TODAY'S CASE (INDIRECT TAX)

November 30, 2021

++ GST - Offences under the Act are not grave to an extent where the custody of the accused can be held to be sine qua non : HC

++ GST - Court must give effect to Article 21 of the Constitution in letter as well as in spirit while deciding anticipatory bail application: HC

++ GST - Applicant is not holding license from Insurance Regulator to provide insurance service, hence service will get covered by residuary entry and attract tax @18%: AAR

++ GST - Applicant, a CHS, cannot be said to provide WCS services to its members - Debarred from taking ITC on GST charged by contractor who carries out major repairs, renovations and rehabilitation work for society: AAR

++ ST - Section 11B cannot be applied when the tax has been paid under mistake and when not required to be paid: CESTAT

++ CX - The Pre Delivery Inspection (PDI) and After Sales Service (ASS) charges cannot be included in assessable value of motor vehicles: CESTAT

++ CX - Once credit is taken during period when the same is allowed to be taken, department cannot deny said credit: CESTAT

November 29, 2021

++ CX - CENVAT Credit cannot be denied to assessee on a theoretical variance in the inputs : CESTAT

November 27, 2021

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

November 26, 2021

++ GST -  Article 243W r/w Schedule 12 -  Telecom services provided by Airtel to  Greater Hyderabad Municipal Corporation and its employees do not qualify for exemption under 12/2017-CTR: AAR

++ GST - Charitable trust supplying services to homeless children and destitute women - Funds received from government welfare department and public donations - Registration required and tax payable @18%: AAR

++ GST - TRAN-1 - If there is substantial compliance, denial of benefit of ITC ought not to be frustrated on the ground of technicalities: HC

++ GST - Concealment of material facts is enough to deny any relief claimed in exercise of the extra-ordinary discretionary jurisdiction under Article 226 - Costs imposed: HC

++ GST - Petitioner having availed of the relief u/s 74(5) of the Act cannot now turn around and challenge the said proceedings: HC

++ Misc - Principal dispute remains unadjudicated - Arbitral Tribunal was required to decide the disputes in accordance with law and not render a decision in disregard of the same - Award set aside: HC

++ ST - The introduction of a new law cannot be held to deprive the rights of a Taxpayer, especially when the tax payers' money lies with the Revenue, refund granted: CESTAT

++ Cus - Once the reassessment is acceptable to both the sides and if any refund arising out of said re-assessment, no question of filing the appeal arises: CESTAT

++ GST -Airbus Group India - Activity of appellant is intermediary services; place of supply is in India, therefore, does not qualify as export of service -Order of AAR upheld: AAAR

November 25, 2021

++ VAT - State is entitled to bring in tax with retrospective operation : HC

++ ST - Blending of 10% duty paid ethanol with 90% duty paid Motor Spirit is only meant to improve quality of the Motor Spirit & does not amount to manufacture u/s 2(f) of Central Excise Act, 1944: CESTAT

++ Cus - Duty demand raised by DRI in respect of past shipping bills, is unsustainable, as DRI officers are not proper officers authorised to issue SCN in Customs matters: CESTAT

++ CX - If assessee reversed the proportionate credit even though belatedly and paid interest for delay in reversal, demand of 5%/10% in terms of Rule 6(3) will not sustain: CESTAT

November 24, 2021

++ Misc - Statute contains distinct provisions for levy of taxes and for imposition of charges and recovery of fees - Observations of HC that though charges are loosely termed as tax, it is, in substance, a fee, is per incuriam : SC LB

++ NDPS - Prosecution has immensely failed to prove its case beyond reasonable doubt, therefore, it is a fit case to grant benefit of doubt: HC

++ NDPS - Violation of procedural aspects can be looked into during the course of trial and cannot be deeply analysed at the stage of bail: HC

++ GST - Section 83 - Attachment beyond one year - State cannot insist on continuing with something which is impermissible under the law: HC

++ VAT - Proviso to sec. 8(2)(ii) is not ultra vires to the Constitution : HC

++ CX - Since advertisement service was not used for trading of packaging machines, value of packaging machines for calculating the reversal amount of CENVAT Credit cannot be taken into account: CESTAT

November 23, 2021

++ GST - Bail denied considering applicant's likelihood of jumping bail - economic offences corrode democratic fabric & public probity & hence are gravest offences: HC

++ GST - Whether/which HSN or SAC needs to be mentioned in the invoice is not a question that can be answered by the Authority in terms of s.97(2) of the Act: AAR

++ GST - Floating of fictitious firms and availing ITC of Rs.30 crores - Invoices purportedly raised of Rs.990 crores - No case for grant of relief u/s 438 of CrPC - Custodial interrogation necessary: HC

November 22, 2021

++ ST - Compensation paid to party upon cancellation of coal block allocation, will not attract service tax, since such compensation amount cannot be treated as consideration for tolerating the cancellation of allocation: CESTAT

++ CX - SCN hit by limitation where issued beyond statutory limitation, even where extended by 5 years: CESTAT

November 20, 2021

++ ST - Omission by Commissioner not to separately deal with the case laws cited, if required, can be corrected by Tribunal, if at all the same is approached - Petition dismissed: HC

++ ST - Works Contract - Composition scheme is only an option available to the appellant and cannot be enforced: CESTAT

++ ST - Where value has already been split as per state law and VAT has been paid on goods component of composite works contract, no service tax can be levied again on such component by taking recourse to Rule 2A(ii) of ST Valuation Rules, 2006: CESTAT

November 19, 2021

++ GST - Since value for levy of IGST on imports is governed by CA, 1962 and CTA, 1975, answering the question whether subsidy given by Govt. of Karnataka is to be reduced from the value of import does not come within purview of AAR - Application rejected

++ GST - Tax Invoice from Bengaluru office (Registered Place) can be issued for imports received at Chennai Sea Port and directly sold to a customer either in AP, TN etc. - No requirement of separate registration at the place of importation: AAR

++ GST - Producing documentary videos, picture of testimony to various State Government Departments, Local Authorities, Boards & Corporations is not an activity in relation to any function entrusted to a Panchayat/Municipality under article 243G/243W - not exempted under 12/2017-CTR; attracts tax @18%: AAR

++ GST - Egg is an agricultural produce - Services by way of transportation of 'Eggs' by rail from one place in India to another place is exempted: AAR

November 18, 2021

++ GST - MMRDA is a government entity - Reimbursement of expenses such as salaries, rent, training, staff welfare expenses etc. received by applicant for pure services rendered to MMRDA is exempt: AAR

++ GST -  Top-Up Insurance/Parental Insurance Premium recovered from employees does not amount to 'supply of service': AAR

++ GST - 'Pushti', which is a powdered mixture of Ragi, Rice, Wheat, Green gram, Fried gram, Moong dal, and Soya in different proportions, is classifiable under HSN 1106; attracts Nil tax if unbranded and @5% if otherwise: AAR

++ GST -  'ASSET' held by respondent cannot be said to be service provided to schools, much less services relating to conduct of examination by such schools - Exemption not available - Revenue  appeal allowed: AAAR

November 17, 2021

++ GST - Supply of manpower services to various government and non-governmental organisations like NIT, Goa & NIFT attract tax @18%: AAR

++ GST - EPC contract - Construction of poultry farm is classifiable under HSN 9954 and rate of tax is 18%: AAR

++ GST - Job work services of anodising and plating on materials belonging to 'registered persons' attracts tax @12%:AAR

++ CX - The interest on refund of pre-deposit is permissible even if the pre-deposit amount was not paid in cash: CESTAT

November 16, 2021

++ Cus - Once the goods are redeemed, they become the property of the applicant and thereafter it is free to sell the aircraft: CESTAT

November 15, 2021

++ GST - Personal hearing is statutorily imperative   qua  sub-section (4) of Section 75 - Orders set aside on this sole ground: HC 

++ GST -  To decide whether impugned services qualify as import of services or not, it is required to determine the place of supply, which is beyond jurisdiction - Authority refrains from giving any ruling: AAR

November 13, 2021

++ ST - The Electricity Charges reimbursed to appellant by Service Recipient on actual basis in terms of contract is not includible in gross value of output service: CESTAT

++ CX - Since the demand was confirmed on basis of Income Tax investigation and no independent evidence was brought on record by Central Excise department, the demand cannot be sustained: CESTAT

November 12, 2021

++ GST - Since the  goods are not moved directly to the Port, ICD, Airport or LCS or to a registered warehouse, the applicant is not entitled to supply the impugned goods at concessional rate of 0.1% in terms of 41/2017-ITR: AAR

++ GST - Electroplating services - Since  applicant does job work on goods belonging to registered persons, such supply attracts tax rate of 12% in terms of clause (id) of Entry 26 of 11/2017-CTR: AAR

++ Cus - Bail granted at stage of issuing notice u/s 108 of Customs Act will amount to blanket bail, which is impermissible - Application for anticipatory bail dismissed: HC

November 11, 2021

++ CX - All the services which are used for business activity need not to be related directly in manufacturing or clearance of final product, same can be used either in factory or outside the factory: CESTAT

November 10, 2021

++ GST - S.29 - Cancellation of registration -  Where the statute provides for a procedure, then the procedure is to be followed in the letter and spirit of the statute or not at all: HC

++ GST - Answering the question as to whether GST registration should be surrendered is not within the domain of s.97(2) of the Act - Authority does not have jurisdiction to pass any ruling on such matter: AAR

++ GST - Supply made by applicant against purchase order of Integrated Coach Factory, Chennai is a mixed supply: AAR

November 09, 2021

++ GST - Services of Renting of immovable property to Samaj Kalyan Vibhag of the Govt.  of Maharashtra to house girls from backward class communities is not an exempt supply: AAR

++ GST - Reluctance in granting of refund to exporters would result in taking away the incentive to export and would make exports unviable due to non-flow of funds in the form of refund assured under the Act: HC

++ GST - Provisions of the Act do not mandate petitioner to verify genuineness of suppliers of its supplier inasmuch as enough safeguards are provided under the Act to recover taxes, if not paid or wrong credit is availed by petitioner's supplier or supplier's supplier: HC

++ GST -  Form GST DRC-01 has not been issued merely on the basis of reports appearing in print and electronic media - Investigation revealed that taxpayers had utilised ITC passed by  dubious firms: HC

++ CX - Instead of availing refund of input service, appellant has availed the credit under Credit Rules for payment of output excise duty on excisable goods cleared from the factory, no reason found to deny the credit: CESTAT

++ ST - It is the settled position of law that a substantial right of a tax payer cannot be denied on mere procedural lapse: CESTAT

November 08, 2021

++ GST - s.54 - Refund of excess balance in petitioner's electronic cash ledger, which includes amount that has been collected by Electronic Commerce Operator u/s 52 of the CGST Act, is admissible: HC

++ GST - Tribunal - Because of existence of (non-functional) alternate forum/remedy on paper, petitioner cannot be compelled to wait for eternity to agitate its claim seeking refund, which it is entitled to: HC

++ GST - s.77 - 'subsequently held' - Tax paid under impression that transactions were intra-state which they were not - Later, tax paid again under IGST head - Refund to be sanctioned along with interest for 30 months: HC

++ GST - Floating of bogus firms and passing on ITC - Petitioners have been behind bars for a substantial period of about 2 1/2 years - Trial has not even commenced - No useful purpose would be served by further detaining them - Bail granted: HC

++ GST - Supply of manpower - Applicant has entered into an 'employment agreement' with different workmen and  is liable to pay salary/wages - Showing such amount separately in the invoice doesn't shift his liability onto the recipient of services and make him qualify as a 'pure agent': AAR

++ ST - As per settled position in law, levy of service tax on ocean freight is unconstitutional: CESTAT

++ Cus - CESTAT not vested with jurisdiction to hear appeals pertaining to goods imported or exported as baggage: CESTAT

November 06, 2021

++ ST - Exhibition of cinematographic films under revenue sharing arrangement - SCN demanded duty under operational & administrative assistance whereas O-i-O travelled beyond scope of SCN by confirming demand under infrastructure support services - Duty demand quashed: CESTAT

++ GST -  As the applicant is making an exempt supply [pure service - Sr.3, 12/2017-CTR] to Howrah Municipal Corporation, the provisions of s.51 and, for that matter, the TDS Notifications do not apply: AAR

++ GST - Invoices issued by Maharashtra Office - Importer need not take separate registration in importing States as they would be selling the goods before clearing same for home consumption from port of import: AAR 

++ CX - In absence of any evidence which shows that the goods were delivered to appellant and his categorical denial of receipt of goods, the penalty under Rule 26 (1) cannot be imposed .: CESTAT

November 05, 2021

++ Miscellaneous - Pegasus row - SC Larger Bench finds substance in apprehensions of spyware abuse; constitutes 3-member panel to probe certain issues & make recommendations: SC LB

++ GST -  If the applicant sells the land after developing by way of erecting a civil structure or a building or a complex, then such supply is liable to tax: AAR

++ ST - The claim is only for refund and not proceedings for assessment or adjudication, thus only sub-section (3) of section 142 will be attracted; rejection of refund claim by referring to sub-section (8) is mis-placed: CESTAT

++ CX - The Cenvat Credit Rules does not impose any bar or restriction in availing credit when the benefit of exemption is availed under Notfn 12/2012-Cus: CESTAT

November 03, 2021

++ Cus - CDMA-WLL telephones qualify as cellular phones & are eligible for exemption under Notification No. 6/2002-CE & Notification No. 21/2002-Cus: SC

++ GST - Notice uploaded was wholly unintelligible inasmuch as substance of the notice/reasons appeared in garbled language/symbols - Physical copy not served - Order passed ex parte set aside: HC

++ GST - Cancellation of registration - Petitioner can not be relegated to the forum of alternative remedy as his valuable right to do business has been curtailed in violation of principles of natural justice: HC

++ Service matter - Mere issuance of charge-sheet cannot be said to affect any legal right of departmental officer proceeded against: HC

++ VAT - Penalty can be imposed in cases of escaped turnover assessment subject to cases where best judgment method is adopted: HC

++ Cus - Enhancement of value not sustainable where based solely on figures mentioned in SCN & where such figures are not established as pertaining to contemporaneous import of similar goods: CESTAT

++ Cus - Jurisdiction of DRI - Apex Court's judgment in M/s Canon India does not apply to live consignments seized & where duty demand is not yet raised: CESTAT

November 02, 2021

++ GST - Finished product 'fish meal' can enjoy exemption as provided under Sl.No.102 of No.2/2017-CTR -clarification given in para 4 of Circular 80/54/2018-GST set aside: HC

++ GST - Orders, instructions or directions issued by Board, in exercise of powers u/s 168 of the Act, must be procedural and not substantive in nature: HC

++ GST - Exemption provided by Central Government by exercising its powers u/s 11 are substantive rights provided to stake-holders - Such exemptions cannot be taken away by issuing clarificatory Circulars: HC

++ GST - If at all the exemption provided is to be revisited or reviewed, such exercise shall be undertaken either by Parliament by making a law or by the Central Government: HC

++ GST - Supply of RO plant and undertaking O&M of the same - Whether 'Pure service' so as to be entitled to exemption under 12/2017-CTR - Both Appellate Authority Members differ in their opinion - Deemed that no ruling is issued: AAAR

++ Cus - Wherever the benefit conferred by issuance of redemption letter is sought to be revoked, there has to be strict adherence to the principles of natural justice: HC

++ GST - Since no new product comes into existence after the process conducted by the applicant on the raw materials supplied to them, therefore, the process undertaken will come under the purview of job-work; attracts GST @12%: AAR

++ GST - Aluminium Composite Panel/Sheet ['Sandwich Panel' or 'ACP Sheet''] is classifiable under HSN 7606 and attracts GST @ 18%: AAR

++ Cus - Classification of Viewing Cards - As is settled law, DRI officers not proper officer empowered to issue SCNs under Customs Act - SCNs & O-i-O quashed: CESTAT

++ CX - Removal of used Capital goods - Whether it is a sale transaction/not a sale transaction is not a criteria that would determine the eligibility of availment of CENVAT credit: CESTAT

November 01, 2021

++ GST - An error in assumption of jurisdiction might also render a notice/an order  ultra vires  and bad: HC

++ GST - Mindless exercise - Amendments in Explanations 1 & 2 to s.140 are yet to be brought into force - SCN for recovery of E Cess, SHE Cess & KK Cess suffers from an error going to the root of the jurisdiction, hence set aside: HC

++ Cus - Since validity of attachment order has ceased, the petitioner is entitled to operate relevant bank account, which was under attachment: HC

++ Cus - No power is vested with the authorities as well as Tribunal to condone the delay beyond the statutory period of limitation: HC

++ Cus - Court can come to the rescue of a person who is vigilant about his rights and not to a person who sleeps over the matter and rises from slumber at his convenience: HC