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More Judgements

2019-VIL-296-MAD  | High Court SGST

CGST Act, 2017 – Section 50 - Demand of interest on delayed payment of tax - whether the petitioner is liable to pay interest for Input Tax Credit portion as well – Downward revision of demand - application of Megha Engineering & Infrastructure Ltd case - HELD – the Department communication does not say anything about whether the writ petitioner is liable to pay interest on Input Tax Credit. Even if the submission of Revenue counsel that the communication pertains to shorten period, the question as to whether the writ petitioner is liable to pay interest qua ITC has not been met though it has been specifically raised... [Read more]

CGST Act, 2017 – Section 50 - Demand of interest on delayed payment of tax - whether the petitioner is liable to pay interest for Input Tax Credit portion as well – Downward revision of demand - application of Megha Engineering & Infrastructure Ltd case - HELD – the Department communication does not say anything about whether the writ petitioner is liable to pay interest on Input Tax Credit. Even if the submission of Revenue counsel that the communication pertains to shorten period, the question as to whether the writ petitioner is liable to pay interest qua ITC has not been met though it has been specifically raised by the writ petitioner. Both sides submit that they are unable to say with certainty as to whether the Megha Engineering & Infrastructure Ltd rendered by Telangana High Court has been carried to the Hon'ble Supreme Court. In such circumstances, considering the factual matrix of this case, this Court deems it appropriate to leave open the question as to whether Megha Engineering & Infrastructure Ltd case would apply to instant case - This is more so as ld. counsel for writ petitioner submits that if the Department is called upon to send a communication explaining the reduction in the sum as well as the issue as to whether interest is payable on ITC, writ petitioner will avail a statutory appellate remedy against such an order - respondents are called upon to send a reply explaining the aforesaid two aspects and if it is not in favour of the assessee, the petitioner assessee will avail alternate remedy under Section 107 of CGST Act - This writ is disposed of [Read less]

2019-VIL-34-NAA  | National Anti/Profiteering Authority SGST

GST - National Anti-Profiteering Authority – profiteering in respect of supply of "Sanitary Napkins" consequent to reduction of tax rate from 12% to Nil – respondent claimed that the 12% GST which was wrongly collected was deposited with the Government along with the interest, hence, requested to drop the penalty proceedings – HELD - It's an admitted fact that the rate of tax on the product was reduced from 12% to NIL w.e.f. 27.07.2018 without the benefit of Input Tax Credit - based on the sales and the actual sale price of the product it was found that the product was sold at much higher price thus denying the benef... [Read more]

GST - National Anti-Profiteering Authority – profiteering in respect of supply of "Sanitary Napkins" consequent to reduction of tax rate from 12% to Nil – respondent claimed that the 12% GST which was wrongly collected was deposited with the Government along with the interest, hence, requested to drop the penalty proceedings – HELD - It's an admitted fact that the rate of tax on the product was reduced from 12% to NIL w.e.f. 27.07.2018 without the benefit of Input Tax Credit - based on the sales and the actual sale price of the product it was found that the product was sold at much higher price thus denying the benefit of tax reduction to the recipients - the Respondent is directed to reduce the price of the product as per the provisions of Rule 133 (3) (a) of the CGST Rules, 2017, by making commensurate reduction in the price, keeping in view the reduction in the rate of tax so that the benefit is passed on to the recipients – the respondent is liable for imposition of penalty under the above Section read with Rule 133 (3) (d) of the CGST Rules, 2017. In the interest of natural justice, notice may be issued to the Respondent to show cause as to why penalty should not be imposed on him as per the provisions of Section 122 of the CGST Act, 2017 read with Rule 133 (3) (d) of the CGST Rules, 2017 [Read less]

2019-VIL-35-NAA  | National Anti/Profiteering Authority SGST

GST - National Anti-Profiteering Authority – Profiteering on supply of footwear by not passing on of benefit of reduction in rate of tax on footwear priced between Rs. 500/- to Rs. 1000/- - Respondent claimed that the reduced rate of 5% was updated in his system but the software automatically amended the base price to keep the MRP intact since amendment to the MRP was not permitted as per Legal Metrology Act, 2009 – HELD – by increasing the base price of the product the benefit of reduction in tax rate was not passed on to the recipients and hence he has contravened the provisions of Section 171 of the CGST Act, 2017... [Read more]

GST - National Anti-Profiteering Authority – Profiteering on supply of footwear by not passing on of benefit of reduction in rate of tax on footwear priced between Rs. 500/- to Rs. 1000/- - Respondent claimed that the reduced rate of 5% was updated in his system but the software automatically amended the base price to keep the MRP intact since amendment to the MRP was not permitted as per Legal Metrology Act, 2009 – HELD – by increasing the base price of the product the benefit of reduction in tax rate was not passed on to the recipients and hence he has contravened the provisions of Section 171 of the CGST Act, 2017 - Since the Respondent has paid the entire profiteered amount into the Central Consumer Welfare Fund, he is directed to pay interest @18% on this amount as per Rule 133 (3) (b) of the CGST Rules, 2017 - the respondent is liable for imposition of penalty under the above Section read with Rule 133 (3) (d) of the CGST Rules, 2017. In the interest of natural justice, notice may be issued to the Respondent to show cause as to why penalty should not be imposed on him as per the provisions of Section 122 of the CGST Act, 2017 read with Rule 133 (3) (d) of the CGST Rules, 2017 [Read less]

2019-VIL-174-AAR  | Advance Ruling Authority SGST

GST - West Bengal AAR – Rectification in Order - The earlier order suffers from certain legal errors that are apparent on the face of the record and they need to be rectified. This Authority proceeds to amend the said order on its own accord under section 102 of the CGST Act. As the rectification is not going to enhance the tax liability or reducing the amount of admissible input tax credit from the original order, the requirement under proviso to section 102 of the CGST Act does not apply - Credit of GST paid on purchase of motor vehicles or other inputs for the supply of rent-a-cab service is not admissible for credit ... [Read more]

GST - West Bengal AAR – Rectification in Order - The earlier order suffers from certain legal errors that are apparent on the face of the record and they need to be rectified. This Authority proceeds to amend the said order on its own accord under section 102 of the CGST Act. As the rectification is not going to enhance the tax liability or reducing the amount of admissible input tax credit from the original order, the requirement under proviso to section 102 of the CGST Act does not apply - Credit of GST paid on purchase of motor vehicles or other inputs for the supply of rent-a-cab service is not admissible for credit in terms of section [17(5)(a)] of the CGST Act [Read less]

2019-VIL-173-AAR  | Advance Ruling Authority SGST

West Bengal AAR - classification of the Applicant's service relates to the contract with the DVC for leasing out of diesel-hydraulic shunting locomotive – HELD - Railway pushing and towing service (SAC 996731) refers to the service of moving railway cars and wagons between the terminal yards, industrial sidings and the like. It is grouped under 'Supporting Services for Railway Transport'. The Work Order includes all aspects of the above service. Therefore, unless the railway tracks under the administration of the DVC and the transportation of coal etc. to the DSTPS Siding from Andal Railway Station is excluded from railw... [Read more]

West Bengal AAR - classification of the Applicant's service relates to the contract with the DVC for leasing out of diesel-hydraulic shunting locomotive – HELD - Railway pushing and towing service (SAC 996731) refers to the service of moving railway cars and wagons between the terminal yards, industrial sidings and the like. It is grouped under 'Supporting Services for Railway Transport'. The Work Order includes all aspects of the above service. Therefore, unless the railway tracks under the administration of the DVC and the transportation of coal etc. to the DSTPS Siding from Andal Railway Station is excluded from railway transport, as defined under the Railways Act, 1989, the Applicant's activities, as described in the Work Order, definitely qualify as the supporting service of railway pushing and towing - Transportation of coal from Andal Station to DSTPS Siding is, therefore, railway transport, and the service of moving empty or loaded wagons/rakes at DSTPS Siding is nothing but the supporting service of railway pushing and towing (SAC 996731). It describes the nature of the Applicant's service more specifically than 'leasing or rental services concerning transport equipment, including containers with or without operator (SAC 997311) and taxable @18% [Read less]

2019-VIL-172-AAR  | Advance Ruling Authority SGST

GST – West Bengal AAR - Whether the contract for filling in the compound, tank, low land etc. with silver sand and earthwork in layers, including spreading and compacting the same is classifiable as a supply of sand (HSN 2505) – Revenue objection to admission of the application on the ground that the supply had already been completed – HELD - The scope of an Advance Ruling is wide enough to include not only the activities that are yet to take place but also the ones that have been undertaken. It is an advance ruling in the sense that the decision is provided before the question is taken up in any proceedings under th... [Read more]

GST – West Bengal AAR - Whether the contract for filling in the compound, tank, low land etc. with silver sand and earthwork in layers, including spreading and compacting the same is classifiable as a supply of sand (HSN 2505) – Revenue objection to admission of the application on the ground that the supply had already been completed – HELD - The scope of an Advance Ruling is wide enough to include not only the activities that are yet to take place but also the ones that have been undertaken. It is an advance ruling in the sense that the decision is provided before the question is taken up in any proceedings under the GST Act - the objection raised by the Department could not be entertained | the Applicant is required to fill in the foundation or plinth by silver sand in layers and consolidating the same by saturation with water ramming. The work also involves earth work for filling in the compound, tank, low land, ditches etc. with good earth spread in layers, including breaking clods and consolidating the same by ramming and dressing. It is, therefore, not a contract for the supply of goods, but the transfer of property in such goods in the course of preparing the site for construction - The Applicant's supply is works contract service, classifiable as site preparation service (SAC Group 99543) and taxable @ 18% - Being a service, the Applicant's supply is not classifiable under HSN 2505 [Read less]

2019-VIL-385-CESTAT-MUM-ST  | CESTAT SERVICE TAX

Service Tax – Whether the consideration received as non-competition fee to discourage of competition in promoting the sales of the dealers/retailers can be construed as consideration towards rendering Support Service of Business or Commerce – HELD - the appellant’s action and activity of ‘entering into non-compete agreement’ is nothing but a service covered by ‘support service of business and commerce’ as defined under Section 65(104c) r/w Section 65(105) of Finance Act, 1994 and therefore, the consideration received for the said services is accordingly taxable - The activities carried out by the appellant an... [Read more]

Service Tax – Whether the consideration received as non-competition fee to discourage of competition in promoting the sales of the dealers/retailers can be construed as consideration towards rendering Support Service of Business or Commerce – HELD - the appellant’s action and activity of ‘entering into non-compete agreement’ is nothing but a service covered by ‘support service of business and commerce’ as defined under Section 65(104c) r/w Section 65(105) of Finance Act, 1994 and therefore, the consideration received for the said services is accordingly taxable - The activities carried out by the appellant and the consideration received by them was against the support provided to the business of dealers of C&F agents and thus the activities that were carried out merit classification under ‘Support Services of Business and Commerce’ - the impugned Order is upheld and the appeal is dismissed [Read less]

2019-VIL-384-CESTAT-MUM-ST  | CESTAT SERVICE TAX

Service Tax - appellant availed cenvat credit on various ‘input services’, ‘capital goods’ which were used for providing taxable services as well as exempted services, namely, “International roaming charges” and “Interconnect user charges” - demand notice for recovery of credit utilized in excess of 20% of the service tax paid in contravention of Rule 6(3)(c)of the CCR 2004 – HELD - Reading of Rule 6(3)(c) of CCR, 2004 and Rule 6(1) of Service Tax Rules, 1994, it can safely be inferred that at the time of discharging monthly service tax liability of output service provided, the assessee cannot utilize CEN... [Read more]

Service Tax - appellant availed cenvat credit on various ‘input services’, ‘capital goods’ which were used for providing taxable services as well as exempted services, namely, “International roaming charges” and “Interconnect user charges” - demand notice for recovery of credit utilized in excess of 20% of the service tax paid in contravention of Rule 6(3)(c)of the CCR 2004 – HELD - Reading of Rule 6(3)(c) of CCR, 2004 and Rule 6(1) of Service Tax Rules, 1994, it can safely be inferred that at the time of discharging monthly service tax liability of output service provided, the assessee cannot utilize CENVAT credit more than 20% available in their Books of Accounts. It cannot be at their whims and pleasure to utilize more than 20% of the available credit in one month on the ground that in the previous month they have utilised less than 20% of the credit in discharging their tax liability, even though such credit was available to them. Also, if it is their choice not to utilize CENVAT credit in discharging the service tax liability at all for a particular month and choose to pay the entire liability through cash only and in such circumstances clause (c) of Sub-rule (3) of Rule 6 would not come into play. However, an assessee cannot be permitted to accumulate the limit of 20% for five months CENVAT credit and debit at one go the 100% credit in discharging their liability - notwithstanding the excess use of credit, the consequence cannot lead to recovery of the credit being availed as per law and admissible to the appellant - the appellant would be required to discharge interest on the excess utilization of the cenvat credit in a particular month at the applicable rate – no merit in the argument of the appellant that while calculating the liability of interest, it should be computed taking into account both excess utilisation as well as less credit availed during the period in dispute. There is no legal support to such method - Nevertheless, after 1.4.2008 the embargo of utilization of 20% credit has been removed and the assessee are entitled to utilize the credit accumulated on their books of accounts as on the date - the impugned order is modified and the matter is remanded to the adjudicating authority only for the limited purpose to calculate the amount of interest payable by the appellant for excess of the utilization of cenvat credit in a particular month i.e. on month to month basis for the entire period in question – appeal is partly allowed [Read less]

2019-VIL-389-CESTAT-MUM-CU  | CESTAT Case CUSTOMS

Customs - Classification of All-in-one computer having integrated CPU, VDU, keyboard and mouse and weighing less than 10 kgs per piece – assessee claimed classification under CTH 84715000 whereas the impugned order classified goods under CTH 84713010 – HELD - the imported goods are in the category of portable computers – neither the technical literature nor the literature referred to by the appellants it is brought out that the portable computers are only limited to laptops and notebooks - In terms of Sub Heading Note 2 to Chapter 84, for the item to classified as a system, the items should be segregated as at least ... [Read more]

Customs - Classification of All-in-one computer having integrated CPU, VDU, keyboard and mouse and weighing less than 10 kgs per piece – assessee claimed classification under CTH 84715000 whereas the impugned order classified goods under CTH 84713010 – HELD - the imported goods are in the category of portable computers – neither the technical literature nor the literature referred to by the appellants it is brought out that the portable computers are only limited to laptops and notebooks - In terms of Sub Heading Note 2 to Chapter 84, for the item to classified as a system, the items should be segregated as at least a central processing unit, one input unit and one output unit. It is admitted position by the appellants that in their case CPU and Output Unit (Visual Display Unit) are integrated into one - Since the imported goods satisfy all the terms and conditions for classification under heading 847130, no error in the classification as determined by the adjudicating authority and the appellate authority – assessee appeal is dismissed [Read less]

2019-VIL-390-CESTAT-MUM-CE  | CESTAT CENTRAL EXCISE

Central Excise - refund claim on finalization of provisional assessment, involving deduction of various post manufacturing expenses/ abatement from the wholesale sale price – appellant aggrieved by transfer of refund amount to the Consumer Welfare Fund holding that appellant has passed on the incidence of duty to its customers – whether the refund claim is hit by unjust enrichment – appellant contention that they have sold their products at a price driven by market forces, independent of the central excise duties paid – HELD - issue of presumption under Section 12B of CEA, 1944 requires to be negated by sufficient ... [Read more]

Central Excise - refund claim on finalization of provisional assessment, involving deduction of various post manufacturing expenses/ abatement from the wholesale sale price – appellant aggrieved by transfer of refund amount to the Consumer Welfare Fund holding that appellant has passed on the incidence of duty to its customers – whether the refund claim is hit by unjust enrichment – appellant contention that they have sold their products at a price driven by market forces, independent of the central excise duties paid – HELD - issue of presumption under Section 12B of CEA, 1944 requires to be negated by sufficient evidence by the person who is claiming refund. In the instant case, except for putting forth arguments theoretically, the appellants have not put forth any incontrovertible evidence to prove that the burden of duty has not been passed on to their customers - neither from the sample invoices nor from certificate by cost accountant, it cannot be inferred that the incidence of duty has not been passed on - the lower authorities have verified the evidence made available to them by appellants and have come to the conclusion rightly that the appellants could not prove that the incidence of duty has not been passed on to the buyers and was borne by them - there is no reason to interfere with the impugned order - the impugned order is upheld and the appeal is dismissed [Read less]

2019-VIL-387-CESTAT-DEL-CE  | CESTAT CENTRAL EXCISE

Central Excise - Whether the appellant is entitled for Cenvat Credit on Clean Energy Cess levied on coal, peat and lignite vide Section 83 of Finance Act, 2010 - whether the clean energy cess qualifies to be called as excise duty or tax or is merely a fee – HELD - the Clean Energy Cess was collected, irrespective of being nomenclated as excise duty, but for the specific purpose of funding the clean energy initiatives and for any other purpose in relation thereto. Thus, the cess was not for the use of general public as such irrespective it was deposited into the Consolidated Fund of India. Also, it was not to be distribut... [Read more]

Central Excise - Whether the appellant is entitled for Cenvat Credit on Clean Energy Cess levied on coal, peat and lignite vide Section 83 of Finance Act, 2010 - whether the clean energy cess qualifies to be called as excise duty or tax or is merely a fee – HELD - the Clean Energy Cess was collected, irrespective of being nomenclated as excise duty, but for the specific purpose of funding the clean energy initiatives and for any other purpose in relation thereto. Thus, the cess was not for the use of general public as such irrespective it was deposited into the Consolidated Fund of India. Also, it was not to be distributed to the States but was to be utilised by the Union Government for a particular section and a particular purpose. Thus, it becomes clear that the impugned cess, irrespective of its nomenclature, was not at all the duty of excise or tax but was a fee - Rule 3 of CCR, 2004 is applicable only when it is established that what is paid is excise duty or a tax and it is in that case only that the assessee is entitled to cenvat credit – Thus, CEC is not actually a duty, it is an additional amount as that of a fee for a specific purpose that Section 3, CCR, 2004 will not be applicable – the clean energy cess being actually in the nature of fee and not tax/ excise duty that the appellant is not entitled for availing cenvat credit thereupon - The impugned order stands confirmed and the appeal stands dismissed [Read less]

2019-VIL-294-GUJ  | High Court SGST

CGST Act, 2017 - whether the authority committed any error in passing the orders of provisional attachment of goods and Bank Accounts under section 83 of the Act - Petitioner view that section 83 could have been invoked provided any proceedings under section 62 of the Act were pending on the date of the order of provisional attachment - the petitioner seeking that the impugned orders of provisional attachment be quashed and set aside – HELD – According to the scheme of the Act, section 83 would come into play only after the necessary action is taken under section 62 of the Act - Section 83 makes it clear that during th... [Read more]

CGST Act, 2017 - whether the authority committed any error in passing the orders of provisional attachment of goods and Bank Accounts under section 83 of the Act - Petitioner view that section 83 could have been invoked provided any proceedings under section 62 of the Act were pending on the date of the order of provisional attachment - the petitioner seeking that the impugned orders of provisional attachment be quashed and set aside – HELD – According to the scheme of the Act, section 83 would come into play only after the necessary action is taken under section 62 of the Act - Section 83 makes it clear that during the pendency of any proceedings under section 62, if the Commissioner is of the opinion that for the purpose of protecting the interest of the Government revenue he may, by order in writing, attach provisionally any property including the Bank Account belonging to the taxable person - It appears that much before the notice under section 46 came to be issued or rather, much before the assessment could be undertaken under section 62 of the Act, the authority straightway proceeded to pass orders of provisional attachment of the goods as well as Bank Accounts. Such action, cannot be said to be in accordance with law - the impugned orders of provisional attachment of the goods as well as the Bank Accounts are quashed and set aside – the petition is disposed of [Read less]

2019-VIL-388-CESTAT-AHM-CE  | CESTAT CENTRAL EXCISE

Central Excise – imposition of penalty on the appellant for the involvement in supplying goods to a non-functional EOU - Rule 156A and 156B of the Central Excise Rules – HELD - it is the responsibility of consignor to take the goods from the premises of a consignor to the warehouse of destination. Thus, the claim of the appellants that they were handing over the consignments to the representative of the consignee on the factory gate is itself against the rules. It was responsibility of the appellants to deliver the goods to the consignee’s warehouse. Even the transporter hired by the appellant is performing the duty ... [Read more]

Central Excise – imposition of penalty on the appellant for the involvement in supplying goods to a non-functional EOU - Rule 156A and 156B of the Central Excise Rules – HELD - it is the responsibility of consignor to take the goods from the premises of a consignor to the warehouse of destination. Thus, the claim of the appellants that they were handing over the consignments to the representative of the consignee on the factory gate is itself against the rules. It was responsibility of the appellants to deliver the goods to the consignee’s warehouse. Even the transporter hired by the appellant is performing the duty of transferring material to EOU on their behalf. The perusal of Rule 156A clearly indicated that the role of the consignee starts only after the arrival of the goods at the warehouse destination - the appellants were not careful enough and were willing party to the diversion of goods by the consignee. In this regard, the affidavit filed by the transporter regarding delivery of goods at the premise of EOU also appears to have been obtained without knowledge of the transporter - it was responsibility of appellant’s to ensure delivery of goods - it is apparent that the appellants were aware of the diversion of goods en-route - we find significant merit in imposing penalty on the appellants. Consequently, the penalty imposed in the order is upheld. The appeal on this count is dismissed [Read less]

2019-VIL-386-CESTAT-AHM-ST  | CESTAT SERVICE TAX

Service Tax – Cenvat Credit on insurance related services – HELD - the Appellant has taken the general Insurance policies to safeguard its petroleum Complex. The services of insurance as found from the list are integral to the safety. The value of plant and machinery running into thousands of crores are required to be safeguarded against various risks. Without such insurance services in case of any mis-happening, the enterprise would be at great loss and can never re-start its operations - Further, the cost of such services stands included in the cost of production/ value of goods as certified by the Cost Accountant. W... [Read more]

Service Tax – Cenvat Credit on insurance related services – HELD - the Appellant has taken the general Insurance policies to safeguard its petroleum Complex. The services of insurance as found from the list are integral to the safety. The value of plant and machinery running into thousands of crores are required to be safeguarded against various risks. Without such insurance services in case of any mis-happening, the enterprise would be at great loss and can never re-start its operations - Further, the cost of such services stands included in the cost of production/ value of goods as certified by the Cost Accountant. We have no doubt in our mind that the services are integral part of cost of goods manufactured and would merit classification as “Input Service” - the Appellant are eligible to avail credit of service tax paid on Insurance Services as all are related to secure the plant and machinery and thus merit consideration as “Input Services”. Resultantly the impugned order is set aside and the appeal is allowed [Read less]

2019-VIL-381-CESTAT-DEL-CE  | CESTAT CENTRAL EXCISE

Central Excise - confirmation of demand against the appellant based on the loose sheets recovered from the appellant’s factory as well as on the basis of weighment records of the weighbridge belonging to the appellant – HELD - The Department has not conducted any investigation other than recovery of these loose sheets and weighment record, from any of the buyers, suppliers, transporters etc - no investigation has been conducted by the Department for the forward and backward linkages of clandestine activities alleged to have been committed by the appellant - The case against the appellant has been made on the basis of a... [Read more]

Central Excise - confirmation of demand against the appellant based on the loose sheets recovered from the appellant’s factory as well as on the basis of weighment records of the weighbridge belonging to the appellant – HELD - The Department has not conducted any investigation other than recovery of these loose sheets and weighment record, from any of the buyers, suppliers, transporters etc - no investigation has been conducted by the Department for the forward and backward linkages of clandestine activities alleged to have been committed by the appellant - The case against the appellant has been made on the basis of assumption and presumption which is not sustainable – the impugned order is set aside and appeals are allowed [Read less]

2019-VIL-379-CESTAT-ALH-CE  | CESTAT CENTRAL EXCISE

Central Excise - appellant was granted a contract for erection of Thermal Power Plant in Syria – Due to unrest in Syria the project came to a standstill and the duty free procured indigenous goods could not be exported by the appellant – denial of extension of time to export the goods in terms of Notification No.42/2001-CE(NT) which provides duty exemption – confirmation of demand of duty - HELD - the period for export was being extended by the Revenue at their request and number of extension have already been granted to them. However, their ultimate request to extend the period stands rejected by the Assistant Commi... [Read more]

Central Excise - appellant was granted a contract for erection of Thermal Power Plant in Syria – Due to unrest in Syria the project came to a standstill and the duty free procured indigenous goods could not be exported by the appellant – denial of extension of time to export the goods in terms of Notification No.42/2001-CE(NT) which provides duty exemption – confirmation of demand of duty - HELD - the period for export was being extended by the Revenue at their request and number of extension have already been granted to them. However, their ultimate request to extend the period stands rejected by the Assistant Commissioner vide his letter dated 23/02/2015 which has not been challenged by the appellant. As such the same has attained finality. As a result, there is no such extension order available on record as on date. If there is no extension having been granted by the Authorities, in terms of the provisions of Notification No.42/2001-CE(NT), condition of the said Notification stands violated. As such, the confirmation of the demand is only as a consequence of the earlier proceedings of rejection of extension, which issue cannot be agitated before the Tribunal at this stage. Accordingly, the confirmation of demand alongwith confirmation of interest is upheld and the penalty imposed is set aside – the appeal is disposed of [Read less]

2019-VIL-382-CESTAT-AHM-CE  | CESTAT CENTRAL EXCISE

Central Excise - whether the appellant is entitled for Cenvat credit in respect of services of Annual Maintenance Charges of Visi Coolers located at their Dealer / Retailer’s premises – HELD - even though the visi coolers are installed at the Retailer/Dealer’s premises but the same are owned by the appellant therefore the service of AMC of visi coolers were received by the appellant which is in relation to their business activity as sales promotion and advertisement. The sales promotion and advertisement is specifically mentioned in the inclusive clause of the definition in terms of Rule 2(l) of CCR, 2004. Therefore,... [Read more]

Central Excise - whether the appellant is entitled for Cenvat credit in respect of services of Annual Maintenance Charges of Visi Coolers located at their Dealer / Retailer’s premises – HELD - even though the visi coolers are installed at the Retailer/Dealer’s premises but the same are owned by the appellant therefore the service of AMC of visi coolers were received by the appellant which is in relation to their business activity as sales promotion and advertisement. The sales promotion and advertisement is specifically mentioned in the inclusive clause of the definition in terms of Rule 2(l) of CCR, 2004. Therefore, the AMC service of visi coolers, which are owned by the appellants, is an input service and accordingly, the Cenvat credit is admissible - the impugned orders are set aside and both the appeals are allowed [Read less]

2019-VIL-383-CESTAT-DEL-CU  | CESTAT Case CUSTOMS

Customs – Enhancement in value based on the market survey report - valuation under Rule 7 without the exhausting the application of Rule 3, 4 and 5 of Custom Valuation Rule – HELD - the lower adjudicating authority has not recorded the reason as to why he has resorted to the valuation under Rule 7 without the exhausting provisions of Section 14 of the Customs Act and also without exhausting the application of Rule 3, 4 and 5 of Custom Valuation Rule. Therefore, the order passed by the lower adjudicating authority is in contrary to the Customs Valuation Rules – Further, the in market enquiry report that the goods were... [Read more]

Customs – Enhancement in value based on the market survey report - valuation under Rule 7 without the exhausting the application of Rule 3, 4 and 5 of Custom Valuation Rule – HELD - the lower adjudicating authority has not recorded the reason as to why he has resorted to the valuation under Rule 7 without the exhausting provisions of Section 14 of the Customs Act and also without exhausting the application of Rule 3, 4 and 5 of Custom Valuation Rule. Therefore, the order passed by the lower adjudicating authority is in contrary to the Customs Valuation Rules – Further, the in market enquiry report that the goods were of very inferior quality and hence price of these goods would be lower than the other genuine or high quality goods sold in the market. Thus, the market survey report cannot be relied upon – in is evident from the Corrigendum that the demand has been confirmed by Commissioner of Customs (Export, ICD) under Rule 5 of the Customs Valuation Rules r/w with Section 14 of the Customs Act. If this Corrigendum has been issued by the Commissioner of Customs then the Commissioner (Appeals) is not competent officer to hear the appeal. Further, Rule 5 of the Valuation Rules, which deals with the transaction value on the basis of similar goods, has not been properly spelt out in the said Corrigendum - Accordingly, the impugned order is set aside and appeal is allowed [Read less]

2019-VIL-33-NAA  | National Anti/Profiteering Authority SGST

GST - National Anti-Profiteering Authority – Applicant complaint that benefit of Input Tax Credit in the post-GST era was not passed on by way of commensurate reduction in the price of the Villa - subsequent withdrawal of complaint by the applicant with the submission that the investigation should be dropped/closed – HELD - while the proceedings of Anti-Profiteering must flow from an application but there was no statutory provision for its withdrawal - in terms of Rule 129 of the CGST Rules, 2017, the DGAP was under statutory obligation to complete the investigation in case of receipt of any reference from the Standing... [Read more]

GST - National Anti-Profiteering Authority – Applicant complaint that benefit of Input Tax Credit in the post-GST era was not passed on by way of commensurate reduction in the price of the Villa - subsequent withdrawal of complaint by the applicant with the submission that the investigation should be dropped/closed – HELD - while the proceedings of Anti-Profiteering must flow from an application but there was no statutory provision for its withdrawal - in terms of Rule 129 of the CGST Rules, 2017, the DGAP was under statutory obligation to complete the investigation in case of receipt of any reference from the Standing Committee on Anti-profiteering. For these reasons, the subsequent withdrawal of an application was not a legally valid ground to discontinue the proceedings – the benefit of additional ITC of 9.68% of the taxable turnover during the period w.e.f. 01.07.2017 to 30.06.2018 the amount of ITC as on 30.06.2018, has accrued to the Respondent and the same was required to be passed on to the Applicant and the other flat buyers - the ratio of ITC to the taxable turnover which was available to the Respondent before coming in to force of the GST w.e.f. 01.07.2017 as 0.15% and after 01.07.2017 as 9.83%, which proves that the Respondent had availed additional ITC of 9.68% post implementation of GST - The Respondent at no stage has objected to the calculation of the additional ITC availed by him or the profiteered amount made by the DGAP and has rather admitted the computation of both as correct and agreed to pay the above benefit as per the details prepared by the DGAP - Accordingly, under Rule 133 (3) (a) of the CGST Rules, 2017 it is ordered that the Respondent shall reduce the price to be realized from the buyers of the flats commensurate with the benefit of ITC availed by him – the Respondent has denied benefit of Input Tax Credit to the purchasers of flats in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has thus realized more price from them than what he was entitled to charge and has also compelled them to pay more GST than what they were required to pay by issuing incorrect tax invoices and hence he has committed offence under section 122 (1) (i) of the CGST Act, 2017 and therefore, he is liable for imposition of penalty under the above Section r/w Rule 133 (3) (d) of the CGST Rules, 2017 – answered in favour of the applicant [Read less]

2019-VIL-282-MAD  | High Court VAT

Tamil Nadu General Sales Tax Act, 1959 - whether the proceedings of the respondent to revise assessment are barred by limitation in view of amendment to section 16(1) w.e.f. 01.07.2002 – whether the issuance of pre-revision notices is sufficient to save limitation - HELD - the amendment to section 16(1) would apply to the present re-assessment proceedings because the limitation period under the pre-amended Section 16 expired on 31.03.2005, whereas the amendment came into effect on 01.07.2002 - the re-assessment proceedings were within the period of limitation under the pre-amended Section 16(1). Even otherwise, in view o... [Read more]

Tamil Nadu General Sales Tax Act, 1959 - whether the proceedings of the respondent to revise assessment are barred by limitation in view of amendment to section 16(1) w.e.f. 01.07.2002 – whether the issuance of pre-revision notices is sufficient to save limitation - HELD - the amendment to section 16(1) would apply to the present re-assessment proceedings because the limitation period under the pre-amended Section 16 expired on 31.03.2005, whereas the amendment came into effect on 01.07.2002 - the re-assessment proceedings were within the period of limitation under the pre-amended Section 16(1). Even otherwise, in view of the conclusion regarding the applicability of the amendment, the re-assessment proceedings are not barred by limitation - Regarding issuance of pre-revision notices, the pre-revision notices were issued before the expiry of the limitation period under the pre-amended Section 16(1) of the TNGST Act. Therefore, the proceedings for re-assessment are within the limitation period even under the pre-amended Section 16(1) of the TNGST Act - the re-assessment proceedings are not barred by limitation - the writ petitions are dismissed [Read less]

2019-VIL-293-CHG  | High Court VAT

M/s BHARTI AIRTEL LIMITED Vs STATE OF CHHATTISGARH: 14.05.2019 - Whether the petitioner, a cellular service provider, is liable to pay property tax in respect of or otherwise relating to underground cable laid for the purpose of providing telephone services or other telecommunication facilities – HELD - Laying of underground cable by the mobile service provider is exigible to property tax being a levy for use of land for laying of cable and not on cable itself – the writ petition is dismissed

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