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SERVICE TAX SECTION
2018-TIOL-310-HC-DEL-ST + Story
Cellular Operators Association of India Vs UoI
ST - No vested right exists to avail benefit of the unutilized amount of EC or SHE credit - Article 14 is not offended - Petition dismissed: High Court [para 10, 18] ST - EC & SHE Cess - Budgets do, and are, a balancing exercise - no statement or assertion was made that the benefit of unutilized EC and SHE credit would be given against excise duty and service tax - The repeal/omission in the present case was not made retrospectively, but applied prospectively - The use of the words "subsumed" with reference to the two cesses could well indicate that there would not be an increased tax burden being put on the payers or the consumers, as EC and SHE were being withdrawn - Noticeably, the two cesses and the excise duty and the service tax were always treated as different and separate and cross-utilization was never permitted: High Court [para 11]
ST - EC & SHE Cess - The provisos added to Rule 3, sub-rule (7) in clause (b) are really in the nature of concessions confined to a limited and narrow set of cases and are not of general application - Noticeably, they expand the scope and give benefit of utilization of accumulated EC and SHE against payment of excise duty and service tax, which was not the position prior to 1st March, 2015 and 1st June, 2015, respectively - These cases certainly fall in a distinct and separate class - The said classification would not fall foul of vice of discrimination. Article 14 is not offended - Petitioners do not challenge and question the provisos, albeit seek additional benefit and concession beyond those granted, even though they were never available earlier: High Court [para 10, 11] - Petition dismissed :
DELHI HIGH COURT 2018-TIOL-587-CESTAT-AHM
Pramar Bhagwanji Jethalal And Sons Vs CCE & ST
ST - Assessee has short paid service Tax on certain items and on being pointed out during investigation, before issuance of SCN, assessee paid entire amount of service Tax along with interest and intimated to department - Thereafter, SCN was issued to assessee to appropriate the amount already paid and to impose various penalties under FA, 1994 - In case the assessee on detection has paid the amount of service Tax to the department, in that circumstances, SCN is not required to be issued - Admittedly, Commissioner (A) has accepted the provisions of Section 73(3) of the Act is applicable to assessee - In that circumstance, Commissioner (A) has fell in error for imposing late fees on assessee by invoking Section 70 of FA, 1994 - Therefore, impugned order qua imposing late fees under Section 70 of FA, 1994 is set-aside: CESTAT - Appeal allowed: MUMBAI CESTAT
CENTRAL EXCISE SECTION
2018-TIOL-589-CESTAT-DEL
Subhash Agrawal Vs CCE & ST
CX - An investigation was conducted at the end of one of supplier M/s Ambika Ispat and some documents were recovered from possession of peon who was located outside the factory premises - On the basis of diary, statement of Director of M/s Ambika Ispat were recorded who stated that sometimes, they are clearing goods clandestinely but no investigation was conducted at the end of assessee to ascertain the fact i.e. whether the assessee have received those goods or not - The whole case has been made out against assessee on the basis of third party evidence which cannot be relied upon as held by Tribunal in case of Rudra Ventures Pvt. Ltd. 2016-TIOL-1197-CESTAT-CHD - Proceedings against assessee are not sustainable - Therefore, impugned orders deserve no merits in absence of any evidence on record: CESTAT - Appeals allowed: DELHI CESTAT
2018-TIOL-588-CESTAT-MAD
Pratheep Electro Technics Vs CCE & ST
CX - Assessee, a proprietorship concern owned by Shri P. Alagesan, engaged in manufacturing Electric water Heaters and clearing the same under Brand Name of "CASCADE" - After affixing the brand name "CASCADE" by assessee, entire goods are sold under invoice to M/s. Cascade Electro Thermics (P) Ltd. - The trade mark "CASCADE" was registered by M/s. Swarna Steel Works (SSW)- Department alleged that assessee were not eligible to avail SSI exemption and were liable to pay Central Excise duty as assessee cleared their product by using the brand name "CASCADE" which is trade mark of SSW - Accordingly, a SCN was issued to them - Without entering into controversy of allegation that assessee had fraudulently obtained deed from a stamp vendor M. Manickam, Tribunal propose to address the issue whether assessee has used the brand name of another so as to deny benefit of SSI exemption - There is no dispute that brand name "CASCADE" originally belonged to SSW which was a partnership firm with Shri P. Alagesan, Shri A. Mahesh and Smt. A.Swarnalatha as partners - There is no dispute that the very same P. Alagesan is also proprietor in assessee's concern - Various decisions of higher appellate courts have unequivocally held that benefit of SSI exemption is admissible to a proprietary concern manufacturing excisable goods bearing brand name owned by another partnership firm, in which proprietor of the first concern is a partner of second - Tribunal in case of Mamma Products 2004-TIOL-646-CESTAT-BANG, inter alia, relying on Elex Industries decision held that in case of joint ownership of brand name, SSI exemption cannot be denied - Following the ratio of these decisions, SSI exemption cannot be denied for impugned period to PET for use of brand name "CASCADE" - That part of impugned order to the contrary cannot therefore be sustained and is set aside - For same reasons, that part of impugned order imposing penalty on Shri P. Alagesan, Proprietor of assessee is set aside - Coming to the appeal filed by M. Manickam, there is no appearance on behalf of assessee, appeal is dismissed for non-prosecution: CESTAT - Appeals partly allowed: CHENNAI CESTAT
2018-TIOL-586-CESTAT-DEL
Jagdamba Sponge Pvt Ltd Vs CCE & ST
CX - An investigation was conducted at the end of one of supplier M/s Ambika Ispat and some documents were recovered from possession of peon who was located outside the factory premises - On the basis of diary, statement of Director of M/s Ambika Ispat were recorded who stated that sometimes, they are clearing goods clandestinely but no investigation was conducted at the end of assessee to ascertain the fact i.e. whether the assessee have received those goods or not - The whole case has been made out against assessee on the basis of third party evidence which cannot be relied upon as held by Tribunal in case of Rudra Ventures Pvt. Ltd. 2016-TIOL-1197-CESTAT-CHD - Proceedings against assessee are not sustainable - Therefore, impugned orders deserve no merits in absence of any evidence on record: CESTAT - Appeals allowed: DELHI CESTAT
CUSTOMS SECTION
2018-TIOL-599-CESTAT-MAD
SRF Polymers Ltd Vs CC
Cus - The issue that has come up for decision is whether the "Nylon filament yarn" imported by assessee will fall under beneficial impact of Central Excise exemption Notfn 29/04-CE, Sl.No. 5A for the purpose of discharging additional duty of customs (CVD) - Imported 'nylon filament yarn' is being used as an input by importer, in their own factory for subjecting to some process - This being so, it is only the resultant of imported yarn after such processing in factory, provided further that such resultant goods also fall under Chapter 54, that will attract the benefit of reduced 8% duty liability under Entry 5A of Notfn - Additional duty of customs on imported will necessarily be on par with excise duty leviable on a like article produced / manufactured in India - This being so, additional duty of customs will be equal to central excise duty liability in respect of input filament yarn manufactured and cleared to manufacturer availing Entry 5A - Filament yarn imported by assessee will have to necessarily pay the additional duty of customs equal to merit rate of central excise duty, and not, the reduced rate of excise duty extended vide notfn 29/2004-CE as amended - In arriving at conclusion, substance drawn on the ratio laid down by Supreme Court in case of Thermax Pvt. Ltd. 2002-TIOL-683-SC-CUS-LB wherein it is held that CVD will be equal to excise duty for the time being leviable on a like article if produced or manufacture in India - In case of assessee themselves, Apex Court followed the ratio earlier laid down in Hyderabad Industries Ltd. and Thermax judgments and held that for additional duty, actual manufacture or production of a like article was not necessary and for that quantification of additional duty imported article has to be imagined as to be manufactured or produced in India and then to see what excise duty was leviable there on - Impugned order is upheld: CESTAT -Appeal dismissed
: CHENNAI CESTAT
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