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Judicial Decision on Indirect Taxes - E-newsletter February 2019

Statute: Services Tax
Decision in Favour of :Assessee
Title: Commissioner, Service Tax-VII V.  Flemingo duty free shop Pvt. Ltd
Ramesh Nair (Judicial member) 
and Raju (Technical member)
September 28, 2017.
Citation: (2018) 59 GSTR 465 (CESTAT-Mum)
Bench/Court:  Before the Customs, Excise and Service Tax Appellate Tribunal - Mumbai

Service Tax-refund-rent paid to Airport authority for running duty-free shops in departure lounges of international airports-shops beyond Customs barriers and sales to passengers considered exports-no Service Tax chargeable-refund of Service Tax on rent paid allowable-no unjust enrichment-Finance Act (32 of 1994), S. 66B-constitution of India, art. 286-place of provision of services rules, 2012, R. 5-notification no. 41/2012-st dated June 29, 2012. 

Statute:  Services Tax
Decision in Favour of: Assessee
RAMESH NAIR (Judicial Member) and RAJU (Technical Member)
March 22, 2018.
Citation: (2018) 59 GSTR 481 (CESTAT-Mum)
Bench/Court:  before the Customs, Excise and Service Tax Appellate Tribunal-Mumbai

Service Tax-refund specified services used in export of goods-sales of goods in shops at arrival and departure terminals at airport -is export -assessee entitled to refund - principle of unjust enrichment would not apply - assessee was eligible for rebate of whole of Service Tax charged on rent-apportionment based on area of space, proper certification by auditors based on professional guidelines issued by institute of chartered accountants of India - proper - auditors not required to check compliance with Customs, Excise or Service Tax –nor expected to carryout statutory audit-Finance Act(32 of 1994),s.93(a)-Customs act (52 of 1962),ss.50,69,70-notification no.41/2012-st.dated.June 29 2012.

Statute: value added tax
Decision in favour of: petitioner
Title: Jagteshwar Prasad Bansal and others  v.  State of Uttarakhand and another   
Rajiv Sharma j
December 7, 2017
Citation: [2018] 59 GSTR 491 (Uttarakhand)
Bench/court:   in the Uttarakhand high Court

Value added tax-recovery of tax-private company--liability ‘of directors-directors not automatically responsible for out-standing dues of company unless responsibility fixed after lifting corporate veil-no material to show directors guilty of fraud misrepresentation-company was dealer and assessment order in its name-company not under liquidation-notices proposing recovery from directors not sustainable- Uttarakhand  value added tax act(27 OF 2005), SS.2(11)(E),12(1).

Statute: Sales Tax
Decision in favour of:  assessee
Title:  S. K. Decorations V.  State of Tamil Nadu and another
T. S. Sivagnanam J,  

December 4, 2017 
Citation: [2018] 59 GSTR 501 (MAD)
Bench/court: In the Madras High Court

Sales tax-best judgment assessments--petitioner not appearing before respondent though five summons issued fixing dates for hearing but filing objections to show-cause notice -assess-ment orders passed rejecting petitioner’s request for furnishing copies of seized records-not justified-direction to respondent to furnish copies of records seized after petitioner remitted cost for same-Tamil Nadu general Sales Tax act (1 of 1959).

Statute:   SERVICE TAX
Decision in Favour of :    Assessee/Department
Title: DHL lemuir logistics Pvt. Ltd.  V.  Commissioner of Service Tax, Chennai   
Ms. Sulekha Beevi c. S. (Judicial member) and Madhu Mohan Damodhar (Technical member)
August 23, 2017. 
Citation: [2018] 59 GSTR 503 (CESTAT-Chennai)
Bench/court: [before the Customs, Excise and Service Tax appellate tribunal-Chennai

Service Tax-Customs house agent-freight rebate, airline commission and airline incentive not liable to levy of Service Tax-CCX fees collected from importer taxable in category of business auxiliary service-break bulk fee, agency fee, unallocated income, system currency assessment factor and expenses reimbursement not taxable under business auxiliary service prior to May 1, 2006-Finance Act (32 of 1994). Penalty-short payment of tax-several amendments brought to definition of “business auxiliary service” and new entry “business support service’’ introduced from May 1 2006-imposition of penalty unwarranted-Finance Act (32 of 1994),s.76.

Statute:   Service Tax
Decision in Favour of : Department 
Title: HT Media Ltd.  V. Commissioner of Service Tax and others
Dr. S. Muralidhar and Prathiba M. Singh
August 8, 2017.
Citation: [2018] 59 GSTR 509 (Delhi)
Bench/court: in the Delhi High Court

Service Tax  refund  not claimed within prescribed period , assessee not entitled to refund-tax not paid under protest-limitation of one year applicable-Central Excise act (1 of 1944), S. 11B.

Statute:   Goods and Services Tax
Decision in Favour of : Directions
Title: V. Ramakrishnan
V.  Union of India and others  
T. S. Sivagnanam J. 
July 11, 2018. 
Citation: [2018] 59 GSTR 149 (mad)
Bench/court:  in the Madras High Court

Goods and services tax-contractor with railways-circular of railway board that supplementary agreement must be entered into for works completed after goods and services tax regime enforced-writ-dealer directed to represent before railway board.

Statute:  Service Tax
Decision in Favour of:Assessee
Title: Commissioner of central Excise, Aurangabad 
V.  Narsinha Engineering Works
Dr. D.M. Misra (Judicial member) and Sanjiv Srivastava (Technical member)   
July 16, 2018
Citation :[2018] 59 GSTR 151 (CESTAT-Mum)  
Bench/court:   Before the Customs, Excise and Service Tax Appellate Tribunal - Mumbai

Service Tax-”erection installation and commissioning” service-all taxable services provided by any person in relation to distribution of electricity and by distribution company for distribution of electricity exempt-Finance Act (32 of 1994), S. 65(105)(ZZD)-notification no. 1/2006-ST, dated March 1, 2006-notification no. 32/2010-ST, dated June 22, 2010-notification no. 11/2010-ST, dated February 27, 2010.

Decision in Favour of :         Remanded
V.  State of Maharashtra
S. C. Dharmadhikari and B. P. Colabawalla JJ
September 4, 2018.
Citation: [2018] 59 GSTR 159 (Bom)
Bench/court:   in the Bombay High Court

Value added tax-works contract-turnover-deduction-joint venture of Z (Russian company) and K (Indian company) having separate registrations awarded contract for laying down pipeline for carrying gas between Panvel and Dabhol, k being sub-contractor of JV-appellant assessed by deducting 96 per cent. of receipts but disallowing deduction on payment to z towards Technical services and one per cent. Expenses for 2007-2008, and for 2008-2009 one per cent. Expenses alone dis-allowed-joint commissioner confirming assessment and tribunal partly allowing appeals and remanding matter for computation of correct tax liability setting out what was to be taxed and what not-joint commissioner on remand holding no deduction admissible since appellant not submitted scheme of taxation followed by sub-contract without seeking clarifications from chartered accountant or appellant’s representative-tribunal upholding order of joint commissioner by cryptic order without reference to its earlier order and without calling for documentary evidence matter remitted to joint commissioner to pass fresh order on issues remanded to him by tribunal-Maharashtra value added tax act, 2002 (9 of 2005).

Statute:   goods and services tax
Decision in favour of:     directions
Title: MGI Infra Private Limited
V.   Assistant commissioner, State Goods and Service Tax and others 
Debangsu Basak J.
July 9, 2018
Citation: [2018] 59 GSTR 169,(CAL)
Bench/court:  in the Calcutta High Court

Goods and services tax-registration-petitioner enjoying provisional registration unable to take final registration as area in which his office located faced various political problems over a considerable period of time-writ petition seeking extension of time to obtain final registration-concerned authorities to take pragmatic and sympathetic approach and consider grant of final registration in accordance with law-West Bengal goods and services tax act (28 of 2017) -central goods and services tax act (12 of 2017).

Statute:  Sales Tax
Decision in favour of :assessee
Title: State of Tamil Nadu 
V.  Suraj Steels
S. Manikumar and Subramonium Prasad JJ
June 25, 2018. 
Citation: [2018] 59 GSTR 171 (Mad)
Bench/court:   in the Madras High Court

Sales tax-assessment - escaped turnover assessing authority revising assessment based on slips found during inspection of place of business of dealer -order by appellate deputy commissioner setting aside revised assessment order on facts and tribunal affirming it--documents filed during hearing not demonstrating findings of appellate authorities below on nil evidence-no interference called for Tamil Nadu general Sales Tax act (1 of 1959), s. 16(1).

Statute:  goods and services tax
Decision in favour of:         directions
Title: Earthcon constructions Pvt. Ltd.  V.   Union of India and others    
Bharati Sapru and Ajay Bhanot JJ, 
July 6, 2018.  
Citation:  [2018] 59 GSTR 181 (all)
Bench/court:  in the Allahabad High Court

Goods and services tax-migration to goods and services tax-input tax credit on closing stock-writ petition seeking extension of time for filing of GST tran-1 contending that electronic system of respondent no. 2 did not respond, on last date for filing of application resulting in likelihood of petitioner losing credit-respondents allowed one month’s time to file counter-affidavit and directed to reopen portal within two weeks failing which application to be entertained manually and orders passed after due verification of credits as claimed-Uttar Pradesh goods and services tax act (1 of 2017). 

Statute:  services tax
Decision in favour of:  department
Title: City makers Pvt. Ltd
V.   Central board of Excise and Customs, New Delhi and others   
Mukesh R. Shah C J. and Dr. Ravi Ranjan J.    
August 29, 2018.

Citation:  [2018] 59 GSTR 185 (Patna)
Bench/court:   in the Patna High Court

Service Tax-notice --recovery of tax- interest - penalty - writ petition-show-cause notice for recovery of tax including cesses under section 73(1), interest, penalties and late fee-yet to be considered by appropriate authority-writ petition challenging show cause notice-refusal by court to entertain - finance act (32 of 1994), ss. 70, 73(1), 75, 76, 77, 78-- Service Tax rules, 1994, r. 7(c).

Statute:   value added tax
Decision in favour of:  assessee
Title: Kesharwani enterprises 
V.  State of Chhattisgarh and others (and other cases)
March 5, 2018
Citation:[2018]59 GSTR187(Chhattisgarh)
Bench/court: in the Chhattisgarh High Court

Value added tax-entries in schedule-”bread”-to be cons-trued as generic entry and given wide interpretation-rusk and toast-ingredients the same as for bread and only baking time different-would fall within entry “bread” and not under residuary entry-Chhattisgarh value added tax act (2 of 2005), sch. I, entry 7, sch. H, part iv.

Interpretation of taxing statues-entries in schedule-when two views possible, that which favours assesse to be adopted. 

Interpretation of taxing statutes-entries in schedule-burden of proof that product falls under residuary item-is on department.

Statute:    goods and services tax
Decision in favour of:     directions
Title: Abhay traders
V.  State of u. P. and others
Pankaj Mithal and Jayant Banerji JJ
June 8, 2018
Citation:  [2018] 59 GSTR 199 (A11)
Bench/court:    in the Allahabad High Court

Directions goods and services tax--seizure-goods in transportation along with vehicle seized on ground not accompanied by e-way bill-submission by petitioner site not operative but e-way bill downloaded next day and produced before authorities-petition challenging seizure listed for hearing on expiry of period specified for filing counter-affidavit and rejoinder affidavit and direction to release goods and vehicle on furnishing security other than cash and bank guarantee of amount equivalent to value of goods only- Uttar Pradesh goods and Service Tax act(1 of 2017),s.129.

Statute:    goods and services tax
Decision in favour of:         directions
Title: Multiplex Cine vision Pvt. Ltd.
V.  State of u. P. and others
Krishna Murari and Ashok kumar j j.
May 8, 2018.
Citation:  [2018] 59 GSTR 206 (all)
Bench/court:    in the Allahabad High Court

Goods and services tax-change of law-entertainment tax-petitioner engaged in business of construction and development of entertainment facilities including multiplex theatres-permitted vide order dated November 24, 2013 to collect and retain entertainment tax for five years to specified extent as per scheme under u. P. Entertainments and betting tax act, 1979 -central goods and services tax act and Uttar Pradesh services tax acts implemented with effect from July 1, 2017 and act repealed -writ petition by petitioner contending petitioner entitled to benefit up to November 24, 2018 in view of section 174 of Uttar Pradesh goods and services tax act with saving clause till November 24, 2018-direction to parties to file counter-affidavit and rejoinder affidavit within specified period and petition listed for hearing in July, 2018-u. P. Entertainments and betting tax act (28 of 1979)-Uttar Pradesh goods and services tax act (1 of 2011), s. 174-central goods and services tax act (12 of 2017).

Statute:   value added tax
Decision in favour of :department/assessee
Title: TVS motor company ltd
V.   State of Tamil Nadu and others
A. K. Sikri and Ashok Bhushan JJ
October 12, 2018. 
Citation: [2018] 59 GSTR 1 (SC)
Bench/court:    in the supreme court of India

Value added tax-legislative powers-input tax credit-inter-state sales-provision disallowing input tax credit on inter-state sales to unregistered dealers-valid-inter-state sales to state governments-provision to be read down-state governments though not registered sales to them eligible for input tax credit-Tamil Nadu value added tax act (32 of 2006), s. 19(5)(c)- Tamil Nadu value added tax rules, 2007, R. 10(9)(a)-central Sales Tax pier (74 of 1956), s. 8(2)-constitution of India, arts. 14, 19(1)(g), 256, 301.

Statute:    goods and services tax
Decision in favour of: directions
Sri krishna chemical industries
V.   Government of Tamil Nadu and others
Mrs. J. Nisha Banu J
September 17, 2018. 
Citation:  [2018] 59 GSTR 54 (Mad)
Bench/court:    in the Madras High Court - Madurai bench

Goods and services tax - transition provisions - input-tax credit-inability of assesse to upload form tran-1 owing to Technical glitches writ - High Court-direction to assessing officer to forward assesses representation to nodal officer - nodal officer, in consultation with goods and services tax network to take note of assesses grievance and forward it to grievance committee-grievance committee to take appropriate decision -CBIC circular no. 39/13/2018-GST dated April 3, 2018.

Statute:     Sales Tax
Decision in Favour of:  Assessee
Title: Commissioner of Sales Tax, Maharashtra state, Mumbai 
V.    Khush Bhaikht Electronic Engineers Pvt. Ltd.
S. C. Dharmadhikari and b. P. Colabawalla JJ
. September 14, 2018.
Citation:  [2018] 59 GSTR 74 (Bom)
Bench/court: in the Bombay High Court

Sales tax-entries in schedule-hybrid amplifier. or li extender used to boost signal-not accessory of cable televise but a general electronic item-Bombay Sales Tax act (51 of 195 sch. C, part ii, entries 124, 126.

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