SUMMARY FOR THE MONTH OF JANUARY, 2015
List of updates in the month of January
2nd of Jan
2015-01-VIL-DEL
ANAND DECORS Vs COMMISSIONER OF TRADE AND TAXES, NEW DELHI
Delhi Value Added Tax Act, 2004 - Whether Tribunal is right in holding that the sale of motor cars or other capital assets are not exempt under Section 6(3) of the Act – Interpretation of terms ‘Business’, ‘Capital goods’, ‘turnover’, ‘sale’ – Input tax credit - HELD - The effect of section 9(2) would be that no credit would be granted to a dealer like the appellants on the VAT paid on the purchase of motor vehicles as they were not dealers trading in motor vehicles. Thus, the motor vehicle would be a capital good as defined in Section 2(f) and purchase thereof would form part of the business, but input tax credit of VAT paid would not be available - When input tax credit is granted in respect of capital goods under section 9(9), consequences emanate and ensue on the sale of the said capital goods. But section 9(9) of the DVAT Act is not applicable and appellant dealers were/are not entitled to input tax credit on motor vehicles. Once this is clear, we can appreciate the legislative mandate in granting exemption in respect of sale price paid in respect of capital goods provided the conditions mentioned section 6(3) of the DVAT Act are satisfied. Therefore, the requirements; the capital goods should have been used by the dealer; that the capital goods should have been used for the purposes of business of the assessee and the said business should not be restricted or exclusively relating to non-taxable goods and the assessee should not have taken or granted tax credit on the capital goods - The Legislature has deliberately used the words “directly or indirectly” to reflect the wider meaning which they wanted to give to the expression ‘capital goods’ - Scope of the term ‘plant’ - The word ‘plant’ has not been defined in the DVAT Act and in ordinary sense it includes whatever apparatus is used by a business man for carrying on his business but not his stock-in-trade which he buys or makes for sale - The word ‘plant’ or ‘machinery’ is not restricted only to mechanical processes or apparatus – Plant will include any article or object fixed or movable, live or dead, used by a businessman for carrying on his business and it is not necessarily confined to an apparatus which is used for mechanical operations or processes or is employed in mechanical or industrial business. However, in order to qualify as plant, the article must have some degree of durability - In view of the accepted and admitted facts, Section 6(3) of the Act would be applicable and the benefit cannot be denied to – Assessee appeal allowed
2015-02-VIL-GUJ-ST
COMMISSIONER CENTRAL EXCISE AND CUSTOMS Vs PANCHMAHAL STEEL LTD
Service Tax – Cenvat Credit - Goods Transport Agency - Payment of service tax from the cenvat account – HELD - Rule 3 of the Cenvat Credit Rules, 2004 pertains to Cenvat credit. Sub-rule (1) thereof allows the manufacturer or purchaser of final products or provider of output service to take credit of Cenvat of various duties specified therein. Sub-rule (4) of Rule 3 of the said Rules provides that the Cenvat credit may be utilized for payment of various duties specified in clauses (a) to (e) thereof; clause (e) pertains to ‘service tax on any output service’. A combined reading of these statutory provisions would, therefore, establish that though the assessee was liable to pay service tax on G.T.A. Service, it could have utilized Cenvat credit for the purpose of paying such duty – Revenue appeal dismissed
2015-VIL-01-CESTAT-AHM-ST
M/s TOPS SECURITY LIMITED Vs COMMISSIONER OF CENTRAL EXCISE & S.T., VAPI
Service Tax – Discharge of service tax - Whether the service tax payment made by the Mumbai unit could be considered as due discharge of service tax for Silvassa Unit – Interest and Penalty - HELD - It is observed from the case records that some excess payment of service tax has been paid by the appellant’s Mumbai unit but whether that excess payment was with respect to the appellant’s unit at Silvassa is not clear - A copy of challan has been furnished by the appellant which gives the assessee code number and address of appellants Mumbai office. There is no indication on the challan that this amount is paid with respect to appellant’s Silvassa unit. In the absence of any such co-relation, it can not be said that appellant has discharged the service tax liability of Silvassa unit at their Mumbai unit/ office. Adjudicating authority has correctly confirmed the service tax liability along with interest. Appellant should discharge this liability and may approach the jurisdictional service tax authorities at Mumbai for refund/ credit of excess service tax if any paid at Mumbai – Penalty - Reasonable belief - Case is fit for invocation of Section 80 to hold that penalties are not imposable upon the appellant under Section 76 and 78 of the Finance Act, 1994, even if extended period is applicable in these proceedings – Appeal partly allowed
2015-VIL-01-CESTAT-AHM-CE
M/s TATA CHEMICALS LTD Vs CCE, RAJKOT
Central Excise Act 1944 – Refund – Interest – Eligibility to interest under Section 11BB of the CEA 1944, on the sanctioned and paid refund claim consequent to Tribunal order – Period of refund September 1997 to December 1999 – HELD - In view of the above law laid down by the Hon'ble Apex Court in Ranbaxy Laboratories Ltd and the provisions of Section 11BB, there is no provision under Section 11BB of the Central Excise Act 1944 that relevant date for determining the rate of interest will be postponed in any eventuality. As per these provisions, interest payment accrues from the expiry of three months from the date of refund applications made under Section 11B(1) of the Act – Assessee appeal allowed
ceNoti01
Central Excise: Increase the Basic Excise Duty on petrol (both branded as well as unbranded) and diesel (branded as well as unbranded)
hpNoti23
Himachal Pradesh: amendment in SCHEDULE ‘D’ - Increase in rate of tax on Motor-spirit (Petrol including Aviation Turbine Fuel and Diesel)
punPN010115
Punjab: Department to accept the monthly returns in Form VAT-16 for the Month of January, 2015 to be filed in February, 2015 and onwards online only and no return in Form VAT-16 will be accepted in physical format
FCP0201
FROM THE CORRIDOR OF POWER - Updates from various Union Ministries, PMO & Cabinet
3rd of Jan
2015-05-VIL-KER
M/s NILKAMAL PLASTICS LTD Vs THE ASSISTANT COMMISSIONER-I, COMMERCIAL TAXES
Kerala General Sales Tax Act, 1963 – Sales under Brand name – Use of Trade mark – Penalty under Section 45A on the ground that assessee failed to keep and disclose true and correct accounts for the said assessment year and had also tried to evade payment of tax by claiming exemption and failing to keep true and complete accounts - HELD - The liability to pay tax on the goods sold under the brand name will rest, has been the subject matter of litigation ever since the introduction of Section 5(2) in the KGST Act with effect from 1998. The judgments of this Court on the issue, span the period from 1998 to 2013 and even against the judgment in the petitioner's case, a Civil Appeal is stated to be pending before the Supreme Court. In the light of this fact what is to be examined is whether the petitioner could be said to have possessed the necessary mens rea for the purposes of attracting the provisions of Section 45A of the KGST Act proposing the penalty for the assessment year 2003-04. On a consideration of the facts in this case, I am of the view that the petitioner was justified in harbouring a bona fide belief that he would not be treated as the brand name holder in a transaction where he had purchased branded goods from another person, who could also have claimed to be a brand name holder for the purposes of Section 5(2) of the KGST Act – A mere claim for exemption by an assessee, cannot, be treated at par with a suppression of turnover, for the purposes of attracting the penal provisions under the KGST Act. Neither will the mere claim for exemption make the return an incorrect or untrue return for the purposes of attracting the penal provisions under the KGST Act. In an assessment proceeding that has to follow the filing of a return by an assessee, it is always open to the Assessing authority to consider the claim for exemption made by an assessee and either accept it or reject it for valid reasons. In that exercise, the Assessing authority examines a claim for exemption preferred by an assessee on merits, as part of a procedure that is contemplated in the statutory scheme of assessment. A mere claim for exemption cannot, therefore, be viewed as an event that would attract the penal provisions under the KGST Act. Thus, in the instant case, I find that while the petitioner had disclosed the entire turnover of sales of moulded plastic furniture in its returns, he was also justified in claiming an exemption taking into account the position in law which, at the time of filing of the return, was in a state of flux. The findings of the order that, by claiming exemption, the assessee had tried to evade payment of tax and had also failed to keep true and complete accounts, does not appeal to me as reasonable on the facts of the instant case - Assessee is not liable to any amount by way of penalty under Section 45A of the KGST Act for the assessment year 2003-04 – Appeal allowed
2015-03-VIL-MAD-CE
COMMISSIONER OF CENTRAL EXCISE Vs M/s PEPSICO INDIA HOLDINGS LTD
Central Excise Act - Dutiability of Sugar syrup - Intermediate product – Test of Marketability – Tribunal upheld the issue relating to the merits of the case that the intermediate product is marketable, but on the ground of limitation, it is held in favour of the assessee – Revenue in appeal – HELD - We find that there is substantial merit in the reasoning of the Tribunal and there is no case of suppression of fact for invoking the extended period of limitation under proviso to Section 11A(1) of the Act. The issue relating to limitation is distinct and separate and there cannot be a demand if there is a clear finding that there is no case of suppression falling under proviso to Section 11A(1) – Tribunal order upheld – Revenue appeal dismissed
2015-04-VIL-P&H-CE
RAJESH KUMAR GUPTA Vs COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH
CESTAT - Whether Tribunal is empowered while exercising power under the CEA, 1944 to set a side an ex-parte order - Tribunal allowed the appeal filed by the revenue by recording that no-one is present on behalf of the appellant - The appellant's application for recalling of the ex-parte order was dismissed as not maintainable by holding that the application is for review and as no ground is made out for review – Assessee in appeal – HELD - A perusal of order allowing the appeal against the appellant reveals that counsel for the appellant was not present. The Tribunal instead of passing an order initiating ex-parte proceedings, chose to forthwith decide the appeal and set aside the order passed in favour of the appellant. While appreciating the endeavour of the Tribunal to dispose of appeals expeditiously, it needs to be emphasised that interest of justice should not be jeopardised and that Courts and Tribunals are respected for their ability to adjudicate matters on merits. A perusal of the application for recalling the ex-parte order reveals that adequate explanation was furnished for failure of the counsel to put in appearance. This apart, negligence on the part of a counsel should not visit a party with consequences that involve monetary liability. We are, therefore, satisfied that the impugned orders are contrary to law - Impugned orders are set aside and matter remitted to Tribunal
2015-VIL-03-CESTAT-CHE-ST
COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, PONDICHERRY Vs MCV & CO.
Service Tax – Demand on the basis of statement made by service receive – Appellant is service provider to Neyveli Lignite Corporation Ltd (NLC) - HELD - Demand of service tax was raised on the basis of statements of the NLC. There is no dispute that the assessees rendered various services at the premises of NLC and received the amount as per the statement of NLC. The dispute relates to that the Revenue had not specifically mentioned the portion of the amount received by the assessees from M/s.NLC for rendering particular service. there is no dispute that the assessees rendered various taxable services at the premises of NLC. It is a fact that the Assessees had obtained service tax registration for the services rendered by them to NLC. The demand of tax is for the period prior to registration. Hence, it is the duty of the assessees to explain the activities in respect of the amounts in question received by them from NLC as they had entered into contract with the NLC for rendering services of various nature. The learned advocates submitted that on classification of the services, the onus always lies on the department. In our opinion, while the Revenue placed the statement of NLC showing payment details received by the assessees from NLC in respect of the various services rendered by them and this fact was not disputed by the Assessees and therefore, it would be sufficient for discharging the onus by the Revenue. So, it is shifted on the Assessee to explain the amounts in question in respect of the rendering of services – Matter remitted
odiNoti11
Odisha: Draft of Odisha Entry Tax (Amendment) Rules, 2014
puduNotiGO50 & PuduNotiGO51
Puducherry: Regarding increase in rate of tax on Aviation Turbine Fuel
rajOrder168
Rajasthan: Regarding fixing of monetary limit for filing of appeal in Rajasthan Tax Board and Rajasthan High Court by Commercial Tax Dept
chhgNoti86
Chhattisgarh: Time extension for disposal of assessment cases of 2011-12
chhgNoti87
Chhattisgarh: Extension for submission of form-18 of the year 2011-12 and 2012-13-upto 31-03-2015
mpNoti65
Madhya Pradesh: Extension in the date for completion of Assessment and Reassessment proceedings
delNoti670
Delhi: Amendment in Sixth Schedule - Regarding Embassy of Republic of Latvia
6th of Jan
2015-VIL-08-AP
M/s KRISHNAPATNAM PORT COMPANY LTD Vs THE GOVT. OF ANDHRA PRADESH
Andhra Pradesh Value Added Tax Act, 2005 – Works Contract – TDS - Order directing assessee to remit the tax deducted at source along with interest in terms of Section 22(2) read with Section 22(4) of the Act – The petitioner had entrusted the work to M/s. Navayuga Engineering Company Limited (NECL) on engineering, procurement and construction (EPC) basis - HELD - On the AP VAT Act coming into force, petitioner was no longer entitled to claim exemption from tax, as no such power to grant exemption is available to the Government under the Act; the only benefit which KPCL was entitled to under the Act, was for refund of the tax under Section 15(1) of the Act, that too on a notification being issued by the Government in this regard; and the doctrine of promissory estoppel or legitimate expectation could not be invoked to implement a contractual provision which is contrary to law – As NECL was liable to pay tax under the AP VAT Act, for execution of the works contract of construction of the Krishnapatnam Port, KPCL was statutorily obligated, under Section 22(3) of the APVAT Act, to deduct tax at source from the running account bills of NECL, and remit the deducted tax amount to the Government. The fact that NECL could seek refund of the tax paid, in view of G.O.Ms. No.609 dated 29.05.2006, did not absolve KPCL of their statutory obligation to deduct tax at source. Even on a notification being issued under Section 15(1) of the AP VAT Act, the contractee is statutorily obligated, under Section 22(3) thereof, to deduct tax at source from the running account bills of the contractor, and the contractor is entitled, thereafter, to claim refund. If a statute has conferred a power to do an act, and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any manner other than the one prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted - Doctrine of promissory estoppel and legitimate expectation - KPCL/NECL cannot claim a legitimate expectation to be continued to be exempt from payment of sales tax, as the revised concession agreement itself provides for a change of law, and the steps required to be taken by the parties to the agreement in this regard. As grant of exemption is contrary to law (ie the A.P.VAT Act), KPCL cannot claim to have a legitimate expectation that GoAP would continue to grant it exemption - False statements on oath in the writ affidavit and the reply affidavit - The petitioner has not only suppressed relevant facts regarding their having deducted tax at source from the running account bills of NECL, they have made false statements on oath before this Court that there is no deduction of tax at source from NECL. They have, by resort to such dishonest means, secured interim stay of all further proceedings, and have thereby avoided remitting the tax deducted at source, from the running account bills of NECL, to the Government. The undeserved benefit and advantage obtained by KPCL, by abusing the judicial process, must be neutralized - As petitioners have suppressed facts, made false statements on oath, and have thereby abused the process of Court, KPCL shall pay exemplary costs of Rs.75,000/- to the Commissioner, Commercial Taxes - Assessee Writ Petition fails and is, accordingly, dismissed
2015-07-VIL-BOM-CE
THE COMMISSIONER OF CENTRAL EXCISE Vs M/s JUBILANT ORGANOSYS LTD
Central Excise – Export of goods – Rebate claim – Issue is whether the goods which have been removed from the warehouse have indeed been exported or not – HELD - After referring to finding in the order-in-original, the Appellate Authority independently scrutinised each of the ARE1 numbers and annexed to the Appeal paper book. The Jurisdictional Superintendent got the duty payment verified from the Originating Range Superintendent. Thus, both were satisfied about the identity of the goods claimed under the respective ARE1. Merely because there are no identification marks and batch numbers does not mean that the goods were not identical. If the goods involved are “controlled substance” under the Narcotic Drugs and Psychotropic Substances Act, 1985 and subject to the Control Order framed thereunder, then, the requisite details with regard to compliance of that Control Order have also been referred to. The copies of the consignment notes in relation to the goods were submitted to the Narcotics Control Bureau and the Central Bureau of Narcotics. Thus, there is complete material to establish the identity of the goods. Meaning thereby, there is no distinction or difference noted in the goods cleared from the warehouse and forwarded for onward export – All the statutory requirements emerging from Rule 18 of the Central Excise Rules 2002 are satisfied – Revenue petition dismissed
2015-VIL-05-CESTAT-AHM-CE
M/s BANCO PRODUCTS INDIA LIMITED Vs COMMISSIONER OF CENTRAL EXCISE & S.T., VADODARA
Central Excise – Pre-deposit - CENVAT credit on Pest Control Services in the registered premises – Demand - pre-deposit order includes interest and penalties – HELD - As the case is arguable one asking for more than 100% deposit of the duty involved was highly excessive - Deposit of 10% made by the appellant at the time of filing this appeal is considered as sufficient pre-deposit for hearing the issue on merits - Order passed by the first appellate authority is set-aside and matter is remanded back to the first appellate authority
2015-VIL-04-CESTAT-MUM-ST
COMMISSIONER OF SERVICE TAX, MUMBAI Vs RELIANCE INFOCOMM LTD
Service Tax - Telephone connection service - Taxable service - Valuation – Inclusion of the value of ‘club membership’ and ‘club privilege’ charges in the value of service relating to telephone connection - The respondent appointed M/s Reliance Industries Ltd as an agent to market the TRAI approved Tariff Plans with respect to telephone connections services provided by it by means of various schemes floated by the agent in this regard – HELD - In the present case, under a single contract the services to be provided by the respondent have been sold along with the products and services of the agents. The value of the services of the respondent on the one hand and the value of the services and the goods sold by the agents on the other hand are distinguishable. Service tax has been paid on the value of the services of the respondent. The value of the services of the agents and the value of the goods supplied is also distinctly discernible from the transaction. The agents have paid sale tax on the value declared by them in relation to the supply of goods. The remaining amounts are either for collection charges for financing of the scheme or for the privileges or services provided to the members of the DAP Club. In such a scenario, it is not correct to say that the transactions under which he agents sold the Tariff Plans along with their own goods and services cannot be vivisected and the entire value of such goods and services be added to the value of the services of the respondent - From the above said observation, which are similar to the observation made by the adjudicating authority, in the impugned order we do not find that any infirmity with the same. Therefore, we do not want to interfere with the impugned order to the findings of the adjudicating authority. Accordingly we hold that respondent are not liable to include the value of club membership and club privilege charges in the taxable service relating to telephone connection service - Inclusion of value of telephone instrument - Valuation – HELD - The services relating to providing of the service of telephone connection is not only a transaction for providing a service but also involves sale of goods - The allegation is that the handset is so designed that without it the service provided by the respondent could not have been be availed by their subscribers. The value of the telephone handset is discernable in this case and the sale tax has also been levied on such transactions. Inadequacy of the value on which the sale tax has been imposed cannot be the ground for inclusion of the value of goods in the value of the service - Penalty on account of due service tax collected from the subscriber on fixed wireless service by way of adjustment from the security deposits – HELD - As entire amount of service tax and interest has been paid by the respondent before issuance of the show cause notice on pointing out by the revenue, the penalty are not imposable - Revenue appeal dismissed
2015-06-VIL-ALH-ST
VANDANA TRAVELS & TOURS Vs COMMISSIONER (APPEALS), CENTRAL EXCISE & SERVICE TAX
Service Tax - Parallel assessment proceedings for the same transactions, same period and in respect of the same amount received by the petitioner – The objection taken by the department is that since the petitioner has failed to challenge within limitation the unauthorized ex-parte order and appeal against it was also rejected on the ground of delay and as such the demand created under the said orders cannot be withdrawn and is liable to be recovered from the petitioner – HELD - Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. Such defect has always been treated as basic and fundamental. Since the respondent no. 3 was not the assessing authority of the petitioner and has passed the impugned order without jurisdiction and without authority of law and also since the petitioner was assessed by the jurisdictional assessing authority in respect of the same transactions and for the same period and as such the impugned order and all consequential proceedings initiated by respondent no. 3 were nullity. It may be clarified that there is difference between irregular or wrong order and the order passed without jurisdiction. An erroneous and illegal decision is not necessarily void but if an order is passed by an authority without jurisdiction or without authority of law then it is void – Assessee appeal allowed with cost imposed on department
karNotiCR8
Karnataka: Downloading of 'C' Forms on monthly basis
Summary for the month of December, 2014
Summary: List of updates in the month of December [Download link - No login/password required]
7th of Jan
2015-VIL-09-ALH
M/s BHAGAT HALWAI AND CONFECTIONERS Vs THE COMMISSIONER OF TRADE TAX U.P.
Uttar Pradesh Trade Tax Act – Term ‘Manufacture’ as defined under Section 2(e-1) of the Act - Applicant made purchases of synthetic soft drink concentrate syrup and converted into liquid form by processing the syrup through carbon dioxide to make it consumable as soft drink - Whether fountain drinks sold by the applicant was rightly taxed being manufactured soft drink – HELD – In the instant case there is processing, treating or adopting of the syrup and converting into soft drink after subjecting the syrup through carbon dioxide in a fountain machine. The commercial product is outcome of a process to manufacture as defined in Section 2(e-1). Whether the commercial identity of the goods subjected to processing, treating or adopting changes or not, is not very material – Assessee appeal dismissed
2015-VIL-01-MSTT
M/s ONGC LTD Vs THE STATE OF MAHARASHTRA
MSTT: Bombay Sales Tax Act - Place of business – Set-off – ONGC has purchased the goods locally and despatched the same to rig of ONGC at Bombay High which is outside the territory of India within six months in the same form - Eligibility to set-off under rule 43C of the Bombay Sales Tax Rules 1959 - HELD – Term ‘place of business’ has a definite meaning which means where the contracts in relation to the business are executed, decisions are taken by the managing body or registered office or the place such as warehouse or godown where the goods are stored or place where books of accounts are kept. None of these activities are carried out at ONGC rig at Bombay High. Therefore, ONGC rig at Bombay high, do not fall under the definition of ‘place of business’ as defined in section 2(20) of the BST Act - Bombay high being located in continental shelf is exclusive economic zone where limited right in respect of exploration of oil, minerals etc are with ONGC or for that matter with Union of India. Therefore, it cannot be termed as own place of business or place of business of agent or principal; though it is a place of work of ONGC. The legislative intention is clear that set off U/r.43C(2)(a)(iv)(A) is available only when the goods are despatched outside the place of India to ‘own place of business or place of business of the principal or agent’. Though it is outside India, it is not own place of business or place of business of Principal or agent. It is only a place of exploration at the most a place of work. In the appellant’s case, though one criteria of despatching the goods outside the territory of India is fulfilled as required by the rule, the second criteria of despatching the goods to own place of business or the place of business of the principal or agent is not fulfilled. Therefore, we are of the view that the appellant is not entitled for set off U/r.43C(2)(a)(iv)A of the BST Rules – Appeal dismissed
2015-VIL-10-HP-CE
COMMISSIONER, CENTRAL EXCISE, CHANDIGARH Vs M/s HIMACHAL WIRELESS LTD
Central Excise - SSI exemption - Benefit of exemption under Notifications Nos. 175/86-C.E. and 1/93-C.E. dated 1.3.1986 and 28.2.1993 for the clearance manufactured under the brand name of another company – HELD – Since the language of Rule 9(2) of the Cenvat Rules is identical to that of Rule 57H(5) of the Excise Rules, we feel that the interpretation given by the Apex Court in Dai Ichi Karkaria has to apply in the present case – Benefit of exemption cannot be denied on the ground that the registration under the Trade Marks Act, 1999 was granted on 15.02.2000 and therefore the benefit thereof cannot be claimed prior to that date – After taking into account the provisions of the relevant Act and the notification so issued by the Government, the authority below rightly dismissed the appeal filed by the Revenue, holding that the benefit of Notification dated 1.5.1992 was wrongly denied to the Assessee
2015-VIL-08-CESTAT-CHE-CE
CAUVERY STONES IMPEX PRIVATE LTD Vs COMMISSIONER OF CENTRAL EXCISE, SALEM
Cenvat Credit – Refund - Denial of refund under rule 5 of CCR on the GTA services availed by the appellant for transporting the finished goods upto the port of shipment - HELD - Since the export documents in the instant case clearly show that terms of delivery on payment is upto port on FOB basis, following the ratio of the above decision (supra), the impugned order is set aside and assessee appeal is allowed
2015-VIL-07-CESTAT-AHM-ST
M/s SHAIL ENGIEERING & WELDING WORKS Vs COMMISSIONER OF CENTRAL EXCISE & S.T., VADODARA
Finance Act, 1994 - Belated filing of returns and payment of taxes along with interest – Penalty – HELD - Belated filing of returns and payment of taxes along with interest is permissible under the Finance Act, 1994. If the view expressed by the Revenue is accepted then every delay in payment will attract penalties - There is no evidence in the show cause notice indicating that there was any suppression on the part of the appellant with intention to evade payment of tax. The entire service tax was paid by the appellant, along with interest, before the issue of show cause notice - Accordingly, the order of the lower authorities regarding imposition of penalties under Section 76 and 78 of the Act is required to be set-aside – Denial of Cenvat credit - In the realm of liberalisation in the scheme of Cenvat Credits availed and reflected in the books of accounts of the appellant, as taken on the basis of duty paying documents to that effect, procedural latches cannot be made the basis for rejection of cenvat credit
2015-VIL-06-CESTAT-AHM-ST
M/s GAMMON INDIA LIMITED Vs COMMISSIONER OF CENTRAL EXCISE & S.T., VADODARA
Service Tax - CENVAT credit - Cenvatable documents - Cenvat credit in the CENVAT account on a date earlier than the visit of the audit officers when such credit was not earlier reflected in the CENVAT account – Interest and Penalty – HELD – Appellant cannot take cenvat credit in the CENVAT account on a date earlier than the visit of the audit officers when such credit was not earlier reflected in the CENVAT account. If some credit was admissible on the basis of cenvatable documents existing with the appellant, but credit was not taken, then the same could have only been taken after the date of visit of the Audit officers - If certain invoices were left out for which credit was not taken earlier then the same can be taken only as per the prescribed procedures and not on any date as per appellants choice by modifying the records at will - Appeal filed by the appellant with respect to demand of Rs. 4,36,780/- along with interest is therefore, rejected - It is observed that appellant was of the bonafide belief that CENVAT credit could be taken on an earlier date also where cenvatable documents were available with them. In the case of clandestine removal cases are admissible CENVAT credit is abated from the total demand even at the appellate stage. Further demand of Rs. 5,80,856/- is with respect to reconciliation of figures regarding taking of cenvatable credit. On the basis of above factual matrix, penalties under Section 76 and 78 of the Finance Act, 1994 are required to be set-aside under Section 80 of the Finance Act, 1994, even if extended period is invokable. Appeal filed by the appellant is required to be allowed to this extent
ceCir993
CBEC: Mandatory pre-deposit of duty or penalty for filing appeal
dndNoti840
Daman & Diu: Amendment to Rule 28 of Daman and Diu VAT Rule, 2005 - Regarding furnishing of Acknowledgement Slip of e- Return (DVAT-16)
FIEO-PR
The Federation of Indian Export Organisations - Press Release - Pre-Budget presentation
FCP0601
FROM THE CORRIDOR OF POWER - Updates from various Union Ministries, PMO & Cabinet
8th of Jan
2015-VIL-13-BOM
NAAPTOL ONLINE SHOPPING PVT LTD Vs STATE OF MAHARASHTRA & ORS
Maharashtra Value Added Tax Act, 2002 - Attachment of bank accounts for recovery of sales tax dues – Petitioners not dealers under Maharashtra Value Added Tax Act, 2002 and the Central Sales Tax Act, 1956 – Revenue raised the serious apprehension about the dues being secured - HELD – The Bank accounts shall be released from attachment, provided the Petitioners maintain the balance or the sum of Rs. 10Crores - This sum shall be maintained by the concerned Bank until the Petitioners file Appeals and apply for interim reliefs so also obtain appropriate orders and directions therein – Appeal partly allowed
2015-VIL-12-DEL
M/s CALCOM ELECTRONICS LTD Vs THE COMMISSIONER OF SALES TAX/VAT, DELHI
Delhi Value Added Tax Act, 2004 - Disputed amounts pertain to the Financial Years 1997-98 to 1999-2000 - Demand primarily is on account of the sales tax statutory forms - HELD - It has been rightly highlighted before us that the Appellate Tribunal, Value Added Tax has primarily proceeded and erred in holding that the forms had been filed for the first time before it in 2014, whereas the case of the appellants is that most of the forms were filed earlier but have not been verified. The value of the forms now filed in 2014 is only miniscule – Pre-deposit reduced and appeal partly allowed
2015-VIL-09-CESTAT-MUM-ST
M/s SI GROUP INDIA LTD Vs COMMISSIONER OF CENTRAL EXCISE, RAIGAD
Service Tax - Technology Licensing Agreement with Schenectady International Inc (SII) for Supply of technical knowhow and technical services – Demand - Consulting Engineer Service - levy of tax on Development expenses – HELD - The fact that these expenses were incurred by the appellant in India and were not paid to SII, proves that no service has been rendered to the appellant. - The Commissioner's order is very vague and without reasoning. We have no hesitation in holding that service tax is not payable on the development expenses - Taxability of royalty amount on receipt basis – HELD - Measure of taxation does not determine the nature of taxation. But the pertinent fact of this case is that whereas the show cause notice was issued in September 2003, the royalty on account of technical services for the years 2000-2001 and 2001-2002 was paid in 2004. This fact has been also certified by the Chartered Accountant and not controverted by Revenue. The service tax provisions under the Service Tax Rules, 1994, as applicable during the period in dispute, clearly provided that service tax is payable when the value of taxable services is received. The relevant provisions in law was Rule 6(1) which stated that service tax is payable when payments are received towards the value of taxable services. Therefore, clearly service tax was not leviable on royalty paid for the years 2000-2001 and 2001-2002. Having held that the royalty was on account of providing technical services in India and such technical services are clearly covered under the Consulting Engineering Services, tax is leviable for the year 1999-2000 agreed to by both sides - As regards penalty we find that the leviability of tax under the Consulting Engineer Service provided by a firm or Intellectual Property Service was a matter not clear from doubt. Therefore this is not a fit case for imposition of penalty – Appeal allowed
2015-VIL-11-MAD-CE
COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE Vs PREMIER POLYTRONICS PVT LTD
Central Excise Act – Section 11AC – Modvat Credit - Mandatory penalty – HELD – The decision of the Tribunal holding that mandatory penalty is not leviable cannot be accepted and accordingly set aside and the matter is remanded to the Tribunal to reconsider this issue afresh in the light of the decisions Apex Court in Dharamendra Textile Processors and others and Notification No.14/96-CE (NT), dated 23.7.1996 – Refund claim – Non speaking order - We find that there is absolutely no reason given by the Tribunal as to why revenue appeals were dismissed. It is a cursory order. As the order passed by the Tribunal, is bereft of reasons and analysis, the same is set aside and the matter is remanded to the Tribunal for passing a reasoned order – Revenue appeals allowed by remand
ceNoti02
Central Excise: Amendment inNotification no. 12/2012 - Central Excise, dated 17/03/2012
mahaCir1T
Maharashtra: Revised instructions regarding stay in appeals
kerCir01
Kerala: Extension of time limit for filing audit report for the year 2013-14
rajNoti169
Rajasthan: Reduction of CST rate to 0.5 percent on the sale of laminated automobile textile fabric under Central Sales Tax Act, 1956
rajNoti170
Rajasthan: Amendment in Rajasthan Investment Promotion Scheme-2014
9th of Jan
2015-VIL-14-AP
M/s VELLANKI FRAME WORKS Vs THE COMMERCIAL TAX OFFICER, VISAKHAPATNAM
Andhra Pradesh VAT Act, 2005 - Section 80(1) - Central Sales Tax Act, 1956 - Sections 2(ab), 3(a), 5(2) & 8(1) - Transfer of documents of title before the goods had crossed the customs frontiers of India - High sea sale – ‘C’ Form – Bill of entry – Custom agent - Whether if an assessee is the final importer of goods as it was assessed to customs duty before the goods got mixed with the general goods, sale of such goods by the assessee further could be considered as sale in the course of import - Whether the said transaction could be considered as inter-state sale - Whether a Bill of Entry for warehousing would result in termination of importation - Whether when it is apparent as per the provisions of the statute that the prescribed authority who is empowered to make assessment under the VAT Act, can also assess a dealer to tax under the CST Act, the question as to the jurisdiction of the commercial tax officer may arise - Whether in case, the AO has failed to perform a statutory duty case upon him, the aggrieved assessee is allowed to approach directly the High Court - Whether the High court while making judicial review of an assessment order, can go into the adequacy or sufficiency of the evidence based on which the AO has recorded his findings – HELD – The Commercial Tax Officer of the Circle, before whom a dealer files his CST returns, is empowered to assess him to tax under the CST Act - Inter-state sales - As is ascertainable from the bills of entry from warehousing and ex-bond, transfer of title had not taken place before filing of the bills of entry and assessment of customs duty; the sale took place after assessment was made on the petitioner, and on their filing the bills of entry; the goods must be held to have crossed the customs frontiers of India, after the bill of entry was made and the goods were assessed to customs duty; thereafter the sales cannot be said to be sales in the course of import or high sea sales; and the transactions, on which the petitioner had claimed exemption as high sea sales, should be treated as inter-state sales falling under Section 3(a) of the CST Act – High sea sale - Before its importation, it is only the person who imported the goods who would be the importer. If, as contended by the petitioner, they had sold the goods on high seas to M/s Radha Industries, it is only Radha Industries who would be the importer and not the petitioner. The very fact that the name of Radha Industries is not reflected as the importer in the bill of entry ex-bond (home consumption) belies the petitioners contention of a high sea sale by them to Radha Industries – Agent of goods - Sale of goods by them to Radha Industries could only have been effected after the goods had been cleared for home consumption - The assessing authority is, therefore, justified in holding that sale of goods by the petitioner to Radha Industries is not a sale in the course of import, but an inter-state sale liable to tax under the CST Act – The submission that the sale to Radha Industries occasioned the import of goods is belied by the fact that it is the name of the petitioner which is reflected in the Bill of Entry as the importer of the goods, and not Radha Industries. The submission of Learned Senior Counsel, that the sale of goods to Radha Industries had occasioned the import necessitates rejection – Furnishing ‘C’ Form even after the assessment order is passed - Rule 12(7) enables the assessing authority, on sufficient cause being shown, to grant further time for production of C forms. Such an opportunity can be granted even after an assessment order is passed, provided sufficient cause is shown. On production of the prescribed C-Forms, the petitioner would be entitled to pay concessional rate of tax. As the petitioner can furnish C-Forms, in terms of the proviso to Rule 12(7) of the CST (R&T) Rules, even after the assessment order is passed, we see no reason to deny them an opportunity to produce the C-Forms, and avail the benefit of concessional rate of tax – The impugned assessment orders do not necessitate interference, and the challenge thereto by the petitioner is rejected. The petitioner is, however, granted three months time from today to produce the prescribed C-Forms – Petition dismissed
2015-VIL-02-MSTT
M/s ADANI ENTERPRISES Vs THE STATE OF MAHARASHTRA
Central Sales tax Act, 1956 – Disallowance of C-Forms – Validity of C-Forms issued by the dealers of the State of Maharashtra for goods delivered in other State – Rule 12(6) of the CST (Registration and Turnover) Rules, 1957 - Rule 4AA of the CST (Bombay) Rules, 1957 - HELD - From the details of the impugned sales, it is clear that interstate purchases are effected more than one occasion by both purchasers from the appellant. Therefore, they are liable in those states to obtain registration and are required to obtain registration in that State. In that case as provided in Rule 12(6), ‘C’ form to be produced shall be of that State, wherein the goods are delivered - However without showing any such inability of Registration, the purchasing dealers have taken recourse to the explanation to Rule 12(6) which is not intended by the law. The requirement of the production of ‘C’ form of that State is for the purpose and is part of the system of proper checks and balances provided for proper accounting for the purchases in that State and admission of liability of tax in that State, wherever applicable - From the facts and circumstances and provisions of the law and necessity of duly filled in certificate on ‘C’ form, the claim for concessional rate of tax cannot be allowed. Therefore, the First Appellate Authority has rightly disallowed the claim in absence of valid ‘C’ forms of the State in which the goods are delivered as a result of interstate sales – Appeal dismissed
kerAct01of2015
Kerala Taxation Laws (Amendment) Act, 2014
rajCir17
Rajasthan: Regarding application for e-refund (Form VAT 20)
cbecOrder
CBEC: Instructions to Officials of regarding Initiatives towards good governance - Wednesday is designated as Taxpayers' Day
2015-VIL-13-CESTAT-DEL-CE
M/s HOTLINE CPT LTD Vs COMMISSIONER OF CENTRAL EXCISE, INDORE
Central Excise - Cenvat credit – Input – Manufacture - Defective CPTs, which had earlier been cleared on payment of duty, had been received back in the factory tubes are dismantled, the usable parts are salvaged and thereafter using fresh parts, CPTs are made, which are cleared on payment of duty – Entitlement to cenvat credit in respect of the fresh parts used for re-making of the CPTs – HELD - From the records, it is clear that the defective CPTs received back had been dismantled and thereafter by using salvaged parts and fresh parts, the entire process of manufacturing is undertaken on the same production line. The fresh CPTs made had been cleared on payment of duty - There is no provisions in Rule 16 that Cenvat credit in respect of the inputs used in the process of repairing/refining would not be available - The appellant had disclosed the process undertaken by them in as early as May, 2001 in respect of the defective CPTs received from their customers and hence, the department cannot allege suppression of facts saying that the appellant had not disclosed that they were taking Cenvat credit on the inputs used in re-making of the goods. In view of this, there is merit in the appellant plea and the appellant has correctly availed the Cenvat credit on input – Appeal allowed
2015-VIL-15-BOM-CE
JSK INDUSTRIES PVT LTD Vs THE UNION OF INDIA
Central Excise - Ambit and scope of the powers of the Settlement Commission – Application of issues regarding demand differential duty and Cenvat Credit alleged to have been irregularly taken on inputs - Settlement Commission holding Application filed by the Petitioners is not found admissible in terms of section 32E of the CEA, 1944 - Whether the Commission was justified in rejecting the Application - HELD - When the Commission found that in the present case, the duty, liability was admitted but the claim for interest was disputed, then, it is not termed as a faulty Application or not complying with the procedural provisions or the manner in which the same has to be made. Rather para 9.4 of the order under challenge would reveal that the contention of the Petitioners while disputing the demand for interest is set out and held to be not correct and in terms of section 11A of the Central Excise Act, 1944. This could very well have been done by entertaining the Application and proceeding in terms of section 32F of the Central Excise Act, 1944 - Commission erred in rejecting the Application made by the Petitioners on the ground that it is not admissible in terms of section 32E of the Central Excise Act, 1944. The Settlement Commission would have been well advised in proceeding with the Application and passing a final order thereon. Such an approach of the Commission in the given facts and circumstances defeats the object and purpose of approaching the Commission with an Application for settlement of the case – Petition partly allowed
2015-VIL-12-CESTAT-CHE-ST
M/s PRICOL Ltd Vs CCE, COIMBATORE
CENVAT Credit Rules, 2004 - Rule 2(m) – Admissibility of the ISD to allocate its credit to its sister units in the absence of Regulatory provision for registration of ISD prior to 07.06.2005 - Provision contained in Rule 2(m) of CENVAT Credit Rules, 2004 granting credit to allocation of such credit made by the ISD which was permitted from 10.9.2004. The regulatory measure of registration of ISD came into effect from 16.6.2005 – HELD - The fact itself makes clear that there was an inextricable link between the service availed and the activity for which such service was availed. There is also nexus between the head office and the appellant. So also the credit is remaining unquestioned as to the genuinity thereof - When substantial law has granted relief, it is only procedural law that has dragged the appellant to the litigation - We may state that procedure is not tyrant of the law but is servant thereof and justice cannot be denied for reasons attributable to the procedural law - Procedural law deserves to be construed as directory instead of mandatory for its application - Taking into consideration the rule of procedural law and substantial law CENVAT credit is allowed to the appellant. The appeal on the CENVAT claimed on the basis of xerox copies of invoice is dismissed. However, so far as penalty in respect of denial of credit on such count is concerned, learned adjudicating authority has not dealt with the same as to whether such a penalty to its extreme dose is leviable. But he has stated that under Rule 15(4) of CENVAT Credit Rules, penalty is imposable and what should be the quantum of penalty that was not adjudged stating reasons therefor. Therefore, there shall be no penalty on this count also – Credit availed on CHA service - There is no material fact and evidence on record to rule out the availment of such a service by the manufacturer-appellant. Therefore, in absence of disintegration between the service availed for use in the activity carried out by appellant is admissible - Appeal partly allowed
2015-VIL-11-CESTAT-CHE-ST
UNITED INDIA INSURANCE CO. LTD Vs COMMISSIONER OF CENTRAL EXCISE, CHENNAI
Service Tax - Whether the result of provisional assessment shall have a life for all the days to come or ends with the final assessment in respect of the respective transaction – HELD - Each transaction being assessed according to the incidence of levy and measure of levy, ld. Comm. (Appeals) is correct to hold that the result of provisional assessment shall not serve the purpose of advance rulings for all the days to come in future – Revenue appeals are dismissed
2015-VIL-10-CESTAT-AHM-ST
CENTRAL WAREHOUSING CORPORATION Vs C.S.T.-SERVICE TAX - AHMEDABAD
Service Tax – Short payment of service tax shown in ST-3 returns - Whether extended period of payment is invokable or not – HELD - prescribed ST-3 returns were filed by the appellant and it is not disputed that correct calculations of service tax were not shown and differential tax payable was apparent from the figures furnished by the appellant. Under the above factual matrix available on record appellant cannot be held to have suppressed any information with intention to evade service tax. Accordingly, it is held that extended period cannot be invoked in the present proceedings and appeal filed by the appellant is required to be allowed on time bar
12th of Jan
2015-VIL-17-P&H
M/s GODREJ & BOYCE MFG. CO. LTD Vs STATE OF PUNJAB & OTHERS
Punjab Value Added Tax Act, 2005 – Punjab General Sales Tax (Deferment & Exemption) Rules, 1991 - Notional sale tax liability - Deferment of sales tax liability - Sale tax on branch transfers consignment sales made outside the State of Punjab - Whether Rule 2 (xxi) (ii) of the Rules which provides for calculation of “notional sale tax liability” by including branch transfers, fastens a liability to pay tax on branch transfers or merely provides a methodology for calculating notional tax liability for the purpose of achieving the amount of deferred tax – HELD - A notional liability is always fictional and must retain its fictional character without transforming into a reality as a charging provision to create a fresh liability to pay tax. The word “notional” used in the title of Rule 2 (xxi) of the Rules and the words “shall be deemed” and “on the presumption that these transactions are eligible to tax under the aforesaid Act” clarify the word “notional”. This notional calculation of sales tax liability cannot possibly be read to confer a fresh liability to pay tax. Even otherwise, Section 10-A of the 1948 Act places an obligation upon the party granted a deferment certificate to pay “tax due” i.e. tax as determined by the statue and, therefore, the stand taken by the State that Rule 2(xxi) of the Rules, the proviso and the explanation thereto requires the petitioner to pay tax on branch transfers, can neither be countenanced nor do the words and expressions used in the explanation and the proviso lend themselves to such an interpretation - Rule 2(xxi) of the Rules is a provision that aids and assists the assessee and the State in calculating notional tax liability for deferment and empowers the State Government while calculating the limit of deferment to include sale tax on branch transfers outside the State of Punjab on a presumption that they shall be deemed to be taxable but only for the purpose of calculating the quantum of deferred tax achieved by the assessee. The proviso cannot whether by interpretation or by reference to the presumption be assigned the status of a taxing provision rendering an assessee liable for a taxing event which is exempted under the parent statute i.e. the 1948 Act - Consequently, writ petition as well as the appeal is allowed – Impugned order is set aside and matter is remitted to the assessing officer to decide the matter afresh
2015-VIL-16-KAR
M/s GOPALAN ENTERPRISES Vs THE STATE OF KARNATAKA
Tribunal did not raise the question of law in terms of the appeal filed by the revision petitioner and question of law was framed based on the grounds urged by the State in the cross-objections - Whether the Karnataka Appellate Tribunal is justified in formulating the point for consideration based on the grounds urged by the cross-objectors and not on the grounds urged by the appellant - HELD - Tribunal has committed an error in not considering, whether in the appeal filed by the revision petitioner any substantial question of law arises or not? If so, it was for the Tribunal to frame the substantial question of law and answer the same in accordance with law. Since such procedure is not followed, we are of the view that the substantial question of law framed now in this revision petition has to be answered in favour of the revision petition - Accordingly, this revision petition is allowed. The matter is remanded to the Karnataka Appellate Tribunal for fresh consideration of the matter with a specific direction as to whether any substantial question of law arises in the appeal filed by the appellant
2015-VIL-01-SC-ST-LB
COMMISSIONER OF SERVICE TAX, DELHI Vs M/s GMK CONCRETE MIXING PVT LTD
Supreme Court: Service Tax – Appellant is engaged in preparation of ready mix concrete (RMC) - While carrying out such dominant objects other ancillary and incidental activities were also carried out - Selling RMC for delivery at the site – Taxable Service – Tribunal order in favour of assessee - Revenue appeal dismissed against Tribunal order dismissed by Apex Court
2015-VIL-02-SC-ST
BOARD OF CONTROL
FOR CRICKET IN INDIA Vs COMMISSIONER OF SERVICE TAX MUMBAI-I
Supreme Court: Service Tax – Taxable Service - Programme
producer's service - Import of services – Non-resident service providers were
producing a programme for and on behalf of BCCI - The services received by the
BCCI from the non-resident service providers merit classification under
'programme producer's services as defined in sections 65 (86a), 65 (86b) read
with 65 (105) (zzu) of the Finance Act, 1994 and the appellant is liable to pay
service tax – BCCI appeal against tribunal order - Appeal dismissed by Apex
Court
2015-VIL-14-CESTAT-CHE-ST
COMMISSIONER OF CENTRAL EXCISE & ST, LTU CHENNAI Vs AXLES INDIA LTD
Service Tax - Input services - Place of removal – Service activity rendered outside India - Assessee-respondents are manufacturers of Rear Axles Housing (Motor Vehicle parts) and exported their finished goods to various countries and availed cenvat credit of duty paid on inputs as well as service tax paid on input services used by them in relation to manufacture of final products - Assessee engaged the services of overseas company for carrying out the quality control and cleaning operations - As a recipient of service they paid service tax under Business Auxiliary Service under reverse charge and availed credit of the service tax paid – Showcause notice on the ground that activities have no nexus to the manufacture of final products and the service activity was rendered outside India, outside the place of removal of excisable goods – HELD – Assessees have availed the services of overseas service provider to carry out quality control activity on Rear Axle Housings at buyer's premises. Appellant being 100% EOU, they have secured orders for fulfillment of export obligation. Being manufacturer of Rear Axles Housing (Motor Vehicle parts), as per the drawing, design and specifications of the overseas buyer, the respondents have to ensure that the activities viz. removal of rust, deburring, quality control checking are done at buyer's premises. If the respondent do not satisfy the quality of the parts manufactured by them, and if it results in rejection, certainly, it will be a loss to his business. Therefore, these activities are related to quality control and in relation to the business of the respondent. Therefore, the said services availed by the respondents from the overseas service provider are rightly covered in the inclusive definition of "input services" defined under Rule 2 (l) of CCR – Assessees are eligible for the input credit of the service tax paid under reverse charge on the service rendered by the overseas service provider carried outside India – Revenue appeal dismissed
2015-VIL-16-CESTAT-DEL-CE
M/s PRECISION MOULDS & DIES (P) LTD Vs CCE, GHAZIABAD
Cenvat Credit – Availability of credit on freight charges incurred for FOR destination sale – Place of removal - Assessee availed credit of service tax paid on outward transportation i.e. transportation of the appellant’s final products from their factory to the buyer’s premises – HELD - The expression ‘outward transportation upto place of removal’ used in the above definition of ‘input service’ under Rule 2(1) (ii) ibid clearly indicates that the outward transportation is the input service only upto the place of removal i.e. transportation beyond the place of removal cannot be considered as input service under Rule 2(1) of the Cenvat Credit Rules, 2004. Undisputedly in the present case, the place of removal is the factory gate and therefore, the claim of the appellants that instant case service of outward transportation up to the buyer’s premises comes under the purview of ‘input service’ appears to be not acceptable – Appellants could not adduce any evidence of FOR destination sale viz. copy of the relevant agreement entered into between appellants and the concerned buyers, sale invoices etc - Merely on the ground that the appellant-assessee arranged the transportation for delivery of the goods to the buyer’s premises, they cannot be permitted to claim such transportation as an input service under Rule 2(1) of the CCR Rules, 2004 - Input service credit on such service of outward transportation is not admissible to the appellants. Therefore, the demand and interest thereon is justified and hence the same is upheld – Penalty - I find that various forums have taken different stand and certainly on the issue was not there. I would have agreed with non invocation of penal provisions in the present case as per counsel’s contention but facts do not lead to conclusion as eligibility of FOR clearance itself is negated. Penal provisions are justified in the case and penalty is rightly imposable – Appeal dismissed
2015-VIL-15-CESTAT-AHM-CE
REMCO PAPER & BOARD INDUSTRIES PVT LTD Vs CCE DAMAN
Central Excise - Pre-deposit – Payment through Cenvat Credit – HELD - In view of decision of the Hon'ble High Court in Indsur Global (2014-VIL-375-GUJ-CE), the applicant has made out a strong prima facie case for waiver of pre-deposit of the entire amount of duty along with interest and penalty. It is seen that the Commissioner (Appeals) decided the matter without going into the merits of the case - Impugned order is set aside. The matter is remanded to decide on merit without insisting any pre-deposit - Appeal is allowed by way of remand
delCir21
Delhi: Extension in the date for filing of reconciliation return for the year 2013-14
13th of Jan
2015-VIL-20-DEL
M/s NATIONAL ALUMINIUM CO. LTD. Vs COMMISSIONER OF SALES TAX, DELHI
Delhi Sales Tax
Act - Disallowance of deduction u/s 4(2)(a)(v) - Whether the dealer exercise
the ordinary business prudence and the transactions can be said to be in a
normal course of business without recording a finding as to positive connivance
or collusion of the dealer – HELD - The name of the MMTC was written on the
form, subsequently, the name of MMTC was scored off and the name of the
petitioner was mentioned by putting initials - If in the utilization account, the
dealer has shown his form as given to MMTC, it was clearly a mistake of the
dealer and not of the petitioner - It was for the dealer to clarify that he
could not correct the error crept in the utilization account - There was no
fault on the part of the petitioner in accepting the form from the purchasing
dealer - The Tribunal, has, in a very perfunctory manner, disallowed the claim
of the petitioner overlooking the above – Matter is remitted back to the
Tribunal for fresh adjudication
Purchasing dealer had returned his registration certificate prior to the date
of transaction with the selling dealer – HELD - The Tribunal was rightly of the
view that the petitioner was complacent with the transaction without caring to
see whether purchasing dealer was registered or not and whether the purchasing
dealer was authorized to purchase goods against the statutory form - Traders
are apparently quite willing to run the risk of one amongst many transactions
going sour, so far as supply of these forms is concerned - iIt is not uncommon
for a purchasing dealer to renege on its assurance to supply ST-1 Forms to the
selling dealer - The State does not thereupon forfeit its entitlement for sales
tax - It is wholly illogical to place the State in such a position where it cannot
recover its sales tax dues at all, the dealer who has chosen to trust the other
dealer must suffer and can take action against the party - This is the risk an
assessee runs and if for any reason, including a subsequent decision of the
Sales Tax Department to withhold the supply of ST-1 Forms to a purchasing
dealer they are put in an uncomfortable position of having to pay the tax and
initiate appropriate legal action for recovering it from the Purchasing Dealer,
so be it - The State is entitled to its tax, where the requisite ST-1 Form is
unavailable for any reason – Assessee not entitled to the deduction
2015-VIL-19-MAD
K.G. PRODUCTS Vs THE JOINT COMMISSIONER (CT)
Tamil Nadu General Sales Tax Act, 1959 - ‘electronic goods’ and ‘electrical goods’ – Whether main cord connecting the table cord and the main switch is an electronic good or electrical good – HELD - Cord wire, which connects the main switch with the instrument, is transmitting electricity from the main switch to the instrument. The cord wire functions based on the electrical energy it receives from the main switch and transmits to the instrument. These cord wires are manufactured for a special and limited purpose for transmitting electricity to tape recorder. In other words, they are specially designed for a specific purpose, namely, to supply external power to the tape recorder. They cannot be regarded as electrical goods in common parlance. This aspect has been overlooked by the Tribunal - Cord wire connecting the main switch with the instrument would not fall under the category of ‘electrical goods’ and should be treated as ‘electronic goods’ – Assessee petition allowed
2015-VIL-18-CESTAT-DEL-ST
NIS SPARTA LTD Vs CST, NEW DELHI
Service Tax - Commercial Training and Coaching Services – Taxable service - Appellant is providing training to candidates who intent to become Insurance Agent. The candidates are sponsored by the insurance company, who pays the appellant instead of candidates themselves paying the appellants – HELD - Training imparted by the appellants does not fall under the ambit of Section 65(27) of the Finance Act, 1994 as the training imparted by the appellant is having the recognition of law and covered under exclusion clause of Section 65(27) of the Act, therefore the appellant is not liable to pay service tax – Assessee appeal allowed
2015-VIL-18-MAD-CE
COMMISSIONER OF CENTRAL EXCISE Vs THE SUPREME INDUSTRIES LTD
Central Excise – Limitation - Bona fide belief - Whether the CESTAT is right in giving the relief to the assessee with reference to the excisability and dutiability of plastic waste and scrap based on the Order-in-Original No.12/95 dated 15.9.1995 which had been set aside by the Commissioner (Appeals) and CESTAT, wherein both the authorities had held that plastic waste and scrap are excisable and dutiable – HELD - On a perusal of the order of the Tribunal, the facts, as is evident, make it clear that on and from 1.3.94, i.e., period post the order of the Deputy Commissioner of Central Excise dated 15.9.95, till the order in appeal No.37/02 dated 8.6.02, the assessee was under the bona fide impression that removal of waste and scrap does not attract duty. The Department had chosen not to issue notice pending appeal, for which failure thereof, they are not entitled to invoke the proviso to Section 11-A, as has been rightly held by the Tribunal – Revenue appeal dismissed
2015-VIL-17-CESTAT-DEL-CE
COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH Vs M/s PARABOLIC DRUGS LTD
Cenvat Credit – Manufacturing of capital goods - Denial of credit on ground of usage and clarification of material used in manufacturing of capital goods was called for from the assessee, which they did not provide – HELD - It is not disputed that items were used by the respondent in manufacturing of capital goods. Therefore, there is no requirement of quantification of the quantity used in the manufacture of capital goods. The respondents are entitled to take Cenvat credit of the items which were used by the respondent for manufacturing of capital goods. As held by the Hon’ble High Court of Madras in the case of India Cement Ltd 2012-VIL-02-MAD-CE – Revenue appeal dismissed
mpAct03of2015
Madhya Pradesh VAT (Second Amendment) Act, 2014 - Amendment in Section 4-A, 14, 18, 20, 20-A, 24, 37, 40, 46, 58 & 62; Insertion of Section 34-A; Amendment in Schedule I & II
triNoti60
TRipura: Draft amendment in Tripura VAT Schedule II(b) and Schedule III - Regarding 'biri, unmanufactured tobacco, tobacco for manufacture of biri'
FCP1201
FROM THE CORRIDOR OF POWER - Updates from various Union Ministries, PMO & Cabinet
14th of Jan
2015-VIL-22-AP
KMK EVENT MANAGEMENT LTD Vs THE COMMISSIONER OF COMMERCIAL TAXES
Andhra Pradesh VAT Act – Denial of deferment of assessment proceedings – Assessment - Whether Section 21(7) of the VAT Act, either explicitly or by necessarily implication, confers power on the Commissioner to defer assessment proceedings – HELD - Section 21(7) of the VAT Act neither explicitly nor by necessary implication confers power either on the Commissioner or on the STAT to defer assessment proceedings initiated under Section 21 of the VAT Act - The first limb of both Section 21(7) and Section 31(4A), which provide for the consequences of deferment of assessment and appellate proceedings, would operate only when the power of deferment is specifically conferred on a specified authority/authorities and is exercised by them pursuant to such conferment. A plain and literal reading of the aforesaid provisions make it clear that Section 21(7), Section 32(4A) and Section 32(7) only provide for the consequences of deferment of (i) assessment, (ii) appeal before the Appellate authority, and (iii) revision under Section 32 of the VAT Act respectively. They do not, by themselves, confer on the said authorities the power to defer the proceedings. It is only because Section 32(5) specifically confers such a power, can the Commissioner defer revision proceedings initiated under Section 32(1) & (2) of the VAT Act. The very fact that, while the consequences of deferment of assessment proceedings, appellate proceedings before the Appellate authority and revision proceedings are specifically provided for, but the power of deferment of proceedings is restricted only to revision proceedings under Section 32 of the VAT Act, shows that the legislature has for the present, neither explicitly nor by necessary implication, chosen to confer the power to defer either the assessment proceedings under Section 21 of the VAT Act or the appellate proceedings under Section 31 of the VAT Act - The word assessment has been used in different Sections in different contexts, and is not always used only to mean assessment of a VAT dealer under Section 21 of the VAT Act. In the context in which it is used, it obviously refers only to revision proceeding under Section 32 and an appeal before the STAT under Section 33 of the VAT Act - It matters little that the Commissioner had rejected the petitioners request for deferment, as he lacks jurisdiction, in the first place, to entertain such an application for deferment of assessment proceedings under Section 21 of the VAT Act. The Writ Petition is devoid of merits and is, accordingly, dismissed - Interim Order - Interlocutory orders have no finality and are, therefore, not binding as a precedent. As there is no finality to an interlocutory order, and interim orders passed by Courts on certain conditions are not precedents for other cases which may be on similar facts
2015-VIL-21-ALH
M/s BRIJ MOHAN AMIT KUMAR AND OTHERS Vs STATE OF U.P.
Uttar Pradesh Trade Tax Act - Central Sales Tax Act - Jurisdiction of State Government to impose tax in pursuance to power conferred by Clause (b) of Sub Section 1 of Section 3A of the Act at the point of sale to the extent of 20 percent on yarn imported from outside India and 4 percent on yarn of other kind – Power of the State Government to impose tax on the yarn imported from outside the country – Constitutional validity of notification dated 13.9.2001 - Interpretation of statute - Article 286 of the Constitution – HELD - For the purpose of right of the State Government to impose tax, Entry No.52, 56 and 60 of List-II of VIIth Schedule of the Constitution of India, should be looked into - A collective reading of these three entries seem to confer power on State Government to impose tax in case goods are brought into the State of U.P. for consumption, use or sale therein or it is carried into the State of U.P. through road or on inland waterways. Entry No.60 is wider and empowers the State Government to impose tax on trades - Article 286 of the Constitution does not debar the State to impose tax when an item is brought into the State - Article 286 should be read in reference to context i.e., imposition of tax on sale or purchase of goods. Subject to condition of sub-clause (a) and sub-clause (b), sale and purchase of goods is condition precedent to ascertain the right of State to impose tax at its end. Imposition of tax at entry level where sale or purchase of goods are not involved, does not seem to come within the purview of sub-clause (b) of clause (1) of Article 286 – There appears no ambiguity in the letter and spirit of Article 286 of the Constitution of India. It should be interpreted as a whole right from the head note i.e., beginning which indicates that it relates to imposition of tax on sale and purchase of goods. Thus, if the sale and purchase of goods take place outside the country and brought into the territory of India, no tax may be imposed but when it is brought into the State like in the present case, the State of U.P., sub-clause (b) of Article 286 does not seem to come in the way - Appeal dismissed
2015-VIL-23-CESTAT-MUM-ST
INOX AIR PRODUCTS LTD Vs COMMISSIONER OF CENTRAL EXCISE, RAIGAD
Service Tax – Storage and Warehousing Services - Storage of liquid oxygen, nitrogen, argon etc - Appellant is providing storage tank to their customers for storage of gas and charging rent for its usage - Revenue is of the view that the rent charged by the appellant for renting out the storage tank to their customer fall under the category of ‘Storage and Warehousing Services' as per Section 65(102) of the Finance Act, 1994 – HELD - To decide the taxability of service, the real test is that, when the goods have been passed on to the customer. From the facts of the case, it is emerging that the gas in the storage tank installed at the place of buyer and the goods transferred to the buyer. Therefore, there is no control of the appellant on the goods in storage tank, after gas is stored in the tank the whole responsibility of the goods is with the buyer only. In these circumstances, as the appellant is not having any control over the goods and they are not responsible for the security of the goods, the appellant is not covered under the category of Storage and Warehousing Services as defined under Section 65(102) of the Finance Act, 1994 – Impugned order is aside and appeal allowed
2015-VIL-22-CESTAT-MUM-ST
ATLAS COPCO (INDIA) LTD Vs COMMISSIONER OF CENTRAL EXCISE, PUNE-I
Service Tax – Pre-deposit - Business Auxiliary Service - Procuring purchase orders for their associates located outside India by conducting market survey – HELD - The services falls under the category of Business Auxiliary Service and as per the Export of Service Rules, 2005 - Appellant's service falls under Rule 3 (1) (iii) of the said Rules. As per the said rules, the applicant is procuring the order for their associates located outside India, therefore the user of the service is located outside India - The applicant had complied with the condition of the Export of Service Rules, 2005 therefore the applicant has made out a case for total waiver of the pre-deposit - Accordingly, pre-deposit of the entire amount of service tax, interest and penalties is waived and recovery stayed thereof during the pendency of the appeal
2015-VIL-19-CESTAT-AHM-CE
COMMISSIONER OF CENTRAL EXCISE & S.T., SURAT Vs M/s SHREE MAHUVA SAHAKARI KHAND UDYOG MANDLI LIMITED
Central Excise – Demand – Limitation – Assessee availed cenvat credit on the capital goods of various articles of Iron and Steel like MS Angles, Bars, Channels, Structures etc. used for the construction of structure of Plant, during the period from March 2004 to April 2006 – Extended period – HELD - Cenvat credit was denied on the said articles, which can not be treated as capital goods. The Commissioner (Appeals) set aside the demand on the extended period of limitation. It is seen that the Larger Bench of the Tribunal in the case of Vandana Global Limited vs. CCE, Raipur has decided the issue in favour of the Revenue. Thus, it is apparent that there was conflicting view of the various benches on the issue. In this perspective, it may be considered that there cannot be any suppression of facts with intent to evade payment of duty. Hence, the Commissioner (Appeals) has rightly dropped the demand of duty for the extended period of limitation - Accordingly, appeal filed by the Revenue is rejected
2015-VIL-20-CESTAT-AHM-CE
M/s STALMEC ENGINEERING PRIVATE LIMITED Vs COMMISSIONER OF CENTRAL EXCISE & S.T., AHMEDABAD
Central Excise - Appeal relates to improper payment of rebate under Rule 18 of the Central Excise Rules, and the impugned order passed by the Commissioner (Appeals), squarely covered under the first proviso to Section 35B (1) of the Central Excise Act, 1944 – HELD - The appeal, filed by the appellant relating to rebate of duty of excise of goods exported to outside the country, against the order passed by Commissioner (Appeals), is not maintainable before the Tribunal. Accordingly, the appeal filed by the appellant is dismissed as not maintainable - It appears that, jurisdiction of the Tribunal was not raised before the Division Bench in CCE, Jaipur vs. Capital Impex (P) Limited. So, the said decision is not binding on the Single Member Bench – Appeal dismissed on maintainability
2015-VIL-21-CESTAT-BLR-CE
M/s K. K. NAG LTD Vs COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, BANGALORE-I
Cenvat Credit – Job work at rented premises - The premises where job work was undertaken was a rented premises where the owner of the premises issued bills of rent charging service tax on the rent. The appellant paid the rent along with service tax charged and availed credit of service tax so paid on the rent. The credit was utilized for payment of Central Excise duty on the finished goods cleared - Admissibility of credit of service tax on rent paid for godown which is used for storing and supply of finished goods to the customers after removal from the factory – HELD – The fact that the premises rented where the appellant was undertaking job work and was clearing the goods, from that premises itself, on payment of duty has not been taken into consideration by the lower authorities at all. If facts as submitted before me are correct, the appellant would be eligible for the benefit of service tax. Since this factual aspect has not been verified and considered the matter has to be remanded at this stage itself. Accordingly, the impugned order is set aside and the matter is remanded to the original adjudicating authority for considering the matter afresh
gujCir141
Gujarat: Extension inthe timelimit extention for application under works contract scheme [in Gujarati]
FCP1301
FROM THE CORRIDOR OF POWER - Updates from various Union Ministries, PMO & Cabinet
15th of Jan
2015-VIL-03-SC
ASSITANT COMMISSIONER, ERNAKULAM Vs HINDUSTAN URBAN INFRASTRUCTURE LTD
Kerala General Sales Tax Act, 1963 - Whether an ‘Official Liquidator’ is a ‘dealer’ within the meaning of section 2 (viii) of the Act and therefore would be required to collect sales tax in respect of the sales effected by him pursuant to winding up proceedings of a company in liquidation – HELD - Company in liquidation is a "dealer" with regard to the sale of its assets by way of an auction under a winding up order. Further, we have noticed the settled law that an Official Liquidator steps into the shoes of the Director of the company in liquidation and performs his statutory functions in accordance with the directives of the Court. Furthermore, Rule 54 of the Rules, 1963 contemplates a situation where a business owned by a dealer, is under the control of a receiver or manager or any other person, irrespective of his designation, who manages the business on behalf of the said dealer. In the said scenario, the said person, in-charge of the business on behalf of the dealer, would be exigible to sales tax in the same manner as it would have been leviable upon and recoverable from the dealer itself. Therefore, it can be concluded that the liability to pay sales tax, in the present case, would be on the Official Liquidator in the same manner as the dealer, that is, the Company in liquidation - Liability of the auction purchaser - The auction purchaser would not be liable to pay sales tax. The offer of the auction purchaser, as accepted by the Official Liquidator and confirmed by the High Court, was inclusive of all taxes. It would have been the bounden duty of the Official Liquidator to have separated an amount for the payment of taxes under the Act, 1963 to avoid any liability - It would be gainsaid in repeating that the Special Government Pleader (Taxes), on behalf of the Revenue, before the learned Single Judge of the High Court had clearly stated that the liability to pay sales tax would be on the Official Liquidator – Appeal allowed
2015-VIL-25-CESTAT-BLR-ST
ELMECH ENTERPRISES LTD Vs CCE & CST, HYDERABAD-II
Service Tax – Appellant acted as a subcontractor to M/s. Projects Ltd. As per the agreement, the assessee was required to construct electrical substations for Tadipudi Lift Irrigation Scheme on turnkey basis – Exemption under Notification No.45/2010ST - Period involved is 2005-06 to 2009-10 – HELD - The Notification No.45/2010-ST provides exemption to all taxable services relating to transmission and distribution of electricity by a person to another person during the relevant period covered by the proceedings. It is not limited only to taxable service of transmission by the transmission company as observed by the learned original adjudicating authority. Prima facie, I find that appellant is eligible for the benefit of Notification and therefore the appeal could have been heard without insisting on pre-deposit. Accordingly, the impugned order is set aside and the matter is remanded to the Commissioner (A) with a request to hear the appeal without insisting on any pre-deposit
2015-VIL-24-CESTAT-AHM-CE
HINDUSTAN PENCIL PVT LTD Vs CCE & ST, VAPI
Central Excise - Excisability of Graphite and natural Bentonite (clay) used captively – Refund of duty paid by job worker – Manufacture – HELD - Mixture of graphite and clay has a short life and used captively in the manufacture of pencil lead which attracts ‘Nil’ rate of duty - The Commissioner (Appeals) observed that the appellant availed the exemption notification and, therefore, it will be treated as excisable goods. In this context, the ld. Advocate contended that, inadvertently, they availed exemption notification and thereafter they contested the excisability of the goods. It is well settled that no product is ‘goods’ unless shown to be marketable by the department - Mere specification in the Dictionary, Excise Tariff and Drawback Schedule is of no consequence - The refund claim filed by the appellant is eligible on merits. I find force in the submissions of the learned AR in respect of unjust-enrichment and eligibility of refund claim – Assessee appeal allowed on merits. The adjudicating authority is directed to examine the eligibility to refund claim, unjust-enrichment and other issues
kerCir03
Kerala: instructions regardinf transport of Goods from outside the State for own use - Streamlining of procedures to prevent misuse
16th of Jan
2015-VIL-23-ALH
M/s SADBHAV ENGINEERING LTD Vs STATE OF U.P. & OTHERS
Central Sales Tax Act – Concessional rate of tax against Form-C - Penalty under Section 10-A of the - Penalty on the ground that the Petitioner has not admitted any tax liability on the execution of the works contract, hence the petitioner has contravened the provisions of Section 10-A of the Act resulting in contravention of the provisions of Section 10-A of the Act – HELD - Such reasoning for imposing penalty is patently perverse and does not come within the parameters of imposition of penalty under clause (b), (c) and (d) of Section 10 of the Act - The learned standing counsel, however, submitted that penalty has been imposed under clause (d) of Section 10 of the Act, which stipulates that if a person after purchasing any goods for any of the purposes specified in clause (b), (c) or (d) of sub-Section (3) or sub-Section (6) of Section 8 fails without any reasonable excuse to make any use of goods for any such purpose in which case penalty under Section 10-A of the Act could be imposed – HELD - The petitioner was granted a registration for the purpose of execution of the works contract or removal of the over burden while issuing the certificate of registration in Form-B. The respondent No.3 granted the facility to the petitioner to purchase at concessional rate of tax against Form-C on the goods, namely, heavy earth movers, excavators, dumpers, etc. The petitioner purchased these equipments on the basis of Form-C issued by respondent No.3 for the purpose of execution of the works contract - We find from a perusal of the counter affidavit that nothing has been indicated that the equipment so purchased was not in consonance with the declaration given in Form-B nor it has been disclosed that the equipments so purchased are not being used by the petitioner - In the light of the aforesaid, we find that the imposition of penalty was wholly illegal and without any basis. The reasoning mentioned in the impugned order is in gross violation of the provisions of Section 10-A of the Act. Consequently, the impugned orders imposing penalty cannot be sustained and are quashed – Petition allowed
mahaCir2T
Maharashtra: Extension of time limit for filing VAT Audit Report in Form 704 for year 2013-14
bihNotiSO3
Bihar: Change in rate of tax on Diesel
goaNoti3719
Goa: Concesssion for purpose of manufacturing wireless telecommunications and network equipments
goaNoti3575
Goa: Concesssion for purpose of manufacturing bus bodies on chassis of motor vehicles
17th of Jan
ceNoti03
CBEC: Change in rate of duty on Petrol & Diesel
2015-VIL-24-MAD
TULSYAN NEC LIMITED Vs THE ASSISTANT COMMISSIONER (CT)
High Court: Tamil Nadu Value Added Tax Act, 2006 - Interpretation of Section 18 - Works contracts for SEZ units – Denial of benefit of zero-rating – Bunch of Writ Petitions seeking to contend transaction effected by them for the SEZ units or its developers or co-developers are zero rated and entitled to the benefit of input tax credit under Section 18 of the TNVAT Act - Special Economic Zones Act, 2005 – Article 14 of the Constitution of India - Input Tax Credit – HELD - The concession granted under Section 18 of the TNVAT Act, is a special benefit given to exporters and such concession which is in the nature of input tax credit which may ripen into a refund claim, is subject to restriction and conditions contained under Section 19(9) of the TNVAT Act. If the sales effected by the petitioners to the SEZs are exempted from tax, then the dealers are not eligible to claim input tax credit as per Section 19(5)(a) of the TNVAT Act. Therefore to enjoy the benefit granted under Section 18, it is necessary for the dealer to establish that the input tax paid or payable by him on the purchase of those goods which were exported as such or consumed or used in the manufacture of other goods that are exported as specified in sub-section (1) of Section 18 subject to such restrictions and conditions as may be prescribed - Section 15 of TNVAT seeks to define what is exempted sale in the absence of any definition in Section 2 of TNVAT as Section 2(20) only defines exempted goods. For the purpose of TNVAT, sale of goods specified in the fourth schedule and goods exempted by notification by the Government are exempted sale. Section 30 of TNVAT is in pari materia with Section 17 of TNGST Act dealing power to notify exemption or reduction of tax. Clauses (a) or (b) or (c) under Section 30(1) TNVAT circumscribes the power of government to notify exemption/ reduction of tax in specified contingencies and would fall within the ambit of exempted sale as defined under Section 15 of TNVAT. Hence, no exception could be carved out as contended by the petitioner, as it would amount to re-writing the statute – The impugned Circular No.9 of 2013, dated 24.07.2013, sets out the statutory provision and the benefit which accrues to the dealer under Section 18 of the Act and the circular is neither contrary nor ultra vires of the provisions of the TNVAT Act, not is it violative of Article 14 of the Constitution of India or irrational – Levy of penalty impugned pre-revision notices assessment orders are set aside - Prayer to quash the impugned circular is rejected and the Writ Petitions are dismissed
2015-VIL-25-BOM-ST
THE COMMISSIONER OF SERVICE TAX, MUMBAI-I Vs M/s RIYA TRAVELS & TOURS (INDIA) PVT LTD
Service Tax – Redetermination of quantum of penalty under section 78 – HELD - Tribunal's order should be read as directing, firstly seeking compliance of the direction of recalculation and recomputation of the tax liability/demand, secondly the amount of penalty that could have been imposed in law when that demand is confirmed and thirdly, had the proviso been invoked, then, the benefit in terms of the proviso would be admissible and to what extent. Meaning thereby, 25% of the amount of penalty as redetermined and recomputed, if deposited, the benefit would be available. In such circumstances, we do not think that the Tribunal intended to impose any outer limit or cap on the penalty. The understanding of the Revenue that the outer limit of Rs.10 crores is imposed in the impugned order on the quantum of penalty is therefore not correct and has no basis. It arises out of incomplete reading of the order-in-original and the relevant paragraphs – Appeal is devoid of merits, hence, dismissed
2015-VIL-28-CESTAT-MUM-ST
MURLI REALTORS PVT LTD, MAGARPATTA TOWNSHIP DEVELOPERS &
CONSTRUCTION CO. LTD & OTHERS
Service Tax - Renting of immovable property - Valuation - Inclusion of Notional Interest on Security deposit - Revenue contends that notional interest @ 18% of the deposit should be added to the rent received and service tax should be demanded on the notional interest on the security deposit – HELD - There is not even an iota of evidence adduced by the Revenue to show that the security deposit taken has influenced the price i.e. the rent in any way. In the absence of such evidence, it is not possible to conclude that the notional interest on the security deposit would form part of the rent. We also do not find any reason for adopting a rate of 18% per annum as rate of interest, which is neither the bank rate of interest for deposits or loans or the market rate of interest. Adoption of such an arbitrary rate militates against the concept of valuation - Notional interest on security deposit cannot be added to rent agreed upon between the parties for the purpose of levy of service tax for renting of immovable property – Assessee appeal allowed
2015-VIL-27-CESTAT-CHE-CE
MATHUR CORR-TECH PVT LTD Vs COMMISSIONER OF CENTRAL EXCISE, COIMBATORE
Central Excise - Goods manufactured by the appellant which is also governed by the Standards of Weights & Measures Act, 1976 and notified under Section 4 of Central Excise Act, 1944 for liability of duty thereunder - Apart from clearing the goods in small packs on retail, the appellant was also clearing the goods in bulk pack for industrial use - Whether such bulk pack clearances shall be liable to duty under section 4 or 4A was under confusion in the industry for a long time and same was resolved by Board's Circular No.625/16-2002 dt. 28.2.2002 clarifying that such clearances are liable to duty under Section 4 of Central Excise Act, 1944 - Bonafide belief led assessee to pay duty under Section 4A of Act – HELD - In view of the fact that there is no whisper in the show cause notice as to malafide of appellant and having noticed that appellant has not acted malafide and its bonafides has come to public record assessee appeal is allowed on the ground adjudication is time barred
2015-VIL-26-CESTAT-AHM-CE
BILAG INDUSTRIES PVT LTD Vs CCE DAMAN
Central Excise – Disallowance of wrong availment of Cenvat credit on furnace oil – Interest & Penalty – Limitation – Case in favour of Revenue on merit – HELD - Present show cause notice dt.10.09.2007 was issued for the period from March 2003 to November 2003 - When the demand of duty against the earlier show cause notice was set aside as time barred, thus, the demand of duty for the extended period of limitation, on the same facts in the present show cause notice cannot be sustained. The findings of the Tribunal in the appellant’s own case for the earlier period would be squarely applicable in the present case. Hence, demand of CENVAT Credit along with interest and penalty is set aside is barred by limitation. In so far as demand of CENVAT Credit of Rs.8,158.00 along with interest and penalty is upheld. Penalty imposed on the appellant cannot be sustained – Appeal partly allowed
telNotiGO3
Telangana: Increase in rate of tax on Petrol & Diesel
chhgNoti03
Chhattisgarh: Extending timelimit for Notification No. F-10/75/2014/CT/V (81) dated 10.11.2014
19th of Jan
2015-VIL-03-MSTT
M/s PARANJAPE AUTO CAST PVT LTD Vs THE STATE OF MAHARASHTRA
Bombay Sales Tax Act, 1959 - Central Sales Tax Act, 1956 – Return of goods by way of rejection – Denial of deduction – HELD – As per condition of Contract for Sale, if further defects are noticed while assembling or processing, the company reserves right to reject such material even if it had been passed and/or paid for. Therefore, as per the provisions of section 19 of the Sale of Goods Act, the property would pass or intend to pass or transferred to the buyer if all the conditions envisaged in the contract are fulfilled. Automobile parts require very high precision and defects in castings will be obvious at the time of processing or machining the same. Hence, this condition is not warranty but essential condition of the contract. Therefore, in the present case in view of the provisions of the Sale of Goods Act as the goods are not yet transferred to the purchaser and are returned by way of rejection, sale would not become complete and the agreement to sale stands repudiated so far as the rejected part of the goods are concerned - As this rejection of goods was unilateral act on the part of the purchaser, sale was not complete and therefore, value of these rejected goods would not become part of turnover of sales as per the provisions of section 2(36) of the BST Act - Both appeals under the BST and CST Act are allowed
2015-VIL-27-MAD
GLAXOSMITHKLINE CONSUMER HEALTHCARE LTD Vs THE COMMERCIAL TAX OFFICER
Tamilnadu Value Added Tax Act, 2006 - Taxability and classification of ‘Women's Horlicks’ - Clarification regarding rate of tax - Authority for Clarification and Advance Ruling – Whether Women's Horlicks can be taxed under residuary entry as against the specific entry arrived tax at 4% on Part B of the First Schedule - HELD - When the goods is composite in nature, consisting on various mixtures the clarification should be on the basis of material or component which gives to the product their essential character. Though these principles were rendered under other central laws, could be very well applied to the cases on hand as we are concerned with classification of the product in question - Writ Petitions are allowed and the impugned clarification is quashed – Matter remitted to Authority no recovery shall be initiated against the petitioners and shall abide by the orders to be passed by the Advance Ruling Authority
2015-VIL-26-GUJ-CE
VINUBHAI STEEL CO. PVT LTD Vs COMMISSIONER OF CENTRAL EXCISE
Central Excise – SSI Exemption – Denial of benefit of deemed credit – HELD - The Tribunal was not justified in holding that the benefit of deemed credit available under Order TS/36/94—TRU dated 1st March, 1994 passed by the Central Government in exercise of powers conferred under rule 57G(2) of the erstwhile Central Excise Rules, 1994 could be denied to the re-rollers whose value of clearances have crossed Rs.75,00,000/- in a particular financial year for the purposes of exemption Notification No.1/93 on the ground that such re-rollers could not be said to be availing of exemption under the aforesaid Notification No.1/93 dated 28-02-1993 – In effect and substance, clause (3) of the notification provides for the eligibility criteria for getting the benefit of the said notification and accordingly provides that such S.S.I. units whose aggregate clearances in the preceding financial year have not exceeded two hundred lakhs shall be eligible to get the benefit of the said notification. Assigning a plain meaning to the language used in the Government Order dated 1st March, 1994, the rerollers who are eligible to get the benefit of the Notification No.1/93 and are availing exemption thereunder are eligible to get the benefit of deemed credit thereunder - Assessee appeal allowed
2015-VIL-29-CESTAT-KOL-CE
M/s AI CHAMPDANY
INDUSTRIES LTD Vs COMMISSIONER OF CENTRAL EXCISE- KOLKATA-IV
Central Excise Act, 1944 - Section 35F - Deposit of certain percentage of duty demanded or penalty imposed before filing appeal - Non-compliance with the statutory requirement of pre-deposit – Assessee contents that appeals have been filed against the respective orders which were passed prior to the amendment to Section 35F of CEA, 1944. Accordingly, the amended Section 35F of CEA, 1944 which came into force from 06.08.2014 would not be applicable to theses appeals filed against such orders - HELD - In terms of the amended Section 35F of CEA, 1944 w.e.f. 06th August, 2014, this Tribunal is barred from entertaining any appeal unless pre-deposit as mentioned in Section 35F is complied with. It is a cardinal principle of statutory interpretation that while incorporating a statute or a provision into the existing statute, the Legislatures are fully aware of the position of law as was prevailing on the date of new legislation or bringing the change into the existing legislation. We find the law i.e. amended Sec.35F of CEA, 1944 is very clear and unambiguous and the intention of the legislature is also loudly made clear about its applicability. Needless to emphasize, the Tribunal is a creature of the statute and accordingly bound by the statute – Appeal dismissed
2015-VIL-30-CESTAT-DEL-ST
GDPA FASTNERS Vs CCE, LUDHIANA
Denial of refund claim – Benefit of notification No.41/07-ST - Non production of original documents – Limitation – HELD - It is considered essential that the production of relevant records to examine the claim for refund for proper prospective. Accordingly, it is considered necessary to remand the matters back to the original adjudicating authority to ascertain the correctness of the refund claim without considering limitation factor. However, Commissioner may also go into the limitation issue in de novo adjudication as pointed out by ld. Counsel as well as ld. DR. - Appeals are remanded back to the original adjudicating authority for finalization of the refund claims - Matter remanded
PPT presentation on GST - Prepared by Indirect Taxes Committee, Institute of Chartered Accountants of India
20th of Jan
2015-VIL-28-MP
CONFEDERATION OF REAL ESTATE DEVELOPERS ASSOCIATION OF INDIA (CREDAI) Vs THE STATE OF MP
Constitutional validity of Bhopal Municipal Corporation order imposing 'Narmada Tax' as a pre-condition for grant of sanction for raising construction of building - Imposition of the tax is to recover the amount invested by the Municipal Corporation for establishment of the infrastructure and maintenance to bring the Narmada water from Hoshangabad to Bhopal - Entry 49 of the List-II of the Seventh Schedule – Power of Municipal Corporation impose such tax under the entry ‘any other tax’ under Section 132 (6) (o) of the Municipal Corporation Act, 1956 – HELD – As per legal propositions the levy of ‘Narmada Tax' on the lands is within the competence of the State under Entry 49 of List-II of the Seventh Schedule - Challenge to the levy of tax, be it tax on lands and buildings, at the time of grant of building permission and not after construction or not referable to water actually consumed during the construction – HELD - For, the quintessence of the taxing provision is that the water must be supplied by the local Government. In other words, the incidence of tax is on the water actually consumed and that water is supplied by the Corporation. Tax cannot be levied in anticipation, be it for the lands and buildings. It cannot be levied in advance on the basis of proposal of development of the land in question - The proposal to develop the land was to be later on abandoned or the land development permission granted by the planning authorities was to lapse due to non-construction of building within the specified time/statutory period - Petition allowed
Validity of imposition of ‘flat rate' of tax on the lands – Whether levy can be justified on the touchstone of flat rate or one time tax - The imposition of `Narmada Tax' on the basis of built up area in a blanket manner across the whole municipal area on the `flat rate' basis is violative of Article 14 of the Constitution of India. As a result, the impugned order deserve to be and are hereby quashed. The amount of `Narmada Tax' deposited by the petitioners in pursuance to the interim order be refunded to them.
Refund - Since the petitioners have succeeded in these petitions on the finding that the levy is without authority of law, to do complete justice it is appropriate to direct the respondents to refund the amount deposited by the petitioners with some reasonable interest thereon - from the date of deposit till it is refunded. - Considering the prevailing interest rate payable by the Bank on any fixed deposit, we deem it appropriate to direct the respondents to refund the amount collected, from the respective petitioners with interest thereon at the rate of 9% per annum – Writ petition allowed
2015-VIL-29-P&H
STATE OF HARYANA Vs M/s HARI KEWAL VANASPATI MILLS
Haryana General Sales Tax, 1973 - The State of Haryana is surprisingly advancing a plea that adequate opportunity should not be granted to the assessee or in the alternative as adequate opportunity has been granted, the impugned order dated 3.10.2012, passed by a Full Bench of the Tribunal may be set aside – HELD - A fundamental principle that governs all quasi judicial determinations is strict adherence to principles of natural justice. Thus, where an Assessing Authority collects material against an assessee and then proceeds to nullify an already concluded assessment to fasten additional lability, the Assessing Authority would be required to confront the assessee with all relevant material that is likely to form the basis of his consideration. The question whether documents relied by the Assessing Authority were prepared by the assessee or that the assessee did not ask for an opportunity, are questions relating to the final order to be passed and therefore, do not absolve an Assessing Authority of its obligation to confront the assessee with relevant material. The Tribunal has recorded a clear finding that the assessee was not granted adequate opportunity to rebut material collected by the authority. Section 31 of the Haryana General Sales Tax, 1973, itself requires grant of a “reasonable opportunity” thereby requiring adherence to principles of natural justice, before an adverse order of reassessment is passed against an assessee – Appeal dismissed
2015-VIL-32-CESTAT-MUM-ST
M/s KONKAN SYNTHETIC FIBRES Vs COMMISSIONER OF CENTRAL EXCISE, RAIGAD
Service Tax - Agreements for operational facilities and personal facilities – Reimbursement towards general support services, Operational services, Personal services and Secretarial services - Management consultancy service or merely reimbursement of expenditure – HELD - We have considered the definition of management consultancy service and management consultant. As per Section 65(65), Management Consultant means "any person who is engaged in providing any service, either directly or indirectly, in connection with the management of any organisation or business in any manner and includes any person who renders any advice, consultancy or technical assistance, in relation to financial management, human resources management, marketing management, production management, logistics management, procurement and management of information technology resources or other similar areas of management - No services are provided by the appellant in connection with the management of M/s. Centak Chemicals Ltd. They are not rendering any advice or consultancy to M/s. Centak Chemicals Ltd. The very nomenclature of the service "management consultancy" indicates that it has nothing to do with provisions of facilities such as water, effluent treatment, etc. the expenditure of which is all reimbursed to the appellant – Assessee appeal allowed
2015-VIL-33-CESTAT-BLR-ST
VIKRAM HOSPITAL PVT LTD Vs COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, MYSORE
Service Tax - Demand, interest & penalty – Failure to file the stay application for waiver of pre-deposit of penalty at the time of filing appeal but same was files before the personal hearing - Request for waiver of pre-deposit and stay against recovery has been rejected on the ground that the application was filed belatedly and further since the appellant had not discharged the entire amount of penalty, the appeal itself has been rejected – HELD - I am unable to appreciate the logic behind the observations of the learned Commissioner. How can an assessee profit by not filing the stay application is beyond comprehension - In this case the application for waiver of pre-deposit filed has been rejected on the ground of delay without citing any legal provisions to support the observation of the Commissioner. In the absence of any legal provision prescribing the time limit for filing stay application and having regard to the fact that appellant had filed application for waiver of pre-deposit before the appeal was being considered and personal hearing was granted, I consider that the Commissioner’s decision to reject the appeal as not maintainable cannot be sustained. Accordingly the impugned order is set aside and the matter is remanded to the learned Commissioner to consider the application for waiver of pre-deposit in accordance with law – Appeal allowed
2015-VIL-30-P&H-CE
M/s K.K.KOHLI & BROTHERS PVT LTD Vs UNION OF INDIA AND OTHERS
Central Excise - Disallowance of deemed credit – Penalty – HELD - A perusal of the aforesaid extract reveals that the appellant did not dispute before the CESTAT that their were defaults in payment of duty in respect of several fortnights and also did not dispute that they utilised credit in violation of debarment orders issued under the Central Excise Rules, namely, orders dated 31.01.2002 and 24.09.2002. Despite these admitted infractions and consequent violation of the rules, the Tribunal was charitable enough to allow credit to be adjusted towards duty at the time of clearance of final products on the premise that it would otherwise lead to the payment of double duty by the appellant. We may not be entirely satisfied with the opinion recorded by the Tribunal but as there is no appeal by the revenue, affirm the order particularly in view of the admission with respect to defaults recorded in the impugned order. The appellant having admitted his default, there was no reason for the Tribunal to go into the notification, clarifications in the budget etc. or the other provisions, and, therefore, rightly concluded that penalty must necessarily follow as violation of utilisation of credit contrary to debarment orders – Appeal dismissed
2015-VIL-31-CESTAT-CHE-CE
CCE, CHENNAI Vs M/s TRACTORS AND FARM EQUIPMENTS LTD
Central Excise – Disallowance of Credit on plastic crates as input – HELD – Assesses are eligible for the CENVAT credit availed on plastic crates as inputs/material handling equipment – Revenue appeal dismissed
mpNoti01, moNoti04, mpNoti05
Madhya Pradesh: Regarding establishment of barrier and checkpost
mpNoti02
Madhya Pradesh: Extension in date for completion of assessment proceedings
apCir170115
Andhra Pradesh: Evasion of tax on Sugar - Certain instructions
21st of Jan
2015-VIL-35-CESTAT-CHE-CE
COMMISSIONER OF CENTRAL EXCISE, CHENNAI-II Vs TULSYAN NEC LTD
Central Excise - Input credit on furnace oil and oxygen as fuel used in the manufacture and clearance of exempted product - Period involved April 2002 to March 2005 – HELD - The present case is only on the credit availed on fuel used in the exempted product. The issue has already been settled by various High Courts and the Tribunal - Assessee is eligible to avail credit – Revenue appeal dismissed
2015-VIL-34-CESTAT-AHM-CE
M/s UNIMED TECHNOLOGIES LIMITED Vs COMMISSIONER OF CENTRAL EXCISE & S.T., SURAT
Cenvat Credit Rules, 2002 – Use of common inputs in the manufacture of dutiable and exempted products - Demand of 8% of the sale value of the exempted goods as the appellant had not followed the procedure as prescribed under Rule 6 of the Cenvat Credit Rules, 2002 – Discharge of duty amount by equivalent to CENVAT credit - HELD – HELD - Issue is covered by amendment of Rule 6 of Cenvat Credit Rules, 2002 with retrospective effect in Finance Act, 2010 – Impugned order set aside and appeal is allowed
ceNoti01NT
CBEC: Amendment in Jurisdiction notification No. 27/2014-Central Excise (N.T.), dated the 16th September, 2014
ceInstruction
CBEC: Instructions regarding issue of summons in Central Excise and Service Tax matters
22nd of Jan
2015-VIL-31-MAD
RAJ LUBRICANTS (M) PRIVATE LTD Vs THE STATE OF TAMIL NADU
Tamil Nadu General Sales Tax Act, 1959 - Whether interest collected admittedly for the belated payment of the sale price can constitute pre-sale charges to be subjected to sales tax – HELD – In the instant case the invoice itself gives an answer to the issue, as it contemplates interest on belated payment. So sale is coupled with interest on delayed payment. There is no independent agreement on interest, as rightly pointed out by the Tribunal. Moreover, Section 2(r) of the Act defines ‘turnover’ as aggregate amount for which goods are bought or sold or supplied or distributed by a dealer either directly or through another, on his own account or on account of others whether for cash or for deferred payment or other valuable consideration. When the invoice of the petitioner contemplates interest on delayed payment the Tribunal was justified in including the same in the taxable turnover – Appeal dismissed
2015-VIL-34-GUJ
STATE OF GUJARAT Vs PREMPREET TEXTILE INDUSTRIES LTD
Gujarat Value Added Tax Act - Whether the Tribunal has erred in deciding the appeal on merits despite the fact that the first appellate authority dismissed the appeal for failure to deposit the pre-deposit - failure to make the pre-deposit - Validity of Tribunal’s action on decided appeal on merits – HELD - The appeal before the Tribunal was directed against the order of the first appellate authority imposing certain condition of pre-deposit before entertaining the appeal on merits - The Tribunal, instead of deciding the correctness of such an order, proceeded to decide the appeal on merits and allowed it as well – Tribunal committed serious error in examining the appellants grievances on the merits of the order of assessment – the Tribunal could not have bypassed the statutory requirement of pre-deposit, unless it was waived by an order in writing – Order passed by the Gujarat Value Added Tax Tribunal is set aside and the matter is remitted to the Tribunal for fresh consideration – Revenue appeal allowed
2015-VIL-33-MP-CE
JAIPRAKASH ASSOCIATES LIMITED Vs UNION OF INDIA AND OTHERS
Central Excise – Recovery – Provisions of Clause 6 and 10 of a Circular dated 1.1.2013 - Recovery of the demanded amount or the assessed amount during the pendency of the appeal when a stay application is pending or after the appeal is decided as contemplated under Clauses 6 and 10 of the Circular – HELD - The petition, so far as it pertains to challenge made to the provision of Clause 6 is concerned, the same is allowed and we direct that in the case of the petitioner also, the principle laid down by Bombay High Court in Larsen & Toubro Limited Vs UoI with regard to the said Circular shall be made applicable and the petitioner shall be granted the benefit of the said order - Clause 10 pertains to recovery to be initiated after orders are passed in the appeal - once the appeal is finally decided and an order is passed, the revenue is entitled to recover the amount demanded or assessed and until and unless stay is granted by a Higher Forum or Court of law, the revenue cannot be debarred from initiating action for recovery once an appeal is decided either way. There is much force in this contention and we see no reason to interfere into this part of the prayer made in the writ petition – Petition partly allowed
2015-VIL-32-MAD-CE
M/s RAJA CROWNS AND CANS PVT LTD Vs UNION OF INDIA
Central Excise – Goods supplied to 100% EOUs – Refund of terminal excise duty rejected based on clarification by the Policy Interpretation Committee that the supplies to EOUs are exempted from payment of Central Excise duty – HELD - In an identical set of facts, the Division Bench of the Delhi High Court in Kandoi Metal Powders Manufacturing Company Pvt Ltd Vs UoI took a decision in favour of the manufacturer - The said case arose out of a decision taken pursuant to the resolution dated 04.12.2012 which is impugned in this writ petition. Therefore, the cause of action in the case before the Delhi High Court was the impugned resolution. The decision rendered by the Delhi High Court binds the respondents - Impugned order is quashed and the third respondent (JDGFT) is directed to process the refund claim in accordance with the 2009 Policy by taking into consideration the petitioner's refund application dated 16.08.2010 and pass appropriate orders in accordance with law, within a period of three months – Assessee petition allowed
2015-VIL-37-CESTAT-AHM-ST
COMMISSIONERS OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX-VADODARA-II Vs SKP PROJECTS (P) LTD
Service tax – Classification of service - ‘Consulting Engineering Service’ or ‘Survey and Map Making Service’ – Scope of work includes Route Survey, Geotechnical Investigation, Soil Investigation, Receptivity and Cadastral Survey, Geochemical Survey etc., on the basis of engineering survey work of the proposed new location, pipe line route survey work, detailed route survey, bore holes - Revenue contention is that the Director of the Company is a Diploma holder in Engineering, who rendered the service and service would come within the definition of ‘Consulting Engineering Service’ – Appeal relates to for the period 1999-2000 to 2003-2004 - HELD - It is contended that the term the ‘Technical Assistance’ means providing assistance on the basis of the special skills and knowledge. On the other hand, on plain reading of the definition of Survey and Map Making, we find that it covers Geological, Geophysical, or any other prospecting etc., of any kind - In the instant case, the activity relating to surveying the projects of M/s GAIL and ONGC would cover the definition of ‘Survey and Road Mapping’ – No reason to interfere findings of the Commissioner (Appeal) - Revenue appeal dismissed
2015-VIL-36-CESTAT-BLR-ST
M/s INFOSYS TECHNOLOGIES LTD Vs COMMISSIONER OF SERVICE TAX BANGALORE
Service Tax - Export of service - Refund of accumulated input service credit – Denial of refund on the ground assessee has not produced any documentary evidence showing the usage of the input services in the output service exported and not fulfilled the conditions of the Export of Service Rules, 2005 - As seen from the above, the appellate authority has decided in favour of the assessee as far as the legal issue is involved. He has simpliciter directed to lower authority to examine the documents for the purpose of grant of refund of accumulated credit. As such, the appellant cannot be held to be aggrieved with the order – Assessee appeal dismissed
stNoti01
Service Tax: Amendment in jurisdiction notification
gujNoti42
Gujarat: Regarding Exemption of tax u/s (5)(2)(a) on Technical Grade Urea and Soap (handmade) manufactured with use of motor upto 3HP
mpNoti06
Madhya Pradesh: Amendment in the Madhya Pradesh Vat Rules, 2006 - In the limited context of Basmati Dhan in rule 5-A for the words "rupees ten crores", the words "rupees fifty crores" shall be substituted
punNotiSO3
Punjab: Ameendment in Schedule B -Decrease in rate of tax on Cranes & Earth moving equipments
punNotiSO2
Punjab: Exemption to Sugar Mills from payment of Purchase tax for 2014-15
biharNotiSO14
Bihar: Notification regarding Rate decreased on Tobacco Product
biharNotiSO12
Bihar: Notification regarding Multiple Point Tax on IMFL
biharNotiSO10
Bihar: Notification regarding Multiple Point Tax on IMFL
rajNoti175
Rajasthan: Amendment in Schedule-IV regarding rate of tax on Carbon dioxide
rajNoti174
Rajasthan Value Added Tax (Amendment) Rules, 2015 - Amendment in rule 40 of the RVAT Rules, 2006
utrNoti96
Uttarakhand: Major amendments in Uttarakhand VAT Schedule-I and Schedule-II(B)
utrNoti97
Uttarakhand: Amendments in Uttarakhand VAT Schedule-I and Schedule-II(B)
utrNoti98
Uttarakhand: Exmeption to manufacturing industrial unit having his main place of business in Uttarakhand
utrNoti99
Uttarakhand: Withdrawal of concessional rate to the sale or purchase of Timber or Wood
utrNoti100
Uttarakhand: The Uttarakhand Value Added Tax (Amendment) Rules, 2014 - Amendment in Rule 21
23th of Jan
2015-VIL-35-JHR
HINDUSTAN CONSTRUCTION COMPANY LTD Vs STATE OF JHARKHAND
Jharkhand Value Added Tax Act, 2005 - ex parte order of assessment – Method of service of notice in case of high value case – Limitation - Violation of fundamental right of the assessee - HELD - It ought to be kept in mind by the State that when the State is imposing such a huge liability of tax of approximately Rs. 90 Lakhs, more care should have been taken by the State to the notice upon the petitioner or upon the assessee. Not only orthodox methods of service of notice should have been followed, but, over and above the orthodox methods, the State should have served the notice upon assessee by sending any employee of the State. The State has several vehicles and persons with them. When such a huge liability of tax is imposed or is going to be imposed, the State should have served the notice upon the assessee by sending any responsible employee instead of passing exparte order. When there is more liability of amount of tax, more care should have been taken by the State, at least in following the procedure. Always exparte orders have inbuilt difficulties because correct facts along with correct documents are not available with the assessing office - The provision of sub-section 2 of Section 42 is also applicable whenever any order is passed in writ petition under Article 226 of the Constitution of India, mainly for the reason that there is an exparte assessment order without giving any opportunity of being heard to the assessee and once there is a violation of principles of natural justice, the impugned order will be arbitrary and once there is arbitrariness in passing of the order, the said order is always violative of right of equality vested in the petitioner under Article 14 of the Constitution of India. Thus, the impugned order is violative of fundamental right guaranteed to the petitioner – Matter is remanded to CTO to decide afresh the tax liability, if any, of the petitioner. The relaxation of the time limit as mentioned in Subsection 2 of Section 42 which is applicable in the case of appellate order or revisional order, is also applicable whenever any order is passed in the writ petition under Article 226 of the Constitution of India. Hence, there is no question of limitation whatsoever arises in this case, if the assessing officer is deciding within the time limit, as stated in sub-section 2 of Section 42 of the Act
2015-VIL-39-CESTAT-DEL-ST
AHLUWALIA CONTRACTS (I) LTD Vs CCE NOIDA
Service Tax – Work Contract – Disallowance of Composition Scheme for works contract service in respect of the composite contracts executed with effect from 1.6.2007 on the ground of that projects were ongoing contracts – Denial of benefit of 67% abatement under Notification No. 1/2006-ST on the ground that assessee had taken Cenvat credit of input services – HELD - The classification of service is to be determined in terms of the nature of service rendered vis-a-vis the definition of various services as applicable on the date of rendition of service. The Boards circular dated 4.1.2008 is in disharmony with law to the extent it holds that with effect from 1.6.2007 the classification cannot be changed for ongoing projects even if the service rendered is more specifically covered there under. Thus even if the classification of service prior to 1.6.2007 in respect of ongoing contracts was under CICS/CCS, the same would be classifiable as works contract service (WCS) with effect from 1.6.2007 if the service rendered was more specifically covered there under and if the classification is held to be under WCS the benefit of Notification No. 1/2006-ST would not be applicable with effect from 1.6.2007 as the said notification is not applicable to works contract service. However, the benefit of Rule 2A of the Service Tax (Determination of Value) Rules, 2006 or any other applicable notification can be claimed by the appellants subject to producing the required evidence - As regards denial of the benefit of abatement under Notification No. 1/2006-ST on the ground that the appellants had taken Cenvat credit in respect of input services, it is to be pointed out that the said notification does not debar availment of Cenvat credit on input services – Matter remanded
2015-VIL-38-CESTAT-DEL-ST
C.C.E. PANCHKULA Vs M/s KRISHNA CYLINDERS
Service Tax - Goods transport agency services – Non-payment of service tax for the period 01.04.2005 - 31.03.2006 - Penalty - Benefit under section 80 of – HELD - Admittedly in this case audit took place on 30.08.2006 and 31.08.2006. It was revealed that the respondent has not paid the service tax for the period 01.04.2005 - 31.03.2006 on outward transportation services. It is also fact on record that the levy of service tax by the respondent in outward transportation agency services came into the fact on 01.01.2005. We further find that for the subsequent period 01.01.2006-31.03.2007 the respondent has paid the service tax on pointing out by the audit team and there was no allegation against the respondent in those proceedings for suppression of the facts. In these circumstances, we are convinced with the arguments advanced by the Ld. Counsel for the respondent that as the levy of service tax on the services in question was new one. Therefore, they were under bonafide belief and could not pay service tax. We further find that respondent has been able to satisfy their bonafides. Therefore, they are entitled to the benefit of section 80 of the Finance Act 1994 – Fit case for granting benefit under section 80 – Revenue appeal dismissed
2015-VIL-40-CESTAT-DEL-CE
RATUSARIA STEEL PVT LTD Vs CCE & ST RAIPUR
Cenvat Credit – Denial cenvat credit on rough forged rolls as inputs - Show cause notice was issued on the premise that these rough forged rolls are capital goods and respondent is entitled to take 50% of Cenvat Credit in the first year and as the appellant has availed 100% credit on said goods, therefore the impugned proceedings were initiated – HELD - The finding of the Commissioner (Appeals) are confirms forged rolls are inputs used for manufacture of specified capital goods i.e. machine rolls and as such are admissible for Cenvat credit in terms of Rule 2(k) of Cenvat Credit Rules, 2004 – Hence, specified rough forged rolls are nothing but inputs only – Cenvat Credit is admissible on rough forged rolls – Assessee appeal allowed
2015-VIL-41-CESTAT-DEL-CE
JCT LIMITED Vs COMMISSIONER OF CENTRAL EXCISE, JALLANDHAR
Central Excise – Duty demand on the spun yarn of Chapters 52 and 55 of the Central Excise Tariff on the spindles which had been subjected to the processes of winding/cheese winding and singeing and doubling/multifolding prior to being used captively for manufacture of fabrics; and on the man-made spun yarn of Chapter 55 purchased from outside which had been subjected to the above processes before being used in the manufacture of fabrics – Revenue contention is since these processes appeared to be manufacturing processes which added to the value of the yarn, the cost of these processes was also required to be added to the cost of yarn on spindles for the purpose of payment of duty – Valuation - Captive consumption – HELD - w.e.f. 16-3-1995 Chapter Note 1 of Chapter 52 was replaced by a new note providing that in relation to the products of Headings 52.04, 52.05 and 52.06 the process of printing, bleaching, mercerizing, twisting, texturising, doubling, multifolding, cabling or any other process or any one or more of these processes or the conversion of any form of the said product into another form of such product shall amount to manufacture. Similar amendment was made w.e.f. 16-3-1995 in the corresponding Chapter Note of Chapter 55. Thus, w.e.f. 16-3-1995, the process of winding i.e. transferring the yarn from bobbins to cones was no longer a process of manufacture. In view of this, there is no question of adding the cost of winding by charging duty on the spun yarn at spindle stage. The impugned order, therefore, upholding the duty demand is not sustainable and the same is liable to be set aside – Duty on doubled/multifolded yarn is cleared for captive consumption – HELD - Since doubled/multifolded yarn is cleared for captive consumption within the factory for manufacture of fabrics the cost of winding, sungeing doubling/multifolding gets included in the cost of fabrics which is cleared on payment of duty. Duty on cost of these processes cannot be charged at single yarn stage by including the cost of these processes in the value of yarn at the spindle stage – The impugned order for duty demand is not sustainable and set aside – Assessee appeal allowed
apCir117
Andhra Pradesh: CST Act, 1956 - Clarification regarding pending Assessments to be completed
upCir1415116
Uttar Pradesh: ITC claim on Non VAT goods [in Hindi]
27th of Jan
2015-VIL-39-GUJ
STATE OF GUJARAT Vs JAY STEEL & TUBES TRADERS
Gujarat Value Added Tax Act – Additional demand - Penalty – Adjustment of input tax credit - Whether the Tribunal erred in deleting levy of interest and penalty merely because assessee had excess input credit adjustable against tax demand – HELD - From the observation of the Tribunal, it appears that though the assessing officer had raised additional tax demand and imposed interest and penalty on such basis, the Tribunal was of the opinion that the assessee had sufficient Input Tax Credit and those tax credits could have been adjusted against the assessee’s additional assessed tax liability. That being the position, the Tribunal correctly held that the interest could not be charged. Since there was no intention on part of the assessee to avoid payment of taxes, no penalty imposable – Revenue appeal dismissed
2015-VIL-36-P&H
AYAPPA INFRA PROJECTS PVT LTD Vs THE STATE OF PUNJAB AND OTHERS
Punjab VAT Act, 2005 - Exemption from advance tax - Provisions relating to advance tax by the works contractor doing work in Punjab – State admitted before the High Court that works contractors whose TDS is being deducted, is not liable to pay advance tax – Thus making it clear that works contractors are also eligible for exemption from advance VAT u/s 6(7) of Act - High Court directed State of Punjab to issue clarification to the effect that works contractors are also eligible for exemption from advance VAT levied u/s 6(7) of Act
2015-VIL-37-BOM-CE
CEAT LIMITED Vs UNION OF INDIA
Central Excise - Petitioners seek a declaration that classification made by section 88 of the Finance (No.2) Act, 2004 disallowing utilization of the credit of Additional Excise Duty (GSI) on goods of special importance paid after 1 April 1996, but prior to 1 April 2000 for payment of duty for First and Second Schedule to Central Excise Tariff Act, 1985, but at the same time allowing utilization of credit of Additional Excise Duty on the same goods paid on or after 1st April 2000 is violative of Article 14 of the Constitution of India and hence invalid – HELD - The Petitioners have been availing of Cenvat Credit of Basic Excise Duty, namely Cenvat Duty payable under section 3 of the Act as well the AED (GSI) payable under the 1957 Act paid on their inputs received on or after 16 March 1995. Availment of and utilization of Cenvat credit as in force at the material time from 16 March 1995 to 28 February 2003 enabled the credit of AED being utilized for payment of AED on the finished goods. The said credit was not allowed to be utilized for payment of any other duties, including the Excise duty under section 3 of the Act. The Rule was amended namely Rule 3(6)(b) with effect from 1 March 2003 and thereby the utilization of AED for payment of cenvat duty on the finished goods was allowed. The amended Rule with effect from 1 March 2003 has permitted utilization of the cenvat credit in respect of Act of 1957 for payment of duty of excise leviable under the First or the Second Schedule of the Tariff Act, 1985. Thus, as per the amended Rule, credit of Additional Excise Duty leviable under section 3 of the 1957 Act may be utilized towards the payment of duty of excise leviable under the First or Second Schedule of the Tariff Act - There is substance in the contention of the Revenue that in the Amendment Act no date was prescribed for availing and utilization of the Cenvat credit of the additional duty of excise paid. With the result that number of manufacturers had utilized cenvat credit lying with them as on 1 March 2003, for payment of cenvat credit duty payable on finished products/goods under section 3 of the 1957 Act. On realizing this, the Government amended the provision of the Cenvat Credit Rules 2000 retrospectively with section 88 of the Finance Act allowing utilization of Cenvat Credit of AED paid on or after 1 April 2000. That is how the explanation was substituted. We do not see how we can uphold the argument of the Petitioners that the restrictions placed by the Explanation should be interfered with any other stipulation as desired by them so as to make the provision operational from 1 April 1996. We have amply clarified as to how the issue of Cenvat Credit has been dealt with and in terms of the law made by the Parliament and which enables the availment. We find that the explanation which is set out in the affidavit of the Revenue justifies giving retrospective effect to the Rules from 1 April 2000. Apart therefrom, we find that the Petitioners have raised the issue of Constitutional validity only after they were served with the demand and which eventually was adjudicated, but being still under consideration in the pending Appeal. The issue of legality and validity of the demand and the order in relation thereto can be gone into in the Appeal. The contentions based on that and the merits of the said order challenged in the Appeal is not required to be gone into in this Writ Petition - In the present case, once the co-relation could not be established, then the Petitioners derive no benefit of the Constitutional provisions and selection of the date, namely, 1st April 1996 for they being brought into effect
2015-VIL-42-CESTAT-DEL-CE
PORTLAND CEMENT (I) LTD Vs C.C.E. LUCKNOW
Central Excise – Imposition of demand and penalty for Clandestine manufacture and removal of goods on basis of meter readings or power consumption – Lack of conclusively prove - HELD - Department has not been able to conclusively prove the clandestine manufacture and clearance. Once clandestine manufacture and removal is not conclusively proved, even though there are indications in this regard, no case for demand of duty is made - Once demand deserves to be dropped, there could be no reason for imposition of penalty on the appellants and directors/partners. Deeper investigations into the movements of trucks which were used for clearance of so call unaccounted Cement, could have lead to irrefutable, evidence affecting outcome of the case - Seizure of bags of cement which had attained RG1 stage - Appellants plea that entries in RG1 could not be made due to absence of dealing clerk cannot be accepted as it is the duty of the management to make an alternative arrangement and entries in RG1 cannot be postponed just because one of the employees was on leave - Imposition of redemption fine upheld – Appeal partly allowed
2015-VIL-38-MP-ST
COMMISSIONER, CUSTOMS & CENTRAL EXCISE Vs STATE OF MADHYA PRADESH
Service Tax - Storage & Warehouse Services - Service tax on supervision charges collected from Contractor – State Government employing the staff for inspecting and ensuring that storage of liquor in the ware house is undertaken in a proper manner and as the same is subjected to payment of 5% by the Contractor - According to the Revenue the collection of this 5% by the Government is nothing but a service provided by the State Government for the purpose of storage and ware housing services and, therefore, taxable – HELD – The supervisory staff appointed by the State Government or the Excise Department does not provide any service on behalf of the Government to the Liquor Contractor or the person who is storing the liquor in the warehouse or the storage. On the contrary, the supervisor only keeps a watch on the material stored in the warehouse and ensures that the person manufacturing, exporting, importing or storing the material in the warehouse carries out the activities strictly in accordance to the MP Excise Act, 1950; all the requirements with regard to preparation of inventory, transportation, movement, storage and even insurance of the property is undertaken as per the statutory provision and the excise policy. What is done by the supervisor/supervisory staff so appointed by the State Government is not to provide any service on behalf of the State Government to the Liquor Contractor, but to ensure that all the activities in the warehouse where the liquor is stored is carried out in a proper manner without there being any contravention to the rules or regulation governing distribution, manufacturing of liquor, no evasion of duty etc. - That being so, the activities of the staff appointed to supervise the work of the warehouse and the act of the State Government in appointing the supervisor does not fall within the purview of providing service by a service provider to a client - No error in the order passed by the Tribunal holding that the supervision in the warehouse undertaken by the State Government does not amount to ‘service’ and is not taxable under the head ‘Storage and Warehouse Services’ – Revenue appeal dismissed
2015-VIL-43-CESTAT-BLR-ST
ADECCO FLEXIONE WORKFORCE SOLUTIONS LTD Vs COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, BANGALORE-LTU
Service Tax – Denial of credit on the ground that service provider had taken the registration subsequently and the credit of tax paid to the service provider prior to obtaining the registration would not be available – HELD - An assessee who has paid the service tax to the service provider, is entitled to avail the credit of the same, without finding whether such service tax paid by him to the service provider stands further deposited by him to the exchequer. It is neither possible nor practicable for any service recipient to verify the fact of payment of service tax by the service provider. If the Revenue is of the view that the service provider has not deposited the service tax collected by him from his customers, the remedy lies at the end of the service provider and not at the end of the service recipient. Apart from that, the Revenue has not made any verifications at the end of the service provider to find out as to whether the service tax has actually been deposited by them or not. There is neither any allegation much less any evidence to that effect – There is no justifiable reason to deny the credit of the service tax to the appellant – Appeal allowed
kerCir04
Kerala: Procedure& Instructions - Works Contract – Filing of Form 10B Quarterly Return
kerCir02
Kerala: instructions regarding stay on collection of disputed amount
apCir92
Andhra Pradesh: APVAT Act, 2005 – Cancellation of e-Way Bills – Pending tasks misuse of cancellation facility
rajNoti177
Rajasthan Tax on Entry of Goods into Local Areas Act, 1999 - Regarding 'Bitumen' - Amendment in this department's notification No. F12(59)FD/Tax/2014-32 dated 14.07.2014
rajNoti178
Rajasthan Tax on Entry of Goods into Local Areas Act, 1999 - Regarding 'Bitumen' - Amendment in this department's notification No. F12(59)FD/Tax/2014-33 dated 14.07.2014
28th of Jan
2015-VIL-40-MAD
THE STATE OF TAMIL NADU Vs PERAMBALUR CO-OPERATIVE MARKETING SOCIETY
Tamil Nadu General Sales Tax Act - Turnover relating to auction sale of agricultural produce by the assessee who had acted as agents of agriculturists with complete dominion over the goods – Interpretation of ‘dealer’ - Whether the a co-operative marketing society, is a dealer falling within the definition of Section 2(g) of the TNGST Act and liable to pay tax under the provisions of the Act – HELD - In the case on hand, we find that the respondent/society acted as an intermediary, bringing together the agriculturists-principals and the buyer, and they have no authority to sell the goods and, therefore, the respondent/ society is not a 'dealer' as defined under Section 2(g) of the TNGST Act. As the respondent/society has not effected any sale, they have not acquired any turnover liable to sales tax – Revenue appeal dismissed
2015-VIL-41-ALH
M/s SUPER CASSETTE INDUSTRIES LTD Vs COMMISSIONER OF TRADE TAX
U.P. Trade Tax Act, 1948 – Amendment in exemption notification - Exemption or reduction of tax was admissible to the assessee revisionist at the percentage of the rate normally applicable to it under the Act - Whether the amendment made by the notification dated 05.05.1997 is applicable from the said date itself or it would operate retrospectively from the date of the issuance of the original notification amended i.e. notification 781 dated 31.05.1995 – HELD - There is nothing on record to suggest that the amendment by substitution has been given retrospective step rather the notification dated 05.05.1997 in specific and unequivocally terms recites that the amendment which is being made in the notification dated 31.03.1995 shall come into effect from the date of publication of the notification in the gazette. The said notification in the gazette was admittedly published on 05.05.1997. Therefore, when the notification itself provides for the date of applicability of the aforesaid notification no retrospectivity to it can be attributed so as to apply it from the effective date of notification No.781 dated 31.03.1995 - The tribunal as such is not justified in holding that the amendment would be operative from 01.04.1995. Even if it is assumed that there was some mistake in the notification dated 31.03.1995, the said mistake cannot be taken note of. The mistake if any as suggested by the tribunal was corrected by the notification dated 05.05.1997 and the said mistake would stand rectified from the date of publication of the subsequent notification and would not relate back to the notification dated 31.03.1995 – Assessee revision allowed
2015-VIL-47-CESTAT-CHE-CE
M/s M.M. FORGINGS LTD Vs CCE, TRICHY
Central Excise - Refund of unutilized input credit attributable to the exported goods under Rule 5 of CCR, 2002 – Exclusion of the input credit on inputs lying in stock and contained in the finished goods in stock – HELD - The Rule 5 of CCR, stipulates that where the exporter can claim refund only when not able to utilize the accumulated cenvat credit for payment of domestic clearance - Rule 5 r/w Notification No. 11/2002, the input credit attributable to the goods exported has been correctly worked out - What is excluded is the input credit involved in the physical stock of inputs and finished goods lying in stock on 31.03.2003. Therefore, the adjudicating authority has correctly sanction the refund amount - The case laws relied upon by the Ld. Advocate are not related to the facts of the present case. Accordingly, the impugned order is upheld and the appeal is dismissed
2015-VIL-44-CESTAT-AHM-CE
M/s HINGORA INDUSTRIES PVT LTD Vs CCE, DAMAN
Central Excise - Clandestine removal of goods - Search at the alleged secret office of the assessee - presumption regarding documents/computer recovered - department rejected the request for cross examination on the ground that the said persons being employee of assessee could have been compromising parties. – HELD - The veracity of the statements needs to be always checked and cross checked before relying upon such statement. Petitioner were well within their rights to ask for cross examination of these employees to bring on record that the statements tendered by these employees could not be relied upon for making allegation against the Appellants. In our considered opinion, due to non-granting of the cross examination of above said persons, no reliance can be placed upon these statements and thus the statement of these persons cannot stand test of the law - In all clandestine removals, it has been now well laid that the crux of the issue in respect of clandestine removal is that Revenue cannot proceed solely on the basis of a seized private notebook maintained by a worker unless the entries are corroborated by various other pieces of evidences - It was the duty of the investigating officers to have sought explanation from the Accountant with regard to the entries made therein. Non-examination of the Accountant has rendered the document inadmissible in evidence - Each link in the aspect of production and clandestine removal is required to be proved and since this has not been done, the demands are required to be set aside for lack of evidence in the matter - In absence of any tangible evidence which would indicate that there was clandestine manufacture and clearance of the goods by M/s Hingora Industries we hold that the charges of clandestine removal are not sustainable. Thus, in the peculiar facts and circumstances of this case, we hold that the impugned order which confirms the demand and penalty is not sustainable and is liable to be set aside and we do so. There is no sustainable demand, consequential penalties on various other appellants, who are in appeal before us, would also automatically be set aside – Assessee appeal allowed
2015-VIL-46-CESTAT-BLR-ST
THE MYSORE SUGAR COMPANY LTD Vs COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, MYSORE
Service tax for renting of immovable property to various State Government offices – Premises not used for business purposes - HELD – Relied on the order passed by the Commissioner (Appeals) - Prima facie it appeared that renting out to District Treasury and Lift Inspectorate do not fall within the scope of ‘renting of immovable property’ since both these offices are not using the premises for furtherance of any business. It is seen that District Treasury and Electrical Inspectorate informed that they are State Govt. authorities and they use the building for their office use and not for business purposes and hence they are not liable to pay service tax - Learned AR has not been able to show us that the earlier order of Commissioner (Appeals) was appealed against by the Revenue or the same was accepted - We deem it fit to set aside the impugned order and remand the matter to the original adjudicating authority for fresh decision after considering the definition of ‘renting of immovable property’ as also the observance made by the Commissioner (Appeals) in referred decision – Matter remanded
2015-VIL-45-CESTAT-AHM-ST
COMMISSIONERS OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, RAJKOT Vs RELIANCE PORTS & TERMINALS LTD
Service Tax – Port Services - Cenvat Credit – Denial of cenvat credit on the ground credit utilised before actual installation of the capital goods – Credit of service tax paid under section 66A – Raising of new ground by revenue in the Tribunal - HELD - The condition of installation for availing Cenvat Credit on capital goods was effective till 09.09.2004 and not thereafter. In the present case the capital goods have been procured after this date, in the year 2007-08, hence credit is admissible – Adjudicating Authority correct to hold that in view of retrospective amendment made to sub-rule (1) of Rule 3 of CCR, 2004 by inserting clause (ixa) with effect from 18.4.2006, assessee is eligible to take CENVAT credit of the Service Tax paid under Section 66A of the Finance Act, 1994 - There is no dispute of the eligibility of the cenvat credit in the entire proceedings. For first time, Revenue has taken grounds before the Tribunal on the eligibility of the cenvat credit on capital goods and inputs, which is not permissible under the law – Supreme Court ruling in the case of Carrier Aircon followed - Revenue appeal dismissed
gunNotiGHN6
Gujarat: Remission of Entry Tax on Yarn for Dyeing Job Work
gunNotiGHN7
Gujarat: Remission of Entry TAX on Yarn for Weaving jobwork
odiNoti1927
Odisha: Central Sales Tax (Odisha) Amendment Rules, 2015 - Amendment in Rule 3
29th of Jan
2015-VIL-43-P&H
M/s AMBUJA CEMENTS LTD, ROPAR Vs STATE OF PUNJAB AND ANOTHER
Punjab Value Added Tax Act, 2005 – Power of Tribunal - Petition for issuance of a writ of certiorari for quashing of revisional order and revising the assessment order – Maintainability of petition - Petitioner submits that as the words “designated officer” are not used in Section 65(2) of the Act, the revisional order passed by the “designated officer” cannot be made subject matter of a petition before the Tribunal – HELD - The Tribunal is vested with jurisdiction to consider and determine the petitioner's contentions about maintainability, dispose of the writ petition by relegating the petitioner to filing a petition before the Tribunal
2015-VIL-42-BOM-CE
SUNBEL ALLOYS CO. OF INDIA LTD Vs THE UNION OF INDIA & ORS.
Central Excise – Manufacturing – Whether the activity of repacking / relabeling / refining of laboratory chemicals undertaken by the appellants in respect of Petroleum Benzine and Hexane for Chromatography Lichrosolv would amount to ‘manufacture’ – Failure of Tribunal in following the binding precedent – Judicial prudence - HELD - In the present case, there is a far more serious legal infirmity. The appellants claim to be carrying on job work for E.Merck Specialties (P) Ltd. The principals of the appellants (E.Merk) faced identical allegations and were proceeded against for having carried on manufacturing activity in their premises. The product or goods in relation to which the allegations are made are identical. The Tribunal upheld the arguments of E.Merck and allowed its Appeal. That order was relied upon by the appellants in the proceedings against them. They succeeded before the Commissioner. The Tribunal does not make any reference to all this and does not deem it necessary to consider the arguments based on its earlier orders. These orders were stated to be final. Yet, the Tribunal omits to consider them - The Tribunal which is manned by experienced members drawn from the Revenue or Technical Services and Judiciary are expected to perform this task efficiently. They are selected and appointed on account of their merit and not just their experience. They may not have dealt with matters which required them delivering judgments and passing binding orders after hearing both sides and on questions of law, but, their learning knowledge and experience as Members of the Tribunal would improve their performance by passage of time. This minimal expectation is not fulfilled nowadays and cryptic orders lacking in reasoning and precision are passed day in and day out. We do not know where the fault lies. It is either in the process of selection and appointment or because there is no review and appraisal of the performance of the Tribunal Members from time to time. Whatever may be the cause, the outcome is rendering decisions which leave everything incomplete. Such unsatisfactory state of affairs need to be now brought to the notice of all concerned including the appointing authorities – Tribunal order quashed and set aside. The Appeal succeeds. The Revenue's appeal now shall be reheard by the Tribunal on merits and in accordance with law uninfluenced by its earlier conclusions - With these observations and by clarifying that this Court has not expressed any opinion on the rival contentions, either on merits of the show cause notices, the facts or on the questions of law, we dispose of the Appeal and the Writ Petition
2015-VIL-48-CESTAT-KOL-CE
COMMISSIONER OF CENTRAL EXCISE, KOLKATA-IV Vs M/s ADITYA BIRLA NUVO LTD
Central Excise - Assessee is manufacturer of wool top, which emerges exempted byproduct ‘wool grease’ – Cenvat credit on input namely, ‘Alphox 200’ - - failure to maintain separate accounts – HELD - Issue is no more res integra in view of the judgement of the Hon’ble Supreme Court in the case of Hindusthan Zinc Ltd wherein it has been laid down that separate accounts need not be maintained under Rule 57AD of erstwhile Central Excise Rules, 1944 or under Rule 6(2) of the CENVAT Credit Rules, 2002/2004, where use of inputs results in the emergence of byproduct, which is exempted. In view of the said judgement, we do not find merit in the Appeal filed by the Revenue. Once the merit of the case is decided in favour of the Respondent, there is no need for looking into the limitation aspect – Revenue appeal dismissed
2015-VIL-50-CESTAT-DEL-ST
M/s SAMSUNG INDIA ELECTRONICS P LTD Vs C.C.E. NOIDA
Service Tax – Export of Service - Appellant is engaged in the activity of maintenance and repairs of CDMA phones sold by their foreign clients to their Indian buyers during the warranty period and getting receiving a commission from their foreign client in foreign exchange – Demand, interst & penalty – HELD – The facts of this case are similar to the case of Blue Star Ltd Blue Star Ltd. Vs. Commissioner of Service Tax 2014-VIL-333-CESTAT-MUM-ST - Appellant had provided services of business support and maintenance and repairs to their client located outside India and performed in India on behalf of client located outside India. Therefore, it is the case of export of services. For the period prior to 2005 when the export of services and goods came into force the appellant is covered by the CBEC circular no.53/5/2003-ST dated 25.04.2003 - Appellants are not liable to pay service tax at all. Therefore, question of imposition of penalty does not arise. Consequently, we set aside the impugned order and allow the appeals
2015-VIL-49-CESTAT-CHE-ST
CST, CHENNAI Vs M/s FORD BUSINESS SERVICES CENTRE PVT LTD
Service Tax - Input service credit on ‘Rent-a-Cab Service’, ‘Outdoor Catering’, ‘Business Auxiliary Service’, ‘Insurance service’, ‘Pandal & Shamiana’, ‘Testing and Analysis’, and ‘Health & Fitness Service’ – Period involved relates to 2006-07 and 2007-08 - HELD - In the definition of input service, the cenvat credit was amended w.e.f. 01.04.2011, where the restriction was imposed. On Rent-a-cab service, the Board has already clarified vide Circular No. 943/4/2011-CX dated 29.04.2011 at point No.12 that the credit on Rent-a-Cab service was available for the period prior to 01.04.2011 - In view of the above Board’s clarification, the respondents are eligible for credit on Rent-a-Cab service. Regarding credit availed on Out-door catering, Insurance service, Pandal and Shamiyana services, testing and analysis, I find from the records that the respondents availed credit on these services for carrying out business activities and business meetings which are related to promotion of their business. In view of the Bombay High Court judgment in the case of CCE Vs Ultratech, the issue has already been settled in favour of the respondents and they are eligible for the credit on the above services - As regards the input credit availed on Sodexo Coupons issued to their employees which can be used by them for various purpose of transactions and it has no nexus in relation to any business activities of the respondents. Therefore, the respondents are not eligible for the credit availed on sodexo coupons under Business Auxiliary Service – Appeal partly allowed
upNoti136
Uttar Pradesh: Amendment in UPVAT Schedule-I and Schedule-II - Regarding Paddy & Rice
triNoti11
Tripura: Amendment in VAT Schedule II(b) and Schedule III - Regarding 'biri, unmanufactured tobacco, tobacco for manufacture of biri'
gujCir142
Gujarat: Extension in Time limit for application under works contract scheme [in Gujarati]
gujCir143
Gujarat: Extension for filling Audit Report & Annual Return [in Gujarati]
FCP2801
FROM THE CORRIDOR OF POWER - Updates from various Union Ministries, PMO & Cabinet
30th of Jan
2015-VIL-05-SC
COMMISSIONER OF TRADE TAX, U.P. Vs M/s HYDERABAD INDUSTRIES LTD
Uttar Pradesh Trade Tax Act - Rebate of tax to cement manufacturing units using fly-ash as raw material - HELD – Matter is covered by the decision rendered in State of U.P. vs Jaiprakash Associates Ltd - Rebate of tax granted by the State Government to cement manufacturing units using fly-ash as raw material in a unit established in the districts of State of Uttar Pradesh alone is violative of the provisions of articles 301 & 304(a) of the Constitution of India – Notification would also apply to respondent(s)-cement manufacturing units
2015-VIL-45-GUJ
STATE OF GUJARAT Vs DASHMESH HYDRAULIC MACHINERY
Gujarat Value Added Tax - Section 34(7) – Re-assessment – Demand, interest and penalty - input tax credit - adjustment of carried forward input tax credit – HELD – It is not in dispute that the Assessee had no surplus balance of input credit, which has been adjusted against the demand of tax upon reassessment. Under these circumstances, the element of avoidance of tax could be said as lacking. Consequently, the deletion of interest and penalty on the part of Tribunal could not be said as unjustifiable - Issue already covered in earlier Court’s earlier judgement 2015-VIL-39-GUJ, wherein it was held that if there is no attempt to evade or avoid payment of tax, the interest or the penalty could not have been imposed – Appeal dismissed
2015-VIL-44-KER
UNITED SPIRITS LIMITED Vs THE COMMISSIONER OF COMMERCIAL TAXES
Kerala Value Added Tax Act – Non-surrender of transit pass leading to presumption of sale deemed as effected in Kerala - Detention of goods – Non-surrendering of transit pass sought to be substantiated with reference to the relevant documents issued by the departmental authorities of the concerned States, i.e. State of Kerala and State of Mahe by certificate issued by the Excise Inspector, New Mahe, which clearly certifies that the disputed transaction/goods were taken outside the State and delivered to the consignee – HELD - this Court finds that the petitioner, prima facie, has established the case, which however is a matter to be looked into by the appellate authority. The said aspect has been omitted to be considered while passing interim order. Eventhough contentions of the petitioner have been referred to, there is absolutely no discussion, so as to sustain the condition imposed upon the petitioner. The law is well settled by authoritative pronouncement by the Apex Court and this Court that even in the case of interim order, specific reason has to be given so as to sustain the same - The condition imposed by the appellate authority will stand waived and the petitioner shall continue to avail the benefit of interim stay during pendency of appeal – Matter remitted
2015-VIL-04-SC-ST
COMMISSIONER OF SERVICE TAX, MUMBAI Vs CITI BANK N.A.
Service Tax – Sponsorship service from the BCCI in respect of Indian Premier League Cricket matches – Apex court upholds order of the Tribunal allowing the assessee’s appeal and setting aside the demand, however, deletes the strong expressions used by the Tribunal in the course of the order passed by it – Revenue appeal dismissed
2015-VIL-52-CESTAT-BLR-ST
AUROBINDO PHARMA LIMITED Vs COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, HYDERABAD-I
Service Tax - Denial of refund – Technical Testing & Analysis or Scientific or Technical Consultancy Services - Testing or analysis service provided in relation to human beings or animals - Refund of amount inadvertently and erroneously paid – Service tax on receipt of service in India in respect of services received from abroad prior to 18.4.2006 - HELD - In this case, the period involved is September 2003 to March 2005, thus the entire period is prior to the date on which service tax was required to be paid. Moreover, the show-cause notice proposed demand under one service category whereas confirmation was under another category. Therefore, the appellant is eligible for the refund of tax which was paid by them and it was not required to be paid – Appeal allowed
2015-VIL-51-CESTAT-AHM-CE
ARVIND LTD Vs COMMISSIONER OF CENTRAL EXCISE- AHMEDABAD-II
Cenvat Credit - Benefit of Cenvat Credit on Naphtha, as fuel, in gas turbines for generation of electricity - A part of the electricity so generated was captively consumed in the manufacture of final product and the balance portion wheeling out to appellant’s sister unit - A show cause notice proposing to recover amount of re-credit in respect of electricity supplied to sister unit - Supreme Court remitted the matter to Adjudicating Authority directing to ascertain whether any excess electricity was wheeled out/cleared at a price in favour of joint ventures, vendors, sister companies etc., and, if so, the Adjudicating Authority will calculate and charge duty or reverse credit to that extent - transfer of the amount of their sister unit by book adjustment – HELD - There is no dispute they have shown the amount in their books of accounts for clearance of electricity to the other units - The transfer of the amount of their sister unit by book adjustment would be treated as amount charged to the other unit - Merely because there is no payment in cash or because there is book adjustment, it cannot be claimed that there has been no sale. Book adjustment is also a form of payment - In our considered view, the Adjudicating Authority rightly confirmed the reversal of credit - we upheld adjudication order to the extent of recovery of cenvat credit. In so far as, the order of the recovery of interest, the matter is remanded to Adjudicating Authority to decide afresh, after considering the facts and the case laws relied upon – Appeal partly allowed
2015-VIL-53-CESTAT-DEL-CE
COMMISSIONER OF CENTRAL EXCISE & ST, GHAZIABAD Vs M/s BHUSHAN STEEL LTD
CE - Cenvat credit on welding electrodes – Capital goods – Cenvat credit on welding electrodes which were used for repair and maintenance of plant and machinery – HELD - As there is decision of Hon’ble Apex Court in the case of Hindustan Zinc Ltd, holding that Cenvat credit on items which were used in repair and maintenance of plant and machinery are entitled for Cenvat credit, therefore, I hold that respondents are entitled to take Cenvat credit on welding electrodes. The case law relied upon by the learned AR have not considered the decision of Hon’ble Apex Court. Therefore, these case laws cannot be relied upon – Appeal dismissed
punPN290115
Punjab: last date of e-filing of VAT-15 for the 3rd Quarter of 2014-15 - Extended till 5th February, 2015
kerCir05
Kerala: Extension of time limit for filing audit report for the year 2013-14
rajNoti180
Rajasthan Value Added Tax (Second Amendment) Rules, 2015 - Amendment in RVAT Rule 9
jharNotiSO70
Jharkhand: Empoweing the officers to curb tax evasion
upCir1415119
Uttar Pradesh: Regarding extension in date for annual return (52, 52A, 52B) upto 28th Feb 2015 [in Hindi]
31st Jan
2015-VIL-06-SC-LB
STATE OF KARNATAKA Vs M/s PRO LAB
Karnataka Sales Tax Act, 1957 - Entry 25 of Schedule VI to the Act - Processing and supplying of photographs - Transfer of goods – Work Contract – Power of State to segregate the goods part of the Works Contract and impose sales tax thereupon - Retrospectivity of tax provision – HELD - After insertion of clause 29-A in Article 366, the Works Contract which was indivisible one by legal fiction, altered into a contract, is permitted to be bifurcated into two: one for "sale of goods" and other for "services", thereby making goods component of the contract exigible to sales tax. Further, while going into this exercise of divisibility, dominant intention behind such a contract, namely, whether it was for sale of goods or for services, is rendered otiose or immaterial. It follows, as a sequitur, that by virtue of clause 29-A of Article 366, the State Legislature is now empowered to segregate the goods part of the Works Contract and impose sales tax thereupon. It may be noted that Entry 54, List II of the Constitution of India empowers the State Legislature to enact a law taxing sale of goods. Sales tax, being a subject-matter into the State List, the State Legislature has the competency to legislate over the subject - Keeping in mind the aforesaid principle of law, the obvious conclusion would be that Entry 25 of Schedule VI to the Act which makes that part of processing and supplying of photographs, photo prints and photo negatives, which have "goods" component exigible to sales tax is constitutionally valid - Assessees/respondents, made vehement plea to the effect that the processing of photographs etc. was essentially a service, wherein the cost of paper, chemical or other material used in processing and developing photographs, photo prints etc. was negligible. This argument, however, is founded on dominant intention theory which has been repeatedly rejected by this Court as no more valid in view of 46th Amendment to the Constitution – Retrospectivity of provision - The very basis on which Entry 25 of Schedule VI was declared as unconstitutional, has been found to be erroneous. In such circumstances, the legislature will be justified in enacting the law from the date when such a law was passed originally and that date is 01.07.1989 in the instant case - It is well settled that subject to Constitutional restrictions a power to legislate includes a power to legislate prospectively as well as retrospectively. In this regard legislative power to impose tax also includes within itself the power to tax retrospectively - The High Court did not even deal with various facets of the issue in their correct perspective - The impugned judgment of the High Court is accordingly set aside, the present appeal is allowed and as a result thereof, the writ petitions filed by the respondents in the High Court are dismissed holding that Entry 25 of Schedule VI of the Act is constitutionally valid – Revenue appeal allowed
megNoti61
Meghalaya: Amendment in Schedule - Increase in rate of tax to 14.5%
rajNoti315
Rajasthan: Last Date for filing of Annual Return VAT-10A and Revising Quarterly Return VAT-10 for Financial year 2013-14 is extended to 28 February 2015
odiNoti19
Odisha: Central Sales Tax (Odisha) Amendment Rules, 2015 - Amendment in Rule 3