SUMMARY FOR THE MONTH OF APRIL
(1st April to 15th April)
1st April
cuNoti28
Customs: Amends Notification No. 69/2011-Customs, dated 29th July, 2011 so as to provide deeper tariff concessions in respect of specified goods imported under the India-Japan Comprehensive Economic Partnership Agreement (IJCEPA), w.e.f. 1st of April, 2016
cuNoti27
Customs: Supersedes Notification No. 137/1990-Customs dated 20.03.1990 - Person returning to India after having stayed abroad for at least 365 days during the two years immediately preceding the date of arrival in India - Rate of ad valorem in respect of goods specified
cuNoti26
Customs: Supersedes Notification No. 136/1990-Customs dated 20.03.1990 - Import by a passenger or a member of a crew as baggage - Rate of ad valorem in respect of goods specified
cuNoti44NT
Customs: Tariff Notification in respect of Fixation of Tariff Value of Edible Oils, Brass Scrap, Poppy Seeds, Areca Nut, Gold and Sliver
cuNoti43NT
Customs: Baggage (Amendment) Rules, 2016
Jammu & Kashmir Notification
jkNoti01: Electronic filing of CST Return by the registered dealer having gross annual turnover of Rs.20 lacs and above
jkNoti02: Electronic filing of GST Return by the registered dealer having gross annual turnover of Rs.20 lacs and above
jkNoti03: Electronic filing of VST Return by the registered dealer having gross annual turnover of Rs.20 lacs and above
JkNoti106: Regarding entry 24 of JKVAT Schedule “A”
jkNoti107: Extension of exemption to Inter-state trade and commerce made by the manufacturer operating a Small, Medium and Large scale unit
jkNoti109: Extension of remission of tax in respect of small, medium and large scale industrial units
jkNoti110: Notification regarding remission of tax
punNoti58
Punjab Value Added Tax (Second Amendment) Rules, 2016 - Amendment in Rule 3
punNoti36
Punjab: Regarding Advance Tax on 'All types of yarn' and 'polyester yarn' etc.
dgftTN22
DGFT: Clarifications on Trade Facilitation Measures
Gujarat Notification
gujNoti16: Tax Relief on goods under section 5(2)
gujNoti17: Rate of tax on Salt used in manufacture of goods made taxable
gujNoti18: Entry Tax rate on E-Commerce and Motor Vehicles
gujNoti19: Gujarat Tax on Entry of Specified Goods into Local Areas (Second Amendment) Rules, 2016 - Amendment for E-Commerce
Madhya Pradesh Notification
mpNoti17: Madhya Pradesh Entry Tax Act - Amendment in various notifications
mpNoti18: Amendment regarding Exercise books, graph books, drawing books and laboratory books
mpNoti19: Exemption to inter-State trade or commerce of De-oiled cake
mpNoti20: Amendment in department's notification No. F-A-3-60-2005-1-V-(09)
punNoti37
Punjab: Amendment in PVAT Schedules 'A', 'B' and 'E'
utrNoti24
Uttarakhand: Levy of Entry Tax on Gold
ceNoti23NT
CENVAT Credit (Fourth Amendment) Rules, 2016 - Amendment of Rule 6 & 7B
cuNoti45NT
Customs: Bill of Entry (Electronic Declaration) (Amendment) Regulations, 2016
cuNoti46NT
Customs: Customs (Fees for Rendering Services by Customs Officers) Amendment Regulations, 2016
2nd April
chhgAct12of2016
Chhattisgarh Value Added Tax (Amendment) Act, 2016 - Amendment of Section 8, 13, 19, 22, 48, 49, 54, 64-A and Amendment of Schedule-II [enhancement of 14% rate to 14.5%]
punNoti29
Punjab: Amendment in Schedule 'A' and Schedule ‘B’ - Regarding 'Honey' & 'Beeswax'
punNoti12
Punjab Value Added Tax (Amendment) Rules, 2016 - Amendment of Rule 36
harMemo307
Haryana: Guidelines regarding Registration/Amendment/Cancellation Certificates under HVAT Act, 2003/CST Act
Guest Article
Changes in Gujarat VAT in Budget 2016-17
4th April
karAct6of2016
Karnataka Value Added Tax (Amendment) Act, 2016 - Amendment of Section 10, 31, 35, 38, 72 and Fourth and Sixth Schedule
karAct5of2016
Karnataka Taxation Laws (Amendment) Act, 2016
gujAct5of2016
Gujarat Value Added Tax (Amendment) Act, 2016 - Amendment of Section 7 & 9 and Schedule I & II
gujAct6of2016
Gujarat Tax on Entry of Specified Goods into Local Areas (Amendment) Act, 2016 - Amendment of Section 2 & 3 and Insertion of new section 10A
2016-VIL-164-DEL
ITD-ITD CEM JV Vs COMMISSIONER OF TRADE & TAXES
Delhi Value Added Tax Act, 2004 - reasons for reopening the re-assessment by invoking the extended period of limitation under Section 34 of the Act – re-assessment proceedings under Sections 32 and 33 - “reasons to believe” about concealment of ‘substantial portion of turnover’ – HELD - it is not legally permissible for the DT&T at this stage to supply fresh reasons to believe, other than what is recorded in the file. While the reasons recorded in the file speak of the concealment by the Petitioner of “substantial part of his turnover”, the real reason as transpired during the course of hearing is regarding excessive claim of exemption made by Petitioner - The proviso is very clear that there has to be “concealment, omission or failure to disclose fully material particulars” - In relation to the claim for exemption there is nothing in the “reasons to believe” to show that there was any concealment or omission or failure by the assessee to disclose material particulars - The materials gathered by the DT&T, if any, ought to have a live nexus to the formation of the belief that there is escapement of turnover from assessment. The reasons to believe as recorded make no reference to any such material - the impugned notice is unsustainable in law and they are hereby quashed – assessee writ petition allowed
2016-VIL-162-BOM-CU
M/s VIJAL MARINE SERVICES Vs THE COMMISSIONER OF CUSTOMS & CENTRAL EXCISE, PANAJI
Customs – Appeal - Section 128 – Whether the Tribunal was right in holding that the claim for refund of cost recovery charges was not maintainable as a refund claim on account of failure of the appellant to prefer a appeal against the demand inasmuch as before issuing notice of demand, there was no adjudication made by any authority as regards the liability of the appellant to pay the cost recovery charges – HELD - the Appellants has not disputed that there was no statutory Appeal filed from the demand for bonding costs claimed by the competent authority upon assessment. As no Appeal has been preferred against such adjudication, the question of filing an application for refund of the amount would not arise at all. The learned Tribunal as such was justified to come to the conclusion that the claim of refund could not be entertained as there was no challenge to the adjudication of the amounts by the competent authorities – assessee appeal dismissed
2016-VIL-239-CESTAT-DEL-CU
M/s SAN INTERNATIONAL Vs CC, NEW DELHI
Customs – import of artificial fur lining - demand on the ground that the impugned goods were classifiable under Chapter Heading 59.07 as against Chapter Heading 43.04 claimed by the appellant - fabrics covered with textile flock of less than 5 mm length are not excluded out of the purview of 59.07 even if they have the character of artificial fur – HELD - because of the fact that nylon flocks had the length between 0.45 mm to 0.5 mm, the impugned goods do not get excluded from the scope of chapter heading 59.07 - to get excluded from the scope of 59.07 (i) the flocks have to be of length 5 mm or longer and (ii) the goods should have the character of artificial fur - the classification has been determined on the basis of the length of the flock fibres being between 0.45 limited to 0.5 mm and on the basis of the HSN Explanatory Notes - Thus, Revenue has discharged its burden of proof while determining the classification - When there were no dispute that the goods imported under other bills of entry were the same in quality characteristics and technical specifications, there was no requirement of drawing the samples from each and every consignment imported under each and every bill of entry. Such contention of the appellant is unsustainable – assessee appeal dismissed
2016-VIL-238-CESTAT-DEL-CE
M/s MAHINDRA & MAHINDRA LIMITED Vs CCE, JAIPUR - I
Central Excise – manufacture of tractors - manufacture of dutiable and exempted goods – Levy of industrial cess and education cess - Rule 6 (3) (b) of Cenvat Credit Rules, 2004 – whether or not the appellants are liable to pay an amount equal to 10% of the value of tractors of engine capacity below 1800 CC when they have availed Cenvat credit of educational cess on common inputs without maintaining separate records – HELD - The appellants utilized the credit of education cess availed on inputs to discharge education cess on tractors of above 1800 CC. Accordingly they calculated the proportionate credit of education cess availed on common inputs and reversed the same - In spite of such reversal, the appellants were called upon to pay an amount equal to 10% of the total price of exempted tractors invoking Rule 6 (3) (b) of the Cenvat Credit Rules, 2004 - such a demand is not legally sustainable - Revenue could not insist the appellant to avail a particular option under Rule 6. When the appellant calculated the amount to be reversed, though belatedly and the compliance of conditions prescribed under Rule 6 (3) (ii) read with Rule (3A) of Rule 6 is claimed, a demand under Rule 6 (3) for an amount equal to a percentage of the exempted goods is not sustainable - the impugned order is set aside and assessee appeal is allowed
2016-VIL-237-CESTAT-DEL-CE
CCE, JAIPUR – II Vs M/s GUJRAT AMBUJA CEMENT LTD
Central Excise – Clearance of various types of waste and scrap of metal without payment of duty – demand on ground that the assessee produced many types of capital goods required for erection of cement plant and waste and scrap generated during production of such capital goods are to be considered as manufactured product liable to duty – HELD - scrap arising out of repair and maintenance of plant and machinery; scrap arisen out of warn out capital goods and components cannot be considered as manufactured products - the waste and scrap cleared by the respondent are not liable to Central Excise duty – revenue appeal dismissed
2016-VIL-165-DEL-ST
DELHI HIGH COURT BAR ASSOCIATION & ANR. Vs UNION OF INDIA & ORS
Service Tax - Constitutional validity of the levy of service tax on Senior Advocates and law firms – HELD - Execution of para 1(a) (i) (b) of Notification No.9/2016-ST, para 1(a) (iii) and (b) (iii) of Notification No.18/2016-ST and para 2 (1) (a) of Notification No.19/2016-ST is stayed to ‘maintain consistency’ with Gujarat High Court order on similar issue
2016-VIL-240-CESTAT-MUM-ST
COMMISSIONER OF SERVICE TAX, MUMBAI-II Vs M/s GLOBAL S.S. CONSTRUCTION PVT LTD
Service Tax – assessee entered into a contract with M/s ONGC for operation of cooling water system, operation of raw water plant, operation of MP boilers & operation of IG plant & compressed Air system - Revenue contention that respondent had provided services under “Management, Maintenance or Repairs” – dispute period prior to 01.05.2011 – HELD - the Board has taken a consistent view that a composite service, even if it consists of more than one service, should be treated as a single service based on the main principal service and accordingly classified. The guiding principal is to identify the essential features of the transactions - the main or principal service provided by the assessee is 'Operation of Plant' of M/s ONGC and merits classification under Business Support Service as per enlarged scope of Business Support Service with effect from 01.05.2011 - Once it is established that the service provided is covered under BAS, the said service cannot be classified under the category of 'Management, Maintenance or Repair Service' - the finding recorded by the adjudicating authority are correct – revenue appeal dismissed
Guest Article
Changes in Chhattisgarh VAT in Budget 2016-17
odiNoti5430
Odisha: Notification on LTU dealers
wbCir04
West Bengal: Regarding Sale-Purchase mismatch
wbCir03
West Bengal: Regarding PAN information mismatch
cuNoti47NT
Customs: Exchange Rate Notification
upNoti156
Uttar Pradesh: Increase in rate of Advance Tax on Cement
upNoti155
Uttar Pradesh: Discontinuation of Transport Memo for Cement
punNoti39
Punjab: Amendment in Schedules 'B' and 'E' - Regarding Stone bajri
bihNoti57
Bihar Value Added Tax (Amendment) Act, 2016
March Summary: Summary for the 2nd fortnight of March
5th April
mahaNotiCR53
Maharashtra Value Added Tax (Amendment) Rules, 2016 - Amendment of Rule 52B, 53 & 54
mahaNotiCR56
Maharashtra Tax on Entry of Goods into Local Areas Act, 2002 - Amendment in Schedule - Regarding 'Slabs of Marble and Granite'
Guest Article
Changes in Tamil Nadu VAT in Budget 2016-17
Union Budget 2016: Important changes in Service Tax and Credit Rules effective from April 1, 2016
6th April
2016-VIL-169-KAR
M/s PIONEER MARKETING Vs STATE OF KARNATAKA
Karnataka Value Added Tax Act, 2003 - classification of the product, “Nutralite” and the applicable VAT - ‘Edible Oil’ as contended by assessee or unscheduled goods – Margarine – HELD - The ingredients of the product are clearly shown to be consisting of 70% of edible oil and 26% of water - Therefore, it is clearly a question of considering whether the product Nutralite which is also Margarine a generic term would describe the very product as edible oil or not. There is no reason to hold that the product shall not fall under the Entry “Edible Oil” and under the “unscheduled goods” - the Commissioner’s reasoning and conclusion are clearly erroneous and the opinion of the Commissioner is quashed - “Nutralite” would fall under the Entry 31 of the Schedule III of the KVAT Act, ‘Edible Oil’ and would attract the rate of tax prescribed in respect of edible oils - assessee petition is allowed
2016-VIL-167-KAR
M/s BHARATH EARTH MOVERS LTD Vs STATE OF KARANTAKA
Karnataka Value Added Tax Act – application of formula under Rule 131 - claim of excess input tax credit – imposition of penalty under section 72(2) and interest under section 36 of KVAT Act - applicability of Circular No.13/2006-07 - ‘unintentional act or not’ – question of law/fact – HELD - Appellant has failed to establish existence of any confusion in applying the formula. Though the transactions necessitating partial rebating exist in every tax period the Appellant has not bothered to attempt partial rebating by use of the formula prescribed under Rule 131 - Appeals do not fall under the unintentional cases referred to in the said Circular - it cannot be said that the Tribunal has committed an error while passing the impugned order - The question of non-applicability of correct formula could be said as unintentional if there is ambiguity in the applicability of such formula. When the formula was so clear as found by the Tribunal, and if it was not applied, the view taken by the Tribunal that the action was not unintentional cannot be said to be an impossible view, which may call for interference - no questions of law as sought to be canvassed would arise for consideration – assessee petitions are dismissed
2016-VIL-168-MAD-CU
M/s HOSPIRA HEALTH CARE INDIA PVT LTD Vs DEVELOPMENT COMMISSIONER, MEPZ SPECIAL ECONOMIC ZONE
Customs - manufacture and export of pharmacopeia preparations - Reimbursement of Central Sales Tax paid by EOU units - whether inter-state purchase made by one EOU from another EOU would qualify for reimbursement of Central Sales Tax – Denial of refund claim on the ground that Foreign Trade Policy allows reimbursement only for procurements from DTA – HELD - the substantive right under the policy allows for reimbursement of CST paid by EOU units on inter-state purchases, irrespective of the constitution of the manufacturer, however, the procedure for effecting this right is restricted only to the purchases made from units in DTA - When the Policy gives a substantive right, the Appendix cannot restrict the substantive right provided in the policy and the Appendix is meant for effectuating the rights contained in the policy and cannot be a tool for narrowing or frustrating the objective and operation of the substantive right granted to the petitioner - Since the substantive provision has remained identical and unchanged in both the policies i.e. 2009-2014 and 2015-2020, the conditions stated in Appendix 14.I-I cannot be pressed into service, for the reason that it runs contrary to the terms of the policy - When the policy gives a right for claiming refund of taxes, it cannot be prevented by making an amendment in the procedure. The petitioner can be prevented only if the policy is amended prohibiting refund of tax for the purchases made from 100% EOU. The procedure was to be prescribed by an authority in implementing the policy and must be in consonance with the policy. If the procedural norms are in conflict with the policy, then the policy will prevail and the procedural norms to the extent they are in conflict with the policy, are liable to be held to be bad in law - since the impugned communications are in conflict with paragraph 6.11 of the FTP, the same are liable to be set aside – writ petitions are allowed
2016-VIL-16-SC-CE
COMMISSIONER OF CENTRAL EXCISE, NAGPUR Vs M/s SPENTEX INDUSTRIES LTD
Central Excise - Supreme Court dismisses Revenue Review Petition against its own judgement holding that the exporters are entitled to both the rebates i.e. amount of duty paid on inputs used in the manufacturing of exported goods as well as the amount of duty paid on exported final goods, under Rule 18 of the CER, 2002 – Petition dismissed
2016-VIL-166-MAD-CE
M/s EVEREADY INDUSTRIES INDIA LTD Vs CESTAT & ASSISTANT COMMISSIONER OF CENTRAL EXCISE, CHENNAI-I
Central Excise – Section 11A - Section 35E - power of revision - Cash Discount – allowed Refund – invocation of Section 11A - Whether the Tribunal is correct in holding that demand notice can be issued under Section 11A of the CEA, 1944 by the Original Authority for erroneous refund (earlier granted by the same Original Authority) without reviewing order for refund of the Original Authority by the Superior Authority in terms of Section 35E of the Act – HELD - the refund granted to appellant was and should have been only after an adjudication under Section 11B and not without an adjudication - if an Authority has done something, it must be presumed that he has done it in accordance with law – it is presumed that before according sanction for refund, Assistant Commissioner had actually followed the procedure under Section 11B and passed an order of adjudication - The appeal against the finalisation of the assessment was closed on the basis of the refund order - the two valuable rights, one in the form of right of appeal and another in the form of order of refund, are now sought to be taken away indirectly by taking recourse to Section 11A. What cannot be done directly cannot be done indirectly also - since there was no appeal against the order under Section 11B, the Department cannot take recourse to Section 11A - Once an application for refund is allowed under Section 11B, the expression 'erroneous refund' appearing in Sub-Section (1) of Section 11A cannot be applied – assessee appeal allowed
2016-VIL-241-CESTAT-KOL-CE
M/s MAITHAN STEEL & POWER LTD Vs CCE & ST, BOLPUR
Central Excise – shortages of finished goods – clandestine removal - HELD - any retraction of statement or questioning the methodology of weighment can be made before the issue of Show Cause Notice so that Revenue can take appropriate measures for conducting additional investigations. As the stock-taking was done with the concurrence of the Appellants, therefore, at a later stage, after completion of investigation and issue of Show Cause Notice, Appellant cannot turn around and take a stand that stock-taking was inappropriately done - shortages of goods is established and the duty demand voluntarily paid by the Appellant without protest is required to be confirmed - mere shortages found during stock verification by the officers of Central Excise cannot be made the basis for holding clandestine removals and accordingly penalty was set aside – demand confirmed and with respect to imposition of penalties and charging of interest the appeal is allowed
2016-VIL-243-CESTAT-BLR-ST
M/s HINDUJA GLOBAL SOLUTIONS LTD Vs CCEST&C, BANGALORE-II
Service Tax – Cenvat Credit - Rule 2(l) of the CENVAT Credit Rules, 2004 – raising of funds for financing the expansion of business by Head Office and subsequent distribution of credit to appellant-branch office as an Input Service Distributor – eligibility to avail Cenvat credit – HELD - if an assessee pays service tax for the various services received by them for raising the finance, CENVAT credit can be availed - CENVAT credit which is availed by the appellant is in respect of the distribution of the service tax by their Head Office as input service distributor – there is nothing on record to indicate that Head Office of the appellant was issued a show-cause notice denying them such CENVAT credit. In the absence of any doubt raised as to the eligibility to avail the CENVAT credit at their Head Office, the recipient unit, cannot be asked to explain the nexus of such credit to the output service provided by them - the expansion of the business activity is directly connected with the activity of the service provided by the appellant to their service recipient which is nothing but the correlation of the business undertaken by the appellant - The impugned order is set aside and the appeal is allowed
2016-VIL-242-CESTAT-CHE-ST
M/s JSA FORWARDERS Vs CST, CHENNAI
Service Tax – Demand under CHA and BAS - reimbursed charges - The appellants are not contesting the service tax on 10% of the value of CHA services on the invoice value and service tax on the BAS service. Accordingly, demand under CHA and BAS service is confirmed - out of the total demand in excess of 10% is related to reimbursable expenses and the same is not liable to service tax - issue relates to interpretation of statute and levy of service tax whether reimbursable expenses are taxable or not – therefore, imposition of penalty is not sustainable – assessee appeal partly allowed
Guest Article
Changes in Maharashtra VAT in Budget 2016-17
Union Budget 2016: Important changes in Central Excise & Customs effective from April 1, 2016
cuCorri26
Customs: Corrigendum to Notification No. 26/2016-Customs, dated the 31st March, 2016
ceCir1022
Central Excise: Classification of Micronutrients, Multi-micronutrients, Plant Growth Regulators and Fertilizers
bihNoti1303
Bihar: Selection Criteria for VAT Audit of FY 2014-15
7th April
2016-VIL-170-GUJ
THE STATE OF GUJARAT Vs BALRAM CEMENT LTD
Gujarat Value Added Tax Act - Section 11 – input tax credit - clause (vi) of clause (a) of section 11 - input tax credit on purchases of pet coke used as raw material for manufacture of cement – reduction of tax credit by four per cent on the ground that pet coke was used as fuel – whether the pet coke used in the manufacture of cement is ‘raw material’ as contended by the dealer, or ‘fuel’ as contended by the department – HELD - The input would not cease to be raw material for the reason that in the course of the chemical reactions, the ingredient is consumed or burnt up - In the present case, pet coke is used as a raw material for the manufacture of clinker and forms an ingredient thereof - Even if pet coke is consumed or burnt up in the manufacturing process, it would still not cease to be a raw material as the production of the end product viz. cement depends upon its presence in the manufacturing process - therefore, pet coke forms one of the ingredients of cement and merely because there is an exothermic reaction in the preparation of cement which may be facilitated by its presence, pet coke would not cease to be a raw material – coke/pet coke used in the VSK technology is not used as a fuel but as part of feed stock and its components form part of the product, that is, clinker - pet coke used in the manufacture of clinker falls within the ambit of the expression ‘raw material’ as contemplated in section 2(19) of the Act – Revenue appeals dismissed
2016-VIL-172-DEL
DISH TV INDIA LIMITED Vs GOVERNMENT OF NCT OF DELHI
Delhi Value Added Tax Act, 2004 – Refund claim – notice of default assessment of tax and interest - re-opening the assessments - Assessee objections against notice of default assessment – HELD - Rule 36B (7) of the DVAT Rules read with Section 74B of the DVAT Act makes the position explicit that if there is any objection under Section 74 or appeal under Section 76 pending against the order of the assessment or re-assessment, then such order of assessment or reassessment cannot be sought to be reviewed - There is no justification for the VATO to have issued notices of default assessment for AY 2009-10 when the earlier objections are admittedly pending before the OHA - the Court finds no justification for the refund due to the Assessee being withheld by the DT&T any longer. The repeated attempts at re-opening the assessments for each of the months of AY 2009-10, notwithstanding the assessee's claim for refund being accepted, appears to be an abuse of the process of law – refund allowed and each the notices of default assessment issued under Section 32 of the DVAT Act for each of the months of AY 2009-10 are quashed – assessee petition allowed
2016-VIL-171-GUJ-CE
KAMAKSHI TRADEXIM (INDIA) PVT LTD Vs UNION OF INDIA
Central Excise – Export of goods – Rebate under Rule 18 of the CER, 2002 – remand order of Joint Secretary, Government of India, to take into account the outcome of DGCEI investigation and the final decision in classification matter by common adjudicator, CCE, Vapi before sanctioning of refund – delay in passing refund on the ground of outcome of other proceedings - HELD - no fault can be found in the approach adopted by the respondent in not deciding the rebate claim till the investigation by DGCEI is concluded and the CCE, Vapi decides the adjudication pending before him. However, the rebate claims of the petitioners cannot be kept pending till the outcome of other proceedings - The claim cannot be kept pending indefinitely to await the decision in some other matter - when a case comes up before a quasi-judicial authority, it is bound to decide the same in accordance with law as per the situation as prevailing at the relevant time. An adjudicating authority cannot keep a matter in abeyance indefinitely to await the outcome of one proceeding after another - the rebate claims could not have been made contingent on the outcome of the said proceedings which were to be decided at a future date. The impugned order, to the extent the same is made contingent upon the outcome of DGCEI investigation and decision in classification matter by a common adjudicator, CCE, Vapi, cannot be sustained - the respondent-authority is directed to decide the rebate claims of the petitioners pursuant to the order of remand – assessee petition allowed
2016-VIL-244-CESTAT-AHM-CE
BIRLA NGK INSULATORS PVT LIMITED Vs CCEC&ST-VADODARA-II
Central Excise – re-import of the goods – payment of duty in accordance with Notification No. 94/96-Cus for failure to export the goods within six months as per the condition of the Notification No. 158/95-Cus dated 14.11.1995 – eligibility to CENVAT credit – HELD - a reading of the judgement in appellant earlier case along with the relevant Notification No. 94/96-Cus would reveal that the duty paid comprises Basic Customs Duty and Additional Customs Duty - Commissioner (Appeals), had not dealt the issue in detail, but following his earlier Order, which has been considered by this Tribunal and the Appeal filed by the Appellant has been allowed - judgment of the Tribunal was delivered after impugned Order was passed, hence, its applicability could not be considered - the issues raised need to be considered by the Ld. Commissioner (Appeals) afresh in the light of the earlier decision – matter remanded
2016-VIL-246-CESTAT-DEL-CU
M/s GARG GEMS PRIVATE LIMITED Vs CC, JAIPUR
Customs – Valuation - Import of Gold, Platinum and Silver Jewellery purchased in auction – SCN of under valuation – HELD - there is ample evidence on record to show that the jewellery was purchased in close bid auction. The said value stands rejected on a simple ground that the sale was concluded one year prior to the actual import of the goods - for rejecting the transaction value under Rule 12 of the Valuation Rules, it is incumbent upon the lower Authorities to entertain a doubt about the truth or accuracy of the value declared by the importer. In the absence of any doubt, it was not open to the Adjudicating Authority to reject the declared value - The reference to time of importation cannot be interpreted in a manner so as to suggest that in respect of high value goods, whose value fluctuates on day-to-day basis, a fresh value has to be arrived at based upon the time at which the goods enter the Indian Territorial Borders - In the absence of any doubt about the payment of the goods made by the appellant to their foreign exporter, no reasons to enhance the same on the sole ground that import has taken place subsequent to the actual date of purchase of the goods - impugned order set aside and assessee appeal allowed
2016-VIL-245-CESTAT-MUM-ST
COMMISSIONER OF SERVICE TAX-VI, MUMBAI Vs BALAJI TELEFILMS LTD
Service Tax - Export of Service - Conditions for export in Rule 3(2) of Export of Service Rules, 2005 – assessee produced television programmes which were uplinked by the Hong Kong entity – demand section 65(105)(zzu) on ground of failure to comply with conditions stipulated in the said Rules – HELD - There can be no doubt that, if the programme producer or any other person were to further disseminate the programme to others, such dissemination would be liable for tax as a separate and distinct service. Consequently, the usage of the programme after delivery to the overseas entity is irrelevant in deciding upon the tax liability as 'programme producer' - the services rendered by the respondent is delivered or provided from India to the overseas entity and thus conforms to the first part of the outflow condition – assessee having completed the rendering of the service of 'programme production' to the overseas entity has complied with the second leg of the first condition i.e. usage outside India - Receipt of consideration in convertible foreign currency - the Indian Rupee is not a freely convertible currency and benefit of export privileges were sought to be denied on the ground that contract was designated in Indian rupees. By that very argument, Indian rupee could not have been received as inward remittance through the banking channels because of that very non-convertibility. Consequently, there is no justification for entertaining any doubt that inward remittances were in convertible foreign currency - As both conditions for export in Rule 3(2) have been complied with, appeal of Revenue is without merit and is dismissed
mpNoti14of2016 [VAT Act Amendment]
Madhya Pradesh VAT (Amendment) Act, 2016 - Amendment of Section 9, 14, 18, 26 & 34, Insertion of Section 28-A and Amendment of Schedule-I & II
mpAct12of2016 [Cess Act Amendment]
Madhya Pradesh Upkar (Sanshodhan) Adhiniyam, 2016
harNoti59
Haryana: Amendment in Schedule A - Increase in rate of tax on Liquor
dgftPN01
DGFT: Amendment in General Note No. 15 for Textiles
dgftTN01
DGFT: Eligibility of Liquid Glucose under Focus Market Scheme of Foreign Trade Policy (FTP), 2009-14
cuNoti48NT
Customs - Exchange Rate Notification
9th April
2016-VIL-173-DEL
SAMSUNG INDIA ELECTRONICS PRIVATE LIMITED Vs GOVERNMENT OF NCT OF DELHI
Delhi Value Added Tax Act - Section 31 (1) - Self assessment - Section 32 - demand notices of default assessment of tax and interest – Section 34 - Limitation on assessment and re-assessment - Demand notice by seeking to classify LCD/LED/TFT Monitors under the residuary entry basis determination order passed in the case of NEC – self-assessment – Period of limitation – HELD - the Assessee was filing monthly returns and, therefore, the limitation for the purposes of Section 34 of the DVAT Act would have to be reckoned from the date of the filing of the return by way of self assessment - Given the overall scheme of the DVAT Act and Section 31, 32 and 34 in particular, the Court accepts the manner of computation of the four year period as depicted by the Petitioner - barring the default notices of assessment pertaining to the months of February and March 2010, all the other notices of default assessment issued for the remaining months of AY 2009-10 by the impugned notices are barred by limitation and deserve to be set aside on that ground - Limitation - In the present case, since the first proviso to Section 34 of the DVAT Act has not even been invoked, there was no possibility of invoking the extended period of limitation, i.e., beyond the expiry of four years. The phrase ‘whichever is earlier’ occurring in Section 34 (1) of the DVAT Act is an indication that the date on which the Petitioner makes an assessment in terms of Section 31(1)(a) of the DVAT Act is crucial for determining the expiry of the limitation of four years for completion of the reassessment - Classification of LCD/LED/TFT Monitors - LCD/LED/TFT Monitors can be brought under the broad classification of 'Monitors - LCD/LED/TFT monitors is classifiable as ‘Monitors’ under Item 3 below Entry 41A of the Third Schedule to the DVAT Act - determination by the Commissioner in the case of NEC under Section 84 of the DVAT Act is not binding on the Petitioner as it was not a party to those proceedings - Violation of principles of natural justice - The notices under Section 59(2) of the DVAT Act issued to the Petitioner asked for additional information in respect of the LCD/LED/TFT Monitors. There was no indication in the said notices regarding any erroneous classification of the monitors as forming the basis for reopening the assessments. There was also no whisper of the determination under Section 84 of the DVAT Act in the case of NEC which, as it transpired, was one of the reasons for reopening the assessments. In other words, the Assessee was not put on notice as to the grounds on which the assessments were sought to be reopened - The impugned notices of assessment as well as notices of default assessment of penalty are hereby quashed – Assessee writ petition is allowed with costs
2016-VIL-174-MAD-CE
M/s ARCHANA SPINNERS LTD Vs THE DEPUTY COMMISSIONER OF CENTRAL EXCISE, TUTICORIN
Central Excise - Sections 11A, 11AA and 11AB - Interest on delayed payment of duty – SCN dated 11.5.2001 – effect of amendment dated 11.5.2001 - HELD - out of the four cases on hand, two relate to the show cause notices issued on the date, on which, the amendment to Sections 11AB and 11AA came into force. In respect of the remaining two cases, they cannot be covered by the amendment introduced with effect from 11.5.2001. In so far as the cases where show cause notices were issued before 11.5.2001, it is seen from all the show cause notices, the Orders in Original and the orders of the Appellate Authority that there was no allegation of fraud, collusion, misrepresentation, etc. Even the communication of the Superintendent dated 12.11.2013 does not categorise the case of the assessee as one where there was fraud, collusion, etc. But, the communication of the Superintendent dated 12.11.2013 refers to Section 11AB. Therefore, it is obvious that the amendment dated 11.5.2001 is what is sought to be taken advantage of. This cannot be done at least in respect of two cases that arise out of the Orders in Original dated 29.2.2000 and 30.10.2000. Hence, the questions of law in respect of the appeals arising out of these orders in relation to the interest claim, should be answered in favour of the assessee - The questions of law are answered in favour of the assessee
2016-VIL-09-ARA
M/s BERCO UNDERCARRIAGES (INDIA) PVT LTD, HYDERABAD Vs COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX, HYDERABAD-III
Service Tax - Import raw material under International Commercial Terms i.e. Free Carrier (FCA) - While discharging the foreign C & F Agent raised composite bill / invoice liability, which portion of amount will attract Service Tax obligation under reverse charge mechanism – HELD - expenditure or costs incurred by C & F Agent i.e. freight, insurance, loading, unloading, handling charges etc would be excluded from the composite invoice/bill of the C & F Agent provided it satisfies the conditions enumerated in Rule 5 ibid - While discharging foreign C & F Agent raised composite bill / invoice liability under reverse charge, Service Tax is chargeable on said bill / invoice excluding expenditure or costs incurred by C&F Agent as a pure agent, if conditions enumerated in Rule 5 of Service Tax (Determination of Value) Rules, 2006 are met
utrNoti108
The Uttarakhand Tax On Entry Of Goods Into Local Areas (Amendment) Act, 2016 - Amendment of Section 2 & 4A
utrNoti103
Uttarakhand Value Added Tax (Amendment) Act, 2016 - Amendment of Section 17, 25, 29, 34, 51, 53, 58 & 61; Deletion of Section 31 & 32(6); Addition of Section 34A
bihNoti68
Bihar Settlement of Taxation Disputes Act, 2016
cuInst528
Customs: Clarification on availability of benefit under Notification No. 151/94-Cus dated 13.07.1994
dgftNoti01
DGFT: Requirement of Certification regarding export of Betel Leaves
dgftPN02
DGFT: New PSIAs recognised in terms of FTP 2015-20
ceCir1023
Central Excise: Adjudication of Show cause Notices on the basis of CERA/CRA objection
Guest Article
Changes in Rajasthan VAT in Budget 2016-17
11th April
2016-VIL-17-SC
COMMISSIONER, DELHI VALUE ADDED TAX Vs M/s ABB LTD
Central Sales Tax Act, 1956 - Section 3(a) - inter-State sale - Section 5(2) - sales in the course of import - exemption under Section 7(a) and (c) of DVAT Act - movement of goods in pursuance of and incidental to the contract for the supply of goods used in the execution of the works contract between assessee and Delhi Metro Railway Corporation Ltd – Demand on account of lack of any privity of contract the requirements of Section 3(a) of the CST Act were not satisfied in respect of movement of goods from outside Delhi to the required site in Delhi - HELD - the importation of equipment was strictly as per requirement and specification set-out by DMRC in the contract and only to meet such requirement of supply the specified goods were imported and hence the event of import and supply was clearly occasioned by the contract awarded to the assessee by the DMRC - the movement of goods by way of imports or by way of inter-state trade in this case was in pursuance of the conditions and/or as an incident of the contract between the assessee and DMRC. The goods were of specific quality and description for being used in the works contract awarded on turnkey basis to the assessee and there was no possibility of such goods being diverted by the assessee for any other purpose. Hence the law laid down in K.G. Khosla case has rightly been applied by the High Court – revenue appeals are found without any merit and dismissed
2016-VIL-175-CAL
INSTAKART SERVICES PVT LTD Vs STATE OF WEST BENGAL
West Bengal Entry Tax Act - courier business - Challenge to requirement of deposit entry tax for generating way-bills for bringing in goods from outside the State - Rule 110C of the West Bengal Value Added Tax Rules, 2005 - authority of State to insist on payment of entry tax in any manner or form – HELD - Whether or not Rule 110C of the WBVAT Rules is a privilege, as long as such Rule exists it is not open to the State to insist on the payment of entry tax for obtaining the benefit under such Rule despite the provisions as to entry tax being struck down - the petitioner will be entitled to generate way-bills in terms of the said Rule without payment of any entry tax and if the programme or the system has to be altered for such purpose, the State is directed to do so immediately - The petition will appear for hearing in June, 2016
2016-VIL-249-CESTAT-DEL-CU
M/s MONTE INTERNATIONAL Vs COMMISSIONER OF CUSTOMS, AMRITSAR
Customs – Majority Order - proper officer for seizure of the goods or for issuing the show cause notices - Whether appeals against the order-in-original passed by Commissioner of Customs is to be rejected on the ground that there is lack of jurisdiction for issue of SCN and when there is fraudulent claim of drawback and evidenced from record requiring recovery on merit as held by Member (Technical) Or Whether appeals against the Order-in-Original is to be allowed in view of findings that there is no jurisdiction with DRI officers to issue SCN and recovery of drawback is not sustainable on merit as held by Member (Judicial) – HELD - DRI officers have no jurisdiction to issue show cause notice for recovery of erroneously drawback claim under Rule 16 of Customs and Central Excise and Service Tax Drawback Rules, 1995 - it cannot be alleged that the goods were undervalued in the absence of contemporaneous price for the purpose of like kind of goods - the appellant exported bicycles parts which were procured from various suppliers who processed the bicycles parts. There is no single evidence on record to show that the appellant has manufactured/ used sub-standard raw materials and all the suppliers have admitted that they have provided goods to the appellants - in the absence of any supportive evidence except the report from the Consulate General of India at Dubai which is also not conclusive, it cannot be alleged that the appellant has availed excess drawback claim erroneously - agree with the view taken by Hon’ble Member (Judicial) setting aside the demand on merits - the impugned order is set aside on merits as also on the ground of show cause notice having been issued without jurisdiction – assessee appeals are allowed
2016-VIL-177-DEL-CE
INDIAN BEAUTY & HYGIENE ASSOCIATION Vs UNION OF INDIA
Central Excise – validity of application of Notification No.16/2013–CE(NT) to retail packages which are exempted under Rule 26 of the Legal Metrology (Packaged Commodities) Rules, 2011 – declaration of the retail sale price for the purposes of arriving at tariff value and assessment of excise duty/CVD - requirement of having the RSP displayed in the package – HELD – ‘Retail Sale Price declared on such goods’ occurring in the impugned Notification has to be read as not requiring any disclosure or declaration of the RSP on the packages subject to their fulfilling the parameters of Rule 26 of the LMPC Rules. It only requires the importer to make a declaration to the Respondents of the RSP at which such goods, in packets of 10gm or 10ml, are to be sold - Therefore, the RSP referred to in the Notification No. 16/2013 is the RSP disclosed by the importer to the Respondents - The issue really is only about the apprehension of the Petitioners that they may be compelled to disclose the RSP on the packages contrary to the exemption granted under Rule 26 of the LMPC Rules. This apprehension has been laid to rest by the Respondents having clarified that they will not insist on such disclosure of the RSP on the package as long as the Petitioners otherwise satisfy the requirement of Rule 26 of the LMPC Rules - there is no illegality attaching to the impugned Notification - the prayer that the said Notification should be held to be contrary the CE Act or the CT Act is rejected
2016-VIL-176-MAD-CE
COMMISSIONER OF CENTRAL EXCISE, PONDICHERRY Vs CESTAT & M/s IBM INDIA LIMITED
Central Excise - Exemption under Notification No.108/95-CE, dated 28.8.1995 - admissibility of exemption when the goods were not "supplied" either to the project or to the concerned International Organization funding the project but were supplied to individual contractors who own these goods and not in any way under obligation to the "Project Authority" to use the goods in execution of the "Project" – HELD - The focus of the Notification is actually only on two things namely (a) goods when supplied to the United Nations or an International Organization for their official use or (b) goods supplied to the projects financed by the United Nations or the International Organization and approved by the GoI - the supply made to the Organization indicated in the Notification for their official use as well as supply made to the projects financed by them, are both included within the purview of the Notification - when a case falls under the second limb namely supply to the projects financed by the UN or an International Organization, we do not know how an interpretation is sought to be given by the Department that such supply should have been made directly to the projects - it is completely illogical to think even in cases covered by the second limb, that the supply should have been made directly - the Department seeks to insert the word "directly" into the Exemption Notification dated 28.8.1995, after the word "supply". No addition or deletion of any expression either by the Department or by the assessee is possible, when it comes to the interpretation of Exemption Notifications – Revenue appeal dismissed
2016-VIL-247-CESTAT-MUM-ST
SHREEM COAL Vs COMMISSIONER OF CENTRAL EXCISE
Service Tax – Larger bench order on the direction of Hon’ble Supreme Court - coal handing service - loading/unloading of coal in the collieries and into railway wagons - dispute regarding classification of service under the Cargo Handling Service - Packing service - Palletisation or packing of goods for the purpose of ease of transport - dispute regarding the alternate classification under packaging services and Cargo Handling Service – two benches of CESTAT having contrary view – HELD - all the cases involving handling of coal in the collieries have been decided in favor of revenue on common grounds by holding the services to be classifiable as cargo handling services and there was no contrary view - All the cases of Coal Handlers are either the result of, or are following, the decision of the Hon’ble High Court of Orissa - the matters relating to the coal handlers, not being contrary, do not appear to have been remanded to the CESTAT - In case of Packers the decision of CESTAT (Bangalore) has been upheld by Hon’ble High Court of AP and therefore merged with it. It would appear that the correct facts were not presented before the Hon’ble Supreme Court. The contrary views in the cases listed before the Hon’ble Supreme Court was only between the decision of Hon’ble High Court of AP and that of Kolkata bench Tribunal, and that too only in case of Packers. There are no two decision of CESTAT which were before the Hon’ble Supreme Court, and which were contrary to each other. In these circumstances the contesting parties may seek guidance from the Hon’ble Supreme Court, as to the scope of the issues for resolution by the Tribunal - The matters are adjourned, to be heard at a later date
2016-VIL-248-CESTAT-BLR-ST
THE SOUTH INDIA PAPER MILLS LTD Vs COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, MYSORE
Service Tax – Erection, Commissioning or Installation of machinery - failure to pay service tax on erection and commissioning - payment of service tax and interest – Revenue neutral situation - Section 73(3) of Finance Act 1994 – penalty under Sections 78 & 77(1a) and 77(2) - bona fide belief – HELD - there was no intention on the part of assessee for non-payment of service tax - when it was pointed out to the appellant that there was liability on them to pay service tax for the services of “Erection, Commissioning and Installation”, they immediately made the payment along with interest - Department has completely failed to prove that there was an intention to evade payment of service tax or there was any fraud or collusion or willful misstatement or suppression of facts with intention to evade payment of service tax - The appellant has made out a right case of defense under the provisions of Section 80 of Finance Act 1994 as the facts and circumstances indicate that there was reasonable cause for failure to pay service tax in this regard - the penalties imposed under Sections 78 & 77(1a) and 77(2) of the Finance Act, 1994 are hereby set aside – assessee appeal allowed
mahaBill18
Maharashtra Tax Laws (Levy, Amendment and Validation) Act, 2016 - For information purpose only - Copy of Bill as introduced in the Maharashtra Legislative Assembly on the 7th April 2016
mahaBill19
Maharashtra Settlement of Arrears in Disputes Act, 2016 - For information purpose only - Copy of Bill as introduced in the Maharashtra Legislative Assembly on the 7th April 2016
jhrNotiSO5
Jharkhand: Exemption to Canteen Stores Defence Regimental Units
Guest Article
No Limitation Period under Section 28 AAA
Rebate of Excise Duty admissible on both inputs & final products
rajFinAct2016
Rajasthan Finance Act, 2016
ceCir1024
Central Excise: Clarification regarding re-refined used or waste-oil
12th April
2016-VIL-180-KAR
SONAL APPAREL PRIVATE LIMITED Vs THE STATE OF KARNATAKA
Karnataka Value Added Tax Act, 2003 – Section 10(3), Section 35(4) - interpretation of Section 10(3) as amended by Karnataka VAT (Amendment) Act, 2015 – retrospective effect - net tax liability - time limit for availment of input tax credit – revised return - interpretation of Centum Industries judgment – HELD - The Centum Industries judgement does not support the proposition that input tax must be availed of in the month in which the selling dealer raises his invoices. The Revenue is hence not justified in seeking to apply the said decision in support of its reasoning – it would not be possible to hold that Section 10(3) first restricts availment of credit to the same month as the month of purchase and then Section 35(4) goes on to permit the same by way of revision of return. Such an interpretation would lead to the conclusion that the KVAT Act encourages availment of credit by the dealer without ensuring the eligibility for the same, as delay in availment would result in denial of credit altogether and thereafter rectifying any incorrect credit available by revising the return. Such a view could not have been the intention of the legislature as that would lead to a situation where filing of a revised return under Section 35(4) would become a rule, rather than an exception. In other words, every dealer may be necessarily required to file two returns for the same tax period - from the inception of the KVAT Act, Section 10(3) was consistently interpreted by the Revenue to mean that a dealer is permitted to deduct the input tax paid on his purchases irrespective of the month in which the purchases were effected - The ambiguity as to the purport of Section 10(3) arose as a result of the Department's clouded interpretation of the Centum Industries case. The newly substituted provision clears the air and puts to rest the ambiguity, it may hence be said that the amendment to Section 10(3) is clarificatory and therefore could be given retrospective effect - Section 10(3) of the Act, prior to its amendment vide the KVAT (Amendment) Act, 2015, shall be read down to enable the petitioners to calculate the net tax liability by deducting the input tax paid from its output tax liability, irrespective of the month in which the selling dealer raises invoices - The impugned orders and notices of demand are quashed – assessees petitions are accordingly allowed
2016-VIL-179-DEL
SIEMENS LTD Vs THE COMMISSIONER, DT&T
Delhi Tax Compliance Achievement Scheme 2013 – petition for waiver of penalty on ground of already paid demand of tax and interest - term ‘tax dues’ – denial of benefit of Amnesty on the ground that in terms of the amended clause (2) (1) (d) of the Amnesty Scheme, the amount of penalty which alone was challenged before the Appellate Authority did not form part of the 'tax dues' – HELD - interpretation sought to be placed by the Respondents on the relevant clause is not consistent with the overall purpose of the Amnesty Scheme - it would be anomalous for a defaulter of payment of tax, interest and penalty to avail of the Amnesty Scheme but not one who has defaulted only in the payment of penalty. The idea is to incentivise payment of taxes and not dis-incentivise compliance - While it is true that there is a disclaimer in the FAQs which states that a correct legal interpretation of the Scheme itself should be referred, the stand taken by the Department in the FAQs is consistent with the object of the Amnesty Scheme would constitute an instance of contemporanea expositio and would bind the DT&T – the Petitioner having paid the tax and interest, ought not to be denied the Amnesty Scheme only because the penalty is the subject matter of challenge by it before the AT. Since in any event the case of the Petitioner does not fall under Explanation 3, the penalty can be considered as forming part of the tax dues and it can be said that there was only a part payment thereof before 31st August 2013. This is the interpretation that the DT&T itself recognised in the FAQs - Petitioner is entitled to claim the benefit of the Amnesty Scheme – assessee petition allowed
2016-VIL-252-CESTAT-DEL-CU
COMMISSIONER OF CUSTOMS Vs M/s ORIENT CERAMICS & INDUSTRIES LTD
Customs - Import of goods for setting up of a co-generation power plant – furnishing of fabricated / forged Project Implementing Authorities Certificate (PIAC) - denial of exemption under Notification No. 84/97-Cus invoking extended period of limitation - Imposition of redemption fine - imposition of penalties under Section 112 of the Customs Act, 1962 - imposition of penalty under Section 114A on Bank-project financer – HELD - The concession on the goods cannot be claimed based on forged documents irrespective of who is responsible for such forgery. Submission of such forged document for claiming exemption is a clear case of mis-statement - Since the documents have been established to be forged or fake, it is sufficient to extend the period of limitation - imposition of redemption fine on the goods which were never available for confiscation is not legally sustainable - while the goods were found to be not eligible for concession, in view of forged certificate, the role of the importer has to be seen in the factual context. Since, wrong claim of exemption will attract provisions for confiscation of goods, penalty under Section 112 will get attracted - Unlike duty which is on the goods, penalty is on the importer and it is necessary to show that the importer has rendered himself by his act of collusion, willful mis-statement or mis-representation liable for penalty under Section 114A. In the present case, such ingredients are not proven so the penalty under Section 114A cannot be imposed on the importer - it is the responsibility of the importer to arrange for the certificates from the Line Ministry. The middleman appointed as agent to do the work indulged in fraudulent act. The role of the Bank, directly or indirectly in such fraudulent act has not been evidenced - Accordingly, no merit in the plea by the Revenue for imposition of penalty under Section 112 (a) on the Bank – appeals are disposed
2016-VIL-251-CESTAT-DEL-CE
MARAL OVERSEAS LTD Vs C.C.E., INDORE
Central Excise - Section (3) (1) or proviso to Section 3 (1) of the CEA, 1944 - Quantum of duty payable on finished goods lying in stock at the time of debonding of EOU – payment of duty after availing the benefit of exemption Notification No.23/2003-CE - demand of differential duty – HELD - concessional duty under the said exemption Notification would apply only in a situation where the goods are brought to DTA under specified paragraphs (a), (d), (e) and (g) of the FTP which is not the case when the unit exits from EOU scheme to DTA unit. The benefit under the said Notification is restricted to the sale allowed to be sold from EOU to DTA and not in relation to the goods at the time of debonding - it is not legally tenable to argue that the rate of duty applicable to a normal Central Excise Unit should be applicable to a EOU even before the EOU becomes a normal Central Excise Unit - rate of duty at the time of debonding involves interpretation of legal provision and it is not a fit case for imposition of penalty under Rule 25 of CER, 2002 - assessee appeal dismissed – appeal of revenue is also dismissed
2016-VIL-250-CESTAT-KOL-CE
M/s EXIDE INDUSTRIES LTD Vs COMMISSIONER OF CENTRAL EXCISE, KOLKATA-III
Central Excise – inputs found short in stock as per Statutory Audit - disallowance of CENVAT Credit under Rule of CCR, 2002 and Rule 14 of CCR, 2004 - penalty under Section 11AC of the CEA, 1944 – Notification No.26/2007-CE(NT) – HELD - in all other cases relied upon by the Appellant, the inputs were lying in the factory which were written off because of unsuitability of their use in the manufacturing process. However, in the present case the shortages written off by the Appellant were never found available in the factory premises of the Appellant. Therefore the ratio of the case laws is not applicable - writing off amount and the shortages were detected by the departmental officers during audit and scrutiny of the Cost Audit Reports, accordingly extended period is applicable – assessee appeal is dismissed, except extending option of 25% reduced penalty under Section 11AC of the CEA, 1944
2016-VIL-178-CAL-ST
SIMPLEX INFRASTRUCTURES LTD Vs COMMISSIONER OF SERVICE TAX, KOLKATA
Service Tax – Construction Service - civil engineering construction - applicability of service tax for Consulting Engineering Service - Section 73 of the Finance Act, 1994 - show cause-cum-Demand Notice invoking extended period of limitation - maintainability of the Writ Petition - Suppression of fact – validity of show cause notice - HELD - there was full and sufficient disclosure of the nature of the Petitioner's business to the Department and it cannot be said that the Petitioner suppressed material facts to keep the Department in the dark with an intent to evade payment of service tax - Suppression of fact in the context of this case can only mean non-disclosure of correct information deliberately to evade payment of service tax. There must be an element of fraud and dishonest motive before a non-disclosure simplicitor can be called "suppression of facts" - the Petitioner suppressed nothing and maintained all through out that it did not carry on business as consulting engineer and as such was not liable to pay service tax under that head. Even if such perception of the Petitioner was founded to be erroneous subsequently still the same would not amount to suppression of fact. Unless a party deliberately conceals material facts with a dishonest motive of eroding some liability or making some unlawful gain, he cannot be said to be guilty of suppression of facts - Once the information is supplied pursuant to the directions of the revenue authority and information so supplied has not been questioned, a belated demand has to be held to be barred by limitation - mere failure to disclose a transaction and pay tax thereon or a mere misstatement or mere contravention of the Central Excise Act or the Finance Act, 1994 or of any Rules framed thereunder, is not sufficient for invocation of the extended period of limitation - the impugned show cause notice is hopelessly barred by limitation - Issue on merit - Two show cause notices could not have been issued in relation to the same period. The impugned show cause notice, cannot be sustained - it appears that the respondents have already formed an opinion as regards the liability of the petitioner and hence, the impugned notice does not remain in the realm of a show cause notice - Service contracts simpliciter and not composite works contracts come within the service tax net under the provisions of the Finance Act. The petitioner is involved in performance of composite works contracts and vivisection of such contracts to segregate the service element and impose service tax on the same is not permissible – assessee petition succeeds
2016-VIL-253-CESTAT-BLR-ST
M/s K.R.S. ENTERPRISES PVT LTD Vs COMMISSIONER OF SERVICE TAX, BANGALORE
Service Tax - Renting of immovable properties – payment of tax before issuance of show cause notice – penalty under sections 76, 77 & 78 of the Finance Act, 1994 – HELD - issue relating to penalties being held in favour of the assessee by decisions of the Tribunal. However adjudicating authority has not followed the same on the ground that amount involved in those cases was on the lower side and they are recent decisions - no merits or any justification for this reasoning of the Commissioner. Law declared by the Tribunal is equally applicable to all the assessees irrespective of the amount involved. The same would not go on changing depending upon the amount involved in a particular case - the Tribunal’s decisions are binding on the lower authorities and cannot be ignored on the sole ground that the Revenue may prefer to file appeal against the same before the higher authorities – penalty set aside and assessee appeal allowed
dgftNoti02
DGFT: Introduction of definition of e-commerce in Foreign Trade Policy (2015-2020)
cuInst450
Customs: Instruction regarding Import/Export of Gifts by Courier
delNoti121
Delhi Value Added Tax (Amendment) Rules, 2016 - Amendment of Forms 16, 17, 30 & 31
telMemo14949
Telangana: Waiver of excess demands over and above the schedule rate in absence of "C" forms in respect of interstate sales of Dall & Pulses
Guest Article
Changes in Madhya Pradesh VAT in Budget 2016-17
13th April
2016-VIL-183-KAR
M/s GUJARAT CO-OPERATIVE MILK MARKETING FEDERATION LTD Vs THE ADDITIONAL COMMISSIONER OF COMMERCIAL TAXES
Karnataka Sales Tax Act, 1957 – sale of Milk products including milk powder - eligibility to exemption as per notification dated 31.5.2003 under entry “Baby foods including milk powder” – denial of exemption – HELD – When one reads and gives meaning to the subsequent words after ‘baby food’, one cannot forget nor ignore the earlier words `Baby Food’. Baby Food includes milk powder but, all milk powder necessarily does not come within the scope of the expression baby food. Milk powder used or marketed as baby food can be considered for the purpose of exemption but not other kinds of milk powder – ‘milk powder’ may fall in Item No.76 and the exemption may be available if sold by K.M.F to its union or inter union sale - assessee is not entitled to the exemption by virtue of Entry No.7 as per notification dated 31.5.2003 – appeal dismissed
2016-VIL-03-TRB
M/s PARLE BISCUITS (P) LTD Vs THE STATE OF MAHARASHTRA
Maharashtra Value Added Tax Act, 2002 – Section 48(5) – eligibility of set-off – HELD - set off cannot be allowed only on the basis of tax invoices, when computerised cross check system showed that vendors of the appellant has neither paid tax into the Government Treasury nor the appellant has brought any further evidence on record in that respect. Therefore, set off is disallowed to the extent, where no proper evidence is brought on record - Refund of excess payment - Section 50 - when there is huge refund of the appellant of the earlier period, which is paid into the Government Treasury within the end of one month of the assessment period 2006-07, then the appellant should not be saddled with the interest to the extent of said amount in the subsequent assessment period 2008-2009 – assessee appeal partly allowed
CUSTOMS SECTION
2016-VIL-257-CESTAT-DEL-CU
CC (IMPORT & GENERAL), NEW DELHI Vs M/s INTEGRAL COMPUTER LTD
Customs – Classification of ‘interactive white board’ – under Customs Tariff Heading 84716090, as per assessee or 84729090, as per Original Authority or 85285100, as per Commissioner (Appeals) – Note 5 of Chapter 84 - HELD - The impugned goods which are interactive teaching device which is mainly used for class room teaching or in the conferences and meetings and work only when connected to a computer and projector cannot fall under the general / broad category of ‘other office machine’. The nature of machines falling in the main heading have no class resemblance to the impugned goods - the learned Commissioner (Appeals) examined specifically the correct classification of the product with reference to its actual function and applicable Chapter Notes and came to conclusion that they are correctly classifiable under CTH 85285100 – revenue appeal dismissed
2016-VIL-256-CESTAT-DEL-CU
M/s ESCORTS HEART INSTITUTES AND RESEARCH CENTRE Vs COMMISSIONER OF CUSTOMS (IMPORT AND GENERAL), NEW DELHI
Customs – mis-declaration of imported "Endoscopic Intuitive IS 1000 da vinci Surgical System" under CTH 9018.90 and claiming of benefit of concessional rate of duty under Notification No. 21/2002-Cus which covered various specific types of endoscopes – demand of interest on differential duty – imposition of penalty – HELD - the Show Cause Notice did not raise the demand in terms of Section 28 ibid. The wording of Section 114A ibid makes it expressely clear that penalty under that Section is attracted when liability to pay duty or interest is determined under Section 28 ibid - penalty under the section 114 A ibid is not attracted – penalty on appellant’s employee and indenting agent is reduced – appeal disposed
CENTRAL EXCISE SECTION
2016-VIL-18-SC-CE
M/s TATA CHEMICALS LTD Vs COLLECTOR OF CENTRAL EXCISE
Central Excise – valuation - Inclusion of value of gunny bags for determination of assessable value of manufactured goods - sales made in the gunny bags supplied can be returned and value thereof is refunded to the buyers – HELD - if an arrangement exists between the seller and the buyer of excisable goods for return of the packing materials by the buyer to the seller, carrying an obligation on the seller to return the value of the packing materials to the buyer on such return, such value is not liable to be included in the assessable value of the finished product. Furthermore, if such an arrangement exists, the question of actual return is not relevant - Appellant failed to establish that such an arrangement of return of the packing materials of the gunny bags with the obligation on the part of the seller to refund the value thereof existed between the parties - we do not find any obligation taken by the appellant to refund the value of the gunny bags to the Buyer in terms of any arrangement between the parties - Inclusion of value of gunny bags is upheld – assessee appeal dismissed
2016-VIL-181-ORI-CE
THE COMMISSIONER, CENTRAL EXCISE, CUSTOMS & SERVICE TAX Vs M/s BALLARPUR INDUSTRIES LIMITED
Central Excise Act- Section 35B - Appeals to the Appellate Tribunal - compliance of sub-section (2) of Section 35B of the Act in preferring appeal - absence of authorization from the Committee of Commissioners – filing of such authorisation belatedly - Dismissal of appeal by Tribunal - Revenue in appeal - HELD - the authorisation made belatedly by the revenue to prefer appeal without same being filed along with appeal is surely an incurable defect and the same cannot be rectified by filing an authorization later on - the word “may” as appearing in sub-section (2) of Section 35B of the Act cannot be said to be discretionary or directory but it is a mandatory provision and should be read as “shall” - find no force with the submission of appellant-Department to the effect that such word “may” is a directory one and as such the contention is jettisoned. Since it is a fiscal statute, it requires strict interpretation, no word can be construed otherwise and purposive interpretation is the call of the day - as the authorization by the Committee of Commissioners of Central Excise is not found in the impugned order, the impugned order passed by the CESTAT is correct, legal and proper – revenue appeal dismissed
2016-VIL-182-GUJ-ST
PURNIMA ADVERTISING AGENCY PVT LTD Vs UNION OF INDIA
Service Tax – excess payment of service tax – Refund claim – denial of refund claim on the grounds of time-bar and unjust enrichment – interest under 11BB of the CEA, 1944 –eligibility of interest on refund amount credited to the Consumer Welfare Fund – HELD - The statute does not provide for curtailment of the period for which the interest has to be paid on account of any superwinning circumstances, like transfer of the amount to the Consumer Welfare Fund – there is no provision of law which shows that when the amount is transferred to the Consumer Welfare Fund, the period for which the assessee would be entitled to interest under section 11BB of the CEA would stand curtailed. It is a settled legal position that insofar as the taxing provision is concerned, the same has to be construed strictly and one has to look merely at what is said in the relevant provisions; there is nothing to be read in; nothing to be implied and there is no room for any intendment - the order passed by the Commissioner (Appeals) holding that there was unjust enrichment, was held to be erroneous and has been set aside, under the circumstances, no prejudice ought to be caused to the petitioner on account of any erroneous order passed by the respondents-authority, without there being any default on part of the petitioner - the petitioner is entitled to interest from the date specified in the statute. The Tribunal was not justified in holding that from the date of transferring the sum to the Consumer Welfare Fund, the petitioner was not entitled to payment of interest on the refund amount – assessee appeal allowed with cost to Revenue
2016-VIL-255-CESTAT-MUM-ST
M/s MOHITE ENTERPRISES Vs COMMISSIONER OF CENTRAL EXCISE, PUNE-III
Service Tax – supply of manpower for activity of Storage Warehouse and Handling of Agricultural Produce - classification under ‘Manpower Recruitment and Supply Agency Services’ as claimed by Revenue or ‘Storage Warehouse and Handling of Agriculture produce’ as claimed by the appellant – HELD - The Works Order, various terms and conditions, indicate that appellant has to produce attendance sheet, proof of actual payment towards statutory obligations like PF, ESIC etc., it would mean that the contract entered was for supply of unskilled manpower, that the bill has been made by the appellant as services charges for "Storage Warehouse and Handling of Agricultural Produce" through Works Order given description of work and supply of unskilled Manpower are directly under the category of "Manpower Recruitment and Supply Agency Services" – assessee appeal dismissed
mahaCir8T
Maharashtra: Grant of Administrative Relief to un-registered Dealers
14th April
2016-VIL-19-SC-CE
EVEREADY INDUSTRIES INDIA LTD Vs STATE OF KARNATAKA
Karnataka Tax on Entry of Goods Act, 1979 – exemption on the entry of raw materials, component parts and inputs and machinery and its parts into a local area by new industrial units - ambit of “new industrial unit” in exemption Notification – HELD – what is an essential requirement for a unit to fall within the definition of “A New Industrial Unit” under the notification dated 31.03.1993 as it is assigned the same meaning as contained in the notification dated 21.06.1991. Notification dated 31.03.1993 further makes it clear that this notification is not to apply to a Unit to which notification dated 19.06.1991 does not apply - it was admitted by the appellant itself that the Department of Industries and Commerce issued eligibility certificate in terms of industrial policy and notification dated 15.11.1996 issued under Section 19-C of the KST Act. Such eligibility certificate would not be of any consequence in as much as, in order to get the benefit of the notification dated 31.03.1993, the appellant was required to get certification under the notification dated 19.06.1991 - appellant has not been able to cross the threshold and to find entry under notification dated 31.03.1993 and does not fulfill the requirement of the notification dated 31.03.1993 - appellant was not entitled to exemption from entry tax – assessee appeal dismissed
2016-VIL-254-CESTAT-DEL-CU
CC, NEW DELHI (IMPORT & GENERAL) Vs M/s GEO VISION TECHNOLOGIES PVT LTD
Customs – Classification of GSM/GPRS/GPS/Terminal - GPS trans receiver or GPS receiver – Classification under Section 85256019 and not under Section 85269190 – HELD - the impugned goods not only enable the taxi company to know where each its vehicles was located but also enable it to instruct the driver and the driver of the vehicle is also able to give feedback to the taxi company. Therefore, the impugned goods are clearly GPS trans receiver rather than mere GPS receiver and would therefore, be covered under CTH 85269190 - the impugned goods are held to be classifiable under CTH 85269190 - Revenue appeal allowed
Service Tax Notification
stNoti24: Amendment to Rule 7 of Point of Taxation Rules, 2011
stNoti23: Amendment to rule 6 sub-rule (2), of Service Tax (Determination of Value) Rules, 2006
stNoti22: Amendment to Notification No. 25/2012- Service Tax dated 20.06.2012, so as to exempt certain services provided by Government or a local authority to business entity
stCir192: Clarification on issues regarding levy of Service Tax on the services provided by Government or a local authority to business entities
ceNoti54NT
Central Excise: Amendment to sub-rule (7) of rule 4 & rule 6 of CENVAT Credit Rules, 2004
cuNoti54NT
Customs: Fixation of Tariff Value of Edible Oils, Brass Scrap, Poppy Seeds, Areca Nut, Gold and Sliver
cuNoti13ADD
Customs: Levy of definitive anti-dumping duty on Normal Butanol or N-Butyl Alcohol, originating in, or exported from the European Union, Malaysia, Singapore, South Africa and USA, for a period of five years
15th April
2016-VIL-04-TRB
M/s VIFOR PHARMA PVT LTD Vs THE STATE OF MAHARASHTRA
Maharashtra Value Added Tax Act, 2002 - Classification of “Sterile Water for Injection” – distilled water and water for injection - Entry Drug under in C-29 of MVAT Act, 2002 or residuary entry E-1 – entry C-107(8) - HELD - The interpretations regarding requirement of schedule entry C-107(8) and related notification is required to be interpreted strictly and not liberally. Hence, distilled water and water for injection are two distinct commodities and distilled water is covered in schedule entry schedule entry C-107(8) and as water for injection is not covered elsewhere hence automatically product travels to Schedule entry E1 entry i.e. residual entry - In view of the strong case made out by the appellant as regards “statutory misguidance” and “mutual mistake” and having regard to the past decisions of the Commissioner of Sales Tax as well as this Tribunal, this is a fit case to give the prospective effect to the Determination Order - appeal is disposed in favour of revenue
2016-VIL-186-GUJ
GANESH SALES CORPORATION Vs STATE OF GUJARAT
Gujarat Value Added Tax Act, 2003 – Refund – conditions precedent to withholding of refund by invoking Section 39 of the Act - extraordinary jurisdiction of High Court – HELD - the order of provisional refund is not subject matter of appeal, nor is there any further proceeding in connection therewith, nor is any other proceeding under the Act pending. Therefore, none of the three contingencies constituting the second condition precedent for invoking section 39 of the Act is satisfied - the impugned order has been passed without the conditions precedent for exercise of such power being satisfied and therefore, lacks jurisdiction - when an order is without jurisdiction, it is permissible for the aggrieved party to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India - in the absence of formation of any opinion that the refund is likely to adversely affect the revenue, the question of withholding the refund would not arise. Thus, none of the requirements for resorting to the power conferred by section 39 of the GVAT Act are satisfied in the present case. The impugned order, therefore, suffers from lack of jurisdiction and hence, cannot be sustained – revenue is directed to forthwith disburse the refund along with interest – assessee petition allowed
2016-VIL-185-DEL-CE
M/s MARUTI UDYOG LTD Vs UOI & OTHERS
Central Excise - whether the pendency of the Petitioner's RA before the CESTAT satisfies the requirement for acceptance of the Petitioner's declaration under the KVSS – denial of benefit of Kar Vivad Samadhan Scheme basis of reference application pending but not 'admitted’ in Tribunal – HELD - It has been clarified even in the circular issued by the CBDT that "If the taxpayer has filed within the statutory time a legally valid reference application under Section 256(1) or 256(2)" of the IT Act (corresponding to Section 35G of the CE Act 1944) "the condition of pendency of reference could be said to have been satisfied" - as far as the RA filed by the Petitioner is concerned, since there is no procedure of 'admitting' such an RA, the mere proof of pendency of the RA before the CESTAT should be sufficient for accepting the declaration filed by the Petitioner under the KVSS - the Respondent to directed to accept the declaration filed by the Petitioner under the KVSS – assessee petition allowed
2016-VIL-259-CESTAT-AHM-CE
C.C.E. & S.T., RAJKOT Vs PARTH TRADING CO.
Central Excise - manufacture of Ready Mixed Concrete – refund of un-utilized Cenvat Credit in relation to the manufacture of final products and exported to SEZ unit – denial of credit on the ground clearance of the goods from DTA to SEZ would not amount to export – HELD - perusal of the Board Circular dated 28/04/2015 and the other decision of Tribunal as relied upon, it is clearly held that supply of goods from DTA to SEZ has to be treated as export and entitled to refund of accumulated Cenvat Credit under Rule 5 of Rules, 2004 - Revenue appeal dismissed
2016-VIL-184-DEL-CE
LML LTD Vs UNION OF INDIA
Central Excise - MODVAT credit of the duty paid on High Speed Diesel oil (HSD) used both for generating electricity and as fuel - Rules 57A and 57B read with Rule 57D of the Central Excise Rules, 1944 - Section 112 of the Finance act 2000 - denial of credit of duty paid on HSD from 16th March 1995 onwards – HELD - the statement made by the Department before the Supreme Court that "refund has already been given" to the Petitioner holds good and reflects the position that the Department has accepted the orders of the Dy CE and CCE (A) which were affirmed by the CEGAT - Consequently, the Department cannot, at this stage, seek to enforce any demand viz-a-viz the MODVAT credit availed on HSD prior to 1st March, 1998 - the Respondent is restrained from seeking to recover the MODVAT credit on HSD availed for the period prior to 1st March, 1998. The impugned demand notices to that effect are, set aside - It is clarified that the above directions have been issued in the peculiar facts of the present case and will not constitute a precedent as regards the constitutional validity or applicability of Section 112 of the Finance Act, 2000 – petition allowed
2016-VIL-262-CESTAT-KOL-CU
M/s PRECISION POLYPLAST PVT LTD Vs COMMISSIONER OF CUSTOMS (PORT), KOLKATA
Customs – Section 2(26) of the Customs Act – Importer - supply of imported goods as SEZ Unit - Refund of SAD as per Notification No.102/2007-CUS dated 14.09.2007 – denial of refund on the ground that appellant not able to show that VAT has been paid on the sale of goods under DTA – HELD - Appellant remained an importer till the goods are cleared for home consumption i.e. sale to DTA unit. As per Rule 48(1) of SEZ Rules, 2006 a Bill of Entry for home consumption is required to be filed by DTA buyer. The proviso contained in this Rule 48(1) mentions that Bill of Entry for home consumption may also be filed by SEZ Unit on the basis of authorization from a DTA buyer. For the purpose of interpreting a Notification issued under Section 25(1) of the CA, 1962 the definition of ‘importer’ given in Section 2(26) of the Act is required to be followed, according to which the Appellant was an importer of the goods when imported into India and paid VAT at the time of sales to DTA units. The SAD paid has not been recovered from the DTA buyers. The conditions of Notification No.102/2007-CUS are, therefore, fulfilled - assessee appeal is allowed
2016-VIL-260-CESTAT-CHE-CU
LIGARE AVIATION LTD Vs PRINCIPAL COMMISSIONER
Customs – Seizure of aircraft under Section 110 of Customs Act - movement of the aircraft amounting to export and re-import and failure to submit the Shipping Bill / Bill of Entry – condition precedent to provisional release of aircraft – HELD - the aircraft has been sold to overseas buyer and simultaneously the same aircraft has been again leased out to appellant-company for a consideration - the benefit of notification No.94/96-Cus exempting the goods which are re-imported into India is not applicable to appellant's case. It is not a case of appellant that they exported the aircraft for any other purpose which are re-imported but the aircraft was sold to the overseas buyer - provisional release is provisional release under Section 110A of the Customs Act subject to execution of bond equivalent value
2016-VIL-263-CESTAT-MUM-ST
COMMISSIONER OF SERVICE TAX, MUMBAI-II Vs POLYDRILL ENGINEERS PVT LTD
Service Tax – demand under Maintenance or Repair Services – operation and maintenance of Bulk Handling Plant – revenue appeal - HELD - to attract service tax liability under maintenance or repair service, there has to be a contract for doing so and it should be given by manufacturer or any person authorized to do so. In the case in hand, the definition will not apply as the maintenance or repair service are not for management or repair service, but these are consumed by them for smooth functioning of bulk handling plant - the impugned order is correct, legal and does not suffer any infirmity. The appeal filed by the revenue is rejected
2016-VIL-258-CESTAT-AHM-ST
OIL & NATURAL GAS CORPORATION LIMITED Vs CCEC&ST, SURAT-II
Service Tax - Suo-moto adjustment of excess payment of service tax – failure to tax adjustment in ST-3 Returns – penalty – limitation – HELD - there is no dispute that the appellants have paid excess service tax, therefore, they are eligible for getting back the excess amount paid, either by way of refund or by adjustment. The appellants choose to re-adjust the same suo-moto. It is apparent that they have not followed the procedures in this regard. However, the fact remains that they were entitled for the amount. Therefore, demand of service tax of the said amount is not sustainable. Consequently, imposition of equivalent penalty under Section 78 is also not sustainable. However in the fitness of things, it would be appropriate that the appellants are given a warning that they should follow the procedures in such respects – appeal allowed
Guest Article
‘Any services’ provided by Government or Local Authority to a Business Entity chargeable to ST under Reverse Charge w.e.f. April 1, 2016
Changes in Karnataka VAT in Budget 2016-17
cbecInst390
CBEC: Decision of the CESTAT Final Order No 40344/2016 in case of Commissioner of Customs (Import) Vs Do Best Infoway
chhgNoti51
Chhattisgarh: Notification regarding exemption to Blooms and Slabs
rajNoti53
Rajasthan: Regarding online refund process
rajNoti60
Rajasthan: Regarding grant of permission for the type of change in dealer's principal place of business
FCP1504
FROM THE CORRIDOR OF POWER - Updates from various Union Ministries, PMO & Cabinet