SUMMARY FOR THE MONTH
OF OCTOBER
List of updates in the
month of October ‘15
1st
of Oct
2015-VIL-428-DEL
LARK
LABORATORIES (INDIA) LTD Vs COMMISSIONER, TRADE & TAXES, DELHI & ANR
Delhi Value Added Tax Act, 2004 - Section 34 –
Limitation on assessment and re-assessment - Rule 36 - whether the limitation
for reassessment under section 34 is to be counted in relation to the period in
which the return/revised return is filed or whether the same is counted in
relation to the period to which the return/revised return relates to – tax
period 2008-09 – HELD - the impugned notices have been issued on 01.04.2015,
which is beyond even the extended period of 6 years as stipulated by the
proviso. This is also subject to that fact that the Commissioner has extended
the said period by application of proviso - The
impugned notices issued after the expiry of 6 years, are thus not sustainable.
The contention of the department that the notice of default assessment is
within time because the orders for issuance of notices were actually recorded
in the daily order-sheet on 31.03.2015 but the same were issued on 01.04.2015,
also cannot be sustained in view of the mandate of Rules 36 of the DVAT Rules
2005 - The daily order sheet does not satisfy the requirement of the Act and
the rules - Since the impugned notice of default assessment of tax and interest
and the impugned notice of assessment of penalty have been issued beyond the
statutory period, the same cannot be sustained and are accordingly quashed -
writ petition is allowed
2015-VIL-427-DEL
THE COMMISSIONER, VAT Vs PURE DRINKS (NEW DELHI) LTD
Delhi Sales Tax Act, 1975 -
re-assessment proceedings under Section 24 – Time barred – condonation
of delay - Limitation – HELD - The dates mentioned in the condonation
application shows gross lackadaisical attitude of the department in processing
the file and filing of the appeal. There is hardly any explanation leave alone
a sufficient cause shown for the delay of over 800 days in filing of the
appeal. Even though in the case of appeal by the department, there are bound to
be some delays on account of administrative action but the department cannot be
permitted to adopt a completely lackadaisical attitude in the matters of
limitation. The law of limitation does not prescribe a different standard to be
applied for the appeals filed by the department - The explanation tendered by
the department, in our view, does not show any sufficient cause. The department
does not appear to have acted in a bonafide and
reasonable manner - The application seeking condonation
of delay is dismissed
2015-VIL-538-CESTAT-MUM-CE
COMMISSIONER
OF CENTRAL EXCISE, MUMBAI IV Vs BRAHANS RUBBER (P) LTD
Central Excise –
Classification of processed rubber compound in sheet form - whether the item is
classifiable under 4005.10 or 4005.90 – HELD - goods classified by the
respondent-assessee in 4005.10 would be classifiable under 4005.90 – Assessee
is not availing the credit of any of the inputs used in the manufacture of such
item which have been found to be factually incorrect on verification - there
has been clear cut mis-statement of facts and
extended period of limitation would be invocable as
far as the first product is concerned. Penalty under section 11AC/Rule 25 will
also be imposable – in favour of Revenue - Classification of processed rubber
compound which is in the cord form – Assessee seeks it to be CSH 4005.10 while
the revenue wants to classify same under CSH 4006.90. – HELD - classification
of the item would be under 4006.90 - as the unit was in existence and producing
this item, filing the classification list which had been continuously approved
by the appellant and in view of this position, in our view, the extended period
of limitation invoked in respect of the second item is not correct, and only
the demand which is within the normal period of limitation is upheld – Revenue
appeal partly allowed
2015-VIL-537-CESTAT-CHE-CE
COMMISSIONER OF CENTRAL EXCISE, TIRUCHIRAPALLI Vs BLOW
PLAST LTD
Central Excise - excise duty
on office furniture systems / work stations – Immovability of goods – HELD -
office furniture, table, chairs are not treatable as immovable property –
Assessee has failed to justify that the items are immovable property – Demand
confirmed – Revenue appeal allowed
2015-VIL-540-CESTAT-DEL-ST
M/s
SAHARA INDIA TV NETWORK Vs C.C.E.&S.T., NOIDA
Service Tax - Decision of
Division Bench in view of conflicting decisions of single member in the case of
CCE&ST Vs KK Kedia and the case of Plastichemix Industries Vs. CCE&ST, Vadodara
- mistake of incorrectly mentioning the registration number in the service tax
deposit challan – inadvertent error of mentioning
registration number of other branch office – HELD – the issue is not so much of
law but of a mistake of incorrectly mentioning the registration number in the
service tax deposit challan. That such mistakes do
happen is also evident from the fact that Commissionerate
of Cochin issued a Trade Notice No. 3/2014-60 dated 10.07.2014 - In the present
case, there is complete absence of mala fide and the mistake was brought to the
notice of Revenue by the appellant itself - In effect, overall there has not
been any short or delayed payment of service tax by appellant. In these
circumstances, the question of penalties would not arise and even the question
of interest would not arise in the wake of CBEC Circular dated 20.05.2013 - the
view that the procedure prescribed by the Cochin Commissionerate
in its Trade Notice dated 10.07.2014 is reasonable for the purpose of
rectification of such mistakes without any risk to Revenue - impugned order set
aside, appeal allowed by remand
2015-VIL-539-CESTAT-DEL-ST
M/s JINDAL STEEL AND POWER LTD Vs COMMISSIONER
OF CUSTOMS AND CENTRAL EXCISE, RAIPUR
Service Tax - Claim of refund towards the non-taxable
service of construction of a bridge - service tax paid wrongly – Rejection of
refund on ground of jurisdiction – HELD - The appeal illustrates the negative
approach of Revenue in dealing with claims for refund - the appellant had
initially filed a claim before the Delhi Commissionerate
which rejected the same on the ground that it had no jurisdiction since the
appellant was pursuing business outside its jurisdiction. The Bilaspur Commissionerate also
rejected the refund claim on the ground that the provider of the service is not
within its jurisdiction - If the appellant which is a recipient of a service
which is admittedly not taxable files a claim for refund within the prescribed
period of limitation, it is axiomatic that it is entitled to do so before the Commissionerate under whose jurisdiction it pursues its
taxable activities, business or is a registrant; or before the Commissionerate having authority over the provider of the
service. That would be a matter of a legitimate choice for a claimant of refund
– The rejection by both Commissionerates is
unsustainable - The appellant is entitled to refund as claimed with
consequential benefits
CHHATTISGARH NOTIFICATIONS
chhgNoti62: Extension of Time limit of Assessment Cases
for FY 2011-12
chhgNoti63: Extension of Time limit of Assessment
Cases for FY 2010-12
chhgNoti64: Extension of Time limit of Assessment
Cases for FY 2012-13
chhgNoti65: Extension of Time limit for Form-18 for FY
2011-12 to 2014-15
chhgNoti66: Exemption part-c of Form-18 for tax-free
and tax paid dealers
chhgCorri:
Corrigendum Notification
mahaCir14T
Maharashtra: Procedure and Modalities for Refund
through National Electronic Funds Transfer (NEFT)
Rajasthan
Amendment in Rajasthan Investment Promotion Scheme,
2014
FCP3009
FROM THE CORRIDOR OF POWER - Updates from
various Union Ministries, PMO & Cabinet
2nd
of Oct
mahanotiLBT181
Maharashtra: Non-levy of
Local Body Tax on High Speed Diesel Oil & Petrol
delNoti816
Delhi: Extension in last
date for filing of online returns for the 1st quarter of the year 2015-16, in
Forms EC-II and EC-III
delNoti829
Delhi: Extension in date for
submission of Form DP-1
delCir26
Delhi: Regarding filing of
reconciliation return for the year 2014-15
tnBill082015
Tamil Nadu Value Added Tax
(Second Amendment) Act, 2015 - As introduced in Legislative Assembly of the
State of Tamil Nadu
tnBill092015
Tamil Nadu Value Added Tax
(Third Amendment) Act, 2015 - As introduced in Legislative Assembly of the
State of Tamil Nadu
hpNoti200110
Himachal Pradesh: Amendment
in Part-II- A of Schedule 'A' of HPVAT Schedule - Regarding Bitumen &
Coal-tar of all kinds
5th
of Oct
2015-VIL-430-DEL
ALL
INDIA FOOTWEAR MANUFACTURERS & RETAILERS ASSOCIATION & ORS. Vs UNION OF
INDIA & ORS.
Levy of Tax on e-commerce
website - Foreign Direct Investment in retail - It appears that the UOI / State
Governments cannot, on the one hand, for the purpose of tax, treat such sales
as retail and on the other hand, for the purposes of investment, not treat the
same as retail sale – Court issues notices to the Centre, Delhi government, RBI
and the Enforcement Directorate, seeking their replies on the plea by
petitioner that though FDI is prohibited in retail but entities retailing goods
through the internet are not being restrained from accepting foreign investment
2015-VIL-431-KAR
THE
STATE OF KARNATAKA Vs IBM INDIA PVT LTD
Karnataka Sales Tax Act –
Sale – Goods - Taxability of activities of business consultancy services and
implementation of the Enterprises Resource Planning (ERP) software – Whether
the activity is pure services not involving any sale of goods or any transfer
of property in goods in the execution of works contract – Development and
integration of ERP software – HELD - In integration process there is no
transfer of any goods involved. There is no marketable commodity in existence
to be sold. Unless such a commodity, whether tangible or intangible, exists there
cannot be a sale - the title of the software vests with the client and not with
the assessee. What the assessee is entitled to is the consideration for the
services rendered - the said deliverable materials do not constitute
commercially available software and are not marketable. They are not goods
available in the market - The entire consideration received for providing
services to the client have been subjected to service tax. Therefore, no
portion of the consideration received could be attributed to sale of the
software. Therefore, the finding recorded by the Tribunal is based on legal
evidence and supported by the legal position as declared by the Apex Court in
several judgments – Revenue revision petition dismissed
2015-VIL-03-ARA-CE
M/s INTERNATIONAL INSTITUTE OF DIAMOND GRADING AND
RESEARCH INDIA PVT. LTD, MUMBAI & COMMISSIONER OF CENTRAL EXCISE, SURAT-1
Advance Ruling - Central Excise - Whether or not the
proposed activity to be undertaken that is grading and inscription of diamonds
by the applicant would amount to manufacture under Central Excise - Activity of
grading and inscription of diamond – HELD - the applicant does not manufacture
the diamonds in the sense that it does not chemically bring out the diamonds
and it is only the natural diamonds with which the applicant deals. Therefore,
even by way of common sense this cannot amount to a ‘manufacturing activity’.
All that the applicant does is, besides it undertakes the activity of grading
the diamonds, it also does some activity of inscription because of which the
essential character of the diamonds does not change and it still remains the
diamond - none of these activities could amount to the manufacture of diamonds
so as to invite the provisions of Central Excise Act – In favour of applicant
2015-VIL-429-MAD-CE
M/s AUTOMOTIVE COACHES & COMPONENTS LTD Vs
COMMISSIONER OF CENTRAL EXCISE, PUDUCHERRY
Central Excise – Cenvat Credit Rules, 2002 – Rule 7
& 16 - inputs under the CCR, 2002 - Availment of
credit by manufacturer on the basis of an invoice issued by a manufacturer, an
importer of a first/second stage dealer - appellant had availed cenvat credit on the basis of the invoices issued by M/s
Volvo India Pvt Ltd, consigned to M/s Nav Bharat Corporation, who in turn, sent the materials to
the assessee for remade, refined, reconditioned or for any other reasons –
Demand and penalty – HELD - The assessee had stated that the manufacturer sent
the goods to M/s.Nav Bharat Corporation, who in turn
sent the same to the assessee for remake. The assessee did not show any
documentary proof that the said goods were actually received into their factory
and used in the manufacture of final products. To avail cenvat
credit, the goods should be endorsed to him by the consignee. Hence, the
invoice, on which the credit is taken, should be specific to that consignee.
Unless, the invoice is specific, credit should not be availed. Rule 7(1) of the
CCR, 2002, specifies that the invoice, based on which credit is availed, should
be in the name of the person, who availed the credit. In the present case, the
invoices in question are not in the name of the appellant. Hence, the appellant
is not entitled to avail the credit – Demand and penalty upheld, assessee
appeal dismissed
2015-VIL-543-CESTAT-BLR-CE
COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE
TAX – MYSORE Vs VIKRANT TYRES LTD
Central Excise - provisional assessments - clearances
made by the assessee under stock transfer to the depots - unjust enrichment -
assessments based on the clearances made in respect of only 10 depots – Revenue
plea that the clearances made for all the depots by the assessee while
finalizing the assessment – HELD - When the Department has not given any clear
evidence to counter the statement of the assessee that sales were made to only
10 depots out of 14 depots, the Department’s argument that ‘sales of all the
depots could have been considered’ cannot be examined further and will be
termed as put up without any clear basis - The Department’s argument that
doctrine of ‘unjust enrichment’ would have been considered during finalization
cannot be accepted - claim for refund made by the assessee had to be decided
according to the law laid down in Mafatlal Industries Ltd. and would not be
governed by the proviso to sub-rule (5) of Rule 9B – Revenue appeal dismissed
2015-VIL-542-CESTAT-AHM-ST
M/s BLOSSOM INDUSTRIES LIMITED Vs COMMISSIONERS OF
CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, DAMAN
Service Tax Valuation Rules, 2006 – Rule 5(i) - manufacture of Alcoholic Beverages on job work basis -
determination of the taxable value - Circular F. No 332/17/2009-TRU – Business
profit - reimbursable expenses – HELD - the amount returned to Brand Owner is
in so far as ‘surplus/profit’ of Brand Owner, cannot be included in the taxable
value. The amount ‘surplus/profit retained by BO’ as claimed by the appellant,
had been returned to BO and therefore such amount cannot be included in the
taxable value - reimbursable expenses paid to the appellant in so far as cost
and expenditure as stipulated under Rule 5(i) Service
Tax Valuation Rules, 2006 can not be included in the
taxable value - suppression of fact - the appellant filed writ petition
challenging constitutional validity of the levy of tax, which was admitted by
the Hon’ble High court and therefore, it can be said that the appellant
entertained the doubt of the levy of the tax. There is no material available of
suppression of fact with intent to evade payment of tax and therefore
imposition of penalty under Section 78 cannot be sustained – Assessee have also
paid their Service Tax alongwith interest as per
their determination before issue of the Adjudication order. In such situation,
the appellant shown the reasonable cause for waiver of penalty under Section 76
and 78 - the impugned order is modified to the extent that the taxable value
would be computed by excluding the amount of surplus/profit returned to the BO
and the other reimbursable expenses paid to the appellant, covered under Rule
5(i) of the Service Tax Valuation Rules. The
Adjudicating authority is directed re-determine demand of tax alongwith interest. The penalty imposed under Section 77 is
upheld. The other penalties are set aside – Appeal partly allowed
2015-VIL-541-CESTAT-MUM-ST
HINDUSTAN PETROLEUM CORPN LTD Vs COMMISSIONER OF
SERVICE TAX, MUMBAI-I
Service Tax - Refund of tax paid by the appellant to
Mumbai International Airport P. Ltd. – Refund for the period December 2009 to
May 2010 – Retrospective effect of Notification 37/2010-ST - HELD - The service
tax paid under the category of services provided by Airport authority under
Section 65(105) (zzm) were inserted in Notification
17/2009-ST by Notification 37/2010-ST dated 28.06.2010. The arguments of the
assessee that this notification should be read as being effective in the
Notification 17/2009-ST from the date it was issued is not acceptable.
Notification 17/2009-ST specifically grants refund of tax paid on services
provided under the category as per classification as mentioned therein. The
service tax paid by MIAPL is under the category which was not classified under
Notification 17/2009-ST as it existed during the period when the services were
received by the appellant - No infirmity in the impugned order passed by the
lower authorities – Assessee appeal dismissed
2015-VIL-04-ARA
M/s EMERALD LEISURES LIMITED, MUMBAI & THE
COMMISSIONER OF SERVICE TAX, MUMBAI-II
Advance Ruling – Service Tax – Taxability of activity
of running indoor sports complex and club – HELD - The relationship between the
applicant and members of the club should be considered as provision of
“service” by one person (service provider) to another person (service receiver)
for the purpose of Section 65B (44) of the Finance Act, 1994 r/w Sections 66B,
66D and Section 66E of the Finance Act, 1994 and accordingly, the Membership
fee, Annual fee and other charges received from members from time to time be
liable for Service Tax - Refundable security deposit and interest thereon
should not be subjected to Service Tax as per provisions of the Finance Act,
1994 – Partly in favour of applicant
rajNoti92
Rajasthan Investment Promotion Scheme, 2014 -
Interpretation of term 'Expansion'
6th
of Oct
2015-VIL-433-KAR
M/s ZYLOG
SYSTEMS PVT LTD Vs ADDL. COMMISSIONER OF COMMERCIAL TAXES, ZONE-II, BANGALORE
Karnataka Value Added Tax Act - Goods – Sale – Supply
of goods - Supply, installation and maintenance of computer systems, supply and
printing of smart cards for Transport Department – Demand on the basis of
holding that the assessee had supplied the goods (smart cards) to the transport
department for consideration and therefore, there is sale of goods – Work
Contract - HELD – Unless the transaction in truth represents two distinct and
separate contracts and is discernible as such, the State does not have the
power to separate the 'agreement to sell' from the 'agreement to render
service', and impose tax on the sale - The smart cards supplied to the
department are not commercial commodities. The smart cards, which are produced
by the petitioner, have no utility or value to any other person than the
department who paid for the service rendered by the petitioner. Another
important aspect is that the smart cards also contained the official logo of
the Government of Karnataka along with key management microchip. The same
cannot be used or sold by the petitioner to any other person. As such, it was a
special kind of job and delicate in nature which is predominant in the
transaction and not the value of the materials which are used in executing the
job. The smart cards are not the commodities saleable in open market. It
fetches no commercial value in the open market. Hence, supply of smart cards to
RTO cannot be held as sale. It is a contract for labour and service - the
contract entered into between the parties for supply of smart cards is for
rendering service only and there is no element of sale – Assessee appeal
allowed
2015-VIL-432-ALH-CE
M/s UNI CAST PVT LTD Vs COMMISSIONER OF CENTRAL EXCISE, MEERUT
Central Excise – Modvat credit - Notification No.15 of 1994 dated 30.03.1994
- whether endorsed invoices are valid documents for taking MODVAT credit after
1st April, 1994 - whether Rule 57G of the Rules is mandatory or directory –
HELD - when the genuineness of the transaction is established and the inputs
received by the applicant has suffered excise duty, there is no reason why the
applicant should be denied what is legitimately due to it - Gate passes were
omitted under Rule 57G by issuance of Notification No.15/1994 and invoices were
brought in their place as valid documents under which the goods could be
cleared from the factory by the manufacturer or could be further passed on by
the dealer to a third party - credit would be given on an invoice bill, which
indicates payment of duty on such inputs - The fact that the invoice did not
indicate the name of the appellant was only a procedural lapse, which was
rectified by the endorsement made by the manufacturer in favour of the
applicant. Such endorsement made cannot make the document invalid - endorsed
invoices were valid documents for taking MODVAT credit – Assessee appeal
allowed
2015-VIL-544-CESTAT-CHE-ST
M/s UGAM SOLUTIONS SEZ PVT LTD Vs COMMISSIONER OF
CENTRAL EXCISE, COIMBATORE
Service Tax – SEZ - Refund
under Notification No.9/2009-ST – Rejection of refund on the ground that when
there is specific notification to claim refund, the appellant should have
chosen that route instead of submitting its claim under Rule 5 of CCR, 2004 –
HELD – The notification does not create an embargo on the service recipient who
avails the taxable services paying service tax and entitled to Cenvat credit
thereof as well as entitled to refund of the same in the event such credit
remain unutilized being not possible to be utilised. This does not rule out
applicability of Rule 5 of CCR, 2004 to route the refund application - In view
of the adaptable provisions of Central Excise Act, 1944 by Section 83 of the
Finance Act, 1994 refund under the later Act is routed through section 11B of
the Central Excise Act, 1944 r/w Section 83 of the Finance Act, 1994.
Therefore, Rule 5 of the Cenvat Credit Rules, 2004 being part of the body of
the statute and integral part thereof, it is fundamental principle that
supplemental provision does not override fundamental provision. Therefore,
Revenue ought not to deny the route of processing refund under Finance Act,
1994 through section 11B of the Central Excise Act, 1944 - Accordingly, refund
is due to and admissible to appellant – Appeal allowed
hpNoti80310
Himachal Pradesh Tax on
Entry of Goods into Local Area Act, 2010 - Amendment in Schedule-II - Regarding
Industrial Inputs, raw material and packing material
[Alert
already sent on Whats App]
stCir186
Service Tax: Clarification
regarding Service Tax levy on services provided by a Goods Transport Agency
[Alert
already sent on Whats App]
FCP0510
FROM THE CORRIDOR OF POWER - Updates from
various Union Ministries, PMO & Cabinet
jharNoti99
Jharkhand Value Added Tax
(Amendment) Act, 2015 - Amendment in Section 18
dnhCir1586
Dadra & Nagar Haveli: Notice
for reconcilation of exemptions claimed under Central
Sales Act
Guest
Column
CBEC clarification on
chargeability of Service tax on GTA and other IDT digests
2015-VIL-547-CESTAT-MUM-CE-LB
J
& J PRECISION INDUSTRIES AND OTHERS Vs COMMISSIONER OF CENTRAL EXCISE, GOA
Central Excise – Larger
Bench - Cross examination - principles of natural justice - Cenvat Credit -
allegation of fake/manipulated documents - difference of opinion is whether the
lower authorities have violated the principles of natural justice by denying
cross examination for the appellant and whether the matter needs
reconsideration by the adjudicating authority for following the mandate of
Section 9D of the Central Excise Act, 1944 – HELD - The impugned order is found
to be cryptic and in violation of principles of natural justice, non-speaking
and further violates the provisions of Section 9D of the Central Excise Act.
Thus, the impugned order is set aside and the matter is remanded back to the
adjudicating authority with a direction to provide opportunity of hearing to
the appellants in accordance with law, more particularly to provide opportunity
of cross-examination of persons, the statements to whom have been relied upon
by the Revenue and to consider the evidence on record or now produced in the de
novo proceedings, more particularly documents like Goods Receipt Note, Material
Requisition Note, Sales Tax Register including Way Bill Register, Form-C
Register, sales invoice of watch case to the different buyers of the appellant
etc. The appellant is also directed to appear before the adjudicating authority
with a copy of this order and seek opportunity of hearing
Report
of The Joint Committee on Business Processes for GST on GST Payment Process
Report
of The Joint Committee on Business Processes for GST on Refund Process
Report
of The Joint Committee on Business Processes for GST on GST Registration
Process
7th
of Oct
2015-VIL-434-DEL
JAGRITI
PLASTICS LTD Vs COMMISSIONER OF TRADE &
TAXES
Delhi Value Added Tax Act -
Section 9 (1) – Input tax credit – DEPB scrip - whether DEPB are 'goods' for
the purpose of the DVAT Act - whether it can be said that the DEPB scrips on which input tax had already been paid by the
Assessee at the time of purchasing the DEPB scrips
could be adjusted against output tax – Period prior to 1st April, 2010 - HELD -
the use of the DEPB scrips is for the purpose of the
Assessee selling the imported goods - 'Usage' in this context has to be seen as
a use that affects the price of the goods although it may not be used tangibly
in the goods themselves. There is no warrant to limit the understanding of the
word “use? to an actual direct tangible or physical use in the imported goods -
All that is to be shown is that input tax paid goods have contributed to the
sale of the final product in some way directly or indirectly - The of the DEPB scrips purchased from another registered dealer after
paying the input tax for reducing the incidence of customs duty should be held
to constitute use of such DEPB scrip for the purposes of sale of the imported
commodity - The DEPB scrip has contributed, if not directly then indirectly, to
the price of the imported commodity sold by the assessee in the market - As
long as it is shown that use of the DEPB scrip has impacted the cost of the
product that is sold, either directly or indirectly, the credit of the input
tax paid on the DEPB scrip cannot be denied – Assessee appeal allowed
2015-VIL-435-BOM
COMMISSIONER
OF SALES TAX Vs SHRIKE CONSTRUCTION EQUIPMENTS (P) LTD
Bombay Sales Tax Act, 1959 -
interpretation of rule 41D(2)(iii) of the Bombay Sales Tax Rules, 1959 -
Drawback and set-off - Disallowance of set off under rule 41D - Manufactured
goods were used in works contract in other States, and were not sold in those
States as contemplated by section 2(28) of the Act – goods used in works
contract executed in other States - HELD - The expression "export"
includes despatches made by the claimant/dealer to his own place of business or
to his agent outside the State where the claimant/dealer produces certificate
in "form 31C". This certificate is issued by his manager or as the
case may be, his agent who declared, that the goods will be in fact sold by him
or will be used by him in the manufacture of goods which will be in fact sold
by him and that there is a registration in their favour under the BST Act, 1959
in respect of that place of business. Undisputedly, such certificate was
produced. Once such a certificate was produced and export is defined
inclusively to mean a despatch, then, any larger controversy or wider question
should not have been gone into and decided by the Tribunal at all - Going by
the plain reading of the expression "export" and its inclusive
definition particularly in the context of the despatch by the claimant dealer,
the certificate stating that the goods will be sold or will be used in
manufacturing of goods which would in fact be sold is decisive and conclusive –
In favour of assessee
2015-VIL-547-CESTAT-AHM-CE-LB
M/s KRAP CHEM P. LTD Vs COMMISSIONER, CENTRAL EXCISE
& SERVICE TAX, DAMAN, RAJKOT
Central Excise – Larger Bench – Manufacture –
Classification – Whether process of making Guar Gum from Guar Dal Flour/Powder amounts to manufacture – Wether Guar Gum id classifiable under sub heading
No.1101.00 of CETA as contended by the Appellant or sub heading 1301.10 as
argued by the Revenue – Extended period – HELD - The Appellants received Guar Dal Powder and after due process, it was sold as Guar Dal Powder/Guar Gum. There is no dispute that the said
product was known in trade as Guar Gum. So, there is a change of character,
identity and use of the goods - the process undertaken by the Appellant,
emerged having a distinct name Guar Gum. There is change of character of the
goods of different properties as per viscosity used in various industries - the
activities undertaken by the Appellant would amount to manufacture
- Classification - HELD - Chapter 13 of HSN included the goods, modified
by chemical treatment in order to improve their properties (viscosity,
solubility etc). A chemical treatment is a process in which substances interact
causing chemical or physical changes and such processed material would cover
under Chapter 13 of HSN - the Guar Dal Flour / Powder
was modified by chemical reaction in order to improve their properties as per
end use of the product in various industries. So, it is rightly covered under
Chapter 13 of the CETA
2015-VIL-548-CESTAT-KOL-CE
M/s PARTHA ISPAT (INDIA) PVT LTD Vs COMMISSIONER OF
CENTRAL EXCISE & S.TAX, RANCHI
Central Excise – Cenvat
Credit - Manufacture of Pig Iron and S.G.Inserts –
Appellant availed cenvat credit on the rejected PSC
Sleepers claiming the same as ‘input’ - PSC Sleepers are broken and iron wire
and inserts are extracted and used in or in relation to the Pig Iron and S.G.
Inserts - The demand and penalty on the ground that since the rejected PSC
Sleepers as a whole were not used in or in relation to the manufacture of their
finished products, hence, cenvat credit is not
admissible – HELD - the ld. Commissioner (Appeals) has held that only a little
portion of the said PSC sleepers used in the manufacture of Pig Iron and S.G.
Inserts, cannot make it eligible to call as ‘input’ and eligible to Cenvat
credit – No merit in the said observation inasmuch as the definition of ‘input’
and other conditions laid down under the CCR, 2004, makes it abundantly clear
that to be eligible to cenvat credit, the input must
be used in or in relation to the manufacture of finished goods. Once the inputs
has been used in or in relation to the manufacture of finished products, the Appellants
are eligible to the credit – Assessee appeal allowed
2015-VIL-546-CESTAT-MUM-ST
TATA TECHNOLOGIES LTD Vs COMMISSIONER OF CENTRAL
EXCISE, PUNE-I
Service Tax - Classification
and consequent demand of service tax under the category of Management Consultancy
Services - appellant had deputed their chief operating officer to Tata Motors
Ltd. for overseeing the SAP implementation progress – Demand under Management
Consultancy Services - HELD - Chief Operating Officer of the appellant was
deputed to Tata Motors Ltd. to oversee SAP Implementation progress in various
areas - the services rendered by the Chief Operating Officer of the appellant
was in respect of implementation of software and related work thereof. Both the
lower authorities have held that this activity would fall under the category of
Management Consultancy Services on the findings that the Chief Officer was
undertaking all the activities that covered under Management Consultancy
Services. The findings of the lower authorities, and, as argued Revenue, are
unacceptable, on the ground that similar issue was decided by this Tribunal in
the case of IBM India Pvt. Ltd. and held the favor of
assessee therein – Assessee appeal allowed
2015-VIL-545-CESTAT-CHE-ST
SHRI A. VANNIAPPAN Vs CCE, TIRUNELVELI
Service Tax - Technical
Testing and Certification Service – Assessee certifying purity and value of the
gold for pledging in the bank – Demand & penalty – HELD - examination of
gold ornaments for testing the purity and value of the gold cannot be
classifiable under Technical Testing and Certification Service and not liable
for demand of service tax - the impugned order is set aside and assessee appeal
is allowed
Guest
Article
Taxability of Licence to use
Trademarks / Franchise - Critical review of Tata Sons case
triNoti62
Tripura: Amendment in
Schedule regarding 'used/pre-owned cars'
wbNoti1605
West Bengal: Amendment
in West Bengal Value Added Tax Rules, 2005 - Insertion of new rule 26KA
& 26 KB
wbNoti1664
West Bengal: Amendment
in West Bengal Value Added Tax Rules, 2005 - Amendment in Rule 26F
8th
of Oct
GST
Working Paper
Present State of Goods and Services Tax (GST) Reform in
India – Working Paper by Shri Sacchidananda
Mukherjee, Associate Professor, National Institute of
Public Finance and Policy (NIPFP)
2015-VIL-436-AP
STATE
OF ANDHRA PRADESH Vs BHARAT DYNAMICS LIMITED
Central
Sales Tax Act – Whether manufacture and supply of missiles is sale or job work
on behalf of Government of India - material was purchased for and on behalf of
the Government of India – Work Contract – material procured by utilizing C Form
– Transfer of property under contract – HELD - Even though there is a
procurement of some indigenous material or some parts manufactured by the
assessee in the process of fitting and assembly, there is no right to dispose
of the final product as they please on account of the fact that the respondent
is not the owner of either of the material or of the product - procurement of
certain parts of the material indigenously does not make any difference -
transactions were carried out in implementation of the entrustment job for the
manufacture by assessee and all payments and actions taken in this behalf were
on behalf of the Government of India - Revenue appeal dismissed
2015-VIL-552-CESTAT-AHE-CE
COMMISSIONER
OF CENTRAL EXCISE & S.T., RAJKOT Vs M/s INDUS TROPIC LIMITED
Central Excise - benefit of
exemption Notification No. 39/2001-CE dated 31.07.2001 – Inclusion of value of
the inputs cleared as such would be in the aggregate value of clearance for the
purpose of availing the benefit of exemption notification – HELD - The
appellant’s specified final products as per the item approved under the
notification is Block Board and Veneer manufactured from Timber and only the
value of these excisable goods manufactured and cleared by the appellant on
payment of appropriate duties are liable to be taken for the purpose of
computing total aggregate value of clearance as per the said notification.
Therefore, there is a merit in the appellant’s contention that the value of
inputs cleared as such can not be clubbed along with
value of excisable goods manufactured and cleared by the appellant for arriving
aggregate value of clearance for extending the benefit of exemption under
Notification No. 39/2001 -Accordingly, the appellants are eligible for refund
of duty paid in PLA on excisable goods as their clearance is within exemption
limit – Appeal allowed
2015-VIL-551-CESTAT-CHE-CE
M/s WIPRO LTD Vs CCE, CHENNAI-IV
Central Excise - set off - input credit on CVD paid on
the finished goods upon de-bonding – HELD - When the goods were finished goods
and that suffered duty on debonding and when the
appellant discharged excise duty liability on clearance of those finished goods
claim of set off of additional duty of customs paid upon debonding
does not appear to be unreasonable since such additional duty of customs was
not refunded to the appellant in terms of section 3 of Customs Tariff Act,
1975. No doubt, the finished goods were not inputs, but in absence of refund of
additional duty of customs to the appellant, adjusting that against ultimate
excise duty liability would not defeat the spirit of law since no set off would
result in abnormal and excessive taxation which is not permitted by law - as
verifiable from record to set aside the proceeding holding that the proviso to
section 11A of the Central Excise Act, 1944 is not applicable in absence of
intention to cause evasion. Therefore, appeal succeeds
2015-VIL-550-CESTAT-CHE-ST
M/s GEM MOTORS Vs COMMISSIONER OF CUSTOMS, CENTRAL
EXCISE & SERVICE TAX, COIMBATORE
Service Tax – Input service - earmarked area in Lease
Deed for providing taxable service - Revenue contention that the formula
prescribed by Rule 6 (3) of CCR, 2004 shall be applied to grant of input
service credit – HELD - Rule 6(3) of Cenvat Credit Rules, 2004 is applicable
when there is use of common input without maintenance of account this rule
applies. But here is a case the document specified type and are of the building
used for respective purpose in terms of Schedule of Property appearing in the
Lease Deed. Therefore, there should not be confusion to allocate the area used
to provide the taxable service and allow claim of Cenvat credit of service tax
paid on rent paid in respect of that space used. In absence of any physical
inspection report showing anything contrary to the claim, no suspicion or
surmise shall deny the Cenvat credit of service tax suffered on rent paid by
the appellant on the earmarked area to carry out taxable service - Taking into
consideration of the leased area used for providing taxable service, the
relevant service tax paid in respect of lease rent for that area should be
allowed as Cenvat credit – Assessee appeal allowed
2015-VIL-549-CESTAT-MUM-ST
THE CRICKET CLUB OF INDIA LTD Vs COMMISSIONER OF
SERVICE TAX, MUMBAI
Service Tax – Refund - Clubs or associations - Service
tax paid on amounts collected as entrance fee for admission of new members –
Payment of tax without collecting the tax amount from the new members - Refund
claim - Unjust enrichment - cum-tax computation - principle of mutuality – HELD
- Mere capacity to deliver a service cannot be equated with providing or
agreeing to provide a service; such service has to reach the recipient in
exchange for the consideration or the consideration is made over in exchange
for a schedule of delivery of the service. In a combined human activity, contribution
of, or agreement to contribute, funds cannot, therefore, be construed as
consideration to be taxed under Finance Act, 1994 unless attributable to an
activity or performance or promise thereof on the part of an identified
provider to an identified recipient. Unless the existence of provision of a
service can be established, the question of taxing an attendant monetary
transactions will not arise - Though the first appellate authority has granted
the benefit of a cum-tax computation of the entrance fee, the tax liability was
discharged before the re-computation allowed. It, therefore, does not alter the
origin of the funds utilized for discharge of tax liability viz. from the
common funds of the appellant without recourse to the members who paid nothing
more than the entrance fee - Moreover, entrance fees are fixed in the bye-laws
without reference to tax leviable, if any, thereon.
For both these reasons, it can be concluded that tax burden has not been
transferred to the members from whom entrance fees were collected - service tax
so paid does not carry the taint of unjust enrichment – Assessee appeal allowed
ceNoti21NT
Central Excise: The CENVAT Credit (Fourth Amendment)
Rules, 2015 - Amendment to Rule 6(6) - Regarding Ethanol supplied to Oil
Marketing Cos for blending
apNotiGO965
Andhra PRadesh: Rule 67 of
the APVAT Rules, 2005 – Pre-payment of deferred Tax - Prescribes 6.75% as the
rate of discount for calculating and paying the net present value of the
deferred taxes by and industrial unit
jharOrder4044
Jharkhand: Extension in time limit for Karasamadhana Scheme, 2015
9th
of Oct
2015-VIL-438-ORI
M/s
KALINGA AUTO CENTRE PVT LTD Vs STATE OF ODISHA
Central Sales Tax Act, 1956
– Section 3(a) - inter-State sale – Purchase of motor vehicle by Mumbai branch
office of the assessee from the manufacturer at Mumbai and sending the same to
registered office at Cuttack for delivery to customers - Whether such sale is
inter-State is under the CST Act or intra-State sale being exigible
under the Odisha Sales Tax Act, 1947 – HELD - This is
an incident of contract where the vehicle is being booked from the Cuttack
office of the petitioner by the customers directly to its branch offfice at Mumbai and the Mumbai office after procuring the
same, sends the vehicle to the Cuttack office where the customer takes delivery
of the same. When the vehicle is sent from one State to another State, being an
incident of contract, it is truly an inter-State sale - in the present case no
doubt there is sale of goods, which have moved from Mumbai under Maharashtra
State to Cuttack under Odisha State and it is an
incidental to the contract - decision arrived at by the Tribunal being illegal
and against the principle of law, the same is liable to be set aside – Assessee
revision allowed
2015-VIL-437-KAR
YAKULT DANONE INDIA PVT LTD Vs AUTHORITY FOR
CLARIFICATION & ADVANCE RULINGS
Karnataka Value Added Tax Act – Section 60 -
Clarification & Advance Rulings – Validity of order passed by constitution
of the Authority with two Additional Commissioners – HELD – Rules framed under
an Act, cannot override the provisions of the Act. The main Section 60(1) of
the Act clearly mandates that the constitution of the Authority would be of atleast three Additional Commissioners. It does not give
any scope for interpretation that the Authority consisting of less than three
members, would still be a properly constituted Authority - Even if it is
presumed that sub-rule (26-A) of Rule 165 was to be taken as a valid Rule, then
too it is only in certain contingencies that the Authority, consisting of two
members, could be treated as a valid Authority. However, in the present case,
respondent has not placed on record any of such condition being there –
Impugned order is quashed and the appeal is allowed by remand
2015-VIL-555-CESTAT-MUM-ST
UHDE INDIA PVT LTD & RASHTRIYA CHEMICALS &
FERTILIZERS LTD Vs COMMISSIONER OF SERVICE TAX, MUMBAI
Service Tax – Work Contract - Refund of tax paid
mistakenly – lump-sum turn key projects (LSTK) contract – indivisible contract
contends as to be divisible contract by revenue on the basis of schedule of
payment - HELD - Appellant No. 1 has executed a LSTK contract for setting up a
Nitric Acid plant for appellant no. 2 - The price schedule in the contract
indicates the amount to be paid is the contracted price in consideration of
contracted performance of the work covered under the said work order, which
included license and know how, basic design and engineering, detailed
engineering, procurement, supply, fabrication, transportation, stores,
construction, erection, installation, insurance, testing and pre-commissioning,
by warrantee tests etc - the contract is given as a turnkey project and breakup
of the schedule of the payment which has been relied upon heavily by the
learned departmental representative, will not carry the case of revenue any
further, as both the appellant considered the said contract as a turnkey
contract which is ‘works contract’. It is also noted that appellant no. 1 had
discharged appropriate works contract tax to state government authorities -
appellant had make out a case in their favor on to
that the service tax liability on the works contract will be applicable only
from 1/06/2007. This view is fortified by the Apex Court’s in judgment in the
case Larsen and Tourbo Ltd - Apex Court has clearly
laid down that the service tax liability on works contract cannot be imposed
prior to 1.6.2007 by vivisecting the contract and taxing individually the
services - The impugned order is set aside and the appeals are allowed
2015-VIL-554-CESTAT-MUM-ST
VOLKSWAGEN INDIA PVT LTD Vs COMMISSIONER OF CENTRAL
EXCISE, PUNE-I
Service Tax - Export of Services - Rebate of Service
tax – Notification No.11/2005-ST - Limitation – Whether the relevant date for
refund date of payment of service tax or the receipt of the foreign inward
remittance – HELD – there is no dispute as to the services have been exported,
payment has been received in convertible foreign exchange and the service tax
liability on the services exported are paid on or before 5th January 2010 for
the services exported in the month of December 2009. The relevant date for
refund in the case of rebate should be, from the date of payment of service tax
on the taxable services exported – The impugned order is set aside and appeal
is allowed
2015-VIL-112-SC-CE
NTB INTERNATIONAL (P) LTD Vs COMMISSIONER OF CENTRAL
EXCISE, THANE
Central Excise - Products manufactured by the
appellant assessee herein nylon and leather belt, nylon and rubber belt and
nylon and textile belt are rightly classified under Chapter Heading 4201.90 and
4010.00 and 5908.00 respectively. It is misconceived on the part of the
appellant argued that simply because of plastic was one of the inputs it would
still retain its characteristics as plastic and should have been classified
under Heading 3926.90. Not only the products manufactured are wholly from the
plastics, after the manufacture it lost its identity as plastic insofar as and
has not known in the market any longer. We do not find any merit in these
appeals and are accordingly dismissed
2015-VIL-111-SC-CE
COMMISSIONER OF CENTRAL EXCISE Vs M/s GOPSONS PAPERS
LTD & ANR.
Central Excise - Classification of ‘printed thermal
paper rolls’ – Assessee classified the said item under Chapter Heading 49.01 of
the CETA, revenue seeking classification under Head 4811.90 – HELD - the
assessee is undertaking the work of printing alone and is supplying to those
who place orders in this behalf. The end use of the said product at the hands
of the purchaser is not the concern of the assessee and cannot be the
consideration for classifying the goods in question - The description of the
work done by the assessee makes it clear that it is the printing which it is
undertaking and, therefore, it is rightly classified under Chapter Heading
49.01. Merely because the thermal paper rolls are the raw material used which
is imported or which is cut to different sizes, would not be relevant factor in
determination of the classification – Revenue appeal dismissed
2015-VIL-110-SC-CE
M/s CAPRIHANS INDIA LTD Vs COMMISSIONER OF CENTRAL
EXCISE, SURAT
Central Excise - Extended period of limitation -
Classification of PVC films/ sheets – HELD - appeal warrants to be allowed only
on the ground that the impugned show cause notice was time barred and it was
not a case where the Revenue could invoke the provisions of proviso to Section
11A of the Central Excise Act and take benefit of the extended period of
limitation. From the facts it becomes clear that the Department had issued Show
Cause Notice way back on 18.02.1994 asking the appellant to reclassify the
goods under Chapter Heading 3920. Therefore, all relevant facts were within the
knowledge/ notice of the Department - the appellant can be treated as a person
who had misled the authorities or made any mis-statement
/ mis-declaration. The appeal is allowed on this
ground itself without going into the issue of classification setting aside the
impugned order
2015-VIL-109-SC-CE
COMMISSIONER OF CENTRAL EXCISE, BANGALORE Vs M/s P.J.
MARGO PVT LTD & ORS.
Central Excise – SSI Exemption - whether the excisable
goods manufactured by the holding company and the subsidiary company have to be
clubbed together – HELD - In the impugned judgment, the CESTAT, without
adverting to either the facts stated in the SCN or the reply thereto, directly
arrived at a conclusion that the manufacture of the excisable goods by both the
holding company and the subsidiary company cannot be clubbed only on the basis
of a circular dated 29.05.1992. A cursory reading of the circular would show
that it refers to a completely different Notification and not to Notification
No. 7/97 dated 01.03.1997 - the sole basis on which the CESTAT has decided the
issue of clubbing is bad in law. Equally, on the issue of suppression of
material facts leading to the extended period of limitation the CESTAT is
equally cursory – Matter remanded to Tribunal to decide afresh as to whether
any case for clubbing of excisable goods manufactured by the holding company
and the subsidiary company is or is not made out on facts and issue of
limitation
2015-VIL-108-SC-CE
HEADWAY LITHOGRAPHIC COMPANY Vs COMMISSIONER OF
CENTRAL EXCISE, KOLKATA
Central Excise - Classification of printing biri wrappers cut to size - Classification under Chapter
sub-heading 4821.00 or under Chapter Heading 4823.19 – HELD - printing of biri wrappers would not and can never fit under the
description ‘transfer decalcomanias’ inasmuch as in the present case on plain paper
simple printing is done on the wrappers which are cut to size for the purpose
of wrapping the biris and there is no use of sheet of
plastics. In fact it is not printed on any absorbent, lightweight papers and
there is no coating of starch and gum. The conclusion would be that the goods
in question would fall under Item No. 4901.90 which attracts nil duty –
Assessee appeal allowed
2015-VIL-553-CESTAT-DEL-CE
SINGHAL INDUSTRIES SCREWS PVT LTD Vs C.C.E. DELHI-IV
Central Excise – Admissibility of credit on Bright
bars used as input manufacture of finished goods – Denial of credit on the
ground that Bright bars are not a commodity subject to excise duty - whether
appellants are entitled to credit on the duty paid on non-excisable goods used
as inputs – HELD - the Department itself was under much confusion as to whether
excise duty is to be collected or not on bright bars - when the input is
received in the factory and used in or in relation to manufacture of final
product and payment of duty is evidenced by the invoices the credit cannot be
denied. The question whether the input is a result of a process of manufacture
is irrelevant. What is relevant is whether duty has been paid or not on such
input – the impugned order is set aside and assessee appeal is allowed
delNoti843
Delhi: Introduction of Award Scheme 'Bill Banvao, Inaam Pao'
12th
of Oct
2015-VIL-115-SC-CE
M/s
SPENTEX INDUSTRIES LTD Vs COMMISSIONER OF CENTRAL EXCISE
Central Excise Act – Section
11B – Refund – Rebate - Admissibility of rebate of duty paid on the final
product which is exported as well as the claim of rebate of duty paid on inputs
- Notification No. 19/2004-CE(NT) – HELD - historical narration of the relevant
provisions from time to time depict one common theme, namely, to provide rebate
of duty paid on the excisable goods as well as the duty paid on material used
in the manufacture of goods - the exporters / appellants are entitled to both
the rebates under Rule 18 and not one kind of rebate. The impugned order is set
aside and appeals are allowed
2015-VIL-114-SC-CE
COMMISSIONER
OF CUSTOMS AND CENTRAL EXCISE, NAGPUR Vs M/s ISPAT INDUSTRIES LTD
Central
Excise – Section 4 - Valuation – Place of removal - Whether, by virtue of a
transit insurance policy in the name of the manufacturer, excise duty is liable
to be recovered on freight charges incurred for transportation of goods from
the factory gate to the buyer's premises, treating the buyer's premises as the
place of removal – HELD - in the present case all prices were
"ex-works", goods were cleared from the factory on payment of the
appropriate sales tax by the assessee itself, thereby indicating that it had
sold the goods manufactured by it at the factory gate. Sales were made against
Letters of Credit and bank discounting facilities, sometimes in advance.
Invoices were prepared only at the factory directly in the name of the customer
in which the name of the Insurance Company as well as the number of the transit
Insurance Policy were mentioned. Above all, excise invoices were prepared at
the time of the goods leaving the factory in the name and address of the
customers of the respondent. When the goods were handed over to the
transporter, the respondent had no right to the disposal of the goods nor did
it reserve such rights inasmuch as title had already passed to its customer -
Under no circumstances can the buyer's premises, therefore, be the place of
removal for the purpose of Section 4 on the facts of the present case - Revenue
appeal dismissed
2015-VIL-113-SC-CE
M/s
LARSEN & TOUBRO LTD Vs COMMISSIONER OF CENTRAL EXCISE, HYDERABAD
Central
Excise – Exemption under Notification No. 4/1997-CE - Whether assessee is
entitled to exemption on 'Ready Mix Concrete' (RMC) under Notification No.
4/1997-CE dated March 01, 1997 when the said Notification exempted Concrete Mix
(CM) and not RMC – Assessee claim of exemption only on the ground that RMC was
manufactured at the site of construction and captively
used - Ready Mix Concrete (RMC) vs Concrete Mix (CM)
– HELD - Ready Mix Concrete and Concrete Mix are two different products – the
assessee was producing RMC and the exemption notification exempts only CM and
the two products are different. Even if there is a doubt, which was even
accepted by the assessee, since we are dealing with the exemption notification
it has to be strict interpretation and in case of doubt, benefit has to be
given to the Revenue – Assessee appeal fails and are dismissed
2015-VIL-21-MSTT
M/s
PRIYADARSHINI POLYSACKS Vs THE STATE OF MAHARASHTRA
Maharashtra Value Added Tax
Act – Set off – Rule 54 – Windmill and its components - Disallowance of set-off
for the period 2005-06 and period 2006-07, in respect of purchases of
electrical components required for windmill – HELD - There is no dispute
regarding the fact that rotor blade was used in windmill as its component and
these rotor blades are essential part of the windmill for generation of
electricity - as per section 53(7B) prior to the amendment which come into
effect from 31/10/2007, there was no reduction of set-off with regard to goods
purchased for generation of electricity. Under these circumstances, the order
of the assessing officer and appellate authority reducing set-off by taking aid
of rule 53(7B) was not proper.
2015-VIL-441-MAD
SSS
TRADERS Vs THE COMMERCIAL TAX OFFICER
Tamil Nadu Value Added Tax
Act – Exemption to Maize – Denial of exemption on the ground that the appellant
was selling Maize to a customer who was using it as a Maize waste for poultry
feeding – HELD - Even the Assessing Officer does not dispute that what was sold
by the appellant was Maize. But, the Assessing Officer had gone by the fact
that the person to whom Maize was sold, used it as waste for poultry feeding.
There is nothing either in the Act or in the circulars to indicate that the
eligibility of a product for exemption depended upon its usage. The exemption
was a product based exemption and not user based exemption or an assessee based
exemption. Therefore, this is a case where the Assessing Officer committed a
jurisdictional error warranting interference by this Court. Hence, the writ
appeal is allowed
2015-VIL-440-MAD
M/s
ABL TRADERS Vs THE COMMERCIAL TAX OFFICER
Tamil Nadu Value Added Tax
Act – Section 19 – Input tax credit – Denial of credit to the appellant on the
ground that seller failed to disclose the transaction made with the petitioner
in their monthly returns and not paid the tax – HELD - at the time of purchasing
the goods, admittedly, the petitioner has paid the tax to the seller, which is
not under dispute. The reason assigned in the impugned order is that the
petitioner firm is denied Input Tax Credit just because the dealer/seller has
failed to report the same - The reason adduced by the respondent is
unacceptable for the reason that when admittedly the petitioner firm has paid
the tax, he cannot be made liable for the failure on the part of the seller to
report the same to the respondent – Assessee petition allowed
2015-VIL-439-MAD
PALANI
ANDAVAR MILLS LTD Vs THE STATE OF TAMIL NADU
Tamil Nadu General Sales Tax
Act, 1959 - Section 30 - functions of the Appellate Tribunal – Whether a single
member of the Tribunal can pass orders on the review application under Section
36 (6) of the Act, when the order was passed by a double member bench of the
Appellate Tribunal – HELD - A cursory reading of the Section 30(3)(a) clearly
bars the single member from exercising such power of review on both the grounds
viz. (i) the turnover admittedly exceeds one lakh
rupees and (ii) a single member cannot review an order passed by two member
Bench - the impugned order is set aside and the matter is remanded to the
Tribunal for passing appropriate orders on merits by a competent Bench of the
Tribunal
2015-VIL-556-CESTAT-MUM-CE
JOHN
DEERE (I) PVT LTD Vs COMMISSIONER OF CENTRAL EXCISE, MUMBAI
Central Excise - Conversion
from DTA to EOU unit – utilization of carry forward of balance CENVAT credit
for discharge of duty - show cause notice demanding reversal of such CENVAT
credit, interest and penalties on the ground that appellant having converted
himself in an EOU cannot have carried forward the unutilized CENVAT credit –
HELD - Undisputed fact is that the final products manufactured by appellant in
EOU and cleared for export are not dutiable, but the very same final products
when cleared into DTA becomes dutiable hence the provisions of Section 5A of
the CEA, 1944 which are sought to be applied by the adjudicating authority and
the learned D.R., will not apply as the said provision of Section 5A are in
respect of the goods which are fully exempted from payment of duty. Holistic
reading of the provisions of Rule 11(3) would indicate that it will apply only
in the case when final products are totally exempted - the impugned order is
unsustainable and liable to be set aside – Assessee appeal allowed
2015-VIL-557-CESTAT-MUM-ST
SUNRAJ
CONSTRUCTION Vs COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, MUMBAI
Service
Tax – works contract services – Composition Scheme - Demand of differential
service tax liability on the - discharge service tax liability under Works
Contract Composition Scheme but after claiming the deduction by applying the
provisions of Section 67((2) of the Finance Act, 1994 – Demand and penalty –
HELD - Rule 3(1) of the Composition Scheme starts with an non-obstante clause
which indicates that the provision of Section 67 may not be applicable in this
case - the said scheme is an optional one and once an assessee opts to discharge
the service tax liability under the Composition Scheme, he has to follow the
provisions in the said Composition Scheme which will not be bound by the
provisions to Section 67 of the Finance Act, 1994 - , the Composition Scheme
being optional, having opted for it, appellant has no locus standi
to revert back to workout the gross value charged for
the services rendered - differential tax liability as worked out by the
adjudicating authority along with interest is correct and needs to be upheld –
Assessee appeal dismissed
2015-VIL-558-CESTAT-DEL-ST
M/s
CREATIVE TRAVEL PVT LTD Vs COMMISSIONER OF CENTRAL EXCISE & ST, NEW DELHI
Service
Tax – Show cause notice – the allegation against the appellant is that they
have not filed their ST 3 return under section 70 of the Act. If that is so,
then the provision of section 72(a) are attracted. But it is a fact on record
that the appellant has filed their return regularly under section 70 of the
Act. Therefore, the foundation of the show cause notice that the appellant has
not filed their return is incorrect. If the case of the Revenue is that
appellant has not filed the return, the provision of section 72 are attracted.
The said allegation against the appellant stand disapproved as the appellant
has filed their return regularly - If the appellant has filed the return, and
fails to assess the tax in accordance with the provisions of this Chapter or
rules made thereunder in the show cause notice, there
is no allegation against the appellant that they have filed the return and
failed to assess the tax in accordance with the provisions of law - Therefore,
we hold that provision of section 72(b) are not attracted in the show cause
notice and the show cause notice has been issued without appreciating the facts
that the appellant have been filing the return regularly. The show cause notice
has travelled on the premise that appellant has not filed return under section
70 of the Act which is incorrect - the show cause notice is deficient,
therefore, the same is not maintainable – Appeal allowed
goaOrder2903
Goa:
Extension in date for filing of returns for the
quarter ending 30.09.2015
utrNoti897
Uttarakhand:
Amendment in UVAT Schedule-I - Regarding Slate (excluding writing boards),
Slate pencils, Scale and Duster
karOrder123
Karnataka:
Regarding the rate of tax applicable on "Epoxy Resin DER 663U-E",
"Epoxy Resin DER 671 X75", "Specflex
NF 749 Polyol", "Specflex
FD 402", and "Walocel CRT 50000 PA-07"
Book
Release
GOODS
AND SERVICES TAX – INTRODUCTION AND WAY FORWARD - By Shri
Bimal Jain
apGO919
Andhra
Pradesh: Transporters JAC – Grievances - Redressal – Cabinet Sub-Committee – Recommendations and
Approval
13th of Oct
ceCir1007
Central Excise: Withdrawal
of Order under 37B of Central Excise Act, 1944 on classification of Coconut Oil
packed in small containers
2015-VIL-442-KAR
STATE
OF KARNATAKA Vs M/s UNITED BREWERIES LIMITED
Karnataka Tax on Entry of
Goods Act, 1979 – Section 3 – Validity of levy of entry tax on ‘barley malt’ /
‘malted barley’ – Exemption to agricultural produce – Consumption – Raw
material – HELD - the definition states that if by a physical, commercial or
other processes an agricultural produce is made fit for consumption, then it
would no longer be an agricultural produce. Therefore, consumption would imply
that there is a conversion of the commodity into a different commodity - in the
instant case, it was not at all necessary for the authorities below or for the
Tribunal to go into the nature of process whereby barley, maize and hops
flowers were being subjected to, in order to ascertain as to whether they
continued to be retain their original identity as agricultural produce - what
is relevant is to ascertain as to whether those produces had been subjected to
a process for being made fit for consumption i.e. in the manufacture of beer in
the instant case. When once it is admitted by the respondents-assessees that those products were subjected to certain
processes for being used as raw materials in the preparation or manufacture of
beer, it must be held that they were subjected to certain processes for being
made fit for consumption, in which event, those products cannot be considered
to be agricultural or horticultural produce within the definition clause.
Hence, they are not subject to exemption from payment of entry tax under the
Act - It is held that malted barley / barley malt, hops pellets and maize
flakes are not agricultural / horticultural produce falling under Entry-2 of
Schedule-II of the Act and they are not exempted from the levy of tax under the
Act. Thus, the aforesaid products are liable to tax under the Act - The orders
of the lower appellate authority holding that these three products are not
agricultural or horticultural produce is correct, but the reasoning is incorrect.
On the other hand, the judgments of the Tribunal holding that those products
are agricultural produce, are incorrect - the judgments of the Tribunal are set
aside. The reasoning of the appellate authority is modified by the reasons
given in this order – Revenue revision petitions are allowed
2015-VIL-443-ORI
M/s
ADANI ENTERPRISES LTD Vs COMMISSIONER OF COMMERCIAL TAXES
Orissa
Entry Tax Act - Rectification of mistake under sub section (1) of Section 20 of
the Act – payment of Entry Tax by NTPC Limited on ‘coal’ as a raw material for
generation of electrical energy - Refund of entry tax paid under protect –
Alternative remedy - HELD – Writ petition not maintainable - the issue as to
whether the DCCT (assessing officer) who having arrived at a finding of fact
was prevented from giving effect to such order or not is a matter of
jurisdiction which ought to be decided by the Commissioner who is the authority
in which all authorities is bestowed under the O.E.T Act. Consequently while we
refrain from entertaining the present writ application granting liberty to the
petitioner to move the Commissioner of Sales Tax Odisha
by filing a revision against the impugned order
2015-VIL-116-SC-CE
COMMISSIONER
OF CENTRAL EXCISE, MUMBAI-IV Vs M/s FITRITE PACKERS
Central
Excise - Whether printing on duty paid GI paper would amount to manufacture –
test of no commercial user without further process - HELD - Whereas blank paper
could be used as wrapper for any kind of product, the printing of logo and name
of the specific product is not merely a value addition but has now been
transformed from general wrapping paper to special wrapping paper - In that
sense, end use has positively been changed as a result of printing process
undertaken by the assessee - the process of particular kind of printing has
resulted into a product, i.e., paper with distinct character and use of its own
which it did not bear earlier. Thus, the 'test of no commercial user without
further process' would be applied - there has first to be a transformation in
the original article and this transformation should bring out a distinctive or
different use in the article, in order to cover the process under the
definition of 'manufacture'. These tests are satisfied in the present case -
Revenue appeal is allowed setting aside the order of the Tribunal and restoring
the order passed by the Adjudicating Authority
2015-VIL-560-CESTAT-MUM-CE
FIAT
INDIA LTD Vs COMMISSIONER OF CENTRAL EXCISE, MUMBAI II
Central
Excise – Clearance of motor vehicles after 01.03.2003 without payment of
National Calamity Contingent Duty (NCCD), which came into effect from
01.03.2003 - demanded NCCD – HELD - There is no dispute that for the pre-budget
stock which have been manufactured before 01.03.2003, NCCD would not be
applicable. However, the admitted position even from the appellant’s side is
that the vehicles were not fully finished but substantially finished. It is
seen that it is important that the road test are carried on the vehicles before
it can be taken on road and released for sale. Similarly, it is an admitted
position certain work remains to be done in these vehicles in as much as
certain items were yet to be fixed. Under these circumstances, the motor
vehicles cannot be considered as manufactured as on 28.02.2003 and therefore
NCCD would be chargeable - demand is upheld on merits. In the facts and
circumstances of the case, this is not a fit case for imposition of penalty and
penalty imposed under rule 25 is set aside. Interest under Section 11AB is
upheld – Appeal partly allowed
2015-VIL-559-CESTAT-MUM-CE
COMMISSIONER
OF CENTRAL EXCISE, AURANGABAD Vs M/s PEPSICO INDIA HOLDINGS LTD
Cenvat
Credit Rules, 2002 – Rule 6(4) – Denial of credit on the capital goods -
manufacture of exempted goods – HELD – As the appellant had admittedly informed
the Revenue at the time of commencement of production that it will utilize the
said machinery for manufacture of both dutiable and non-dutiable products, it
cannot be said that the said machinery is exclusively used for manufacture of the
exempted goods. Capital goods in question have a life over several accounting
years and as such the intention at the time of installation is also the
relevant factor. For the temporary use for few months in manufacture of only
exempted goods will not disable the assessee in availing the CENVAT Credit and
utilizing the same for manufacture of dutiable goods - assessee is entitled to
CENVAT Credit on the capital goods in question – Revenue appeal dismissed
2015-VIL-561-CESTAT-BLR-ST
QUALCOMM
INDIA PVT. LTD Vs COMMISSIONER OF SERVICE TAX, BANGALORE-SERVICE TAX
Service
Tax – Denial of refund claims on the ground that assessee are registered under
the category of ‘Consulting Engineering Services’ whereas they are actually
providing the software development services – HELD - irrespective of the fact
that whether the appellant is registered under a particular category instead of
another category, the refund would be admissible as long as there is export of
services - the impugned order is set aside and matter remanded the matter to
the original adjudicating authority for examining the appellant’s contention
without raising the objection of registration
2015-VIL-563-CESTAT-DEL-ST
M/s
ORIENTAL CARBON & CHEMICAL LTD Vs C.C.E. & S.T. GURGAON-II
Service
Tax – Cenvat Credit sought to be denied on the premise that the Bill of Entry
is in the name of the EOU unit and not in the name of the appellant – HELD -
the name of 100% EOU is wrongly mentioned by the appellant which has been
explained. The payment towards the said capital goods have been paid by the
appellant only and the capital goods is physically available in the premises of
the appellant. Therefore, merely wrong mention of the name in the Bill of Entry
Cenvat Credit cannot be denied to the appellant. Accordingly, appellant having
taken Cenvat Credit on the strength of Bill of entry on capital goods is
correct - services namely Business Chamber Association Services, Horticulture
Services, After Sale Services (commission paid to the services), Outward Goods
Transportation Agency Services are the services in the nature of the services
availed by the appellant in the course of business of manufacturing. Therefore,
appellant is entitled to avail Cenvat Credit – Appeal allowed
2015-VIL-562-CESTAT-DEL-ST
COMMISSIONER
OF CENTRAL EXCISE & SERVICE TAX, JAIPUR-I Vs M/s INOX LEISURE LTD
Service
Tax - Respondent is a multiplex cinema hall and providing services namely,
advertisement agency service and movie theater operation service - The
advertisement agency service is a taxable service and movie theatre operation
service is an exempt service - input service credit was denied to the
respondent, as the respondent has not maintained separate accounts for inputs
service – input service credit on manpower supply, security services,
professional service, courier services, rent-a-cab services and cleaning
services - HELD - On analyzing the usage of these services, it is clear that
these services have been used for advertisement agency service. In these circumstances,
it cannot be held that respondent has used the above mentioned services
exclusively for providing movie theatre operation services – No infirmity in
the impugned order. Appeal filed by the Revenue is dismissed
Guest
Article
Battle
on GST: States Vs Centre
tnCir43
Uttarakhand
Notification
utraNoti748
& utrNoti904: Uttarakhand Entry Tax Act - Levy of Entry tax on Raw
Petha and Petha Sweet
delNoti870
Delhi: Extension in the last
date for filing of online returns for the 1st and 2nd quarters of the year
2015-16, in Forms EC-II and EC-III
14th
of Oct
2015-VIL-445-HP
M/s
INTERNATIONAL CYLINDERS (P) LTD Vs STATE OF H.P.
Central
Sales Tax Act, 1956 – Writ petition seeking refund or adjusted in future
payments of tax paid in excess of 1% under the Act - CST concession – HELD -
Once the Council of Ministers takes a policy decision, the implementing
Department cannot issue a notification contrary to the policy decision taken by
the Government - Merely because the Excise and Taxation Department took some
time to issue the notification, it cannot be held that the eligible units are
not entitled to the concession till the Department issued the notification –
Matter settled by Apex Court in M/s Lloyd Electric and Engineering Ltd. vs.
State of H.P. – Assessee writ petition allowed
2015-VIL-444-DEL
BANSAL
DYE CHEM PVT LTD Vs COMMISSIONER VALUE ADDED TAX, DELHI
Delhi Value Added Tax Act, 2004 - Section 86(10) -
Levy of penalty without issuing notice – opportunity of being heard – HELD -
Assessee has not challenged the finding of the VATO as far as the levy of tax
and interest was concerned, the Assessee accepted that it had filed a return
with incorrect particulars - The fact remains that no notice was issued to the
Assessee by the VATO on the aspect of penalty. The mere fact that the Assessee
had paid the penalty under protest would not preclude it from questioning the
levy of penalty on the ground that the basic procedural requirement was not
fulfilled by the VATO - Assessment of penalty is an exercise separate from the
main assessment for determining the tax and interest payable - impugned order
is unsustainable in law and is hereby set aside – assessee petition allowed
M/s TANSASIA BIO-MEDICAL LIMITED Vs THE DEPUTY
COMMERCIAL TAX OFFICER-II
Central Sales Tax Act - grant an opportunity for
re-submission of the rectified 'F' Forms and the submission of balance 'F'
forms – HELD - There is ample power for the authority to grant extension of
time for re-submission declaration forms - In the instant case, there is
justification for the authority to invoke the powers under the proviso to Rule
12(7) for the reason that the petitioner had to obtain the 'F' forms - assessee
in this case, at the first instance, has submitted original 'C and F'
declaration forms on receipt of the notice. He also sought time for seeking
rectification of the 'F' forms and has justified the reasons for the said
non-submission - the impugned order stands set aside and this Writ Petition
stands allowed
2015-VIL-448-ALH-CE
M/s
KISAN SAHKARI CHINI MILLS LTD Vs UNION OF INDIA
Central
Excise - Grant of permission for storage of non duty paid sugar in godowns situated outside the factory premises - payment of
supervision charges under protest – Claim of refund of the ground that
supervision charges could only be charged for the days when storage or
clearance of sugar was actually supervised and for the period where no
supervision was conducted by the excise authority, the amount deposited should
be refunded along with interest – HELD - The contention that the
supervision charges is only required to be paid when the sugar is stored or
cleared from the godown, is patently misconceived. So
long as the sugar is stored in godown outside the
factory premises the same remains under the physical control of the revenue,
the petitioner is required to pay the supervision charges on cost recovery
basis – The question of refund of supervision charges does not arise - writ
petition and is dismissed
2015-VIL-564-CESTAT-MUM-CE
INDO BEROLINA INDUSTRIES PVT LTD & IBI CHEMATUR
(ENGG. &
CONSULTANCY) LTD Vs COMMISSIONER OF CENTRAL EXCISE, MUMBAI-IV
Central Excise – Valuation –
Setting-up of chemical plant – Whether charges for the activities of process
designing, mechanical equipment, civil engineering, electrical piping,
measuring and control instrumentation and insulation is includible in
assessable value - project consultancy - whether the charges paid to appellant
were relating to the engineering, designing and various equipment before
manufacturing or these charges are relating to post manufacturing activity –
HELD - most of the activities are relating to pre-fabrication, engineering and
design stage. It is on the basis of this designing that the appellant is
fabricating various equipment, instruments, pipings,
insulations etc. The expenditure on such activities would, therefore, form part
of the assessable value of the machinery and equipment manufactured by
appellant - without these engineering drawings, it was not possible for
appellant to fabricate and manufacture the equipments which they have supplied
- in some cases there are some activities which may not be necessary at the
manufacturing stage. However, since no separate amount has been indicated for
such post manufacturing activities, the entire amount is required to be added –
Since critical facts were not submitted along with the price declarations, the
extended period of limitation has been correctly invoked - keeping in view the
overall facts and circumstances of the case and the fact that some of the
activities are post manufacturing activity for which separate amounts are not
available, penalty imposed under Rule 173Q is on the higher side and same is
reduced – assessee appeals are rejected except the modification of the penalty
M/s
CHANDRA KAMAL CORPORATION Vs UNION OF INDIA
Central
Excise – Power of Settlement Commission to quantify interest and penalty -
Though the Commission has power to make such order as it thinks fit on the
matters covered by the application under Section 35(5) of the Act, however, the
Commissioner cannot make an order making a settlement which would be in
conflict with the provisions of the Act such as the quantum and payment of
penalty - the Settlement Commission has no power to waive duty or interest and
has to determine the quantum of duty in accordance with the relevant provisions
of the Act. The Settlement Commission has no power to settle the case "dehors" the provision of the Act – the order of
Settlement Commission quantifying the amount of penalty almost to the extent of
100% of the duty determined was incorrect and was not in consonance with the
first and second proviso to Section 11AC of the Act. The order of the
Commission stands modified to the extent that, in the event, the petitioners
pays the duty and interest determined within the stipulated period as provided
under the first and second proviso to Section 11AC of the Act and the
petitioners also pays 25% of the penalty so determined within the stipulated
period as provided in the second proviso, in which case the petitioners would
be entitled for the refund of the excess amount - writ petition partly allowed
2015-VIL-565-CESTAT-CHE-ST
M/s
SRF LIMITED Vs CCE, TRICHY
Service Tax – Failure of
assessee to get endorsement of new activity in the registration certificate –
penalty under section 77 of the Finance Act, 1994 – HELD - absence of
endorsement of the new activity in the registration certificate does not amount
to default when the assessee consciously discharged tax liability. It does not
appear from the conduct of the assessee that it is required to be dealt coercively
under law for the non-endorsement of the different activity which was carried
out subsequently - Considering the registration status of the assessee and no
deliberate default to cause evasion to Revenue, the penalty imposed under
section 77 is waived and appeal is allowed
2015-VIL-567-CESTAT-CHE-ST
M/s
ALSTOM T & D LTD Vs COMMISSIONER, LTU, CHENNAI
Service Tax – export of
goods - credit of service tax paid on marine insurance policy – HELD - Taking
up marine insurance policy not being in dispute as well as export not in
dispute, followed by reversal of the credit under protest, the order of the
Commissioner (Appeals) does not appear to be proper and reasonable to survive.
Accordingly, that is set aside and relief of refund of service tax paid on the
policy shall flow in accordance with law – appeal allowed
COMMISSIONER
OF SERVICE TAX, CHENNAI Vs M/s LASON INDIA PVT LTD
Service Tax – principle of
jurisprudence – Appellant authority has not at all examined any evidence nor
also tested the facts by evidence on the touchstone of law. Such laxity does
not get approval of law - Merely because there are certain judgments that does
not grant relief ipso facto to an assessee. Such approach by the appellate
authority is contrary to the elementary principle of jurisprudence – Court
lists the guidelines for how judicial and quasi judicial orders are to be
written – Matter remanded
Guest
Article
Introduction of Goods and
Service Tax in 2016 – A Myth or Reality?
FCP1410
FROM THE CORRIDOR OF POWER - Updates from
various Union Ministries, PMO & Cabinet
15th
of Oct
UTTAR
PRADESH NOTIFICATION
upNoti1421:
Uttar Pradesh Entry Tax Act - Amendment in Coal including Coke in all its forms
upNoti1422:
Regarding Transportation Memo in Form XXI on
transportation of Edible Oil
upNoti1423:
Amendment in UPVAT Schedule-IV - Regarding Cigarette/Cigar, Pan masala & other tobacco products
upNoti1498:
Uttar Pradesh Entry Tax Act - Rate of tax
on 'Coal including Coke in all its forms'
dnhNoti1626
Dadra and Nagar Haveli:
Enhancement in rate of tax from 4% to 5% in respect of goods specified in Third
Schedule - Date of effect of new rate
apCir126
Andhra Prdesh:
CST Act, 1956 - Registration - Insisting of Security/Additional Security and
Provisional Assessment under CST Act
stNoti19
Service Tax: Taxability of
services provided in relation to remittance of money to India from overseas
2015-VIL-450-KAR
M/s
KARNATAKA POWER CORPORATION LTD Vs STATE OF KARNATAKA
Karnataka Sales Tax Act –
Sale – assessee supplies the contractor the iron & steel and cement for the
purpose of construction and the cost thereof is deducted from the contract
price - whether it constitutes a sale and liable to sales tax – HELD -All the
agreements between the assessee and the contractor, a standard clause that iron
& steel and cement would be deducted from the contract price payable to the
contractors is incorporated - The cost of those materials was deducted from the
contract price payable to the contractors. Unless there is a liability on the
part of the contractor to pay for those goods supplied, the question of
deduction would not arise. In order to maintain quality in the construction, if
the assessee had taken steps for supplying materials by imposing a condition
that the contractor shall not utilize the material for any purpose, except for
the purpose for which it is supplied and deducted the cost of supplies from the
contract price payable to the contractors does not in any way absolve the
assessee from liability to pay the sales tax – Assessee petition dismissed
M/s FUTURE GAMING AND HOTEL SERVICES (PVT) LTD Vs
UNION OF INDIA
Service Tax – levy of service tax on buy / sell of
Lottery Tickets – HELD - The Petitioners in buying and selling the lottery
tickets is not rendering service to the State and, therefore, their activity
does not fall within the meaning of 'service' as provided under Clauses (31A)
and (44) of Section 65B and, therefore, outside the purview of Explanation 2 to
the said Section - in any case, since by the Explanation the scope of Section 66D
which is the main provision which is to be expanded, it would be ultra vires the Finance Act, 1994 and is accordingly struck down
- The impugned notice having been issued on an erroneous interpretation of
Section 66D of the Finance Act, 1994, as amended by the Finance Act, 2015
requiring the Petitioners to pay tax under the Service Tax Rules, 1994, as
amended, in the absence of specific provision in the Finance Act and that
Sub-Rule (7C) of Rule 6 of the Service Tax Rules, 1994, only provides an optional
composite scheme for payment of tax and, therefore, does not create a charge of
service tax and is a subordinate piece of legislation, hereby stands quashed.
Resultantly, Circular under D.O.F. No.334/5/ 2015-TRU dated 19-05-2015 also
stand quashed - The respondents, their agents, servants, officers and
representatives are restrained directly or indirectly, and in any manner
whatsoever, from demanding any amounts by way of service tax or enforcing the
provisions of the Finance Act, 1994 on the activity of the petitioners in
relation to lottery tickets – Assessee petition allowed
16th
of Oct
2015-VIL-453-KAR
M/s
HICURE PHARMACEUTICALS PVT LTD Vs THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES
(AUDIT – 3)
Karnataka
Value Added Tax Act – Work Contract – contracts for manufacture and supply of
medicinal pharmaceuticals injections - Whether Water for Injection (WFI) / Demineralized water used as an input in the execution of
the works contract attracts levy of tax under the KVAT Act/CST Act and whether
the contract executed by the assessee with its principals or customers is a
contract for service or a composite divisible contract - transfer of property
in goods involved in works contract – Divisible work contract - HELD - contract
executed by the assessee to supply WFI/DM water which is an input for the
manufacture of injection, supplied by the assessee is a composite works
contract involving transfer of property in goods as well as labour
and service. The State is empowered to bifurcate the contract and levy sales tax
on the value of the goods involved in the execution of the works contract. The
authorities and the Tribunal having considered the scope of 46th Constitutional
amendment and the principles of law enunciated by the Apex Court have rightly
subjected the deemed sale of WFI/DM water to tax on the value of such goods
transferred in the execution of works contract, which cannot be found fault
with – Assessee revision petitions are dismissed
2015-VIL-451-P&H
M/s
UNITED SPIRITS LTD Vs STATE OF HARYANA AND ANOTHER
Haryana
General Sales Tax Act, 1973 – Supply of Ethyl alcohol for manufacture of liquor
– Denial of refund claim on the ground of unjust enrichment – HELD - Tribunal
upheld the levy of purchase tax upon the appellant as the appellant was the
last purchaser of taxable goods to be used for the purpose of manufacturing non
taxable goods – The reasoning adopted by the Tribunal is perverse - The
Tribunal has proceeded on the basis of the appellant’s contention that the
purchase price paid by the appellant included the sales tax element and,
therefore, inferred that the appellant must have added the element of tax in
the price of alcohol sold to the consumers - Assuming that the tax had been
paid by the appellant and had been recovered from the consumers, the matter
would end there. The appellant would not be burdened with any tax itself.
However, the appellant was compelled to deposit the entire purchase tax element
with the Assessing Authorities as a condition precedent to the maintainability of
its appeal. Far from being unjustly enriched the appellant in this manner is
actually out of the pocket to the extent of the amount paid as a condition
precedent to the maintainability of the appeal. In the event of the same being
refunded, there would be no question of unjust enrichment – Assessee appeal
allowed
2015-VIL-571-CESTAT-MUM-CE
ESSEL
PROPACK LTD Vs COMMISSIONER OF CENTRAL EXCISE, THANE
Central
Excise – Valuation – Cost of Secondary packing – Use of special packing for the
purpose of transport of multilayered plastics collapsible tubes, which are
fragile in nature – HELD - Since cost of secondary packing not ordinarily used
and given specially at the request of customer, is not includible in the
assessable value, the benefit of exclusion of the cost of special packing as a
secondary packing has to be allowed to the appellant in terms of Section 4 of
the Central Excise Act. The appeal filed by the appellants is consequential
allowed
2015-VIL-570-CESTAT-MUM-CE
SUPERMAX
PERSONAL CARE PVT LTD Vs COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX (LTU),
MUMBAI
Central
Excise Act – Pre-deposit – Section 35F - Whether if the CENVAT debits made by
the appellants during the period of default are sufficient for the purpose of
section 35F - validity of debits made in the CENVAT account as against demand
of payment in cash – HELD - The whole purpose of Section 35F is to ensure that
the order issued by various authorities are complied with, at least in part,
before the appeal against the same is entertained. The entire dispute in the
case relates to the incorrectness of the utilisation
of the amount used from CENVAT account. The order of the Commissioner clearly
does not recognize the payments made through said account and orders payment in
cash. In view of the fact that the Rule 8(3A) as well as the order of the
Commissioner clearly distinguishing between the payment in cash with payment
through CENVAT, the same can not be equated - The
appeal is therefore liable to be dismissed as non maintainable for lack of
compliance of requirement of Section 35F
2015-VIL-568-CESTAT-MUM-CE
CIRON
DRUGS & PHARMACEUTICALS PVT LTD Vs COMMISSIONER OF CENTRAL EXCISE, THANE-II
Central
Excise Act – Section 35F - Pre-deposit - appellant had reversed some amounts of
CENVAT credit on their own and these are a matter of dispute with reference to
the duty demand - payments during investigations to be taken into consideration
for purpose of the said section w.r.t pre-deposit –
HELD - the said amounts have not been reversed during the course of
investigation but were paid by the appellant themselves and are a matter of
dispute with reference to the duty demand confirmed. We also agree with the
contention of the learned Commissioner (AR) that considering these amounts at
this stage will amount to going into the merits of the case, particularly as
these are points of grievance of the appellant - In view of this the appellant
is required to deposit 7.5% of the duty demanded and since they have not paid
the said amount, the appeal is not maintainable – pre-deposit ordered
2015-VIL-573-CESTAT-MUM-ST
M/s
GREY WORLDWIDE (INDIA) PVT LTD Vs COMMISSIONER OF SERVICE TAX, MUMBAI
Service Tax - Advertising
Agency Services - ‘media costs’ from the Ministry of Tourism - media services
provided outside India - HELD - It was not in dispute that the hoardings/bill
boards and media costs and the advertisement published in print and electronic
media were abroad - media costs were incurred by the assessee beyond the
territorial waters of India – Following the Tribunal order in the case of Cox
and Kings the services rendered by the appellant beyond the territorial waters
of India, service tax would not be charged – Assessee appeal allowed
2015-VIL-572-CESTAT-MUM-ST
INDIAN
BANKS ASSOCIATION Vs COMMISSIONER OF SERVICE TAX, MUMBAI-I
Service
Tax - Club and Association Services - liable to discharge service tax liability
on the amounts collected as subscription, fees and various charges for
conducting conferences, seminars for members or otherwise – HELD - it is seen
from the records that the services which are rendered by the appellant are for
their own member banks - Services provided by appellants to their respective
members and consideration received therefor is not exigible to tax in view of the principle of mutuality –
Assessee appeal allowed
megNoti601
Meghalaya
Value Added Tax (Amendment) Act, 2015 - Amendment in Section 106 - Special
provisions relating to deduction of tax at source
Maharashtra:
Clarification regarding determination of turnover for Local Body Tax [LBT]
19th
of Oct
2015-VIL-455-MAD
M/s
A.V.THOMAS LEATHER & ALLIED PRODUCTS PVT LTD Vs THE ASSISTANT COMMISSIONER
(CT)
Central
Sales Tax Act, 1956 – Section 10-A - Appellant purchased packing materials,
tools & spares etc., from inter-State dealers, without those articles being
included in the certificate of registration -appellant issued 'C' forms to the
sellers, enabling them to avail the concessional rate of tax - levy of penalty
under Section 10-A of the Act – HELD - this Court in State of Tamil Nadu Vs
Nu-Tread Tyres held that even in respect of the goods
which are not covered by the certificate of registration, the benefit cannot be
denied - The certificate of registration shows that the wooden strips, wooden
insert cap, grey board, rose board, PVC sheeting, stamping foil etc., are also
included in the certificate of registration issued to the appellant. Therefore,
the very basis on which the proposals were made under Section 10-A, is found to
be shallow - The assessing officer, instead of following the decision of the
Full Bench of this Court, has chosen to follow the decision of the Guwahati High Court. It is a fundamental principle that the
assessing officers are bound by the rulings of the jurisdictional Courts - Even
the exports covered by Form-H, have not been taken note of by the assessing
officer - the impugned orders passed are clearly erroneous – common orde and penalty set aside - writ appeals are allowed
2015-VIL-452-P&H
M/s
CEBON INDIA LIMITED Vs STATE OF HARYANA
Haryana
Value Added Tax Act - exemption under Rule 28-A – Denial of grant of
eligibility certificate for tax exemption/deferment - second/separate unit –
HELD - The exemption is to be sought by and in respect of a unit, inter alia,
of a company and is granted to the unit. The distinction between the juristic
entity, namely, the company and a unit thereof has been drawn throughout the
Rules - The exemption is given to the unit and not to the company. The refusal
of the exemption to the second unit makes no difference in determining whether
the provisions of sub Rule (11) of Rule 28-A had been met by the unit to which
the exemption was granted. For this reason, it is irrelevant whether the
registration certificate in respect of the second unit is granted or not and if
granted whether it is subsisting or not. Even if it is not subsisting or not
granted, it would be irrelevant while determining whether the unit in respect
of which exemption is granted has achieved the production figures and has met
the other requirements – Assessee appeals dismissed
2015-VIL-454-MAD
M/s
SRI RATNA ELECTRICALS Vs THE ASSISTANT COMMISSIONER (CT)
Tamil
Nadu Value Added Tax Act, 2006 - Section 19(20) – Determination of taxable
turnover - Inclusion of discounts received - Commissioner's Circular dated
04.11.2013 – HELD - On perusal of the impugned order it is clear that neither
the circular of the Commissioner of Commercial Taxes dated 04.11.2013 nor the
appropriate statutory provision viz., Section 19(20) of the TNVAT Act have been
referred to - the impugned order is liable to be set aside. The petitioner is
permitted to file necessary objections the same shall be considered and
appropriate orders be passed by the respondent, on merits and in accordance
with law, in the light of the Circulars referred to above and also taking into
account Section 19(20) of the TNVAT Act – Assessee appeal allowed by remand
COMMISSIONER
OF CENTRAL EXCISE, BALKRISHNA INDUSTRIES LTD & ESSEL PROPACK LTD Vs UTTAM
GALVA STEELS LTD, BHUSHAN STEEL LTD, JSW ISPAT STEEL LTD & COMMISSIONER OF
CENTRAL EXCISE
Central
Excise Act - Section 4 – Valuation - Sales tax incentive scheme (Package Scheme
of Incentives 1993) of Government of Maharashtra - Sales Tax Incentives by way
of Deferral – Amendment to Bombay Sales Tax Act, 1959 to provide an optional
scheme for payment of sales tax so deferred in advance on its net present value
(NPV) – Assessees opting to pay the deferred tax in
advance. Amount paid was equal to NPV and not the originally deferred amount –
payment of excise duty based upon the sale price excluding the sales tax
payable. The sales tax payable was computed based upon the normal rate of sales
tax - since the sales tax amount paid as per NPV, the Revenue is of the view
that the assessees are eligible only to deduct the
NPV amount from the selling price. Thus the differential between the deferred
sale tax payable and NPV paid would form part of the assessable value and the
demands were raised on the said amount – The assessees
contends that the sales tax amount payable was as per the sales tax rate
applicable on the goods or the deferred amount of sales tax and thus they are
liable to pay excise duty on the price excluding the deferred sales tax
payable. Exercising the option to wipe out the deferred tax liability on NPV
will not make any difference in their liability to pay excise duty – Ratio of
Apex Court judgement in Super Synotex
case - HELD – In the case of Package Scheme of Incentives relating to deferral
of the sales tax, the manufacturers / assessees are
collecting the normal sales tax chargeable on such goods but the same is not
deposited within the normal period (which may be monthly or quarterly) but is
permitted to be retained with the assessee for a very long period say 10 to 15
years and after the expiry of the said period, the
assessee is required to deposit the said sales tax amount to the Sales Tax
authority. When the goods are being cleared (i.e. time of removal) actual sales
tax paid is nil but sales tax actually payable is the normal sales tax or what
has been collected by the assessee from its customers. Among the terms
‘actually paid or actually payable’ used in transaction value, actually paid is
not relevant in the present set of appeals. What is relevant is ‘actually
payable’. Actually payable at the time of clearance is the deferral sales tax.
Thus, in our view, the amount of deferral sales tax will require to be excluded
- Appeals filed by the Revenue are dismissed and the appeals filed by the assessees are allowed
2015-VIL-569-CESTAT-CHE-CE
ASWIN
TEXTILES PVT LTD Vs COMMISSIONER OF CENTRAL EXCISE, SALEM
Central
Excise - wrong availment of Cenvat credit - capital
goods - EPCG scheme - Appellant imported machines and cleared under EPCG licence at concessional rate of 5% where CVD is exempted
whereas the appellant availed credit as per the assessment of the Bill of Entry
received in their factory – imposition of penalty for which Section 11AC – HELD
- Appellant's case is squarely covered under Section 11A (2B) which stipulates
not only voluntary payment of duty by the assessee but also any amount pointed out
by the officers - it is evident that during internal audit the officers
informed the appellant about the irregular availment
and the appellant complied immediately - no suppression of facts by the
appellants with deliberate intention to evade duty - demand for recovery of
credit with interest is upheld while penalty on the firm under Section 11AC is
set aside - considering the merits of the case, no case for full waiver of
penalty and the reduced penalty imposed on the co-noticee
is upheld – Company’s appeal is partly allowed and the individual's appeal is
dismissed
2015-VIL-573-CESTAT-MUM-ST
M/s
GREY WORLDWIDE (INDIA) PVT LTD Vs COMMISSIONER OF SERVICE TAX, MUMBAI
Service
Tax - Advertising Agency Services - ‘media costs’ from the Ministry of Tourism
- media services provided outside India - HELD - It was not in dispute that the
hoardings/bill boards and media costs and the advertisement published in print
and electronic media were abroad - media costs were incurred by the assessee
beyond the territorial waters of India – Following the Tribunal order in the
case of Cox and Kings the services rendered by the appellant beyond the
territorial waters of India, service tax would not be charged – Assessee appeal
allowed
2015-VIL-575-CESTAT-MUM-ST
TECH
MAHINDRA LTD Vs COMMISSIONER OF CENTRAL EXCISE, PUNE-III
Service
Tax - information technology service - Export of Service Rules, 2005 - refund
claims for the period post 27/02/2010 - Notification 6/2010-ST – HELD - All the
refund claims which were rejected by the lower authorities in the appeal of the
assessee are post 27/02/2010. There is no dispute as to the fact that the
appellant-assessee had exported the services, received the payment in
convertible foreign exchange – on the basis Tribunal order in the appellant’s
own case the refund is liable to be sanctioned – Assessee appeal allowed
Guest
Article
Rebate
of Excise duty admissible on both inputs and final products - Analysis of judgement of Hon’ble Supreme Court in the case of Spentex Industries Ltd Vs CCE
telOrder486
Telangana: Waiver of demand raised
over and above 5% of the tax on Diesel Power Generators
apCir45
Andhra
Pradesh: Inter-State movement of goods - Goods purchased by Government
Departments and consumers for their own use - Insistence to obtain transport
declarations at border check Posts/ICPs
20th of Oct
2015-VIL-456-KAR
THE
STATE OF KARNATAKA Vs M/s DARS AUTOMOBILES INC.
Karnataka
Value Added Tax Act, 2003 - sale of individual items of LPG Kit – rate of tax –
Invoice - HELD – The Tribunal is correct to hold that there is no provision
under KVAT Act, 2003 or Rules, 2005 which prohibits issuance of tax invoices
specifying the different goods taxable at different rates of 4% and 12.5% to
single customer or which prescribes that in such cases, the tax invoices should
be issued separately only the goods taxable at 4% or only the goods taxable at
12.5% - the appellant has paid tax at full rate of 12.5% when it has sold the
assembled LPG kits. When the appellant has sold the individual items it has
charged tax at the correct rates as applicable – Revenue revision petitions are
dismissed
2015-VIL-576-CESTAT-AHM-CE
M/s
QUIPPO ENERGY PRIVATE LTD Vs COMMISSIONER, CENTRAL EXCISE & SERVICE TAX,
AHMEDABAD-II
Central
Excise - Manufacture - Appellant imported Gensets
with alternator and had undertaken certain activities and cleared the goods as
‘Containerized Gensets’ also known as ‘Power Pack’ -
According to the Revenue, the process undertaken by the Appellant would amount
to manufacture and classifiable under sub-heading 8502.2090 of the Schedule to
the CETA, 1985 – HELD - Power Packs are substantially different, as Genset is only one of the components of the composite
integrated machine namely ‘power pack’, consisting of various components - the
process undertaken by the Appellant on the imported Gensets
for the industrial customers. Thus, the industrial customer would buy Power
Pack rather than Gensets. The imported Gensets and Power Pack are known separately in the trade
and parlance. It is also noted that the use of both the items are for different
purposes – the process undertaken by the Appellant would constitute manufacture
as it emerges a new commodity in the market - Power Pack is rightly classified
under sub-heading No.8502.2090 of CETA, 1985 – demand of duty alongwith interest for the normal period is upheld -
extended period of limitation cannot be invoked - Appellant acted under a bonafide belief that the activities undertaken by them would
not amount to manufacture - It is the case of interpretation of the provisions
of law and therefore, the imposition of penalties on the Appellants are not
warranted - It is noted that the goods were available for confiscation. It is
well settled that if the goods are available, the same cannot be confiscated.
Accordingly, the confiscation of goods and imposition of penalty cannot be
sustained – Assessee appeal partly allowed - In favour
of revenue on merit
2015-VIL-577-CESTAT-MUM-ST
TASTY
BITE EATABLES LTD Vs COMMISSIONER OF CENTRAL EXCISE, PUNE-III
Service
Tax - Business Auxiliary Services - activity of preparation of vegetables,
fruits by processing the same packing in consumer packs for their clients –
Activity in relation to agriculture – Demand – HELD - Circular No.
143/12/2011-ST dated 26/5/2011 would squarely apply in the facts of this case
as it is undisputed that appellant is undertaking the processing of vegetables
on behalf of their client. It is settled law that revenue officers cannot argue
against the board’s circular - the first appellate authority as well as the authorised representative of the revenue are arguing
against the board’s clarification, such arguments by the departmental
representative needs to be dismissed - the activity of processing the
vegetables will be in relation to agriculture hence not liable to service tax
under BAS – Assessee appeal allowed
ceNoti42
Central
Excise: Exemption to RBD Palm Stearin,
Methanol and Sodium Methoxide for use in the manufacture
of alkyl esters of long chain fatty acids obtained from vegetable oils,
commonly known as bio-diesels
karCir14
Karnataka:
Extension of Revision option under e-UPaSS module for the Tax periods from May 2014 to May 2015
enabled for all Targeted dealers till 31/12/2015
2015-VIL-117-SC-CE
COMMISSIONER
OF CENTRAL EXCISE Vs M/s GODREJ HERSHEY LTD
Central
Excise - Classification of the beverages known as Apple Tree Top, Mango Tree
Top, Guava Tree Top and Orange Tree Top – HELD - there is no distinction
between fruit juice and the fruit juice beverages - products in question
manufactured by the appellant are “fruit preparation” within the meaning of
Tariff Heading 20.01 - We have not been shown anything by the learned counsel
for the Revenue to arrive at the conclusion that what has been stated above is
erroneous. - Decided against Revenue
2015-VIL-118-SC-CE
COMMISSIONER
OF CENTRAL EXCISE, DELHI Vs M/s GTC INDUSTRIES LTD
Central Excise - Cigarettes
- Maximum retail price/adjusted sale price - Benefit of a concessional rate of
central excise duty - Notification No. 201/85 and Notification No.78/86 – HELD
- Tribunal in an exhaustive judgment, after setting out the terms of the
Notification No. 11/83 as amended by the Notification No. 78/86 ultimately found
that the product of the respondents were correctly classifiable under
sub-paragraph 2 of the table in the said Notification, and not sub-paragraph 3
as was wrongly held by the Collector - This was done after the Tribunal went
into the standards terms and conditions of the business with the wholesale
buyers and after appreciating the witness statements made and particularly
retractions made from the said statements in cross-examination - No error in
Tribunal judgment either on fact or on law – Revenue appeal dismissed
2015-VIL-119-SC-CE
UNION
OF INDIA Vs DSCL SUGAR LTD
Central Excise Act – Section
2 - Manufacture - Bagasse - generation of electricity
- whether Bagasse which emerges as residue/waste of
sugarcane is subjected to excise duty or not - Demand and Reversal of cenvat credit – HELD - It could not be pointed out as to
whether any process in respect of Bagasse has been
specified either in the Section or in the Chapter - In the absence thereof this
deeming provision cannot be attracted. Otherwise, it is not in dispute that Bagasse is only an agricultural waste and residue, which
itself is not the result of any process. Therefore, it cannot be treated as
falling within the definition of Section 2(f) of the Act and the absence of
manufacture, there cannot be any excise duty - Cenvat Credit in respect of
electricity was denied only on the premise that Bagasse
attracts excise duty and consequently Rule 6 of the Cenvat Credit Rule is
applicable. Since this action of the appellant is found to be erroneous the
Revenue appeal dismissed
ceCir1008
Central Excise:
Clarification regarding tower and blades constitute an essential component of
Wind Operated Electricity Generators (WOEG)
21st
of Oct
2015-VIL-457-BOM
M/s
RAJ SHIPPING Vs THE STATE OF MAHARASHTRA
Maharashtra Value Added Tax
Act – Applicability of provisions of MVAT act in case of supply of petroleum
products such as High Speed Diesel Oil (HSD), Light Diesel Oil (LDO), and
Furnace Oil (FO) to various incoming and outgoing vessels within or beyond the
port limits of Mumbai Port - exemption from payment of MVAT on sale of HSD -
The Territorial Waters, Continental Shelf, Exclusive Economic Zone - territory
of the State of Maharashtra - exemption Notification No.
VAT.1506/CR-135-B/Taxation-1 dated 30.11.2006 – CST Act, 1956 & Sale of
Goods Act, 1930 – The transaction or deal with the shipping lines and
undertaken by the Petitioner is claimed as not occurring within the State. That
is because the HSD is supplied by barges to the ships or vessels located beyond
1 or 1.5 nautical miles in the high seas that it is urged that so long as the
barge carrying the HSD does not reach the vessel, unload the same, obtains a
certificate from the Master of the vessel, that there is no sale and in any
event all this takes place in the high seas, therefore, it is not a sale within
the State of Maharashtra. The further contention is that MVAT Act cannot apply
to territorial waters for they are international boundaries and controlled by
the Union – Petitioner submission proceeds on the footing that the sale in this
case has no connection or nexus with the State of Maharashtra – HELD - it is
the goods which have been produced or manufactured or refined by the oil
companies and which are drawn from their storage tanks in fixed quantity that
are supplied on demand to the Petitioner. The manufacturers as also the
refineries are very much within the State of Maharashtra viz. at Mumbai. The
Petitioners are at Mumbai. Meaning thereby, their place of business is at
Mumbai. It is from that place that the Petitioner requests the oil companies to
supply to it the high speed diesel. It is received by the Petitioner from the
oil companies at Mumbai. It may be that the Petitioner treats this as a
contract on which they paid the sales tax as a component of the price. However,
it is that very high speed diesel and supplied to the Petitioner at Mumbai
which is carried from Mumbai in furtherance of a contract with parties like
M/s. Leighton, which contract is also placed and finalised from Mumbai, through
the barges of the Petitioner to the vessels of M/s Leighton and which may be
stationed in territorial waters. However, Leighton comes in the picture, as
have been stated by them, for the purpose of fulfilling a contractual
obligation of M/s. ONGC. It is for that obligation to be discharged that they
have deployed the vessels. It is these vessels which require the bunker
supplies and which supplies are met by the Petitioner. The subject matter of
the contract with M/s. Leighton is this high speed diesel or motor spirit which
is taken and carried from Mumbai. Therefore, there is sufficient territorial
nexus for the Maharashtra Value Added Tax Act to apply and to be invoked to the
later sale by the Petitioner of the same goods to M/s. Leighton and other
entities similarly placed. We do not see how the Petitioner can escape
compliance with this legislation and by contending that the contract of M/s.
Leighton being a distinct contract, the sale taking place in territorial waters
that the sales tax legislation or the VAT legislation of the Maharashtra State
would be applicable. Its applicability has to be tested by applying the above
principles and particularly the nexus theory. After having found sufficient
territorial connection, namely, between the back to back transaction and the
taxing authority that we are not in a position to agree with contention that
MVAT Act is inapplicable - very goods and which have been transported by the
Petitioners via barges and to the vessels stationed in the territorial waters
according to it have been obtained within the State of Maharashtra. We have
found that substantial part of the transaction and from the stage of
acquisition of these goods, paying for them, receiving an indent or order from
the shipping lines and further communications have all taken place in Mumbai
within the State of Maharashtra. It is these very goods, namely, high speed
diesel oil which have been filled in and loaded on to the Petitioners barges at
Mallet Bunder Mumbai. These are thus the acts within
the State of Maharashtra - In the light of this request made we direct that for
a period of three weeks no coercive measures be taken to recover the amounts.
In the event the appeals are filed before the First Appellate Authority, the
First Appellate Authority shall sympathetically consider the request of the
petitioners to dispense with the condition of deposit of full amount
considering that a substantial part or portion of the sum demanded has been
deposited – In favour of Revenue
jkNoti4
Jammu & Kashmir:
Regarding filing of prescribed audit reports
22nd
of Oct
stNoti20
Service Tax: Amendment in
Exemption Notification No. 25/2012-Service Tax dated 20.06.2012
Guest
Article
Draft GST Report on Returns
under GST on public domain
23rd
of Oct
2015-VIL-458-DEL
SHRUTI
FASTENERS LTD Vs COMMISSIONER OF VALUE ADDED TAX
Delhi Sales Tax Act, 1975 –
Reopening of assessment – C-Form - ‘Reason to believe’ that the whole or any
part of the turnover of a dealer in respect of any period had escaped assessment
to tax – HELD – Since the jurisdictional requirement of the VATO having to
record the ‘reasons to believe’ preceding the issuance of the show cause notice
to the Assessee under Section 24 (1) DSTA was not complied with the entire
re-assessment proceedings are bad in law – impugned order of reassessment is
set aside and assessee appeal allowed
2015-VIL-578-CESTAT-MUM-CE
LARSEN
& TOUBRO LTD Vs CCE&C, NAGPUR
Central
Excise Act – Section 2 – Manufacture – scope of the term ‘automobile’ -
appellants are dealing in parts, components and assemblies of earth moving
vehicles – import of parts of scannia truck - whether
the parts, components and sub-assemblies sold by the appellants after packing,
labeling, etc. are covered by the scope of the term parts, components and
sub-assemblies of automobiles – Whether Loader, Backhoe Loaders & Road
Rollers are motor vehicle and whether parts, components and assemblies of three
items are ‘Parts, components and assemblies of Automobile’ – HELD - Loader,
Backhoe Loaders & Road Rollers are motor Vehicle - Parts, components and
assemblies of Loader, Backhoe Loader and Road Rollers are covered by ‘parts,
components and assemblies of Automobiles’
Classification
of Dumper – HELD - Using a particular vehicle in a particular area will not
change the character from ‘automobile’ to something else - dumpers are
automobiles
Motor
graders and wheel loaders – HELD - motor graders and wheel loaders move on the
roads like any other vehicle though the purpose of these equipments may be to
move material from one point to other or on a vehicle etc. - These items are
covered by the term ‘automobile’
Dozers
and hydraulic excavators – HELD - whether the excavator/dozer that is rubber tyred or steel drum wheel mounted, these are considered as
construction equipment vehicle and ‘automotive’ vehicles and are therefore,
would be covered under the broad definition of ‘automobile’ - the equipment is
made of rubber tyre or crawler type/steel drum wheel
mounted will not make any difference
Manufacture
- even putting the tag on the unpacked parts will amount to ‘manufacture’ and
will be covered under Section 2(f)(iii) - For determining whether a particular
process amounts to ‘manufacture’ it is not relevant whether the inputs are
locally produced or imported. What is important is the end product and whether
the manufacturing process amounts to manufacture or not - there is no dispute
that the activity undertaken by the appellant amounts to manufacture under
Section 2(f)(iii). The fact that inputs were imported is immaterial
Extended Period – Limitation - in the overall factual
matrix, there is no case whatsoever for not taking registration, not filing
returns or not paying duty after the said dates and it is a clear case of
suppression of facts as also contravention of various provisions of Central
Excise Rules with intent to evade payment of duty. We therefore, hold that
extended period of limitation is correctly invoked - The ratio of JCB India
Ltd. case not applicable – In favour of Revenue
2015-VIL-459-GUJ-ST
COMMISSIONER
Vs LARSEN AND TOUBRO LTD
Service
Tax – The controversy is whether the SEZ unit and DTA unit are separate legal
entities, which has no proximate relation to the determination of the rate of
service tax or the value of services rendered by the respondent-assessee –
Admissibility of appeal in High Court - HELD - Whether the SEZ unit and the DTA
unit are one unit or not, is primarily a question of fact as regards the
character of the assessee and not the nature of services rendered by it - The
question which this court is called upon to answer is to examine the provisions
of the SEZ Act and give a finding one way or the other as to whether the SEZ
unit and the DTA unit are one legal entity or separate legal entities. Since such
question has not direct relation with the determination of rate of service tax
or value of services, it is well within the bounds of jurisdiction of this
court to adjudicate the matter - The contention that the appeals are not
maintainable, therefore, does not merit acceptance - It is, accordingly, held
that against the impugned order passed by the Tribunal, appeal would lie before
the High Court under section 35G of the CEA, 1944 – In favour
of revenue – the case is yet to be decided on merit
2015-VIL-579-CESTAT-CHE-ST
G.
MASILAMANI Vs COMMISSIONER OF SERVICE TAX, CHENNAI
Service Tax – Condonation of delay – HELD – Tribunal is not concerned
with the length of delay, it is concerned with the cause of delay. The cause
stated in the application does not appeal to common sense when there were no
steps taken before or after expiry of the limitation - Tribunal has experienced
frequently the plea of leaving of an employee soon after an impugned order is
received by a litigant and sudden discovery thereof after some time to seek
delay condonation - It is surprising that when the
appellant faced a service tax demand of nearly rupees six crores,
why he remained silent without seeking appeal remedy. The delay caused has
caused extreme hardship to Revenue to realize its dues. If this case is
leniently considered that shall be a bonus to the dilatory tactics and
Revenue’s interest shall be seriously prejudiced. Since three years have
expired without the recovery of the demand, present application seeking condonation of delay is abuse of process of law - the
Tribunal is not sympathetic to entertain the application for condonation of delay, but to dismiss the same to serve
interest of justice – Appeal dismissed
delNoti928
Delhi: Extension in date for
submission of information online in Form DP-1
Guest
Article
Refunds w.r.t.
Service Exports under GST
24th
of Oct
ceCir1009
Central Excise/Service Tax:
Guidelines for launching of Prosecution under the Central Excise Act, 1944 and
Finance Act, 1994 regarding Service Tax
ceCir1010
Central Excise/Service Tax:
Revised monetary limits for arrest in Central Excise and Service Tax
2015-VIL-581-CESTAT-MUM-CE
JYOTI
STRUCTURES LTD Vs COMMISSIONER OF CENTRAL EXCISE, NASHIK
Central Excise – Manufacture
- appellant is engaged in the activity of erection of transmission line towers
– Whether activities like punching, drilling of holes, welding, trimming and
galvanizing carried out on duty paid angles, beams and channels amount to
manufacture – HELD - The instant case relates to a period prior to 1.3.1988.
Merely because specific entry was included viz. heading 73.08 that ipso facto
does not mean that the process amounts to manufacture. The Revenue has to
further prove that the process undertaken amounts to manufacture and also that
the resultant products are marketable - the process undertaken by the
appellant, viz. punching, welding, trimming, drilling of holes, level cutting
of edges and galvanizing do not amount to manufacture – Matter remanded to the
adjudicating authority to decide the refund claim of the appellant as per the
directions of the Hon’ble High Court under Section 11B of the CEA, 1944 –
Assessee appeal allowed
2015-VIL-580-CESTAT-CHE-ST
M/s
MAGNUM CLOTHING PVT LTD Vs COMMISSIONER OF CENTRAL EXCISE, CHENNAI
Service
Tax – Exemption under Notification No.18/2009, dated 07.07.2009 – Payment of
service tax by mistake – Tax paid in respect of services availed from the
commission agents engaged abroad – Denial of refund – HELD - The basic
principle of taxation is that taxes are not exported but goods are exported. If
the taxes involved in export of goods due to reverse charge mechanism are not
refunded that shall form part of the cost of the exported goods, which is
prohibited since taxes are not expected to be exported. Therefore, appellant's
claim of erroneous payment of tax made and it is an exporter, needs to be
considered under section 11B of the Central Excise Act, 1944 since provision of
Central Excise law are adopted by section 83 of the Finance Act, 1944 to give
full effect and play to the scheme of taxation under Finance Act, 1994. Learned
appellate authority should have examined the claim on the basis of pleading and
law relating to refund under Section 11B of the Central Excise Act, 1944. That
not being done, the matter needs re-examination in the light of that provision
of law
26th of Oct
2015-VIL-460-GUJ
STATE
OF GUJARAT Vs ULTRATECH CEMENT LTD
Gujarat
Sales Tax Act - Sales Tax Incentive Schemes - breach of Form No.26 or 40 – Levy
of purchase tax under sections 50 and 15B – HELD - The small amount of
electricity wheeled out to the sister concern was generated by the steam
turbine which was run on the steam which emerged as a waste product when using naptha for the purpose of generating electricity through
gas turbine. Therefore, on facts, it cannot be said that any material purchased
by the assessee by issuing Form No.26 or 40 has been used by the assessee for
any other purpose than for manufacturing in its own unit - the wheeling out of
a minuscule amount of electricity generated out of the steam turbine, to its
sister concern cannot in any manner be said to be a breach of Form No.26 or 40
- It is also not the case of the appellant that any part of the naptha had been used solely for the purpose of generating
steam for operating the steam turbine - the impugned order of the Tribunal
doesn’t suffer from any legal infirmity warranting interference - The appeals
fail and are accordingly dismissed
M/s
NEWLIFE NUTRITION SYSTEMS Vs COMMISSIONER OF SALES TAX
Maharashtra
Value Added Tax Act – Classification of Whey Protein Powder - appellant
contention that the correct classifiable under schedule entry C-107(11)(g) i.e.
‘Powders, Tablets, Cubes, Crystals and other solids or liquids from which
non-alcoholic beverages and soups are prepared’ as per revenue said product is
under residual entry – beverages - dietary supplements – Interpretation on
Schedule entry - HELD – The impugned powders even if made with reference of
achieving some goal they are nothing but beverages for which the above schedule
entry is available in statute book from 1-2-2006 to 31-3-2013 hence the
relevant schedule rate will be 4% upto 31-3-2010 and
5% w.e.f. 1-4-2010 - during the period 1-4-2005 to
30-4-2005 and from 1-4-2005 to 31-1-2006 such products were no place in
schedules, therefore, during that period they will be covered under schedule
Entry E-1 and from 1-4-2013 onwards, that schedule entry is deleted hence that
will be covered under E-1 only. As we have decided the classification, we don’t
think, any prospective effect be given from 01-04-2013 onwards when for a
period 01-04-2005 to 31-01-2006, there was no place to those products in
Schedule Entry C - The products of the appellant are classified under schedule
entry C-107 (11)(g) – Decided in favour of assessee
2015-VIL-459-GUJ-CE-LB
SHREE
RAMA MULTI-TECH LIMITED Vs COMMISSIONER OF CENTRAL EXCISE & CUSTOMS
Central Excise – Larger Bench - remission of duty –
Cenvat Credit - Application seeking modification of the Full Bench order
wherein the court has held that there is no scope of reversal of credit prior
to September 7, 2007 if the finished product becomes unfit for human
consumption, but has qualified that same by stating that unless any condition
has been imposed for remission of duty in terms of Rule 21 of the CER, 2002
making it clear that the credit already taken is to be reversed – HELD - there
is clear contradiction in the second part of the operative portion of the
judgement, to the extent it is held that there is no scope of reversal unless
any condition has been imposed for remission of duty in terms of Rule 21 of the
CER, 2002 making it clear that the credit already taken is to be reversed -
when the Full Bench has clearly held that prior to September 7, 2007, there was
no statutory provision permitting the revenue authorities to direct reversal of
credit already taken, the question of imposing any condition for reversal while
granting remission of duty in terms of Rule 21 would certainly not arise. Thus,
it appears that the aforesaid part has crept in on account of inadvertent error
and the same being in direct conflict with the main part of the judgment, and
requires to be deleted in the interest of justice - The judgement and order
passed by the Full Bench is modified by deleting the relevant sentence from the
said judgement – Application allowed
2015-VIL-584-CESTAT-MUM-CE
KSB PUMPS LTD Vs COMMISSIONER OF CENTRAL EXCISE,
PUNE-I
Central Excise - classification of base frames used
for mounting of industrial pumps – HELD - the base frame is not an integral
part of the pump but is a accessory which helps in efficient functioning of the
pump. It is only because the item is a not an integral part of the pump that it
is not sold in composite prices of the pump but separately as different item in
the invoice. In view of this factual position, the base frame cannot be
considered as part of the pump - the base frame would be classifiable under
8485 and not 8413, irrespective of the fact that such base frames are designed
for specific model of the pumps – Assessee appeal dismissed
TATA STEEL LTD Vs COMMISSIONER OF SERVICE TAX
Service Tax - Order
on Difference of Opinion - for the purpose of financing its
international acquisitions and capital expenditures, the appellant has entered
into various agreements with various non-resident banks for loan/credit
facilities - Whether the Arrangement fee and Agent’s Bank fee are taxable in
the hands of the appellant-company – Mandated Lead Arrangers – Export of
service - HELD - Arrangements fees and agency fees paid to the foreign banks
are taxable under Banking and Financial Services in the hands of the
appellant-company in India - the services provided by the MLAs and the Agent
bank are to have been received in India in terms of Section 66A(b) read with
Rule 3(iii) of Taxation of Services (Provided from Outside India and Received
in India) Rules, 2006 - the extended period of limitation is invocable - penalties imposable both under Sections 76 and
78 of the Finance Act, 1994 and that there is no reasonable cause for waiver of
penalty under Section 80 of the said Act – Appeal dismissed
2015-VIL-582-CESTAT-MUM-ST
COMMISSIONER OF SERVICE TAX, MUMBAI Vs INOX AIR
PRODUCTS LTD
Service Tax – Export of Services - Payment of service
tax on commission for orders to procure and products sold by principal located
outside, in India – Denial of refund claim –first appellate authority held in
the favor of assessee - Revenue in appeal – HELD -
Since the rebate is being granted in terms of the Export of Services Rules,
2005 and the Notification No. 11/2005 dated 19.4.2005, the question of
applicability of provisions of Section 11B in terms of time bar as well as
doctrine of unjust enrichment cannot arise. The notification itself does not
lay down any such restrictions. The claim is therefore required to be examined
and sanctioned in terms of Notification itself without any reference to the
provision of section 11B - revenue appeal is devoid of merits. Accordingly, the
same is rejected and the impugned order is upheld
odiNoti28080
Date of commencement of Odisha Value Added Tax (Amendment) Act, 2015
27th
of Oct
M/s SAMRAT INT BHATTA Vs
ASSISTANT COMMISSIONER, COMMERCIAL TAX
U.P. Value Added Tax
Act 2008 – Validity of Compounding Scheme – Petitioners application for
compounding scheme rejected on the ground that regular assessment orders had
already been passed – Maintainability of petitions challenging
constitutionality validity of compounding scheme – HELD - The impugned
compounding scheme neither violates any fundamental or constitutional rights of
petitioners nor it lacks legislative competence nor it is violative
of any of provisions of Act – Relief seeking to declare compounding scheme to
be ultra vires, is not entertainable
inasmuch as on one hand petitioners have prayed for declaring scheme to be
ultra vires and on other hand they prayed that
benefit of scheme be provided to them for part of period – petition seeking to
declare compounding scheme as ultra vires is rejected
2015-VIL-461-SIK
M/s
SHUBH ENTERPRISES Vs THE UNION OF INDIA
Lotteries
(Regulation) Act, 1998 - validity of Rule 3 (11) of the Lotteries Regulation
Rules, 2010 which provides that a State, where lotteries are conducted by
another state, it is entitled to charge an amount of Rs.2000/- per draw from
the organising State – HELD – There is no specific
provision in the central Act by which power to impose tax or fees has been
provided. Rule 3(11) clearly appears to be in excess of the provisions in the
parent Act, and therefore, would be rendered ultra vires
the provisions of the Central Act - the impugned rule appears to be bereft of
jurisdiction having been framed in colourable
exercise of power and in excess of and dehors the
provisions of the Lottery (Regulation) Act, 1998 - Rule 3(11) of the Lotteries
(Regulation) Rules, 2010 is ultra vires the provision
of the Lotteries (Regulation) Act, 1998 and is accordingly struck down -
Respondent-State to refund all amounts paid by the Petitioner under the
aforesaid impugned Rule and the impugned Notification – In favour
of assessee
2015-VIL-462-P&H
M/s
EASTMAN INTERNATIONAL Vs STATE OF PUNJAB AND ANOTHER
Punjab
Value Added Tax Act, 2005 – Evasion – Sale of goods which were rejected by one
buyer to another buyer - It was contended by petitioner that in such
circumstances, there was no attempt to evade tax – HELD - The findings recorded
by the Assistant Excise and Taxation Commissioner and Deputy Excise and
Taxation Commissioner (Appeals) records that the documents accompanying the
goods are ingenuine. The goods are meant for trade.
The dealer has made an attempt to evade the payment of tax by transporting the
goods by documents which are already rejected - The only attempt on the part of
the appellant is to reappraise the evidence - the findings of fact recorded by
the authorities below are not illegal or perverse in any manner – Appeal dismissed
2015-VIL-464-GUJ-CE
M/s
VADILAL GASES LTD Vs UNION OF INDIA
Central
Excise Act, 1944 – Section 4 – Valuation - The petitioner is engaged in the
business of filling in cylinders, various industrial gases – Related person –
Demand on differential duty – Maintainability of appeal – Rule 8 & 9 - HELD
- The present case clearly falls within the categories of violation of the
principles of natural justice - the contention of the Revenue that the present
petition under Article 226 of the Constitution is not maintainable does not
merit acceptance - the Appellate Commissioner has lost sight of the main
contention raised by the petitioner that it is not liable to pay duty either
under rule 8 or rule 9 of the Valuation Rules, because the related party has already
paid central excise duty on the transaction value of the goods sold by it - the
impugned orders suffer from the infirmity of being non-reasoned orders as the
same do not deal with the main contention raised by the petitioner - the ends
of justice would be met if without entering into the merits of the case, the
impugned orders are set aside and the matter is remanded to the adjudicating
authority - The impugned order is are quashed and set aside – Petition allowed
by remand
2015-VIL-585-CESTAT-MUM-CE
BAJAJ
ELECTRICALS LTD Vs COMMISSIONER OF CENTRAL EXCISE, PUNE-III
Central Excise – Valuation -
Trade discount – Assessee giving discount as service charges as a type of trade
discount, Revenue objection is that service charges will form part of the assessable
value – HELD - Service charges do not appear to be a trade discount for the
simple reason that in the same invoice there is a discount with the name trade
discount. The learned counsel for the appellant has not been able to bring out
any evidence whatsoever to support his contention that deduction due to service
charges are nothing but trade discount - department objection that the
appellants changed the nomenclature to additional trade discount. To our mind,
by changing the nomenclature, assessee only trying to mislead the department
and by change of the nomenclature, service charges cannot become additional
trade discount - even after 1.9.1999, the said deduction has to be considered
as deduction towards service charges – Assessee appeal dismissed
2015-VIL-586-CESTAT-MUM-ST
M/s INFOSYS TECHNOLOGIES LTD Vs COMMISSIONER OF
CENTRAL EXCISE, PUNE-I
Service Tax – Majority Order - Maintenance or repair
service – Software, ERP - refund of input credit accumulated due to export of
Maintenance and Repair Service, ERP Consultancy Service - refund under Rule 5
of the Cenvat Credit Rules – Rejection of refund on the ground that service
provided / exported does not fall in the category of maintenance or repair
service but under Consulting Engineer Service but for the exclusion clause
which excludes computer software engineering and therefore, it is non-taxable –
HELD - As appellant have provided 'management, maintenance or repair', being
services viz. maintenance of software, testing services, re-engineering services,
consultation and management in respect of ERP software implementation, and
accordingly entitled to refund, the services being admittedly exported - Matter
remanded (i) to examine all Contracts in order to
decide whether the activity is of "maintenance or repair" only, (ii)
To examine whether the output services provided by the appellant are covered
under the taxable service of "maintenance or repair" when the
activity also involved development and designing of the software (iii) To examine
whether the refund of Cenvat Credit under Rule 5 of the CCR is available when
Rule 3 permitted credit on input services only to provider of taxable services
(iv) To examine whether the refund was admissible to service provider under
Rule 5 of the CCR (as it stood during the period in question) which provided
refund to manufacturer only – Matter remanded in favour of assessee
2015-VIL-465-DEL-ST
SATYA DEVELOPERS PVT LTD Vs PEAREY LAL BHAWAN
ASSOCIATION
M/s HDFC BANK LIMITED Vs M/s MEATTLES PRIVATE LIMITED
Service Tax - Renting of immovable properties –
liability to pay the service tax leviable on the rent
and the maintenance charges payable under the lease deed - interpretation of a
contract – whether the parties intend to include taxes which were not
contemplated at the time of the agreement - entered into prior to the Finance
Act, 2007 – HELD - As a legislation by reference sub-Section (2) of Section 64A
of the Sales of Goods Act making applicable sub-Section (1) of Section 64A to
any duty of Customs or Excise on goods and as a legislation by incorporation
Section 83 of the Finance Act making applicable Section 12B of the Central
Excise Act to Service Act, Section 64A(1) is applicable to Service Tax -
service tax is a VAT which in turn is a destination based consumption tax and
is to be borne by the consumer of goods. Further unless contracted to the
contrary, the consumer of service is liable to refund the said tax to the
service provider who in turn is liable to pay to the government - whether the
service tax liability has been agreed not to be passed on to the recipient of
the service would depend on the interpretation of clauses entered into between
the parties - the agreement imposes liability of municipal taxes, rates,
charges and other outgoings - It is well settled that the Municipal
Corporation, Municipality, Gram Panchayat or local
authority is distinct from the government and thus the clause inter se the
parties cannot be said to cover the exemption of HDFC Bank to pay to Meattles service tax paid by it to the government pursuant
to the Finance Act, 2007 - By use of the words “Lessor
shall continue to pay” it is evident that the parties contemplated the existing
taxes, levies or charges and not future. Even as per the agreement of
maintenance of common service facilities though the same has no application to
the service tax however, still the said clause II(1) cannot be said to exclude
HDFC Bank from paying future service tax – Appeal dismissed
assamNoti88
Assam: Extension in date for filing of audit
report
apNotiGO395
Andhra Pradesh: Amendments to Schedule-VI - Change in
rate of tax of IMFL and other alcoholic drinks
apCir422
Andhra Pradesh: eWaybills
for inter-state movement of incoming and outgoing goods vehicles – e-Waybills
mandatory for the PSU Oil Companies
The Annual
Administrative Report 2014-15
Commercial Taxes Department, Government of Tamil Nadu
FCP2608
Press Release: Mere transfer of title in immovable
property is exempted from Service Tax
28th
of Oct
2015-VIL-468-GUJ
STATE
OF GUJARAT Vs RAJASHREE POLYFIL
Gujarat
Value Added Tax Act, 2003 - adjustment of input tax credit arising from Value
Added Tax Act to the CST Act – application of provisions of sub-section (3) of
Section 11 – HELD - while resorting to the provisions of sub-section (3) of
Section 11 of the Act, the Assessing Officer reduced from the input tax credit
4% of branch transfer and once again reduced input tax credit on purchases of
fuel to the extent of 4% - in the case of State of Gujarat Vs Reliance
Industries Ltd. it was held that from the provisions of sub-section-(3)(b) of
Section 11, it is clear that reduction of tax credit had to be applied to any
case which satisfies the description contained in sub-clauses (i) to (iii) not every time such description is satisfied -
reduction of amount of tax at the rate of 4 per cent is to be done for the
taxable goods which fall in any of the three categories contained in
sub-clauses (i) to (iii) and not every time a
particular class of goods specified fall in more than one categories - the
Tribunal has merely applied the decision of the jurisdictional High Court to
the facts of the case and hence, it cannot be said that the impugned order
suffers from any legal infirmity – Revenue appeal dismissed
2015-VIL-467-GUJ-CE
M/s
VISHNU POUCH PACKING PVT LTD Vs UNION OF INDIA
Central Excise – Demand of
differential duty - Compounded Levy Scheme – HELD - It is evident that insofar
as the Form-1 have been accepted and the petitioners have paid duty in terms
thereof - merely on the basis of a communication issued by the Additional
Director, DGCEI, which refers to a particular formula and based thereon, the
Annual Production Capacity of the petitioner’s Pouch Packing Machines has been
placed in the third slab. On a bare perusal of the impugned communications, it
is apparent that prior to issuance thereof, no inquiry whatsoever has been
carried out by the Deputy Commissioner and that the impugned communications are
based solely upon the instructions of the Additional Director, DGCEI, Delhi -
the impugned communications are violative of the
provisions of sub-rule (2) of rule 6 of the Pan Masala
Rules, inasmuch as, the Annual Production Capacity has been determined without
following the procedure as provided under those rules – Also, the procedure as
prescribed under section 11A of the Central Excise Act has not been followed
while seeking to recover the differential amount of duty - Under the
circumstances, the impugned communications being contrary to the provisions of
law, as well as being in breach of the principles of natural justice, cannot be
sustained – demand notice set aside and assessee petition allowed
2015-VIL-590-CESTAT-DEL-CE
P.S.CAMSHAFTS PVT LTD Vs CCE, INDORE
Central Excise – Cenvat credit - denial of credit on
HR sheets less than 4 mm thickness – HELD - when the duty on HR sheets is not
paid on the basis of thickness but on the basis of weight, the use of HR sheets
of less than 4 mm thickness has no bearing on availing the credit - The
department has come to a conclusion without any basis that HR sheets of less
than 4 mm thickness is not used by the appellant in manufacture of final
products. It is immaterial whether the final product could be manufactured
without actually using a particular input or not. What is actually material is
whether the assessee has used the inputs in or in relation to manufacture of
final products - denial of credit on HR sheets less than 4 mm thickness is
unjustified. The same is to be allowed - Whether the appellant is liable to pay
duty on waste and scrap generated at the job worker’s end - when the waste and
scrap is generated at the job workers premises and inputs are supplied by the
appellants then the duty liability is not to be fastened on the principal
manufacturer - the appellant is not liable to pay duty towards waste and scrap
generated at the job worker’s premises. Both issues are held in favour of the
assessee
2015-VIL-466-KAR-ST
COMMISSIONER OF CENTRAL EXCISE, CUSTOMS, BELGAUM Vs
M/s GODAVARI SUGAR MILLS LTD
Service Tax – Utilization of Cenvat Credit towards
payment of GTA services - assessee had further availed the credit of service
tax paid by them for GTA - Revenue’s contention that the assessee is a deemed
provider of services only, act of the assessee of taking credit of service tax
paid on GTA services and reutilizing the same for payment of service tax on GTA
services is not tenable - recovery of Cenvat Credit – HELD - In view of the
specific reference to service tax and the benefit allowed to a service
provider, read with the fiction created by Section 68(2) of the Finance Act,
1994, there is no ground to disagree with the judgment and reasoning of the Punjab
and Haryana High Court in Nahar Industries
Enterprises Ltd. The appeal consequently fails and the question of law is
answered in favour of the assessee and against the Revenue
2015-VIL-589-CESTAT-DEL-ST
CST, DELHI-III Vs M/s DENSO HARYANA PVT LIMITED
Service Tax - Transfer of technology for manufacture
of auto components – demand under intellectual property rights on ‘reverse
charge’ basis – HELD - the agreement for grant of license or transfer /
permission to use technology was effected before 10.09.2004. The fact that
assessee continued to manufacture and sell using such transferred technology
even after the introduction of service tax on IPR cannot be considered as
continuous supply of service. The rendering of service is effectively
determined by the date of transfer / permission to use technology, which was
prior to the introduction of tax liability on such service - Only payment of
service was spread over a period of time. The service was performed as soon as
the technology was transferred - findings of the ld. Commissioner (Adj.) is
upheld – Decided in favour of assessee
2015-VIL-588-CESTAT-DEL-ST
KELLY SERVICES INDIA PVT LTD Vs C.C.E.&S.T.,
GURGAON-II
Service Tax - disallowance of Cenvat credit on medical
insurance services – HELD - appellant had to obtain insurance cover for the
employees who are provided temporarily to customers. Further medical insurance
was provided to the appellant’s own employees – Credit admissible as per
judgment in CST, Bangalore Vs M/s Team Lease Services (P) Ltd - Demand of
interest for delay in payment of service tax on transaction’s with Associated
Enterprises prior to 10.5.2008 – HELD - For entries made prior to 10.05.2008
there is no liability to remittance of tax merely on account of amendment to
the provisions of Section 67 of the Act - there is no liability on appellants
to pay interest on the book adjustments made prior to 10.5.2008 - demand of
interest is not sustainable – Assessee appeal allowed
goaNoti1243
Goa: Amendment
in Schedules B and E - Regarding Sanitary napkins and diapers & Works
Contract
goaNoti1245
Goa: Date of effect of provisions of section 2(ii) of
the Goa Value Added Tax (Seventh Amendment) Act, 2013 Act
gujNoti45
Gujarat: Exemption of purchase tax on sugarcane
29th
of Oct
delCir27
Delhi: Extension in date for
filing of online return for second quarter of 2015-16
[Already
updated on Whats App]
upCir1516045
Uttar Pradesh: Extension in
date for filing of Annual Return (52, 52A & 52B)
[Already
updated on Whats App]
assamCir14
Assam: Regarding issuance of
Registration Certificate
mahaNoti1415
Maharashtra: Exemption
under Cental Sale Tax Act on Sales of e-bid Re-gasified Liquid Natural Gas by GAIL to the Ratnagiri Gas and Power Pvt Ltd
mahaNoti1515
Maharashtra: Exemption
under MVAT Act on Sales of e-bid Re-gasified
Liquid Natural Gas by GAIL to the Ratnagiri Gas
and Power Private Ltd
2015-VIL-591-CESTAT-BLR-ST
KAKINADA
SEAPORTS LTD Vs COMMISSIONER OF CENTRAL EXCISE, SERVICE TAX & CUSTOMS
VISAKHAPATNAM-II
Service
Tax – Demand under reverse charge mechanism treating the service as Business
Support Service - whether in a situation where service provider has paid the
tax even though not liable to pay the same can again be demanded from the
appellant – HELD - Since taxable event is one and the same, there cannot be
levy of service tax twice. Therefore, once the service provider has paid the
tax under reverse charge mechanism, service tax cannot be demanded from the
appellant. Nevertheless it has to be appreciated that this is a mistake on the
part of the appellant since they were liable to pay the tax but did not pay.
However, remedy would lie in imposition of penalty for contravention of
relevant provisions but not recovery of service tax. In this case penalty has
been imposed on the ground that service tax was not paid and not for mere
contravention of provisions - penalty imposed for contravention of provisions
by both the sides and demand set aside
Cenvat
Credit on the basis of challan - The Commissioner has
disallowed only on the ground that the port officer did not issue any invoice
or bill in the name of the appellant but had issued only an acknowledgement and
acknowledgement is not a proper document - in the reverse charge mechanism was
to be implemented by both sides, the credit would have been taken only on the
basis of challan and in such a case payment would
have been made by the appellant themselves. Therefore if the challan contains all the details which are mentioned by the
appellant before us, in our opinion, credit is admissible. Therefore the demand
for more than Rs.7.54 crores being the CENVAT credit
cannot be sustained
Cenvat
credit on rent-a-cab service, health care with ambulance facility within the
port allowed
Cenvat
credit has been denied on the ground that it was taken on construction service
- Definition includes works contract in relation to construction activity and
not in relation to erection and installation activity. Therefore appellant is
eligible for the benefit
Cenvat
Credit on geotechnical investigation services - Appellant’s claim is that in
respect of capital goods credit is allowed as soon as the same are received and
there is no need for an assessee to wait till they are erected, installed and
commissioned. Their claim for credit is similar to the one on capital goods -
If 7th berth does not become operational, naturally the issue as to whether
CENVAT credit is admissible when the project is dropped would arise. At this
stage, it may be premature to deny the credit
Cenvat
Credit – Denied on the ground that the activities of the service provider were
apparently found to be not eligible for exemption and thirdly for the appellant
it was an input service – HELD - the CENVAT credit is proposed to be denied on
the ground that the service provider was eligible for exemption. On this ground
denial cannot be sustained
2015-VIL-592-CESTAT-MUM-CE
UNITED
WHITE METAL LTD Vs COMMISSIONER OF CENTRAL EXCISE, MUMBAI-V
Central Excise - Appellant
is a manufacturer of parts of lifts/escalators – Removal if useable and
un-useable materials, finished goods, scrap – reversal of Cenvat Credit Rules –
HELD - the Rule 3 (5) of the CCR, 2004 provides for the reversal of Cenvat
Credit only when the goods are removed ‘as such’. In the facts of the case as
admitted, the goods have been used for about 10 years. Thus, the goods are not
removed ‘as such’, no credit is required to be reversed. Further, in the second
proviso to Rule 3 (5), wherein it was provided that 2.5% allowance of the
credit taken, is to be given for each quarter of use. Under the facts and
circumstances, the appellant is held to be entitled to 100% rebate on this
count also - Assessee appeal allowed
ceNoti22NT
Central Excise: CENVAT
Credit (Fifth Amendment) Rules, 2015 - Clarification on utilisation of
credit of Education Cess for payment of tax on output service
30th
of Oct
2015-VIL-469-KAR
M/s
LAXMI POLYCHEM INDIA LTD Vs THE STATE OF KARNATAKA
Central Sales Tax Act –
inter-state sales - grant sufficient opportunity to procure and file the declaratory
forms – HELD - when no time is prescribed and it is left to the discretion of
an Authority to condone the delay in producing such forms, if it is reasonable
and if reasons assigned are substantiated, it is always open for the assessee
to establish such reasons - benefit of concessional tax cannot be taken away on
account of an inadvertent lapse on the part of the petitioner – Assessee
petition allowed
mahaCir15T
Maharashtra: Draft Circular iniviting comment on Issuing of tax invoice bills, cash
payment etc. on Thermal Paper
punPN291015
Punjab: Last date of
e-filing of VAT-15 for the 2nd Quarter of 2015-16 extended till
5th November, 2015
apCir122715
Andhra Pradesh: Processing of refund
claims - certain clarification on provisional gross 28NCCF as on May 2014
assamCir15
Assam: Fake/Forged payment challans - cross-verification before allowing credit
triNoti43
Tripura: Delegation of
the Power of Revision
ceNoti22NT
Central
Excise: CENVAT Credit (Fifth Amendment) Rules, 2015 - Clarification on
utilisation of credit of Education Cess for payment of tax on output service
30th
of Oct
2015-VIL-471-RAJ
M/s
NOKIA INDIA PVT LTD Vs ASSTT. COMMISSIONER COMMERCIAL TAX
Rajasthan
Value Added Tax Act, 2003 - demand for differential tax on sale of chargers
with the cellular phones – differential tax, interest and penalty – direction
to furnish security for the penalty amount – HELD - in respect of similarly
placed manufacturers who did not avail their remedy of appeal under Section 82
of the VAT Act but approached this court against the orders of re-assessment,
interim protection was granted against the recovery of the penalty amount
assessed by the Assessing Authority. No directions with regard to furnishing security
for the amount of penalty stayed by this court were issued. The petitioner
company cannot obviously be put to a disadvantage for availing its remedy of
appeal against the order of assessment with reference to Section 82 of the VAT
Act - The Appellate Authority to dispose of the appeal without requiring it to
furnish a security in respect of the amount of penalty stayed by the appellate
authority or any coercive steps being taken against the petitioner company by
the respondents for recovery of the penalty amount – In favour
of assessee
2015-VIL-596-CESTAT-MUM-CE
PARLE
AGRO PVT LTD Vs COMMISSIONER OF CENTRAL EXCISE, RAIGAD
Central
Excise - Appellant is engaged in the manufacture of aerated waters – Sale of
empty glass bottles - Revenue contention that since the inputs have been
removed for home consumption, the appellant was required to reverse the cenvat credit availed by them - bottles sold were used
glass bottles and sold on account of change in the brand name – HELD – the
appellant from the beginning is claiming that the bottles sold were used glass
bottles and were sold on account of change in the brand name - the observation
of the original authority that the bottles were unused is without any
supporting evidence - the original authority has mentioned the explanation of
the appellant that the glass bottles were old, unusable or broken or brand name
was scratched etc. Thus the finding of the original authority is without any
basis - whatever the reason may be, there are no evidences that the bottles
sold were unused bottles, the criteria prescribed under Rule 57F(1) is
satisfied i.e. the inputs have been used in the manufacture of final products.
Since the bottles have been used in the manufacture of final products - no
reason to demand the cenvat credit availed on glass
bottles – Appeal allowed
2015-VIL-470-CHG-CE
COMMISSIONER,
CUSTOMS AND CENTRAL EXCISE, RAIPUR Vs M/s VANDANA ROLLING MILLS LIMITED
Central
Excise - Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997 –
Rule 5 - proper determination of the annual production capacity of Assessee –
HELD - By deeming fiction, subject to compliance with Rule 4(2), the actual
production, if less in the subsequent year, was to be determined for excise
duty on basis of actual production for the year 1996-1997. Any changes made in
the annual production capacity on 30.7.1997, was communicated to the department
after insertion of the amended Rule 5. The annual production capacity for
chargeable excise duty in the present case relates to the period 1997-98 - The
Tribunal held that the actual production figures for the year 1996-97 was not
relevant without noticing or taking into consideration Rule 5 brought into
effect from 1.9.1997 by notification dated 30.8.1997. The finding was therefore
completely perverse - Tribunal order is held to be not sustainable and is set
aside - Reference is answered in favour of the
Revenue
2015-VIL-597-CESTAT-MUM-CE
VIRLON
TEXTILE MILLS LTD Vs COMMISSIONER OF CENTRAL EXCISE, THANE-II
Central
Excise Act - Section 3(1) - duty chargeable on the goods which were cleared
during the interim period when the unit had made an application for conversion
from EOU to DTA – confiscation of goods - Assessee contention that the selling
price should be taken as the cum duty value and on that basis the value should
be worked out backwards and the appellant be asked to pay the duty accordingly
– HELD - the correct method in the present case will be to know the CIF value
of the similar goods being imported and take that as the assessable value.
However, in this case the clearances were made in 2003 and it will not be
practically possible either for the appellant to provide similar information or
for the Revenue to find out. Under the circumstances, the only way out of the
situation is to take the assessable value as declared in the invoices by the
appellant as the assessable value for purpose of computation of the duty which
will be equivalent to the import duty applicable on such goods. Thus the duty
demanded as per the show cause notice is upheld and the appellant’s plea to
compute the value on the basis of the selling price and working out backwards
is rejected - confiscation of the goods and penalty under Section 11AC is set
aside – Assessee appeal partly allowed
2015-VIL-595-CESTAT-DEL-ST
SBI
CARDS AND PAYMENT SERVICES PVT LTD Vs CST, NEW DELHI
Service
Tax - Credit Card Service - Banking and other Financial Services - Service tax
liability on the income attributable to the currency conversion mark-up when
the card holder uses the card abroad - period 16.07.2001 to 30.04.2006 – HELD -
In the absence statutory definition of the meaning and scope of taxable entry
‘Credit Card Services’ during the relevant time, guidance may have to be taken
from executive clarification and judicial interpretation - the card transaction
happened outside India. The service in respect of such transaction is rendered,
received and consumed outside India. The card issuing appellant and card holder
having normal residence in India is of no consequence for tax liability on
service rendered and consumed outside India - service tax liability on such
service is not sustainable for want of jurisdiction - the mark up charges
accruing to the appellant when card holder uses card to pay in foreign exchange
abroad is not liable to service tax under ‘Credit Card Services’ during the
impugned period. This conclusion is based both on merit of scope of ‘Credit
Card Services’ during relevant period and lack of territorial jurisdiction of
charge – Appeal allowed
2015-VIL-594-CESTAT-DEL-ST
CCE,
BHOPAL Vs M/s JAGAT ENTERPRISES
Service
Tax – Assessee providing services of loading/unloading of cement into wagon and
trucks – Demand under the category of ‘Cargo Handling Services’ for the period
16.08.2002 to 15.06.2005 – HELD – all the activities are done automatically by
machinery and conveyor owned by the cement manufacturer. The manpower supplied
by the respondent is for mainly supervising and supplementing the mechanised packing and loading - Revenue has not given any
reason as to why the impugned services were classifiable under ‘Cargo Handling
Services’ before 16.06.2005 and as manpower recruitment from 16.06.2005. The
admitted fact is that the services remain same and there is no reason for
different service tax treatment for different period. The Revenue has not
succeeded in making any sustainable ground to overturn the said order.
Accordingly, the appeal filed by the Revenue is dismissed
2015-VIL-593-CESTAT-DEL-ST
M/s
COMPUTER SCIENCES CORP. INDIA PVT LTD Vs CCE & S.T., NOIDA
Service
Tax – Cenvat Credit - denial of credit on the ground of incomplete address and
invoices not containing PAN based registration number - defective invoices –
HELD - It is no doubt that correct details / contents in the documents will
help the department to verify and to cross check whether these services were
provided at the end of the service provider. The department has no case that in
inquiry they found that these transactions are not genuine or that tax was not
paid - refund of credit allowed on defect invoices (incomplete address, no PAN
based registration number of service provider) - refund of credit on rent-a-cab
services, courier services, guest house services, power audit, FEA services,
maintenance of gym equipment, service of renting of speakers, mike, podium,
etc., Hotel expenses & Banquet Charges, Conference Charges, cleaning of
plates and outside catering services. The disallowance of refund of credit on
medical services is sustained – In favour of assessee
Guest
Article
Credit
of Cess: Credit of EC & SHEC can be used for
payment of Service Tax
FCP3010
FROM THE CORRIDOR OF POWER - Updates from
various Union Ministries, PMO & Cabinet
31st
of Oct
ceNoti23NT
Central Excise: Amendment
in Notification No.42/2001-Central Excise(N.T.) dated 26.06.2001 - Exempts
bulk cargo from sealing in packages or container
ceCir1011
Central Excise:
Clarification regarding Self-sealing and self-Examination of Bulk cargo
delCir28
Delhi: Filing of
reconciliation return for the year 2014-15 - Extension in date