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- 2019 (11) TMI 613
Condonation of 67 days delay in filing the appeal before the CESTAT by the Revenue - Section 86(2) of the Finance Act, 1994 - HELD THAT:- In the absence of any acceptable/believable reason for not filing an appeal, no fault can be found with the impugned order of the Tribunal, in holding that the reason given for the delay as sufficient cause, namely, the introduction of GST is on the face of it is unacceptable as the orders in question were all passed much after the introduction of GST. The occasion to adopt a liberal approach in matters of condonation of delay would only arise if some cause is made out for the delay - Therefore, the view taken by the Tribunal in the present facts cannot be said to be perverse. The proposed question of law does not give rise to any substantial question of law. Thus, not entertained - Appeal dismissed.
- 2019 (11) TMI 498
Condonation of delay in filing appeal - an appeal was filed by the Managing Director of the petitioner-firm with a delay of 272 days, due to reasons, beyond his control, like death of his mother, hospitalization and recovery of his illness - power of Commissioner (Appeals) to condone delay - HELD THAT:- This Court is not inclined to interfere with the order of the Tribunal, on the ground that in a similar case in M/S. FALCON TYPES LTD. VERSUS THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, THE COMMISSIONER OF CUSTOMS (SEAPORT-IMPORT) [2016 (7) TMI 40 - MADRAS HIGH COURT], we have considered the power of the appellate authority to condone the delay beyond the extendable period and it was held that It is well settled law that When the appeal itself is time barred and when the appellate authority or the CESTAT, Chennai, cannot condone the delay, in terms of the statutory provisions, prescribing a specific period of limitation. Petition dismissed - decided against petitioner.
- 2019 (11) TMI 441
Recovery order - alleged non-payment of service tax dues under the Finance Act, 1994 - proceedings of recovery of third party from the petitioners - HELD THAT:- It is an agreed position between the parties that given the above facts and the nature of the dispute between the parties, it would be best adjudicated upon by the Commissioner of CGST and CE, Mumbai Central Commissionerate. This adjudication by the Commissioner of CGST and CE, Mumbai Central would be on the basis that the impugned communications dated 6th February, 2018, 13th March, 2018, 10th April, 2019, 17th July, 2018 and 4th January, 2019 issued by respondent no.1 - Deputy Commissioner of Service Tax would be construed as show-cause notices to the petitioners - The Commissioner of CGST and CE would pass an appropriate order on the representation by following due process of law including the principles of natural justice. Petition disposed off.
- 2019 (11) TMI 243
“Sabka Viswas” (Legacy Dispute Resolution) Scheme, 2019 - delay in notification of the Scheme - the scheme was notified on 21.08.2019 - since the Scheme had not been notified, the petitioner out of abandoned caution had preferred the appeal on 16.08.2019 in respect of adjudication order dated 14.06.2019 - Case of petitioner is that, he petitioner has fallen in no man’s land and is not entitled the benefit of Scheme - HELD THAT:- The grievance of the petitioner appears to be justified and the respondents should seriously examine the same. List on 20.11.2019.
- 2019 (11) TMI 57
Refund claim - time limitation - Section 11B of Central Excise Act - doctrine of merger - Whether the provisions of Section 11B(5)(ec) or Section 11B(5)(f) of the Central Excise Act, 1944 are applicable in case where the Order-in- Original is challenged inasmuch as the levy of penalty and such levy of penalty is set aside by the Appellate Authority? - Whether under the facts and circumstances of the case, the Order-in-Original passed by the Respondent adjudicating authority merges with the Order-In-Appeal passed by the Commissioner of Central Excise(Appeals)? HELD THAT:- The actual liability would be determined subsequent to the order of the Appellate Authority. On the liability created towards the penalty, the amount in balance deposited by the assessee would have been appropriated/adjusted. No question of refund would have arisen if no ....... + More
- 2019 (11) TMI 21
Maintainability of appeal - appeal was dismissed on the ground of time bar - HELD THAT:- The respondent no.2, vide letter dated 10.05.2019, provided certified copy of the order in original to the petitioner. The petitioner without any delay filed an appeal under Section 35 of the Central Excise Act, 1944 in Form ST-4 before the Commissioner (Appeals-I), CGST, Central Goods & Services Tax Commissionerate, Jaipur, on 07.06.2019 - the Commissioner, without going into the merits of the case, dismissed the same on the ground of limitation. No doubt, the appeal filed by the petitioner was time barred but in the facts of the case, the appeal of the petitioner ought to be decided on merits rather dismissing the same on the ground of delay. The delay occurred in filing the appeal is condoned and remit this matter to the Commissioner (Appeals), Central Goods And Service Tax, Jaipur, for its decision on merits - petition allowed by way of remand.
- 2019 (11) TMI 20
Levy of service tax - Ocean Freight as per balance-sheet - in the second show-cause notice the tax was claimed on account of the service of “Freight Forwarder.” - HELD THAT:- The adjudicating authority shall not permit the respondents to run a case inconsistent with the earlier show-cause notice, if the appellant is able to show that the transactions covered by the earlier showcause notice and those which are the subject-matter of the present show-cause notices are identical in nature, scope and effect. All other points are kept open before the said authority. The impugned judgement and order dated 14th August 2018 is modified by relegating the appellant to the alternative forum directing it to decide the two show-cause notices before it by giving an opportunity to the appellant to file a reply thereto, strictly in terms of our observations by a reasoned order, within six months of communication of this order - appeal disposed off.
- 2019 (11) TMI 11
Applicability of provisions of Section 106(2A) of the Finance Act, 2013 - no inquiry had been initiated against the respondents herein to warrant rejection of the declaration made under the VCES scheme. Maintainability of declaration - whether the information sought from M/s.Marvel Realtors was an inquiry of roving nature and, therefore, the declaration ought to have been accepted? HELD THAT:- Reliance placed in the case of THE COMMISSIONER OF CENTRAL TAX PUNE I COMMISSIONERATE VERSUS MARVEL LANDMARKS PVT. LTD., M/S. MARVEL SIGMA HOMES PVT. LTD. [2019 (5) TMI 164 - BOMBAY HIGH COURT] where it was held that The Tribunal found that the enquiry being made in respect of the respondents were in nature of roving enquiry, not hit by Section 106(2) of the Finance Act, 2013. In view of above questions, these questions as proposed do not give rise to any substantial question of law. Thus, not entertained - appeal dismissed.
- 2019 (10) TMI 1044
Permission for withdrawal of appeal - monetary amount involved in the appeal - Refund of service tax - refund which was beyond one year is denied - HELD THAT:- The appellant admits that in view of instructions dated 22.8.2019 issued by Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs (Judicial Cell) the instant appeal would not be maintainable before this Court, as refund amount i.e. 42, 39, 625/- is below the monetary limit of ₹ 1 Crore. Appeal dismissed as withdrawn.
- 2019 (10) TMI 540
Rejection of “cum tax” claim of the Petitioner - services of “Supply of Manpower” - Petitioner during 2011-12 to 2014-15 collected Service Tax from its clients but deposited partial amount with Service Tax authorities - HELD THAT:- The Respondent considered value appearing in 26AS Form cum tax value and Settlement Commission on the basis of sample invoices found that Petitioner is entitled to benefit of cum tax value. The Settlement Commission has further noted that tax was collected but not deposited. The gross value was shown in the balance sheet as well Form 26AS. There seems no reason to deny benefit of cum tax value in view of the fact that price appearing in 26AS Forms was admittedly cum tax price and as per judgments cited by Petitioner gross value is considered as cum tax. The Settlement Commission has foun....... + More
- 2019 (10) TMI 330
Maintainability of application - payment of outstanding installments alongwith interests - HELD THAT:- The tentative revised instalments will be paid punctually by the appellant/applicant by the 7th of each month after June, 2019. On this basis, the instalment for June, 2019 may be paid by the appellant/applicant by 20th June, 2019. But the subsequent instalments shall have to be paid by the 7th of each succeeding month. The merit of this application, which is treated as an application for implementation of the order dated 25th February, 2019, including its maintainability will be decided on the returnable date of this application - If there is failure to pay by the appellant/applicant, the default clause in the said order dated 25th February, 2019 shall become operative. Application disposed off.
- 2019 (10) TMI 221
Challenge to the Show Cause Notice (SCN) - Maintainability of writ petition - Single member bench of HC allowing the petition, quashed the SCN - whether the department was justified in issuing the show-cause notice in the extended period of limitation is a mixed question of facts and law? - HELD THAT:- The learned single judge made a mistake by entertaining the writ application. The writ ought not to have been entertained when the respondent-writ petitioner had participated in the assessment proceedings. Secondly, the appellate authority under the service tax law was the appropriate authority to adjudicate upon the above mixed question of facts and law relating to the extended period of limitation and the issue whether the respondent was assessable to service tax or not. Thus, we are minded to refer this dispute to the statutory appellate....... + More
- 2019 (10) TMI 172
Imposition of penalty - Appellant did not file the ST-3 returns nor paid service tax within the stipulated time under the Act - HELD THAT:- The SCN was issued to the Appellant consequent to investigation done by the department and on failure of the Appellant to respond to the various letters addressed by the department directing the Appellant to pay the dues along with interest. It was only consequent to investigation and summoning the proprietor that not only was the service tax for the period involved in the present show cause notice paid along with interest but also service tax which was not paid for the earlier period was paid by the Appellant on his own. In this case the Appellant does not dispute the demand of service tax even after payment of tax before the issue of show cause notice as it is found that there is suppression of fact....... + More
- 2019 (10) TMI 152
Vires of Section 66C(2) and 68(2) of the Finance Act, 1994 r/w. Rule 10 of the Place of Provision of Service Rules, 2012 and Rule 2(1)(d) of the Service Tax Rules - levy of service tax provided by the person in a non-taxable territory - vires of N/N. 01/2017, 14/2017 and 15/2017 - HELD THAT:- The Petitioners have filed the Petition for a declaration in the absence of any of the Petitioner’s rights being jeopardized i.e. there are no facts pleaded of the Petitioner’s rights being affected and/or threatened. The challenge is made in vacuum i.e. without particulars. Thus, we are not inclined to entertain the Petition. Petition dismissed.
- 2019 (10) TMI 100
Attachment of petitioner's bank account - dues payable under Finance Act - HELD THAT:- The CBDT Circular Nos. 984 dated 16th September. 2014 and 1053 dated 10th March, 2017, clearly provide that where a penalty has been deposited 7.5% or 10% as required in terms of Section 35F of C. Ex. Act read with Section 83 of the Act, in respect of an Appeal before the Commissioner (Appeals) or the Tribunal, then the Revenue would not adopt any coercive proceedings - In the present case, it is undisputed that M/s. Sampark (by whom the dues are payable), have deposited 10% of the outstanding demanded under Section 35F of C. Ex. Act in respect of its pending appeal before the Tribunal from the order of Commissioner (Appeals). The above CBDT Circulars, which are binding upon the authorities, prohibit the authorities under the Act from adopting coerc....... + More
- 2019 (10) TMI 99
Mode of discharge of service tax - services provided by service providers located outside India - whether the appellant, as the person liable to pay the service tax on services provided by service providers located outside India, could pay the said service tax by utilization of CENVAT credit available with it? HELD THAT:- The issue is decided in the case of THE COMMISSIONER OF CGST AND CENTRAL EXCISE VERSUS M/S. U.S.V. LIMITED [2019 (7) TMI 567 - BOMBAY HIGH COURT] where it was held that there is no bar to utilizing of cenvat credit already availed to discharge service tax obligation on the import of services on reverse charge basis. Appeal allowed.
- 2019 (10) TMI 50
Maintainability of petition - alternative remedy of filing appeal - freight charges - taxability - HELD THAT:- The two orders passed by the revenue are on the face of it contrary to one another. The order dated 28 February 2019 passed by the Commissioner of Central Tax & GST, Thane holds that service tax on freight is a taxable service. On the above finding he confirms the recovery of an amount of ₹ 2.36 crores as Service Tax. On the other hand the Commissioner of GST, Mumbai (East) in his order dated 18 March 2019 holds that the freight charges are an exempted service. Thus as a result holds that the Petitioners are not entitled to Cenvat Credits of ₹ 11.37 crores and confirmed the demand on that basis. The revenue can obviously be right only on one of two counts and not on both counts i.e. either the impugned order dated....... + More
- 2019 (10) TMI 27
Imposition of tax and penalty - irregular availment of CENVAT Credit - inputs/input services used for provision of output services which are chargeable to duty or tax as well as exempted services - non-maintenance of separate records - Rule 6 of CCR - Maintainability of petition - HELD THAT:- he second respondent has brazenly exercised power under a provision which was not even available to him, as it was an enabling provision put in place for the benefit of the assessee, and arrived at a wholly unreasonable, if not absurd, result. That apart, the second respondent did not even choose to deal with the binding case law cited before him while dealing with the issues arising for consideration. This arrogant and arbitrary approach adopted by the second respondent cannot be countenanced - It would therefore not be necessary for the petitioner ....... + More
- 2019 (10) TMI 25
Rectification order - Recovery proceedings - maintainability of petition - alternative remedy of appeal - HELD THAT:- Without prejudice to the right of the petitioner to move the Appellate authority, or in the alternative, to seek a rectification of Ext.P1 order before the Assessing authority itself, the writ petition, in its challenge against Ext.P1 order, is dismissed. The recovery proceedings for recovery of amounts confirmed against the petitioner by Ext.P1 shall be kept in abeyance for a period of three weeks, so as to enable the petitioner to approach the Assessing authority/Appellate authority, in the meanwhile.
- 2019 (9) TMI 1152
Maintainability of appeal - monetary amount involved in the appeal - Levy of service tax - imposition of penalty - cleaning of railway wagons, cleaning of railway buildings and premises, cleaning and housekeeping of railway running rooms, water tightening of wagons in monsoon seasons etc. etc. - HELD THAT:- Having regard to the amount which is over all amount of ₹ 72,51,533/-, and the fact that even that amount has been directed to be bifurcated, this Court is of the opinion that the appeal falls within the mandatory limit prescribed by the circular dated 22/08/2019. Appeal dismissed.