SERVICE TAX SECTION
2018-TIOL-773-CESTAT-BANG
Cochin International Airport Ltd Vs CCE, C & ST
ST - Assessee is providing taxable services such as Airport service, cargo handling service, storage and warehousing service, sale of space or time for advertisements and renting of immovable property service and is also providing exempted services viz. cargo handling services for agricultural produce which is exempted as per notfn 10/2002 and they had filed ST-3 returns - During audit, it was pointed out that separate accounts were not maintained in respect of input services used for taxable and exempted services and therefore assessee was required to pay 8% of exempted services - Commissioner (A) has wrongly observed in impugned order that intimation was given on 21.08.2009 by assessee for Financial Year 2008-09 whereas the fact of matter is that intimation was given on 17.01.2009 and again a letter was written on 21.08.2009 reiterating the first letter - In view of decisions in Aster Pvt. Ltd. 2016-TIOL-1035-CESTAT-HYD , Mercedes Benz India (P) Ltd. 2015-TIOL-1550-CESTAT-MUM and Mahindra & Mahindra Ltd. 2016-TIOL-942-CESTAT-DEL , Rule 6(3A) is procedural in nature and its violation will not deprive the assesse of his substantive benefits - Issue is squarely covered in favour of assessee and therefore by following the ratios of said decisions, impugned order set aside: CESTAT - Appeal allowed: BANGALORE CESTAT
2018-TIOL-772-CESTAT-ALL
Helios Photo Voltaic Ltd Vs CCE
ST - Assessee is a SEZ Unit and engaged in manufacture of solar cells, modules and parts thereof and solar power systems which were authorized operations, duly approved by Development Commissioner of Noida SEZ - The Government of India, vide Notfn 9/2009-ST provided for exemption of service tax on services which were used for authorized operations undertaken in SEZ and the same was provided by way of refund - The refund claim of assessee was partly rejected - Issue herein is squarely covered in favour of assessee by Single Member Bench ruling of Tribunal in case of Intas Pharma Ltd 2013-TIOL-1091-CESTAT-AHM and also ruling of Coordinate Bench in case of Tata Consultancy Services Ltd 2012-TIOL-1034-CESTAT-MUM - Accordingly, impugned order set aside to the extent refund of service tax was disallowed to assessee: CESTAT - Appeal allowed: ALLAHABAD CESTAT
CENTRAL EXCISE SECTION
2018-TIOL-411-HC-MUM-CX CCE Vs Hindustan Petroleum Corporation Ltd
CX - the assessee-company is engaged in manufacturing petroleum products - It supplies 'naphtha' to a firm manufacturing fertilisers - The assessee claimed exemption under Notfn. No. 06/2002 - Hence it did not pay duty on the Naphtha supplied by it - On visiting the premises of the other firm, the Revenue alleged that it was not using the naphtha to manufacture fertilisers - Hence two SCNs were issued to the assessee, raising duty demand - The Tribunal held that if part of Naphtha is used by the other firm in generation of steam or purpose other than manufacture of fertilizers, duty demand be raised on the user manufacturer and not the assessee - Also held that 'actual use' of goods is a post-clearance condition which is to be fulfilled by the user and not the assessee.
Held - Customs exemption is available if importer follows Condition No. 5 in the Customs Notfn. No. 21/2002 which mandates that the importer follows the procedure set out in the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996 - The Tribunal held that the notifications read together would reveal that in the present case, the naphtha supplied against competitive bidding was not entirely consumed for the manufacture of fertilizers - In the present case, for such failure, the manufacturer, where the goods were intended to be used is required to pay differential duty - At the time of clearance, the assessee satisfied both the pre-conditions, that the goods were supplied against international competitive bidding and for the manufacture of fertilizers - The actual use of the goods is post-clearance condition and which is required to be fulfilled by the buyer or user - Hence the assessee cannot be expected to ensure the precise use of the goods by the other user: High Court (Para 2,4,5,14,15) - Appeal Dismissed: BOMBAY HIGH COURT
2018-TIOL-776-CESTAT-AHM
Pavit Ceramics Pvt Ltd Vs CCE
CX - Issue involved in present appeal relates to admissibility of CENVAT Credit of service tax paid on services viz. i) Insurance for Vehicle ii) Rent of Head Office iii) Air Travel Agents iv) Construction v) Terminal Handling Charges for Export Cargo vi) Life Insurance service of employees vii) Rent a Cab viii) Repairing Air Conditioner ix) car repairing x) Warehousing and Freight of Export Cargo xi) Transportation used for sewage cleaning carried out at the residential colony of company's staff xii) Courier Service - As regards to "Transportation used for sewage cleaning carried out at the residential colony of company's staff" credit is not admissible in view of the judgment of Gujrat High Court in case of Gujrat Heavy Chemicals Ltd. 2011-TIOL-383-HC-AHM-ST - The other disputed services except "Transportation used for sewage cleaning carried out at the residential colony of company's staff" on which credit availed, have been held to be 'input service', as defined under Rule 2(l) of CCR, 2004 and accordingly the service tax paid on such services are held to be admissible to Credit: CESTAT - Appeal partly allowed: AHMEDABAD CESTAT
2018-TIOL-775-CESTAT-AHM
Union Quality Plastics Ltd Vs CCE & ST
CX - The limited question involved for determination is; whether there was shortages in finished stock of goods and raw materials as recorded in panchnama - Assessee has vehemently argued that the SCN issued earlier to assessee, on the very same issue of non-payment of duty on shortages of goods demanding duty notice is pending de novo adjudication - He has argued that on shortages noticed on the date of visit on 02.8.1997 the demand notice was though issued on 29.1.199 however, the stock of RG-1 register had not been aligned with demand notice, by reducing the book balance to extent of the demand - Therefore, the stock position as on 02.8.1997 carried forward became erroneous and continued till the next visit on 22.12.1998, which has resulted into overlapping of shortages and consequently demand of duty - The grievance of assessee is also that they were not allowed cross-examination of witnesses even though specifically directed by this Tribunal in its order - Need less to emphasize that the principle of law on admissibility of allowing cross-examination has been well settled by Supreme Court in a series of cases including the violation in case of Andaman Timbers Ltd. - In the result, impugned order is set aside and the matter remanded to Commissioner with the direction to allow cross-examination of witnesses as already directed by this Tribunal - Also, to examine the issue of overlapping of demand on the shortage of goods noticed on 02.8.1997 and 22/24.12.1998 as claimed by assessee: CESTAT - Matter remanded: AHMEDABAD CESTAT
2018-TIOL-774-CESTAT-MAD
Promptech Pressure Die Cast Pvt Ltd Vs CCE & ST
CX - The issue involved is as to whether during the period of default for payment of duty, an assessee is entitled to use Cenvat credit of duty or duty has to be paid in cash, in terms of Rule 8 (3A) of CER, 2002 - Tribunal vide its Final Order dated 08.07.2015 has taken into consideration the Gujarat High Court decision in case of Indsur Global India 2014-TIOL-2115-HC-AHM-CX and in the case of Precision Fasteners Ltd. 2014-TIOL-2211-HC-AHM-CX , which has held that conditions in Rule 8 (3A) of CER, 2002 for payment of duty without utilizing Cenvat credit is unconstitutional - The High Court of Madras in case of Malladi Drugs & Pharmaceuticals Ltd 2015-TIOL-1262-HC-MAD-CX has concurred with the judgments of Gujarat High Court - Further, Madras High Court in the case of A.R. Metallurgicals Pvt. Ltd. 2015-TIOL-1261-HC-MAD-CX has set aside the Tribunal's order and has allowed in favour of assessees - By following the same, impugned order set aside: CESTAT - Appeal allowed: CHENNAI CESTAT
CUSTOMS SECTION
2018-TIOL-771-CESTAT-DEL
YKK India Pvt Ltd Vs CC
Cus - Assessee as an associated company of M/s. YKK India pvt. Ltd. was importing regularly parts and components of zippers - Dispute is with reference to addition of royalty charges paid by assessee to the Japan Company, in assessable value of parts and components of zippers imported by them - Cost of imported components and parts are to be excluded to arrive at the net value for computation of royalty charges - In such situation, factual and legal findings as recorded by Original Authority cannot be contested - Impugned order did not examine at all the factual finding vis a vis the ratio of Supreme Court in Matsushita Television & Audio (I) Ltd. 2007-TIOL-64-SC-CUS before arriving at a decision - Though the same is a remand order, there is nothing to re-decide in the face of categorical finding recorded by the Original Authority and the ratio as held by Apex Court - In the same set of arrangements for subsequent period, the very same first Appellate Authority held in favour of assessee on this issue: CESTAT - Appeal allowed: DELHI CESTAT
|
