|
Advanced Search Options
Case Laws
Showing 121 to 140 of 420201 Records
-
2024 (11) TMI 1358
Rejection of Refund claim of 4% SAD levied under sec. 3(5) of the Customs Tariff Act, 1975 for import of adapter plate, power and control cables and APC receiver - mandatory endorsement as required under Notification No. 102/2007-Cus dated 14.9.2007 has not been made - HELD THAT:- The issue is no longer res integra in the light of the Larger Bench decision in Chowgule & Company [2014 (8) TMI 214 - CESTAT MUMBAI (LB)] Tribunal examined a reference of a related matter as to ‘whether to avail the benefit of Notification No. 102/2007, the condition 2(b) of the Notification is mandatory for compliance being a trader who cleared the goods on the strength of commercial invoices.’ The judgment went on to examine the genesis and object of the levy and the role of the exemption notification, which is very useful in understanding the issue.
CA’s Certificate along with the reconciliation statement has been provided supports the appellants prayer for sanction of refund. The CA’s certificate and Reconciliation Statement prescribed in Boards Circular is to provide a ledger/ document-based scrutiny of the claim and should ordinarily be relied upon to sanction the claim. If a serious evasion of duty was suspected physical inquiry could have been conducted by revenue with the buyers or in any other manner and the CA’s Certificate along with reconciliation statement discredited, while taking action to deny the claims.
There would then be proper ground to reject the claim and take any other action deemed necessary. Regular cash inflows are the lifeline of a business and blocking legitimate claims on half-baked reasons, without examining the developments in law, does a great dis-service to business and the trade and should be avoided.
-
2024 (11) TMI 1357
Refund application filed beyond the time limit specified u/s 11B - refund claim was filed which is beyond six months from the date of payment of duty and rejected the claim as being time-barred as well as holding that the assessment order was not challenged in a manner known to law - HELD THAT:- Amounts claimed were part of the export duty only and until final assessments are done, the excess duty paid cannot be quantified. This being so he should have remanded the matter back to the file of the Lower Authority to examine the claim after finalization of the assessment apart from the fact that the Original Authority had decided the matter ex-parte after a long delay thus violating the principles of natural justice. His action of rejecting the appeal was hence not in order. The judgments cited by revenue are not relevant to the facts of the case and are distinguished.
We find that this is a refund claim pertaining to Shipping Bill dated 06/08/2008. The claim was rejected by the said Lower Authority, after six years, without affording the appellant any hearing vide order dated 24/12/2014, on the ground that the appellant had not challenged the order of assessment. Such an action was not legal and proper when the assessment was provisional and the order was also passed violating the principles of natural justice.
As held by Constitutional Courts, whenever an order is struck down as invalid being violation of principles of natural justice, there is no final decision of the case and, therefore, proceedings are left open. All that is done is that the order assailed by virtue of its inherent defect is vacated but the proceedings are not terminated. [See Guduthur Bros. Vs Income Tax Officer, Special Circle, Bangalore [1960 (7) TMI 5 - SUPREME COURT] and Superintendent (Tech. I) Central Excise, I.D.D. Jabalpur and Ors. Vs Pratap Rai[1978 (4) TMI 97 - SUPREME COURT]].
The impugned order has also been found defective as stated above. This being so the appeal succeeds. However, the fact of final assessment of the SB is not available and hence the matter needs to be remanded back to the file of the Original Authority to examine the matter on the basis of the finally assessed SB on merits.
Considering the considerable delay involved and the improper application of law and procedure in the matter, it is desirable that the matter be monitored by the jurisdictional JC / ADC of Customs, Custom House, Chennai, to ensure that there is no further delay in the matter by the Original Authority and that the issue is finalised within 90 days of receipt of this order.
-
2024 (11) TMI 1356
Refund claim - rejection of refund claim for non-fulfillment of conditions 2(e)(iii) since the date of sales invoice being prior to out-of-charge and he also rejected the claim for non-fulfilment of condition 2(c) of Notification No. 102/2007 dated 14.9.207, since the refund claim pertained to Kolkata Port.
Whether the degree of negligence is so high that a substantive matter of refund is to be denied due to a procedural lacuna? - HELD THAT:- As since the refund was filed on time albeit in the wrong jurisdiction the claim could not have been rejected on the ground of time bar but should have been transferred to the Competent Authority. That being the case, the claim has to be examined and decided by the proper officer having jurisdiction over the matter, since any order passed without jurisdiction would be void ab initio, as such a defect cannot be correct even by consent of parties (See Kiran Singh & Ors. Vs. Chaman Paswan & Ors.[1954 (4) TMI 48 - SUPREME COURT].
In the circumstances the appeal is allowed by way of remand with a direction that the preferred claims may be placed before the jurisdictional authority by the respondent within 30 days of receipt of this order, who shall then examine and finalize the matter within 60 days of receipt of the claim paper from the respondent. The appellant shall also cooperate in ensuring the same.
-
2024 (11) TMI 1355
Classification and duty liability - Import of ‘diagnostic reagents’ on which liability to duties of customs was determined, under section 17 of Customs Act, 1962 - denial of benefit of notification no. 50/2017-Cus dated 30th June 2017, as also recourse to serial no. 453 of Schedule III of IGST notification no. 01/2017 (Integrated Tax Rate) dated 28th June 2017 for discharge of ‘integrated tax’ for the purpose of section 3(7) of the Customs Tariff Act affirmed the detriments to them - claim for assessment at rate of duty corresponding to tariff item 3822 0090 of First Schedule to the Customs Tariff Act has been wrongly denied and that observance of the essence of assessment, in accordance with section 17(5) of the Customs Act for disputed classification to warrant issue of ‘speaking order’ in its breach was not considered at all.
HELD THAT:- Claim of the appellant herein for classification, with lower duty liability in consequence, had been preferred in the bill of entry is not in dispute; such are entered in the ‘check list’ which, upon discharge of duty liability, is transformed as assessed bill of entry for clearance from customs control under section 47 of the Customs Act. The revision occurred between filing of bill of entry and the conclusion of mandate under section 17 of the Customs Act and, all this while, except by foregoing release of goods, albeit temporarily, the importer is under the absolute power of ‘proper officer’ which appears to have caused them to acquiesce in the determination of higher duty burden.
Such misdirection of ‘self-assessment’ is inappropriate exercise of statutory authority and it is but proper for superior authorities to set right such travesty of law. A copy of this order may, therefore, be placed before Chairman, Central Board of Indirect Taxes & Customs (CBIC) for his attention.
Affirmation of re-assessment without any material to go by invalidates it ab initio. The lack thereof should have prompted the first appellate authority to enforce compliance with consequence of revision. Not having done so invalidates the impugned order.
Accordingly, we set aside the impugned order and restore the bills of entry before the original authority for disposal in the manner set out in section 17 of the Customs Act. These appeals are allowed by way of remand.
-
2024 (11) TMI 1354
Rejection of cross-examination of six DRI officers and one co-noticee by the competent authority - HELD THAT:- Main objective of cross-examination is to challenge the accuracy, credibility, and reliability of the testimony provided by any witness in a proceedings before the Original Authority. Cross-examination of a witness can be requested when his statement is used against the appellant in adjudication proceedings which is not the situation in this case.
This is a case where cross examination is sought mainly of DRI officials who have recorded statements of individuals. The officers have no personal interest in the matter. It is not the case of the appellant that any statement relied upon by the revenue in the SCN, has been made / taken from the said officers / persons and hence an opportunity of cross-examining the maker of the statement should be given.
The reason given for the request to cross examine the said officials is to ascertain facts relating to the alleged absconding of the said Sheikh and Jamal and as they have doubts regarding the efficacy and integrity of the investigation conducted. It is also not shown that the said persons are the officers investigating the where abouts of the said Shri Sheikh and Jamal or have merely recorded the statements of the individuals. In any case the officers are not a material witness in the lis.
Further the appellant cannot direct the manner in which the investigation should be conducted by an investigative agency as it would tantamount to interference with the functioning of the agency. Any facts noticed regarding the efficacy and integrity of the investigation conducted can be brought out in their reply to the SCN, so as to seek a favorable order.
Section 24 of the said Act, which deals with matter relating to criminal proceedings and has more stringent safeguards, makes it clear that mere retraction of a statement is of no avail, unless the conditions stated therein are demonstrated, otherwise the confession does not loose its evidentiary value. Hence the decision of the Ld. Adjudicating Authority cannot be faulted for not permitting the cross examination of the impugned persons, when no statement has been recorded from the officers incriminating the appellant and the appellant had himself made a confessional statement that is valid evidence. It cannot be held that the decision was unreasonably or capriciously or vague etc. In fact admission is the best piece of substantive evidence that can be relied upon. [See United India Insurance Co. Ltd. and Anr. Vs Samir Chandra Chaudhary [2005 (7) TMI 701 - SUPREME COURT]]. Though not conclusive, it is decisive of the matter, unless shown to be obtained by inducement, threat, or promise or is proved erroneous.
Section 122A of the Customs Act which deals with ‘Adjudication Procedure’ does not mention that an opportunity of cross-examination should be given, let alone that a reply to the Show-Cause Notice should be given after cross-examination if any. The permission for cross-examination has evolved as a part of the principles of natural justice. But it is not a straight jacket formula, and grant of cross examination is dependent on the discretion of the Adjudicating Authority to be exercised in a judicious way. The appellant is free to make his written submissions to the SCN both prior and post the cross-examination or further, during the personal hearing. So the lack of an opportunity of cross examination should not incapacitate the appellant from submitting his reply to the issues raised in the notice.
When the impugned decision denying cross-examination was taken by the officer acting within the scope of his powers. It has been taken judiciously and can’t be said to be arbitrary, vague or fanciful. It cannot hence be substituted just because the appellant feels that another view may be possible.
-
2024 (11) TMI 1353
Chargeability of Clean Energy Cess on Metallurgical Coke imported - Rejection of appeal filed by the appellant on the ground of time bar and maintainability - HELD THAT:- We observe that the Bills of Entry were filed in the months of January and February 2015. The appellant has not raised the issue for more than a year. The appellant raised the issue of non issue of order u/s 17(5) of the Customs Act, 1962, after more than one year from the date of clearance of the goods. A perusal of the Bills of Entry shows that the Bills of entry were finally assessed and there was no re-assessment. Thus, we do not find any merit in the claim of the appellant that there was re-assessment of the Bills of Entry done by the assessing officers and they are required to issue order under section 17(5) of the customs Act, 1962.
The appellant filed a grievance letter in the CPGRAMS portal, for which a reply dated 12.09.2018 was given indicating the factual position and why no order was required to be issued under Section 17(5) of the Customs act, in this case. Thus, we observe that the Ld. Commissioner (Appeals) has rightly rejected the appeal filed by the appellant on the ground of time bar and maintainability. As the letter dated 18.09.2018, is not an order issued under Customs Act, 1962, we do not find any infirmity in the impugned order issued by the Ld. Commissioner (Appeals), rejecting their appeal.
Uphold the impugned order passed by the Commissioner (Appeals) and reject the appeal filed by the appellant.
-
2024 (11) TMI 1352
Admissibility of petition - initiation of CIRP - Validity of demand for interest and repayment of principal amount by the Financial Creditor - Existence of debt and default or not - Time limitation - HELD THAT:- As per provisions of Section 5(8) of IBC, 2016, financial debt means a debt alongwith interest, if any, which is disbursed against the consideration for the time value of money. In the present case money has been disbursed to the Corporate Debtor towards time value of money and interest is shown as due in the ledger accounts of the Corporate Debtor. The total interest due is more than Rs. 1 crore and was demanded by the Financial Creditor through letter dated 22.01.2019 which was not paid by the Corporate Debtor. Thus, the debt of above Rs. 1 crore was due, was demanded and was payable which was not paid by the Corporate Debtor. The ingredients of petition under Section 7 of the IBC, 2016, mainly existence of debt, and default are established in this case, and the Corporate Debtor was eligible to be admitted in CIRP on application under Section 7 of IBC, 2016.
Time limitation - HELD THAT:- The application under Section 7 of the IBC, 2016 was filed on 30.05.2022. The Appellant itself as Director of the Corporate Debtor had acknowledged the debt in the ledger accounts of Financial Year 2016-17, 2017- 18 and 2018-19 through confirmation of accounts including the last dated 01.04.2019 appearing at page 104 of the Appeal Paper Book. The three year period, since the acknowledgement, expired on 31.03.2022. However, as per the direction of the Hon'ble Supreme Court in Suo Moto Writ Petition No. 3 of 2020 decided on 10.01.2022 [2022 (1) TMI 385 - SC ORDER], the period from 15.03.2020 till 28.02.2022 is to be excluded for counting of limitation under any law. Excluding the said period, the present petition under Section 7 was filed within the limitation period by the Financial Creditor.
The Ld. NCLT has rightly admitted the Corporate Debtor in CIRP on an application under Section 7 of IBC, 2016 filed by the Financial Creditor. We do not find any reason to interfere in the impugned order of Ld. NCLT - The appeal, devoid of merit, is dismissed.
-
2024 (11) TMI 1351
Admission of section 7 application - Respondent No. 1 and Respondent No. 2 are related parties, who in collusion and connivance with the ex- management/promotor/director/shareholder of Respondent No. 1 i.e. Respondent No. 3 to 5 initiated the CIRP - HELD THAT:- The Respondent No. 3 who happened to be a director and shareholder in all three companies, namely, Navayuga, Respondent No. 1 and Respondent No. 2. In Navyuga he is director and 21.77% shareholder, in Respondent No. 1 he was a Promotor and director till 2015 and 33.34 % shareholder and in Respondent No. 2 he is a director & 66.66% shareholder which shows that this case shall come within Section 5(24)(m)(i) and (iii) of the Code as Respondent No. 3 is controlling more than 20% of the voting share of these companies and also the assignor.
It has been held by the Hon’ble Supreme Court in the case of Phoenix ARC (P) Ltd. [2021 (2) TMI 91 - SUPREME COURT] that amount disbursed to third party that too by the related party will not qualify as a financial debt under the Code. It has also been held in the case of Hytone Merchants Pvt. Ltd. [2021 (7) TMI 60 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] that even if Section 7 of the Code ingredients are fulfilled then also if collusion is proved CIRP can be set aside. The Appellant has specifically averred in para 33 of the appeal paper book about the presence of Respondent No. 3 in all three companies as shareholder and director which has not been denied by Respondent No. 2 and 3 in their reply, firstly, there is no parawise reply filed and secondly in the reply the emphasis is more on the issue as to how the provision of Section 5(24) is attracted about which an inference can be drawn that the allegation of the Appellant about Respondent No. 3 is correct and once he was the director/promotor 33.34% shareholder in Respondent No. 1 and Director in both Navayuga and Respondent No. 2 with 21.77% and 66.66% shareholder, it cannot be said that he was not a related party especially when it is incorporated in the financial statement of the CD much less Note 3 of the audit report that long term borrowings the amount in question, is taken from the related parties. The collusion between Respondent No. 1 and Respondent No. 2 can be ascertained from such circumstances.
There are no doubt that the petition filed by Respondent No. 2 against Respondent No. 1 was collusive and for a purpose other than for the resolution of insolvency and hence the impugned order by which Respondent No. 2 has pushed Respondent No. 1 into CIRP is hereby set aside.
Appeal allowed.
-
2024 (11) TMI 1350
Money Laundering - cognizance of the offence by Trial Court - whether such cognizance was valid given the ongoing investigation? - retrospective applicability of Explanation-II to Section 44(1)(b) of the PMLA - impugned order passed without taking into consideration the entirety of the matter - violation of principles of natural justice - HELD THAT:- In Devarapally Lakshminarayana Reddy v. V. Narayana Reddy, [1976 (5) TMI 101 - SUPREME COURT], the Hon’ble Supreme Court elucidated the scope and purview of the term ‘taking of cognizance’ and gave a detailed explanation thereof. It was observed that the stage, at which cognizance of an offence is taken, depends upon the facts and circumstance of the particular case - It was held that taking cognizance of an offence is subjective to each case and mere issuance of a search warrant or a warrant of arrest does not, by itself, mean that cognizance of the offence has been taken rather cognizance of the offence is said to be taken only when the Court applies his mind to proceed further under Section 200 (now Section 223 of the BNSS) or under Section 204 of Chapter XVII of the CrPC.
Under the PMLA, a Special Court can only take cognizance of an offence under Section 3 of the PMLA, punishable under Section 4 of the PMLA, based on a complaint filed by the ED. It was held that while Section 46 of the PMLA stipulates that the provisions of the CrPC apply to proceedings before the Special Court as well since it functions like a Sessions Court as the phrase “save as otherwise provided in PMLA” allows exceptions - in the absence of any overriding provision in the PMLA, Sections 200 to 204 of the CrPC (now Section 223 to 227 of the BNSS) duly applies to complaints filed under the PMLA. This means that the Special Court must assess if a prima facie case exists for an offence under Section 3 of the PMLA. If no such case is found, the Court can dismiss the complaint under Section 203 of the CrPC, however, if a prima facie case is established, the Court may proceed under Section 204 of the CrPC.
As per the settled position of law, cognizance under Section 44 (1) (b) of the PMLA is based on the prosecution complaint filed by the ED pursuant to an investigation and the said complaint duly incorporates the gist of the offences and the manner in which the offences were committed by the accused persons, accompanied with the evidence collected during the statement along with the statement of witnesses and accused.
The CrPC provisions related to investigation are applicable to investigations under the PMLA. Furthermore, Section 46 of the PMLA states that the provision of the CrPC applies to proceedings in Special Courts under the PMLA, making the Special Court equivalent to a Court of Sessions. Unless stated otherwise in the PMLA, CrPC provisions, including those on bail and preliminary procedures (Sections 200 to 204 of the CrPC), apply to PMLA cases - there is no doubt that a supplementary complaint can certainly be filed by the respondent ED against an accused, who is already facing prosecution for offence under Section 3 of the PMLA before the Special Judge.
It is evident that when an investigating agency is authorized to conduct the investigation and carries out additional investigation to collect further evidence, the concerned agency has the right to submit a supplementary complaint to present the newly collected material on record - Upon the perusal of Explanation-II to Section 44 (1) (b) of the PMLA, it is revealed that it has been explicitly stated that the ED has the right to include any subsequent complaint in order to conduct further investigation into an alleged offence against the accused persons. This is to bring forth additional evidence, oral or documentary against any accused person for which a complaint has been already filed, whether named in the original complaint or not.
This Court is of the view that an initial complaint can be filed under Section 44 of the PMLA, even if the investigation is not fully completed, especially in light of the Explanation-II, introduced in the year 2019, which permits the filing of a supplementary complaint - this Court does not find any force in the arguments of the petitioner that the cognizance has been taken illegally as the complaint was filed pending investigation due to filing of subsequent complaints.
There is no illegality in the order passed by the learned ASJ-03, North West District, Rohini Courts, Delhi, in Ct. Case No. 515651/2016 and the same is, hereby, upheld - Petition dismissed.
-
2024 (11) TMI 1349
Validity under the Voluntary Compliance Encouragement Scheme (hereafter VCES) - SCN Issued to the taxpayer alleging wrongful availing of cenvat credit in regard to the service tax paid on “medical insurance services” provided to the taxpayer’s employees during the period from 2007-08 to 2011-12 - whether the taxpayer was ineligible to furnish a declaration under VCES in terms of Section 106 (1) of the 2013 Act on account of the audit report dated 22.09.2010 and the SCN?
HELD THAT:- The question is not whether any exercise for determining the service tax dues had been conducted or whether an ascertainable quantum of outstanding service tax had been reported. The opening sentence of Section 106 of the 2013 Act is unambiguous, and expressly provides that any person may make a declaration with respect to the dues in respect of which “no notice or an order of determination under Section 72 or Section 73 or Section 73A of the Chapter had been issued or made before the 1st day of March, 2013”. Thus, for the said exception to apply, it would be necessary that an order of determination under Section 72, Section 73 or Section 73A of the 1994 Act had been issued. Clearly, an audit report is not an order of determination under either of the aforesaid sections, as mentioned in the opening sentence of Section 106 (1) of the 2013 Act.
Issuance of the SCN - There is no cavil that SCN was a limited notice in respect of service tax dues relating to the medical insurance services provided to the taxpayer’s employees. The taxpayer’s declaration under Section 107 of the 2013 Act was not in respect of the said dues. The order-in-original dated 24.05.2016 also indicates that the taxpayer was entitled to file a declaration in respect of the dues that were not covered by an earlier demand cum show cause notice. On that basis, the taxpayer’s declaration was partly allowed.
Thus, since the SCN did not cover any of the dues in respect of which a declaration was filed, the taxpayer cannot be deprived of the benefit of VCES. We find no infirmity with the decision of the learned CESTAT in allowing the taxpayer’s appeal.
-
2024 (11) TMI 1348
Receipts pertain to export of services or not? - Demand by deviating the basis issue as to whether the receipts pertain to export of services or not - HELD THAT:- Original Authority accepted the activity undertaken by the appellant as ‘export of service’ and dropped the proceedings by considering all the evidences on record.
As find that on appeal filed by the Revenue, Commissioner (Appeals) without considering the reasons on the basis of which the Original Authority has dropped the proceedings, proceeded to confirm the demand on the basis of irrelevant discrepancies which was not the issue for determination especially when the Original Authority has accepted the receipts to be export proceeds on the basis of FIRC which is a legal document for acceptance of proof of export of service.
The entire proceedings against the appellant were initiated on the basis of gross receipts as shown in the Income Tax Returns and Form 26-AS for the year 2014-15.
The entire demand in the present case is barred by limitation because the Show Cause Notice was issued on 29.09.2020 but the same was served on 18.02.2022 whereas the period of demand is October 2014 to March 2015; and Commissioner (Appeals) has not given any finding on the limitation.
The extended period of limitation can only be invoked when the department establishes by cogent evidence that there is a suppression of material facts at the appellant’s end with intent to evade payment of duty, whereas in the present case there is no suppression because the Show Cause Notice is based upon the documents including bank account and Income Tax Returns.
-
2024 (11) TMI 1347
Demand of service tax under the head of Mandap Keeper Services - invoking extended period of limitation - HELD THAT:- As the appellant is a statutory body and no individual would gain from avoiding or evading tax. In these circumstances, we concur with the aforesaid decision to hold that there cannot be any intention to evade payment of duty and therefore, invocation of extended period of limitation cannot be sustained. The appellants can only be liable for the period within the period of limitation.
Liability of tax for the period post 01.07.2012 - Taxability of services provided by a government authority under the negative list post 01.07.2012 - Revenue has sought to classify the service in the nature of Mandap Keeper Service under the category of ‘support service - No merit in the argument of Revenue that the service in the nature of Mandap Keeper can be classified under the category of ‘support services’. From the definition of ‘support services’, it is clear that only the services which are in the nature of outsourced services i.e. the functions that entities carry out in ordinary course of operations themselves but may obtain as service by the outsourcing from others for any reason whatsoever. The services in the instant case do not qualify as ‘support services’ and therefore, the services provided by the appellant are covered under the negative list. In these circumstances we find that after 01.07.2012 the services provided by the appellant are covered by the negative list.
-
2024 (11) TMI 1346
Demand of Service Tax and imposition of penalties - appellant conducts Cricket Matches in International Level, National Level and State Level at different places in Vadodara region - service provider/service receiver relationship between the appellant and BCCI for the purpose of levying service tax
appellant was receiving subsidies/assistance from BCCI from time to time. The appellant had also received certain capital equipment from BCCI. Under the mistaken belief that the capital equipment is additional subsidy/assistance from BCCI, the appellant paid service tax thereon. Later on, the BCCI informed that them the said capital received is part of the total subsidies/assistance from BCCI and not in addition to it. The appellant had also paid the service tax on “total subsidy”. Later on BCCI raised debit note on the appellant. In respect of the value of the goods supplied as capital equipment. Consequently, the appellant took suo moto re-credit of the service tax paid on the capital equipment
HELD THAT:- The appellant had received certain equipment from BCCI and under the impression that the said equipment is in addition to the grant given by the BCCI, the appellant discharged service tax thereon. Later on, when debit note was raised by the BCCI, the appellant released that the equipment received was part of the grant and not in addition to it and consequentially corrected the situation by taking re-credit of the service tax paid on capital equipment.
Similar facts are mentioned in the statement of the Head of Account of BCCI. In the said statement against question No. 8, 9 and 10, Shri Vidyadhar Laxman Sahasrabudhe has observed that BCCI has debited an amount of Rs. 4.14 Crore from the account of BCA maintained by them by way of issuing debit note dated 31.03.2014. Shri Vidyadhar Laxman Sahasrabudhe also submitted the relevant ledgers for 2013-14. In similar circumstances in the case of Saurashtra Cricket Association [2022 (11) TMI 152 - CESTAT AHMEDABAD] the tribunal had relied on the observations made by Tribunal in the case of Vidarbha Cricket Associate [2014 (1) TMI 204 - CESTAT MUMBAI (LB)] to allow the benefit.
The decision of Tribunal in the case of Saurashtra Cricket Association [2022 (11) TMI 152 - CESTAT AHMEDABAD] has been upheld by the Hon’ble Apex Court as reported [2023 (5) TMI 814 - SC ORDER]. Appeal allowed.
-
2024 (11) TMI 1345
Delay passing adjudication order - Short payment of the differential service tax - discharging service tax liability on construction services after taking 67% abatement in terms of Notification No. 01/2006-ST dated 01.03.2006 - HELD THAT:- The period of dispute 2008-09 to 2010-11 and show cause notice was issued on 16.10.2014 whereas the Order-in-Original was passed on 22.03.2021 approximately after the expiry of seven years and there has been no correspondence from the department at all for a period of seven years; the department has not been able to give any cogent reason for such a delay in adjudication; the delay in adjudication has resulted in lapsing of other benefits of the appellant and has increased unnecessary interest liability on the appellant; therefore, the impugned order in first instance is violative of the principle of natural justice and is liable to be set aside as held in the cases of Unnayak Prop [2009 (7) TMI 947 - CESTAT, KOLKATA] and Shirish Harshvadan Shah[2010 (1) TMI 508 - BOMBAY HIGH COURT]
Appellant has opted for the abatement scheme provided in Notification No. 01/2006-ST dated 01.03.2006 and has fulfilled all the conditions specified in the said notification and there is no dispute in this regard. Once the appellant has opted for the benefit of that notification and admittedly the said notification has not been withdrawn even after framing the composition scheme under the Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007. Further, under the composition scheme, the appellant was required to give option for the same in terms of Rule 3 of the said Rules, whereas, in the present case, the appellant has not opted for the said scheme and continued to avail the benefit under Notification No. 01/2006 after fulfilling all the conditions prescribed therein.
Decision of the Tribunal in the case of Bharat Heavy Electricals Ltd [2012 (4) TMI 197 - CESTAT, MUMBAI] is applicable in the present case and benefit of the Notification No. 01/2006 cannot be denied to the appellant once they fulfilled the conditions of the same.
Denial of benefit of Notification No. 01/2006-ST dated 01.03.2006 is bad in law therefore set aside the impugned order and allow the appeal of the appellant with consequential relief, if any, as per law.
-
2024 (11) TMI 1344
Classification of services - whether the works undertaken by the appellant are “original works” or “completion and finishing services”?
Claim of abatement as per the Notification No.11/2014-S.T., dated 11-7-2014 during the relevant period - HELD THAT:- To invoke the proviso to Section 73 of the Finance Act, 1994, one of the ingredients such as fraud, collusion, wilful misstatement, suppression of facts or contravention of any of the provisions of this Chapter or the rules made thereunder with intent to evade payment of service tax, has to be established. In the instant case, there is nothing on record to establish that the appellant had suppressed any of the facts or there was any intention to evade payment of duty.
In the case of Uniworth Textiles Ltd. [2013 (1) TMI 616 - SUPREME COURT] observed that unless there is positive evidence to prove that the appellant had suppressed the facts or contravened the provisions of the act, the extended provisions of limitation cannot be extended. Since, in the instant case, nothing is on record to prove the same, we are not inclined to confirm the demand beyond the normal period.
Services rendered to the SEZ unit - the only objection taken by the Revenue is the Form A-2 which includes the specified services duly authorized is mentioned as “works contract services” but the specified services to be received by the SEZ unit are “Architect Services” - HELD THAT:- In the instant case, admittedly, the services were rendered to the SEZ unit by the appellant, the only objection raised was that the services rendered was ‘Works Contract Services’ while it is mentioned in the form as ‘Architect services’. The fact that services were rendered to the SEZ unit is not disputed and both the services are eligible for the benefit of exemption as per the letter dated 02.01.2018 issued by the Department of Commerce (SEZ Section), therefore, we do not find any reason to deny the exemption. Hence, the impugned order to this extent is set aside.
The demand of Service Tax is confirmed for the normal period along with interest with regard to the ‘works contract services’ undertaken by the appellant in terms of Rule 2A(ii)(B)(ii) of Service Tax (Determination of Value) Rules, 2006. The demand is set aside for the services provided to the SEZ unit. Penalty under Section 78 of the Finance Act, 1994 is also set aside. The appeal is allowed by way of remand for redetermination of duty only for the normal period relating to ‘Works Contract Service’ rendered and for services meant for other than SEZ units.
-
2024 (11) TMI 1343
Demand of service tax on the price at which the appellant had sold the coal rejects - HELD THAT:- Demand is not sustainable because service tax is not a tax on the sale of goods. If the appellant had received some coal rejects, for instance, and an amount of Rs. 100 is deducted from the service charges by the client towards these coal rejects, service tax has to be paid without this deduction of Rs. 100/- from service charges. The appellant did so.
Now, if the appellant subsequently sells this coal rejects either as such or after mixing it with some other coal and sells them for Rs. 150, this amount is the value of coal the rejects sold by the appellant on which the appellant may be required to pay VAT/ sales tax. According to the appellant it had paid appropriate VAT to the State Government. The demand of service tax on the sale price of rejects is beyond the scope of the Finance Act, 1994 because service tax can be levied only on the consideration received for the services and not on a goods sold by the appellant. Service Tax has already been discharged on the entire value of consideration this as is evident from the invoices.
In this case, the appellant already paid service tax on the entire amount of beneficiation charges without deducting the value of the coal rejects. Therefore, the entire amount of service tax having been paid, the demand of service tax again on the value of coal rejects sold by the appellant in the four show cause notices confirmed in the two impugned orders is totally misconceived. No service tax can be levied on the sale of goods as proposed in the show cause notice on them as service charges for coal beneficiation. Appeal allowed.
-
2024 (11) TMI 1342
Levy of penalties - wrong availment of CENVAT credit based on fraudulent invoices without receiving goods by the assessee - HELD THAT:- Evidently, Rule 26(2) of the Central Excise Rules provides for imposing penalty on any person who either issues an excise duty invoice without delivery of goods specified therein or abets in making any such an invoice or any other document or abets in making any such document on the basis of which a user of the invoice or the document is likely to take or has taken ineligible benefit under the Act or Rules. In this case, the allegation in the SCN as well as affirmation in the impugned order is that the assessee had taken CENVAT credit on the strength of fraudulent invoices issued by M/s Ridhi Sidhi without supplying of the goods - The role of Shri Prem Jain is as the Director of the assessee and the role of Shri Gyan Jain is as the General Manager of the assessee. Neither the assessee nor Shri Prem Jain nor Shri Gryan Jain have either issued invoices or abetted issuing of the invoices according to the show cause notice or the impugned order. Therefore, Shri Prem Jain and Shri Gyan Jain are not covered by Rule 26 (2).
Rule 15A of CCR, provides for penalty for violations of CCR not elsewhere specified. The CCR provide for availment of CENVAT credit by an assessee subject to some conditions and after following certain procedures. If there are violations of CCR, they can be violations by the assessee - There is also no provision for imposing penalty upon the Director or the General Manager or other functionary of assessee under the CCR. Rule 15A of CCR, therefore, also does not apply to the Director or General Manager of the assessee.
Thus, neither Rule 26 (2) of Central Excise Rules, 2002 nor Rule 15A of CCR under which the penalty was imposed on Shri Prem Jain and Shri Gyan Jain apply to the facts of this case. The penalty imposed on them cannot be sustained as it is imposed without any authority of law - It also needs to be pointed out that while penalties were imposed under two different Rules [Rule 26(2) of the Central Excise Rules and Rule 15A of CCR ] the quantum of penalty imposed under each of them has also not been indicated in the order of the Additional Commissioner which was upheld by the impugned order by the Commissioner (Appeals).
The impugned order is set aside insofar as it relates to the penalties imposed on Shri Prem Jain and Shri Gyan Jain - Appeal allowed.
-
2024 (11) TMI 1341
Liability of Appellant to pay Central Excise duty on pre-budgeted stock of branded garments lying in its godown after it has been made taxable by N/N. 12/2011 dated 01.03.2011 - HELD THAT:- The brand names were put by the job-workers and not by the Appellant on the garments manufactured and cleared at the job workers end.
For excise taxable events it is manufacturing itself that would determine the taxability but duty can be levied and collected at a later stage for convenience of administration and removal can be made taxable event in terms of Rule -9A of Central Excise Rules, 1944.
It would be worthwhile to mention that Rule 9-A that was meant for determination of the date of duty and tariff valuation has been deleted from the statute book since 2001 with introduction of New Central Excise Rules in place of old Rules of 1944 and therefore, by invoking the same, duty liability cannot be fastened on the Appellant on the basis of removal of goods from godown when these were already cleared upon payment of NIL rate of duty prevailing then.
The impugned order is set aside - appeal allowed.
-
2024 (11) TMI 1340
Benefit of N/N. 33/2022-CE dated 09.07.2012 - liability to pay Education Cess and Secondary Higher Education Cess - recovery alongwith interest and penalty - HELD THAT:- The issue of liability to pay Education Cess as well as Secondary Higher Education Cess in the facts of the present case involves interpretation of statute which issue is sub-judice, before the Hon’ble Apex Court. When such is the case, no mens rea could be attributed to the Taxpayer, especially since the appellant is claimed to have remitted the disputed cess of Rs.88,494/- along with applicable interest thereon vide Challan No. 21 dated 27.10.2014 and hence, there is no scope to burden the appellant with penalty under Section 25 ibid.
The impugned order is set aside - matter remanded back to the Original Authority who shall wait for the verdict of the Hon’ble Apex Court in the case of SRD Nutrients Pvt. Ltd. [2022 (1) TMI 615 - SUPREME COURT] - appeal disposed off by way of remand.
-
2024 (11) TMI 1339
Default in payment of duty beyond 30 days from the due dates - bar to utilize the Cenvat Credit - violation of Rule 8(3A) of CCR - Extended period of limitation - penalty - period from January 2011 to March 2014 - HELD THAT:- The issue as to whether the Assessee can utilise the CENVAT credit toward payment of duty when in default is no more res integra and many judicial authorities have held that the provision of Rule 8(3A) of Central Excise Rules, 2002 as ultra vires to the Main Act. The Hon’ble Gujarat High Court in the case of M/s. Indsur Global Ltd. Vs. UOI [2014 (12) TMI 585 - GUJARAT HIGH COURT] struck down the condition in Rule 8(3A) for payment of duty “without utilizing the CENVAT credit as unconstitutional and invalid.
It is found that the Department had preferred an appeal against the decision passed in Indsur Global Ltd. before the Hon’ble Supreme Court. The Ld. Counsel for the appellant has submitted before us that the appeal filed by the Department in Indsur Global Ltd. has been disposed by the Hon’ble Apex Court [2024 (7) TMI 1559 - SC ORDER (LB)]. The appeal was referred to the Lok Adalat proceedings before the Hon’ble Supreme Court and settlement has been arrived at. The effect is that the stay order having merged with the order of settlement, stands vacated. The decision rendered by the Hon’ble High Courts of Gujarat and Madras in the above cases would revive and be in force as a precedent. Under such circumstances, the judgements referred by the Ld. AR does not support the cause of revenue.
The demand raised alleging violation of Rule 8(3A) cannot sustain and requires to be set aside. Ordered accordingly. Since the demand itself does not sustain, the invocation of extended period and imposition of penalties does not arise - the impugned order is set aside - appeal allowed.
............
|
9911796707
