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Central Excise – Appellant manufactured moulds and dies and sold the same to their customers by raising central excise invoices - same moulds and dies were received back by the appellant and used in the manufacture of aluminium die-castings for the same customers - Revenue of the view that amortised cost of the dies/moulds supplied free of cost to the appellant is liable to be included in the assessable value of the aluminium die-castings under Rule 6 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - Whether the cost of moulds and dies manufactured and cleared by the appellant should b... [Read more]

Central Excise – Appellant manufactured moulds and dies and sold the same to their customers by raising central excise invoices - same moulds and dies were received back by the appellant and used in the manufacture of aluminium die-castings for the same customers - Revenue of the view that amortised cost of the dies/moulds supplied free of cost to the appellant is liable to be included in the assessable value of the aluminium die-castings under Rule 6 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - Whether the cost of moulds and dies manufactured and cleared by the appellant should be included as an amortised cost when the said moulds and dies were received back and used by appellants for manufacture of ‘aluminum die-castings’ for the same customers – HELD – The price of goods in the normal course includes the cum-duty value of inputs both fixed and variable among other things that goes into its manufacture. Just because inputs i.e. dies and moulds have discharged central excise at the time of their manufacture, it will not absolve their aggregate final price, inclusive of duty’s paid, from being taken into consideration for the purpose of determining the assessable value of aluminum die-castings - By applying Rule 6 of CVR to the impugned goods, the value of the aluminum die-castings shall be deemed to be the aggregate of its transaction value and the amount of money value of any additional consideration flowing directly or indirectly from the buyer to the assessee, which in this case is the free supply of dies and moulds - Amortization is understood as an accounting method for spreading out the costs of an asset over the expected period the said asset will provide value. Amortizing the value of dies and moulds will include amortizing its total monetary value ie transaction value plus the duties paid on it - Double taxation with reference to central excise duties on goods means levying central excise taxes twice on the very same excisable product, which is not the case here – merely because appellant gets dies and moulds free from their customers does not change the equation under central excise law. Hence the question of double taxation does not arise - mere bald statement by the appellant that they were eligible for notification 67/1995-CE and were otherwise eligible for CENVAT credit but did not avail the same due to the difficulty of book keeping etc, will not suffice - amortized cum-duty cost of the dies/moulds supplied free of cost to the appellant by their buyer should be included in the assessable value of the aluminum die-castings. No deduction on account of excise duty of free supplied goods is permitted - impugned order is upheld on merits, however, with regard to the issue of SCN being time barred, matter remanded to the Commissioner (Appeals) for passing a fresh order on this limited issue – answered in favour of Revenue [Read less]

Central Excise - Rule 7 of the Central Excise Rules, 2002 - Finalisation of provisional assessment – Demand of short paid duty – Appellant was allotment of Provisional Assessment Number in respect of the contract entered with M/s. BPCL for supply of Boiler Components - Denial of adjustment excess paid duty against short payment of duty on the ground that appellant had passed on the excess amount of duty as CENVAT Credit to M/s BPCL – whether Revenue is correct in not adjusting the excess payment against the alleged short payment of duty – HELD - conjoint reading of Rule 7 of the Central Excise Rules, 2002 along wit... [Read more]

Central Excise - Rule 7 of the Central Excise Rules, 2002 - Finalisation of provisional assessment – Demand of short paid duty – Appellant was allotment of Provisional Assessment Number in respect of the contract entered with M/s. BPCL for supply of Boiler Components - Denial of adjustment excess paid duty against short payment of duty on the ground that appellant had passed on the excess amount of duty as CENVAT Credit to M/s BPCL – whether Revenue is correct in not adjusting the excess payment against the alleged short payment of duty – HELD - conjoint reading of Rule 7 of the Central Excise Rules, 2002 along with the Instructions given in Chapter 3 of the CBEC Excise Manual for Supplementary Instructions issued under Rule 31 of the Central Excise Rules, it is clear that finalization of provisional assessment is required to be done on monthly basis - As assessment is to be finalized for each and every month separately, the words used in Rule 7(4) are for the ‘month’ as the differential duty is to be paid for every month - the original adjudicating authority after considering the clearances made by the appellant to M/s. BPCL have finalized the provisional assessments on the basis of the clearances made in each month, i.e., as per the E.R.-1 returns filed, and arrived at the shortfall of duty and excess payment of duty in certain period - The refund of the excess payment was not sanctioned for the reason that the duty burden has been passed on to M/s. BPCL attracting the provisions of Rule 7(6). Not only that, M/s. BPCL had availed CENVAT Credit of the excess payment of duty on the basis of Central Excise cenvatable invoices - As such, there is no error in the order passed by the lower adjudicating authority – the appeal is dismissed [Read less]

Customs – Scope of and adjudication and appellate proceedings - Respondent-assessee filed Bills-of-Entry declaring goods declared as ‘Aluminium Tube’ for condenser under CTH 7604 2990 - entertaining the view that the goods in question were classifiable under CTH 7610 9030, SCN was issued to the assessee proposing re-classification of subject goods - the Adjudicating Authority held that the subject goods were neither classifiable under CTH 7604 as declared by the assessee nor under CTH 7608 as proposed by revenue but deserved classification under CTH 7610 9030 - Respondent-assessee approached the Commission (Appeals) ... [Read more]

Customs – Scope of and adjudication and appellate proceedings - Respondent-assessee filed Bills-of-Entry declaring goods declared as ‘Aluminium Tube’ for condenser under CTH 7604 2990 - entertaining the view that the goods in question were classifiable under CTH 7610 9030, SCN was issued to the assessee proposing re-classification of subject goods - the Adjudicating Authority held that the subject goods were neither classifiable under CTH 7604 as declared by the assessee nor under CTH 7608 as proposed by revenue but deserved classification under CTH 7610 9030 - Respondent-assessee approached the Commission (Appeals) by filing first appeal – vide the impugned order the Commission (Appeals) held that the goods would not be covered under CTH 7608 and consequently, set aside the Order-in-Original – aggrieved Revenue before Tribunal – HELD – the jurisdiction and scope of adjudication proceedings before an Adjudicating Authority is vast as compared to that of a Commissioner (Appeals) - When an Adjudicating Authority issues Show Cause Notice that becomes the foundation and the burden would lie on the noticee to whom such SCN is issued, to reply to the SCN - Then the case is adjudicated and after due process of law the Adjudicating Authority proceeds to pass the Order-in-Original. After this, Section 128 of the Customs Act, 1962 could be pressed into service by any person who is aggrieved by the Order-in-Original - in the present, the respondent filed appeal feeling aggrieved, before the Commissioner (Appeals) against the Order-in-Original, but the Revenue did not prefer any appeal, which means that the order of classification passed by the Adjudicating Authority was accepted by the Revenue, or rather, the Revenue was not at all aggrieved by the Order-in-Original or even the classification – after the First Appellate Authority passed the impugned order, the Revenue is feeling aggrieved by the Order-in-Original and hence, through the grounds in the appeal, is seeking modification of the Order-in-Original by taking shelter under Section 128A (3) of the Customs Act, in effect, Revenue seeks reversal of classification and Order-in-Original - we would be committing a serious error of permitting the Revenue to take inconsistent stands, secondly, reducing the scope of appellate proceedings to that of Adjudicating Authority; and thirdly, permitting a classification which was never put across to the respondent for rebuttal and in any case, neither the Tribunal nor the Commissioner (Appeals) has any such powers at all – no reason to interfere with the order of the First Appellate Authority and consequently, revenue appeal is dismissed [Read less]

Service Tax - Goods Transport Agency Service – Transport of goods by rail by GTA service provider - Appellant is engaged in providing goods transport service to various companies - Due to unavailability of lorries, appellant transported goods by Rail for which service tax on the amount of freight charges was paid by the service recipient under RCM - department was of the view that the goods are transported by rail, the appellant being service provider has to pay service tax on the freight charges - whether the appellant is liable to pay service tax on the freight charges for transport of goods by rail – HELD - The appe... [Read more]

Service Tax - Goods Transport Agency Service – Transport of goods by rail by GTA service provider - Appellant is engaged in providing goods transport service to various companies - Due to unavailability of lorries, appellant transported goods by Rail for which service tax on the amount of freight charges was paid by the service recipient under RCM - department was of the view that the goods are transported by rail, the appellant being service provider has to pay service tax on the freight charges - whether the appellant is liable to pay service tax on the freight charges for transport of goods by rail – HELD - The appellant has collected freight charges only for transportation of goods by road from the service recipient – appellant had to opt for transportation of goods by rail due to unforeseen circumstances such as unavailability of lorries. The intention between the parties, namely service recipient and service provider, was not to provide transportation of goods by rail – the consignor has discharged the service tax on the freight charges for transportation of goods by road. Merely because the appellant had to use the rail transportation in certain occasions, it cannot be said that they have provided services of transportation of goods by rail – there is no legal basis for the demand raised in the Show Cause Notice - the impugned order is set aside and the appeal is allowed [Read less]

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 – Classification of tax dues – Petitioner was assessed to service tax in relation to commission income received from outside India – Although Petitioner was desirous of availing benefit under the Scheme, appeal was filed on 16-8-2019 – Appellant submitted Form SVLDRS-1 dated 30-12-2019 declaring total tax dues under “litigation” category – Respondents issued Form SVLDRS-2 objected to classification of “tax dues” adopted by Petitioner under “litigation” category and classified same under “arrears category” – HELD – Scheme made all persons e... [Read more]

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 – Classification of tax dues – Petitioner was assessed to service tax in relation to commission income received from outside India – Although Petitioner was desirous of availing benefit under the Scheme, appeal was filed on 16-8-2019 – Appellant submitted Form SVLDRS-1 dated 30-12-2019 declaring total tax dues under “litigation” category – Respondents issued Form SVLDRS-2 objected to classification of “tax dues” adopted by Petitioner under “litigation” category and classified same under “arrears category” – HELD – Scheme made all persons eligible to file declaration where there was no pending litigation in respect of any duty/tax dues before ‘cut-off date’, i.e. 1-7-2019 – Term “tax dues” as provided in Section 123 of the Scheme clearly envisages that there must have been some amount of duty quantifiable and outstanding against an assessee as on “cut-off date” – Scheme did not apply to Petitioner who filed appeal against imposition of duty/tax subsequent to cut-off date – Petitioner submitted a declaration SVLDRS-1 with an undertaking to withdraw appeal – On withdrawal of appeal filed post 1-7-2019 and on filing of declaration, Petitioner’s case was to be considered under “arrears” category – Once pending litigation had been withdrawn, demand of duty raised by tax authorities attained “finality” and a fortiori fell under definition of “amount in arrears” and declaration was rightly considered under “arrears” category – Petition is dismissed [Read less]

Customs – Section 27 of Customs Act, 1962 – Claim for refund of duty – Rejection on ground of limitation – Appellant filed a claim for refund of Special Additional Duty (SAD) under Notification No.102/2007-Cus. dated 14-9-2007 – Original Authority rejected claim of Appellant as time-barred – Commissioner (Appeals) affirmed order of Original Authority – Whether time limit for filing a refund claim within one year of payment of additional duty of customs would apply to Appellant’s claim – HELD – In terms of Notification No.102/2007-Cus. dated 14-9-2007 read with Notification No.93/2008 dated 1-8-2008, ass... [Read more]

Customs – Section 27 of Customs Act, 1962 – Claim for refund of duty – Rejection on ground of limitation – Appellant filed a claim for refund of Special Additional Duty (SAD) under Notification No.102/2007-Cus. dated 14-9-2007 – Original Authority rejected claim of Appellant as time-barred – Commissioner (Appeals) affirmed order of Original Authority – Whether time limit for filing a refund claim within one year of payment of additional duty of customs would apply to Appellant’s claim – HELD – In terms of Notification No.102/2007-Cus. dated 14-9-2007 read with Notification No.93/2008 dated 1-8-2008, assessees are entitled to refund of SAD paid, if imported goods are thereafter sold by them on payment of VAT subject to conditions mentioned in notification – One of conditions mentioned in notification as applicable during relevant time was that refund claim must be filed within one year – In absence of specific provision of Section 27 of the Customs Act being made applicable in Notification No.102/2007 as amended, time limit prescribed in this section would not be automatically applicable to refunds under said notification – Refund claim in present case was filed after amendment to Notification No.102/2007 came into force – Importers including Appellant were made aware of changes brought about in Notification 102/2007-Cus. by introducing a time limit for filing refund claim – As per sub para (c) of para 2 of amended notification dated 1-8-2008, which was effective on date of Appellant filing the claim, Appellant should have filed his claim before expiry of one year from date of payment of additional duty of customs – Since Appellant have filed refund claim after period of one year, claim has been correctly rejected by impugned order – Order under challenge is upheld and the appeal is dismissed [Read less]

Service Tax – Difference in value of taxable services between balance sheet and ST-3 Return - show cause notice invoking the extended period of limitation and confirmation of demand alleging non-payment of service tax under the Reverse Charge Mechanism on the basis that there is apparent difference between the balance sheet figure of expenses and the amounts shown in the ST-3 Returns – HELD - the show cause notice does not contain the gist of allegations for raising the demand on RCM basis. The provisions of service tax read with the Rules thereunder do not provide for raising of demand on the basis of apparent differe... [Read more]

Service Tax – Difference in value of taxable services between balance sheet and ST-3 Return - show cause notice invoking the extended period of limitation and confirmation of demand alleging non-payment of service tax under the Reverse Charge Mechanism on the basis that there is apparent difference between the balance sheet figure of expenses and the amounts shown in the ST-3 Returns – HELD - the show cause notice does not contain the gist of allegations for raising the demand on RCM basis. The provisions of service tax read with the Rules thereunder do not provide for raising of demand on the basis of apparent difference in the figure of expenses in the balance sheet and the amount offered for service tax in the ST-3 Returns - Demand under service tax on reverse charge mechanism has to be worked out and calculated transaction wise-wise and invoice-wise and in absence of such exercise, the show cause notices is vague and held to be mis-conceived and mis-directed - the impugned order is set aside and appeal is allowed [Read less]

Customs – Sections 46, 110A and 130 of Customs Act, 1962 – Seizure of gold – Provisional release – Furnishing of bank guarantee – Appellant/DRI seized gold imported by Respondent, in part from workshop/factory premises of Respondent and in part from Airport after gold had crossed Customs barrier – Respondent applied for provisional release of seized gold under Section 110A of the Act – DRI rejected request of Respondent – Respondent appealed to Customs, Excise and Service Tax Appellate Tribunal – Tribunal directed provisional release of gold on terms fixed by it – DRI preferred appeal before High Court ... [Read more]

Customs – Sections 46, 110A and 130 of Customs Act, 1962 – Seizure of gold – Provisional release – Furnishing of bank guarantee – Appellant/DRI seized gold imported by Respondent, in part from workshop/factory premises of Respondent and in part from Airport after gold had crossed Customs barrier – Respondent applied for provisional release of seized gold under Section 110A of the Act – DRI rejected request of Respondent – Respondent appealed to Customs, Excise and Service Tax Appellate Tribunal – Tribunal directed provisional release of gold on terms fixed by it – DRI preferred appeal before High Court against order of Tribunal – High Court upheld decision of Tribunal directing release of gold seized from factory of Respondent, but set aside direction of Tribunal permitting release of consignment of gold seized at Airport on reasoning that Bill of Entry (B/E) filed in respect of said consignment was not signed by Respondent or Customs clerk – Respondent filed Review Petition seeking review of decision to set aside judgment of Tribunal, which had permitted provisional release of said consignment as well – HELD – There were positive findings of fact by Tribunal that imported jewellery had been appraised and found to be the same as the jewellery which had earlier been exported by Respondent – Said findings cannot be re-examined in an appeal under Section 130 of the Act, which is restricted to substantial questions of law – the SOP dated 29-3-2016 specifically deals with appraisement of hand carried jewellery for exhibition under export promotion schemes – Clauses 2(xii) and 2(xiii) of SOP dated 29-3-2016 indicate that, in respect of gold jewellery which was exported for exhibitions and re-imported into the country, procedure of filing of a B/E under Section 46 of the Act was inapplicable – Jewellery which was being sought to be imported by Respondent/review petitioner was, in fact, the same jewellery which had earlier been exported for exhibition abroad – Review petitioner is justified in its prayer to release consignment of gold seized at Airport – Judgment under review worked out the quantum of bank guarantee to be furnished at 30% of total value of gold seized, including unreleased gold jewellery forming subject matter of present review proceedings – It is not possible to direct furnishing of any further bank guarantee, as a condition, for release of gold – Review Petition is allowed [Read less]

Karnataka Value Added Tax Act, 2003 - Rejection of application seeking for benefits under Karasamadhana Scheme - Recovery of entire demand during the pendency of the appeal before the Tribunal - Authorities relied on Clause 2.4 of the Scheme to contends that since the entirety of the tax, penalty and interest having been recovered, Scheme is inapplicable to the petitioner - Rejection of application only on the ground of the assessee not being eligible for refund of any amount that may become excess as a result of adjustment of amount or the penalty or interest paid by him at the time of filing the appeal – HELD - only af... [Read more]

Karnataka Value Added Tax Act, 2003 - Rejection of application seeking for benefits under Karasamadhana Scheme - Recovery of entire demand during the pendency of the appeal before the Tribunal - Authorities relied on Clause 2.4 of the Scheme to contends that since the entirety of the tax, penalty and interest having been recovered, Scheme is inapplicable to the petitioner - Rejection of application only on the ground of the assessee not being eligible for refund of any amount that may become excess as a result of adjustment of amount or the penalty or interest paid by him at the time of filing the appeal – HELD - only after full recovery of arrears, the assessee has withdrawn the appeal before Appellate Tribunal to obtain benefit under Karasamadhana Scheme and filed application requesting for refund of interest amount. The Authority in the impugned endorsement has rejected the application referring to the Circular No.1/2018-19 dated 13.08.2018 – if the impugned Endorsement is construed as having rejected the application only on the basis of Clause 2.4 of the Circular then there is no clarity as regards satisfaction of Clause 2.4 because Clause 2.4 refers to the amount paid at the time of filing the appeal - In this case, the peculiar facts are that the petitioner has paid 30% of the disputed amount. If that were to be so, the question that requires adjudication by the Authority is whether a subsequent recovery from the banker of the petitioner after the appeal was taken on record and payment was made is an amount that could be taken note of - petitioner’s contention that Clause 2.4 refers only to the amount paid at the time of filing the appeal and accordingly, the subsequent recovery cannot be an amount deemed to have been paid by the petitioner and accordingly, recovery of 70% of the demand from the petitioner's banker, ought not to be taken note of, while invoking Clause 2.4, is also an aspect that is required to be considered by the Authority – further, in the event, if the petitioner’s application is rejected, the petitioner cannot be placed in a position worse off and the petitioner is entitled for restoration of its appeal before the Tribunal and that would be a logical course of action - the impugned endorsement is set aside and the matter is remanded to the Authority to reconsider and pass fresh orders – the writ petition is disposed of [Read less]

GST - Section 75(4) of the CGST Act, 2017 - Whether the obligation to afford an opportunity of hearing under Section 75(4) can be done away with when reply in Form DRC-06 was filed belatedly and the same has been rejected - Revenue stand that since reply was filed beyond the period prescribed under Section 73(8) of the CGST Act same has rightly not been considered the question of request for an opportunity of hearing made in the reply does not arise – HELD – though the reply itself came to be rejected as having been filed belatedly, in the reply the petitioner has made a request for personal hearing - Mandate under Sec... [Read more]

GST - Section 75(4) of the CGST Act, 2017 - Whether the obligation to afford an opportunity of hearing under Section 75(4) can be done away with when reply in Form DRC-06 was filed belatedly and the same has been rejected - Revenue stand that since reply was filed beyond the period prescribed under Section 73(8) of the CGST Act same has rightly not been considered the question of request for an opportunity of hearing made in the reply does not arise – HELD – though the reply itself came to be rejected as having been filed belatedly, in the reply the petitioner has made a request for personal hearing - Mandate under Section 75(4) of the CGST Act, 2017 is clear that when a written request is made from the person chargeable with tax or penalty seeking for personal hearing, the same is required to be considered - Clearly there is violation of the mandate under Section 75(4) of the Act and the submission of Revenue that the request for personal hearing was made out in the reply, which having been rejected, the request for personal hearing is also to be rejected is a hyper technical interpretation, which cannot be accepted - the impugned order is set aside in the light of the violation of the non-granting of opportunity of personal hearing under Section 75(4) of the Act – Authorities are directed to consider the reply that has been filed by the petitioner and also permit the petitioner to raise additional legal contentions as has been raised in the present writ petition. The petitioner however, is liable to pay costs of Rs.10,000/- to the respondents for lapse in filing a delayed reply – writ petition is allowed [Read less]

GST - Refund on zero-rated supply - Rejection of Refund application on the ground of time-barred – Adjudicating Authority rejected petitioner’s request for condonation of delay on account of outbreak of Covid 19 - petitioner’s appeal against the said decision was also rejected by the Appellate Authority – HELD – in terms of Notification No.13/2022- Central Tax, the period from 01.03.2020 to 28.02.2022 was to be excluded for calculating the period of limitation for filing an application under Sections 54 and 55 of the CGST Act - According to the petitioner, the refund in respect of the supplies made during the per... [Read more]

GST - Refund on zero-rated supply - Rejection of Refund application on the ground of time-barred – Adjudicating Authority rejected petitioner’s request for condonation of delay on account of outbreak of Covid 19 - petitioner’s appeal against the said decision was also rejected by the Appellate Authority – HELD – in terms of Notification No.13/2022- Central Tax, the period from 01.03.2020 to 28.02.2022 was to be excluded for calculating the period of limitation for filing an application under Sections 54 and 55 of the CGST Act - According to the petitioner, the refund in respect of the supplies made during the period of February 2018 to March 2018, is within the period of limitation; if the period after 01.03.2020 to 28.02.2022, is excluded - It is apparent that neither the Adjudicating Authority nor the Appellate Authority has considered the petitioner’s claim that the delay is required to be condoned – the impugned order is set aside and matter remanded to the Adjudicating Authority for considering afresh, in light of the notification dated 05.07.2022 - The petition is allowed [Read less]

Central Excise - Refund under Notification No. 12/2012-CE dated 17.3.2012 on motor vehicles subsequently registered for use as Taxi – Rejection of refund on the ground that the claim for refund of duty paid on vehicle registered as Taxi was filed after expiry of 6 months from the date of payment of duty – HELD - right to claim refund by the manufacturer of the motor vehicle (appellant) under Notification No.12/2012, arises on the material point or event, when the vehicle sold is registered with the Motor Vehicle Department as an ambulance or taxi and the manufacturer receives such information from the buyer of the vehi... [Read more]

Central Excise - Refund under Notification No. 12/2012-CE dated 17.3.2012 on motor vehicles subsequently registered for use as Taxi – Rejection of refund on the ground that the claim for refund of duty paid on vehicle registered as Taxi was filed after expiry of 6 months from the date of payment of duty – HELD - right to claim refund by the manufacturer of the motor vehicle (appellant) under Notification No.12/2012, arises on the material point or event, when the vehicle sold is registered with the Motor Vehicle Department as an ambulance or taxi and the manufacturer receives such information from the buyer of the vehicle along with proof - Limitation for refund for a manufacturer under Notification No.12/2012 under Sl.No.273, is six months from the date of registration of the vehicle as an ambulance or taxi – in the present case, the appellant-assessee have claimed the refund within a period of six months of the vehicles getting registered as taxi or ambulance - the impugned order is set aside and appeal is allowed [Read less]

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 – Payment of tax – Application for waiver of interest and penalty – Rejection of application – Accounts of Petitioner were subjected to a service tax audit by Respondents – During course of audit, certain objections were raised – Respondents sent letters calling upon Petitioner to deposit interest in respect of wrongful availment of cess, short payment of service tax, wrongful availment of Cenvat Credit on certain services and Cenvat Credit availed on exempted income – Petitioner submitted an application under the Scheme for waiver of interest and penalty... [Read more]

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 – Payment of tax – Application for waiver of interest and penalty – Rejection of application – Accounts of Petitioner were subjected to a service tax audit by Respondents – During course of audit, certain objections were raised – Respondents sent letters calling upon Petitioner to deposit interest in respect of wrongful availment of cess, short payment of service tax, wrongful availment of Cenvat Credit on certain services and Cenvat Credit availed on exempted income – Petitioner submitted an application under the Scheme for waiver of interest and penalty – Designated authority rejected application on ground of “ineligibility” with remarks “incomplete and selective declaration” – Whether designated authority was justified in rejecting Petitioner’s application on ground that amount as mentioned by Petitioner did not cover entire details of duty and amount deposited by Petitioner – HELD – Objective of the SVLDRS, 2019 was to enable a quick closure of pending litigation centering around indirect taxes – There is no dispute that Petitioner had deposited entire duty in respect of four audit objections – In terms of the Scheme, Petitioner was entitled to waiver of interest and penalty, as it had paid requisite tax prior to stipulated date – There is no cavil that application filed by Petitioner correctly disclosed that there was no amount of tax dues payable by it – Error on part of Petitioner is that it did not include duty amount, which related to three audit objections, in column of duty details and duty paid – Said error was a curable one and did not affect estimation of amount payable after availing benefit under the Scheme – Impugned order rejecting Petitioner’s declaration under the Scheme is set aside – Designated authority is directed to process Petitioner’s declaration in accordance with the Scheme as expeditiously as possible – Petition is allowed [Read less]

Bihar Entertainment Tax Act, 1948 – Validity of levy of entertainment tax on Multi System Operator after the 101st Amendment to the Constitution – Petitioner is a Multi System Operator (MSO) who is mulcted with liability to pay Entertainment Tax under the Act – Earlier the petitioner was before this Court when an assessment order was passed based on number of set-top boxes recorded in register of Petitioner – Court quashed assessment orders and directed Assistant Commissioner to redo assessment – Assessing Authority carried out a fresh assessment which is impugned in present writ petition – HELD – Subscriber ... [Read more]

Bihar Entertainment Tax Act, 1948 – Validity of levy of entertainment tax on Multi System Operator after the 101st Amendment to the Constitution – Petitioner is a Multi System Operator (MSO) who is mulcted with liability to pay Entertainment Tax under the Act – Earlier the petitioner was before this Court when an assessment order was passed based on number of set-top boxes recorded in register of Petitioner – Court quashed assessment orders and directed Assistant Commissioner to redo assessment – Assessing Authority carried out a fresh assessment which is impugned in present writ petition – HELD – Subscriber can view entertainment programmes transmitted by MSO through LCO, only if subscriber purchases a set-top box and also activates it – Activation of a set-top box is exclusively in domain of the MSO, who does it through LCO – Section 3AA of the Act is a non obstante clause which makes taxable event the point at which connection is given to subscriber by proprietor of any cable transmission network – Tax has to be paid by proprietor of entertainment to State Government – There can be no doubt that entertainment through a cable television network falls within tax net of the Act – ‘Proprietor’ as defined under the Act is the MSO who has ultimate control and management over network which transmits programmes, which it receives by way of satellite – Tax as it was levied on entertainments under the Act cannot survive after 101st Amendment to Constitution – After 101st Constitutional Amendment, State has absolutely no power to continue with levy as per the Act – Impugned order is set aside only on ground of authorities under the Act having been denuded of power to levy and collect tax as per enactment after 101st amendment – State also is denuded of power to make an enactment in nature of the Act after 101st Amendment – The repeal and the saving clause provided under the BGST Act, 2017 does not inure to the benefit of the State since the enactment and the levy made by it cannot be sustained after the 101st amendment - Petition is allowed [Read less]

GST - Demand of tax and penalty under Section 130 of the CGST Act consequent to inspection, search and seizure proceedings - Assessee contention that Dy. Commr. of State Tax, Enforcement Unit has no authority to pass the final order and as such, he acted as the judge of his own cause - Whether the seizure officer i.e. Deputy Commissioner of State Tax, Enforcement Unit, has authority to pass order levying penalty and fine on the petitioner in lieu of the confiscation – HELD - the authorization for inspection, search and seizure was granted by the Joint Commissioner of State Tax, Enforcement Range - Since the said power ha... [Read more]

GST - Demand of tax and penalty under Section 130 of the CGST Act consequent to inspection, search and seizure proceedings - Assessee contention that Dy. Commr. of State Tax, Enforcement Unit has no authority to pass the final order and as such, he acted as the judge of his own cause - Whether the seizure officer i.e. Deputy Commissioner of State Tax, Enforcement Unit, has authority to pass order levying penalty and fine on the petitioner in lieu of the confiscation – HELD - the authorization for inspection, search and seizure was granted by the Joint Commissioner of State Tax, Enforcement Range - Since the said power has been vested with him, on that basis Dy. Commr. of State Tax, Enforcement Unit carried search and seizure operation of the petitioner’s premises and thereafter passed the order of demand imposing penalty and fine under Section 130 of the OGST/CGST Act - The submission that the search and seizure authority has exceeded its jurisdiction is rejected. Rather the authority has acted within the competency to pass such order - the contention that he cannot be a judge of his own cause, that principle is not applicable to the present case - Had the same been passed under Section 73 or Section 74 of the Act, then matter would have been different, but here the order has been passed under Section 130 of the OGST/CGST Act – the writ petition is disposed of giving liberty to the petitioner to pursue its remedy before the appropriate authority, if it is so advised - writ petition stands disposed of [Read less]

Service Tax - Refund of service tax paid under mistake of law – Applicability of provisions relating to Limitation - Respondent-assessee filed the refund claim for service tax wrongly paid under reverse charge mechanism under “manpower recruitment or supply agency” - Commissioner (Appeals) accepted respondent’s contention and held that as the respondent-assessee was not a “body corporate”, it was not required to pay service tax and allowed the refund – Revenue in appeal – HELD – A reading of both the agreements leaves no manner of doubt that the contractor was required to perform a job work and not supply... [Read more]

Service Tax - Refund of service tax paid under mistake of law – Applicability of provisions relating to Limitation - Respondent-assessee filed the refund claim for service tax wrongly paid under reverse charge mechanism under “manpower recruitment or supply agency” - Commissioner (Appeals) accepted respondent’s contention and held that as the respondent-assessee was not a “body corporate”, it was not required to pay service tax and allowed the refund – Revenue in appeal – HELD – A reading of both the agreements leaves no manner of doubt that the contractor was required to perform a job work and not supply of manpower - The finding recorded by the Commissioner (Appeals) that the work undertaken by the contractor in the premises of the respondent would amount to manufacture, has not been seriously disputed by the Department - The Commissioner (Appeals) also committed no illegality in relying upon the certificate issued by the Chartered Accountant and the trial balance sheet to hold that the principles of unjust enrichment would not be applicable - Provisions of section 11-B of the Excise Act relating to limitation would not be applicable in case where payment was made purely on account of a mistake in understanding the Notification - there is no merit in this appeal filed by the Department and the same is dismissed [Read less]

Customs - Sections 47, 110 and 110A of Customs Act, 1962 – Food Safety and Standards Act, 2006 – Seizure of imported goods – Rejection of request for provisional release – Customs authorities seized goods imported from Indonesia in ten containers under Section 110 of the Act by placing reliance on test reports furnished by customs laboratories to effect that goods are ‘unfit for human consumption’ – Commissioner rejected request of Appellant/importer for provisional release of seized goods under Section 110A of the Act – HELD – Customs authorities are bound by sanction and approval accorded, under aegis o... [Read more]

Customs - Sections 47, 110 and 110A of Customs Act, 1962 – Food Safety and Standards Act, 2006 – Seizure of imported goods – Rejection of request for provisional release – Customs authorities seized goods imported from Indonesia in ten containers under Section 110 of the Act by placing reliance on test reports furnished by customs laboratories to effect that goods are ‘unfit for human consumption’ – Commissioner rejected request of Appellant/importer for provisional release of seized goods under Section 110A of the Act – HELD – Customs authorities are bound by sanction and approval accorded, under aegis of 2006 Act, by designated authority therein as the sole determinant for invoking Section 110 of the Act insofar as articles of food are concerned – Designated authority under 2006 Act is the proper enforcement agency, can always be relied upon by customs authorities for binding advice on public health interest – Conclusion that impugned goods are ‘unfit for human consumption’ is beyond scope of jurisdiction conferred by 1962 Act on Commissioner in absence of determination by designated authority under 2006 Act – Grounds evinced for discarding request for ‘provisional release’ under Section 110A of the Act are not legally tenable – Impugned goods should be ‘provisionally released’ on furnishing of bond to extent of value of goods and subject to procedural safeguards implicit in Section 47 of the Act – Appeal is disposed of [Read less]

Central Excise - Eligibility for CENVAT credit on welding electrodes used for repairs and maintenance of plant and machinery both as capital goods as well as inputs – HELD - This Court in Hindustan Zinc Ltd. case, while considering the question of law, whether welding electrodes used for repairing and maintenance of plant & machinery both as capital goods as well as inputs, has answered the same in favour of the assessee and against the revenue - Learned counsel for the revenue is not in position to dispute the fact that the revenue has granted benefit to the assessee in subsequent years by relying on the said judgment �... [Read more]

Central Excise - Eligibility for CENVAT credit on welding electrodes used for repairs and maintenance of plant and machinery both as capital goods as well as inputs – HELD - This Court in Hindustan Zinc Ltd. case, while considering the question of law, whether welding electrodes used for repairing and maintenance of plant & machinery both as capital goods as well as inputs, has answered the same in favour of the assessee and against the revenue - Learned counsel for the revenue is not in position to dispute the fact that the revenue has granted benefit to the assessee in subsequent years by relying on the said judgment – since the controversy raised in these appeals has been set at rest by the Division Bench of this Court by judgment in Hindustan Zinc Ltd.’s case, the question framed in these appeals in favour of the assessee – the appeal is allowed [Read less]

GST – Cancellation of Registration - Cryptic Show Cause Notice – Rejection of application for revocation of cancellation of GST Registration – Validity of cancellation of Registration pursuant to a Show Cause Notice bereft of reason for proposing adverse action – HELD - petitioner claims that the Adjudicating Authority as well as the Appellate Authority had proceeded on an erroneous premise that the petitioner had shifted from its registered premises - Although the petitioner has been provided sufficient opportunity by way of a Show Cause Notice issued in the proceedings instituted by the petitioner seeking revocat... [Read more]

GST – Cancellation of Registration - Cryptic Show Cause Notice – Rejection of application for revocation of cancellation of GST Registration – Validity of cancellation of Registration pursuant to a Show Cause Notice bereft of reason for proposing adverse action – HELD - petitioner claims that the Adjudicating Authority as well as the Appellate Authority had proceeded on an erroneous premise that the petitioner had shifted from its registered premises - Although the petitioner has been provided sufficient opportunity by way of a Show Cause Notice issued in the proceedings instituted by the petitioner seeking revocation of the cancellation of its GST registration, the initial Show Cause Notice issued by the Adjudicating Authority calling upon the petitioner to show-cause why its GST registration not be cancelled was bereft of the necessary particulars - the proceedings for cancellation of registration commenced pursuant to a Show Cause Notice, which was cryptic and did not provide the necessary particulars for proposing cancellation of the petitioner’s GST registration - It is trite law that a Show Cause Notice must set out the reasons for proposing an adverse action in order for the noticee to respond to the same. Undisputedly, in this case, the impugned Show Cause Notice did not satisfy the said standards – the impugned order is set aside and petitioner’s application for revocation of cancellation of its GST registration is restored before the officer concerned for deciding afresh – the writ petition is disposed of [Read less]

GST - Cancellation of registration on the basis of the survey with the report that the petitioner-assessee was not found at the disclosed business place of the firm and therefore, the firm is bogus – Rejection of application for revocation of cancellation of the registration – HELD – the registration once granted could be cancelled only if one of the five statutory conditions under Section 29(2) of the CGST Act was found present. Per se, no registration may be cancelled by merely describing the firm that had obtained it, was "bogus" – the impugned orders are quashed and writ petition is allowed

Customs AAR - Classification of “Optoma Creative Touch 3-series Interactive Flat Panel” – HELD - The word ‘Interactive’ in the description of the subject goods brings to the front various capabilities of the subject goods and on closer examination, the capabilities of the subject goods meet the requirement under Chapter Note 6 (A) of Chapter 84 for a machine to mean as ‘automatic data processing machine’ - once an item has inbuilt input unit, output unit along with processing unit then it is obvious that the item is capable of performing multiple functions - “Optoma Creative Touch 3-series Interactive Flat ... [Read more]

Customs AAR - Classification of “Optoma Creative Touch 3-series Interactive Flat Panel” – HELD - The word ‘Interactive’ in the description of the subject goods brings to the front various capabilities of the subject goods and on closer examination, the capabilities of the subject goods meet the requirement under Chapter Note 6 (A) of Chapter 84 for a machine to mean as ‘automatic data processing machine’ - once an item has inbuilt input unit, output unit along with processing unit then it is obvious that the item is capable of performing multiple functions - “Optoma Creative Touch 3-series Interactive Flat Panel (IFP)” merits classification under Sub-heading 84714190 of the First Schedule to Customs Tariff Act, 1975 – Ordered accordingly [Read less]

Customs – Sections 111(i) & (m) and 149 of Customs Act, 1962 - Import of goods – Restriction of claim for exemption - Confiscation of consignment – Appellant imported ‘cut and polished diamonds’ and claimed exemption from duty under Notification No. 45/2017 - Adjudicating Authority restricted claim for exemption to one box and disallowed claim for second box on ground of failure to declare that box in impugned consignment and ordered for confiscation of entire consignment under Section 111(i) & (m) of the Act – HELD – Undeclared quantity of ‘cut and polished diamonds’ came to light during examination is n... [Read more]

Customs – Sections 111(i) & (m) and 149 of Customs Act, 1962 - Import of goods – Restriction of claim for exemption - Confiscation of consignment – Appellant imported ‘cut and polished diamonds’ and claimed exemption from duty under Notification No. 45/2017 - Adjudicating Authority restricted claim for exemption to one box and disallowed claim for second box on ground of failure to declare that box in impugned consignment and ordered for confiscation of entire consignment under Section 111(i) & (m) of the Act – HELD – Undeclared quantity of ‘cut and polished diamonds’ came to light during examination is not in question – Concealment does not entail two boxes of ‘cut and polished diamonds’ matching in value with first of ‘house airway bill’ and their presentation in such form for ‘first check’ appraisal by customs authorities – Recourse to Section 111(i) of the Act to order confiscation of imported goods is not tenable – It has ever been the claim of Appellant that consignment in its entirety are unsold returns from two export shipments affected by them in accordance with notification no.45/2017 – No attempt was made to establish veracity of claim even in relation to contents declared in bill of entry before effecting seizure of entire consignment – Eligibility of undeclared ‘cut and polished diamonds’ would adequately evidence lack of motive in concealment – As goods are yet to be cleared for home consumption, there cannot be any prejudice caused to Revenue by exercise of authority under Section 149 of the Act to make appropriate alterations in bill of entry for which Appellant may make formal application insofar as ascertainment of claim for eligibility to exemption from duty is extendable to them is concerned – Appeal is disposed of [Read less]

Central Excise - Appellants are engaged in manufacture of Cable Jointing Kits which comprises of various components – Appellant were paying duty of dutiable components as per Rule 8 of Central Excise (Valuation) Rules, 2000 - show cause notice issued proposing to revise the value of one of the component – confirmation of demand invoking extended period of limitation – HELD - the entire period involved in this show cause notice issue is covered in earlier grounds of litigation - Since the matter is already covered by the earlier notices for the same period and determine appellant favour subsequently invoking extended ... [Read more]

Central Excise - Appellants are engaged in manufacture of Cable Jointing Kits which comprises of various components – Appellant were paying duty of dutiable components as per Rule 8 of Central Excise (Valuation) Rules, 2000 - show cause notice issued proposing to revise the value of one of the component – confirmation of demand invoking extended period of limitation – HELD - the entire period involved in this show cause notice issue is covered in earlier grounds of litigation - Since the matter is already covered by the earlier notices for the same period and determine appellant favour subsequently invoking extended period of litigation cannot survive - earlier show-cause notices were issued on the issue of valuation also which have been adjudged by the Commissioner (Appeals) in favour of the Appellant - Revenue has not filed any appeal against that order, hence assessment proceedings are finalized by the said order - Issuance of another show-cause notice invoking extended period of limitation cannot be sustained when entire facts were in the knowledge of department – the impugned order is set aside and appeal is allowed [Read less]

Central Excise – Denial of benefit of exemption Notification No.31/2011-CE dated 24th March, 2011 – Non-compliance of principle requirement – Revenue issued show cause notice to Appellant alleging that Appellant had cleared goods without payment of Central Excise duty – Show cause notice proposed demand of Central Excise duty on branded garments cleared vide invoice – Adjudicating authority confirmed demand of duty along with interest and penalty – Whether Appellant is entitled to benefit of Exemption Notification No.31/2011-CE – HELD – Copies of invoices handed over during course of hearing carry a faint i... [Read more]

Central Excise – Denial of benefit of exemption Notification No.31/2011-CE dated 24th March, 2011 – Non-compliance of principle requirement – Revenue issued show cause notice to Appellant alleging that Appellant had cleared goods without payment of Central Excise duty – Show cause notice proposed demand of Central Excise duty on branded garments cleared vide invoice – Adjudicating authority confirmed demand of duty along with interest and penalty – Whether Appellant is entitled to benefit of Exemption Notification No.31/2011-CE – HELD – Copies of invoices handed over during course of hearing carry a faint impression of rubber stamp of Appellants indicating their registration number and other jurisdictional details, however, copy thereof do not carry any such impression – For availment of benefit of Notification No.31/11, one of principle requirement is submission of requisite intimation for which even a rigid time frame of 48 hours is provided in notification itself – Appellant was legally obliged to tender requisite intimation in order to claim exemption – Appellant have not furnished any intimation to jurisdictional Central Excise Authorities as was mandated in fulfillment of exemption notification conditions for return goods – Failure of Appellant to comply with principle requirement is not once but with each time the goods were returned – Benefit of exemption Notification No.31/2011-CE is not admissible to appellants – Appeal is dismissed [Read less]

Central Excise - Manufacture of structures of transmission line – Demand of duty alleging that appellant is engaged in clandestine removal of finished goods to the extent raw material found short during the course of physical stock verification - In the first round of litigation Tribunal remanded the matter to the original authority to decide the shortage of raw-material taking into account quantity of Zinc which was lying in the tank – confirmation of proposal of the impugned show cause notice – HELD – As per the remand order the authority was required to decide the shortage of raw-material by taking into referenc... [Read more]

Central Excise - Manufacture of structures of transmission line – Demand of duty alleging that appellant is engaged in clandestine removal of finished goods to the extent raw material found short during the course of physical stock verification - In the first round of litigation Tribunal remanded the matter to the original authority to decide the shortage of raw-material taking into account quantity of Zinc which was lying in the tank – confirmation of proposal of the impugned show cause notice – HELD – As per the remand order the authority was required to decide the shortage of raw-material by taking into reference the zinc which was lying in the bath tank, however, without discussing the quantity of zinc lying in that bath tub, it is merely the structure of stock register maintained by the appellant in the sequence of receipt, disposal, consumption and inventory, which has been considered – there is no reference of any figures based whereupon the authority has concluded and confirmed the alleged shortage. In these circumstances, the finding that the zinc in zinc bath is actually the remnant of zinc stuck on the inner walls or at the bottom of the cattle is held to be a finding based on mere assumptions - the impugned decision is observed to be nothing but an act of violating judicial protocol - had the quantum of zinc in bath tank would have been considered, there would not have been alleged shortage except for the miniscule which is unavoidable on account of wastage – to establish the allegations of clandestine removal the Department has not produced any evidence to show that the appellant has cleared goods without invoice or without payment of excise duty. No single document was found issued by the appellant nor there was a confessional statement of the appellant. Therefore, alleged shortage is not at all sustainable - the appeal stands allowed [Read less]

Central Excise – 100% EOU – Rule 3(ii) of Exports Services Rule, 2005 - Export of Service - Procurement of capital goods/raw materials - Appellants undertaken the work of ‘Technical Testing and Analysis Services’ for their parent organisation - the results of the testing analysis conducted by appellants is sent by e-mail and courier by the appellant to United States - SCN issued on the ground that mere delivery of the reports on its own will not allow the services to be classified as export of service and Customs and Central Excise duty exemption availed by appellant while procuring the capital goods/raw materials ... [Read more]

Central Excise – 100% EOU – Rule 3(ii) of Exports Services Rule, 2005 - Export of Service - Procurement of capital goods/raw materials - Appellants undertaken the work of ‘Technical Testing and Analysis Services’ for their parent organisation - the results of the testing analysis conducted by appellants is sent by e-mail and courier by the appellant to United States - SCN issued on the ground that mere delivery of the reports on its own will not allow the services to be classified as export of service and Customs and Central Excise duty exemption availed by appellant while procuring the capital goods/raw materials is irregular – HELD - delivery of the report is an essential part of their service and the service is not complete till delivery of report. The report is delivered outside India and the same is used outside India - These facts fortify the views that the service provided by the appellants was export of service - the Show Cause Notice has not made any reference to amendment to the Second proviso of Rule 3(ii), nor this was discussed even in the Order-in-Original. Therefore, the Department taking this stand at this juncture amounts to traversing beyond the scope of Show Cause Notice - without going into the merits as to whether the goods were situated outside at that point of time or not and whether even the sample brought into India for testing can be considered as the goods being present in India, issue can be decided only on the ground that no such allegation was made in the Show Cause Notice - appeal stands allowed [Read less]

Central Sales Tax Act, 1956 – Submission of ‘H’ Form post Assessment - Demand of tax on the Direct Export Sales and Sales in the Course of Export on the ground that the petitioner failed to file the requisite ‘H’ Forms before the assessment was made by the assessing authority – HELD - due to the prevalence of Covid-19 pandemic situation the petitioner could not furnished Forms ‘H’ and other connected evidence showing that he made Export Sales and Sales in the Course of Export before the assessment order was made – even by the date of passing of the original assessment order the petitioner was very much in... [Read more]

Central Sales Tax Act, 1956 – Submission of ‘H’ Form post Assessment - Demand of tax on the Direct Export Sales and Sales in the Course of Export on the ground that the petitioner failed to file the requisite ‘H’ Forms before the assessment was made by the assessing authority – HELD - due to the prevalence of Covid-19 pandemic situation the petitioner could not furnished Forms ‘H’ and other connected evidence showing that he made Export Sales and Sales in the Course of Export before the assessment order was made – even by the date of passing of the original assessment order the petitioner was very much in possession of the ‘H’ Form and other evidence to show that he made export sales - It is an admitted fact that since March, 2020, the Covid-19 pandemic was in force and thereby the Central and State Governments restricted the movements of the general public - Revised Assessment Order is set aside to the extent of the assessing authority refusing to accept the Forms ‘H’ and other relevant material produced under section 5(1) and 5 (3) of CGST Act, 1956 with a direction to consider those materials produced by the petitioner and to afford an opportunity of hearing – writ petition is allowed [Read less]

Service Tax - Disallowance of Cenvat credit on ground of difference in amount of Cenvat credit in ST-3 returns and as per financial record - disallowance of claim of export of service of ‘Market research agency services’ – HELD - None of the three conditions prescribed for disallowance of Cenvat credit have been alleged nor found by the lower authority - the appellant have reflected the amount of credit in ST-3 returns - no disallowance can be made for the apparent difference in amount of Cenvat credit as per ledger (financial record) when the amount of Cenvat credit claimed matches with the amount of credit taken by... [Read more]

Service Tax - Disallowance of Cenvat credit on ground of difference in amount of Cenvat credit in ST-3 returns and as per financial record - disallowance of claim of export of service of ‘Market research agency services’ – HELD - None of the three conditions prescribed for disallowance of Cenvat credit have been alleged nor found by the lower authority - the appellant have reflected the amount of credit in ST-3 returns - no disallowance can be made for the apparent difference in amount of Cenvat credit as per ledger (financial record) when the amount of Cenvat credit claimed matches with the amount of credit taken by the appellant in their Cenvat credit Register – Disallowance of Cenvat credit is set aside – appellant have provided service of market research agency service wherein the appellant have performed their work in India by collection of data and subsequent preparation of report. Such reports have been sent or communicated to the principal located at Singapore via email, for use and reference of the receiver only. Further, the principal located at Singapore have made the payment of service, which is received in convertible foreign exchange in India - the appellant and their principal do not fall under definition of ‘distinct person’ as defined in Clause (f) of Rule 6A of service tax Rule r/w Section 65B (44), explanation 3 thereunder. Accordingly, appellant have exported the service and hence entitled to exemption from levy of service tax - the appellant had taken registration before the start of their activity with the service tax department, and have filed periodical returns. Appellant have also maintained proper records of their transactions – since the issue is wholly interpretational in nature and there is no element of fraud or misrepresentation on the part of the appellant. Accordingly, extended period of limitation is not invokable in the present case - the impugned order is set aside and appeal is allowed [Read less]

GST – Section 100 of the CGST Act, 2017 - Condonation of delay in filing appeal before Appellate Authority of Advance Ruling – Petitioner challenge order passed by the Appellate Authority of Advance Ruling declining to entertain the petitioner’s appeal on the ground of barred by limitation – HELD - In terms of Section 100(2) of the CGST Act, 2017 an appeal to the Appellate Authority is required to be filed within a period of thirty days from the date on which the ruling sought to be appealed against is communicated to the aggrieved party - In the present case, the order dated 28.06.2019, passed by the Delhi Authori... [Read more]

GST – Section 100 of the CGST Act, 2017 - Condonation of delay in filing appeal before Appellate Authority of Advance Ruling – Petitioner challenge order passed by the Appellate Authority of Advance Ruling declining to entertain the petitioner’s appeal on the ground of barred by limitation – HELD - In terms of Section 100(2) of the CGST Act, 2017 an appeal to the Appellate Authority is required to be filed within a period of thirty days from the date on which the ruling sought to be appealed against is communicated to the aggrieved party - In the present case, the order dated 28.06.2019, passed by the Delhi Authority for Advance Ruling was promptly communicated to the petitioner. The petitioner had filed an appeal on 14.02.2020, which was beyond the period of thirty days as stipulated under Section 100(2) of the Act - petitioner became aware of the constitution of the Appellate Authority in terms of the notification dated 05.09.2019, sometime in the month of November, 2019 - Ignorance of the notification cannot be a ground for extending the period of limitation - The proviso to Section 100(2) of the Act makes it clear that the Appellate Authority can extend the stipulated period of thirty days for filing the appeal if it is satisfied that the appellant was prevented by a sufficient cause from presenting the appeal within the said period. However, the power of the Appellate Authority is confined to extending the said period by a further period not extending thirty days. Thus, in any event, the Appellate Authority did not have the power to entertain the appeal beyond a period of sixty days from the date of the communication of the order passed by the Appellate Authority – no fault the decision of the Appellate Authority in declining to entertain the petitioner’s appeal filed beyond condonable period of sixty days - The petition is dismissed [Read less]

Central Excise - Denial of MODVAT Credit on capital goods on the ground that the appellant-assessee has not capitalized the value of capital goods in books of accounts and have shown it as revenue expenditure – HELD - in the Chartered Accountant’s Certificate it is clearly mentioned that the appellant had neither claimed depreciation under Section 32 of the Income Tax Act, 1961 nor as revenue expenditure under any other provisions of the Income Tax Act, against the capital goods – further, the term ‘revenue expenditure’ has been removed by a retrospective amendment to the relevant Rules by Section 149 read with 6... [Read more]

Central Excise - Denial of MODVAT Credit on capital goods on the ground that the appellant-assessee has not capitalized the value of capital goods in books of accounts and have shown it as revenue expenditure – HELD - in the Chartered Accountant’s Certificate it is clearly mentioned that the appellant had neither claimed depreciation under Section 32 of the Income Tax Act, 1961 nor as revenue expenditure under any other provisions of the Income Tax Act, against the capital goods – further, the term ‘revenue expenditure’ has been removed by a retrospective amendment to the relevant Rules by Section 149 read with 6th Schedule to the Finance Act, 2003. Rule 57R(5) as well Rule 57(8) was retrospectively amended w.e.f. 23.07.1996 and 01.03.1997 respectively to remove the restriction that if the duty paid on capital goods has been booked as revenue expenditure, the assessee will not be eligible for MODVAT Credit - In light of said amendment, the legal position on the basis of which the demand has been confirmed having been changed - the impugned order cannot be sustained and set aside – assessee appeal is allowed [Read less]

Service Tax - Deduction of Foreign bank charges towards services rendered by Foreign bank in realization of export sale proceeds from foreign buyers - Service Tax liability on Reverse Charge basis on the amount deducted by the Foreign bank towards the bank charges under heading “Banking and other Financial Service” for the period 2006-2007 to 2010-2011 – HELD – appellants have submitted the documents for realization of export sale proceeds to their bank namely SBI, which in turn has used the services of the foreign bank for collection of export sale proceeds - the foreign banks who have rendered their services, hav... [Read more]

Service Tax - Deduction of Foreign bank charges towards services rendered by Foreign bank in realization of export sale proceeds from foreign buyers - Service Tax liability on Reverse Charge basis on the amount deducted by the Foreign bank towards the bank charges under heading “Banking and other Financial Service” for the period 2006-2007 to 2010-2011 – HELD – appellants have submitted the documents for realization of export sale proceeds to their bank namely SBI, which in turn has used the services of the foreign bank for collection of export sale proceeds - the foreign banks who have rendered their services, have deducted their charges while remitting the export sale proceeds to SBI. The appellant has never dealt with the foreign bank on his own and the Banking and Other Financial Service if at all was rendered only to SBI - The issue whether amount charged by the foreign bank while remitting export sale proceeds can be subjected to service tax or not, is no more res integra and stands settled in favour of assessee by the orders of the Tribunal - the impugned order is set aside and appeal is allowed [Read less]

Service Tax - Appellant is engaged in the manufacture of coffee/tea vending machines, which are either sold or rented out or lent, free of cost to its clients - appellant also effect sale of ingredients required for the preparation of coffee or tea, like premix coffee, tea, sugar, milk, etc., to its customers - whether the activity of the appellant in supplying non-alcoholic beverages to their clients at the clients’ place is covered under the definition of ‘outdoor caterer’ and taxable under outdoor catering service – HELD - the appellant satisfied the requirements of “caterer” and, because of the provision of... [Read more]

Service Tax - Appellant is engaged in the manufacture of coffee/tea vending machines, which are either sold or rented out or lent, free of cost to its clients - appellant also effect sale of ingredients required for the preparation of coffee or tea, like premix coffee, tea, sugar, milk, etc., to its customers - whether the activity of the appellant in supplying non-alcoholic beverages to their clients at the clients’ place is covered under the definition of ‘outdoor caterer’ and taxable under outdoor catering service – HELD - the appellant satisfied the requirements of “caterer” and, because of the provision of service at a place other than his place, he has also satisfied the conditions under “outdoor caterer” – The agreement inter-se parties is for providing coffee, tea or milk at the clients’ place and hence, going by the ‘golden rule’ of interpretation, the predominant character of the contract is the provision of service i.e., providing coffee, tea or milk and not the sale of ingredients thereof - the pith and substance of the contract between the parties is the provision of service, viz., providing coffee/tea/milk and, hence, the demand of Service Tax has been correctly raised on the appellant – judicial precedents does not ipso facto carve out exception to claim exemption from payment of Service Tax on the pretext of having paid State levy/VAT – assessee appeals are dismissed [Read less]

Service Tax – Rendering of works relating to ‘maintenance, renovation, relaying and repair of roads’ - Demand under categories of Management, Maintenance or Repair Service (MRS) or Commercial or Industrial Construction Service (CICS) – application of amendment vide Section 143W of the Finance Act, 2012 by the insertion of Section 97 in the Finance Act, 1994 – HELD - No service Tax was payable by appellant in view of the amendment incorporated vide Section 143W of the Finance Act, 2012 inserting Section 97 in the Finance Act, 1994 to the effect that there was no liability under Service Tax in respect of MRS for th... [Read more]

Service Tax – Rendering of works relating to ‘maintenance, renovation, relaying and repair of roads’ - Demand under categories of Management, Maintenance or Repair Service (MRS) or Commercial or Industrial Construction Service (CICS) – application of amendment vide Section 143W of the Finance Act, 2012 by the insertion of Section 97 in the Finance Act, 1994 – HELD - No service Tax was payable by appellant in view of the amendment incorporated vide Section 143W of the Finance Act, 2012 inserting Section 97 in the Finance Act, 1994 to the effect that there was no liability under Service Tax in respect of MRS for the period from 16.06.2005 to 26.07.2009 - non-obstante clause in sub-section (1) to Section 97 of the Act, clearly excludes the levy of Service Tax or the collection of the same in respect of management, maintenance or repair of roads during the period from 16.06.2005 to 26.07.2009 (both days inclusive). The dispute pertains to the period from 2005-06 to 2008-09, for which period, clearly, the amended Section 97 would apply and hence, the lower authority has erred in ignoring the amended provision and fastened the liability which is not in order - this ground of appeal is allowed - Demand Commercial or industrial construction Service - the definition of works contract under Section 65(105)(zzzza) ibid, specifically excludes from the purview of works contract the service rendered in respect of roads – Further, the Board Circular No. B-1/6/2005-TRU dated 27.07.2005 had clarified that when construction of road is not recognized as a separate activity, only then would it attract Service Tax - the appellant has made out a case for interference since the tax liability has been fastened without applying the amended provisions of law - Service Tax liability on Construction of Drivers Rest Amenity at Manali Terminal of Reliance Industries - the said activity is not relating to the construction or maintenance of road, which is a separate activity itself and hence, the same is amenable to Service Tax. The appellant appears to have taken a plea as regards the exclusion of value of road, etc., but however, the same has to be verified and the tax liability, if any, has to be re-quantified by the Adjudicating Authority - the impugned order is set aside and the appeal is partly allowed the impugned order is set aside and the appeal is partly allowed [Read less]

Service Tax - Banking and other Financial Services - Taxability of activity of providing corporate guarantee to associate companies – HELD - under service of BOFS only such persons can be made liable to service tax who can be classified in the category of being called as Banking/ non-banking Company, Financial Institutions, any other body corporate or a commercial concern. Above all, the definition carves out the list of category of the persons who would be excisable to tax under the category - appellant is not in business of financing, it is neither a banking nor a non-banking financial institute. Nor it is any other bo... [Read more]

Service Tax - Banking and other Financial Services - Taxability of activity of providing corporate guarantee to associate companies – HELD - under service of BOFS only such persons can be made liable to service tax who can be classified in the category of being called as Banking/ non-banking Company, Financial Institutions, any other body corporate or a commercial concern. Above all, the definition carves out the list of category of the persons who would be excisable to tax under the category - appellant is not in business of financing, it is neither a banking nor a non-banking financial institute. Nor it is any other body corporate or commercial concern which is into the business of extending financial supports - This fact is sufficient for us to hold that appellant cannot be covered under the category of such persons who would be excisable to tax under the category of - the appellant has given the corporate guarantee on behalf of their group companies but has not charged any commission or interest or fees for providing the said corporate guarantee – in the absence of any consideration involved, the question of the activity of extending corporate guarantee by the appellant to its associate companies cannot be called as service - the order under challenge is set aside and appeal stands allowed [Read less]

Central Excise - 100% EOU to DTA Clearance – While making clearance of goods to DTA assessee calculated CVD portion by availed the benefit of Notification No. 01/2011-C.E. dated 01.03.2011 - Department of the view that since there is no specific mention that Notification No. 01/2011 applies to EOU, assessee is not eligible for the benefit and thus short paid CVD portion of the duty for clearances of goods to DTA - while confirming the duty demand, the Commissioner held that though Notification No. 01/2011-C.E. is not applicable, the assessee is eligible for benefit of Notification No.02/2011-CE and quantified the duty @ ... [Read more]

Central Excise - 100% EOU to DTA Clearance – While making clearance of goods to DTA assessee calculated CVD portion by availed the benefit of Notification No. 01/2011-C.E. dated 01.03.2011 - Department of the view that since there is no specific mention that Notification No. 01/2011 applies to EOU, assessee is not eligible for the benefit and thus short paid CVD portion of the duty for clearances of goods to DTA - while confirming the duty demand, the Commissioner held that though Notification No. 01/2011-C.E. is not applicable, the assessee is eligible for benefit of Notification No.02/2011-CE and quantified the duty @ 5% in terms of Notification No. 02/2011 – HELD - While the Show Cause Notice stated that Notification 01/2011-C.E. is not meant for EOU, the Adjudicating Authority proceeded to quantify the demand of duty as per Notification No. 02/2011 dated 01.03.2011 – when there was absolutely no whisper in the SCN about Notification No.02/2011 the Department cannot quantify and confirm the demand as per Notification No. 02/2011-C.E at a later stage - This finding is beyond the scope of Show Cause Notice. For this reason itself, the Order-in-Original is vitiated and the demand raised therein cannot sustain - the Department is confused as to how to deny and how to quantify the demand in regard to CVD - In the impugned order, Ld. Commissioner has referred to Board Circular in F. No. B-1/3/2011 TRU dated 25.03.2011 so as to hold that the assessee has to pay duty as per Notification No. 02/2011-C.E which is with respect to ‘import of goods’ while the duty demand in the present case is on clearances made by the assessee to DTA - when the assessee has imported inputs duty-free, it is not possible for it to avail credit of inputs, hence, there is no possibility of fulfilling the condition of Notification No.01/2011 that assessee should not avail input credit - the demand confirmed by denying the benefit of Notification No.01/2011 and by applying Notification No. 02/2011 is not justified and set aside – the appeal is answered in favour of assessee and against Revenue [Read less]

GST – Punjab AAAR - Assessee appeal against impugned order passed by the AAR in so far as it lacks clarity on the issue raised in Advance Ruling application – Whether the issue raised by the appellant before the Authority for Advance Ruling is maintainable - Power of AAAR to remand back the case to AAR on the issue of maintainability – HELD - the question of maintainability was not examined at the AAR stage and it would be in the fitness of the things that the issue be re-examined by AAR itself - power of AAAR to remand back is not clearly detailed in the provision, however, the language used in the section 35A of t... [Read more]

GST – Punjab AAAR - Assessee appeal against impugned order passed by the AAR in so far as it lacks clarity on the issue raised in Advance Ruling application – Whether the issue raised by the appellant before the Authority for Advance Ruling is maintainable - Power of AAAR to remand back the case to AAR on the issue of maintainability – HELD - the question of maintainability was not examined at the AAR stage and it would be in the fitness of the things that the issue be re-examined by AAR itself - power of AAAR to remand back is not clearly detailed in the provision, however, the language used in the section 35A of the Central Excise Act, 1944 is similar to that used in Section 101 of CGST Act, 2017. Therefore, the jurisprudence so developed over the years may be referred as para-materia while ascertaining the ambit and scope of the powers of the AAAR - the Appellate Authority of Advance Ruling is empowered to remand back the appeal of the appellant to the AAR to re-examine the maintainability of the application filed by the appellant and accordingly pass the order on merit - The appeal stands disposed of [Read less]

GST – Punjab AAAR - Interpretation and applicability of the Notification no. 43/2017-Central Tax (Rate) dated 14.11.2017 where the raw cotton (narma) is procured by the appellant from the Kacha Arhtiya – person liable to pay tax under Reverse Charge Mechanism where the raw cotton is being supplied by the farmer through the Kacha Arhtiya to the appellant – HELD – appellant purchases raw cotton from Kacha Arhtiyas and the payment is also made to Kacha Arhtiya in his account through banking channels. Thereafter, the Kacha Arhtiya transfers the amount to agriculturist after deducting its commission - the definition of ... [Read more]

GST – Punjab AAAR - Interpretation and applicability of the Notification no. 43/2017-Central Tax (Rate) dated 14.11.2017 where the raw cotton (narma) is procured by the appellant from the Kacha Arhtiya – person liable to pay tax under Reverse Charge Mechanism where the raw cotton is being supplied by the farmer through the Kacha Arhtiya to the appellant – HELD – appellant purchases raw cotton from Kacha Arhtiyas and the payment is also made to Kacha Arhtiya in his account through banking channels. Thereafter, the Kacha Arhtiya transfers the amount to agriculturist after deducting its commission - the definition of supplier of goods in section 2(105) of the CGST Act includes his agent and, therefore, Kacha Arhtiya becomes supplier of goods. If a view is taken that supplier of goods is only the agriculturist and not Kacha Arhtiya, then it goes against the very definition of supplier - Thus, for the purpose of the said notification, the expression “agriculturist” would include the agent who acts on the behalf of the said person - It is clear from the notification, RCM liability is in respect of supply of goods and not in respect of services in connection with goods. Hence, the transaction between an agriculturist and that of Kaccha Arhtiya is a transaction involving supply of services and therefore, by no stretch of imagination, it could be covered under RCM Notification No. 4/2017-CT dated 28th June, 2017 - The applicant is liable to pay GST under reverse charge basis being a registered person in terms of Notification no. 13/2017-Central Tax (Rate) dated 28th June, 2017 as amended vide notification no. 43/2017-Central Tax (Rate) dated 14th November, 2017 and not the Kacha Arhtiya – The orders of Appellate Authority for Advance Ruling, Haryana relied by the appellant are in the nature of “in personam” and not “in rem” and therefore their applicability as well as their protection cannot be sought by the others who were not party to the said proceedings - order issued by the Authority for Advance Ruling is upheld and the appeal filed by the appellant is dismissed [Read less]