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TODAY'S CASE (INDIRECT TAX)

Taxindiaonline.com



June 30, 2023

++ CX - SC permits Commissioner of Central Excise and Service Tax, to apply for restoration of appeals which were permitted to be withdrawn on various dates: SC

++ VAT - If State Government has provided double balance period while converting industrial units who earlier availed tax holiday, it can't be said that State is not aware of interest of industrial units under VAT regime: SC

++ VAT - Mere passing of order of attachment and service on defaulter assessee is not sufficient for constructive notice to general public, unless proclamation of attachment is publicized in manner prescribed by law: SC

++ GST - Petitioner is directed to co-operate with respondent no.4 and produce necessary/required documents demanded by respondent no.4 for the purpose of investigation/inquiry: HC

++ CX - MRP is a notional value and such value cannot be considered for purposes of arriving at 'Sale Value' in terms of Notfn 56/2002-CE, appellants are eligible for value addition @ 58.60% on the basis of figures that were certified by Statutory Auditor: CESTAT

++ GST - Source for the proper officer to proceed u/s 74 cannot be constricted to s.61 or 65 alone because had it been so, that fact would have been clearly depicted in s.74: HC

++ CST - Since petitioner has documents to establish inter State sales and there is no dispute that adjudicating authorities have jurisdiction to examine same, matter remanded: HC

++ Cus - SCN was issued only based on a communication from DGARM without any documents or evidence whatsoever to substantiate them, impugned order revoking license of a Customs Broker cannot sustain: CESTAT

++ ST - Adjudicating Authority will follow principles of natural justice and allow all documents to be placed before him and will pass a considered decision after getting facts verified: CESTAT

++ ST - Since, construction activity provided by appellant was for period June 2005, same cannot be liable for payment of service tax inasmuch as works contract service was brought into taxing net w.e.f. 01.06.2007: CESTAT

++ CX - Issue whether subsidy is includible in transaction value u/s 4(3)(d) of CEA 1944 involves interpretation of law - ergo, suppression of facts cannot be alleged & interest or penalty cannot be imposed: CESTAT

June 29, 2023

++ ST - Where service provider provides output service which is exported without payment of service tax, such service provider will be eligible for refund of CENVAT credit: CESTAT

++ CX - In absence of any evidence to doubt the veracity of CA certificate, deduction of equalised cost of transportation as claimed by appellant is admissible : CESTAT

++ Cus - for enhancement of value, Chartered Engineer's Certificate cannot be relied upon unless there is corroborative evidence: CESTAT

++ ST - Right to avail Cenvat credit is vested right - Non-utilisation of credit due to closure of business cannot lead to deprivation of such accrued interests: CESTAT

++ CX - Department has not disputed nature of goods being capital goods, its use in manufacture of concentrated Ores which are ultimately used in manufacture of dutiable final products, CENVAT credit on capital goods would be admissible in hands of factory: CESTAT

June 28, 2023

++ Goa VAT - retention of excess tax unreasonably & without liability to pay any interest by taking undue advantage of the procrastination by the authorities in making a sanction order would amount to arbitrariness, which is unconstitutional: HC

++ Goa VAT - Even though Article 19(1)(f) is no longer a fundamental right under the Constitution, Article 300-A provides that no person shall be deprived of his property save by the authority of law: HC

++ Cus - Non-observance of mechanism for dispute resolution as per AIFTA Article 24 cannot have the effect and consequence of invalidating action taken by Customs authorities under CA, 1962: HC

++ Cus - Procedural aspects stand subordinate to substantive provisions: HC

++ Cus - If Tribunal overlooks certain basic principles of law and records a finding which could be termed as perverse, then definitely, such decision would give rise to a question of law: HC

++ CX - SVLDRS, 2019 - Amount deposited by petitioners by way of penalty cannot be considered towards 'tax dues': HC

++ CX - SVLDRS, 2019 - Bonafide attempt to make payment of amount determined - Fit case for invocation of powers under Article 226 - Authority to accept payment with interest @9%: HC

++ ST - Refund - Rule 5 of CCR - Denial of refund is not in accordance with the spirit of reimbursement designed as a policy instrument: CESTAT

++ ST - A transaction involving purchaser of car, as recipient of 'extended warranty', making payment to principal of appellant without any part thereof flowing to appellant, is not intended to be taxed: CESTAT

++ ST - Appellant is not involved in any sale or purchase of real estate per se nor they involved in introducing prospective buyer to any seller, it cannot be urged that appellant has rendered any real estate agent service: CESTAT

++ ST - In absence of any notice for recovery as provided by Rule 14 of Cenvat Credit Rules, 2004, refund claimed by assessee under Rule 5 cannot be denied: CESTAT

++ CX - Once it is covered in main part of definition of input service, unless it is specifically excluded under exclusion part of definition, appellant is entitled to CENVAT credit on input services used: CESTAT

++ Cus -For enhancement of value, Chartered Engineer's Certificate cannot be relied upon unless there is corroborative evidence: CESTAT

++ Cus - Classification of goods is a matter relating to chargeability and burden to prove is squarely on revenue which has not been discharged by revenue, goods 'Papad' is correctly classified under CTH 19059040: CESTAT

June 27, 2023

++ GST - Cryptic notice - No documents supplied while issuing SCN for cancellation of registration - Impossible for petitioner to reply to such SCN - SCN and order quashed and set aside: HC

++ GST - Revenue is directed to release the trailers loaded with machinery and equipment on furnishing of Bank Guarantee: HC

++ Cus - Customs Department has amended shipping bill and same is forwarded to DGFT and necessary action will be taken by DGFT, cause raised in petition stands redressed: HC

++ GST - Manpower services provided by way of any activity in relation to any function entrusted to a Panchayat under Article 243G or in relation to any function entrusted to a Municipality under Article 243W are exempted; rest taxable @18%: AAR

++ GST - Tax would be applicable on supply of pre-packaged and labelled rice upto 25 Kgs; buyer re-selling the same to another buyer, be it export or indigenous is immaterial: AAR

++ GST - Applicant is entitled to take full credit of GST charged and paid by such supplier to government even though later credit note is issued for part invoice value: AAR

++ VAT - While considering claims for exemption from tax, burden of proof is strictly on assessee to demonstrate that claim for sales return is made within period of six months from date of sale transaction: HC

++ VAT - Mere shifting of business place simpliciter and with knowledge of AO, will not attract penal provisions under Kerala VAT Act: HC

++ VAT - Interest on additional demand is leviable from date of filing of return: HC

++ Cus - The amount encashed by way of bank guarantee remained with Revenue as deposit and accordingly appellant is entitled to interest on refund from date of deposit till date of refund @6% p.a.: CESTAT

++ CX - Parle Biscuits was justified in distributing credits on input services attributable to final product on a pro-rata basis proportionate to turnover of each unit between their manufacturing plants and appellant : CESTAT

++ ST - Benefit u/s 80 of Finance Act 1994 merits being allowed where assessee deposits tax with interest & 25% penalty & also had sufficient reason to believe that it had no tax liability: CESTAT

++ ST - Contract and VAT registration provide necessary evidence to confirm that contract is a works contract, appellants having opted to pay duty under new scheme have made themselves eligible for composition scheme under works contract service: CESTAT

June 26, 2023

++ Cus - MEIS scrips - EDI shipping bills - 'YES/NO clicking' problems - Petitioner specifically declared intent in the affirmative (in wordings) - Benefit to be granted: HC

++ GST - Customer has accepted applicant's understanding of tax applicability, hence withdrawal sought of application made for advance ruling - Request allowed: AAR

++ CX - Job workers in common practice work on goods directly or indirectly supplied by principal manufacturer - appellant herein cannot be deemed to be job worker solely because it used raw material as per specifications mentioned by principal manufacturer: CESTAT

++ Cus - For enhancement of value, Chartered Engineer's Certificate cannot be relied upon unless there is corroborative evidence: CESTAT

++ CX - Goods, in issue, even though is used outside the factory, since it is used in or in relation to manufacture of final product, credit is admissible in terms of Rule 2(a) ibid: CESTAT

++ Cus - Necessary opportunities were given to appellant for producing all evidence based on which Adjudicating Authority passed a detailed speaking order, consequently appellant cannot be heard to say it was not given sufficient opportunities: CESTAT

June 24, 2023

++ Cus - Importer may, if it chooses, to exercise right to re-export without any restraint on goods subject to compliance with section 50 of Customs Act, 1962, goods shall be released within a period of one month: CESTAT

++ CX - Merely by saying that interest was short paid will not be sufficient to interfere in issue particularly since neither O-I-O nor O-I-A did specify the quantum of interest that was required to be paid, penalty imposed on appellant is set aside: CESTAT

++ ST - Assessee collected Service Tax but did not remit the same & also did not file ST-3 returns within prescribed limitation - Such action is nothing short of evasion - Tax demand raised u/s 73 of Finance Act 1994 along with interest & penalties u/s 77 & 78 of Act, are upheld: CESTAT

++ Cus - Appellant, a Customs Broker, seriously contravened provisions of Regulation 10(b), 10(d) & 10(n) CBLR, 2018 - well-reasoned findings of Adjudicating Authority need not be interfered with: CESTAT

June 23, 2023

++ GST - IIUL is paying consideration to appellant for receiving marketing services which could augment sales of Intel products; cannot be considered as trade discount - supply is not export of service: AAAR

++ GST - Applicant has approached AAR on matters, which is not in relation to supply of goods or services or both, being undertaken or proposed to be undertaken by them - does not fulfil the mandatory criteria - Application rejected: AAR

++ Cus - Attempt to falsely project logistics service provider's address as their office address and the same as falling under jurisdiction of CAAR, Mumbai requires rejection of application on grounds of jurisdiction alone: AAR

++ GST - W.E.F 5 July 2022, value of 'Duty credit scrips' shall be excluded from the value of exempt supply for the purpose of applying Rule 42 of the CGST Rules: AAR

++ Cus - India-Japan FTA - 'LED socket assembly' merits classification under 8512 9000 and is entitled for nil BCD in terms of 69/2011-Cus: AAR

++ GST - Interactive Display System (View Board) merits classification under CTH 8471 4190: AAR

++ ST - When service tax is paid by mistake, a claim for refund cannot be barred by limitation merely because the period of limitation has expired: CESTAT

++ CX - As per law laid down by Apex Court, Bagasse emerging as byproduct of Molasses production, is agricultural waste & not manufactured item - No tax leviable thereon: CESTAT

++ Cus - Revenue, having sold the goods, which it could not have done, since the appeal was pending at relevant time, there is no good reason for adjustment of redemption fine: CESTAT

++ ST - Commissioner (A) should have considered under protest letter and passed a reasoned order on this issue which he fails to do, matter remanded to Adjudicating Authority: CESTAT

++ Cus - Customs Broker is not required to physically verify the place of business of exporter and they had to rely upon the documents that have been issued by Government, order revoking license of appellant is set aside: CESTAT

++ CX - Documentary evidence clearly shows that appellant has purchased raw materials and used them for manufacture of carton boxes as an independent manufacturer, Rule 10A of Central Excise Valuation Rules, 2000 will not apply and demand is set aside : CESTAT

June 22, 2023

++ GST - Question as to what are the documents that should accompany the movement of goods cannot be answered as the same is not covered within the ambit of advance ruling: AAAR

++ GST - Lease rental - Movement of equipment from CIPL Karnataka to CIPL Tamil Nadu on the instruction of CIPL Maharashtra cannot be said to be mere movement of goods not amounting to a supply: AAAR

++ GST - If show cause notice was bereft of reasons and very initiation of proceedings itself is not in accordance with law, then liberty can be granted to assessee to file statutory appeal: HC

++ ST - SVLDRS, 2019 - Whenever a statutory provision prescribes a thing to be done within a certain period of time without further stipulating the consequence of failure to do so, then the provision relating to time period prescribed cannot be treated as mandatory: HC

++ ST - SVLDRS - Power of rectification u/s 128 was exercised in public interest of avoiding loss to public exchequer - Reason for delayed review is not arbitrary: HC

++ GST - Negative list - Calling upon Advocates to prove that they are practising advocates and issuing notices demanding tax - Court expresses concern over harassment - Directs Commissioner to issue clear directions not to issue notices: HC

++ CX - Action on part of revenue in not issuing notice granting reasonable time to petitioner to remain present and passing ex-parte order is passed in gross violation of principle of natural justice, revenue is directed to pass a fresh order: HC

++ Cus - CHALR, 2013 - Revocation of license - Department's case based on figment of imagination, presumption & attributing knowledge on part of CHA, without any material to support the same - proceedings rightly quashed: CESTAT

++ CX - Even if shortages are to be accepted, there is no iota of evidence either in SCNs or in impugned order to prove that these goods were clandestinely removed, demands and penalty are set aside: CESTAT

++ Cus - Appellant being an authorised manufacturer is entitled to exemption from Anti Dumping Duty on seamless tubes purchased from importer which have borne Anti Dumping Duty at the stage of import, appellant is entitled to refund: CESTAT

++ CX - Demanding duty only on short-payment ignoring excess payment is bad in law, duty paid by appellant would be available as credit to their sister unit, thus entire exercise is revenue neutral: CESTAT

++ ST - Delay of about 278 days, Commissioner (A) correctly dismisses the appeal for reasons that it was filed beyond the period prescribed under section 85(3A) of Finance Act, 1994 and statutory requirement of pre-deposit was not satisfied: CESTAT

++ Cus - Each case has to be looked at into its own facts & merits - Cancellation of licence of some other CHA placed in similar circumstances cannot be any justification to mete out a similar treatment to another CHA: CESTAT

++ ST - Not only training like carpentry, smithing, but also when Business Management coaching is given resulting in occupation or employment, it should also be considered as vocational training, demand for period July, 2003 to 27.02.2010 is set aside: CESTAT

June 21, 2023

++ GST - Appeal filed after completion of appeal period - Tax demand came to be recovered from petitioner's bank account - It cannot be argued that only 10% be retained as pre-deposit and rest refunded - Petition misconceived: HC

++ GST - Cancellation of registration - SCN is very vague and cryptic and, therefore, it was difficult for the petitioner to give any reply - SCN as well as order is quashed and set aside: HC

++ GST - Provisional orders of attachment, automatically, by operation of law, have ceased to be in operation after expiry of the period of one year - Bank authorities to take note: HC

++ GST - 17 crore ITC fraud - Petitioner in custody since 70 days - Complaints filed already - Evidence is primarily documentary in nature - Bail granted: HC

++ GST - If representation made by petitioner is allowed, revenue shall permit the petitioner to carry out rectification in GST number in question within one week: HC

++ GST - If representations made by petitioner are allowed, revenue shall permit the petitioner to carry out rectification in GSTR-1 in question within one week: HC

++ CX - It is trite law that SCN is not empty formality; must be clear & unambiguous - Department cannot raise demand based on figures mistakenly provided by assessee: CESTAT

++ Cus - Statement of co-accused person is insufficient to impose penalty u/s 112(b) of Customs Act, in absence of corroborative evidence: CESTAT

++ ST - A demand cannot be confirmed under a category not proposed in SCN, it is, therefore, not possible to sustain the impugned order passed by Commissioner: CESTAT

++ ST - As settled vide judgment in SRF Ltd., where levy of service tax on services provided for authorised operations of SEZ unit are over-ridden by Section 51 of SEZ Act, thus, any exemption notification for such services & conditions laid therein become redundant too: CESTAT

++ Cus - No proceedings can be initiated or continued against a dead person as it amounts to violation of natural justice in as much as dead person, who is proceeded against is not alive to defend himself: CESTAT

++ Cus - If system is not designed to send an alert to Customs Broker if Shipping Bill is filed in its name in service centre at Custom House, appellant cannot be faulted if this loophole in system was exploited by another person after making a fake Customs card: CESTAT

June 20, 2023

++ ST - Fixed Facility Charges received for providing storage facilities, cannot be deemed to be consideration for supply of tangible goods, where such charges are included in transaction value for payment of Excise duty: CESTAT

++ Miscellaneous - Joint application by both parties is not required for seeking refund of court fees in every case: HC

++ Miscellaneous - Look Out Circulars have inexplicably long shelf-life and therefore, banks cannot use them in absence of acceptable apprehension: HC

++ CX - Duty burden has not been borne by appellant but by consignee of goods, original adjudicating authority has correctly ordered for credit into Consumer Welfare Fund: CESTAT

++ Cus - Demand of duty is based on assumption and presumptions without any certainty about goods contained in container lying in premises of appellant: CESTAT

++ ST - Activities of assessee are not hit by any of clauses mentioned at (a) to (e) of section 78 of Finance Act, 1994 and therefore, imposition of penalty under section 78 is not warranted: CESTAT

++ CX - Parle Biscuits was justified in distributing credits on input services attributable to final product on pro-rata basis proportionate to turnover of each unit between their manufacturing plants and contract manufacturing units, including appellant under rule 7(d) of CENVAT Rules: CESTAT

++ ST - Unless the department can establish that appellant was wrong in classifying services under 'mining services' and department itself was equally wrong in accepting their classification, services cannot be classified under any other head: CESTAT

June 19, 2023

++ GST - Whenever money has been received by a party which ex aequo et bono ought to be refunded, the right to interest follows, as a matter of course: HC

++ GST - Pandemic - ITC Refund is not time barred - Notification 13/2022-CT comes to the rescue: HC

++ ST - On account of mistake of non-filing of option letter which is only a procedural condition, assessee should not be made to suffer by making huge payments in terms of 5%/6% of value of exempted services: CESTAT

++ CX - Subsidy does not reduce sales tax that is required to be paid by assessee as sales tax collected by them from customer is paid, thus subsidy amount cannot be included in transaction value for purpose of levy of duty under section 4 of Excise Act: CESTAT

++ ST - Demand of service tax on amount collected on account of bouncing of cheques is not sustainable as such amount is penal in nature and is not towards consideration for any service: CESTAT

++ CX - Appellant have many documents in their defence which they have annexed to appeal, as these documents are required to be verified, matter remanded to Adjudicating Authority: CESTAT

++ Cus - For enhancement of value, Chartered Engineer's Certificate cannot be relied upon unless there is corroborative evidence: CESTAT

++ ST - Even the processes involved in converting Green Tea into Black Tea does not alter the basic characteristic of Tea as such and same could not be considered as a non-agricultural product, therefore, demand is not sustainable: CESTAT

++ CX - Adjudicating authority did not record any specific finding in line as recorded by Commissioner(A) particularly the fact whether appellant has availed cenvat credit while claiming refund, matter remanded to adjudicating authority to verify said facts: CESTAT

++ Cus - Procedural irregularities by Customs Broker leading to misuse of CHA firm's KYC documents, are not serious violation of Regulation 10(a) of CBLR, 2018 in spirit - Revocation of license under Regulation 17 is unwarranted: CESTAT

June 17, 2023

++ ST - SVLDRS - Date 30 June 2019 is relevant even for voluntary disclosure category - No inquiry/ investigation prior to this date, therefore, it cannot be held that Petitioner was not eligible to apply: HC

++ ST - Petitioner not at fault - Benefit of SVLDR Scheme cannot be denied merely on the basis of a technical issue of reversal of the amount paid by Petitioner: HC

++ GST - Merely by taking into consideration the cancellation of registration of the supplier with retrospective effect, ITC cannot be denied - Proper verification required: HC

++ CX - The PLA balance for which refund is sought for is out of advance deposit made by appellant in PLA and out of that unutilized balance has been claimed as refund, therefore, limitation of Section 11B is not applicable: CESTAT

June 16, 2023

++ GST - No Appellate Tribunal constituted as yet - Petitioner to deposit entire tax demand - Rest of the demand shall remain stayed: HC

++ GST - Supply of medicines and chemotherapy for cancer in-patients is a composite supply - Principal supply is healthcare service and which is exempted: AAR

++ GST - Services rendered under contract with SUDA is a pure service and exempted: AAR

++ ST - Appellant is not liable to pay service tax on free services provided to motor vehicles during warranty period: CESTAT

++ Cus - Appellant has not transacted any business which itself establishes that they were not responsible for any omission or commission, therefore imposition of personal penalties on appellant are untenable: CESTAT

++ ST - Where the service provider had deployed his employees in manufacturing premises of appellant for specified job works, same cannot be held as Manpower Supply Services: CESTAT

++ CX - Payment of duty for scrap has been correctly paid by utilizing CENVAT Credit account and refund of duty paid through PLA on cement has been correctly claimed by appellant as per Notfn No. 33/99-CE and hence refund sanctioned was in order: CESTAT

June 15, 2023

++ VAT - If bona fide request is made by assessee to adjourn hearing of case with view to enable him to avail benefit of amnesty scheme, then concerned officer is duty bound to respect such request: HC

++ GST - Transporter coming forward to seek possession of goods - Strict conditions need to be imposed for the purpose of releasing goods on supardari: HC

++ GST - Entry of demo car into the State of Madhya Pradesh, even if not for sale, renders it exigible to GST: HC

++ GST - 132 cr ITC fraud - Bail is not to be denied to satisfy the collective sentiments of a community or as a punitive measure: HC

++ GST - Expired E-way bill - Since the order imposing penalty is a discretionary order that has taken note of all facts and circumstances of the case, Bench is disinclined to intervene in the matter: HC

++ GST - Since the question raised by Taxpayer pertains to determination of place of supply of the services rendered, same does not fall within the ambit of provisions of s.97(2) - Application rejected: AAR

++ CX - Difference in quantity when petroleum products are despatched from refinery and after it is received at terminals, original authority is directed to re-quantify duty demand on the basis of clarification issued by Department: CESTAT

++ Cus - As per trite law, benefit of notification cannot be denied if accompanying condition is such that it is practically impossible to satisfy it: CESTAT

++ ST - Assessee was very much aware that service tax was liable to be paid but they did not deposit said amount to Government exchequer nor did they file their ST 3 returns, penalty under section 78 is correctly upheld: CESTAT

++ ST - Where work order involves both supply of services and of goods, the same qualifies as a composite contract; such service is taxable as Works Contract service and not as Site Formation service : CESTAT

June 14, 2023

++ Cus - There is no material on record to indicate that applicants had availed higher rate of duty drawback on shipping bills, applicants shall be released on bail on furnishing bail bonds with one or two sureties in like amount: HC

++ GST - Haj pilgrimage - Ministry of Minority Affairs is not the competent authority to deal with issues of GST exemption, manner in which GST would have to be calculated - GST authorities would be examining issues qua each of the HGOs: HC

++ GST - Since Department have not provided in details to petitioner, how they had committed fraud, wilful misstatement or suppression of facts; while obtaining registration, authorities are directed to restore the registration of petitioner: HC

++ GST - Court is inclined to examine the records relating to SCN for the purpose of examining whether 'reasons to believe' exists or it is a mere pretence - Proceedings deferred: HC

++ GST - Treatment of patients suffering from substance use disorder (SUD) as out-patient is not healthcare service - exemption unavailable under Entry 74(a) of 12/2017-CTR: AAR

++ GST - Mixing of tobacco dust with scent is a cumulative process of manufacturing and results in different and irreversible goods i.e. manufactured chewing tobacco classifiable under CTH 2403 9910: AAR

++ CX - Interest on delayed disbursal of refund is payable after expiry of 3 months from date of receipt of application: CESTAT

++ ST - Since there is no dispute about rendering of services for export which is exempted, it is clear that appellant is rightly eligible for availing benefit of Notfn 18/2009-ST & Notfn 31/2012-ST: CESTAT

++ Cus - Imported cutting waste/mutilated woven worn-out garments are restricted for import and are not covered under Board Circular No. 20/2011-Cus .: CESTAT

++ ST - Assessee collected service tax from customers without obtaining registration - have short paid tax & not filed ST-3 returns - Extended period of limitation correctly invoked & penalties justified, hence upheld: CESTAT

June 13, 2023

++ ST - For a service to fall under Rule 3(1)(iii) of Export Rules 2005, deciding factor is location of service receiver - Place of performance of service is irrelevant: CESTAT Larger Bench

++ ST - In respect of refund, since all the claims made by appellants are verifiable by Adjudicating Authority by going through documentary evidence produced by appellant, matter is remanded: CESTAT

++ Cus - Since the test report can be correlated with sample, the test reports found credible which state that imported guar gum was of food grade: CESTAT

++ CX - Cenvat credit claimed w.r.t. cricket match ticket, hotel membership & service for property, is rightly disallowed, since having no nexus with manufacture activity: CESTAT

++ ST - As M/s. CSA International, Canada has got its 100% Subsidiary in Bangalore, invoking provisions of Section 66A of Finance Act and fastening tax liability on appellant on RCM basis is not legally sustainable: CESTAT

++ CX - Service Tax paid on insurance of plant, machinery & equipment required for manufacture is admissible as CENVAT Credit, given its intricate link to manufacture process: CESTAT

++ Cus - Original authority did not impose any penalty whereas Commissioner (A) has enhanced penalty to Rs.8,40,467/- which was done without following the procedure laid down in first proviso of Section 128(3) of Customs Act, 1962: CESTAT

June 12, 2023

++ GST - No visible inconsistency amongst SEZ Act, 2005 or GST Act, 2017 - SEZ units can be subjected to rigors of investigation or inspection by GST authorities: HC

++ GST - Attempt by petitioners to thwart and delay the legal proceedings is an abuse of process of law - Such attempt needs to be dealt with firmly - Costs imposed: HC

++ GST - Skipping issuance GST DRC-01A - Objection appears to be hyper technical and not real - No real prejudice caused to petitioner: HC

++ CX - Refund to be allowed of TED paid by DTA at the time of supply of goods to EOUs by utilizing CENVAT credit - post introduction of GST, refund in terms of s.142(3): HC

++ ST - Licence granted to operate and run a Hotel - No fixed assured rent paid to appellant -No tax payable under Renting of Immovable Property Service: CESTAT

++ ST - Transportation and clearance of waste is an activity of appellant's manufacturing business, service availed by them is an integral part of manufacturing process and hence appellant is eligible for Cenvat credit: CESTAT

++ Cus - As the assessee did not acquire possession of or in any way concerned with seized goods, penalty under Section 112(b) of the Act ought not to have been imposed: CESTAT

++ Cus - Section 17(5) Customs Act 1962 - Re-assessment of declared value must mandatorily be done through a speaking order - non-compliance with such requirement vitiates the exercise - case remanded: CESTAT

++ CX - Duty on final product having been discharged by appellant, and not excluded by any stretch, from definition of manufacture, denial of CENVAT credit by original authority does not have sanction of law: CESTAT

June 10, 2023

++ CX - That Commr.(A), through non-speaking order, set aside well-reasoned order passed by Adjudicating Authority, is unsustainable, more so where such action is based only on a High Court decision limited to a certain aspect: CESTAT

++ Cus - It is trite law that self-assessment orders are also assessment orders & hence can be appealed against like assessment/re-assessment orders - O-i-A passed contrary to such legal position is not tenable: CESTAT

++ ST - In case of sales commission to overseas commission agent under reverse charge mechanism, the extended limitation proviso is not invokable: CESTAT

June 09, 2023

++ Cus - For fault of exporters, appellant cannot be blamed unless there is evidence to establish that they had colluded with exporters, impugned order revoking license cannot sustain: CESTAT

++ CX - Withdrawal of area-based exemptions - Budgetary support - Benefit not claimable as a matter of right - Non-availability of requisite funds from DIPP the reason for delay in disbursement - No provision of interest: HC

++ GST - Petitioner had set up fictitious firms and thereby cheated government of crores of rupees - An offence is prima facie established - Real beneficiaries yet to be revealed - Custodial interrogation required - Bail refused: HC

++ GST - Duty Free shops, whether in the arrival or departure terminals, being outside the customs frontiers of India, cannot be saddled with any indirect tax burden: HC

++ GST - Goods and vehicle of petitioner shall be released on conditions that either of petitioners shall deposit total amount of penalty, furnish Bank Guarantee and deposit the amount towards fine in lieu of confiscation of conveyance and goods: HC

++ GST - By way of interim relief, respondent authority is directed to not make any coercive recovery from petitioner in respect of refund of integrated tax already paid, till further orders: HC

++ GST number, name of Firm and other details were non-existing - Accused persons were hand in glove to squeeze money from complainants - Escape from arrest through bail applications miserably fails: HC 

++ Cus - Adjudicating Authority must evaluate proposals put forth in SCN based on available facts & law - duty, fine or penalty imposed without examining Noticee's role in circumstances is inappropriate & tantamount to over-reach: CESTAT

++ ST - As per settled position in law, no service tax can be levied on construction of residential complex: CESTAT

++ ST - CCR 2004 - As per Rule 9, there is no requirement to indicate in invoice, the registration number of receiver, who avails Cenvat credit: CESTAT

++ CX - Marble slabs/tiles were manufactured by job worker and duty liability is only on manufacturer, matter remanded with direction to calculate the quantum of marble slabs cleared on job work basis as per formula prescribed in tariff: CESTAT

June 08, 2023

++ ST - A sub-contractor would be liable to pay Service Tax even if main contractor has discharged Service Tax liability on activity undertaken by sub-contractor in pursuance of contract: CESTAT

++ ST - Charges of suppression of tax are not sustainable when assessee is maintaining proper records & is filing statutory documents & also underwent an audit: CESTAT

June 07, 2023

++ ++ Cus - Once Dy. Commr . (Review) had become aware that appeal had been returned back, at least at that stage, he could have taken steps for filing fresh appeal - No justifiable reasons for delay in filing appeal after 4 years - COD application rightly rejected: HC

++ CT - Petitioner cannot be placed in a position worse off than he was while making an application under the CST Karasamadhana Scheme, 2018: HC

++ Cus - MEIS benefits - Pandemic - WFH - Officers had no access to EDI System - LEO made manually on Shipping bills - Petitioner can seek relief under para 2.58 of FTP: HC

++ GST - S.107 - Filing of appeal - Unit of limitation qua prescribed period and condonable period have been set out in months and not in days: HC

++ Cus - When vehicle was registered only for purpose of transportation for Port, it cannot be held that vehicle was old and used, assessee is entitled for benefit of Notfn 21/2002-Cus and goods are not liable for confiscation: CESTAT

++ CX - If job workers are established to be independent contractors working with little to no supervision, then they are deemed to be manufacturers & Excise duty liablity rests with them: CESTAT

++ ST - No service tax leviable on administrative charges and inspection charges collected by M/s EPFO while discharging statutory function under The Employees' Provident Fund and Miscellaneous Provisions Act, 1952: CESTAT

++ ST - Tax demand raised u/s 67 of Finance Act & computer as per Rule 5 of Valuation Rules is unsustainable where method of computation contravenes judgment of Apex Court in M/s. Intercontinental Consultants and Technocrats Pvt. Ltd.: CESTAT

June 06, 2023

++ GST - Petitioner cannot be deprived of benefit due to non-constitution of Tribunal - To deposit twenty per cent of remaining amount of tax in dispute whereafter balance amount recovery stayed: HC

++ GST - Petitioner would not be impeded to operate bank accounts on account of impugned order as provisional attachment order has ceased to be operative by efflux of time: HC

++ GST - No DRC-04/notice u/s 74(1) issued even after two years of making voluntary payment in form DRC-03 - Amount to be returned along with interest @6%: HC

++ GST - Petitioner is granted further opportunity to respond to impugned SCN, treating the ground as stated in impugned order as ground for proposing cancellation of their GST registration: HC

++ CX - There is no averment that requirement of pre-deposit has rendered appellate remedy illusory or that petitioner is anyway impeded from availing the same, petitioner is directed to makes pre-deposit within two weeks: HC

++ ST - Since CENVAT Credit is available on accounts of appellant, refund of same could not be rejected: CESTAT

++ ST - Amount collected by principal from job workers for delay in completing contractual work, cannot be deemed as consideration for rendering taxable service, considering irregular nature of such collections: CESTAT

++ CX - Law does not permit detriment of duty liability and other consequences, solely on the ground that energy consumption is not reflective of actual production: CESTAT

June 05, 2023

++ NDPS - Contents of packets were homogeneously mixed together and samples were drawn - It is premature to say that samples drawn are not true representative samples of contraband seized - Bail application dismissed: HC

++ CX - SVLDRS, 2019 - Contention that the tax dues would be 'quantified' only on culmination of investigation and issuance of show cause notice, is unmerited: HC

++ ST - SVLDRS, 2019 - Once pending litigation had been withdrawn, the demand of duty raised by tax authorities attained 'finality' and a fortiori fell under the definition of 'amount in arrears': HC

++ GST - ITC Refund - Covid-19 and notification 13/2022-CT - Whether delay in filing claim can be condoned - Matter remanded to adjudicating authority for considering afresh: HC

++ Cus - Denial of MEIS benefits - 'N' in place of 'Y' in reward column - Methodology set out in DGFT advisory to be followed: HC

++ Cus - Importer admitted to mis-declaration of imported items used during COVID pandemic; penalty imposed u/s 114A is upheld; nevertheless warrants being reduced due to arbitrariness in valuation: CESTAT

++ CX - Dismissal of appeal on limitation is not sustainable in law when Revenue has not been able to produce any material conclusively showing that order dated 25.03.2019 was served on same day: CESTAT

++ ST - No Service Tax could be levied on construction of residential complexes prior to 01.07.2010 even when service is rendered either as service simpliciter or as a works contract: CESTAT

++ ST - Once the period of limitation expired as prescribed u/s. 85(3) ibid, neither the Tribunal nor first appellate authority has power to condone the delay in filing appeal beyond statutory period: CESTAT

++ ST - Contract provides for levy of interest and not for processing or administrative charges, Commissioner committed an error in concluding that since the rate of interest is not uniform, it cannot be considered as 'interest': CESTAT

June 03, 2023

++ ST - Order which proceeds on the basis that composite contracts involving transfer of goods as well as services were taxable prior to 01.06.2007 cannot be sustained: HC

++ Cus - Hublot Big Bang & Bvlgari Serpenti - No provision available in Customs Act to retain the goods after the concerned party has paid redemption fine as well as penalty: HC

++ GST -  A debt owed by any person to the taxable person can be attached but bank account of person owing such debt cannot be subject to provisional attachment: HC

++ GST - Revenue cannot ignore an order passed by appellate authority on the ground that it proposes to appeal - Refund to be disbursed forthwith along with interest: HC

June 02, 2023

++ Cus - Deputy Commissioner had no jurisdiction to review its own order and reassess the bill of entry once again after the goods were cleared on payment of duty: CESTAT

++ CX - The logo and name of DRDO on product indicate relationship between DRDO and technology of product, they do not indicate a relationship between DRDO and trade of product, appellant was entitled to benefit of exemption under Notfn 8/2003-CE: CESTAT

++ ST - Appellant, a builder, bore incidence of tax while providing Works Contract Services to Rajasthan Housing Board - Refund of tax cannot be denied to party which has borne incidence of tax: CESTAT

++ ST - As appellant have deposited the tax and accepted audit objection prior to issue of SCN, thus extended period of limitation is not available to Revenue: CESTAT

++ ST - The possibility of assessee having collected service tax in the past, cannot be per se lead to conclusion that assessee indulged in fraud or mis-representation - tax demand raised by invoking extended limitation is not sustainable: CESTAT

June 01, 2023

++ GST - No additional grounds for rejecting petitioner's claim for refund can be raised suo motu by Appellate Authority, in an appeal preferred by petitioner: HC

++ Cus - There is no provision in Customs Act which extends immunity available to a party that has successfully settled its case before Settlement Commission, to other persons: HC

++ Cus - Disposal of seized gold - Notice of proceedings u/ss (1D) of s.110 is required to be issued: HC

++ ST - OIO which proceeds on the basis that composite contracts involving transfer of goods as well as services were taxable u/s 65(105)( zzq ) and ( zzzh ) cannot be sustained: HC

++ CX - When appellant has paid much higher duty than what is demanded in impugned order, adjustment of excise duty must have been allowed instead of raising any further demand: CESTAT

++ Cus - Smuggling of Gold bars - Foreign markings absent & no cogent evidence put forth to otherwise establish foreign origin of Gold bars - Accused's statement admitting to having smuggled Gold is unreliable where later retracted - tax demand based on retracted statement invalid: CESTAT

++ Cus - Smuggling of Gold bars - Certificate of Assayer does not mention 99.9% purity as claimed by Department - copy of report not presented to accused - No opportunity to cross examine assayer - tax demand rightly quashed by Commr.(A): CESTAT

++ ST - As per settled position in law, value of reimbursable expenses is not to be included in valuation of service: CESTAT

++ CX - If Department has not filed any appeal against order passed by Tribunal directing to extend cum-tax benefit, Commissioner cannot deny benefit stating that appellant is not entitled to modification of demand as they have issued parallel set of invoices: CESTAT

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