Latest Uploads: Rajasthan High Court: Penalty under Section 61 of RVAT Act is not automatic on short payment of tax due being found [2014-VIL-280-RAJ]| Maharashtra: Amendment to MVAT Rules, 2005 | Uttar Pradesh: Amendment in UPVAT Schedule-I and Schedule-II | West Bengal: Changes made in WBVAT Act, 2003 and in WBVAT Rules, 2005 | Supreme Court Constitution Bench terms law to set up National Tax Tribunal as unconstitutional [See Judgement in ‘Notes & News’] | Rajasthan: Amendment in rate of tax on cigarettes | Gujarat: Amendment regarding Input Tax Credit | Himachal Pradesh Value Added Tax (4th Amendment) Rules, 2014 | Andhra Pradesh Notification: Reduction in rate of tax on ATF | Madhya Pradesh Ordinance - Amendment in MPVAT Act & Schedule | Proposed Draft Amendments in Chhattisgarh VAT Rules [See 'Notes & News'] | Madhya Pradesh : Amendments in the MP VAT Rules | Summary for the month of August [See 'Notes & News']

Recent Updates

2014-VIL-220-CESTAT-CHE-CE|CENTRAL EXCISE |CESTAT Cases | 01.10.2014

M/s SUPREME SUGUNA FOODS CO LTD Vs CCE, COIMBATORE: 29.09.204 - CEA – Classification 0f High Protein Poultry Mash (HPPM) - Poultry feed supplement - The appellants cleared HPPM, classifying under heading No. 23.01 of the CETA, without payment of duty to Domestic Tariff Area, claiming the exemption under Notification No. 23/2003-CE dated 31.03.2003 (Sl.No.21) - Show cause notices were issued proposing to classify HPPM under Heading No. 23.02 of CETA, similar to heading 2309.90 of Customs Tariff Act, 1975 (CTA). It has also proposed to demand duty along with interest and penalty – Word ‘products’ & ‘preparations’ - HELD - We find that various waste materials such as, intestine, feathers, heads... [Read more]

M/s SUPREME SUGUNA FOODS CO LTD Vs CCE, COIMBATORE: 29.09.204 - CEA – Classification 0f High Protein Poultry Mash (HPPM) - Poultry feed supplement - The appellants cleared HPPM, classifying under heading No. 23.01 of the CETA, without payment of duty to Domestic Tariff Area, claiming the exemption under Notification No. 23/2003-CE dated 31.03.2003 (Sl.No.21) - Show cause notices were issued proposing to classify HPPM under Heading No. 23.02 of CETA, similar to heading 2309.90 of Customs Tariff Act, 1975 (CTA). It has also proposed to demand duty along with interest and penalty – Word ‘products’ & ‘preparations’ - HELD - We find that various waste materials such as, intestine, feathers, heads, legs, blood and other offals etc., arise during the process of manufacture of Processed Chicken Meat. The appellant did not clear said waste materials as such from their premises. The said waste materials were processed by the appellant as mentioned above. On perusal of processing of waste material as stated above, we find that various waste materials lost the essential characteristics of the original material and a new product was emerged in powder form, used in animal feeding and known as HPPM in the market. So, we do not have any hesitation to hold that as per Chapter note 23 of CETA, the product HPPM as manufactured by the appellant would come under heading No. 23.02 of CETA - The HPPM is product produced or prepared from animal waste which is cleared as poultry feed supplement - Impugned product HPPM is rightly classifiable under chapter 2302 of CETA and 2309 of CTA and not under chapter 2301 of CETA – Accordingly, all the three appeals filed by the appellants are rejected and the impugned orders are upheld

2014-VIL-221-CESTAT-MUM-ST|SERVICE TAX |CESTAT Cases | 01.10.2014

APL (INDIA) PVT LTD Vs COMMISSIONER OF SERVICE TAX, MUMBAI: 12.08.2014 - ST - Steamer agent - Whether the ocean freight, currency adjustment charges, bunkering charges, advance manifest charges collected by the appellant on behalf of the shipping lines can be subjected to levy of service tax – HELD - It is undisputed that most of these charges form part of the transaction value in respect of customs matters and therefore, the question of levy of service tax on a customs transaction would not arise at all. If the appellants have collected these charges and remitted the same to the shipping lines, the whole amount received and transmitted cannot be said to be a consideration for the services r... [Read more]

APL (INDIA) PVT LTD Vs COMMISSIONER OF SERVICE TAX, MUMBAI: 12.08.2014 - ST - Steamer agent - Whether the ocean freight, currency adjustment charges, bunkering charges, advance manifest charges collected by the appellant on behalf of the shipping lines can be subjected to levy of service tax – HELD - It is undisputed that most of these charges form part of the transaction value in respect of customs matters and therefore, the question of levy of service tax on a customs transaction would not arise at all. If the appellants have collected these charges and remitted the same to the shipping lines, the whole amount received and transmitted cannot be said to be a consideration for the services rendered. What can be levied to service tax is the service rendered by the appellant either as a steamer agent or BAS in respect of collection of freight and other charges and only on the consideration received for the services rendered, service tax can be levied. In this view of the matter, the impugned order is clearly not sustainable in law and the matter has to go back to the adjudicating authority for denovo consideration – Appeal allowed by way of remand

2014-VIL-282-KAR|VAT |High Court Cases | 01.10.2014

M/s SHANTADURGA PETRO CHEMICALS Vs STATE OF KARNATAKA: 08.09.2014 - Karnataka Sales Tax Act – Section 18AA - Refund of forfeited amount - Unjust enrichment - Resale tax - Whether in the facts and circumstances, more appropriately, the collection of 11% tax in excess of 4% on sale of used furnace oil by M/s Tata Power Company Ltd, from the appellant during the assessment year 2002-03, and remitting it to the Commissioner under Section 18AA of the KST Act, since forfeited to the State, and the resale of the used oil by collecting resale tax at 1.5% by the appellant from its customers, the Commissioner of Commercial Tax, was not justified in rejecting the appellant's claim for excess tax refund... [Read more]

M/s SHANTADURGA PETRO CHEMICALS Vs STATE OF KARNATAKA: 08.09.2014 - Karnataka Sales Tax Act – Section 18AA - Refund of forfeited amount - Unjust enrichment - Resale tax - Whether in the facts and circumstances, more appropriately, the collection of 11% tax in excess of 4% on sale of used furnace oil by M/s Tata Power Company Ltd, from the appellant during the assessment year 2002-03, and remitting it to the Commissioner under Section 18AA of the KST Act, since forfeited to the State, and the resale of the used oil by collecting resale tax at 1.5% by the appellant from its customers, the Commissioner of Commercial Tax, was not justified in rejecting the appellant's claim for excess tax refund on the premise of unjust enrichment by inferring that the "burden" was passed on to the customers of the appellant, in view of return posting profits for the assessment year 2002-03 – HELD – The doctrine of unjust enrichment, in our considered view, has no application to the facts and circumstances of the case, in view of the finding of the Commissioner in the order impugned, that the appellant collected 1.5% resale tax from its customers on resale of the furnace oil and therefore appellant did not pass on the burden of 11% excess tax collected by M/s Tata Power Company Ltd. on the sale of oil, hence appellant, was entitled to refund of the excess tax paid and forfeited to the State - The bill of cost disclosing resale tax at 1.5% collected from the customers of the appellant on the resale of the furnace oil when found to be true and correct, the appellant pleaded and established the claim for refund of the excess tax paid. In our considered view 11% of the excess tax paid by the appellant, being an investment made by the appellant from out of its capital, if not refunded, would occasion serious prejudice - In the circumstances, the conclusion of the Commissioner that the appellant "undoubtedly passed on the tax burden on to its customers and so, refund of the tax amount on the plea that it had paid the said amount to Tata Power Co. Ltd. would lead to unjust enrichment of the applicant" is perverse and unsustainable – Refund granted – Assessee appeal allowed

2014-VIL-222-CESTAT-AHM-ST|SERVICE TAX |CESTAT Cases | 01.10.2014

M/s BARODA SURFACE PROTECTION SERVICES Vs COMMISSIONER OF CENTRAL EXCISE & ST, VADODARA: 19.09.2014 - Finance Act, 1994 - Section 78 - Penalty of 25% of tax liability – Assessee had discharged the entire service tax liability and interest thereof before issuance of show cause notice – HELD - Once service tax liability and interest thereof is paid before issuance of show cause notice, the provisions of Section 73 (1A) of Finance Act, 1994 comes into play and penalty of 25% of the tax liability is sufficient – Assessee appeal allowed

2014-VIL-283-ALH|VAT |High Court Cases | 01.10.2014

M/s GODAVARI FERTILIZERS & CHEMICALS LTD Vs COMMISSIONER, COMMERCIAL TAXES, U.P.: 25.08.2014 - Uttar Pradesh Trade Tax Act – NPK Fertilizer - Tax on the Nitrogen, Phosphate and Potassium component of fertilizer - Sale of NPK 10:26:26 – Binding nature of Government Circular - HELD – The law is very clear that in view of the Circular dated 11.3.2013 issued by the Director of Agriculture, Lucknow the revisionist is entitled to grant of exemption on the phosphate and potassium of NPK 10-26-26 in the light of the said circular and in the circumstances it is not necessary to relegate the assessee to the Tribunal – Revision petition allowed

2014-VIL-218-CESTAT-MUM-ST|SERVICE TAX |CESTAT Cases | 30.09.2014

WESTERN COALFIELDS LTD Vs COMMISSIONER OF CENTRAL EXCISE, NAGPUR: 19.08.2014 – ST - Waiver of pre-deposit - Cargo Handling Services - Surface transport charges collected by the Applicant for loading, unloading and transport of coal - Appellant contended they are engaged in mining of coal and the mined coal is sold on principle to principle basis to various customers, hence they are not a cargo handling agency as such no cargo handling service exists – Secondly, surface transport charge though shown separately but it is part of the sale value of the coal – HELD - Even if it is accepted that the activity in question is of cargo handling service but since it is consumed captively in or in relat... [Read more]

WESTERN COALFIELDS LTD Vs COMMISSIONER OF CENTRAL EXCISE, NAGPUR: 19.08.2014 – ST - Waiver of pre-deposit - Cargo Handling Services - Surface transport charges collected by the Applicant for loading, unloading and transport of coal - Appellant contended they are engaged in mining of coal and the mined coal is sold on principle to principle basis to various customers, hence they are not a cargo handling agency as such no cargo handling service exists – Secondly, surface transport charge though shown separately but it is part of the sale value of the coal – HELD - Even if it is accepted that the activity in question is of cargo handling service but since it is consumed captively in or in relation to manufacture and clearance of coal, it becomes part and partial of the manufacture and sale of coal - The surface transportation charges, on which service tax demanded, has been shown in the invoices as part of the sale value of the coal and on the value including the surface transportation charges, the applicant has discharged the central excise duty as well as sales tax. This clearly establishes that the value including the surface transportation charges is the sale value of coal. It is now settled law by the Hon'ble Supreme Court in Bharat Sanchar Nigam Ltd's case [2006] that in respect of sale of goods no service tax is leviable - Prima facie strong case is in favor of assessee – Unconditional stay granted

2014-VIL-219-CESTAT-AHM-CE|CENTRAL EXCISE |CESTAT Cases | 30.09.2014

M/s THERMAX LTD Vs CCE, VADODARA-I: 17.09.2014 - Cenvat Credit Rules, 2004 - Rule 4(5)(a) - Denial of CENVAT Credit on the amount of duty paid by the job worker on the goods job worked on behalf of the appellant only on the ground that the job worker had included the cost of material and the appellant had availed CENVAT Credit of the duty paid on such materials – HELD - There is no condition in Rule 4(5)(a) that job worker should necessarily avail of full duty Exemption under Notification No. 214/86-C.E. This exemption being a conditional exemption, is not required to be compulsorily availed by job workers. If the job worker decides to pay the duty on the intermediate products manufactured b... [Read more]

M/s THERMAX LTD Vs CCE, VADODARA-I: 17.09.2014 - Cenvat Credit Rules, 2004 - Rule 4(5)(a) - Denial of CENVAT Credit on the amount of duty paid by the job worker on the goods job worked on behalf of the appellant only on the ground that the job worker had included the cost of material and the appellant had availed CENVAT Credit of the duty paid on such materials – HELD - There is no condition in Rule 4(5)(a) that job worker should necessarily avail of full duty Exemption under Notification No. 214/86-C.E. This exemption being a conditional exemption, is not required to be compulsorily availed by job workers. If the job worker decides to pay the duty on the intermediate products manufactured by him on job-work basis for the principal manufacturer, in terms of the judgment of the Apex Court in case of Ujagar Prints v. Union of India, they would be required to pay duty on the cost of input plus job charges including the cost of their own inputs used in manufacture. This is what the job workers have done in the present case – Morevoer, when the inputs, in question, have suffered twice, first in the hand of input manufacturers from whom the Appellant had procured the inputs and second time in the hand of job workers who at the time of clearance of intermediate products made out of the inputs paid duty on value which included the cost of the inputs, the credit of the duty paid on the intermediate product cannot be denied when such intermediate were made out of those inputs, even if the Appellant had earlier taken the Cenvat credit in respect of inputs while receiving the same. In any case, the intermediate products made out of inputs are different from inputs and just because the Appellant have availed Cenvat credit in respect of the inputs, the Cenvat credit of duty, if any paid on the intermediate products by the job workers, cannot be denied to the principal manufactures – Assessee appeal allowed

2014-VIL-280-RAJ|VAT |High Court Cases | 30.09.2014

COMMERCIAL TAXES OFFICER Vs M/s SHYAM AGENCY: 26.08.2014 - Rajasthan Value Added Tax Act, 2003 – Short payment of tax – Evasion - Penalty under Section 61 – Open ended interpretation of the general words ‘or any other manner’ in the later part of Section 61 – HELD - Penalty under Section 61 is not automatic on short payment of tax due being found - Where the assessee is held to have deliberately sought to defraud the revenue by its fraudulent act/ conduct, this would include a reckless, malafide and mischievous classification of goods for a rate of tax which no reasonable man could conceivably assert. The words ‘any other manner’ in the later part of Section 61 would therefore mandate specif... [Read more]

COMMERCIAL TAXES OFFICER Vs M/s SHYAM AGENCY: 26.08.2014 - Rajasthan Value Added Tax Act, 2003 – Short payment of tax – Evasion - Penalty under Section 61 – Open ended interpretation of the general words ‘or any other manner’ in the later part of Section 61 – HELD - Penalty under Section 61 is not automatic on short payment of tax due being found - Where the assessee is held to have deliberately sought to defraud the revenue by its fraudulent act/ conduct, this would include a reckless, malafide and mischievous classification of goods for a rate of tax which no reasonable man could conceivably assert. The words ‘any other manner’ in the later part of Section 61 would therefore mandate specific finding of deliberate wrong doing attributable to the assessee to defraud the department and without that the assessee could not be made liable to penalty under Section 61 - The sequitur is that where the liability of tax or additional liability of tax is visited upon an assessee on the basis of a bonafide dispute as to liability/ classification being decided in favour of sales tax authorities and against the assessee, without any deliberate fraudulent act/ reckless and malafide claims as to classification being attributed to assessee, it would not be liable to penalty under Section 61 of the 2003 Act – Penalty under Section 61 indicates that penalty is conditional upon the circumstances and is discretionary in nature - There was no attempt to defraud the revenue by any concealment or misinformation. No finding of reckless/ malafide classification sought with regard to the goods sold has been arrived at. The dispute between the assessee and the revenue was bonafide and related merely to the issue of classification and consequent rate of tax under the Act leviable on the sale of goods by the assessee - The dispute was therefore a bonafide one as to the interpretation/ classification of the products sold by the assessee for the purpose of levy of tax. Such a dispute doesn’t supply any of the pre-conditions for levy of penalty under Section 61 – Revenue petition dismissed

2014-VIL-281-MAD|VAT |High Court Cases | 30.09.2014

SCHNEIDER ELECTRIC IT BUSINESS (P) LTD Vs THE COMMERCIAL TAX OFFICER: 17.09.2014 - Proposals for revision of assessment - Opportunity of hearing – Revision of assessment without adequate opportunity of hearing – Representative of the petitioner appeared and requested time for furnishing details. But without either rejecting the request or granting the request, the first CTO passed revised orders of assessment, forcing the petitioner to come up with the above writ petitions - HELD - The first respondent could have either accepted or rejected the request. Instead, the first respondent passed the orders - Therefore, the impugned orders cannot be taken to have been passed after affording adequat... [Read more]

SCHNEIDER ELECTRIC IT BUSINESS (P) LTD Vs THE COMMERCIAL TAX OFFICER: 17.09.2014 - Proposals for revision of assessment - Opportunity of hearing – Revision of assessment without adequate opportunity of hearing – Representative of the petitioner appeared and requested time for furnishing details. But without either rejecting the request or granting the request, the first CTO passed revised orders of assessment, forcing the petitioner to come up with the above writ petitions - HELD - The first respondent could have either accepted or rejected the request. Instead, the first respondent passed the orders - Therefore, the impugned orders cannot be taken to have been passed after affording adequate opportunity - Writ petitions are allowed, the impugned orders are set aside and the matter is remitted

2014-VIL-217-CESTAT-MUM-ST|SERVICE TAX |CESTAT Cases | 30.09.2014

HINDUSTAN CONSTRUCTION CO LTD Vs COMMISSIONER OF SERVICE TAX, MUMBAI-II: 11.08.2014 - Service Tax - Works contract service – Demand – Denial of Cenvat Credit – HELD - Demand of service tax for the period on or after 1.6.2007, the activity is liable to service tax under 'works contract service' and, therefore, if the appellant has discharged service tax liability under 'works contract service', the question of confirmation of the demand would not arise at all once again. The weak observation made in the impugned order is the appellant did not produce the requisite contracts so as to satisfy the adjudicating authority that they were entered into or on after 1.6.2007. This observation of the ad... [Read more]

HINDUSTAN CONSTRUCTION CO LTD Vs COMMISSIONER OF SERVICE TAX, MUMBAI-II: 11.08.2014 - Service Tax - Works contract service – Demand – Denial of Cenvat Credit – HELD - Demand of service tax for the period on or after 1.6.2007, the activity is liable to service tax under 'works contract service' and, therefore, if the appellant has discharged service tax liability under 'works contract service', the question of confirmation of the demand would not arise at all once again. The weak observation made in the impugned order is the appellant did not produce the requisite contracts so as to satisfy the adjudicating authority that they were entered into or on after 1.6.2007. This observation of the adjudicating authority is quite naive and cannot be accepted. If the adjudicating authority had any doubt about when the contract was entered into and the works executed, he could have asked the appellant to produce the copies of all the contracts which the appellant, in fact, claims that they have produced before the department. Therefore, this cannot be a ground for demanding service tax without any basis when the liability has in fact been discharged by the appellant - As regards the denial of cenvat credit of Rs. 168.82 crores, from the records it is seen that the appellant has availed only an amount of Rs. 134.26 crores during the impugned period. If that be so, we do not understand how a disallowance of a credit not availed can be made by the Revenue. It is also on record that the appellant has in fact reversed an amount of Rs. 47.62 crores towards the capital goods and GTA and foreign consultancy services which have been appropriated in the impugned order. Therefore, the denial of cenvat credit to the extent of Rs. 168.82 appears to be not based on any documentary evidences - Similarly, the demand of Rs. 90.78 crores being the credit actually utilized is also clearly not sustainable in law inasmuch as the said amount is already included in the cenvat credit disallowed. There cannot be any double demand towards cenvat credit, once by disallowing the entire amount of credit taken and second by a demand of credit utilized. Thus we find that there are a lot of inconsistencies/mistakes committed in the impugned order by the adjudicating authority. Therefore, the matter needs to go back to the adjudicating authority for fresh consideration. Accordingly we remand the matter back to the adjudicating authority – Assessee appeal allowed

2014-VIL-212-CESTAT-BLR-CE|CENTRAL EXCISE |CESTAT Cases | 29.09.2014

M/s KRISHNA FABRICATIONS PVT LTD Vs CCE, BANGALORE-III: 26.08.2014 - Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - Appellant is undertaking job work on duty paid chassis supplied by M/s Ashok Leyland Ltd. The ownership of chassis remains with M/s Ashok Leyland Ltd. The appellant claims credit of duty paid after doing job work cleared the chassis on payment of duty on the assessable value declared by M/s Ashok Leyland Ltd. in terms of Rule 10A - Refund claim rejected on the ground that classification was wrong and therefore, the duty was not payable which has been claimed as refund – HELD - We find that the appellant may be eligible for refund, we consider... [Read more]

M/s KRISHNA FABRICATIONS PVT LTD Vs CCE, BANGALORE-III: 26.08.2014 - Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - Appellant is undertaking job work on duty paid chassis supplied by M/s Ashok Leyland Ltd. The ownership of chassis remains with M/s Ashok Leyland Ltd. The appellant claims credit of duty paid after doing job work cleared the chassis on payment of duty on the assessable value declared by M/s Ashok Leyland Ltd. in terms of Rule 10A - Refund claim rejected on the ground that classification was wrong and therefore, the duty was not payable which has been claimed as refund – HELD - We find that the appellant may be eligible for refund, we consider it appropriate that the matter should be remanded to the original adjudicating authority. We make it clear that the appellant shall produce the certificate from the Range Superintendent and at the same time, the original adjudicating authority is also directed to ensure that a report is called for from the concerned authority in-charge of the unit to whom the goods have been cleared. Accordingly, the impugned order is set aside and the matter is remanded to the original adjudicating authority for fresh adjudication

2014-VIL-278-ORI|VAT |High Court Cases | 29.09.2014

M/s PATITAPABANA BASTRALAYA Vs THE SALES TAX OFFICER: 24.09.2014 - Orissa Entry Tax Act, 1999 – Section 9C – Audit assessment – Demand Notice – Tax audit – Notice for assessment of tax issued without allowing 30 days time as provided under sub-section (2) of Section 9C of the Act - HELD - Section 9C(2) is a mandatory provision not with regard to any procedural law but with regard to a substantive right - Issue of Notice under Section 9C(2) is a condition precedent to the validity of any assessment under Section 9-C of the Act. If the notice issued for assessment is invalid, the assessment would be bad in law. Therefore, the notice for assessment of tax without allowing the minimum period of ... [Read more]

M/s PATITAPABANA BASTRALAYA Vs THE SALES TAX OFFICER: 24.09.2014 - Orissa Entry Tax Act, 1999 – Section 9C – Audit assessment – Demand Notice – Tax audit – Notice for assessment of tax issued without allowing 30 days time as provided under sub-section (2) of Section 9C of the Act - HELD - Section 9C(2) is a mandatory provision not with regard to any procedural law but with regard to a substantive right - Issue of Notice under Section 9C(2) is a condition precedent to the validity of any assessment under Section 9-C of the Act. If the notice issued for assessment is invalid, the assessment would be bad in law. Therefore, the notice for assessment of tax without allowing the minimum period of 30 days for production of the books of account and documents is invalid in law and consequentially, the order of assessment and demand notice passed/issued are not sustainable in law - The order of assessment having been passed in pursuance of an invalid notice, it could not be validated by participation of the assessee-petitioner in the assessment proceeding. Consent, acquiescence, participation etc. would not confer jurisdiction when the proceeding initiated on the basis of an invalid notice - Order of assessment passed in pursuance of notice in Form E-30 issued in violation of requirement of Section 9C(2) of the OET Act is not sustainable in law – Assessment order set aside – Assessee petition allowed

2014-VIL-214-CESTAT-AHM-CE|CENTRAL EXCISE |CESTAT Cases | 29.09.2014

M/s ATUL PRODUCTS LTD Vs COMMISSIONER OF CENTRAL EXCISE & S.T., SURAT: 25.09.2014 - Central Excise Act – Section 11D - Demand on the ground assessee has recovered the set-off claimed under Notification No. 432/86-CE dated 06.08.1986 from the customers in the invoices – Assessee argued that though the set-off availed by the appellant has been indicated on the gate passes but the same has not been separately recovered as duty in the invoices issued to the customers – Exemption to certain final products to an extent equivalent to duty of excise already paid on the input Naphthalene – HELD - As there is one-to-one correlation with respect to inputs used, duty paid on such inputs and the extent o... [Read more]

M/s ATUL PRODUCTS LTD Vs COMMISSIONER OF CENTRAL EXCISE & S.T., SURAT: 25.09.2014 - Central Excise Act – Section 11D - Demand on the ground assessee has recovered the set-off claimed under Notification No. 432/86-CE dated 06.08.1986 from the customers in the invoices – Assessee argued that though the set-off availed by the appellant has been indicated on the gate passes but the same has not been separately recovered as duty in the invoices issued to the customers – Exemption to certain final products to an extent equivalent to duty of excise already paid on the input Naphthalene – HELD - As there is one-to-one correlation with respect to inputs used, duty paid on such inputs and the extent of exemption, therefore, this has to be considered only an exemption notification in which the extent of exemption is determined by the duty paid on the inputs. The extent of set-off available shows that there is no payment of duty and the same is not required to be paid on the finished products manufactured by the appellant. The registers maintained and debited indicate only to correlate the extent of exemption admissible and can not be said to be duty paid after assessment. Rather duty assessed to be paid is only known after deducting the duty paid on inputs. Once the extent of set-off claimed by the appellant under Notification No. 432/86-CE is not payable as duty of excise, the same was not required to be indicated on the gate passes as duty assessed and was also not recoverable from the customers. As set-off has been recovered from the customers as indicated in the gate passes, the same is correctly held as recoverable by the adjudicating authority - Time-bar nature of the demand – HELD – Demand period is April 1990 to April 1992 and the show cause notice has been issued on 01.11.1993 therefore, the same is issued within reasonable period. So far as addition of the excess amount in the invoices from the customers in the guise of duty paid as set-off it is also observed that the fact of set-off being recovered from the customers was not brought to the notice of the Revenue and accordingly, showcause notice has to be considered as issued in reasonable time – The additional consideration so received/ recovered has to be included in the assessable value under Section 4 of the Act - Assessee appeal dismissed

2014-VIL-279-BOM|VAT |High Court Cases | 29.09.2014

THE COMMISSIONER OF SALES TAX Vs M/s PAGE POINT SERVICE (P) LTD: 24.09.2014 - Bombay Sales Tax Act – Section 2(p) & Section 2(29) – Sale price - Whether Tribunal justified in holding that the "Airtime charges" and "License fees" charged under an contract of selling activated pager do not form a part of sale price within the meaning of Section 2(29) of the Act – Cost of the hardware separate from the cost of airtime and the cost of license fees –Expression ‘anything done by the dealer in respect of the goods at the time and/or before delivery thereof’ - HELD - It is not in dispute that the dealer does not do anything to the radio pager at the time of or before its delivery. It merely collects... [Read more]

THE COMMISSIONER OF SALES TAX Vs M/s PAGE POINT SERVICE (P) LTD: 24.09.2014 - Bombay Sales Tax Act – Section 2(p) & Section 2(29) – Sale price - Whether Tribunal justified in holding that the "Airtime charges" and "License fees" charged under an contract of selling activated pager do not form a part of sale price within the meaning of Section 2(29) of the Act – Cost of the hardware separate from the cost of airtime and the cost of license fees –Expression ‘anything done by the dealer in respect of the goods at the time and/or before delivery thereof’ - HELD - It is not in dispute that the dealer does not do anything to the radio pager at the time of or before its delivery. It merely collects airtime charges and license fees prorata ‘nothing is done by the dealer in respect of goods at the time of or before delivery thereof’ and airtime charges are paid in respect of airtime radio paging services which is activated after the pager is purchased and/or after delivery of the pager. Nothing is required to be done in respect of pager unit itself at the time of such activation. In other words, pager is service activated in respect of the pager sold to the purchaser. This sale of the pager is a standalone transaction. The activation of the pager comes subsequent to the incidence of sale. The license fee payable is a necessary corollary and neither the collection of airtime charges nor license fees will constitute ‘anything done’ in respect of the pager. Thus, it cannot be said that payment of airtime charges and license fees can be included in the sale price - Sale price in the facts of the present case will be restricted to that of the hardware, namely, pager units and will not include the cost of airtime and license fees – Revenue appeal dismissed

2014-VIL-215-CESTAT-DEL-ST|SERVICE TAX |CESTAT Cases | 29.09.2014

M/s B K SALES CORPORATION Vs COMMISSIONER OF CENTRAL EXCISE, ROHTAK: 11.09.2014 - Service Tax - Clearing and forwarding services – The principal is required to supply their product duly packed in drums on regular basis to the appellants and the appellant is required to sell the same in smaller lots to the customers at the prices fixed by the principal and the report of such sale is required to be given by the appellant to their principal from time to time. The invoices are to be issued by the appellant in the name of principal including their name as consignment agent – Service tax liability – HELD - Appellant is free to sell the goods to his customers in small lots. Such permission given to... [Read more]

M/s B K SALES CORPORATION Vs COMMISSIONER OF CENTRAL EXCISE, ROHTAK: 11.09.2014 - Service Tax - Clearing and forwarding services – The principal is required to supply their product duly packed in drums on regular basis to the appellants and the appellant is required to sell the same in smaller lots to the customers at the prices fixed by the principal and the report of such sale is required to be given by the appellant to their principal from time to time. The invoices are to be issued by the appellant in the name of principal including their name as consignment agent – Service tax liability – HELD - Appellant is free to sell the goods to his customers in small lots. Such permission given to the assessee in the present case is indicative of the fact that he is not working as clearing and forwarding agent of the principal - No service tax liability would arise against him – Demand order set aside – Assessee appeal allowed

2014-VIL-216-CESTAT-CHE-ST|SERVICE TAX |CESTAT Cases | 29.09.2014

M. CHADACHARAM Vs COMMISSIONER OF CENTRAL EXCISE, MADURAI: 03.09.2014 - Service Tax - Appellant rendered service in relation to civil structure to facilitate erection of electricity transmission tower for TNEB - Services relating to transmission and distribution of electricity – Demand - HELD – Appellant rendered services to facilitate erection of electricity transmission tower for TNEB. Hence the applicant is eligible to Exemption Notification No.45/2010 – Confirmed demand paid - The exemption notification is applicable in respect of the amount which was not paid relating to electricity transmission tower provided by the service provider. Hence the appellant is not eligible to get refund of... [Read more]

M. CHADACHARAM Vs COMMISSIONER OF CENTRAL EXCISE, MADURAI: 03.09.2014 - Service Tax - Appellant rendered service in relation to civil structure to facilitate erection of electricity transmission tower for TNEB - Services relating to transmission and distribution of electricity – Demand - HELD – Appellant rendered services to facilitate erection of electricity transmission tower for TNEB. Hence the applicant is eligible to Exemption Notification No.45/2010 – Confirmed demand paid - The exemption notification is applicable in respect of the amount which was not paid relating to electricity transmission tower provided by the service provider. Hence the appellant is not eligible to get refund of tax whatever they have paid. In view of the above discussion, we hold that appellant is eligible to benefit of Exemption Notification No.45/2010-ST dt. 20.7.2010 and the demand of balance amount of tax along with interest and penalty is set aside – Appeal partly allowed