HIGH COURT
- Amount paid as “tax” by assessee under mistaken belief of fact or law or both, being erroneous and without authority of law, cannot be retained by Government (G.B. Engineers Vs UOI 2016-43-S.T.R.-345-Jhar.)
- Background: Assessee filed a refund claim for an amount erroneously deposited for the period during which service tax was not leviable on services provided. Department contended that refund claim is time bared as per section 11B of CEA, 1944 read with section 83 of FA, 1994.
- Issue: Whether refund claim is admissible to assessee?
- Decision: Service Tax paid by assessee under mistaken belief of fact or law or both, being erroneous and without authority of law, cannot be retained by Government. Therefore, refund claim is allowed to assessee.
- Cenvat credit availed on the strength of an advisory note issued by Head Office (‘HO’) taken on the basis of valid documents, held admissible (Bharat Sanchar Nigam Ltd.2016 (43) S.T.R. 540 (Raj.)
- Background: HO issued ATDs (Advise of Transfer) to assessee for transferring capital goods along with the eligible cenvat credit of the central excise duty paid thereon. Accordingly, assessee availed credit. Department denied credit on ground that documents for availing credit were improper and not in accordance with law.
- Issue: Whether document issued by HO is eligible document for taking credit?
- Decision: As assessee and HO were falling in same area circle, it was a case of transferring goods from one place to another unit. Hence credit availed on the basis of Bill of Entry endorsed by HO was a valid document under Rules 3 and 9 of CCR, 2004 especially when capital goods were duly utilized by assessee for rendering taxable output service.
TRIBUNAL
- Advertisement expenditure incurred by dealer would not be included in assessable value (‘AV’) of manufacturer in the absence of any enforceable legal right against dealer (Luminous Electronics Pvt. Ltd. 2016(338) E.L.T. 154 (Tri-Del.)
- Background: Assessee cleared goods to wholesale dealers for further sale all over country. Advertisement expenses solely borne by the dealers. Department contended such advertisement costs would be included in AV of assessee and be made liable to central excise duty.
- Issue: Whether advertisement costs solely incurred by dealers to be included in AV of assessee?
- Decision: Benefits of higher sales and profit will be available to both (assessee as well as dealer) and not be restricted to the assessee only. Settled law that in absence of any enforceable legal right against dealers for incurring advertisement expenses, the same need not form part of AV of assessee.
Linked to GST: Section 15(2)(g) provides for any reimbursable expenditure/cost incurred by/behalf of supplier and charged in relation to the supply of goods and/or services to be included in Transaction Value (‘TV’). Hence it implies that expenses, not linked to supply do not form part of TV.
- No liability to reverse cenvat credit on sale of capital goods (‘CG’) when no credit was availed at the time of its purchase (Shree Bhageshwari Papers Ltd. 2016(338) E.L.T. 132 (Tri-All.)
- Background: Assessee had purchased second-hand CG in 1997 without payment of duty (as no excise duty levy existed on the said goods) and sold it after using for more than 10 years. Department contended that on disposal of CG, assessee liable to pay an amount i.e. higher of (a) proportionate cenvat credit taken on CG or (b) duty