TODAY'S CASE (INDIRECT TAX)

March 30, 2023

++ ST - As appellant is not contesting the appeal on merits, demand confirmed and interest thereon for normal period sustains: CESTAT

March 29, 2023

++ ST - Tax liability does not arise by way of being Commission Agent on whose behalf he collects the toll as per section 65(19) of Finance Act, 1994 for the period prior to introduction of negative list regime: CESTAT

++ Cus - Merely because some parts were imported separately and cleared under a separate Bill of Entry, department cannot contend that goods cannot be classified under CTH 8437: CESTAT

March 28, 2023

++ ST - SVLDRS, 2019 - Just because Petitioner has paid principal amount, it cannot be said that when SCN has been issued for interest on said amount, the Petitioner is not entitled to make a declaration: HC

++ CX - Refund mistakenly claimed u/r 5 of CCR - Appellate authority had failed to consider as to whether petitioner was entitled to rebate u/r 18 of CE Rules - Order set aside and matter remanded: HC

++ GST - Professional services rendered by E&Y Limited to overseas EY Entities is not as an 'intermediary' - Services are of 'export'; refund of ITC admissible: HC

++ GST - Petitioner produced rent agreement as well as electricity bills - Bench finds no ground for respondent to believe that petitioner was non-existent - Order cancelling registration set aside: HC

++ Cus - In view of clear mandate of notification to exempt additional duty of customs, the goods imported are eligible to exemption from additional duty of customs thereon:CESTAT

++ CX - Assessee is entitled for cenvat credit on service of Repair & Maintenance in respect of after sale service provided during warranty period:CESTAT

++ ST - Merely because service tax was paid under different registration but by same company, cannot be tantamount to non- payment of service tax, demand of service tax which was already paid cannot be made twice:CESTAT

March 27, 2023

++ ST - Unjust-enrichment does not exist in case where the assessee initially charged duty / service tax and subsequently issued credit note for the same: CESTAT

++ ST - The amount of incentives and discounts cannot be treated as consideration for any service and therefore no Service Tax is leviable thereon : CESTAT

++ Cus - The trader-importer would be eligible for refund even though the requirement under para 2(b) of Notfn 102/2007-Cus. is not satisfied: CESTAT

March 25, 2023

++ Cus - CHALR 2004 - That a licence should be revoked & security deposit forfeited, should be revived in the same breath by the same authority, only to be revoked again, defies logic: CESTAT

++ CX - Charges of clandestine Removal against appellant based on diary entries made by third party, are not sustainable, where appellant not given opportunity to cross examine author of these entries: CESTAT

March 24, 2023

++ CX - No finding that price of goods was lower than what was the price of those goods, in the market - Revenue's decision in rejecting value by treating assessee as a related person erroneous: SC

++ CX - Amount of subsidy being an independent amount received from Government on basis of capital investment and employment generation/wages paid, is not an additional sales consideration: CESTAT

++ CX - When Director of unit admitted that challans were cleared without issuing invoices and CE duty was leviable on those goods, nothing further was required to be proved by Department:CESTAT

++ ST - There is no bar in cross utilisation of Cenvat credit once taken, either for payment of Central Excise duty or service tax, in view of the provisions of Rule 3 or 4 of CCR, 2004:CESTAT

++ ST - Although Commissioner found that there is no suppression of facts with intend to evade payment of tax, demand for extended period has been confirmed, such confirmation of demand is not legal and proper, same is set aside:CESTAT

March 23, 2023

++ Cus - Nickel Alloy Billets satisfying Section Note 5 of Section XV & also is commercially known as Nickel Alloy, is rightly classifiable under CTH 75051220: CESTAT

++ CX- Clandestine Removal - O-i-O based on statements of buyers but opportunity to cross examine deponents not allowed to assessee; test of Section 9D of Central Excise Act not satisfied; order stands quashed: CESTAT

++ ST - Sub-contractor did not pay service tax due to bona fide belief that onus for the same rests with main contractor; extended period of limitation need not be invoked in case of Sub-contractor since element of fraud, suppression or wilful mis-statement is absent: CESTAT

March 22, 2023

++ CX - Valuation - Mere affixation of MRP on a good does not qualify it to claim benefits u/s 4A - There must be a 'requirement' for the affixation of such MRP - Tribunal has erred: SC

++ Cus - When there is a vast difference between nature of supplies made by BGH Exim Limited and appellant, comparable price of BGH Exim Limited should not be taken for assessment of import of appellant: CESTAT

++ ST - When the property is not owned by appellant and they have not received rent, demand of service tax raised on appellants alone cannot be sustained: CESTAT

++ CX - Demand of interest automatically follows the duty liability and therefore appellant cannot claim any relief from payment of interest on duty paid by them: CESTAT

March 21, 2023

++ GST - Revenue is directed to release goods and conveyance of petitioner subject to conditions that petitioner shall deposit an amount of interest and penalty, and also furnishes a bond: HC

++ GST - When statutory alternative remedy is available, High Court would be slow to entertain petition directly to exercise writ jurisdiction, petitioner is required to exhaust statutory alternative remedy before invoking extraordinary jurisdiction of Court: HC

++ GST - There is no patent lack of jurisdiction or complete absence of jurisdictional facts in impugned order that would allow to declare that there is no liability upon petitioner to pay service tax, issue requires adjudication:HC

++ CX - From the disclosures made in correspondence and documents on record, no motive could be attributed to assessee in any manner acting fraudulently or by making wilful statement or suppressing any facts: HC

++ Cus - Since directions of this Court do not provide for any condition for taking permission of this Court to dispose of machines, Court does not deem it proper to go into the issue, petitioner will be at liberty to approach Tribunal: HC

++ VAT - Continuation of Anticipatory bail is allowed to applicant where other co-accused were also granted bail: HC

++ Cus - As per settled law, SCN cannot be issued beyond period of three years of payment of duty drawback: HC

++ Cus - The action cameras imported by appellant of Models referred as Digital Cameras, would merit classification under heading 8525 80 20 only which is more specific rather than residual entry at 8525 80 90: CESTAT

++ CX - Revenue cannot raise objection challenging classification at recipient end and on this ground, refund cannot be denied: CESTAT

++ ST - Services rendered to vendors and companies by assessee therein conformed to statutory definition of 'support services of business or commerce' and hence, services were classifiable under 'support services of business or commerce' and not under BAS: CESTAT

March 20, 2023

++ GST - Assessee admitted to non-compliance qua statutory requirement, on three occasions; Section 126 of CGST Act not invokable; penalty imposed u/s 125 upheld: HC

++ ST - Foreclosure charges collected by banks and non-banking financial companies on premature termination of loans is not subject to levy of service tax under 'Banking and Other Financial Services': CESTAT

++ Cus - Since Flexi Tank Containers imported by assessee are durable containers, notfn 104/94-Cus is available to such containers: CESTAT

March 18, 2023

++ Odisha Entry Tax Act - Provision for interest is to be construed as substantive law & not as machinery provision; only ordinary charging section which fixes liability is to be strictly construed: HC

++ Cus - When proprietor had admitted re-determined value and also paid differential duty with interest and penalty, it is not open for appellant to contend, after goods have been cleared, that market value could not have been re-determined: CESTAT

++ ST - Service of erection, commissioning and installation is indeed used and wholly consumed in SEZ, appellant is eligible for exemption under notfn 9/2009-ST as amended by notfn 15/2009-ST: CESTAT

March 17, 2023

++ VAT - It is open to Revenue to recover tax dues, once SCN and representation and copies of assessment orders were duly served on assessee as per Rule 64: SC

++ CX - Even though service tax on any service is not payable but appellant pays the service tax, the recipient is entitled for cenvat credit: CESTAT

++ ST - Appellant's activity of treatment of effluent water has been exempted from levy of Service Tax vide Notfn 08/2017-S.T., so demand cannot sustain and same is set aside: CESTAT

March 16, 2023

++ CX - When considering an objection to lack of territorial jurisdiction to entertain a writ petition on grounds that cause of action did not arise within its jurisdiction, a High Court must draw conclusion based on averments made in petition memo by treating the contents as true & correct: SC

++ CX - Party invoking writ jurisdiction has to disclose that integral facts pleaded in support of cause of action constitute cause empowering High Court to decide dispute & that at least some facts arose within its jurisdiction: SC

++ Cus - The technical reason of lack of access to portal could not be said to be reasonable ground to oust the petitioner from earning benefit of quota earmarked for export on pro-rata basis: HC

++ GST - Revenue was unjustified in provisionally attaching personal property owned by partner of firm under Section 83 of CGST Act, as she is not a taxable person for being the partner of firm: HC

++ CX - When assessee is neither manufacturing nor producing plastic scrap, it already exists and they are only separating it manually from rest of scrap, no central excise duty can be charged: CESTAT

March 15, 2023

++ GST - Petitioners have been at liberty for almost two years under interim order which have not been challenged and petitioners sought only extension of protective measures, interim order continues for a period of six weeks: HC

++ GST - It is not permissible for revenue to simply ignore the appellate order on the ground that it proposes to file an appeal, they are directed to forthwith process petitioner's claim for refund: HC

++ CX - Value of freight charged by appellant for delivering cement to their buyers' premises is not to be included while assessing the value for purpose of payment of central excise duty: CESTAT

March 14, 2023

++ VAT - Mere production of invoices or payment made by cheques is not enough and cannot be said to be discharging burden of proof cast u/s 70 of KVAT Act, 2003: SC

++ GST - By permitting petitioner to rectify GST Return filed in Form-B2B instead of B2C, there will be no loss whatsoever caused to Opposite Parties, it is not as if that there will be any escapement of tax: HC

++ Cus - When statute provides for statutory appeal, said remedy is to be availed by litigating parties: HC

++ ST - Designated Committee is directed to reconsider the claim of petitioner that interest part is covered under expression 'Tax Dues' for seeking benefit under SVLDR Scheme, 2019: HC

++ Cus - That shaving/snuffing activity is to be done on leather does not render it to be unfinished goods, more so where all major operations are being done on such leather; confiscation order quashed: CESTAT

++ CX - As per decision of High Court of Gujarat in Mundra Ports Ltd judgment, Cenvat credit allowed on MS Angles, Beams, Plates, Channels: CESTAT

++ ST - Refund of Cenvat credit allowed where no proceedings under Rule 14 of CCR 2004 are initiated to recover alleged inadmissible CENVAT Credit: CESTAT

++ ST - Service classifiable under Job Work cannot be treated as Management, Maintenance & Repair Service, where machinery & equipment used for production belongs to assessee/job worker: CESTAT

March 13, 2023

++ CX - Appellant is entitled for interest on refund of pre-deposit amount @6% from the date of deposit till the date of refund:CESTAT

++ ST - In respect of Franchise Service, service tax will arise as per date of contract and date of payment for service and if same is at a time when there is no levy, no service tax can be charged:CESTAT

++ Cus - Penalty against assessee is not sustainable as there is no corroborative evidence on record in support of statement made before DRI Officers which were retracted on first available opportunity before CMM and no cross-examination of any witness has been granted to assessee:CESTAT

March 11, 2023

++ GST - Activity of bus body building undertaken on chassis supplied by customers to the Applicant amounts to supply of service and is classified under SAC 998881 and applicable rate will be 18% (CGST @ 9 % and SGST @ 9 %): AAR

++ ST - Limited opportunity afforded to appellants, whereby O-I-O has been differed with, does not meet ends of justice and full opportunity to adduce evidence needs to be afforded by Commissioner (A), matter remanded: CESTAT

++ GST - The services provided by applicant in relation to sewage treatment to Bengaluru Water Supply and Sewerage Board (BWSSB) on or after 1st Jan 2022 is exigible to GST at 18%.: AAR

++ CX - Tooth brushes supplied by appellant which is not for retail sale but for free supply by tooth paste manufacturer will not be valued under Section 4A, value adopted by appellant under Section 4 is correct and legal: CESTAT

March 10, 2023

++ ST - SVLDRS, 2019 - Deposit made during investigation was sought for adjustment towards amount payable - No communication received from Committee, hence amount paid again - Refund cannot be denied without giving due opportunity: HC

March 09, 2023

++ Cus - A quashed public notice cannot be relied upon by Revenue to refuse Advance Authorization; retrospective application of a later notification, cannot be made: HC

++ ST - When assessee is not directly making payment to Foreign Banker towards any service provided by said Foreign Banker to Indian Bank, they are not liable to pay service tax: CESTAT

March 07, 2023

++ Cus - Regulation 20 of CBLR - Bar Bar jane par band Milta Hai - Words 'issue' (of notice) and 'serve' are not synonymous: HC

++ Cus - Stand of department is that the goods dealt with by assessee are not covered by exemption notification - If that be so, appeal is maintainable before Supreme Court: HC

++ Cus - Goods covered under SH 2106 90 30 would necessarily have to be a preparation that contains betel nuts as against the product being treated as betel nut: HC

++ ST - Services provided by appellant in respect of projects executed by them for period prior to 1.6.2007 being in nature of composite works contract cannot be brought within fold of commercial or industrial construction service or construction of complex service: CESTAT

March 06, 2023

++ Service Matter - Compulsory Retirement order given as punishment & to short-circuit disciplinary proceedings against Appellant to ensure immediate removal from service, is unsustainable: SC

++ GST - Recovery notice - Only summary of the impugned order was sent to petitioner and no speaking order has been passed - Order quashed and matter remitted: HC

++ GST - Cancellation of registration - Appeal dismissed by Commissioner(A) - Bench allows petitioner to make an application u/s 30 before the jurisdictional authority: HC

++ GST - Composition Scheme - Rule 6, section 10 - Limitation of software should not become the limitation for implementation of statute: HC

++ GST - Coir-pith compost is exempted from GST when sold in above 50 kg bags: AAR

++ GST - Desilting of the foreshore of Prakasam Barrage is a composite supply of works contract; attracts tax @12%: AAR

March 04, 2023

++ GST - Composite supply of services by way of milling of wheat into flour (Atta) to Food & Supplies Department, Govt. of WB for distribution of such flour under PDS is exempted: AAR

++ GST - Wheeling charges is collected for services of transmission of electricity and hence is covered under Entry No. 25 of 12/2017-CTR and exempted from levy of tax: AAR

++ GST - Banking charges is nothing but the amount of consideration charged for energy consumed; is covered Entry No. 104 of 2/2017-CTR and is exempt: AAR

++ GST - Selling of alcoholic liquor for human consumption is exempted supply - Applicant is required to reverse ITC in terms of s.17(2) r/w Rule 42: AAR

++ GST - Frozen Ready-to-eat, Frozen Ready-to-Cook, Frozen Processed Food Products and Frozen Semi-Processed Food Products are exigible to GST @18%: AAR

++ GST - Bouquet made with dry parts of plants, foliage, flower buds, grasses and branches of plant which are dried, bleached, dyed and coloured and sold with plastic foil packaging is exempted: AAR

March 03, 2023

++ CX - Since there was no provision under Cenvat Credit Rules, 2004 requiring assessee to reverse Cenvat Credit towards written off raw materials, it would not be open for Department to enforce reversal of Cenvat credit: CESTAT

++ CX - Against parallel invoices, company also received payment which intentionally not shown in sales account but shown as deposit, therefore, company and its board carried out clandestine removal of excisable goods: CESTAT

March 02, 2023

++ GST - Cryptic Show cause notice - Quashed along with order cancelling registration and with liberty to issue fresh SCN: HC

++ GST - Gain of 10 grams of gold while manufacturing gold ornaments for principal is liable to tax (by adding its value) as a part of value of job work services and accordingly would be taxable @ 5% under SAC 9988: AAR

++ GST - Applicant cannot seek an advance ruling in relation to the supply where he is a recipient of services - Application rejected: AAR

++ VAT - C-Form can be denied to assessee based on a judgment against which the Revenue has only filed SLP against & which is pending disposal : HC

++ GST - Mere ground of alternative remedy being available will not be the reason for Court to not entertain this petition: HC

++ CX - Since appellant had submitted all 144 AR3As, no lapse found on the part of appellant, matter needs to be re considered: CESTAT

++ CX - The subject capital goods were used by assessee in factory for production of final products and therefore, it was entitled to avail Cenvat credit of duty paid thereon: CESTAT

March 01, 2023

++ GST - There is no statutory provision that requires a taxpayer to seek NOC from any authority for moving an application for revocation of cancellation of its registration: HC

++ ST - SVLDRS, 2019 - Software technical glitch at the bank's end - When deposit of settlement amount within stipulated time is not disputed, petitioner cannot be held liable for non-payment: HC

++ VAT - License fee received by dealer forms part of turnover of return period, needs to be examined by AO as if ingredients of service tax are attracted or not: HC

++ VAT - Re-assessment order passed without granting personal hearing to assessee - case remanded: HC

++ ST - Appellant being not holding Licence under Telegraph Act, 1885 is not liable to pay service tax on telecom service: CESTAT

++ CX - Once there is no averment either in SCN or impugned orders regarding availment of benefits by suppression of fact or fraud, invoking extended period of limitation is not proper: CESTAT

++ CX - Assessee has to be given an option to pay 25% penalty if they are paying duty along with interest within 30 days of receipt of order: CESTAT