2018-TIOL-220-CESTAT-MUM + Story

SH Kelkar And Company Ltd Vs CCE

CX - CENVAT - Even if the order goes beyond the show - cause notice, the same is not an error of a kind which can be rectified by a ROM application - Application dismissed: CESTAT [para 4] - Application dismissed: MUMBAI CESTAT

2018-TIOL-219-CESTAT-MUM

SH Kelkar And Company Ltd Vs CCE

CX – CENVAT - Service tax paid towards services received for family settlement – Audit raising an objection towards credit availed on the subject matter – appellant reversing credit – later SCN issued along with demand of credit in respect of services relating to merger of two other companies – in adjudication demand of Rs.1.64 lakhs was dropped and demand of Rs.2,89,018/- was upheld as service tax paid towards services received for family settlement – lower appellate authority upheld the demand – In appeal before CESTAT, appellant submitting that the proceedings wrongly held that the said services were used for the purpose of family settlement – appellant producing invoice which mentioned that the same is towards professional services rendered for advise in realigning group structure & assistance in implementing the same vide LOE dated November 23,2011 – inasmuch as the said services was obtained not in respect of family settlement but for restructuring in the shape of merger and, therefore, credit is admissible - On a specific query of the bench as to under what head of the definition of input services would this services be covered, the appellant pointed out that the services have been obtained in April 2007 would be covered under legal, accounting, financing services.

Held: Services of merger has no relation with the manufacture - said service relates to corporate restructuring and is not specifically covered under any of the heads of input services as defined in rule 2(l) of CCR, 2004 – assertion of appellant that the services would be covered under Legal, Accounting, financing services has no merit - said service was neither accounting nor financing or legal in any manner, therefore, the same do not qualify to be an input service – No merit in appeal, hence dismissed: CESTAT [para 8, 9] - Appeal dismissed: MUMBAI CESTAT

2018-TIOL-211-CESTAT-MUM + Story

CCE & ST Vs Reliance Industries Ltd

CX - CENVAT - Input Service - Rule 2(l) of CCR, 2004 - Without canteen, factory would not be allowed to operate under the Factories Act, 1948 - Outdoor catering services, not primarily for personal use or consumption of employee, is covered under the definition of Input service - Outdoor catering services availed in respect of canteen maintained on account of the requirement under the Factories Act, 1948 cannot be treated as excluded from definition of Input service - Credit only to the extent that the incidence of which is borne by the assessee is admissible - Revenue appeal dismissed: CESTAT [para 4, 5]

2018-TIOL-210-CESTAT-MUM

U P Asbestos Ltd Vs CCE

CX - CENVAT - Appellant are not contesting the demand on merit but contest it on the ground that the same is time barred - Final product i.e. Asbestos cement became dutiable in March 2006, however, credit availed of Input services that were received before 01.03.2006 - when the credit was shown availed in the month of March when the product is dutiable, no one can assume that credit pertained to the period prior to 01.03.2006 - even though availment of credit was shown in the ER-1 return for the month of March but in absence of information regarding the receipt of input service prior to 01.03.2006 when product was exempted, was not disclosed, therefore, there is clear suppression of facts and malafide intention on the part of the appellant - extended period has been rightly invoked, hence demand cannot be time barred - however, adjudicating authority has not given the option of 25% penalty as required under the proviso to section 11AC of the CEA, 1944 - option to pay reduced penalty allowed subject to satisfying the condition mentioned therein - appeal is partly allowed: CESTAT [para 5] - Appeal partly allowed: MUMBAI CESTAT

2018-TIOL-209-CESTAT-MUM

Sujanil Chemo Industries Vs CCE

CX - Remission application of appellant against loss of raw material and packing material in fire was rejected by the Commissioner – Demands of CENVAT credit confirmed - appeal to CESTAT.

Held: Use of raw material being criteria for the purpose of grant of CENVAT credit, in absence of use thereof to manufacture dutiable goods, appellant cannot get any relief - CENVAT is an incentive granted to set off input tax against output tax liability - When the input disappears without being used, that shall be treated as cleared and dutiable – appeal dismissed: CESTAT [para 2, 3]- Appeal dismissed: MUMBAI CESTAT - Appeal dismissed: MUMBAI CESTAT

2018-TIOL-208-CESTAT-MUM

Datta SSK Ltd Vs CCE

CX - Ground for denying cenvat credit was that the goods have been used by job workers and not by the appellant – inasmuch as inputs were used by their sub-contractor in their factory for making various equipments – appeal to CESTAT.

Held: Rule 2 of CCR permits a manufacturer to take credit of specified duties paid on such capital goods received by the factory - there is no requirement for the manufacturer to purchase the said capital goods to avail cenvat credit, the only requirement is that he should receive the goods falling under the definition of capital goods in his factory - entire case is built on the assertion that the goods on which credit has been availed, whether invoiced to job worker or the appellant, are used by the job worker for the erection of the plant/machinery/equipment - It is apparent that there is no requirement under the CCR for the manufacturer availing credit to himself purchase the goods – no merit in the preliminary argument of the Revenue - fact that the said goods fall under the definition of capital goods has not been challenged by the Revenue in the SCN and thus it is not open to go into that issue now – no merit in the impugned order, therefore, appeal allowed: CESTAT [para 5] - Appeal allowed: MUMBAI CESTAT

2018-TIOL-207-CESTAT-MUM

Saswad Mali Sugar Factory Ltd Vs CCE

CX - CENVAT - Clearance of Waste and residue for a consideration but the same are exempt from duty - whether appellant, a producer of sugar and molasses, is liable to pay the amount prescribed in rule 6(3) of CCR, 2004 since they do not maintain separate accounts of inputs or input services and do not reverse the proportionate CENVAT credit.

Held: Issue stands decided by the Tribunal, Allahabad Bench in Manakpur Chini Mills which has, relying upon the decision of the Bombay High Court in Rallis India Ltd - 2009-TIOL-16-HC-MUM-CX , held that there is no obligation to pay the presumptive amount under rule 57CC/ now rule 6 of CCR - as the dispute stands resolved against the Revenue, impugned orders are set aside and appeals are allowed: CESTAT [para 4, 5] - Appeals allowed: MUMBAI CESTAT