More Judgements

2020-VIL-236-AAR  | Advance Ruling Authority SGST

GST – West Bengal AAR - Applicable GST rate for Works Contract for the dredging of Wular lake along with its feeder channels and the strengthening of embankments of the lake – HELD - The work is aimed at the improvement of an immovable property and involves the supply of various services and goods in the course of its execution. It is works contract within the meaning of section 2(119) of the GST Act, where earthwork exceeds more than 75% of the contract value - The recipient of the service a Governmental Authority within the meaning of para 5(ix) of the IGST Notification. Therefore, the applicant's supply to the Wular... [Read more]

GST – West Bengal AAR - Applicable GST rate for Works Contract for the dredging of Wular lake along with its feeder channels and the strengthening of embankments of the lake – HELD - The work is aimed at the improvement of an immovable property and involves the supply of various services and goods in the course of its execution. It is works contract within the meaning of section 2(119) of the GST Act, where earthwork exceeds more than 75% of the contract value - The recipient of the service a Governmental Authority within the meaning of para 5(ix) of the IGST Notification. Therefore, the applicant's supply to the Wular Conservation and Management Authority is taxable under Sl No. 3(vii) of Notification No 8/2017 – Integrated Tax (Rate) dated 28/06/2017, as amended the supply is taxable @ 5% GST as composite supply of works contract [Read less]

2020-VIL-235-AAR  | Advance Ruling Authority SGST

GST – West Bengal AAR - Classification of “three-wheeled motor vehicles”, commonly known as “Toto” - whether such a three-wheeled vehicle is classifiable as an “electrically operated motor vehicle” under HSN 8703 when supplied with a battery pack – Relevant classification when supplied without the battery pack – HELD – the three-wheeled motor vehicle without the battery pack does not have the essential character of an “electrically operated vehicle” – The subject vehicle includes the chassis fitted with the motor to convert electrical energy into the mechanical energy to put the vehicle into locom... [Read more]

GST – West Bengal AAR - Classification of “three-wheeled motor vehicles”, commonly known as “Toto” - whether such a three-wheeled vehicle is classifiable as an “electrically operated motor vehicle” under HSN 8703 when supplied with a battery pack – Relevant classification when supplied without the battery pack – HELD – the three-wheeled motor vehicle without the battery pack does not have the essential character of an “electrically operated vehicle” – The subject vehicle includes the chassis fitted with the motor to convert electrical energy into the mechanical energy to put the vehicle into locomotion once the battery pack is attached. Such a device is called the engine of the vehicle. It is, therefore, classifiable under Tariff-head 8706 00 31, being the chassis fitted with an engine of a vehicle under sub-heading 8703 – the subject vehicle is classifiable under HSN 8703 as an electrically operated vehicle, provided it is fitted with the battery pack, or else it will be classifiable under HSN 8706 [Read less]

2020-VIL-234-AAR  | Advance Ruling Authority SGST

GST – West Bengal AAR – Applicable GST rate for Works Contract for construction of channels across Hokersar Wetland along the old alignment of flood spill channel, including its side slope protection and dredging of drainage flowing into Wetland by way of earthwork excavation – HELD - The work is aimed at the improvement of immovable property and involves the supply of various services and goods in the course of its execution. It is works contract within the meaning of section 2 (119) of the GST Act, where earthwork exceeds more than 75% of the contract value. The recipient being a Union Territory, all the conditions... [Read more]

GST – West Bengal AAR – Applicable GST rate for Works Contract for construction of channels across Hokersar Wetland along the old alignment of flood spill channel, including its side slope protection and dredging of drainage flowing into Wetland by way of earthwork excavation – HELD - The work is aimed at the improvement of immovable property and involves the supply of various services and goods in the course of its execution. It is works contract within the meaning of section 2 (119) of the GST Act, where earthwork exceeds more than 75% of the contract value. The recipient being a Union Territory, all the conditions of Entry No. 3 (vii) of the IGST Notification are satisfied - The applicant's supply to the Irrigation and Flood control Department, Govt of Jammu and Kashmir, is taxable under Entry No. 3(vii) of Notification No 8/2017 – Integrated Tax (Rate) dated 28/06/2017, as amended and the supply is taxable @ 5% GST as composite supply of works contract [Read less]

2020-VIL-233-AAR  | Advance Ruling Authority SGST

GST – West Bengal AAR - Transactions relating to land and buildings - Liquidation of leasehold factory unit in terms of order passed by NCLT under Insolvency & Bankruptcy Code, 2016 – sub-leasing of leasehold factory unit for unexpired residual period of lease by way of assignment - applicability of GST on the consideration receivable on such assignment and applicable SAC and GST rate – whether the liquidator can claim input tax credit for the GST paid on the transfer fee – HELD – The benefits arising from land in the forms specified in paragraph 2 of Schedule II of CGST Act are not to be treated as transactions ... [Read more]

GST – West Bengal AAR - Transactions relating to land and buildings - Liquidation of leasehold factory unit in terms of order passed by NCLT under Insolvency & Bankruptcy Code, 2016 – sub-leasing of leasehold factory unit for unexpired residual period of lease by way of assignment - applicability of GST on the consideration receivable on such assignment and applicable SAC and GST rate – whether the liquidator can claim input tax credit for the GST paid on the transfer fee – HELD – The benefits arising from land in the forms specified in paragraph 2 of Schedule II of CGST Act are not to be treated as transactions in immovable property but as the supply of service for the purpose of the GST Act. The Deed, therefore, confers upon the applicant no better title to the Demised Premises other than a service contract of lease. He can, therefore, transfer to the assignee only his right to receive the service of the lease for the unexpired period after obtaining prior approval of the Sub-lessor on payment of the transfer fee - The activity of assignment is in the nature of agreeing to transfer one’s leasehold rights. It does not amount to further sub-leasing, as the applicant’s rights as per the Deed of sub-lease stands extinguished after assignment. Neither does it create fresh benefit from the land. It is in the nature of compensation for agreeing to do the transfer of the applicant’s rights in favour of the assignee. The service is classifiable under “Other miscellaneous service” SAC 999792 and taxable @ 18% GST - The transfer fee charged by the sub-lessor is the consideration payable to the sub-lessor for providing a service in the course or furtherance of business, more specifically because business includes supply or acquisition of goods or services in connection with the closure of a business in terms of section 2(17)(d) of the GST Act. The GST to be paid on such transfer fee is, therefore, admissible as input tax credit [Read less]

2020-VIL-365-DEL  | High Court SGST

GST - Challenge to order passed by the National Anti-Profiteering Authority whereby it has been held that the petitioner had contravened the provisions of Section 171 of CGST Act and thereby had profiteered on the sale of its refrigerator – petition seeking writ of prohibition against direction of the Authority to expand the scope of the investigation to other impacted products – Challenge to Constitutional validity of Section 171 of the CGST Act and Chapter XV of the CGST Rules – HELD - Petitioner is directed to deposit profited amount with Central and State Consumer Welfare Boards within two months - The interest a... [Read more]

GST - Challenge to order passed by the National Anti-Profiteering Authority whereby it has been held that the petitioner had contravened the provisions of Section 171 of CGST Act and thereby had profiteered on the sale of its refrigerator – petition seeking writ of prohibition against direction of the Authority to expand the scope of the investigation to other impacted products – Challenge to Constitutional validity of Section 171 of the CGST Act and Chapter XV of the CGST Rules – HELD - Petitioner is directed to deposit profited amount with Central and State Consumer Welfare Boards within two months - The interest amount as well as penalty and further investigation with regard to other impacted products as well as the letters issued by the DGAP are stayed till further orders - List the matter on 28th September, 2020 [Read less]

2020-VIL-362-MAD-CE  | High Court CENTRAL EXCISE

Central Excise – EOU Unit – Time limit for claim of refund of Input Tax Credit under Rule 5 of the CCR, 2004 r/w Notification No.27/2012-CE (NT) dated 18.06.2012 – Relevant date – effect of retrospective amendment - Whether the reckoning the relevant date under the Notification No.27/12 dated 18.06.2012 by subsequent amendment under Notification No.14/16 dated 01.03.2016 would be prospective or retrospective in nature – interpretation of word ‘substitution of a provision’ in original notification – HELD – The Notification No.14/2016 is a substitution to the original paragraph 3(b) of Notification No.27/20... [Read more]

Central Excise – EOU Unit – Time limit for claim of refund of Input Tax Credit under Rule 5 of the CCR, 2004 r/w Notification No.27/2012-CE (NT) dated 18.06.2012 – Relevant date – effect of retrospective amendment - Whether the reckoning the relevant date under the Notification No.27/12 dated 18.06.2012 by subsequent amendment under Notification No.14/16 dated 01.03.2016 would be prospective or retrospective in nature – interpretation of word ‘substitution of a provision’ in original notification – HELD – The Notification No.14/2016 is a substitution to the original paragraph 3(b) of Notification No.27/2012 whereby the relevant date would be one year from the date of receipt of payment in convertible foreign exchange, where provision of service has been completed prior to payment - to substitute certain words or phrases or sentences in the original notification, would mean that the subsequent substitution would replace those words, phrases or sentences. In effect, it is to be interpreted as having replaced the original procedure and thereby, the replacement would come into effect for the same time as the original procedure was provided for - If this interpretation is applied to the facts of the case, the reasoning adduced in the impugned order that the relevant date would be the date of receipt of payment in convertible foreign exchange and thereby, the refund application was time barred, cannot be found fault with - the Writ Petitions are dismissed [Read less]

2020-VIL-361-MAD-ST  | High Court SERVICE TAX

Service Tax - Demand of service tax under Manpower Recruitment or Supply Agency Services – Revenue appeal against Tribunal Order setting aside the demand raised invoking the extended period only on the ground that in view of ratio of its two judgments there were two views possible – HELD - Without discussing the relevant facts and ratio of its two judgments, referred to and relied on by the ld. Tribunal, and the facts of the case of the assessee, merely writing these citations in the said order itself is not enough - Mere reference of the citations in the order and then holding that the extended limitation could not be... [Read more]

Service Tax - Demand of service tax under Manpower Recruitment or Supply Agency Services – Revenue appeal against Tribunal Order setting aside the demand raised invoking the extended period only on the ground that in view of ratio of its two judgments there were two views possible – HELD - Without discussing the relevant facts and ratio of its two judgments, referred to and relied on by the ld. Tribunal, and the facts of the case of the assessee, merely writing these citations in the said order itself is not enough - Mere reference of the citations in the order and then holding that the extended limitation could not be invoked to the Revenue is a serious prejudice caused to the interest of the Revenue, in the absence of discussing the relevant facts, and giving reasons, for arriving at a particular conclusion. We are restraining ourselves from expressing anything further on the tenor of the order passed by the ld. Members of the Tribunal in the present case - We hope and expect that the ld. Members, and even other Members, who deal with the appeals from now onwards, in such Revenue matters, should understand the letter and spirit of these observations of the High Court - the said order of the Tribunal on the issue of taxability of manpower services and application of extended limitation in the present case, is set aside and appeal is restored back to the learned Tribunal - The appeal is accordingly disposed of [Read less]

2020-VIL-363-MAD  | High Court VAT

Tamil Nadu Value Added Tax Act, 2006 – Section 2(33) – Levy of tax on sale of DEPB - jurisdiction of Respondent to levy tax for a sale of DEPB that takes place outside the State of Tamil Nadu – respondent claimed that since the relevant exports have been transacted at Chennai, the transfer of DEPB credit had to be in Tamil Nadu whereas petitioner contended that the pass book was issued and the sale of delivery of the pass book was completed in Maharashtra, for which, Maharashtra VAT was paid, the respondent do not have the jurisdiction to levy tax on sale of DEPB – HELD - Section 2(33) of the Tamil Nadu VAT Act res... [Read more]

Tamil Nadu Value Added Tax Act, 2006 – Section 2(33) – Levy of tax on sale of DEPB - jurisdiction of Respondent to levy tax for a sale of DEPB that takes place outside the State of Tamil Nadu – respondent claimed that since the relevant exports have been transacted at Chennai, the transfer of DEPB credit had to be in Tamil Nadu whereas petitioner contended that the pass book was issued and the sale of delivery of the pass book was completed in Maharashtra, for which, Maharashtra VAT was paid, the respondent do not have the jurisdiction to levy tax on sale of DEPB – HELD - Section 2(33) of the Tamil Nadu VAT Act restricts levy of tax on sales that takes place outside the State of Tamil Nadu. The petitioner's right to claim set-off had originated by grant of the DEPB and delivery for sale in Maharashtra. The petitioner was also subjected to sales tax in the State of Maharashtra - Section 2(33) of the Act read with Explanation (V) (a)(i) provides that the sale or purchase of specified goods shall be deemed to have taken place in the State if the goods are within the State at the time when the contract of sale or purchase is entered into. There being no dispute on the position that the goods in question, the DEPB, and additionally, the seller as well as the buyer were all located in Maharashtra at the time when the transaction in question was finalised, the turnover from the transaction is liable to tax only in Maharashtra - the impugned order is set aside and the writ petition is allowed [Read less]

2020-VIL-358-RAJ  | High Court SGST

GST – TRAN-1, Section 140, Rule 117 - Petitions seeking permission to file Form GST TRAN-1 in order to enable them to avail Transitional Credit in Electronic Credit Ledger. It was also prayed that the respondents should give effect to Form GST Tran-1 that had been manually submitted to the respondent-department to avail relevant legitimate Input Tax Credit – HELD - petitioners to make an application before GST Council through Standing Counsel, who is further requested to hand over the same to the jurisdictional officer for forwarding the same to the GST Council to issue requisite certificate of recommendation alongwith... [Read more]

GST – TRAN-1, Section 140, Rule 117 - Petitions seeking permission to file Form GST TRAN-1 in order to enable them to avail Transitional Credit in Electronic Credit Ledger. It was also prayed that the respondents should give effect to Form GST Tran-1 that had been manually submitted to the respondent-department to avail relevant legitimate Input Tax Credit – HELD - petitioners to make an application before GST Council through Standing Counsel, who is further requested to hand over the same to the jurisdictional officer for forwarding the same to the GST Council to issue requisite certificate of recommendation alongwith requisite particulars, evidence and a certified copy of the order instantly and such decision be taken forthwith and if the petitioners’ assertion is found to be correct, the GST Council shall issue necessary recommendation to the Commissioner to enable the petitioners to get the benefit of CENVAT credit within the stipulated time - Writ petitions stand disposed of [Read less]

2020-VIL-232-AAR  | Advance Ruling Authority SGST

GST – Karnataka AAR - Classification of Railway parts such as Couplers, Knuckle, Locks, Toggle, Yoke etc., manufactured and supplied by applicant to its buyer who in turn supply the said castings to Indian Railways on subjecting the same to further process of machining – classification under HSN 8607 or under HSN 7325 as other cast articles of Iron or Steel – HELD - Railway parts such as Couplers, Knuckle, Locks, Toggle, Yoke etc., manufactured and supplied by the applicant to its buyer who in turn supply to Indian Railways after assembly, are classifiable under HSN 8607. The applicable rate of GST on the impugned go... [Read more]

GST – Karnataka AAR - Classification of Railway parts such as Couplers, Knuckle, Locks, Toggle, Yoke etc., manufactured and supplied by applicant to its buyer who in turn supply the said castings to Indian Railways on subjecting the same to further process of machining – classification under HSN 8607 or under HSN 7325 as other cast articles of Iron or Steel – HELD - Railway parts such as Couplers, Knuckle, Locks, Toggle, Yoke etc., manufactured and supplied by the applicant to its buyer who in turn supply to Indian Railways after assembly, are classifiable under HSN 8607. The applicable rate of GST on the impugned goods is 5% in terms of entry number 241 of Schedule I to the Notification No.1/2017-Central Tax (Rate) dated 28.06.2017, till 29.09.2019 and effective from 30.09.2019, the rate of GST is 12%, in terms of entry number 205G of Schedule II to the Notification No.1/2017-Central Tax (Rate) dated 28.06.2017, as amended by Notification No.14/2019 - Central Tax(Rate) dated 30.09.2019, with no refund of unutilized input tax credit, in terms of Sl.No.14 of Notification No.5/2017- Central Tax (Rate) dated 28.06.2017 [Read less]

2020-VIL-364-PAT  | High Court SGST

GST - Scrutiny of returns under Section 61 of the Act - Adjudication of matter before the date specified in the notice issued under Section 73(5)/74(5) – Violation of principle of natural justice – HELD – Impugned order is passed by the Deputy Commissioner of State Tax, who issued a notice asking the petitioner to show cause by a particular date. However, for unexplained reasons and circumstances, without any prior intimation or knowledge, the matter was preponed and without affording any opportunity of hearing, decided, holding the view of the revenue. The order does entail civil and pecuniary consequences, causing ... [Read more]

GST - Scrutiny of returns under Section 61 of the Act - Adjudication of matter before the date specified in the notice issued under Section 73(5)/74(5) – Violation of principle of natural justice – HELD – Impugned order is passed by the Deputy Commissioner of State Tax, who issued a notice asking the petitioner to show cause by a particular date. However, for unexplained reasons and circumstances, without any prior intimation or knowledge, the matter was preponed and without affording any opportunity of hearing, decided, holding the view of the revenue. The order does entail civil and pecuniary consequences, causing prejudice to the petitioner. On all fours, principles of natural justice stand violated - on this short ground alone, the impugned orders are quashed and set aside with the matter remanded back to the authority for consideration afresh – writ petition is allowed [Read less]

2020-VIL-366-MAD  | High Court VAT

Tamil Nadu General Sales Tax Act, 1959 – Section 55 - Power of rectification – EOU Unit – challenge to disallowance of exemption on sales to 100% EOUs by reopening the assessment and by invoking the power under Section 55 of the Act – supply of ‘carbide tip tools’ to EOU; eligibility to exemption by virtue of being ‘consumable goods’ - HELD – in terms of Section 55 of the Act, there was no power to reopen the assessment, but it is only a power to rectify a mistake, which is not a mistake that can be identified by a process of wrong drawn reasoning. However, the mistake should be apparent on the face of th... [Read more]

Tamil Nadu General Sales Tax Act, 1959 – Section 55 - Power of rectification – EOU Unit – challenge to disallowance of exemption on sales to 100% EOUs by reopening the assessment and by invoking the power under Section 55 of the Act – supply of ‘carbide tip tools’ to EOU; eligibility to exemption by virtue of being ‘consumable goods’ - HELD – in terms of Section 55 of the Act, there was no power to reopen the assessment, but it is only a power to rectify a mistake, which is not a mistake that can be identified by a process of wrong drawn reasoning. However, the mistake should be apparent on the face of the record. Only if all these features are available, the assessment can be reopened by invoking the power under Section 55 of the Act. Therefore, the revision of assessment is wholly without jurisdiction - the carbide tip inserts are self destructive while they are fitted to the machinery and used for cutting. Therefore, if they lose their utility, they can no longer be called as carbide tips and the reasoning of the Tribunal that they continue to have their identity, is without merit - viewed from the angle of both the purchasers and the sellers, the carbide tip tools are to be treated as consumable goods and are entitled to the benefit of exemption - the orders passed by the Tribunal are set aside and tax case revisions are allowed [Read less]

2020-VIL-359-KER-ST  | High Court SERVICE TAX

Service Tax - SVLDRS Scheme, 2019 - whether the petitioner, being aggrieved by order-in-original and having availed the remedy of rectification, is eligible to avail the benefit of Sabka Vishwas Legacy Dispute Resolution Scheme, 2019 - Rejection of request of personal hearing on the ground that amount estimated by the petitioner is less than the amount as estimated by the designated committee - Section 127(2) & (3) of the Finance Act, 2019 – HELD – from Section 127(2) and (3) of the Finance Act, 2019 it is deciphered that the amount estimated by the designated committee must exceed the amount declared by the declarant.... [Read more]

Service Tax - SVLDRS Scheme, 2019 - whether the petitioner, being aggrieved by order-in-original and having availed the remedy of rectification, is eligible to avail the benefit of Sabka Vishwas Legacy Dispute Resolution Scheme, 2019 - Rejection of request of personal hearing on the ground that amount estimated by the petitioner is less than the amount as estimated by the designated committee - Section 127(2) & (3) of the Finance Act, 2019 – HELD – from Section 127(2) and (3) of the Finance Act, 2019 it is deciphered that the amount estimated by the designated committee must exceed the amount declared by the declarant. However on comparison of orders it is seen that the amount declared by the declarant-petitioner was less than the amount as estimated by the designated committee. It is also a matter of record that though the petitioner could have availed the scheme, the rectification petition, against the Order-in-Original is pending consideration - revenue clearly complied with the provisions of Section 127, as there was no such occasion to afford opportunity of hearing being a farcical exercise - the respondent is directed to dispose of the rectification application as expeditiously as possible, in accordance with law, by affording an opportunity of hearing - the writ petition is dismissed [Read less]

2020-VIL-31-GSTAA  | Appellate Authority SGST

GST – E-Way Bill – Section 68, Section 129 - Detention of goods under Section 129 for wrong vehicle no. in the E-way bill – HELD - all the necessary statutory requirement under the provisions of CGST Act and Rules was fulfilled by the appellant except mentioning corrected vehicle number at the time of interception, though this mistake was corrected soon after it came to notice. Thus, there appears no ill intention to evade the tax and just mere technical mistake - the appellant has submitted copies of both the E-way Bill one which was generated prior to the commencement of movement of the goods in which the vehicle r... [Read more]

GST – E-Way Bill – Section 68, Section 129 - Detention of goods under Section 129 for wrong vehicle no. in the E-way bill – HELD - all the necessary statutory requirement under the provisions of CGST Act and Rules was fulfilled by the appellant except mentioning corrected vehicle number at the time of interception, though this mistake was corrected soon after it came to notice. Thus, there appears no ill intention to evade the tax and just mere technical mistake - the appellant has submitted copies of both the E-way Bill one which was generated prior to the commencement of movement of the goods in which the vehicle registration number was shown in which the goods were supposed to be delivered/loaded to the customer and other one E-way Bill which was generated after realizing their mistake about the vehicle number in which vehicle registration number was correctly shown - Though the appellant has made an error in mentioning the vehicle number, they himself admitted that due to sudden change in vehicle plan by the transporter they could not change the vehicle number. Since the appellant himself admitted their mistake by not correcting the vehicle number. Therefore, they are liable for a penalty of ten thousand under Section 125 of the CGST Act, 2017 - the impugned order passed by the adjudicating authority is set aside and the appeal is allowed [Read less]

2020-VIL-354-CESTAT-BLR-CU  | CESTAT Case CUSTOMS

Customs - Denial of exemption under notification no.24/2005-Cus – Revenue of the view that imported goods are not 'solely or principally used' in 'automatic data processing system' - Import of goods classifying as 'business projectors' under heading no. 8528 6100 – Trade parlance or General Rules of interpretative Rules – HELD - In circumstances of declared classification, denial by customs authorities shifts the burden on to them for justifying the alternative classification and, in the absence of valid reasons, the declared classification is to be restored - Trade parlance is to be resorted to only when the commonl... [Read more]

Customs - Denial of exemption under notification no.24/2005-Cus – Revenue of the view that imported goods are not 'solely or principally used' in 'automatic data processing system' - Import of goods classifying as 'business projectors' under heading no. 8528 6100 – Trade parlance or General Rules of interpretative Rules – HELD - In circumstances of declared classification, denial by customs authorities shifts the burden on to them for justifying the alternative classification and, in the absence of valid reasons, the declared classification is to be restored - Trade parlance is to be resorted to only when the commonly used phraseology describes the goods closely enough to the description of the sub-heading in the tariff - the adjudicating authority found trade parlance to be appropriate merely because the description in heading no. 8528 6100 of the First Schedule to the CTA, 1975 lacked definition therein, we fail to understand this particular line of logic - the reliance placed on the users' guide for each of the models, or any claim of having ascertained trade parlance, cannot guide classifications. For that, the General Rules of interpretative Rules exists - the impugned goods are usable as 'projectors' of broadcast signals dues not detract from the usual operation with computer systems. Therefore, there is no requirement to move beyond the specific descriptions to which the impugned goods conform for classification under an alternate sub-heading - the impugned order is set aside and the appeal is allowed [Read less]

2020-VIL-358-CESTAT-BLR-CU  | CESTAT Case CUSTOMS

Customs - Import of Micropore, Transpore and Tegaderm – eligibility to exemption under Notification No. 21/2002-Customs dated 01/03/2002 as amended – appellants contend that the products are rightfully eligible for the exemption under the description “Skin Barriers Micropore Surgical Tapes” – HELD – As per relevant headings of the notification it is seen that “Skin Barriers Micropore Surgical Tapes” is mentioned as a single heading whereas, the appellants would like to read it as “Skin Barriers”, “Micropore Surgical Tapes” holding that there is no product known in the market as “Skin Barriers Micr... [Read more]

Customs - Import of Micropore, Transpore and Tegaderm – eligibility to exemption under Notification No. 21/2002-Customs dated 01/03/2002 as amended – appellants contend that the products are rightfully eligible for the exemption under the description “Skin Barriers Micropore Surgical Tapes” – HELD – As per relevant headings of the notification it is seen that “Skin Barriers Micropore Surgical Tapes” is mentioned as a single heading whereas, the appellants would like to read it as “Skin Barriers”, “Micropore Surgical Tapes” holding that there is no product known in the market as “Skin Barriers Micropore Surgical Tapes” - the OIO has dealt this issue at length to establish the existence of products known as “Skin Barriers Micropore Surgical Tapes” - the department has established that a product named and known as “Skin Barriers Micropore Surgical Tapes” exists. Under such circumstances, the appellants contention that no product known as “Skin Barriers Micropore Surgical Tapes” exists and there should have been a comma (,) in between doesn’t hold water. When such products are sold and used as such, it cannot be inferred that the notification was wrongly worded and therefore, it is to be interpreted to mean Skin Barriers, Micropore Surgical Tapes is not acceptable - the impugned order is correct as far as it holds that the items imported by the appellants are not eligible for the exemption contained in the notification No.21/2002-Cus dated 01.03.2002 - the department could satisfactorily demonstrate the twin points that the impugned goods do not satisfy the description given in the Notification and that the products mentioned in the Notification exist in reality - the impugned goods do not satisfy such description so as to be eligible for exemption - The fact that the appellants are importing from a long period is not disputed. Further, all the consignments were not cleared under self-assessment procedure. Therefore, the extended period is not invokable and penalties are not imposable – the appeal is partly allowed confirming demand of duty for normal period only and by setting aside penalties [Read less]

2020-VIL-360-KAR-CE  | High Court CENTRAL EXCISE

Central Excise - Respondents-assessee cleared hydraulic excavators for project aided by international financial institution without payment of duty on the strength of exemption notification 108/95-CE dated 28.08.1995 - on completion of project said hydraulic excavators were relocated at other project sites of the assessee - Revenue seeking to deny benefit of exemption notification – retrospective effect of Notification No.13/2008-CE dated 1.3.2008 amending the original Notification No.105/95-CE dated 28.8.1995 – maintainability of appeal in High Court in terms of Section 35L of the CEA, 1944 – HELD – if order of th... [Read more]

Central Excise - Respondents-assessee cleared hydraulic excavators for project aided by international financial institution without payment of duty on the strength of exemption notification 108/95-CE dated 28.08.1995 - on completion of project said hydraulic excavators were relocated at other project sites of the assessee - Revenue seeking to deny benefit of exemption notification – retrospective effect of Notification No.13/2008-CE dated 1.3.2008 amending the original Notification No.105/95-CE dated 28.8.1995 – maintainability of appeal in High Court in terms of Section 35L of the CEA, 1944 – HELD – if order of the Appellate Tribunal would go beyond inter-se disputes between the parties and may effect large number of cases, such an issue would partake the character of one of ‘General public importance’ - the facts on hand clearly indicate that dispute does not restrict itself to inter party rights, but extends to class of assessees like the respondent herein, inasmuch as, interpretation of the notification dated 01.03.2008 is the subject matter of this appeal. Thus, issue as to whether the said notification would empower the revenue to deny the exemption provided under the notification dated 28.08.1995 is an issue pertaining to determination of excisability of the goods for the purposes of assessment by virtue of the clarificatory notification dated 01.03.2008. Hence, the appeal under Section 35G before this Court would not be maintainable and appellant–revenue has to pursue its grievance by filing an appeal under Section 35L before the Hon’ble Apex Court – Revenue appeal is dismissed [Read less]

2020-VIL-355-CESTAT-MUM-ST  | CESTAT SERVICE TAX

Service Tax - Reversal of ineligible Cenvat credit before issue of SCN – liability of interest under Rule 14 of CCR, 2004 and imposition of penalty under rule 15 of CCR, 2004 read with section 78 of Finance Act, 1994 - the appellants case that could not have utilised CENVAT credit as their activity of construction / upgradation and operation and maintenance of the ‘toll roads’ is exempt and did not constitute ‘taxable service’ – HELD - In the present case, the reversal of credit before issue of SCN renders the taking of credit to have been erased ab initio. There is not even a whiff of allegation that the credi... [Read more]

Service Tax - Reversal of ineligible Cenvat credit before issue of SCN – liability of interest under Rule 14 of CCR, 2004 and imposition of penalty under rule 15 of CCR, 2004 read with section 78 of Finance Act, 1994 - the appellants case that could not have utilised CENVAT credit as their activity of construction / upgradation and operation and maintenance of the ‘toll roads’ is exempt and did not constitute ‘taxable service’ – HELD - In the present case, the reversal of credit before issue of SCN renders the taking of credit to have been erased ab initio. There is not even a whiff of allegation that the credit reversed had been utilized, or could have been utilized, to the detriment of the exchequer - We cannot really fault the tax authorities for proposing an unintended rigidity as their commitment to constitutional obligation, even if were a bit over-enthusiastic. That, however, cannot confer validation to recoveries primed by such assumptions - From a perusal of rule 14 of CCR, 2004 and, in particular, of the disjunctive collation of ‘taken’, ‘utilized’ and ‘erroneously refunded’ with the expression ‘wrongly’ qualifying, not three but only two, it would appear that the assumption of credit and a refund of credit, if wrong, would have to pay the price in the form of ‘interest.’ However, it is unusual for ‘utilization’ to be qualified with ‘ineligibility’ on its own as ‘utilization’ is solely for the purpose of discharge of tax liability which, even if not warranted, does not, by any stretch of usage, behove description as ‘wrongly.’ Such a transferred epithet can only reasonably mean ‘utilization’ after having been wrongly taken and, thereby, made ineligible - the foundation of the confirmation of demand, charging of interest and the imposition of penalty is built upon sand - the impugned orders are set aside to allow the appeals [Read less]

2020-VIL-356-CESTAT-DEL-ST  | CESTAT SERVICE TAX

Service Tax – Export of Services - Formula for calculation of export refund under Rule 5 of CCR, 2004 – appellant aggrieved by incorrect application for formula resulting in reduced refund amount – scope of “Export Turnover of services” – HELD – the impugned order has misconceived the formula by taking billing amount of export of services as the amount of total turnover or gross turnover for calculation of refund. Evidently, the formula given is for calculation of proportionate refund, where an assessee has got export turnover in part and domestic turnover in part, which is not the fact in the present case. A... [Read more]

Service Tax – Export of Services - Formula for calculation of export refund under Rule 5 of CCR, 2004 – appellant aggrieved by incorrect application for formula resulting in reduced refund amount – scope of “Export Turnover of services” – HELD – the impugned order has misconceived the formula by taking billing amount of export of services as the amount of total turnover or gross turnover for calculation of refund. Evidently, the formula given is for calculation of proportionate refund, where an assessee has got export turnover in part and domestic turnover in part, which is not the fact in the present case. As the appellant is exporting 100% of their services, accordingly, the appellant is entitled to full refund - the Adjudicating Authority to grant the balance refund amount within 30 days along with interest as per Rules - the appeal is allowed [Read less]

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