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Untitled Document

TODAY'S CASE (INDIRECT TAX)

Taxindiaonline.com



Dec 30, 2023

++ CX - CENVAT credit cannot be denied to the assessee prior to its registration as an ISD, since the same is a procedural irregularity: CESTAT

++ ST - Service received by appellant from overseas companies in delivery of couriers/parcels of customers of India at various international destinations is outside the purview of Business Support service: CESTAT

++ Cus - Provisions of section 30 of SEZ Act permits DTA clearances by a SEZ unit on certain conditions, which is that goods to be removed from SEZ to DTA would attract Customs duty: CESTAT

++ Cus - As per settled precedent, once the provisions of a law are clear & unambiguous, there is no scope for enlarging such provisions for interpretative purposes: CESTAT

++ ST - SCN was not required to be issued in view of provisions of section 73(3) of Finance Act, there being no evidence of willful short payment of tax, nor of any fraud or suppression, as entire service tax amount was deposited along with interest after short payment of tax was informed by audit party: CESTAT

Dec 29, 2023

++ GST - There is little scope for imputing principles of equity in matters of tax: HC

++ GST - Assumption that since transaction of imports and exports is revenue neutral, same would absolve petitioner from payment of GST or any interest thereon is contrary to law: HC

++ GST - Charges for metering equipment, testing fee for meter, labour charges collected for shifting of meters, charges for bills and application for releasing connection are all integral part of services of distribution of electricity - Exempted under 12/2017-CTR: HC

++ GST - Respondent has been trying to somehow block refund - Seeking bank guarantee from petitioner is ex facie contrary to directions of appellate authority ordering refund: HC

++ GST - Order provides no reason whatsoever for cancelling petitioner's GST registration, much less the reason for doing so with retrospective effect - No arbitrary discretion: HC

++ GST - Cancellation of registration - Since petitioner had already changed principal place of business, it was not functioning from the said premises that were visited by officials - Officer to examine: HC

++ GST - SCN issued without setting out any reasons, as also an order passed without application of mind - Order cancelling registration quashed and set aside, status-quo ante is to be restored: HC

++ Cus - Respondent M/s CCI is not entitled to charge any demurrage charge on the goods so detained by the custom authorities: HC

++ Cus - Petitioner explained difference between price mentioned in supplier's invoice and manufacturer's invoice - Since respondent has not rebutted the same, they cannot contend that entries in BE are incorrect - detention waiver certificate could not have been denied: HC

++ Cus - Provisional release based on Circular 35/2017 - Condition of bond equivalent to value of seized goods and security deposit of 120% of sale value - As para 2 of Circular is set aside, matter remanded: HC

++ CX - Lower authorities had erred in insisting upon original document as proof of discharge of duty liability even though available with central excise authorities, application restored to original authority for fresh determination of application for sanction of refund: CESTAT

++ ST - The SCN issued to appellant is barred by limitation as the same has been issued by extended period of limitation, no demand is sustainable against appellant : CESTAT

++ Cus - Assessee cannot be penalised where export obligation is fulfilled and delay in issuance of EODC is attributable to DGFT- Benefit under EPCG scheme cannot be denied: CESTAT

Dec 28, 2023

++ GST - If any amount is collected without any authority of law, the same amounts to depriving the person of his property and infringes his rights under Article 300A: HC

++ GST - Appellate authority could not have taken a definite view that petitioner was not functioning from his declared place of business without undertaking any physical verification: HC

++ GST - Taxpayer made a bonafide attempt to make an application but was prevented to do so on account of technical glitches - Claim for refund cannot be denied on account of delay: HC

++ GST - Cancellation of registration - Discretion cannot be exercised in arbitrary manner - The decision to cancel registration with retrospective effect must be based on some objective criteria: HC

++ GST - SCN is flawed inasmuch as although it directed petitioner to appear for a personal hearing on appointed date and time but it failed to specify said date, time, or venue: HC

++ GST - A taxpayer's registration can be cancelled with retrospective effect only where such consequences are intended and are warranted: HC

++ Cus - Provisional release - Para 2 of Circular No. 35/2017-Cus to the extent it curtails discretion accorded to adjudicating authority is set aside: HC

++ Cus - Imported item viz., G-24 PL 001 GSM Chipset Wavecom (modem) are rightly classifiable under Chapter Heading 8537: CESTAT

++ ST - composite contract involving supply of service & material cannot be taxed before 01.06.2007 i.e. before enactment of works contracts service - Demands quashed: CESTAT

++ ST - Demand of Service Tax on liquidated damages cannot sustain, same is set aside: CESTAT

Dec 27, 2023

++ GST - SCN and order bereft of any particulars - Delay of more than two years in approaching Court is not pernicious to petitioner's claim for restoration of registration: HC

++ GST - Under which provision of law can the respondent compel a taxpayer to maintain its registration after the taxpayer has closed down its business and seeks cancellation of its registration: HC

++ GST - If petitioner is able to furnish GSTIN of recipient organisation and demonstrate that its services was totally sponsored and borne by Central/State Govt., respondent will have to decide whether exemption Notification No. 12/2017 is admissible: HC

++ GST - Provisional attachment of bank account - Revenue directed to produce original file: HC

++ GST - s.65(7) - Can, based on each paragraph of the Audit Report, a separate SCN be issued or should it be confined to issuance of a single SCN: HC

++ CX - Assessee engaged in oil refinement; used pipelines to transport oil from Single Buoy Moorings in the sea to storage units on land; said pipelines crucial for manufacture of final product; Cenvat credit availed thereon is sustained: CESTAT

++ ST - Mere non-obtaining registration, nonpayment of service tax and non-filing of ST-3 Returns cannot be a reason to allege suppression and that a positive act on part of assessee with intent to evade payment of tax has to be established : CESTAT

++ ST - Tax demand stands barred by limitation where issuance of SCN is delayed by 5 years: CESTAT

++ Cus - Disallowing an exporter from manual filing of Bill of Entry u/s 46 of Customs Act, violates principles of natural justice, as exporter is debarred from availing benefit of DEPB scrip: CESTAT

Dec 26, 2023

++ Cus - Seizure of gold jewellery - Once the property of the ownership of petitioners was sold, certainly the provisions of Article 300A would stand attracted: HC

++ Cus - Throwing to the wind the norms of fairness and reasonableness - SCN was meaningless as the gold jewellery itself was not available for confiscation: HC

++ ST - How the agreement is to be construed is a matter of fact which has to be analyzed by the statutory authorities in appeal - Not a fit case for exercise of extra ordinary writ jurisdiction: HC

++ Cus - Once duty is paid 'under protest' and party challenges same by filing an appeal, it necessarily implies that demand of duty is disputed and consequently the case would fall u/s 129A (6) and the party would be liable to pay court fees: CESTAT

++ Cus - Since conditions for import of gold as per notfn. issued by DGFT and restrictions imposed by RBI have been violated, gold in question has to be treated as 'prohibited goods' - Consequently, it would fall within definition of 'smuggling' which will render such goods liable to confiscation: CESTAT

++ Cus - Re-assessment of shipping bill is not final, appellant has no reason to challenge assessment of shipping bills, therefore, the reasons for denying refund to appellant are not sustainable: CESTAT

++ CX - Order-in-Appeal confirming tax demands warrants being quashed where it omits to consider several submissions raised by Assessee: CESTAT

++ Cus - Claimants are entitled to interest on refund since claim for refund is relatable to date of its applications & not the date of compliance with query raised by Revenue: CESTAT

++ ST - Where Assessee establishes that any advance amount received or portion thereof was refunded to payer and that no service was rendered in respect of the advance amount, that such amount will not attract service tax: CESTAT

++ ST - When software is supplied (preloaded) in a medium like hardware, same cannot be treated as provision of service, said supply would amount to sale of goods and demand of service tax on value of bought out software by appellant cannot be sustained : CESTAT

Dec 23, 2023

++ ST - Notice Pay - Compensation for failure under a contract is NOT consideration for service under the contract: CESTAT

++ ST - Clearance granted by the MoEF & CC for using forest land for non-forest purposes, cannot be deemed to be Declared Service as per Section 66E(e) of Finance Act 1994; ergo, Net Present Value amount paid in respect of such land is not consideration for some service - tax demands qaushed: CESTAT

Dec 22, 2023

++ GST - Issuance of demand notice u/s 73 by Proper Officer was without compliance of mandatory conditions precedent viz. Form GST ASMT-10 was not issued - Operation of demand notice stayed: HC

++ GST - GSTR-2 - If form is not notified, petitioner cannot be expected to file the same to claim ITC - Assessee should not be prejudiced from availing credit that they are otherwise legitimately entitled to: HC

++ GST - Right to appeal cannot be frustrated by shackles of complex procedural formalities - Amount deposited under protest during course of search can be treated as 'pre-deposit' - No need to pay afresh: HC

++ Cus - Entire basis for enhancement of value is one NIDB Data which was not provided to appellant during Adjudication process, therefore appellant did not get opportunity to defend their case countering NIDB Data, matter remanded: CESTAT

++ ST - Service tax could not have been levied on notional interest calculated by department on interest fee security deposit collected by appellant from tenants: CESTAT

++ Cus - Deodorized field Condensate Crude Oil' and 'Murban Crude Oil is correctly classified under CTH 2709; exemption as per Notification No. 21/2002-Cus read with Notification No. 74/2008-Cus is allowed: CESTAT

++ CX - Since the issue being a recurring, subsequent SCN which is for a normal period, therefore, neither Rule 25 nor Section 11AC can be invoked as there is no suppression of fact: CESTAT

Dec 21, 2023

++ GST - s.101(3) - GTA service - Whether GST would be leviable on value of diesel filled free of cost by the service recipient or otherwise - Divergence of opinion - Issue remains unanswered: AAAR

++ CX - As long as petitioner bonafidely pursued a legal remedy, then even if said remedy turned down to be abortive later on, the time taken in pursuing that remedy is to be excluded, being jurisdictionally deficient, as otherwise the results would be anomalous: HC

++ Cus - Quantity of crude oil actually received into a shore tank in a port in India should be the basis for payment of customs duty : CESTAT

++ CX - The goods are for export, free of cost being sent for promotional purposes as trade sample on no returnable basis, therefore entire demand is bad in law as impugned order has travelled beyond SCN: CESTAT

++ CX - Penalty cannot be imposed on grounds of suppression of facts, where relevant matter involves interpretation of law & where divergent views exist at the relevant time w.r.t. such law: CESTAT

++ ST - The wage bills of workers are not only properly prepared as per Minimum Wages Act, but their CPF, ESI are properly deducted and deposited to respective authorities, service rendered by Appellant would not fall within ambit of 'Manpower Recruitment & Supply Agency': CESTAT

Dec 20, 2023

++ Cus - Order, passed by a Court having no jurisdiction, is non est and its invalidity can be set up at any stage and in any proceedings: HC

++ Cus - s.129A(1) - It would be erroneous to accept that entitlement of the Firm claiming payment of Drawback cannot be considered, but Revenue's demand for recovery of erroneously paid Duty Drawback can be considered by CESTAT: HC

++ GST - s.132 - Argument that arrest can only be after completion of assessment has no legs to stand: HC

++ GST - For a proper investigation of the offence and to prevent petitioner from causing evidence to disappear or to tamper, continued custody of the petitioner is warranted - Bail application rejected: HC

++ GST - Order records that the petitioner has submitted a reply; however, assessing authority, while imposing penalty returned the findings that no reply was tendered - Order has been passed without application of mind: HC

++ Cus - The bona fides of appellant cannot be suspected just because the vendor / supplier chose to affix a different price tag and therefore, there is no case for Revenue to order confiscation of goods in question: CESTAT

++ Cus - Since impugned order does not take notice of explanatory notes part (III) which lays down the criteria for classification of parts and accessories, matter remanded to Adjudicating Authority for fresh adjudication: CESTAT

++ CX - The product 'Gelatin Mass Waste' generated during course of manufacture of finished goods being a waste product, the CENVAT inputs gone into its generation is not required to be reversed: CESTAT

++ CX - As per settled law, eligibility for Cenvat Credit has to be considered as on date of receipt of services, because the moment Assessee receives service along with invoices on that date, the cenvat credit stands accrued to Assessee: CESTAT

++ ST - Benefit u/s 80 of Finance Act 1994 merits being allowed where Assessee's failure to pay Service Tax arose from bona fide belief of not being liable to pay tax; charges of suppression of facts are not tenable since Assessee paid tax in other period & cooperated with Department; no penalty is imposable - Entire demand barred by limitation: CESTAT

Dec 19, 2023

++ GST - Goods were found with proper tax invoice and E-way bill belonging to petitioner - Circular 76/2018 would apply and petitioner would be deemed to be owner - goods to be released in terms of s.129(1)(a): HC

++ GST - Right of second appeal cannot be denied on account of failure of government: HC

++ Cus - Request for provisional release for re-export was disallowed on the ground that same can be considered only at the time of adjudication - Court directs Commissioner to pass appropriate orders by laying down reasonable conditions: HC

++ Cus - SCN adjudicated after 14 years - Order was set aside - Department's submission that SCN was never kept in call book and, therefore, Court's observation is factually incorrect is not backed by any material on record - Application dismissed: HC

++ Cus - Single Judge rejected writ petition on ground of existence of alternate remedy - Division Bench, in appeal, would normally be loathe in interfering with exercise of such discretion: HC

++ ST - Services in question on which appellant had short paid service tax were its input services and they would have been entitled to take Cenvat credit of entire amount of service tax immediately after paying such tax, penalty under section 78 of Finance Act cannot be sustained: CESTAT

++ CX - Charges of unjust enrichment are not sustainable where Revenue is unable to demonstrate as to how the Assessee benefitted from the purportedly erroneos refund sanctioned: CESTAT

++ Cus - The white spirit which is a petro oil/hydrocarbon solvent are rightly classifiable under the CTH 27101990, hence the goods are not liable for confiscation: CESTAT

++ ST - As per settled precedent, construction of residential complex under JnRUM Scheme is not liable to Service Tax: CESTAT

Dec 18, 2023

++ GST - S.16(2) - GSTR-1, GSTR-2A - No action against supplier - Ignoring tax invoices and bank statements - Order reversing ITC set aside by HC - Bench not inclined to interfere: SC

++ GST - Pre-deposit amount - In congruent facts, identical interim orders are liable to be granted, otherwise an anomalous situation will arise where similarly situated persons will be accorded differential treatment leading to discrimination and violation of Art. 14: HC

++ GST - Maintainability of petition - Non-functional Appellate Tribunal - Executive inertia cannot become the cause of denial of a statutory right: HC

++ GST - Demand of Rs.20.87 crores confirmed and penalty imposed of Rs.18.17 crores without rejecting request of petitioner seeking adjournment of 30 days to file reply - Violation of principles of natural justice and mandatory s.75(4) - Order quashed: HC

++ GST - It is a trite law that whenever any ambiguity arises with regard to any provision, benefit must go to the taxpayer - Respondent ought to have issued tax intimation u/r 142(1A) for pre-amended period - SCN could not have been issued straight away: HC

++ GST - Source of Rs.50 lacs received by petitioner - Bench has serious reservations as to whether any directions could have been issued by Special Judge for conducting a roving and fishing inquiry by GST authority: HC

++ ST - Supreme Court upheld levy of Service Tax in respect of Consulting Engineer Service received by Assessee - Commr.(A), being ignorant of Supreme Court's binding decision, passed order quashing subsequent demand raised - O-i-A in question contravenes rule of judicial discipline, hence quashed: CESTAT

++ ST - Rent received by each appellant individually has to be taken separately to calculate whether each appellant falls beyond threshold limit for payment of service tax, demand of service tax by clubbing of rent received by both appellants cannot sustain: CESTAT

++ ST - As per Article 366(29A) of the Constitution, transfer of the right to use any goods for any purpose for cash, deferred payment or other valuable consideration, qualifies as sale of goods & which attracts sales tax; ergo service tax cannot be levied on transaction involving sale of goods: CESTAT

++ Cus - CBLR 2018 - Merely because some fraud is committed by the exporter, a Custom Broker cannot be implicated automatically, despite having no role in offence of fraudulent export: CESTAT

++ Cus - Notification No.102/2009-Cus - Assessee was unaware of export obligation having to be fulfilled within 4 years, but Assessee satisfied Notification by paying tax with interest on being pointed out; penalty & redemption fine were rightly dropped: CESTAT

Dec 16, 2023

++ CX - Provisional assessment is a tool for Department to keep an assessments alive; it is not meant to be used by an Assessee to claim that correct rate of tax was not determined due to the Department having resorted to a provisional assessment: CESTAT

++ ST - In composite contract involving supply of material & service, it is not required to submit bills evidencing sale of materials used in providing service, to avail abatement of 67%: CESTAT

++ ST - Assessee transferred cranes with only right to use, while retaining effective control & possession - Such service is taxable under Supply of Tangible Goods service u/s 65(105)(zzzzj) of Finance Act 1994: CESTAT

++ Cus - Penalty cannot be imposed on Assessee where issue at hand involves interpretation of a particular notification & where no alleged intent to evade payment of tax is made out: CESTAT

++ Cus - Goods sent out of India on approval basis does not attract integrated tax at the time of re-import: CESTAT

Dec 15, 2023

++ GST - s.107(6) - Pre-deposit - There shall be no insistence for payment from the Electronic Cash Ledger - Appeal to be heard on merits: HC

++ GST - Notfn 53/2023-CT - Allowing filing of delayed appeals upon payment of 12.5% Pre-deposit - Notification apparently allows payment of at least ten per cent through ECRL: HC

++ GST - Since respondent had cancelled registration, they ought to have served SCN by physical mode and not through e-portal, which access was consequently barred - Orders and property attachment notices set aside: HC

++ ST - Whether, Tribunal being the last fact-finding authority is required to examine the facts, written agreement / contract between parties and in its absence remand the matter - Difference of opinion: CESTAT

++ CX - Vehicles at the time of clearance were 'bare delivery vans' and did not have essential character of an ambulance - Rule 2(a) of GRI would not come to aid of department - Demand set aside: CESTAT

++ Cus - Smuggling of gold - Initial burden is on assessee in terms of s.123 ibid to dislodge the suspicion entertained by Revenue and prove that goods in question that was seized from his possession, were not smuggled: CESTAT

++ Cus - The web cameras are not digital camera nor it can be considered as a television camera, therefore, web cameras are rightly classifiable under Chapter Heading 8473: CESTAT

++ CX - DRI issued SCN to Assessee on issue involving classification of imported goods - classification of items is interpretational issue - SCN does not allege fraud, collusion, wilful mis-statement or suppression of facts - Hence, no grounds made out for invoking Rule 9(1)(b) of CCR 2004: CESTAT

++ CX - Appropriate classification of an input service cannot form grounds to deny Cenvat credit, where it is undisputed that such service has been used in manufacturing unit in relation to manufacture process: CESTAT

++ ST - Activity of construction of Mega Sports Complex would amount to 'Works Contract Service' as defined under Clause (b) of Section 65(105)(zzzza) and hence same are not liable to service tax as mega sports complex is not primarily meant for commercial purposes : CESTAT

++ ST - Demand on account of business auxiliary service, GTA service and construction service w.e.f. 01.06.2007 onwards are confirmed along with interest and amount already paid by assessee are to be appropriated if any excess amount is paid, same is to be refunded to assessee: CESTAT

Dec 14, 2023

++ Cus - 526 days delay in filing appeal - Revenue has not offered any explanation for this huge delay - Appeal dismissed: SC

++ VAT - It is incorrect to state that sale of goods will not attract VAT under Delhi VAT Act, if there is no increase in value of the goods by the dealer: HC

++ CX - Advance licence - For violation of condition 8 of 93/2004-Cus, only Customs authorities can initiate action to deny benefit of duty exemption and not Excise authorities: CESTAT

++ Cus - Forfeiture of Customs Broker's security deposit is unwarranted, where broker was not involved in any omission/commission towards illegal import of goods & was unaware of fraud committed by broker - Penalty of Rs 10000/- imposed for negligence in supervising activities of employee towards compliance with CBLR provisions: CESTAT

++ Cus - Assessee has intentionally filed documents (BOEs) to clear goods by mis-declaring the names of consignees and consignors and by knowingly using same GSTIN for all BOEs meant for different consignees, Courier registration of assessee revoked: CESTAT

++ CX - It is not open to SCN issuing authority or adjudicating authority to level allegation without evidence in support of ineligibility for shifting the onus of establishing fulfilment of conditions on assessee : CESTAT

++ CX - Rule 7 of Central Excise Rules, 2002 and instructions issued thereon provides for assessment of duty finally in a case where assessee is unable to determine correct amount of duty or correct rate of duty and also does not opt for provisional assessment: CESTAT

Dec 13, 2023

++ GST - s.107(6) - Supreme Court stays Patna High Court order laying down that pre-deposit should be made through Electronic Cash ledger only: SC

++ Cus - Red sanders, attempted to be illegally exported, were seized and handed over to appellant's CFS for safe custody - Entire red sanders was found stolen - Commissioner entitled for recovery of loss from appellant: HC

++ Cus - Once the principle of law has been laid down by the Supreme Court, it is binding on all the Courts in the country, which would also include the Tribunal: HC

++ GST - Value of supply in case of lottery, betting, gambling and horse racing - Challenge to s.15(5)/rule 31A(3) - Final orders on SCN not be passed without leave of court: HC

++ CX - Manner in which the goods are marketed does not at all make them marketable - Making a combi-pack of duty paid toothpaste and toothbrush is not manufacture - Rs.15 crore duty demand set aside: CESTAT

++ CX - Notfn 50/2003-CX - Declaration is only procedural - substantive condition satisfied, hence eligible for benefits: CESTAT

++ CX - CENVAT fraud - A conspiracy is always hatched in secrecy, and it is, at times, impossible to adduce direct evidence of the same - Voluntary statements, if clearly proved and found acceptable, are the most effective proof of law: CESTAT

++ ST- s.67 - Whether payments of part of salary to secondees in INR will form part of 'gross amount charged' for arriving at taxable value- Difference of Opinion- Matter referred to President: CESTAT

++ Cus - Imported raw materials and those procured from DTA without payment of duty becoming obsolete - When such goods are destroyed, they are not liable to duty on the original value: CESTAT

++ Cus - Export of sugar - Basic objective of the RoDTEP scheme is to grant benefit of rebate to the exporter as an incentive for exporting product: HC

++ GST - Coercion - Deposit made of Rs.10 lakhs in form GST DRC-03 at 9 pm from the laptop carried by the visiting investigation team - Amount to be refunded: HC

++ GST - Authorization in FORM GST INS-01 does not require the officer concerned to give any reasons in detail: HC

++ GST - Respondents have not issued an acknowledgment in FORM GST DRC-04 - Thus, the procedure u/r 142 has not been followed – Payment not voluntary, to be returned: HC

++ GST - ITC mismatch - Respondents have not ascertained tax liability and no notice has been issued to petitioner as contemplated u/r 142(1A) - Payments made were not voluntary but under compelling circumstances - Amounts to be refunded with interest: HC

++ GST - No clue as to the facts allegedly suppressed - SCN does not satisfy rudimentary requirement of a show cause notice - Respondent to restore petitioner's registration: HC

++ GST - It is impermissible for the officers to pressurize taxpayers to pay tax without following requisite procedure, notwithstanding that it may be apparent that such tax is due and payable: HC

++ GST - Form GST INS-01 - Sufficiency of reasons is not subject to judicial review: HC

++ GST - s.54 - ITC refund - Revenue's contention that petitioner is not entitled to refund of unutilised ITC as rate of bulk LPG and bottled LPG is same, is unsustainable: HC

++ GST - CBIC has no power to issue circulars in derogation of provisions of CGST Act: HC

++ GST - Petitioner has not raised any grievance against SCN by making any representation and calling for any additional document - Contents of SCN cannot be termed deficient: HC

++ GST - Notice is bereft of any reason or documentary evidence in support of such reason - Non-communication of the same amounts to denial of reasonable opportunity of hearing, resulting in miscarriage of justice: HC

Dec 12, 2023

++ GST - S.107(6) of the Act, 2017 - Balance in ECRL is a self-assessed input tax credit and are subject to assessment proceedings; cannot be used for purpose of paying pre-deposit: HC

++ GST - Court would not add to the legislation so as to enlarge the scope of utilization of amounts in ECRL, for any other purpose: HC

++ GST - Pre-deposit is NOT part of the tax liability: HC

++ CX - Department raised demand seeking recovery of Cenvat credit availed on allegation of removal of Epoxy Moulds 'as such' - Demand raised without examining final disposal of such moulds, is not tenable: CESTAT

++ CX - Tata-207 Vajra Vahan is correctly classifiable under CETH 8707 1000; exemptio under Sl No.39 of Notification No.6/2006 is allowed: CESTAT

++ Cus - Classification - In light of the switch from 6 digit level to 8 digit level, Bakery Shortening is correctly classifiable under CTH 1517; importers also eligible for nil rate of BCD: CESTAT

++ ST - Three assessment order passed confirming tax demands, warrant being quashed where they merely paraphrase each other & are passed in ignorance of settled precedent: CESTAT

++ Cus - As per Apex Court's observations of HSN Code being 'bedrock of Customs controls & procedures', classification of Canned Sliced Pineapple would have to be decided as per HSN explanatory notes - appropriately classification is under CTH 0804, as claimed by Department: CESTAT

++ CX - There is no estoppel in matters of revenue; a party cannot be expected to continue any mistakes committed in the past - Ergo, if Assessee-company favored incorrect classification before, it has the legal right to change to the correct classification: CESTAT

++ Cus - Limitation - As Department in past cases classified Canned Sliced Pineapple under different headings, this led to confusion as to correct classification - Extended period of limitation cannot be invoked in these circumstances - Demand restricted to normal period of limitation: CESTAT

Dec 11, 2023

++ Cus - s.114A - Word 'or' is disjunctive between duty or interest - Interpretation of Commr(A) that quantum of penalty should be equivalent to the amount of duty plus interest payable is unsustainable: CESTAT

++ ST - The activity of 'Repalcement' and fabrication of immovable property work undertaken by appellant cannot be classified under category of 'Management, maintenance or Repair service' and hence demand of service tax under said category is not sustainable: CESTAT

++ GST - Subject to petitioner depositing a sum with Registry of this Court, within a period of one week, revenue shall release and deliver the silver in question, at the residence of petitioner: HC

++ GST - Revenue is directed to forthwith release the silver bars and coins seized from petitioner: HC

++ Cus - Assessee is rightly held to have failed to verify the correctness of document thereby violating its obligation as a customs broker even forfeiture of security deposit has rightly been ordered: CESTAT

++ CX - The first appellate authority was correct in determining eligibility for CENVAT credit on products of iron and steel: CESTAT

Dec 09, 2023

++ CX - Appellant is entitled to take Cenvat credit of inputs used for construction/fabrication of capital goods, including port: CESTAT

++ ST - As per settled precedent, construction service provided to Surat Municipal Corporation under Jawaharlal Nehru National Urban Renewal Mission is not taxable: CESTAT

++ Cus - Charges of mis-declaration do not sustain, where no act of omission or commission on part of Assessee, is established - Confiscation quashed, penalties set aside: CESTAT

Dec 08, 2023

++ Cus - Filing refund claim before finalisation of assessment, as precautionary measure, is no grounds for rejecting refund claim on limitation: CESTAT

++ ST - As regards refund of service tax paid on Port Services, what is required to be seen while allowing refund is as to whether the service tax has been paid by appellant and service received was port service or not and refund sanctioning authority cannot go into the question whether the service provider was authorized by port or not: CESTAT

++ ST - Hessian Cloth is separate & independent commodity manufactured using Jute, which itself is traded in Commodity Exchange - Hence, Hessian Cloth does not qualify as Agricultural Produce - Tax demand raised under Business Auxiliary Service is sustained: CESTAT

++ CX - in the absence of any evidence regarding removal of the goods before completion of the project, the benefit of exemption under Notification No.13/2008-CE cannot be denied: CESTAT

++ CX - Cenvat credit availed in respect of renovation & repair services, cannot be denied, since the same is not covered under the exclusion clause seeking to deny cenvat credit on inputs used for construction of a building or a civil structure or a part thereof, w.e.f. 01.04.2011: CESTAT

Dec 07, 2023

++ GST - SCN issued asking petitioner as to why GST cannot be imposed and recovered - In view of the fact of availability of an efficacious alternative remedy, petition cannot be entertained: HC

++ CX - Tribunal over-stepped its jurisdiction by allowing application filed by Director for condonation of delay and restoration of appeals although pre-deposit amounts were never deposited by company: HC

++ CX - Directors wrongly granted indulgence by Tribunal - No comments - For reasons best known to it, Tribunal passed orders although there was non-compliance of s.35F: HC

++ ST - Demand raised under Commercial training or coaching service - If Assessee itself did not appear before Adjudicating Authority, despite ample opportunities having been provided, it cannot be permitted to raise any grievance about violation of the principles of natural justice: CESTAT

++ ST - Penalty imposed u/s 76 of Finance Act 1994 is upheld where Assessee does not appear for personal hearing despite receiving several opportunities; Penalty imposed u/s 77 of Act also upheld since Assessee did not file prescribed returns with authentic details: CESTAT

++ ST - As regards to Terminal Handling Services, these services have been rendered for handling export containers at the port of exports and they fall in nature of port services and same have been held to be specified services and appellant is entitled to refund of same: CESTAT

++ CX - Nil rate of clearance of goods which have been stored in a private storehouse, together cannot be taken to mean that tax on such goods was sought to be evaded, more so where the goods have left the factory premises: CESTAT

++ CX - Penalty under Rule 14 of CCR 2004 is not imposable where Cenvat credit has been duly reversed before issuance of Show Cause Notice seeking reversal of such credit: CESTAT

Dec 06, 2023

++ FEMA - power of seizure under FEMA will be construed as an interim arrangement in aid of final adjudication; as per settled position in law, reasoning of interim order will have no impact on reasoning for final decision: HC

++ GST - Tax paid on Solar panels are not eligible for ITC as same are used exclusively for supply of exempted electricity: AAAR

++ GST - Hostel building cannot be considered as residential dwelling - Hostel services cannot be equated to a hotel accommodation and hotel GST rates cannot be applied; taxable @18%: AAR

++ GST - SCN is not pregnant enough as regards foundational material to enable reasonable opportunity to petitioner to respond effectively - Cost imposed of Rs.10,000 on respondent: HC

++ Cus -Products of Ch. 91 have a specific purpose of timekeeping with certain advance functions but related only to time - LG Watch W7 is actually a wearable computer and rightly classifiable under 8517 6290 -Not entitled to Nil BCD: CESTAT

++ Cus -Mere mention of wrong tariff or claiming benefit of an ineligible exemption notification cannot form basis for confiscation of goods -Penalty too set aside: CESTAT

++ Cus - No attempt can be made to infer motive or meaning of Notification other than what is emanating from plain language of Notification - Since Reflective Glass is not found in the Notification No.4/2009- Cus. dated 06.01.2009, exemption from Anti Dumping duty cannot be allowed : CESTAT

++ ST - Assessee paid Service Tax to KMDA rather than to Service Tax Department; for this reason refund claim was also filed with KMDA & on advice from KMDA, filed claim with Department - Refund claim, although barred by limitation, merits being allowed, as delay in filing refund claim is not attributable to Assessee: CESTAT

++ ST - Service rendered by appellant to M/s SSTAPL as a sub-contractor as well as M/s JSL directly, was transportation of goods service and not cargo handling service, demand confirmed under 'cargo handling service' is set aside on merit as well as on limitation: CESTAT

Dec 05, 2023

++ ST - Sale of customisable software on a CD as part of Distributed Control Systems are to be treated as Excisable goods and not service; Service Tax demand raised under IT Support Service merits being quashed: CESTAT

++ ST - Various input services used in providing Rental of Immovable Property service are admissible to CENVAT credit: CESTAT

++ Cus - Where importer seeks classification of subject goods under CTH 8473 whereas Department seeks their classification under CTH 8543, then the Commr.(A) must restrict classification of subject goods to any one of these Headings; Commr.(A) cannot classify the goods under a different heading not mentioned in the Order-in-Original: CESTAT

Dec 04, 2023

++ GST - AAR order suffers from the vice of arbitrariness inasmuch as it has taken into account aspects/factors which are irrelevant - Exemption in terms of S.No.54(e) of 12/2017-CTR available for wheat imported for conversion into maida , atta, sooji etc.: HC

++ Cus - Canon case - No jurisdiction with DRI to issue SCNs, therefore, order on such notices would be rendered illegal - Review proceedings pending before SC - Adjudication stayed: HC

++ Cus - Assessee is eligible for refund of SAD even though there is no endorsement in invoices as per Notification No.102/2007-Cus: CESTAT

++ ST - No interest accrues on unutilised Cenvat credit - As per Rule 5 of CCR 2004, procedure for filing refund claims for unutilised Cenvat credit in case of export of service, enables Assessee to take back credit of un-sanctioned or partly-sanctioned refunds: CESTAT

Dec 02, 2023

++ CX - Assessee purchased transformer oil for use in factory & only for convenience, transported such oil in barrels along with finished products - This does not entail that transformer oil is being cleared as such - Demands seeking reversal of Cenvat credit availed on transformer oil, rightly quashed: CESTAT

++ ST - Since the impugned order has travelled beyond SCN and has been passed on a new ground, same is not sustainable: CESTAT

Dec 01, 2023

++ Cus - Exemption from SAD on import of Wind Operated Electricity Generator parts, is conditional on importer producing certificate from Ministry of New and Renewable Energy ; exemption rightly denied where claimant fails to obtain requisite certificate: CESTAT

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