TODAY'S CASE (INDIRECT TAX)

November 30, 2024

++ Cus - Department's reliance solely on NIDB data to reject declared value is insufficient, without concrete evidence to support it's claim that declared value is incorrect: CESTAT

++ Cus - Valuation - As per Rule 12(1), legitimate reason, supported by evidence, to doubt declared value & which must be communicated to importer to allow opportunity for rebuttal: CESTAT

++ ST - Prior to 23.08.2007, liability of payment of service tax by sub-contractor itself was in doubt and accordingly, even if main contractor has not paid Service Tax, the service tax liability cannot be fastened on sub-contractor: CESTAT

++ CX - Spent solvent emerging as waste during manufacture of bulk drugs, cannot be made dutiable: CESTAT

November 29, 2024

++ Service - Principle of forum conveniens has to be tested from the stand point of the petitioner who is the dominus litis and not at the conveniences of the State Government: HC

++ Service - Claim of respondent was hopelessly time barred as s.21(1)(a) of Administrative Tribunals Act, 1985 clearly provides that an application to Tribunal cannot be entertained unless the same is made within one year from the date on which final order has been passed: HC

++ GST - Activities undertaken by a charitable institution would, prima facie , not fall within the ambit of activities undertaken in the course of or in furtherance of business - Order kept in abeyance: HC

++ ST - Petitioner was not at all liable for service tax and the respondent authorities could not have assumed jurisdiction to issue SCN on the basis of the data provided by IT Department in Form-26AS: HC

++ ST - A service which is exported to recipient outside India, will not attract Service Tax levy: CESTAT

++ ST - Demands under Mandap Keeper Services & Renting of Immovable Property Services not taxable, as the renting was aimed solely at promoting cricket rather than commercial activities: CESTAT

++ ST - Tax demands based solely on financial statements or income declaration, are unsustainable, as a thorough investigation with contemporaneous evidence is necessary to substantiate tax liabilities: CESTAT

++ ST - Invoking extended period of limitation is not tenable where such action is taken mechanically and is not based on any substantial evidence: CESTAT

++ CX - Even if oral admission is obtained, charges of clandestine removal cannot be sustained without supportive credible evidence as well as cross examination of such witnesses: CESTAT

++ CX - Clandestine removal - Charges cannot sustain without corroborative evidence for clandestine production of goods, removal thereof from factory, confirmation from transporters or buyers of such goods & receipt of sale proceeds: CESTAT

++ CX - Penalty need not be imposed where matters involve issues pertaining to statutory interpretation: CESTAT

November 28, 2024

++ Cus - As is settled law, NIDB data alone is insufficient for reassessment without corroborative evidence; re-assessment must be based on tangible, corroborative evidence, ensuring fairness and transparency in Customs valuation: HC

++ GST - s.107 - Pre-deposit can be made through Electronic Credit Ledger - Word used in s.49(4) is 'may' and not 'shall': HC

++ GST - APL-01 provides for the mechanism to pay pre-deposit by utilizing Electronic Credit Ledger as well: HC

++ GST - Notf . 2/2017-CT(R) - Adjudicating authority has taken a myopic view by holding that since the goods were purchased by utilising the funds of KIIFB, the same cannot be treated as a grant for the purposes of notification: HC

++ ST - SVLDRS, 2019 - Merely because a higher figure is mentioned in the application by way of abundant caution, Petitioner cannot be deprived of the benefit of the Scheme more so when the object is to reduce litigation: HC

++ Cus - Smuggling of gold - COFEPOSA - Fact that the Sponsoring Authority can move for cancellation of bail cannot be a ground to quash the order of preventive detention: HC

++ Cus - Petitioner is not required to pay SWS calculated on customs duty, exempted under scrip held by it: HC

++ Cus - Merely because the imported products have additional facility like attachment of Video Port, S-Video Port and HDMI, impugned goods cannot be classifiable under CTH 8528 69 00: CESTAT

++ ST - Renting of Immovable Property Service - it is incorrect to combine ownership of building & total value of service provided when determining service tax liability: CESTAT

November 27, 2024

++ GST - Cancellation of registration - Petitioner is not entirely blameless - They neither filed a reply nor attended personal hearing - Order visits petitioner with serious civil consequences, therefore, matter remanded subject to petitioner paying costs of Rs.50 thousand: HC

++ GST - Alleged Issuance of fake invoices for ITC availment - No conclusion by department that firms are not in existence - Quantum of ITC not yet arrived at - Petitioner has already suffered custody of more than seven months - Bail granted: HC

++ GST - Enhancement of GST rates - Respondent No.2 which is a Government Entity is directed to pay the difference of GST amount to petitioner @ 6% from 01.01.2022 to 30.09.2022 within a period of three months: HC

++ TN General Sales Tax - it is onus of dealer to prove that transaction qualifies for second sale exemption, especially when purchase records are found to be fictitious: HC

++ Tamil Nadu General Sales Tax - as per settled position in law, pawnbrokers selling unredeemed goods are liable for sales tax, as such sale is incidental to their business: HC

++ Cus - Whether imported goods are other petroleum items or Naphta, where latter attracts higher tax rate - Department's reliance on test reports is not tenable as prescribed test is not followed & importer's request for cross examination of experts is disallowed: CESTAT

++ ST - For provision of output service, appellants had got the value of taxable service in convertible foreign exchange, services provided by appellants can be considered as ‘export' and as such, benefit provided under Rule 5 of Rules, 1994 should be available to them: CESTAT

++ ST - Customer care services are rightly classifiable under Business Auxiliary Service: CESTAT

++ ST - Extended period of limitation to be invoked if there is evidence of fraud, collusion, willful mis-statement, suppression of facts, or contravention of provisions aimed at evading Service Tax: CESTAT

++ ST - As is trite law, it is the responsibility of the Department to identify discrepancies during audits & issue show cause notices promptly: CESTAT

++ ST - As per settled law, if Department already possesses knowledge of relevant facts, it cannot claim that assessee suppressed or mis-declared information with intent to evade duty: CESTAT

++ CX - As settled in assessee's own case, it is not liable to pay Sugar Cess on export of Sugar as per Notfn No. 42/2001-CE(NT) dated 26.06.2001: CESTAT

November 26, 2024

++ Cus - Misclassification or incorrect classification of goods to be imported/ exported would not ipso facto amount to wilful misstatement or suppression of facts u/s 28AAA Customs Act: HC

++ Cus - Delay was inordinate even before the Pandemic set in, therefore, Covid excuse would not apply - SCN kept hanging like the sword of Damocles for over 21 years - Impossible for petitioners to plan business - SCN quashed: HC

++ GST - Provisions of s.65 would be applicable for conducting audit of a FY when a person was registered, although, on the date of ordering the audit, such a person ceases to be registered, voluntarily or otherwise: HC

++ GST - Decision by Appellate Authority to dismiss appeal based solely on timing considerations was unduly harsh and legally unsound - Rigid approach fails to account for genuine extenuating circumstances, reflecting a lack of judicial empathy and an unreasonable interpretation of statutory time limits: HC

++ GST - No disputed question of facts are involved, therefore, petitioner cannot be relegated to the Dispute Resolution Forum as provided under the agreement - Respondent directed to pay GST difference within three months: HC

++ ST - Secondment of employees - Assessee is liable to pay service tax under RCM on the salaries and allowances paid in India: CESTAT by Majority

November 25, 2024

++ Cus - It is not the technology which is used in the product that defines the product and decides its classification under CTH, but it is the product (which may be created using a particular technology) which decides the classification: HC

++ Cus - Integrated Circuit Micro Electro Mechanical System Microphones is classifiable under CTH 8518 and not under CTH 8542: HC

++ Cus - MEIS - Flag 'Y' in Reward column - Amendment to shipping bills - Technology is to serve people and not to place booby traps and make life extremely difficult - Officials operating such systems cannot abdicate responsibility and deny legitimate relief: HC

++ Cus - Respondent Revenue directed to pay costs of Rs.50 thousand, which petitioner requests to be transferred to Tata Memorial (Cancer) Hospital - Bench appreciates and directs accordingly: HC

++ Cus - Claims of leveraging technology to serve people will remain paper slogans - Artificial Intelligence cannot be at the cost of mortgaging human intelligence entirely: HC

++ GST - An interim order cannot be a binding precedent: HC

++ GST - Issue of whether there is a suppression of facts or misstatement to invoke an extended period of limitation would require a determination on the factual matter which the Court certainly cannot enter into: HC

++ GST - There is no reason why Petitioner should be denied interest u/s 56 for the period of delay attributable to Respondents in completing the investigation after petitioner was red flagged: HC

++ GST - Amount of interest received by the foreman of a chit on defaulting subscriptions cannot be said to be amounts received as consideration for the supply of services - SCN quashed: HC

++ General Sales Tax - Dissolution results in complete cessation of company's existence - Recovery of dues from company's directors not allowed: HC

++ Cus - Serious charges like smuggling require careful evaluation of evidence, notwithstanding provisions of Section 123; accused has to be accorded all reasonable opportunities to present his case & matter is to be decided through a speaking order: CESTAT

++ ST - As is trite law, for an activity to be taxable under Finance Act, 1994, it must involve both a provider & flow of consideration for service rendered: CESTAT

++ ST - Corporate Guarantee issued on behalf of subsidiary companies will not attract Service Tax where it does not involve any consideration: CESTAT

November 23, 2024

++ Cus - 7 Gold bars contain foreign markings are deemed to be smuggled & their confiscation is upheld - But, lack of markings on 3 other bars means burden of proof returns to Department; confiscation of these 3 bars is invalid as onus of proof not discharged: CESTAT

++ ST - Export of services - Refund of tax paid by assessee came to be denied in gross violation of judicial principles laid down by the Apex Court & by various benches of the Tribunal - Denial of refunds is not tenable: CESTAT

++ ST - Generator can be placed anywhere in the building, therefore, it cannot be termed as 'Immovable Property' - Demand under the category of ‘renting of immovable property service' cannot sustain: CESTAT

November 22, 2024

++ GST - ITC availment timeline - Law is settled that a person who is engaged in business has to be well versed with the provisions of law - If they have committed an error, the law cannot be changed for giving them any benefit: HC

++ GST - ITC - Petitioner is granted liberty to raise the issue whether the construction of immovable property carried out amounts to 'plant' within the meaning of Section 17(5)(d) (plant) of Act of 2017: HC

++ GST - ITC - Fake invoices - Addition in November, 2023 of offences punishable u/ss 465, 467, 468, 471 IPC - Petitioners have already remained behind bars in year 2018 for a substantial period in respect of complaint u/s 132 of Act, 2017 - They are not on the run - Anticipatory Bail granted: HC

++ GST - ITC of Rs.63.37 crores - Allegation of availing fraudulent ITC from non-existent dealers and passing credit without actual supply of goods - Applicant is a transgender and languishing in jail - Conclusion of trial to take time - Regular bail granted: HC

++ GST - ITC available on demo vehicles: HC

++ CX - Fake invoices - Department's case inconsistent, as it accepts existence of traders & manufacturers when issuing registrations & serving notices, yet denies their existence when addressing validity of Cenvat credit claimed by assessee, based on the invoices provided by such traders: CESTAT

++ CX - Information from the Vahan Department is insufficient to conclude that certain vehicles could not have delivered goods, more so where assessee provides evidence of freight payments through vouchers & bank transactions, indicating substantial purchases: CESTAT

++ ST - Activity of supplying & laying blanketing material for railway construction, formation of major & minor bridges, laying railway track & sidings, will not attract Service Tax, as per settled precedents: CESTAT

++ ST - Activity of construction of road for use by general public is exempted from Service Tax vide Notfn No 25/2012-ST dt 20.06.2012: CESTAT

++ ST - No restrictions can be placed on utilization of admissible accumulated credit: CESTAT

November 21, 2024

++ Cus - There is no requirement of any demand being made in the original assessment order for interest u/s 28AA - Interest is automatic: HC

++ GST - Instead of dismissing appeal on ground of alleged failure to submit Board resolution, Appellate authority ought to have spent a few seconds to check the GSTN portal to find out whether the person concerned was registered as an authorised signatory to sign appeal documents - Matter remanded: HC

++ ST - Adjustment of refund towards outstanding dues - It would require a positive interdiction by a statute or an adjudicatory forum for preventing the department from resorting to an enabling provision under the statute: HC

++ ST - There is no service on which Cenvat Credit was availed in providing renting of immovable property service therefore the condition mentioned at clause (ii) of notification 33/2012-ST is not relevant: CESTAT

++ Cus - The department cannot file an appeal against order passed by Commissioner under Customs Brokers Licensing Regulations, 2013: CESTAT

++ CX - Clandestine clearance - Department unable to substantiate the charge by way of corroborative evidence; case built on presumptions & surmises, hence not tenable: CESTAT

November 20, 2024

++ CX - Mobile tower tower & pre-fabricated buildings are goods & not immovable property; since these are used for providing telecommunication services, they also qualify as inputs under Rule 2(k); are eligible for Cenvat Credit: SC

++ GST - Challenge to the constitutional validity and legality of Sections 7, 12, 13 and 16(2)(b) of the Act are rejected: HC

++ GST - Trans Harbour Link - Payment received as an advance would partake the character of 'consideration' in relation to supply of services - 'Mobilization advance' is taxable: HC

++ GST - ITC -Section 16(1) -Different voices - Position as taken by the GST Council is required to be accepted - 'Receipt Voucher' is a tax paying document: HC

++ GST - ITC - There needs to be a harmonious interpretation of provisions of s.13 r/w provisions of s.16: HC

++ ST - As is trite law, markups on freight charges are not subject to service tax : CESTAT

++ ST - Procedural infraction of Notification and Circulars are to be condoned, if exports have already taken place and law is settled now that substantive benefit cannot be denied for procedural lapse: CESTAT

++ Cus - Commr.(A) misinterpreted effective date of Tribunal's order, leading to wrongful rejection of assessee's refund claim, based on an incorrect timeline - O-i-A denying refund claim stands quashed: CESTAT

November 19, 2024

++ Cus - Patek Philippe watch worn by petitioner, a citizen of the Republic of Vanuatu, is required to be returned forthwith as the provisions of Section 124 of the Act have not been complied with: HC

++ Cus - It was not necessary for the Custom Broker to keep a continuous surveillance at the physical address of an exporter - KYC documents are required to be obtained at a time when a particular entity is onboarded as a client of the Custom Broker: HC

++ ST - More than 14 years have elapsed since issuance of SCN - Adjudication proceedings are now barred by limitation: HC

++ CX - Various SCNs were issued to the assessee over years based on very same financial records; in case, Department missed out on certain issues during earlier scrutiny, the blame cannot be put on the assessee by invoking extended period of limitation: CESTAT

++ CX - Commissioner's findings that Mens rea is not required in transaction matters for imposition of penalty, is both amusing as well as incorrect: CESTAT

++ CX - To invoke proviso to Section 73(1), the condition therefor is that it should be proved that the Appellant had, by some positive act, suppressed facts from the Revenue with intention to evade payment of tax: CESTAT

++ ST - As per Section 67 of Finance Act 1994, only service charges directly associated with providing a service are taxable: CESTAT

++ST - Advertisement charges collected from franchisees by intermediary, are not includable in gross value of Franchise services, as such charges are ultimately responsibility of franchisees: CESTAT

November 18, 2024

++ Cus - Gold bangles totally weighing 200 grams worn by petitioner detained - Respondent has the responsibility to pass a speaking order on the matter, including on the question as to whether petitioner is entitled to a concessional rate of duty being a NRI: HC

++ GST - Consolidated SCN issued - Competent Authority shall consider the issue for each of the years separately, if there is warrant for doing so: HC

++ GST - If petitioner feels that there is a mistake made in the order, it is open to them to file rectification application u/s 161 - In case they are of the view that the order is incorrect in law, then they can avail statutory remedies: HC

++ GST - All contentions taken by the petitioner before this Court, in challenge to show cause notice are matters that can be taken up before the Adjudicating Authority: HC

++ GST - It is not possible for the Court to examine as to whether tax paid by petitioner on supplies effected to them in terms of the invoices mentioned in reply have actually been discharged by suppliers - Petitioner to avail statutory remedies: HC

++ GST - ITC Claim - Benefit of Circulars No. 183/15/2022 -GST 193/05/2023 -GST to be extended to petitioner: HC

++ CX - As per settled law, transaction values declared by assessee cannot be rejected without first demonstrating as to how the same was incorrect or inaccurate: CESTAT

++ CX - Data retrieved from pen-drive & analysis conducted by GEQD are inadmissible evidence, as cross examination of GEQD officers is not permitted & mandatory procedures u/s 36B of Central Excise Act regarding data retrieval by DGCEI are not followed: CESTAT

November 16, 2024

++ ST - Extended period of limitation cannot be invoked where assessee did not owe any Service Tax and where no suppression of facts was comitted: CESTAT

++ ST - Discounts received under a target incentive scheme are trade discounts intended to encourage sales, rather than payments for services: CESTAT

++ Cus - Preventive Officer, Noida SEZ, is designated as Customs officer, but lacks authority to detain goods based on Section 110 of the Customs Act: CESTAT

++ Cus - Preventive Officers at Noida SEZ cannot seize goods without CBIC's explicit authorisation - Seizure of goods invalid - Consequently, their confiscation u/s 111(m) of Customs Act is invalidated too: CESTAT

November 15, 2024

++ GST - Practice of instituting petitions bypassing the statutory remedies only to avoid a pre-deposit cannot be encouraged: HC

++ GST - On that day when the order was passed u/s 61 dropping the notice, proceedings initiated u/r 142(1)(A) would also stand closed and the Authority could not have thereafter again issued notice u/s 74(1) of the Act: HC

++ CX - After reversal and payment of interest for delayed period i.e. from date of taking credit till the date of reversal of proportionate credit, the demand equal to 6% under Rule 6 (3) shall not sustain:CESTAT

++ ST - Penalty under Section 78 of Finance Act 1994 is unwarranted where no suppression of facts with intent to evade payment of tax, is made out: CESTAT

++ ST - Absence of registration with Service Tax Department by the directors of a company, does not affect the company's liability: CESTAT

++ Cus - Import of Printer Color toner - Assistant Commr. mistakenly categorized goods as simply black toner in powder form without recognizing exemption for color toners; Anti Dumping duty not imposable & was wrongly upheld by Commr.(A): CESTAT

November 14, 2024

++ Cus - Conclusion of proceedings - S.28(9) - Large-scale complicity on the part of the officials of Customs Department from the senior to junior ranks to allow appellant and his co-noticee to get away - Status report to be filed: HC

++ GST - Once the goods were found with proper tax invoice and E-way bill, the petitioner would be deemed to be owner of the goods and the same was to be released in terms of Section 129(1)(a): HC

++ CX - Application of the petitioner for refund remained undecided and the Respondent instead proceeded to recover the amount - Matter remanded: HC

++ Cus - Anti-dumping duty on PVC suspension resin - Respondent is in the process of investigation as contemplated under Rules 4, 5 and 6 of the Rules, 1995 - Contentions raised by petitioner is at premature stage which would jeopardize the entire process initiated - Petition dismissed: HC

November 13, 2024

++ VAT - If notice for completing assessment issued within limitation, then assessment order is within time even if passed beyond period of three years: HC

++ GST - Cancellation of registration of GST has cascading effect on all other businessman who are receiving the goods from the registered person - Delay in filing appeal is condoned as petitioner has already made pre-deposit: HC

++ GST - Impugned order was not reflecting under the tab 'view notices and orders' - Consequently, petitioner being unaware of the same could not contest validity within limitation period - Order set aside: HC

++ GST - Respondents are well within their rights to levy GST on the royalty paid by the mineral concession holder for any mining concession granted by the State: HC

++ ST - Software imported and sold by the Appellant is import and sale of goods and is not exigible to service tax: CESTAT

++ ST - Once Appellant had paid VAT on the sale of goods, service tax cannot be demanded on such sale of goods: CESTAT

++ ST - Burden of proving that assessee suppressed facts with intent to evade payment of Service Tax is clearly upon the Department; is necessary for the Department to illustrate any positive act of suppression on assessee's part: CESTAT

++ Cus - Where imported motor vehicle is registered & certified for compliance with Central Motor Vehicle Rules , then separate EC Type Approval Certificate under Import Licensing Note to Chapter 87 of Customs Tariff Act 1985, is not needed: CESTAT

++ Cus - Substantial benefit of tax exemption cannot be denied based on procedural lapse alone; confiscation of imported vehicle is not tenable where no mis-declaration of description or classification or quantity, is involved: CESTAT

November 12, 2024

++ Cus - At no point of time Codes No. 29214920 and 29215940 have been excluded from schedule to MEIS Scheme - Reasons assigned for denial of benefit are contrary to Notification No. 38/2015-2020 r/w P.N no. 12/2015-2020: HC

++ ST - CENVAT - Not producing the documents, which may be necessary for substantiating a claim, does not fall in the exception of 'suppression of facts': HC

++ CX - Even if an application is not moved, the department would be obliged to refund the amount to person concerned from whom the excess amount has been received unlawfully after the provision has been declared ultra vires: HC

++ VAT - Merely because payment is deferred by State in terms of works contract, same is no ground for a dealer to seek exemption from taxes under MP Commercial Tax Act and MP Entry Tax Act: HC

++ Vehicle One-time Tax - Notification requires tax to be paid on or after 14.10.2022 for becoming entitled for exemption - Merely because tax was paid on 13.10.2022 and registration was done on 18.10.2022 does not guarantee benefit: HC

++ Service Matter - Charge memo issued to CIT(A)-rank officer for quashing Rs 120 Crore demand - That matter was remanded by ITAT for de novo consideration dilutes charge against petition - Department's delay in issuing memo reflects the same as being an afterthought - Memo rightly quashed by CAT: HC

++ ST - Goods Transport Service - denial of 75% abatement to assessee under Notification No. 32/2004-S.T. is based solely on assumption; hence the order denying abatement is quashed: CESTAT

++ CX - Demand for reversal of Cenvat credit is sustainable where it is claimed in respect of a defunct, non-functional factory, rather than in respect of an existing, functional plant: CESTAT

++ Cus - Penalties u/s 112(a), 112(b) & 114AA of Customs Act 1962 for alleged mis-declaration of goods, are not tenable, where importer acts on information from the overseas supplier, which was beyond importer's control: CESTAT

++ Cus - Department's reliance on Chartered Engineer's report is not tenable, where report lacks conclusive findings, omits to consider aspects such as manufacture date & itself suggests further testing: CESTAT

++ Cus - As is trite law, expert reports cannot be assumed conclusive without explicit legal backing: CESTAT

November 11, 2024

++ Cus - s.130E - One of the issues, amongst other things, which is required to be determined and decided has a relation to the rate of duty of customs - Appeal dismissed as being not maintainable: HC

++ GST - Difference in Input Tax Credit availed in FORM GSTR-3B as compared to that detailed in FORM GSTR-2A - Petitioners can claim benefit of Circulars 183/2022 and 193/2023: HC

++ GST - Penalty - Petitioner was not served with any show-cause notice as required by section 126(3) to provide an opportunity of hearing - Order quashed and set aside: HC

++ GST - Affidavit-in-reply cannot supplement the main order, which is under challenge by assigning the reasons when the main order does not contain any reasons: HC

++ VAT - Statutory dues, including those owed to the Central or State Government, if not incorporated in the resolution plan, are extinguished upon approval of the Resolution Plan under IBC: HC

++ Misc - Recovery of Debts & Bankruptcy Act 1993 - Sales Tax Department's charge on property imposed prior to its purchase by the petitioner in a public auction, is unsustainable, given execution of the certificate & deed under the Act: HC

++ ST - Any suppression or mis-statement of facts, must be wilful in order to justify invoking extended period of limitation: CESTAT

++ ST - Providing gifts, free holidays & airline tickets to corporate clients is covered under Tour Operator Service, where direct contracts with customers established that assessee provided such services independently, without principal-agent relationship with corporate clients - Rebate rightly claimed: CESTAT

++ CX - As is trite law, when duty is accepted by Department against clearance of manufactured product, CENVAT Credit availed by manufacturer cannot be denied: CESTAT

++ CX - It is trite law that once Cenvat credit availed stands reversed, the same is equivalent to credit not having being taken: CESTAT

November 09, 2024

++ ST - Since demand proposed in SCN was under 'Mining Service' and confirmed under 'Cargo Handling Service', impugned order is not sustainable which is beyond the scope of SCN: CESTAT

++ CX - Appellant is entitled to avail cenvat credit of service tax paid on 'GTA Services' for outward transportation of cement on FOR destination sales from factory/depot to customer's premises in terms of Rule 2(l) of CCR, 2002: CESTAT

November 08, 2024

++ GST - Fake invoices and ITC fraud - Speedy trial is a part of reasonable, fair and just procedure enshrined under Article 21 of the Constitution and this constitutional right cannot be denied - Petitioner has already suffered sufficient incarceration - Bail granted: HC

++ GST - Since no pre-decisional hearing was granted before passing order of blocking Electronic Credit Ledger u/r 86A, order is quashed and set aside - Borrowed satisfaction is impermissible in law: HC

++ GST - When there is neither a constitutional guarantee nor a statutory entitlement to refund, the claim of petitioner to grant refund of ITC on output service exempt from tax cannot be accepted: HC

++ GST - SCNs are issued in the form of order-in-original and which cannot be sustained in the eye of law: HC

++ ST - As is trite law, suppression of facts involves active concealment with intent to evade paying tax; without establishing such intent, extended limitation period cannot be invoked: CESTAT

++ ST - If the AO omits to scrutinise returns & make best-judgment assessment, due to which some tax escapes & the same is discovered after regular limitation lapses, the onus for this leak rests squarely with the AO: CESTAT

++ CX - Cenvat credit of Service Tax paid for GTA services used in delivering goods to customers' premises, is admissible, as it is in keeping with Circular No. 97/8/2007: CESTAT

++ VAT - If Tribunal did not consider prima facie case of assessee while determining amount of pre-deposit, then matter needs to be remanded back for deciding quantum of pre-deposit: HC

++ VAT - Any delay in payment of refunds to assessee will make the State liable to pay interest u/s 42 r/w/s 38(3) of DVAT Act: HC

++ Cus - Import of HDPE Regrind - Re-classification based on test report of CRCL JNCH is incorrect, as this laboratory cannot analyze specific plastics due to lack of facilities; test report is unreliable: CESTAT

++ Cus - HDPE Regrind is correctly classifiable under CTH 3901 20 00, based on test reports & previous Tribunal rulings; said item not classifiable as waste & scrap: CESTAT

++ CX - Assessee violated several provisions of Central Excise Rules by failing to record production accurately, leading to significant potential revenue loss; mandatory penalty u/s 11AC(1)(a) is justified: CESTAT

++ CX - Classification of moulded carpets and car mats - matter became redundant & unnecessarily stretched for 10 years as assessee & Department ultimately agreed on classification under CTH 8708 - Directions issued to CBIC for avoidance of such litigation: CESTAT

November 07, 2024

++ Cus - SC LB overturns Canon India judgment - Officers of DRI, CC (Preventive), DGCEI and Commissionerates of Central Excise and other similarly situated officers, deemed proper officers for the purposes of Section 28 - Deemed competent to issue show cause notice thereunder: SC LB

++ Cus - SC Larger Bench issues detailed directions for disposal of all cases pending at all levels, in which jurisdiction of DRI/Preventive/DGCEI officers to issue SCN u/Section 28 is assailed: SC LB

++ ST - Burden of proving fraudulent intent lies with the Department, especially when relevant facts are already known to them - penalty u/s 77 & 78 not imposable where assessee is compliant, regularly files returns & cooperates with audits, which suggests no intent to evade tax: CESTAT

++ ST - Mobilization advances are not chargeable to Service Tax if treated as advances - Tax paid on mobilization advances is ineligible for Cenvat credit, as these services are not eligible input services: CESTAT

++ CX - Refund under Excise law governed by Section 11B of CEA 1944; right to claim refund is extinguished if not claimed within prescribed time period: CESTAT

++ CX - Late invoice receipt issues are subject matter between assessee & the service provider, independent of tax authority involvement; cannot justify claiming refund beyond prescribed time period: CESTAT

++ Cus - As is trite law, refund of Special Additional Duty paid by assessee should not be denied on grounds of technicalities, or delays: CESTAT

November 06, 2024

++ GST - HC had held that petitioner should avail statutory remedy by filing appeal u/s 107 - SLP filed against this order dismissed: SC LB

++ GST - Whether cash can be seized u/s 67 of the Act, 2017 - Conflict between interpretation adopted by Delhi HC and Madhya Pradesh HC - Notice issued: SC

++ GST - Petitioner should avail statutory remedy u/s 107 by filing appeal - Petitioner is also at liberty to approach office of respondent to procure copy of SIB report: HC

++ GST - Search and seizure operations u/s 67 are not for the purpose of seizing unaccounted income - said field is covered by the Income Tax Act, 1961: HC

++ VAT - Assessment order is invalidated where passed without granting opportunity of personal hearing, leading to contravention of the principles of natural justice: HC

++ ST - The appellants being local authority, which is a wing of Government, it cannot be said that appellants had suppressed facts with intention to evade payment of service tax: CESTAT

++ ST - Legal Consultancy Service - Reimbursements for court fees and travel expenses are merely compensatory and thus not subject to service tax: CESTAT

++ ST - Discrepancies arose from the Department's assessment rather than assessee's intention to mislead; remedy for incorrect self-assessment lies in Best Judgment Assessment u/s 72: CESTAT

++ CX - Duty demand on High Speed Diesel, on account of differences between reported & actual quantity - Demand based on mis-understanding of figures & hence merits being quashed: CESTAT

November 05, 2024

++ GST - Since petitioner has already shown his bona fide by not misusing the liberty and has always come back by taking permission to travel abroad, petitioner is not required to surrender his passport: HC

++ GST - Issuing 'advisory' letter to petitioner to make voluntary payments is unknown in law and tantamount to pressure tactics - Authorities directed to be cautious in future and not issue such letters: HC

++ GST - Two Adjudication orders against one Show Cause notice for the same period is not permissible: HC

++ Cus - Since Original Authority has passed the order without compliance with principles of natural justice and without ensuring the service of SCN on appellant, matter remanded for de novo consideration: CESTAT

++ Cus - Recovery of IGST - Allegation was of diversion of inputs imported under Advance Authorisation & which were meant for pre-import conditions - Department did not probe actual usage of such goods; no case of diversion of inputs is made out: CESTAT

++ Cus - In absence of seizure & due to unavailability of goods, their confiscation cannot be ordered - Hence, no redemption fine can be imposed: CESTAT

++ Cus - Appellant eligible for clubbing of Advance Authorisations, whereupon all imports must be considered part of a single authorization: CESTAT

++ CX - CENVAT credit claimed by assessee based on invoices issued by supplier, is wrongfully denied, where Department erroneously alleged that invoices were improperly used without receipt of corresponding goods: CESTAT

++ CX - freight charges collected over & above the sale price of the goods are not includible in assessable value of goods when sold at factory gate: CESTAT

November 04, 2024

++ GST - Writ petition assails orders passed u/s 129 of CGST/SGST Acts, as GSTAT not yet constituted - Petitioner at liberty to appeal before GSTAT as & when it is formed: HC

++ GST - The procedure under Article 226 of the Constitution of India cannot be invoked to determine disputed questions of fact: HC

++ GST - Section 74 of CGST Act is rightly invoked where matter entails suppression of facts with intent to evade payment of tax; petitioner's contentions involves analysis of facts & are better off being raised through statutory appeal: HC

++ GST - No disputed question of facts are involved, therefore, petitioner cannot be relegated to Dispute Resolution Forum - Government Entity to pay difference of tax due to enhancement in rate, to petitioner within three months failing which with interest @6%: HC

++ GST - ITC can be availed by the recipient for the bonafide scenarios listed in Circulars No. 183/15/2022 and 193/05/2023 on submitting proof of payment to the Government, by the supplier: HC

++ GST - Collection of tax by petitioner, a notified authority - Whether exempted as per 13/2017-CT - Respondent authority may continue with the proceedings of hearing of SCN but no order to be passed without permission of Court: HC

++ GST - No disputed question of facts are involved - Respondents are raising baseless objection regarding maintainability of writ petition and availability of alternative remedy under the Arbitration Act: HC

++ GST - Where after receiving SCN, an assessee chooses not to file reply to SCN or to appear for personal hearing, then assessee cannot claim to have been denied personal hearing once a final order is passed: HC

++ GST - Assessment order passed without considering replies to Show Cause Notice quashed; fresh order be passed after considering assessee's contentions: HC

++ ST - Activity of sharing of CAT score by appellant with non-IIM institution does not fall under service category of 'Mailing List Compilation and Mailing Service', demand of service tax along with interest and imposition of penalties on appellant are not sustainable: CESTAT

++ ST - Sinking Fund created by developer for intended for future maintenance & repairs to be handed over to building's RWA, will not attract Service Tax levy: CESTAT

++ CX - Once the original authority has held that service tax paid by appellant on GTA services was input service in terms of Rule 3 of Cenvat Credit Rules, appellant was entitled to avail cenvat credit of the same: CESTAT

++ Cus - Valuation - Contemporaneous import data showing that declared values are comparable to those of other importers, will take precedence over uncorroborated oral statements taken from office bearers of the importer-company: CESTAT

++ Cus - Transaction value (FOB or CIF or C&F) is result of negotiation between buyer & seller; it is consideration paid to seller for the goods - hence it cannot be altered by somebody who is a stranger to the contract, including Customs officers: CESTAT

++ Cus - Chartered Engineer's report, in which cost of production of goods was determined, is insufficient grounds to reject transaction value as per Rule 8 of Customs Valuation Rules: CESTAT

November 02, 2024

++ GST - Without providing an opportunity of personal hearing, respondent has passed the impugned assessment order - Same is quashed and set aside - Matter remanded for fresh consideration on condition that petitioner pays 10% of disputed tax amount: HC

++ GST - Appeal preferred in March 2023 - During pendency of petition seeking expeditious disposal, hearing granted but petitioner did not remain present - Petitioner does not want any hearing - Respondent to pass appropriate order: HC

++ GST - Summary of Show Cause Notice in Form GST DRC-01 cannot substitute requirement for proper Show Cause Notice as mandated by Section 73(1): HC

++ KVAT - Refund application can be rejected only where requisite documents in support of the application & for considering the same, could not be obtained: HC

++ GST - Pre-deposit amount can partially be paid through Electronic Credit Ledger: HC

November 01, 2024

++ GST - Demand of 8.90 crores - Amount collected as tax but not deposited with government - Conclusion of trial will take time and keeping the accused behind the bars is nothing but amounts to pre-trial conviction - Bail granted: HC

++ GST - ITC availed - Vendor has not deposited the tax liability in government treasury - Instead of filing reply to SCN, petitioner directly approached Court - Court cannot cause hindrance in disposal of proceedings: HC

++ GST - Mismatch of GSTR-3B and GSTR-2A - Matter remanded subject to petitioner paying 10% of disputed tax amount within a period of four weeks: HC

++ Cus - Imported ELISA kits not used in evaluation of physical, biophysical or biochemical processes & states in animals/humans; are not diagnostic reagent/kits; are meant to be used for food testing - Is not eligible for exemptions under Notification No. 12/2012-Cus & Notification No. 50/2017-Cus: CESTAT

++ Cus - If an assessment is not acceptable to assessee, then only remedy is to file appeal; Commr.(A) should have considered appeal on merits instead of rejecting it due to absence of value enhancement or classification change: CESTAT

++ ST - Post 01.07.2012, assessee-firm was non-functional & rental agreements were in the name of individual partners regarding jointly held properties - this negates existence of service provided to oneself - Firm not liable to pay Service tax: CESTAT