WEEKLY SUMMARY

17^th September – 24^th September

 

 

24.09.2016

 

cuNoti51

Customs: Amends Notification No.12/2012-Customs to reduce import duty on potatoes, wheat, palm oil, crude palm oil of edible grade and refined palm oil of edible grade

 

cuCir45

Customs: Incorrect simultaneous issuance of dual benefit of Zero duty EPCG and SHIS to exporters under the FTP 2009-14 — option providing flexibility to return either benefit

 

cuNoti52

Customs: Amends Customs notifications 104/2009-Cus, 16/2015-Cus and 17/2015

 

dgftPN33

DGFT: Amendment in ANF-5A [Application for issue of EPCG Authorisation] incorporating the guidelines for designating/certifying a Common Service Provider

 

 

23.09.2016

 

2016-VIL-524-MAD

Tamil Nadu Value Added Tax Act – Section 3B – Turnover - construction of flats – assessment - computation of tax on deemed sale value of the goods involved in the execution of works contract by adding transport charges and gross profit to the purchase turnover - reversal Input Tax Credit in respect of the differential turnover – HELD - The case of the petitioner is that sofar as the transfer of 50% unsold flats, the petitioner cannot enter into a construction agreement, as the construction is already over and what is being sold, is an immovable property and not liable to tax - the factual issue is as to how many number of flats have been sold, and what remained unsold on the date of issuance of completion certificate, whether the procedure adopted by the petitioner for the purpose of availing the Input Tax Credit was justifiable, whether it confirms to the procedure under Section 5 or whether there is an infraction of Rule 8(5) etc - to adjudicate the factual issues, the petitioner should first furnish adequate information. The mere statement that 50% of the flats remained unsold on the date of issuance of the completion certificate may not be sufficient - The initial burden of proof is on the petitioner and if he discharges the burden to the satisfaction of the Assessing Officer, then only the burden of proof shifts - the findings rendered by the Assessing Officer in the impugned assessment orders, in sofar as the three issues namely, issue pertaining to deemed sale value, issue arising out of cross verification and issue relating to sale of fixed assets, is remanded to the respondent for fresh consideration - the Writ Petitions are partly allowed

 

2016-VIL-527-ALH

U.P. Trade Tax Act – rate of tax on stainless steel wire – whether at the rate of 10% as unclassified commodity or 16% in the category of all remaining articles (excluding wares and surgical instruments) made wholly or principally of stainless steel in view of Notification dated 20.01.2001 – HELD – The very word 'article' connotes that it should be identifiable commodity having some shape or particular identity. The other word used in the notification is 'made of' that too makes it clear that the article would have to be something having a shape, size and identity and would not refer to the raw-material - the Tribunal is correct in coming to the conclusion while reading the word 'article' to mean the finished goods – in the relevant assessment year the sale of stainless steel wires is taxable at 10% alongwith development tax at the rate of 1% - revenue revision dismissed

 

2016-VIL-676-CESTAT-AHM-CE

Central Excise – Rule (3) of Cenvat Credit Rules 2004 - inputs destroyed in fire - recovery of CENVAT Credit on the inputs/raw materials and on the inputs contained in WIP goods - whether the credit availed on inputs which were destroyed in fire and also the inputs contained in WIP, goods destroyed in fire, are recoverable from the appellant – HELD - the intent of the rule makers was not to disallow credit merely because a contingency over which the assessee had no control takes place. In the present case, none could have predicted a fire occurring in the manufacturing plant of the assessee. That the fire occurred and at the relevant time but the goods were already utilized in the process of manufacturing of the final product, then the credit paid on those goods was admissible - the Appellants are not required to reverse the CENVAT Credit availed on the inputs used in or in relation to manufacture of WIP goods, which was destroyed in the fire – inputs lying in stock, as such, destroyed in fire had not been used in or in relation to the manufacture of final product in their factory; thus the criterion of use had not fulfilled - Thus, the credit involved on the inputs lying in stock and destroyed in the fire before being put to use could not be allowed to the Appellant and the same is required to be paid back/reversed with penalty and interest – assessee appeal partly allowed

 

2016-VIL-675-CESTAT-MUM-CE

Central Excise – Valuation under amended Section 4 post July, 2000 - supply of Natural Gas to OMCs - whether price charged for sale of CNG to Oil Marketing Companies (OMCs) can be considered as transaction value for the purpose of payment of duty under Section 4(1)(a) of CEA - Adjudicating Authority confirmed the demand on the differential value between MGL’s sales price from their own outlets and/or the outlets of Private Parties (PPs) and the sales price of MGL to OMCs, treating the difference as the charges for the services rendered by OMCs to MGL – HELD – sale of CNG by the Appellants to OMCs is on principal to principal basis, which is clear from various terms/covenants of the agreements whereas the PPs are acting as agents of MGL, for which they get specified service charges and the PPs are paying service tax on such amount; in contrast, the sale of CNG takes place between MGL and OMCs at OMCs outlets and OMCs issue their cash memos to their customers and MGL do not have any role to play in such transactions - The nomenclature like commission/profit margin used in the agreements when read with invoices raised by the Appellants upon OMCs, it is clear that it was the sale transaction on principal to principal basis and, hence, trade discount allowed by whatever name called is an admissible deduction and the Appellants are not liable to include the same for the purpose of payment of duty - the Appellants have charged mutually agreed price, which is transaction value between the Appellants and OMCs in the normal course of their business for sale of CNG and no additional consideration, whatsoever, flows from OMCs to MGL - Appellants’ case is squarely covered under new Section 4(1)(a) of CEA which essentially permit different transaction values, unlike normal sales price existed prior to 1.7.2000 – assessee appeal allowed on merit

 

2016-VIL-667-CESTAT-CHE-ST

Service Tax – online database access and retrieval services - admissibility of CENVAT Credit on Tour Operator Service, Travel Agent Service, Foreign Exchange Service (Forex purchase) and Renting of Immovable property service – HELD - The Appellant, being a service industry and employees being a key source, it is its obligation of the Appellant to provide pick up and drop facilities to the employees – tour operator services have been consumed by the appellant during the course of their business and have been accounted as business expenditure. The denial of credit is not warranted - the services of the air travel agent was availed for making travel arrangements of employees to meet clients in connection with marketing and accordingly shall be eligible for refund - As long as the Travel Agency Service is not received for personal benefit of any employee but meant for travel of office personnel, credit is not deniable - The services of Forex broker has been utilized for foreign exchange. The said service has not been specifically excluded under the definition of input service. The said service will qualify in the first limb of the definition of input service and accordingly shall be entitled for refund - when the very property is used for the purpose of carrying on business, there is no reason to disallow CENVAT Credit of the service tax paid in respect of Renting of Immovable Property service so availed – assessee appeal allowed

 

2016-VIL-669-CESTAT-DEL-ST

Service Tax – SEZ unit - refunds claim under Notification No. 40/2012-ST dated 20/6/2012 – denial of refund in respect to CHA services, Professional services (Chartered Accountant), Training of employees etc. – HELD - The notification broadly prescribes that the services for which refund shall be paid are those which are approved by the Jurisdictional Development Commissioner of the SEZ and are consumed within the SEZ - the CHA Services, Commercial Training and Coaching Services as well as those rendered by a practicing Chartered Accountant stand approved in the letter of the Development Commissioner - The rejection of refund claims in respect of provisional services rendered by Chartered Accountant as well as those of training of employees is totally unjustified - as these services have been rendered to the appellant’s SEZ unit as well as are covered in the approved list of services, there is no justification for denial of the refund – on the matter of that invoices do not indicate the full amount of service tax, the issue stands settled in favour of the appellant – assessee appeal is allowed

 

2016-VIL-28-ARA

Customs - the Broadcasting Equipment will be procured by the applicant on lease basis temporarily - Whether the applicant is eligible to claim the exemption under Notification No. 27/2002-Cus dated 01.03.2002 as amended by Notification No. 27/2008-Cus dated 01.03.2008 under the category of temporary import of leased goods - Whether the value stated in the Chartered Engineer’s Certificate can be the basis of Customs Valuation or whether the book value shown in the books of accounts of foreign suppliers can be basis of Customs Valuation or whether depreciated value can be the basis of Customs Valuation – HELD - The applicant is eligible to claim the exemption under Notification No. 27/2002-Cus dated 01.03.2002, as amended by Notification No. 27/2008-Cus dated 01.03.2008 under the category of temporary import of leased goods - the valuation of broadcasting equipment proposed to be imported temporarily on lease basis, has to be under Rule 9 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 under “Residual Method” - The value stated in the Chartered Engineer’s Certificate to be provided by the applicant at the time of import of said Broadcasting Equipment will be one of the basis of Customs Valuation in terms of paragraph 12 of CBEC Circular No. 25/2015-Cus dated 15.10.2015

 

2016-VIL-668-CESTAT-MUM-CU

Customs - inter-unit transfer of goods under EOU scheme under valid CT-3 certificate - demand of duty forgone as the material imported was not used for the production - The entire consignment of POY imported by assessee was sold without any processing – revenue contention that the clearance of imports was not done in accordance with the condition of the exemption notification No. 53/97-Cus and the assessee failed to fulfill its export and other obligation under this scheme by not utilizing duty free POY in the finished goods – HELD - it does not require existence of any valid reason for transfer of goods to another EOU - Plain reading of the Policy suggests that only when such sale is meant for a DTA unit, valid reason is required, the Policy does not provide any such restriction in respect of supply from one EOU to another such EOU - no merits in the Revenue’s appeals and the same are rejected

 

mahaCir28T

Maharashtra: Grant of Administrative Relief - Modification in Trade Circular No. 13T of 2016

 

utrNoti782

Uttarakhand: Amendment in Government notification no. 98/2015/181(120)/XXVII(8)/08 dated 20 January, 2015 - Exemption to manufacturing industrial unit having his main place of business in Uttarakhand

 

Maharashtra FAQ

Maharashtra: Frequently Asked Questions (FAQ) regarding Advance Ruling

 

cuNoti50

Customs: Amends notification No. 12/2012-Customs dated 17.03.2012

 

cuNoti122NT

Customs: Exchange Rate Notification

 

cuCir44

Customs: Regarding setting up of 'Custom Clearance Facilitation Committee' (CCFC) for Land customs stations and Inland Container Depots-reg

 

cuInst528

Customs: Classification of certain inorganic chemicals such as mono potassium phosphate, calcium nitrate, potassium magnesium phosphate as fertiliser

 

ceInst390

Central Excise: Reduction of Government litigation — withdrawal of appeals by the Department before CESTAT/HC

 

stNoti41

Service Tax: Exempts taxable service provided by State Government Industrial Development Corporations/ Undertakings by way of granting long term lease of industrial plots to industrial units from so much of service tax which is leviable on the one time upfront amount payable for such lease

 

gstDO137

CBEC: Letter of Chairman (CBEC) - Role of CBEC under GST Regime

 

gcNews

News Updates on First Meeting of GST Council - Key decisions taken

 

dgftTN18

DGFT: Clarification in respect of definition of service provider under Common Service Providers (CSP) in Export Promotion Capital Goods (EPCG) Scheme

 

 

22.09.2016

 

News Updates:

1. Will meet April 1 target for GST rollout: Arjun Meghwal

2. In its first meeting the GST Council is set to discuss dual control; the GST threshold and the compensation mechanism

 

2016-VIL-523-GUJ

Gujarat Sales Tax Act, 1969 – section 46 – contravention of the provision of section 56 - Imposition of penalty – collection of amount by way of tax – collection and payment of tax by the assessee in the absence of clarity with regard to whether Gujarat Sales Tax would be payable regarding the transactions of the nature where gas was supplied from Bombay High through pipeline to the units situated in the State of Gujarat or as to whether CST under the Central Sales Tax Act was payable – HELD - transaction of sale of ONGC is not a transaction effected within the State of Gujarat and it is not liable to tax as per entry 47 of Schedule II, Part-A to the Gujarat Sales Tax Act, 1969 - petitioner had already paid the tax, in view of the provisions of Section 46 of the Act, initiation of penalty proceedings is misconceived and bad in law – since the petitioner is not bound to pay the taxes, therefore, the question of penalty will not arise – assessee appeal allowed

 

2016-VIL-525-DEL

Delhi Value Added Tax Act, 2004 - Sections 38, 39 and 42 – Refund – validity of Public interest litigation against withholding the refund to which the registered dealers are entitled to under the provisions of the DVAT Act – HELD - having taken into consideration the fact that the cause, which apparently involves public interest, the interest of justice would be met if the Commissioner of VAT, New Delhi is directed to look into the issue and take the necessary steps for rectification of the lapses, if any, in implementation of the statutory provisions - writ petition is disposed with a direction to the Commissioner of VAT to consider the issues raised in this writ petition by treating the same as a representation

 

2016-VIL-526-P&H-CU

Customs - appellant purchased DEPB Scrip from M/s Beni Exports and it utilised to discharge duty liability on the goods imported - The department on finding that DEPB obtained by M/s Beni Exports was obtained by using certain forged documents, cancelled the same - show cause notice for withdrawing the benefits already availed of on the basis of DEPB purchased by the appellant - The adjudicating authority confirmed the demand. The order was upheld in appeal by the first appellate authority as well as the Tribunal larger bench - Whether duty can be demanded from an importer who is not a party to fraud committed by an exporter – HELD - the importer therein was not a party to the fraud and there was categorical finding that he had purchased DEPB from the open market in bonafide belief of its being genuine - there is a specific finding recorded by the first appellate authority and even by the Tribunal that the appellant was not party to the fraud with the seller of DEPB - the DEPB was found to be a genuine document, though obtained by seller by producing some forged documents, to which the appellant was not a party – Tribunal order set aside - answered in favour of the assessee and against the revenue

 

2016-VIL-674-CESTAT-KOL-CU

Customs – Valuation - enhancement in declared value – HELD - customs authorities are bound to assess duty on the transaction value and law does not allow the department to ascertain an imaginary value based on the basis of DOV data. Only in exceptions specified in Section 14 of the Customs Act, 1962 can the department follow Customs Valuation Rules - In the present proceedings supplier and importer are not related persons and there is no evidence on record that any amount in excess of what has been declared by the appellant has been repatriated by the appellants. Thus there is no ground for rejecting the transaction value - enhancement of assessable value in the present proceedings is arbitrary and not justified - confiscation of imported goods and imposition of penalty are not attracted – assessee appeal allowed

 

2016-VIL-673-CESTAT-HYD-CE

Central Excise – refund claim of excess duty paid – reduction in rate of duty on cement from 12% to 8% w.e.f 07-12-2008 - due to delay in updation of rate changes in the software of the appellant, cement was cleared at 12% instead of 8%, resulting in excess payment of duty – refund rejected on the ground that the appellant was unable to prove that the duty has not been passed on to the buyer - Principles of unjust enrichment - HELD - the Chartered Accountants certificate has not been accepted on the ground that it is completely silent about the burden of duty element passing on to the customers - When the Chartered Accountants certificate has certified that the cement was dispatched to depots and not to end customer and that the depots are neither registered under Central Excise Act nor have issued any Central Excise invoices, unless the department has evidence or proof to the contrary, it cannot be concluded without basis that incidence of duty has been passed on to the customers requiring the claimed amounts to be credited to CWF - the appellants were very much eligible for refunded of excise duty inadvertently paid at pre-revised rates of duty - the impugned order is set aside and appeal is allowed

 

2016-VIL-671-CESTAT-DEL-CE

Central Excise - classification of operation theatre lights – assessee claimed classification under CET heading 9018.00 – Original Authority classified the product under heading 9405 and denied the exemption of Notification No. 10/2003 dated 01/3/2003 - Commissioner (Appeals) set aside the original order and allowed the assessee appeal - Department in appeal – HELD – the product operation theatre Lights are specialized lamps have shadowless operation, heat defusing capacity and also colour correction capabilities - Sub-heading No. 9405 covers Lamps and lighting fittings including searchlights and spotlights and parts thereof. These are simply items sold at an average cost either as a part of a vehicle or furniture. The instruments appliances and apparatus for medical and surgical use were to be classified under heading No. 90.18 of the CET. The O.T. Lights are nothing but specialized surgical equipment - no merit in revenue appeal. Accordingly, the same is rejected

 

2016-VIL-672-CESTAT-ALH-CE

Central Excise – clandestine removal of dutiable goods - show cause notice on the basis of certain loose papers, sheets and slips found in the possession of various functionaries of the manufacturing company – HELD – it is seen that in none of the statements there was any admission that the data recorded on the loose sheets, was related to the value of the goods cleared clandestinely. There is force in the appellant’s argument that department did not compare the data with the data related to clearances of goods on which duty was paid and the goods manufactured by them which did not attract duty - the show cause notice is based on presumption. Therefore, the subject of cause notice dated is not sustainable - the impugned is set aside and assessee appeal allowed

 

2016-VIL-670-CESTAT-BLR-ST

Service Tax – rejection of refund on the ground of time-bar and for want of correlation between shipping bills, export of invoice charges, CHA charges etc – Revenue ground of appeal that mere filing of letter is admissible only for refund of pre-deposit, for refund of any other amount, refund should be filed in proper form as per para 6 of Chapter 9 of CBEC Manual – HELD – the Rules prescribing forms is a Rule of Procedure which cannot be imposed in a manner which defeats the right of the party. It is necessary to remember that Rules of Procedure are the handmade of justice. In such cases it is just and proper and also necessary on the part of the department to inform the concerned party to submit an application for a refund in the prescribed form, in the event the application or the letter submitted by the party seeking refund is not in conformity with the prescribed form - the impugned order is upheld and revenue appeal dismissed

 

2016-VIL-669-CESTAT-BLR-ST

Service Tax – Section 73(3) - Appellant availed the services of foreign company for maintenance and repair of capital goods installed in the factory – payment of entire service tax with interest post-audit – penalty under Sections 76, 77 & 78 of the Finance Act, 1994 alleging suppression of facts – HELD - Section 73(3) is very clear as it says that if tax is paid along with interest before issuance of the show-cause notice, then in that case, show-cause notice shall not be issued - the appellant had bonafide believe that he is not liable to pay service tax but post-audit he immediately paid the entire service tax along with interest. Except mere allegation of suppression, the Department did not bring any material on record to prove that there was suppression and concealment of facts to evade payment of tax. Consequently, the imposition of penalty under Section 78 of the Act is not justified and bad in law- the impugned order is set aside by allowing the appeal of the appellant

 

GSTvideo3: Video on 'Interpretation of Supply' and 'Free Supplies'

 

Frequently Asked Questions (FAQ) on GST [As released by CBEC on 21.09.2016]

 

dgftPN32

DGFT: Merchandise Exports from India Scheme (MEIS) - Additions/amendments in Table 2 [containing ITC (HS) codewise list of products with reward rates] of Appendix 3B

 

dgftTN17

DGFT: Refund of Terminal Excise Duty (TED) under Deemed Exports where Duty has been paid from CENVAT Credit and ab-initio waiver is not available

 

adNoti14

Anti Dumping investigation concerning imports of O-Acid originating in or exported from China PR

 

harDraftNoti20

Haryana: Draft amendment in HVAT Schedule B and C - Exemption from levy of VAT on Sale of 'Technetium 99M Generators' used in diagnosis of Cancer

 

 

21.09.2016

 

2016-VIL-521-P&H

Haryana Value Added Tax Act, 2003 – interpretation of punctuation mark strategically placed in Entry 54 of Schedule B - Whether the product “Coated Fabric” and in common parlance known as leather cloth/“Rexin” falling under CETH 5903 is covered under Entry 51 of Schedule B of the Act - If the goods manufactured by the appellant fall in Entry 54 of Schedule 'B' of the Act, whether condition of leviability of additional excise duty in lieu of sales tax is applicable thereon – HELD - the product being manufactured by the appellant, namely, coated fabric also known as leather cloth/rexin falls in the term 'textile' - Once a punctuation mark has a specific meaning, it has to be given effect to. It cannot be treated as otiose. Meaning thereby, there is a break in sentence at that stage. It is also evident from a plain reading of the entry itself, which uses the word 'and' in between “leather cloth” & “inferior or imitation leather cloth ordinarily used in book binding”. Thereafter, punctuation mark “colon” has been used, which is followed by other types of goods mentioned therein by using the word 'or' therein and finally using the word 'and' with a condition that additional excise duty in lieu of sales tax is levied on them. In case, there is a break in sentence, then certainly the condition of levy of additional excise duty in lieu of sales tax will not be applicable to the goods mentioned in the first part thereof - As leather cloth is specifically mentioned in Entry 54 of the Act and that no condition of levy of additional excise duty in lieu of sales tax is applicable thereon, the appellant will be entitled to benefits arising therefrom - answered in favour of the assessee

 

2016-VIL-668-CESTAT-KOL-CE

Central Excise – Rule 57Q(1) of CER, 1944 - Modvat credit – Capital goods – payment of duty on Iron and Steel finished goods under compounded levy scheme - whether respondent is eligible to take Modvat Credit on capital goods installed and commissioned on 16.09.1997 when restricting clause got inserted in Table to Rule-57Q(1) under Notification No.33/97-CE(N.T.) dated 01.08.1997 – HELD – Amendments/insertions to Sr.No.1 of Table to Rule 57Q(1) and Rule 57 S(11) were made simultaneously under Notification No. 33/97-C.E.(N.T.) dated 01.08.1997. From the provisions of MODVAT scheme under CER, 1994 it transpires that intention of the legislature behind above amendments was not to allow credit on capital goods if received by an assessee, who is paying duty on Iron and Steel finished goods under compounded levy scheme as per Section 3A of the CEA, 1944. Further as per Rule 57S(11), if any, credit is lying unutilised the same shall lapse - the intention of the legislature was not to allow Modvat credit with respect to capital goods during the period of compounded levy or if any credit is lying unutilised before the compounded levy period the same shall lapse – the impugned order is set aside and revenue appeal is allowed

 

2016-VIL-520-MAD-CE

Central Excise - Clearance of denatured ethyl alcohol for captive consumption - finalisation of the provisional assessment for clearances on the basis of comparable goods - Rule 6 of the Central Excise (Valuation) Rules, 1975 - opportunity of hearing, before directing the assessee to pay the differential duty - rectification of mistake – validity of Tribunal order remanding matter to Superintendent for finalisation of the provisional assessment – HELD - The direction issued to the Superintendent is only to quantify the differential duty, if any, due to the inclusion duty element on the raw material and finalise RTI2 assessment in terms of Rule 6(b)(ii) of the Central Excise (Valuation) Rules, 1975 - In the light of the directions issued by the adjudicating authority, the computation of differential duty on the basis of the cost of denatured ethyl alcohol worked out while including the input duty paid, this cannot be said to be an adjudicatory function, to be discharged by the Superintendent and therefore, an opportunity of hearing is not required – Rule 6(b)(i) of the Valuation Rules, 1975 does not mandate the Jurisdictional Superintendent, Central Excise to provide an opportunity of hearing, for computation of duty to be paid by an assessee - the directions of the Tribunal, to the Jurisdictional Range officer to provide an opportunity of hearing, is not in accordance with the scheme of the Act and the rules framed thereunder, and hence the directions are liable to be set aside and accordingly set aside - the range jurisdictional officer is bound to take note of the decision of the Hon'ble Apex Court in the case of Dai Ichi Karkaria and compute the value of excisable goods under assessment - appeal is disposed

 

2016-VIL-522-BOM-CU

Customs Act, 1962 - Section 27A - Interest on refund - returned of refund application on the ground that the same was not accompanied with the Essentiality Certificate – denial of interest on the ground that the interest free period of three months for processing the claim would start from the date of receipt of a complete refund application – HELD - If a refund application filed is incomplete, the Refunding Authority can always return back the refund application saying that it is incomplete in all respects or reject the same on the ground that it is incomplete - initially when the Refund Application was rejected by the Refunding Authority it was not the case of the Refunding Authority that all the essential documents were not supplied by the Petitioner along with the refund application. The said refund application was rejected on the ground that the Petitioner had not complied with the conditions set out in the Essentiality Certificate. Hence the refund application was rejected on merits. This being the position, we are unable to accept the arguments of respondent that the refund application filed by the Petitioner was complete in all respects only on the date of personal hearing – impugned order is set aside by holding that the Petitioner would be entitled to interest from the date immediately after expiry of three months from 20th June, 2011 till 11th July, 2014 (being the date when the refund was actually paid to the Petitioner) – appeal allowed by remand

 

2016-VIL-665-CESTAT-MUM-ST

Service Tax – demand of service pertaining to construction of railway sidings and sinking of the mine shaft – mining service - Commercial and Industrial Construction services – levy of tax on advances – HELD - advances made cannot be subject to tax if such advances are adjusted against dues for rendering of service as that would amount to double taxation - in the light of entry to tax 'mining service' by section 65(105)(zzzy) of Finance Act, 1994 with effect from 1st June 2007 which was intended to cover all activities relating to mineral exploration and extraction under one head as a consolidation entry, the actual sinking of a shaft cannot be treated as 'site formation and clearance service' but as related to excavation of mineral from the mine. Consequently, the demand for the disputed period is not valid - the Railway Act, 1989 provides for railways with public investment and private investment and both function under the same statute – therefore, railway sidings built by the appellant fall within the exclusionary portion of section 65(25a) and are outside the ambit of taxation - liability to tax on the labour portion of work executed is confirmed – assessee appeal partly allowed

 

2016-VIL-666-CESTAT-BLR-ST

Service Tax – whether the applicants who are purchasers of an apartment/flat/residence from a builder or a developer are entitled to claim refund of service tax paid by them to the builder on the ground that service tax was not taxable before 1.7.2010 – HELD – refund claim may not be rejected on the ground that there is no bill or invoice. What is required according to the provisions of Section 11B of the Act is the evidence that the person claiming the refund has borne the service tax liability and not passed on the same to any other person. As long as the document shows that the service provider is a registered person, his registration number is available and details of service tax paid and the certificate by the developer that he has paid the service tax and statement showing the value of service tax are provided, would be sufficient - the appeals are allowed by way of remand

 

GSTvideo2: Video on Structure of Supply and Supply (International Perspective)

 

West Bengal Notifications

wbNoti1024: Amendment of West Bengal Value Added Tax Rules, 2005 - Amendment of Rule 34A, 34AA & 34AB

wbNoti1070: Amendments in the department resolution No. 483-F.T., dated the 31st March, 2010

wbNoti1195: Amendments in the department notification No. 2373-F.T., dated the 2nd August, 2002

wbNoti1196: Amendments in the department notification No. 2372-F.T., dated the 2nd August, 2002

wbNoti1198: Amendments in the West Bengal Sales Tax Rules, 1995

 

mahaCir27T

Maharashtra: Regarding amendments to the Maharashtra Settlement of Arrears in Disputes Act, 2016

 

Uttar Pradesh Notifications

upNoti1341: Uttar Pradesh Entry Tax Act - Entry Tax on transportation for online shopping goods

upNoti1342: Uttar Pradesh Entry Tax Act - Amendment in Schedule - Rate of Entry Tax on goods purchased or ordered through online shopping or E-Commerce

upNoti1343: Uttar Pradesh Entry Tax Act - Entry Tax exemption to Gas based electric units

 

ceNoti45

Central Excise: CENVAT Credit (Tenth Amendment) Rules, 2016 - Amends the requirement of enclosing photocopies of the railway receipts (RRs) with the STTG certificate

 

ceCir1048

Central Excise: Service Tax certificate for transportation of goods by rail (STTG Certificate)

 

ceInst275

Excise: Non-compliance of the sub-section 2 of Section 32K of Central Excise Act, 1944 - Immunity granted to a person from prosecution, penalty and fine

 

 

20.09.2016

 

2016-VIL-29-TRB

Maharashtra Value Added Tax Act 2002 - section 45 (4) – Allowable deductions in computing the turnover of a works contractor - JV (Joint Venture) company is established to execute the works contract of laying pipeline - levy of tax on the expenses incurred by principal contractor - JV company awarded hundred percent sub-contract to one of the parties to JV – retention of 1% of sales proceeds by JV for meeting its own expenses – validity of levy of tax amount retained – deductions of bank charges and interest paid by the consortium from sale proceeds being establishment charges - HELD - the relationship between principal contractor and subcontractor for the purpose of works contract is of principal agent and not of buyer and seller. On reading of whole section 45 it becomes clear that there is a joint responsibility of principal and agent towards revenue. State Govt. is empowered to levy tax on 100% sale proceeds - Sale proceeds remained in the hands of principal contractor is a part of sale proceeds of the entire contract. Part of the sale proceeds remained in the hands of principal contractor pertaining to material used in execution of contract is liable to tax – Appeal partly allowed

 

2016-VIL-662-CESTAT-HYD-CU

Customs - denial of depreciation on the equipments used in the export of software after de-bonding of warehouse and recovery of duty on full value of the equipment – Setting-up of infrastructure facility for STP units under the STPI Scheme - duty free import of infrastructural facility equipments under notification No. 153/93-Cus dated 13-08-1993 – demand of duty on the original value of the equipment, without allowing depreciation on the ground that said Notification No. 153/93-Cus does not have any specific provision for allowing ‘Depreciation’ – HELD - Notifications issued subsequently, like 52/2003-Cus did take cognizance of the early obsolescence of capital goods related to software technology and in fact, extended depreciation at attractive terms. But just because No.153/21993-Cus is bereft of such a provision, it would not mean that capital goods imported by appellant in 2006, when cleared to DTA five years thence, in 2011, can be denied depreciation from originally imported value - the appellant is eligible for the depreciation as prescribed by the CBEC Circular applicable at the time of debonding – impugned order is set aside and assessee appeal is allowed

 

2016-VIL-664-CESTAT-BLR-CE

Central Excise – demand of 10% of the amount as per Rule 6(3) of CCR, 2004 on the ground that the appellant had not maintained separate books of accounts and also did not exercise the option as provided in Rule 6(3) read with Rule 6(3A) of the CCR, 2004 – HELD – the Rule does not say anywhere that on failure to intimate, the manufacturer / service provider would lose his right to avail second option of reversing the proportionate credit. Sub-Rule (3A) is only a procedure contemplated for application of Rule 6(3). Consequently, the argument of Revenue is that the appellants exercising option is mandatory and on its failure, the appellant has no other option but to accept and apply Rule 6(3)(i) and make payment of 5%/10% of the sale price of the exempted goods or exempted services is not acceptable, because the Rule does not lay down any such restriction - the impugned order is not sustainable on merit as well as on limitation and therefore, set aside - appeal of the appellant is allowed

 

2016-VIL-660-CESTAT-KOL-CE

Central Excise - Cenvat credit – capital goods - credit in respect to EOT Crane and Gratings – HELD - Cenvat Credit is admissible with respect to EOT Crane and Gratings availed by the appellant – as far as Gratings used for operating the furnace is concerned, it is observed that such platforms are essential for operating the machines used in the manufacture of finished goods - However, Cenvat Credit with respect to steel and bent items is not inadmissible – appeal partly allowed

 

2016-VIL-663-CESTAT-MUM-ST

Service Tax – BAS - expenses be incurred for traveling tickets, telephone charges, postage, hotel accommodation, fooding etc of marketing agent – demand of service tax – HELD - If the amounts which are claimed by the agent are actual expenses, the said amounts cannot be considered as taxable under ‘business auxiliary services’, as under the category of BAS, the amount can be taxed as a commission paid by the appellant - the impugned order is unsustainable and liable to be set aside – assessee appeal allowed

 

2016-VIL-661-CESTAT-KOL-ST

Service Tax - whether or not appellant is required to discharge duty liability on GTA service during the period 16/11/1997 to 1/6/1998 by virtue of retrospective amendment of Notification No. 43/97-ST dated-5/11/1997 as amended by the 12th schedule of the Finance Act, 2003 – HELD - the purpose of Notification No. 43/97, anyone who falls under any of the categories (i) to (viii) would not come under the exemption. Since the Appellants fall under (ii) thereof they also go out of the exemption even though they are not covered under (i) or any of the other items from (iii) to (viii). Hence non-trading private companies even though registered as a small scale industries are not entitled to the exemption under Notification No. 43/97 – assessee appeal is dismissed

 

Article

Place of Supply (POS) of goods under Goods & Service Tax

You Tube video on GST

 

 

19.09.2016

 

2016-VIL-519-P&H

Haryana Value Added Tax Act, 2003 – Section 7A – levy of additional tax - validity of levy of surcharge on the amount of lump sum tax paid by the appellant on the works contract – HELD – In the cases of some specified class of dealers, at their option the State is authorised to collect tax in lump sum in lieu of the tax payable under the VAT Act. In that process, taxable turnover is not to be determined except in the cases of retailers opting for payment of tax on lump sum basis. As Section 7A of the VAT Act provides for levy and collection of additional tax on taxable turnover, the cases where taxable turnover is not to be determined, the provisions will have no application. It is one of the ingredients for levy of tax. Calculation of tax is a subsequent stage - in the cases where no taxable turnover is to be determined, additional tax under Section 7A of the VAT Act is not leviable. As a consequence thereof, the circular issued by the Excise and Taxation Commissioner, Haryana, dated 14.1.2014 is set aside - writ petitions are allowed

 

Article

Farewell to Excise duty

Mist on applicability of Excise Duty w.e.f. September 16, 2016

 

mahaOrd23

Maharashtra: Maharashtra Settlement of Arrears in Disputes (Amendment) Ordinance, 2016 (Mah. Ord. XXIII of 2016)

 

apNotiGO437

Andhra Pradesh: Amendments in Andhra Pradesh VAT Rules, 2005

 

assamCir06

Assam: Assam Taxation (Liquidation of Arrear Dues) (Amendment) Act ,2016

 

assamCir08

Assam: Audit Assessment in Respect of Proposal for Refund

 

dgftNoti27

DGFT: Import Policy of Rough Marble and Travertine Blocks

 

dgftNoti28 & dgftNoti29

DGFT: Import Policy of Worked monumental or building stone (except slate) and articles thereof, other than goods of heading 6801; mosaic cubes and the like, of natural stone (including slate), whether or not on a backing; artificially coloured granules, chippings and powder, of natural stone (including slate)

 

 

17.09.2016

 

gstNoti2986

GST: Date of effect of provisions of Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19 and 20 of the GST Act

 

ceNoti44NT

Central Excise: Amendment to Form ARE-2

 

ceCir1047

Excise: Regarding rebate of duties paid on raw materials used in manufacture or processing of export goods and admissibility of duty drawback in such cases

 

ceCir1046

Excise: Regarding supply of goods manufactured by EOUs without payment of Central Excise Duty against Advance Licence/Authorisation

 

10sept - 15sept

Summary for the week of 10th September to 15th September