TODAY'S CASE (INDIRECT TAX)

April 29, 2023

++ Cus - There is no constitutional compulsion that whilst framing a new law, concessions hitherto granted should necessarily be continued: SC

++ Cus - Withdrawal of pre-import condition - To give retrospective effect to notification 01/2019-Cus dt. 10.01.2019 through interpretation, would be to achieve what is impermissible in law: SC

++ Cus-DGFT Trade notice 11/2017 has escaped attention of HC - Failure to notice para 4.27(d) of HBP are serious infirmities in the HC judgment: SC

++ CX - The goods having been exported, there is no doubt that place of removal is the port of export as clarified by Board circular 999/6/2015-CX, assessee is eligible to avail the credit: CESTAT

++ ST - Issue regarding mention of wrong address in disputed invoices has not been agitated by Department at the time of availment of CENVAT Credit by appellant, rejection of refund benefit cannot be sustained: CESTAT

April 28, 2023

++ Cus - An authority seized with a particular case is required to test the facts of that case in order to come to the conclusion that the law declared is applicable to the facts of the case pending before the said authority: SC

++ GST - Mattresses [HSN 940429] supplied in the State of Tamil Nadu to hostel students of Govt. Schools, educational institutions of Govt. of Karnataka attract tax @18%: AAR

++ GST - Civil Contract services provided to IIT attracts tax @18% w.e.f 01.01.2022: AAR

++ Cus - Application seeking condonation of delay is bereft of any particulars - Bald statement that office of counsel was under renovation hence appeal papers misplaced is unacceptable: HC

++ ST - SVLDRS, 2019 - For the failure of the bank in sending the money by electronic transfer by RTGS on 30th June, 2020, the petitioners cannot be held liable: HC

++ Cus - Having accepted violations and goods being detained and kept in custody of warehouse, a vested right accrues in favour of CWC to recover rent payable to them: HC

April 27, 2023

++ GST - IGST paid on ocean freight charged by foreign vessel provider to overseas supplier for transportation of goods up to customs clearance destination in India - Refund to be granted with interest: HC

++ GST - Addl. CST lacked the jurisdiction to revise the order of the STO - suo motu revisional order set aside: HC

++ GST - Rule 89(5) - Refund of accumulated ITC on account of inverted tax structure - A taxing statute is to be strictly construed: HC

++ GST - Renting of Warehouse to store Agricultural Produce is classifiable under SAC 997212 and attracts tax @18%: AAR

++ GST - Interpretation of law is not mandated to AAR u/s 97(2), therefore, no ruling is given on the question for which a ruling is sought: AAR

++ Cus - Since party has already paid duty under Tariff Heading proposed by department and also shown its bona fides subsequent to import as they sought mutilation of goods before clearance, redemption fine and personal penalty is reduced: CESTAT

++ CX - Since Adjudicating authority has grossly violated principles of natural justice by discarding Chartered Engineer's certificate while disallowing the cenvat credit, matter remanded: CESTAT

++ ST - Merely receiving a tender or opening a tender cannot be considered as acceptance, there should be communication or intimation of acceptance: CESTAT

April 26, 2023

++ CX - It is unfortunate that the observation made in audit objection was taken by department as gospel truth and without conducting any enquiry or investigation, the authority straight away proceeded to issue SCDN: HC

++ Cus - Canalised items - Contract having been entered into and processed, it is virtually next to impossible to stop the consignment mid-sea - Collector of Customs has faulted the appellant of not performing of an act which was next to impossible: HC

++ ST - Appellant had not maintained any non-commercial buildings of Government, but had maintained pipelines which were not exempted under any notification or circular, demand under head of management, maintenance and repair services is upheld: CESTAT

April 25, 2023

++ GST - Affiliation provided by Kota University to its constituent colleges for imparting education is not an exempted supply: AAR

++ GST - CRP Test Kit and HbA1c Test kit are classifiable under HSN Code 3002 and attract tax @5% - AAR order classifying under HSN Code 3822 set aside: AAAR

++ Cus - Provisions of s.129E are not discretionary and the appellant is bound by the same - Pre-deposit is mandatory: HC

++ Cus - Whether gold is of foreign origin is a matter of evidence - As complaint is filed, no further custodial interrogation is required - Applicant to be released on bail: HC

++ ST - SVLDRS - Extension of last date - Any deviation from Scheme would amount to opening a Pandora's box where benefits not contemplated would become available to assessees : HC

++ CX - Appellant failed to file a revised return incorporating cenvat credit paid of service tax on RCM, therefore, appellant cannot get benefit of Circular, payment of duty made by utilizing cenvat credit is not legal and correct: CESTAT

April 24, 2023

++ GST - Offences u/ss 69, 132(1)(a) - Pre-condition of deposit of an amount or furnishing a bank guarantee cannot be imposed while granting bail: SC

++ GST - Prescribed forms governing refunds are for promoting uniformity, clarity, compliance and efficiency - Non-adherence to procedure gives rise to needless litigation: HC

++ VAT - Writ remedy before High Court cannot be invoked in order to overcome hurdle of limitation for filing statutory appeal: HC

++ Cus - In absence of any evidence either to establish that Chartered Accountant's certificate was wrong or that duty was indeed passed on to the buyers, refund claim does not attract condition of unjust enrichment: CESTAT

++ ST - Amount paid is an excess amount over and above the tax liability - refund claim not hit by limitation: CESTAT

++ CX - Appellant have reversed cenvat credit in respect of common inpout service attributed to trading activity and also paid interest thereon at relevant time, no demand of 6/7% of value of trading activity will sustain: CESTAT

April 22, 2023

++ CX - Merely hypothetical calculations of quantity for clandestine removal cannot be accepted: CESTAT

++ Cus - Redemption fine of 10% and penalty of 5% of value of imported goods, would be appropriate in case of imports violating Exim Policy Provisions: CESTAT

April 21, 2023

++ GST - Mahara Jyothi oil, which is an edible RBD Palmolein without any additives or mixture of other oils, is classifiable under 1511 90 20; @5%: AAR

++ GST - By invoking writ jurisdiction, it would not be permissible for petitioner to get away from bar of limitation by the back door - However, developments which took place subsequently have come to rescue: HC

++ GST - Bone of contention - Case of petitioner is that tobacco, supari and lime are different products supplied differently and respective rates are applicable - Dept. says it is Chewing tobacco - Arguable issues: HC

++ GST - Contract for shifting of 132KV towers and replacing with underground cables - Whether 'pure service' and exempt or whether Works Contract Service and taxable - Difference of opinion between Members: AAAR

++ ST - When CENVAT Credit is available on Books of Accounts and the fact cannot be denied that said services were utilized for services exported, then refund cannot be rejected: CESTAT

April 20, 2023

++ PC Act - If Court after considering evidences gathered by Investigating Agency, is prima facie satisfied that there is something more than mere suspicion against accused, it cannot jeopardise investigation if allegations are grave in nature: SC

++ ST - SCN of February 2009 cannot be taken up for adjudication in August 2022 since proceedings are inordinately delayed: HC

++ GST - Auditor has already reviewed petitioner's case and has directed refund for sum of Rs. 38,786/-, revenue is directed to reconsider petitioner's request for lifting of block placed on petitioner's bank account: HC

++ GST - As petitioner had sought for availing alternate remedy and has, in fact, availed it, court is not inclined to admit appeal and hear the contentions of petitioner on merits: HC

++ GST - Appellant is an agent of MoHUA as they are in business of supply of commercial built-up space on behalf of latter; is a taxable person; no exemption as activity cannot be treated as a function of Municipality: AAAR

++ GST - Applicant seeks a ruling on whether Developer can charge GST for developing a plot - Applicant has no locus standi; application rejected: AAR

April 19, 2023

++ GST - Too far-fetched to hold that intention of s.13(8)(b) r/w s.8(2) of IGST Act is to reach out to foreign transactions so as to tax them as an intra-State trade and commerce: HC

++ GST - Provisions of s.13(8)(b) and s.8(2) are legal, valid and constitutional provided they are confined in their operation to the provisions of IGST Act only: HC

++ GST - It cannot be that Authority passes an order without reasons and then arguments are advanced in writ jurisdiction at first instance, remand is necessary to highlight the need to give a reasoned order: HC

++ Misc - Right of review is available if such application is filed within period of limitation: CAT

++ VAT - As per provisions of Sec 42(1) of DVAT if r/w/s 39, interest in any event was payable to assessee from date when it accrued to assessee in terms of section 38(3)(a)(ii) of DVAT Act, 2004: HC

++ Cus - Mere non-mention of invoice number in certificate of Origin is not sufficient reason to deny the benefit of Notfn 46/2011-Cus: CESTAT

++ CX - Activity of Segregation of imported mixed brass scrap into foundry and non-foundry grade, results into manufacture, hence, demand of customs duty on clearance of segregated non-foundry scrap is not sustainable: CESTAT

++ ST - When service tax amount has been deposited before issuance of SCN, no penalty should be imposed: CESTAT

April 18, 2023

++ ST - Extension of time to deposit discounted tax under SVLDRS, 2019 cannot be granted since it would violate the very essence and ethos of the Scheme: HC

++ ST - SVLDRS, 2019 - Extension of last date - Scheme cannot be tinkered with unless the vires are challenged - Pandora's box cannot be opened: HC

++ GST - s.6(2)(b) - Whether duplication of proceedings - Grievance of petitioner to be considered in adjudication: HC

++ GST - Refund of IGST - SC has held that all persons shall have limitation period of 90 days from 15.03.2021 - Order set aside and matter remanded: HC

++ GST - Petitioner permitted to re-submit corrected GSTR-1 as there will be no loss whatsoever caused to Opposite Parties: HC

++ CX - Appellant is entitled to interest on refundable amount from date of deposit till the date of refund @ 12% per annum: CESTAT

++ Cus - Assessee is calciner and used goods as feedstock for making CPC from RPC for their customers with sulphur content ranging from 0.8% to 3.5%, Adjudicating authority is directed to release the goods provisionally to assessee: CESTAT

April 17, 2023

++ CX - Assessee is entitled for interest on refund of amount which he was not liable to pay to Department from that date of deposit itself: CESTAT

April 15, 2023

++ GST - Works Contract Service - Benefit of reduced rate of GST is available only to sub-contractor of the main contractor and not to the second level sub-contractor i.e. sub-contractor to sub-contractor: AAAR

++ ST - So long as it is not established that services are not utilized, CENVAT Credit cannot be denied: CESTAT

++ Cus - Revenue's appeal is rightly dismissed where review order u/s 129D(2) of Customs Act 1962 is passed beyond the 3-month period envisaged in Section 129D(3) of the Act: CESTAT

April 14, 2023

++ GST - No parity - Consumer using Uber App to book an auto rickshaw ride and consumer who uses a street hailed auto rickshaw fall under a different category - Notifications 16 & 17/2021-CTR not ultra vires: HC

++ GST - Appealable orders (to Tribunal) would not be implemented till Tribunal becomes functional - Board to issue instructions to incorporate Clause 4.2 of Circular dated 18 March 2020 in each order: HC

++ Cus - Bench finds nothing in the impugned order that would suggest that maximum compounding fee was warranted - Matter remanded: HC

++ GST - Appellate Authority should consider the question whether it has the authority to expand the scope of controversy by introducing a fresh ground for denial of refund: HC

++ ST - CENVAT Credit on input services which are used for bringing into existence of immovable property are eligible for availment of CENVAT Credit: CESTAT

April 13, 2023

++ GST - Order,  exparte  in nature, passed in violation of the principles of natural justice, entails civil consequences, hence is set aside: HC

++ Cus - Manual Breast Pumps used by lactating mothers are made of plastic & is commonly usable; item is not used by medical practitioners or for specialised medical procedures - hence classification under CTH 9018 is incorrect; correct classification is CTH 3926: CESTAT

++ Cus - Product literature or intented usage cannot be the sole basis for classification of a product: CESTAT

++ ST - Use of some software per se would not amount to such activity being taxable under Information Technology Service: CESTAT

April 12, 2023

++ GST - Manpower supply for housekeeping, cleaning, security, data entry etc. to various Government departments is not eligible for exemption under 12/2017-CTR: AAAR

++ GST is not leviable on amount representing employee's portion of canteen charges recovered by applicant from its employees and paid to CSP on behalf of employee: AAR

++ GST - Lease of plot for 90 years is not 'sale of land' - One time premium received on allotment of completed commercial units is taxable supply under SAC 9972 @18%: AAR

++ GST - Since the person who has applied is not the person who proposes to undertake the supply, the question of giving advance ruling in the matter simply does not arise: AAR

++ GST - Sugarcane juice cannot be considered as an agricultural produce; is classifiable under heading 2009 8990 and attracts tax @12%: AAR

++ GST - If petitioner deposits an amount equivalent to 2.5% of its liability, petitioner's appeal against O-I-O would not be rejected solely for want of requisite pre-deposit: HC

++ GST - Expiry of e-way bill - Any hindrance in the movement of goods or fray amounts to an obstacle in the development of the nation: HC

++ Cus - In absence of evidence to the effect that documentary evidence produced by asesee are not legal document, confiscation of 7000 kgs of Black Pepper is set aside: CESTAT

++ CX - When Chartered Engineer's Certificate clearly shows that all the goods were used for capital goods in factory of appellant, cenvat credit should be allowed: CESTAT

April 11, 2023

++ COFEPOSA - In cases of preventive detention, every procedural irregularity must be accrued in favour of the detenue: SC

++ ST - Import of 'Engineering Design & Drawings' - CESTAT view that same activity cannot be taxed as 'goods' and ‘services' is absolutely erroneous: SC

++ KVAT - Mosquito Mats, Coils and Vaporizers, Mortein Insect Killers, Harpic, Lizol are not classifiable as 'insecticides', taxed @12.5%; Dettol is a medicament taxed @4%: SC

++ GST - Since GST registration of petitioner is cancelled without application of mind, impugned order is quashed subject to condition that petitioner files returns within a period of four weeks: HC

++ CX - It is serious violation of principles of natural justice, if authority which hears a matter is different from that one which actually adjudicates said matter: HC

++ CX - Right to avail CENVAT credit accrues as soon as scheme is availed; the right to adjust tax on final product accrues to assessee on date of paying tax on raw material or inputs: HC

++ ST - Demand raised u/s 66A r/w Rule 3(ii) of Taxation of Services Rules is invalid, where provision of service was from within India, rather than from outside India: CESTAT

April 10, 2023

++ GST - Reply to notice, although received, has not been considered by respondent before passing order - Matter remanded: HC

++ ST - Sample of blood/tissue is not provided by recipient who seeks analysis thereon - rule 4(a) of PoPS Rules, 2012 not satisfied - service is export: HC

++ Cus - Transfer of knowhow and related technical assistance was not a condition for sale of the capital goods - No need to include knowhow fee in AV: CESTAT

April 08, 2023

++ GST - Commodity is not packed for retail sale for any buyer but it is packaged for a specific buyer - discussion as to whether it is primary/secondary packing is infructuous: AAR

++ GST is not applicable on amount recovered from employees for canteen & transport facilities provided by a third-party: AAR

++ GST - Liquidated damages collected by applicant attract tax @18%: AAR

April 07, 2023

++ ST - MTNL is not liable to pay tax on compensation of Rs.458 crores received from GoI on surrender of CDMA spectrum: HC

++ ST - There is no provision in the Act which contemplates any procedure for seeking clarification from jurisdictional authority - Reasoning given in SCN while invoking extended period is fallacious: HC

++ GST - The amount deposited by petitioner under protest were liable to be refunded as petitioner has been deprived of his right: HC

++ VAT - ex parte assessment order passed without complying with rules of natural justice merits being set aside: HC

++ GST - Question on which advance ruling is sought is vague in nature - Application rejected: AAR

++ GST - Attachment of bank accounts is a draconian step and such action can only be taken in case conditions specified in Section 83 of the Act, are fully satisfied: HC

++ GST - Summary of SCN in Form GST DRC-01 cannot substitute the requirement of a proper SCN under section 73(1) of the Act of 2017: HC

April 06, 2023

++ GST - No benevolent interpretation is available while construing taxing statute - Invoice has to be carried in physical form by the person-in-charge of a conveyance: HC

++ GST - Petitioner's GST registration is sustained albeit with effect from date of SCN instead from date when such registration was granted: HC

++ ST - When there is no explanation for inordinate delay, applications seeking condonation of delay cannot sustain: HC

++ GST - Goods shipped from Indian Manufacturer's premises to foreign destination without being physically delivered to applicant, on whom order placed by overseas customer - Transaction is neither a supply of goods nor a supply of services: AAR

++ GST - Purchase of broken Tobacco leaf ' Bhukko ' from agriculturist - attracts tax @5% on RCM basis: AAR

++ GST - Court prima facie feels from complexity of allegations where very large tax evasion is involved and money trail has to be traced to its origin, demand of prosecution for custodial interrogation of petitioner appears to be reasonable: HC

++ Cus - Kiwi fruit imported by appellant, are perishable goods yet pending adjudication - also cleared for import by FSSAI & NABL - conditional release of goods ordered: HC

++ Cus - When statute provides for statutory appeal, said remedy is to be availed by litigating parties, court do not find it proper to entertain these petitions: HC

++ CX - When products are not intentionally manufactured but only arise during process of refining of crude vegetable oil, same should be considered as waste and they are entitled to benefit of exemption notfn 89/1995-CE: CESTAT

April 05, 2023

++ GST - 'Other charges' which are inextricably linked to services by way of construction of residential apartment attract tax @12% since bundled services, whereas Club house charges, advance maintenance etc. rightly attract @18%: AAAR

++ Cus - In absence of specific provision of Section 27, being made applicable in notfn 102 of 2007-Customs, time limit prescribed in said Section would not be automatically applicable to refund under notification: CESTAT

++ CX - Freight charged separately in sale invoices of excisable goods is not includible in assessable value of such excisable goods, consequently, no demand of duty on said freight would sustain: CESTAT

++ ST - Service tax amount collected by appellant from their client already stand deposited to Government Exchequer by electronic media company, therefore, provision of Section 73(A) cannot be invoked: CESTAT

April 04, 2023

++ GST - Society cannot collect amounts as voluntary donations from Transferor/ Transferee in transgression of Model Bye Laws - Excess amount collected is to be considered as towards future taxable activity: AAAR

++ GST - Issuance of course completion certificate is useful only as one of the enclosures to file application for Type Rating examination conducted by DGCA - services not exempted: AAR

++ GST - PVC floor mats for use in cars is classifiable under CTH 8708 and attracts tax @28%: AAR

++ GST - A residential property given on rent to a registered person, whether for residential purpose or otherwise, shall attract RCM provisions: AAR

++ GST - Dried coconuts (shelled or peeled) supplied by Applicant is Copra classifiable under Heading 1203 and attracts tax @5%: AAR

++ ST - The apparel that cricketers had to wear was team clothing, which bears brand/marks of various sponsors, they were not rendering any services which could be classified as business support services: CESTAT

++ Cus - Entire case was based on document but no physical movement or diversion could be established, demand of customs duty is not sustainable and consequently, confiscation of goods is also incorrect and illegal: CESTAT

++ CX - Assessee will be eligible for Cenvat Credit for foundation bolts purchased by them, as same have been received and used by them in their factory where they are manufacturing dutiable goods: CESTAT

April 03, 2023

++ ST - Providing of Corporate Guarantee cannot be a taxable service in absence of flow of consideration: SC

++ VAT - Assessment u/s 34(8A) can be resorted to only if pre-existing condition of there being any proceedings are not pending: HC

++ RTI Act - Imposing Anti Dumping Duty has significant impact on economic interests & trade relations of India - constitutes confidential information which cannot be subject to disclosure under RTI Act: HC

++ RTI Act - Anti Dumping Authority vested with specialised knowledge of trade & Anti Dumping proceedings which enables it to decide whether or not to disclose certain information - Such expertise does not vest in the CPIO/PIO under RTI Act: HC

++ GST - Order passed u/s 130 of CGST Act without affording opportunity of personal hearing to assessee, is not sustainable: HC

++ GST - Cash seized by GST Officers since it lay idle & was not deposited in bank & was not declared in ITR - clear over-stepping of jurisdiction u/s 67 of CGST Act - cash retained for 6 months without issuing SCN - cash to be returned to appellant: HC

++ Cus - When there was no written consent by appellant and they were before Commissioner (A), same should have been reason enough to remand the matter to lower authority for issue of a speaking order in compliance with section 17(5) of the Act: CESTAT

++ CX - Merely on the basis of income tax investigation, case of clandestine removal under Central Excise Act cannot be confirmed without bringing independent tangible evidence on record: CESTAT

April 01, 2023

++ Cus - CESTAT's reasoning and conclusion that LCD panels [used in TV sets; Audio systems in automobiles] are classifiable under CTH 9013.8010 is sound and unexceptionable: SC

++ CX - Once the order-in-original sanctioning refund came to be set aside in a proceeding u/s 35E, there is no question of any further notice u/s 11A: SC

++ GST - Amendment to Rule 89(4)(C) of CGST Rules is illegal, arbitrary, unreasonable, irrational, unfair, unjust & ultra vires Section 16 of IGST Act & Section 54 of CGST Act as well as Articles 14 & 19 of Constitution; hence merits being quashed: HC

++ ST - Re-insurance does not cover the risk to the asset; is not excluded from the definition of 'input service': HC

++ CX - Since there is no loss of goods at loading and unloading stage, no duty demand is sustainable accordingly, duty so paid by appellant is required to be refunded: CESTAT

++ Cus - Merely because appellant has been issued a License by Drugs & Cosmetics Act, it cannot be said that Saccharomyces Boulardii are known and understood as medicine, same are to be classified under Chapter 21: CESTAT

++ ST - Rejection of refund claim by referring to ST-3 return, cannot be justified, provided the fact of admissibility and availability of credit claimed as refund can be determined from records maintained under CER, 2002, CCR, 2004, or STR, 1994: CESTAT