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TODAY'S CASE (INDIRECT TAX)

Taxindiaonline.com



July 31 2021

++ CX - Classification - aluminum coated paper/metalized paper is rightly classifiable under Tariff Item 4810 13 90 of Central Excise Tariff by virtue of presence of inorganic substances: CESTAT

++ ST - Where Service Tax is actually paid on specified services pertaining to export activity, in terms of broad scheme of refund under Notfn 41/2012-ST as amended with clarifications, refund must be granted to the exporter: CESTAT

July 30, 2021

++ GST - Judgements are not mere 'ornaments' and are meant to be followed in letter and spirit: HC

++ GST - If facts are similar and there is a binding judgment in existence, it is bound to be followed - Consistency is the virtue of the adjudicating Authority: HC

++ CX - Short lived success as order passed in favour upon remand by Tribunal set aside by Commissioner(A) and matter remanded again - Earlier appeal by assessee before Tribunal which was withdrawn was sought to be revived but without success - In the peculiar facts, Tribunal order set aside and entire case remitted for proper adjudication: HC

++ CX - CBIC Circular dt. 22.08.2019 fixed monetary limit as Rs.1 crore to file an appeal - Tax effect in present Revenue appeal is only Rs.3.45 lakhs, therefore, Appeal dismissed: HC

++ CX - Limitation - Rebate - Section 11B, being the substantive provision, the same cannot yield to Rule 18 or the Notification dated 06.09.2004 & its amendment dated 01.03.2016: HC

++ GST - Services of CIPL, Kerala to CIPL, Karnataka in facilitating the transportation of goods to CIPL, Tamil Nadu are exigible to GST: AAR

++ GST - Used vehicles, even if it has run only negligible distances are to be categorized as 'used personal effects' - Exempted from requirement of e-way bill in terms of rule 138(14): HC

++ ST - Disputed facts cannot be adjudicated in writ proceedings: HC

++ GST - Courts always exercise restraint in entertaining a Writ Petition filed against show cause notices: HC

++ CT - Classification of a commodity under a particular tariff heading under the Central Excise Tariff is not open for re-determination by the authorities under the provisions of the  Karnataka VAT Act, 2003: HC

July 29, 2021

++ ST - Case on hand is not relating to demand of central excise duty but service tax - No pre-SCN consultation is contemplated under the Master Circular of 2017: HC

++ ST - SCN is elaborate and contains all the details regarding the allegations - An adjudication, in this regard, is imminent - High Court cannot intervene: HC

++ CX - Preferring an appeal is the rule - Entertaining a Writ Petition before exhausting the appellate remedy is an exception: HC

++ Cus - When the cargo has been seized under a Mahazar , then the request for release of cargo, if to be considered by the Revenue, has to be only for a provisional release: HC

++ ST -  It is true that a person who did not avail of the opportunity for hearing cannot later complain about violation of principles of natural justice - However, due to pandemic, it is only appropriate that another chance be given: HC

++ VAT - if the assessee is aggrieved by dismissal of part of it's claim, it has to exhaust statutory remedy available under DVAT Act by filing an appeal: HC

July 28, 2021

++ Cus - Relief sought is release of containers - Such a relief requires adjudication - High Court cannot conduct a roving enquiry with reference to the dispute: HC

++ GST - Restoration of registration - As a special case, keeping in view the COVID-19 pandemic, interest liability should be allowed to be paid in instalments: HC

++ Cus - Container detention charges - Mere issuance of Detention Certificate would not confer any right to get refund directly from service provider, who is a private party: HC

++ NDPS - Argument fails to cut ice - Since seized phensedyl codeine cough syrup bottles were having batch numbers and are ordinarily available in the market, it cannot be said to have different concentrations - no infirmity in the manner in which sample has been drawn: HC

++ VAT - Writ petition cannot be entertained by High Courts when appellate remedy available under relevant statute, has not been utilised by assessee: HC

July 27, 2021

++ CX - Equivalent penalty imposed u/s 11AC of CEA 1944 r/w Rule 15(2) of CCR 2004 is not sustainable where issue at hand is interpretational in nature: CESTAT

++ ST - Sales marketing & support services provided to its group companies qualify as export of service where such services is provided on principal to principal basis & element of principal-agent relationship is absent - Refund of unutilised Cenvat credit merits being allowed: CESTAT

July 26, 2021

++ ST - Letter of pre-SCN consultation issued only two hours before hearing is not only arbitrary but is in utter disregard and in contravention of Circular dated 10.3.2017 - SCN quashed and cost imposed: HC

++ ST - Illusory pre-SCN consultation, therefore, SCN set aside - Petitioners cannot be permitted to take unfair advantage on the ground that demand made in notice had now become time-barred in view of statutory provisions: HC

++ ST - Petitioner not available at the given address - High-pitched demand confirmed of Rs.21.51 crores - Since notices were not served to petitioner before hearing, order set aside & matter remanded - Cost imposed of Rs.2.50 lakhs: HC

July 24, 2021

++ ST - Not mentioning credit availed in ST-3 returns is only procedural lapse & can be condoned where assessee's accounts are otherwise in order - Denial of Cenvat credit not tenable: CESTAT

++ CX - Denial of Cenvat credit based on statements taken by DGCEI from certain persons, is not sustainable, where assessee was not permitted to cross examine the deponents of such statements: CESTAT

July 23, 2021

++ GST - Composition Levy - Insofar as the FY 2017-2018 under GST regime is concerned, the preceding FY would be 2016-2017 under VAT regime -any other interpretation would be a mockery of the words in s.10(1): HC

++ ST - Fresh proceedings under repealed Act despite coming into force of GST Act, 2017 - Proceedings pursuant to SCNs and summons shall continue but final orders shall not be given effect to till disposal of writ petition: HC

++ GST - Officers concerned should bear in mind that search and seizure power conferred upon them, is an intrusive power, which needs to be wielded with utmost care and caution: HC

++ GST - Request of Jt. Commr., Gautam Budh Nagar was only to ascertain as to whether L2 supplier was in existence - There was no independent application of mind by Addl. Commr ., CGST Delhi - Very trigger for conducting search was flawed and unsustainable in law: HC

++ GST - Jurisdiction - As summons have been withdrawn by CTO and the inquiry proceedings have been closed, issue sought to be adjudicated upon by petitioner cannot be decided in a vacuum: HC

++ GST - RTI response reveals that email regarding personal hearing was sent to the wrong email address - Order passed without hearing, set aside: HC

++ ST - Interest on delayed disbursal of refund - As per settled position in law, assessee is entitled to interest @ 12% p.a. from date of deposit of duty till date of refund: CESTAT

++ CX - Assessee cannot be asked to reverse Cenvat credit availed on tax paid under Reverse Charge basis when payment of service tax is not disputed - Penalty u/s 11AC of CEA 1944 is also quashed where Revenue is unable to establish fraud, collusion, wilful misstatement or suppression of fact on part of assessee: CESTAT

++ Cus - SCNs issued by DRI upon recovery of Red Sanders wood from noticee - As per Apex Court's verdict in M/s Canon India Pvt Ltd., DRI is not vested with jurisdiction to issue such SCN - Notice & consequent O-i-O quashed: CESTAT

July 22, 2021

++ GST - Penalty reduced from 11 crores to 18 lakhs by rectification order -  Bench cautions officer to be careful in future, for such type of mistake not only causes harassment but also shatters faith of the people in the system: HC

++ GST - Refund - Fraudulent ITC - A petitioner who seeks equity must do equity; has to come to Court with clean hands: HC

++ GST -  In old era, it was easy to manufacture Papad in a Round Shape as it was done manually -  When ingredients and processes are similar, then product in question is nothing but a kind of 'papad'  irrespective of their shape and size: AAR

++ Puri papad, Jeera papad, Red/Green Chilli papad, Rice papad, Paua papad, Udad papad, Mung papad and black pepper papad are classifiable under   HSN 1905 9040: AAR

July 21, 2021

++ VAT - Expression 'or' used in Section 12(2) of the Karnataka Value Added Tax Act, 2003 is not conjunctive but is disjunctive: HC

++ Cus - Power of judicial review under Article 226 need not be extended for the purpose of adjudication of technical issues: HC

++ GST - TRAN-1 - Technical glitches - Single Judge directing IT Redressal Committee to consider petitioner's request for transition of un-availed ITC does not reflect any error of law: HC

++ GST - Department should have assisted assessee and acted with alacrity and promptness rather than denying bonafide claims - Judgment being an innocuous one, Revenue ought not to have appealed against, wasting judicial time and energy: HC

++ PVC Tufted Coir Mats / Mattings / Floor coverings is rightly classifiable under heading 5703 9090 and attracts GST @12%: AAAR

++ VAT - It is well settled in law that penalty cannot be imposed merely because it is lawful to do so: HC

July 20, 2021

++ GST - It is settled law that rate of duty cannot be a criterion for deciding classification - Merely because there is a higher rate of tax for TH 3918 @18%, applicant cannot discontinue classification adopted during pre-GST and opt for heading 5705 @12%: AAR

++ GST - PVC carpet Mat is correctly classifiable under heading 3918 and applicable rate of GST would be 18%: AAR

++ GST - Petitioners, a Charitable Trust, are selling medicines, may be at a cheaper rate - For purpose of 'business' u/s 2(17), it is immaterial whether such a trade is for pecuniary benefit or not - Medical Store would require GST Registration: HC

July 19, 2021

++ GST - Applicant collects actual amount of examination fee and remits that amount without collecting any service charges either from student or AAPC - Since fee payment facilitation services are provided in the course or furtherance of their business and as same is being made without consideration, it falls outside the meaning and scope of supply as defined in s.7 of Act, 2017: AAR

++ GST - Income earned by Maharashtra State Dental Council by way of fees payable under Chapter IV of the Dentists Act, 1948 is not exempted: AAR

++ GST - Provisions of the Act, 2017 governing advance ruling does not provide for an applicant to seek a ruling regarding the applicability of the provisions of the Act or the notification issued thereunder to a third person other than the applicant: AAR

++ GST - Supply of food and beverages at the industrial canteen inside factory premises attracts NIL GST in terms of Sr. No. 6 of 12/2017-CTR - Hence, Applicant is not eligible for ITC in respect of food and beverages consumed and on hired manpower services and refilled LPG cylinder: AAR

++ GST - Supply of  Brush Holder Assembly and parts, Lead Wires and Insulating Rods, manufactured as per drawings and specifications of Indian Railways, attracts GST @12% under heading 86.07: AAR

++ CX - Rule 6(3) of CCR 2004 - Duty demand raised by invoking extended limitation is not tenable where assessee's activities are known to the Revenue & where assessee duly reverses credit availed in respect of trading activity: CESTAT

++ Cus - Refund of BCD & SAD cannot be rejected on grounds of unjust enrichment, where assessee submits certificate from Chartered Accountant, stating that incidence of excess duty paid was not recovered from elsewhere: CESTAT

July 17, 2021

++ CX - SVLDRS, 2019 - One liner rejection order - Litigation might well have been avoided altogether had the respondent heard the petitioner and passed a speaking order: HC

July 16, 2021

++ GST - Fraudulent ITC - At the moment there is no material before Revenue that out of the total ITC of Rs.260 crores, ITC's worth around 233 crores are also fraudulent - NBW kept in abeyance: HC

++ Laboratory reagents for rapid testing of food safety parameters is appropriately classifiable under Heading 3822 00 90 and is liable to GST @12%: AAR

++ GST - ICF is putting up Plant to manufacture Stainless Steel coaches, which is not an activity undertaken as a 'Public Authority' and, therefore, benefit of entry 3(vi)(a) of 11/2017-CTR is not available: AAAR

++ GST - Recipient of a 'supply' cannot seek advance ruling under the Act as supplier of such goods or services is not bound by that ruling: AAAR

++ House boat cruises with accommodation, food and alcohol is classifiable under SAC 996415 and chargeable to GST @18% with ITC: AAR

++ Puff insulated iceboxes used for the purpose of reducing fish spoilage falls under heading 3923 and attracts GST @18%: AAR

++ VAT - it is a fit case for remand where assessment order is passed without giving reasonable opportunity of personal hearing to the assessee : HC

July 15, 2021

++ GST - Valuation of second hand gold jewellery which is only cleaned and polished can be made in terms of rule 32(5) of the Rules, 2017: AAR

++ GST - Placement of medical instruments to unrelated customers like Hospitals, labs etc. for their use constitutes supply of services - There exists a valid consideration - No need for reference to the definition under Australian Law: AAR

++ GST - Construction of residential colony n ear Kempegowda International Airport  for staff and employees of AAI attracts tax @12%: AAR

++ GST - Activity of tanker body building on the chassis owned by customer is a supply of service classifiable under SAC 998881; chargeable @18%: AAR

++ GST - Interest u/s 50 - In a case where the claim of ITC by an assessee is erroneous, then the question of invoking section 42 does not arise at all: HC

July 14, 2021

++ Jaggery coated banana chips (sarakaraupperi in Malayalam) can, by no stretch of imagination be considered as a 'sweetmeat' for classification under heading 2106; GST @5%: AAR

++ Banana chips, Jackfruit chips, Tapioca chips, sarakaraupperi are classifiable under heading 2008 1940 and attract GST @12%: AAR

++ ST - Pre-notice consultation - Every attempt to secure information were stonewalled - Appellant cannot milch Master Circular to his advantage - Order of Single Judge is thoroughly balanced: HC

++ GST - Suspension of registration is worse than cancellation - Against cancellation, an assessee can take legal remedies but against suspension, pending an enquiry, even if the assessee chooses to take remedies, the Court(s) would normally show reluctance: HC

++ VAT - assessment order passed without permitting cross examination of relevant witnesses, is unsustainable, where rigors of Section 81 of TNVAT Act are not met : HC

July 13, 2021

++ GST - RWA's heave a sigh of relief - Only contributions in excess of Rs.7500/- would be taxable - CBIC e-flyer of 2017 took correct view - AAR ruling and 2019 Circular quashed: HC

++ GST - Consultants not available, therefore, application seeking an advance ruling sought to be withdrawn - since issue cannot be decided based on written submissions made, request allowed: AAR

++ ST - COVID-19 - Pre-SCN consultation - Hearing fixed, however, adjournment sought due to lockdown went unheeded and SCN issued - Stay ordered on operation of SCDN: HC

++ Cus - Factual aspects are to be adjudicated with reference to the records available - Such an exercise cannot be done by High Court in a Writ proceeding: HC

July 12, 2021

++ Cus - Mere issuance of Detention Certificate would not confer any right to get refund directly from Customs Cargo service provider, who is a private party: HC

++ Cus - Handling of Cargo Regulations - Contractual relationship between service provider, who is a private person and the petitioner cannot be resolved under writ jurisdiction: HC

++ Cus - Detention certificate cannot be the sole document for purpose of release of goods without further adjudication with reference to the disputes that exists between Service Provider and exporter or importer: HC

++ Cus - Detention certificate cannot be the sole document for purpose of release of goods without further adjudication with reference to the disputes that exists between Service Provider and exporter or importer: HC

++ Misc - Question, whether respondent could have insisted for reduction in agreed cost per unit consequent to reduction in GST rate, would be within the fold of a dispute contemplated for resolution by arbitration: HC

July 09, 2021

++ ST - Refund - Limitation cannot be counted from day of Let Export or last Let Export in a quarter, as assessee cannot file more than one refund claim for each quarter - Limitation be counted from first day after the end of the quarter: CESTAT

July 09, 2021

++ Cus - During the pendency of proceedings u/s 124 of the Act, consideration of an application for provisional release of seized goods is NOT barred: HC

++ GST - Term 'inclusive of taxes' in the tender document of September 2016 could not have included GST on supply of food as it was introduced much later - GST paid by catering service provider to be reimbursed by IRCTC: HC

++ Reference to ITC HS Code for alcohol-based hand sanitisers which has been made in DGFT notification is not a standard for interpreting classification of goods as per CTA, 1975: AAAR

++ DGFT notification is not an authority for determining classification of goods under Customs Tariff Act: AAAR

++ Identifying vendors  and  facilitating supplies to Airbus Invest SAS, France - Applicant is covered under Intermediary Services [SAC 998599] & exigible to GST @18%: AAR

July 08, 2021

++ While all medicines are drugs, all drugs are not medicines - presence of drug ethyl alcohol, by itself, will not make the product a medicament - Hand sanitiser is a disinfectant, correctly classifiable under heading 3808: AAAR

++ Hand Sanitiser is NOT an alternative to  soap & water but both are recommended in hand hygiene practices: AAAR

++ GST - Appeal - Notwithstanding the statutory remedy, High Court is not precluded from interfering where,  ex facie , it forms an opinion that the order is bad in law: HC

July 07, 2021

++ GST - ITC fraud - Fake bills/invoices  without actual supply - Such dubious activities causing huge loss to the exchequer scuttles the development in the country - Bail application dismissed: HC

++ Miscellaneous - False claims raised before Courts by Government Officers cause immense prejudice to litigants & cause unnecessary burden for courts - Action be contemplated against such errant officers: HC

++ ST - Whole process of SVLDRS, 2019 is with a view to augment expeditious disposal and not for the purpose of declining or denying legitimate claims: HC 

++ ST - Bench unimpressed with the listless Revenue approach - Authorities are not expected to go about hyper-technically and unmindful of claims of assessee: HC

++ GST - Services by way of arranging sales of goods for various overseas suppliers is not 'export of service' - applicant is an 'intermediary' and supply is treated as an intra-State: AAR

July 06, 2021

++ Service tax under the category of OIDAR cannot be levied upon a user merely because he receives a code for getting printout of the ticket from cinema hall : CESTAT

++ GST - Delay unacceptable - Other than lethargy and incompetence of petitioner Revenue, there is nothing which has been put on record - Cost imposed for wastage of judicial time: SC

++ Cus - Disputed facts between parties based on certain contractual obligation can never be adopted in writ proceedings - Issues to be resolved by way of an adjudication - Petition dismissed: HC

++ ST - SVLDRS, 2019 - Remitting quantified amount - CBIC had extended time for payment till 30.06.2020 due to COVID but not beyond - Petitioner to pursue representation made before Board - Court cannot intervene: HC

++ VAT - it is settled law that High Courts ordinarily do not entertain petitions involving recovery of taxes, cess, fees or any kind of public money : HC

++ Revenue Recovery Act - Notice of attachment of property for recovery of tax dues is unsustainable, where the Revenue initially takes no measures to recover the tax & during which period, the property is sold by the defaulter to another party : HC

July 05, 2021

++ ST - Order on interest - If there is any error apparent, petitioner can approach Settlement Commission for rectification/clarification - An adjudication cannot be done in writ proceedings: HC

++ GST - Shifting of factory in year 2016 - Petitioner cannot feign ignorance of CCR provisions as it was a seasoned assessee - No merits in request for either transfer or refund of ITC: HC

++ Cus - Issues raised involve certain disputed facts and circumstances - Court cannot conduct an enquiry - Such an exercise cannot be done in a writ proceedings: HC

++ GST - Classification and rate of tax has already been decided in proceedings u/s 60 of the Act, 2017, hence the same cannot again be decided by seeking an advance ruling: AAR

++ VAT - For purpose of recovery of any amount due under PVAT Act, it is only specified officers of Commercial Taxes Department who have requisite powers: HC

++ VAT - Aggrieved taxpayer should not approach for writ remedy under Article 226, without exhausting appellate remedies as provided under provisions of PVAT Act: HC

July 03, 2021

++ ST - Concept of trust is only a façade - Trust is managing funds of contributors and thereby are rendering a service - said service squarely falls under Asset Management as applicable under BOFS: CESTAT

++ ST - Limitation - Information being in public domain is not of any consequence - It should be made available to the authorities concerned who need to take a decision: CESTAT

++ ST - Payment of tax by one entity and availment of CENVAT credit by another is not a criteria to determine the exigibility of a particular service rendered: CESTAT

++ ST - By a cryptic and cavalier manner the Commissioner(A) and Tribunal have decided the appeals without considering the submissions made - such order cannot be sustained in the eye of law: HC

July 02, 2021

++ ST - Application for COD worded in a casual manner and without explaining the reasons for delay of 350 days out of the total 1134 days - Costs imposed for wastage of judicial time - recovery from officers concerned: SC

++ CX - Merely because similar matters are pending is not a ground to grant leave when the authorities have been negligent in filing appeal: SC

++ GST - Non-payment of tax by seller - ITC recovery from recipient only in exceptional circumstances - No coercive steps on Petitioner depositing 5% amount of 15 crores: HC

++ GST - Appellate institutions provided under the statute, in no circumstances, can be undermined by the higher Courts - Preferring an appeal is the rule: HC

++ GST - Electronic credit ledger cannot be blocked for any period in excess of one year, in view of express provision contained Rule 86A(3): HC

July 01, 2021

++ CX - Departmental proceedings ended in favour of accused - When prosecution launched is on the same set of facts and allegations, continuance of prosecution would be gross abuse of process of law: HC

++ GST - Suo motu cognizance has been taken of the on-going COVID-19 pandemic and limitation for filing of statutory appeals is extended by Supreme Court - Jt. Commr .(A) to take on file, appeals filed and decide on merits: HC

++ CX - Transfer of cases to 'call book' and then reviving it after a long gap of 18 years, without any reasonable explanation, is not permissible - proceedings quashed: HC

++ CX - Transfer of cases to 'call book' and then reviving it after a long gap of 18 years, without any reasonable explanation, is not permissible - proceedings quashed: HC