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Untitled Document

TODAY'S CASE (INDIRECT TAX)

Taxindiaonline.com



April 19, 2024

++ GST - Assessing officer took into account the evidence placed on record and drew conclusions - Bench is, therefore, of the view that petitioner should present a statutory appeal: HC

++ GST - Tax liability was imposed because petitioner replied without annexing documents - It is just and appropriate that an opportunity be provided to contest tax demand on merits, albeit by putting petitioner on terms: HC

++ GST - To effectively contest the demand and provide an opportunity to petitioner to place all relevant documents, matter remanded but by protecting revenue interest: HC

++ GST - Petitioner has failed to avail opportunities granted repeatedly - Court cannot entertain request for remand as there has been no procedural impropriety and infraction of any provision by assessing authority: HC

++ GST - Classification - Matter which had stood examined by Principal Commissioner is being treated differently by Additional Commissioner - Prima facie , approach appears to be perverse: HC

++ ST - Service Tax paid in respect of export of services and cannot be subject to levy of Service Tax under Notfn 18/2009-ST, denial of exemption on procedural lapses cannot be sustained: CESTAT

++ CX - The warranty service is eligible for credit though the same is provided after clearance of final products: CESTAT

April 18, 2024

++ Cus - As wife of appellant has already been penalized for the offence related to importation of BMW M5 Car, no reason found to impose penalty against appellant for same offence: CESTAT

++ Cus - Mere fact that Commissioner of Customs has filed an affidavit would not denude an officer, otherwise empowered under the Act/Rules to issue and adjudicate a SCN even though the officer may be below the rank of Commissioner: HC

++ GST - Conclusions were recorded in the assessment order without providing a personal hearing - Order set aside and matter remanded: HC

++ GST - Challenge to notification 11/2017-CTR clarifying the aspect of transfer of development rights being attracted to GST/TGST is devoid of merits: HC

++ GST - Transfer of development rights is amenable to GST and cannot be brought within the purview of Entry 5 of Schedule-III: HC

++ GST - Once the notification itself has been declared as ultra vires, applying it would amount to applying an illegal notification: HC

++ GST - Petitioner has an appellate remedy against the impugned order - As petition was filed within the original period of limitation, it is just and appropriate that petitioner be permitted to present statutory appeal: HC

++ GST - Injustice would be caused unless petitioner is provided another opportunity to contest tax demand on merits - Subject to deposit of 10% of demand, matter is remanded: HC

++ GST - Except for holding that the taxpayer had availed ITC which is blocked credit u/s 17(5), no reasons are specified - Order set aside and matter remanded: HC

++ Cus - There cannot be an exercise of jurisdiction to injunct invocation of BG, as it is a settled principle of law that bank guarantee constitutes an independent contract between the bank and the party in whose favour BG is furnished: HC

April 17, 2024

++ GST - Malabar 'Parota' Is Akin To 'Bread', Exigible To 5% GST: HC

++ ST - Principles of constructive res judicata applies - Petitioner cannot seek to assail proceedings on grounds which were available to be raised in first round of litigation: HC

++ GST - If the Proper Officer was of the view that any further details were required, the same could have been specifically sought before passing any order - Matter remitted: HC

++ GST - Proper Officer has not applied his mind to the reply submitted and has merely held it to be devoid of merits - Order set aside and matter remitted: HC

++ GST - Order was issued without hearing the petitioner - It is just and necessary to provide an opportunity to petitioner to contest the tax demand on merits: HC

++ GST - Classification - It is incumbent on the respondent to duly consider all contentions raised by petitioner objectively without any pre-determination: HC

++ GST - Whether the amount reflected as ITC tallies with the value of credit notes issued - Petitioner's explanation not duly examined - Matter remanded: HC

++ GST - Ice cream placed at par with Pan Masala and tobacco - No reason assigned by Council to exclude Ice Cream manufacturers from Composition Scheme - Socio-economic effect should have been taken into consideration - Council should reconsider: HC

++ VAT - Input Credit - mere production of invoices or payment made by cheques/RTGS is enough to discharge burden of proof upon assessee: HC

++ CX - In absence of sufficient evidence, imposition of penalty on Director merely being in-charge of company cannot be sustained, also, in SCN, there has been no proposal nor any allegation indicating that goods which were cleared are liable for confiscation: CESTAT

++ ST - Transportation service rendered for period after 01.07.2012, not covered under Rule 11 of Place of Provision of Service Rules, for determining place of provision of service, where present case does not meet requirement of continuous journey as per Rule 2(d) of POPS Rules: CESTAT

++ Cus - In respect of commercial invoice, which shows no details of duty paid, question of taking of any credit would not arise at all : CESTAT

++ Cus -   Aircraft   Rules, 1937 define 'maintenance' as including 'replacement' - Prototypes imported for upgradation of aircraft are entitled for exemption in terms of Sr. 303 of notfn. 12/2012-Cus: CESTAT

April 16, 2024

++ GST - Merely, because a taxpayer has not filed returns for some period does not mean that registration is required to be cancelled with retrospective date also covering the period when returns were filed: HC

++ GST - Retrospective cancellation of registration - Complete non-application of mind - Order refers to a reply filed whereas fact is that the proprietor had passed away and no reply had been filed: HC

++ GST - Proper officer has not applied his mind but dismissed the reply submitted as not satisfactory - Order set aside and matter remitted: HC

++ Cus - Acceptance of re-assessed value & voluntary payment, per se cannot be deemed to be admission to alleged mis-declaration of value - Burden rests with Department to establish allegations: CESTAT

++ CX - Bituminized Hessain Tape, Rot-proofed Bituminized Hessian Cloth mixed with Copper Napthalate, Bituminized Cotton Tape, being used for industrial purposes, is rightly classified under CTH 5909; benefit under Notfn No 175/86 is also allowed to manufacturer: CESTAT

April 15, 2024

++ GST - Cancellation of registration retrospectively - SCN and impugned order are bereft of any details - Since petitioner does not wish to carry on business, the registration is to be treated as cancelled from the date of such closure: HC

++ GST - SCN and impugned order are bereft of any details - Accordingly, the same cannot be sustained - Moreover, order does not spell out reasons for retrospective cancellation: HC

++ GST - Husband of proprietress expired after prolonged illness, therefore, reply could not be filed against SCN - Ex- parte order is set aside and matter remitted: HC

++ GST - On the one hand, order states that no reply is filed and on the other hand refers to a reply dated 07.01.2022, which shows complete non-application of mind, particularly when Proprietor had passed away without filing any reply: HC

++ GST - 03/2023-CT - Application for revocation of cancellation of registration - Liberal approach is required to be taken - Petitioner can file application now: HC

++ CX - Even if availed cenvat credit is debited subsequent to clearance of goods, it is to be treated as if cenvat credit was never availed: CESTAT

++ ST - TDS deposited to Income Tax Department in relation to payment made to foreign service provider over and above the invoice value of services, is not liable to service tax, accordingly, demand confirmed in impugned order is not sustainable: CESTAT

April 13, 2024

++ Cus - Since the Department has failed to even issue SCN and they have not taken any action during last four years, they have no right to retain the amount nor can they proceed further in this case: CESTAT

++ CX - Charges of clandestine removal of final goods, are invalidated where based solely on recovery of parallel invoices & without making corroborative statements & also based on third party statements, but without permitting cross examination of their deponents: CESTAT

++ CX - Credit availed on outward transportation services is eligible when freight charges are included in taxable value, there is no requirement for an assessee to furnish one-to-one co-relation of input services and credit availed: CESTAT

++ Cus - Since the appellant is a small time gold melting person, imposing penalty of Rs. 20 Lakhs when the absolutely confiscated gold bars are worth of Rs. 90 Lakhs, is very harsh on him, same is reduced to Rs. 2 Lakhs : CESTAT

April 12, 2024

++ GST - Circular 108/27/2019-GST cannot override the provisions of the substantive rules framed under the CGST Act: HC

++ GST - Shocking state of affairs - Approach not conducive to international trade and commerce - Internal or departmental conflicts cannot cause prejudice to the assessee: HC

++ GST - Merely because electronic portals did not make appropriate provisions, entitlement of petitioner to receive refund, being an entitlement under the IGST Act, cannot be defeated: HC

++ ST - s.73(4B) of FA, 1994 - True import and spirit of the provision required expediency on part of Assessing Officer and which has not been scrupulously complied with - Proceedings ought to have been completed within an year: HC

++ ST - Avoiding multiple litigation - Public money blocked - Petitioner's request for early hearing of matter by Tribunal allowed: HC

++ GST - Disallowance of ITC on the ground that ISD did not file GSTR Form-6 - No coercive action during pendency of petition: HC

++ GST - Provisional release of goods and conveyance - Ad interim relief granted on payment of penalty and fine and execution of bond: HC

++ GST - Issue of levy of GST on residential accommodation should be viewed from the perspective of recipient of service and not from perspective of service provider, who offers the premises on rental basis: HC

++ GST - Renting out hostel rooms to girl students and working women by petitioners is exclusively for residential purpose - Exemption available from levy in terms of 12/2017-CTR: HC

April 11, 2024

++ GST - Demand of Rs.20 crores confirmed by observing that reply filed is not clear and is unsatisfactory - Proper officer ought to have given an opportunity to petitioner and sought clarification - Matter remitted: HC

++ GST - Non-application of mind - If Proper Officer was of the view that reply is not clear and unsatisfactory and if any further details were required, same could have been specifically sought: HC

++ GST - Petitioner was not directed to produce any bank payment proofs for being held eligible to claim ITC - If an opportunity is granted, petitioner claims that they would produce the same - Order set aside and matter remitted: HC

++ GST - Amnesty from late fee given for late filers of GSTR-9 - No justification in continuing with notices for non-payment of late fee for belated GSTR-9C: HC

++ CT - Having failed to avail the statutory remedy of appeal within the prescribed time, petition filed is not maintainable: HC

++ Cus - Nature of goods need to be determined by way of proper test/ technical literature for which the matter is remanded for re-consideration to adjudicating authority: CESTAT

++ CX - Invocation of extended period for demanding differential duty on the redetermined value by the Revenue, in absence of suppression of facts or mis-declaration, cannot be sustained: CESTAT

++ ST - Advertisement services - Exclusion clause in Explanation 2 of rule 2(k) of CCR, 2004 is applicable to a manufacturer and not to a service provider - Cenvat credit permissible on MS angles, shapes, sections etc. used for erection of hoardings: CESTAT

April 10, 2024

++ ST/GST - A State does not have to tax everything in order to tax something - Challenge to reverse charge notifications is plainly unmerited: HC

++ ST/GST - An assessee, which is not liable to pay tax on output has no liability against which it can set off the input tax credit - s.17(3) deeming supply of recovery agent as exempted supplies is legal: HC

++ ST - SVLDRS, 2019 - Without issuing Form SVLDRS-2, the Designated Committee has straight away issued SVLDRS-3, thereby depriving the Petitioner of an opportunity of personal hearing - Matter remanded: HC

++ Cus - Once the bond had lapsed, it was not permissible for respondents to impose a recovery which would be alien to the provisions of Customs Act: HC

++ Cus - Matter involves disputed questions of fact as to whether the notices were served upon petitioner or not by respondent-authority - Petition dismissed as there is alternative efficacious remedy available: HC

++ ST - Activity of giving tips/information on shares would not fall under definition of 'banking and other financial services' and consequently not liable for demand of service tax: CESTAT

++ CX - Charges of clandestine removal were not founded on any cogent evidence & relied heavily on supposedly unaccounted clearance of scrap; penalties on Assessee-companies quashed: CESTAT

++ Cus - Rejection of transaction value declared by importer & enhancement thereof is unsustainable, where based solely on NIDB data & without following procedure given in Section 14 of Customs Act: CESTAT

April 09, 2024

++ GST - Since registration was cancelled, taxpayer could not have accessed the portal and there is merit in the contention that petitioner was not served with the impugned SCN - Order set aside and matter remitted: HC

++ GST - Order does not specifically deal with the reply given by the petitioner but merely says that it is insufficient and unsatisfactory - Order set aside and matter remitted: HC

++ GST - Rectification orders passed by department - Fresh applications, for refund of excess GST amount paid, to be filed by petitioner: HC

++ GST - Technical glitch in filing refund claim online now rectified - Date of filing manual application be considered as relevant date: HC

++ GST - Order, which is appealed against, is uploaded on common portal and same can be viewed by appellate authority - Requirement of submitting certified copy is insignificant - Amendment by 26/2022-CT is clarificatory, hence retrospective in operation: HC

++ Cus - The product literature provided by appellant very clearly shows that items are part of Animal Feed and not fit for Human consumption for preparation of medicines, the product Betine Hydrochloride falls under CETH 230990: CESTAT

++ ST - Before applying the ratio of any judgment, it needs to be seen whether the facts of both the cases are identical or otherwise, matter needs to go back for reconsideration in light of judgment in case of Cadila Healthcare : CESTAT

++ CX - Penalty imposed u/r 27 of Central Excise Rules 2002 is upheld where Assessee omitted to inform Department about clearance of goods upon closure of Pan Masala Packaging Machine: CESTAT

April 08, 2024

++ ST - Even if there was any service rendered in regard to quality checking, demand ought to have been raised against M/s. Fashion Force, who is the service provider for quality checking: CESTAT

++ ST - As per settled law, service provider or sub-contractor has to pay tax even if main contractor or service recipient has discharged tax liability on former's behalf: CESTAT

++ ST - Mala fide intent with intent to evade payment of tax cannot be alleged against assessee where dispute involves interpretation of law: CESTAT

++ ST - Mere failure to pay duty without any collusion, fraud or willful misstatement not sufficient to invoke extended period of limitation , more so where Assessee is regularly undergoing audit & where Department is aware of the dispute over payment of tax: CESTAT

++ Cus - Appeal to Commr. (A) dismissed on time bar, despite only 1-day delay in filing appeal; proof of service of order not brought on record either by Assessee or by Department; fresh opportunity given to Assessee to file appeal: CESTAT

++ Cus - In deciding an issue at hand, courts are only bound by evidence as available & placed on record in the matter under consideration; Courts cannot take cognizance of past offences to prejudice the present matter: CESTAT

++ CX - Appeal filed by Revenue is not maintainable before Tribunal since the appeal has been filed in a cyclostyled manner without appreciating the facts of case and without examining the impugned order: CESTAT

++ CX - Demand seeking reversal of Cenvat credit or payment of 6% tax on value of exempted items, in respect of Bagasse produced in course of manufacturing Sugar, is not tenable, where Board Circular on which demand is based, already stands quashed: CESTAT

April 06, 2024

++ CX - In absence of any sufficient cause having been shown, even on issue of limitation, delay is not liable to be condoned : HC

++ ST - SVLDRS, 2019 - Without issuing Form SVLDRS-2, Designated Committee has straight away issued Form SVLDRS-3, thereby depriving the Petitioner of an opportunity of a personal hearing - Matter remanded: HC

++ ST - SVLDRS, 2019 - If the time is extended for payment of amount determined by designated committee, it will tantamount to modifying the Scheme which is the prerogative of the Government: HC

April 05, 2024

++ CX - BTS shelters - Chain of 'input service' is tested by use in the hands of recipient who provides taxable service - Construction services, erection, commissioning & installation services, technical testing & analysis services are Input services for a telecom service provider: CESTAT (LB)

++ GST - To undertake a quasi-judicial adjudication is a solemn exercise which needs to be fulfilled with fairness and having all attributes of judicial adjudication: HC

++ GST - Issuance of summons under Section 70 of CGST Act is not hit by Section 6(2)(b) of CGST Act: HC

++ GST - In view of the fact that the basis of confirming rejection of refund was non-availability of certain record, which has now been verified by department, impugned order is set aside: HC

++ CX - CENVAT - Setting up of a factory premises providing for output services would fall into the definition of 'input service': HC

++ CX - Questions, which Revenue has raised in appeal are essentially questions of fact and there is no question of law which is required to be adjudicated - Appeal dismissed: HC

++ ST - SVLDRS, 2019 - Quantification of tax - Rejection, as generated by the electronic system is not correct in view of clarification by the Board by Circular 1071: HC

++ Cus - Proper Officer - Adjudicating authority is bound by the law laid down by Supreme Court in Canon India Ltd. case - To adjudicate within six months: HC

++ Cus - Pre-SCN consultation as mandated under proviso to s.28(1)(a) r/w Pre-Notice Consultation Regulation, 2018 not complied with while issuing SCNs, hence subsequent O-in-O and O-in-A are bad in law being void ab initio : HC

April 04, 2024

++ GST - SCN itself gave date of P.H. before expiry of 15 days from date of receipt of SCN to file reply; which is admittedly premature - Adjudicating authority was also in too much of hurry inasmuch as he passed order on the very next day - Matter remitted: HC

++ GST - Refund - Court, in exercise of its limited jurisdiction, cannot amend the statute and prescribe different time limits for moving refund application: HC

++ Cus - Once vessel was confiscated, property would vest in the Central government and resultantly, the mortgage of M/s Gujarat Maritime Board would come to an end - No due certificate to be issued to petitioner who bought vessel in auction: HC

++ Cus - Import of betel nuts - No fatal impurity so as to render the goods to be labelled as prohibitory - Taking such stand would render nugatory ruling of CAAR: HC

++ Cus - Appellant has not placed any order of NCLT declaring moratorium, therefore, Tribunal can continue with the hearing of appeal on merits: CESTAT

++ ST - Appeal to Commissioner (Appeals) filed beyond 90 days' extended limitation period, is not maintainable; hence, rightly dismissed: CESTAT

++ CX - Since impugned goods have been imported without payment of duty, inherent value of goods comprises element of Customs duty therein and therefore permission of allowing destruction of goods without authority of customs law will amount to arbitrary abatement of leviable customs duty: CESTAT

++ Cus - Apart from vague submission that original authority did not conduct thorough verification, there is no specific grounds raised that there is undervaluation, the argument in regard to amendment of Rule 10 is also not material to be considered as for the disputed period assessee has not paid any royalty or technical know-how fee: CESTAT

April 03, 2024

++ GST - Petitioner has not suffered any legal injury by the 101st Amendment especially since he is not registered - No locus standi - Petition dismissed: HC

++ GST - Petition was filed by reason of misguided over enthusiasm - Bench would have imposed cost but restrains itself - Petitioner cautioned: HC

++ GST - Petitioner specifically sought an opportunity of personal hearing but adjudicating authority opined that no hearing is required since detailed reply is submitted - Order is contrary to provisions of s.75(4): HC

++ GST - Amount of Rs.2,50,00,000/- was recovered by respondents - Whether it is genuinely a coercion or whether it was a voluntary deposit, is purely a disputed question of fact - Petition rejected: HC

++ VAT - Petitioner Bank has the first priority in respect of enforcement against Secured Assets by reason of s.26-E and having a prior registration of security interest with CERSAI - Attachment orders of MVAT authorities set aside: HC

++ Cus - It is not appropriate to classify imported articles by inferring from web-sites, even if of the supplier, or from quality certification awarded to supplier, and without subjecting imported goods to analysis & conformity to acceptable, or prescribed, standard: CESTAT

++ CX - Allegations of clandestine removal are not sustainable where Department does not discharge its burden of bolstering such charges with corroborative evidence: CESTAT

April 02, 2024

++ Stamp Duty - Delivery Order is not an extension of a Bill of Lading and both are mutually exclusive documents - Levying stamp duty on DO is well within the legislative competence of the State: HC

++ GST - Proper officer has merely held that the reply is not clear and unsatisfactory which ex-facie shows that he has not applied his mind - Matter remitted: HC

++ GST - Registration cancelled retrospectively - As petitioner does not seek to carry on business, registration shall be treated as cancelled w.e.f date when they applied for cancellation: HC

++ GST - If reply was unsatisfactory, proper officer could have sought further details - Order does not indicate that such an opportunity was given - Matter remitted: HC

++ GST - Merely because a taxpayer has not filed returns for some period does not mean that taxpayer's registration is required to be cancelled with retrospective date also covering the period when returns were filed and taxpayer was compliant: HC

++ CX - Valuation - Value of goods cannot be determined straightaway under Rules 7, 8 or 9 ov CVR 2007; Rules must be applied sequentially - valuation done otherwise is against the law: CESTAT

++ ST - Ownership of plant & machinery used for manufacture of excisable goods cannot per se be a criteria for charging Central Excise duty: CESTAT

++ ST - Supply of High Pressure Truck Mounted Mobile Air Compressor by Assessee to M/s ONGC on hire basis, for producing Compressed Air further utilised for oil exploration, will not attract tax under Mining Service as function of oil exploration is not entrusted to assessee: CESTAT

++ ST - Tax demands & imposition of penalties u/s 76, 77 & 78 of Finance Act 1994 are sustained where Assessee does not pay service tax on income derived from providing service of renting immovable property & no valid explanation is given for such default: CESTAT

April 01, 2024

++ ST - Revenue cannot, after being unsuccessful before HC, on its own, declare the refund to be erroneous - Open to Revenue to seek protection from Supreme Court: HC

++ ST - Petition dismissed by Single Judge with liberty to file appeal - Appellant has informed that they have filed appeal but a direction be issued to pass orders expeditiously - Directions issued: HC

++ ST - SVLDRS, 2019 - Usurping powers - Adjudicating authority could not have cancelled discharge certificate on the ground that declaration contains material particulars which are false: HC

++ Cus - Error of not marking 'Y' against the reward column is clearly an inadvertent error - MEIS benefits to be extended : HC

++ Haryana VAT - 362-day delay in filing appeal cannot be condoned where the legal officer concerned did not take steps to file appeals expeditiously: HC

++ ST - CENVAT Credit is allowed on telecast fees paid in respect of broadcasting of own programmes/serials by media company: CESTAT

++ ST - No Service Tax is payable by Municipal Corporation on activity of letting out road sides to cable TV & telecom operators for laying out Optical Fibre Cables: CESTAT

++ CX - Excess amount represents profit element, once this is so, same cannot be subjected to excise duty inasmuch as duty is leviable on manufacture of goods and not on profit: CESTAT

++ Cus - As per settled law, proceedings under different laws enacted for different purposes are no grounds for preferring one over the other: CESTAT

 

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