VAT AND SERVICE TAX CASES (VST)

ONLINE EDITION

VOL. 4 : ISSUE DATED 22-5-2015

HIGH COURTS


Appeal--Service tax--Pre-deposit--Application to Commissioner (Appeals) for review of order directing pre-deposit--Commissioner (Appeals) has no power to consider--Appeal from order of Commissioner (Appeals) dismissing appeal for failure to make pre-deposit--Appellate Tribunal--Bound to consider issue of pre-deposit on merits--Not to uphold dismissal of appeal--Central Excise Act (1 of 1944), ss. 35C, 35F.--Venus Rubbers v. Additional Commissioner of Central Excise (Mad). . . 545

Commissioner--See Service tax (Mad) . . . 545

Pre-deposit--See Service tax (Mad) . . . 545

Service tax--Appeal--Pre-deposit--Application to Commissioner (Appeals) for review of order directing pre-deposit--Commissioner (Appeals) has no power to consider--Appeal from order of Commissioner (Appeals) dismissing appeal for failure to make pre-deposit--Appellate Tribunal--Bound to consider issue of pre-deposit on merits--Not to uphold dismissal of appeal--Central Excise Act (1 of 1944), ss. 35C, 35F. --Venus Rubbers v. Additional Commissioner of Central Excise (Mad) . . . 545

Tribunal--See Service tax (Mad) . . . 545


CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL


Appeal--Service tax--Pre-deposit--Commissioner (Appeals)--Appeal before Commissioner (Appeals), along with application for waiver of pre-deposit--Order waiving pre-deposit, subject to condition of deposit of 25 per cent. of duty and penalty--Not an appealable order--Finance Act (32 of 1994)--Central Excise Act (1 of 1944).--Girnar Transformers Pvt. Ltd. v. CCE (CESTAT-New Delhi) . . . 528

----Service tax--Pre-deposit--Waiver--Commissioner (Appeals)--Appellate Tribunal--Scope of power--Central Excise Act (1 of 1944), ss. 35, 35A, 35C(2), 35F.--Girnar Transformers Pvt. Ltd. v. CCE (CESTAT-New Delhi) . . . 528

----Service tax--Pre-deposit--Waiver--Management, maintenance or repair service--Proceedings initiated for recovery of tax on ground of failure to disclose gross consideration received for such service culminating in order confirming recovery--Appeal before Commissioner (Appeals) along with application for waiver of pre-deposit--Order waiving pre-deposit, subject to condition of deposit of 25 per cent. of duty and penalty--Dismissal of appeal for failure to deposit observing not competent to review earlier order--Appellant made out a strong prima facie case on merits--Pre-deposit would cause undue hardship--Order by Commissioner (Appeals) directing pre-deposit and rejection of appeal not sustainable--Waiver of pre-deposit granted and matter remitted to Commissioner (Appeals) for disposal on merits--Finance Act (32 of 1994).--Girnar Transformers Pvt. Ltd. v. CCE (CESTAT-New Delhi) . . . 528

Cenvat credit--Service tax--Refund--Limitation--Refund of unutilized Cenvat credit--Application along with prescribed enclosures and relevant extracts of records to be filed within one year from date on which final products cleared for export--Cenvat Credit Rules, 2004, r. 5--Notification No. 5/2006-C. E. (N. T.) dated March 14, 2006--Central Excise Act (1 of 1944), s. 11B.--IT Action Gujarat Pvt. Ltd. v. C. S. T. & Service Tax (CESTAT-Ahd) . . . 554

----See also Service tax (CESTAT-New Delhi) . . . 559

Commissioner--See Service tax (CESTAT-New Delhi) . . . 528

Exemption--Service tax--Goods transport agency service--Cenvat credit--Input services--Benefit of exemption under notification subject to condition of non-availment of Cenvat credit of tax paid on input services--Assessee availing of exemption taking Cenvat credit of tax paid on input services initially--Subsequent reversal along with interest--Amounts to not taking of Cenvat credit--Benefit of exemption notification could not be denied--Notifications No. 32/2004-ST and No. 1/2006-ST dated March 1, 2006--Finance Act (32 of 1994), s. 65(105)(zzp).--Sachdeva Roadlines v. CST (CESTAT-New Delhi) . . . 559

Goods transport agency service--See Service tax (CESTAT-New Delhi) . . . 559

Input services--See Service tax (CESTAT-New Delhi) . . . 559

Limitation--See Service tax (CESTAT-Ahd) . . . 554

Pre-deposit--See Service tax (CESTAT-New Delhi) . . . 528

Refund--See Service tax (CESTAT-Ahd) . . . 554

Service tax--Appeal--Pre-deposit--Commissioner (Appeals)--Appeal before Commissioner (Appeals), along with application for waiver of pre-deposit--Order waiving pre-deposit, subject to condition of deposit of 25 per cent. of duty and penalty--Not an appealable order--Finance Act (32 of 1994)--Central Excise Act (1 of 1944).--Girnar Transformers Pvt. Ltd. v. CCE (CESTAT-New Delhi) . . . 528

----Appeal--Pre-deposit--Waiver--Commissioner (Appeals)--Appellate Tribunal--Scope of power--Central Excise Act (1 of 1944), ss. 35, 35A, 35C(2), 35F.--Girnar Transformers Pvt. Ltd. v. CCE (CESTAT-New Delhi) . . . 528

----Appeal--Pre-deposit--Waiver--Management, maintenance or repair service--Proceedings initiated for recovery of tax on ground of failure to disclose gross consideration received for such service culminating in order confirming recovery--Appeal before Commissioner (Appeals) along with application for waiver of pre-deposit--Order waiving pre-deposit, subject to condition of deposit of 25 per cent. of duty and penalty--Dismissal of appeal for failure to deposit observing not competent to review earlier order--Appellant made out a strong prima facie case on merits--Pre-deposit would cause undue hardship--Order by Commissioner (Appeals) directing pre-deposit and rejection of appeal not sustainable--Waiver of pre-deposit granted and matter remitted to Commissioner (Appeals) for disposal on merits--Finance Act (32 of 1994).--Girnar Transformers Pvt. Ltd. v. CCE (CESTAT-New Delhi) . . . 528

----Cenvat credit--Refund--Limitation--Refund of unutilized Cenvat credit--Application along with prescribed enclosures and relevant extracts of records to be filed within one year from date on which final products cleared for export--Cenvat Credit Rules, 2004, r. 5--Notification No. 5/2006-C. E. (N. T.) dated March 14, 2006--Central Excise Act (1 of 1944), s. 11B.--IT Action Gujarat Pvt. Ltd. v. C. S. T. & Service Tax (CESTAT-Ahd) . . . 554

----Goods transport agency service--Exemption--Cenvat credit--Input services--Benefit of exemption under notification subject to condition of non-availment of Cenvat credit of tax paid on input services--Assessee availing of exemption taking Cenvat credit of tax paid on input services initially--Subsequent reversal along with interest--Amounts to not taking of Cenvat credit--Benefit of exemption notification could not be denied--Notifications No. 32/2004-ST and No. 1/2006-ST dated March 1, 2006--Finance Act (32 of 1994), s. 65(105)(zzp).--Sachdeva Roadlines v. CST (CESTAT-New Delhi) . . . 559

Tribunal--See Service tax (CESTAT-New Delhi) . . . 528


PRINT EDITION

VOLUME 80 : PART 4 : ISSUE DATED 22-5-2015


SUPREME COURT


Appeals--Customs duty--Appeal to Collector (Appeals)--Limitation--Change of law--Appellate Tribunal holding in favour of assessee in appeal from order of Superintendent pursuant to direction of Collector--Supreme Court holding appeal not maintainable and order without jurisdiction--Appeal thereafter to Collector (Appeals) within sixty days of receiving certified copy--Time taken in prosecuting abortive proceeding to be excluded--Amendment in interregnum reducing time-limit for filing appeals--Right under earlier provision vesting in assessee--Appeal within time--Limitation Act (36 of 1963), s. 14--Customs Act (52 of 1962).--M. P. Steel Corporation v. Commissioner of Central Excise (SC) . . . 402

----Customs duty--Limitation--Exclusion of period on abortive action taken in good faith before wrong forum--Applicability of provisions of Limitation Act to proceedings before quasi-judicial Tribunals--Principles governing--Limitation Act (36 of 1963), s. 14 --Customs Act (52 of 1962).--M. P. Steel Corporation v. Commissioner of Central Excise (SC) . . . 402

Change of law--See Appeals (SC) . . . 402

Clearing and forwarding agent--Service tax--Agent appointed by cement industries for supervising and liaisoning with coal company and railways to ensure coal required loaded according to schedule--Is not clearing and forwarding agent--Finance Act (32 of 1994), s. 65(25).--Coal Handlers Private Limited v. Commissioner of Central Excise (SC) . . . 465

Commissioner--See Firm (SC) . . . 375

Customs duty--See Appeals (SC) . . . 402

Firm--Sales tax--Partner--Recovery of tax--State Government--Commissioner--Remission of tax--Sales tax dues payable by firm--State Government or Commissioner not empowered to enter into a settlement with partner in respect of his liability for dues of firm--Bombay Sales Tax Act (51 of 1959), ss. 18, 45--Bombay Sales Tax Rules, 1959, rr. 43A, 44, 44A--Pradip Nanjee Gala v. Sales Tax Officer (SC) . . . 375

Interpretation of taxing statutes--Strict construction.--Pradip Nanjee Gala v. Sales Tax Officer (SC) . . . 375

Limitation--Appeals--Customs duty--Appeal to Collector (Appeals)--Change of law--Appellate Tribunal holding in favour of assessee in appeal from order of Superintendent pursuant to direction of Collector--Supreme Court holding appeal not maintainable and order without jurisdiction--Appeal thereafter to Collector (Appeals) within sixty days of receiving certified copy--Time taken in prosecuting abortive proceeding to be excluded--Amendment in interregnum reducing time-limit for filing appeals--Right under earlier provision vesting in assessee--Appeal within time--Limitation Act (36 of 1963), s. 14--Customs Act (52 of 1962).--M. P. Steel Corporation v. Commissioner of Central Excise (SC) . . . 402

----Customs duty--Appeals--Exclusion of period on abortive action taken in good faith before wrong forum--Applicability of provisions of Limitation Act to proceedings before quasi-judicial Tribunals--Principles governing--Limitation Act (36 of 1963), s. 14 --Customs Act (52 of 1962).--M. P. Steel Corporation v. Commissioner of Central Excise (SC) . . . 402

Partner--See Firm (SC) . . . 375

Recovery of tax--See Firm (SC). . . 375

Remission of tax--Sales tax--Firm--Partner--Recovery of tax--State Government--Commissioner--Sales tax dues payable by firm--State Government or Commissioner not empowered to enter into a settlement with partner in respect of his liability for dues of firm--Bombay Sales Tax Act (51 of 1959), ss. 18, 45--Bombay Sales Tax Rules, 1959, rr. 43A, 44, 44A--Pradip Nanjee Gala v. Sales Tax Officer (SC) . . . 375

Service tax--Clearing and forwarding agent--Agent appointed by cement industries for supervising and liaisoning with coal company and railways to ensure coal required loaded according to schedule--Is not clearing and forwarding agent--Finance Act (32 of 1994), s. 65(25).--Coal Handlers Private Limited v. Commissioner of Central Excise (SC) . . . 465

State Government--See Firm (SC). . . 375

Tribunal--See Appeals (SC). . . 402


HIGH COURTS


Appeal--Service tax--Appeal to Appellate Tribunal--Pre-deposit--Order by Tribunal to deposit tax within specified period not complied with--No reason shown for failure--Dismissal of appeal by Tribunal, proper--Finance Act (32 of 1994).--Toor Transport Co. v. Customs, Excise and Service Tax Appellate Tribunal (P&H) . . . 448

Declaration form--See Registered dealer (Mad) . . . 459

Entries in Schedule--Sales tax--Image runners (multi-function network printers)--Are computer peripherals and to be taxed as such--Tamil Nadu General Sales Tax Act (1 of 1959), Sch. I, Part B, entry 18(i), Part C, entry 13(i).--Canon India (P) Ltd. v. State of Tamil Nadu (Mad) . . . 483

Input-tax credit--Value added tax--Dealer engaged in manufacture and trading of consumer goods--Having common TIN registration for all its manufacturing and trading divisions in State--Dealer consolidating input-tax credit of each division and claiming credit thereupon--Restricting input-tax credit only to output tax payable in a particular division--Not justified in absence of provision therefor--Adjustment of input-tax credit with output tax payable in other divisions--Permissible--Andhra Pradesh Value Added Tax Act (5 of 2005)--Andhra Pradesh Value Added Tax Rules, 2005.--Hindustan Unilever Limited v. State of Andhra Pradesh (T and AP) . . . 370

Interest--Sales tax--Settlement of dispute--Application by dealer for settlement accepted and certificate issued permitting dealer to pay 50 per cent. of disputed tax--Pending appeals against assessment treated as withdrawn--Effect--Dealer discharged from liability to make payment of balance arrears of tax, penalty or interest in dispute--Levy of interest on sum settled not permissible thereafter--Andhra Pradesh Sales Tax (Settlement of Disputes) Act (41 of 2001), ss. 6, 12.--Siemens Limited v. Commercial Tax Officer (T and AP) . . . 395

Manufacture--Sales tax--Registered dealer--Concessional rate of tax--Goods installed at factory and used for manufacture of goods--Do not necessarily mean input in manufacture--Air drier installed in factory of manufacturer of tractor parts to remove moisture by cooling compressed air--Entitled to concessional rate of tax--Tamil Nadu General Sales Tax Act (1 of 1959), s. 3(5) ; Sch. VIII, entry 3.--Neel Industries Pvt. Ltd. v. State of Tamil Nadu (Mad) . . . 459

Pre-deposit--See Service tax (P&H) . . . 448

Printer--See Works contract (Mad) . . . 478

Registered dealer--Sales tax--Concessional rate of tax--Goods installed at factory and used for manufacture of goods--Do not necessarily mean input in manufacture--Air drier installed in factory of manufacturer of tractor parts to remove moisture by cooling compressed air--Entitled to concessional rate of tax--Tamil Nadu General Sales Tax Act (1 of 1959), s. 3(5) ; Sch. VIII, entry 3.--Neel Industries Pvt. Ltd. v. State of Tamil Nadu (Mad) . . . 459

Sale--Sales tax--Liability to tax--Sale or works contract--Dealer in printing materials--Printing of annual reports to specifications of customer--Not commercial commodity capable of sale in market--Works contract--Incidental transfer of paper to contractee--Does not make it a sale--Tamil Nadu General Sales Tax Act (1 of 1959), s. 3B.--Heritage Printers v. Joint Commissioner (SMR) of Commercial Taxes (Mad) . . . 478

Service tax--Appeal to Appellate Tribunal--Pre-deposit--Order by Tribunal to deposit tax within specified period not complied with--No reason shown for failure--Dismissal of appeal by Tribunal, proper--Finance Act (32 of 1994).--Toor Transport Co. v. Customs, Excise and Service Tax Appellate Tribunal (P&H) . . . 448

----Writs under Constitution--Maintainability--Local authority establishing and maintaining bus stand and regulating advertisements--Demands raised in respect of renting of immovable property services, business support services and sale of space or time for advertisement services--Replies of assessee considered and orders passed and becoming final--Writ petition filed one year thereafter contending that local authority does not come within purview of service tax--Not maintainable--Finance Act (32 of 1994), ss. 65(90a), (104c), (105)(zzzm), (zzzz), 85--Constitution of India, art. 226--Circular No. 89/7/2006-ST dated December 18, 2006.--Kothamangalam Municipality v. Additional Commissioner of Central Excise, Customs and Service Tax (Ker) . . . 451

Settlement of dispute--Sales tax--Application by dealer for settlement accepted and certificate issued permitting dealer to pay 50 per cent. of disputed tax--Pending appeals against assessment treated as withdrawn--Effect--Dealer discharged from liability to make payment of balance arrears of tax, penalty or interest in dispute--Levy of interest on sum settled not permissible thereafter--Andhra Pradesh Sales Tax (Settlement of Disputes) Act (41 of 2001), ss. 6, 12.--Siemens Limited v. Commercial Tax Officer (T and AP) . . . 395

Value added tax--Input-tax credit--Dealer engaged in manufacture and trading of consumer goods--Having common TIN registration for all its manufacturing and trading divisions in State--Dealer consolidating input-tax credit of each division and claiming credit thereupon--Restricting input-tax credit only to output tax payable in a particular division--Not justified in absence of provision therefor--Adjustment of input-tax credit with output tax payable in other divisions--Permissible--Andhra Pradesh Value Added Tax Act (5 of 2005)--Andhra Pradesh Value Added Tax Rules, 2005.--Hindustan Unilever Limited v. State of Andhra Pradesh (T and AP) . . . 370

Works contract--Sales tax--Liability to tax--Sale or works contract--Dealer in printing materials--Printing of annual reports to specifications of customer--Not commercial commodity capable of sale in market--Works contract--Incidental transfer of paper to contractee--Does not make it a sale--Tamil Nadu General Sales Tax Act (1 of 1959), s. 3B.--Heritage Printers v. Joint Commissioner (SMR) of Commercial Taxes (Mad) . . . 478

Writs under Constitution--Service tax--Maintainability--Local authority establishing and maintaining bus stand and regulating advertisements--Demands raised in respect of renting of immovable property services, business support services and sale of space or time for advertisement services--Replies of assessee considered and orders passed and becoming final--Writ petition filed one year thereafter contending that local authority does not come within purview of service tax--Not maintainable--Finance Act (32 of 1994), ss. 65(90a), (104c), (105)(zzzm), (zzzz), 85--Constitution of India, art. 226--Circular No. 89/7/2006-ST dated December 18, 2006.--Kothamangalam Municipality v. Additional Commissioner of Central Excise, Customs and Service Tax (Ker) . . . 451
_____________
1

COMMERCIAL LAWS OF INDIA (P) LTD.
No. 2 (Old No. 36), Vaithyaram Street,
T.Nagar, Chennai - 600017.
Phone: (044) 4217 8564, 2435 0752 - 755
Telefax: (044) 2815 1144
info@clipl.com
To Unsubscribe : Reply back with "Unsubscribe" in subject and Also send your feedback or comments to info@clipl.com