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More Judgements

2019-VIL-545-CESTAT-DEL-ST  | CESTAT SERVICE TAX

Service Tax - Demand of Rs. 122.30 crore including Education Cess and Higher Education Cess alongwith equivalent amount of penalty - Whether the acquisition of land made by the appellant for setting up of the thermal power plant by the JV company as per the agreement entered with RWPL is to be considered as service after the denial of permission of transfer of land, acquired by the JV company - Whether the 51% equity stake which has been granted to the appellant by the Implementation Agreement, in the JV company, could be treated as ‘Business Auxiliary Service’; and Whether deployment of officers in the JV company, wou... [Read more]

Service Tax - Demand of Rs. 122.30 crore including Education Cess and Higher Education Cess alongwith equivalent amount of penalty - Whether the acquisition of land made by the appellant for setting up of the thermal power plant by the JV company as per the agreement entered with RWPL is to be considered as service after the denial of permission of transfer of land, acquired by the JV company - Whether the 51% equity stake which has been granted to the appellant by the Implementation Agreement, in the JV company, could be treated as ‘Business Auxiliary Service’; and Whether deployment of officers in the JV company, would amount to rendition of service under the category of ‘Business Auxiliary Service’ – HELD – The provisions of Mines and Minerals Act, clearly states that the element of surface right is not the main activity in the mining operation, but it is only incidental to that. In such a situation, the incidental activity cannot be treated as a main activity - Even if it is presumed that surface right is activity which could be construed as renting of immovable property, the entire sale consideration could not be treated towards the value of service provided by the appellant - The treatment of entire amount that has been spent towards the acquisition of land, by no stretch of imagination, can be treated as value towards the alleged service - there is no element of service involved in the transaction, undertaken by the appellant while acquiring the land and transferring the same to the JV company, for setting up of the power plant | Regarding treatment of 51% of equity held by the appellant in the JV company towards consideration for rendering BAS, the Commissioner has not given any category under this it is to be treated as service - the activity of grant of 51% share in JV is not covered in any of the sub heading under the BAS, as defined in Section 65(105) of the Finance Act - The demand is, therefore, not sustainable | the expenses recovered by the appellant on actual basis from the JV company, towards deputation of their employee and related expenses, cannot be categorised under the BAS. Even otherwise the deputation of employee in the JV company cannot be treated as BAS – since there is no case of suppression of facts, the larger period of limitation for raising the demand, is not available to the Department - the impugned order is set aside and appeal is allowed [Read less]

2019-VIL-404-PAT  | High Court SGST

GST - Section 68, 129, 164 & Rule 138 - Seizure of goods on the ground that the E-Way Bill had already expired when the vehicle was found in movement – Department case that subsequent generation of E-Way Bill would not validate an invalid action – issuance of demand notice for alleged violation of the provisions of Section 68 r/w Section 129 of the Bihar GST Act - HELD - provision of Rule 138(9) and (10) enables the petitioner to upload and validate part B of the Form GST EWB-01 within a period of 15 days - if the legislature has thought of giving liberty to a transporter to validate an E-Way Bills for reasons beyond h... [Read more]

GST - Section 68, 129, 164 & Rule 138 - Seizure of goods on the ground that the E-Way Bill had already expired when the vehicle was found in movement – Department case that subsequent generation of E-Way Bill would not validate an invalid action – issuance of demand notice for alleged violation of the provisions of Section 68 r/w Section 129 of the Bihar GST Act - HELD - provision of Rule 138(9) and (10) enables the petitioner to upload and validate part B of the Form GST EWB-01 within a period of 15 days - if the legislature has thought of giving liberty to a transporter to validate an E-Way Bills for reasons beyond his control and which exercise has been done either by way of a fresh generation or a re-validation, it would come within the parameter of such enabling jurisdiction which suffers no infirmity - in absence of any prescription in the Rule which debars a dealer from generating such E-Way Bill on its expiry, there is no default by the petitioner to invite a proceeding - the goods were tax paid and thus the exercise had to be regulated under the provisions of Section 129(1)(b) which provides for a lenient applicability of the penal provisions because the tax amount on the goods has already been paid by the dealer. This important aspect of the matter has eluded the assessing authority while carrying out the exercise. The entire exercise is dehors the provisions of amended Rule 138 which enables a consignor of goods to validate his E-Way Bill and which was done by the petitioner before the order of detention could be passed under Section 129 - once the assessing authority has recorded that the E-Way Bill has been generated, meaning thereby the goods carried a valid E-Way Bill, the proceedings ought to have been brought to a close, rather than to perpetuate the illegality as done in the present case - the proceedings are quashed in its entirety together with the demand - The conditional release of the goods together with the vehicle is confirmed and the petitioner is discharged from the liability of the security directed under the interim order - The writ petition is allowed [Read less]

2019-VIL-405-BOM-CE  | High Court CENTRAL EXCISE

Central Excise - Petitioner challenging the action of respondent seeking to revive abandoned show-cause notices after 14 to 17 years of its issue and after 15 years of the last hearing - whether commencement of adjudication proceedings after a long delay of 14 to 17 years is justified when the party in all these years has not been put to notice that the proceedings were kept in abeyance – HELD - the show cause notices were kept in the call book not at the instance of petitioner but by the Revenue of its own accord. After having kept it in the call book, no intimation was sent bringing it to the notice of the petitioners ... [Read more]

Central Excise - Petitioner challenging the action of respondent seeking to revive abandoned show-cause notices after 14 to 17 years of its issue and after 15 years of the last hearing - whether commencement of adjudication proceedings after a long delay of 14 to 17 years is justified when the party in all these years has not been put to notice that the proceedings were kept in abeyance – HELD - the show cause notices were kept in the call book not at the instance of petitioner but by the Revenue of its own accord. After having kept it in the call book, no intimation was sent bringing it to the notice of the petitioners that the show cause notices are still alive and would be subject to adjudication after the show cause notices are retrieved from the call book – it was reasonable for the petitioners to proceed on the basis that the department was not interested in prosecuting the show cause notices and had abandoned it. Therefore, even if, notices can be kept in the call book to avoid multiplicity of the proceedings, yet the principle of natural justice would require that before or soon after the notices are kept in the call book, the petitioners are informed the status of the SCN so as to put the parties to notice that the SCNs are still pending. Giving notices for hearing after gap of 17 years is to catch the parties by surprise and prejudice a fair trial, as the documents relevant to the show-cause notices are not available with the petitioners - the impugned show cause notices and the consequent hearing notices are quashed and set aside – answered in favour of petitioner [Read less]

2019-VIL-549-CESTAT-AHM-CU  | CESTAT Case CUSTOMS

Customs - Import of prime quality SS CR Coil claiming exemption from duty under Notification 12/2012-Cus dated 17.03.2012 - Revenue alleged that the goods imported are not prime quality and denied the exemption and demanded differential duty besides confiscating the provisionally released goods and imposing fine and penalty – HELD – the objections raised by the Revenue are not supported by the Standing Order. There is no requirement in the Standing Order that the MTC should be coil wise. The Standing Order recognize the prime goods can be shipped in varying quality, thickness, width and length - The Standing Order reco... [Read more]

Customs - Import of prime quality SS CR Coil claiming exemption from duty under Notification 12/2012-Cus dated 17.03.2012 - Revenue alleged that the goods imported are not prime quality and denied the exemption and demanded differential duty besides confiscating the provisionally released goods and imposing fine and penalty – HELD – the objections raised by the Revenue are not supported by the Standing Order. There is no requirement in the Standing Order that the MTC should be coil wise. The Standing Order recognize the prime goods can be shipped in varying quality, thickness, width and length - The Standing Order recognizes that these goods for all practical purposes are traded or sold at par with prime goods except for price consideration. In the instant case, the invoice and mill test certificate has been produced and goods are uniform cross section. The Standing Order does not in any way suggests that coils weighing less than 3MT cannot be treated as prime products - Revenue has also relied on the Ministry of Steel Guidelines. We find that the said guidelines are at variance with the standing order – the impugned order is set aside and appeal is allowed [Read less]

2019-VIL-402-KER  | High Court VAT

Kerala Tax on Luxuries Act, 1976 - Whether mens rea is an essential condition for imposing penalty on an assessee under a taxing statute - non-registration and non-payment of the luxury tax - Penalty for evasion of luxury tax – HELD - Mens rea is not an essential ingredient of contravention of the provisions of a civil statute. Penalty is attracted as soon as contravention of the statutory obligations as contemplated by the statute is established. The intention of the parties committing such violation is immaterial – in terms of Section 17A of the Act, mens rea on the part of the assessee is not an essential element to... [Read more]

Kerala Tax on Luxuries Act, 1976 - Whether mens rea is an essential condition for imposing penalty on an assessee under a taxing statute - non-registration and non-payment of the luxury tax - Penalty for evasion of luxury tax – HELD - Mens rea is not an essential ingredient of contravention of the provisions of a civil statute. Penalty is attracted as soon as contravention of the statutory obligations as contemplated by the statute is established. The intention of the parties committing such violation is immaterial – in terms of Section 17A of the Act, mens rea on the part of the assessee is not an essential element to be proved for imposing penalty under that provision. The scheme of the Act in imposing penalty is very clear. The defaults and failures which attract penalty are nothing but violations or failures or defaults of statutory civil obligations provided under the Act - There is nothing in the provisions contained in Section 17A of the Act which indicates that guilty intention of the assessee is required to be established before imposing penalty. Therefore, there is no question of proof of guilty intention or mens rea by the assessee and it is not an essential element for imposing penalty under Section 17A of the Act - the assessing authority has discretion to proceed or not under Section 17A of the Act. But, once the assessing authority has exercised the discretion, this Court cannot substitute its discretion and hold that the action taken by the assessing authority for levying penalty is illegal or improper, unless the discretion was exercised by the assessing authority in an arbitrary or capricious manner. In the instant case, the assessing authority has not exercised the discretion to levy penalty in an arbitrary or capricious manner - The order of the assessing authority, imposing penalty on the petitioner is confirmed with reduction in quantum of penalty - the revision petition is partly allowed [Read less]

2019-VIL-548-CESTAT-BLR-ST  | CESTAT SERVICE TAX

Service Tax - the appellant is an association affiliated to BCCI - liability of the appellant to pay the service tax under the category of Advertising Agency, Business Auxiliary Service and Mandap Keeper Service – HELD - the appellant has granted the right to use the advertising sites, right to exhibit advertising of any kind and right to use advertising signs during the cricket matches and extra matches but the appellant is not providing any service connected with the making, preparation, display or exhibition of advertisement activity thereby appellant does not fit into ‘Advertising Agency’ as defined in Section 65... [Read more]

Service Tax - the appellant is an association affiliated to BCCI - liability of the appellant to pay the service tax under the category of Advertising Agency, Business Auxiliary Service and Mandap Keeper Service – HELD - the appellant has granted the right to use the advertising sites, right to exhibit advertising of any kind and right to use advertising signs during the cricket matches and extra matches but the appellant is not providing any service connected with the making, preparation, display or exhibition of advertisement activity thereby appellant does not fit into ‘Advertising Agency’ as defined in Section 65(3) of the Act rather the said activity appropriately fall under ‘sale of space for advertisement’ which is taxable in terms of Section 65(105)(zzzm) of the Act w.e.f. 01.05.2006 whereas the period involved in the present case is from October 2005 to March 2006 – further, During the disputed period, the appellant did not fall in the definition of “commercial concern” because there is no profit motive of the appellant and the appellant is registered under Karnataka Societies Registration Act as a charitable institution | As far as ‘sponsorship service’ is concerned, the agreement entered with the brand owners, the appellants have received sponsorship amount towards teams and in turn the appellant has allowed the brand owners to display their brands on all the clothing worn by the team on the field during matches. This activity of displaying the sponsors logo and brand name or trade name fall under the head of ‘Sponsorship Service’ which is taxable only from 01.05.2006 whereas the period involved in the present case is prior to 01.05.2006. This issue has been decided in favour of the appellant therefore, the demand of service tax under ‘BAS’ is also not sustainable in law | As far as amount received for fund raising activity under the category of ‘Mandap Keeper Service’ is concerned, the activity of the appellant of letting out of its ground, fall under the category of ‘Mandap Keeper Service’ and the appellant is liable to pay the service tax - the demand of service tax under ‘Advertising Agency Service’ and ‘Business Auxiliary Service’ is set aside the demand under ‘Mandap Keeper Service’ is upheld along with interest – the appeal is partly allowed [Read less]

2019-VIL-547-CESTAT-HYD-CE  | CESTAT CENTRAL EXCISE

EMICALS LTD Vs COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, HYDERABAD - I: 18.07.019 - Central Excise – Short payment of Duty – allegation of clandestine manufacture and clandestine clearance – HELD - This is a case of alleged clandestine removal of goods. Therefore, it is unthinkable that there will be official records of the clandestine manufacture and clandestine clearance. If these were recorded, they will no longer be clandestine. By their very nature, unrecorded production and clearance of goods can only be found based on evidence gathered during investigation such as stock taking, private records, pr... [Read more]

EMICALS LTD Vs COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, HYDERABAD - I: 18.07.019 - Central Excise – Short payment of Duty – allegation of clandestine manufacture and clandestine clearance – HELD - This is a case of alleged clandestine removal of goods. Therefore, it is unthinkable that there will be official records of the clandestine manufacture and clandestine clearance. If these were recorded, they will no longer be clandestine. By their very nature, unrecorded production and clearance of goods can only be found based on evidence gathered during investigation such as stock taking, private records, private notebooks, statements of persons concerned, their examination and cross-examination which will lead to conclusion whether there was a clandestine removal of goods and if so, to what extent - Any person who makes statement under duress or coercion will, at the earliest opportunity, retract the statement so made. The conduct of these persons does not instil confidence that they have not voluntarily given the statements. Nevertheless, even if the statements of the alleged recipients are ignored, the statements of the factory employees themselves also support the evidence of clandestine removal of the goods. Therefore, the demand to that extent needs to be sustained - As far as the alleged clandestine production of goods is concerned, the Ld. Counsel for the appellants submits that if this production is considered then the demand on this account needs to be set off against the alleged clandestine removal - Even if the assessee is clandestinely manufacturing and removing the goods without accounting for the same in their Central Excise returns and registers, duty cannot be demanded first alleging that they have clandestinely manufactured the goods and again alleging that they have clandestinely removed the same - The appeals are remanded to original authority for the limited purpose of calculation of duty – Appeal is partly allowed [Read less]

2019-VIL-67-AAAR  | AAAR SGST

GST – Rajasthan AAAR - whether the activity of supply, design, installation, commissioning and testing of solar energy based water pumping systems is supply of Goods or supply of Service and what shall be the rate of GST on it – HELD - in terms of supply of Goods and Services, the activities of supply, design, installation, commissioning and testing of solar energy based water pumping systems, whose time of supply falls after 31.12.2018, are both supply of Goods and supply of Services in terms of entry No. 234, read with entry No. 38 with rate of GST as prescribed under these entries. The Ruling passed by the Rajasthan... [Read more]

GST – Rajasthan AAAR - whether the activity of supply, design, installation, commissioning and testing of solar energy based water pumping systems is supply of Goods or supply of Service and what shall be the rate of GST on it – HELD - in terms of supply of Goods and Services, the activities of supply, design, installation, commissioning and testing of solar energy based water pumping systems, whose time of supply falls after 31.12.2018, are both supply of Goods and supply of Services in terms of entry No. 234, read with entry No. 38 with rate of GST as prescribed under these entries. The Ruling passed by the Rajasthan Authority for Advance Ruling is modified [Read less]

2019-VIL-65-AAAR  | AAAR SGST

GST – Rajasthan AAAR - Whether the input tax credit of Central Tax paid in Haryana is available to the Applicant who is registered in Rajasthan State – HELD – Input Tax Credit of the Central GST would be available to a person registered in Rajasthan if the location of the supplier and place of supply of the services are in Rajasthan. In other words, ITC of the Central Tax charged from the Appellant in Haryana is not available to appellant as in this case both the location of the supplier and place of supply of the services are in the State of Haryana – Input Tax Credit of the Central GST paid in Haryana is not admi... [Read more]

GST – Rajasthan AAAR - Whether the input tax credit of Central Tax paid in Haryana is available to the Applicant who is registered in Rajasthan State – HELD – Input Tax Credit of the Central GST would be available to a person registered in Rajasthan if the location of the supplier and place of supply of the services are in Rajasthan. In other words, ITC of the Central Tax charged from the Appellant in Haryana is not available to appellant as in this case both the location of the supplier and place of supply of the services are in the State of Haryana – Input Tax Credit of the Central GST paid in Haryana is not admissible to the Appellant in Rajasthan – the appeal is dismissed [Read less]

2019-VIL-66-AAAR  | AAAR SGST

GST – Rajasthan AAAR - Mining of soapstone and dolomite - The activity undertaken by applicant is classifiable under 9973 specifically under sub-heading 997337 as Licensing services for the right to use minerals including its exploration and evaluation or as any other service - the Appellant is not sure as to which sub-entry of entry No. 17 is applicable in their case. They are pursuing each and every sub-entry which prescribes minimum rate of tax i.e. rate of tax equal to the rate on supply of soapstone and dolomite i.e. 5% - we have no hitch in determining that the impugned Service is covered under the revised entry No... [Read more]

GST – Rajasthan AAAR - Mining of soapstone and dolomite - The activity undertaken by applicant is classifiable under 9973 specifically under sub-heading 997337 as Licensing services for the right to use minerals including its exploration and evaluation or as any other service - the Appellant is not sure as to which sub-entry of entry No. 17 is applicable in their case. They are pursuing each and every sub-entry which prescribes minimum rate of tax i.e. rate of tax equal to the rate on supply of soapstone and dolomite i.e. 5% - we have no hitch in determining that the impugned Service is covered under the revised entry No. (viii) of the Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017 attracting GST @ 18% payable under Reverse Charge Mechanism – Appeal dismissed [Read less]

2019-VIL-398-KER  | High Court VAT

Central Sales Tax Act, 1956 – Appellant aggrieved by finalisation of assessment by rejecting claim for concessional rate of tax allowed based on those 'C' Forms – doubt regarding genuineness of 'C' Forms – HELD – the Assessing Authority has not collected any relevant or convincing materials to arrive at a conclusion that the disputed 'C' Forms were bogus - there is no proof regarding such verification made or materials collected with respect to the disputed 'C-Forms' - Unless and until the Assessing Authority became convinced that the 'C' Forms produced were not genuine, based on any materials collected, the assess... [Read more]

Central Sales Tax Act, 1956 – Appellant aggrieved by finalisation of assessment by rejecting claim for concessional rate of tax allowed based on those 'C' Forms – doubt regarding genuineness of 'C' Forms – HELD – the Assessing Authority has not collected any relevant or convincing materials to arrive at a conclusion that the disputed 'C' Forms were bogus - there is no proof regarding such verification made or materials collected with respect to the disputed 'C-Forms' - Unless and until the Assessing Authority became convinced that the 'C' Forms produced were not genuine, based on any materials collected, the assessments made rejecting the claim for concessional rate of tax, cannot be sustained – the matter is remitted to the original authority for a fresh decision after making due verification and adjudication with respect to genuineness of the 'C' Forms – answered in favour of assessee [Read less]

2019-VIL-542-CESTAT-MUM-CE  | CESTAT CENTRAL EXCISE

Central Excise - eligibility of credit of taxes discharged for procuring service of job workers - relayering of machinery used in production - relayering of the rolling machine arising from wear and tear - CENVAT credit on ‘Courier Service’ utilised for despatch of samples to potential customers – Extended Period - HELD - the activity for which service tax has been levied pertains to rendering capital goods workable at regular intervals of usage - The repair of machinery is undoubtedly entitled to be considered as a service that has a connection with the manufacturing process. However, it is the tax paid as recipient... [Read more]

Central Excise - eligibility of credit of taxes discharged for procuring service of job workers - relayering of machinery used in production - relayering of the rolling machine arising from wear and tear - CENVAT credit on ‘Courier Service’ utilised for despatch of samples to potential customers – Extended Period - HELD - the activity for which service tax has been levied pertains to rendering capital goods workable at regular intervals of usage - The repair of machinery is undoubtedly entitled to be considered as a service that has a connection with the manufacturing process. However, it is the tax paid as recipient of Business Auxiliary Service that is claimed to be eligible. We find no evidence on record that the service on which tax was incurred pertained to relayering of machinery used in production. Such evidence is required as relayering does not readily lend itself to conformity with definition in Section 65(19) of Finance Act, 1994 - no reason to consider the tax paid on ‘business auxiliary service’ to be one that conforms the definition of ‘input service’ in rule 2(l) of CCR, 2004 | ‘Courier service’ was utilised for shipment of samples. Admittedly, the samples themselves are not the finished product and the availment of ‘courier service,’ even if for dispatch of samples is an expenditure that goes into the value of the final product - the denial of CENVAT credit on availment of services of courier is not in accordance with law and set aside | Audit can only unearth which is declared and which is on record. The activity of business auxiliary service not being entitled to CENVAT credit in the given circumstances, would not be on record. Hence the plea of limitation does not merit acceptance – The appeal is partly allowed [Read less]

2019-VIL-400-MAD  | High Court SGST

GST - The petitioner could not pay GST owing to technical glitch in Department's portal – interest demand towards delay in payment of GST for seven months from July 2017 to January 2018 – Attachment of Bank Account - HELD - post January 2018, the technical glitch of GST portal stood rectified and the petitioner has been paying GST through the relevant portal - the entire petition is confined to payment of interest for delayed payment of GST for seven months i.e., July 2017 to January 2018 - the whole issue boils down to one question as to whether the petitioner encountered technical glitch in payment of GST for the sai... [Read more]

GST - The petitioner could not pay GST owing to technical glitch in Department's portal – interest demand towards delay in payment of GST for seven months from July 2017 to January 2018 – Attachment of Bank Account - HELD - post January 2018, the technical glitch of GST portal stood rectified and the petitioner has been paying GST through the relevant portal - the entire petition is confined to payment of interest for delayed payment of GST for seven months i.e., July 2017 to January 2018 - the whole issue boils down to one question as to whether the petitioner encountered technical glitch in payment of GST for the said seven months - prima facie, the complaint made by the petitioner to the GST Seva Kendra as well as the screen shots which have been reproduced show that the writ petitioner had encountered difficulty, but in the light of the disputation, this Court is of the considered view that it would be appropriate to leave it to the technical body concerned to decide whether there was a technical glitch at all - On deposit of 25 lakhs and production of bank guarantee, the attachment of the writ petitioner's account will stand lifted and the impugned communication shall be in kept in abeyance till a decision is taken by the I.T. Grievance Redressal Committee and communicated to the Writ Petitioner within seven working days from the date of the decision [Read less]

2019-VIL-396-TEL-CU  | High Court Case CUSTOMS

Customs – Denial of benefit of Exemption Notification - Levy of duty along with interest for violation of Condition of Customs Notification No.96 of 2009 dated 11.09.2009 – advance authorizations for duty-free import of raw materials - Fulfilment of export obligations – belated filing of redemption certificates – HELD - the petitioner could not submit the redemption certificates within the sixty days period owing to the delay on the part of the issuing authority - it is not the contention of the customs authorities that the delay in issuance of the redemption certificates was attributable to the petitioner. It is f... [Read more]

Customs – Denial of benefit of Exemption Notification - Levy of duty along with interest for violation of Condition of Customs Notification No.96 of 2009 dated 11.09.2009 – advance authorizations for duty-free import of raw materials - Fulfilment of export obligations – belated filing of redemption certificates – HELD - the petitioner could not submit the redemption certificates within the sixty days period owing to the delay on the part of the issuing authority - it is not the contention of the customs authorities that the delay in issuance of the redemption certificates was attributable to the petitioner. It is for the authorities themselves to put in place necessary machinery to see that such certificates were issued promptly, so that they could be produced within the time stipulated in condition of Notification No.96 of 2009 dated 11.09.2009. An importer who duly complied with such export obligations in terms of the exemption granted under the Foreign Trade Policy cannot be penalised for delay on the part of the authorities in processing the necessary documentation - respondent adopted a tediously hidebound approach in dealing with the matter. The fact that petitioner had discharged its export obligations would have been well within the knowledge of the customs authorities themselves and all that the first respondent had to do was to cross verify the factum of such compliance even if the petitioner failed to appear before him – the impugned orders are unsustainable on facts and in law and they are set aside - The writ petitions are allowed [Read less]

2019-VIL-543-CESTAT-CHE-ST  | CESTAT SERVICE TAX

Service Tax – Denial of refund of service tax paid on Man-power Recruitment Supply Agency Services provided outside India – HELD - the date on which the refund claim was originally submitted has to be taken as the date for computing the period of limitation - the period of limitation prescribed in section 11B will not applicable for the service tax paid under mistake. In the present case, the appellants paid service tax on service which is not taxable as per the provisions of law. Thus, when the tax has been paid under a mistake the period of limitation prescribed under section 11B cannot be applied | when the amount i... [Read more]

Service Tax – Denial of refund of service tax paid on Man-power Recruitment Supply Agency Services provided outside India – HELD - the date on which the refund claim was originally submitted has to be taken as the date for computing the period of limitation - the period of limitation prescribed in section 11B will not applicable for the service tax paid under mistake. In the present case, the appellants paid service tax on service which is not taxable as per the provisions of law. Thus, when the tax has been paid under a mistake the period of limitation prescribed under section 11B cannot be applied | when the amount is adjusted in the bank account and remitted to the service provider in India through bank account in Indian currency, the same is to be considered as paid in convertible foreign currency - the condition provided in Rule 6A is fulfilled and the services are exported | since the services are provided outside India the doctrine of Unjust Enrichment cannot be applied to services exported. In the present case, the services having been exported outside India, the discussions made by the authority below observing that the appellants have included the element of service tax in the debit note and, therefore, the refund is hit by doctrine of Unjust Enrichment, cannot sustain - the impugned order is set aside and the appeal is allowed [Read less]

2019-VIL-540-CESTAT-HYD-ST  | CESTAT SERVICE TAX

Service Tax - Refund of accumulated CENVAT Credit under Rule 5 of CCR, 2004 r/w notification No. 27/2012-CE(NT), dated 18.06.2012 – rejection of refund application on the ground that same is filed beyond the time limit of one year – HELD - although the services were rendered during October to December 2016, the first payment with respect to these services was received only on 25.11.2016 and appellant filed refund application on 31.10.2017, well before the expiry of one year from this date. Therefore, in terms of Notification No. 27/2012-CE(NT), dt. 18.6.2012 as amended, the entire refund application was filed within ti... [Read more]

Service Tax - Refund of accumulated CENVAT Credit under Rule 5 of CCR, 2004 r/w notification No. 27/2012-CE(NT), dated 18.06.2012 – rejection of refund application on the ground that same is filed beyond the time limit of one year – HELD - although the services were rendered during October to December 2016, the first payment with respect to these services was received only on 25.11.2016 and appellant filed refund application on 31.10.2017, well before the expiry of one year from this date. Therefore, in terms of Notification No. 27/2012-CE(NT), dt. 18.6.2012 as amended, the entire refund application was filed within time limit - for the sole purpose of factual verification of the dates and decision in terms of notification No. 27/2012-CE(NT) as amended by Notification No. 14/2016-CE(NT), dt. 01.03.2016, the matter is remanded to the original authority – assessee appeal allowed by remand [Read less]

2019-VIL-64-AAAR  | AAAR SGST

GST - Karnataka AAAR - Whether the ‘Power Bank’ traded by the appellant is classifiable under Heading 8504 40 90 as ‘Static Converter’ and whether authority for Advance Ruling has erred in holding that there is no conversion involved in the power bank and hence classifiable under HSN 8507 as an accumulator - HELD - the Power Banks consists of not only the Lithium-ion Polymer battery but also the circuitry such as 'charge management system' and 'voltage boost converter'. All the components together make up the Power Bank - it is not the battery alone which makes up a Power Bank. The battery combined with the charge ... [Read more]

GST - Karnataka AAAR - Whether the ‘Power Bank’ traded by the appellant is classifiable under Heading 8504 40 90 as ‘Static Converter’ and whether authority for Advance Ruling has erred in holding that there is no conversion involved in the power bank and hence classifiable under HSN 8507 as an accumulator - HELD - the Power Banks consists of not only the Lithium-ion Polymer battery but also the circuitry such as 'charge management system' and 'voltage boost converter'. All the components together make up the Power Bank - it is not the battery alone which makes up a Power Bank. The battery combined with the charge management system and the voltage boost convertor constitute the Power Bank. All three components work in tandem to perform the function of storing electrical energy and discharging it to the connected device when required. The mere fact that there is a converter in the Power Bank will not make it a Static Converter - The critical aspect of storage of electrical energy is what distinguishes an accumulator from a static converter. The Power Bank traded by the Appellant is classifiable as an accumulator under Chapter heading 85.07 - From the changes made to the GST rates. it is seen that the goods "Lithium-ion battery" and "Lithium-ion accumulator including Lithium-ion power bank" were carved out from the original category "Electrical accumulators" - The Lithium-ion battery was classified under 8507 60 00 while the Lithium-ion Power bank was classified under 85.07. This corroborates our findings that Power Bank was always considered as an accumulator and never a Static Convener - the order passed by the Advance Ruling Authority is upheld and appeal filed by the appellant is dismissed [Read less]

2019-VIL-63-AAAR  | AAAR SGST

GST - Karnataka AAAR – Power of Appellate Authority for Advance Ruling to entertain an appeal under Section 100 of the CGST Act filed beyond the period of 60 days from the date of communication of the Advance Ruling order that is sought to be challenged – Period of Limitation - HELD - this Appellate Authority being a creature of the statue is empowered to condone a delay of only a period of 30 days after the expiry of the initial period for filing appeal - the crucial words in Section 100 of the CGST Act are "not exceeding thirty days" used in the proviso to sub-section (2). To hold that this Appellate Authority could ... [Read more]

GST - Karnataka AAAR – Power of Appellate Authority for Advance Ruling to entertain an appeal under Section 100 of the CGST Act filed beyond the period of 60 days from the date of communication of the Advance Ruling order that is sought to be challenged – Period of Limitation - HELD - this Appellate Authority being a creature of the statue is empowered to condone a delay of only a period of 30 days after the expiry of the initial period for filing appeal - the crucial words in Section 100 of the CGST Act are "not exceeding thirty days" used in the proviso to sub-section (2). To hold that this Appellate Authority could entertain this appeal beyond the extended period under the proviso would render the phrase "not exceeding thirty days" wholly otiose. No principle of interpretation would justify such a result. Therefore, we are not empowered to condone the delay of 145 days in filing this appeal. The application for condonation of delay in filing this appeal is accordingly rejected - Since the appeal cannot be allowed to be presented on account of tune limitation, the question of discussing the merits of the main issue in appeal which is the eligibility to concessional rate of GST on the product Evacuated Tube Collector, does not arise – The appeal is rejected on ground of Limitation [Read less]

2019-VIL-397-PAT  | High Court VAT

Central Sales Tax Act, 1956 – when the Quarterly Return itself suffered defects on the information on stock transfer, and though the position was clarified in the annual returns whether it entitles the petitioner to generate Form ‘F’ for said quarters of the financial year in tune with the actual receipts of stocks from outside the State – Department of the view that where the defects lies in the quarterly return itself, even if the petitioner has rectified the same in the annual return but until such time that the quarterly returns are revised in tune with the annual return, there can be no corresponding generatio... [Read more]

Central Sales Tax Act, 1956 – when the Quarterly Return itself suffered defects on the information on stock transfer, and though the position was clarified in the annual returns whether it entitles the petitioner to generate Form ‘F’ for said quarters of the financial year in tune with the actual receipts of stocks from outside the State – Department of the view that where the defects lies in the quarterly return itself, even if the petitioner has rectified the same in the annual return but until such time that the quarterly returns are revised in tune with the annual return, there can be no corresponding generation of Form ‘F’ for the said quarters – HELD – an onus is cast upon the transferee-dealer to generate Form ‘F’ by filling up the particulars of the stocks received by him from its branches outside the State and for such purpose the transferee-dealer has to fill up the correct figures in the returns so filed in each quarters and not in casual manner - the fault is entirely of the petitioner in being casual in his approach in so far as the claim of stock transfer is concerned - the very particulars which the petitioner wishes to enter in the Form ‘F’ for the 2nd and 3rd quarters of the financial year 2012-13 is not in tune with the returns filed for the said quarters. Had it been a case where the petitioner while filing his annual return for the financial year 2012-13 also filed revised returns for the 2nd and 3rd quarters the issue would be different but the petitioner having gone into slumber to discharge his obligation within the period provided under section 24(7) of the Bihar VAT Act is awakening after a lapse of almost 4 years thereafter. This lapse would not persuade the Court to grant indulgence on the statutory claim which apart from lacking in merits also suffers from laches - the correspondences that may be relied upon by the petitioner would be of no aid in justification of the lapse – the prayer seeking direction to the Department to permit generation of Form ‘F’ on the basis of the figures present in the annual returns cannot be accepted - Section 6A of the CST Act makes it clear that if the burden of establishing such stock transfer is not discharged by production of declaration form, the transfer is to be treated as sale and the petitioner should have been aware of such consequences which are so eloquent on the statute book - The writ petition is dismissed [Read less]

2019-VIL-399-DEL  | High Court VAT

Delhi VAT Act, 2004 - Petitioner grievance that the reopening of the assessment is sought to be done beyond the period of four years and before the expiry of six years of the assessment period – HELD - The jurisdictional requirement for invoking the extended period of 6 years is that the Commissioner should note the reasons to believe that the tax was not paid and that the failure to pay such tax should be on account of ‘concealment, omission or failure’ by the Assessee to disclose ‘full material particulars’ - the twin requirements of (i) the Commissioner having to form the requisite ‘reason to believe’, and... [Read more]

Delhi VAT Act, 2004 - Petitioner grievance that the reopening of the assessment is sought to be done beyond the period of four years and before the expiry of six years of the assessment period – HELD - The jurisdictional requirement for invoking the extended period of 6 years is that the Commissioner should note the reasons to believe that the tax was not paid and that the failure to pay such tax should be on account of ‘concealment, omission or failure’ by the Assessee to disclose ‘full material particulars’ - the twin requirements of (i) the Commissioner having to form the requisite ‘reason to believe’, and (ii) for such reasons to have a live nexus with the failure to pay tax as a result of the assessee’s concealment, omission or failure to disclose material particulars, is not fulfilled in the present case. It is trite that ‘reason to believe’ is different from ‘reason to suspect’ – the report of the DGCEI per se could not have formed the basis in the absence of further independent inquiry undertaken by the Commissioner even if of a preliminary nature. It is one thing to say that the Petitioner had violated the provisions of the Central Excise (CE) Act, but another to immediately infer that it also violated the provisions of the DVAT Act – further, the reassessment proceedings the Respondent has sought to make no distinction between the liability under the DVAT and that under the CST Act. In terms of Section 5 of the DVAT Act these two could not be combined. There is no question of treating this as a mere ‘technical problem’ and permitting the Respondents to repeat the exercise by proceeding against the Petitioner separately. Apart from the facts that this is not merely a ‘technical problem’, such exercise would be clearly time barred at this stage - the reopening of the assessment by invoking the extended period of six years in terms of the proviso to Section 34 (1)(a) of the DVAT Act was bad in law. The impugned assessment orders under Sections 32 and 33 of the DVAT Act as well as the notices under Section 59 (2) of the DVAT Act are set aside and the petition is allowed [Read less]

2019-VIL-541-CESTAT-AHM-CE  | CESTAT CENTRAL EXCISE

Central Excise - Revenue allegation of non-receipt of inputs based upon the report of check post authority and with the view that the vehicles not passing through the shortest route cannot be said to have transported goods to appellant’s factory – HELD - There is no substance in the contention of the SCN that if the goods have not been transported through shortest route, the receipt of goods by the Appellant cannot be said to have taken place - The SCN placed reliance upon the report of the check-post in-charge. The Appellant had sought cross examination of the check post in-charge to show that there are other alternat... [Read more]

Central Excise - Revenue allegation of non-receipt of inputs based upon the report of check post authority and with the view that the vehicles not passing through the shortest route cannot be said to have transported goods to appellant’s factory – HELD - There is no substance in the contention of the SCN that if the goods have not been transported through shortest route, the receipt of goods by the Appellant cannot be said to have taken place - The SCN placed reliance upon the report of the check-post in-charge. The Appellant had sought cross examination of the check post in-charge to show that there are other alternate routes from GAIL, Pata to Silvassa through which the goods are also transported to Silvassa. However, the adjudicating authority denied the request of the appellant without assigning any reason - when the SCN has relied upon the report of check post officer, in that case the Appellant should have been granted cross examination of said person - in such case when no cross examination of person whose report is being relied upon has been provided, it cannot be held that the Appellant did not receive the said goods. Thus merely on the basis of the report of the check-post authorities, it cannot be concluded that the goods were not transported to the appellant factory - It was GAIL who would have decided the transporter to transport the consignments to appellant and the appellant has no control over deciding any transport. When the prices were on FOR basis and the transporter was appointed by M/s GAIL, it cannot be said that the Appellant could have diverted any goods by understanding with the transporter. Thus in absence of evidence of diversion of material the demand of cenvat credit is not sustainable - the department could not establish the non receipt of inputs beyond doubt to uphold the impugned order. The impugned order is set aside and appeals are allowed [Read less]

2019-VIL-544-CESTAT-MUM-CE  | CESTAT CENTRAL EXCISE

Central Excise - the appellant is engaged in assembly of chlorination plant at various sites on turnkey basis - show cause notice alleging that appellant have manufactured various parts of chlorinators in their factory and transferred to their customer’s site but failed to discharge duty liability on the entire goods used in the turnkey projects resulting into short payment of duty – Manufacture - emergence of an immovable property – HELD - no evidence has been placed by the Revenue that the chlorination plant erected and commissioned at site could easily be unassembled and shifted to other place without causing dama... [Read more]

Central Excise - the appellant is engaged in assembly of chlorination plant at various sites on turnkey basis - show cause notice alleging that appellant have manufactured various parts of chlorinators in their factory and transferred to their customer’s site but failed to discharge duty liability on the entire goods used in the turnkey projects resulting into short payment of duty – Manufacture - emergence of an immovable property – HELD - no evidence has been placed by the Revenue that the chlorination plant erected and commissioned at site could easily be unassembled and shifted to other place without causing damage to the components and plant as a whole, hence, be considered as movable one – further, BARC and other customers of the appellant have certified that the chlorination plant installed in their premises are fixed permanently to earth and not meant to be shifted/transferred. No contrary evidence is placed by the Revenue - the chlorination plant installed at various sites out of the goods manufactured and cleared by the appellant from their factory on payment of excise duty and assembling with other bought out items at the site of the customer, resulted into an immovable property and hence not leviable to excise duty - the impugned order is set aside and the appeals are allowed [Read less]

2019-VIL-537-CESTAT-CHE-ST  | CESTAT SERVICE TAX

Service Tax – Sale through sealed tenders - Demand under “Auctioneer’s Service” – demand under “Business Support Service” for lending money to cooperative society members – HELD - As far as Auctioneers’ Service is concerned, it can be levied on the service of auctioning - in the present case, the appellants are selling goods through tender and not through auctions. The Auctioneer’s service does not cover the service of tender. As far as the demand under BSS is concerned, the cooperative society is engaged in the business of lending money to their members and have been collecting some charge towards appr... [Read more]

Service Tax – Sale through sealed tenders - Demand under “Auctioneer’s Service” – demand under “Business Support Service” for lending money to cooperative society members – HELD - As far as Auctioneers’ Service is concerned, it can be levied on the service of auctioning - in the present case, the appellants are selling goods through tender and not through auctions. The Auctioneer’s service does not cover the service of tender. As far as the demand under BSS is concerned, the cooperative society is engaged in the business of lending money to their members and have been collecting some charge towards appraising the value of the pledged jewels in the process. It is true that, in turn, the appellant has been borrowing money from their bank but it does not mean that the appellant is supporting service of the bank. They are borrowing money from the bank on their account and in turn lending it to their members - demands on both these counts are not sustainable and set aside - the impugned order is set aside and the appeal is allowed [Read less]

2019-VIL-395-RAJ-CE  | High Court CENTRAL EXCISE

Central Excise - the assessee provided job work to M/s Parle Products Ltd - Eligibility to credit on transportation services used for transport of finished products to the premises of M/s Parle Products Ltd - revenue appeal alleging unauthorized availment of Cenvat credit contending that assessee could not claim the credit since it provided input services to M/s Parle Products Ltd. and that the latter alone could claim credit – HELD – there is nothing either on record or in the SCN or even in the Order-in-Original which suggests that the agreement, which parties entered into whereby service tax was to be borne by the a... [Read more]

Central Excise - the assessee provided job work to M/s Parle Products Ltd - Eligibility to credit on transportation services used for transport of finished products to the premises of M/s Parle Products Ltd - revenue appeal alleging unauthorized availment of Cenvat credit contending that assessee could not claim the credit since it provided input services to M/s Parle Products Ltd. and that the latter alone could claim credit – HELD – there is nothing either on record or in the SCN or even in the Order-in-Original which suggests that the agreement, which parties entered into whereby service tax was to be borne by the assessee and input credit was to be claimed by it, was prohibited in law. Furthermore, it is not revenue’s case that M/s. Parle Products Pvt. Ltd. availed of such Cenvat credit - the CESTAT correctly held that the assessee could not be accused of claiming credit from Cenvat - Cenvat credit eligible to job workers-assessee – Revenue appeal is dismissed [Read less]

2019-VIL-538-CESTAT-KOL-CE  | CESTAT CENTRAL EXCISE

Central Excise - demand of CENVAT Credit reversal under Rule 6(3) of the Cenvat credit Rules, 2004 on account of trading of goods – the appellant availed the option available under rule 6(3)(ii) r/w rule 6(3A) – HELD - the appellant did not maintain separate accounts for the input services used in or in relation to the provision of taxable service as well as exempt service i.e. trading of goods. Therefore, two options were available to them, i.e., either to pay 6% of value of the exempted service or pay an amount equal to the credit attributable to the input services used in or in relation to exempt services subject to... [Read more]

Central Excise - demand of CENVAT Credit reversal under Rule 6(3) of the Cenvat credit Rules, 2004 on account of trading of goods – the appellant availed the option available under rule 6(3)(ii) r/w rule 6(3A) – HELD - the appellant did not maintain separate accounts for the input services used in or in relation to the provision of taxable service as well as exempt service i.e. trading of goods. Therefore, two options were available to them, i.e., either to pay 6% of value of the exempted service or pay an amount equal to the credit attributable to the input services used in or in relation to exempt services subject to the provisions of sub-rule (3A). When the mistake was pointed out, the appellant reversed the proportionate common credit taken on input services used in the provision of exempt services (trading of goods) along with interest thereon. Therefore, Rule 6(3) (i) will not have any application, when a credit is taken wrongly and the same is reversed along with interest as it tantamount to not taking of the credit at all - the demand confirmed by the lower appellate authority cannot be sustained. The impugned order is set aside and the Appeal filed by the appellant is allowed [Read less]

2019-VIL-29-SC  | Supreme Court VAT

Andhra Pradesh Value Added Tax Act, 2005 - When the petitioner has already paid 12.5% of the disputed tax amount for the purpose of maintaining an appeal as required by law, it would be wholly unjust for the tax authorities to demand the balance of the disputed tax amount notwithstanding the pendency of the appeal - The Commercial Tax authorities shall desist from taking coercive measures for collection of the balance disputed tax amount payable by the petitioner in terms of the assessment order till disposal of its appeal by the Appellate Deputy Commissioner – High Court Order is Upheld and Department SLP is dismissed... [Read more]

Andhra Pradesh Value Added Tax Act, 2005 - When the petitioner has already paid 12.5% of the disputed tax amount for the purpose of maintaining an appeal as required by law, it would be wholly unjust for the tax authorities to demand the balance of the disputed tax amount notwithstanding the pendency of the appeal - The Commercial Tax authorities shall desist from taking coercive measures for collection of the balance disputed tax amount payable by the petitioner in terms of the assessment order till disposal of its appeal by the Appellate Deputy Commissioner – High Court Order is Upheld and Department SLP is dismissed [Read less]

2019-VIL-392-PAT  | High Court VAT

Bihar Industrial Incentive Policy, 2011 - Reimbursement of VAT under Industrial Policy, 2011 - Denial of substantial benefit on the ground ‘lack of approval by the ‘Competent Authority’ - principles of ‘promissory estoppel’ - The Commercial Tax department on the other hand attributes stoppage of reimbursement to the change in procedure under the Bihar Industrial Investment Promotion Policy, 2016 - abuse of executive power – HELD - In absence of the term ‘Competent Authority’ defined under the ‘Industrial Policy, 2011’, after the approval granted by the State Investment Promotion Board, there is no requi... [Read more]

Bihar Industrial Incentive Policy, 2011 - Reimbursement of VAT under Industrial Policy, 2011 - Denial of substantial benefit on the ground ‘lack of approval by the ‘Competent Authority’ - principles of ‘promissory estoppel’ - The Commercial Tax department on the other hand attributes stoppage of reimbursement to the change in procedure under the Bihar Industrial Investment Promotion Policy, 2016 - abuse of executive power – HELD - In absence of the term ‘Competent Authority’ defined under the ‘Industrial Policy, 2011’, after the approval granted by the State Investment Promotion Board, there is no requirement of further approval by any other authority - the stand taken by the Director, Industries is not only illegal but a gross case of abuse of executive power - The ‘Industrial Policy, 2011’ having been announced on review of the ‘Industrial Policy, 2006’, it is a malafide act on the part of the Director, Industries to make a reference to the stipulations present in the resolution issued under the ‘Industrial Policy, 2006’ which would stand superseded by the ‘Industrial Policy, 2011’, especially where there is no provision present in the ‘Industrial Policy, 2011’ which proceeds to save the resolution - the reliance by the Industries department to the notification issued under the ‘Industrial Policy, 2006’ to deny the benefits admissible to these petitioners under the ‘Industrial Policy, 2011’ is a malafide act and de-hors the object for which the Industrial Policy was framed - there is again a difference in opinion for stoppage of these incentives in between the department of Industries and the Commercial Tax department - the two departments are not united on their reasons for stoppage of the benefits midway through the ‘Industrial Policy, 2011’ which by itself is demonstrative of the absolute lack in foundation for the impugned act - The State having made a promise under the ‘Industrial Policy, 2011’ to extend the incentive benefits to the budding industrialist, that the petitioners acting on the promise have made investment and fulfilled the criteria for drawing the incentives, the respondent-State cannot deny the incentives on the principles of ‘promissory estoppel’ - the State Government in its Industries department and the Commercial Taxes department is directed to ensure that every incentive to which the petitioners are found entitled under the ‘Industrial Policy, 2011’ shall be accorded to them within a maximum period of three months - The writ petition is allowed [Read less]

2019-VIL-539-CESTAT-AHM-ST  | CESTAT SERVICE TAX

Service Tax – Demand of service tax on reimbursement received for performing other services in course of performing principal service of Clearing and Forwarding Agent Service – Department case that mere bifurcation of the total amount one for ‘CFA’ and other for various expenses will not affect the total gross value charged by the appellant for the purpose of charging the service tax – HELD - From agreement it is seen that there is a separate charges for the service of ‘CFA’ and there are additional charges towards the various expenses which appellant has to undertake on behalf of their client, therefore, the... [Read more]

Service Tax – Demand of service tax on reimbursement received for performing other services in course of performing principal service of Clearing and Forwarding Agent Service – Department case that mere bifurcation of the total amount one for ‘CFA’ and other for various expenses will not affect the total gross value charged by the appellant for the purpose of charging the service tax – HELD - From agreement it is seen that there is a separate charges for the service of ‘CFA’ and there are additional charges towards the various expenses which appellant has to undertake on behalf of their client, therefore, the remuneration for the ‘CFA’ service is clearly identified all other charges are paid as reimbursable charges by the service recipient. Since, the other expenses are incurred as per the instruction of the service recipient the same is reimbursed on actual basis by the service recipient to the appellant. Therefore, these charges are over and above the remuneration in respect of ‘CFA’ service and it is not towards the service of ‘CFA’ as a reimbursement of expenses. Therefore, it cannot be said that the reimbursable expenses is part of the service charge of ‘CFA’ - only remuneration towards ‘CFA’ service is leviable to service tax and the reimbursable expenses charged by the appellant to the service recipient was not be taxable – assessee appeal is allowed by remand [Read less]

2019-VIL-394-MAD-CU  | High Court Case CUSTOMS

Customs - the writ petitioner imported the product is 'Relay', however, the Department of the view that it is 'Automatic Regulating or Controlling Instruments and Apparatus' – challenge to imposition of customs duty, interest and penalty when the order of interim stay granted by Hon'ble Division Bench is now operation and consequent to CBIC circular dated 18.07.2019 – HELD – as per CBIC circular dated 18.07.2019, where any stay has been granted on recovery of revenue by the CESTAT or the High Court, the proper approach would be to file an application for vacation of stay at the appropriate forum and obtain suitable d... [Read more]

Customs - the writ petitioner imported the product is 'Relay', however, the Department of the view that it is 'Automatic Regulating or Controlling Instruments and Apparatus' – challenge to imposition of customs duty, interest and penalty when the order of interim stay granted by Hon'ble Division Bench is now operation and consequent to CBIC circular dated 18.07.2019 – HELD – as per CBIC circular dated 18.07.2019, where any stay has been granted on recovery of revenue by the CESTAT or the High Court, the proper approach would be to file an application for vacation of stay at the appropriate forum and obtain suitable directions of the Tribunal or High Court, as the case may be, before initiating any recovery action - There is no disputation that the said circular is operating. Therefore, it follows as an inevitable sequitur that impugned notice has to be set aside owing to said circular albeit reserving the rights of the respondents to reissue the said notice in the same manner or in any other appropriate manner subject to the outcome of the matter which now the Hon'ble Division Bench - The writ petition is disposed of [Read less]

2019-VIL-393-KER  | High Court VAT

Kerala VAT Act - Whether order of assessment is in line with the order of Appellate Tribunal when the petitioner committed default in producing the books or did not avail the opportunity as provided by the Appellate Tribunal – HELD – The Tribunal has restored order of assessment and it is not within the competence of the second respondent to ignore said order and independently pass order of re-assessment - by giving the contextual meaning to the word 'restore' or 'restoration' used in order of Appellate Tribunal, the assessment order is illegal and beyond the jurisdiction of second respondent - As per the scheme under ... [Read more]

Kerala VAT Act - Whether order of assessment is in line with the order of Appellate Tribunal when the petitioner committed default in producing the books or did not avail the opportunity as provided by the Appellate Tribunal – HELD – The Tribunal has restored order of assessment and it is not within the competence of the second respondent to ignore said order and independently pass order of re-assessment - by giving the contextual meaning to the word 'restore' or 'restoration' used in order of Appellate Tribunal, the assessment order is illegal and beyond the jurisdiction of second respondent - As per the scheme under the Act, in the three tier system provided for determination, appeal, appeal to Tribunal etc, the final decision taken in the hierarchy of forums is binding on the officers and the assessee. In the case on hand, the Tribunal has taken the final decision. Therefore, that decision alone is binding between the parties for the assessment year – the impugned order is set aside as illegal and beyond the jurisdiction of second respondent [Read less]

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