Arafaath Travels (P.) Ltd. v. Customs, Excise & Service Tax Appellate Tribunal

Service Tax : New percentage-based pre-deposit law is applicable to appeals filed on or after 6-8-2014 and all pending appeals/stay applications filed prior to 6-8-2014 shall be governed by erstwhile law
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[2016] 65 taxmann.com 133 (Madras)
HIGH COURT OF MADRAS
Arafaath Travels (P.) Ltd.
v.
Customs, Excise & Service Tax Appellate Tribunal, (Southern Bench)*
M.JAICHANDREN AND MRS. S. VIMALA, JJ.
CIVIL MISC. APPEAL NO. 2769 OF 2015†
MISC. PETITION NO. 1 OF 2015
DECEMBER  11, 2015
Section 65(19), read with section 65(4) of the Finance Act, 1994 and rule 3 of the Export of Services Rules, 2005 - Taxable services - Business Auxiliary Services - Stay Order - Period 1-4-2011 to 31-3-2012 - Assessee was carrying on business as a General Sales Agent (GSA), in respect of Cargo Sales and Passenger Air Transport - For services of GSA, assessee earned Over-riding Commission (ORC) in foreign exchange - Department demanded service tax - Assessee argued that ORC was not taxable, as it amounted to export - On stay application, Tribunal directed pre-deposit of Rs. 20 lakh out of service tax demand of Rs. 55 lakh - Assessee argued that when service is exported and there is no liability at all, ordering pre-deposit was bad - HELD : Pre-deposit order was passed without considering prima facie merits as well as financial hardship aspect - Such a non-speaking order was set aside and matter was remitted back for consideration afresh [Paras 5 to 9] [In favour of assessee/Matter remanded]
Section 35F of the Central Excise Act, 1944, read with section 83 of the Finance Act, 1994 and section 129E of the Customs Act, 1962 - Appeals - Deposit of certain percentage of duty/tax demanded or penalty imposed before filing appeal - Pre-existing right of appeal cannot be destroyed by amendment - New percentage-based pre-deposit law is applicable to appeals filed on or after 6-8-2014 and all pending appeals/stay applications filed prior to 6-8-2014 shall be governed by erstwhile law - Since, in this case, appeal was filed on 21-2-2014, erstwhile provisions of section 35F in existence prior to 6-8-2014 would apply [Paras 4.6 to 4.10] [In favour of assessee]
Interpretation of Statutes : Presumption against retrospectivity

Caprihans India Ltd. v. Commissioner of Central Excise, Surat

Excise & Customs : Where all relevant facts were within knowledge/notice of Department while issuing first notice and said notice was even dropped on merits, department cannot issue second notice invoking extended period alleging mis-statement/mis-declaration on part of assessee
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[2015] 62 taxmann.com 200 (SC)
SUPREME COURT OF INDIA
Caprihans India Ltd.
v.
Commissioner of Central Excise, Surat*
A.K. SIKRI AND ROHINTON FALI NARIMAN, JJ.
CIVIL APPEAL NOS. 563 AND 5239 OF 2006†
SEPTEMBER  9, 2015
Section 11A, of the Central Excise Act, 1944, read with section 73, of the Finance Act, 1994 and section 28 of the Customs Act, 1962 - Recovery - Of duty or tax not levied/paid or short-levied/paid or erroneously refunded - Invocation of Extended Period of Limitation - Period 28-5-1994 to 30-6-1996 - Department issued first notice dated 18-2-1994 seeking change in classification; but, on assessee's reply, said notice was dropped vide order dated 27-5-1994 - Later, department issued another notice dated 31-5-1999 raising demand on same ground invoking extended period alleging mis-statement/suppression - HELD : All relevant facts were within knowledge/notice of department while issuing first notice and said notice was even dropped on merits - Therefore, assessee had not misled authorities or made any mis-statement/mis-declaration - Hence demand was set aside a time-barred without going into merits [Paras 3 and 4] [In favour of assessee]
to appeals filed on or after 6-8-2014 and all pending appeals/stay

Deputy Commissioner of Income-tax, Circle-7(1), New Delhi v. Sanden Vikas (India) (P.) Ltd.

IT: Where department against order of Commissioner (Appeals) dated 15-1-2009 filed appeal before Tribunal, wherein tax effect was less than Rs. 10 lakhs, keeping in view Circular No. 21 of 2015, dated 10-12-2015 and also provisions of section 268A, department should not have filed instant appeal
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[2016] 65 taxmann.com 212 (Delhi - Trib.)
IN THE ITAT DELHI BENCH 'G'
Deputy Commissioner of Income-tax, Circle-7(1), New Delhi
v.
Sanden Vikas (India) (P.) Ltd.*
N.K SAINI, ACCOUNTANT MEMBER
AND VIJAY PAL RAO, JUDICIAL MEMBER
IT APPEAL NO. 5439 (DELHI) OF 2010
[ASSESSMENT YEAR 2005-06]
DECEMBER  22, 2015
Section 268A of the Income-tax Act, 1961 - Filing of appeals or application for reference by Income-tax authorities (Circular No. 21 of 2015) - Assessment year 2005-06 - Against order of Commissioner (Appeals) dated 15-1-2009, department filed appeal before Tribunal - Tax effect in appeal was less than Rs. 10 lakhs - Board vide Circular No. 21 of 2015, dated 10-12-2005 had given clear cut instructions to department to withdraw or not to press appeals filed before Tribunal, wherein tax effect was less than Rs. 10 lakhs - Whether keeping in view Circular No. 21 of 2015, dated 10-12-2015 and also provisions of section 268A, department should not have filed instant appeal before Tribunal - Held, yes [Para 8] [In favour of assessee]
Circulars and Notifications: Circular No. 21 of 2015, dated 10-12-2015