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TODAY'S CASE (INDIRECT TAX)

Taxindiaonline.com



October 23, 2021

++ CX - Once it is established that the products in question are by-product then demand under Rule 6 will not sustain: CEATAT

++ ST - The activity undertaken by police of providing armed security guards is not covered by definition of 'security agency services' and collection of charges for the same will not be liable to service tax: CESTAT

October 22, 2021

++ GST - A bonafide taxpayer is required to be treated better than a 'detenu and arrestee': HC

++ GST - If there is an amount that has been wrongfully withheld, which could be demonstrated to be so, there is no bar for exercising writ jurisdiction: HC

++ GST - Investigation - Installation of CCTV would take within itself recording of all that would fall within the range of CCTV: HC

++ TNVAT Act - When alternate remedy is available in revenue matters, writ petition u/Art. 226 can be entertained only in exceptional circumstances as have been laid out - HC

++ GST - When goods are accompanied by an invoice, there is no discretion upon the officer to adjudicate as to ownership - Mandate of Section 130 will be defeated if goods are not released to the person who holds invoice: HC

++ CX - Issue which is raised before the Bench pertains to an order relating to the rate of duty of excise - In the light of statutory embargo laid down in s.35G(1), appeals are not maintainable: HC

++ GST - Petitioner is made to run from pillar to post only because data of IGST refund is not transmitted from GSTN to ICEGATE - That is not petitioner's problem - Refund to be granted along with interest @9% and costs of Rs.25000/-: HC

++ GST - Respondent had scrupulously followed s.75(4) but it was the appellant who chose not to avail the opportunities of personal hearing - no violations of principles of natural justice: HC

++ Sales tax dues cannot be recovered against a private limited company by attaching personal property belonging to company's Managing Director : HC

++ CX - Till 2016 amendment, it was the option of assessee either to avail entire credit in one unit or to distribute in their different units therefore, taking credit in one unit is not illegal or wrong: CESTAT

October 21, 2021

++ GST - Aggrieved persons are deprived of their valuable statutory right due to non-availability of Appellate Tribunal, the last fact finding authority: HC

++ GST - Uploading of form GST-DRC-01 is not a mere formality - breathing time needs to be given to assessee to respond - assessment order passed on the same day cannot survive: HC

++ GST - TRAN-1/2 - Directions were issued in September 2019 to allow petitioners to file declaration and claim transitional credit - since directions not yet complied, Nodal officer to personally remain present before Court: HC

++ GST - GSRDC is a Government Entity as well as a Government Authority - development of bridges and roads is exempted vide Sr. No. 3 of Not. 12/2017-CTR: AAR

++ GST - Transfer of business by AAI to M/s. Adani Ahmedabad International Airport Limited is supply of 'Transfer of a going concern' service and exempted vide Entry No. 2 of 12/2017-CT(R): AAR

++ GST - Invoice raised by AAI for reimbursement of salary/staff cost on M/s. Adani Ahmedabad International Airport Limited - reimbursement of cost is exempt: AAR

++ CX - Not granting access to Relied Upon Documents contravenes principles of natural justice, which is foremost requirement to be complied with - assessment order quashed: CESTAT

++ Cus - Refund of SAD - Original challans evidencing payment of ST/VAT need not be produced & production thereof need not be insisted upon: CESTAT

October 20, 2021

++ GST -  Like cases should be decided alike is the operational norm - Respondents  to permit petitioner to file/revise TRAN-1 either electronically or manually: HC

++  Cus - eNodeB BTS/Micro Cell BTS/Femto Cells BTS/Pico Cells BTS being Base Station compatible with 4G networks is rightly classifiable under CTH 8517 61 00 : CESTAT

++ Cus - Classification of products has to be determined based on tariff entries; Board's Instructions are to be construed in the light of such tariff entries: CESTAT

++ ST - Refund - CA certificate is self-serving document, where issued at claimant's request & hence cannot serve as conclusive proof of payment of amount sought to be refunded: CESTAT

++ CX - As per settled law, goods which were purchased from the open market are deemed to be duty paid , unless proven otherwise: CESTAT

October 19, 2021

++ GST - No re-hearing of a concluded matter is permissible while seeking review: HC

++ GST - Grounds urged may be grounds of appeal but would not be grounds for review within the ambit and meaning of s.114 r/w Order 47 Rule 1 of the Code of Civil Procedure, 1908: HC

++ GST - Refund of accumulated ITC - CBIC Circular 160 clarifies that restriction imposed under  s.54(3) does not cover goods which are subject to Nil rate/fully exempt from export duty - petition allowed: HC

++ NDPS - Non-compliance of s.42(2) and s.50 of the Act would go to the root of the matter and vitiate the trial - Overall evidence does not at all inspire confidence and, therefore, it is highly unsafe to rely upon the same: HC

++ Cus - IS 1460:2017 mandates that 22 parameters are to be met - There is no exception that even if a few parameters are met, the product could still be considered as HSD: CESTAT

++ Cus - Burden is on the revenue, when the classification claimed by the appellant is challenged, to prove that the product is other than base oil: CESTAT

++ Cus - As to why DRI opted to test the product for HSD and not base oil as claimed by importer is not known - Consequently, what is declared has to be accepted: CESTAT

++ VAT - Assessment order which is laconic or is not reasoned order, or which makes no reference to replies furnished by assessee, is unsustainable: HC

October 18, 2021

++ Cus - When the customs application has already been disposed, question of passing the order dismissing said application does not arise, interim application of applicant is dismissed: HC

++ GST - Crumb rubber/granule is classifiable under Heading 4004 and attracts tax @18%: AAR

++ GST - Supply of batteries to the Indian Navy for use in the manufacture of submarines is taxable @ 5%: AAR

++ ST - NSE/BSE transaction charges and SEBI turnover fees paid by stock brokers to concerned agencies is not liable to service tax under stock broker service: CESTAT

October 16, 2021

++ ST - Material on record clearly indicates that there was no deliberate intent to evade tax and any lapse on the part of respondent was rightly viewed as a technical lapse - demand rightly set aside: HC

++ ST - SVLDRS, 2019 - If Court's attention is not drawn to material statutory provisions, there could be review - petition allowed: HC

++ CX - Revenue has cherry picked the assessment years in question, to challenge, giving a finality to the other assessment years - They are precluded from doing so: HC

October 14, 2021

++ Cus - Premium investigating agencies are fighting and levelling allegations against each other - Tardy, casual and irresponsible attitude of both departments - CBI to investigate: HC

++ Cus - Clearance from ICD - CGST department says petitioner is informer whereas Customs department says petitioner, hand-in-glove with officials smuggled the goods - DG of both Departments should have intervened and settled the dispute: HC

++ GST - Mere fact that a number of tasks have been entrusted through a single contract would not make it a 'composite supply' - Supply made by each cost centre is to be considered as independent supply of goods and services - Revenue appeal allowed: AAAR

++ GST - Entry 6 of 12/2017-CTR exempts  services provided 'by' the Government and not services provided 'to' the Government - Fund manager services provided by applicant on behalf of government not  exempted: AAR

++ GST - Services by way of storage or warehousing of ginned cotton bales is not exempted under Entry 24B of 12/2017-CTR; attracts CGST@9%: AAR

++ TNVAT - Best judgment assessment resorted to based solely on report of Enforcement Wing is unsustainable: HC

++ GST - Without consideration of petitioner's claim to ownership over goods in question, respondent has concluded that detained goods are not traceable to any bonafide owner - Order set aside: HC

++ ST - SVLDRS - Contention that unless and until appeal is numbered by Registry, only then can it be considered to be 'pending' before CESTAT is not a criteria laid down in s.124/125 of FA, 2019: HC

++ GST - COVID-19 - Cancellation of registration - Tax Consultant is no more in the land of living - Returns filed with late fee should have been accepted; registration restored: HC

++ SVLDRS -  While interpreting a beneficent provision, its aim and object cannot be ignored - It is completely illogical to reject an application without following principles of natural justice: HC

++ GST - Managerial and leadership services provided by Registered/Corporate Office to its Group Companies is to be considered as 'supply of service'; liable to tax: AAR

++ Cus - Additional Director General, DRI is not a proper Officer to issue SCN under Section 28 (4) read with Section 2 (34) of Customs Act, 1962.: CESTAT

++ Cus - Since the proceedings have taken place without supplying relied upon documents to appellant, the principles of natural justice have not been followed: CESTAT

October 13, 2021

++ ST - CENVAT - When there was no dispute as to receipt of inputs/services or genuineness of the claim, CCESC could not have refused to admit photostat copies of documents: HC

++ Cus - Newsprint paper manufacturer - Allegation of mis-declaration - Mutilating imported brand new books would cause more loss to petitioner than paying redemption fine as well as customs duty: HC

++ Cus - If the importer really imported the goods as brand new books for the purpose of selling it, they would not have volunteered to mutilate the same even before the consignment reached the port: HC

++ GST - When petitioner has been released on interim bail, he cannot be treated in constructive custody, as his movements are not restricted as per directions of the Court: HC

++ ST - Since the appellant had not followed the procedure prescribed under Rule 6 of Service Tax Rules, assessment cannot be considered as provisional and therefore, refund was clearly barred by limitation: CESTAT

October 12, 2021

++ NDPS - Absence of recovery of contraband from possession of petitioner cannot be said to be a ground for non-application of parameters of s.37(1)(b) - bail application dismissed: HC

++ GST - Rule 89 - Restriction which has been read into the provision by Revenue that only a 'supplier' to a SEZ can file refund claim is misplaced: HC

++ GST - There can be no insertion of a word or phrase in a statutory provision or in a Rule which must be read and applied, as framed: HC

++ GST - Considering that a period of one year from the date of provisional attachment under section 83(1) of CGST Act, 2017, has expired despite which order of provisional attachment has not been lifted, this petition is allowed: HC

++ Cus - Amendment to IGM - Without taking a decision on the application made, auction of goods cannot be undertaken by respondent: HC

++ GST - The pendency of petition is not a bar for completing adjudication proceedings contemplated under Section 129 of CGST Act, revenue is directed to complete the same within ten days: HC

++ Cus - Department is independent and none has restricted the authority or stifled its functional duty to act in determining duty duty payable by respondent - Review petition dismissed: HC

++ Cus - Main order seems to have been passed, which is starring at the petitioner - After challenging the same, present challenge made with regard to consequential orders shall be maintained: HC

++ ST - Appeal of revenue against assessee cannot sustain in the absence of evidence on record by which it can be stated that representational rights were granted to home solution service provider : CESTAT

October 11, 2021

++ GST - Pre-deposit, while filing appeals, cannot be made by debiting Electronic Credit ledger - appeals rightly rejected as defective: HC

++ GST - Output Tax cannot be equated with pre-deposit required to be made u/s 107: HC

++ Bail applications - Offences categorized and guidelines laid down for grant of bail: SC

++ MVAT Act - Delay and laches should be considered with reference to original cause of action and not date on which order is passed in compliance with court's direction - HC

++ GST - Once the application had been processed or order passed, which has attained finality, revenue cannot escape plain effect of the same and liability of interest that arises on noncompliance of the same : HC

++ GST - Supply of cooking gas to apartment owner through pipeline is found to be naturally bundled with facility and property management services - supply is of 'service': AAR

++ GST -  Developing and managing Web based applications and related services for conducting online Examination of Educational Boards, Council and Universities are exempted: AAR

++ GST - Supply of  gold coins, refrigerator, mixer grinder, cooler, split air conditioner,  at nominal price to retailers against purchase of specified units of hosiery goods under a promotional scheme is not a 'composite' supply: AAR  

++ GST - ITC available on  items being sold at nominal prices under promotional scheme: AAR

++ GST - Employer portion of EPF and ESIC is not excludible  for the purpose of determination of value of supply u/s 15 of the GST Act: AAR

++ Cus - DEPB scrips are similar scrips under which assessee's money stands credited for future liabilities & once there is no more liability, such amount is to be refunded in cash: CESTAT

++ ST - Even though the portion of service tax which was supposed to be paid by some other person, so long the service tax was paid, credit of same cannot be denied to the recipient of service: CESTAT

October 09, 2021

++ GST - Assessment order quashed where passed without allowing personal hearing as mandated in statute: HC

++ GST - Disputed credit has been recovered from petitioner - Electronic credit ledger to be unblocked within a week: HC

++ GST - Invocation of power u/s 83 is intrusive and can be crippling - Reference to 'opinion' in Section 83, cannot be mere lip service: HC

++ GST - s.83 - Attachment of bank accounts - Authority concerned must justify invocation of coercive and intrusive recovery proceedings, even prior to determination of liability and passing of an assessment order: HC

++ GST - Tax is an independent component which the petitioner does not retain as a profit and is a statutory payment to be made - Respondent to reimburse same: HC

++ Cus - Petitioner's request for mutilation of imported waste paper should be considered by the Customs department u/s 24 of the Act: HC

++ ST - The demand of service tax on the TDS amount is not sustainable when the same is borne by appellant: CESTAT

++ CX - The Service Tax paid in respect of product recall policy for sale of finished goods is eligible for Cenvat Credit: CESTAT

October 08, 2021

++ GST - Since petitioner's representation seeking reversion from regular to composition levy is pending consideration, same is directed to be considered, if pass eligibility criteria, then same should be recommended to GSTN forthwith: HC

++ GST - The correct outstanding amount and the interest payable thereon cannot be determined until the proof of payment be placed on record along with an affidavit: HC

++ TN VAT - Pre-assessment notice is not at all a show cause notice - Procedure contemplated u/s 27 of the Act shall be scrupulously followed: HC

++ GST - As required under procedure, export data of petitioner has been captured by using offline utilities but due to technical glitches in system, process delayed which is likely to take more time, so matter listed: HC

++ GST - Passing on of bogus ITC on strength of fake invoices - Making hefty unlawful and unimaginable financial gain and foiling the idea behind introduction of GST - Bail petition dismissed: HC

++ VAT - Rule pertaining to alternate remedies must be applied with utmost rigor, in respect of fiscal statutes : HC

October 07, 2021

++ Seizure of Sandalwood oil - Fine and RI - Leap of reasoning by the High Court that seizure of goods ipso facto meant that appellant had conscious knowledge about their illicit nature or origin is not justified: SC

++ GST - CSR activities, as per Companies (CSR Policy) Rules, 2014, are considered to be activities excluded from normal course of business and, therefore, not eligible for ITC: AAR

++ ST - If the payment made by a mistaken notion does not come within the realm of 'duty', Section 11B of the Act, 1944 would not be applicable: HC

++ ST - When there is a lack of authority to collect such service tax not liable to be paid, it would not give Department the authority to retain the amount: HC

++ ST - Pre-requisite of pre-deposit paid but appeal filed before wrong forum by mistake - Court exercises extraordinary power and condones delay of 815 days: HC

++ CX - Factual position as to whether petitioner is a manufacturer or fabricator has to be determined during cross-examination of department witness - Order of dismissal of discharge petition by trial Court does not suffer from any perversity: HC

++ GST - SCN for cancellation of registration is not issued in the prescribed template REG-17 - Order set aside: HC

++ GST - For fraud committed by selling dealer, which resulted in cancellation of their registration, there cannot be an automatic cancellation of registration of purchasing dealer: HC

++ CX - Where the sale of goods has taken place through C & F Agent, premises of same C & F Agent is the place of removal in terms of definition of 'place of removal', appellant is entitled for Cenvat Credit : CESTAT

++ Cus - The goods 'screw/drag conveyors and bucket elevators'being part of feed mill machinery used by appellant for manufacture of goods, are rightly classifiable under Tariff Item 8437 90 90 of Customs Tariff Act, 1975 : CESTAT

October 06, 2021

++ Cus - Alternate remedy rule is not an absolute rule, it is discretionary and it is a self-imposed rule qua writ jurisdiction: HC

++ Cus - Steps taken by Department for auctioning goods have to be necessarily deferred - decision of Tribunal in the appeal filed by importer should be awaited: HC

++ GST - Digital platform developed by applicant on which drivers will list their electric vehicles for booking by customers for transportation - SAC is 996412 and tax is @5%: AAR

++ GST - Activity of re-gasification of LNG amounts to rendering of service by way of Job Work; attracts GST @12%: AAR

++ TNVAT - Although permitting personal hearing is not imperative under the Act, such liberty merits being allowed to assessee where it is so directed by the High Court: HC

++ ST - Value of free supplies made by service receiver to service provider cannot be added to the value of taxable service provided by service provider: CESTAT

++ CX - Even though the case was filed in name of Distiller's Association of Maharashtra but since the bill was raised in name of appellant, he is entitled for Cenvat Credit to the extent of portion of services related to him : CESTAT

++ CX - Notification No. 50/2008-C.E. (N.T.) - Inclusion of SEZ developers under Rule 6(6)(i) of CCR, 2004 is clarificatory and applies to the period prior to 30.12.2008 also: CESTAT

October 05, 2021

++ ST - Bank account frozen although pre-deposit made - Appeal filed in November 2019 not yet heard - Court directs CESTAT registry to list appeal on or before 10 th October: HC

++ NDPS - A clean & tidy track record does not absolve petitioner from being in possession of narcotics: HC

++ NDPS - An uneducated person may claim no knowledge of the substance and raise a defence of the substance being planted on them but being a highly educated person, such plea cannot survive: HC

++ Cus - Quantum of redemption of fine which could be imposed is always dependent on determination of the market price of the goods confiscated: HC

++ Cus - Separate communication should be made to the noticee for each opportunity of personal hearing with sufficient interval of time - Fixing three pre-fixed date(s) would fall foul of the Master Circular: HC

++ VAT - Issuance of Form F can be withheld only after granting opportunity of personal hearing to assessee & passing reasoned order : HC

++ Sales Tax - Notice of hearing cannot be considered to have been served where there is neither affixure nor affixure at conspicuous place of last known place of business or residence : HC

++ CX - As the water purifiers functions without electricity and pressurised tap water, they satisfy the conditions of Notification No. 6/2007-C.E. and consequently appellant is entitled for benefit of said Notfn: CESTAT

++ Cus - A corrigendum cannot be issued altering the issues causing undue disadvantage to the Noticee: CESTAT

October 04, 2021

++ COFEPOSA - A preventive detention order is unsustainable on stale or illusory grounds, which have no real nexus with the past prejudicial activity: HC

++ COFEPOSA - A gap of more than 02 years between the last alleged prejudicial activity cannot be the basis for a justifiable apprehension that the petitioner would again indulge in similar prejudicial activity, to prevent which he should be preventively detained: HC

++ Cus - License having been issued by DGFT, the views of DGFT regarding the scope thereof are entitled to pre-eminent consideration over the views of Customs authorities: HC

++ ST - When the service provider obtained registration only for one service, but provided several services, refund cannot be rejected on the ground that the service provider has not obtained registration : CESTAT

++ ST - When the service provider obtained registration only for one service, but provided several services, refund cannot be rejected on the ground that the service provider has not obtained registration : CESTAT

October 03, 2021

++ Cus - Revenue failed to establish mala fides of appellant, since nowhere has Revenue alleged that the appellant was aware or had acted deliberately, so penalty is not sustainable : CESTAT

++ ST - When the service provider obtained registration only for one service, but provided several services, refund cannot be rejected on the ground that the service provider has not obtained registration : CESTAT

October 01, 2021

++ Cus - 53 carpets being retained as ‘samples for forensic purposes' could not have been detained beyond the extended period provided for u/s 110(2) of the Act: HC

++ Cus - Education Cess paid through debit in MEIS scrips needs to be accepted - Benefit of Clause 11 of Circular 02/2020 should be extended: HC

++ Cus - Want of jurisdiction ground can very well be taken at any stage either at the first instance directly against the order-in-original or at final stage after exhausting the appeal remedy: HC

++ CX - Once appeals were rejected by Commissioner (Appeals), though the appellant may be entitled to take re-credit under repealed provisions of Notification No. 27/2012-C.E., he is not entitled to claim again the refund amount : CESTAT

++ ST - A passenger cannot be deemed to be an audience for promotion of business of CRS Companies: CESTAT