2017-TIOL-2951-CESTAT-MUM + Story

GIGABYTE TECHNOLOGY INDIA LTD Vs CC: MUMBAI CESTAT (Dated: May 19, 2017)

Cus - Law is well settled that grant of the notification calls for coverage of goods strictly within the scope of the entry embracing the goods within its fold - appellant imported CD-RW which is classifiable under heading 84717090 – Only "CD-Rom drive" [CTH 84717060] is eligible for exemption under the notification 6/2002-CE, Sl. No. 261A - This being a specific grant, its scope cannot be expanded to cover an alien within its fold - appellant fails to succeed because of the specific coverage of prescribed goods by the notification not covering the goods imported - specific grant of notification excludes the general description of goods from its scope and ambit – Appeal dismissed: CESTAT [para 5, 6]

Appeal dismissed

2017-TIOL-2950-CESTAT-DEL

MUKESH BATHAM Vs CC: DELHI CESTAT (Dated: August 3, 2017)

Cus - Smuggling of gold - Section 112 of Cutoms Act, 1962 - Penalties imposed of Rs.10 lakhs and Rs.15 lakhs - Appellants submit that they belong to the poor/ lower category of the society; that they were merely carriers and not the owners of gold bars - since offence of smuggling has taken place, imposition of penalty is justified but looking at the young age of the appellants and considering the fact that this is their first offence, the penalty on appellants is looking on higher side - Keeping in mind the doctrine of equality, justice and good conscious, Penalties reduced - Appeals partly allowed: CESTAT [para 6, 7]

Appeals partly allowed

2017-TIOL-2949-CESTAT-DEL

NARAYAN DASS R IRANI Vs CST: DELHI CESTAT (Dated: August 1, 2017)

ST - Appellant-assessee is engaged in construction of residential units for Engineering Projects India Ltd. in terms of contract - Proceedings were initiated against the demand and recovery of Service Tax for their activities under the category of " Construction of Complex Service" - demand confirmed and penalties imposed - assessee preferred appeal against the impugned order on the ground that their contract is involving supply of goods liable to VAT and also provision of service; that the contract is a typical works contract; that appellant-assessee is not at all liable to Service Tax during the material period, which is prior to 01.06.2007 because it is only on 01.06.2007, a specific tax entry for "Works contract service" was introduced in the Finance Act, 1994 and contract executed by the appellant-assessee falls under this tax entry.  Held: As the contract is composite in nature with the supply of goods and provision of service and has been executed prior to 01.06.2007, the same is not liable to Service Tax during the material period following the ratio laid down by the judgement of Supreme Court in Larsen and Toubro (2015-TIOL-187-SC-ST) - Assessee appeal allowed and Revenue appeal dismissed: CESTAT [para 4, 5]

Assessee appeal allowed/Revenue appeal dismissed

2017-TIOL-2948-CESTAT-DEL

PAHUJA CARS AND CREDITS Vs CST: DELHI CESTAT (Dated: August 1, 2017)

ST - Appellants are engaged as direct selling agent of financial Companies and in the present proceedings were put to Service Tax liability under the category of 'business auxiliary service' - appeal to CESTAT.  Held: Admittedly, the present proceedings are pursuant to a second notice issued to the appellant covering 5 years period - There was an earlier notice which again covered 5 years period - first show cause notice dated 16.02.2009 issued to the appellant is still pending adjudication - Prima facie, the second notice will not stand legal scrutiny, as it invoked extended period again: CESTAT [para 3, 4]

ST - Since the appellant is a proprietary concern, the details available in Form 26 AS for Income tax purpose cannot automatically form basis for computing taxable value under Finance Act, 1994 - There should be evidence of rendering of taxable service during the material period - impugned order is set aside and matter is remanded to original authority: CESTAT [para 3, 4]

Matter remanded

2017-TIOL-2947-CESTAT-DEL

MK ENTERPRISES Vs CCE: DELHI CESTAT (Dated: August 2, 2017)

CX - Appellant undertaking activities of cutting and sizing of MS plates / HAR plates/ Sheets etc. to the specific shape and size as required by the customers - appellant clearing the resultant products on payment of duty by availing CENVAT credit - Revenue of the view that since the activity undertaken does not amount to manufacture, credit is inadmissible - AA upholding demand hence appeal before CESTAT.  Held: It is evident on perusal of some of the photographs of these products that processes undertaken in the factory do result in new and distinct products and such process can be considered as process of manufacture, even if the inputs as well as final products are classifiable in the same CTH - Once it is held that process amounts to manufacture, there can be no justification to deny cenvat credit on the inputs - In any case, it is settled position of law that even if the activity undertaken does not amount to manufacture, when duty is levied, the credit cannot be denied by upholding that there is no manufacture - impugned order denying the cenvat credit is not sustainable and hence set aside - Appeals allowed: CESTAT [para 7, 8]

Appeals allowed

2017-TIOL-2946-CESTAT-DEL

NIRMAL PRODUCTS Vs CCE: DELHI CESTAT (Dated: August 7, 2017)

CX - Refund amount ordered for adjustment against pending demand by jurisdictional Deputy Commissioner and this order upheld by lower appellate authority - appeal to CESTAT.  Held: Action of the authorities in adjusting the refund is against the legal provisions - Section 11 of the CEA, 1944 should be invoked only when the demands have reached finality and should not be invoked at the initial stage - impugned order is set aside and appeal is allowed with consequential benefit: CESTAT [para 6]

Appeal allowed