2018-TIOL-22-CESTAT-DEL

Ananda Books Vs CST

ST - Appellant, a merchant exporter, filed refund claim of Rs.42.12 lakhs in terms of notification no.41/2012-ST on the ST paid on the taxable service used/utilised for export of the goods - refund of Rs.37.73 lakhs sanctioned and the balance amount of Rs.4.39 lakhs rejected on the ground that the refund application was not filed within the stipulated time frame of one year prescribed under the said notification - appeal to CESTAT.

HELD: It is apparent from the records that the refund claim applications were not filed within the prescribed time limit of one year provided under the said notification - since the said notification is conditional and the benefit contained therein are available, subject to fulfilment of the conditions itemised therein, the assessee has to strictly comply with the requirement contained therein for availing the benefit of refund of ST - thus, the time limit prescribed in the notification cannot be considered as procedural in nature - no reason found to interfere with the impugned order - no merits found in the appeal, accordingly, the same is dismissed : CESTAT [para 5, 6] - Appeal dismissed: DELHI CESTAT

2018-TIOL-21-CESTAT-BANG

CST Vs Q Soft Systems And Solutions Pvt Ltd

ST - the assessee-company engaged in providing 'Manpower Recruitment and Supply' service - The assessee did not pay service tax during the period of dispute - Duty demand was raised u/s 73(1) of the Finance Act, 1994, along with interest u/s 75 & penalties u/s 76, 77 & 78 - The Department alleged that the assessee deliberately suppressed facts to evade payment of duty, as the asessee neither filed ST-3 returns nor declared tax liability through other means - On appeal, the Commr.(A) dropped penalties imposed u/s 76 & 77 - Held - Considered relevant portions of the order of the Commr.(A), dropping penalties imposed u/s 76 & 77, wherein the decision of the Punjab & Haryana High Court in CCE Vs. First Flight Couriers Ltd. was relied upon - Thus, O-i-A upheld: CESTAT (Para 2,5,6) - Appeal Dismissed: BANGALORE CESTAT

CENTRAL EXCISE SECTION

2018-TIOL-27-CESTAT-MUM + Story

Allied Instruments Pvt Ltd Vs CCE

CX - Refund - Rule 5 of CCR, 2004 - Word "may" in Clause 2(b) of the notification 5/2006-CX(NT) is by way of giving an option to assessee to file refund claims on monthly basis - Being an EOU, by way of facilitation, it does not put any embargo debarring the assessee for making a quarterly/half yearly/annually refund claim - Order of Commissioner(A) set aside and appeal allowed with consequential relief: CESTAT [para 6]. - Appeal allowed: MUMBAI CESTAT

2018-TIOL-26-CESTAT-MUM

Vinati Organics Ltd Vs CCE

CX - Appellant had cleared Heavy Hydro Carbons to their another unit located at Loteparshuram on the basis of transaction value of the clearance of goods made to independent buyers – Revenue contention is that since the clearance was made to their own unit, the valuation should be governed by Rule 8 of CE Valuation Rules, 2000 – appeal to CESTAT.

Held: In the present case, there is no dispute that for the same goods which were cleared to their own unit by the appellant, the transaction value charged to the independent customer is available. If that be so, the transaction value will prevail over the valuation under Rule 8 - Accordingly, even in case where the goods were supplied to their own related unit, the transaction value shall be preferred and applied – Issue is also no longer res integra in view of the Larger Bench decision in Ispat Industries Ltd. - 2007-TIOL-245-CESTAT-MUM-LB – impugned order is not sustainable, hence set aside – appeal is allowed: CESTAT [para 4, 5] - Appeal allowed: MUMBAI CESTAT

2018-TIOL-25-CESTAT-MUM

Refair Industries Vs CCE

CX - CENVAT - Case of the department is that the appellant have availed cenvat credit in respect of input service which was used in the manufacture of dutiable goods as well as job work goods, which is exempted, therefore the demand of 6% of the value of exempted job work goods was raised and the same was confirmed by the adjudicating authority and upheld by Commissioner(A) - appeal before CESTAT.

Held: It is observed that the job work goods are exempted obviously by virtue of Notification No. 214/86-CE and according to this exemption the principal supplier is under obligation to discharge the duty on the final product, therefore, it cannot be said the job work goods is exempted - It is also observed that Rule 3(1) of CCR under a specific provision allows the cenvat credit on the input/input service used in the manufacture of job work goods which is exempted under Notification No.214/86-CE, therefore, Rule 6 has no application in case of removal of job work goods which is exempted under Notification No. 214/86-CE - demand was wrongly made, hence impugned order set aside and appeal allowed: CESTAT [para 4] - Appeal allowed: MUMBAI CESTAT

2018-TIOL-24-CESTAT-MUM

PR CCE Vs Peacock Media Ltd

CX - Revenue appeal - Whether the respondent is entitled to utilize the Cenvat credit for payment of duty during the period of default in payment of monthly duty as per Rule 8(3A) of CER, 2002 – Commissioner(A) setting aside demand as well as penalty, therefore, Revenue challenging dropping of penalty u/r 25 of CER, 20002.

Held: Provision of Rule 8 is self contained and all the consequences for failure to compliance are also provided under Rule 8 - This is not a case of clearance without payment of duty or clandestine removal, hence the penalty under Rule 25 cannot be imposed – no infirmity in the order of Commissioner(A) – Impugned order is upheld and Revenue appeal is dismissed: CESTAT [para 4] - Appeal dismissed: MUMBAI CESTAT

2018-TIOL-23-CESTAT-MUM

Mahindra Cie Automotive Ltd Vs CCE

CX - CENVAT – Whether appellant, being a manufacturer, is entitled for CENVAT credit on Networking (broadband) service.

Held: There is no dispute about the use of such broadband service of mobile company - Appellant is using broadband service of mobile company for overall working of the appellant - There is absolutely no doubt, in todays digital world, the functioning of the appellant company is impossible without use of internet service, therefore, internet service is most important service for function of business organization - networking is clearly mentioned in the inclusion part of the input service under rule 2(l) of CCR, 2004 - If this is so, it needs not to see any other aspect except whether the networking service is used by the appellant, which is not under dispute – Credit allowed in respect of computer network service – Appeals allowed: CESTAT [para 4] - Appeals allowed: MUMBAI CESTAT

 

CUSTOMS SECTION

2018-TIOL-20-CESTAT-MAD

Hydro S And S Industries Ltd Vs CC

Cus - Assessee had registered a project contract under Project Import Regulations (PIR), 1986 for import of goods - The goods were assessed provisionally extending concessional duty under CTH 9801 read with Notfn 21/2002 as amended - During finalization of contract, it appeared to lower authority that impugned goods should be classified under CTH 8477 and since same being a single machine, the notification benefit cannot be extended as per para-3 of PIR, 1986 - The Project Import Regulations are beneficial provisions to facilitate persons for setting up substantial expansion of an existing unit - The definition of "industrial plant" excluding industrial system having a single machine or a composite machine is relevant - There is no allegation that the project per se cannot be "industrial plant project" because there will be installation of only one machine or a composite machine - On the other hand, that bridge has verily be crossed as evidenced by lower appellate authority that the goods had been imported "for implementation of substantial expansion project" - Thus what is relevant is whether the goods imported are for a project having only a single machine or a composite machine - Such an allegation is not forthcoming from the records - In any case, importers as evidenced from the replies during the adjudication proceedings have been crying hoarse that importer had already made an investment of Rs..8.32 crores in plant and machinery before the importation - The imported machinery is only meant for substantial expansion of installed capacity to the extent of 100% as certified by Chartered Engineer - Tribunal do not find any other bar for imported goods to be disqualified from classification under CTH 9801 and read with PIR 1986 - Impugned order cannot be sustained, same is set aside: CESTAT - Appeal allowed: CHENNAI CESTAT

2018-TIOL-19-CESTAT-MAD

Sri Vasavi Gold And Bullion Pvt Ltd Vs CC

Cus - the assessee-company claimed refund of SAD under Notfn. No. 102/2007-Cus w.r.t. 16 Bills of entry filed - The refunds were filed before the Refunds Section in Chennai Sea Customs, whereas the goods had been cleared through Chennai Air Customs - Hence the former transferred the refund claims to the latter - The Refunds Section in Chennai Air Commissionerate held that the time limit for claiming exemption under Notfn. No. 102/2007 had lapsed & so the claim was rejected - The same was upheld by the Commr.(A) - Held - The Refund Sections of the Chennai Sea Customs had begun processing the refund claim instead of pointing out the error of jurisdiction - Had the assessee been informed about the same earlier, the refund claim could have been withdrawn and filed before Chennai Air Customs - Thereby, is was to be considered that the claim was all along with the Customs Department - Thereby, the date of filing the claim would be reckoned as that of when the claim was filed before Sea Customs - Also, the claim before the Sea Customs was not filed in time - Hence, matter remanded & O-i-A set aside, directing the Air Customs to consider the refund application of the assessee: CESTAT (Para 1,5) - Case Remanded: CHENNAI CESTAT