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Central Excise - SSI Exemption - In June 2014, the appellant surrendered their Central Excise registration and started availing the Small Scale Industry (SSI) exemption - Department alleged that since the appellant had paid duty for the months of April and May 2014, they were not eligible to avail the value-based SSI exemption for the clearances effected from June 2014 onwards, and that the goods cleared from June 2014 onwards were liable to Central Excise duty - Whether the extended period of limitation was applicable, and whether the non-payment of duty arose out of a bona fide belief and ignorance of law - HELD - The Lo... [Read more]

Central Excise - SSI Exemption - In June 2014, the appellant surrendered their Central Excise registration and started availing the Small Scale Industry (SSI) exemption - Department alleged that since the appellant had paid duty for the months of April and May 2014, they were not eligible to avail the value-based SSI exemption for the clearances effected from June 2014 onwards, and that the goods cleared from June 2014 onwards were liable to Central Excise duty - Whether the extended period of limitation was applicable, and whether the non-payment of duty arose out of a bona fide belief and ignorance of law - HELD - The Lower Authorities had already examined and allowed the appellant's plea for CENVAT credit and the benefit of cum-duty pricing. These contentions do not warrant further consideration as they had already been addressed - The period of dispute extended from June 2014 to March 2015, and the Show Cause Notice was issued on 09.06.2015, well within the normal period of limitation. The ignorance of law cannot be a valid ground to evade penalty or seek condonation of limitation – The appeal is partially allowed by reducing the penalty imposed, while upholding the duty demand and other findings of the Lower Authorities – The appeal is partly allowed [Read less]

The area of the State of J&K presently under de-facto control of Pakistan is part of territories of the State of J&K, therefore, the cross-LoC trade affected by the petitioners to PoK is an intra-State trade and not a zero-rated supply.

Central Excise – Clearance of goods to Thermal Power Project, Benefit of Mega Power Policy - Appellant cleared goods to M/s. BHEL, the main contractor under International Competitive Bidding (ICB) for Mega Power Projects, without payment of duty by availing exemption under Notification No. 06/2006-CE dated 01.03.2006 - Department alleged that the appellant's supplies to the "Combined Cycle Gas Turbine Mega Power Project for ONGC Tripura Power Company Ltd." did not qualify for the exemption as it was not a Thermal Power Plant of 1000 MW or more capacity, as required under the Notifications - Whether the appellant is eligi... [Read more]

Central Excise – Clearance of goods to Thermal Power Project, Benefit of Mega Power Policy - Appellant cleared goods to M/s. BHEL, the main contractor under International Competitive Bidding (ICB) for Mega Power Projects, without payment of duty by availing exemption under Notification No. 06/2006-CE dated 01.03.2006 - Department alleged that the appellant's supplies to the "Combined Cycle Gas Turbine Mega Power Project for ONGC Tripura Power Company Ltd." did not qualify for the exemption as it was not a Thermal Power Plant of 1000 MW or more capacity, as required under the Notifications - Whether the appellant is eligible to avail the exemption under Notification No. 06/2006-CE dated 01.03.2006 read with Notification No. 21/2002-Cus. dated 01.03.2002 in respect of the said power project – HELD - The Ministry of Power had issued a Revised Mega Power Project Policy vide Notification No. 118/2003-IPC dated 14.12.2009, which clearly states that a Thermal Power Plant of capacity 700 MW or more located in the specified states, which includes Tripura, shall be eligible for the benefit of the Mega Power Policy. The authorities below had ignored the spirit of this Notification and had only focused on the threshold capacity of 1000 MW mentioned in the earlier notifications, without considering the subsequent clarification by the Ministry of Power – Further, the appellant had provided a certificate from the Ministry of Power certifying the capacity of the project as 726 MW, which remained undisputed. When the capacity requirement is clearly satisfied and the Government has issued a subsequent circular clarifying the eligibility criteria, the authorities cannot sit in judgment over the character of such a certificate issued by a competent authority - the impugned order is set aside by granting the appellant the benefit of the exemption notification – The appeal is allowed [Read less]

Central Excise – Clearance of exempted Goods, Reversal of CENVAT Credit – Appellant is manufacturer of pressure cookers and also dealt with idli stands. For the period up to February 2011, idli stands were exempted from duty of central excise, and for the period thereafter, they were eligible to be cleared on payment of duty of 1%/2% subject to non-availment of credit on 'inputs' and 'input service' – Dept alleged that the appellant had availed CENVAT credit of services used in common for the exempted idli stands, contrary to the stipulation in rule 6 of CENVAT Credit Rules, 2004 - Whether the appellant is liable to ... [Read more]

Central Excise – Clearance of exempted Goods, Reversal of CENVAT Credit – Appellant is manufacturer of pressure cookers and also dealt with idli stands. For the period up to February 2011, idli stands were exempted from duty of central excise, and for the period thereafter, they were eligible to be cleared on payment of duty of 1%/2% subject to non-availment of credit on 'inputs' and 'input service' – Dept alleged that the appellant had availed CENVAT credit of services used in common for the exempted idli stands, contrary to the stipulation in rule 6 of CENVAT Credit Rules, 2004 - Whether the appellant is liable to restrict the exercise of options for reversal of CENVAT credit determined by the central excise authorities – HELD - The appellant could not be compelled to restrict the exercise of the options for reversal determined by the central excise authorities. The appellant had volunteered to discharge the liability in terms of rule 6(3) of CENVAT Credit Rules, 2004, and their submissions in this regard had not been considered by the original authority – Further, for the period up to February 2011, when the idli stands were not liable to duties of central excise, the appellant could not be considered as the 'manufacturer' of the exempted goods. The raw materials were supplied by the appellant to the 'contractor', and the manufacturing was not carried out by the appellant. In such circumstances, the relationship between the appellant and the 'contractor' could not be designated as 'job-worker', as the essential requirement of the contractual arrangement including the assumption of responsibility by the appellant for the discharge of duty liability was not present - the recovery ordered for the period up to February 2011 is set aside absolutely and entirely, and for the period thereafter, subject to the submissions of the appellant, is to be recomputed and other consequential detriments to be re-determined in terms of settled law and provisions of Rule 15 of CENVAT Credit Rules, 2004 – The appeal is disposed of [Read less]

Service Tax - Refund of accumulated Cenvat Credit – Rejection of refund on the ground that the refund claim was barred by limitation and the appellant had not deposited the Cenvat credit ledger - Whether the appellant is eligible for the refund of Cenvat credit on the exported goods and services – HELD - The appellant had submitted all the relevant documents in support of the refund claim and the genuineness of the documents was not doubted by the Department. In case of refund claims filed by the exporters, substantial benefit under the law should not be denied for procedural lapses. The Government's endeavor is to pro... [Read more]

Service Tax - Refund of accumulated Cenvat Credit – Rejection of refund on the ground that the refund claim was barred by limitation and the appellant had not deposited the Cenvat credit ledger - Whether the appellant is eligible for the refund of Cenvat credit on the exported goods and services – HELD - The appellant had submitted all the relevant documents in support of the refund claim and the genuineness of the documents was not doubted by the Department. In case of refund claims filed by the exporters, substantial benefit under the law should not be denied for procedural lapses. The Government's endeavor is to promote exports and provide a level playing field to the exporters in the international arena - The CBIC vide the Circular No.112/7/2009-ST dated 12.03.2009 emphasizes on the fact that technical or procedural lapses should not result in the denial of refund in case of exporter of goods and services. It is also on record that the Appellant had shown the balance of Cenvat credit in the ST-3 returns filed for the period April, 2017 to June, 2017, the same has not been carried forward in Form TRANS-1 under the GST Act - The appellant is eligible for the refund of Cenvat credit on the exported goods and services. The impugned order is set aside and the appeal is allowed [Read less]

GST - Uploading of Order on the GST Portal - Petitioner case that the order in original was uploaded under a different tab on the GST portal, due to which the petitioner could not keep track of it and missed the timeline for filing the appeal - Whether the appellate authority was justified in dismissing the petitioner's appeal on the ground of delay – HELD - Since the petitioner did not indicate the date on which it became aware of the order in original, the explanation furnished by the petitioner was not fully satisfactory. However, considering the fact that the Tribunal, before which the appellate order could be carrie... [Read more]

GST - Uploading of Order on the GST Portal - Petitioner case that the order in original was uploaded under a different tab on the GST portal, due to which the petitioner could not keep track of it and missed the timeline for filing the appeal - Whether the appellate authority was justified in dismissing the petitioner's appeal on the ground of delay – HELD - Since the petitioner did not indicate the date on which it became aware of the order in original, the explanation furnished by the petitioner was not fully satisfactory. However, considering the fact that the Tribunal, before which the appellate order could be carried in appeal, has not yet become functional, and that if the delay is not condoned, the petitioner would lose a forum, it would be proper to allow the petitioner one more opportunity to press its appeal on merits upon certain terms - The petitioner to pay a sum of Rs.10,000/- to the State Legal Services Authority and upon furnishing proof thereof to the appellate authority, the delay occasioned by the petitioner in preferring the appeal shall stand condoned, and the appellate authority shall proceed to hear the appeal on merits – The petition is disposed of [Read less]

Customs - Export valuation, Re-determination of export value, Confiscation of export goods – The consignment of readymade garments detained on suspicion of overvaluation - Dept found the goods were made of blended fabric instead of 100% cotton as declared, necessitating change in the drawback and ROSCTL schedules. The authorities confiscated the goods, imposed redemption fine, penalties under Sections 114(iii) and 114AA - Whether the re-determination of the FOB value by the authorities was valid – HELD - The re-determination of FOB value was not valid. The Customs authorities did not follow the procedure in Rule 8 of t... [Read more]

Customs - Export valuation, Re-determination of export value, Confiscation of export goods – The consignment of readymade garments detained on suspicion of overvaluation - Dept found the goods were made of blended fabric instead of 100% cotton as declared, necessitating change in the drawback and ROSCTL schedules. The authorities confiscated the goods, imposed redemption fine, penalties under Sections 114(iii) and 114AA - Whether the re-determination of the FOB value by the authorities was valid – HELD - The re-determination of FOB value was not valid. The Customs authorities did not follow the procedure in Rule 8 of the Customs Valuation Rules to first reject the declared transaction value before re-determining it under Rule 6. The remittance of full declared value by the overseas buyer as per the BRCs and confirmation by the supplier regarding the transaction value were sufficient evidence to accept the declared FOB value - The goods were liable to confiscation under Section 113(i), (ia) and (ja) as they did not match the description declared, leading to incorrect claim of drawback and ROSCTL. However, since the goods were already provisionally released on execution of a bond, they were not available for actual confiscation. The authorities should have imposed a fine in lieu of confiscation instead of confiscating the goods – The Revenue appeal is partly allowed by upholding the re-determination of drawback and ROSCTL based on the correct fabric composition, and restoring the penalty under Section 114(iii). The re-determination of FOB value, confiscation, redemption fine, and penalty under Section 114AA are set aside – Ordered accordingly [Read less]

Central Excise – Area-based exemption, Rejection of refund claims on account of Notification number error - Whether the refund claims which were otherwise eligible under Notification No. 20/2007-C.E. can be rejected solely on the ground that the wrong notification number (Notification No. 56/2003-C.E.) was mentioned in the refund application due to an inadvertent error – HELD - The Tribunal in the appellant's own case held that the inadvertent error in mentioning the wrong notification number would not disentitle the appellant from availing the benefit of the correct notification (Notification No. 20/2007-C.E.) which t... [Read more]

Central Excise – Area-based exemption, Rejection of refund claims on account of Notification number error - Whether the refund claims which were otherwise eligible under Notification No. 20/2007-C.E. can be rejected solely on the ground that the wrong notification number (Notification No. 56/2003-C.E.) was mentioned in the refund application due to an inadvertent error – HELD - The Tribunal in the appellant's own case held that the inadvertent error in mentioning the wrong notification number would not disentitle the appellant from availing the benefit of the correct notification (Notification No. 20/2007-C.E.) which the appellant was otherwise eligible for. The conditions and benefits under both the Notifications were identical, and the legislative intent was to continue the same benefit to units starting operations after 31.03.2007 - An applicant is not debarred from claiming a benefit under a particular notification even if it was not claimed initially. The adjudicating authority is directed to grant the refunds along with interest at the rate of 6% from the expiry of three months from the original date of filing of the refund claims, and to process the refund applications expeditiously – the appeal is allowed [Read less]

Customs – Import of parts, components and accessories of Trucks - Valuation, MRP-based CVD, Applicability of the Central Excise Act and the Standards of Weights and Measures Act/Legal Metrology Act – Rejection of valuation of imported goods under Section 3 of the Customs Tariff Act, 1975 read with Section 4 of the Central Excise Act, 1944 - Department proposed to redetermine the value under Section 3(2) of the Customs Tariff Act read with Section 4A of the Central Excise Act, which would attract the provisions of the Standards of Weights and Measures Act, 1976 and the Rules made thereunder - Whether the imported goods,... [Read more]

Customs – Import of parts, components and accessories of Trucks - Valuation, MRP-based CVD, Applicability of the Central Excise Act and the Standards of Weights and Measures Act/Legal Metrology Act – Rejection of valuation of imported goods under Section 3 of the Customs Tariff Act, 1975 read with Section 4 of the Central Excise Act, 1944 - Department proposed to redetermine the value under Section 3(2) of the Customs Tariff Act read with Section 4A of the Central Excise Act, which would attract the provisions of the Standards of Weights and Measures Act, 1976 and the Rules made thereunder - Whether the imported goods, being parts and components for heavy-duty trucks used in the mining and construction industry, were liable for valuation on the basis of MRP/RSP or on the basis of transaction value - HELD - As per the Supreme Court judgment in Jayanti Food Processing P Ltd. case, for the applicability of Section 4A of the Central Excise Act, there must be a requirement under the SWMA or any other law to declare the MRP on the package. The thrust of Section 4A is on the packages, and it is only where the goods are sold in packages that the section would be attracted. Hence the view canvassed by revenue that once the goods are specified under the notification, that itself will be a deciding factor, for such goods to be valued and assessed under Section 4A of the Act, cannot be sustained - The show cause notice and the impugned order had referred to the provisions of the Legal Metrology Act, 2009 and the Legal Metrology (Packaged Commodity) Rules, 2011, which were not in effect during the disputed period from January 2007 to August 2008. The law applicable at the time of the relevant facts must be applied, the invoking the provisions of a new law that was non-existent during the occurrence of the relevant facts is a fundamental defect that goes to the core of the matter and undermines the appellant's ability to present an effective defense - The impugned order is set aside and the appeal is allowed [Read less]

Customs - Export of motor cars, Amendment of Shipping Bills after completion of export – Appellant is engaged in the export of motor cars through Chennai/Ennore Port. In order to claim refund of service tax under Notification No. 52/2011-ST dated 30.12.2011, the appellant was required to make a declaration in the shipping bill of export. However, the appellant failed to make the declaration for certain exports - Appellant sought amendment of Shipping bills to declare their intention to claim the refund under the said notification – Rejection of amendment of shipping bills on the ground that the declaration was not made... [Read more]

Customs - Export of motor cars, Amendment of Shipping Bills after completion of export – Appellant is engaged in the export of motor cars through Chennai/Ennore Port. In order to claim refund of service tax under Notification No. 52/2011-ST dated 30.12.2011, the appellant was required to make a declaration in the shipping bill of export. However, the appellant failed to make the declaration for certain exports - Appellant sought amendment of Shipping bills to declare their intention to claim the refund under the said notification – Rejection of amendment of shipping bills on the ground that the declaration was not made at the time of filing the shipping bills and that the request for amendment cannot be considered after completion of export - Whether the customs authorities were justified in rejecting the appellant's request to amend the shipping bills to enable them to claim the refund of service tax under Notification No. 52/2011-ST – HELD - The exporter cannot be denied the benefit due to an inadvertent mistake in the shipping bills - The provisions of Section 149 of the Customs Act, 1962 provide for amendment of documents after they have been presented in the Customs house, if there is documentary evidence which was in existence at the time of clearance of the goods. In the present case, the appellant argued that Notification No. 52/2011-ST was in existence at the time of filing the shipping bills, and the Customs authorities did not detail any reasons for not allowing the amendment of the shipping bills in terms of the provisions of Section 149 - The policy of the Government is to not export taxes and to promote exports. The Customs authorities should have allowed the amendment of the shipping bills to enable the appellant to claim the refund of service tax under the notification – The impugned order is set aside and the appeal is allowed [Read less]

Customs - Reassessment of Bills of Entry, Time Limit for Reassessment, Refund Claim based on judgment in another person's case - Appellant cleared imported mobile handsets paying a higher Countervailing Duty (CVD) rate of 12%. After the Supreme Court judgment in the case of SRF Limited, the appellant sought reassessment of the Bills of Entry to avail the benefit of a concessional CVD rate of 1% under Notification No. 12/2012-CE (Sr. No. 263A) - Whether the appellant was entitled to the benefit of the concessional CVD rate of 1% under Notification No. 12/2012-CE, even though it had not attempted to avail the benefit at the ... [Read more]

Customs - Reassessment of Bills of Entry, Time Limit for Reassessment, Refund Claim based on judgment in another person's case - Appellant cleared imported mobile handsets paying a higher Countervailing Duty (CVD) rate of 12%. After the Supreme Court judgment in the case of SRF Limited, the appellant sought reassessment of the Bills of Entry to avail the benefit of a concessional CVD rate of 1% under Notification No. 12/2012-CE (Sr. No. 263A) - Whether the appellant was entitled to the benefit of the concessional CVD rate of 1% under Notification No. 12/2012-CE, even though it had not attempted to avail the benefit at the time of filing the Bills of Entry and had paid the higher rate of 12% CVD – HELD - The appellant had not taken any steps to avail the benefit of the concessional CVD rate at the time of filing the Bills of Entry or clearing the goods. The appellant's application for reassessment was made after a lapse of more than four years, which was a much-belated attempt to seek the benefit - The appellant cannot claim the benefit of the Supreme Court judgment in the case of SRF Limited, as it had not fought its own battle and succeeded in the proceedings. A person cannot make a refund claim on the basis of a decision of a Court or Tribunal rendered in the case of another person - The appellant is not entitled to the benefit of the concessional CVD rate or the reassessment of the Bills of Entry after the clearance of the goods for home consumption – The appeal is dismissed - Whether the appellant was entitled to seek reassessment of the Bills of Entry under Section 17 or Section 149 of the Customs Act, 1962, even though the goods had already been cleared for home consumption – HELD - Neither Section 17 nor Section 149 of the Customs Act, 1962, allows for reassessment or amendment of Bills of Entry after the goods have been cleared for home consumption, except on the basis of documentary evidence that was in existence at the time of clearance. The sole purpose of the appellant's request for reassessment was to enable it to get a refund as a consequence of the judgment in the SRF Limited case, which was not permissible under the law. [Read less]

Service Tax – Classification of Lorry freight charges, Supply of Tangible Goods Service - Appellant was supplying tanker lorries to M/s Bharat Petroleum Corporation Ltd (BPCL) and collecting lorry freight charges but had not paid service tax - Demand of service tax under 'Supply of Tangible Goods Service' along with interest and penalties - Whether the lorry freight charges are liable to be taxed under 'Supply of Tangible Goods Service' or 'Goods Transport Agency' – HELD – The appellant has not transferred the right of possession of its vehicles to BPCL but only transferred the control to operate the vehicles, which ... [Read more]

Service Tax – Classification of Lorry freight charges, Supply of Tangible Goods Service - Appellant was supplying tanker lorries to M/s Bharat Petroleum Corporation Ltd (BPCL) and collecting lorry freight charges but had not paid service tax - Demand of service tax under 'Supply of Tangible Goods Service' along with interest and penalties - Whether the lorry freight charges are liable to be taxed under 'Supply of Tangible Goods Service' or 'Goods Transport Agency' – HELD – The appellant has not transferred the right of possession of its vehicles to BPCL but only transferred the control to operate the vehicles, which BPCL uses as per its directions. Therefore, the service provided by the appellant is covered under 'Goods Transport Agency' and not 'Supply of Tangible Goods Service'. Further, since BPCL has paid the service tax under the Reverse Charge Mechanism, it would amount to double taxation if appellant is also made liable to pay service tax - the lorry freight charges is liable to taxed under GTA and not SOTG service – The appeal is allowed [Read less]

An entity completely controlled by the Government would be entitled to the exemption granted to 'Government Entities'. Merely because other 'Nirmithi Kendras' are paying tax, it would not mean that the petitioner would also become liable to pay tax.

GST - Filing of appeal – Payment of pre-deposit from Electronic Credit Ledger – Pending disposal of Special leave petitions on the issue, petitioner seeking permission of to make appropriate application before the concerned appellate authority for the purpose of revival of their appeals – HELD - If such applications are filed by the petitioners, the same shall be considered bearing in mind the fact that the Special Leave Petitions are pending before this Court and there is stay of the impugned order passed by the High Court - The issue of delay in filing the appeals and making pre-deposit amount shall not be raised e... [Read more]

GST - Filing of appeal – Payment of pre-deposit from Electronic Credit Ledger – Pending disposal of Special leave petitions on the issue, petitioner seeking permission of to make appropriate application before the concerned appellate authority for the purpose of revival of their appeals – HELD - If such applications are filed by the petitioners, the same shall be considered bearing in mind the fact that the Special Leave Petitions are pending before this Court and there is stay of the impugned order passed by the High Court - The issue of delay in filing the appeals and making pre-deposit amount shall not be raised either by the Department or by the appellate authority – Further, the petitioners are at liberty to make appropriate applications seeking relief with regard to refund of cash payment and refund of the excess amount which has been recovered – Ordered accordingly [Read less]

Customs – Section 114(iii) of Customs Act, 1962 – Imposition of penalty – Sustainability – Investigation conducted by Directorate of Revenue Intelligence (DRI) unearthed a network of exports allegedly effected in fictitious names, inflated export values, non-realisation of export proceeds and encashment of drawback proceeds through newly opened bank accounts – Since department could not trace purported exporters, Commissioner imposed penalties upon Appellants/Liner and its Employee under Section 114(iii) of the Act – Whether penalties imposed on Appellants under Section 114(iii) of the Act are sustainable – H... [Read more]

Customs – Section 114(iii) of Customs Act, 1962 – Imposition of penalty – Sustainability – Investigation conducted by Directorate of Revenue Intelligence (DRI) unearthed a network of exports allegedly effected in fictitious names, inflated export values, non-realisation of export proceeds and encashment of drawback proceeds through newly opened bank accounts – Since department could not trace purported exporters, Commissioner imposed penalties upon Appellants/Liner and its Employee under Section 114(iii) of the Act – Whether penalties imposed on Appellants under Section 114(iii) of the Act are sustainable – HELD – Shipping line or its employee cannot have direct knowledge of contents of goods covered in Shipping Bills, as they are in final leg of shipment. Container was stuffed and sealed in presence of Customs officials. Appellants have not been named as abettors or co-conspirators in any statements recorded by Investigation. Shipping Bills were assessed and Let Export Orders are accorded by Customs Officers. There is no evidence of Customs Supervision and this had contributed to fraud not being detected ab initio. Allegation of under valuation should have been detected by Customs officers at time of examination, which was not done so. There is total systemic failure on part of Examination Staff. There is no direct link/interface between Appellants and exporters. Appellants are not beneficiaries of fraudulent drawback. Material available on record does not establish requisite knowledge, intent or active facilitation by liner or its employee to justify imposition of penalty. Penalties imposed on all Appellants are set aside – Appeals allowed [Read less]

Customs – Section 3(5) of Customs Tariff Act, 1975 – Import of goods – Demand of duty – Entitlement of exemption – Appellant is engaged in manufacture of hydraulic excavators – Directorate of Revenue Intelligence initiated investigation into Appellant’s imports and found that Appellant was importing parts of excavators without paying Countervailing Duty (CVD) – After due process of law, Commissioner confirmed demand of CVD – Whether Appellant’s claim for SAD exemption under Notification No.29/2010-Cus is tenable – HELD – Appellant is not contesting the findings in impugned order in so far as it hold... [Read more]

Customs – Section 3(5) of Customs Tariff Act, 1975 – Import of goods – Demand of duty – Entitlement of exemption – Appellant is engaged in manufacture of hydraulic excavators – Directorate of Revenue Intelligence initiated investigation into Appellant’s imports and found that Appellant was importing parts of excavators without paying Countervailing Duty (CVD) – After due process of law, Commissioner confirmed demand of CVD – Whether Appellant’s claim for SAD exemption under Notification No.29/2010-Cus is tenable – HELD – Appellant is not contesting the findings in impugned order in so far as it holds that CVD was payable on MRP of imported goods. Appellant had paid duty demand as proposed in show cause notice. Appellant had confined its submissions to claim for SAD exemption under Notification No.29/2010-Cus. Adjudicating Authority had chosen to deny benefit of exemption on ground that Notification No.29/2010 is a conditional notification and only unconditional notification which was not claimed at time of clearance can be extended at a later period, i.e. after clearance of goods. Notification No.29/2010 extends benefit of exemption from additional duty of customs leviable under Section 3(5) of the Act to goods that answer the description specified therein. There are no conditions specified in said notification which are mandated to be complied with to avail benefit of notification. It is not open to Department to infer a condition that is not expressly stipulated. Even if an applicant does not claim benefit under a particular notification at initial stage, he is not debarred from claiming such benefit at a later stage. Appellant is entitled to benefit of Notification No.29/2010-Cus and findings of adjudicating authority in this regard are liable to be set aside – Appeal allowed [Read less]

Service Tax – Section 65(91a) of Finance Act, 1994 – Construction of residential complex – Demand of tax – Appellant is engaged in business of construction of residential complex – Department issued show cause notice to Appellant by proposing demand of Service Tax – Adjudicating Authority confirmed demand as proposed in show cause notice – Whether Commissioner has erred in confirming demand for period prior to date when service tax could not have been imposed on services rendered by builder before issue of completion certificates as asserted by Appellant – HELD – Appellant was in business of construction ... [Read more]

Service Tax – Section 65(91a) of Finance Act, 1994 – Construction of residential complex – Demand of tax – Appellant is engaged in business of construction of residential complex – Department issued show cause notice to Appellant by proposing demand of Service Tax – Adjudicating Authority confirmed demand as proposed in show cause notice – Whether Commissioner has erred in confirming demand for period prior to date when service tax could not have been imposed on services rendered by builder before issue of completion certificates as asserted by Appellant – HELD – Appellant was in business of construction of residential complex and constructed several residential complexes during period 2007-08 to 2011-12 and sold them to buyers. There is no dispute that Construction of Residential Complex Service or Works Contract Service is not taxable prior to 1-7-2010. Submission of Appellant deserves to be accepted because of explicit legal position and ratio of precedent decisions. Demand of service tax for services rendered before 1-7-2010 deserves to be set aside – Appeal allowed - Construction work – Entitlement of exemption – Whether Commissioner has erred in confirming demand on service charges received by Appellant for completion of flats under contracts entered into by individual flat owners – HELD – Appellant had built and sold semi-finished residential complexes to buyers under a sale deed and thereafter it entered into individual contracts to complete construction and finish flats as per requirements and desire of individual flat owners. All construction and completion work done as per contracts with individual buyers was fully exempt as per Section 65(91a) of the Act. Services rendered for construction of residential complex for personal use even after 1-7-2010 is not taxable. [Read less]

GST - Application for rectification of tax order, opportunity of hearing, violation of principles of natural justice - Whether the respondent CGST authority was required to afford an opportunity of hearing before rejecting the application for rectification - HELD – The principles of natural justice must be followed by the authority considering an application for rectification, even if the rectification does not adversely affect any person - The party who has filed an application for rectification must be heard, whether or not the case is made out for rectification. In the present case, the petitioner had alleged a mismat... [Read more]

GST - Application for rectification of tax order, opportunity of hearing, violation of principles of natural justice - Whether the respondent CGST authority was required to afford an opportunity of hearing before rejecting the application for rectification - HELD – The principles of natural justice must be followed by the authority considering an application for rectification, even if the rectification does not adversely affect any person - The party who has filed an application for rectification must be heard, whether or not the case is made out for rectification. In the present case, the petitioner had alleged a mismatch in the tax determined, which could have civil consequences for the petitioner in terms of the inability to calculate the exact amount required for the statutory pre-deposit to file an appeal. Therefore, the respondents should have afforded the petitioner an opportunity of hearing before rejecting the application for rectification - the impugned order is set aside and matter is remanded to the respondent authority to consider the petitioner's application afresh, after affording an opportunity of hearing to the petitioner - The writ petition is disposed of [Read less]

GST - Claim of Input Tax Credit missed in GSTR-3B – Petitioner missed to claim ITC pertaining to the months of May 2018, June 2018, and July 2018 while filing the monthly returns in Form GSTR-3B. The petitioner subsequently realized the mistake and claimed the ITC while filing the annual return in Form GSTR-9 for the year 2018-19 - Whether the Appellate Authority was justified in dismissing the petitioner's appeal and denying her the benefit of the ITC claimed in the annual return in Form GSTR-9 – HELD - The Appellate Authority failed to indicate why the petitioner's plea was "devoid of logic, facts & proper explanatio... [Read more]

GST - Claim of Input Tax Credit missed in GSTR-3B – Petitioner missed to claim ITC pertaining to the months of May 2018, June 2018, and July 2018 while filing the monthly returns in Form GSTR-3B. The petitioner subsequently realized the mistake and claimed the ITC while filing the annual return in Form GSTR-9 for the year 2018-19 - Whether the Appellate Authority was justified in dismissing the petitioner's appeal and denying her the benefit of the ITC claimed in the annual return in Form GSTR-9 – HELD - The Appellate Authority failed to indicate why the petitioner's plea was "devoid of logic, facts & proper explanation" and what were the necessary documents that were absent - The adjudicating authority should have considered the effect of the GSTR-9 return and the particulars furnished therein, rather than focusing solely on the GSTR-3B returns. The Appellate Authority did not explain why the ITC claimed in the GSTR-9 return could not be offset against the department's claim for CGST and SGST - the Appellate Authority's order is set aside and the matter is remanded for fresh consideration, allowing the petitioner to submit any further representation, clarification, or explanation – The petition is disposed of [Read less]

Customs – Section 28(4) of Customs Act, 1962 – Invoking of extended period of limitation – Demand of differential duty – Appellant imported compression hosiery vide 37 Bills of Entry by declaring them as Orthopaedic/Fracture appliances – Appellant classified imported goods under CTH 9021 1000 and paid Customs duty at exempted rates by claiming benefit as provided under Notification No.12/2012-Cus. – On completion of investigation, department issued show cause notice proposing re-classification of imported goods under CTH 6115 1000 and demand of differential duty by invoking extended period of limitation under S... [Read more]

Customs – Section 28(4) of Customs Act, 1962 – Invoking of extended period of limitation – Demand of differential duty – Appellant imported compression hosiery vide 37 Bills of Entry by declaring them as Orthopaedic/Fracture appliances – Appellant classified imported goods under CTH 9021 1000 and paid Customs duty at exempted rates by claiming benefit as provided under Notification No.12/2012-Cus. – On completion of investigation, department issued show cause notice proposing re-classification of imported goods under CTH 6115 1000 and demand of differential duty by invoking extended period of limitation under Section 28(4) of the Act – Principal Commissioner confirmed proposals made in show cause notice – Whether invocation of extended period of limitation under Section 28(4) of the Act to demand differential Customs duty is sustainable – HELD – Appellant had made declaration in Bills of Entry as available in manufacturer’s invoice/catalogue and goods had also been examined by proper officer and thereafter assessed to duty. Allegation of suppression of facts with intent to evade payment of Customs duty against Appellant is unsubstantiated. In such circumstances, extended period of limitation cannot be invoked to demand differential customs duty. Demand of differential duty of customs as confirmed in impugned order by invoking extended period of limitation is not sustainable and hence, same is set aside, however, Appellant is liable to pay duty for normal period of limitation. Demand raised in respect of 24 Bills of Entry is set aside on ground of limitation. In respect of remaining 13 Bills of Entry, demand had been raised within normal period of limitation. Differential customs duty confirmed in respect of 13 Bills of entry is upheld – Appeals disposed of [Read less]

GST - Classification of goods, Power of Customs Department to issue Show Cause Notice under the provisions of the IGST Act, 2017 - Customs Department issued SCN alleging that the petitioner had wrongly classified the products under HSN 40169340 instead of HSN 45041010 - Department sought to recover the IGST refund, drawback amounts, and export benefits obtained by the petitioner – HELD - The issue of classification may be examined by the appellate authorities, and the petitioner is permitted to file the appeal within 30 days, which shall not be dismissed on the ground of limitation – While the petitioner argued that th... [Read more]

GST - Classification of goods, Power of Customs Department to issue Show Cause Notice under the provisions of the IGST Act, 2017 - Customs Department issued SCN alleging that the petitioner had wrongly classified the products under HSN 40169340 instead of HSN 45041010 - Department sought to recover the IGST refund, drawback amounts, and export benefits obtained by the petitioner – HELD - The issue of classification may be examined by the appellate authorities, and the petitioner is permitted to file the appeal within 30 days, which shall not be dismissed on the ground of limitation – While the petitioner argued that the SCN could only be issued by the GST Department under the provisions of the IGST Act and the CGST Act, the respondent contended that under Section 2(2) of the Customs Act, 1962, the Customs Officers would also be 'proper officers' to raise demands of any tax in respect of exports - The Customs Department and the CGST Department to file a joint affidavit to clarify who would be the 'proper officer' in such a case – Matter to be listed List before the Court on 24th February, 2026 – Ordered accordingly [Read less]

GST - Assignment of leasehold rights, GST applicability - Whether the assignment of leasehold rights is taxable under the GST Act as a supply of service, or whether it is a transfer of immovable property not covered under the GST Act – HELD - The Court in Gujarat Chamber of Commerce, Industries & Ors. v. Union of India & Ors. has held that leasehold rights are in the nature of immovable property, and their transfer cannot be considered as a supply of service under the GST Act - This Court in various decisions have already decided that assignment by sale and transfer of lease hold right of the plot of land allotted by GID... [Read more]

GST - Assignment of leasehold rights, GST applicability - Whether the assignment of leasehold rights is taxable under the GST Act as a supply of service, or whether it is a transfer of immovable property not covered under the GST Act – HELD - The Court in Gujarat Chamber of Commerce, Industries & Ors. v. Union of India & Ors. has held that leasehold rights are in the nature of immovable property, and their transfer cannot be considered as a supply of service under the GST Act - This Court in various decisions have already decided that assignment by sale and transfer of lease hold right of the plot of land allotted by GIDC to the lessee in favour of third party – assignee for a consideration shall be assignment/sale/ transfer of benefits arising out of “immovable property” by the lessee – assignor. In such circumstances, the provision of Section 7(1)(a) of the CGST Act providing for scope of supply read with Clause 5(b) of Schedule 2 and Clause 5 of Schedule 3 of the Act would not be applicable to such transaction of assignment of lease hold rights and the same would not be subject to levy of GST as provided under Section 9 of the Act. The impugned order is quashed and set aside – The petition is allowed [Read less]

Customs – Seizure of betel nuts – Order of confiscation – Sustainability – Officers of DRI initiated an investigation against supply of Betel Nuts brought in 54 containers – Officers were of view that said goods were of foreign origin and smuggled into country without payment of appropriate duty of customs – DRI seized containers of Betel Nuts of foreign origin – On completion of investigation, department issued show cause notice to consignors/Appellants – Commissioner ordered for absolute confiscation of seized Betel Nuts – Whether impugned goods are liable for confiscation under provisions of the Act �... [Read more]

Customs – Seizure of betel nuts – Order of confiscation – Sustainability – Officers of DRI initiated an investigation against supply of Betel Nuts brought in 54 containers – Officers were of view that said goods were of foreign origin and smuggled into country without payment of appropriate duty of customs – DRI seized containers of Betel Nuts of foreign origin – On completion of investigation, department issued show cause notice to consignors/Appellants – Commissioner ordered for absolute confiscation of seized Betel Nuts – Whether impugned goods are liable for confiscation under provisions of the Act – HELD – Betel Nuts seized were confiscated on basis of Test Reports received from Arecanut Research & Development Foundation (ARDF). Except report of ARDF, there is no other evidence available on record to conclusively come to a finding that goods are smuggled in nature. ARDF Report, which had been relied upon by Department, had no evidentiary value and more particularly, said Institution does not have infrastructure to determine foreign origination or character of Betel Nuts. Test Report received from ARDF cannot be relied upon to conclude that goods seized were of foreign origin. Since department had failed to discharge its onus that goods were of smuggled in nature, impugned goods are not liable for confiscation under the Act. Order of confiscation of goods in question is set aside – Appeals allowed [Read less]

Custom – Eligibility to duty exemption to import of Crude Palm Kernel Oil edible grade under Notification No.12/2012-CUS, end-use requirement – Petitioner imported "crude palm kernel oil edible grade" under CTH 15132110, declaring it as Crude Palm Kernel Oil (Edible Grade) and paid NIL rate of duty under Notification No. 12/2012 and earlier Notification No. 21/200 – Dept issued a show cause notice alleging that the petitioners wrongfully availed the exemption as the imported oil was not fit for human consumption without further processing - Whether the petitioners are entitled to the benefit of exemption under Notifi... [Read more]

Custom – Eligibility to duty exemption to import of Crude Palm Kernel Oil edible grade under Notification No.12/2012-CUS, end-use requirement – Petitioner imported "crude palm kernel oil edible grade" under CTH 15132110, declaring it as Crude Palm Kernel Oil (Edible Grade) and paid NIL rate of duty under Notification No. 12/2012 and earlier Notification No. 21/200 – Dept issued a show cause notice alleging that the petitioners wrongfully availed the exemption as the imported oil was not fit for human consumption without further processing - Whether the petitioners are entitled to the benefit of exemption under Notification No. 12/2012 and earlier Notification No. 21/2002 for import of crude palm kernel oil edible grade, despite the fact that it requires further processing to make it fit for human consumption - HELD - The respondents could not have assumed the jurisdiction to issue the impugned show cause notice on the same subject matter considering the end-use of the goods imported by the petitioners which was struck down by the Court being part of the Circular No. 40/2001 - As per the Supplementary Note 1 to Chapter 15 of the Customs Tariff Act, "edible grade" refers to the standard of quality specified in Appendix B to the Prevention of Food Adulteration Rules, 1955 (now substituted by Regulation 2.2.1(21) of the Food Safety and Standards Regulations, 2011). The test reports submitted by the petitioners showed that the imported crude palm kernel oil conformed to the prescribed standards, and therefore, it qualified as "edible grade" irrespective of whether it required further processing to make it fit for human consumption - The benefit of duty exemption is admissible so long as oil imported is of edible purpose as the term “vegetable oils of edible grade” will cover the vegetable oils which are fit for human consumption at the time of import as also vegetable oils which are not fit for human consumption requiring further processing making fit for human consumption. Therefore, moot question to be considered is as to whether crude palm kernel oil imported by the petitioners was of edible grade or not and it is not material as to whether it requires no process or it requires further process to make it fit for human consumption - The respondents' contention that the exemption notification should be read with the end-use requirement was not tenable, as the exemption notification did not impose any such condition. The clarification issued vide Circular No. 29/97-Cus stated that the term "vegetable oils of edible grade" would cover oils that are fit for human consumption at the time of import, as well as those that require further processing to become fit for human consumption - The impugned SCNs are quashed and the petition is allowed [Read less]

U.P. VAT Act, 2008 - Penalty under Section 48(5) of UP VAT Act, Presumption-based Proceedings, Verification of Books of Accounts - The vehicle was intercepted and the goods were seized on the ground that the O.C. Stamp affixed on the tax invoice was being reused, and the invoice number was written by hand instead of being printed as per the rules. Penalty proceedings were initiated under Section 48(5) of the UPVAT Act - Whether the penalty proceedings under Section 48(5) of the UPVAT Act were legally justified based on mere presumption/suspicion, without any verification of the Revisionist's books of accounts – HELD - In... [Read more]

U.P. VAT Act, 2008 - Penalty under Section 48(5) of UP VAT Act, Presumption-based Proceedings, Verification of Books of Accounts - The vehicle was intercepted and the goods were seized on the ground that the O.C. Stamp affixed on the tax invoice was being reused, and the invoice number was written by hand instead of being printed as per the rules. Penalty proceedings were initiated under Section 48(5) of the UPVAT Act - Whether the penalty proceedings under Section 48(5) of the UPVAT Act were legally justified based on mere presumption/suspicion, without any verification of the Revisionist's books of accounts – HELD - In the case in hand, neither any provisional assessment proceedings were initiated, nor any survey or search was conducted at the business premises of the revisionist. Therefore, the inference drawn only on the basis of seizure of the goods that due entries were not made in the books of account cannot be justified - The penalty proceedings under Section 48(5) of the UPVAT Act cannot be initiated solely on the basis of presumption or suspicion. For the imposition of penalty, the authorities need to make a definite conclusion that there was an intention to evade tax and that the transaction in question was not duly recorded in the books of accounts - Mere suspicion or doubt cannot justify the initiation of penalty proceedings, and the authorities must have cogent material to prove that the entries were not recorded in the books of accounts - For initiation of proceedings, the authority has to come to a definite conclusion that there was an intention to evade payment of tax and therefore, the transaction in question has not been duly recorded in the books of account. In absence thereof, the proceedings initiated against the revisionist cannot be justified - the impugned orders are set aside and revision is allowed [Read less]

GST - Omission of Rule 96(10) of CGST Rules, 2017 w.e.f. October 8, 2024; Applicability of omission to pending proceedings – The petitioners were issued summons and show-cause notices under Rule 96(10). During the pendency of the petitions, Rule 96(10) was omitted from the CGST Rules w.e.f. October 8, 2024 - Whether the omission of Rule 96(10) of the CGST Rules would apply to the pending proceedings against the petitioners, including the summons, show-cause notices, and orders already passed – HELD - The 54th GST Council meeting had recommended the omission of Rule 96(10) of the CGST Rules, as it was leading to unneces... [Read more]

GST - Omission of Rule 96(10) of CGST Rules, 2017 w.e.f. October 8, 2024; Applicability of omission to pending proceedings – The petitioners were issued summons and show-cause notices under Rule 96(10). During the pendency of the petitions, Rule 96(10) was omitted from the CGST Rules w.e.f. October 8, 2024 - Whether the omission of Rule 96(10) of the CGST Rules would apply to the pending proceedings against the petitioners, including the summons, show-cause notices, and orders already passed – HELD - The 54th GST Council meeting had recommended the omission of Rule 96(10) of the CGST Rules, as it was leading to unnecessary complications without any intended benefit being served - The omission of Rule 96(10) without any saving clause would apply to all pending proceedings, including the summons, show-cause notices, and orders that had not attained finality. Unless the transactions were "past and closed," the benefit of the omission of Rule 96(10) should be extended to the petitioners - The summons, show-cause notices, and orders issued against the petitioners under Rule 96(10) of the CGST Rules are quashed - The authorities are directed to consider the petitioners' refund applications in light of the omission of Rule 96(10) and dispose of the same after providing the petitioners a fair opportunity to be heard – The writ petition is allowed [Read less]

Central Excise – 100% EOU, Export consignment returned - Appellant facilitated the export of various consignments, however, one consignment was returned to the appellant's factory - Department alleged that the goods were diverted into the local market without payment of excise and customs duties - Whether the duty demands and penalties imposed on the appellant under the Central Excise Act and the Customs Act are sustainable in law – HELD - The appellant had produced documentary evidence, including the cancellation request for the ARE-1 No. 003/EOU/WI/2009-10 and the acknowledgment by the Superintendent, to establish th... [Read more]

Central Excise – 100% EOU, Export consignment returned - Appellant facilitated the export of various consignments, however, one consignment was returned to the appellant's factory - Department alleged that the goods were diverted into the local market without payment of excise and customs duties - Whether the duty demands and penalties imposed on the appellant under the Central Excise Act and the Customs Act are sustainable in law – HELD - The appellant had produced documentary evidence, including the cancellation request for the ARE-1 No. 003/EOU/WI/2009-10 and the acknowledgment by the Superintendent, to establish that the goods were returned to the factory premises. The Department has failed to adequately investigate the matter and had simply relied on assumptions and presumptions without tangible evidence to prove that the goods were diverted into the local market - Once the export consignment, removed without payment of duty, is returned to the factory premises, the central excise duty cannot be demanded on such goods. Similarly, the Customs duty demand on the imported raw materials used in the manufacture of the exported goods is also not sustainable in law - The duty demands and penalties imposed under the Central Excise Act and the Customs Act are set aside and the appeal is allowed [Read less]

Central Excise – Larger Bench - Refund of Cenvat Credit of Education Cess and Secondary & Higher Education Cess, Scope and applicability of Sections 140 and 142(3) of CGST Act 2017 - Whether the appellant is eligible for refund of the accumulated balances of Education Cess, Secondary & Higher Education Cess, and Krishi Kalyan Cess under Section 142(3) of the CGST Act – HELD - The provisions of Section 140 of the CGST Act and the corresponding Explanations clearly excluded the Education Cess, Secondary & Higher Education Cess, and Krishi Kalyan Cess from the ambit of "eligible duties and taxes" that could be transitione... [Read more]

Central Excise – Larger Bench - Refund of Cenvat Credit of Education Cess and Secondary & Higher Education Cess, Scope and applicability of Sections 140 and 142(3) of CGST Act 2017 - Whether the appellant is eligible for refund of the accumulated balances of Education Cess, Secondary & Higher Education Cess, and Krishi Kalyan Cess under Section 142(3) of the CGST Act – HELD - The provisions of Section 140 of the CGST Act and the corresponding Explanations clearly excluded the Education Cess, Secondary & Higher Education Cess, and Krishi Kalyan Cess from the ambit of "eligible duties and taxes" that could be transitioned to the GST regime - The decisions in Eicher Motors and Slovak India Trading, relied upon by the appellant, is distinguishable on the ground that those cases dealt with a different scenario where the credit was not allowed to be utilized, whereas in the present case, the cesses were specifically excluded from the definition of "eligible duties and taxes" under the CGST Act. On the other hand, the decisions in Cellular Operators Association and Banswara Syntex to be more relevant, which had held that there was no provision under the earlier law to either merge the blocked cesses with Excise Duty/Service Tax or to claim refund of the same – Further, the decision of the Madras High Court in Sutherland Global Services is the most comprehensive and applicable to the present case, wherein it was held that the cesses had effectively become "dead Cenvat Credit" on the dates of their abolition, and therefore, the question of refunding the same would not arise. When the refund is not eligible ab initio, the question of granting them under the provisions of CGST Act 2017 cannot arise - Appellants are not eligible for the refund of the accumulated balances of Education Cess, Secondary & Higher Education Cess, and Krishi Kalyan Cess under Section 142(3) of the CGST Act - Whether the refund claim filed by the appellant KEI is hit by the time limitation under Section 11B of the Central Excise Act, 1944 – HELD - The cesses were blocked on March 1, 2015 and June 1, 2015, and the appellant should have filed the refund claim within one year from these dates, as per the provisions of Section 11B of the CEA, 1944 prevailing at that time. The appellant had quietly transitioned the cesses to TRAN-1 on July 1, 2017, and only after the Revenue pointed out the error, they reversed the same and filed the refund claim on October 11, 2021, which is clearly time-barred - The appellant cannot take recourse to the new regime's law (Section 142(3) of the CGST Act) to claim immunity from the time-bar, as they did not utilize the normal avenue within the framework of the earlier law - The refund claim filed by the appellant is hopelessly time-barred. [Read less]

Service Tax – Revenue sharing arrangements – Tax liability – Appellants are registered with service tax department under category of Health Service – Department entertained view that Appellants are providing Business Support Services (BSS) to Diagnostic Service Providers (DSPs) – After completion of investigation, department issued show cause notices to Appellants by proposing demand of service tax under category of BSS – Adjudicating Authority confirmed demand of service tax along with interest and penalty – Commissioner (Appeals) upheld order passed by Adjudicating Authority – Whether Appellants are liabl... [Read more]

Service Tax – Revenue sharing arrangements – Tax liability – Appellants are registered with service tax department under category of Health Service – Department entertained view that Appellants are providing Business Support Services (BSS) to Diagnostic Service Providers (DSPs) – After completion of investigation, department issued show cause notices to Appellants by proposing demand of service tax under category of BSS – Adjudicating Authority confirmed demand of service tax along with interest and penalty – Commissioner (Appeals) upheld order passed by Adjudicating Authority – Whether Appellants are liable to pay Service Tax under category of BSS – HELD – Appellants have entered into agreements with DSPs for providing pathology lab and other diagnostic services in hospital. As per agreements, Appellants provides basic amenities such as space, water, electricity, etc to DSPs for functioning and DSPs install and operate their equipment in Appellant’s premises. DSPs render services to patients within hospital premises and outside hospital premises. Appellants raised invoice on patients for diagnostic services rendered in hospital and shares for receipts with DSPs in an agreed percentage. Issue involved in appeal relating to revenue sharing arrangements between Appellants and DSPs is no longer res integra, as Tribunal as well as departmental Appellate Authority, for earlier and subsequent periods, have decided issue in favour of Appellants by holding that revenue sharing arrangements are not subject to service tax under BSS. Impugned orders are not sustainable in law and are liable to be set aside – Appeals allowed [Read less]

Service Tax – Taxability of export of sugar quota – Demand of service tax on the amounts received as premium against transfer of sugar export quota allotted by the Directorate of Sugar - Whether the transaction and the commission involved thereof pertains to export of sugar is liable to service tax under the category of BAS – HELD - Transaction and the commission involved thereof pertains to export of sugar represents transfer of right and privilege granted to the sugar mills - The transfer of licenses/quotas like REP license and DEPB credit has an intrinsic value and is a sale of goods, not a service. The transactio... [Read more]

Service Tax – Taxability of export of sugar quota – Demand of service tax on the amounts received as premium against transfer of sugar export quota allotted by the Directorate of Sugar - Whether the transaction and the commission involved thereof pertains to export of sugar is liable to service tax under the category of BAS – HELD - Transaction and the commission involved thereof pertains to export of sugar represents transfer of right and privilege granted to the sugar mills - The transfer of licenses/quotas like REP license and DEPB credit has an intrinsic value and is a sale of goods, not a service. The transaction in question regarding the sale of rights and privilege of export of sugar quota is a sale of goods and no service is involved. Accordingly, the demand for service tax is set aside and the appeal is allowed [Read less]

Central Excise – Applicable rate of interest on refund – Revenue appeal against grant of interest from the date of deposit - Grant of compensatory interest at a higher rate than the prescribed rate of 6% under the provisions of Section 11BB of the Central Excise Act, 1944 - Whether the Tribunal was correct in upholding the order granting interest on the refund amount from the date of deposit, beyond the provisions of Sections 11BB and 35FF of the CEA, 1944 – HELD - The Revenue cannot now contest the nature of the deposit made by the assessee, as the Tribunal's earlier order had clearly concluded that the amount depos... [Read more]

Central Excise – Applicable rate of interest on refund – Revenue appeal against grant of interest from the date of deposit - Grant of compensatory interest at a higher rate than the prescribed rate of 6% under the provisions of Section 11BB of the Central Excise Act, 1944 - Whether the Tribunal was correct in upholding the order granting interest on the refund amount from the date of deposit, beyond the provisions of Sections 11BB and 35FF of the CEA, 1944 – HELD - The Revenue cannot now contest the nature of the deposit made by the assessee, as the Tribunal's earlier order had clearly concluded that the amount deposited by the assessee during the pendency of the investigation and adjudication proceedings was a "revenue deposit" and not a deposit made against duty, fine, or penalty. The Tribunal had further provided for the refund of the excess deposit, along with interest. Therefore, the interest liability incurred by the revenue did not flow from Section 11BB of the Act, but rather from the revenue's receipt of the assessee's deposit under force or in circumstances other than those governing the payment of duty, fines, and penalties - the Tribunal had discussed the relevant notifications and concluded that the interest rate varied from 6% to 18%, and considering the long duration of retention of the revenue's receipt from the assessee, it had awarded 12% interest – The Tribunal order is upheld and the Revenue appeal is dismissed [Read less]

Odisha Entry Tax Act, 1999 - Interest on entry tax, Stay of attachment – Appellant challenged the notice of attachment for non-payment of interest on the outstanding entry tax liability - Whether the appellant is liable to pay interest at the rate of 12% on the outstanding entry tax liability - HELD - As per the order dated 18-3-2020, the appellant was directed to pay the outstanding entry tax dues, including interest as per the Odisha Entry Tax Act, 1999 till the full discharge of the principal component. The law on Entry Tax has been settled by the Supreme Court, and the amounts deposited by the appellant earlier canno... [Read more]

Odisha Entry Tax Act, 1999 - Interest on entry tax, Stay of attachment – Appellant challenged the notice of attachment for non-payment of interest on the outstanding entry tax liability - Whether the appellant is liable to pay interest at the rate of 12% on the outstanding entry tax liability - HELD - As per the order dated 18-3-2020, the appellant was directed to pay the outstanding entry tax dues, including interest as per the Odisha Entry Tax Act, 1999 till the full discharge of the principal component. The law on Entry Tax has been settled by the Supreme Court, and the amounts deposited by the appellant earlier cannot be treated as "deposit" and must be considered as "tax". The appellant had not deposited the interest as per the statutory requirement under the Odisha Entry Tax Act. In such circumstances, the appellant is liable to pay the interest as per the law – The appellant is granted eight weeks' time to deposit the interest liability. In the event of the failure to deposit the amount within the time frame, the State authorities shall be at liberty to proceed further in accordance with the law – Ordered accordingly [Read less]

Service Tax - Sabka Vishwas (Legacy Dispute Resolution) Scheme 2019, period of limitation - Whether the proceedings under the SVLDRS scheme are quasi-judicial in nature and the petitioner is entitled to the benefit of the extension of limitation period granted by the Supreme Court due to the COVID-19 pandemic – HELD - The proceedings under the SVLDRS scheme are quasi-judicial in nature and not merely administrative. The designated committee under the scheme is required to verify the declaration made by the declarant, give an opportunity of hearing, and determine the liability based on objective standards and legal princi... [Read more]

Service Tax - Sabka Vishwas (Legacy Dispute Resolution) Scheme 2019, period of limitation - Whether the proceedings under the SVLDRS scheme are quasi-judicial in nature and the petitioner is entitled to the benefit of the extension of limitation period granted by the Supreme Court due to the COVID-19 pandemic – HELD - The proceedings under the SVLDRS scheme are quasi-judicial in nature and not merely administrative. The designated committee under the scheme is required to verify the declaration made by the declarant, give an opportunity of hearing, and determine the liability based on objective standards and legal principles, and not just on personal satisfaction. This makes the proceedings quasi-judicial and not merely administrative - The extension of limitation period granted by the Supreme Court in its suo motu proceedings related to the COVID-19 pandemic is applicable to the quasi-judicial proceedings under the SVLDRS scheme. The Supreme Court had extended the period of limitation for all judicial and quasi-judicial proceedings, and the SVLDRS scheme falls within this ambit – In the decisions rendered in Yashi Constructions was not by touching upon the extension of the period of limitation granted by the Hon’ble Supreme Court in suo motu proceedings - The benefit of the Supreme Court's orders on extension of limitation should be extended to the SVLDRS scheme - The revenue recovery notices issued to the petitioner are quashed and the authorities are directed to treat the petitioner's payment made on 16.11.2020 as being in compliance with the SVLDRS scheme and issue the requisite discharge certificate – The petition is allowed [Read less]

GST – Cancellation of Registration, Limitation period for appeal, Condonation of delay, Right to carry on business - Whether the cancellation of the petitioner's GST registration was valid and legal, given the petitioner's claim of medical incapacity and the alleged deficiencies in the show cause notice and the cancellation order – HELD - The cancellation of GST registration entails serious civil consequences, affecting the right to livelihood of the assessee and those dependent on the business. In such circumstances, the approach of the authorities is expected to be fair, reasonable and not unduly technical - The peti... [Read more]

GST – Cancellation of Registration, Limitation period for appeal, Condonation of delay, Right to carry on business - Whether the cancellation of the petitioner's GST registration was valid and legal, given the petitioner's claim of medical incapacity and the alleged deficiencies in the show cause notice and the cancellation order – HELD - The cancellation of GST registration entails serious civil consequences, affecting the right to livelihood of the assessee and those dependent on the business. In such circumstances, the approach of the authorities is expected to be fair, reasonable and not unduly technical - The petitioner's explanation for the delay in filing returns and the subsequent appeal, due to his medical condition, prima facie appeared genuine and deserved consideration on merits - the Appellate Authority had proceeded solely on the computation of limitation under the Act, without addressing the petitioner's explanation for the delay or the grave consequences of non-condonation - While the Appellate Authority is bound by the outer limit prescribed in the statute, the constitutional jurisdiction of the High Court under Articles 226 and 227 is of a higher character. In an appropriate case, where the explanation for delay is plausible and the consequences of non-condonation are disproportionate and harsh, the High Court is not precluded from issuing directions to ensure that the matter is considered on merits, notwithstanding the statutory bar, particularly when grave prejudice to livelihood and business is demonstrated - the order passed by the appellate authority is quashed and the authority is directed to hear the petitioner's appeal on merits, without being influenced by the earlier order of dismissal on the ground of limitation – The writ petition is disposed of [Read less]

GST - Non-availing of ITC in GSTR-3B, Claim of input tax credit in GSTR-9 Annual Return, Denial of ITC not claimed in GSTR-3B – Whether the adjudicating authority was correct in disallowing the appellant's claim of input tax credit based on its reconciliation statement and the GSTR-9 Annual return - HELD - The adjudicating authority ought to have considered the effect of the GSTR-9 annual return filed by the appellant, rather than relying solely on the GSTR-3B returns - the word “reconciliation” used in the statute could lead to the meaning that there can be a rectification of any error which might have occurred when... [Read more]

GST - Non-availing of ITC in GSTR-3B, Claim of input tax credit in GSTR-9 Annual Return, Denial of ITC not claimed in GSTR-3B – Whether the adjudicating authority was correct in disallowing the appellant's claim of input tax credit based on its reconciliation statement and the GSTR-9 Annual return - HELD - The adjudicating authority ought to have considered the effect of the GSTR-9 annual return filed by the appellant, rather than relying solely on the GSTR-3B returns - the word “reconciliation” used in the statute could lead to the meaning that there can be a rectification of any error which might have occurred when the taxpayer files his return in FORM GSTR -3B - the adjudicating authority ought to have considered the effect of GSTR-9 and the particulars furnished therein rather than to say that what was claimed in the annual return was not reflected in the return filed under GSTR-3B. This would be the proper manner in which the case had to be dealt with otherwise the purpose of filing an annual return in terms of Section 44(1) of the Act read with Rule 80 would become redundant - The Annual Return in GSTR-9 should be considered for determining the taxpayer's eligibility for input tax credit, even if the same was not reflected in the GSTR-3B returns - The matter has to be re-adjudicated afresh after considering the GSTR-9 the annual return filed by the appellant in FORM GSTR-9 - The adjudication order is set aside and the matter is remanded to the adjudicating authority to re-adjudicate the case, taking into consideration the appellant's GSTR-9 – The writ petition is allowed [Read less]