More Judgements

2022-VIL-149-AAR  | Advance Ruling Authority SGST

GST – Maharashtra AAR - Renting of Immovable property service - Applicant is a Special Purpose Vehicle formed under cluster development scheme of Government of India, headed by the Commissioner of Pimpri Chinchwad Municipal Corporation and aims to form clusters of enterprises having similar activities - The applicant provides Renting of immovable Property Services to Pimpri Chinchwad Smart City Limited (PCSCL) and also collects utility charges from PCSCL as Reimbursement – whether PCSCL-applicant is covered under the definition of ‘Government Entity’ / Governmental Authority” as given in Notification No. 32/2017 ... [Read more]

GST – Maharashtra AAR - Renting of Immovable property service - Applicant is a Special Purpose Vehicle formed under cluster development scheme of Government of India, headed by the Commissioner of Pimpri Chinchwad Municipal Corporation and aims to form clusters of enterprises having similar activities - The applicant provides Renting of immovable Property Services to Pimpri Chinchwad Smart City Limited (PCSCL) and also collects utility charges from PCSCL as Reimbursement – whether PCSCL-applicant is covered under the definition of ‘Government Entity’ / Governmental Authority” as given in Notification No. 32/2017 dated 13.10.2017 – HELD - PCSCL is constituted and established by the State Government of Maharashtra to carry out the function entrusted to it by the State Government i.e. to carry out the function of implementing Smart Cities Project of the Government of India, in the State of Maharashtra and therefore PCSCL is clearly covered under the definition of ‘Government Entity’ as can be seen from the definition of a ‘Government Entity’ - To fulfill the vision of Smart Cities Mission of the Government of India, Smart Cities are coming up in various States and the Pimpri Chinchwad Smart City is one such project for which PCSCL has been formed with the support of the Government of Maharashtra - However, it is seen that even though the pure service of renting of immovable property services is provided to PCSCL, a Government Entity, the said service, per se, cannot be considered as an activity in relation to any function entrusted to a Municipality under Article 243W of the Constitution, or entrusted to a Panchayat under Article 243 G of the Constitution because the activity of renting of immovable property does not find mention in either Article 243 G or Article 243 W of the Constitution - Renting of immovable Property Services i.e. ‘Pure Service’ provided by the applicant to PCSCL, a Government Entity is not exempt under the relevant provisions of Notification No. 12/2017 - CTR dated 28.06.2017 as amended and the applicant liable to discharge GST @ 18% - PCSCL is liable to deduct TDS in the subject case, in respect of payments made to the applicant against receipt of renting of immovable property services [Read less]

2022-VIL-148-AAR  | Advance Ruling Authority SGST

Maharashtra AAR - Sections 102 & 104 of the CGST Act - Rectification of Advance Ruling decision – Renting of vehicles to State Transport Undertakings (STUs) and Local Authorities - Show cause for withdrawal of AAR decision on ground of suppression of material facts - whether not pointing out the relevant circular during the course of hearing or in the written submissions amounts to suppression of material fact – HELD - The final hearing in respect of the application for Advance Ruling of the applicant was concluded on 7/12/2021 - During the course of hearing, the Circular no. 164/20/2021-GST dated 6/10/2021 regarding t... [Read more]

Maharashtra AAR - Sections 102 & 104 of the CGST Act - Rectification of Advance Ruling decision – Renting of vehicles to State Transport Undertakings (STUs) and Local Authorities - Show cause for withdrawal of AAR decision on ground of suppression of material facts - whether not pointing out the relevant circular during the course of hearing or in the written submissions amounts to suppression of material fact – HELD - The final hearing in respect of the application for Advance Ruling of the applicant was concluded on 7/12/2021 - During the course of hearing, the Circular no. 164/20/2021-GST dated 6/10/2021 regarding taxability of the service of renting of vehicles to State Transport Undertakings (STUs) and Local Authorities, was not pointed out by the applicant - the decision in the present case is delivered without considering the said CBIC circular - It is, therefore, necessary to rectify the decision given in the present case, particularly in the light of the provisions in the said Circular as non-consideration of material provisions is a mistake of law - Not pointing out the relevant circular during the course of hearing or in the written submissions filed earlier is also a suppression of a material event - there is necessary application of Sections 102 and 104 of the CGST Act in the present case - The arguments were made by the AR only on non-applicability of Sections 102 and 104 are not acceptable in view of the relevant GST provisions - Authority directs the applicant to follow the provisions of the circular which is of prior date than the date of the decision of this Authority in the earlier ARA order – accordingly, it is held that the services provided by the applicant to NMMT under the Agreement, by way of supplying, operating and maintaining air-conditioned electrically operated buses are exempt supply - Applicant shall not be eligible to avail the input tax credit of tax paid on the procurement of input supplies used in supplying services to NMMT – answers to the questions modified accordingly [Read less]

High Court Judgement  | High Court SGST

Rule 138 (10) applies in the present case and in particular, second proviso thereof to conceivable situation where e-way bills can either be amended or reissued for the self-same consignment, but bonafide reason for such change must be justified.

2022-VIL-359-J&K-CE  | High Court CENTRAL EXCISE

Revenue is not entitled to make recovery of refunded amount on the basis of the subsequent decision of the Apex Court. Permitting such action will open pandora box and lis between the parties, which had attained finality, will never come to an end.

2022-VIL-362-CESTAT-HYD-CE  | CESTAT CENTRAL EXCISE

Central Excise – Section 35FF of Central Excise Act, 1944 – Refund of pre-deposit amount – Rejection of claim for interest – Tribunal allowed appeals filed by Appellant – Appellant sought refund of pre-deposit amount deposited before Tribunal – Deputy Commissioner directed for refund of pre-deposit amount, but rejected claim for interest for reason that Section 35FF of the Act as it stood prior to 6-8-2014 would be applicable and not the amended provisions – Commissioner (Appeals) dismissed appeals filed by Appellant – Whether Appellant would be entitled to interest on pre-deposit amount in terms of amended... [Read more]

Central Excise – Section 35FF of Central Excise Act, 1944 – Refund of pre-deposit amount – Rejection of claim for interest – Tribunal allowed appeals filed by Appellant – Appellant sought refund of pre-deposit amount deposited before Tribunal – Deputy Commissioner directed for refund of pre-deposit amount, but rejected claim for interest for reason that Section 35FF of the Act as it stood prior to 6-8-2014 would be applicable and not the amended provisions – Commissioner (Appeals) dismissed appeals filed by Appellant – Whether Appellant would be entitled to interest on pre-deposit amount in terms of amended provisions of Section 35FF of the Act – HELD – Pre-deposit amount was deposited by Appellant prior to date on which Section 35FF of the Act was amended – Section 35FF of the Act, as it stood prior to amendment, provides for payment of interest only if pre-deposit amount is not refunded within a period of three months from date of communication of order to adjudicating authority – Refund amount was sanctioned within three months from date of communication of order of Tribunal to adjudicating authority – Provisions of Section 35FF of the Centra Excise Act, 1944 as it stood prior to its amendment on 6-8-2014 would be applicable – Appellant would not be entitled to claim interest in terms of amended provisions of Section 35FF of the Act – Impugned order passed by Commissioner (Appeals) affirmed and appeal is dismissed [Read less]

2022-VIL-360-TRI  | High Court SGST

Once the corrected E-way bill is produced and the apparent error having been corrected there is no justification in either initiating the proceedings against the petitioner or in continuing with the seizure of the vehicle along with goods.

2022-VIL-356-CESTAT-CHE-ST  | CESTAT SERVICE TAX

Service Tax - Admissibility of Cenvat credit on the service tax paid on freight charges for the outward transportation of finished products upto the buyers’ premises as well as the dealers - department was of the view that in terms of definition of “input service”, as it stood then, will not apply to the outward transportation of goods beyond the place of removal i.e. up to the premises of the customer / dealers and that the credit is not eligible – disallowance of credit and recovery of the same along with interest and imposition of penalty – HELD - prior to 1.4.2008, in sub-clause (ii) any service used by the ... [Read more]

Service Tax - Admissibility of Cenvat credit on the service tax paid on freight charges for the outward transportation of finished products upto the buyers’ premises as well as the dealers - department was of the view that in terms of definition of “input service”, as it stood then, will not apply to the outward transportation of goods beyond the place of removal i.e. up to the premises of the customer / dealers and that the credit is not eligible – disallowance of credit and recovery of the same along with interest and imposition of penalty – HELD - prior to 1.4.2008, in sub-clause (ii) any service used by the manufacturer whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal, will fall within the definition of input service - After 1.4.2008, the definition has been amended so that any service used for clearance of final products upto the place of removal will fall within the definition of input service - all these appeals the period of dispute is prior to 1.4.2008 – the Supreme Court in the case of M/s. Vasavadatta Cements Ltd. had considered the very same issue and held that the expression used in the definition is “from the place of removal” and it has to be from the place of removal upto a certain point - Therefore, tax paid on the transportation of the final products from the place of removal upto the that point whether it is depot or the customers’ premises has to be allowed - It was further held that the amendment carried out in the definition with effect from 1.4.2008 substituted the words “from the place of removal” with “upto the place of removal” - Thus, from 1.4.2008, CENVAT credit would be available upto the place of removal – Cenvat Credit on outward transportation from the place of removal upto the buyers’ premises / dealers for period upto 31.03.2008 is eligible to the appellant - impugned orders are set aside and appeals are allowed [Read less]

2022-VIL-354-DEL  | High Court SGST

GST - Rule 142(1A) - pre-show cause notice consultation mandatory or directory – HELD - with effect from 15.10.2020 i.e., after the impugned show cause notice was issued, Rule 142(1A) of the CGST Rules has undergone a change, inasmuch as the word “shall” has been replaced with “may” - As to what would be the impact of the amendment need not be considered in this case, as the show cause notice was issued prior to 15.10.2020 - having regard to the position which obtained prior to 15.10.2020, pre-show cause notice consultation was mandatory under the unamended Rule 142(1A) of the Rules - argument advanced by revenue... [Read more]

GST - Rule 142(1A) - pre-show cause notice consultation mandatory or directory – HELD - with effect from 15.10.2020 i.e., after the impugned show cause notice was issued, Rule 142(1A) of the CGST Rules has undergone a change, inasmuch as the word “shall” has been replaced with “may” - As to what would be the impact of the amendment need not be considered in this case, as the show cause notice was issued prior to 15.10.2020 - having regard to the position which obtained prior to 15.10.2020, pre-show cause notice consultation was mandatory under the unamended Rule 142(1A) of the Rules - argument advanced by revenue that because the authorised signatory of the petitioner had made a voluntary statement the requirement of issuing a pre-show cause consultation notice stood satisfied, is untenable - A voluntary statement cannot substitute a statutory notice, which is contemplated under Rule 142(1A) of the 2017 Rules - The impugned show cause notice dated 21.05.2020 is set aside - the prayer made in the writ petition is allowed [Read less]

2022-VIL-353-DEL  | High Court SGST

GST - petitioner exercised the option available under Section 16(3)(b) of the IGST Act which allowed the petitioner to pay IGST and then claim the refund - inadvertently, in the shipping bills filed qua the subject goods, petitioner mentioned the wrong sub-serial number i.e., 8455A, instead of 8455B – rejection of refund of IGST on the ground that the rate of duty drawback qua the subject goods exported by the petitioner under column A was higher – interest on delayed refund - HELD – the issue raised in the petition is no longer res integra, and is covered in favour of assessee by various judgments passed by this Cou... [Read more]

GST - petitioner exercised the option available under Section 16(3)(b) of the IGST Act which allowed the petitioner to pay IGST and then claim the refund - inadvertently, in the shipping bills filed qua the subject goods, petitioner mentioned the wrong sub-serial number i.e., 8455A, instead of 8455B – rejection of refund of IGST on the ground that the rate of duty drawback qua the subject goods exported by the petitioner under column A was higher – interest on delayed refund - HELD – the issue raised in the petition is no longer res integra, and is covered in favour of assessee by various judgments passed by this Court as well as by the other High Courts – the petitioner is entitled to seek refund - further, a separate application for refund was not required to be filed as the shipping bills would operate as a refund application as envisaged under Section 54 of the CGST Act read with Section 16 of the IGST Act, as also Rule 96(1) of the CGST Rules – regarding entitlement of interest, it is quite evident that once the petitioner had taken steps to move the Court and notice was issued in the writ petition, the respondents were forewarned that statutory interest would kick-in - Therefore, in the given facts, interest should accrue to the petitioner at the statutory rate - The writ petition is disposed of [Read less]

2022-VIL-361-CESTAT-CHE-CE  | CESTAT CENTRAL EXCISE

Central Excise – Rule 25 of Central Excise Rules, 2002 – Manufacture of products – Domestic Tariff Area sales – Demand of differential excise duty – Appellants are engaged in manufacture of precision optical instruments and their components, assemblies and sub-assemblies – Appellants effected clearances of their final products for exports as well as DTA sales within India in terms of paragraph 6.8 of Foreign Trade Policy for year 2009-2014 – Appellants were served with show cause notices proposing to demand differential excise duty upon denying benefit of Notification No.23/2003 on ground that goods sold to D... [Read more]

Central Excise – Rule 25 of Central Excise Rules, 2002 – Manufacture of products – Domestic Tariff Area sales – Demand of differential excise duty – Appellants are engaged in manufacture of precision optical instruments and their components, assemblies and sub-assemblies – Appellants effected clearances of their final products for exports as well as DTA sales within India in terms of paragraph 6.8 of Foreign Trade Policy for year 2009-2014 – Appellants were served with show cause notices proposing to demand differential excise duty upon denying benefit of Notification No.23/2003 on ground that goods sold to DTA are not ‘similar’ to goods exported by Appellant – Adjudicating authority confirmed duty under Section 11A of the Act and imposed penalty under Rule 25 of the Rules – Whether goods sold by Appellant in DTA are ‘similar’ to goods exported by Appellant – HELD – Benefit of Notification is available when goods sold in DTA are in accordance with Para 6.8 of Exim Policy and when such goods are similar to goods exported – DTA clearances are governed by Para 6.8 of Foreign Trade Policy – Appellants have obtained permission from Development Commissioner (DC) for making DTA clearances – When Appellants have been given permission to clear goods in DTA by DC, department cannot vaguely allege that they are not similar goods – Appellants effected sale of manufactured goods in DTA in accordance with Paragraph 6.8(a) of Foreign Trade Policy – Appellant had furnished a Chartered Engineer certificate certifying that goods are similar and fall within category of precision optical components – Certificate issued by a technical expert in relevant field has to be given due credence – Allegation raised in SCN that goods are not “similar goods” is without any basis – Goods sold by Appellant in DTA are ‘similar’ to goods exported by Appellant – Demand of differential excise duty cannot sustain and set aside – assessee appeal is allowed [Read less]

2022-VIL-32-SC-ST  | Supreme Court SERVICE TAX

Service Tax – Classification of activity involving door-to-door delivery - GTA Service or Courier Agency Service – Tribunal held that the rendering of 'transportation of goods by road service' cannot be bereft of the presence of the driver and would, in circumstances of door-to-door delivery, transform such activity to that of 'courier agency service' - Revenue in appeal against Tribunal order | SC - no interference is called for – Revenue appeal is dismissed

2022-VIL-359-CESTAT-MUM-ST  | CESTAT SERVICE TAX

Service Tax – Classification - Construction and installation of SPM (Single Point Mooring) system – eligibility to exemption under Notification No. 25/2007-ST - assessee categorised activity of construction and installation of SPM system under the head CICS as per Section 65(25)(b)(a) – Revenue of the view that such classification is not appropriate and assessee has wrongly claimed the exemption and liable to pay service tax under the category of ECIS - with respect to services received through sub-contract demand of tax raised under RCM - Revenue appeal against dropping of demand of service tax on the work of instal... [Read more]

Service Tax – Classification - Construction and installation of SPM (Single Point Mooring) system – eligibility to exemption under Notification No. 25/2007-ST - assessee categorised activity of construction and installation of SPM system under the head CICS as per Section 65(25)(b)(a) – Revenue of the view that such classification is not appropriate and assessee has wrongly claimed the exemption and liable to pay service tax under the category of ECIS - with respect to services received through sub-contract demand of tax raised under RCM - Revenue appeal against dropping of demand of service tax on the work of installation of SPM system, on the ground that the same is classifiable under ECIS – assessee appeal against confirmation of service tax including the value of free issue of materials and demand of interest on the cenvat credit alleged to be wrongly utilized – HELD – with the advancement of the technology the SPM system has been developed so as to enable the large / bulk tankers to moor or anchor in high seas and with the help of SPM system, loading or unloading the cargo which comes to the port through pipelines - the SPM system are part of the port or an extension of the port - as the work with RPTL involves supply of material by the assessee as well as labour and expertise, it is a composite contract and classifiable under the head ‘Works Contract Service’ or at best under ‘CICS’ prior to 01.06.2007 - Accordingly, the assessee is not liable to pay any service tax prior to 01.06.2007 – further, the assessee is entitled to exemption as they have provided composite service to RPTL with respect to SPM system, which is a port or part of the port - As main activity of construction of Port is exempt, the services received from the sub-contractor of the assessee for construction of port, under the head ‘Site formation and clearance, excavation and earthmoving and demolition services’, ECIS or any other head is also exempt in terms of Notification No. 16 or 17/2005-ST read with Notification No. 25/2007-ST - the appeal filed by the Revenue is dismissed and the impugned order is upheld - Whether the appellant is liable to pay interest and penalty on account of alleged excess utilisation of cenvat credit accrued at a later date on which appropriate interest has been paid by the appellant – HELD - demand of interest on alleged excess utilisation of cenvat credit amounts to double demand of interest, as the appellant has already deposited interest on the delayed payment of tax at the applicable rate under Section 75 of the Act. Thus, the second demand of interest is in the nature of double jeopardy, which is not tenable. Accordingly, this ground of assessee appeal is allowed by setting aside the demand of both tax and interest - Whether the appellant is liable to pay service tax, interest and penalty when they have not included value of free supplies made by their customers for provision of services by the appellant – HELD - the issue in favour of the appellant-assessee following the ruling of the Hon’ble Supreme Court in the case of Bhayana Builders [Read less]

2022-VIL-147-AAR  | Advance Ruling Authority SGST

GST – Karnataka AAR - Commercial training and coaching services - Classification of activity of providing training to the trainees on fire prevention – HELD – the applicant has not furnished any information whether they are a training partner approved by the National Skill Development Corporation or the Sector Skill Council and hence the activity of providing training to the trainees on fire prevention is not covered under entry No. 69 of Notification No. 12/2017-CT (Rate) - Since the applicant is providing training to the trainees on fire prevention, the same is covered under SAC 999293 and is liable to 18% GST as p... [Read more]

GST – Karnataka AAR - Commercial training and coaching services - Classification of activity of providing training to the trainees on fire prevention – HELD – the applicant has not furnished any information whether they are a training partner approved by the National Skill Development Corporation or the Sector Skill Council and hence the activity of providing training to the trainees on fire prevention is not covered under entry No. 69 of Notification No. 12/2017-CT (Rate) - Since the applicant is providing training to the trainees on fire prevention, the same is covered under SAC 999293 and is liable to 18% GST as per Serial No.30 of the Notification No. 11/2017-Central Tax (Rate) dated 28th June, 2017, as amended [Read less]

2022-VIL-357-HP-CE  | High Court CENTRAL EXCISE

Central Excise – Activity of blending of various mineral oils, Manufacture – Demand of duty – Appellants are engaged in activity of blending of various mineral oils and selling same to various industrial consumers – Department issued demand notice to Appellants by treating aforesaid activities as manufacturing process – Appellate authority dismissed appeal filed by Appellant – Whether Appellant is carrying manufacturing process or not – HELD - Two oils are used for manufacturing the produce – Oils are mixed with electric motor and by mixing the oils, viscosity is reduced – Final product is used as industr... [Read more]

Central Excise – Activity of blending of various mineral oils, Manufacture – Demand of duty – Appellants are engaged in activity of blending of various mineral oils and selling same to various industrial consumers – Department issued demand notice to Appellants by treating aforesaid activities as manufacturing process – Appellate authority dismissed appeal filed by Appellant – Whether Appellant is carrying manufacturing process or not – HELD - Two oils are used for manufacturing the produce – Oils are mixed with electric motor and by mixing the oils, viscosity is reduced – Final product is used as industrial oil – Final product is sold with a different name and brand, so goods are transformed into other goods, which are different and/or new after electric process – Reducing the viscosity of two oils by electric process is nothing but manufacturing and further act of selling same with a new name and brand is also an additional ingredient to conclude that Appellant is doing manufacturing process – As far as the limitation is concerned, demand is raised well in time by Respondent and appellant cannot deny payment of his legal dues – Order passed by Appellate Authority affirmed and appeal is dismissed [Read less]

2022-VIL-360-CESTAT-KOL-CE  | CESTAT CENTRAL EXCISE

Central Excise – Admissibility of Cenvat Credit on steel items, welding electrode, oxygens etc. – HELD - iron and steel items and cement used for erection of foundation and support structures would also come within the ambit of the definition of “input” so long as it satisfies the “user test” - the various steel items have been used for the purpose of setting up of sponge iron kiln along with the power plant as also certified by the Chartered Engineer have been duly verified by the lower authorities - applying the “user test” principle, as followed by the various High Courts, the assessee is entitled to ava... [Read more]

Central Excise – Admissibility of Cenvat Credit on steel items, welding electrode, oxygens etc. – HELD - iron and steel items and cement used for erection of foundation and support structures would also come within the ambit of the definition of “input” so long as it satisfies the “user test” - the various steel items have been used for the purpose of setting up of sponge iron kiln along with the power plant as also certified by the Chartered Engineer have been duly verified by the lower authorities - applying the “user test” principle, as followed by the various High Courts, the assessee is entitled to avail credit on the steel items – appeal is allowed [Read less]

2022-VIL-354-CESTAT-HYD-CE  | CESTAT CENTRAL EXCISE

Central Excise – Inputs within the meaning of Rule 2 (k) of Cenvat Credit Rules, 2004 - Admissibility of Cenvat Credit on Plates, Angles/MS Angles, ISHC, HR Coils, Channels/MS Channels, Metal Roofing Sheets, SS Plates etc. used in the fabrication of furnace, pollution control equipments and other capital goods – denial of credit on the ground that the appellant failed to furnish sufficient documentary evidence that the impugned items were used in fabrication of capital goods / accessories / parts / components - Chartered Engineer’s Certificate though produced before both the authorities has not been considered – HE... [Read more]

Central Excise – Inputs within the meaning of Rule 2 (k) of Cenvat Credit Rules, 2004 - Admissibility of Cenvat Credit on Plates, Angles/MS Angles, ISHC, HR Coils, Channels/MS Channels, Metal Roofing Sheets, SS Plates etc. used in the fabrication of furnace, pollution control equipments and other capital goods – denial of credit on the ground that the appellant failed to furnish sufficient documentary evidence that the impugned items were used in fabrication of capital goods / accessories / parts / components - Chartered Engineer’s Certificate though produced before both the authorities has not been considered – HELD - when the Chartered Engineer’s Certificate was produced before the Adjudicating authority, it was incumbent on the authorities to either contradict the Chartered Engineer’s Certificate or accept the same - In the absence of any contradictory Certificates on record holding otherwise that the inputs were used for fabrication of machinery, the non-consideration of the Certificate issued by the Chartered Engineer by the Adjudicating authority is not in consonance with law - receipt of goods and thereafter use for fabrication as per Chartered Engineer’s Certificate is not contested, but contested only on a point that the inputs do not fall under the category of capital goods and hence not eligible for Cenvat credit, will not support the case of the Revenue - Since the issue is no more res integra and is decided by the higher Courts, the impugned order is unsustainable and set aside – assessee appeal is allowed [Read less]

2022-VIL-355-CESTAT-BLR-ST  | CESTAT SERVICE TAX

Service Tax - Intellectual property service - Demand of service tax basis that the appellants had entered into an agreement of “know-how transfer” with its parent company for receiving the services of technical know-how related to manufacturing and sale of Razor blades in India and abroad and that the right to manufacture and sale were also transferred vide the said agreement - SCN alleging that since the appellants have been receiving the services of intellectual property service and are liable to pay service tax in terms of Rule 2(i)(d)(iv) of the Service Tax Rules, 1994 – HELD - the payments are made for technical... [Read more]

Service Tax - Intellectual property service - Demand of service tax basis that the appellants had entered into an agreement of “know-how transfer” with its parent company for receiving the services of technical know-how related to manufacturing and sale of Razor blades in India and abroad and that the right to manufacture and sale were also transferred vide the said agreement - SCN alleging that since the appellants have been receiving the services of intellectual property service and are liable to pay service tax in terms of Rule 2(i)(d)(iv) of the Service Tax Rules, 1994 – HELD - the payments are made for technical know-how, training etc. and not for the use of logo - though the use of logo is permitted in terms of the agreement, unless a specific payment is made for the same, it cannot be said that the appellants have availed any trademark in terms of the service tax law - the appellants are not liable to pay service tax under the taxable category of service of intellectual property – further, there is no law governing trade secrets / confidential information in India and therefore, such rights would not constitute intellectual property right, as defined in law during the relevant period and as such, would not be chargeable to service tax in India - the impugned order is set aside and the appeal is allowed [Read less]

2022-VIL-365-ORI  | High Court SGST

GST - Interpretation of Section 80 of the CGST Act - Rule 158 of the CGST Rules - Self-assessment of the tax, Filing of return on self-assessment basis, Demand of interest for belated payment of tax – discharge of interest demanded by instalments - Demand of interest for belated deposit of admitted tax - Petitioner prayed before the Commissioner to allow it to discharge interest demand by instalments - petitioner submission that Commissioner of CT&GST being vested with power under Section 80 of the CGST/OGST Act ought not to have rejected its application in Form GST DRC-20 filed in terms of Rule 158 of the CGST/OGST Rul... [Read more]

GST - Interpretation of Section 80 of the CGST Act - Rule 158 of the CGST Rules - Self-assessment of the tax, Filing of return on self-assessment basis, Demand of interest for belated payment of tax – discharge of interest demanded by instalments - Demand of interest for belated deposit of admitted tax - Petitioner prayed before the Commissioner to allow it to discharge interest demand by instalments - petitioner submission that Commissioner of CT&GST being vested with power under Section 80 of the CGST/OGST Act ought not to have rejected its application in Form GST DRC-20 filed in terms of Rule 158 of the CGST/OGST Rules seeking discharge the liability towards the burden of interest in installment - Whether the Commissioner is justified in rejecting the prayer of the petitioner to deposit the interest levied on account of belated deposit of admitted tax as per self-assessed returns in instalment under Section 80 read with Rule 158 – HELD - liability to pay interest under Section 50(1) of the CGST Act is self-determined and automatic - When the admitted tax is deposited belatedly as per the figures disclosed in the returns, interest component is also to be associated with the same and is required to be deposited on its own computation. Hence, the liability to pay interest is compensatory in nature - In the present case. the admitted tax on self-assessment being not deposited within the period stipulated, the petitioner is liable to compensate the exchequer by way of interest which is provided for under the statute – Every taxable person is required to make a self-assessment of the tax and to file the return within the time prescribed - The dealer is bound to file self-assessed return in prescribed form along with the payment of tax in the manner and within the period stipulated therein - the petitioner has taken step by approaching the Commissioner of CT&GST by making an application in Form GSTR DRC-20 prescribed under Rule 158 invoking Section 80 after it has received the notice of demand in Form GST DRC-07. Therefore, this Court is not inclined to accede to the prayer of the petitioner - Matter would have stood on different footing had the petitioner sought to deposit interest on its own in view of requirement under Section 50(1) of the CGST Act – the provision of Section 80 restricts consideration of payment of tax/interest in instalments where the same emanates from self-assessment – the provisions of Section 80 permits a taxable person to make payment of an amount due on instalment basis, other than the amount due as per self-assessed return. Therefore, the amount which is payable pertains to a demand notice cannot be deferred or paid in instalments - Since interest is a part of tax and such tax being belated payment in respect of self-assessment, Section 80 of the CGST/OGST Act clearly excludes grant of instalment - the Commissioner of CT&GST is justified in rejecting the prayer of the petitioner to deposit the interest levied on account of belated deposit of admitted tax as per self-assessed returns in instalment under Section 80 read with Rule 158 – the writ petition is dismissed [Read less]

2022-VIL-355-AP-CU  | High Court CUSTOMS

Customs Act, 1962 – Jurisdiction of DRI to inspect or seize goods in respect of units situated in SEZ – Sections 22, 52 and 53 of Special Economic Zones Act, 2005 – Imposition of penalty – Maintainability of writ petition – Petitioner is engaged in manufacture of Bio-Diesel and Glycerine at SEZ – Petitioner imported Fatty Acid Methyl Ester (FAME) from USA and stored it in Bonded Warehouse – Petitioner transferred Bio Diesel manufactured at SEZ to Bonded Warehouse for blending with imported FAME – After due process, Petitioner filed shipping bill for export of Bio Diesel from bonded warehouse – Officers of... [Read more]

Customs Act, 1962 – Jurisdiction of DRI to inspect or seize goods in respect of units situated in SEZ – Sections 22, 52 and 53 of Special Economic Zones Act, 2005 – Imposition of penalty – Maintainability of writ petition – Petitioner is engaged in manufacture of Bio-Diesel and Glycerine at SEZ – Petitioner imported Fatty Acid Methyl Ester (FAME) from USA and stored it in Bonded Warehouse – Petitioner transferred Bio Diesel manufactured at SEZ to Bonded Warehouse for blending with imported FAME – After due process, Petitioner filed shipping bill for export of Bio Diesel from bonded warehouse – Officers of DRI visited bonded warehouse and drawn samples of export material on ground that no manufacturing activity was undertaken in SEZ unit and same constitutes violation of 1962 Act and detained material under Section 110 of 1962 Act and allowed release of goods on production of bond – DRI officials issued show cause notice proposing penalty under Sections 112(a) and 114 of 1962 Act upon Petitioner – Adjudicating authority confirmed demand proposed in show cause notice – Whether writ petition filed by Petitioner is maintainable – Absence of jurisdiction – Whether DRI officials have jurisdiction to issue impugned show cause notice - HELD – Main argument advanced by Respondents is with regard to maintainability of writ petition when Petitioners have an alternative remedy of appeal – Alternate remedy by itself does not divest High Court of its powers under Article 226 of the Constitution in an appropriate case, though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law – It is a case where jurisdiction of authority in issuing show cause notice is questioned – In such circumstances, writ petition can be entertained by this Court though an alternate remedy is available – SEZ Act would prevail over Customs Act, 1962 in all aspects in view of non-obstinate clause – Section 52 of the SEZ Act spells out that Customs Act is not applicable in respect of units situated in SEZ unit – Perusal of Section 53 of SEZ Act makes it clear that Customs authorities (DRI officials) have no power or jurisdiction to inspect or seize goods in respect of units situated in SEZ area – Power to investigate in respect of any offence committed in SEZ unit is conferred on Officers empowered under Section 22 of SEZ Act – Product imported is stored in a bonded warehouse near port for export – Processing of imported material is not mandatory, as Petitioner has licence to trade – mere removal of goods from SEZ area or storage of goods in bonded warehouse for purpose of export cannot be brought within purview of DRI officials under Customs Act, 1962 – DRI officials have no jurisdiction to issue impugned show cause notice – Show cause notice and consequential order passed in Order-in-Original quashed – writ petition is allowed [Read less]

2022-VIL-362-CAL  | High Court SGST

GST - Petitioner challenge denial of Input Tax Credit on the ground that the registration of the suppliers has been cancelled with retrospective effect covering the transaction period in question - the contention of the petitioners that the transactions in question are genuine, valid and were made through banks – HELD - without any further verification it cannot be said that that there was any failure on the part of the petitioners in compliance of any obligation required under the statute before entering into the transactions - respondents officer to consider afresh on the issue of their entitlement of benefit of input ... [Read more]

GST - Petitioner challenge denial of Input Tax Credit on the ground that the registration of the suppliers has been cancelled with retrospective effect covering the transaction period in question - the contention of the petitioners that the transactions in question are genuine, valid and were made through banks – HELD - without any further verification it cannot be said that that there was any failure on the part of the petitioners in compliance of any obligation required under the statute before entering into the transactions - respondents officer to consider afresh on the issue of their entitlement of benefit of input tax credit in question by considering the documents which the petitioners intend to rely in support of their claim of genuineness of the transactions - If it is found upon verification and considering the relevant documents that all the purchases and transactions in question are genuine and supported by valid documents and transactions in question were made before the cancellation of registration of those suppliers and after taking into consideration as to whether facts of the petitioners are similar to the judgements upon which petitioners intend to rely and if it is found similar to the present case, in that event the petitioners shall be given the benefit of input tax credit in question - the impugned adjudication orders are set aside – writ petitions are disposed of [Read less]

2022-VIL-356-ALH  | High Court VAT

Uttar Pradesh Value Added Tax Act – Section 54(1)(14) – Imposition of penalty – Officers intercepted vehicle containing goods coming from outside State and seized goods on ground of non-production of requisite documents – Officers released goods on furnishing security and initiated penalty proceedings against dealer/Petitioner – Tribunal affirmed penalty imposed under Section 54(1)(14) of the Act – Whether Tribunal was justified in upholding penalty under Section 54(1)(14) of the Act – HELD - Power to detain goods and levy penalty in respect thereof can be exercised only if goods detained are not accompanied ... [Read more]

Uttar Pradesh Value Added Tax Act – Section 54(1)(14) – Imposition of penalty – Officers intercepted vehicle containing goods coming from outside State and seized goods on ground of non-production of requisite documents – Officers released goods on furnishing security and initiated penalty proceedings against dealer/Petitioner – Tribunal affirmed penalty imposed under Section 54(1)(14) of the Act – Whether Tribunal was justified in upholding penalty under Section 54(1)(14) of the Act – HELD - Power to detain goods and levy penalty in respect thereof can be exercised only if goods detained are not accompanied by requisite documents or documents accompanying them are false and if there is material to indicate that goods are being imported in an attempt to evade payment of tax due under the Act – Intention to evade payment of tax has been found to be necessary ingredient before imposing penalty under the Act – Perusal of material on record make it clear that all documents were available and all entries have been made in books of account of dealer and therefore, it cannot be said that there was any intention to evade payment of tax – Penalty order cannot be sustained in eyes of law – Impugned order passed by Tribunal set aside – Revision is allowed [Read less]

2022-VIL-358-CESTAT-MUM-CU  | CESTAT Case CUSTOMS

Customs – Import of Skin Barrier Microporus Surgical Tapes – Denial of exemption – Demand of duty – Appellant have been importing “Skin Barriers Microporus Surgical Tapes” and have been availing exemption under Notification No.21/2002 – DRI conducted investigation and issued show cause notices to various importers including Appellant seeking to deny exemption notification and seeking to recover differential duty – Adjudicating authority confirmed demand proposed in show cause notice – Whether imported goods “Skin Barrier Microporus Surgical Tapes” are eligible for exemption contained under Notificatio... [Read more]

Customs – Import of Skin Barrier Microporus Surgical Tapes – Denial of exemption – Demand of duty – Appellant have been importing “Skin Barriers Microporus Surgical Tapes” and have been availing exemption under Notification No.21/2002 – DRI conducted investigation and issued show cause notices to various importers including Appellant seeking to deny exemption notification and seeking to recover differential duty – Adjudicating authority confirmed demand proposed in show cause notice – Whether imported goods “Skin Barrier Microporus Surgical Tapes” are eligible for exemption contained under Notification No.21/2002-Cus – Whether extended period of limitation can be invoked for demand of duty - HELD – Appellant has submitted that there has been a punctuation error in notification giving rise to an interpretation that exemption is not applicable in impugned goods – Tribunal being a creature of statute cannot sit in judgment on interpretation of notification – Issue is no longer res integra, as being decided by Bangalore Bench in case of 3M India Ltd – Decision of Bangalore Bench has attained finality, as said decision has been upheld by Supreme Court – Exemption is not available to Appellant – Appellants have successfully demonstrated that imports have been taken place over the years and Department has been allowing same after examination atleast in respect of few consignments even after introduction of self-assessment regime – Appellants have not suppressed or mis-represented any material fact so as to warrant invocation of extended period – Impugned orders are not maintainable as far as extended period of limitation is concerned – Demand of duty is confirmed for normal period only and penalty imposed is set aside – appeal is partly allowed [Read less]

2022-VIL-352-MAD  | High Court SGST

GST - Mistake in GSTR-3B – Rejection of refund - Though the outward supplies of exports should have filled the details in Form GSTR-3B in column 3.1(b) instead, the petitioner by mistake has given the details of the export as outward taxable supply – Denial of refund of integrated tax on exports on account of mistake in GSTR-3B – HELD - The refund of tax/duty paid on exports has been long recognized under the provisions of the Central Excise Act, 1944 r/w Central Excise Rules, 1944 and later under the provisions of the Central Excise Rules, 2002 - These Rules have been incorporated under the GST regimes, except that ... [Read more]

GST - Mistake in GSTR-3B – Rejection of refund - Though the outward supplies of exports should have filled the details in Form GSTR-3B in column 3.1(b) instead, the petitioner by mistake has given the details of the export as outward taxable supply – Denial of refund of integrated tax on exports on account of mistake in GSTR-3B – HELD - The refund of tax/duty paid on exports has been long recognized under the provisions of the Central Excise Act, 1944 r/w Central Excise Rules, 1944 and later under the provisions of the Central Excise Rules, 2002 - These Rules have been incorporated under the GST regimes, except that under the GST regime, most of the proceedings are system driven - The export incentives have been given to encourage exports, so that there is inward remittance of foreign currency. The procedure prescribed under the aforesaid Rules is not intended to defeat such legitimate export incentives - the procedures under Rule 96 of CGST Rules, 2017 cannot be applied strictly to deny legitimate export incentives, which an exporter otherwise would have been entitled to but for the technicality involved in the system – respondents are directed to get the data directly from the petitioner and from their counterparts in the customs department. If indeed there was an export and a valid debit of tax by the petitioner on the exports made to foreign buyers, the refund shall be granted – writ petition is allowed [Read less]

2022-VIL-363-ALH  | High Court VAT

U.P. VAT Act, 2008 - Section 2(f) & Section 13 – Input Tax Credit, Capital goods - Applicant is engaging in mining of boulders from the mine – eligibility of the application to claim input tax credit on purchase of spare parts of loader and tipper under Section 13(1)(b) of the UPVAT Act – Revenue seeking to deny ITC on the ground that loader and tipper are 'vehicles' - applicant case that without the help of loader and tipper the manufacturing activity cannot be undertaken and the same should be treated and covered as “capital goods” – Whether loader and tipper can be considered as “capital goods” within th... [Read more]

U.P. VAT Act, 2008 - Section 2(f) & Section 13 – Input Tax Credit, Capital goods - Applicant is engaging in mining of boulders from the mine – eligibility of the application to claim input tax credit on purchase of spare parts of loader and tipper under Section 13(1)(b) of the UPVAT Act – Revenue seeking to deny ITC on the ground that loader and tipper are 'vehicles' - applicant case that without the help of loader and tipper the manufacturing activity cannot be undertaken and the same should be treated and covered as “capital goods” – Whether loader and tipper can be considered as “capital goods” within the meaning of section 2(f) of the UPVAT Act – HELD - tipper and loader purchased by the applicant are mentioned in the registration certificate as well as for use in the mining - without the help of these two machines, crushing of stone, for which registration has been granted, cannot be undertaken - if any machinery or vehicle is used for carrying from mining site to the place of processing, which covers for inclusion in the registration certificate, as without which the entire operation of mining and processing work cannot be done and is to be treated as one integral process - Section 2(f)(viii) of the U.P. VAT Act specifically provides machinery, loader, equipment for lifting or moving goods within factory premises, but excludes vehicle used for transporting the goods or passengers or both. The words used in the section have to be looked into harmoniously as well as with the intention of the Legislature - The intention of the Legislature is to give benefit to the registered dealers of Input Tax Credit on capital goods with some conditions and restrictions - Once the words machinery, loader and equipment for lifting the goods are covered by the definition of capital goods, the benefit of loader and tipper cannot be denied merely because in the exclusion clause the word “vehicle for use for transporting goods or passengers both” have been mentioned - the tipper and loader are captively used for manufacturing activity within the mining area where the stone crushing plant is situated, are covered under the definition of “capital goods” and entitled for Input Tax Credit under section 13(1)(b) of the U.P. VAT Act – the impugned order is set aside and revision is allowed by remand [Read less]

2022-VIL-351-KAR-ST  | High Court SERVICE TAX

Service Tax – Payment under Reverse Charge Mechanism - Compliance of condition of Section 68[2] of the Finance Act, 1994 – Revenue case that in terms of provisions of Section 68(2) of the Finance Act, 1994 service tax paid in the ratio of 50:50 i.e., by the assessee and the service provider not being in conformity with the existing provisions of the Act applicable at the relevant time – assessee contention that the reverse charge mechanism should not lead to double taxation and when the tax amount being paid in full by the assessee and the service provider in the ratio 50:50, the same cannot be construed as shortage ... [Read more]

Service Tax – Payment under Reverse Charge Mechanism - Compliance of condition of Section 68[2] of the Finance Act, 1994 – Revenue case that in terms of provisions of Section 68(2) of the Finance Act, 1994 service tax paid in the ratio of 50:50 i.e., by the assessee and the service provider not being in conformity with the existing provisions of the Act applicable at the relevant time – assessee contention that the reverse charge mechanism should not lead to double taxation and when the tax amount being paid in full by the assessee and the service provider in the ratio 50:50, the same cannot be construed as shortage of payment of tax – HELD - Whatever the ratio, the tax in its entirety has reached the hands of the ex-chequer. Merely for the reason that there was no strict adherence to the ratio as envisaged during the relevant point of time for payment of tax insofar as the assessee and the service provider, the assessee cannot be made liable to pay the double tax - What is significant to note is that the discharge of entire tax amount is not disputed. Thus, the reverse charge mechanism would not lead to double taxation - Writ Appeal stands disposed of [Read less]

2022-VIL-357-CESTAT-KOL-CE  | CESTAT CENTRAL EXCISE

Central Excise – Validity of rejection of application of the Appellant for fixation of special value addition rate for the period 2008-09 to 2017-18 on grounds of limitation – HELD - the issue has been dealt with in favour of assessee by Hon’ble Gauhati High Court in the case of M/s. Jyoti Labs Ltd. Vs. UOI – matter remanded back to the Ld. Adjudicating authority to consider the application of the Appellant for fixation of special value addition rate – appeal allowed by remand

2022-VIL-358-GUJ  | High Court SGST

GST – Rule 117 of CGST Rules – Claim of Transitional Credit – Belated filing of Form TRAN-1 – Entitlement to avail benefit – Pursuant to introduction of GST Act with effect from 1-7-2017, Writ Applicant got itself registered as a “registered dealer” under the Act – Since Applicant satisfied requisite conditions for availment of benefit of Input Tax Credit upon accumulated CENVAT credit as of 30-6-2017, applied for same by filing declaration FORM TRAN-1 – Writ Applicant could not filed TRAN-1 on or before notified date i.e. 27-12-2017 – CBIC issued Notification extending due date for submitting GST TRAN-... [Read more]

GST – Rule 117 of CGST Rules – Claim of Transitional Credit – Belated filing of Form TRAN-1 – Entitlement to avail benefit – Pursuant to introduction of GST Act with effect from 1-7-2017, Writ Applicant got itself registered as a “registered dealer” under the Act – Since Applicant satisfied requisite conditions for availment of benefit of Input Tax Credit upon accumulated CENVAT credit as of 30-6-2017, applied for same by filing declaration FORM TRAN-1 – Writ Applicant could not filed TRAN-1 on or before notified date i.e. 27-12-2017 – CBIC issued Notification extending due date for submitting GST TRAN-1 upto 31.03.2019 – Writ Applicant approached Respondent to consider his case for uploading TRAN-1 Form in light of Notification, but Respondent have not responded to such request – Writ Applicant seeking direction to Respondent to allow benefits of transitional credit by permitting them to file declaration electronically in Form GST TRAN-1 – HELD - Writ Applicant had belatedly applied for filing of Form TRAN - 1 to avail Input Tax Credit of accumulated CENVAT credit as of 30-6-2017 – Reason explained by Writ Applicant for delayed uploading of Form appears to be genuine, as bank account of Writ Applicant company was declared Non Performing Account – Writ Applicant had sufficient cause for not to apply for availment of Input Tax Credit during transitional period – Due date as contemplated under Rule 117 of the CGST Rules for purposes of claiming transitional credit are held to be procedural in nature and should not be construed mandatory – Time limit prescribed for transitioning of credit would in no manner result in forfeiture of rights of Writ Applicant even though, when credit is not availed within period prescribed – Period of three years as described by High Court of Delhi should be considered as a guiding principle for availing of such credit from appointed date – Case of Writ Applicant falls within aforesaid period of three years – Respondent authorities are directed to permit Writ Applicant to file Form GST TRAN-1 either by opening online portal so as to enable them to file declaration TRAN-1 electronically or to accept same manually – Application is allowed [Read less]

2022-VIL-364-GUJ-CU  | High Court CUSTOMS

Customs – Re-export of goods – Demand of customs duty – Writ Applicant entered into a contract for sale of raw sugar on credit basis – Understanding between parties was that cargo would be purchased by Respondent No.5 in terms of advance authorization held by it – In accordance with contract, Respondent No.5 was to refine the cargo into white refined sugar at its sugar refinery and process same for re-export within a period of six months from date of ex-bond clearance of Bill of Entry and thereafter export refined white sugar to world market – Respondent No.5 filed Ex-bond Bill of Entry in respect of cargo with... [Read more]

Customs – Re-export of goods – Demand of customs duty – Writ Applicant entered into a contract for sale of raw sugar on credit basis – Understanding between parties was that cargo would be purchased by Respondent No.5 in terms of advance authorization held by it – In accordance with contract, Respondent No.5 was to refine the cargo into white refined sugar at its sugar refinery and process same for re-export within a period of six months from date of ex-bond clearance of Bill of Entry and thereafter export refined white sugar to world market – Respondent No.5 filed Ex-bond Bill of Entry in respect of cargo with Respondent No.2, which was cleared by way of a debit in advance license of Respondent No.5 – On account of financial difficulties, Respondent No.5 failed to lift the cargo and did not take delivery of same after De-bonding – Writ Applicant requested for re-export of cargo – Dept raised demand for payment of customs duty – Whether Respondents are justified in demanding customs duty on goods in question for purpose of re-export at instance of Writ Applicant - HELD – Respondent No.5 holds an advance authorization and details of such authorization are stated in bill of entry while claiming exemption from customs duty under notification meant for materials imported into India against valid authorization –Importer/Respondent No.5 failed to clear goods after filing of ex-bond bill of entry – Mere filing of ex-bond bill of entry by itself would not vest title of goods into importer – Title over imported goods would remain with exporter and exporter may request Commissioner to permit him to re-export goods as an unpaid seller – Terms of contract conforms position that title to goods in question would not pass until buyer has paid amount for entirety of goods – Writ Applicant assumes status of an unpaid seller to continue to hold title/ownership to assets imported – Goods stand secured in customs frontier and have not yet entered the domestic market – Writ Applicant being unpaid owner and exporter of goods can claim ownership of goods and also reshipment – Liberty is reserved in favour of Writ Applicant to file an application addressed to Commissioner seeking re-export of goods – Commissioner shall give an opportunity of hearing to Writ Applicant and upon recording satisfaction as regards ownership and title to goods, may proceed to grant necessary permission to re-export goods in accordance with law upon imposing reasonable duty on export of goods – Application is disposed of [Read less]

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