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More Judgements

2019-VIL-121-CESTAT-AHM-ST  | CESTAT SERVICE TAX

Service Tax - appellants provides executive training to Corporates. The appellants provided service to Duke CE USA by providing training to the clients of Duke CE USA under exchange of programme support – Service tax demand under commercial training and coaching service – appellants claim that service qualified as BAS – HELD – HELD - The appellants are providing service to the third parties who are clients of M/s Duke CE USA who in turn is their client. The payment received by the appellant from Duke CE USA is in convertible foreign exchange. From the above it is apparent that the training provided by the appellant... [Read more]

Service Tax - appellants provides executive training to Corporates. The appellants provided service to Duke CE USA by providing training to the clients of Duke CE USA under exchange of programme support – Service tax demand under commercial training and coaching service – appellants claim that service qualified as BAS – HELD – HELD - The appellants are providing service to the third parties who are clients of M/s Duke CE USA who in turn is their client. The payment received by the appellant from Duke CE USA is in convertible foreign exchange. From the above it is apparent that the training provided by the appellants is not provided to the employees of M/s Duke CE USA but to the clients of M/s Duke CE USA on their behalf. In these circumstances, the service provided by them would be properly classifiable as BAS - BAS is covered by rule 3(1)(iii) of the Export of Service Rules 2005, where a service constitute export when a service recipient is located outside India. Thus, in terms of the Export of Service Rules the service provided by the appellant would constitute export of service - the demand of service tax does not survive. The appeal is consequently allowed [Read less]

2019-VIL-122-CESTAT-BLR-ST  | CESTAT SERVICE TAX

Service Tax - Recovery of excess credit availed without proper input documents – SCN alleging suppression of facts – HELD - the basis for issuing show-cause notice was a mismatch between the ST-3 returns and the worksheets annexed therewith - the department has not examined as to whether the appellant took CENVAT credit on the basis of valid duty paying documents at the time of issuing show-cause notice - the appellants have been regularly filing ST-3 returns along with the detailed worksheets enclosed with the said returns, which clearly shows the availment of credit by the appellant on different input services. Even ... [Read more]

Service Tax - Recovery of excess credit availed without proper input documents – SCN alleging suppression of facts – HELD - the basis for issuing show-cause notice was a mismatch between the ST-3 returns and the worksheets annexed therewith - the department has not examined as to whether the appellant took CENVAT credit on the basis of valid duty paying documents at the time of issuing show-cause notice - the appellants have been regularly filing ST-3 returns along with the detailed worksheets enclosed with the said returns, which clearly shows the availment of credit by the appellant on different input services. Even if there was some mismatch in the ST-3 returns and the worksheets, it was incumbent on the Department to call for the reports while examining the ST-3 returns but the same was not done - the worksheets filed by the appellant along with the ST-3 returns clearly disclosed the invoice-wise details of the credit availed by the appellant and also provided the description of the services received by them. With all these details available with the Department, the Department cannot allege suppression of facts with intent to evade payment of tax - the entire demand is barred by limitation and therefore, set aside by allowing the appeal of the appellant [Read less]

2019-VIL-118-CESTAT-MUM-CU  | CESTAT Case CUSTOMS

Customs - Revenue application seeking condonation of delay in filing the appeal beyond the prescribed from the date of receipt of order by the Committee of Chief Commissioners – HELD – the delay in undertaking the statutory obligation caused on the officer authorized by the Committee of Chief Commissioners to file the appeal within period of one month cannot be explained on the ground of heavy workload and transfers of concerned persons. If such a ground is pleaded and admitted, then prescription of statutory time limit for filing the appeal within one month from the date of receipt of order from Committee of Chief Com... [Read more]

Customs - Revenue application seeking condonation of delay in filing the appeal beyond the prescribed from the date of receipt of order by the Committee of Chief Commissioners – HELD – the delay in undertaking the statutory obligation caused on the officer authorized by the Committee of Chief Commissioners to file the appeal within period of one month cannot be explained on the ground of heavy workload and transfers of concerned persons. If such a ground is pleaded and admitted, then prescription of statutory time limit for filing the appeal within one month from the date of receipt of order from Committee of Chief Commissioners will lose its relevance. We are convinced that substantial cause to be shown for delay in presenting the appeal cannot be the work load on the section. Even transfers cannot be reason as the period of delay is nearly 452 days - The Applications for condonation of delay filed by revenue are dismissed [Read less]

2019-VIL-79-ALH  | High Court VAT

Uttar Pradesh Trade Tax Act, 1948 - Section 3-F(3) - Disallowance of deduction of labour cost as per books of accounts - Works Contract – HELD - Once the books of accounts of the appellant-assessee were accepted, there was no room to invoke the provisions of Section 3-F(3) of the State Act. To allow the assessing officer to both accept the books of accounts and yet disbelieve part thereof would be to allow self-contradicted findings to arise and exist in the assessment order. While it may have been open to the assessing officer to enquire further and, if necessary, reject the books of accounts of the assessee if the expe... [Read more]

Uttar Pradesh Trade Tax Act, 1948 - Section 3-F(3) - Disallowance of deduction of labour cost as per books of accounts - Works Contract – HELD - Once the books of accounts of the appellant-assessee were accepted, there was no room to invoke the provisions of Section 3-F(3) of the State Act. To allow the assessing officer to both accept the books of accounts and yet disbelieve part thereof would be to allow self-contradicted findings to arise and exist in the assessment order. While it may have been open to the assessing officer to enquire further and, if necessary, reject the books of accounts of the assessee if the expenses on labour or other charges were unsubstantiated or unverified, however, that enquiry having not been conducted and the assessing officer having still reached a conclusion that the books of accounts were worthy of acceptance, no further enquiry was permissible to disallow part expenditure disclosed in such books of accounts. The exercise of acceptance of books of accounts curtails further enquiry as to genuineness and value of expenditure reflected in the books of account. Rejection of any part of expenditure may be made only after the books of accounts were rejected. Therefore, the assessing officer could not be permitted to both accept the books of accounts and yet disallow any part of labour expense recorded therein – answered in favour of assessee [Read less]

2019-VIL-78-GUJ-CE  | High Court CENTRAL EXCISE

Central Excise - Whether the petitioner was entitled to arrive at an assessable value after deducting the Government levies from the Net Dealer Price – petitioner challenging the impugned show cause notices which have been taken out of the call book – HELD - the respondents after keeping the impugned show cause notices in the call book, have not chosen to follow up it for unduly long period. It is very evident that it was only after the filing of this petition, the impugned show cause notices have been taken out from the call book and notice for personal hearing was issued to the petitioner. The act on the part of the ... [Read more]

Central Excise - Whether the petitioner was entitled to arrive at an assessable value after deducting the Government levies from the Net Dealer Price – petitioner challenging the impugned show cause notices which have been taken out of the call book – HELD - the respondents after keeping the impugned show cause notices in the call book, have not chosen to follow up it for unduly long period. It is very evident that it was only after the filing of this petition, the impugned show cause notices have been taken out from the call book and notice for personal hearing was issued to the petitioner. The act on the part of the respondents of keeping the impugned show cause notices in call book for unduly long period, without disclosing any reason for delay is arbitrary in exercise of powers and is also in violation of provisions of Section 11A of the Customs Act - the impugned notices are quashed and set aside – assessee petition is allowed [Read less]

2019-VIL-120-CESTAT-AHM-CE  | CESTAT CENTRAL EXCISE

Central Excise - Valuation – Transaction Value - Cash discount - department of the view that the cash discount which was not availed by the buyers is part and partial of the transaction value – Demand of differential duty – HELD - In our view the discount amount which is paid by the buyer subsequent to the payment of Bill amount should also form part of assessable value. However, the Hon’ble Supreme Court in the case of Purolator India Ltd. dealing with the same issue taken a view that transaction value has to be written alongwith expression for delivery at the time or place of deliveries - cash discount which is n... [Read more]

Central Excise - Valuation – Transaction Value - Cash discount - department of the view that the cash discount which was not availed by the buyers is part and partial of the transaction value – Demand of differential duty – HELD - In our view the discount amount which is paid by the buyer subsequent to the payment of Bill amount should also form part of assessable value. However, the Hon’ble Supreme Court in the case of Purolator India Ltd. dealing with the same issue taken a view that transaction value has to be written alongwith expression for delivery at the time or place of deliveries - cash discount which is not at or prior to clearance of goods being contained in agreement of sale between assessee and buyers must, therefore, be deducted from sale price in order to know the value of excisable goods at time. Hence, cash discount was deductible - following the ratio of the Hon’ble Supreme Court Judgment in the case of Purolater India Ltd, the impugned order is set aside and appeal is allowed [Read less]

2019-VIL-117-CESTAT-CHE-CE  | CESTAT CENTRAL EXCISE

Central Excise - 100% EOU – DTA Clearance of turbo wheel assembly - SCN to deny benefit of concessional duty under Notification 23/2003-CE as both indigenous and imported raw materials were used for final goods – benefit also denied on ground that only ‘similar goods’ can be cleared in DTA – HELD – In Notification 23/2003-CE there is no such conditionality that the goods are to be produced or manufactured wholly from the raw materials produced or manufactured in India. In fact, such requirement is found only in condition 3 which in any case is not sought to be availed by the appellant. This being so, the first ... [Read more]

Central Excise - 100% EOU – DTA Clearance of turbo wheel assembly - SCN to deny benefit of concessional duty under Notification 23/2003-CE as both indigenous and imported raw materials were used for final goods – benefit also denied on ground that only ‘similar goods’ can be cleared in DTA – HELD – In Notification 23/2003-CE there is no such conditionality that the goods are to be produced or manufactured wholly from the raw materials produced or manufactured in India. In fact, such requirement is found only in condition 3 which in any case is not sought to be availed by the appellant. This being so, the first ground for denial of the benefit is not sustainable - There is no doubt that the appellant had exported bearing housing whereas the goods to be cleared into DTA seeking benefit of Notification 23/2003 was turbo wheel assembly - when the permission granted to appellant has not listed any specific components of a turbo charger but instead has only indicated export product as turbo charger component, the appellant cannot then be said to have caused a breach of the conditions. Both bearing housing and turbine wheel are surely component parts of turbo charger - when the permission is generic and only states “turbo charger components”, the condition of the impugned notification gets satisfied so long as the parts that the exported and the parts cleared into DTA are both the components of turbine charger - The impugned order is set aside and appeal is allowed [Read less]

2019-VIL-119-CESTAT-CHE-CE  | CESTAT CENTRAL EXCISE

Central Excise - demand alleging wrong availment of CENVAT credit on inputs and inputs services, capital goods used for production of electricity which is sold to TNEB – suppression of facts – HELD - the allegation of suppression against the appellant is that they failed to reverse the credit upon delivery of the judgment of the Hon’ble Apex Court in Maruti Suzuki Ltd. It is clear that the SCN has been issued after the decision rendered by the Apex Court in the said case. The department has no case that the appellant had not disclosed the credit availed in their ER-1 returns. Further, the appellant has reversed the e... [Read more]

Central Excise - demand alleging wrong availment of CENVAT credit on inputs and inputs services, capital goods used for production of electricity which is sold to TNEB – suppression of facts – HELD - the allegation of suppression against the appellant is that they failed to reverse the credit upon delivery of the judgment of the Hon’ble Apex Court in Maruti Suzuki Ltd. It is clear that the SCN has been issued after the decision rendered by the Apex Court in the said case. The department has no case that the appellant had not disclosed the credit availed in their ER-1 returns. Further, the appellant has reversed the entire credit on 31.1.2011. All these would go to show that there was no intention to evade payment of duty or tax less any positive act of suppression on the part of the appellant - the department has miserably failed to establish with cogent evidence that the appellant is guilty of suppression of facts with intention to evade payment of duty so as to invoke the extended period of limitation. The show cause notice issued to the appellant is time-barred. The impugned order is set aside - The assessee appeal succeeds on limitation [Read less]

2019-VIL-116-CESTAT-AHM-CU  | CESTAT Case CUSTOMS

Customs – rejection of the declared value and re-determination of value of Styrene Monomer imported by the appellant - rejection of transaction value on the ground that the appellant had placed an order at the price which was almost 30% and 40% below the prevailing price – HELD - the purported negotiation and consequent amendment in the price shown to have been completed though subsequent e-mail communications without amending the written contract were nothing but a mere eye-wash by related parties ostensibly to avail the benefit of the sudden crash in price of Styrene Monomer in the international market just after bil... [Read more]

Customs – rejection of the declared value and re-determination of value of Styrene Monomer imported by the appellant - rejection of transaction value on the ground that the appellant had placed an order at the price which was almost 30% and 40% below the prevailing price – HELD - the purported negotiation and consequent amendment in the price shown to have been completed though subsequent e-mail communications without amending the written contract were nothing but a mere eye-wash by related parties ostensibly to avail the benefit of the sudden crash in price of Styrene Monomer in the international market just after billing and dispatch of the goods and to make ground work for the possible escape from the duty liability on the average of weekly prices - The changes made in supply contract vide supplemental contract further makes it crystal clear that the change in pricing pattern came into existence only for the products supplied on or after 19.12.2008 and not prior to that. In the instant case the supply was effected much prior to 19.12.2008 and therefore the revised pricing pattern would have no applicability for the subject imported goods - The manner in which the terms and conditions of the contract were changed to meet the requirements of the related parties shows that there was a special understanding between the buyer and the seller. Any reason for the change in price should flow from the contract otherwise there was no sanctity of the contract entered into earlier – the impugned order is upheld and assessee appeal is dismissed [Read less]

2019-VIL-114-CESTAT-ALH-CE  | CESTAT CENTRAL EXCISE

Central Excise - availment of Cenvat credit of duty paid on the inputs utilized in the manufacture of Plain Lateral Pipes and Tubes – Commr. (Appeals) held that since the said Pipes were also classifiable under chapter 84 and entitled to exemption, no credit was available to the assessee – demand with interest and imposition of penalty – HELD - the Plain Lateral Pipes and Tubes were being cleared by the appellant on payment of duty by treating the same as classifiable under chapter 39. As such irrespective of the fact as to whether the said pipes were classifiable under chapter 39 or chapter 84, the credit so availed... [Read more]

Central Excise - availment of Cenvat credit of duty paid on the inputs utilized in the manufacture of Plain Lateral Pipes and Tubes – Commr. (Appeals) held that since the said Pipes were also classifiable under chapter 84 and entitled to exemption, no credit was available to the assessee – demand with interest and imposition of penalty – HELD - the Plain Lateral Pipes and Tubes were being cleared by the appellant on payment of duty by treating the same as classifiable under chapter 39. As such irrespective of the fact as to whether the said pipes were classifiable under chapter 39 or chapter 84, the credit so availed by the assessee and utilized for payment of duty on the said goods cannot be disallowed to them - If the said Pipes and Tubes were also exempted, and the appellant is not entitled to avail the credit, then the duty paid by the appellant on their final product was required to be refunded to them or to be adjusted or neutralized against the demand of credit being made. As such the entire situation is revenue neutral - the wrongly availed credit was not being used by the assessee inasmuch as there was sufficient balance in their credit account at the time of reversal of the excess availed credit. As such, no reasons to uphold the confirmation of interest and penalty – assessee appeal is allowed [Read less]

2019-VIL-76-MAD-CE  | High Court CENTRAL EXCISE

Central Excise - whether the assessee was entitled to file writ petitions challenging O-in-O after the appeals filed by the assessee were dismissed confirming the orders passed by the Tribunal, which upheld the decision of the CCE (Appeals) rejecting the appeals filed by the assessee as barred by limitation – assessee challenge to imposition of equal amount of penalty under Rule 15 of CCR, 2004 – condonation of delay in filing appeals – HELD - the issue raised by the assessee touches upon the jurisdiction of the Adjudicating Authority to impose equal penalty for the period upto 31.3.2010 and whether circumstances war... [Read more]

Central Excise - whether the assessee was entitled to file writ petitions challenging O-in-O after the appeals filed by the assessee were dismissed confirming the orders passed by the Tribunal, which upheld the decision of the CCE (Appeals) rejecting the appeals filed by the assessee as barred by limitation – assessee challenge to imposition of equal amount of penalty under Rule 15 of CCR, 2004 – condonation of delay in filing appeals – HELD - the issue raised by the assessee touches upon the jurisdiction of the Adjudicating Authority to impose equal penalty for the period upto 31.3.2010 and whether circumstances warrant imposition of equal penalty post 31.3.2010 - for the period from 01.4.2010, mens rea requires to be established to impose equal penalty - the issues as to whether equal penalty was imposable or in other words, whether the Adjudicating Authority had jurisdiction to impose equal penalty for the period prior to 31.3.2010 and as to whether facts warranted imposition of equal penalty for the period from 01.4.2010 are definitely issues touching upon the jurisdiction of the Authority to take a decision in the matter. Therefore, the assessee has made out a case for interference of the said common Order-in-Original in exercise of the powers under Article 226 of The Constitution of India, as we are prima facie satisfied that the Adjudicating Authority assumed jurisdiction, which has been shown to be not in existence for the period upto 31.3.2010 - the writ petitions are allowed and the common Order-in-Original is set aside so far as imposition of equal penalty for the periods both from March 2008 to March 2010 and from 01.4.2010 to 31.1.2015. The matters are remanded to the Adjudicating Authority to take a fresh decision - the writ appeals are answered in favour of assessee [Read less]

2019-VIL-77-ALH  | High Court VAT

U.P. Trade Tax Act, 1948 – Whether cancelling of eligibility certificate after 9 years of the period of exemption and 13 years after survey had been conducted by the Special Investigation Branch is barred by limitation – HELD - While the revenue authorities may choose a time that may be to their liking or disposition, an assessee who would suffer the brunt of such a charge being levelled cannot be left at the mercy of the revenue authorities as to choice of time as it may itself deprive the assessee of opportunity to lead any evidence in his defence and destroy his right to equal and fair opportunity to defend - even i... [Read more]

U.P. Trade Tax Act, 1948 – Whether cancelling of eligibility certificate after 9 years of the period of exemption and 13 years after survey had been conducted by the Special Investigation Branch is barred by limitation – HELD - While the revenue authorities may choose a time that may be to their liking or disposition, an assessee who would suffer the brunt of such a charge being levelled cannot be left at the mercy of the revenue authorities as to choice of time as it may itself deprive the assessee of opportunity to lead any evidence in his defence and destroy his right to equal and fair opportunity to defend - even if the allegation of breach of terms and conditions of exemption made against the assessee were to be treated at par with fraud, the principle of limitation would still apply. The proceedings having been initiated belatedly, after the expiry of reasonable time, the same were barred by limitation - Though the cancellation of eligibility certificate of the assessee was not expressly barred by limitation under Section 4A(3) of the Act, however, the revenue authorities having inexplicably delayed the initiation of proceedings beyond a reasonable time, the same were bad - The Commissioner ought not to have exercised his discretion to initiate the proceedings after expiry of 9 years from end of the exemption period - the question of law is answered in favour of assessee [Read less]

2019-VIL-75-KAR  | High Court VAT

CST Act, 1956 – Assessment – direction to upload declaration Forms on electronic portal – finalisation of assessment and denial of concessional rate - HELD - the Assessing Officer having directed the assessee to upload the upload the Forms - C and Form - F on electronic portal, he ought not have proceeded to conclude the assessment hurriedly - This determination of the taxable turnover vis-a-vis the statutory Forms submitted by the assessee on electronic portal goes to the root of the matter. In the circumstances, it cannot be held that no discretionary jurisdiction under Articles 226 and 227 of the Constitution of I... [Read more]

CST Act, 1956 – Assessment – direction to upload declaration Forms on electronic portal – finalisation of assessment and denial of concessional rate - HELD - the Assessing Officer having directed the assessee to upload the upload the Forms - C and Form - F on electronic portal, he ought not have proceeded to conclude the assessment hurriedly - This determination of the taxable turnover vis-a-vis the statutory Forms submitted by the assessee on electronic portal goes to the root of the matter. In the circumstances, it cannot be held that no discretionary jurisdiction under Articles 226 and 227 of the Constitution of India cannot be exercised - the assessee is entitled to concession in the rate of tax/deduction in the rate of tax/benefit of branch transfer. Hence, it is incumbent upon the Assessing Authority to consider the rectification application filed by the petitioner and take a decision in the matter – the writ petition stands allowed [Read less]

2019-VIL-72-ALH-ST  | High Court SERVICE TAX

Service Tax - Short payment of service tax – Revenue in appeal challenging Tribunal Order setting aside of levy of penalty imposed under sections 76, 77 and 78 of the Finance Act – HELD – Admittedly, the returns were filed and due taxes have been paid by the assessee. In case of delayed deposit of tax, interest has also been paid by the respondent - in view of Master Circular No. 97/8/2007 dated 23.08.2007 r/w Circular F-137/167/2006-CX.4 dated 03.10.2007, once the taxes have been paid, along with interest, the entire proceedings under the Finance Act, 1994 are concluded - questions of law is decided in favour of ass... [Read more]

Service Tax - Short payment of service tax – Revenue in appeal challenging Tribunal Order setting aside of levy of penalty imposed under sections 76, 77 and 78 of the Finance Act – HELD – Admittedly, the returns were filed and due taxes have been paid by the assessee. In case of delayed deposit of tax, interest has also been paid by the respondent - in view of Master Circular No. 97/8/2007 dated 23.08.2007 r/w Circular F-137/167/2006-CX.4 dated 03.10.2007, once the taxes have been paid, along with interest, the entire proceedings under the Finance Act, 1994 are concluded - questions of law is decided in favour of assessee and against the Revenue [Read less]

2019-VIL-115-CESTAT-CHE-ST  | CESTAT SERVICE TAX

Service Tax - Demand for non-inclusion of TDS amount while discharging service tax under reverse charge mechanism; and for non-inclusion of the expenses of air fare, accommodation service and other incidental expenses incurred for the foreign service provider - demand on GTA service – HELD - The department is demanding service tax on the gross amount charged by the contractor as well as the TDS paid by the company in relation to the contract value but not charged by the service provider. TDS in such cases is not something which is charged by the service provider. It is a cost incurred by the company by operation of law a... [Read more]

Service Tax - Demand for non-inclusion of TDS amount while discharging service tax under reverse charge mechanism; and for non-inclusion of the expenses of air fare, accommodation service and other incidental expenses incurred for the foreign service provider - demand on GTA service – HELD - The department is demanding service tax on the gross amount charged by the contractor as well as the TDS paid by the company in relation to the contract value but not charged by the service provider. TDS in such cases is not something which is charged by the service provider. It is a cost incurred by the company by operation of law and is not liable to service tax - the demand of service tax alleging that TDS has not been included in the gross value is incorrect on facts | The appellant has not been able to establish that expenses of air fare, accommodation service and other incidental expenses incurred for the foreign service provider are reimbursable expenses. When the expenses are incurred for providing the services, these are definitely includable in the value for discharging the service tax liability. The plea of the appellant on this category cannot sustain and therefore the demand is upheld | When the appellant has paid the freight charges for transportation of the goods, they are liable to discharge the service tax under GTA category as service recipient - The demand under GTA category requires no interference - the appeal is partly allowed [Read less]

2019-VIL-04-SC-CE  | Supreme Court CENTRAL EXCISE

Central Excise - Refund claim of central excise duty under Section 11B of the CEA, 1944 - whether the period of limitation of six months under 2nd proviso to Section 11B(1) shall apply where the refund of central excise duty has been claimed by the buyer and paid by the manufacturer under protest – HELD - The scheme of Section 11B makes a distinction between right of the manufacturer to claim refund from right of the buyer to claim refund treating them separate and distinct for making an application for refund exercising their right under Section 11B of the Act - In the instant case, the application was filed by the appe... [Read more]

Central Excise - Refund claim of central excise duty under Section 11B of the CEA, 1944 - whether the period of limitation of six months under 2nd proviso to Section 11B(1) shall apply where the refund of central excise duty has been claimed by the buyer and paid by the manufacturer under protest – HELD - The scheme of Section 11B makes a distinction between right of the manufacturer to claim refund from right of the buyer to claim refund treating them separate and distinct for making an application for refund exercising their right under Section 11B of the Act - In the instant case, the application was filed by the appellant as a buyer of the goods from manufacturer who paid the duty under protest, much after a period of limitation as prescribed under the mandate of law – in the case of CCE, Mumbai-II Vs Allied Photographics India Ltd, it was held that the purchaser of the goods was not entitled to claim refund of duty made under protest by the manufacturer without complying the mandate of Section 11B of the Act, 1944 - the appeals are without substance - the appeals fail and are accordingly dismissed [Read less]

2019-VIL-112-CESTAT-ALH-CE  | CESTAT CENTRAL EXCISE

Central Excise - Appellant paid the additional Customs Duty by adjusting against DEPB and availed the Cenvat credit of the said additional Customs Duty –Revenue of the view that the benefit of the additional Customs Duty is available as credit to the appellant only when the same is paid in cash and as the said duty was discharged on DEPB scrips, the appellant was not entitled to the benefit of Cenvat credit of the same – demand invoking extended period – whether the demand is barred by limitation - HELD - the invocation of longer period of limitation is primarily on the ground that the appellant did not file the duty... [Read more]

Central Excise - Appellant paid the additional Customs Duty by adjusting against DEPB and availed the Cenvat credit of the said additional Customs Duty –Revenue of the view that the benefit of the additional Customs Duty is available as credit to the appellant only when the same is paid in cash and as the said duty was discharged on DEPB scrips, the appellant was not entitled to the benefit of Cenvat credit of the same – demand invoking extended period – whether the demand is barred by limitation - HELD - the invocation of longer period of limitation is primarily on the ground that the appellant did not file the duty-paying documents along with ER-1 returns and did not stated in the said returns that the CVD was paid through DEPB - there is no reference to any column or clause in the said ER-1 which requires an assessee to disclose the above information. In the absence of any requirement to disclose in the said returns, the factum of payment of CVD through DEPB, non-disclosure, by itself cannot be made the ground for invocation of extended period - mere failure of the assessee to disclose the information, by itself cannot be held to be a ground for invocation of extended period unless such non-disclosure was on account of any mala fide. In the present case there was no legal obligation on the assessee to disclose the requisite information in the ER-1 returns, in the absence of any clause or requirement in the said reports - the mere fact that the appellant had not stated in the ER-1 returns as regards payment of duty through DEPB cannot be adopted a valid ground to justifiably invoke the extended period of limitation - there are varying different views holding the field during the relevant period and the issue is finally decided by the larger Bench, the assessee cannot be held guilty for any mala fide or mis-statement with intent to evade payment of duty- the demands having been raised beyond the normal period of limitation are barred. Accordingly the impugned order is set aside and appeal is allowed [Read less]

2019-VIL-113-CESTAT-ALH-ST  | CESTAT SERVICE TAX

Service Tax – Cenvat Credit on input service – demand on the services on account of warranty charges – demand under BAS for services rendered to bank – HELD - there is no provision in the Cenvat Credit Rules to deny credit if any service is availed outside the business premises - the assessee can avail the service outside the factory premises during the course of their business of manufacturing. Admittedly, the said services have been received by the assessee during the course of their business of manufacturing, therefore, they are entitled to avail credit on these services - the appellant did not have agreement wi... [Read more]

Service Tax – Cenvat Credit on input service – demand on the services on account of warranty charges – demand under BAS for services rendered to bank – HELD - there is no provision in the Cenvat Credit Rules to deny credit if any service is availed outside the business premises - the assessee can avail the service outside the factory premises during the course of their business of manufacturing. Admittedly, the said services have been received by the assessee during the course of their business of manufacturing, therefore, they are entitled to avail credit on these services - the appellant did not have agreement with the bank to act as their agents and they are only carrying out an executory function such as to collect forms from the customers - the assessee was not providing Business Auxiliary services to the bank and hence, no service tax is leviable - The appellant undertakes replacement of spares and render services thereon and raised invoices upon M/s. TKML towards realization of the amount attributable to the said free service rendered to the customer - the demand on the services rendered by the appellant on account of warranty charges is not sustainable in terms of Circular No.96/7/2007-ST dt.23.8.2007 - the service tax cannot be demanded from the appellant on the value of spare parts/consumables utilized during the course of provision of services in the capacity of Authorized Service Station - the credit cannot be denied to the appellant and no service tax can be demanded from the appellant, therefore, no penalty is imposable on the appellant - the impugned order is set aside and assessee appeal is allowed [Read less]

2019-VIL-111-CESTAT-ALH-ST  | CESTAT SERVICE TAX

Service Tax - the appellant has fully owned subsidiaries in foreign countries who are working as over-seas commission agents and are procuring export orders for the appellant – denial of benefit of Exemption Notification No.18/2009-ST dated on export of goods on the ground that the appellants have paid commission on export of goods procured through the wholly owned subsidiaries – HELD – The expression “In” appearing in phrase “export made by Indian partner In a company with equity participation in a overseas joint venture or wholly owned subsidiaries” has to be read as “To”, as if the exports are made by ... [Read more]

Service Tax - the appellant has fully owned subsidiaries in foreign countries who are working as over-seas commission agents and are procuring export orders for the appellant – denial of benefit of Exemption Notification No.18/2009-ST dated on export of goods on the ground that the appellants have paid commission on export of goods procured through the wholly owned subsidiaries – HELD – The expression “In” appearing in phrase “export made by Indian partner In a company with equity participation in a overseas joint venture or wholly owned subsidiaries” has to be read as “To”, as if the exports are made by an Indian partner to a foreign subsidiary company. The meaning of the said phrase is that the benefit of the exemption in respect of commission paid to the foreign buyers would not be available if the exports are made to their own overseas joint ventures or wholly owned subsidiaries. There is no reference in the said condition that to any export orders having been procured by an overseas joint ventures or wholly owned subsidiaries - the appellant has not exported the goods to its own wholly owned subsidiaries or overseas joint ventures. The appellant has paid only commission to its foreign based commission agents, who happened to be their own subsidiary company and has not made any exports to them - the legislative intent beyond the introduction of the above condition is that no exporter would take undue advantage of the exemption on overseas commission agents in respect of the exports made by them to their own companies inasmuch as the export to their own companies would not require the services of any commission agents etc. In any case without going to the legislative intent, the meaning of the expression used in the said condition leads to the inevitable conclusion that the denial of the exemption is only in those cases where the exports stand made by the Indian exporter to its own joint ventures or wholly owned subsidiaries located in a foreign country. As such the benefit of the exemption Notification No.18/2009 is available to the appellant and the demand of Service Tax is unsustainable - the impugned order is set aside and appeal is allowed [Read less]

2019-VIL-70-ALH  | High Court SGST

GST - statutory competence of municipality to levy, impose or collect Advertisement Tax when the bye-laws by virtue of which the municipalities intended to levy and collect tax on advertisement were framed on 12.1.2017, however, published on 19.8.2017 i.e. after the U.P. Goods and Service Tax Act, 2017 came into being – HELD - after the omission of Entry-55 of the List-II of the Seventh Schedule to the Constitution of India having been omitted by the 101 Amendment Act, 2016 with effect from 16.9.2016, even the State Government did not have the legislative competence to levy or collect taxes on advertisement which was ear... [Read more]

GST - statutory competence of municipality to levy, impose or collect Advertisement Tax when the bye-laws by virtue of which the municipalities intended to levy and collect tax on advertisement were framed on 12.1.2017, however, published on 19.8.2017 i.e. after the U.P. Goods and Service Tax Act, 2017 came into being – HELD - after the omission of Entry-55 of the List-II of the Seventh Schedule to the Constitution of India having been omitted by the 101 Amendment Act, 2016 with effect from 16.9.2016, even the State Government did not have the legislative competence to levy or collect taxes on advertisement which was earlier available under Entry-55, this coupled with the fact that the power of taxation vested with the municipalities having been omitted by virtue of Section 173 of the UPGST Act, 2017, the municipality did not even have the statutory competence to levy, impose or collect Advertisement Tax - the levy and collection of the Advertisement Tax under the provisions of Nagar Palika Parishad, Hathras (Vigyapan Kar Ka Nirdharan Aur Wasuli Viniyaman) Upvidhi, 2015 is without legislative or statutory competence and is ultra-vires under Article 265 of the Constitution of India, U.P. Municipalities Act, 1916 and UPGST Act, 2017 - when the State was denuded of the power to make laws in respect of tax on advertisement obviously the municipalities also were divested of power to impose any tax on advertisement - the impugned bye-laws are also ultra vires to Article 265 and List II of Seventh Schedule of Constitution of India - the levy and collection of Advertisement Tax as ultra-vires, the amounts so collected from the petitioner are liable to be refunded – the writ petition is allowed [Read less]

2019-VIL-48-AAR  | Advance Ruling Authority SGST

GST – Tamil Nadu AAR - Whether liaison office is liable to pay GST - Whether a liaison office is required to be registered under GST Act - Whether the Activities of a liaison office amount to supply of services – HELD - the applicant/ liaison office is working as per the terms and conditions stipulated by RBI and the reimbursement of expenses and salary of employees is paid by Holding company to the liaison office. No consideration for any activity is being charged by the liaison office and the liaison office does not have any business activities of its own as specified by RBI conditions - The liaison activities being ... [Read more]

GST – Tamil Nadu AAR - Whether liaison office is liable to pay GST - Whether a liaison office is required to be registered under GST Act - Whether the Activities of a liaison office amount to supply of services – HELD - the applicant/ liaison office is working as per the terms and conditions stipulated by RBI and the reimbursement of expenses and salary of employees is paid by Holding company to the liaison office. No consideration for any activity is being charged by the liaison office and the liaison office does not have any business activities of its own as specified by RBI conditions - The liaison activities being undertaken by the applicant when strictly in line with condition specified by RBI permission letter do not amount to supply under CGST and SGST Act - the Applicant is not liable to pay CGST, SGST or IGST, as applicable - the Applicant is not required to get itself Registered under GST for the liaison activities [Read less]

2019-VIL-06-AAAR  | Advance Ruling Authority SGST

GST – Odisha AAAR - Whether the services provided by the applicant to the Government and government aided higher secondary schools under the ICT Project, are covered under the scope of Entry No. 72 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 and exempt from GST – Condonation of delay of 5 days in filing the appeal – HELD - Considering the reasons put forth by the Appellant for delay in filing the appeal, which are satisfactory and reasonable, the prayer for condonation of delay in filing appeal is allowed – HELD - the Appellant is providing services to Odisha Knowledge Corporation Limited, which... [Read more]

GST – Odisha AAAR - Whether the services provided by the applicant to the Government and government aided higher secondary schools under the ICT Project, are covered under the scope of Entry No. 72 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 and exempt from GST – Condonation of delay of 5 days in filing the appeal – HELD - Considering the reasons put forth by the Appellant for delay in filing the appeal, which are satisfactory and reasonable, the prayer for condonation of delay in filing appeal is allowed – HELD - the Appellant is providing services to Odisha Knowledge Corporation Limited, which is a body corporate. The Appellant has failed to produce any documentary evidence as to how the provision of service to OKCL qualifies to be a provision of service to the Central Government, State Government or Union Territory Administration. The argument put forth by the Appellant that they are the implementing agency on behalf of the Government is not tenable, as they are providing services to Government - Article 300 of the Constitution of India provides that State can sue or be sued as juristic personality in the name of Union of India and Government of a State. Article 299 of the Constitution of India does not apply to OKCL. Therefore, OKCL is neither the State Government nor a part of the State Government of Odisha or the Central Government and therefore the supplies by the applicant is OKCL could not be held to be a supply to Government - the Appellant have failed to meet the primary requirement of the conditions of the notification i.e., the supply has to be a supply of Service provided to the Central Government, State Government or Union Territory Administration - the impugned Order passed by the Authority for Advance Ruling, Odisha is upheld and appeal is dismissed [Read less]

2019-VIL-07-AAAR  | Advance Ruling Authority SGST

GST – Odisha AAAR – Input Tax Credit - The ruling of the AAR that inward supplies received by the assessee by way of management, repair, renovation, alteration or maintenance service or goods received for furnishing the residential colon shall not qualify for input tax credit is found to be correct. Expenditure incurred by the assessee towards construction, reconstruction, renovation, additions or alterations or repairs to the residential colony is not eligible for input tax benefit if the said expenditure has been capitalized. Moreover, provision of housing to its employees is nothing but a perquisite. Therefore, sinc... [Read more]

GST – Odisha AAAR – Input Tax Credit - The ruling of the AAR that inward supplies received by the assessee by way of management, repair, renovation, alteration or maintenance service or goods received for furnishing the residential colon shall not qualify for input tax credit is found to be correct. Expenditure incurred by the assessee towards construction, reconstruction, renovation, additions or alterations or repairs to the residential colony is not eligible for input tax benefit if the said expenditure has been capitalized. Moreover, provision of housing to its employees is nothing but a perquisite. Therefore, since the perquisites are outside the scope of GST, input tax credit shall not be available to the assessee in respect of tax paid on perquisite - the ruling of the AAR that the assessee is entitled to input tax credit of the tax paid on inward supply of input and input services for maintenance of guest house transit house and trainee hostel is found to be not correct. The provision of residential accommodation through transit house / trainee hostel is also a perquisite in favour of the employees and hence tax paid on inward supplies of goods and services for the transit house/trainee hostel cannot be allowed the benefit of input tax credit - The ruling of the AAR that services availed in relation to plantation and gardening within the plant area including mining area and the premises of other business establishments will qualify for input tax credit is found to be correct. Such activities are integral to the business activity of the assessee and hence can be treated as activities in course or furtherance of its business. To this extent, the appeal filed by Revenue is not sustainable and hence liable to be rejected - the appeal filed by assessee fails, whereas the appeal filed by the Revenue succeeds partially [Read less]

2019-VIL-73-KER  | High Court VAT

Kerala Value Added Tax Act, 2003 - Detention of goods at check post and notice to the driver on the finding that transport not being covered with proper documents – appellant-transporter aggrieved by levy of penalty and submits that appellant is a transporter, who is not liable to be assessed for reason of the consignee being available for such assessment – HELD - nothing is produced by the appellant as to who is the consignee and whether the consignee was a registered dealer within the State of Kerala – Admittedly, the goods were transported to be sold within the State of Kerala. The goods were also released to the ... [Read more]

Kerala Value Added Tax Act, 2003 - Detention of goods at check post and notice to the driver on the finding that transport not being covered with proper documents – appellant-transporter aggrieved by levy of penalty and submits that appellant is a transporter, who is not liable to be assessed for reason of the consignee being available for such assessment – HELD - nothing is produced by the appellant as to who is the consignee and whether the consignee was a registered dealer within the State of Kerala – Admittedly, the goods were transported to be sold within the State of Kerala. The goods were also released to the transporter and since the same has not been taken back outside the State through the check post, there is a presumption that it has been sold within the State of Kerala. The release having been effected by the transporter, necessarily the transporter is liable to sales tax, leviable within the State of Kerala - No reason to interfere with the judgment of the learned Single Judge - The appeal stands dismissed [Read less]

2019-VIL-74-MAD-CU  | High Court Case CUSTOMS

Customs - writ petition seeking restraining the respondents from collecting anti-dumping duty on the import of Soda Ash – HELD - the respondents cannot insist upon the petitioner to protect the interest of the Revenue towards the anti-dumping duty in the absence of any statutory right available as on today for levying & collecting such duty, such right has already ceased to exist on 02.07.2018 - It is an admitted case of the respondents that as on date, no notification is in force empowering the collection of ADD. On the other hand, it is a matter of fact such power conferred on the authorities through issuance of releva... [Read more]

Customs - writ petition seeking restraining the respondents from collecting anti-dumping duty on the import of Soda Ash – HELD - the respondents cannot insist upon the petitioner to protect the interest of the Revenue towards the anti-dumping duty in the absence of any statutory right available as on today for levying & collecting such duty, such right has already ceased to exist on 02.07.2018 - It is an admitted case of the respondents that as on date, no notification is in force empowering the collection of ADD. On the other hand, it is a matter of fact such power conferred on the authorities through issuance of relevant notification ceased to exist after 02.07.2018 – the writ petition is allowed [Read less]

2019-VIL-71-BOM  | High Court VAT

Daman and Diu VAT Regulation, 2005 - Petition challenging jurisdiction of Commissioner of VAT, Daman, dismissing the Second Appeal filed by the petitioner thereby upholding the validity of the assessment order and imposition of penalty under Section 10(d) r/w Section 10­A of the CST Act, 1956 – petitioner ground that Commissioner of VAT, Daman had no jurisdiction or authority to entertain the Second Appeal and it is only the Administrative Tribunal which would have jurisdiction to entertain the Appeal – HELD - if proviso to Section 74 of Daman and Diu Value Added Tax Regulation, 2005 restricts the number of appeals, n... [Read more]

Daman and Diu VAT Regulation, 2005 - Petition challenging jurisdiction of Commissioner of VAT, Daman, dismissing the Second Appeal filed by the petitioner thereby upholding the validity of the assessment order and imposition of penalty under Section 10(d) r/w Section 10­A of the CST Act, 1956 – petitioner ground that Commissioner of VAT, Daman had no jurisdiction or authority to entertain the Second Appeal and it is only the Administrative Tribunal which would have jurisdiction to entertain the Appeal – HELD - if proviso to Section 74 of Daman and Diu Value Added Tax Regulation, 2005 restricts the number of appeals, no further appeal against an order passed in appeal can lie to the Commissioner under clause (b) of Section 74(1) as a second appeal is not expressly provided in the Regulation. On the contrary, Section 74 has restricted the right of appeal to only one. In this view of the matter, the Commissioner, though in­charge of the administration exercising control over the officers mentioned in clause (a) of Section 74(1), cannot confer authority on himself to hear an appeal against orders passed by his sub­ordinate authorities in exercise of their appellate powers - the Commissioner has no jurisdiction to hear and decide the second appeal. The impugned order passed by the Commissioner to be set aside for lack of jurisdiction - It is well settled that a law does not create a vacuum nor does it leave anything to guesswork but always ensures that until a new regime is established, the earlier would continue to operate unless otherwise is provided by the new or re-enacted law - the Appeal filed by the petitioner against the order the passed by the Deputy Commissioner, VAT Department, Daman will have to be heard and disposed of by the Administrative Tribunal - the writ petition is allowed [Read less]

2019-VIL-49-AAR  | Advance Ruling Authority SGST

M/s ARISTOPLAST PRODUCTS PVT LTD: 11.12.2018 - GST – Daman & Diu AAR - the product Plastics Broom-Sticks is classifiable under HSN Code 96032100 as "Others" and the product Plastics Broom-Stick is eligible for concessional rate of tax vide given to the products falling under this head vide Notification No. 1/2017-CT(rate) dtd 28.06.2017 i.e. 5% GST - the product "Portable Sprayers" is classifiable under the HSN Code 84244100 and liable to GST rate of 18%

2019-VIL-109-CESTAT-AHM-CE  | CESTAT CENTRAL EXCISE

Central Excise - Denial of Cenvat credit on Erection Commissioning and Installation services utilized in respect of construction of new shed in their factory premises – HELD - the original adjudicating authority as well as the first appellate authority have relied on this exclusion clause for denying the credit on the services used by the appellant. It is not disputed that the services received by the appellant is classified as “Erection Commissioning and Installation service” – the exclusion clause ‘A’ in Rule 2(l) of the Cenvat Credit Rules, does not cover the service in the nature of “Erection Commissionin... [Read more]

Central Excise - Denial of Cenvat credit on Erection Commissioning and Installation services utilized in respect of construction of new shed in their factory premises – HELD - the original adjudicating authority as well as the first appellate authority have relied on this exclusion clause for denying the credit on the services used by the appellant. It is not disputed that the services received by the appellant is classified as “Erection Commissioning and Installation service” – the exclusion clause ‘A’ in Rule 2(l) of the Cenvat Credit Rules, does not cover the service in the nature of “Erection Commissioning and Installation service” - no merit in the impugned order and the same is set-aside and the appeal is allowed [Read less]

2019-VIL-110-CESTAT-BLR-CE  | CESTAT CENTRAL EXCISE

Central Excise – Cenvat Credit - Optional input – Credit denied on HDPE pipes on the ground that they were only ‘optional’ requirement and are not essential for the functioning of the goods manufactured – HELD - the HDPE pipes are supplied along with the FO integrated system and the excise duty is also paid on the same. Further, in the absence of HDPE pipes, the final product of the appellant is not functional - the definition of input includes accessories of the final product cleared along with the final product, and the HDPE pipes are accessories of the final products and is always cleared along with the final ... [Read more]

Central Excise – Cenvat Credit - Optional input – Credit denied on HDPE pipes on the ground that they were only ‘optional’ requirement and are not essential for the functioning of the goods manufactured – HELD - the HDPE pipes are supplied along with the FO integrated system and the excise duty is also paid on the same. Further, in the absence of HDPE pipes, the final product of the appellant is not functional - the definition of input includes accessories of the final product cleared along with the final product, and the HDPE pipes are accessories of the final products and is always cleared along with the final product as is reflected in the invoices produced by the appellant - the impugned orders are set aside by allowing both the appeals of the appellant [Read less]

2019-VIL-108-CESTAT-MUM-ST  | CESTAT SERVICE TAX

Service Tax - Whether the transaction between Deposit Insurance and Credit Guarantee Corporation (DICGC) and appellants-Banks falls within the definition of input service - whether the appellants are eligible to avail CENVAT Credit of the amount of Service Tax paid to DICGC for insuring the deposits of the customers involving the period after 01.4.2012 - statutory obligation in carrying out the banking business – HELD - The activity of taking the deposits by Bank/ Financial Institution, is not covered by the term “service” as defined by section 65B(44) of the Finance Act, 1994 - the amount of service tax paid on the ... [Read more]

Service Tax - Whether the transaction between Deposit Insurance and Credit Guarantee Corporation (DICGC) and appellants-Banks falls within the definition of input service - whether the appellants are eligible to avail CENVAT Credit of the amount of Service Tax paid to DICGC for insuring the deposits of the customers involving the period after 01.4.2012 - statutory obligation in carrying out the banking business – HELD - The activity of taking the deposits by Bank/ Financial Institution, is not covered by the term “service” as defined by section 65B(44) of the Finance Act, 1994 - the amount of service tax paid on the insurance premium relating to the deposits of customer to DICGC by the Appellant Banks cannot be considered as an “input service” accordingly, credit of the said amount is not admissible to the Appellants. The amount of 50% of the available credit in a month, required to be paid under Rule 6(3B) of CCR, 2004 by the Appellants, cannot include the inadmissible credit of service tax paid on insurance premium paid to DICGC. Since the issue involved is a pure question of interpretation of law, no penalty is imposable on the appellants - the impugned orders are modified by setting aside penalties imposed and appeals are partly allowed to that extent [Read less]

2019-VIL-69-GUJ  | High Court VAT

Central Sales Tax Act, 1956 – petitioner aggrieved by non-issuance of outstanding C-Form declarations for the outstanding dues under the Valued Added Tax Act/ Entry Tax Act and also on ground that the registration certificate of the petitioner is stands cancelled – HELD - if the first petitioner meets with the requirements of section 8 read with rule 12 of the rules, it is entitled to be issued Form-C in respect of the inter-State purchases made by it. Besides, even if there were outstanding dues under the Central Sales Tax Act, it would not be permissible for the respondents to refuse to issue Form-Cs, if the requirem... [Read more]

Central Sales Tax Act, 1956 – petitioner aggrieved by non-issuance of outstanding C-Form declarations for the outstanding dues under the Valued Added Tax Act/ Entry Tax Act and also on ground that the registration certificate of the petitioner is stands cancelled – HELD - if the first petitioner meets with the requirements of section 8 read with rule 12 of the rules, it is entitled to be issued Form-C in respect of the inter-State purchases made by it. Besides, even if there were outstanding dues under the Central Sales Tax Act, it would not be permissible for the respondents to refuse to issue Form-Cs, if the requirements of section 8 of the Act are satisfied - If under the statute the petitioner is entitled to issuance of C-Form in respect of the purchases made by it in accordance with law while its registration was in force, it is incumbent upon the respondents to issue C-Forms to it. If it is not possible to issue C-Forms under the computerized system, such C-Form declarations may be issued manually, but the respondents cannot refuse to perform their obligation under the statute and deny C-Form declarations to the petitioner - The respondents are directed to issue the outstanding C-Form declarations under the Central Sales Tax Act to the petitioner in respect of the purchases made by it during the period when it was registered – answered in favour of assessee [Read less]

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