ CX - There is no right, procedurally or substantively or in compliance with natural justice and fair play, to make available witnesses whose statements were recorded, for cross-examination before reply to SCN is filed and before adjudication commences: HC

++ GST -  Rule 108, no doubt, prescribes that appeal has to be filed electronically, but it nowhere prescribes that the same is to be filed only after impugned assessment order is uploaded on GSTN portal: HC

++ GST - Supplier has consigned goods from Chennai to Trichy but invoiced the petitioner's HO at Telangana and  paid IGST  - Expired E-way bill - Vehicle and goods seized - goods to be released upon deposit of SGST & CGST: HC

++ GST -  Switch Board Cabinet, though to be used in Railway coaches, cannot be called as parts of railway bogie - is classifiable under HSN 8537 @18%: AAR

++ GST -  Fryums is a brand name and not a generic name - Fried Fryums is nothing but Papad in 'ready to eat form' & classifiable under  CTH No. 1905 9040; attracts GST @18%: AAAR

December 10, 2021

++ ST - No double taxation - Concept of value added tax cannot mean that if tax is already paid by acquiring bank, on the amount of interchange fee, for the service provided by the respondent as issuing bank, respondent bank should be called upon to pay service tax all over again: SC

++ CX - Failure to make mandatory pre-deposit - Appeal dismissed without going into merits - Opportunity to be granted to make pre-deposit: HC

++ GST - Payment of notice pay by an employee to applicant employer in lieu of notice period is ‘consideration' for supply - Tax payable: AAR

++ GST - Application is ambiguous and cryptic and no evidences are forthcoming supporting applicant's claim - Paucity of evidentiary material - Authority refrains from passing any order: AAR

++ GST is liable to be paid @18% on the reimbursement of EPF and ESI contribution: AAR

++ GST -  Epoxidized Soya Oil is a chemically modified soyabean oil; attracts GST @5%: AAR

++ Cus - The goods other than prohibited goods can be imported, warehoused in public/private bonded warehouse without payment of duty - Authorization for clearance and duty payment is required only for clearance for home consumption which had not been sought by appellant as the goods are meant for export only: CESTAT

December 09, 2021

++ Cus - Even if DRI officers felt that there was an attempt to import prohibited goods, it is their duty to merely inform 'assessing officers' to make proper assessment to safeguard interest of Revenue: HC

++ Cus - It is incorrect to say that CHA is liable only under CHALR for any contravention - If action under Regulations is insufficient, CHA is also liable to be proceeded under CA, 1962: HC

++ GST - Blocking of credit - Respondent seems to be oblivious of existence of rule 86A(3) - ITC ought to have been unblocked immediately after one year: HC

December 08, 2021

++ NDPS - General rule is that where there are different transactions, different crime numbers and cases have been decided by different judgments, concurrent sentence cannot be awarded: SC

++ GST - Himsa Plus Oil is a hair oil - classifiable under HSN 3305 90 and attracts tax @18%: AAR

++ GST - Wrongful ITC - Power to order provisional attachment is draconian in nature and the conditions which are prescribed by statute for a valid exercise of the power must be strictly fulfilled: HC

++ GST - Vague SCN - Anyone would be clueless - Senior most officer should recognise that there is a need for in-house training - Being a fresher, no cost is imposed on the officer concerned: HC

++ GST - SCN lacks fundamental details - On a hollow foundation, no superstructure can be raised: HC 

++ GST - Petitioner was constrained in obtaining new registration - This cannot be construed as his having given up the claim for restoration of old RC: HC

December 07, 2021

++ GST - Bogus ITC of 286 crores - It has nowhere been laid down as an inflexible rule that bail should not be granted in economic offences: HC

++ GST - Rule 97A cannot be construed in a manner so as to defeat the purpose of legislation - Manual filing of refund claim permissible: HC

++ GST - If monthly contribution collected from members by applicant CHS exceeds Rs. 7,500/-p.m, then GST is leviable on the entire value: AAR

++ GST -  'Class Monitor Home Learning Kit' is classifiable under HSN 4901 1020 and attracts tax @5%: AAR

December 06, 2021

++ UPVAT Act - Unless six months is allowed power of assessing authority to pass other subsequent assessment order would be defeated and no limitation is prescribed u/s 32 of the Act to pass order on application filed within time to recall second-composite ex parte assessment order - HC

++ GST - 'Baby wipes' are correctly classifiable under heading 3307 and attract GST @18%: AAR

++ GST - Tax credit of GST paid on leasing of land is not available: AAR

++ GST - Healthcare service (diamond plan) provided for 20 years for patient and his family members upon payment of lump-sum amount of Rs.10 lakhs is exempted: AAR

++ GST - Aorom Herbal Smokes are not 'medicaments'' [HSN 3004] but Cigarettes of Tobacco substitutes, classifiable under HSN 2402 9010 and attract GST @28% and Compensation Cess of Rs.4006/- per thousand: AAR

++ ST - The Tribunal is not empowered to entertain the appeal filed against grant of refund/rebate of Swachh Bharat Cess (SBC) and Krishi Kalyan Cess (KKC) amount: CESTAT

December 04, 2021

++ NDPS - Incriminating material seized from mobiles & laptops categorically demonstrate trafficking/shipping in Tramadol and other psychotropic substances/drugs from India to UK and Singapore - bail applications dismissed: HC

December 03, 2021

++ ST - The petitioner cannot be punished for depositing the amount under different heads once provision mandates to discount the amount paid during investigation dehors the head it has been deposited under : HC

++ GST - Unavailability of module for giving refund - Hardship to petitioner for no fault of theirs - Outsource/take assistance of experts - If issue not resolved within four weeks, grant interest @ 12%: HC

++ CX - Judicial discipline - No one is permitted to obliterate the well-defined boundaries, even in a zeal to earn more revenue or profit the interest of the State: HC

++ CX - Malafide - It is over enthusiasm of officer to advance departmental cause that without grasping the ratio on the subject and disregard to settled principles of law, the SCN was issued - Apt training to be rendered: HC

++ CX - Trend of not respecting their own words is unpalatable and untenable - Order quashed and set aside: HC

++ Cus - The proposal for confiscation and penalty cannot be segregated from duty demand and therefore, the proceedings for confiscation and penalty cannot survive: CESTAT

December 02, 2021

++ VAT - Appeal and stay application pending but recovery notice issued - Court was needed to intervene in exceptional circumstances since the sole member of the Tribunal demitted office and there is none to preside over - notice stayed: HC

++ GST - Order is in complete breach of the principles of natural justice for not having issued SCN in the first place and not even having afforded any opportunity of hearing: HC

December 01, 2021

++ GST -  To obtain release of the goods or conveyances, while the adjudication proceedings are continuing, the taxpayer needs to pay only the fine and not the tax, penalty and charges thereon: HC

++ GST - There is nothing unjust in the taxpayer escaping if the letter of the law fails to catch him: HC

++ ST - 1973 Zanjeer 2013 - Infringement of copyright - Javed saab should get back service tax paid by him on ex gratia payment received from Reliance Big Entertainment

++ ST - Refund provisions should be interpreted in a reasonable and practical manner and when warranted, liberally in favour of the assessee

++ GST - Applicant club has to pay GST on amounts received against membership subscription and admission fees from members - Principles of mutuality inapplicable: AAR

++ CX - Benefit u/r 6(3A) of CCR, 2004 cannot be denied solely on hyper technical ground of declaration of credit reversal having erroneously been made before Dy Commissioner rather than before the Commissioner: CESTAT