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2024 (4) TMI 693
Valuation of goods - addition of franchise fee and international marketing charges incurred and of services obtained, in transaction value under the authority of rule 10 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 - Penalty under section 114AA of Customs Act, 1962 - extended period of limitation - HELD THAT:- In the extant version of section 14 of Customs Act, 1962, between ‘transaction value’ and the proviso therein, as set out in section 14, is the mandate for inclusions in the price, agreed upon for the particular shipment and which is not in doubt, to render the ‘transaction value’ compatible with ‘value’ intended for assessment in section 14 of Customs Act, 1962. It also empowers framing of rules to that end besides resort to rules for attending upon circumstances in which ‘transaction value’ is not available. The valuation provision itself thus distinguishes ‘transaction value’ and ‘transaction value not being determined’ which calls for recourse to the Rules framed under that empowerment. The Rules provide for substitution when ‘transaction value’ of imported goods are not available, for inclusion in ‘transaction value’ for adjustment to conform to ‘value’ and for empowering the deeming of ‘transaction value’ as not being available. Merely owing to the remedies for these contingencies being collated in one statutory instrument, every recourse is not to be attended by taint on ‘transaction value’ meriting rejection.
The ‘franchise fee’ and ‘international marketing charges’ are to be included in the ‘transaction value’ for conformity with section 14 of Customs Act, 1962. To that extent, and in the context of not being pressed on behalf of the appellants, the includibility attains finality. On the issue of inclusion of third element in order of Commissioner of Customs, Air Cargo Complex (ACC), it has been submitted that the dispute for subsequent period has been remanded to the original authority. It is, however noted, that dropping of that element in the adjudication orders has not been appealed against by Revenue. It must be presumed to have attained finality in favour of appellant herein.
Penalty under section 114AA of Customs Act, 1962 - HELD THAT:- The decision in SHRI. T.R. VENKATADARI, SHRI. SANJAY AGGARWAL, SHRI. A. RAGHUNATHAN, SHRI. VIJAY MALLYA VERSUS COMMISSIONER OF SERVICE TAX-I, MUMBAI [2017 (10) TMI 455 - CESTAT MUMBAI], combined with the lack of any evidence of roles played by any individual, suffices to set aside that detriment. The imposition of penalty under section 114A of Customs Act, 1962 in one of the orders of Commissioner of Customs, Nhava Sheva is contrary to law and must be set aside.
Confiscation - penalty u/s 112 of Customs Act, 1962 - HELD THAT:- The confiscation ordered in all three orders and penalty ordered under section 112 of Customs Act, 1962 in two of the orders are without sufficient examination of law and fact. Likewise, the invoking of extended period in all the orders has been undertaken without proper examination of factual circumstances that enable such demand. These require re-ascertainment in accordance with our observations supra including quantification of demand legally recoverable.
All the orders are set aside and restored to the original authority for fresh proceedings that shall be limited to justification, if any, for invoking extended period and consequent quantification of tenable demand and to evaluate the grounds on which liability to confiscation are supported by law and facts with penalty under section 112 to follow only in the event of validation of confiscation.
Appeal disposed off.
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2024 (4) TMI 692
Dismissal of application seeking direction to release payment as an Operational Creditor, for the services rendered during the CIRP period - it was held by NCLAT that In view of the aforesaid discussion and the fact that Resolution plan was approved way back on 28.02.2020 by the Hon’ble Supreme Court and has been implemented, we do not find any merit in the present appeal and the same is hereby dismissed.
HELD THAT:- There are no reason to interfere with the impugned order - appeal dismissed.
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2024 (4) TMI 691
Prayer for condonation of delay - it was held by NCLAT that Our jurisdiction to condone the delay being limited to 15 days and we having held that benefit of Section 14 of the Limitation Act cannot be extended to exclude period during which I.A. No. 2337 of 2023 and I.A. No. 3270 of 2023 remained pending before the Adjudicating Authority, the Delay Condonation Applications which prays condonation of 74 days delay deserves to be dismissed.
HELD THAT:- There are no reason to interfere with the order of the National Company Law Appellate Tribunal since no substantial question of law is involved in the appeal - appeal dismissed.
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2024 (4) TMI 690
CIRP - Preferential Transaction - transactions infringing section 43 of the IBC - it was held by NCLAT that In the background of the report of ‘Forensic Audit’ of the ‘Corporate Debtor’, it is quite clear that the said transactions amounting to Rs.7,81,352 are ‘preferential transactions’, as defined under section 43 of the IBC - HELD THAT:- There are no good ground and reason to interfere with the impugned judgment and hence, the present appeal is dismissed.
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2024 (4) TMI 689
Money Laundering - summons issued by the petitioner, ED under Section 50 of the Prevention of Money Laundering Act, 2002 (PMLA) - HELD THAT:- From the documents produced on record today, it appears that the said respondents – Collectors instead of respecting this Court’s order, did not appear in person and filed their replies to the summons dated 01.03.2024 issued by the ED, stating inter alia that the information and data sought for is maintained by the other executive wings and would be required to be collected from different departments and offices located at various places and the process will require some time.
When the Court had passed the order directing them to appear in response to the summons issued by the ED, they were expected to obey the said order and remain present before the ED. By not following the order, they have created an impression that they do not have respect either for the Court, or for the law, much less for the Constitution of India. Such an approach is strongly deprecated.
It is directed that the respondents – District Collectors shall remain personally present and appear before the ED on 25.04.2024 and respond to the summons issued under Section 50 of the PMLA in respect of the information /data sought therein, failing which, strict view shall be taken in the matter.
List on 06.05.2024 for reporting the compliance.
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2024 (4) TMI 688
Seeking grant of anticipatory bail - Money Laundering - twin conditions of Section 45 of the PMLA Act satisfied or not - main accused was exonerated on identical allegations by the Adjudicating Authority - HELD THAT:- It is not in dispute that the FIR was registered on 19.02.2010 whereas the respondent filed a complaint arraying the applicant as accused in ECIR on 04.01.2021 i.e. after 10 years. From the summons issued to the applicant, it is quite vivid that she was permitted to appear through an authorized person and it cannot be said that she did not cooperate in the investigation. According to the proviso appended to Section 45 of the PMLA Act, a woman may be granted anticipatory bail.
The judgment passed by the Hon’ble Supreme Court in the matter of Satender Kumar Antil [2022 (8) TMI 152 - SUPREME COURT] cannot be lost sight of as the applicant is a lady and she cooperated in the investigation of the matter and other co-accused persons against whom similar allegations were made, have already been granted anticipatory bail by the Hon’ble Supreme Court and by this Court, therefore, in the considered opinion of this Court, the present is a fit case to extend the benefit under Section 438 of Cr. P.C. to the applicant.
The anticipatory bail application is allowed and it is directed that in the event of arrest of the applicant in connection with the aforesaid offence, she shall be released on anticipatory bail on her furnishing a personal bond for a sum of Rs. 50,000/- with one surety in the like sum to the satisfaction of the arresting officer on the fulfilment of conditions imposed - bail application allowed.
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2024 (4) TMI 687
Money Laundering - Proceeds of crime - attachment of moveable property of the appellant - HELD THAT:- The perusal of the provision of Section 5 of PMLA reveal that the attachment of the property is warranted when it is involved in money laundering and the person is in possession of the proceeds of crime and such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation. The attachment of the property thus pre-supposes not only it to be proceeds of crime but apprehension of its concealment or transfer, etc.
In the instant case, it is not in dispute that Bund Garden Police Station has frozen the bank account No.920020062949058 of TIET on 29.08.2021. It is for the amount of proceeds of crime to the tune of Rs.7.96 crores and additional amount is of Rs.1.5 crores for which a property of the appellant in the connected appeal has been attached. Till the order of Competent Authority of police remains in force, there cannot be any likelihood of transfer or alienation of the said amount by the appellant. In view of the above, there was no reason for the respondent to attach the TIET Bank account and accordingly we find that attachment was caused by the respondent without there being an element of any apprehension or alienation or to deal with the property in a manner to frustrate the confiscation.
The proceeds of crime involved in this case is for a sum of Rs.8,67,98,250/- and the amount available in the TIET account is of Rs.7.96 crore, however attachment was to bemade to the extent of Rs.8,67,98,250/-and accordingly a property worth of Rs.1.50 crores of the appellant in the connected appeal was attached. The attachment of the amount in this case is of Rs.7,17,98,250/- - Since we have caused interference in the order of attachment and its confirmation in reference to Section 5(1) of the Act of 2002 as a greater amount than attached has been frozen by the Bund Garden Police Station, Pune, our order in favour of the appellant would operate till amount of Rs.7.96 crores remains frozen with the Bund Garden Police Station and is not interfered or withdrawn.
Appeal disposed off.
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2024 (4) TMI 686
Money Laundering - provisional attachment order - Without there being any evidence to prove a case of money laundering by the appellant, the order of attachment has been confirmed by the Adjudicating Authority - violation of principles of natural justice - HELD THAT:- As per the accounting system, payment towards the supply of material has to be made by the firm to whom supplies have been made. It cannot by a stranger firm unless proper arrangements in writing are made. The facts of this case are quite alarming. The transaction to deposit the amount in the bank account of the appellant was not under normal circumstances but was at the time of demonetization of money by the Govt. of India. Although the appellant is not an accused but the proceeds of crime has been channelized to him, thus attachment cannot be held to be illegal.
The detailed charge sheet has not been quoted which otherwise refers further facts as to how demonetized money was channelized in the bank accounts of the companies and ultimately it came in the account of appellant.
The appellant no doubt submitted the invoices to show supply of cloths to Ajay Kumar Jain but he has not produced any material to show arrangement for payment towards the supply to Ajay Kumar Jain through the bank account of three non-existing companies. The appellant has shown his innocence for receipt of the money towards its supply to Ajay Kumar Jain but it cannot be accepted. The appellant was knowing receipt of money through the firms to whom he never supplied any material.
There are no illegality in the impugned order - appeal dismissed.
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2024 (4) TMI 685
Condonation of delay of 1776 days in filing the Civil Appeal - Rectification of mistake - mistake apparent of the face of record or not - Refund claim - export of services or not - it was held by High Court that The Tribunal’s order rejecting application of the petitioner to rectify mistake apparent from record in its order cannot be faulted - HELD THAT:- Issue notice on the application for condonation of delay as well as on the Special Leave Petition and the Civil Appeal.
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2024 (4) TMI 684
Maintainability of petition - availability of alternate remedy before the appellate Commissioner under Section 85 of the Finance Act, 1994 - marginal delay in filing the present Writ Petition - HELD THAT:- Since the petitioner has an alternate remedy before the appellate Commissioner under Section 85 of the Finance Act, 1994, I am inclined to dispose of this Writ Petition by giving liberty to the petitioner to file statutory appeal before the appellate Commissioner within a period of 30 days from the date of receipt of a copy of this order subject to the petitioner depositing 20% of the disputed tax considering the delay involved. If such an appeal is filed by the petitioner within 30 days from the date of receipt of a copy of this order together with pre-deposit of 20% i.e., 10% over and above what is contemplated under Section 35-F of the Central Excise Act, 1944, the appeal shall be entertained and disposed by the Commissioner on merits and in accordance with law.
Since the Deputy Commissioner of GST & Central Excise, Madurai I Division, has been arrayed as the sole respondent in this Writ Petition, the Commissioner of CGST & Central Excise, Madurai – I Division, No.5, V.P. Rathinasamy Nadar Road, Bibikulam, Madurai – 625 002, is suo motu impleaded as second respondent in the Writ Petition.
Petition disposed off.
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2024 (4) TMI 683
Scope of SCN - Classification of service - Club or Association services or not - services of licencing the copyrights in musical works to its members who had only paid subscription fee of meager amount and licensing of copyright in musical work - HELD THAT:- The Show-cause cum demand notice lacks clarity about the recipient of the service and the nature of services provided to it allegedly by the appellant.
The nature of service provided by the appellant was stated to be administration of copyrights owned by its members and it is in the nature of facilities or advantages extended to its members. However, going by the factual background, it is noticed that appellant is a company and not a Society registered under Society Registration Act but it collects monthly subscription fee from its members. Apart from this amount no other consideration flows from the members/ copyright owners to the appellant and there is no denial of the fact that entire collection from the membership had never exceeded the threshold prescribed for registration of a Company under Service Tax.
Clause 29A of Article 366 of Constitution of India defines all services associated with sale of goods or lease of the kind as deemed sale and as because Intellectual Property, which in the present case is copyright and other related rights in the nature of performance, play etc. that is not in tangible form, the same may not be included under the definition of services under Section 65B (44 read with Section 66E) but the very fact that Section 65 (55b) that defines “Intellectual Property Services” expressly excludes copyright from the category of Intellectual Property services and there is also no demand against such licence fee/ royalty collected by the appellant from the customers/ users, the order of the Commissioner is unsustainable in both law and facts. Further demand being confirmed against administrative expenditure that was deducted from the membership fee and royalty/ licence fee by a non-profit organization namely assesse, consideration should also be treated as ‘Nil’ for the purpose of taxation.
The order passed by the Commissioner of Service Tax-VI, Mumbai is hereby set aside - Appeal allowed.
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2024 (4) TMI 682
Time limitation - Levy of service tax - Manpower Supply Service - secondment of employees by the Appellant to its associated Foreign Counterpart at Germany on reverse charge mechanism - suppression of facts or not - HELD THAT:- In the present case it could be noticed that show-cause notice was issued on 16.10.2015 up to the end of financial year 2013-2014 during the relevant period and in view of clear provision contained in Section 73(1) read with 73(6), the normal period for making demand through show-cause notice was 18 months from the relevant date and if any fraud, collusion, wilful misstatement, suppression of facts, contravention of any of the provisions of this Chapter or the Rules made thereunder with intent to evade payment of Service Tax is noticed in view of proviso to Section 73(1), Central Excise Officer can served notice for demand that could be extended up to 5 years. This being the statutory provision, the notice of demand being signed on 16.10.2015 and dispatched thereafter cannot be considered to have been sent within 18 months of the end of financial years, up to which demand is made i.e. up to 31st March 2014 - the show-cause notice is not issued in conformity to the law and, therefore, it was required to be quashed before initiation of adjudication proceeding.
Appellant having filed its return for the said period on 25.10.2013, in view of clear provision contained in Section 73(6)(i)(a) wherein it has been mentioned that for the purpose of determination of “relevant date”, periodical return filed on the date showing particulars of Service Tax paid during the period to which return relates would be taken for the purpose of calculation of period of limitation of 18 months, which would end on 25.01.2015 the entire demand is barred by limitation.
The contention made by the Appellant that this appeal is hopelessly barred by the period of limitation, agreed upon, as the entire proceeding is carried out in gross violation of the position of law and deviation in any form from the statutory provision is impermissible.
The order passed by the Principal Commissioner of Central Excise & Service Tax, Pune-I is hereby set aside - Appeal allowed.
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2024 (4) TMI 681
Non-payment of service tax - commercial and industrial construction service - rendering of service even before registering with the department on 11.6.2007, but it had not paid any service tax on such services - non-payment of service tax on some projects/contracts on the ground that they were charitable/educational hospitals or projects - non-payment of service tax on certain residential construction on the ground that they were residential units - collection of some amounts as ‘service tax’ in some of the running bills on these projects, but did not deposit these amounts in the exchequer - non-inclusion of value of materials supplied free of cost by its clients in the value of taxable services - non-payment of service tax at all in respect of the services rendered by it from April 2009 to June 2010.
Demand for the services provided prior to 1.6.2007 are concerned, the demand is under the head ‘commercial and industrial construction service’ - HELD THAT:- During this period, the appellant was not registered with the service tax. From 1.6.2007, the appellant is registered under the head ‘Works Contract Service’ and paid service tax on the service. There is no dispute that the nature of the service was the same both before and after 01.06.2007 - ‘Works Contract Service’ is a contract which involves rendering of service along with transfer or deemed transfer of property in goods. For instance, if a builder constructs a building under a contract including the cost of materials, not only does he render the service but he also transfers the property in the material used such as bricks, steel, cement, etc. while rendering the service. Such services are distinct from contracts for sale of goods or contracts for rendering services and are known to commerce as a separate species of contracts. Such contracts became chargeable to service tax as ‘works contracts service’ w.e.f 1.6.2007 and there was no charge of service tax on such services prior to 01.06.2007 as held by the Supreme Court in COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT] - the demand of service tax on works contracts executed prior to 1.6.2007 under the head ‘commercial or industrial construction service’ cannot be sustained.
Demand for the period after 1.6.2007 - suppression of facts or not - time limitation - HELD THAT:- The appellant cannot claim exemption from service tax on the ground that its client was exempted under some provision of income tax. If it wants to claim exemption from service tax, it is its responsibility to show how it was covered by an exemption notification or exemption clause under the provisions of the service tax. Similarly, if it wants to claim exemption from income tax, it has to show how it is exempted under the laws of income tax. However, it is found from Annexure B(1) of the SCN that the amounts which it had received from these three organisations were received clearly beyond the normal period of limitation and hence any demand on this count is hit by limitation.
Construction of residential complexes - HELD THAT:- It is found that the demand for the normal period of limitation was not under “construction of residential complexes” but only under the head of ‘Works Contract Service’ and hence this submission is also irrelevant.
Composition scheme - demand raised on the gross amounts received without any abatement towards the value of the goods - HELD THAT:- The reason for not allowing abatement as recorded in paragraphs 44 and 45 of the impugned order is that the appellant had not opted for payment of service tax under Works Contract Composition scheme. In this factual matrix, when it is undisputed that goods were used in execution of the contracts and the value of the goods is not available, it will not be open to the department to charge service tax on the entire gross amounts received including the value of the good transferred. Service tax cannot be charged on the value of the goods sold or otherwise transferred as a part of the contract. It is found that even if the appellant had not opted for the composition scheme by submitting a letter in writing as required during the relevant period, if it is otherwise eligible for the benefit of the composition, it cannot be denied for the technical fault of not submitting a letter within time. Accordingly, the demand for the normal period of limitation under this head is confirmed allowing abatement under the Composition scheme.
The last submission on merits of the case is that the impugned order confirmed demands on the value of the free materials supplied by the clients of the appellant - HELD THAT:- It is found from the SCN that demands have been made on this account. It has been decided by the larger bench of this Tribunal in M/S BHAYANA BUILDERS (P) LTD. & OTHERS VERSUS CST, DELHI & OTHERS [2013 (9) TMI 294 - CESTAT NEW DELHI-LB] that the value of supplies made free of cost by the service recipient cannot be included in the taxable value for calculating service tax. This decision was upheld by the Supreme Court in COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [2018 (2) TMI 1325 - SUPREME COURT]. Therefore, the demand on this account needs to be set aside.
Appeal allowed in part.
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2024 (4) TMI 680
Levy of service tax - works contract service - construction of a new building or a civil structure or a part thereof or a pipeline primarily for the purpose of commerce and industry - Boundary wall is a part of the building or is it a civil structure or a part of the building or civil structure? - Extended period of limitation - penalties - HELD THAT:- Admittedly, service tax was payable on the construction of a new building or a civil structure or a part thereof. The appellant’s contention is that boundary wall is not a part of the building nor is it a civil structure. This submission cannot be accepted. A boundary wall is invariably a part of the building or a civil structure. It needs to be noted that service tax was payable not only when the entire building or a civil structure is built but it was also payable when a part of it is built - the submission of the appellant that the boundary wall is not a part of the building and is also not a civil structure, cannot be agreed upon. Therefore, regarding the demand on merits, the issue is decided against appellant.
Extended period of Limitation - Suppression of facts or not - HELD THAT:- During investigation itself, the appellant agreed and paid the service tax. Had the appellant been discharging its obligations and filing ST 3 returns, it would have been the responsibility of the department to scrutinise them with the records and raise a demand. The appellant in this case neither disclosed the rendering of this service nor paid service tax on it nor filed the returns. This qualifies as suppression of facts with intent to evade payment. Therefore, the extended period of limitation was correctly invoked in this case.
Imposition of penalties under section 77 and 78 of the Finance Act - HELD THAT:- Whenever any service tax is not paid by reason of fraud or collusion or wilful misstatement or suppression of facts or violation of the provisions of the Act or Rules with an intent to evade payment of service tax, penalty under section 78 can be imposed. In other words, the same elements which make the extended period of limitation invokable also make the assessee liable to penalty under section 78 - Since it is already held against the appellant on the question of extended period of limitation, there are no reason to take a different view with respect to penalty under section 78. Section 77 is a general penalty for offences. Since the appellant had failed to pay self assess service tax correctly and pay it and file returns, we find the penalty of Rs. 10,000 on the appellant under section 77 is also just and fair.
The impugned order is upheld - Appeal dismissed.
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2024 (4) TMI 679
Classification of service - Business Support Service or Renting of immovable property - appellant is an operator of individual or multiple cinemas screen at multiple complexes as owner/lessee having ownership/lease hold rights - HELD THAT:- There is no service as such which has been provided by the appellant to the distributors. The appellant has agreed for exhibiting the distributor’s film without any interference of the said distributors. The distributors had actually granted licence to exhibit the theatrical exihibition rights of the film in the lincesed theatre.
As far as the time and number of shows are concerned, the distributor has agreed for getting share in the Revenue collected from the sale of the tickets that to within 10 days of completion of every week to which it pertains. The agreement clarifies that it is the transfer of copyright by the distributor in favour of the appellant to the exclusion of all including the owner of the said copyright.
The issue is otherwise no more res-integra. Various decisions have clarified that Revenue sharing arrangement in itself does not necessarily imply provision of service, unless service provider and service recipient relationship is established - reliance can be placed in DELHI INTERNATIONAL AIRPORT P. LTD. & MUMBAI INTERNATIONAL AIRPORT P. LTD. VERSUS UNION OF INDIA & ORS. [2017 (2) TMI 775 - DELHI HIGH COURT] - there is otherwise nothing on record to establish the said relationship.
There are no reason to differ with the findings arrived at in the Order-in-Appeal, the same is accordingly upheld - appeal of Revenue dismissed.
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2024 (4) TMI 678
Classification of service - Business Auxiliary Services or not - process of washing of coal - period 16.06.2005 to 31.03.2007 - HELD THAT:- The decision of the Tribunal in ARYAN ENERGY (P) LTD. VERSUS COMMR. OF CUS. & C. EX., HYDERABAD-I [2008 (5) TMI 248 - CESTAT BANGALORE], M/S SPECTRUM COAL AND POWER LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [2012 (9) TMI 24 - CESTAT, NEW DELHI] and M/S. ARYAN COAL BENEFICATIONS PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX NEW DELHI [2012 (9) TMI 205 - CESTAT, NEW DELHI] have consistently held that the activity of beneficiation of coal by the assessee is part of mining activity and, therefore, would be liable to service tax only w.e.f. 1.6.2007 and once it is established that the activity is mining, it cannot be taxed under the “Business Auxiliary Service” for the period prior to 1.6.2007.
It is found that it is settled by the judicial pronouncements that the activity of beneficiation/washing of coal is a taxable service in relation to mining of minerals only w.e.f. 1.6.2007 and, therefore, the Commissioner rightly decided that no demand can be made by the Department for the period prior to 01.06.2007 under the category of “Business Auxiliary Service”.
There are no reasons to differ from the settled law and which is squarely applicable in the facts of the present case - The impugned order is accordingly affirmed - appeal filed by the Revenue stands dismissed.
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2024 (4) TMI 677
Classification of services - mining services or not - hiring pay loader and tipper/dumper for loading - HELD THAT:- The findings of Bombay High Court in the case of INDIAN NATIONAL SHIPOWNERS' ASSOCIATION VERSUS UNION OF INDIA [2009 (3) TMI 29 - BOMBAY HIGH COURT] have been quoted by the Adjudicating Authority and it has been held that the transportation of coal as performed by the Assessee herein on tippers/trucks upto siding has no direct/indirect nor any proximate relation with the mining of coal (mining activity).
The issue is no more res-integra, the authorities have rightly followed the judicial discipline while applying the ratio of the Hon’ble Supreme Court’s decision in COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, RAIPUR VERSUS SINGH TRANSPORTERS [2017 (7) TMI 494 - SUPREME COURT]. Hence, there are no infirmity in the order under challenge.
The order under challenge is hereby upheld - the appeal filed by the department is dismissed.
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2024 (4) TMI 676
Recovery of service tax alongwith interest and penalty - Business Auxiliary Service - the facts and the law and binding judicial precedents on the identical issue not properly appreciated - violation of principles of natural justice - Extended period of limitation - HELD THAT:- The identical issue has been considered by the Tribunal in the case of M/S S.R. MEDICAL AGENCIES VERSUS COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH-II [2023 (8) TMI 1150 - CESTAT CHANDIGARH] and this Tribunal after considering all the submissions of both the parties has held This issue has been considered by various benches of the Tribunal and has consistently been held that the assessee is not liable to pay service tax under the category of ‘Business Auxiliary Service’.
The impugned order is not sustainable in law and therefore, the same is set aside - appeal allowed.
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2024 (4) TMI 675
Levy of penalty upon both the appellants, being the Director/ Authorized Signatory in terms of Section 78A of Finance Act, 1994 - benefit of Section 124 (1) (b) of SVLDRS - HELD THAT:- Apparently and admittedly, it was the main co-noticee i.e Wisdom Guards Pvt. Ltd. who has been issued the discharge certificate (SVLDRS Form No. IV) under the SVLDRS, Scheme, 2019. There are no such provision in the scheme which may extend immunity to the other co-noticees because of the discharge certificate in favour of the one of the co-noticee. Hence, the said contentions of the appellant not agreed upon.
Coming to the another aspect of Section 78A of Finance Act to have been introduced only w.e.f. 10.05.2013, we hold, based upon the settled position of law, that all provisions of statute have to be given prospective effect unless and until, they are expressly made to apply retrospectively. Section 78A of the Act is perused. There is nothing in the Section to reflect that the section has to be applied retrospectively - the section can be invoked w.e.f. 10.05.2013. The period involved in the present appeal is 2011-2012 to 2013-2014. Hence, it is clear that the periods is pre as well as post the insertion of Section 78A in the impugned Act - there are no reason to extend any benefit of said provisions to the appellant.
Appeal allowed in part.
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2024 (4) TMI 674
CENVAT Credit - non-payment of amount equivalent to 6% on the value of exempted services as required under Rule 6 (3) (i) of Cenvat Credit Rules, 2004 - HELD THAT:- In the present case, it is observed that, undisputedly entire Cenvat credit taken/availed by the appellant during the period under dispute, whether in respect of taxable service or exempted service, have been deposited along with interest well before the issuance of the show cause notices and got appropriated by the adjudicating authorities vide the impugned order. The law in this respect is settled that if credit originally availed is reversed subsequently it would amount to as if not credit has been awaited.
Support drawn from the decision of Hon’ble Supreme Court in the case of CHANDRAPUR MAGNET WIRES (P) LTD. VERSUS COLLECTOR OF C. EXCISE, NAGPUR [1995 (12) TMI 72 - SUPREME COURT]. It is observed that the Commissioner (Appeals) has considered the decision of this Tribunal as well as of Hon’ble Madras High Court which are based on the aforesaid decision of Hon’ble Supreme Court.
There is no infirmity in the order under challenge, the same is accordingly upheld - Appeal of Revenue is dismissed.
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