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GST - Location of service provider, Location of recipient, Territorial jurisdiction - Petitioner participated in a tender floated by NBCC India Limited for the construction of a New Supreme Court Building in Mauritius and was awarded the contract. The petitioner established a Foreign Branch Office (FBO) in Mauritius to execute the project, and all project-related invoices were raised in USD by the FBO upon the Mauritius branch of NBCC - DGGI issued a show cause notice to the petitioner, demanding GST on the construction of the Mauritius project – Maintainability of writ petition issued on factual issues - HELD - Normally... [Read more]

GST - Location of service provider, Location of recipient, Territorial jurisdiction - Petitioner participated in a tender floated by NBCC India Limited for the construction of a New Supreme Court Building in Mauritius and was awarded the contract. The petitioner established a Foreign Branch Office (FBO) in Mauritius to execute the project, and all project-related invoices were raised in USD by the FBO upon the Mauritius branch of NBCC - DGGI issued a show cause notice to the petitioner, demanding GST on the construction of the Mauritius project – Maintainability of writ petition issued on factual issues - HELD - Normally, when a SCN was issued by the Department, the petitioner is supposed to have explain their case by way of filing their reply for the said show cause notice. Thereafter, if they are aggrieved over the assessment order passed by the Assessing Officer, the said order shall be challenged either before the Appellate Authority or before the Court in accordance with law - A Show cause notice issued on the factual aspect cannot be decided without any reply and supporting documents to be filed by the petitioner. When such being the case, it is obligatory on the part of the petitioner to file a detailed reply along with all the supporting documents to substantiate their case before the Assessing Officer - the present petition has been filed in a pre-mature manner and at this stage, the only right course available for the petitioner is to file a detailed reply along with all the supporting documents before the respondents – the writ petition is dismissed [Read less]

GST - Service of Notice on e-mail, Consolidated orders - Whether the service of notice through email to the registered email address of the petitioner on the GST portal is valid and sufficient as per the provisions of the CGST Act – Validity of issuance of a consolidated order covering multiple Financial Years is permissible in cases involving allegations of fraudulent availment of ITC – HELD - As per Section 169(1)(c) of the CGST Act, service of any communication through the email address provided at the time of GST registration is a valid mode of service. The emails sent to the registered email address of the petitio... [Read more]

GST - Service of Notice on e-mail, Consolidated orders - Whether the service of notice through email to the registered email address of the petitioner on the GST portal is valid and sufficient as per the provisions of the CGST Act – Validity of issuance of a consolidated order covering multiple Financial Years is permissible in cases involving allegations of fraudulent availment of ITC – HELD - As per Section 169(1)(c) of the CGST Act, service of any communication through the email address provided at the time of GST registration is a valid mode of service. The emails sent to the registered email address of the petitioner on the GST portal is presumed to be the email address of the petitioner. The case law relied upon by the petitioner, which dealt with the Income Tax Act, is distinguished as the language of the CGST Act is different from Income Tax – The service of notice through email to the registered email address is valid and in compliance with the statutory requirements - On the issue of a consolidated order covering multiple Financial Years, the Sections 73 and 74 of the CGST Act use the term "for any period" and "for such periods" in the context of fraudulent availment or utilization of ITC. The nature of ITC is such that fraudulent utilization and availment may involve a series of transactions spread over different Financial years, and a solitary transaction in one year may not be sufficient to establish the pattern of fraud. In cases involving allegation of fraudulent ITC, the issuance of a consolidated notice and order for multiple Financial Years is permissible and tenable under the CGST Act - There was no jurisdictional error or violation of principles of natural justice – The writ petition is dismissed with cost [Read less]

Service Tax - Cenvat Credit, Construction of the commercial complex, Renting of Immovable Property Service - Appellant availed Cenvat credit on various input services and utilized the same for payment of service tax on Renting of immovable property service – Denial of Cenvat credit on the ground that the input services had no nexus with the taxable output service of renting of immovable property, as the input services were used for the construction of the commercial complex which was immovable property - Whether the appellant is eligible to avail Cenvat credit on the input services used in the construction of the commerc... [Read more]

Service Tax - Cenvat Credit, Construction of the commercial complex, Renting of Immovable Property Service - Appellant availed Cenvat credit on various input services and utilized the same for payment of service tax on Renting of immovable property service – Denial of Cenvat credit on the ground that the input services had no nexus with the taxable output service of renting of immovable property, as the input services were used for the construction of the commercial complex which was immovable property - Whether the appellant is eligible to avail Cenvat credit on the input services used in the construction of the commercial complex which is ultimately being rented out on which service tax is being discharged - HELD - The issue is no longer res integra, and based on the various decisions of the Tribunal and the High Courts, held that the appellant is entitled to the Cenvat credit on the input services used for construction of the immovable property, which is later rented out and on which service tax is being paid - The mere fact that the structure is an immovable property does not preclude the appellant from availing the Cenvat credit, as the input services were used for providing the taxable output service of Renting of immovable property. There need not be a one-to-one nexus between the input services and the output services, as long as the input services were used and the output services were liable to service tax - The impugned order denying the Cenvat credit is set aside and the appeal is allowed [Read less]

GST - Pre-notice consultation, Sufficient time to reply the notice - DGGI conducted investigation against the petitioner and other courier agents, finding discrepancies in the petitioner's records, such as the entire consideration not being shown, evasion of tax, and non-payment of GST on import of services - Whether the pre-notice consultation under Rule 142 of the CGST Rules, 2017 was mandatory, and its non-issuance deprived the petitioner of the opportunity to deposit the tax prior to the issuance of the SCN – HELD - The pre-notice consultation under Rule 142 of the CGST Rules was not mandatory, as it had become discr... [Read more]

GST - Pre-notice consultation, Sufficient time to reply the notice - DGGI conducted investigation against the petitioner and other courier agents, finding discrepancies in the petitioner's records, such as the entire consideration not being shown, evasion of tax, and non-payment of GST on import of services - Whether the pre-notice consultation under Rule 142 of the CGST Rules, 2017 was mandatory, and its non-issuance deprived the petitioner of the opportunity to deposit the tax prior to the issuance of the SCN – HELD - The pre-notice consultation under Rule 142 of the CGST Rules was not mandatory, as it had become discretionary with effect from 9th October, 2019. Further, the petitioner could have availed the opportunity under Section 74(5) of the CGST Act to pay the tax along with interest and penalty before the issuance of the SCN. Since the petitioner had not provided its stand on the contentions and allegations of the Department, the challenge to the SCN on the ground of non-compliance of Rule 142 and Section 74(5) is not tenable - The manner in which the Department issued the summons, providing just one day's notice for the hearing, is violative of the principles of natural justice. The Department is directed to grant the petitioner a reasonable 30 days' time to file a reply to the SCN and provide a proper personal hearing opportunity before passing a detailed and reasoned order – The writ petition is disposed of [Read less]

GST - Non-service of pre-show cause notice in Form DRC-01A, Service of Order - Petitioner argued that it was not served with the pre-show cause notice in form DRC 01A, and without such service, no show-cause notice under Section 73 could have been issued - Whether the non-service of the pre-show cause notice in form DRC 01A vitiates the order passed under Section 73(9) of the WBGST/CGST Act, 2017; and whether the petitioner was deemed to have notice of the proceedings as they were uploaded on the portal in accordance with Section 169 of the Act – HELD - For a provision to be of a mandatory character, there must be some c... [Read more]

GST - Non-service of pre-show cause notice in Form DRC-01A, Service of Order - Petitioner argued that it was not served with the pre-show cause notice in form DRC 01A, and without such service, no show-cause notice under Section 73 could have been issued - Whether the non-service of the pre-show cause notice in form DRC 01A vitiates the order passed under Section 73(9) of the WBGST/CGST Act, 2017; and whether the petitioner was deemed to have notice of the proceedings as they were uploaded on the portal in accordance with Section 169 of the Act – HELD - For a provision to be of a mandatory character, there must be some consequences provided. No consequence has, however, been provided for non-issuance of the pre-show cause notice in DRC 01A. Therefore, the Court is not inclined to accept the contention that the non-service of the pre-show cause notice vitiates the order - the provisions of Section 169 of the WBGST/CGST Act, 2017 deal with the modes of service of any decision, order, summons, notice, or other communication. One of the modes of service is by making it available on the common portal. Since the proceedings were duly uploaded on the portal, the petitioner is deemed to have notice of such proceedings - The petitioner otherwise has an alternative efficacious remedy. However, the petitioner has tried to invoke the extra ordinary remedy without a cause. The writ petition is dismissed with costs of Rs. 10,000/- to be paid by the petitioner to the respondents – The writ petition is dismissed with cost [Read less]

Service Tax - Refund, Taxable Services, Negative List of Services – Respondent-assessee filed an application seeking refund of service tax on the ground that the service tax was paid on certain services, on which it was not liable to pay - The Commissioner (Appeals) set aside the order-in-original and allowed the appeal. The Revenue filed an appeal before the Tribunal – HELD - The relevant period of dispute was May 2015 to April 2016, which fell under the post-2012 regime where service tax was payable on all services except those listed in the Negative List. However, the Commissioner (Appeals) had considered the pre-20... [Read more]

Service Tax - Refund, Taxable Services, Negative List of Services – Respondent-assessee filed an application seeking refund of service tax on the ground that the service tax was paid on certain services, on which it was not liable to pay - The Commissioner (Appeals) set aside the order-in-original and allowed the appeal. The Revenue filed an appeal before the Tribunal – HELD - The relevant period of dispute was May 2015 to April 2016, which fell under the post-2012 regime where service tax was payable on all services except those listed in the Negative List. However, the Commissioner (Appeals) had considered the pre-2012 provisions, which was not correct. The question of taxability or refund can only be considered in terms of the provisions relevant to the period. A service will not become either taxable or exempted simply because it was taxable or exempted at some time in the past. It was also not clear from the impugned order as to how the assessments were done and if they were modified before the refund application was filed by the respondent - the impugned order is set aside and mater is remanded to the Commissioner (Appeals) to examine the entire matter afresh as per the provisions applicable to the relevant period - The appeal is allowed by way of remand [Read less]

Service Tax - Rebate/refund of service tax paid on export of services, Compliance with conditions prescribed in Notification No. 11/2005-S.T. dated 19.04.2005 and Export of Service Rules, 2005 - Appellant filed rebate/refund application for refund of service tax and cess paid on export of services for the period April-June 2012. The rebate claim was rejected by the lower authorities on the ground that the appellant failed to establish the payment of service tax on the exported services - Whether the appellant is entitled to the rebate/refund of service tax and cess paid on export of services in terms of Notification No. 11... [Read more]

Service Tax - Rebate/refund of service tax paid on export of services, Compliance with conditions prescribed in Notification No. 11/2005-S.T. dated 19.04.2005 and Export of Service Rules, 2005 - Appellant filed rebate/refund application for refund of service tax and cess paid on export of services for the period April-June 2012. The rebate claim was rejected by the lower authorities on the ground that the appellant failed to establish the payment of service tax on the exported services - Whether the appellant is entitled to the rebate/refund of service tax and cess paid on export of services in terms of Notification No. 11/2005-S.T. dated 19.04.2005 – HELD - The appellant had duly complied with the requirements prescribed in the Notification No. 11/2005-S.T. dated 19.04.2005 and the Export of Service Rules, 2005. The appellant had exported the services to its overseas group entity, received the export proceeds in foreign exchange, and had also paid the applicable service tax and cess on such exports, as evidenced from the ST-3 returns. The only ground for rejection of the rebate claim by the lower authorities was the inability to identify the payment of service tax on the exported services in the ST-3 returns, which is an overly technical interpretation. The appellant had paid the service tax and cess on the exported services and entitled to the rebate/refund – The impugned order is set aside and the appeal is allowed - Power of the Tribunal to adjudicate cases relating to rebate of service tax paid on export of services – HELD - Rebate/ refund of service tax paid on output service, which are exported is not covered under the first proviso to Section 86 of the Finance Act, 1994 and the appeal in such matter shall lie before the Tribunal. Since, the Finance Act, 2012 came into effect from 28.05.2012, all matters relating to rebate of service tax paid on inputs or input services which were pending before the Tribunal prior to 13.05.2015 shall also lie before the Revision Authority. Furthermore, all rebate claims in respect of service tax prior to 28.05.2012, both in respect of service tax paid on input or input services as well as service tax paid on output services, on the basis of extant legal provisions dealing with rebate of Central Excise duty paid being made applicable to matters of service tax, mutandis mutandis, shall also lie before the Revision Authority. Since, the present dispute deals with the period subsequent to the amendment brought in Section 86, the Tribunal is the appropriate appellate forum for preferring an appeal against an order passed in respect of rebate of service tax paid on output services. [Read less]

Service Tax - Leasing of ISO tanks, Supply of tangible goods service, Deemed sale - Whether the leasing of ISO tanks received by the Appellant under lease agreements from various overseas suppliers would attract any service tax levy under the category of "supply of tangible goods service" on RCM basis - HELD - The issue is no more res-integra as the same has been decided in the matter of M/s SRF Ltd Vs. Commissioner LTU, New Delhi. The conditions in the lease agreements of the appellant are similar in substance to the ones given in the SRF Ltd case - In the case of supply of ISO tankers made by foreign suppliers to the app... [Read more]

Service Tax - Leasing of ISO tanks, Supply of tangible goods service, Deemed sale - Whether the leasing of ISO tanks received by the Appellant under lease agreements from various overseas suppliers would attract any service tax levy under the category of "supply of tangible goods service" on RCM basis - HELD - The issue is no more res-integra as the same has been decided in the matter of M/s SRF Ltd Vs. Commissioner LTU, New Delhi. The conditions in the lease agreements of the appellant are similar in substance to the ones given in the SRF Ltd case - In the case of supply of ISO tankers made by foreign suppliers to the appellant as per the contract, there is no supply of 'Tangible Goods Services' involved because during the impugned period, the legal right to use ISO Tankers lay with the appellants to the exclusion of any other person - The possession of ISO tankers as well as control to the extent of usage as also maintenance, etc remained with the appellants only. Since, there was transfer of right to use goods, as well as, control and possession of ISO tankers were passed on to the appellant, supply of ISO tankers on lease/rental basis by foreign suppliers to appellants would amount to deemed sale - Following the decision of M/s SRF Ltd, the appeals are allowed [Read less]

Central Excise - Refund of CENVAT Credit consequent to Tribunal Order, Limitation, Unjust Enrichment - After a series of adjudication proceedings, the appellant was allowed CENVAT Credit. The appellant filed a refund application for the allowed amounts, which was rejected by the Department on grounds of time limitation and unjust enrichment - Whether the refund claim for the CENVAT Credit allowed by the Tribunal is time-barred - HELD - The second proviso to Section 11B of the Central Excise Act, 1944 specifically provides that the limitation of one year shall not apply where any duty and interest has been paid under protes... [Read more]

Central Excise - Refund of CENVAT Credit consequent to Tribunal Order, Limitation, Unjust Enrichment - After a series of adjudication proceedings, the appellant was allowed CENVAT Credit. The appellant filed a refund application for the allowed amounts, which was rejected by the Department on grounds of time limitation and unjust enrichment - Whether the refund claim for the CENVAT Credit allowed by the Tribunal is time-barred - HELD - The second proviso to Section 11B of the Central Excise Act, 1944 specifically provides that the limitation of one year shall not apply where any duty and interest has been paid under protest. The explanation to Section 11B states that the "relevant date" in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, is the date of such judgment, decree, order or direction. Since the appellant had paid the duty under protest and filed the refund claim within one year of the Tribunal's order, the refund claim is not time-barred – On the issue of unjust enrichment, the appellant had produced a Chartered Accountant's certificate stating that the incidence of excess duty paid has not been passed on to any other person - the impugned order is set aside and the Department is directed to refund the CENVAT Credit amounts to the appellant in cash as per the provisions of Section 142(3) of the CGST Act, 2017 – The appeal is allowed [Read less]

GST – West Bengal AAR - Section 2(30) of the CGST Act, 2017 - Hotel accommodation, Composite supply, specified premises - The applicant is engaged in the hotel business and offers various meal plans like European Plan (EP), Continental Plan (CP), and American Plan (AP) along with accommodation services – Classification and applicable GST rate on food component in the AP or CP plans when the total value of the combined supply exceeds Rs. 7,500 and the tax invoice distinctly enumerates the two supplies separately - HELD - The hotel premises of the applicant will qualify for ‘specified premises’ for financial year 202... [Read more]

GST – West Bengal AAR - Section 2(30) of the CGST Act, 2017 - Hotel accommodation, Composite supply, specified premises - The applicant is engaged in the hotel business and offers various meal plans like European Plan (EP), Continental Plan (CP), and American Plan (AP) along with accommodation services – Classification and applicable GST rate on food component in the AP or CP plans when the total value of the combined supply exceeds Rs. 7,500 and the tax invoice distinctly enumerates the two supplies separately - HELD - The hotel premises of the applicant will qualify for ‘specified premises’ for financial year 2025-26 if the value of supply of any room exceeds Rupees Seven thousand five hundred in financial year 2024-25. If the said value of supply of any room does not exceed Rupees Seven thousand five hundred in financial year 2024-25, the premises of the applicant will not be considered as ‘specified premises. The food component in the AP or CP plans is part of a composite supply, and the principal supply is the accommodation service. Therefore, the entire bundled supply, even if the charges for accommodation and food are shown separately, will be taxed at the rate applicable to the principal supply of accommodation service. If the total value of the combined supply (accommodation and food) exceeds Rs. 7,500, the applicable GST rate will be 18% GST – In the present case, since the total value of supply in a combined form (room charge and food charge) as submitted by the applicant has not exceeded Rupees Seven thousand five hundred per day per room in AP or CP for financial year 2024-25 in case of any room, the applicant’s hotel will not be considered as ‘specified premise’ for financial year 2025-26 – Ordered accordingly - Applicable tax rate for separate restaurant services provided to walk-in guests considering the recent Notification No. 05/2025-Central Tax (Rate) dated 16.01.2025 - HELD - The separate restaurant services provided to walk-in guests will be taxable at 5% GST, as the hotel premises does not qualify as a "specified premises" for the financial year 2025-26 based on the information provided by the applicant. However, if in any ongoing financial year, the hotel charges a rate above Rs. 7,500 for any unit of accommodation (inclusive of the food charges in the applicable plan, even if indicated separately in the invoices), the premises shall qualify to be considered as "specified premises" for the next financial year, and the appropriate rate of 18% GST shall apply for the restaurant services provided to walk-in guests. [Read less]

An order lacking DIN is merely invalid and not void ab initio. An invalid order remains legally effective until it is explicitly set aside by the Court. Assessee must seek a judicial declaration to invalidate the order, and must do so expeditiously.

GST - Pre-arrest bail, Custodial interrogation, GST fraud - The petitioners were accused of fraudulently issuing fake tax invoices, generating false e-way bills, and moving empty vehicles to claim wrongful Input Tax Credit and causing revenue loss to the State exchequer. Based on a complaint filed by the Assistant Commissioner of State Taxes, a criminal case was registered against the petitioners under various sections of the Bharatiya Nagarik Suraksha Sanhita, 2023 - Whether the petitioners are entitled to pre-arrest bail, or whether custodial interrogation is necessary for the investigation – HELD - The allegations aga... [Read more]

GST - Pre-arrest bail, Custodial interrogation, GST fraud - The petitioners were accused of fraudulently issuing fake tax invoices, generating false e-way bills, and moving empty vehicles to claim wrongful Input Tax Credit and causing revenue loss to the State exchequer. Based on a complaint filed by the Assistant Commissioner of State Taxes, a criminal case was registered against the petitioners under various sections of the Bharatiya Nagarik Suraksha Sanhita, 2023 - Whether the petitioners are entitled to pre-arrest bail, or whether custodial interrogation is necessary for the investigation – HELD - The allegations against the petitioners were primarily based on documentary and digital evidence, such as GST returns, e-way bills, invoices, and toll gate data, all of which had already been seized by the authorities. The prosecution did not demonstrate any specific necessity for custodial interrogation of the petitioners or show that their custodial presence was indispensable for collecting further evidence. The investigation could proceed effectively with the petitioners being available for interrogation without subjecting them to arrest, as the punishment prescribed for the offences under the GST Act was not severe, and the evidence was largely documentary in nature - The custodial interrogation of the petitioners was neither warranted nor justified at that stage. Accordingly, the petitioners are granted pre-arrest bail, subject to certain conditions - The criminal petitions are allowed [Read less]

GST – West Bengal AAR – Classification, Hotel accommodation services, Renting of immovable property - Applicant entered into an agreement with the Reserve Bank of India (RBI) to provide accommodation services on a continuous basis for RBI officers and their families - Whether the accommodation services provided by the applicant to RBI having room tariff of less than Rs.7500 per day per unit, as part of the agreement for providing accommodation services to RBI staff, is taxable under GST at the rate of 12% - HELD - The definition of "Hotel Accommodation" as per the GST law includes the supply of accommodation in hotels,... [Read more]

GST – West Bengal AAR – Classification, Hotel accommodation services, Renting of immovable property - Applicant entered into an agreement with the Reserve Bank of India (RBI) to provide accommodation services on a continuous basis for RBI officers and their families - Whether the accommodation services provided by the applicant to RBI having room tariff of less than Rs.7500 per day per unit, as part of the agreement for providing accommodation services to RBI staff, is taxable under GST at the rate of 12% - HELD - The definition of "Hotel Accommodation" as per the GST law includes the supply of accommodation in hotels, inns, guest houses, clubs, campsites or other commercial places meant for residential or lodging purposes. Further, the place of supply of such accommodation services is the location where the immovable property is situated, as per the provisions of the IGST Act - The concept of "renting of immovable property" and "hotel accommodation services" is distinguishable under the GST law. For renting of immovable property, the demarcation of the specific portion of the property being let out is crucial, which is not the case in the present agreement. The agreement only states that any of the 45 rooms shall be provided for accommodation purposes, indicating the transient and service-based nature of the arrangement, rather than a traditional lease or tenancy - The accommodation services provided by the applicant to RBI having room tariff of less than Rs.7,500 per day per unit, as part of the agreement for providing accommodation (rooms) services to RBI staff, are taxable under GST at the rate of 12% - Ordered accordingly [Read less]

GST – West Bengal AAR - Classification and applicable GST rate on PVC raincoat - Whether PVC raincoats are classifiable under Chapter 62 (Articles of Apparel and Clothing Accessories, Not Knitted or Crocheted) or Chapter 39 (Plastics and Articles Thereof) of the Customs Tariff Act, 1975 – HELD - The PVC raincoats are not made of textile materials and do not involve the formation of fibers or filaments, which are the essential characteristics of textile articles covered under Chapter 62. The manufacturing process of PVC sheets, which is the basic raw material for PVC raincoats, involves polymerization of vinyl chloride ... [Read more]

GST – West Bengal AAR - Classification and applicable GST rate on PVC raincoat - Whether PVC raincoats are classifiable under Chapter 62 (Articles of Apparel and Clothing Accessories, Not Knitted or Crocheted) or Chapter 39 (Plastics and Articles Thereof) of the Customs Tariff Act, 1975 – HELD - The PVC raincoats are not made of textile materials and do not involve the formation of fibers or filaments, which are the essential characteristics of textile articles covered under Chapter 62. The manufacturing process of PVC sheets, which is the basic raw material for PVC raincoats, involves polymerization of vinyl chloride monomers to produce PVC resin, which is then compounded with various additives and extruded into sheets. This process does not result in the formation of any textile fibers or filaments - Further, the Explanatory Notes to Chapter 39 of the HSN specifically include "Articles of apparel and clothing accessories (other than toys) made by sewing or sealing sheets of plastics, e.g., aprons, belts, babies' bibs, raincoats, dress shields, etc." under the ambit of Heading 3926, which deals with "Other articles of plastics and articles of other materials of headings 3901 to 3914" – The PVC raincoats are classifiable under HSN code 392620 under Chapter 39 (Plastics and Articles Thereof) of the Customs Tariff Act, 1975 and liable to 18% GST – Ordered accordingly [Read less]

GST - Cancellation of GST registration, Revocation of cancellation, Principles of natural justice - GST authorities issued a show cause notice proposing cancellation of the petitioner's registration on the ground that it had obtained the registration by means of fraud, willful misstatement or suppression of facts. The registration was subsequently cancelled with retrospective effect from 1st July 2017. The petitioner's application for revocation of the cancellation was rejected by the authorities - Whether the cancellation of the petitioner's GST registration and the rejection of its application for revocation of the cance... [Read more]

GST - Cancellation of GST registration, Revocation of cancellation, Principles of natural justice - GST authorities issued a show cause notice proposing cancellation of the petitioner's registration on the ground that it had obtained the registration by means of fraud, willful misstatement or suppression of facts. The registration was subsequently cancelled with retrospective effect from 1st July 2017. The petitioner's application for revocation of the cancellation was rejected by the authorities - Whether the cancellation of the petitioner's GST registration and the rejection of its application for revocation of the cancellation were valid - HELD - The order of cancellation of registration was passed without any application of mind to the documents provided by the petitioner. The petitioner had submitted various documents in response to the SCN, but the authorities did not discuss these in the order of cancellation or the order rejecting the revocation application - Further, the authorities had conducted an inspection during the pendency of the revocation application without giving prior notice to the petitioner, and the documents relied upon were not provided to the petitioner - The principles of natural justice were violated as the petitioner was not given an opportunity to respond to the additional grounds and evidence relied upon by the authorities in the Demand-cum-Show Cause Notice. The matter was remanded for fresh consideration, and the Demand-cum-Show Cause Notice was kept in abeyance until the fresh decision was taken - The order rejecting the petitioner's application for revocation of cancellation is set aside and the matter is remanded to the Respondents for fresh consideration in accordance with the principles of natural justice [Read less]

GST - Section 6(2)(b) - Parallel Proceedings – Petitioner challenge the action initiated by the State GST Authorities, contending that the SGST authorities are barred from issuing a notice under Section 6(2)(b) of the CGST Act, 2017 - Whether the action taken by the State Tax Authorities is barred under Section 6(2)(b) of the CGST Act, 2017, which prevents the initiation of parallel proceedings on the "same subject matter" – HELD - The Supreme Court in in M/s. Armour Security (India) Ltd. case conclusively clarified the law on parallel proceedings, holding that the expression "initiation of any proceedings" under Secti... [Read more]

GST - Section 6(2)(b) - Parallel Proceedings – Petitioner challenge the action initiated by the State GST Authorities, contending that the SGST authorities are barred from issuing a notice under Section 6(2)(b) of the CGST Act, 2017 - Whether the action taken by the State Tax Authorities is barred under Section 6(2)(b) of the CGST Act, 2017, which prevents the initiation of parallel proceedings on the "same subject matter" – HELD - The Supreme Court in in M/s. Armour Security (India) Ltd. case conclusively clarified the law on parallel proceedings, holding that the expression "initiation of any proceedings" under Section 6(2)(b) refers specifically to the formal commencement of adjudicatory proceedings through the issuance of a show cause notice - Based on this binding precedent, the action taken by the State Authorities is in accordance with the law, as the bar under Section 6(2)(b) has not yet triggered - The writ petitions are dismissed [Read less]

GST - Refund of Pre-deposit; Limitation Period - Consequent to a successful appeal, the petitioner filed an application for a refund of the pre-deposited amount – Rejection of refund application on the ground that it was barred by limitation, having been filed after the expiry of the two-year period prescribed under Section 54 of the CGST Act, 2017 - Whether the two-year limitation period prescribed under Section 54 for claiming a refund of tax is mandatory and applicable to the refund of a statutory pre-deposit made for filing an appeal, after the said appeal has been decided in favour of the assessee - HELD - The time ... [Read more]

GST - Refund of Pre-deposit; Limitation Period - Consequent to a successful appeal, the petitioner filed an application for a refund of the pre-deposited amount – Rejection of refund application on the ground that it was barred by limitation, having been filed after the expiry of the two-year period prescribed under Section 54 of the CGST Act, 2017 - Whether the two-year limitation period prescribed under Section 54 for claiming a refund of tax is mandatory and applicable to the refund of a statutory pre-deposit made for filing an appeal, after the said appeal has been decided in favour of the assessee - HELD - The time limit prescribed under Section 54 of the GST Act is not applicable for the refund of a pre-deposit made for filing a statutory appeal - The question is no longer res-integra as regards this Court the case title M/s. BLA Infrastructure Private Limited - the view taken by the Division Bench of this Court is binding on this Bench and as regards the view taken by the Delhi High Court, in Sethi Sons (India) v. Assistant Commissioner and Others, the same has only a persuasive value. Even otherwise, the action of the State in retaining the amount of the petitioner would amount to undue enrichment of the State, which is impermissible - the deficiency memos are quashed and the respondents are directed to refund the pre-deposit amount to the petitioner within a period of four weeks. If the respondents fail to refund the amount within the stipulated time, they shall be liable to pay interest from the date the refund until the date of actual payment – The writ petition is allowed [Read less]

GST – Tamil Nadu AAR - Blocked Credit - Construction of factory, Input Tax Credit, Immovable Property, Works Contract, Plant and Machinery - Applicant constructed a new factory adjacent to its existing factory and incurred capital expenditure towards procurements for setting up the new factory. The applicant entered into a contract with M/s. SMCC Construction India Limited for "Supply, Installation, Testing and Commissioning of Electrical Works" for the new factory - Whether Input Tax Credit is eligible on electrical works carried out for expansion of factory for manufacturing activity - HELD - The agreement is not merel... [Read more]

GST – Tamil Nadu AAR - Blocked Credit - Construction of factory, Input Tax Credit, Immovable Property, Works Contract, Plant and Machinery - Applicant constructed a new factory adjacent to its existing factory and incurred capital expenditure towards procurements for setting up the new factory. The applicant entered into a contract with M/s. SMCC Construction India Limited for "Supply, Installation, Testing and Commissioning of Electrical Works" for the new factory - Whether Input Tax Credit is eligible on electrical works carried out for expansion of factory for manufacturing activity - HELD - The agreement is not merely for installation/commissioning of electrical works but it is a composite one of Works Contract’ Service involving “Supply, Installation, Testing and Commissioning of Electrical Works” – The Electrical LT works proposed in the contract is for the ‘New Factory Project’ which is a comprehensive one meant for the entire factory, and not in relation to a specific machinery/equipment - The execution of the project amounts to rendition of a composite “Works Contract” Service, in as much as it involves supply of materials as well as supply of service including installation, testing, commissioning, etc. – Further, the electrical installation for the factory, results in a ‘Permanent Work’ of immovable nature and the same cannot be considered as ‘Plant and Machinery’ as defined under the CGST Act - the GST paid on the receipt of ‘Works Contract’ service involving electrical installations for the new factory project, is not eligible for availment of ITC as they are blocked under clause (c) of the Section 17(5) of the CGST Act, 2017 – Ordered accordingly [Read less]

Central Excise - Rebate of duty, Export of goods, Requirements of ARE-1 Form, Correlation between cleared goods and exported goods – Rejection of rebate claims for the duty paid on the exported goods on the ground of non-filing of ARE-1 Form and goods were not exported the goods directly from the factory - Whether the procedural requirement of filing the ARE-1 form is mandatory for the petitioner to claim rebate of duty paid on the exported goods, or whether the correlation between the duty-paid clearances and the eventual export can be established through other documentary evidence – HELD - The procedural requirement ... [Read more]

Central Excise - Rebate of duty, Export of goods, Requirements of ARE-1 Form, Correlation between cleared goods and exported goods – Rejection of rebate claims for the duty paid on the exported goods on the ground of non-filing of ARE-1 Form and goods were not exported the goods directly from the factory - Whether the procedural requirement of filing the ARE-1 form is mandatory for the petitioner to claim rebate of duty paid on the exported goods, or whether the correlation between the duty-paid clearances and the eventual export can be established through other documentary evidence – HELD - The procedural requirement of filing the ARE-1 form is mandatory for the petitioner to claim rebate of duty under Rule 18 of the Central Excise Rules, 2002. The ARE-1 Form is the basic document that establishes the correlation between the goods cleared from the factory and the goods exported, as it is endorsed by the Central Excise Officer at the time of removal of the goods from the factory - the petitioner had admittedly not filed the ARE-1 form, and had instead tried to establish the correlation through secondary evidence such as invoices and shipping bills. However, this is not legally permissible, as the statutory framework and the CBEC Manual clearly require the ARE-1 form to be filed for the purpose of verifying the identity and quantity of the exported goods - The procedural requirements under the Central Excise Act and Rules cannot be disregarded on the ground that the petitioner has established the factual correlation through other documentary evidence - The statute must be construed according to the intention of the legislature, and the words in the statute, when clear and unambiguous, must be given effect to. The revisional order, which had set aside the order of the Commissioner (Appeals) and restored the original orders rejecting the rebate claims of the petitioner, is upheld – The writ petition is dismissed [Read less]

Service Tax – Sections 68 and 75 of Finance Act, 1994 – Delayed payment of tax – Demand of interest – Appellant is engaged in providing security services to Atomic Power Station – During course of audit of records of Appellant, department noticed that Appellant has not paid interest on delayed payment of Service Tax – Department issued show cause notice to Appellant, proposing demand of interest for late payment of Service Tax – Commissioner confirmed demand of interest under Section 75 of the Act – Whether impugned order confirming demand of interest for late payment of Service Tax is sustainable – HELD ... [Read more]

Service Tax – Sections 68 and 75 of Finance Act, 1994 – Delayed payment of tax – Demand of interest – Appellant is engaged in providing security services to Atomic Power Station – During course of audit of records of Appellant, department noticed that Appellant has not paid interest on delayed payment of Service Tax – Department issued show cause notice to Appellant, proposing demand of interest for late payment of Service Tax – Commissioner confirmed demand of interest under Section 75 of the Act – Whether impugned order confirming demand of interest for late payment of Service Tax is sustainable – HELD – Undisputedly, there is a delay in payment of service tax for relevant period. Bare perusal of Section 75 of the Act provides that when any person, who is liable to pay service tax as per provisions of Section 68 of the Act, fails to pays service tax, then the person is liable to pay interest at prescribed rate. It is settled proposition in law that interest represents the time value of amount deposited and is to be paid along with amount due. Liability to interest can be contractual or a statutory liability. Case under consideration is concerned with liability to interest created by statute, i.e. statutory liability. Statute lays down that, in case of payment of service after due date, interest for period of delay in payment of tax is required to be paid at prescribed rate. Impugned order carefully examines these aspects and concludes that interest is demandable. Impugned order confirming demand of interest for late payment of Service Tax is sustained – Appeal dismissed [Read less]

Customs – Section 108 of Customs Act, 1962 – Smuggling of gold – Absolute confiscation – Officers intercepted nephew of Appellant No.1 and two other persons and recovered gold bars and currency from them – On reasonable belief that gold bars are smuggled one and currency was sale proceeds of smuggled gold, officers seized them under provisions of the Act – Adjudicating Authority ordered for absolute confiscation of seized gold bars and currency and imposed penalties on all Appellants – Commissioner (Appeals) upheld order passed by Adjudicating Authority – Whether seized gold bars are liable to confiscation ... [Read more]

Customs – Section 108 of Customs Act, 1962 – Smuggling of gold – Absolute confiscation – Officers intercepted nephew of Appellant No.1 and two other persons and recovered gold bars and currency from them – On reasonable belief that gold bars are smuggled one and currency was sale proceeds of smuggled gold, officers seized them under provisions of the Act – Adjudicating Authority ordered for absolute confiscation of seized gold bars and currency and imposed penalties on all Appellants – Commissioner (Appeals) upheld order passed by Adjudicating Authority – Whether seized gold bars are liable to confiscation or not – HELD – No document/invoice had been recovered at time of recovery of gold bars. Appellants have failed to establish that seized gold was acquired by them through any legal means. Department had sufficient reasons to believe that gold were smuggled. Since, gold bars were of smuggled nature, they are liable to confiscation as per law. Consequently, sale proceeds of gold is also liable for confiscation and has been rightly confiscated by Adjudicating Authority. There is no any illegality or irregularity in impugned order in this regard – Appeals partly allowed - Imposition of penalties – Sustainability – Whether penalties imposed on all Appellants are sustainable – HELD – Appellant No.1 in his statement had confessed to have purchased smuggled gold. Appellant Nos.2 and 3 also confessed to carry smuggled gold in their statements. There is no illegality in imposing penalty on these Appellants. Penalties imposed on Appellant Nos.1 to 3 are upheld – Appellant Nos.4 and 5 in their statement recorded under Section 108 of the Act denied their involvement in the matter. Lower authorities imposed penalties on Appellant Nos.4 and 5 only on basis of statements given by Appellant Nos.1 to 3 without any corroboration. Penalty is not imposable only on basis of incriminating statement made by co-accused in absence of any other corroborative evidence. Penalties imposed on Appellant Nos.4 and 5 are set aside. [Read less]

Customs – Regulation 10(n) of Customs Broker Licensing Regulations, 2018 – Revocation of license – Forfeiture of security deposit – Directorate General of Analytics & Risk Management of Central Board of Excise & Customs had analyzed GST registration data and suspected that certain registrants did not actually exist – Based on reports of field formations, department felt that customs brokers including Appellant had filed shipping bills for export of goods by entities who had not existed and thereby violated Regulation 10(n) of the Regulations – Commissioner revoked customs broker licence of Appellant and forfeit... [Read more]

Customs – Regulation 10(n) of Customs Broker Licensing Regulations, 2018 – Revocation of license – Forfeiture of security deposit – Directorate General of Analytics & Risk Management of Central Board of Excise & Customs had analyzed GST registration data and suspected that certain registrants did not actually exist – Based on reports of field formations, department felt that customs brokers including Appellant had filed shipping bills for export of goods by entities who had not existed and thereby violated Regulation 10(n) of the Regulations – Commissioner revoked customs broker licence of Appellant and forfeited its security deposit – Whether Appellant has violated provisions of Regulation 10(n) of the Regulations – HELD – Show cause notice alleged that Appellant is one of customs brokers who are handled consignments of 89 risky exporters. Out of alleged 89 exporters who did not exist, verification reports were enclosed only for 4 exporters as RUD-1 to RUD-4. There is nothing in show cause notice or in impugned order to show that Appellant had handled exports by exporters mentioned in RUD-1, 2 and 3. As far as exporter in RUD-4 (Lalit Enterprises) is concerned, Appellant had obtained all necessary documents to verify existence of Lalit Enterprises and thereafter processed their exports through customs. It is not necessary for Appellant to physically visit and verify if exporter was operating on its place of business. Responsibility of Customs Broker under Regulation 10(n) of the Regulations does not include keeping a continuous surveillance on client to ensure that he continues to operate from that address and has not changed his operations. Appellant has not failed in discharging its responsibilities under Regulation 10(n) of the Regulations. Impugned order passed by Commissioner is set aside – Appeal allowed [Read less]

Customs – Affixing of Retail Sale Price (RSP) tag, Mis-declaration of RSP – Appellant imported 'Little Tree' brand Car Air Freshener Paper Tag and declared the RSP and assessable value in the Bills of Entry. During investigations, the Department found that the price tags affixed on the goods in the appellant's warehouse showed a much higher RSP compared to what was declared in the Bills of Entry - Department rejected the declared RSP and assessable value, re-determined them, and demanded differential duty along with interest and penalties - Whether affixing the higher priced labels amounts of manufacturing a new produc... [Read more]

Customs – Affixing of Retail Sale Price (RSP) tag, Mis-declaration of RSP – Appellant imported 'Little Tree' brand Car Air Freshener Paper Tag and declared the RSP and assessable value in the Bills of Entry. During investigations, the Department found that the price tags affixed on the goods in the appellant's warehouse showed a much higher RSP compared to what was declared in the Bills of Entry - Department rejected the declared RSP and assessable value, re-determined them, and demanded differential duty along with interest and penalties - Whether affixing the higher priced labels amounts of manufacturing a new product – HELD - The appellant's argument that by affixing the higher priced labels, it was effectively manufacturing a new product and hence the higher RSP should not be applied to the imported goods, is untenable. The goods as imported were meant for retail sale and the appellant had itself declared the RSP in the Bills of Entry. The mere fact that it affixed higher priced labels later cannot make the goods a new product - The gross mis-declaration of RSP gave sufficient reason to the Department to re-examine the declared assessable value – Further, the appellant's claim of "honest belief" that it could mis-declare the RSP and later affix higher priced labels is not acceptable. Such a deliberate and planned mis-declaration cannot be termed as an honest belief, and therefore, the extended period of limitation was rightly invoked - The reassessment of RSP and assessable value, and the imposition of penalties under Sections 114A and 114AA of the Customs Act are upheld – The appeal is dismissed [Read less]

Customs – Sections 111(b), 112(a), 112(b) and 123 of Customs Act, 1962 – Confiscation of seized gold – Imposition of penalty – DRI officers intercepted Appellants and recovered gold biscuits from them – Officers seized gold biscuits under Section 111 of the Act under reasonable belief that same were smuggled one – Adjudicating authority ordered for confiscation of seized gold under Section 111(b) of the Act and imposed penalties on Appellant under Section 112(a) and 112(b) of the Act – Commissioner (Appeals) upheld order passed by Adjudicating authority – Whether order of confiscation of seized gold is sust... [Read more]

Customs – Sections 111(b), 112(a), 112(b) and 123 of Customs Act, 1962 – Confiscation of seized gold – Imposition of penalty – DRI officers intercepted Appellants and recovered gold biscuits from them – Officers seized gold biscuits under Section 111 of the Act under reasonable belief that same were smuggled one – Adjudicating authority ordered for confiscation of seized gold under Section 111(b) of the Act and imposed penalties on Appellant under Section 112(a) and 112(b) of the Act – Commissioner (Appeals) upheld order passed by Adjudicating authority – Whether order of confiscation of seized gold is sustainable – HELD – Assumption and presumption that goods are smuggling one cannot be the basis for confiscation. Smuggled nature of goods should be proved by Revenue by producing affirmative and tangible evidence. There is no foreign marking on biscuits recovered from Appellants. Appellant have produced his income details and CA certificate as an evidence of source of income for procurement of subject gold. Appellants proved their onus as required by Section 123 of the Act. Department failed to produce punch witnesses for cross examination as requested by Appellants. Denial of cross-examination of punch witnesses is violation of natural justice. Department has failed to establish a reasonable belief that seized gold is smuggled, whereas, Appellants concerned established that gold was not smuggled and they had been procured by licit means. Confiscation of gold and imposing of penalty are not sustainable. Order under challenge is set aside – Appeals allowed [Read less]

Central Excise – Section 4A of Central Excise Act, 1944 – Refund claim – Admissibility – Appellant filed a refund claim claiming that they had paid excess duty at time of clearance of final products – Assistant Commissioner sanctioned refund of duty to Appellant – Commissioner (Appeals) allowed appeal filed by Revenue and set aside order passed by Assistant Commissioner – Whether Commissioner (Appeals) is justified in setting aside Order-in-Original sanctioning refund to Appellant – HELD – Appellant has paid Central Excise duty at time of clearance of goods on basis of self assessment made by them. Refund... [Read more]

Central Excise – Section 4A of Central Excise Act, 1944 – Refund claim – Admissibility – Appellant filed a refund claim claiming that they had paid excess duty at time of clearance of final products – Assistant Commissioner sanctioned refund of duty to Appellant – Commissioner (Appeals) allowed appeal filed by Revenue and set aside order passed by Assistant Commissioner – Whether Commissioner (Appeals) is justified in setting aside Order-in-Original sanctioning refund to Appellant – HELD – Appellant has paid Central Excise duty at time of clearance of goods on basis of self assessment made by them. Refund claim was filed by Appellant, claiming that they have paid excess duty at time of clearance and same should be refunded to them. Claim for refund cannot be entertained, unless order of assessment or self-assessment is modified in accordance with law by taking recourse to appropriate proceedings. No appeal was filed by Appellant challenging self assessment made by them before appellate authority – Refund claim has been disallowed by Commissioner (Appeals) on ground of unjust enrichment. Appellant has declared MRP in respect of goods, which would have been included all duties and taxes paid at time of sale of goods to consumers. Even if goods were or were not to be assessed under Section 4A of the Act, duty paid was passed on to buyer of goods. Once incidence of excise duty has been passed on to buyer, Appellant cannot be said to have borne any incidence of excise duty illegally levied and therefore, they have no right to claim any refund. Impugned order passed by Commissioner (Appeals) is sustained – Appeal dismissed [Read less]

Service Tax – Sections 73A and 78 of Finance Act, 1994 – Providing of services – Demand of tax – Department issued show cause notice to Appellant, proposing demand of Service Tax under categories of Mandap Keeper Service and Renting of Immovable Property Service – Adjudicating Authority confirmed demand as proposed in show cause notice along with interest and imposed penalty under Section 78 of the Act – Whether Appellant is liable to pay service tax on Renting of Immovable Property and Mandap Keeper Service – HELD – Issue is no longer res-integra, as it has been held by Tribunal in case of Commissioner of ... [Read more]

Service Tax – Sections 73A and 78 of Finance Act, 1994 – Providing of services – Demand of tax – Department issued show cause notice to Appellant, proposing demand of Service Tax under categories of Mandap Keeper Service and Renting of Immovable Property Service – Adjudicating Authority confirmed demand as proposed in show cause notice along with interest and imposed penalty under Section 78 of the Act – Whether Appellant is liable to pay service tax on Renting of Immovable Property and Mandap Keeper Service – HELD – Issue is no longer res-integra, as it has been held by Tribunal in case of Commissioner of Namakkal Municipality Vs. Commissioner of Central Excise, that applicability of service tax on Renting of Immovable Property Services and other services needs to be re-determined by Adjudicating Authority on basis of observations and judgments rendered by jurisdictional High Court. In view of above, matter needs to be remanded back for reconsideration of either Renting of Immovable Property and Mandap Keeper Service are liable to be taxed or not under provisions of Act. Furthermore, there are some factual discrepancies about collection of service tax by Appellant from its customers. Although, no notice has been issued under Section 73A of the Act and Department has failed to invoke said provision for recovery of tax, interest of justice will be met, if said aspect is also duly considered by Adjudicating Authority while determining either Appellant is liable to pay service tax or not. Impugned Order-in-Original passed by Commissioner is set aside – Appeal allowed [Read less]

Customs – Import of squid liver powder – Classification – Appellant imported Squid Liver Powder by classifying same under Customs Tariff Heading (CTH) 2301 2011 – Department reclassified imported product under CTH 2309 9090 and issued show cause notice to Appellant by proposing demand of differential duty – Adjudicating authority confirmed demand of differential duty – Commissioner (Appeals) confirmed order of Adjudicating authority – Whether Squid Liver Powder merits classification under CTH 2301 2011 as claimed by Appellant – HELD – Issue of classification of impugned imported product, viz. Squid Liver ... [Read more]

Customs – Import of squid liver powder – Classification – Appellant imported Squid Liver Powder by classifying same under Customs Tariff Heading (CTH) 2301 2011 – Department reclassified imported product under CTH 2309 9090 and issued show cause notice to Appellant by proposing demand of differential duty – Adjudicating authority confirmed demand of differential duty – Commissioner (Appeals) confirmed order of Adjudicating authority – Whether Squid Liver Powder merits classification under CTH 2301 2011 as claimed by Appellant – HELD – Issue of classification of impugned imported product, viz. Squid Liver Powder, has been decided by this Tribunal in favour of Revenue in Appellant’s own case vide Final Order. Once a matter has been fully argued and decided, legal issue should not be reconsidered through an appeal filed before same authority on an identical matter. Aggrieved person cannot directly or indirectly re-argue the case on merits through an appeal on an identical issue before same authority. As per tenets of judicial precedent, earlier Final Order is followed – Appeal dismissed [Read less]

Madhya Pradesh VAT Act - Classification of felt components - Appellants are manufacturers of felt components that are used as machinery parts in industries. The appellants claimed that the felt components should be classified as 'fabric' under Schedule II Part II and taxed at a lower rate of 4-5%, while the tax authorities classified them as 'machinery parts' under Schedule II Part IV and levied a higher tax rate of 12.5-13% - Whether the felt components should be classified as 'fabric' under Schedule II Part II or as 'machinery parts' under Schedule II Part IV of the MPVAT Act – HELD - The felt components are primarily ... [Read more]

Madhya Pradesh VAT Act - Classification of felt components - Appellants are manufacturers of felt components that are used as machinery parts in industries. The appellants claimed that the felt components should be classified as 'fabric' under Schedule II Part II and taxed at a lower rate of 4-5%, while the tax authorities classified them as 'machinery parts' under Schedule II Part IV and levied a higher tax rate of 12.5-13% - Whether the felt components should be classified as 'fabric' under Schedule II Part II or as 'machinery parts' under Schedule II Part IV of the MPVAT Act – HELD - The felt components are primarily used as machinery parts in industries and not as fabrics for manufacturing items like towels, bed covers, etc. The 'common parlance/popular test' and the use of the product in the industry to determinative to its classification. The judgment relied upon by the appellants in the case of Porritts & Spencer distinguishable on the grounds that the specific entries in the MP VAT Act are different from the generalized entries in the Punjab General Sales Tax Act considered in that case. Accordingly, felt components are rightly classified as 'machinery parts' under the residuary entry in Schedule II Part IV and are liable to be taxed at the higher rate of 12.5-13% - The orders of the tax authorities classifying the felt components as 'machinery parts' were upheld and the appeals filed by the appellants are dismissed [Read less]

Customs – Section 17(5) of Customs Act, 1962 – Import of goods – Reassessment of duty – Filing of appeal – Rejection on ground of time bar – Appellant imported Plastic granules under Advance Authorization by availing benefit of Notification No.18/2015-Cus granting duty exemption subject to pre-import condition – Department raised dispute on non-compliance of pre-import condition – Appellant paid duty along with interest under protest and challenged order of reassessment before Commissioner (Appeals) – Commissioner (Appeals) dismissed appeal filed by Appellant as time barred – Whether Commissioner (Appea... [Read more]

Customs – Section 17(5) of Customs Act, 1962 – Import of goods – Reassessment of duty – Filing of appeal – Rejection on ground of time bar – Appellant imported Plastic granules under Advance Authorization by availing benefit of Notification No.18/2015-Cus granting duty exemption subject to pre-import condition – Department raised dispute on non-compliance of pre-import condition – Appellant paid duty along with interest under protest and challenged order of reassessment before Commissioner (Appeals) – Commissioner (Appeals) dismissed appeal filed by Appellant as time barred – Whether Commissioner (Appeals) is justified in holding that appeal was not filed in time – HELD – Appellant had done self assessment at Nil rate of duty, which was not found acceptable to department and reassessment was resorted to by department. Perusal of Section 17(5) of the Act make it clear that there is a clear requirement of passing a speaking order, in case, reassessment is resorted to by department. CBIC Instructions No.7/2018-Customs also directs that when reassessment is done and reassessment is not confirmed in writing by importer or exporter, then speaking order has to be mandatorily given to importer or exporter within stipulated time of 15 days. In instant case, reassessment was done by department, which led to payment of duty as demanded by department, but under protest. Department has not been able to show that reassessment done by proper officer was agreed to in writing by importer without protest. Rather to the contrary, party lodged their protest and asking for issue of speaking order. In absence of any evidence to contrary being brought by department, date on which a speaking order was received by Appellant shall be construed as date of receipt of communication of order and therefore, appeal was filed in time. Commissioner (Appeals) was not correct in holding that appeal was not filed in time. Matter is remanded to Commissioner (Appeals) to hear appeal on merits and to give a reasoned speaking order – Appeal allowed [Read less]

Service Tax – Section 78 of Finance Act, 1994 – Invoking of extended period of limitation – Demand of tax – Department issued show cause notice to Appellant, proposing demand of Service Tax on advance received for providing Real Estate Agent service, by invoking extended period of limitation – Adjudicating authority confirmed demand as proposed in show cause notice along with interest and imposed penalty under Section 78 of the Act – Commissioner (Appeals) affirmed order passed by Adjudicating authority – Whether invocation of extended period of limitation is justified in facts and circumstances of case – H... [Read more]

Service Tax – Section 78 of Finance Act, 1994 – Invoking of extended period of limitation – Demand of tax – Department issued show cause notice to Appellant, proposing demand of Service Tax on advance received for providing Real Estate Agent service, by invoking extended period of limitation – Adjudicating authority confirmed demand as proposed in show cause notice along with interest and imposed penalty under Section 78 of the Act – Commissioner (Appeals) affirmed order passed by Adjudicating authority – Whether invocation of extended period of limitation is justified in facts and circumstances of case – HELD – Appellant has not disputed the tax liability, but claimed that liability can be netted of against cenvat credit taken by them in their CENVAT register. Fact of netting of liability against available CENVAT Credit was never disclosed by Appellant to revenue authorities. Appellant had positively acted to suppress the facts in respect of CENVAT Credit and its utilization for netting of their tax liability from revenue authorities. Act of suppression with intention to evade payment of service tax is established beyond iota of doubt, hence, extended period of limitation has been rightly invoked for making this demand. As extended period of limitation has been rightly invoked in facts and circumstances of case, penalty imposed under Section 78 of the Act cannot be faulted with. Impugned order passed by Commissioner (Appeals) is sustained – Appeal dismissed [Read less]

Service Tax – Providing of catering services – Entitlement of exemption – Appellant is engaged in providing various taxable services – Department issued show cause notice to Appellant, proposing demand of Service Tax under category of Outdoor Catering Services – Adjudicating authority confirmed demand as proposed in show cause notice – Commissioner (Appeals) affirmed order passed by Adjudicating authority – Whether catering services provided by Appellant to school with hostel facility are covered under exemption from payment of service tax given at serial no.9 of Notification No.25/2012-ST – HELD – Activi... [Read more]

Service Tax – Providing of catering services – Entitlement of exemption – Appellant is engaged in providing various taxable services – Department issued show cause notice to Appellant, proposing demand of Service Tax under category of Outdoor Catering Services – Adjudicating authority confirmed demand as proposed in show cause notice – Commissioner (Appeals) affirmed order passed by Adjudicating authority – Whether catering services provided by Appellant to school with hostel facility are covered under exemption from payment of service tax given at serial no.9 of Notification No.25/2012-ST – HELD – Activity of rendering catering services was clarified by Department itself to be the part of Auxiliary Educational Services. Catering services provided to educational institutions were specifically exempted vide amendment in serial no.9 of Mega Exemption Notification No.25/2012-ST. Benefit of exemption under Mega exemption Notification was available to Appellant for entire period in dispute. Findings in impugned order that benefit of exemption provided under Mega Exemption Notification was not available to Appellant are factually incorrect. Appellant was not liable to pay any service tax while rendering catering services to educational institutes. Order under challenge is set aside – Appeal allowed [Read less]

Service Tax – Sections 65B(44) and 73(1) of Finance Act, 1994 – Providing of cable operator services – Tax liability – Appellant is engaged in providing Cable Operator Services – Department issued show cause notice to Appellant, proposing demand of Service Tax, by invoking extended period under proviso to Section 73(1) of the Act – Adjudicating authority confirmed demand as proposed in show cause notice – Commissioner (Appeals) upheld order passed by Adjudicating authority – Whether Appellant is liable to pay service tax on subscription amount received from subscribers for providing cable operators service ... [Read more]

Service Tax – Sections 65B(44) and 73(1) of Finance Act, 1994 – Providing of cable operator services – Tax liability – Appellant is engaged in providing Cable Operator Services – Department issued show cause notice to Appellant, proposing demand of Service Tax, by invoking extended period under proviso to Section 73(1) of the Act – Adjudicating authority confirmed demand as proposed in show cause notice – Commissioner (Appeals) upheld order passed by Adjudicating authority – Whether Appellant is liable to pay service tax on subscription amount received from subscribers for providing cable operators service – HELD – Services provided by cable operators are taxable within scope of definition of 'service' and 'taxable service' given under Section 65B(44) of the Act. Admittedly, Appellant is engaged in providing cable operator service to subscribers on basis of signals received from multi-system operator. Appellant has received subscriptions from subscribers for providing said services. Appellant is liable to pay service tax on said subscription amount. Since there is no suppression on part of Appellant, extended period of limitation would not be available for making demand, hence, demand should be restricted to normal period of limitation. Matter is remanded back to Original Authority for re-quantification of demand for normal period – Appeals partly allowed [Read less]

Service Tax – Sale and purchase of cargo space - Demand of service tax on the freight charges reimbursed from customers charged over and above the freight amount payable to the airline companies – Tribunal held that mere sale and purchase of cargo space and earning profit in the process is not a taxable activity – Revenue in appeal against Tribunal Order – SC HELD – There is no good reason to interfere with the reasoning of the Tribunal – The Revenue appeals are dismissed

Customs – Section 110A of Customs Act, 1962 – Provisional release of imported goods – Imposition of conditions – Appellant imported Tarpaulin fabrics from China – DRI officers received specific information that multiple type of fabrics are imported in guise of Tarpaulin by Appellant – Officers seized imported goods under reasonable belief that goods were mis-declared – At request of Appellant, Commissioner agreed to allow provisional release of goods subject to fulfillment of certain conditions – Whether conditions imposed by Commissioner for provisional release of imported goods are justified or not – HE... [Read more]

Customs – Section 110A of Customs Act, 1962 – Provisional release of imported goods – Imposition of conditions – Appellant imported Tarpaulin fabrics from China – DRI officers received specific information that multiple type of fabrics are imported in guise of Tarpaulin by Appellant – Officers seized imported goods under reasonable belief that goods were mis-declared – At request of Appellant, Commissioner agreed to allow provisional release of goods subject to fulfillment of certain conditions – Whether conditions imposed by Commissioner for provisional release of imported goods are justified or not – HELD – Appellant has pleaded that they are aggrieved by onerous conditions imposed, as it will cripple their business, because there is demand of imported goods. Section 110A of the Act requires Adjudicating Authority to impose conditions for release of goods and taking bond in proper form with security and conditions as Adjudicating Authority may require. Condition of submission of bond equivalent to value of imported goods is justified – Second condition requires submission of bank guarantee with direction to bank to keep bank guarantee alive. Obviously, this is an onerous condition, as quantum of bank guarantee includes differential duty + 10% of such differential duty as fine and penalty for provisional release of goods. Duty figures as have been arrived at by Commissioner can only be worked out, if department’s case is taken to be already proved on classification as well as on valuation. Furnishing of bank guarantee of 10% of value of goods sought for re-export shall be considered sufficient, as there will be no duty involved. Second condition is accordingly modified – Appeal partly allowed [Read less]

Customs – Refund of Additional Customs Duty (CVD) paid under protest, Exemption from payment of CVD, Time Limit for filing Refund claim – Appellant imported readymade garments through various ports and claimed exemption from the payment of additional customs duty (CVD) under the Customs Tariff Act, 1975 read with Notification No. 30/2004-C.E. dated 09.07.2004 - Since the Customs Authorities were unwilling to clear the consignments without payment of CVD, the appellant paid the duty 'under protest' and filed refund claims after the dispute was resolved in their favour by the Supreme Court - Whether the refund claims fil... [Read more]

Customs – Refund of Additional Customs Duty (CVD) paid under protest, Exemption from payment of CVD, Time Limit for filing Refund claim – Appellant imported readymade garments through various ports and claimed exemption from the payment of additional customs duty (CVD) under the Customs Tariff Act, 1975 read with Notification No. 30/2004-C.E. dated 09.07.2004 - Since the Customs Authorities were unwilling to clear the consignments without payment of CVD, the appellant paid the duty 'under protest' and filed refund claims after the dispute was resolved in their favour by the Supreme Court - Whether the refund claims filed by the appellant are time-barred - HELD - When the duty is paid under protest, the question of time bar does not arise. The appellant had made payments of CVD under protest from September 2004 onwards across different ports, as evidenced by the protest letter and the subsequent diligent pursuit of the matter right up to the Hon'ble Supreme Court - When duty payments are made under protest, the assessments are provisional, and it is not necessary to separately challenge the assessment orders to obtain refund. The refund claims filed by the appellant within one year from the date of the Supreme Court judgment which resolved the dispute in their favour, cannot be rejected as time-barred - The rejection of the refund claim by the lower authorities on the ground of ‘time barred’, is not sustainable and set aside – The appeal is allowed - Whether the refund claims filed by the appellant are maintainable without challenging the assessment of the Bills of Entry - HELD - When the duty is paid under protest, the protest itself tantamounts to a challenge to the assessment, and further challenging/modification of the assessment for the purpose of refund is not warranted. Relying on various decisions, the Tribunal held that the refund claims cannot be rejected on the ground that the assessment of the Bills of Entry was not challenged by the appellant - Whether the refund claims can be rejected on the ground of non-availability of original TR-6 challans - HELD - The non-availability of original TR-6 challans is a hyper-technical objection, and refund cannot be denied on such ground. The Tribunal relied on the decision in M/s Shree Simandar Enterprises to hold that even if the original TR-6 challans are not available, the assessee cannot be denied refund when the payment of duty can be verified from the Department's records - Whether the appellant has passed on the burden of CVD to the consumers - HELD - The appellant had submitted a Chartered Accountant Certificate stating that the amount of CVD paid under protest had been shown under "loans and advances", was not inbuilt in the sale price of the garments, and the burden thereof had not been passed on to anyone. The authorities below had wrongly ignored this certificate and arbitrarily assumed that the appellant had passed on the incidence of CVD. The Chartered Accountant's Certificate, being a professional opinion, cannot be ignored, and the issue of 'unjust enrichment' is not applicable in this case. [Read less]

GST - Confiscation of Goods; Disputed question of fact – Respondents confiscated gold being transported by the petitioner alleging it was 'bullion' (HSN 7108), for which the accompanying delivery challan, which described the goods as 'melted old gold' (HSN 7113), was invalid - Petitioner contended that the goods were indeed 'melted old gold' and seeking direction for the seized gold to be examined by an approved hallmarking agency - Whether the High Court, in its writ jurisdiction, should interfere with a confiscation order passed by a statutory authority when the challenge is based on a disputed question of fact and an ... [Read more]

GST - Confiscation of Goods; Disputed question of fact – Respondents confiscated gold being transported by the petitioner alleging it was 'bullion' (HSN 7108), for which the accompanying delivery challan, which described the goods as 'melted old gold' (HSN 7113), was invalid - Petitioner contended that the goods were indeed 'melted old gold' and seeking direction for the seized gold to be examined by an approved hallmarking agency - Whether the High Court, in its writ jurisdiction, should interfere with a confiscation order passed by a statutory authority when the challenge is based on a disputed question of fact and an efficacious alternative remedy of a statutory appeal under Section 107 of the CGST Act is available - HELD - The core dispute is regarding the nature of the seized goods i.e. whether it is 'bullion' or 'melted old gold', which is fundamentally a question of fact. Adjudicating such disputed questions of fact is beyond the scope of the High Court's writ jurisdiction - The proper course to be adopted by the petitioner is to file an appeal before the appellate authority challenging the impugned order. In case such an appeal is submitted, it shall be open for the petitioner to submit appropriate application, for verifying the gold seized from the petitioner and ordered to be confiscated, through the approved and competent hallmarking agency or any other experts in this regard, to determine the question as to whether the same is bullion or melted old gold. In case such an application is submitted, the appellate authority shall ensure that the assistance of such experts is obtained to resolve the issue involved in this case – The writ petition is disposed of [Read less]

Customs – Refund of Duty paid under protest; Limitation Period - After a relevant legal issue was settled in favour of assessees by the Supreme Court in the M/s. SRF Ltd. case, the Respondent-assessee filed a refund claim - The refund was sanctioned by the original authority and upheld by the Commissioner (Appeals) and the CESTAT – Revenue appeal contending that the refund claim is time-barred under Section 27 of the Customs Act, 1962, and was not maintainable without a formal challenge to the assessment orders - Whether a refund claim for customs duty paid "under protest" is subject to the limitation period prescribed... [Read more]

Customs – Refund of Duty paid under protest; Limitation Period - After a relevant legal issue was settled in favour of assessees by the Supreme Court in the M/s. SRF Ltd. case, the Respondent-assessee filed a refund claim - The refund was sanctioned by the original authority and upheld by the Commissioner (Appeals) and the CESTAT – Revenue appeal contending that the refund claim is time-barred under Section 27 of the Customs Act, 1962, and was not maintainable without a formal challenge to the assessment orders - Whether a refund claim for customs duty paid "under protest" is subject to the limitation period prescribed under Section 27 of the Customs Act, 1962, and whether such a claim is maintainable without a separate modification or appeal of the assessment order – HELD - When duty is paid under protest, the limitation period prescribed under Section 27 for filing a refund claim is not applicable. The very act of paying duty "under protest" constitutes a challenge to the assessment, thereby making the principle laid down in the ITC Ltd. case inapplicable. A protest, once lodged, remains in effect until it is disposed of by an appealable order from the concerned officer - The marking of protest itself serves as information to the department that the payment is not voluntary and the assessment is not final. This obviates the need for a separate reassessment or modification of the bills of entry for the purpose of claiming a refund. The protest itself keeps the issue alive, and therefore, the claim cannot be rejected on the grounds of being time-barred - The appeal filed by Revenue is dismissed [Read less]

Service Tax – Rule 5 of Cenvat Credit Rules, 2004 – Unutilized cenvat credit – Rejection of refund claim – Appellant filed refund claim under Rule 5 of the Rules as per Notification No.27/2012, claiming refund of unutilized Cenvat Credit availed on Service Tax paid on input services – Adjudicating Authority rejected refund claim filed by Appellant – Commissioner (Appeals) upheld order passed by Adjudicating Authority – Whether rejection of refund claim filed by Appellant under Rule 5 of the Rules is sustainable – HELD – Appellant placed reliance upon various decisions to show that Appellant was eligible f... [Read more]

Service Tax – Rule 5 of Cenvat Credit Rules, 2004 – Unutilized cenvat credit – Rejection of refund claim – Appellant filed refund claim under Rule 5 of the Rules as per Notification No.27/2012, claiming refund of unutilized Cenvat Credit availed on Service Tax paid on input services – Adjudicating Authority rejected refund claim filed by Appellant – Commissioner (Appeals) upheld order passed by Adjudicating Authority – Whether rejection of refund claim filed by Appellant under Rule 5 of the Rules is sustainable – HELD – Appellant placed reliance upon various decisions to show that Appellant was eligible for refund claim of unutilized CENVAT Credit for export of goods. It is a settled legal position that, for availment of Cenvat Credit or refund under Rule 5 of the Rules, registration is not mandatory. Cenvat Credit or refund thereof cannot be denied merely because claimant has not taken registration of Service Tax/Central Excise. It is also settled legal position that export of exempted goods without bond does not bar refund of input service tax. Denial of refund claim on ground that Appellant did not possess registration and goods exported are exempted, is not sustainable. Impugned order passed by Commissioner (Appeals) is set aside. Case is remanded to Adjudicating Authority for reprocessing the refund only for limited purpose of verification of documents – Appeal allowed [Read less]

Assam VAT Act, 2003 - Section 2(44) – Sale price, Includability of handling/logistic charges – Levy of VAT on the handling/logistic charges charged by the petitioner from its customers for various post-sale services. The petitioner contended that these charges were for services rendered after the sale of the vehicles was complete and therefore, did not form part of the "sale price" under the Assam VAT Act, and were instead taxable under the Finance Act, 1994 as service tax, which the petitioner had already paid - Whether the handling/logistic charges charged by the petitioner from its customers for post-sale services s... [Read more]

Assam VAT Act, 2003 - Section 2(44) – Sale price, Includability of handling/logistic charges – Levy of VAT on the handling/logistic charges charged by the petitioner from its customers for various post-sale services. The petitioner contended that these charges were for services rendered after the sale of the vehicles was complete and therefore, did not form part of the "sale price" under the Assam VAT Act, and were instead taxable under the Finance Act, 1994 as service tax, which the petitioner had already paid - Whether the handling/logistic charges charged by the petitioner from its customers for post-sale services should be included in the "sale price" under the AVAT Act, 2003 and subjected to VAT, or whether they are taxable only under the Finance Act, 1994 as service tax - HELD - The transfer of the property in the goods in pursuance of the sale contract, took place against the payment of the price of the vehicle and the delivery of the goods was affected by the petitioner to its customer. The services rendered by the petitioner which is charged under the heading “handling/logistic charges” also includes services rendered by the petitioner at the specific request of the customer after the vehicle was transferred to the customer and it had become the property of the buyer - The handling/logistic charges charged by the petitioner for post-sale services rendered to the customers do not fall within the extended meaning of "sale price" under Section 2(44) of the Assam VAT Act, 2003, as they are not sums charged for anything done by the dealer in respect of the goods at the time of or before the delivery of the goods - Since the petitioner had already paid service tax on these charges under the Finance Act, 1994, the State cannot impose VAT on the same transaction under the Assam VAT Act - The handling/logistic charges would not fall within the extended meaning of the expression “sale price” - the impugned assessment orders and notices of demand are set aside – The writ petitions are allowed [Read less]

Customs - Confiscation of prohibited goods, Mis-declaration, High Sea Sale – Respondent-EOU imported 100% Polyester Dyed Piled Fabrics claiming exemption under Notification No. 53/1997-CUS. The Department alleged that the goods were actually scarves and not dupattas as declared, and that Respondents had acquired the goods locally and sold them in the Domestic Tariff Area (DTA), misusing the EOU status - Whether the goods were liable for confiscation under Section 111(d) of the Customs Act, 1962 on the ground that they were prohibited goods; and whether the goods became prohibited goods in terms of Section 111(a) of the C... [Read more]

Customs - Confiscation of prohibited goods, Mis-declaration, High Sea Sale – Respondent-EOU imported 100% Polyester Dyed Piled Fabrics claiming exemption under Notification No. 53/1997-CUS. The Department alleged that the goods were actually scarves and not dupattas as declared, and that Respondents had acquired the goods locally and sold them in the Domestic Tariff Area (DTA), misusing the EOU status - Whether the goods were liable for confiscation under Section 111(d) of the Customs Act, 1962 on the ground that they were prohibited goods; and whether the goods became prohibited goods in terms of Section 111(a) of the Customs Act, 1962 when they were sought to be cleared claiming exemption under Notification No. 53/1997-Cus – HELD - The goods in question were not prohibited goods under the Customs Act or any other law. The reasoning given by the adjudicating authority for considering the goods as prohibited goods under Section 111(d) of the Act, read with Rules 11, 14(1) and 14(2) of the Foreign Trade (Regulations) Rules, 1993, cannot be accepted as the said goods were not prohibited goods. The violation of the Rules would not make the goods prohibited under Section 111(d) of the Act - The Tribunal correctly held that since the goods were not prohibited under the Customs Act or any other law, they could not be confiscated under Section 111(d) of the Act - The mere fact that the goods were sought to be cleared claiming exemption under Notification No. 53/1997-Cus did not make them prohibited goods in terms of Section 111(a) of the Customs Act, 1962. The Tribunal was justified in its finding that the goods did not become prohibited goods - The Tribunal's decision to set aside the order of confiscation and imposition of penalty is upheld. The appeals filed by the Revenue are dismissed [Read less]

GST – Disallowance of ITC claimed in subsequent year - Whether the Adjudication Order disallowing the ITC claimed by the petitioner for the tax periods from April 2019 to March 2020 is sustainable – HELD - In such circumstances where the ITC was claimed in a subsequent year, the Annual returns would have to be taken into consideration and the reconciliation would have to be done. The Court necessary details and records were available with the Respondents, and the reconciliation of the accounts could have been done irrespective of whether the petitioner had replied to the show-cause notice or not. This reconciliation wo... [Read more]

GST – Disallowance of ITC claimed in subsequent year - Whether the Adjudication Order disallowing the ITC claimed by the petitioner for the tax periods from April 2019 to March 2020 is sustainable – HELD - In such circumstances where the ITC was claimed in a subsequent year, the Annual returns would have to be taken into consideration and the reconciliation would have to be done. The Court necessary details and records were available with the Respondents, and the reconciliation of the accounts could have been done irrespective of whether the petitioner had replied to the show-cause notice or not. This reconciliation would not require the reply of the petitioner and/or the explanation of the petitioner, since all the documents are available with the respondent - the Adjudication Order is quashed and matter is remitted to the respondent for fresh consideration – The writ petition is allowed [Read less]

Central Excise - Cenvat Credit of High Sea Sales – Appellant availed Cenvat credit on inputs imported through High sea sales transactions – Disallowance of Cenvat Credit on High sea sales transactions on the ground that the Bills of Entry were not in the appellant's name - Whether the Tribunal was correct in holding that the credit of duty paid on inputs purchased on High Sea sales basis is not allowable because the B/E were not in the appellant's name – HELD - The appellate authority and the Tribunal had examined the facts in detail and concluded that there was no real High Sea sale between the appellant and the ori... [Read more]

Central Excise - Cenvat Credit of High Sea Sales – Appellant availed Cenvat credit on inputs imported through High sea sales transactions – Disallowance of Cenvat Credit on High sea sales transactions on the ground that the Bills of Entry were not in the appellant's name - Whether the Tribunal was correct in holding that the credit of duty paid on inputs purchased on High Sea sales basis is not allowable because the B/E were not in the appellant's name – HELD - The appellate authority and the Tribunal had examined the facts in detail and concluded that there was no real High Sea sale between the appellant and the original importers. The Bills of Entry were in the names of the importers, who had also paid the customs duty and other charges. The appellant had not executed the required provisional duty bond, which should have been done if there was a genuine High Sea sale. The authorities found that the alleged High Sea sale agreements and documents were created as an afterthought by the appellant - Given these factual findings by the lower authorities, the Tribunal was justified in concluding that the credit of duty paid on inputs purchased through the High Sea sales route could not be allowed, as the basic requirements of a valid High Sea sale were not fulfilled – it cannot be said that the Tribunal has committed any error in holding that credit of duty paid on input purchase or High Sea Sale is not allowable for Bills of Entry filed in name of the original importer - The appeal is dismissed [Read less]