TODAY'S CASE (INDIRECT TAX)

March 30, 2024

++ ST - Selective processing of goods by quarrying, earth work & excavating sand/wet sand & loading in lorries/tippers of customer, cannot be called as production or manufacture of goods, as no new identifiable goods have come into existence: CESTAT

++ Cus - Left-out ATF in fuel tank onboard Aircraft on returning to India after termination of international voyage - Transaction value excludes scope for addition of freight, insurance and landing charges to the cost of fuel: CESTAT

++ Cus - Goods imported is brush cutter, CH 8467; has got dual use though it is not meant for use exclusively in agricultural operations - Benefit of 12/2012-Cus unavailable - Normal period demand sustains: CESTAT

March 29, 2024

++ GST - Penalty demand of Rs.3731 crores - A person who would fall within the purview of sub-section (1-A) of s.122 should necessarily be a taxable person who retains the benefits of transactions: HC

++ GST - Threatening and pressurising petitioner who is merely an employee - Highly unconscionable and disproportionate on the part of the officer: HC

++ GST - Same relief was claimed in earlier petition which was withdrawn unconditionally - Fresh petition seeking same relief is barred by the estoppel principle: HC

++ GST - Neither SCN nor the order spell out the reasons for retrospective cancellation of registration, hence cannot be sustained: HC

++ GST - Non-application of mind - If reply was unsatisfactory, details could have been sought - Record does not reflect that such exercise was done - Matter remitted: HC

++ 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 and taxpayer was compliant: HC

++ GST - Petitioner's reply, although terse, is not taken into account while passing assessment orders - Petitioner put on terms, another opportunity provided: HC

++ ST - Software development service & IT-enabled service provided by assessee was exempt from tax during relevant period, by virtue of CBEC's Notification & Circular; demands raised for such period not sustainable: CESTAT

++ Cus - Order rejecting exporter's request for conversion of Shipping Bills on grounds that the same has been made by exporter beyond period of three months from date of Let Export Order in terms of CBEC Circular No. 36/2010-Cus : CESTAT

++ Cus - No Cess is payable when Basic Customs Duty is found to be Nil: CESTAT

++ CX - As per settled law, a right acquired as result of a statutory provision, cannot be taken away retrospectively unless said statutory provision so provides or by necessary implication has such effect: CESTAT

March 28, 2024

++ Cus - Enhancement of declared value of imported goods is not tenable, where Department adduces no material to show how the enhanced value was computed & where no cogent rationale is made out for rejecting declared value: CESTAT

++ Cus - Assessee has not proved beyond reasonable doubt that goods in question imported under air way bills/bills of entry were in fact filed by him and hence the only natural corollary available to Revenue is confiscation of same: CESTAT

++ ST - When the facts are in the knowledge of department subsequent SCN alleging suppression cannot be issued and entire demand was found beyond normal period of limitation: CESTAT

++ ST - Tripura State Rifles not required to pay Service Tax under heading of Security Services, as it is is not engaged in business of providing security services: CESTAT

++ CX - Clandestine removal alleged based on consumption of raw inputs and heightened electricity usage - Tax demands based on third party statements but without permitting cross examination of deponents; case remanded to allow this exercise: CESTAT

March 27, 2024

++ GST - No cross-empowerment - If an assessee has been assigned administratively with Central Authorities, State Authorities have no jurisdiction to interfere with assessment proceedings in absence of a corresponding Notification u/s 6: HC

++ GST - No cross-empowerment - Central Authority/State Authority to whom respective petitioners have been assigned for administrative purpose should initiate appropriate proceedings afresh - Limitation inapplicable: HC

++ GST - In the absence of any reason, any quasi-judicial order would be rendered arbitrary, which the law would not recognize to be a valid order: HC

++ GST - ITC availment dispute - Petitioner was negligent in not submitting documents during the adjudication proceedings - Matter remanded after putting petitioner to terms: HC

++ GST - Petitioner permitted to submit additional documents to explain disparity between taxable turnover reported in its returns and details contained in Form 26AS - Order set aside and matter remitted: HC

++ GST - Reasons for rejecting the submissions made in the reply and documents annexed thereto do not find a place in assessment order - Matter remanded: HC

++ Cus - non mentioning of a particular section of Customs Act, 1962 would not vitiate proceedings when allegations & charges against the Appellant are mentioned in clear terms in the notice: CESTAT

++ Cus - Appeals before CESTAT would abate where relevant party is undergoing insolvency proceedings under IBC 2016 & pursuant to which IRP has been appointed: CESTAT

++ CX - As is settled law, tax paid by 100% EOU is Excise duty, although the measure adopted for computing such Excise duty is aggregate applicable duties of Customs payable by the EOU: CESTAT

++ ST - Contracts awarded to Assessee for supply, erection & commissioning of irrigation projects, are to be treated as Works Contract; demand raised under Erection, commissioning and installation service is not tenable: CESTAT

March 26, 2024

++ CX - Examination and supervision of loading of export goods at factory premises by Range Central Excise officers - Appellant manufacturer not liable to pay Merchant Overtime charges: HC

++ CX - Appellant would not be liable to pay MOT for carrying out examination and supervision of loading of export goods at the factory premises during office hours on working day by the Central Excise Officers: HC

++ ST - SVLDRS, 2019 - Time limit for payment of amount payable cannot be extended by the Court as the same would amount to modifying the scheme: HC

++ CX - LB decision has not yet attained finality in view of admission of appeal by Supreme Court - It would not be a breach of judicial propriety to give a finding that Appellant is liable to pay the duty as demanded in SCN: CESTAT

++ Cus - Laying down of Monetary limit for filing appeals - Circular was for department to follow and not for the assessee to rely upon: CESTAT

++ Cus - Rule 6A of CESTAT Procedure Rules, 1982 - CBIC Instruction F. No. 390 dated 17.08.2011 prescribing monetary limit for filing appeals before Tribunal is not mandatory: CESTAT

++ ST - Construction of rooms for a school is not classifiable under Erection, Commissioning or Installation Service as rooms are not plant, machinery, equipment or structure: CESTAT

++ ST - Activity of construction of rooms would be taxable where the same were meant for commercial or industrial use; service of constructing rooms for a school, cannot be classified under Commercial or Industrial Construction Service - No tax is payable on such activity: CESTAT

++ Cus - Redemption fine and penalty imposed on assessee to the tune of 10% & 5% respectively on assessed value is sufficient: CESTAT

++ Cus - Demanding Customs duty from importer, based only on money transfer to exporter's bank account where not supported by any evidence, is not tenable: CESTAT

++ CX - Appellant has not produced any other evidence other than CA's Certificate which alone is not sufficient to conclude that 'unjust enrichment' is applicable or not: CESTAT

March 23, 2024

++ Cus - Permission was granted by Supdt to unload a portion of cargo outside open space which was notified as public bonded warehouse but within factory premises - It would, therefore, not be correct to say that cargo was improperly or unauthorisedly removed from notified public bonded warehouse: SC

++ GST - SCN and order do not spell out the reasons for retrospective cancellation - Order set aside and registration is restored: HC

++ GST - SCN alleges that registration has been obtained by means of fraud, wilful misstatement or suppression of facts but is unclear as to which ground applies, whether fraud, wilful misstatement or suppression of facts: HC

++ GST - Petitioner availed a lower amount as ITC than reflected in the auto-populated GSTR 2A return - In such circumstances, conclusion that petitioner wrongly availed of ITC indicates non-application of mind: HC

++ Cus - Smuggling of Red Sanders - Supplementary SCN is a notice based on new facts and the word 'supplementary' is only to indicate that it needs to be adjudicated along with the primary notice - Tribunal order set aside: HC

++ Cus - Allegation of fake COO Certificate - Ineligible exemption - Specified officer could not have passed order of prohibiting DTA clearance under provisions of SEZ Act under any apprehension: HC

++ CX - The credit earned on Molasses cannot be used for payment of duty payable on sugar as molasses is a bye product of sugar and is not an input required for manufacturer of sugar: CESTAT

++ ST - Tax demand raised warrants being dropped where raised without reconciling relevant data pertaining to payment of tax by assessee: CESTAT

March 22, 2024

++ Cus - A 60 year old notification and Commissioner's vivid imagination - Body massager cannot be categorised as an Adult Sex toy: HC

++ GST - Registration cannot be cancelled with retrospective effect mechanically: HC

++ GST - Once registration is cancelled retrospectively, taxpayer is not in a position to access portal; become aware of any notice or respond thereto - SCN copy to be served and response to be filed within two weeks: HC

++ GST - Same demand resurrected - Once order in form ASMT-12 is issued, no f-urther demand is sustainable: HC

++ Cus - Rulings by commodity experts of US Customs are equivalent to Advance Rulings under the Customs Act, 1962 and have no binding value: CESTAT

++ Cus - Merely because Electronic Control Unit (ECU) is in the form of a PCB does not change it from being a part of an automobile into an instrument or an apparatus - rightly classifiable under CTH 8708 and not under 9032: CESTAT

++ CX - As it has not been questioned that ISD has taken inadmissible cenvat credit, in that circumstances, cenvat credit cannot be recovered from appellants: CESTAT

++ ST - Law does not distinguish between a private factory or a Government body using GTA services - No exemption is available to assessee as a unit of Railways Ministry - Tax demand with interest is payable by assessee: CESTAT

++ CX - Demand raised against job worker is unsustainable where nature of output from job worker is not mentioned in SCN or O-i-O; whether or not final product is marketeable, is not forthcoming - demands quashed: CESTAT

++ CX - Cenvat credit availed by appellant based on invoices issued by M/s Ganesh Forging Company cannot be denied, impugned order denying the credit is not sustainable : CESTAT

++ Cus - Gold jewellery seized from Appellant is of 91.6% purity, is not of foreign origin & so is not covered u/Section 123 of Customs Act 1962; Ergo, burden of proof not on Appellant & no evidence furnished by Department to prove smuggled nature of gold - confiscation thereof is not tenable: CESTAT

++ Cus - Smuggling of Gold - Allegations were levied & tax demands raised, based solely on third parties' statements, which too were subsequently retracted - Allegations do not hold, for want of corroborative evidence: CESTAT

March 21, 2024

++ Cus - Appellant having admitted permitting the use of his licence by third party in exchange for monthly remuneration, the punishment of cancellation of licence is not disproportionate: HC

++ GST - Petitioner did not have access to portal as their registration was cancelled retrospectively - Therefore, impugned order passed solely on the ground that petitioner had not filed a reply cannot be sustained: HC

++ GST - Neither the Show Cause Notice nor the order spell out the reasons for retrospective cancellation - same cannot be sustained: HC

++ GST - s.107 - Payment of pre-deposit can be made by utilizing the Electronic Credit Ledger (ECL): HC

++ Cus - Tender documents prove that appellant was to bear increase in duty burden - CA certificate has clearly stated that additional duty along with interest and penalty paid had resulted in erosion of profit/increase in loss - No unjust enrichment: CESTAT

++ Cus - Advance Authorisation - Benefit of 99/2009-Cus cannot be extended in view of overwhelming evidence of diversion of imported raw material to open market: CESTAT

++ Cus - Appellant has sought cross examination of a greater number of people, which is not justified; was merely using cross examination as a tactic to delay proceedings: CESTAT

++ Cus - Snacks cooking system with standard accessories imported is more appropriately classifiable under CTH 8419, being a more specific heading: CESTAT

++ ST - Commissioner failed to consider confirmation of contract which has been produced by appellant, condition laid down in notification are satisfied and appellant is entitled to get refund on this service subject to verification by lower authorities : CESTAT

++ ST - Dredging Service - Tax demand raised under extended period of limitation is unsustainable, where no suppression of facts with intent to evade payment of tax, is made out: CESTAT

++ CX - Tax dues owed to Excise Department cannot be recovered from Assessee undergoing Corporate Insolvency Resolution Process under IBC 2016, post approval of Resolution Plan by NCLT, and where Department did not raise any claim during the insolvency proceedings: CESTAT

March 20, 2024

++ GST - ITC Refund - Doctrine of consistency - When facts and circumstances in a subsequent assessment year are the same, no authority, whether quasi-judicial or judicial can generally be allowed to take a contrary view: HC

++ GST - Certified copy submission - Merit of the matters in the Appeal filed should not have been sacrificed for non-compliance of a procedural requirement: HC

++ GST - Petitioner had, on 12.04.2023, himself applied for cancellation of registration on the ground of closure of business, therefore, order of cancellation on ground that petitioner was found non-existent on 30.05.2023 ex-facie is not sustainable: HC

++ GST - Cancellation of registration retrospectively - Petitioner is no longer interested in continuing business and shifted abroad - Registration to be treated as cancelled from date of SCN: HC

++ GST - Even though petitioner may not have claimed in refund application, his claim of interest cannot be denied u/s 56 as the same is mandatory and payable automatically: HC

++ ST - Tax demand was confirmed on adjudication, but without specifying any head, thus leading to vague order; hence, demand is unsustainable: CESTAT

++ ST - The activity undertaken by appellant is a manufacturing activity of excisable goods which is clearly excluded from definition of Business Auxiliary Service and therefore, demand of service tax is not sustainable : CESTAT

++ CX - Even though service provider paid service tax which was otherwise not payable but payment of service tax and its assessment was not questioned by jurisdictional officer then also the credit availment by service recipient cannot be questioned: CESTAT

March 19, 2024

++ Cus - s.129E - If the statute gives a right to appeal upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested and exercisable to the appellant: HC

++ GST - Issues relating to huge economic offence of stealthily procuring raw materials, clandestine manufacturing and fraudulent supply of filter cigarettes - Petitioner should have availed alternate efficacious remedy: HC

++ GST - Where an adverse decision is contemplated, it is mandatory for the authority concerned to afford opportunity of personal hearing even if not sought: HC

++ GST - Since there has been a delay of one year in taking up the appeal, appellate authority could have granted one more opportunity by issuing a fresh notice of hearing: HC

++ GST - s.83 - Extension - Mere noting in the file of the officer concerned cannot constitute an order - It cannot be considered as a fresh order u/s 83(1): HC

++ GST - Attachment of bank account - Provisions of s.83 are to be r/w s.122(1-A) - Maharashtra GST Authorities have the jurisdiction to resort to provisions of s.83 with respect to Petitioner located in Chennai: HC

++ CX - Tax demands merits being quashed where based on oral statements but without permitting Assessee to cross examine the deponents & where also based on circumstantial statements: CESTAT

++ ST - Being appellant a registered service provider and filing their Service Tax returns, demand cannot be raised on the basis of Form-26AS obtained from Income Tax Department: CESTAT

++ Cus - Clearance of domestic household goods without proper clearance, does not warrant disproportionate penalty of Rs 50000/-, as the same is not a case of regular import by an IEC holder: CESTAT

++ CX - In so far as security services for their factory and trading premises was concerned, said services was directly connected with their business and hence, appellant was entitled for credit of service tax paid: CESTAT

March 18, 2024

++ Cus - Observation of Single Judge that the court had no expertise to hold the Chemical Examiner's report as incorrect needs no interference: HC

++ Cus - Assessment order is appealable under the provisions of CA, 1962 - Single Judge rightly dismissed petition relegating appellant to the statutory remedy: HC

++ GST -  Non-filing of certified copy of decision appealed against, within a period of seven days, when appeal has been filed electronically within time frame prescribed, is a mere technical defect - Appeal cannot be dismissed on this ground: HC

++ GST - Seizure of goods - Release thereof - No reason for Court to interfere as assessee has not approached the respondents u/s 67(6) of the Act: HC

++ GST - Order is cryptic without any reasons and without taking into account the reply filed by petitioner - Matter remitted to proper officer: HC

++ GST - Tax mistakenly paid - When appellant raised a specific plea that his refund application was well within time, the second respondent ought to have considered the same and passed an order - Matter remitted: HC

March 16, 2024

++ GST - JAC OLIVOL Body oil - As Members of the appellate authority differ on the classification of the impugned product, it is deemed that no advance ruling can be issued: AAAR

++ GST - Jurisdiction under Article 226 of the Constitution of India cannot be invoked to adjudicate factual disputes: HC

++ GST - Attachment of bank account, prior to determination of any irregular or inadmissible availment of Input Tax Credit, is akin to arm twisting; is not the dictum of CGST/Jharkhand GST Act: HC

++ Sales Tax - Non-filing of return - Even if a penalty was warranted, authorities ought to have taken into account the fact that there was no tax liability for the purposes of imposing a lesser penalty: HC

++ CX - Adjudication order is invalidated where based on a new ground not raised in Show Cause Notice: CESTAT

++ CX - While brevity is ingredient of a good judgment, the greatest hallmark is clarity & citing of legal provisions which led to the decision; order invalidated where examination of issue not done & no legal grounds are given to justify rejection of assessee's claims: CESTAT

++ ST - Amount of refund shown as service tax receivable under asset side of trial balance sheet proves that amount of service tax has not been passed on to any other person, hence same is not hit by unjust enrichment: CESTAT

++ ST - Department has not adduced any positive evidence to show malafide intention or mens rea for evasion of Service Tax on the part of appellant, extended period cannot be invoked to demand service tax: CESTAT

March 15, 2024

++ Cus - Attachment of bank accounts over allegation of Gold smuggling - Total non-compliance with provisions of Section 110(5) of Customs Act by Department officers - Ergo, attachment orders are invalidated: HC

++ GST - SCN did not put noticee to notice that registration was liable to be cancelled retrospectively - Order too does not spell out reasons for retrospective cancellation: HC

++ GST - Proper officer has not applied his mind to the reply submitted and merely held it to be unsatisfactory - Matter remanded: HC

++ VAT - Whether ITR details can be relied on to compute turnover under Kerala VAT Act, is not issue relevant for writ court: HC

++ CX - SCN having been issued under a non-existing provision is not maintainable in law: CESTAT

++ Cus - Forged DEPB scrips - None of the aggravating factors which will make extended period of limitation invokable were alleged, let alone, established against importer - Order cannot be sustained: CESTAT

++ ST - Agreement between players and IPL franchisee - Demand under BAS cannot be sustained - Brand promotion, a separate category, taxable from July 2010: CESTAT

++ CX - Order proposing duty demand, passed without citing relevant provisions of law & hence is non-speaking order - order quashed & case remanded for de novo hearing: CESTAT

++ ST - As per settled precedent, textile exporters who paid overseas agency commission to promote their exports, are eligible for exemption under Notification No. 14/2004-ST : CESTAT

++ CX - Secondary packing charges, freight cost recovered by assessee from customers for onward movement of goods from factory to railway station, is not includable in assessable value: CESTAT

++ ST - Once service is covered under WCS post 01.06.2007, no exemption under Circular No. 151/2/2012-ST dt. 10.02.2012 is allowed: CESTAT

++ Cus - Request for converting Shipping Bill under Drawback Scheme to Advance Authorisation scheme is wrongly denied, where no evidence exists to show that conditions of CBIC Circular No. 36/2010 dated 23.9.2010, are not satisfied: CESTAT

++ ST - Once adjudicating authority has not appreciated true nature of a transaction & scope of Section 65A, there is no bar to changing its classification, if there is scope for classifying it under a more appropriate heading, post introduction of levy: CESTAT

March 14, 2024

++ Misc - Application for extension of time filed by SBI to furnish electoral bonds details stood dismissed as requisite information is sufficiently available with bank: SC

++ CX - Charges of clandestine removal and undervaluation cannot be sustained merely on the basis of assumptions and presumptions: HC

++ GST - Cancellation of registration retrospectively - SCN and order cannot be sustained as they are bereft of any details: HC

++ GST - Whether SCN is issued by properly invoking extended period of limitation - Plea can be taken up before the adjudicating authority: HC

++ KGST - Merely because there is intervening event that broke chain of movement of goods from outside State to within State, prior to their incorporation in works contract, such transaction is not 'intra-state sale': HC

++ GST - Nature of services could be known only from the service agreements entered between petitioner and foreign clients - Without same having been made available, Appellate authority could not have decided the issue - Matter remanded: HC

++ ST - Erection, installation & commissioning of Dehumidifier on hire basis - As Assessee paid VAT on such activity, being deemed sale as per Article 366(29A) of Constitution, no Service Tax demand can be raised on such activity: CESTAT

++ ST - Activity of providing erection, commissioning & installation services along with supply of materials, qualifies as Works Contract Service, as per which Assessee is to pay tax on 33% of value of contract executed; as assessee paid above such amount, no tax is recoverable: CESTAT

++ Cus - As per Para 9.12 of FTP, goods falling under category of equipments, apparatus, etc. are freely importable irrespective of their size & nature; As per EPCG Scheme, no difference exists between machine tools or hand tools; confiscation of imported goods unwarranted: CESTAT

++ Cus - Classification of GTL Light Paraffin - Testing by CRCL Vadodara ignored standard for testing such samples, set by CRCL Delhi, leading to reports of CRCLs being at odds - Failure to permit re-testing of samples also creates doubts on original reports - Ergo, charges of mis-declaration based on such report are unsustainable, more so where not established: CESTAT

++ CX - Extended period of limitation cannot be invoked when there is no fraud/mis-statement with intent to evade payment of duty: CESTAT

March 13, 2024

++ GST - Neither the Show Cause Notice nor the order spell out the reasons for retrospective cancellation of registration: HC

++ GST - Merely because a taxpayer has not filed the 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 - Holding that the reply is devoid of merits indicates that the proper officer has not applied his mind - Order cannot be sustained: HC

++ GST - Cancellation of registration - Revenue admits that requisite details in support of SCN not shared with petitioner; agrees to furnish the same - Matter remanded: HC

++ GST - If Proper Officer was of the view that reply was not satisfactory and further details were required, the same could have been specifically sought - Since such exercise was not conducted, order set aside and matter remanded: HC

++ GST - Proper officer confirmed demand by holding that reply submitted is not satisfactory - Such observation ex facie shows non-application of mind - Matter remanded: HC

++ GST - Disputed questions of fact cannot be adjudicated by Court in exercise of jurisdiction under Article 226: HC

++ Cus - Since no violation of law has been established, penalty imposed on appellant is quashed and set aside: CESTAT

++ CX - Appellant is entitled to take Cenvat credit on invoices issued by first stage dealer/second stage dealer which is showing the details of manufacturer of goods and payment of duty: CESTAT

++ ST - Transition from one tax regime to another has its own challenges for tax payers; an overtly legalistic view is not called for in this difficult period - Case remanded to verify factum of double payment of tax, whereupon validity of assessee's refund claim be ascertained: CESTAT

March 12, 2024

++ GST - Assessing officer relied on materials available on the internet and attributed values to material used in construction and thereby arrived at petitioner's turnover - Orders set aside but by putting the petitioner on terms: HC

++ GST - Tax liability was confirmed by disregarding the objections that receipts in Form 26AS pertain to pre-GST period - Matter remanded albeit after petitioner remits 10% of disputed tax: HC

++ GST - Orders cannot be said to be a consequence of non-application of mind - Appropriate recourse is to carry the assessment orders in appeal: HC

++ CX - Payment made to directors under nomenclature of commission, is not commission classifiable under Business Auxiliary Services : CESTAT

++ ST - In absence of any specific provision, subsequent debit under IGST Act & rules made thereunder of ITC, cannot be circumstances to claim refund under Rule 5 of CCR, 2004: CESTAT

++ Cus - CBLR - Regulation 10(n) nowhere requires Customs Broker to physically visit premises of client to check if they are functioning at the premises; IEC & GSTIN are sufficient to verify validity of client's identity: CESTAT

++ Cus - Provisions of Section 149 permit amendment of Bill of Entry, even where imported goods are cleared for home consumption, by relying solely on documents existing at time of clearance of the goods: CESTAT

++ Cus - Rejection of request for amendment of Bill of Entry, on basis of mis-declaration of HSN not being revealed by claimant, is not valid reason to reject application for amendment: CESTAT

++ CX - Penalties imposed on company directors under Rule 26 of Central Excise Rules 2002 on allegation of clandestine removal - Allegations were probed after their resignation from company & no evidence put forth to establish their involvement - Penalties merit being dropped: CESTAT

March 11, 2024

++ ST - Tribunal found no evidence adduced by department to substantiate allegation of suppression of facts with intention to evade payment of service tax on the part of appellant, imposition of penalties set aside: CESTAT

++ CX - Ball point pen ink is classifiable under CET sub-heading 3215.10 attracting nil rate of tax, whereupon, allegations of clearance of goods by resorting to undervaluation, do not sustain: CESTAT

++ CX - Charges of clandestine removal not tenable where Revenue does not probe into aspects such as alleged dispatch of goods, realization of sale proceeds or details of dealers or buyers: CESTAT

++ CX - Valuation - Supply of Urinal Casing on Sale Basis & activity of fixing the electronic system in the urinal casing, where done on principal-to-principal basis, will not attract tax levy: CESTAT

++ Cus - Export of Red Sanders - Penalty imposed on exporter u/s 114(i) stands quashed, where no cogent evidence exists to show appellant's role in exporting Red Sanders: CESTAT

++ Cus - Provisional release of imported goods being Polyester Coated Fabric (Polymeric Compound) is permitted as importer has deposited substantial sum in that regard; delay in release is financially detrimental, given the increase in demurrage charges: CESTAT

March 09, 2024

++ Cus - Exemption under Notification No 53/2011-Cus cannot be denied solely on grounds that Certificate of Origin was not as per format mentioned in the Notfn: CESTAT

++ CX - If Department is barred from raising demands for refunds already granted, then Assessee also cannot seek interest on refunds already granted: CESTAT

March 08, 2024

++ GST - Neither the show cause notice, nor the order spell out the reasons for retrospective cancellation - Order cannot be sustained - Registration restored: HC

++ GST - Cancellation of registration - SCN and order are bereft of any details, therefore, they cannot be sustained: HC

++ ST/GST - Service tax cannot be recovered from third party who is neither the service provider nor the service receiver: HC

++ GST - Petitioner had received the order of March in September 2022, therefore, appeal filed in December is within the limitation period: HC

++ GST - Refund - Procedural compliances can never defeat the substantive remedy/right to pursue any proceedings when filed within limitation: HC

++ GST - Registration itself being non-existent, the tax return filed thereunder and any tax deposited under such return, could not have been retained by respondents: HC

++ GST - Conclusions in the order clearly reflect non-application of mind - Assessment order is quashed and matter remanded subject to the condition that petitioner remits 5% of disputed tax: HC

++ ST - In absence of determination and adjudication of liability to pay service tax, the recovery notices issued u/s 87 are one without authority of law: HC

++ Cus - SCN issued by Principal ADG, DRI, whether proper officer for issuance - Petitioner needs to canvass such legal position before the adjudicating officer: HC

++ Cus - When there is no evidence to establish fraud, misrepresentation or suppression of facts with intend to evade payment of duty, SCN issued invoking extended period cannot sustain: CESTAT

++ Cus - Confiscation of imported goods, imposition of redemption fine & penalties are unsustainable where barred by limitation; extended period could not have been invoked, on account of revenue neutrality: CESTAT

++ ST - Since buildings are government buildings and not commercial building, therefore, service neither fall under Commercial or Industrial Construction Service nor under construction of residential complex: CESTAT

++ ST - Assessee, a Stock broker, was under bona fide belief of not being liable to pay tax on receipts other than commission or brokerage; suppression of facts with intent to evade payment of tax cannot be attributed for purpose of levying penalty: CESTAT

++ ST - Cenvat Credit of Service Tax paid on telephone bills in respect of telephones installed at employees' residence, is allowed, given the definition of input service during relevant period: CESTAT

++ ST - Short paid tax was deposited by assessee with interest; delay in payments of tax were unintentional - Ergo, penalty u/s 76 of Finance Act, 1994 not imposable: CESTAT

March 07, 2024

++ GST - Petitioner not clarifying on a particular point, therefore, authority decided against grant of personal hearing - Such stand is untenable and in complete breach of principles of natural justice: HC

++ GST - An unsigned order is illegal; cannot be saved by taking recourse to s.160, 169 of the Act, 2017: HC

++ CX - AA has fallen into error in not considering sub-rule (3D) of rule 6 but has only relied upon explanation (3) of rule 3 which has no relevance to the facts - Reversal of 6% value of exempted goods satisfies the condition of notfn 30/2004-CX: HC

++ CX - Once assessee has reversed 6% of the value of goods treating such goods as exempted as per rule 6(3D) of CCR, condition of Notification 30/2004-CX can be said to have been met: HC

++ Misc - Order of Court / Tribunal along with scheme of amalgamation appended to it would be 'instrument' within meaning of Section 3 of Tamil Nadu Stamp Manual Act: HC

++ ST - Penalty imposed u/s 78 of Finance Act 1994 is sustained as assessee suppressed information from the Department regarding employment as recovery agent & since relevant information had to be obtained from the bank instead: CESTAT

++ Cus - Penalty imposed u/s 114 on Customs Broker is disproportionately high where no findings are recorded, as to alleged mis-declaration of consignments or importer's ineligibility for drawback: CESTAT

++ ST - Display of advertisement on some specified place was exempted from service tax because of entry of Selling of space for advertisement u/s 66D (g) in Negative List; Assessee was not engaged in designing & conceptualising advertisement - Demand raised under Advertisement Service is not sustainable: CESTAT

++ CX - Cenvat credit of tax paid on Mosquito Repellent Refills procured from unit availing area-based exemption, cannot be denied, as per settled law, denial of credit is invalid where tax is paid on said inputs: CESTAT

++ Cus - In absence of date of dispatch by speed post and date of acknowledgement, revenue failed to discharge initial onus and therefore it cannot be said that order was communicated to appellant at any time on or around 06.07.2018 : CESTAT

March 06, 2024

++ GST - Refund - Merely because receipts are routed through the intermediary and received in INR ipso facto would not mean that the petitioner has not exported services: HC

++ GST - s.129 - In case of a typographical and/or clerical error, a presumption to evade tax does not arise - Penalty not imposable: HC

++ GST - As petitioner's annual aggregate turnover is below threshold limit for registration, they could not have included GST certificate in their bid/quotation - Reason for disqualifying bid is unsustainable: HC

++ Cus - Enhancement of penalty is not tenable where inadequate reasons are furnished for the same: CESTAT

++ ST - The notional surplus earned thereby arises from purchases and sale of space and not by acting for a client who has space or slot on a vessel, no justification found for sustaining demand: CESTAT

++ CX - Deduction of Sales Tax, Octroi, Trade discount, Freight, is allowable, so long as the claims are backed by information available in the records: CESTAT

++ Cus - Valuation - Re-assessment of declared transaction value is not tenable, where no evidence is put forth to show that remittance was made by importer over & above the transaction value & also where all relevant shipping bills & port documents are not examined: CESTAT

March 05, 2024

++ GST - Constitutional validity of Section 171 of Act, 2017 as well as Rules 122, 124, 126, 127, 129, 133 and 134 of the Rules, 2017 - Notice issued, not to be construed as a restraint on the High Court: SC

++ GST - Proper officer has not even looked at the reply submitted by petitioner - Order being bereft of reasoning is set aside: HC

++ GST - Hearing intimation sent on a wrong email address - Matter remitted by setting aside order: HC

++ GST - Impugned order is unreasoned - Ingredients of s.74 are not satisfied - Order quashed - However, petitioner is put to terms: HC

++ GST - s.168A - s.73 - whether colourable exercise of power - Bench does not propose to stay SCN - Proceedings to continue but no final order to be passed without leave of Court: HC

++ GST - Annuity paid by NHAI to the concessionaires, whether to be construed as in lieu of toll charges - Matter requires further examination - SCN to be kept in abeyance: HC

++ GST - Petitioner is alleged to have been the recipient of fraudulent Input Tax credit - No clarity as to which are the said invoices - Since requisite details are unavailable, SCN is not sustainable: HC

++ GST - Rule 23 - Delay in filing application for revocation of registration condoned subject to petitioner depositing all taxes, interest, late fee, penalty etc.: HC

++ ST - As Form 26 AS is public document and same was available on record during period 2014-2015 onwards with Department, demand pertaining to extended period of limitation is not sustainable and same is set aside: CESTAT

++ Cus - Appellant cannot be penalized just because he was in possession of gold which is taken from Mr. Santosh Patil, as there is no evidence available on record to establish involvement of appellant in alleged smuggling of gold: CESTAT

March 04, 2024

++ ST - Issuance of a consignment note is essential condition for classifying an activity under GTA Service; tax demand raised thereunder is not tenable where no consignment note is issued: CESTAT

++ Cus - A final order does not get invalidated simply because in a related matter which was cause of initiation of action in the present proceedings, has now been remanded: CESTAT

++ Cus - Exemption under Notification No. 12/2012-CE is rightly denied in respect of goods which are imported & also not consumed in factory of production: CESTAT

++ Cus - It is not the case of department that appellant have colluded with supplier of goods to suppress actual value addition or genuineness of information in certificate of origin, therefore, no mala fide can be attributed on the part of appellant: CESTAT

++ CX - Reversal of Cenvat Credit is not warranted in terms of CCR, 2004, when by-product Bagasse is cleared from factory without payment of duty: CESTAT

++ CX - Matter requires re-adjudication since what is required is verification of documents vis-à-vis the claim of appellant, which can only be done by original authority: CESTAT

++ GST - Classification - Assessee has been called upon to pay the quantified sum and not show cause as to why the said amounts are not payable - prima facie indicative of pre-judgment: HC

++ CX - SVLDRS, 2019 - Petitioner, co-noticee is partner of M/s Sunshine Corporation - Benefit of Scheme has been extended to M/s Sunshine Corporation pursuant to Court orders - Similar benefit needs to be extended to co-noticee too: HC

++ Cus - Purpose of Notification was to immediately put ban on export of Non-basmati rice in order to meet internal needs of the country in future - Court is not inclined to invoke the principle of substantial compliance and intended use: HC

++ ST - In case of slump sale, there is no question of providing any service as per s.65(92) as well as s.65(55b) of the Finance Act, 1994: HC

++ GST - Refund of IGST paid on ocean freight - Stand of respondent that such refund does not fall under any category u/s 54 is deprecated - Law of the land is liable to be followed: HC

March 02, 2024

++ GST - s.109 - Appeal before Tribunal - When State Bench is not in operation, Petitioner could very well approach Principal Bench, which is functioning, by filing an Appeal: HC

++ ST - Revenue resorted to s.142 of Customs Act for recovery of service tax dues - Order quashed leaving it open to respondents to initiate appropriate proceedings in accordance with the CGST Act: HC

++ ST - s.121(r) - SVLDRS, 2019 - Order was passed u/s 87 of FA, 1994 for recovery of the amount due, which necessarily means that tax payable had been determined and ascertained - Valid declaration to be considered: HC

++ GST - SCN is ex facie defective - Order is bereft of any details - Cancellation of registration effective from date on which petitioner discontinued business: HC

++ GST - Reason to not allow the authorities to go beyond SCN is that a person must be given a chance to put up his case with regard to the said SCN: HC

March 01, 2024

++ Misc - There cannot be automatic vacation of stay orders of high courts on civil & criminal trials: SC

++ ST - SVLDRS, 2019 - A rectification proceeding u/s 74 of FA, 1994 cannot be considered to be an appellate proceeding - Case is to be considered as 'amount in arrears': HC

++ ST - SVLDRS, 2019 - Parity of treatment - Amount paid on 09.06.2021 - Petitioner to pay interest @15% from 01.07.2020 - Respondent to issue discharge certificate: HC

++ GST - Claim was rejected entirely on the ground that GSTR-3B returns did not reflect ITC - Assessing officer should examine all relevant documents and by referring to GSTR-2A and GSTR-9: HC

++ GST - Cancellation of registration by alleging wrong availment of ITC - Petitioner states that he did not have any dealing with the said entity - Order is bereft of any details: HC

++ GST - Search and seizure of the godown cannot result in penalty proceedings under Section 129 of the Act: HC

++ GST - Failure to place relevant documents on record, therefore, order passed confirming demand - Petitioner is permitted to submit additional documents within two weeks - Fresh assessment order to be passed within two months: HC

++ GST - Proper officer has not taken into consideration the reply filed by petitioner while passing the cryptic order - Order set aside and matter remitted: HC

++ GST - Proper officer should have at least considered the reply on merits and then formed an opinion - Order is set aside and matter remanded: HC

++ GST - Neither the show cause notice nor the order spell out the reasons for cancellation of registration - Same cannot be sustained: HC

++ GST - Order passed u/s 83 attaching cash credit accounts ceases to operate after one year -  There can be, therefore, no impediment in petitioners operating the accounts: HC

++ GST - Petitioner, legal heir, does not seek to carry on business - Registration to be treated as cancelled from date when the proprietor passed away and not retrospectively: HC

++ GST - Proper officer has not even looked at the reply submitted but concluded that no explanation has been received from taxpayer - Order set aside and matter remitted: HC