SERVICE TAX SECTION
2018-TIOL-707-CESTAT-DEL + Story
CST Vs IPAN
ST - Revenue alleging that 'media monitoring services' are taxable under BAS - adjudicating authority dropping demand, therefore, Revenue in appeal before CESTAT.
Held: 'Media monitoring service' may help the client to formulate certain policies to help them improve their business but has no direct nexus to sales promotion - Such public relation activities are subsequently brought for tax liability w.e.f. 01.05.2006 without amending any of the previous tax entries including BAS - no reason to interfere with the o-in-o - Revenue appeal dismissed: CESTAT [para 3] - Appeal dismissed
: DELHI CESTAT
2018-TIOL-701-CESTAT-CHD
Nahar Industrial Enterprises Ltd Vs CCE & ST
ST - Assessee engaged in manufacturing and processing of fabric and clearing the same under exemption Notfn 29/04-CE and 30/04-CE - A SCN was issued to them demanding service tax along with interest and proposing penalties under Sections 77 and 78 of FA, 1994 alleging that assessee had been charging some amount from transporters for arranging/providing cargo but in case of Ex-mill sales, assessee was arranging for transport of finished goods to buyers - On merits, assessee has no case - Since the assessee provide volume of business to transporters, lower authorities have correctly held that they are promoting business for transporters - As for the contention, that there is no contract between transporter and assessee, it is evident that there is clear understanding between transporters and assessee that consideration is being paid to them for volume of business arranged for transporters - As for the contention, that BAS should be provided to a client and transporter is not a client, Tribunal agrees with findings of Commissioner (A) - As service has been provided by assessee to transporter who is a service provider therefore the contention of assessee is not tenable - As such service tax has been correctly charged in category of BAS -
On extended period, adjudicating authority has given the benefit of Section 80 of FA, 1994 - Once the finding of bonafide belief is given by adjudicating authority, invocation of extended period of limitation would not be available to Revenue as has been held by Tribunal in case of Azad Construction Co. - Impugned order set aside and matter remanded to original adjudicating authority for re-quantification of demand without invoking extended period and pass a fresh order: CESTAT - Matter remanded: CHANDIGARH CESTAT
2018-TIOL-700-CESTAT-AHM
Balaji Heavy Lifters Pvt Ltd Vs CCE & ST
ST - the assessee provides cargo handling service at Mundra Port SEZ - The Revenue alleged that the assessee availed Cenvat credit on debit vouchers issued by MPSEZ - Duty demand was issued for recovery of the same - Interest & penalty was imposed as well - The Commr.(A) rejected the assessee's appeal - Held - The assessee claimed to have not availed credit on debit vouchers - Instead, the assessee claimed that said tax amount was adjusted in the subsequent payment of service tax liability under Rule 6(3) of STR, 1994 - Since this facet requires verification, matter remanded for carrying out such exercise: CESTAT (Para 2,7) - Case Remanded: AHMEDABAD CESTAT 2018-TIOL-686-CESTAT-DEL + Story
RK Refreshment And Enterprises Pvt Ltd Vs CCE
ST - Cleaning Service - Cleaning is with reference to objects or premises of commercial or industrial building, factory and premises thereof - Train coaches are rolling stock of railways; are for transport mode and cannot fall under the commercial object of industrial building, factory, plant or machinery, etc. - Interpretation of adjudicating authority that railway coaches are either standing on platform or running on tracks and same are to be considered as object on premises is farfetched and not sustainable in view of the plain meaning of the statutory definition for tax entry - Demand unsustainable: CESTAT [para 3(i)]
ST - Supply of bedrolls to passengers cannot be considered for taxation under Business Support Services - more appropriately classifiable under Business Auxiliary Service as it is essentially a customer care service provided on behalf of the client - demand under BSS not sustainable: CESTAT [para 3(ii)]
ST - Outdoor Catering service - Quantification dispute - Appellant submitting that tax is paid on received amount not on billed amount which included element of VAT - jurisdictional authorities can verify documents to ascertain correctness of tax liability as claimed by appellant: CESTAT [para 3(iii)]
ST - Supply of newspapers to passengers in Rajdhani trains - Original authority could not have considered the same as a part of outdoor catering service but should have identified whether such supply of newspaper is a taxable activity - reasoning adopted is not sustainable - Accordingly, the tax liability cannot be sustained: CESTAT [para 3(iv)]
ST - Limitation & Penalty - Tax liability with reference to service rendered to railway/railway passengers has been a subject of substantial litigation - In fact, the Railways resisted the service tax applicability by repeated representations to the Ministry of Finance - Extended period of limitation cannot be invoked; therefore, penalties also set aside: CESTAT [para 4, 5] - Appeals disposed of: DELHI CESTAT
CENTRAL EXCISE SECTION
2018-TIOL-699-CESTAT-DEL
Tirumala Balaji Alloys Pvt Ltd Vs CCE & ST
CX - Assessee is in appeal against impugned order whereunder inter alia Cenvat credit on steel items used for fabrication and installation of air pollution equipment in manufacturing facility has been denied - Subject matter appears to be squarely covered by Supreme Court's decision in case of Rajasthan Spinning & Weaving Mills Ltd. 2010-TIOL-51-SC-CX wherein it is held that steel items viz. steel plates, MS channels used in fabrication of chimney for diesel generating set, by treating them as capital goods, are entitled to facility of Modvat credit under Rule 57Q of erstwhile CER, 1944 - In the light of discussion and observations of Apex Court, there is no doubt that assessee is entitled to Cenvat credit for subject steel items used for fabrication and installation of air pollution equipment at their manufacturing premises: CESTAT - Appeal allowed: DELHI CESTAT
2018-TIOL-698-CESTAT-DEL
MP Tar Products Vs CCE
CX - the assessee-company manufactured Coal Tar Primer & Coal Tar Tape - These were supplied to Adani Power Maharashtra Ltd., a mega power project - Thus, the assessee claimed refund under Notfn. No. 6/06 - However, the Revenue claimed that these goods were ineligible for refund -
Held - The issue stands settled in the assessee's own case, wherein exemption was allowed - Following the same, and since the contract is the same as are the goods in question, the assessee is eligible for refund: CESTAT (Para 1,4,5) - Appeal Allowed: DELHI CESTAT
2018-TIOL-697-CESTAT-MUM
Jolly Board Vs CCE
CX – Issue involved is whether the appellant is entitled for CENVAT credit on the input and input services used in the manufacture of Bagasse Board cleared for export but exempted under notification 6/2006-CE.
Held: Issue is no longer res integra as per the judgment of High Court in Drish Shoes Ltd. - 2010-TIOL-350-HC-HP-CX and Repro India ltd. - 2007-TIOL-795-HC-MUM-CX - Moreover against the very same cenvat credit availed by the appellant, the department has sanctioned the refund under rule 5 of the CCR, 2004 and which order has been accepted by the department - Rule 5 refund can be sanctioned only if the assessee is entitled for the cenvat credit - Therefore on one hand the department has sanctioned the refund claim under Rule 5 and on the other hand they are denying the cenvat credit which is contrary to their own stand – impugned order is not sustainable, hence set aside and appeal allowed: CESTAT [para 5, 6] - Appeal allowed: MUMBAI CESTAT
2018-TIOL-696-CESTAT-MUM
Madhav Iron And Casting Pvt Ltd Vs CCE
CX - CENVAT - Case of the department is that the appellant received 51.715 MT of M.S. ingots clandestinely from M/s. Silver Star and presumed that the appellant have manufactured and cleared excisable goods out of alleged receipt of M.S. Ingots - demand confirmed, appeal before CESTAT.
Held: Issue is settled that “hearsay” evidence cannot be admitted as evidence to decide any case - impugned order set aside and appeal allowed: CESTAT [para 4] - Appeal allowed: MUMBAI CESTAT
2018-TIOL-695-CESTAT-MAD
CCE Vs Tamilnadu Cement Corporation Ltd
CX - Assessee engaged in manufacturer of cement - They filed six refund claims for period from May 2007 to October 2007 - According to assessee, Rule 2A of Standards of Weights and Measures Rules 1977 is to be applied when cement is cleared to industrial or institutional consumers - There is no dispute that cement was cleared by assessee to M/s. Tamilnadu Electricity Board for their own use and not for resale - So also the quantity was not more than 50 kilograms - The issue whether such clearance to institutions/ industrial consumers, the benefit of exemption under Sl. No. 1C of Notfn 4/2006-CE would be eligible has been analysed and discussed in case of Grasim Industries Ltd. 2008-TIOL-2328-CESTAT-DEL - The Mumbai Bench of the Tribunal in the case of Heldelberg Cement (India) Ltd. 2014-TIOL-1433-CESTAT-MUM has also analyzed such issue and held the issue in favour of assessee - Following the said decision, impugned order calls for no interference: CESTAT - Appeal dismissed: CHENNAI CESTAT
CUSTOMS SECTION
2018-TIOL-694-CESTAT-MAD
Sical Logistics Ltd Vs CC
Cus - Revocation of license - Assessee continued to utilize the blank bills of entry originally signed by their ex-employee Shri V. Sivaraman, even after he left the organisation - Apart from allegation in impugned order that assessee has not complied with the said Regulation 11 B, none of the other grave mis-demeanours listed out in the said Regulation 18 have been alleged against the assessee - While, assessee have committed the infraction of using blank Bills of Entry signed by an ex-employee, however, it is not the case that they had forged such documents with signature of that person - Whether this act/omission will constitute misconduct of such a gravity so as to necessitate revocation of license itself - Answer is resoundingly in negative - Evidently, whole controversy has emanated out of a cat fight between assessee and their ex-employee, who has admittedly made the complaint - It emerges that in his statement recorded under Section 108, the complainant and ex-employee Shri V. Sivaraman, admitted that even after he had left the services of assessee, he received compensation from them for the period 17.09.2012 to 01.02.2013 on mutual understanding, evidently to use the blank forms which were signed by him - It then appears that complaint by Shri V. Sivaraman is the resultant of a mutual understanding gone sour - There is also no allegation that the goods imported through these bills of entry were found having violated any customs laws in force - In the event, while some punitive action is warranted against assessee, revocation of license of customs broker for this particular infraction, is an overkill, not commensurate with the gravity of offence and same is set aside - Penalty of Rs. 50,000/- imposed on assessee would be sufficient to meet the ends of justice: CESTAT - Appeal partly allowed: CHENNAI CESTAT
2018-TIOL-693-CESTAT-MAD
Ramdev Traders Vs CC
Cus - Assessee had based their assessable value on invoice price of US$ 0.75 per piece - However, no grounds have been evidenced for rejecting said declared value as not being transaction value - Even so, instead of following the sequences laid down in Valuation Rules for redetermination of value, department, for some reason, found it appropriate to work out the assessable value on basis of market prices of impugned item obtained through market enquiry - The enhancement is then certainly not based on sufficient reasons for rejection of transaction value and redetermination of value thereupon being based on contemporaneous imports of identical goods - The so called "voluntary statement" of importer has, in any case, been subsequently retracted - The finding of lower authority is certainly not the accepting manner of arriving at assessable value - There are spate of Tribunal decisions against setting aside enhancement of declared value on the basis of NIDB data - In event, impugned order upholding the enhancement of assessable value of imported goods cannot sustain: CESTAT - Appeal allowed: CHENNAI CESTAT
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