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SERVICE TAX SECTION
2018-TIOL-357-CESTAT-BANG CCE, C & ST Vs Shree Bhagyalaxmi Sahakari Sakkare Karkhane Niyamit
ST - Appeal has been filed by Revenue against impugned order whereby Commissioner (A) has not imposed any penalty on assessee under provisions of section 78 of Finance Act, 1994 - Revenue is aggrieved only to the extent of not imposing the penalty under section 78 of Finance Act, 1994 - No infirmity found in impugned order whereby Commissioner (A) has confirmed the demand alongwith interest and penalty under section 76 - Commissioner (A) has not imposed any penalty under section 78 of Finance Act, 1994 on the ground that the assesse has been filing the return periodically and identical issue pertaining to earlier year, the appeal of the assessee is pending - Therefore, in view of reasons given by the Commissioner for not imposing the penalty under section 78 of Finance Act, 1994, no infirmity found in dropping the penalty under section 78 of Finance Act, 1994 passed by the Commissioner by holding that there is no suppression - Impugned order upheld: CESTAT - Appeal dismissed: BANGALORE CESTAT
2018-TIOL-352-CESTAT-DEL
Sir Ganga Ram Hospital Vs CCE
ST - Assessees engaged in health care services to patients and they are managing well-known hospitals/medical centres in various places - To provide medical services to different patients, assessees have engaged professionals and doctors on contractual basis - Proceedings by Revenue, initiated against assessee hospitals, are mainly on the inference drawn to the effect that retained amount by hospitals out of total charges collected from patients should be considered as an amount for providing infrastructure like room and certain other secretarial facilities to the doctors to attend to their work in hospitals - This is only an inference and not coming out manifestly from terms of agreement - In such arrangement, doctors of required qualification are engaged/contractually appointed to provide health care services - It is a mutually beneficial arrangement and there is a revenue sharing model - The doctor is attending to the patient for treatment using his professional skill and knowledge - Assessee hospitals are managing the patients from the time they enter the hospital till they leave the premises - Assessee hospitals are actually availing the professional services of doctors for providing health care service - The retained money out of the amount charged from patients is necessarily also for such health care services - The patient paid the full amount to assessee hospitals and received health care services - For providing such services, assessee entered into an agreement with various consulting doctors - No business support services found in such arrangement.
Under negative list regime w.e.f. 01.07.2012, health care services are exempt from service tax - The view of the Revenue that in spite of such exemption available to health care services, a part of consideration received for such health care services from the patients shall be taxed as business support service/taxable service is not tenable - In effect this will defeat the exemption provided to the health care services by clinical establishments - There is no legal justification to tax the share of clinical establishment on the ground that they have supported the commerce or business of doctors by providing infrastructure - Such assertion is neither factually nor legally sustainable: CESTAT - Appeals allowed: DELHI CESTAT
CENTRAL EXCISE SECTION
2018-TIOL-354-CESTAT-DEL
Kuber Tobacco India Ltd Vs CCE
CX - During search of poultry farm which was owned by Sh. Sandeep Mann, it was found that there were four gutkha packing machines which were in working condition and one machine was lying idle - Packing material and finished products under brand name of 'Kanchan' were also recovered - However, it is claimed that raw material was not manufactured there but the same was brought readymade by assessee - Department, on the basis of statements of concerned persons, made out a case of clandestine removal against assessee and levied penalties on concerned persons - All the statements which were recorded, were later retracted by concerned persons - No search was conducted at the business premises of assessee - Department had not taken into account the consumption of raw material in assessee's factory - So, it is very difficult to say that the raw material was supplied by assessee - For want of evidence, all the statements which were recorded, were retracted later - Hence, no demand can be raised on the basis of statements which were retracted, especially when no corroborative evidence was collected by Department to substantiate allegation of clandestine removal - At the cost of repetition, it may be mentioned that Shri Om Prakash Dubey who had installed and maintained the machines, and also given the premises on rent to Shri Manoj Tripathi, was not made a party in instant case - Similarly, Shri Sandeep Mann, owner of the poultry farm, was also not made a co-noticee - Even Shri Manoj Tripathi, who was also responsible for maintenance of the machines has not been made a co-noticee - It shows that Department has passed the order in a hurried manner, even on remand by the Tribunal - For lack of corroborative evidence, impugned order suffers from irregularities, same is set aside: CESTAT - Appeal allowed: DELHI CESTAT
2018-TIOL-353-CESTAT-CHD
JSL Stainless Ltd Vs CCE
CX - Assessee took the Cenvat Credit on invoices issued by M/s National Udyog and from M/s Ridhi Sidhi Alloys Pvt. Ltd. - SCNs were issued to assessee on the ground that as M/s API Industries is not having manufacturing facility of impugned goods, therefore M/s National Udyog and M/s Ridhi Sidhi Alloys Pvt. Ltd. have not received the goods against duty paying document issued by M/s API Industries, consequently, the goods received by assessee have not suffered the duty, therefore assessee is not entitle to avail Cenvat Credit on the goods supplied by M/s National Udyog or M/s Ridhi Sidhi Alloys Pvt. Ltd - As assessee is bona-fide purchaser of goods against the price of said goods along with duty, in that circumstances, Cenvat Credit cannot be denied to assssee - In these circumstances, Cenvat Credit cannot be denied to assessee against the invoices issued by M/s National Udyog or M/s Ridhi Sidhi Alloys Pvt. Ltd. - M/s JSL has correctly taken the Credit on the goods supplied by the M/s National Udyog and M/s Ridhi Sidhi Alloys Pvt. Ltd. - On the other hand Member (T) hold that the invoices issued by M/s. National Udyog to assessee without actually receiving the goods were bogus and fraudulent and Cenvat credit taken on such invoices was fraudulent.
As there is divergent views of Members of Tribunal, therefore the matter may be placed before the President to appoint third Member to resolve the issue: CESTAT - Case deferred: CHNADIGARH CESTAT
2018-TIOL-351-CESTAT-AHM
Dhariyal Chemicals Vs CCE & ST
CX - the assessee filed refund claims for clearances made to Oil India Ltd, on international competitive bidding - Duty was not required to be paid on this under Notfn. No. 12/2012-CE - In the invoices, the assessee mentioned that the duty paid was refundable - However, on application the DGFT directed the assessee to approach the Excise Department for seeking refund - Later, on application, the Department rejected the refund claims as being time-barred, u/s 11B of the Act -
Held - The issue arose after the issuance of the DGFT Circular prescribing the authority concerned for claiming refund - Such issue is pending disposal before the Apex Court - In light of such unsurety regarding whom to approach, the bar of limitation does not apply - Matter remanded till disposed by the Apex Court: CESTAT (Para 2,5) - Case Remanded: AHMEDABAD CESTAT
2018-TIOL-350-CESTAT-ALL
CD Engineering Co Vs CCE
CX - Assessee engaged in manufacture of machined forging of non-alloy steel and stainless steel - They have cleared flanges to Northern Area Development Project, on shore, undertaken by Claim Energy India Pvt. Ltd. under International competitive bidding - They claimed exemption under Notfn 6/2006-EX read with Notfn 21/2002-CUS - Revenue initiated proceedings against assessee for denial of such exemption - The question whether the product is covered in the list 12 has been examined and decided by lower Appellate Authority in party's own case earlier - No reason has been given in impugned order for differing from such findings - Regarding the requirement of certificate from DGCH, said issue was decided by Tribunal in assessee's own case - Tribunal held that condition No. 29 referred to in Notfn 21/2002 is to be complied by importers of goods and do not apply to domestic manufacturers - Therefore, when there was no requirement of producing Project Authority Certificate, reasoning given by Appellate Authority, is otherwise out of context, is not sustainable: CESTAT - Appeal allowed: ALLAHABAD CESTAT
CUSTOMS SECTION
2018-TIOL-356-CESTAT-DEL CC Vs Mudra Metals
Cus - The assessee-company had claimed refund of SAD paid - Such caim was denied by the Revenue - Later, the Commr.(A) set aside such adjudication order on grounds that no time limit is prescribed for grant of SAD refund - The Commr.(A) had relied on the decision of the Delhi High Court in Sony India Pvt. Ltd. Vs. CC, New Delhi and of the Apex Court in Sony India Pvt. Ltd., wherein the Revenue's SLP was dismissed - The Revenue claimed that the Apex Court had left the issue open -
Held - The Apex Court dismissed the Revenue's SLP on limitation - The Tribunal cannot take a contrary view against a decision of a higher court, since the decision of the Delhi High Court was neither stayed nor overruled - No infirmity in O-i-A: CESTAT (Para 1,3) - Appeal Dismissed: DELHI CESTAT
2018-TIOL-355-CESTAT-KOL
Kanhaiya Exports Pvt Ltd Vs CC
Cus - Assessee engaged in export of 'Steel Welding Electrodes' under DEPB Scheme - During investigation, it is found that the goods which have been entered for export were not "Steel Welding Electrodes", but were made of "Mild Steel Electrodes" - The case pertaining to 10 shipping bills resulted in passing of O-I-O in which goods were confiscated and assessable value was reduced from Rs. 65/- per piece to Rs. 4/- per piece - Proceedings resulting in present impugned order is a result of earlier investigations undertaken by Special Investigation Branch for export of same commodity i.e. Steel Welding Electrodes - Samples from earlier consignment were tested and orders were passed by adjudicating authority for confiscation of goods and for reducing the declared value - However, such proceedings stand decided in favour of assessee - Both, the Tribunal as well as High Court have held in favour of assessee to the effect that mis-declaration alleged by Department is not justified - The declared value of export consignment also has been approved @ Rs. 65/- per piece - No justification found to sustain the impugned order in which confiscation as well as reduction of value has been passed: CESTAT - Appeals allowed: KOLKATA CESTAT |
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by
Tarun Sharma 
