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- 2019 (9) TMI 708
Rectification of mistake - impugned order rejects the rectification application merely on the ground that the order was dictated in the open Court and the objection now raised was not urged by the Petitioner at the time of hearing of the appeal leading to the order dated 5 July 2018 - HELD THAT:- The Respondents have not appeared despite service. However, it would be appropriate that we should give one more opportunity to the Respondents to present their case. In that view of the matter, we direct the Petitioner to serve the Respondents once again along with copy of this order. It is made clear that on the next occasion, if the Respondents do not appear, we are likely to consider the petition on merits for final disposal. The petition is adjourned to 19 September 2019.
- 2019 (9) TMI 707
Recovery of Service Tax - Post GST - proviso to section 73(1) of the Finance Act, 1994 (Finance Act) read with sections 142 and 174 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- We are not inclined to entertain this petition as only show-cause-notice is issued which involves investigation into facts. It is appropriate that the Petitioner responds to the same on merits and also bring to the notice of the Adjudicating Authority the decisions which, according to the Petitioner would conclude the issue in its favour. It would be open for the Adjudicating Authority to consider the issue of limitation, merits and all other submissions made by the parties - petition dismissed.
- 2019 (9) TMI 584
Validity of Recovery certificate - Rectification of error - error on the face of record or not - Section 74 of the Finance Act, 1994 - HELD THAT:- The petitioner failed to produce the relevant documents and to appear in the adjudication proceedings to make out a case and otherwise the Tribunal did not find mistake apparent on the face of record to rectify it. Rectification can be done when there is a defect apparent on the face of the record and to be rectified - there is no defect of nature which could have been rectified by entertaining the application under Section 74 of the Act of 1994. The application under Section 74 of the Act of 1994 is dismissed - petition dismissed.
- 2019 (9) TMI 330
Permission for withdrawal of appeal - monetary amount involved in the appeal - activity of providing erection, commissioning and installation services/work contract services - HELD THAT:- At the time of hearing, learned counsel for 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 demand amount i.e. 11, 20, 077/- for the period from 2009-10 to 2012-13 and ₹ 59, 80, 109 alongwith applicable interest and penalty for the period 2013-14 is to be recovered, which is below the monetary limit of ₹ 1 Crore. Appeal dismissed as withdrawn.
- 2019 (9) TMI 329
Permission for withdrawal of appeal - Monetary amount involved in the appeal - Excess utilization of CENVAT Credit - It is alleged that respondent was entitled to utilize cenvat credit upto 20% of the service tax payable, whereas it was utilizing cenvat credit upto 100% of service tax payable - HELD THAT:- At the time of hearing, learned counsel for 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 demand amount i. e. 94, 57, 161/- is to be recovered, which is below the monetary limit of ₹ 1 Crore. Appeal dismissed as withdrawn.
- 2019 (9) TMI 328
CENVAT Credit - input services - transportation of excisable goods from its Chennai Unit I to Jamshedpur Unit 2 of the Assessee itself - place of removal - applicability of the case of Hon'ble Supreme Court in COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] in the facts of present case. HELD THAT:- A closer and finer reading of the Hon'ble Supreme Court in COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] would clearly reveal that the Hon'ble Supreme Court was concerned only with the controversy of Cenvat Credit on goods transported from the place of removal to the buyers' premises and not the transport of goods from one Unit of the Assessee to another Unit of the same Assessee. In the context of the factua....... + More
- 2019 (9) TMI 285
Permission for withdrawal of appeal - monetary amount involved in the appeal - Refund of unutilized CENVAT Credit - export of services - HELD THAT:- At the time of hearing learned counsel for the appellant by citing letter dated 5.9.2018 written by Assistant Commissioner (Legal) CGST Gurugram, seeks permission to writhdraw the present appeal, as the revenue involved in the present appeal is 22.22 lakhs which is below the thresh hold limit prescribed by the Central Board of Indirect Tax and Customs as contained in instructions dated 11.7.2018. Appeal dismissed as withdrawn.
- 2019 (9) TMI 284
Recovery of amount due to Central Government - threat of coercive action - the second respondent has called upon the petitioner to remit the admitted service tax along with appropriate interest, penalty and late fee under the threat of coercive action. Since there was no compliance with the notice measures were initiated in terms of the Revenue Recovery Act. - applicability of Certificate No.1 of 2013 issued under Section 11 of the Central Excise Act, 1944 - HELD THAT:- The provisions of the Finance Act, 1994 are adequate to support the action taken in the present case for recovery. No doubt, the Certificate referred to in the impugned communication states at the top 'Section 11 Certificate No.1/2012' - However, mere reference to Section 11 (without even reference to the statute) would not vitiate the Certificate itself. Clearly, ....... + More
- 2019 (9) TMI 245
CENVAT Credit - input services - insurance premium to ensure the deposits of its constituents with it to the different Insurance and Guarantee Corporation - HELD THAT:- Mr. Jetly, learned Counsel appearing for the Revenue submits that the impugned order dated 12th February, 2019 of the Tribunal has been challenged by the Revenue to the extent it has not imposed any penalty upon the appellant. Mr. Jelty, states that the appeal has been filed and the objections of the Registry are to be removed. Mr. Jetly, further undertakes to remove the objections within one week, so the Revenue’s appeal as well as the appellants appeal could be heard together - This appeal along with the Revenue’s appeal, particulars of which would be given by Mr. Jetly to the Court Associate, be listed on 13th September, 2019. Stand over to 13th September, 2019.
- 2019 (9) TMI 244
Maintainability of appeal - appeal was filed belatedly without any condonation application - HELD THAT:- Once appeal was registered, without noting any delay and without notice to the appellant, the Appellate Authority could not have held that the appeal was not maintainable as it was barred by limitation. It is to be noted that the appeal was not found defective as it was unaccompanied by any delay petition and the appeal was registered. If there was any delay involved, the Office ought to have brought it to the notice of the petitioner with regard to the delay involved, so as to give an opportunity to the petitioner to explain the delay - Once appeal was registered, without noting any delay and without notice to the appellant, the Appellate Authority could not have held that the appeal was not maintainable as it was barred by limitation....... + More
- 2019 (9) TMI 124
Renting of immovable property service - supplying the tangible goods to persons - non-compliance with the Section 67 of the Finance Act 1994 - HELD THAT:- Appellate authority summarily dismissed the appeal on two counts, firstly, on the point of delay and secondly, on the point of non-deposit of necessary pre-requisite amount as is required under the Act of 1994. Both defaults went to the root of the matter - Consequently, the respondents were fully justified in dismissing the appeal on both counts. Petition dismissed.
- 2019 (8) TMI 1237
Whether activity of garbage disposal is liable to service tax - Dispute between service provider and recipient - Return of Fixed Deposit Receipts (FDRs) retained - Pending adjudication of the said issue before the Service Tax Department, the respondents withheld the security deposits in the form of FDRs offered by the appellant/petitioner - invocation of arbitration clause - HELD THAT:- the contention of the learned counsel for the appellant that the judgment in the case of Airport Retail Pvt. Ltd. [2014 (8) TMI 102 - DELHI HIGH COURT] has for all effects and purposes, settled the issue of leviability of Service Tax on services rendered by the appellant/petitioner to the respondents in both the appeals, in terms of the License Agreement, is not borne out. Nor is learned counsel correct in asserting that since the said decision has been af....... + More
- 2019 (8) TMI 1177
Refund of service tax - logistic charges - period 2009-10 to 2010-11 - time limitation - Section 11B of the Act, 1944 - HELD THAT:- The controversy with regard to the issue as to whether a transaction would be amenable to “Service Tax” or “VAT” has drawn the attention of the Hon’ble Supreme Court in a number of cases. In the case of Bharat Sanchar Nigam Ltd vs Union of India [2006 (3) TMI 1 - SUPREME COURT], where the issue was as to whether on the sale of SIM card, Sales Tax could be leviable or the same was a service subjected to Service Tax , the Hon'ble Supreme Court after extensively dealing with all the constitutional provisions, in paragraph 87 of the judgment concluded that the same would depend upon the intention of the parties. But we are not called upon to adjudicate this issue in the present c....... + More
- 2019 (8) TMI 970
Validity of ST-3 return revised after 2 years - Whether the Tribunal was right in not considering the decision of coordinate bench passed in M/S CEOLRIC SERVICES VERSUS COMMISSIONER OF SERVICE TAX, BANGALORE. [2011 (2) TMI 764 - CESTAT, BANGALORE] to hold that the revised ST3 returns filed by the appellant could not be considered as the same were filed after two years of filing the original ST-3 returns? - HELD THAT:- The appeal is admitted on the substantial question of law. We fix the final hearing of this appeal on 21st October, 2019 at 3.00 p.m.
- 2019 (8) TMI 969
Confirmation of demand of service on the basis of earlier period - import of services - reverse charge mechanism - case of petitioner is that the submission of the Petitioner were not appropriately considered by the impugned order dated 29th June, 2018 of the Respondent No.2 - HELD THAT:- This grievance of the Petitioner in the facts of the present case is debatable and the same could be considered appropriately by the Appellate Authority under the Act. Thus, there is no reason to entertain that the impugned order dated 29th June, 2018 to the extent it has confirmed the show cause notice dated 9th June, 2017. Validity of SCN - Opportunity of personal hearing not provided - HELD THAT:- The Commissioner has admittedly given no personal hearing to the Petitioner before he has confirmed the show cause notice dated 9th April. 2018. Even if, th....... + More
- 2019 (8) TMI 748
Exemption to SEZ unit - authorised operations in a SEZ - Validity of conditions imposed - Board of approval refused to issue of Forms A1 and A2 on the ground that these forms cannot be issued with retrospective effect. - Assessee contended that, Neither the SEZ Act nor the Rules framed thereunder, make the exemption available under the Act, subject to fulfilment of conditions stipulated in any other enactment including the Finance Act, 1994. - section 26(1)(e) of the Special Economic Zones Act, 2005 - availability of effective alternative remedy - maintainability of petition - HELD THAT:- Since the refusal of a writ court to entertain a writ petition under article 226 of the Constitution of India is not out of a bar of jurisdiction, but on account of a self-imposed restriction, there is no impediment for this court to entertain a writ pet....... + More
- 2019 (8) TMI 636
Applicability of Section 35H of CEA 1944 - Invocation of of Section 83 of the Finance Act, 1994 - whether Section 35H is in existence or stands deleted - HELD THAT:- What Mr. Pathy, canvasses is that once the division bench judgment of the Tribunal whereby the claim of the petitioner had been negated, was overruled by the larger bench, the petitioner became entitled to his reliefs. We would not express ourselves on this submission because before us, the petitioner seeks a direction to the Tribunal to refer the substantial question of law which is raised in the case. Now besides the fact that Section 35H providing for such reference stands deleted, the other prayer also cannot be entertained because the very judgment rendered by the Tribunal in the case of the petitioner has been overruled by a larger bench. In other words, the issue befor....... + More
- 2019 (8) TMI 635
Refund of Service Tax - service tax deposited by the petitioner for the period 2007-16 - time limitation - Unjust enrichment - burden has been shifted by the petitioner on the customers i.e the service recipient or not - HELD THAT:- The fact remains that the service tax for the period in question was deposited by the petitioner but after realizing it from its customers. This fact is not disputed. It is also not in dispute that no refund application was filed by these customers. There is no infirmity in the opinion recorded by the statutory authority to hold that if the burden of the service tax has been shifted on the customers - petition disposed off.
- 2019 (8) TMI 587
Reversal of CENVAT Credit - petitioners compelled to reverse credit before issuance of SCN - Learned Counsel for the Respondents, states that on affidavit the officer of the Respondents stated that there was no threat of arrest ever issued to the Petitioners - HELD THAT:- We are, in the facts of the case and evidence placed before us, not impressed with the submissions made on behalf of the Respondents and were proceeding to pass an order finally. At that time, Mr. Kantharia, learned Counsel for the Respondents, sought time to take further instructions and prepare himself better, as this petition was shown under the caption of admission. We grant time at the request of the Revenue - petition will be taken up for final hearing on 30th July 2019.
- 2019 (8) TMI 493
Appealable Order or not - recovery of service tax - Sharing of revenue - double levy of tax on freight - Section 129A of the Act - alternative remedy - HELD THAT:- The exercise of this writ jurisdiction is discretionary and it is not exercised only because it can be exercised. Therefore, the Courts have refused to exercise discretion under Article 226 of the Constitution of India, where an efficacious alternative remedy to obtain the same relief is available, as a self imposed limitation - Therefore, we now examine the submission on behalf of the Petitioner to decide whether this is a fit case to exercise our discretion, even though an efficacious alternative remedy of appeal under the Act from the impugned order dated 21 December 2016 to the Tribunal is available. The first submission is that in view of the status of the Petitioner, the ....... + More