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2017-VIL-706-CESTAT-DEL-CU  | CESTAT Case CUSTOMS

Customs - whether royalty paid by the Appellant to LME for grant of access to proprietary Ericsson knowhow and Ericson IPR for undertaking the manufacture/ assembly of Radio Base Station, Mobile Switching Centers and Base Station Controllers is includible in the value of components imported from Ericsson AB, Sweden – HELD - Since the significant percentage of the imported components have been procured from EAB Sweden, revenue has taken the stand that such royalty is to be considered as the condition of sale of the components by EAB to the appellant - before adding the royalty amounts to the value of imported components, ... [Read more]

Customs - whether royalty paid by the Appellant to LME for grant of access to proprietary Ericsson knowhow and Ericson IPR for undertaking the manufacture/ assembly of Radio Base Station, Mobile Switching Centers and Base Station Controllers is includible in the value of components imported from Ericsson AB, Sweden – HELD - Since the significant percentage of the imported components have been procured from EAB Sweden, revenue has taken the stand that such royalty is to be considered as the condition of sale of the components by EAB to the appellant - before adding the royalty amounts to the value of imported components, it is necessary for the department to examine both the technical assistance agreement as well as the pricing agreement. Before taking the final view in the matter, it is necessary to re-examine the matter of both license agreement as well as supply contract simultaneously to see if the enhanced royalty was in the guise of adjustment of the price of components - the impugned order is set aside and matter remanded to the Adjudicating Authority [Read less]

2017-VIL-707-CESTAT-DEL-ST  | CESTAT SERVICE TAX

Service Tax - the appellants in terms of Memorandum of Arrangement among all the group companies, incurred various expenses sales and marketing expenses and the said expense was shared in proportion to the turnover of group companies - Revenue view that the appellants were involved in providing Business Auxiliary Service in such arrangement – demand of service tax on services provided to group companies – HELD - The Original Authority held that the amount paid by group companies to the appellant is a taxable consideration. The Original Authority also recorded that these services were actually rendered by third parties ... [Read more]

Service Tax - the appellants in terms of Memorandum of Arrangement among all the group companies, incurred various expenses sales and marketing expenses and the said expense was shared in proportion to the turnover of group companies - Revenue view that the appellants were involved in providing Business Auxiliary Service in such arrangement – demand of service tax on services provided to group companies – HELD - The Original Authority held that the amount paid by group companies to the appellant is a taxable consideration. The Original Authority also recorded that these services were actually rendered by third parties to the appellant. Apparently, it would mean that the appellants received the service and acted as procurer of such service for or on behalf of the group companies - such inference is not factually as well as legally tenable. The appellant is not per-se engaged in promoting sales or business of group companies. No evidence to that effect has been brought out. In fact, the arrangement is all group companies will benefit from a sales promotion and other related activities of third parties, for which expenses are to be borne by the appellant and thereafter to be shared with other group companies. In such arrangement, there is no scope for tax liability on the part of the appellant under the category of BAS - the impugned order is set aside and assessee appeal is allowed [Read less]

2017-VIL-414-ALH  | High Court VAT

U.P. Trade Tax Act, 1948 - assessment order on best judgement – rejection of books of account - HELD - Where the assessee maintains accounts book in regular course of business, the same must be given credence and due weight except when there is definite material to show that the assessee was indulging in the suppression of sales or purchases to avoid payment of due taxes on its turnover - the concurrent finding has been returned by the authorities that the dealer was maintaining separate accounts, which would reflect that the assessee was indulging in the suppression of sales and purchases to avoid payment of due taxes o... [Read more]

U.P. Trade Tax Act, 1948 - assessment order on best judgement – rejection of books of account - HELD - Where the assessee maintains accounts book in regular course of business, the same must be given credence and due weight except when there is definite material to show that the assessee was indulging in the suppression of sales or purchases to avoid payment of due taxes on its turnover - the concurrent finding has been returned by the authorities that the dealer was maintaining separate accounts, which would reflect that the assessee was indulging in the suppression of sales and purchases to avoid payment of due taxes on its turnover – Tribunal order is upheld and the revision is dismissed [Read less]

2017-VIL-415-RAJ  | High Court VAT

Regional Economic Intelligence Council - reciprocal arrangement of exchanging information of the search / survey conducted by the Income Tax Department with other Tax Departments or other Departments – HELD - It is an admitted fact known to all that under most of the tax proceedings, namely under Income Tax / Sales Tax or Service Tax and other Tax Departments, a time barring period is fixed within which an assessment is to be completed, come what may and if by the deadline assessment is not completed, all the proceedings come to a standstill and gets time barred - Even Government of India was keen that there should be a ... [Read more]

Regional Economic Intelligence Council - reciprocal arrangement of exchanging information of the search / survey conducted by the Income Tax Department with other Tax Departments or other Departments – HELD - It is an admitted fact known to all that under most of the tax proceedings, namely under Income Tax / Sales Tax or Service Tax and other Tax Departments, a time barring period is fixed within which an assessment is to be completed, come what may and if by the deadline assessment is not completed, all the proceedings come to a standstill and gets time barred - Even Government of India was keen that there should be a proper coordination amongst the various Tax Departments in passing of the information collected by one Agency to other, then it was incumbent upon an officer in whose possession the information was available to have passed on such material / incriminating documents to the other agency, to whom such information was required to be passed so that an effective order could be passed rather than an order in futility without any basis or evidence as in the instant case - let all the Tax departments and other members in REIC act in tandem of the mandate for which REIC is constituted and act in accordance with law, catch hold and effectively dealing an economic offender [Read less]

2017-VIL-413-ALH-CE  | High Court CENTRAL EXCISE

Central Excise – Full Service Maintenance Agreement (FSMA) contract for maintenance machines – refund of excise duty paid under protest on installment of the reconditioned photo-copier drums as part of the service contract - Whether the CESTAT is justified in allowing refund of excise duty under Section 11B of the Act even though the presumption of unjust enrichment was not successfully dislodged by the assessee – HELD - The terms and conditions of FSMA are sacrosanct and the revenue cannot be permitted to travel beyond it. The amount realised under the FSMA is a comprehensive amount for all services. It cannot be so... [Read more]

Central Excise – Full Service Maintenance Agreement (FSMA) contract for maintenance machines – refund of excise duty paid under protest on installment of the reconditioned photo-copier drums as part of the service contract - Whether the CESTAT is justified in allowing refund of excise duty under Section 11B of the Act even though the presumption of unjust enrichment was not successfully dislodged by the assessee – HELD - The terms and conditions of FSMA are sacrosanct and the revenue cannot be permitted to travel beyond it. The amount realised under the FSMA is a comprehensive amount for all services. It cannot be solely held to be the cost of the reconditioned photo-copier drums including any excise duty. The replacement of the photocopier drums is to the old customers and not to any new person and is without any consideration. The amount received under FSMA cannot be appropriated so as to determine the sale price of reconditioned photo-copier drums. Thus, there is no actual sale transaction in it so as to make the customer a fresh buyer - combined reading of Sections 12A and 12B of the Act would reveal that the presumption under Section 12B would arise only if there is sale and there is a buyer of any goods which is not the position in the case at hand. Secondly, in the absence of sale the excise duty cannot be said to be the part of the contract money - as there is there is no sale of any component or the photo-copier drum which may indicate that the amount so realised covers the excise duty on it so as to raise the presumption of Section 12B of the Act - no merit in revenue appeal and the same is dismissed [Read less]

2017-VIL-708-CESTAT-DEL-ST  | CESTAT SERVICE TAX

Service Tax - The appellants are engaged in rendering various maintenance and repair services in their capacity as sub-contractors - Demand proceedings for non-payment of tax during the period 01.07.2003 to 31.03.2007 - assessee were under bonafide belief that once the service tax liability discharged by the main contractor, there was no further obligation on sub-contractor to pay the tax – assessee challenge on the ground of limitation – HELD – The original authority distinguished the clarification issued by the Board and trade notice issued by Delhi Commissionerate from the facts of the present case. He found that ... [Read more]

Service Tax - The appellants are engaged in rendering various maintenance and repair services in their capacity as sub-contractors - Demand proceedings for non-payment of tax during the period 01.07.2003 to 31.03.2007 - assessee were under bonafide belief that once the service tax liability discharged by the main contractor, there was no further obligation on sub-contractor to pay the tax – assessee challenge on the ground of limitation – HELD – The original authority distinguished the clarification issued by the Board and trade notice issued by Delhi Commissionerate from the facts of the present case. He found that the clarification was with reference to consulting engineer services not applicable to repair and maintenance. We find such a distinction is not sustainable as the ratio adopted regarding the clarifications will generally apply, though the clarification specifically focused on consulting engineer services. In fact, similar clarification was issued vide Board’s circular dated 31.10.1996 in respect of sub-agents of couriers to state when the main courier has discharged his service tax, there will not be further liability on the sub-agents. While the tax liability is strictly in accordance with the provisions of Finance Act, 1994, in the present case, certain clarifications issued by the Board and field formations did had an effect of creating a bonafide belief regarding non-liability tax of sub-contractors when the main contractor discharged service tax on the whole contract value - the reasoning recorded in the impugned order do not fully justify the basis for a demand with extended period. The clarifications issued and decisions of the Tribunal did give room for bonafide belief for non-tax liability of a sub-contractor. Accordingly, the demand of service tax is to be restricted to normal period with no liability to penalties – the appeal is partly allowed [Read less]

2017-VIL-709-CESTAT-DEL-CE  | CESTAT CENTRAL EXCISE

Central Excise - Appellant are engaged in the manufacture of Steel Girder Bridge, bridge parts and span suspension bridge parts - steel bridge sections are dismantled and are taken to the site for installation/erection of the bridge - Demand of excise duty – assessee stand that the process involved does not amount to manufacture as they are engaged in erection, fabrication of the structures at site permanently embedded to earth – HELD – in the Larger Bench decision in the case of Mahindra & Mahindra Ltd it has been held that steel structures and parts of steel structures in their movable state will be subject to exci... [Read more]

Central Excise - Appellant are engaged in the manufacture of Steel Girder Bridge, bridge parts and span suspension bridge parts - steel bridge sections are dismantled and are taken to the site for installation/erection of the bridge - Demand of excise duty – assessee stand that the process involved does not amount to manufacture as they are engaged in erection, fabrication of the structures at site permanently embedded to earth – HELD – in the Larger Bench decision in the case of Mahindra & Mahindra Ltd it has been held that steel structures and parts of steel structures in their movable state will be subject to excise duty under Heading 7308, notwithstanding their getting permanently fixed in the structures - Considering the Larger Bench decision there is no doubt that the subject process and the items in question are covered under the process of ‘manufacturing’ under Section 2(f) of the Central Excise Act, 1944 and the liability of duty of Central Excise on the subject items has to be sustained - as there was lack of clarity on the subject of liability of duty for the subject items during the relevant period no penalties are liable to be imposed on the appellants – appeal partly allowed [Read less]

2017-VIL-701-CESTAT-CHE-ST  | CESTAT SERVICE TAX

Service Tax - Appellant book space for cargo with shipping lines for which they are paid an incentive which is 2% of the basic ocean freight – demand of service tax brokerage or incentive received from the shipping liner – HELD - the activity of the appellant as a custom house agent is to provide services to importers/exporters and the disputed activity was only a facility arranged by them to their clients. The appellant has no obligation to arrange transport of cargo through a particular shipping liner. Therefore, the amount received cannot fall within the category of ‘commission’ so as to be subjected to levy of ... [Read more]

Service Tax - Appellant book space for cargo with shipping lines for which they are paid an incentive which is 2% of the basic ocean freight – demand of service tax brokerage or incentive received from the shipping liner – HELD - the activity of the appellant as a custom house agent is to provide services to importers/exporters and the disputed activity was only a facility arranged by them to their clients. The appellant has no obligation to arrange transport of cargo through a particular shipping liner. Therefore, the amount received cannot fall within the category of ‘commission’ so as to be subjected to levy of service tax - the demand is unsustainable. The impugned order is set aside and the appeal is allowed [Read less]

2017-VIL-698-CESTAT-BLR-CE  | CESTAT CENTRAL EXCISE

Central Excise - Assessee declared 'Tractors' under Heading No.8701.90 - department view that as these Tractors primarily meant for transport of goods and not meant for agricultural use or engineering work and be reclassified under Chapter 8704.20 – demand of differential duty under Section 11A of CEA, 1944 – HELD – the issue is squarely covered in favour of the assessee in the assessee's own case - the impugned goods are classifiable under Heading 8701 of the Central Excise Tariff Act and not under Heading 87.04 – revenue appeal is dismissed... [Read more]

Central Excise - Assessee declared 'Tractors' under Heading No.8701.90 - department view that as these Tractors primarily meant for transport of goods and not meant for agricultural use or engineering work and be reclassified under Chapter 8704.20 – demand of differential duty under Section 11A of CEA, 1944 – HELD – the issue is squarely covered in favour of the assessee in the assessee's own case - the impugned goods are classifiable under Heading 8701 of the Central Excise Tariff Act and not under Heading 87.04 – revenue appeal is dismissed [Read less]

2017-VIL-702-CESTAT-CHE-CE  | CESTAT CENTRAL EXCISE

Central Excise - job work for manufacture of ‘Steel Structures and tower components’ - The appellant was supplied both steel and lead free of cost for fabrication of ‘Base Trans receiver Stations’ involving cutting, bending, slitting, drilling and galvanizing. The Department took the view that process carried out by the appellant including that of galvanization amounts to manufacture – HELD - Evidently the appellants have been entrusted with job work to fabricate the Base Trans receiver stations, which was required to be supplied after galvanizing. This being so, the entire processes undertaken on the steel and l... [Read more]

Central Excise - job work for manufacture of ‘Steel Structures and tower components’ - The appellant was supplied both steel and lead free of cost for fabrication of ‘Base Trans receiver Stations’ involving cutting, bending, slitting, drilling and galvanizing. The Department took the view that process carried out by the appellant including that of galvanization amounts to manufacture – HELD - Evidently the appellants have been entrusted with job work to fabricate the Base Trans receiver stations, which was required to be supplied after galvanizing. This being so, the entire processes undertaken on the steel and lead received free of cost by the appellant, including that of galvanization will amount to manufacture. The protestation of the appellant that galvanization was not carried out by them but through third party, will not make any difference to the taxability in this case, since they had been entrusted with the fabricating and supplying of the complete item including galvanization thereof - the appellant had not informed the department about the receipt of the raw materials nor did they make any intimation concerning the fact of getting the fabricated structures galvanized through their own job worker. Such an omission on their part will definitely take the colour of suppression of facts with intent to evade payment of duty - penalty imposed under Section 11 AC of the Act does not call for any interference – demand and penalty is upheld and the appeal is dismissed [Read less]

2017-VIL-704-CESTAT-ALH-CE  | CESTAT CENTRAL EXCISE

Central Excise – show cause notice for short payment of Education Cess – The Original Authority had held Paper Cess should be included in the value to arrive at Education Cess - HELD – it is settled that Education Cess is not levied on Paper Cess, hence, appellant had paid Education Cess in excess of their due - Once it is clear that there was no short payment of Education Cess the question of invocation of provisions of Rule 8 (3A) of Central Excise Rules, 2002 does not arise. Therefore, the present SCN is not sustainable – the appeal is allowed... [Read more]

Central Excise – show cause notice for short payment of Education Cess – The Original Authority had held Paper Cess should be included in the value to arrive at Education Cess - HELD – it is settled that Education Cess is not levied on Paper Cess, hence, appellant had paid Education Cess in excess of their due - Once it is clear that there was no short payment of Education Cess the question of invocation of provisions of Rule 8 (3A) of Central Excise Rules, 2002 does not arise. Therefore, the present SCN is not sustainable – the appeal is allowed [Read less]

2017-VIL-703-CESTAT-ALH-CE  | CESTAT CENTRAL EXCISE

Central Excise - the appellant were engaged in the manufacture of Photocopier - the appellant were importing various parts, components and machines and after their import, a process called Kitting was undertaken and at the end of the process such kits were dispatch to the customers under invoices. It appeared to Revenue that such activity of kitting was assembly of machines by putting together various components to bring into a new machine it amounts to manufacture in terms of Section Note 6 of Section XVI of Central Excise Tariff – HELD – the show cause notice are on two grounds, one is that various components which w... [Read more]

Central Excise - the appellant were engaged in the manufacture of Photocopier - the appellant were importing various parts, components and machines and after their import, a process called Kitting was undertaken and at the end of the process such kits were dispatch to the customers under invoices. It appeared to Revenue that such activity of kitting was assembly of machines by putting together various components to bring into a new machine it amounts to manufacture in terms of Section Note 6 of Section XVI of Central Excise Tariff – HELD – the show cause notice are on two grounds, one is that various components which were treated as complete goods classifiable under Heading 84.71 were imported and activity of Kitting was undertaken in the system and such activity was alleged to be amounting to manufacture by invoking provision under Section Note 6 of Section XVI of Tariff Act - the requirement of facts for invocation of said Note are that at the beginning the goods should have essential character and they should be incomplete or unfinished and if any process is undertaken to make them complete and finished than such process amounts to manufacture. In the present SCN, which components are having essential characters and in which aspect they are incomplete or unfinished and which activities were undertaken to make them complete and finished are totally absent. Therefore, the facts of the case don’t justify invocation of provision of said Section Note 6 to Section XVI of Tariff Act, 1985 – further, the refurbishing activity doesn’t not amount to manufacture - Since both the demands are not sustainable the personal penalties are also not sustainable – impugned order is set aside and appeal is allowed [Read less]

2017-VIL-700-CESTAT-CHE-ST  | CESTAT SERVICE TAX

Service Tax - BAS - appellant collected applications for deposits / debentures, deliver debentures/deposits, receipts etc. and provide incidental services - department view that as per the agreement the activities in connection with mobilization of deposits/debentures, delivering deposits/debenture receipts, and providing other incidental services would fall under Business Auxiliary Service even before the introduction of amendment dated 10.09.2004 and that appellants are liable to discharge service tax on BAS from 01.04.2004 to 09.09.2004 – HELD - It is correct that there was confusion prior to 10.09.2004 as to whether ... [Read more]

Service Tax - BAS - appellant collected applications for deposits / debentures, deliver debentures/deposits, receipts etc. and provide incidental services - department view that as per the agreement the activities in connection with mobilization of deposits/debentures, delivering deposits/debenture receipts, and providing other incidental services would fall under Business Auxiliary Service even before the introduction of amendment dated 10.09.2004 and that appellants are liable to discharge service tax on BAS from 01.04.2004 to 09.09.2004 – HELD - It is correct that there was confusion prior to 10.09.2004 as to whether all the services rendered on behalf of client would fall under BAS. Only specific activities provided on behalf of client was included in the definition prior to 10.09.2004. The activities carried out by appellant such as lending, hiring, application for deposits are akin to Banking and Financial services for which they were already registered. So the contention of the appellant that they were under bonafide belief that only with effect from 10.09.2004 when the amendment to the definition was introduced they were liable to discharge service tax for activities on behalf of client is not without force. Even after their letter, the department instead of issuing SCN during normal period has waited for another year or more to issue the Show Cause Notice – in the absence of deliberate intention the SCN is time barred - The appeal succeeds on limitation - the impugned order is set aside and the appeal is allowed [Read less]

2017-VIL-412-DEL  | High Court VAT

Delhi VAT Act - Section 9 (9) – Input tax credit – sale of Capital goods – denial of claim of exemption under Section 6 (3) on sale of demo car – HELD - Section 9 (9) of the DVAT Act lists out the instances where tax credit is allowable in respect of capital goods - It makes no distinction whether the main business of the Assessee is dealing in cars or some other business in order for goods purchased in the Assessee's own name and used for the purposes of the Assessee's business to be treated as capital goods. The Assessee being a dealer selling new cars, it is but natural that the Assessee purchases some cars in i... [Read more]

Delhi VAT Act - Section 9 (9) – Input tax credit – sale of Capital goods – denial of claim of exemption under Section 6 (3) on sale of demo car – HELD - Section 9 (9) of the DVAT Act lists out the instances where tax credit is allowable in respect of capital goods - It makes no distinction whether the main business of the Assessee is dealing in cars or some other business in order for goods purchased in the Assessee's own name and used for the purposes of the Assessee's business to be treated as capital goods. The Assessee being a dealer selling new cars, it is but natural that the Assessee purchases some cars in its own name for use as demo cars - The fact that these cars are purchased by the Assessee in its own name clearly indicates that the Assessee intends to use these cars as ‘demo cars’ and therefore, would be entitled to treat them as Assessee’s capital goods - The Appellant deals in the business of selling new cars. For that purpose it uses the cars purchased in its own name as demo cars. This is perfectly plausible. Such cars are the capital goods of the Appellant and are treated as such. The capital goods have not been exclusively used for making sale of non-taxable goods. Lastly, no ITC is claimed by the Appellant in respect of the VAT paid by it at the time of purchase of the cars - the Department has been unable to produce any credible material to show that in selling any of the demo cars, the Appellant was seeking to camouflage regular sale transactions as sale of capital goods in order to claim the benefit under Section 6 (3) of the DVAT Act - The appeal is accordingly allowed [Read less]

2017-VIL-699-CESTAT-CHE-ST  | CESTAT SERVICE TAX

Service Tax - rebate for service tax paid on services used for export of goods – maintainability of appeal – HELD - As per first proviso to Section 86 of the Finance Act, 1994, matter relating to grant of rebate of service tax shall not be dealt by way appeal to the Tribunal but would fall under the ambit of Section 35EE of the Central Excise Act, 1944, according to which, such matters would only be applied for revision by the Central Government. This being so, the appeal of Revenue is not maintainable before this forum for which reason, same is dismissed... [Read more]

Service Tax - rebate for service tax paid on services used for export of goods – maintainability of appeal – HELD - As per first proviso to Section 86 of the Finance Act, 1994, matter relating to grant of rebate of service tax shall not be dealt by way appeal to the Tribunal but would fall under the ambit of Section 35EE of the Central Excise Act, 1944, according to which, such matters would only be applied for revision by the Central Government. This being so, the appeal of Revenue is not maintainable before this forum for which reason, same is dismissed [Read less]

2017-VIL-411-MAD  | High Court VAT

Tamil Nadu Value Added Tax Act, 2006 – detention of goods on the ground that on verification of the dealer's profile and monthly returns, it revealed that they have purchased huge quantity of such machines, but no proof of payment of tax was found and suspecting the genuineness of the transaction, the goods were detained – HELD - If the terms and conditions are read along with the purchase order, the nature of transaction is that the State Bank of India, Navi Mumbai has placed the purchased on the petitioner, which is located in New Delhi with a specific condition that the products should be shifted to the agent and th... [Read more]

Tamil Nadu Value Added Tax Act, 2006 – detention of goods on the ground that on verification of the dealer's profile and monthly returns, it revealed that they have purchased huge quantity of such machines, but no proof of payment of tax was found and suspecting the genuineness of the transaction, the goods were detained – HELD - If the terms and conditions are read along with the purchase order, the nature of transaction is that the State Bank of India, Navi Mumbai has placed the purchased on the petitioner, which is located in New Delhi with a specific condition that the products should be shifted to the agent and there are certain obligations to be carried on by them such as printing of logo of the State Bank of India, checking the equipment as regards its functioning qualities, etc., and then delivering the products at the State Bank of India, Chennai. Thus, the impugned order is not sustainable, more so, when the State Bank of India themselves have given a certificate clearly explaining the nature of transaction - the impugned order is set aside and writ petition is allowed [Read less]

2017-VIL-705-CESTAT-MUM-CU  | CESTAT Case CUSTOMS

Customs - demand and imposition of penalty, confiscation and imposition of redemption fine on ground of undervaluation – rejection of transaction value – HELD - The Revenue has not verified genuineness of the pricelists or the invoices relied upon from the principal manufacturer in Germany. These unsigned and unauthenticated documents, which are not on the letterhead of foreign principal cannot be relied to sustain the charge of undervaluation. Moreover merely pricelists of the foreign supplier/manufacturer cannot be considered as a proof of transaction value - A perusal of the NIDB data shows that the imports are inde... [Read more]

Customs - demand and imposition of penalty, confiscation and imposition of redemption fine on ground of undervaluation – rejection of transaction value – HELD - The Revenue has not verified genuineness of the pricelists or the invoices relied upon from the principal manufacturer in Germany. These unsigned and unauthenticated documents, which are not on the letterhead of foreign principal cannot be relied to sustain the charge of undervaluation. Moreover merely pricelists of the foreign supplier/manufacturer cannot be considered as a proof of transaction value - A perusal of the NIDB data shows that the imports are indeed retail imports apparently by actual users. The appellants are undoubtedly traders and bulk importers and thus the two are not at same commercial level - While the price difference is very high and gives rise to suspicion, it cannot be said with reasonable certainty that the appellants have done undervaluation - Local sale price of the imported goods can at best be a corroborative evidence, but it cannot be considered as primary evidence of undervaluation unless the transaction value is discarded in terms of rule 3. In the instant case no evidence for rejection of transaction value has been brought about - revenue has failed to corroborate the charge of undervaluation with sufficient reliable evidence - Since all charges are based on the basic charge of undervaluation, all the charges made in the notice fail. Confiscation is consequently lifted. The appeals are allowed [Read less]

2017-VIL-697-CESTAT-ALH-CE  | CESTAT CENTRAL EXCISE

Central Excise - MRP based assessment - whether the doctrine of unjust enrichment is attracted where the appellants have cleared the cement on MRP which was pre-printed on each cement bag – HELD - where clearances were based on MRP or fixed-price the duty differential burden was not passed on and accordingly, unjust enrichment is not attracted - it is an admitted fact that the appellant have received the same price/MRP for clearances of goods on 6th, 7th and 8th December and so on. Accordingly, there can be no presumption that the appellant have passed on the excess duty deposited erroneously on 7 December, to the buyer ... [Read more]

Central Excise - MRP based assessment - whether the doctrine of unjust enrichment is attracted where the appellants have cleared the cement on MRP which was pre-printed on each cement bag – HELD - where clearances were based on MRP or fixed-price the duty differential burden was not passed on and accordingly, unjust enrichment is not attracted - it is an admitted fact that the appellant have received the same price/MRP for clearances of goods on 6th, 7th and 8th December and so on. Accordingly, there can be no presumption that the appellant have passed on the excess duty deposited erroneously on 7 December, to the buyer of the goods - the doctrine of unjust enrichment has been satisfied by the appellant-assessee and they are entitled to refund of the amount in question – assessee appeal is allowed [Read less]

2017-VIL-27-SC-ST  | Supreme Court SERVICE TAX

Service Tax - non-payment of service tax on ‘commission paid to overseas agents’ under ‘Business Auxiliary Service’ - the appellant never challenged adjudicating orders and appealed only after the issue was settled in other cases - whether the appellant had duly and satisfactorily explained the delay in approaching the Court after a period of four years – HELD – the Ministry of Finance had issued a circular dated September 26, 2011 after the legality of such a demand of service tax was determined - in ‘pending disputes’, the Government decided not to press for payment of service tax in such cases. Intention... [Read more]

Service Tax - non-payment of service tax on ‘commission paid to overseas agents’ under ‘Business Auxiliary Service’ - the appellant never challenged adjudicating orders and appealed only after the issue was settled in other cases - whether the appellant had duly and satisfactorily explained the delay in approaching the Court after a period of four years – HELD – the Ministry of Finance had issued a circular dated September 26, 2011 after the legality of such a demand of service tax was determined - in ‘pending disputes’, the Government decided not to press for payment of service tax in such cases. Intention was clear, namely, this circular would not apply to those cases which were already over and were not pending on that date. Otherwise, all those persons who had already paid the demand earlier without protesting the same would start claiming refund of those payments. Therefore, this circular would not come to the aid of the appellant - equities would be balanced by not insisting on payment of penalty and interest. Thus, when the appellant approached belatedly, it may not be entitled to refund of service tax already paid but at the same time, the appellant should not be called upon to pay any interest and penalty levied on a tax which was not payable at all in law - appeal is partly allowed by setting aside the demand qua interest and penalty [Read less]

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