SUMMARY FOR THE MONTH OF AUGUST 2015
List of updated in the month of August ‘15
1st of Aug
mahaLBTnoti32
Maharashtra Municipal Corporations (Local Body Tax)
(Amendment) Rules, 2015 - Dealer whose turnover of sales or turnover of
purchases, during any year, is not less than 50 Cr. shall only be liable for
registration
3rd of Aug
2015-VIL-308-ALH
M/s GONDWANA ENTERPRISES Vs
STATE OF U.P.
Uttar Pradesh Value Added Tax Act - Section 29 (1) –
Assessee engaged in manufacture, sales and forging of steel and metal
fabricated goods. The petitioner is also doing job works for other parties on
the basis of labour charge - rebate of entry tax on the goods - "reasons
to believe" to initiate proceedings for re-assessment – HELD – The words
"any deduction or exemptions have been wrongly allowed" would also
include a rebate which has wrongly been allowed - We have perused the
assessment order and we find that there is no discussion or any finding as to
how rebate was permissible to the petitioner. Section 4 (6) of the Entry Tax
Act clearly indicates that the goods brought into the local area has to be sold
or re-sold in the same form in the course of inter-state trade and commerce in
order to be eligible for a rebate. If any manufacturing activity is carried on,
rebate is not permissible. What would be the effect of forging is left open to
be decided in the assessment proceedings as it requires evidence - there was sufficient reasons to believe for the assessing authority
to seek permission for reopening the assessment. The belief was based on valid
and cogent reasons - The re-assessment on the same material was permissible for
valid reasons inasmuch as we find that there was no discussion or any finding
as to whether in the given case rebate was permissible to the petitioner - The
writ petition fails and is dismissed
2015-VIL-309-GUJ
STATE OF GUJARAT Vs KAIRAVI STEEL
Gujarat Value Added Tax Act,
2003 – Section 11 – input tax credit - Demand of interest and penalty - Excess
payment of input tax credit – HELD – Following the ratio of State of Gujarat V.
Cosmos International Ltd assessee cannot be held to pay the interest and
penalty on the tax levied since the assessee has already paid excess Input Tax
Credit – Revenue appeal dismissed
2015-VIL-73-SC-CE
COMMISSIONER CENTRAL EXCISE, MUMBAI-III Vs M/s EMCO
LTD
Central Excise - Valuation -
Transaction Value – Revenue seeks to include transportation cost and transit
insurance cost to arrive at the transaction value in terms of Section 4(3)(d)
of the Act – Place of removal - HELD – ‘Place of removal', in a given case
becomes a crucial determinative factor for the purpose of valuation. In the
present context, if it is found that transportation charges and transit insurance
charges were incurred after the 'place of removal', then they are not to be
included. On the other hand, if these charges are incurred before the 'place of
removal' then they are to be included while arriving at the transaction value.
Again, in the context of the present case, what is to be determined is as to
whether the 'place of removal' was the factory gate of the respondent or it was
the premises of the purchaser at the time of delivery of these goods -
Perfunctory manner in which the appeal of the assessee is allowed by Tribunal,
cannot be countenanced. In the instant case, there is a detailed discussion in
the order of the Commissioner on the facts of the case. Those facts are not
adverted to or dealt with - Those facts are not adverted to or dealt with. The
decision of the Commissioner is overruled with single observation that the case
is covered by the judgment in Escorts JCB Ltd., without discussing as to how it
was so covered. This is notwithstanding the fact that the decision as to which
is the 'place of removal' depends upon the facts of each case - We may record
that as per the Commissioner, place of removal was the place of delivery at the
buyer's premises. However, since no documents are produced before us, we are
not in a position to comment as to whether the aforesaid view taken by the
Commissioner is proper or not - Accordingly, the appeals are allowed by
remitting the cases to the Tribunal for fresh consideration - Revenue Appeal
allowed by way of remand
2015-VIL-74-SC-CE
SHABINA ABRAHAM Vs COLLECTOR OF CENTRAL EXCISE AND
CUSTOMS
Central Excise - Whether an
assessment proceeding under the Central Excises and Salt Act, 1944, can
continue against the legal representatives/estate of a assessee after he is
dead - whether the dead person's property, in the form of his or her estate,
can be taxed without the necessary machinery provisions in a tax statute –
Recovery of sums due to Government - HELD - The argument that Section 11A of
the Central Excises and Salt Act is a machinery provision which must be
construed to make it workable can be met by stating that there is no charge to
excise duty under the main charging provision of a dead person - While
interpreting the provisions of the Central Excises and Salt Act, legal heirs
who are not the persons chargeable to duty under the Act cannot be brought
within the ambit of the Act by stretching its provisions – Assessee appeal
allowed
2015-VIL-397-CESTAT-CHE-CE
TAMILNADU ASBESTOS Vs COMMISSIONER OF CENTRAL EXCISE,
TIRUCHIRAPALLI
Central Excise – Refund due
to price variation – Denial of refund on ground of unjust enrichment – Contract
price - HELD - In the present case, since the rates are fixed by TWAD Board
which is applicable for full year, there is no variation in the price and the
supplier fixes the rate contract every financial year, clearances cannot be
stopped and the appellant has to clear on a higher price till receipt of the
fresh rate contract - When appellant had paid excise duty at higher price for
the intervening period based on the previous year rate pending the receipt of
the rate contract for the year 1998-99. Therefore, the appellants are eligible
for refund of excise duty paid for the period 28.5.98 to 31.8.98 - Refund is
time barred for the period from 28.3.1998 to 27.5.1998 (ii) the appellant is
eligible for refund for the period 28.5.98 to 31.8.98. Assessee appeal is
partly allowed
2015-VIL-396-CESTAT-MUM-ST
M/s OIL & NATURAL GAS CORPORATION LTD Vs
COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, RAIGAD
Service Tax – Cenvat Credit - Rule 3(i) & Rule 9 of CCR, 2004 - Availment
of credit without obtaining the input service distributor registration by head
office and without following procedure laid down for said purpose – Document
for availing Cenvat credit – Demand of 27.79 Cr and penalty of 40.57 Cr - HELD
– The important aspect for availing the credit is that service which has been
provided by the service provider, it should have service tax paid character,
invoices as against sale of service should be tax paid. The registration and
issuance of input service distributor invoices is merely a procedural
requirement. In this procedure neither input service distributor makes any
payment of service tax nor utilized credit for payment
of any duty. Procedure for input service distributor is only, in order to
maintain co-relation between the purchase of service and distribution thereof
to the unit of the registered person who are under same entity. As per the
facts of the present case, the case of the appellant is on better footing for
the reason that they have availed cenvat credit on
the valid invoices issued by input service distributors - Appellant has availed
Cenvat Credit on the invoices issued by the input service distributor after
obtaining the registration, therefore the invoices on which credit was taken
are valid documents. Since, there is no even procedural lapse on the part of
the appellant, Cenvat credit taken on the invoices issued by registered input
service distributor is correct and legal – Impugned order aside, assessee
appeal allowed
2015-VIL-395-CESTAT-MUM-ST
M/s MERCEDES BENZ INDIA (P) LIMITED Vs COMMISSIONER OF
CENTRAL EXCISE, PUNE-I
Service Tax – Rule 6 of CCR,
2004 - Credit on the common input services which are used in relation to the
goods manufactured and cleared on payment of duty as well as motor vehicle
imported as such and traded in the domestic market - whether appellant is
required to pay 5% of total sale value of the goods traded by them in terms of
Rule 6(3)(i) when the appellant paid the actual
credit attributed to the quantum trading sale in terms of Rule 6(3A) alongwith interest following the option available under
Rule 6(3)(ii) – HELD - Appellant has availed Cenvat Credit in respect of common
input services, which has been used in relation to the manufacture of the final
product as well as for trading of bought out cars. Therefore they are supposed
to pay an amount equivalent to Cenvat Credit which is attributed to the input
service used for exempted service i.e. sale of car. In our view, three options
have been provided under rule 6(3) and it is up to the assessee that which
option has to be availed. Revenue could not insist the appellant to avail a
particular option. In the present case the appellant have admittedly availed option
as provided under Rule 6(3)(ii) and paid an amount as
required under sub rule (3A) of Rule 6 – Since the payment on monthly basis is
provisional basis, therefore it is not mandatory that whole amount or part of
the amount as required to be paid on every month. The appellant though
belatedly calculated the amount required to be paid in terms provided under
Rule (3A) of Rule 6, therefore to fulfil the
condition, assessee should pay the said amount, which has been complied by the appellant - Rule 6
of the Cenvat Credit Rules is not enacted to extract illegal amount from the
assessee. The main objective of the Rule 6 is to ensure that the assessee
should not avail the Cenvat Credit in respect of input or input services which
are used in or in relation to the manufacture of the exempted goods or for
exempted services - If this is the objective then at the most amount which is
to be recovered shall not be in any case more than Cenvat Credit attributed to
the input or input services used in the exempted goods. It is also observed
that in either of the three options given in sub rule
(3) of Rule 6, there is no provisions that if the assessee does not opt any of
the option at a particular time, then option of payment of 5% will
automatically be applied. Therefore we do not understand that when the
appellant have categorically by way of their intimation opted for option
provided under sub-rule (3)(ii), how Revenue can insist that option (3)(i) under Rule 6 should be followed by the assessee - Demand
confirmed by the adjudicating authority has no legs and therefore the same
cannot be sustained – Assessee appeal allowed
Guest Article
VAT not applicable on
transfer of right to use of goods if effective possession and control of the
goods are not transferred - Analysis of Hari Durga Travels Vs. Commissioner of
Trade & Taxes, Delhi
Guest Article
GST Knowledge Series #3 -
GST Rates – An unresolved issue
upNoti1042
Uttar Pradesh: Amendment in
Schedule I & II - Regarding 'Bans ki Fatti'
FCP0308
FROM THE
CORRIDOR OF POWER - Updates from various Union Ministries, PMO & Cabinet
4th of Aug
harNotiLeg9
Haryana: Haryana Value Added Tax (Second Amendment)
Ordinance, 2015 - Amendments in Sections 2, 8, 15A, 16, 17, 34, 60 &
Insertion of Chapter XA in HVAT Act, 2003
kerCir19
Kerala: Procedure relating to release of goods which
are intercepted and detained
rajCir10
Rajasthan: Regarding verification of utilization of
'C' Form
2015-VIL-311-MAD
NOKIA INDIA SALES PRIVATE LTD Vs STATE OF TAMIL NADU
Tamil Nadu Value Added Tax Act - Section 12 - Levy of
purchase tax on the Inter State stock transfer effected from warehouse located
in SEZ – Levy of purchase tax under Section 12 of the TNVAT Act, 2006 r/w
Section 15 of the Tamil Nadu SEZ Act – Whether an SEZ unit is entitled to
exemption from levy of purchase tax on the interstate stock transfer effected
from warehouse located in SEZ – Domestic Clearance by Units by SEZ unit - HELD
– Perusal of the Section 30 of the SEZ Act, 2005 it is explicit that if any goods
removed from a Special Economic Zone to the Domestic Tariff Area shall be
chargeable to duties of customs including anti-dumping, countervailing and
safeguard duties – On perusal of the Section 15 of the SEZ Act it is clear that
if the goods are removed from SEZ to the domestic tariff area, such transaction
is liable to sales tax - The petitioner cleared the goods from SEZ unit to
domestic tariff area and such removal of goods claimed as branch transfers
under Section 6(A) of the CST Act, exempt from tax, however, such domestic
tariff area clearances consequently attract provisions of Section 15 of TNSEZ
Act. Therefore, Section 2(1(b) of the TNVAT Act stands attracted justifying
levy of purchase tax - Considering the fact that the petitioner effected stock
transfer to other states having imported the goods from outside India to its
warehouse located in SEZ area, which is nothing but domestic tariff area sales
and such transaction is liable to sales tax, as if the goods are imported goods
and in terms of Section 15 of the TNSEZ Act, the first respondent has confirmed
the liability of purchase tax under Section 12 of the TNVAT Act at 14.5% - The
purchase tax was imposed on the inter-state stock transfer and the petitioner
cannot seek exemption thereof since effecting inter-state stock transfer has
not been authorized by the Development Commissioner nor it would fall within
the definition of ‘authorized operations - Writ Petitions fail and they are
dismissed
2015-VIL-310-GUJ
ALLIANCE FIBERS LTD Vs STATE OF GUJARAT
Gujarat Value Added Tax Act, 2003 – Seizure of goods
under sections 68 & 69 of the Act – Seizure ground that the petitioner was
in default in payment of VAT – HELD - The impugned order is passed on the
ground that the petitioner was in default of payment of tax though the order
impugned clearly indicates that the same has been passed under section 68 &
69 of the Act. The assessment order is passed on 31/3/2015 however, the appeal
has been preferred by the petitioner on 27/5/2015 i.e. within period of 60 days
provided under the Act - It is pertinent to note that the authority had seized
the goods before expiry of period of limitation prescribed under section 73(4)
of the Act. Therefore, the authority could not have seized the goods under the
provisions of section 68 and 69 of the Act - Therefore, we accept the petition.
The impugned order is hereby quashed and set aside – Assessee petition allowed
2015-VIL-78-SC-CE
COMMISSIONER OF CENTRAL EXCISE, MUMBAI Vs M/s RELIANCE INDUSTRIES LTD
Central excise - polyester waste – clandestine removal
– HELD - When this piece of evidence is there, the department has not produced
any evidence to contradict the same. When direct evidence is emerging in this
case, the department has failed miserably to prove that what is sold was only
staple fibre. Once we come to that conclusion, the very foundation of the
department's case is removed - We do not find any reason to interfere with the
impugned order of the CEGAT - The appeals are devoid of any merit, accordingly,
dismissed
2015-VIL-75-SC-CE
COMMISSIONER OF CENTRAL EXCISE, CHENNAI-II Vs M/s TEJO ENGINEERING
SERVICES PVT LTD
Central Excise - cutting of the conveyor belting into
required sizes and the issue is as to whether it involves manufacture – HELD -
Mere cutting of the lengthy conveyor belt into smaller sizes would not amount
to manufacture, ipso facto, unless it is shown that as a result of the said
cutting, it was transferred into a new product which was a marketable product.
Revenue has failed to bring out these aspects – Revenue appeal dismissed
2015-VIL-76-SC-CE
M/s ANKUR STEELS Vs COMMISSIONER OF CENTRAL EXCISE, ALLAHABAD
Central Excise – Deemed MODVAT credit – Appellant
seeks to avail credit of the duty which was already paid by the Railways on the
rods, wheels, fish plates, etc., when the Railways initially purchased the same
and which the Railways sold to the appellant after using the said products for
a number of years - Rule 57G of the Central Excise Rules, 1944 – HELD - The
Original Adjudicating Authority had recorded a finding of fact that there was
no melting of the aforesaid inputs while manufacturing the bars and rods of the
iron and steel. The adjudicating authority also recorded a finding that the
goods in question which were purchased by the appellant as scrap from the
Railways and became inputs for it to manufacture its own goods were not
dutiable - The appellant satisfies all the eligibility conditions contained in
notifications dated 13.07.1992 and 01.03.1994 for availing the deemed MODVAT
credit - We thus, allow this appeal and set aside the orders passed by the High
Court, the CEGAT and the appellate authority and restore the order of the
Assistant Commissioner which had allowed the said credit to the appellant –
Assessee appeal allowed
2015-VIL-77-SC-CE
COMMISSIONER OF CENTRAL EXCISE, AURANGABAD Vs M/s GOODYEAR SOUTH ASIA
TYRES PVT LTD
Central Excise – Section 4 - Related Person -
Valuation - Mutuality of interest - Joint Venture Agreement showing
interest of Goodyear and CEAT in the assessee - Assessee also received
unsecured interest free loan from CEAT and Goodyear – HELD - No doubt, the two
buyers had given interest free loan to the assessee. However, that by itself
may not be a reason to hold them as related persons within the meaning of Section
4(4)(c) of the Act. In the absence of any mutuality of
interest existing between them, giving of this interest free loan could have
been a basis to include the notional interest while arriving at the cost of
product sold by the assessee to the two buyers. However, instead of doing that,
the appellant wanted to make use of this factor to hold that the assessee and
the two buyers are "related persons" which position is difficult to
comprehend - it would be significant to mention that after taking over of the
assessee company by Goodyear, more than 70 per cent of the sales by the
assessee company are to the third parties. That apart, there was another
contention of the assessee, viz., that the goods sold to the outsiders are at a
lesser rates than sold to Goodyear. These two contentions have not been refuted
by the Revenue - The case would be clearly covered Commissioner of Central
Excise, Hyderabad v. M/s. Detergents India Limited - Revenue appeal dismissed
2015-VIL-398-CESTAT-DEL-CE
C.C.E., JALANDHAR Vs M/s INTERNATIONAL ENGINEERS LIMITED
Central Excise – Valuation - Related person -
Interconnected undertaking - mutuality of interest - Exclusive sell of entire
production to interconnected undertaking – HELD – The finding of the
Commissioner (Appeals) is only holding of share of 50% and selling of entire
production by the appellants to M/s ITL is not enough to prove the mutuality of
interest in the business of each other - evidences of certain extra commercial
consideration is required to be brought on records and held that the department
has not established such mutuality of interest affecting the valuation of
excisable goods – The finding of the Commissioner (Appeals) in respect of both
limitation and on merits could not be faulted – Revenue appeal dismissed
2015-VIL-399-CESTAT-DEL-ST
MANAGING DIRECTOR OF U.P. STATE BRIDGE CORPORATION Vs C.C.E., LUCKNOW
Service Tax - Transport of goods by road (GTC
services) - Appellant has not disputed liability of service tax but has claimed
the benefit of 75% abatement under Notification No. 1/2006-ST dated 01/3/06
before it was withdrawn by issuing another Notification No. 13/2008-ST dated
01/3/08 – HELD - It is observed that under Notification No. 1/2006-ST
transporters providing services to the appellant should give a declaration that
no Cenvat credit of input services is taken. It is the argument of the
appellant that subsequent Notification No. 13/08-ST dated 01/3/08 did not have
any condition that any service tax credit on input services has been taken by
the transporters and that subsequent Notification No. 13/08-ST convey the
intention of the Government for earlier Notification No. 1/2006-ST also. The
argument made by the appellant is required to be rejected on the grounds that
the Notification issued on 01/3/08 cannot be made applicable to the service tax
liability for the period 01/1/05 to 31/1/08 when Notification No. 1/2006-ST
dated 01/3/06 was operative. When Notification No. 1/2006-ST talks of not
taking of Cenvat credit on input services taken by the transporter then it is
obligatory on the part of the appellant or transporter to at least give a
general declaration to the effect that no service credit of input services is
taken by the transporters. In the absence of any such certificate the finding
recorded by the Adjudicating Authority cannot be faulted with and is required
to be upheld – Assessee appeal dismissed
2015-VIL-400-CESTAT-AHM-ST
M/s INOX LEISURE LIMITED Vs C.C.E. & S.T. VADODARA-II
Service Tax - Appellant is providing dutiable and exempted
services and avails CENVAT credit on certain common input services. Appellant
opted for payments at 12% on the value of exempted services under Rule 6 (3) of
the CCR, 2004 and also paid amounts for the earlier periods 2008-09 and 2009-10
- Exercise of option has not been prescribed to be given in writing to the
Department - changed the option once exercised - Appeal rejected only on the
ground that an option given cannot be effective for the earlier period – HELD -
There is no fact on record that appellant at any stage opted for opinion-(ii)
of CBEC Circular No. 868/6/2008-CX Dated 09.05.2008 - On a particular date he
paid amounts @ prescribed as per option (i) even for
the past period. In the absence of any contrary fact it cannot be said that
appellant changed the option in a financial year. Appellant has all through
opted for payment of amounts as per prescribed percentage of the value of
exempted services, may be at a later date. There is no bar for making payments
as per prescribed percentages for the prior period also as it may not be
feasible to segregate quantum of input service credit pertaining to dutiable
and exempted services. Appellant action of paying amounts as per option (i) above for the past period is justified – Assessee appeal
is allowed
Guest Column
Issues in implementing the GST at States’ Level
assamNoti60
Assam: Procedure for transportation and delivery of
consignments - Import of taxable goods into Assam purchased through online
shopping for personal use
delPN300715
Delhi: Regarding furnishing
of online details as per PAN
kerCir21
Kerala: Instructions regarding use of Online Delivery
Note
5th of Aug
2015-VIL-313-MAD
BONFIGLIOLI TRANSMISSIONS PRIVATE LTD Vs ASSISTANT
COMMISSIONER (CT)
Tamil Nadu General Sales Tax
Act - Interest Free Sales Tax ‘Deferral Scheme’ – Levy of differential tax for
certain turnovers on account of non-filing of Form-C/Form-H and other
declarations – Petitioners argue that the differential tax on account of
non-submission of declaration forms should also be adjusted against reserved
available under IFST deferral amount – Turnover suppression - Demand, interest
and penalty - HELD – Petitioner contention that deferral agreement excludes
only the tax and penalty levied or leviable by the
assessing officer on taxable turnover suppressions from IFST deferral and since
the petitioner has not made any suppressions no case of non-declaration of
taxable turnover in returns was made out against the petitioner and therefore,
they are entitled for IFST deferral on the entire tax assessed on the taxable
turnover declared in returns. This technical ground raised by the petitioner is
illogical and untenable for the simple reason that even without collecting the
actual taxes and declaring the same in monthly returns, the petitioner cannot
avail IFST scheme. The intention of the petitioner behind not declaring in the
monthly returns by filing Form C and H, etc., is that if the department fails
to take note of the same, the petitioner can get the benefit of the IFST scheme
in respect of transactions where the actual collection of taxes was in fact not
taken place. It is to be noted that when the department has noticed and raised
demand of differential tax, it is not appropriate on the part of the petitioner
to take stand that they are entitled to avail the IFST scheme as they did not
exceed the limit and a considerable amount has been reserved, etc., Therefore,
there is no any merit in the claim made by the petitioner – No irregularity or
illegality in the impugned proceedings - Writ Petition fails and it is
dismissed
2015-VIL-312-P&H
M/s GOLD RANGE CASTINGS PVT LTD Vs STATE OF PUNJAB AND
OTHERS
Punjab Value Added Tax Act,
2005 – Delay in Renewal of the certificate of advance tax exemption – HELD –
The petitioner’s grievance, as indeed it must also be the grievance of several
other applicants, is that the delay in issuing the exemption certificate or any
renewal in respect thereof prejudices it substantially for till it is granted
the assessee would be bound to pay the advance tax and then seek refund. It is
not clear as yet as to whether such an assessee would be entitled to any
compensation including by way of interest during the period that the advance
tax which ultimately is not payable is deposited with the authorities. The
grievance is not without substance - We would request the respondents to
consider addressing this grievance of the assessee in a fair and judicious
manner. For instance, the authorities may consider whether the exemption ought
to be open-ended subject to the right to revoke the same and also insisting for
information in the meantime. They may also consider whether the exemption
certificate ought to be granted for a longer duration than for three months. It
may also be possible to permit the parties to apply for the renewal well before
the expiry date of the existing certificate and to direct the authorities to
take a decision on such application, if any, before the expiry of the date of
the existing certificate - Writ petition is disposed of by requesting the
authorities to consider said the proposals
2015-VIL-401-CESTAT-MUM-CE
JOHNSON & JOHNSON LTD Vs COMMISSIONER OF CENTRAL
EXCISE & ST (LTU), MUMBAI
Central Excise – Valuation
of the goods u/r Rule 8 of the Central Excise Valuation Rules – Reduction in
assessable value of certain goods from the earlier assessable values - Penalty
u/s 11AC – self assessment - wilful misstatement and
suppression – HELD – With the new cost of production it was found that there
has been a short levy of Rs. 54,97,281/-. The said amount along with interest
was thereafter paid by the appellant. If we see the conduct of the appellant,
the ingredients of Section 11AC, i.e. wilful
misstatement and suppression of facts are evident inasmuch as if the assessable
value of certain goods are getting reduced from the earlier assessable values,
the appellant should have checked thoroughly the data. Further, when the
Revenue raised the doubt about the value in August 2004, it was the duty of the
appellant to recheck whether there has been any mistake on their part. Even
this was not done. This only points to wilful
misstatement and suppression of facts on the part of the appellant. The fact
that they paid the duty in the month of February, to our mind, is of no
consequence as once the Assistant Director (Costs) came into the picture and
went into the various costing details, the appellant was left with no option.
Under the circumstances, we are of the considered view that the ingredients of
Section 11AC are satisfied and, therefore, the penalty under Section 11AC is leviable – Plea of revenue neutrality - The question
whether there is any suppression of facts or wilful
misstatement is an issue to be decided in the facts and circumstances of each
and every case and there cannot be any generalization about the concept of
revenue neutrality – Since the assessee has removed the goods without correct
determination of value and hence the duty and, therefore, penalty imposed is in
order – Assessee appeal dismissed
2015-VIL-402-CESTAT-DEL-CE
CCE, CHANDIGARH Vs M/s DABUR INDIA LTD AND VICE-VERSA
Central Excise –
Classification – Manufacture of ‘Hajmola Imli’ – Whether the process which converts raw Tamarind to
the Tamarind Concentrate or Paste will amount to manufacture - classification
of Tamarind Paste/Concentrate – Revenue seeks classification under Chapter 13
instead of Chapter 20 - HELD - the process undertaken to produce tamarind
concentrate/paste does not produce any chemical change and the product at the
starting point and at the end of the remains the same, but for formation of
pulp and removal of added water/moisture. Hence, we find that in the production
of tamarind paste/concentrate no process amounting to manufacture is involved –
In the process undertaken by assessee there is no extraction of any material
and certainly not from any vegetable source - The process involved and the
product produced cannot be covered under heading 1302, when examined alongwith Explanatory notes there is no extraction - the
impugned product is correctly classifiable under Chapter 20 rather than Chapter
13 – Revenue appeal dismissed
2015-VIL-403-CESTAT-DEL-ST
M/s TARACHAND CHAUDHARY Vs CCE, JAIPUR
Service Tax - Contract for
management and maintenance of parks and road side plantation and maintenance –
Demand under management, maintenance or repair – HELD - The Commissioner
(Appeals) clearly noted that with effect from 1.5.2006 the change in definition
of ‘management, maintenance or repair’ brought ‘maintenance or repair of
properties whether immovable or not’ within the scope of ‘management,
maintenance or repair service’ and accordingly confirmed the impugned demand
for the period with effect from 1.5.2006. While there can hardly be any doubt
that ‘roads, airports, railway, building, parks, electrical installation and
the like’ are clearly immovable properties and therefore management maintenance
or repair of such properties is clearly liable to service tax, even if it is
contended, as indeed has been done by the appellant, that maintenance of trees,
grass etc. cannot be called in the category of maintenance of immovable
property, the impugned demand would be sustainable even in the wake of such
contention as maintenance or repair of even non-immovable properties was
brought under the scope of management, maintenance or repair service with
effect from 1.5.2006 – The impugned service is liable to service tax under
management, maintenance or repair service and the appellant is guilty of
suppression of facts - Matter remanded to the Commissioner (Appeals) with the
direction that the impugned service tax liability may be recomputed after
extending the benefit of Notification No. 12/2003-ST in respect of supply of
goods (like trees/shrubs/climbers etc.) provided the conditions of the said
Notification No. 12/2003-ST are satisfied – Assessee appeal dismissed
bihNotiSO189
Bihar Value Added Tax (Amendment) Rules, 2015 -
Amendment in Rule 19, 41, Insertion of new Rule 24A, Substitution of Form
RT-I, RT-III, RT-V & Inserstion
of new Form RT-IIIA
upNoti749
Uttar Pradesh: Compulsory online return filling upto 25 lakh turnover [in Hindi]
harOrder050815
Haryana: Implementation of electronic governance, for
the purposes of registration and furnishing of returns
wbNoti1323
West Bengal: Ammendment in
West Bengal Sales Tax (Settlement of Dispute Act, 1999
wbNoti1324
West Bengal: Amendment in Department Notification No.
483-F.T. dated 31/03/2010
karNotiFD71
Karnataka: Exemption to Solar PV Panels and Solar
Inverters
karNotiFD69I & karNotiFD69II
Karnataka: Exemption to Bank Note Paper Mill India
Private Limited Bengaluru on the sale of Bank Note
paper and other Security paper
delCir17
Delhi: Extension in date for Filing of online return
for 1st quarter of 2015-16
6th of Aug
2015-VIL-314-AP
THE STATE OF ANDHRA PRADESH Vs M/s THE INDIAN HUME
PIPE CO. LTD
Andhra Pradesh General Sales
Tax Act – CST Act – Works Contract - Assessment Year 1993-94 - Assessee had
entered into an agreement dated for supply, erect and commission stressed
concrete pipes – Inter-state transport of goods - The assessee claimed the said
transaction to be the one falling under the CST Act, as, pursuant to the
agreement, the goods have moved from Karnataka to Andhra Pradesh. Whereas, the
Commercial Tax Officer treated the transaction as branch transfer intra-State
Sale – HELD - Consequent to the Constitutional amendment, levy of Sales Tax on
the Works Contract came to be introduced in Andhra Pradesh with effect from
01.07.1985. However, the definition of Sale in Section 2(g) of the CST Act was
amended only with effect from 13.05.2002, by virtue of the amendment brought in
the Finance Act 20/2002. In the present case, the Tribunal had examined the
facts that the dealer has entered into an agreement with TWBC, Yelahanka for the work entrusted to do and the goods were
moved from Yelahanka to Nellore, and thereby the
Works Contract came to be executed. The Tribunal found no supporting material
which would advance the case of the Revenue that there was a stock transfer
from the dealers Branch at Yelahanka to their office
at Nellore. There was also no Form F filed by the dealer and it was never their
contention that there was a stock transfer - In the light of the statutory
provision bringing the execution of Works Contract, in CST only from
15.05.2002, the submission made on behalf of the dealer that no tax was liable
to be paid, even in the State of Karnataka under the CST Act, is unassailable.
The Tribunal, on appreciation of the facts, had come to a positive conclusion
that the goods have moved consequent to the agreement for the execution of
Works Contract and thus satisfying all the conditions of a transaction under
the CST Act. In other words, as a matter of fact, the Tribunal found the
transaction is the one which is required to be assessed under the CST Act and
not under the APGST Act – Revenue appeal dismissed
2015-VIL-81-SC
STATE OF GUJARAT Vs ONGC LTD
Supreme
Court dismissed the Gujarat government’s appeal against the Gujarat High Court
December 2014 order holding that ONGC can recover VAT only on subsidised rates and not on the actual realisation
rates of petroleum products sold by ONGC
2015-VIL-79-SC-CE
COMMISSIONER OF CENTRAL
EXCISE, INDORE Vs M/s DHAR CEMENT LTD & ORS.
Central Excise - Benefit of Notification No.24/91-CE –
SCN on the ground that the annual capacity of the cement plant is more than
1,98,000 tonnes per annum, therefore, assessee are
not entitled of the concessional rate of duty – Whether the respondent, an
industrial unit, is having a plant with installed capacity of less than
1,98,000 tonnes per annum for manufacturing ordinary
Portland Cement to enable it to get the benefit of Notification No. 24/91-CE
dated 25.07.1991 and Notification No. 5/93 dated 28.02.1993 – HELD - The
appellant pointed out that the Directorate of Industries had conceded that it
had no wherewithal to ascertain the installed capacity and it simply went by
the report of SISI. On the other hand, the Revenue is also relying upon
plethora of material on the basis of which it is argued that the installed
capacity is much more than 1,98,000 tonnes per annum.
Some of the material produced is that of respondent itself and it is argued
that the respondent had accepted that its installed capacity was more than
1,98,000 tonnes per annum - The CESTAT should have
considered the material placed by the Revenue and only then come to a
conclusion as to whether the certificate issued by Commissioner of Industries
should be acted upon or not - The matter be remanded back so that the material
on which the Revenue relied upon is also discussed and then a finding be
arrived at to this effect. The impugned order is set aside and the matter is
remanded back to the Tribunal for fresh consideration
2015-VIL-404-CESTAT-AHM-CE
M/s TIPCO INDUSTRIES LIMITED Vs COMMISSIONER OF
CENTRAL EXCISE & S.T., VAPI
Central Excise –
Admissibility of cenvat credit with respect to
rejected returned goods - Show cause notice that appellant did not maintain any
records/ registers for rejected and returned goods as provided under Rule 16 of
Central Excise Rules, 2002 – Whether conversion of granules again into PP
Granules by adding certain additives amounts to manufacture or not - HELD -
There is no evidence on record that no process was carried out on the rejected
goods received by the appellant whereas, the appellant has produced documentary
evidence to show that certain process were done which amounts to manufacture
and cleared on payment of duty - CBEC vide Circular No. 15/88-CX.3 dated
10.08.1988 also clarified that conversion of LDPE / HDPE moulding
powder (granules) into moulding powder (powdered
form) would amount to manufacture as per Note 6 of Chapter 39 of the CET Act,
1985 - In view of the factual position and the detailed accounts maintained by
the appellant, it is held that CENVAT credit on rejected and returned goods was
correctly availed by the appellant – Assessee appeal allowed
2015-VIL-80-SC-ST
UNION OF INDIA AND ORS. Vs M/s KARVY STOCK
BROKING LTD
Service Tax – 'Business auxiliary services provided by
a commission agent - Validity of circular dated
05.11.2003 – HELD - This circular has been set aside by the High
Court in the impugned judgment on the ground that it amounts to foreclosing
discretion or judgment that may be exercised by the quasi judicial authority
while deciding a particular lis under particular
circumstances. The High Court referred to the proviso to Section 37B of the
CEA, 1944, which categorically states that such kind of circulars cannot be
issued - Revenue appeal dismissed
2015-VIL-405-CESTAT-AHM-ST
COMMISSIONER, CENTRAL EXCISE & SERVICE TAX,
SURAT-II Vs M/s KANORIA CHEMICALS & INDUSTRIES LTD
Service tax - CENVAT Credit on Effluent Treatment
Plant services - Revenue contention that the services of pollution control are
availed by the Respondent beyond the place of removal – HELD - It is observed
from the permissions granted by Gujarat Pollution Control Board under The Water
(Prevention And Control of Pollution) Act, 1974, that Appellant was required to
maintain certain standards of effluent from Appellant’s factory as a mandatory
and statutory necessity. When the activity is required to be done mandatorily
under a statutory obligation, then it cannot be said that the same is not in
relation to the manufacture of finished goods in Appellant’s factory -
Treatment of effluent from a factory has to be considered as essential and
integral part of the process of manufacture – Revenue appeal dismissed
harOrder1666
Haryana: Extension in the period for filing online
quarterly returns for the quarter ending 30.6.2015
rajOrder0508
Rajasthan: Notice to registered dealers who have
failed to update their PAN data correctly and/or have failed to furnish due
returns for the year 2014-15
dnhCir1215
Dadra and Nagar Haveli: Grant of registration
certificate within one day in respect of non-sensitive goods
Guest Column
Comparison Of Gst Bill 2014 And Recommemndations
Of Select Committee Of Rajya Sabha,
2015
7th of Aug
2015-VIL-316-AP
M/s DINAKAR PROCESS Vs COMMISSIONER OF COMMERCIAL
TAXES, ANDHRA PRADESH
Andhra Pradesh General Sales
Tax Act, 1957 – Works Contract - Whether printing and supply of cine-wall
posters is in the nature of works contract and, if so, could it be subjected to
tax as deemed sale of goods under the APGST Act, 1957 and the Central Sales Tax
Act, 1956 - Law as it stood for the years prior to 31.03.1995 - clause (29-A)
of Article 366 of the Constitution - Entry 54 of the State List – HELD - While
the subject transactions, undoubtedly, constitute a works contract as it is a
composite contract of sale of goods and of labour and
services, it is not all types of works contracts which could be subjected to
tax under the APGST Act prior to 01.04.1995. By the use of the word means in
the definition of works contract, under Section 2(t) of the APGST Act as it
stood prior to 01.04.1995, the legislature intended to subject only such works
contracts to tax under the APGST Act as were specified in Section 2(t) of the
Act - The latter part of the definition of "works contract", as
referred to in Section 2(t) of the APGST Act prior to 01.04.1995, dealt with
movable property. The words used therein were "fitting out, improvement or
repair of any movable property". In order to bring any activity within the
term "works contract', the activity was required to fall within the ambit
of any of these terms which were not defined or explained in the Act - The
activity of manufacturing, printing and supply of cine wall-posters cannot be
considered as failing under the terms fitting out, improvement or repair, as
the supply of cine wall-posters is not a supply of goods which are fit and
necessary; and there is no improvement or repair of the cine wall-posters
printed and supplied by the appellants - Consequently these transactions did
not constitute the specified works contracts referred to in Section 2(t), and
were therefore not exigible to tax under the APGST
Act during the relevant assessment years prior to 31.03.1995 - It is only after
13.05.2002 were works contracts included within the definition of sale under
the CST Act. As the assessment years, to which these appeals relate, are long
prior thereto, the subject transactions were not liable to tax either under the
APGST Act or the CST Act – Assessee appeal allowed
2015-VIL-315-RAJ
M/s RONAK DISTRIBUTORS (P) LTD Vs COMMERCIAL TAXES
OFFICER
Rajasthan Value Added Tax
Act, 2003 - Section 2(23), 2(38), 65 – Security deposit - supply of dish
antenna and digital decoders – lease, or a sale transaction - evasion of tax -
imposition of penalty on assessee - Revenue proceeded on the premise that the
said transaction falls within the ambit of sale whereas petitioner-assessee has
asserted that it is only a lease and dish antenna and digital decoders are
being supplied to the respective dealers after taking security deposit which is
refundable – HELD - None of the authorities have made any endeavor to find out
truth about the transaction - petitioner-assessee has received dish antenna,
digital decoder and other accessories from Essel Agro
on payment of advance security deposit and there is an agreement between Essel Agro and the petitioner-assessee. The goods in
question were supplied to the assessee with a clear stipulation "not for
sale". In these circumstances, whether the petitioner-assessee has
violated the terms of agreement, which it has entered into with the Essel Agro, and has made an attempt, to sell dish antenna,
digital decoder and other goods to the respective dealers is a contentious
issue. Although the first appellate authority has made an attempt to ascertain
the true nature of the transaction, but, the approach of the first appellate
authority in this regard is also not convincing - the second appellate
authority has acted all the more casually in reversing the findings and
conclusions of the first appellate authority on this vital issue so as to
restore the original assessment order – The first question of law deserves an
answer favourable to the assessee - the entire matter
requires re-examination by the original assessing authority, which has
initiated the assessment proceedings pursuant to investigation - the second
question is also answered in favour of assessee and
against the Revenue, and the impugned order to the extent it has reversed the
finding of the first appellate authority on the question of violation of
principles of natural justice cannot be sustained - first two issues favouring the assessee, the question of tax liability of
the petitioner is still fluid, inasmuch as, the dish antenna and digital
decoders which it has supplied to the respective dealers is sale transaction or
a lease is yet to be determined, obviously, it is not possible to infer mens-rea of assessee in evading the tax - As such, at this juncture,
imposition of penalty is out of question - Petition is allowed and the impugned
orders passed by the learned Tax Board and Assessing authority are quashed and
set aside
2015-VIL-82-SC-CE
M/s TATA CHEMICALS LTD Vs COLLECTOR OF CENTRAL EXCISE,
AHMEDABAD
Central Excise – Section 4 -
Valuation – Goods return – Credit Notes - Cost of returnable gunny bags used
for packing the excisable goods - whether the price of the gunny bags should be
included in the assessable value of the soda ash for the purpose of levy of
excise under the Act - Whether there was an agreement to return the packing
material – HELD - Difference of opinion - Per Justice Dipak
Misra: the irresistible conclusion that the letters spell
out an arrangement between the assessee and the buyers. The tribunal has not
accepted the stand of the appellant on the ground that it is not an arrangement
and on that basis has remanded the matter to the adjudicating authority for
computation of the actual amount of duty payable by the appellant. Once I
accept that it has the nature and character of an arrangement, then the authority is required to ascertain from the record
whether the buyers continued to have a choice to return the packing material for
reuse. I need not indicate the method of verification of the existence of the
arrangement for the period in question. Once the existence arrangement and
choice to return the packing material for reuse are established for the period
in question, the packing cost would not be included. If the assessee succeeds
in establishing the choice mentioned in the documents which I have accepted to
be an arrangement, and is prevalent during the relevant period i.e. 1981 to
1985, the appellant shall be given the benefit - appeals are allowed and matter
remanded - Per Justice Gopala Gowda:
the appellant has failed to establish any arrangement between itself and the
buyers regarding the returnability of the used gunny
bags - The tribunal has rightly rejected the claim of the appellant so far as
the exclusion of the cost of packing material with the value of soda ash is
concerned and hence, it is liable to pay the tax liability for the same in the
light of the findings and observations made in this judgment. The appeals are
dismissed - Difference of opinion
2015-VIL-83-SC-CE
M/s JAYASWAL NECO LTD Vs COMMISSIONER OF CENTRAL
EXCISE, RAIPUR
Central Excise – Modvat
Scheme - Rule 173G (1)(e) - Delay in fortnightly payment of excise duty –
Payment by debit from Modvat Account is permissible -
Whether it was not permissible for the appellant to utilize the Cenvat Credit
during the aforesaid period of two months when facility for payment of duty
fortnightly under Rule 173G was suspended. To put it otherwise, when the duty
during this period was to be paid on consignment basis, it was also incumbent
to pay the same in cash only and utilisation of Cenvat Credit was also
forfeited during this period – HELD – In sub-para (b)
of Rule 173G, a duty has been cast on the manufacturer to maintain an account
current with the Commissioner for the purpose of discharging his duty liability
by debiting such account current. This sub-rule also provides that duty can be
discharged by utilising Cenvat Credit in the manner mentioned in the said sub-rule.
Thus, insofar as mode of payment is concerned, it can be through account
current or by utilising Cenvat Credit. Both the methods are permissible. The
mode of payment of duty through Cenvat Credit is as good as making payment
through account current - There is no estoppel
against law. Merely because the appellant had yielded to the demand of the
Revenue to pay that portion of duty also in cash, would not mean that the
appellant was precluded from taking a stand that such mode of payment through
Cenvat Credit Account even during the period when facility of payment of duty
by instalments had been withdrawn for two months, was permissible. It had taken
a specific defence in this behalf and, therefore, the Tribunal was required to
examine the matter in the light of the aforesaid Rule – Assessee appeal allowed
2015-VIL-84-SC-CE
COMMISSIONER OF CENTRAL EXCISE, HYDERABAD Vs M/s
SARVOTHAM CARE LTD
Central Excise – Classification of Shampoo - Shampoo
or Medicaments - Assessee is the manufacture of 'Ketoconazole
Shampoo' and 'Nizral Shampoo' - Dispute regarding
classification - The respondent had filed the declaration classifying the said
product under CSH 3003.10 of the Central Excise Tariff Act, 1985 on the ground
that it is basically a medicine. However, as per the appellant/Revenue, the
appropriate classification of this product is under CSH 3305.99 as it perceives
the product as 'preparation for use on hair' – HELD - The product known as 'Nizral Shampoo' gives the nomenclature of the product as
shampoo. However, the assessee claims that it is a patent or proprietary
medicament as its essential characteristics is therapeutic in nature. The
use is suggested only on the advice of a Doctor and there is a suggestion that
Doctor should be consulted for any further information. The respondent has also
provided the literature/material showing that dandruff is a disorder which
affects the hairy scalp. It is suggested that it should be used once a week and
on other days, normal shampoos may be used which clearly shows that 'Nizral Shampoo' is to be used like a medicine, unlike other
normal Shampoos - in order to show that the product was used only as a
medicament for curing dandruff and not for using the same for the purpose of
cleaning hair, the assessee filed affidavits of various Doctors - Revenue
appeal dismissed with cost
2015-VIL-408-CESTAT-DEL-CE
M/s BONY POLYMERS (P) LTD Vs CCE, DELHI-III
Central Excise – EOU unit –
DTA Clearance - benefit of concessional rate under Notification No. 23/2003-CE
- rate of duty applicable on the goods cleared into DTA against advance DTA
sole permission - exemption notifications – HELD – Since, the exemption
Notification No. 23/2003-CE in terms of its condition, provides concessional
rate of duty only to the goods cleared into domestic tariff area in accordance
with sub-para (a), (d), (e) or (g) of para 6.8 of the Foreign Trade Policy 2004-2009 and since it
does not cover the goods cleared into DTA against advance DTA sale permission
given under sub-para (k) of para
6.8 of the Foreign Trade Policy, it is very clear that the goods sold into DTA
against advance DTA sales permission granted under para
6.8 (k) are not covered by this notification – Similarly, from the Condition
(II) (b) of the notification, according to which the total value of the goods
cleared into DTA under sub-para (a), (d), (e) and (g)
of para 6.8 does not exceed 50% of the FOB value of
exports made during the financial year. In the case of advance DTA clearances,
this condition cannot be satisfied as the advance DTA clearances are adjusted
against the future DTA entitlements - The letter from Development Comm.
permitting advance DTA clearances by the appellant is also mis-leading
as while it refers to the permission being granted in terms of para (g) of Appendix 14-1H of Handbook of Procedures, which
pertains to advance DTA clearances, it does not mention para
6.8 (k) of the FTP, which is the parent provision under which the advance DTA
clearances can be given - Further, the appellant has claimed duty concession by
claiming the benefit of notification no.23/2003-CE and as per the arguments
advanced by the appellant, the conditions which are required to be fulfilled by
the assessee, who claimed the benefit of this notification, are not applicable
to the appellant. As the Condition No.II of the said
notification could not be fulfilled by the appellant it is not entitled to
claim the benefit of the notification. Consequently, the appellant is liable to
pay duty. Therefore, the appellant have no case on merits - extended period of
limitation invokable – Assessee appeal dismissed
2015-VIL-407-CESTAT-MUM-ST
MISTAIR HEALTH & HYGIENE PVT LTD Vs COMMISSIONER
OF CENTRAL EXCISE, PUNE-II
Service Tax - Business
Auxiliary Service – Job work - Whether manufacturing of medicines containing
alcohol is not amounting to manufacture and liable for service tax under
business auxiliary services - Manufacture of product containing alcohol - HELD
- It is a case of the revenue that the exemption granted from payment of
service tax under business auxiliary services can be claimed only if the
assessee is manufacturing excisable goods. The interpretation given by the
lower authorities is totally incorrect - Firstly, the basic thrust of the
revenue that the activity of manufacturing is not there, is in itself on wrong
footing inasmuch that the medicines manufactured by the appellants are as per
the provisions of Drugs and Cosmetic Act and the Rules made thereunder;
if that be so it cannot be held that there was no manufacture of excisable
goods. Secondly, the products manufactured by the appellant are chargeable to
Excise duty which can be levied by the state as per list to the 7th schedule
under article 246 of the constitution of India; entry is listed is at serial
number 50 of list 2 - The impugned order is set aside and appeal is allowed
2015-VIL-406-CESTAT-MUM-ST
COMMISSIONER OF CENTRAL EXCISE, NASHIK Vs RAYMOND LTD
Service Tax - Refund
subsequent to Tribunal order – Denial of refund on the ground that assessee
having debited the P&L account as expenditure, must have passed on the
incidence of duty and held that respondent has failed the hurdle of unjust
enrichment – HELD - If the revenue authorities were not inclined to
accept the chartered account are content certificate, they should have adduced some
evidence that the incidence of duty has been passed on nor any further
clarification was sought from respondent or their CA. Feeble attempt is made in
the grounds of appeal to state that it is not clear as what records were
checked by the chartered accountant - Chartered accountant is an expert and he
has verified the records and then came to a conclusion that incidence of tax is
not passed on - incidence of duty has not been passed on to the customers –
Assessee is entitled to the refund – Revenue appeal dismissed
mpAct5of2015
Madhya Pradesh Vat
(Amendment) Act, 2015 - Amendment in Section 4-A, 10, 14, 16-A, 18 & 29
assamCir11
Assam: Collection of PAN,
mobile number and e-mail id of dealers as part of preparedness for GST
migration
10th of Aug
2015-VIL-318-DEL
SONY INDIA PVT LTD Vs THE COMMISSIONER OF TRADE &
TAXES
Delhi Value Added Tax Act – Information Technology
Product - Classification of Digital Still Image Video camera – Third Schedule
or Residual entry - Period of dispute 1st April 2005 to 7th August 2005 &
30th November 2005 to 31st December 2007 - Deemed determination – HELD - The
Court is of the view that the correct way to read Article 15 in Entry 41A of
the Third Schedule to the DVAT Act is to read it without the two brackets and
to read it in a manner that the item ‘digital still image video cameras’ is not
excluded from the ambit of Entry 15 - The interpretation suggested by the
Revenue would have the anomalous result of totally excluding the said item from
the entry and that clearly was not the intended result - For the period 1st
April 2005 to 7th August 2005, the Appellant cannot take advantage of Section
86 of the DVAT Act as there is no deemed determination by the Commissioner
accepting the proposed determination of the Appellant in terms of Section 84
(5) read with Section 84(6) of the DVAT Act - For the period between 1st April
2005 to 7th August 2005, DSCs cannot be said to fall within the ambit of IT
products under Entry 41 to Schedule III to the DVAT Act - While the Appellant
would be required to pay interest on the differential amount of tax, it is not
liable to pay any penalty in terms of Section 86 (12) of the DVAT Act for the
period 1st April 2005 to 7th August 2005 - For the period 30th November 2005 to
31st December 2007, in terms of Clause 15 of Entry 41A in the Schedule of DVAT
Act, the DSCs would be eligible for 4% VAT and not 12.5% VAT. In other words,
the Appellant is not required to pay any further tax on the sales turnover of
DSCs beyond 4% already paid by it - The demand of the differential tax,
interest and penalty as levied by the VATO and affirmed by the OHA and the AT
for the period 30th November 2005 to 31st December 2007 is set aside – Assessee
appeal partly allowed
2015-VIL-319-ALH
M/s SUNNY PACKAGERS PRIVATE
LIMITED Vs STATE OF U.P.
U.P. Trade Tax Act - Exemption from trade tax is
granted under Section 4-A of the Act - Whether the Commissioner of Trade Tax
has the power and jurisdiction to amend the eligibility certificate, which was
granted by the District Level Committee under Section 4-A(3) of the Act – HELD
– The section 10(2) of the Act provides that where any person is aggrieved by
an order granting or refusing to grant a eligibility certificate under Section
4A could file an appeal under Section 10(2) of the Act before the Tribunal.
This provision clearly indicates that an assessee, if aggrieved by the grant of
an eligibility certificate could file an appeal and that the Tribunal was
competent to modify the eligibility certificate, namely, that if the
eligibility certificate contained some errors, the same could be rectified in
an appeal by the Tribunal. If the Tribunal was competent to amend the
eligibility certificate, there is no reason why clerical and arithmetical
errors, which are apparent on the face of the record for which no debate exists
could not be corrected by the Commissioner under Section 4-A(3) of the Act.
Commissioner committed a manifest error in holding that it has no power to
amend the eligibility certificate under Section 4-A(3) - Commissioner has the
limited power to correct clerical or arithmetical errors, which are apparent on
the record – Assessee appeal allowed
2015-VIL-320-MAD-CE
M/s ADANI ENTERPRISES LTD Vs UNION OF INDIA
Central Excise – Suppression
of production to claim excess rebate - non-supply of relied upon documents by
department - case on the basis of documents recovered from the job worker of
the appellant – violation of principles of natural justice – doctrine of ‘audi alteram partem’
- HELD - The petitioner is right in asking for the documents for perusal before
giving any reply and that none of the letters sent by the petitioner were not
replied by the respondent nor furnished the documents, which amount to
violation of principles of natural justice - The petitioner has been denying
its involvement and repeatedly seeking for production of the documents by
sending to its unit at Ahemedabad. If at all there is
no provision to send documents or if there are voluminous documents, as such
the respondent ought to have replied to the petitioner so that the petitioner
could have made arrangements or atleast he would have
intimated that there is no necessity to provide any of copies of the documents
and call for explanation - it is not fair and appropriate for the appellate authority
to dissect from its own earlier order and come to contrary conclusion, that too
at first stage, giving relief to the aggrieved party and at later stage, taking
away such relief and if it is allowed – As it would certainly lead to travesty
of justice as it amounts to violation of principles of natural justice - The
respondent is directed to provide an opportunity to the petitioner to peruse
all the documents and permit to take copies of such documents if requested by
the petitioner – Impugned order is set aside - The writ petitions are allowed
2015-VIL-410-CESTAT-AHM-CE
M/s GUJARAT STATE FERTILIZERS & CHEMICALS LTD Vs
COMMISSIONER, CENTRAL EXCISE & SERVICE TAX, VADODARA-I
Central Excise - Demand of
interest on differential duty paid – Supply made to sister concern - ‘relevant
date’ under Section 11A of the CEA Act, 1944 – Limitation - HELD - Argument of
the Appellant that period of one year should be calculated from the date of
clearances is not correct because no return of payment of interest is required
to be filed by Appellant as per Explanation-1(b)(i) & (ii) of Section 11A of the CEA, 1944. The
‘relevant date’ for demanding interest will have to be ‘mutatis mutandis’, one
year from the date of payment of interest made under Section 11A of the Act,
because on the date of payment of duty only the exact amount of interest, from
the date of clearances to the date of payment of differential duty, can be
calculated for the purpose of issuing a quantified demand on account of
interest. The demand for interest was thus issued within a period of one year -
When supplies are made to the sister concerns then demand cannot be upheld on
Revenue Neutrality which means both differential duty and interest cannot be
demanded – Assessee appeal allowed
2015-VIL-412-CESTAT-MUM-ST
VIDARBHA IRON & STEEL CO. LTD. Vs COMMISSIONER OF
CENTRAL EXCISE, NAGPUR
Service Tax - Manpower recruitment and supply agency
service – Slump sale - Compromise scheme wherein the factory along with the
machinery of the appellant was to be given under leave and licence to Ferro
Alloys Corporation Ltd. (FACOR) - Service tax liability on an amount received
for the salary of employees from FACOR – Demand along with interest and
penalties - reimbursement of salaries and other dues of the employees - Whether
the amounts received by the appellant towards salary and other government dues
are liable to service tax or otherwise under the category of ‘manpower
recruitment and supply agency’ service – HELD – Clause of the leave and licence
agreement specifically states that the employees will be on the muster roll of
the appellant and salaries to be paid by the appellant on receipt from FACOR.
It is undisputed that the appellant had received only the actual dues towards
the employees. Secondly, the arrangement of continuation of the services of the
employees by FACOR was an arrangement approved by the Hon’ble High Court of the
compromise scheme. Thirdly, there is nothing on record to show that the
appellant functioned as a commercial concern engaged in supply of manpower to
FACOR during the material period - the arrangement of the employees of
appellant continuing the job and getting paid will be akin to the deputation of
personnel to the FACOR - the amounts received by the appellant in this case as
actual salaries cannot be considered as an amount received for rendering of
‘manpower recruitment and supply agency’ services – The impugned order is set
aside and assessee appeal is allowed
2015-VIL-411-CESTAT-CHE-ST
SRI SABAREY ENTERPRISES, SRI VASAVI JEANS & LNGS
PVT LTD Vs COMMISSIONER OF CENTRAL EXCISE, COIMBATORE
Service Tax – Business Auxiliary Service on commission
agent or clearing and forwarding agent service - Demand on the commission
received by the appellants under Clearing & Forwarding Agency Service for
the period September 1999 to March 2004 – HELD - The appellant's principle
activity is not related to clearing & forwarding of goods, as it is clearly
evident from the agreement that the appellant was appointed as Commission Agent
for marketing and sale of goods. Therefore, the demand under C&F service is
not sustainable - Accordingly, the impugned orders are set aside and appeals
are allowed
KerFinAct2015
Kerala Finance Act, 2015
Guest Column
Exemptions under Service tax are optional unlike
Section 5A of the CEA, 1944 - Analysis of Karnataka High Court Order in CCE Vs
Federal Mogul TPR India Ltd
Summary for the month of July - Chronicle list of
updates [Download link]
FCP1008
FROM THE
CORRIDOR OF POWER - Updates from various Union Ministries, PMO & Cabinet
11th of Aug
2015-VIL-321-P&H
M/s AMRIT BANASPATI COMPANY LIMITED Vs THE STATE OF
PUNJAB
Punjab Value Added Tax Act,
2013 – Constitutional validity of amendment to Section 29 of the Act, as
amended vide Punjab Value Added Tax (Second Amendment) Act, 2013 – Validity of
retrospective amendment – Extension in period for assessment – Limitation – HELD
- The proviso permits an additional period for the assessment year 2006-07. The
proviso, does deal with the right to make the assessment for the period 2006-07
till 20.11.2014. It, however, far from negates the right to make an assessment
for any other period. There is no reason why the legislature intended by the
amendment to extend the date for making the assessment only in respect of the
assessment year 2006-07 - Obviously, therefore, the opening part of the section
applied also to the years 2007-08 onwards. Thus the proviso itself establishes
that the opening part of section 29(4) is retrospective – The opening part of
section 29(4) as amended read by itself would suggest that the provision is not
retrospective and is only prospective. The opening part, however, cannot be
read alone. The entire section must be read and so read it is clear beyond
doubt and for more than one reason that the section is retrospective - The
Amendment Act, 2013 introduced several amendments, each of which operated from
a particular date. Amendment to Section 13 of the Act did not stipulate when it
was to comes into effect.
The proviso obviously, therefore, made it retrospective but only from a
particular date. That does not imply that every other provision/amendment
operates only prospectively. Each provision must be examined to determine the
date from which it operates - The contention that the Section applies only
prospectively and in any event applies only in respect of the assessment years
in respect whereof the period of limitation for making the assessment under the
unamended section has not expired, is, therefore,
rejected – Assessee petition dismissed
2015-VIL-322-CAL
SAMBHU PRASAD AGARWAL Vs SENIOR JOINT COMMISSIONER OF
SALES TAX
West Bengal Value Added Tax
Act - Security under WBVAT Rule 195 – Tribunal order directing security of 10Cr
– Issuance of waybill – Recovery of dues - HELD – Department refusal to issue
way bills or putting stringent conditions which would make it impossible for
the writ petitioner to carry on his business would amount to interference with
the fundamental rights guaranteed under the Constitution of India otherwise
than in accordance with law. The State can certainly take steps to recover tax
in accordance with law. But the State cannot deprive the writ petitioner of his
livelihood. Nor can the State exercise its power in a manner which is contrary
to the statute and the rules. The rules insist upon deposit of a reasonable
security. Therefore they could not have asked for any unreasonable security
which prima-facie appears to have been the case - The writ petition is,
therefore, disposed of by directing the writ petitioner to furnish security of
Rs. 85.00 lacs as directed by the learned Tribunal.
Upon such security being furnished the State Authorities shall issue 100 way
bills to the writ petitioner
2015-VIL-415-CESTAT-DEL-CE
C.C.E MEERUT-I Vs M/s BHARAT HEAVY ELECTRICALS LTD
Central Excise – Cenvat
Credit Rules - Benefit of Rule 6(6)(vii) of the CCR, 2004 - Goods supplied to
the mega power plant against the international competitive bidding – Assessee
using common cenvat credit availed inputs/ input
services manufactured dutiable final product as well as exempted final product
– Non-maintenance of separate account - Demand under clause (b) of Rule 6(3) –
Interest & Penalty – Review order by two Chief Commissioners - HELD - When
the goods manufactured into India have been supplied against international
competitive bidding the same would be eligible for full duty exemption under
notification no. 6/06-CE, if the same satisfy the condition prescribed in the
notification that the same goods, if imported into India are fully exempt from
customs duty as well as additional customs duty. In terms of Clause (vii) of Rule
6(6), the provisions of sub rule (1) (2), (3) and (4) are not applicable in
respect of such goods. The Department’s contention that clause (vii) of sub
rule (6) is not applicable to the goods manufactured in India but is applicable
only to the imported goods is absurd, as the clause-(vii) cannot be read in
isolation but has to be read with the main provision of sub rule 6. Moreover
Rule 6 of the cenvat credit Rules is in respect of
the goods manufactured in India and this rule, in general, contains provisions
regarding denial of cenvat credit in respect of
inputs/ input services which have gone into the manufacture of exempted final
products or exempted output services. Sub rule 6 of Rule 6 enumerates the
situations in which the cenvat credit would be available
in respect of inputs/Input services even if the same have been used in or in
relation to manufacture of final product which have been cleared at nil rate of
duty or have been cleared without payment of duty like clearances for export
under bond, supplies 100% EOU/SEZ units etc. There is nothing in this sub rule
from which it can be inferred that clause-(vii) is applicable to the goods
imported into India - The Review order passed by two senior Chief Commissioners
is an absurd order passed with absolutely no application of mind and as such
there is absolutely no merit in this appeal filed by the Revenue. We are amazed
as to how such an absurd order can be passed by such senior officers of the
Department. The Revenue’s appeal is, therefore, dismissed
2015-VIL-413-CESTAT-DEL-CE
M/s ONIDA SAKA LTD & M/s ADONIS (INDIA) LTD Vs
CCE-INDORE
Central Excise – Section
4(4)(c) of CEA, 1994 - Related person – Valuation - Sell of entire production
to group marketing company – HELD - Just because the entire production of goods
of the appellant company was being sold to M/s. AIL who were selling the same
at a higher price or that M/s. AIL were incurring the expenses or marketing and
advertisement of the goods produced by the appellant company, the two cannot be
treated as related persons in the sense that there was mutuality of interest in
the business of each other. Similarly, just because the appellant company along
with two other group companies, had extended loan to M/s. AIL, it cannot be
said that the transactions between the appellant company and M/s. AIL was not
on principal to principal basis - A manufacturer manufacturing certain
goods-can always decide to sell his entire production to another person instead
of marketing the same himself and incurring expenses on marketing and
advertisement himself and for this reason, the manufacturer and his customers
cannot be treated as related persons - As regards the allegation of the
department that the premises rented by M/s. AIL as depots were also being used
by the employees of the appellant company as their branch office - Appellant’s
plea is that the employees of the appellant company were visiting those
premises only for stock taking and as such the premises of M/s. AIL were not
being used permanently as branch office - In any case, just on this ground, it
cannot be said that the appellant company and M/s AIL would acquire mutuality
of interest in the business of each other - Difference of price -
Difference between the price at which the appellant company sells the goods to
M/s. AIL and the price at which M/s. AIL sells the same goods to its dealers is
only about 7% to 8%, which in our view is not abnormal. The department has not
conducted any enquiry into this aspect. From this angle also, we are of the
view that this cannot be said to be the case where the assessable value of the
goods was being artificially depressed by the appellant to reduce their duty
liability - Appellant company and M/s. AIL cannot be treated as related
persons - The impugned order is not sustainable and same is set aside –
Assessee appeals are allowed
2015-VIL-416-CESTAT-MUM-ST
LARSEN & TOUBRO LTD Vs COMMISSIONER OF SERVICE
TAX, MUMBAI II
Service Tax - Refund of tax
wrongly paid on an amount which was collected from sister concern for deputing
manpower under BAS - Whether the amount paid by the appellant as service tax
payable on the amounts received from the sister concern for deputation of
employees is correct or otherwise – Rejection of refund on the ground that the
service rendered by the appellant is correctly covered under the category of
‘Manpower Recruitment and Supply Agency Service’ – HELD – This classification
was not sought to be made by the show-cause notice nor by the adjudicating
authority, secondly, assessee could not have addressed himself the
classification of the services, unless the first appellate authority has issued
a show-cause notice to the appellant to that effect. From the records it
transpires that the first appellate authority has not issued show-cause notice
to the appellant for reclassification of the service to the ‘Manpower
Recruitment or Supply Agency Service’. On this legal issue itself, the impugned
order is liable to be set aside – On merit deputation of employees to their own
sister concern and recovering cost from them, would not amount to rendering of
Manpower Recruitment or Supply Agency Service – Refund claim allowed
2015-VIL-414-CESTAT-MUM-ST
MAHANAGAR GAS LTD Vs COMMISSIONER OF CENTRAL EXCISE, MUMBAI-II
Service tax - Cenvat credit
availed by the appellant for service tax paid on the services rendered for
training of the personnel of service provider – training to personnel who are
the employees of service provider and not of appellant – Limitation - HELD -
even though appellant has paid for the services rendered to training of the
personnel, the said services or not rendered to the appellant directly - if
services are utilised by the service provider Cenvat
credit can be availed by such service provider and not any other assessee -
Appellant as no case on merits – Limitation - the appellant had availed Cenvat
credit on the months of March and April 2009, the said availment
of credit has been informed to Department when they filed monthly returns. Appellant
could have entertained a bona fide belief that having paid for the training of
personnel, they can avail the Cenvat credit of the service tax paid -
Entertaining a bonafide belief of availment
of Cenvat credit of the service tax paid that too, when assessee pays for such
services, is a rational interpretation - show cause notice invoking the
extended period is incorrect and impugned orders confirming the demands on the
grounds of suppression and misstatement are unsustainable and liable to be set
aside - the extended period cannot be invoked - confirmation of demand,
interest and imposing penalties by invoking extended period is unsustainable
and liable to be set aside – Appeal allowed of limitation
wbCir15
West Bengal: Allowing a
deselected dealer for generating e-waybill
delCir18
Delhi: Extension in date for
filing of online return for 1st quarter of 2015-16
Jharkhand: Notification for
extension of JVAT 200 (Q) Return due date [Download link]
12th of Aug
2015-VIL-323-KER
STATE OF KERALA Vs M/s MONIER ROOTING (P) LTD
Kerala Value Added Tax Act –
Classification of glazed roofing tiles – Applicable rate of tax on glazed
roofing tiles – Third Schedule or residual entry - HELD - The process
undertaken by the assessee is to subject kiln burnt roofing tiles to a
mechanical process whereby colour coating is given to
the tiles. After that process also, the product is used as roofing tiles. This
therefore, means that even though the process undertaken by the assessee is a
value addition to the product, even after such value addition, the product
continues to be the same with a more attractive appearance. However, that does
not give the product a commercial identity different from kiln burnt roofing
tiles. If that is so, the rate of tax applicable will be one specified under
Entry 18(1)(c) of the Third Schedule – Revenue
revision dismissed
2015-VIL-417-CESTAT-CHE-CE
M/s ULTRATECH CEMENTS LTD Vs COMMISSIONER OF CENTRAL
EXCISE & SERVICE TAX, TIRUCHIRAPALL
Central Excise - Supply of
cement to SEZ units/developers without payment of duty - Denial of exemption on
clinkers manufactured and captively consumed in the
manufacture of cement – Exemption Notification No.67/95-CE – Denial of
exemption SEZ is not mentioned as category of exception under the proviso to
the notification - Whether clinker manufactured by the appellants used in the
manufacture of cement cleared to SEZ without payment of duty are eligible for
benefit under Notification No.67/95-CE or not - Whether the term FTZ used in
the proviso to the Notification 67/95-CE will include SEZ also – HELD - Cement
cleared to SEZ unit/developers are not exempted goods but cleared without
payment of duty by following the procedures and conditions stipulated in both
SEZ and Rule 19 of CER Rules and the clinkers used captively
for manufacture of cement cleared to SEZ is covered under Notification 67/95
from exemption of excise duty - In view of the Board’s circular, dated
28.04.2015 and as per objectives of the SEZ Act, the goods supplied to SEZ
unit/developer constitute as export and no duty can be levied on the clinker
used in the manufacture of cement as the finished goods are supplied to SEZ
units/developers without payment of duty by following procedures of Rule 19 of
Central Excise Rules and Rule 30 of SEZ Rules - By virtue of the SEZ Act, the
word ‘FTZ’ was omitted and substituted with the word ‘SEZ’. Therefore, the
Revenue’s plea that the goods supplied to SEZ is not covered under clause (i) of the Proviso to the notification is not acceptable -
Appellants are eligible for exemption under Notification 67/95-CE on clinker captively consumed for manufacture of cement cleared to SEZ
units/developers without payment of duty for both the periods prior to and
after the amendment of SEZ Act – Assessee appeals are allowed and revenue
appeals are dismissed
2015-VIL-418-CESTAT-AHM-CE
M/s DHANA SINGH SYNTHETICS PVT LTD Vs COMMISSIONERS OF
CENTRAL EXCISE, CUSTOMS AND SERVICE TAX-VAPI
Central Excise – Demand on
the ground that appellant did not pay the Central Excise duty on the clearance
of fabrics manufactured by them on job work basis - Benefit of Notification No
214/86-CE dtd 25.3.1986 – HELD - Rule 57F(4) of the erstwhile Rule corresponding to Rule
F(4)(5)(a) of the Cenvat Credit Rule 2002, permits the manufacturer to clear
the goods to job worker without payment of duty for processing. There is no
dispute that the job-work materials were used in manufacture of finished goods
by the principal manufacturer, who cleared the goods on payment of duty. Thus,
it is the case of Revenue neutral in so far as the payment of duty by the
job-worker will enable the principal manufacturer to avail cenvat
credit - The order passed by the Adjudicating authority is legal and proper -
Assessee appeal allowed
2015-VIL-323-MAD-ST
TAMIL NADU CHIT FUND COMPANIES ASSOCIATION Vs UNION OF
INDIA
Service tax – Taxability of
Chit Fund companies - validity of the Notification No.27/2008-Service Tax,
dated 27.5.2008 – HELD - When the Statute reckons the power to tax a particular
instance but gives some exclusion, as a result of which tax cannot be realised (insofar as the exclusion stands), the moment when
the exclusion clause is deleted by virtue of an amendment, the barrier is gone
and it very well comes within the taxable net - respondents are justified in
contenting that the amendment of the Statute in the year 2007 by deleting the
word “but does not include cash management” to Section 65(12)(a)(v) has brought
about the tax liability upon the Chitty transactions – Petition dismissed
2015-VIL-419-CESTAT-DEL-ST
M/s NIZAM SINGH CHAUHAN & M/s V.J. TRIVEDI Vs CCE,
BHOPAL
Service Tax - Classification
of service - Railing and transport of Maganese Ore -
Cargo handling service or mining service - Suppression of facts - Limitation –
HELD - As is evident from the tender document for railing and transport of Maganese Ore the service involved wagon loading, truck
loading, transport including stacking and de-stacking/rehandling
of manganese ore. It is also seen that transport activity (excluding stacking)
formed a very small part of the entire service rendered - As the goods were
loaded on to the trucks and wagons they acquired the status of cargo. Therefore
the activity performed by the appellant clearly fell under the category of
cargo handling service as defined in Section 65(23) ibid - Extended period of
limitation – Appellants are not guilty of suppression - Partly in favour of revenue
Guest Article: GST - Transition challenge on Credit,
Carry forward and Claim through declaration
dndCir254
Daman & Diu: Grant of registration in one day for
non-sensitive items
harPN1208
Haryana: Public notice for updation
of PAN
13th of Aug
2015-VIL-324-MP
M/s COMMERCIAL ENGINEERS & BODY BUILDING COMPANY LTD Vs DIVISIONAL
DY. COMMISSIONER, COMMERCIAL TAX OFFICE
Madhya Pradesh Value Added Tax - Section 2(o) - Input
tax credit – Interpretation of Section 14 - Rebate of Input tax - Terms
‘input’, ‘Rebate’, ‘used in relation to the manufacture of the final product’,
‘Intermediate product’ - Denial of rebate of input tax on the ground that the
material purchased from registered dealer was consumed by the assessee in its
plant and machinery – Since the plant and machinery which was created from the
material purchased was not sold, assessee are denied the for benefit of rebate
on input tax – HELD - The intention of the legislature in providing a provision
for grant of rebate of input tax as contained in the VAT Act is akin to the
provisions of MODVAT credit and CENVAT Credit applicable in Excise Law and when
sub-section 2 and 4 of Section 14(1)(a) indicates that the goods purchased by a
registered dealer from another registered dealer is consumed in the
manufacturing or processing of something or used as a plant, machinery,
equipment and parts in respect of goods i.e. the final product is entitled for
input rebate – As per provisions, if inputs or goods purchased are used in
relation to manufacture of final product and even if its use may be as a plant
or machinery or equipments or part thereof, in respect of the goods, specified
as the final product, the benefit of MODVAT, CENVAT or ‘input tax rebate’ can
be claimed. Meaning thereby, it is not necessary that the goods purchased from
the registered dealer which is known as ‘input’ should be used directly for
manufacture of the final product. It is sufficient if the input is used in
respect of or in relation to a plant or machinery or a
equipment which is ultimately used for manufacturing the final product. That in
fact, should be the interpretation of the provisions of the Section -
Petitioner is entitled to the benefit of rebate on input tax under sec. 14 –
Writ petition allowed
Please see file 'Judgement List' for more judgements on VAT, Central
Excise & Service Tax
delNoti650
Delhi Value Added Tax (Amendment) Rules, 2015
chhgNoti56
Chhattisgarh: Regarding Entry Tax exemption to Hexane
Guest Article
Cenvat Credit on Outdoor Catering Services
14th of Aug
2015-VIL-330-KAR
M/s PAHARPUR COOLING TOWERS LTD Vs THE ASSISTANT
COMMISSIONER OF COMMERCIAL TAXES (AUDIT)
Karnataka Value Added Tax Act – Audit Report -
construction, supply, erection and commissioning of cooling towers – Notice
proposing to disallow input tax claim as appellant had not claimed input tax
rebate in Form VAT-100 – Disallowance of labour charges deduction @30% on
entire works contract receipt – HELD – Since Assessing Officer had not applied
his mind judiciously and did not consider the audit report and account books
which had admittedly been filed by the assessee, we allow these appeals as well
as the writ petitions and quash the orders passed by the Assessing Authority
for the relevant assessment periods and remand the matter to the Assessing
Authority for fresh decision, in accordance with law, after considering the
reply of the appellant, the papers and other documents submitted by the
appellant along with the reply, as well as the relevant documents filed with
Form VAT–240 and Form VAT–100
2015-VIL-329-KAR
M/s SHREE SHEELE PVT LTD Vs THE ADDITIONAL
COMMISSIONER OF COMMERCIAL TAXES
Karnataka Sales Tax Act –
Service of revision order – Limitation – HELD - The original record also shows
that the order dated 10.02.2010 was despatched for service on the
appellant-assessee on 15.09.2011, which was served on the assessee on
21.09.2011. In these circumstances, the impugned order dated 10.02.2010, which
refers to the reply of the assessee filed on 08.04.2010, cannot but be an
ante-dated order passed only to circumvent the limitation of four years
provided under Sub-section(4) of Section 22A of the KST Act. Such being the
position, we must deprecate the practice of the Officials in passing such
ante-dated order and serving copies of the order after more than 1½ years of
the date of the order. As such, on this ground alone the order dated 10.02.2010
deserves to be quashed - Accordingly, these appeals stand allowed - Exemplary
costs of Rs.50,000/- imposed on Revenue
2015-VIL-425-CESTAT-DEL-CE
M/s NATIONAL FERTILIZERS LTD Vs CCE, LUDHIANA
Central Excise – Demand of
interest under Section 11AA of the CEA, 1944 pursuant to re-quantification of
duty by remand proceeding – Interest for interim period – HELD – As per the
Section 11AA interest is payable after three months from the date of final
determination of duty payable by the assessee. Admittedly in this case duty has
been paid by the appellant before their actual determination by the
Adjudicating Authority as directed by the Tribunal in remand proceedings.
Therefore, relying on the decision of Aeon’s Construction Products Ltd. Vs.
CCE, Chennai 2007-VIL-09-CESTAT-CHE-CE, appellant are not required to pay interest
for the intervening period from the date of initial assessment of duty till the
re-quantification of the duty in the remand proceedings - Impugned order set
aside and assessee appeal allowed
2015-VIL-426-CESTAT-MUM-ST
MEGA ENTERPRISES Vs COMMISSIONER OF CENTRAL EXCISE
& CUSTOMS, NASHIK
Service Tax – Demand under
Banking and other Financial Services – Appellant collecting octroi
and transit fees and paying an amount to the Municipal Corporations as per
contract entered - amount in excess of contract amount retained by appellant
and in respect of transit fees, appellant receives 3% of the amount as
consideration – Cash Management – HELD - In order to get covered under the
banking and financial services, an assessee has to be either a banking company
or financial institution or a non-banking company or any other commercial
concern rendering the various services as enshrined in the definition of
banking and other financial services - The services rendered by the appellant,
if any, will not fall under any category as indicated in the definition of
banking and other financial service; it is the case of the Revenue that the
activity of the appellant would fall under the category of cash management. We
do not agree with the findings recorded by the lower authority inasmuch as the
word 'Cash Management' is not only collection and deposit of cash - ppellant is not a financial institution so as to be held
liable to tax under the category of Banking & Other financial services -
Assessee appeal allowed and Revenue appeals rejected
kerCir22
Kerala: Exemption to Special
Economic Zone unit – Works undertaken by sub contractors
Guest Article
Mandatory pre-deposit for
filing appeals under Excise, Service Tax & Customs - Dilemma Continues
Uttarakhand Notification
No.675/2015/14(120)/XXVII(8)/06 -
Regarding Samadhan Yojana
for Civil & Eclectric Contractor [in Hindi |
Download link - File size: 1Mb]
mahaCir12T
Maharashtra: The Computerized Desk Audit (CDA) for the
period 2012-13
goaOrder2147
Goa: Order regarding The Goa Value Added Tax Act
Deferment-Cum-Net Present Value Compulsory Payment Scheme, 2005
rajCir11
Rajasthan: Regarding cancellation of registration of the
dealers who have failed to correctly update their PAN data and failed to file
the due returns for the year 2014-15
17th of Aug
2015-VIL-427-CESTAT-DEL-ST-LB
STANDARD CHARTERED BANK, IDBI BANK, AMERICAN EXPRESS
BANK LTD, SBI CARDS & PAYMENTS SERVICES PVT LTD Vs CST, MUMBAI-I
Service Tax – Larger Bench -
Whether services provided by a banking company, a financial institution, a
non-banking financial company or any other body corporate or a commercial
concern, towards settlement of payments to an acquiring bank and a merchant
establishment (ME), in relation to sale transactions at such establishment also
constitute credit card services, in ‘Banking and Other Financial Services’
(BOFS), a taxable service - The period dispute 16-07-2001 to 30-04-2006,
during which credit card services was enumerated within Banking and other
Financial services, a taxable service introduced w.e.f
16-07-2001 by the Finance Act, 2001 – Whether Services provided by an issuing
bank to an acquiring bank and by an acquiring bank to ME amount to credit card
services under BOFS and consequently whether interchange fee and ME discount
earned by these banks amount to consideration received for rendition of credit
card service – HELD – In the context of credit card services in BOFS, as the
taxable service is defined and enumerated, acquiring bank and the ME could be
considered to be a customer of the issuing bank and an acquiring bank,
respectively - The paragraph 2.2 of the Board circular dated 09.07.2001
accurately captures the scope of credit card services under BOFS during the
period 16.07.2001 to 30.04.2006 i.e. as meaning a service where the customer is
provided credit facility for purchase of goods and services; whereby cash
advances are also permitted upto specified limits;
where for rendition of the service, the service provider collects joining fee,
additional card fee, annual fee etc; and all these charges, including interest
charges for the service rendered, form part of the value of the taxable
service, in BOFS - Introduction of a comprehensive definition of “credit
card, debit card, charge card or other payment service” in Section 65(33a) read
with Section 65(105) (zzzw), by the Finance Act, 2006
is a substantive legislative exertion which enacts levy on the several
transactions enumerated in sub-clauses (i) to (vii)
specified in the definition set out in Section 65(33a); and all these
transactions are neither impliedly covered nor inherently subsumed within the
purview of credit card services defined in Section 65(10) or (12) as part of
the BOFS - Sub-clause (iii) in Section 65(33a) is neither intended nor
expressed to have a retroactive reach i.e. w.e.f.
16.07.2001. Services enumerated in these sub-clauses are not implicit in the
scope of credit card services - Merchant/ Merchant Establishment is “a
customer” in the context of credit card services enumerated in Section 65(72)(zm), subsequently Section 65(105)(zm)
and a fortiori an acquiring bank is “a customer” of an issuing bank - ME
discount, by whatever name called, representing amounts retained by an
acquiring bank from out of amounts recovered by such bank for settlement of
payments to the ME does not amount to consideration received “in relation to”
credit card services - The analyses and conclusions in ABN Amro Bank are incorrect and this ruling is accordingly
overruled
2015-VIL-331-P&H
HARYANA VANASPATI & GENERAL MILL Vs THE STATE OF
HARYANA AND ANOTHER
Haryana General Sales Tax
Act, 1973 – Sections 25(5), 39(5) and 43 - interest on refund - Whether the
petitioner is entitled to interest from the dates on which the petitioner paid
the amounts to the respondents as a condition precedent to the maintainability
of the appeal – HELD - Interest is payable from the date of the deposit -
Respondents to pay interest at 12% per annum on the amounts deposited from the
dates on which the deposits were made till payment – Assessee petition allowed
2015-VIL-428-CESTAT-AHM-CE
M/s AGRO PACK Vs COMMISSIONER OF CENTRAL EXCISE,
CUSTOMS & SERVICE TAX - SURAT-II
Central Excise - Rejection
of claim of interest and ground of unjust enrichment and time barred – Period
of dispute is before 10.05.2008 - HELD - In the present case, the refund of
interest was filed on 25-09-2004. The provision for applicability of unjust
enrichment in respect of claim of interest was introduced in Section 11 B of
the said Act w.e.f. 10.05.2008 - The unjust
enrichment on refund of interest would not be applicable before 10.05.2008,
introduced to Section 11 B of the said Act - The Commissioner (Appeals)
categorically observed that Section 11 B of the Act would not be applicable and
therefore, the principle of unjust enrichment would also not be applicable -
The rejection of refund of interest is not sustainable – Appeal allowed
tnCir29
Tamil Nadu: Certain instructions regarding undue
enrichment of Input Tax Credit - Section 19 (20) inserted to reverse such
excess ITC
rajNoti6465
Rajasthan: Extension of the date for submission of
quarterly return in form VAT10, for first quarter of 2015-16
jkCir1065
Jammu & Kashmir: Regarding amendment in
Registration certificate in respect of 'Spare parts & Accessories'
chndNoti2289
Chandigarh: Amendment in Scheule
'E' - Regrading rate of tax on Batteries & Mobile
Phonee/Cell Phone and its parts & accessories
rajNoti79
Rajasthan: Change in rate of tax on Cigarettes
telNotiGO136
Telangana: Rule 67 of the Telangana
Value Added Tax Rules, 2005 - Prepayment of deferred Tax – Specifying discount
rate
18th of Aug
goaCir1
Goa: Clarification on Annexure A
& B forming part of VAT III
mahaCir13T
Maharashtra: Processing of Registration applications
submitted along with scanned documents
utrNoti498
Uttarakhand: Amendment in UVAT Schedule-II (B) -
Regarding SwedelNoti565etmeat, rewari, gajak and namkeen excluding
packed branded namkeen
delNoti565
Delhi: Authorisation of Andhra Bank and State Bank of
Travancore as Appropriate Government Treasury
2015-VIL-333-ALH
M/s AGRAWAL TRADING CO. Vs STATE OF U.P.
Uttar Pradesh Trade Tax Act – Applicable rate of tax
on ‘Shampoo’ – Soaps and other washing soaps – Petition challenging reopening
the assessment on the ground of change of opinion – Difference in the
Notification issued in English and Hindi language - HELD - In the light of the
difference found in English and Hindi version of the in Entry No.48 of the
Notification No.101, dated 15.1.2000 and in the light of the decision of the
Supreme Court in Associated Distributors Limited, the Hindi version would
prevail in the instant case and that Entry No.48 is with regard to soap which
are used for washing clothes. The shampoo, which the petitioner was importing
and selling, was being used for washing hairs would not be covered under the
Notification No.101, dated 15.1.2000 - we do not find any error in the order
sanctioning permission for reopening the assessment proceeding as it does not
come in the category of change of opinion – Assessee petition dismissed
2015-VIL-332-BOM
HINDUSTAN PLATINUM PVT LTD Vs THE STATE OF MAHARASHTRA
Maharashtra Value Added Tax
Act - Section 6A – Assessment - inter-state sale of goods - Trade Circular 2T
of 2010 – Job work - Processed goods - levy tax on the transaction of return of
processed goods under the CST Act, 1956 - opportunity of being heard – HELD -
We are passing this order in facts peculiar to this case, because we find that
the orders passed by the Assessing Officers fail to take note of any objections
nor does it make a proper and complete reference to the Circulars in the field.
It is in these circumstances and parties like the Petitioner should not be
deprived of a fair and reasonable opportunity of placing their version that the
present order has been passed - the Assessing Officer must give an opportunity
of being heard to the Petitioners - It shall not be treated as a precedent in
any future case
2015-VIL-334-KER
M/s KERALA SHIPPING AND INLAND NAVIGATION CORPORATION
LTD Vs THE STATE OF KERALA
Kerala General Sales Tax Act
- assessee is a Government Company owning boats and barges - Assessee had
entered into agreements with clients like FACT, IOC and BPCL for transportation
in their boats and barges their products and raw materials – Levy of tax on
hire charges under section 5(iii) of the Act – HELD – The Tribunal being the
last fact finding authority constituted under the KGST Act, should necessarily
evaluate the provisions of the contract. However, a reading of the order passed
by the Tribunal shows that it has examined the issue by confining itself to the
orders passed by the lower authorities - The matter requires to be considered
afresh, duly taking into account the agreement and other documents that are
available on record. On that basis, the Tribunal should pronounce on the
question whether the nature of the transaction between the assessee and its
clients, levy of tax under Section 5(1)(iii) of the
KGST Act is attracted or not - For that purpose, without expressing any opinion
on the merits of the case, we set aside the order passed by the Tribunal and
remit the matters to the Tribunal for a fresh consideration – Revision allowed
by remand
2015-VIL-430-CESTAT-MUM-CE
SUDARSHAN CHEMICALS INDS. LTD. Vs
COMMISSIONER OF CENTRAL EXCISE, RAIGAD
Central Excise – Denial of
refund of interest paid under protest - issue started with debiting of CVD in
DEPB licenses during the period 2004 to 2005. On making such debits appellant
took the Cenvat credit of the amounts debited in DEPB licenses. On being
pointed out the said amounts were reversed ‘under protest’ – HELD - The first
appellate authority has misdirected himself in recording that the appellant had
not preferred any appeal against the order of the adjudicating authority. In
fact and appeal was preferred and the same had attained finality in the hands
of Tribunal. Subsequent proceedings of claiming the refund of the amounts
debited under protest are separate proceedings which needs
to be addressed on its own merits. In the case in hand undoubtedly the interest
amount paid by the appellant is not required to be paid, which is evident from
the fact that the Customs duty which was wrongly debited was sanctioned by an
order which is not challenged by revenue and has attained finality. If the amount on which interest is demanded, is refunded, the question
of rejecting the refund claim of the amount of interest on such an amount would
not arise. The adjudicating authority had correctly followed the law in
sanctioning the amount of the interest which was paid ‘under protest.’ - The
impugned order is incorrect and liable to be set aside. The impugned order is
set aside and appeal is allowed
2015-VIL-431-CESTAT-DEL-CE
M/s JAY BHARAT MARUTI LTD Vs CCE, DELHI-II
Central Excise – Excess reversal of Cenvat credit -
Appellant suo-moto took Cenvat credit on account of
excess reversal - Department directed the appellant to file refund claim
instead of taking suo-moto credit – Denial of refund
claim on the ground that the appellant has failed to produce documentary
evidence in support not followed prescribed procedure as Rule 9 for availment of credit – HELD - It is a peculiar case where
the appellant himself has reversed excess Cenvat credit which they want to take
re-credit. For this excess reversal of Cenvat credit, only the account
books/statutory records are the documents to be verified by the authorities.
This fact has not been disputed, therefore, it is held appellant is entitled to
take refund / re-credit of the excess amount Cenvat credit reversed by them –
The refund claim of the appellant are allowed which will regularize the suo-moto Cenvat credit taken by them
2015-VIL-433-CESTAT-MUM-ST
NATIONAL AVIATION CO. OF INDIA LTD Vs COMMISSIONER OF
SERVICE TAX, MUMBAI
Service Tax - Services of transportation of passengers
for international journey by air services – Demand of service tax for the
amount collected by the appellant prior to 01/05/2006 and rendered after
01/05/2006 - Suppression of facts - Bonafide belief -
Bar of limitation – HELD - It can be noticed from the letter received by the
appellant from the office of the Assistant Commissioner, service tax specific
details were called for and such details were given. In our view the appellant
had volunteered the information as soon it was sought by the departmental
authorities. In our view the details which were not sought could not have been
supplied by the appellant - Receipts of the payments prior to the date of
journey recorded in accounts, as is the industry practice. If the authorities
were claiming that the appellant has suppressed the details, they could have
asked for the correct details from the appellants, which they did not do so.
Further, it was also in the knowledge of the department that a clarification
has been issued, despite such clarification, there seems to be no follow up by
the department like seeking for the details or demand of tax from the
appellants, in the absence of any positive action of in suppressing the details
from the department, we find that tax liability which is being worked out by
invoking the extended period is not correct - demands raised on the appellant
are blatantly hit by limitation and set aside the impugned order on the
question of limitation. Since we have set aside the demands, the question of
interest and penalties does not arise and they are also set aside – Assessee
appeal allowed
2015-VIL-432-CESTAT-KOL-ST
M/s POWER NETWORK ENGINEERS PVT LTD Vs COMMISSIONER OF
CENTRAL EXCISE, GUWAHATI
Service Tax – retrospective
exemption to transmission and distribution of electricity - Applicant are
engaged in providing service under the category of ‘erection, commissioning, or
installation services’ and ‘Works Contract of Service’ for transmission of
electricity - Period of dispute October, 2005 to September, 2010 – HELD - For
the limited purpose to ascertain the eligibility to the benefit of exemption
Notification No.32/2010 dated 22.6.2010 for the period from 22.6.2010 till
September, 2010, in the event the service related to distribution of
electricity for the said period, it needs to be
verified/scrutinized by the adjudicating authority. Consequently, to this
extent the matter is remanded for deciding the same on merit - since the issue
involved is one of interpretation of law and major period of the demand is
covered by the retrospective exemption, no penalty is liable to be imposed, in
the event the exemption Notification is found to be not admissible for the
period 22.6.2010 to Sept 2010 - Appeal allowed by way of remand
delCir19
Delhi: Extension in date for
filing of online return for 1st quarter of 2015-16
19th of Aug
2015-VIL-336-MAD
THE COMMISSIONER OF COMMERCIAL TAXES Vs M/s SUNDEK
INDIA LTD
Tamil Nadu General Sales Tax
Act, 1959 - Whether the interpretation given by the Hon'ble Supreme Court with
respect to entry made in the Central Excise Tariff, 1985, with regard to paper
based decorative laminated sheets can be relied on by the Department to levy
and collect tax under the TNGST Act, which is a separate enactment passed by
the State legislature - Reopening the assessment by the Assessing Officer was
based on the clarification issued by the CCT – HELD - The assessments in
respect of the assessee having been completed pursuant to an order passed by
the Special Tribunal and the tax at the rate of 10% was also collected, the
Revenue was not justified in demanding tax at 16% by seeking to reopen the
concluded assessments by issuing a clarification based on the premise that the
Hon'ble Supreme court, while interpreting an entry under the Central Excise and
Tariff Act, classified the product differently, that too retrospectively -
Accordingly, the writ appeal fails and is dismissed
2015-VIL-337-BOM
M/s BHARAT HEAVY ELECTRICALS LTD Vs THE STATE OF
MAHARASHTRA
Bombay Sales Tax Act, 1959 -
CST Act, 1956 - Section 5(2) - deduction of turnover of sale under the BST Act,
on account of cancellation of purchase order – failure to produce actual
contract document or any certified copy – power of remission of interest - HELD
- The papers which are then submitted only show that the Applicant had
submitted some bid documents and the NTPC had accepted them resulting into
contract. However, the actual contract document or any certified copy is not
produced nor is there any certified copy. The explanation given is that as far
as such documents are concerned, they pertain to national projects and in the
interest of safety and security, the original cannot
be parted with. Such an explanation hardly inspires confidence, because, then,
there was no need to introduce xerox copies. If the xerox copies could have been made available and stated to
be of certain originals or certain true copies, then, those should have been
produced and at the right stage. There is thus no prohibition in law or
privilege - Rectification Application - It is not necessary to refer to any
decisions on the ambit and scope of section 5(2) of the CST Act and relied by
either parties. Once the discussion does not raise any
question of law, then, the Application to that extent deserves to be rejected.
It is accordingly rejected - section 9 of the CST Act and sections 45 and 55 of
the BST Act - The only question which can be said to be a question of law is
regarding the power of remission of interest, The Tribunal is directed to refer
the same for opinion
2015-VIL-335-P&H-ST
M/s 21st CENTURY BUILDERS AND ENGINEERS Vs UNION OF
INDIA AND OTHERS
ST/CE/CUS - Service of
notice – Change in address – Assessee-petitioners requested to serve
correspondence at the new address - petitioners failed to appear for personal
hearing as notice was served at old address - whether Hon’ble High Court
can exercise our extra ordinary jurisdiction under Article 226 of the
Constitution of India to interfere by affording the petitioners the opportunity
of being heard – HELD - It is true that the registration certificate requires
the petitioners to mention the address and it is at that address that the
respondents would be entitled to address communication. However, in the present
case, the petitioners repeatedly requested the correspondence to be delivered
to the new address. This request was never rejected - The petitioners are,
therefore, justified in requesting the respondents to forward the
correspondence to the new address. It is also important to note that the
petitioners had requested 3 months' time to file the reply to the show cause
notice. This request was never rejected. Instead, the impugned order was passed
even before the expiry of 3 months - This is a fit case to invoke our extra
ordinary jurisdiction by affording the petitioners an opportunity to meet the
case on merits - The petition is allowed. The impugned adjudication order is
quashed and set aside
2015-VIL-434-CESTAT-MUM-ST
LUBRIZOL INDIA PVT LTD Vs COMMISSIONER OF CE & ST,
(LTU)
Service Tax - Services
rendered under Technology Transfer Agreement – Taxability under ‘Business
Auxiliary Services’ - Export of services – period 1.7.2003 to 31.3.2007 – HELD
- There is no dispute at to the facts that appellant is receiving an amount of
3% of the sales value of the sales effected by Lubrizol corporation USA in
India directly by bidding in various tenders - assuming that appellant has
rendered service of sales and promotion on the sales of Lubrizol Corporation in
India, then sales services have to be considered to be export of services is
the law settled – Issue settled by SGS India and Microsoft Corporation judgement - period involved in this case is that from
01.07.2003-31.3.2007 during the relevant period, though the export of services
rules was not in place for the period 01.07.2003 to 31.3.2007, the issue for
this period is covered by the judgment in the case of Paul Merchant Ltd - the
impugned order is unsustainable and liable to be set aside – Assessee appeal
allowed
2015-VIL-429-CESTAT-MUM-CE
M/s BALKRISHNA INDUSTRIES LTD Vs CCE, AURANGABAD
Central Excise - Clearance
of forklift 'as such' – Capital goods – Payment of differential duty under
protest – Denial of refund of duty paid – HELD - there is no dispute that
forklift was removed after use in the factory premises of appellant. Revenue’s
case of requirement of reversal entire amount of Cenvat Credit availed is an
incorrect view - The machine cleared after putting into use cannot be treated
as Cleared ‘as such’ – Issue settled by High Court of Punjab & Haryana in
the case of Raghav Alloys Ltd – Assessee appeal
allowed
2015-VIL-436-CESTAT-CHE-CE
CCE, PUDUCHERRY & M/s NATIONAL OXYGEN LTD Vs M/s
NATIONAL OXYGEN LTD & CCE, PUDUCHERRY
Central Excise – Assessable
value - Transaction Value - Issue relates to inclusion of facility charges and
cylinder holding charges to the assessable value – HELD - In view of the Apex
Court decision to refer the issue to Larger Bench of Supreme Court and in the
present appeals the issues are identical in nature i.e. rental charges
collected as facility charges and cylinder holding charges while supplying the
gas, it is appropriate that the appeals to be decided only after the final
outcome of the Apex Court’s Larger Bench decision - Accordingly, matter is
remanded to the lower appellate authority with the direction to decide the
appeals on all the issues based on the outcome of the decision of the Larger
Bench of the Hon’ble Supreme Court
2015-VIL-435-CESTAT-CHE-CE
M/s PEPSICO INDIA HOLDINGS PVT LTD Vs CCE, PUDUCHERRY
Central Excise - Demand of
CENVAT credit on plastic crates where the appellant has used both in dutiable
and in exempted goods – HELD - The issue is already settled by virtue of
retrospective amendment in the Finance Act, 2010 - Since the adjudicating authority
has accepted the application of the appellant relating to the demand covered in
four show-cause notices and held that the appellant has not availed
MODVAT/CENVAT credit on the crates used for exempted goods and held that there
is no further demand due from the appellant. Accordingly, the impugned order is
set aside and the appeal is allowed
odiNoti341
Odisha: Exemption from audit of accounts - Unit Run
Canteens run by Defence
Establishments
punPN140815
Punjab: Public Notice
regarding validation of PAN
20th of Aug
harNoti20
Haryana: Haryana Value Added
Tax (Second Amendment) Rules, 2015 - Amendment in lump sum rate for Brick Kiln
and Ply-board
kerSRO504
Kerala: Errata to Kerala Finance Act, 2015
bihNoti197
Bihar: Date of commencement of Supaul circle
stInst137
Service Tax: Clarification regarding the
provisions of Section 73, 76 and 78 of the Finance Act, 1994 and Section 11AC
of the Central Excise Act, 1944 after amendments made vide Finance Act, 2015
2015-VIL-340-P&H
M/s HPL SOCOMEC P. LTD. Vs STATE OF HARYANA
Haryana General Sales Tax
Act - Appellant is engaged in the manufacture of onload
changeover switches, switch boards and parts and accessories in relation
thereto - Whether the Higher Level Screening Committee is entitled to reopen a
case on its own where its earlier decision had been overruled by the appellate
authority-Secretary in exercise of powers under Rule 28A(5)(g) of the HGST
Rules, 1975 and Whether the Higher Level Screening Committee is entitled to
ignore the order of the appellate authority i.e. Secretary passed under Rule
28A(5)(h) and to refuse to comply with the order on the basis that it was doing
so on a ground that had not been considered by the appellate authority – Fixed
capital investment – Purchase of old machineries – Quantum of exemption – HELD
- The appellant challenged the order of the HLSC before the Tribunal, which
passed the impugned order. The Tribunal held that the order in appeal of the
Secretary had not mentioned the amount for which the eligibility certificate
was to be issued and that the order was passed only on the issue of the
machinery being old or new - It was open to the HLSC to revisit the matter on
another ground - The Tribunal wrongly held that merely because an issue had not
been considered in the appeal, it was open to the HLSC to suo
motu reopen the case - Once an order of the Secretary
in appeal against the order of the HLSC attains finality, the HLSC cannot
reopen the same case including on a ground which had not either been urged
before the Secretary or pressed by the department - whether the tools and dies
were new when the appellant purchased the same, would make no difference - It
would not entitle the lower authority, in this case the HLSC, to reopen a
matter which has attained finality before the appellate authority – Assessee
petition allowed
2015-VIL-339-KAR
THE STATE OF KARNATAKA Vs M/s GOPALAN ENTERPRISES,
(INDIA) LTD
Karnataka Value Added Tax
Act, 2003 – Input Tax Credit – SEZ - Works contract and construction of
buildings in SEZ - re-assessment – Revised return – Revision Order - HELD - The
appellate Tribunal, after critical evaluation of the entire material allowed
the appeals filed by the assessee-Company on the ground that as per Section 20(2)
of the KVAT Act read with Rule 130-A(a) of the KVAT Rules, a developer of any
Special Economic Zone is eligible for refund of tax paid on any inputs
purchased for the purpose of development, operation or maintenance of the
processing area in a SEZ. Nowhere in the order of the Revisional
Authority or the re-assessment order dated 04-08-2010 passed by the Prescribed
Authority for the impugned tax periods February 2009 and March 2009, there is
any mention regarding the fact of allowing of input tax credit claims in
relation to the processing area as distinguished from other areas of the SEZ -
The matter has been rightly remanded back to the Prescribed Authority to pass
fresh re-assessment order – Matter remanded
2015-VIL-341-GUJ-ST
M/s RONAK SHIPPING Vs UNION OF INDIA
Service Tax – Non-payment of
Tax - Penalty under Section 78 of Finance Act, 1994 - Suppression of facts –
Limitation – Whether the case of the petitioners falls in any of the parameters
prescribed by the Hon’ble Gujarat High Court Larger Bench order in Panoli Intermediate (India) Pvt
Ltd case – HELD - Though the petitioners had tried to supply the details about
the payment of service tax, it appears that some of the amount had been paid
subsequent to initiation of the present proceedings – The petitioners have
suppressed the facts from the respondent authority to avoid payment of service
tax. Unless M/s Dosti Fabricators was raided and
relevant documents were found out by the respondent, there would be non-payment
of huge of service tax, which the petitioners are liable to pay. Therefore, the
case is covered u/s. 78 of the Finance Act and it would not fall under any of
the clarifications made in answer no.3 by larger bench warranting condonation of delay in filing the appeal - Hence, the
decisions delivered by Division Bench of this Court are not applicable since
the payment of service tax is suppressed by the petitioners – Assessee petition
is dismissed
2015-VIL-436-CESTAT-MUM-ST
M/s JSW STEEL LTD Vs COMMISSIONER OF CENTRAL EXCISE,
RAIGAD
Service Tax - Refund claim
tax paid on Port Services and CHA – Exported goods – Denial of refund – Failure
to furnish evidences of actual payment of service tax – HELD - Reading of
notification no. 41/2007-ST dated 06 Oct. 2007, it does not indicate that the
refund claim to be evidenced by producing information of the service provider
having discharged the service tax liability. After going various clauses we
find that the only evidence required is payment of service tax on the specified
services which is satisfied in this case by showing that the invoices which was
raised by the service provider were paid by the appellant. It is a common sense
that no one will be allowed to enter the Mumbai port trust area and export
without paying the changes/fees to port trust. In our view, the conditions of
notification of discharging the service tax liability by the appellant to the
service provider are satisfied and there is no reason for rejecting the appeal
– Accordingly, the impugned order is set aside and appeals are allowed
2015-VIL-338-GUJ-CE-LB
PANOLI INTERMEDIATE (INDIA) PVT LTD Vs UNION OF INDIA
Central Excise – Section 35 – Limitation - Appeal
before the Commissioner (Appeals) - Whether the High Court has jurisdiction
under Article 226 if the appeal filed beyond the condonable period of 30 days
is dismissed by the Commissioner (Appeals) - Whether Section 35 of the Central
Excise Act can whittle down or dilute or nullify the power of the
constitutional court under Article 226 of the Constitution – HELD - Limitation
provided under section 35 of the Act cannot be condoned in filing the appeal
beyond the period of 30 days as provided by the proviso nor the appeal can be
filed beyond the period of 90 days. The petition under Article 226 of the Constitution
would not lie for the purpose of condonation of delay
in filing the appeal except under the following circumstances: 1) The authority
has passed the order without jurisdiction and by assuming jurisdiction which
there exist none, or 2) Has exercised the power in excess of the jurisdiction
and by overstepping or crossing the limits of jurisdiction, or 3) Has acted in
flagrant disregard to law or rules or procedure or acted in violation of
principles of natural justice where no procedure is specified – Larger Bench
Order
2015-VIL-437-CESTAT-AHM-CE
M/s WELSPUN INDIA LIMITED Vs C.C.E. & S.T. - VAPI
Central Excise – Rule 6(3A)
of the CCR – Non-maintenance of separated accounts for input Furnace Oil, used
in the manufacture of exempted and dutiable final products - Whether interest
is payable when a monthly payment is not paid, but entire payment of a
Financial Year is paid subsequently within the specified due date under
Rule-6(3A) of CCR – HELD - There are clauses in Rule 6 (3A) to the effect that
if entire differential amount is not paid by the due date (30th June of
succeeding FY) then interest on the differential amount is required to be paid.
The argument of the appellant that no interest is payable, if monthly payments
are not paid, is required to be rejected because Rule 6(3A)(e) is applicable
only with respect to amount short paid on final determination - appellant
cannot take the shelter of Rule-6(3A)(e) of the CCR to avoid payment of
interest. Once a monthly payment mode is prescribed the same is required to be
discharged. By not doing so interest is payable from that due date of payment
till the amount is paid as per the provisions of Section 11 AB (upto 30/03/2011) or Section 11 AA of the CEA 1944 – Appeal
remanded on the issue of time barred – In favour of
Revenue on merit
Guest Column
Ensuring Compliance in
Reverse / Joint Charge - Practical Issues
delCir20
Delhi: refunds on Input Tax Credit - Furnishing
additional security
puduCir5088
Puducherry: Regarding issuance proper Tax Invoice
2015-VIL-88-SC-ST
COMMISSIONER, CENTRAL EXCISE & CUSTOMS, KERALA Vs M/s LARSEN &
TOUBRO LTD
Service Tax – Work Contract - Indivisible / composite Contract - Section
67 of the Finance Act 1994 – Valuation of taxable service – Supreme Court
overturns Five members majority opinion of CESTAT Larger Bench (L&T Case)
on works contract service taxability prior to June 2007 – HELD - Indivisible / composite turnkey contracts
cannot be vivisected and service component be subjected to tax by
classification under taxable categories such as ‘commercial or industrial
construction service’, ‘construction of complex service’, or 'erection,
commissioning & installation service’ pre-2007 - Assessees
are correct in their submission that a works contract is a separate species of
contract distinct from contracts for services simpliciter
recognized by the world of commerce and law as such, and has to be taxed
separately as such - Finance Act, 1994 shows that the five taxable services
referred to in the charging Section 65(105) would refer only to service
contracts simpliciter and not to composite works
contracts. This is clear from the very language of Section 65(105) which
defines “taxable service” as “any service provided”. All the services referred
to in the said sub-clauses are service contracts simpliciter
without any other element in them, such as for example, a service contract
which is a commissioning and installation, or erection, commissioning and
installation contract. Further, under Section 67, as has been pointed out
above, the value of a taxable service is the gross amount charged by the
service provider for such service rendered by him. This would unmistakably show
that what is referred to in the charging provision is the taxation of service
contracts simpliciter and not composite works
contracts, such as are contained on the facts of the present cases. It will
also be noticed that no attempt to remove the non-service elements from the
composite works contracts has been made by any of the aforesaid Sections by
deducting from the gross value of the works contract the value of property in
goods transferred in the execution of a works contract – Finance Act lays down
no charge or machinery to levy and assess service tax on indivisible composite
works contracts, such argument must fail. This is also for the simple reason
that there is no subterfuge in entering into composite works contracts
containing elements both of transfer of property in goods as well as labour and
services - Assessee appeals are allowed & revenue appeals rejected
21st of Aug
2015-VIL-343-UTR
COMMISSIONER, COMMERCIAL TAX UTTARAKHAND Vs M/s RAHIS
AHMAD
Uttar Pradesh Trade Tax Act,
1948 – Bifurcation of State of Uttar Pradesh - Inter-state sale - Completion of
assessment on the basis of Form ‘C’ - Demand of tax of 2.5% invoking power
under Section 22 of the Act – Rectification of assessment – Application of
Notification - HELD – The Assessing Officer would have had to apply his mind to
a question whether the words sales against Form 3-B prescribed under the U.P.
Act “shall be calculated at such rate as would have been leviable
on such sales against Form 3-B prescribed under the U.P. Act” is capable of
only one meaning. If the original assessment was afflicted with an error
apparent, undoubtedly, the power could have been exercised. That, in turn,
would depend upon the question whether the word in the notification is
susceptible of only one meaning. As noticed, it is capable of another meaning -
Then the matter passes from the realm of being undisputed to the realm of
dispute. If that be so, being a matter of jurisdiction, as the Authority would
not have the authority to correct any kind of mistake but only the mistake
which is apparent on the face of the record, we would think that the view which
was taken by the Tribunal does not suffer from any infirmity - Accordingly, the
revenue revision will stand dismissed
2015-VIL-344-MAD
CETHAR LTD Vs THE ASSISTANT COMMISSIONER (CT)
Tamil Nadu Value Added Tax
Act, 2006 – Section 42 – CST Assessment – Non-submission of declaration Form -
Permission seeking payment of differential tax liability in installment – HELD
– Under section 42 the tax assessed or payable under the above Act from a
dealer may be paid in instalments – Admittedly, the
petitioner has not disputed the tax liability and come before Court seeking a
direction to pay the remaining tax liability in installments, as per Section
42(1) of the TNVAT Act, 2006 - Considering the facts and circumstances of the
case and also taking into account the nature of the relief sought for by the
petitioner, the petitioner is permitted to pay the entire outstanding tax so
assessed in five equal instalments – Petition allowed
2015-VIL-342-ALH-CE
M/s JAIPRAKASH ASSOCIATES LTD Vs UNION OF INDIA
Central Excise Act – Section
11 – Recovery of dues - Purchased of Cement Plant pursuant to the winding up
order – Recovery of past liability – HELD - The proviso contemplates that where
a person transfers or disposes of his business, which results in change of
ownership, in that scenario, the successor would be liable. In the instant
case, the Corporation has not transferred or disposed of its business or trade.
The Corporation has been wound up by an order of the Court and its assets have
been sold off. A running business has not been sold. It has come on record that
production activity is not being carried out since 1997 - In the absence of any
proof of running business coupled with the fact the Official Liquidator issued
an advertisement for sale of the assets of the Corporation after a winding up
order was passed by the High Court, the past dues of the Central Excise cannot
be recovered from the petitioner under Section 11 of the Act - Since the
petitioner had only purchased the assets of the Corporation in pursuance of the
winding up order passed by the High Court and had not taken over a running
business of the Corporation, the liability of past central excise dues payable
by the Corporation cannot be fastened nor recovered from the petitioner – The
impugned notice cannot be sustained and is quashed. The writ petition is
allowed
2015-VIL-440-CESTAT-AHM-CE
M/s DHARIWAL INDUSTRIES LTD Vs COMMISSIONER, CENTRAL
EXCISE & SERVICE TAX, VADODARA-I
Central Excise - Closure of
unit due to ban on use of plastic pouches - Refund of duty on pro-rata basis -
abatement - Rule 10 of Pan Masala (Packing Machine
Capacity Determination & Collection of Duty) Rules, 2008 – Closure of unit
for six days – Rejection of refund claim on the ground that the period of 6
days [i.e. continuous closure of less than 15 days] will not qualify for
refund/abatement – HELD - The intimation given by the Appellant to the
Assistant Commissioner of Central Excise by letter dt.08.12.2011 would show
that the Appellant permanently ceases to work in respect of all the machines
installed in the factory and it would be followed for surrender of
registration. Incidentally, by order dt.17.02.2011, the Hon’ble Supreme Court
directed that the ban will be effective from 01.03.2011. As per the direction
of Hon’ble Supreme Court, the Appellant re-opened the factory on 17.02.2011.
The jurisdictional Superintendent of Central Excise,
de-sealed the machines. In such a peculiar facts and circumstances of the case,
the refund claim filed by the Appellant would come within the purview of Rule
16 of Rules 2008 – There is no provision in Rules 2008 that after declaring
‘permanently ceases to work’, the manufacturer would not be entitled to re-open
his factory. Rule 16 would cover the situation, where a manufacturer filed an intimation to the Deputy Commissioner of Central Excise
intimating permanently ceases to work for surrender of registration. There is
no bar on re-opening of the factory in Rules 2008, which is a subsequent event.
Further, the Appellant in its letter dt.08.02.2011 categorically stated that
they were giving intimation of closure of the factory as required under the
Rules, would be implied surrender of registration - the Appellant should not be
penalized by rejecting the refund claims, for the reason, they had re-opened
the factory and such reading of the said provision, would be totally unjust,
improper and against all cannons of natural justice and fair play. So, in such
peculiar facts and circumstances of the case - Appellant is entitled to refund
of the duty for closing down of their factory – Assessee appeal allowed
2015-VIL-439-CESTAT-DEL-CE
M/s LG ELECTRONICS INDIA (P) LTD Vs CCE, NOIDA
Central Excise - Manufacture
of colour television - import various electronic
components - short payment of SAD on components – Interest and penalty –
Limitation – HELD – The credit of SAD relatable to electronic components
removed during the material period was never utilized and assessee always had
excess credit in their CENVAT account during the material period. This showed
that the appellants did not have the intention to avail CENVAT credit wrongly -
Demand of interest and imposition of penalty were not justified. Further, as
the show cause notice was also issued by invoking extended period of
limitation, therefore, penalty on the appellant is not imposable - As the
appellant has reversed the Cenvat credit of SAD, which has ultimately taken up
by the buyer in that case, consequent to this order, the appellant will not
avail cenvat credit again in SAD in their Cenvat
Credit Account – Appeal allowed
2015-VIL-442-CESTAT-MUM-ST
CMA CGM GLOBAL (INDIA) PVT LTD Vs COMMISSIONER OF
CENTRAL EXCISE, THANE-II
Service Tax – whether the
expenses charged directly from customers such as Bill of Lading (B/L) reissue
charges, switch B/L charges, B/L surrender charges, advance cargo declaration
charges, administration charges on stamp duty, amendment charges, check
dishonour charges, destination documents fees, late B/L charges are leviable to service tax under the Business Auxiliary
Services – whether the appellant is providing customer care service on behalf
of the Principal - HELD - nothing in the Agreement which states that the
appellant cannot provide such services and cannot receive charges from the
customers for such activities. Therefore, these activities constitute service
provided directly to the customer and do not constitute services provided on
behalf of the Principal. Hence, the services would not fall under the category
of BAS during the period of dispute. If at all, they could be considered under
the amended definition of BAS from 16 June 2005 when an explanation was
inserted to define Commission Agent. And from this date the appellant have in
any case paid service tax under BAS. Alternatively the activities could be
considered as falling under Business Support service which came into effect
from 1.5.2006 i.e. after the period of dispute in the present case – Impugned
order set aside and assessee appeal is allowed
2015-VIL-441-CESTAT-MUM-ST
COMMISSIONER OF CE&ST, PUNE III Vs INTERMEDIA
CABLE COMMUNICATION PVT LTD
Service Tax – Demand for
differential tax – Assessee is discharging the service tax liability as Multi System
Operator - Demand on the basis of subscriber base declared in the agreements
with the broadcasters – HELD - For the period October 2005 to December 2005 the
said agreement indicates number of subscribers whom respondent will render
service as MSO – The service tax liability needs to be discharged on the
agreement which indicated the number of subscribers – Agreement for the period
from Jan 2006 to Sept 2009 do not indicate number of subscribers but indicates
the subscription fees to be paid by the respondent to broadcaster - In the
absence of any additional evidence that there being larger subscriber base, the
difference of service tax liability for the period Jan 2006 to Sept 2009 has
been worked out based upon presumptions and assumptions - Demands of
differential service tax liability cannot be raised on presumptions and
assumptions; in the absence of any evidence to show that respondent has
provided services to under-reported subscribers, collected the payments and did
not discharge service tax thereon - Demands raised for the period Oct 2005 to
Dec 2005 is confirmed with interest, while demand for the period January 2006
to September 2009 is dropped. As major portion of the adjudicating authority’s
order is upheld and as there could confusion in the mind of the respondent no
penalty is levied – Appeal partly allowed
chhgAct29
Chhattisgarh Value Added Tax
(Amendment) Act, 2015 - Amendment in Section 21 - Period for re-assessment
goaBill26
Bill for Goa Value Added Tax
(Eighth Amendment) Act, 2015 - As introduced in Goa Assembly
wbMemo777
West Bengal: Extension of
the last date of filing VAT Return for Q.E. 30/06/2015
Guest Column
CBEC clarifies on SCN
issuance & proceedings conclusion as per amended penal provisions in
Service Tax and Central Excise
24th of Aug
2015-VIL-345-MP
BHARTI INFRATEL LTD Vs STATE OF MADHYA PRADESH &
OTHERS
Madhya Pradesh Value Added Tax Act, 2002 - Section 2
(u) (vi) - transfer of the right to use - Mobile Operators Shared Towers -
Passive Infrastructure Services to mobile phone operators - Telecommunication
infrastructure - Whether the provisions of Passive Infrastructure Services by
the petitioner to share operator's would tantamount to 'transfer of right to
use goods' as per Section 2(u)(vi) of the MPVAT Act, 2002 – HELD - When the
petitioner has not transferred the possession of the passive infrastructure to
the sharing telecom operators in the manner understood in law, the limited
access provided to them can only be regarded as a permissive use or a limited
licence to use the same. The possession of the passive infrastructure always
remained with the petitioner. The sharing telecom operators did not therefore,
have any right to use the passive infrastructure - The entire infrastructure is
in the physical control and possession of assessee at all times and there is no
parting of the same nor any transfer of the right to use the equipment or
apparatus - The permission granted to the telecom operator to have access to
the passive infrastructure for limited purposes is loosely termed by the taxing
authorities as "a right to use the passive infrastructure" - The
impugned order passed on the basis that the petitioner transferred the right to
use passive infrastructure to the sharing telecom operators is quashed – Writ
petition allowed
2015-VIL-89-SC-CE
COMMISSIONER OF CENTRAL EXCISE, NAGPUR-I Vs M/s
INDORAMA SYNTHETICS (I) LTD
Central Excise – Valuation – Transaction value -
Additional consideration – Deemed export – Assessee availed benefit of duty
drawback when advance licence holder buyers surrendered the accrued benefits in
favour of assessee - Whether such benefit would constitute ‘additional
consideration’ received by the assessee as per the definition of ‘transaction
value’ contained in Section 4 of the Act read with Rule 6 of the Rules – HELD -
Transfer of advance import licence in favour of the seller by the buyer
enabling the seller of the goods to effect duty free import of the raw
materials and bringing down the cost of production/procurement, is a consideration,
the monetary value of which has to be considered under the provisions of Rule 6
– There is no reason to deviate from the decision rendered by Apex Court in
IFGL case - Assessee plea referring the matter to a larger Bench is rejected –
Revenue appeal allowed
2015-VIL-438-CESTAT-CHE-CE
M/s SAIL REFRACTORY COMPANY LTD Vs CCE, SALEM
Central Excise – Valuation –
Amount received post-removal of goods - Manufacture of refractory bricks –
Whether the amount received as bonus by the assessee from its buyers for the
performance of converter bricks/refractory bricks would be included in the
assessable value – HELD - Subsequent dealings between the assessee and the
buyer on account of performance or otherwise of the goods is not of any concern
in regard to the sale price of the goods at the time of removal - There is no
justification for treating the bonus amount as part of the price of the goods
and demanding duty on the basis of bonus received from the buyers for better
performance of the bricks – Bonus amount not includible in the assessable
value – Assessee appeal allowed, revenue appeal dismissed
2015-VIL-444-CESTAT-CHE-ST
COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX,
TIRUCHIRAPALLI Vs M/s GRASIM INDUSTRIES LTD
Service Tax – Cenvat Credit - Respondent being a
manufacturer of cement was directed by Pollution control Board to prevent
pollution by planting trees in its factory area – Planting of trees – Credit
disallowed terming it as maintenance of garden – HELD - Planting of trees that
cannot be equated with maintenance of garden - considering that a cement
factory requires planting of the trees and maintenance thereof to prevent
pollution, claim of the respondent as to the service tax paid for such
maintenance to make it eligible is undeniable - Accordingly, Revenue appeal is
dismissed
2015-VIL-443-CESTAT-MUM-ST
COMMISSIONER OF CUSTOMS & CE, GOA Vs KRUPADEEP
TRADERS
Service Tax - Goods
Transport Agency - Refund service tax paid by mistake – HELD - transportation
of Bauxite Ore was undertaken by Goods Transport Agency on behalf of the
assessee who is a sole proprietorship firm - Circular No.79/9/2004-ST dated
17.12.2004 has clarified on the issue which is in this appeal wherein a person
making payment towards freight would be liable to pay the service tax in case
the consignor or consignee of the goods transported falls in one of the
category as enumerated in the Circular - It is undisputed that the
respondent-assessee does not fall under any of the category – Accordingly, the
impugned orders of the first appellate authority is correct and sustainable and
do not require any interference – Revenue appeal dismissed
Guest Article
No Service tax can be levied on indivisible Works
Contracts prior to June 1, 2007
Bihar Act 13 of 2015
Bihar Value Added Tax (Amendment and Validation) Act,
2015
Bihar Act 14 of 2015
Bihar Settlement of Taxation Disputes Act, 2015
25th of Aug
2015-VIL-346-DEL
CHALLENGER COMPUTERS LTD Vs COMMISSIONER OF TRADE & TAXES, DELHI
Delhi Value Added Tax Act – Section 2(r), 3, 8, 9, 10,
51 - Input Tax Credit – Credit Note – Sale price – Adjustment to tax credit -
discounts/incentives from selling dealers subsequent to sales – Demand for
adjustment of input tax and reversal of ITC claimed against the discount /
incentives received from the selling dealer – Assessment – Demand – Prospective
amendment - Whether the Tribunal was right in holding that the appellants were
required to reverse input tax credits claimed on purchases made by them on account
of credit notes issued by selling dealers, despite the selling dealers having
confirmed that they have not reduced their output tax liability and Whether in
the facts and circumstances of the case, it can be said that the returns filed
by the appellants were false, misleading or deceptive, attracting penalty U/S
86(10) of the Act – HELD - In all these cases, the Appellants have been able to
produce certificates from the selling dealers who have clarified that they are
not claiming any output tax credit or seeking any refund. In other words, the
entire amount of VAT collected by the selling dealer from the buying dealer is
remitted to the Department. Therefore, there is no question of the selling
dealer resorting to the procedure under Section 51(a) of the DVAT Act to raise
a credit note in accordance with Rule 45 of the DVAT Rules, or to notify that
on account of an arrangement with the buying dealer the selling price has been
altered. Consequently, there is no corresponding obligation on either of them
to resort to the procedure under Section 8 (1) of the DVAT Act. There is also,
therefore, no obligation on the buying dealer to resort to the procedure under
Section 10 (1) of the Act. This, of course, is the scenario prior to the
introduction of Section 10 (5) to the Act which is only prospective and not as,
contended by the Revenue, merely clarificatory.
2015-VIL-348-GUJ
STATE OF GUJARAT Vs DELTA RUBBER AND PLASTICS PRODUCTS
Gujarat Value Added Tax Act - Input tax credit –
Denial of input tax credit on the ground that the registration of the
dealer/seller who had sold the goods to the assessee has been cancelled with
retrospective effect – Department challenging the order of tribunal by which
interest demanded and penalty were set aside – HELD - Following the judgement
in Cosmos International Limited - Tribunal has committed no error in removing
the interest as well as penalty imposed upon the assessee – When assessee had
purchased goods from dealer/seller, he was registered under provisions of VAT Act
and subsequently, his registration was cancelled. Therefore assessee cannot be
deprived of his right of getting credit of input tax available under provisions
of GVAT Act – Whatever may be effect of retrospective cancellation upon selling
dealer, it can have no effect upon any person who has acted upon strength of
registration certificate when registration was current – In favour of assessee
2015-VIL-347-MAD-CE
M/s METTUR THERMAL POWER STATION Vs COMMISSIONER OF CENTRAL EXCISE,
SALEM
Central Excise – Excisebility of Fly Ash cleared post
01.03.2011 – Manufacture - excisebility on by-product and waste product -
Whether the 'fly ash' and 'fly ash bricks' included as items in the entries to
the First Schedule to the Central Excise Tariff Act, per se make the same exigible to excise duty – HELD - commodity 'fly ash' cannot
be subjected to levy of excise duty because it is not an item of goods which
has been subjected to process of manufacture and as such it did not satisfy the
test of being manufactured in India as envisaged in the provisions of the Act -
The impugned SCN is set aside in so far as it concerned to the imposition of
excise duty, interest and penalty in respect of 'fly ash' alone - Writ petition
partly allowed
2015-VIL-446-CESTAT-CHE-CE
M/s AMALGAMATIONS REPCO LTD Vs COMMISSIONER OF CENTRAL EXCISE, CHENNAI-I
Central Excise – Job work – Denial of capital goods
credit on the ground that no duty paid clearances were made by appellant as a
job worker - goods suffered duty ultimately in the hands of principal
manufacturer – HELD - since the acquisition of capital goods and use thereof in
manufacture was not in dispute, in absence of any provision in law capital
goods credit cannot be denied to a manufacturer who was also a job worker -
When the job worker was entitled to the exemption under mandate of
notification, that does not alter characteristics of manufacture under Section
2(f) of the CEA, 1944. Therefore, denial of capital goods credit to the
appellant is uncalled for - Assessee appeal allowed and Revenue appeal
dismissed
2015-VIL-445-CESTAT-AHM-CE
M/s TORRENT PHARMACEUTICALS LTD Vs C.C.E. & S.T.-VADODARA-I
Central Excise – Tribunal jurisdiction – Denial of
refund claim as time barred treating the same as refund of Rule 173L of CER
1944, r/w Section 11B of the CEA, 1944 – Repackaging and export of goods of
returned goods – HELD - Appellant in the present proceedings is a merchant
exporter and not a person who undertook first manufacture and subsequent
processing of the returned goods - Appellant will be interested to get rebate
claim of the duty paid before the returned goods were allowed to be cleared
under Rule 173 H of the erstwhile CER 1944, on the documents relating to export
of goods. Rule 173 L of the erstwhile CER, 1944 can be followed only by the
manufacture/re-manufacture of the goods and not by the merchant exporter. As
the main dispute agitated by the appellant is that their claim is one of rebate
and not refund under Rule 173L, this Bench agree with the contention of the
assessee that it is a case of rebate and CESTAT does not have the jurisdiction
to entertain this appeal - appellant is disposed of as an appeal filed without
jurisdiction. Appellant is at liberty to file appeal with the appropriate
authority
2015-VIL-447-CESTAT-MUM-ST
TUMKAR MINERALS PVT. LTD. Vs CCE, GOA
Service Tax – Admissibility of refund of education
cess paid on the service tax in respect of port related services, technical
testing and analyzing services – HELD - Circular No. 134/3/2011 dated
08.04.2011 was issued specifically noting the judgement of the Tribunal in the
case of Balasore Alloys Ltd and the Board’s view is
‘if that education cess paid on the service tax by the service providers is
also to be refunded to appellants’ - If the service tax liability is discharged
on which education cess is paid on the goods exported, the benefit of refund of
such education cess paid should not be denied when the export of goods is not
in dispute – Assessee appeal allowed
2015-VIL-448-CESTAT-MUM-ST
COMMISSIONERS OF CEC&ST, SURAT-I Vs M/s KETAN ENGINEERING SERVICES
Service Tax – Assess engaged in providing the service
of ‘maintenance and repairs of plant and equipments’ of clients like M/s Essar Steels Ltd and M/s Reliance Industries Ltd – Demand alongwith interest and impose penalty under the category of
‘Repair and Maintenance Service’ for the period July 2003 to March 2005 –
Adjudicating Authority dropped the proceedings – Revenue in appeal – HELD -
Provisions of Section 65(64) and (105) (zzg) of the
Act provides where a manufacturer or any person authorized by him provides a
service in relation to the Maintenance, Repair or Servicing of any goods, or
equipments excluding a motor vehicle, such service provided is exigible to Service Tax - Following the decision of the
Tribunal in the case of Anand Transformers Pvt Ltd the demand of tax alongwith
interest are upheld and the imposition of penalty is dropped – Revenue appeal
allowed
goaNoti121
Goa Value Added Tax (Tenth Amendment)
Rules, 2015 - Amendment in Rule 23 and 25
Guest Article
Cenvat Credit on
Construction Services
26th of Aug
2015-VIL-90-SC-CE
M/s PUROLATOR INDIA LTD Vs COMMISSIONER OF CENTRAL EXCISE, DELHI-III
Central Excise – Valuation – Cash discount -
Manufacture of Filter Elements, Inserts, and Cartridges and Components –
Section 4 after the amendment of 2000 - assessable value – transaction value -
Disallowance of deductions claimed on account of volume discount, sales tax and
cash discount – Sale price – Place of removal – HELD - Section 4, whether it is
prior to 1973, after the amendment in 1973, or after the amendment of 2000, is
that excisable goods have to have a determination of “price” only ‘at the time
of removal’. This basic feature of Section 4 has never changed even after two
amendments - what is paramount is that the value of the excisable goods even on
the basis of “transaction value” has only to be at the time of removal - The
expression “actually paid or payable for the goods, when sold” only means that
whatever is agreed to as the price for the goods forms the basis of value,
whether such price has been paid, has been paid in part, or has not been paid
at all. The basis of “transaction value” is therefore the agreed contractual
price - the expression “when sold” is not meant to indicate the time at which
such goods are sold, but is meant to indicate that goods are the subject matter
of an agreement of sale. Once this becomes clear, the argument of the assessee
is necessarily be accepted inasmuch as cash discount is something which is
“known” at or prior to the clearance of the goods, being contained in the
agreement of sale between the assessee and its buyers, and must therefore be
deducted from the sale price in order to arrive at the value of excisable goods
“at the time of removal” - Therefore, ‘cash discount’ has to be taken into
account in arriving at “price” even under Section 4 as amended in 2000 – Matter
remanded – Appeal disposed in favour of assessee
2015-VIL-91-SC-CE
COMMISSIONER OF CENTRAL EXCISE, CHENNAI-IV Vs HINDUSTAN LEVER LTD
Central Excise – Classification - Whether Vaseline
Intensive Care Heel Guard is to be treated as merely a skin care preparation or
it is a medicament having curing properties – Revenue seeks to classification
under Chapter 33 whereas assessee under Chapter 30 – medicament, cosmetic or
drug - HELD – The issue of determination as to whether a particular product
falls in Chapter 33 or Chapter 30 would arise in those cases where certain
products have the shades or qualities of both, namely, skin care as well as
cure of skin diseases - Whenever product has curative or prophylactic value as
well, but the Department still wants the said product to be brought under
Chapter Heading 3304.00, onus is on the Department to show that it is not
medicament. For this, it will have to demonstrate that curative or prophylactic
value is only subsidiary in nature or that the product is covered by the
description under chapter notes 5, namely, either it is chiropody or barrier cream
to give protection against skin irritants. If the Department fails to discharge
this onus, the product has to be treated as medicament and would be covered
under Chapter 30 - Vaseline Intensive Care Heel Guard, is marketed as a
solution for cracked heels - the effect of mitigation of an external condition
is primary effect and the effect of smoothing the skin was secondary in nature
and, therefore, it was to be treated as a medicament and classified under
Chapter 30 - Though the burden was on the Department, it did not lead any
evidence or produce any material to discharge this onus. It simply went by the
pamphlet of the product, that too selectively picking up that portion where the
product was described as good for care of the skin as well, ignoring the fact
that the same very literature gives more emphasis to the therapeutic value of
the product – Tribunal decision holding the product as a medicament and,
therefore, covered by Chapter Heading 3003.10 is perfectly justified and does
not call for any interference – Revenue appeal dismissed
2015-VIL-352-ALH-CE
M/s BHARAT HEAVY ELECTRICALS LTD Vs COMMISSIONER C & C EXCISE,
KANPUR
Central Excise Act – Section 3(1), 11AB & 37 – CER
Rule 7 – Levy & Collection – Interest - Provisional assessment – Liability
to pay interest on differential duty even though the differential duty was paid
prior to the date of the passing of the final assessment order – HELD - The
expression ‘becomes payable’ under Section 37(2)(ibb)
would relate to the date on which the duty was payable i.e. at the time of
clearance of the goods in terms of the said Act. Merely because the
differential amount of duty is ascertained consequent to the finalisation of
assessment, the due date for payment of such amount never changes nor is extended.
It would always relate to the date of removal of the goods thereof - only the
quantification of the differential amount of duty is ascertained consequent to
the finalisation of assessment, and that too merely because the assessee was
not able to ascertain the exact quantum of duty in the absence of sufficient
material to finalize the valuation of the goods at the time of clearance of
goods. The due date for payment of duty is statutorily fixed being the date of
removal of the goods consequent to the manufacture thereof and the same cannot
be changed - The expression ‘for’ as provided under Rule 7(4) of the Rules of
2002 refers to the month for which the amount is determined pursuant to the
finalisation of assessment and hence, interest liability would commence from
the month succeeding the month for which the duty was due and payable -
Interest is leviable even where differential duty was
paid prior to the finalisation of the assessment in view of Rule 7(4) of the
Rules of 2002 – The Court followed Apex Court ruling in the case SKF India Ltd
& International Auto Ltd and differed with Bombay High Court order in the
case of Ispat Industries Ltd and CEAT Ltd – Assessee
appeal dismissed
2015-VIL-351-ALH-CE
COMMISSIONER OF CENTRAL EXCISE, MEERUT Vs M/s VODAFONE ESSAR SOUTH LTD
Tribunal – Extension of stay - Whether the Tribunal is
vested with the power to extend the stay order beyond the specified maximum
time limit prescribed in Section 35-C(2-A) of the Central Excise Act – HELD -
Section 35C (2A) of the Act as amended in 2002 and 2013 makes it apparently
clear that the Tribunal was mandated to hear every appeal within a period of
three years 'where it is possible to do so’ – This indicates that though a
mandate was given to decide the appeal within three years, it was not a
mandatory provision, but, only a directory provision - Thus, the first, second
and third proviso directing the Tribunal to decide the appeal within 180 days
in the first instance or within 365 days in the second instance, failing which,
the stay order would stand vacated also has to be read as directory in nature.
If the main provision cannot be treated as mandatory, the first, second and
third proviso also cannot be treated as mandatory – Therefore, if the Tribunal
would not dispose of the appeal within 365 days under the first, second and
third proviso of Section 35C (2A) of the Act which was not attributable to the
assessee, it would not mean that the Tribunal was divested with its incidental
powers in not extending the interim order. The three proviso cannot be read as
mandatory in nature - strict interpretation of the three provisos to section
35C (2A) of the Act would defeat justice and would lead to a miscarriage of
justice - The omission of the first, second and third proviso w.e.f. 6.8.2014 would mean that the appeal filed by an
assessee needs to be disposed of within a period of three years and stay orders
which have been passed by the Tribunal would continue to remain in force unless
it is limited by the Tribunal itself - The contention that the appeals filed
before 6.8.2014 would continue to be governed by first, second and third
proviso to Section 35C(2A) of the Act in view of the second proviso contained
in Section 35F of the Act which came into effect from 6.8.2014 is patently erroneous
– Revenue appeals dismissed
2015-VIL-350-MAD-CE
M/s AIDEES ELECTRONICS PVT LTD Vs THE COMMISSIONER OF CENTRAL EXCISE
Central Excise – Section 11A - Limitation –
Suppression of facts – HELD - As against the order of the first appellate
authority that there was no suppression, the Tribunal did not record any
finding – The Tribunal appears to have taken up the appeal after seven years
and disposed it off at one stroke - it is seen from the order of the Tribunal
that the finding of the first appellate authority to the effect that there was
no suppression of fact, has not been interfered with. If the original authority
had invoked the enhanced period of limitation on only one particular ground
viz., suppression of fact and the appellate authority had set aside that
finding, the larger period of limitation was not available to the Department
themselves in view of the fact that the Tribunal did not interfere with the
finding of the first appellate authority relating to the only basis on which
the enhanced period of limitation was taken recourse to by the Department - The
show cause notice was issued beyond the period of limitation – Assessee appeal
allowed
2015-VIL-353-KER
M/s DELTA COMMUNICATIONS Vs THE STATE OF KERALA
Kerala Value Added Tax Act –
Section 6(1)(c) – Transfer of right to use - Goods - Taxability of on rental
charges received for letting out the hoardings for outdoor marketing – Hoarding
as ‘goods’ - Whether structures which are permanently attached and fastened on
earth are immovable property, can such structures be considered as 'goods'
within the meaning Act - effective control of the hoarding during hire -
Transfer of Property – HELD - The structure involved in this case is concerned,
taking into account of the explanations of the learned counsel for the
petitioner, it is fastened to earth and is detachable easily and therefore, is
not an immovable property - so far as leasing out of hoardings in this case are
concerned, once it is let out by entering into an agreement or work order, the
owner of the goods ceases to have any control over the same - the absolute
control of the hoardings is transferred to the lessee by virtue of the work
order. Therefore, the control of the hoardings once it is passed for erecting
advertising materials is left with the lessee absolutely for the period
specified and therefore there is transfer of right to use as provided under
Section 6(1)(c) of the Act - after the introduction of sub-article 29A and
clause (d) of Article 366, there is a clear power conferred on the Legislature
to impose tax on the transfer of right to use any goods for any purpose - So
the duty casted on the authority was to find out whether there is a transfer of
right by an assessee to a third person for the use of goods and once it is
found, the assessee is liable to pay tax - Revision filed by the assessee fails
and accordingly same is dismissed
2015-VIL-351-ALH-CE
COMMISSIONER OF CENTRAL
EXCISE, MEERUT Vs M/s VODAFONE ESSAR SOUTH LTD
Tribunal – Extension of stay - Whether the Tribunal is
vested with the power to extend the stay order beyond the specified maximum
time limit prescribed in Section 35-C(2-A) of the Central Excise Act – HELD -
Section 35C (2A) of the Act as amended in 2002 and 2013 makes it apparently
clear that the Tribunal was mandated to hear every appeal within a period of
three years 'where it is possible to do so’ – This indicates that though a
mandate was given to decide the appeal within three years, it was not a
mandatory provision, but, only a directory provision - Thus, the first, second
and third proviso directing the Tribunal to decide the appeal within 180 days
in the first instance or within 365 days in the second instance, failing which,
the stay order would stand vacated also has to be read as directory in nature.
If the main provision cannot be treated as mandatory, the first, second and
third proviso also cannot be treated as mandatory – Therefore, if the Tribunal
would not dispose of the appeal within 365 days under the first, second and
third proviso of Section 35C (2A) of the Act which was not attributable to the
assessee, it would not mean that the Tribunal was divested with its incidental
powers in not extending the interim order. The three proviso cannot be read as
mandatory in nature - strict interpretation of the three provisos to section
35C (2A) of the Act would defeat justice and would lead to a miscarriage of
justice - The omission of the first, second and third proviso w.e.f. 6.8.2014 would mean that the appeal filed by an
assessee needs to be disposed of within a period of three years and stay orders
which have been passed by the Tribunal would continue to remain in force unless
it is limited by the Tribunal itself - The contention that the appeals filed
before 6.8.2014 would continue to be governed by first, second and third
proviso to Section 35C(2A) of the Act in view of the second proviso contained
in Section 35F of the Act which came into effect from 6.8.2014 is patently
erroneous – Revenue appeals dismissed
2015-VIL-450-CESTAT-DEL-ST
M/s RAIL TEL CORPORATION OF INDIA LTD Vs CCE (ADJ.)
NEW DELHI
Service Tax – Demand under
Leased circuit service and Business Auxiliary service – leasing of tower space
- Suppression of facts – Interest and penalty – HELD - Leased circuit service -
the dedicated dark fibre cable link was provided to a
subscriber by the assessee as a telegraph authority and therefore all the
requirements of Section 65(105))(zd) (according to
which the taxable service is ‘to subscriber by a telegraph in relation to a
leased circuit’) are clearly satisfied inasmuch as leased circuits were
provided by the appellant, whose is a telegraph authority, to a subscriber.
Thus the demand pertaining to leased circuit service is clearly sustainable on
merit - for such as assessee as the appellant, it could not have been a bona
fide belief on its part that the service rendered did not fall under leased
circuit service because there was no scope of any confusion or ambiguity in
that regard. Further, the appellant did not timely provide the information
sought and had to be issued repeated reminders - Appellant is guilty of
suppression of fact and therefore the extended period has rightly been invoked
and mandatory penalty is clearly imposable - Leasing of tower space does not
fit under any limb of the definition of Business Auxiliary Service. The
adjudicating authority’s observation that lease of tower space also promotes
the service provided by the cellular telephone operator is not based on any
sound logic or rationale. Further there is nothing in the Finance Act, 1994 to
even suggest that there was a transplant of any part of BAS into telecom
service with effect from 1.6.2007 which by implication means that the service
was not taxable under BAS prior to 1.6.2007. Thus, the demand confirmed under
Business Auxiliary Service on the amount received for lease of tower space on
its microwave towers to various cellular operators is not sustainable - Appeal partly allowed
2015-VIL-449-CESTAT-AHM-ST
M/s S B ENGINEERS Vs COMMISSIONER OF CENTRAL EXCISE
& CUSTOMS SERVICE TAX, VADODARA-II
Service Tax - Cenvat Credit
Rules, 2004 – Rule 6 - Whether appellant is required to pay an amount
equivalent to 8% or 6% with respect to exempted activities under taken by the
job worker which are exempted under Notification No. 8/2005 dated 01.03.2005 –
HELD - The appellant factory cannot be both a ‘manufacturer’ and a ‘service
provider’ at the same time in relation to a particular activity. It is settled
proposition in Central Excise matters that a job worker is a ‘manufacturer’ and
hence the appellant factory cannot be treated as a service provider rendering
exempted/non-taxable service for the manufacturing activity. Therefore, there
is no force in the Revenue’s contention that the appellant had rendered
exempted/non-taxable service - Issue no more res-integra
– Assessee appeal allowed
Central Excise Judgements: Please see attched list
Guest Article
Crackdown on E-Commerce
Model under Delhi VAT
rajOrder80
Rajasthan:RIPS-2014
specifying the plant and machinery for recycled fibre
Mizoram
Road permit for Government
purchase
27th of Aug
2015-VIL-356-KAR
M/s CARGOTEC INDIA PRIVATE LIMITED Vs STATE OF KARNATAKA
Karnataka Value Added Tax Act – re-assessment notice -
Ex-parte order - Non-reply of notice by the assessee - opportunity of personal
hearing - principle of natural justice – HELD - It is true that if a party does
not reply to the notice given by the Authority within the time specified in the
notice, the Authority concerned would be justified in passing an exparte order. However, while passing such order, the
Authority has to give reason why it is imposing tax or how the items would be
covered for payment of tax. It cannot be said that merely because no reply to
the notice has been given, the assessee would be liable to pay the tax, without
giving a finding as to whether tax is liable to be paid on the items subjected
to tax. Although not necessary, but the Authority could have given an
opportunity of personal hearing before passing the order - The order of the
Assessing Officer deserves to be set aside. Balancing the equities the
appellant shall deposit 30% of the total amount payable – Partly in favour of
assessee
2015-VIL-355-BOM
M/s KOTHARI INDUSTRIES Vs THE STATE OF MAHARASHTRA
Bombay Sales Tax Act, 1959 & Bombay Sales Tax
Rules, 1959 - Rule 31AA - Calculation of the cumulative quantum of benefits –
Rule 46A - Reduction of sale price for levy of tax – Sale price - Certificate
of Entitlement – Package Scheme of Incentives – Allowance of deduction as
provided in Rule 46A of the Bombay Rules while calculating the CQB – HELD - The
calculation of cumulative quantum of benefits shall be aggregate of the sums
set out in Rule 31AA(2)(a) to (e) and we are concerned with clause (e) of
sub-rule (2). That refers to a sum equal to the amount of tax which would have
been payable to Government on any sales of products manufactured by the said
dealer in the eligible unit and specified in the Eligibility Certificate
granted to him by the implementing agency. The Tribunal concluded that this
assessment and covered by clause (e) cannot be made in the case of the present
applicant simply because the applicant is not required to pay any tax to the
Government. The reason being if there is an exemption enjoyed by the applicant,
then, the sale price would not include the tax element. Thus, the conclusion
reached is that for the purposes of clause (e) of sub-rule (2), the requirement
would be a sum equal to the amount of tax which would have been payable to
Government on any sale of products manufactured by the said dealer in the
eligible unit and specified in the Eligibility Certificate granted to him by
the implementing agency if the said dealer was not holding the certificate of
entitlement - this assessment could not have been made as all the invoices
would indicate that the sale price was not to include the component of sales
tax. The tax element could not have been, therefore, forming a part of the
price and as depicted in the invoices. That is why and for that limited purpose
the language of Rule 46A has been taken assistance of. The Tribunal has
correctly come to the conclusion that the sale effected
by the dealer is not liable for payment of sales tax. Therefore, the
calculation of the CQB as made in this case is not required to be altered or
changed – Assessee appeal dismissed
2015-VIL-354-P&H
M/s B.K. STEELS Vs STATE OF PUNJAB AND ANR
Punjab Value Added Tax Act, 2005 – Assessee application
seeking condonation of delay of 907 days – Service of
order at branch address – HELD – Under Rule 71(1)(a)
of PVAT Rules, 2005 it was mandatory upon the Department to send the copy of
the order to appellant at the address given in its memorandum of appeal.
However, the order was sent at the Branch Office of the appellant, which as per
appellant was never received - In view of the above factual position, the
learned Tribunal has wrongly drawn presumption of service upon the appellant
under Section 27 of the General Clause Act, 1897 and the illustration (f) to
Section 114 of the Indian Evidence Act - It is well settled that a party should
not be condemned unheard and the case should not be rejected on technical
grounds, rather should be decided on merit unless delay is attributable to
gross negligence of a party - The application of the appellant filed before the
Tribunal seeking condonation of 907 days’ delay in
filing the appeal is hereby allowed and the aforesaid delay in filing the
appeal is condoned – Appeal allowed by remand
2015-VIL-357-P&H-CE
M/s JSL LIFESTYLE LIMITED Vs UNION OF INDIA AND OTHERS
Central Excise - Rebate claim – Limitation -
Notification No.19/2004 dated 06.09.2004 - Section 11-B of the CEA, 1944 - Rule
18 of the CER, 2002 - refund of the duty paid for the exported goods – Denial
of rebate on the ground of limitation - The petitioner exported certain goods
on payment of duty and filed the ARE-I Forms within 48 hours from the date of
clearance of the goods. The other documents were, however, admittedly, filed
more than a year thereafter - The adjudicating authority rejected the claim for
rebate on the ground that it was barred by limitation under Section 11-B. The
appellate authority also dismissed the claim on the same ground – HELD – Rule
18 of the Central Excise Rules, 2002, expressly provides that where any goods
are exported the Central Government may by notification grant a rebate of the
duty paid and that rebate shall be subject to such conditions or limitations,
if any, and fulfilment of such procedure as may be specified in the
notification. - It is held, therefore, that the petitioner’s claim for
refund would be governed by rule 18 of the Central Excise Rules, 2002 read with
the notification issued thereunder. The said notification
does not provide any period of limitation for a claim for rebate. The rejection
of the petitioner’s claim for rebate, therefore, is not well founded - The
impugned order of the Commissioner of Central Excise (Appeals) is quashed and
set aside. The application for rebate shall be processed and dealt with in
accordance with law on the basis that it is not barred by the period of
limitation prescribed in Section 11-B the Central Excise Act, 1944 – Assessee
petition allowed
2015-VIL-452-CESTAT-MUM-CE
HINDUSTAN ANTIBIOTICS LTD Vs COMMISSIONER
OF CENTRAL EXCISE, PUNE-I
Central Excise - Appellant is a GoI
undertaking manufacturing and trading of medicaments - In respect trading goods
the price is fixed by NPPA under DPCO - appellant is getting the goods
manufactured from a loan licencee unit located in
area where no such excise duty is payable. Hence according to the revenue, in
such cases appellant is deemed to have collected excise duty from their
customers and hence are liable to deposit the same under the provisions of
Section 11D of CEA, 1944 – HELD – Appellants are selling the goods at price
fixed by NPPA. Further they are purchasing the same goods from the manufacture
at the price fixed by NPPA with a discount of 12% or 26.5%. Prices are
composite one and there is no separate indication of excise duty in the
invoices either of appellant or loan licencee -
Appellant is not the manufacturer of the goods and has not paid any excise
duty. They are only trading and working with the profit on the discount
extended by the manufacturer on the price fixed by NPPA. We find strength in
the submission of the appellant that if at all there has to be any liability to
pay any amount under Section 11D it will be with the manufacturer of the goods
and not with them in the facts and circumstances of the case – Assessee appeal
allowed
2015-VIL-451-CESTAT-CHE-ST
M/s IMPERIAL COMMUNICATION ENTREPRENEURS (P) LTD Vs CCE, SALEM
Service Tax – Input service - appellant is providing
internet telecommunication service - CENVAT credit on the service tax paid on
internet services availed from the main service provider for obtaining band
width – HELD - the appellant’s claimed CENVAT credit on the service tax paid on
internet services availed by them from the main service provider for obtaining
band width and submitted that it is an input service for their output service.
Since the appellants are rendering service and paid service tax under internet
telecommunication service, they are eligible for input service credit on the
inputs and input services - the impugned order is set aside and the appeal is
allowed by way of remand to the adjudicating authority to consider the issue of
CENVAT credit on inputs and input service and also to re-determine the penalty –
Appeal allowed by remand
2015-VIL-354-AP-ST
COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX, HYDERABAD Vs
M/s TPSC (INDIA) PVT LTD
Service Tax – Stay and waiver of pre-deposit -
Deputation of employees from Japan to work in India – Demand under manpower
supply - Tribunal, vide the impugned order, waived the pre-deposit and granted
stay of recovery till disposal of the appeal. Challenging the same, the
Department filed the present appeal – HELD – The contention that the Tribunal
ought not to have granted absolute waiver and also stay of recovery without
imposing any condition, does not merit any consideration - The Tribunal had
taken into consideration of the fact that the issue with regard to similar
circumstances was already the subject matter of two decisions of the Tribunal
at Delhi. In that view of the matter, when the issue is squarely covered, there
would be no justification for directing a pre-deposit. Hence, no illegality or
infirmity in the impugned order – Revenue appeal dismissed
2015-VIL-453-CESTAT-DEL-ST
C.C.E., INDORE Vs M/s RUCHI SOYA INDUSTRIES LTD
Service Tax – Refund under port service – Export -
activities of handling, stevedoring, loading, unloading and tug hire and labour
arrangement – Revenue in appeal on the ground that the said activities do not
fall under Port Services and Commissioner (Appeals) was not legally correct in
permitting the refund merely because those activities were wrongly classified
by the service provider under Section 65 (105) (zn)
while paying service tax - Notification No. 41/2007-ST – HELD - If the service
provider has actually paid service tax under Section 65 (105) (zn), the said notification exempts the same by way of
refund if it is received by an exporter and used for export of goods. It is not
open to the service recipient to question the classification of the service
received by it as the issue of classification is only between the service
provider and the jurisdictional service tax authorities and so as per the said
Notification the condition is sufficiently fulfilled for granting the refund of
such service tax – Revenue appeal dismissed
mpNoti31
Madhya Pradessh:
Notification regarding Industrial Promotion Policy, 2014
West Bengal: Order under section 3 of the WBVAT Act,
2003 - LTU Unit - Jurisdiction for exercise of powers and list of dealer
West Bengal: Order under section 3 of the WBST
Act, 1994 - LTU Unit - Jurisdiction for exercise of powers and list of
dealer
28th of Aug
2015-VIL-360-MAD
CHENNAI PETROLEUM CORPORATION LTD Vs THE DEPUTY COMMISSIONER (CT)-III
(FAC)
Tamil Nadu Value Added Tax
Act, 2006 - writ petition seeking to direct the Joint Commissioner, LTU to
admit the revision petition filed under Section 54 of the Act – Input Tax
credit on the sale goods under Schedule I & II – HELD - The present writ
petition is in respect of the assessment period from April 2014 to October
2014, covered by the provisional assessment of the year 2014-15. Originally the
petitioner filed an appeal along with pre-deposit in time. The second
respondent ought to have taken into account the said
fact that the appellate jurisdiction was in time invoked. Similarly, the 3rd
respondent also failed to consider the fact that the petitioner with bonafide belief deposited 25% of the disputed tax, which is
not mandatory when the revision is an appropriate remedy. Hence, there is no
justifiable reason for the 3rd respondent to reject the revision petition - the
impugned orders are set aside and the revision petition filed by the petitioner
along with the stay application be entertained by the revisional
authority - pending consideration of the stay application by the revisional authority, there shall not be any recovery
proceedings against the petitioner – Petition allowed
2015-VIL-361-MAD
M/s RAJKUMAR IMPEX PRIVATE LIMITED Vs THE ASSISTANT COMMISSIONER (CT)
Tamil Nadu Value Added Tax Act, 2006 – Export sales
exemption - Submission of proof – violation of principles of natural justice –
HELD - in the impugned assessment order it is stated that the Petitioner has
not submitted any objections against the proposal of disallowing the claim of
exemption for export sales, which is contrary to the truth - According to the
petitioner, 95% of the sales are export sales and the Respondent ought to have
called for necessary documents in respect of the export sales and had the
petitioner was given an opportunity to produce all the required documents, the
Petitioner would have furnished the same, relating to export sales to prove
their claim for the year 2011-2012, but, however, such an opportunity was not
given to the Petitioner. This act of the Respondent is nothing but violation of
principles of natural justice. Hence, the Petitioner can be afforded an
opportunity, so as to produce all the required documents relating to export
sales - the impugned assessment order is set aside and the matter is remitted
back to the Respondent – Petition allowed
2015-VIL-359-DEL-ST
HINDUSTAN PETROLEUM CORPORATION LTD Vs COMMISSIONER OF CENTRAL EXCISE,
DELHI-III
Service tax - Business Auxiliary service - waiver of
the pre-deposit and stay of further proceedings - Demand of service tax -
Agreement between HPCL and Indraprastha Gas Ltd.
(‘IGL’) for distribution of Compressed Natural Gas (‘CNG’) through the HPCL
owned/leased retail outlet – Whether the activity amounts to providing Business
Auxiliary Services – HELD – Coordinate Bench of the CESTAT while interpreting
identical clauses of a similar agreement involving HPCL itself came to the
conclusion that HPCL was not providing Business Auxiliary Services to MGL in
carrying on the same activity, that final judgment itself constituted a prima
facie case in favour of HPCL - If the Principal Bench of the CESTAT felt that
the agreement between HPCL and IGL, identical to the agreement between HPCL and
MGL, called for a different interpretation, and that therefore the decision of
the Coordinate Bench of the same strength in BPCL v. CST, Mumbai required
reconsideration, then the appropriate course for the Principal Bench, CESTAT
was to refer the matter to a larger Bench of the CESTAT - In any event, at the
stage of considering an application for stay, the CESTAT, Principal Bench ought
to have proceeded on the basis that in light of the final judgment in BPCL v.
CST, Mumbai being favour of HPCL, it had a prima facie case - The issue is
pending consideration in the Supreme Court - the Court is of the view that the
CESTAT was not justified in declining to grant an unconditional stay in favour
of the Appellant, without requiring the making of any pre-deposit - the
impugned order of CESTAT is hereby set aside. There shall, during the pendency
of the appeal, be an unconditional stay of the order passed by the CCE,
Delhi-III, which is under challenge in the said appeal – Assessee appeal
allowed
2015-VIL-358-MAD-ST
COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, LTU Vs M/s MRF LTD
Service Tax - Cenvat credit
– GTA service – Eligibility to utilise of the Cenvat Credit for payment of
service tax on Goods Transport Agency services – Input / Output service –
Circular 345/4/2005-TRN dated 3.10.2005 - HELD - While Rule 2(l) and 2(p) cover
two classes of persons, the recipient of GTA services, by virtue of the
Explanation to Rule 2(p) of the CCR, as a provider of output service, is
entitled to all benefits that a person providing input service would be
entitled to in the matter of Cenvat credit adjustment. Thus, a reading of Rule
2(l) and 2(p) would show that they cover two different situations and though
their operations are totally different, yet, for the purpose of giving credit
to the Service Tax payable from the Cenvat credit available, the recipient is
also entitled to the same relief as a provider of the service – Following the
ruling in case of Cheran Spinners Ltd decided in
favour of assessee
2015-VIL-454-CESTAT-DEL-CE
C.C.E.& S.T., LUDHIANA Vs KHANNA PAPER
MILLS LTD
Central Excise - Clearance from EOU to DTA - Whether
the assessee is entitled to Cenvat credit of Education cess and Secondary &
Higher Education cess when inputs are supplied by 100% EOU, paying duty under
Notification No. 23/2003-CE dated 31.3.2003 – HEDL - As per proviso to Section
3(1) of CEA, 1944, if the goods are manufactured by an EOU and brought to any
place in India, the excise duty levied shall be equal to the aggregate of the
duties of customs which would be leviable under the
Customs Act, 1962 on like goods produced or manufactured outside India if
imported to India - Thus this Additional Duty of Customs (CVD) includes within
it, Education Cess and SHE cess - When goods have been removed from EOU to DTA,
availing the exemption under Sr. No. 2 of Notification No. 23/2003 there is a
restriction carved out by the formula provided in the proviso to Rule 3(7)(a).
This restriction is to prohibit taking credit on the BCD component. But credit
is available on the Additional Customs duty (CVD) component. As already stated,
Additional Customs duty includes excise duty as well as cess on this excise
duty. Therefore the respondents are entitled to take credit of an amount
equivalent to the Additional Customs Duty inclusive of excise duty and cess
thereon – The legislature by adding the second proviso to Rule 3(7)(a) w.e.f. 7.09.2009 to suppress the mischief, clear the
confusion and resolve the issue. Therefore there is no reason not to allow the
Cenvat credit on the Education Cess and SHE Cess
component, forming part of CVD - Revenue appeal dismissed
2015-VIL-455-CESTAT-DEL-CE
M/s MARUTI SUZUKI INDIA LTD Vs C.C.E. DELHI-III
Central Excise – Cenvat credit - Availment
of entire Cenvat Credit on common input of two units by one unit - Appellant is
having two units (Gurgaon & Manesar),
it availed certain input services which are common for both the units and
availed entire Cenvat Credit in Gurgaon unit - The
Revenue contention that as certain input services pertains to Manesar unit, therefore, appellant are not entitled to take
entire Cenvat Credit on these common input services – Denial Cenvat Credit to Gurgaon unit on the ground that the capital goods were not
being transferred to Gurgaon unit on merger of Maruti Suzuki India Ltd. with Maruti
Udyog Ltd – HELD - There was no restriction for
utilization of such credit without allocating proportionately to various units
- there is no ban on availment of Cenvat Credit of
one unit if input service pertains to both the units prior to 2012 - Appellant
is not required to reverse Cenvat Credit – Cenvat Credit on account of merger
of Maruti Suzuki India Ltd. with Maruti
Udyog Ltd - Since, both the units have been merged,
therefore, appellant is entitled to transfer Cenvat Credit lying unutilized in
the Cenvat Credit account of the unit merged with the main unit. Therefore,
appellant is entitled to take Cenvat Credit in terms of Rule 10 of the Cenvat
Credit Rules 2004 – No merit in impugned order, same is set aside – Assessee
appeal allowed
Guest Column
No Service tax on free Pick-up/Home delivery of food,
being ‘Sale’ in nature – Chandigarh Commissionerate
bihNoti199
Bihar: Amendment in schedule V - Addittion
of Borlaug Institute for South Asia (BISA)
edbST, edbCE & edbCus
CBEC: 'Ease of Doing Business' - List of
Notification/Circular under Ease of Doing Business [Service Tax, Central Excise
& Customs]
CBEC: Terms of Reference of GST - Policy Wing in CBEC
and the Directorate of GST [Download link | File fize
843 Kb]
30th of Aug
chndNoti2576
Chandigarh: The Central Sales Tax (Punjab) (First Amendment) Rules, 2015 [as applicable
to Union Territory, Chandigarh] - Amendment in Rule 7
harNoti21
Haryana: Date of effect of
notification No.18/ST-1/H.A.6/2003/S.59/2015, dated the 15th July, 2015
[Increase in rate of tax on Diesel]
goaNoti122
Goa: Extension in date for
VAT/CST Returns filing for Quarter ending 30.06.2015
rajNoti83
Rajasthan: Amendment in
Notification No F.12(161)FD/TAX/09-1 dated 02-06-2014
regarding exemption from tax the sale to or purchase of HSD by Indian
Railways
31st of Aug
2015-VIL-363-DEL
SWASTIK INDUSTRIAL POWERLINE LTD Vs COMMISSIONER TRADE & TAXES,
DELHI
Delhi Value Added Tax Act, 2004 – Section 2(o) -
Taxable turnover - Delhi Sales Tax Rules, 1975 – Deduction – Deduction in
respect of sales made dealers against ST-1 Forms – Denial of deduction on the
ground that assessee had been unable to produce the purchasing dealers and it
had not established the transfer of property in goods – HELD – The reason for
denial is not sustainable in light of the fact that the Assessee had produced
documents for the sale of goods and the duly receipted invoices - The AA was
unduly influenced by the ST-2 Account filed by the purchasing dealer and the
fact that the purchasing dealers were not found in existence at the time of
making the remand assessment order - the originals of ST-1 Forms in the name of
the Assessee had been produced and the Assessee could not be penalised for any
contrary return filed by the purchasing dealers. As regards the existence of
the purchasing dealers is concerned, there is no dispute that the said dealers
were in existence when the transactions had been effected – The selling dealer
would have no duty to examine the correctness of the Form ST-1 submitted; the
selling dealer would also not be responsible for any misapplication of goods by
the purchasing dealer or failure on the part of the purchasing dealer to
maintain the correct records. Clearly, the Assessee could not be held
responsible for any discrepancy in the ST-2 Account furnished by the purchasing
dealer to the Sales Tax Authorities - the Assessee was not obliged to make any
further enquiries or compliance with regard to the goods sold to the purchasing
dealers - Under Rule 7(1), the Assessee is required to produce only the copies
of the relevant cash memos or bills and a declaration in Form ST-1 duly filled
and signed by the purchasing dealers to claim deduction from its taxable
turnover. These conditions had been met by the Assessee - The remand assessment
order to the extent that it denies the Assessee deduction and raises a
consequential demand, is set aside – Assessee appeal allowed
2015-VIL-364-BOM
M/s THE PHARMACEUTICALS PRODUCTS OF INDIA LTD Vs THE MAHARASHTRA SALES
TAX TRIBUNAL
Maharashtra Value Added Tax Act, 2002 – Section 55 –
Dismissal of appeal by Tribunal – Ground of dismissal - for want of prosecution
or merit – Assessment – Production of records – books of accounts - loss of
records in the flood of 2005 – partial submission of records – HELD – The
Assessing Officer verified this issue and concluded that the assessee has not
submitted any proof of destruction of books in the flood of 2005. It is not as
if that flood of 2005 is a disputed fact, but what is destroyed therein and
which record belonging to the dealer or which file, is the real issue. That has
not been spelt out and that is why the explanation was not found to be
acceptable. If it was not a bonafide explanation and
the matter was not concluded by the First Appellate Authority for want of
appearance or for want of prosecution of the appeal but on merits, then, this
cannot be said to be an order dismissing the appeal for want of prosecution.
The petitioner – appellant has not produced any evidence which can substantiate
his claim of destruction of books of accounts. The Assessing Officer,
therefore, applied best judgment test in the assessment order and concluded the
assessment. It is such exercise of the Assessing Officer which has been upheld.
That additionally the petitioner did not evince interest and therefore,
remained absent at the hearing or his representative sought time and by raising
a plea of absence of inspection of record, does not mean that the order
dismisses the appeal for want of prosecution - Once the dismissal of the appeal
by the Appellate Authority is not for want of prosecution or for want of
attendance but by dealing with the merits of the matter including the claim
that there are no records available because of destruction by floods, then, the
principle in Apex Court judgement in Balaji Steel
Re-Rolling Mills Vs. Commissioner of CE&C can have no application – Writ
petition dismissed
2015-VIL-457-CESTAT-MUM-CE
MAHINDRA & MAHINDRA LTD Vs COMMISSIONER OF CENTRAL EXCISE, NAGPUR
Central Excise - Cenvat Credit Rules - Rule 6 -
dutiable as well as exempted goods – Exemption to Tractors – The appellant was
not in a position to immediately segregate the records of inputs which go into
the production of exempted goods and which go into the dutiable goods – Maintenance
of separate accounts - showcause notice demanding an
amount equal to 8/10% of the total price – HELD – In the present case, the
tractors became exempt w.e.f. 9.7.2004. From that
date onwards assessee followed the procedure as envisaged under Rule 6(3)(b). They followed the said procedure as it was practically
not possible by them to immediately segregate their accounting system in
respect of inputs going into the dutiable products and exempted products. After
working out the details, they put a system in place and w.e.f.
1.9.2004 they switched over to the scheme as envisaged under Rule 6(2) above.
There is no provision in the Cenvat Credit Rules or any other provision in the
law that before switching over to Rule 6(2), a manufacturer is required to
reverse the credit of inputs available in its stores, work in progress and in
the finished goods on that date and only after reversing the credit the
manufacturer can switch over to Rule 6(2). In the absence of any such
prohibition, we are unable to appreciate Revenue’s contention that the
appellant is required to pay an amount under Rule 6(3)(b) till 24.9.2004 i.e.
the date when they reversed the credit attributable to inputs in its stores,
work in progress and on the finished goods as on 31.8.2004 - Assessee appeal
allowed
2015-VIL-456-CESTAT-AHM-CE
M/s BELL CERAMICS LIMITED Vs C.C.E. & S.T.-VADODARA-II
Central Excise – Admissibility of CENVAT credit with
respect to duty paid Coated Pipes (capital goods) used as replacements in a
pipeline used for transportation of natural gas – Denial of credit on the
grounds that use of the pipes is not in the factory of manufacture - use of
pipes in the manufacture of gas pipeline from the unit of the appellant to the
supply point of GAIL – HELD – In the case of Torrent Pharmaceuticals Ltd vs CCE&ST, Ahmedabad-III it
was that held the credit of pipes from bringing water from a far of source to
the factory for use in or relation to the manufacture of finished excisable
goods as admissible - The facts of this case are similar to the facts involved
in the Torrent case laws – Hence, following the ratio of said caselaw the assessee appeal is allowed
2015-VIL-458-CESTAT-MUM-ST
BANDEDKAR BROTHERS P LTD Vs COMMISSIONER OF CENTRAL EXCISE, GOA
Service Tax – Export of services – Refund claim –
Denial of refund on the ground that the goods were exported in December 2007
and refund claim was filed on 23.05.2008 which is beyond the period of ‘sixty
days’ as stated in the Notification No. 41/2007-ST dated 06.10.2007 - revised
limitation period as introduced by Notification No.32/2008 dated 18.11.2008 –
Retrospective effect of substitution of ‘60 days’ by the words ‘six months’ in
Notification 32/2008-ST for increasing the period of filing the refund claim
from ‘60 days’ to ‘6 months’ – HELD - The issue of whether the benefit of
filing refund claim within ‘six months’ from the date of last quarter was
considered by the Tribunal in the case of Essar Steel
– The Notification was enlarged by the Board itself by issue of a circular
clarifying that the refund claim for the quarter ending June 2008 can be filed upto 31 December 2008 – The word ‘substitution’ has to be
treated as existing in the original notification – The impugned order is
incorrect and is liable to be set aside – Assessee appeal allowed
2015-VIL-459-CESTAT-DEL-ST
CCE, LUCKNOW Vs M/s P.C. CONSTRUCTION
Service Tax - Assessee providing services of Erection,
Commissioning or Installation Service (ECIS) to M/s BSNL in the form of
erection of towers for which certain items are supplied free of charge by BSNL
and certain other items are used by the appellants - what should be the
classification of the activities undertaken by the appellants, whether the same
should be considered Erection, Commissioning or Installation Service (ECIS) or
as works contract service. Period of dispute in all these appeals is 1/5/2006
to 17/3/2008 – HELD - We do not agree with the argument of the appellant that
no service tax was attracted on the activities done by them prior to 01/6/2007
as the works contract service was carved out of Services of CICS, COCS and ECIS
which were subject to service tax even prior to 01/6/2007. Works contract
service was specifically born w.e.f. 01/6/2007. As
per the provisions contained in Section 66F (2) of the Finance Act, 1994 a specific
heading has to be the appropriate classification of a service. The activities
of ‘works contract’ undertaken by the appellant is therefore classifiable under
‘works contract service’ w.e.f. 01/6/2007. The same
service even if provided under a works contract before 01/6/2007, will be
classifiable under Erection, Commissioning or Installation Service (ECIS). A
similar view was expressed by five Member Larger Bench in the
case of Larsen & Toubro Ltd. vs. CST, Delhi - Extended period -
there could be a bonafide belief on the part of the
appellant that their activities do not attract service tax before 01/6/2007.
Accordingly, it is held that extended period is not invokable
in these appeals - As appellants had a bonafide
belief that no service tax was payable by them before 01/6/2007, as ‘works
contract service’, there is a reasonable cause for non-payment of tax and
benefit of Section 80 of the Finance Act, 1994 is admissible. Accordingly, it
is held that no penalites under Section 76, 77 and 78
are imposable upon the appellants in these proceedings - In the absence of any
demands under ‘Works Contract Service’ for the period after 01/6/2007, appeals
filed by the appellants to that extent are required to be allowed – Appeals
filed by the Revenue are dismissed
Guest Article
Value Addition in VAT audits
Guest Article
No denial of Cenvat credit availed on invoices issued
in the name of unregistered premises
Rajasthan Booklet [Download
link | File size 390Kb]
Important Dealer Circular and information Booklet [As
compiled by Commercial Taxes Department, Rajasthan]
wbCir16
West Bengal: Introduction of Electronic Module for
Anti-evasion exercise
© VATinfoline Multimedia