SERVICE TAX SECTION
2018-TIOL-716-CESTAT-BANG
Robert Bosch Engineering And Business Solutions Pvt Ltd Vs CCE, C & ST
ST - Assessee had applied for refund claims of unutilized CENVAT credit of inputs utilized in provision of output services which were exported under Rule 5 of CCR, 2004, read with Notfn 5/2006 CE (NT) for the periods April 2008 to June 2008 and July 2008 to September 2008 - Lower authority rejected the claim of Rs.24,90,499/- on two grounds i.e. non-submission of certain invoices and nexus of input services with the output services - Assessee is entitled to CENVAT credit of Rs.21,31,710/- for which he has produced the invoices on record and also entitled to CENVAT credit of Rs.2,75,224/- with regard to various input services by holding that the same fall in definition of input services under Rule 2(l) of CENVAT Credit Rules - Appeal of assessee is partially allowed to the extent of Rs.24,06,934/- out of Rs.24,90,499/-: CESTAT -
Appeal partly allowed
: BANGALORE CESTAT
2018-TIOL-715-CESTAT-DEL
Naveen Construction Company Vs CCE
ST - Assessee engaged in construction activities - In pursuance to agreement with M/s Aditya Cement, they have constructed residential complex for use by staff of M/s Aditya Cement - Proceedings were initiated against assessee to demand and recover ST under category of "Construction of Complex Service" in terms of Section 65(zzzh) of FA, 1994 - Original authority held that construction has not been carried out by client for personal use - Assessee have constructed building and accordingly liable to pay the tax - Original authority has clearly erred in appreciating statutory scope of tax entry - In fact, if a person directly engages another person for designing or planning of layout, and then construction is not carried out by client himself, the whole tax entry has no application - Having recorded such finding, it would appear that original authority has erred in holding any application of tax entry under Section 65(91a) to the present activity at all - Assessee is directly engaged by client for building the staff quarters which are for "personal use" - Accordingly, no merit found in impugned order confirming the tax liability on assessee: CESTAT - Appeal allowed: DELHI CESTAT
2018-TIOL-719-CESTAT-DEL + Story
Western Union Financial Services Inc Vs CST
ST - Department of Post is rendering service to the appellant, who is a foreign based entity, by executing the remittance of foreign exchange to the intended recipient in India - Department of Post is not rendering any taxable service in India in the present arrangement - recipient of service is not the recipient of transferred money in India and he did not pay any consideration for such receipt facilitated by the Department of Post - service is to be considered as export of service and consideration received therefor is not required to be subjected to service tax: CESTAT [para 13, 14, 15]
ST - Refund - Appellants have categorically submitted that their customers, who approached them to remit foreign exchange from outside the country to a recipient in India, do not pay any consideration, which can be directly or indirectly attributable to service tax - This, they have established by directly as well as by inference - Supporting certificate from Chartered Accountant, who examined their business arrangement and accounting has also been submitted - As such, the appellants have discharged their liability to state that they have not passed on any tax burden to any third party in the present dispute - bar of unjust enrichment does not apply: CESTAT [para 17]
ST - Principle of unjust enrichment would not be applicable to refund claims relating to export of services - impugned orders denying refund claimed by the appellants are not sustainable, the same are set aside and the appeals allowed with consequential relief: CESTAT [para 18 ] - Appeals allowed : DELHI CESTAT
CENTRAL EXCISE SECTION
2018-TIOL-722-CESTAT-MUM + Story Hindustan Petroleum Corporation Vs CCE
CX - CENVAT - as per the exclusion clause (C) in rule 2(l), the word is not employee of the assessee but it is any employee - Health insurance services for CISF personnel employed by assessee not CENVATable - as regards interest, since appellant had sufficient balance in their CENVAT account, it could not be said that the credit wrongly availed has been utilized - interest u/r 14 of CCRnot imposable, demand set aside - Appeal partly allowed: CESTAT [para 4] -
Appeal partly allowed
: MUMBAI CESTAT
2018-TIOL-714-CESTAT-DEL
Continental Engines Ltd Vs CCE
CX - Assessee have two divisions i.e. Machining division which is a 100% EOU and Foundry Division which is a DTA unit - The Machining Division had imported raw materials i.e. aluminium ingots without payment of duty under Notfn 52/2003-Cus. - Machining Division has wrongly paid CVD as well as SAD by making use of cenvat credit - In terms of Rule 3(4) of CCR, 2004, Cenvat Credit cannot be utilised for payment of such customs duties - Consequently, no infirmity found in the view taken by adjudicating authority that such duty payment is required to be made only through cash and not allowed to be done by making use of cenvat credit - Cenvat credit was taken wrongly by Foundry Division since such duty was paid using the cenvat credit account by the machining division and cannot be considered to be payment of duty - The cenvat credit also has been taken on the basis of non prescribed duty paying documents - Consequently, reversal of such cenvat credit taken alongwith interest and levy of penalties upheld: CESTAT -
Appeals dismissed
: DELHI CESTAT
2018-TIOL-713-CESTAT-DEL
HCL Office Automation Ltd Vs CCE
CX - Assessee engaged in manufacture of photocopier machines liable to duty - A dispute arose regarding certain deductions/ abatements claimed by assessee when they filed price list for approval on 10/10/1987 - Same was disallowed by Jurisdictional Assistant Commissioner - On the request of assessee, provisional assessment was ordered; assessee paid duty under protest on higher value without deductions/abatements - After various litigations before Commissioner (A), Tribunal and Allahabad High Court, finally a position emerged that claims for refund filed by assessee covering the period 10/10/1987 to 31/03/1991 was valid and there was an excess payment of excise duty - Same was sanctioned but credited to consumer welfare fund as he held that assessee cannot receive the refund amount in view of bar due to unjust enrichment in terms of Section 11B of CEA, 1944 made applicable to finalization of provisional assessment under Rule 9B also - Tribunal take up the legal issue regarding application of concept of unjust enrichment introduced in Rule 9B of CER, 1944 readwith Section 11B of CEA, 1944 w.e.f. 25/06/1999 - Provisional assessment was prior to said date - There is no dispute on this - Larger Bench of this Tribunal in Panasonic Battery India Co. Ltd. 2013-TIOL-1367-CESTAT-AHM-LB examined a similar dispute - Larger Bench was relying on a decision of Apex Court in Allied Photographics India Ltd. 2004-TIOL-27-SC-CX which was again affirmed by the Apex Court in review - As the legal position is held in favour of assessee, Tribunal is not examining the other issue of whether or not the impugned order is correct on the fact as to the excess duty has been passed on or not by assessee to buyers - Accordingly, impugned order is set aside: CESTAT -
Appeal allowed
: DELHI CESTAT
2018-TIOL-712-CESTAT-BANG
Heidelberg Cement India Ltd Vs CCE
CX - Assessee engaged in manufacture of Cement and Cement Clinker and availing facility of cenvat credit under CCR, 2004 - They had made provision to write off the value of inputs partially in their books of accounts as per the policy of company which does not allow to make any provision to write off obsolescence stock on store and spares fully - Further, inputs for which provisions of write off was provisionally made was subsequently used in manufacture as per provisions of Rule 3(5B) of CCR - There was no recovery mechanism to recover the cenvat credit wrongly taken under provisions of Rule 3(5B) and the recovery mechanism was brought into existence from 01.03.2013 vide Notfn 3/2013-CE (NT) - Ratios of decisions in 2009-TIOL-1057-CESTAT-MUM and 2008-TIOL-2297-CESTAT-BANG clearly applicable in facts and circumstances of present case and therefore by following the same, demand of cenvat credit for inputs for which provision to write off has been made is not sustainable in law and therefore, same is set aside: CESTAT -
Appeal allowed
: BANGALORE CESTAT
2018-TIOL-711-CESTAT-MAD
Lucas TVS Ltd Vs CCE
CX - The issue for consideration is whether the assessee is eligible for credit on service tax paid on outward transportation services availed for domestic clearances of finished products upto the buyer's premises - Commissioner (A) has disallowed the credit holding that as per the definition of input services, the credit is admissible only upto the place of removal - Since the place of removal is factory gate, assessee is not eligible for credit for clearances of goods beyond the place of removal/factory gate - The Board vide Circular No.97/8/2007-ST dt.23.8.2007 has clarified that credit is admissible for outward transportation upto buyer's premises if the sale is on FOR basis - Assessee has stressed that the sale is on FOR basis and the ownership of the goods rests with assessee till the goods are delivered at the buyer's premises - However, Commissioner (A) has not made any observation in this regard with respect to documents, in spite of the direction given while remanding the matter - Impugned order to the extent of disallowing credit on service tax paid on outward transportation on domestic clearances is set aside and the issue alone is remanded to Commissioner (A) for looking into the evidence who shall decide the eligibility of credit on the basis of observations made in this order: CESTAT -
Matter remanded
: CHENNAI CESTAT
2018-TIOL-710-CESTAT-MAD
Tube Investments of India Ltd Vs Commissioner, LTU
CX - Assessee is manufacturer of steel tubes and they received back rejected goods and had taken CENVAT credit of duty paid thereon under Rule 16(1) of CER, 2002 - Subsequently, without process of any manufacture on these goods, they resold the goods, though at a lower price - At the objection of department, assessee reversed the entire credit taken at the time of clearance of resold goods and filed refund claim between credit taken and duty payable as per their transaction value on such resale - Identical issue has been addressed in assessee's own case - Tribunal do note the protestation of department that appeal against decision of Tribunal in case of Toyota Kirloskar Motor Pvt. Ltd . 2007-TIOL-2074-CESTAT-BANG has been dismissed by Supreme Court - However, Supreme Court has dismissed the appeal only on the ground of negligible tax amount - This being so, it is evident that Supreme Court has not decided the issue on merit - It is also pertinent to note that no appeal has been filed by department against the decision of Tribunal in case of M/s. Tube Products Of India 2016-TIOL-597-CESTAT-MAD - Hence, Tribunal is not inclined to deviate from earlier order passed by Tribunal, for which reason impugned order is set aside: CESTAT-
Appeals allowed
: CHENNAI CESTAT
CUSTOMS SECTION
NOTIFICATIONS
ctariff18_029
Seeks to amend notification No. 50/2017 Customs dated 30.06.2017
ctariff18_028
Seeks to increase BCD tariff rate on Chickpeas, [Tariff item 0713 20 0] from 40% to 60% by invoking section 8A (1) of the Customs Tariff Act, 1975
CASE LAWS
2018-TIOL-372-HC-KAR-CUS
OM Traders Vs UoI
FTP - Central Government taking into consideration all the surrounding circumstances and the fact that poppy seeds is a special produce amended condition No.3(c) of the import policy as a policy decision exercising its legislative domain in order to distribute poppy seeds to all the applicants who aspire for import of poppy seeds and in order to avoid monopoly by any one of the applicants - Petitioners have not pointed out any malafide on the part of the Central Government while amending the condition No.3 of the import policy - Further, there is no violation of fundamental rights of the petitioners guaranteed under Article 19(1)(g) of the Constitution of India - Therefore the reasonable restriction imposed by the Central Government is within the parameters of Article 19(6) of the Constitution of India and in the interest of consumers at large - Petitioners have not made out any case to interfere with condition No.3(c) of the amended import policy issued by the Central Government exercising the powers under Article 226 and 227 of the Constitution of India - impugned notification, guidelines and public notices issued by Respondents are in accordance with law - Petitioners have not made out any ground to interfere with the same exercising the powers under Articles 226 and 227 of the Constitution of India - Petitions dismissed: High Court [para 72, 83, 102, 103, 104, 118, 119] - Petitions dismissed :
KARNATAKA HIGH COURT
2018-TIOL-709-CESTAT-MAD
Sec Services Ltd Vs CC
Cus - Assessee who is a CFS Agent has to obtain written permission from Commissioner of Customs to outsource any of functions entrusted upon him - Undisputedly, assessee has not obtained any such permission even though they have outsourced the responsibility of transport of stuffed container from their CFS area to Tuticorin Port - The CFS is having responsibility for safe transit of goods from one customs area to another customs area - Being the custodian of goods, assessee cannot wriggle out of responsibility by saying that they had outsourced only to licenced Customs Broker and that it was not outsourced to any unknown person - The other contention is that Commissioner of Customs had issued standing order alerting incidents of smuggling of Red Sanders only on 28.3.2015 wherein CFS agents were to follow the guidelines strictly - The standing order is issued by Commissioner basing on Regulations which are already in existence - Being a service provider, for export of goods, and the offence involved being smuggling of prohibited goods, penalty imposed does not call for any interference - Appeal is devoid of merits and therefore dismissed: CESTAT -
Appeal dismissed
: CHENNAI CESTAT
2018-TIOL-708-CESTAT-AHM
Surya Exim Ltd Vs CC
Cus - Appellant had filed two refund claims pursuant to O-I-A where under the issue of enhancement of transaction value has been decided in their favour - SCNs were issued to assessee, inter alia, proposing transfer of refund amount to Consumer Welfare Fund under Section 27(2) of Customs Act, 1962 - Refund claims though sanctioned were transferred to Consumer Welfare Fund - Commissioner (A) observed that since the assessee had not shown the amount of customs duty sought as refund under heading "Loans & Advances" as receivables for year in which duty was paid under protest, therefore, the amount must have been built into the cost of goods and recovered from customers - Countering said argument, assessee had submitted CA certificate wherein it is certified that when duty was paid under protest it was shown under Heading "contingent asset" and not as receivable in balance sheet, for the simple reason that the issue was pending and hence the refund was not crystallized - Further, all these documents are produced before Tribunal and they submit that they are in a position to satisfy the authorities below on the issue and both sides request to remand the matter to adjudicating authority - Matter remanded to adjudicating authority to decide the issue afresh: CESTAT -
Matter remanded
: AHMEDABAD CESTAT
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