SERVICE TAX SECTION
2018-TIOL-477-HC-MUM-ST + Story
Transmedia Software Ltd Vs UoI
ST VCES, 2013 is not an open ended scheme - The benefits thereunder cannot be derived dehors the scheme or after its life or duration has come to an end – relaxation or concession, which can be granted in terms of the scheme have been outlined in the scheme itself and particularly by sub-section (4) of section 107 of FA, 2013 - It is not the intent that the tax dues for the period 1st October, 2007 and ending on 31st December, 2012 and the liability in that behalf can be discharged in the manner chosen by the assessee or as per his whims and fancies - Equally, the Revenue and its department cannot, by its whims and fancies, allow any defaulter to pay the taxes after the due date is over long time back - when this is the nature of the stipulations in the scheme, any view taken contrary to the same would be rewriting the scheme itself or prescribing conditions which are not specifically imposed - petitioners have to blame themselves and they cannot take advantage of their own wrong and force the respondents to accept the further sums in full and final settlement contrary to the stipulations and provisions in the scheme - Petition dismissed: High Court [para 23, 26, 27, 28] - Petition dismissed
: BOMBAY HIGH COURT 2018-TIOL-884-CESTAT-MUM + Story
Khandelwal Transport Vs CC & CE
ST - Contract is primarily intended for the purpose of transportation of sand and the activity of loading/unloading is merely incidental - No tax can be levied under the head of Cargo Handling Service - There is no doubt that the activity of removing/excavating sand from the riverbed amounts to mining activity - However, for the period in dispute, mining was not a taxable service - In any case, the activity of movement of sand from warehouse to bunker cannot be considered as mining activity - Appeals allowed: CESTAT [para4, 5] - Appeals allowed
: MUMBAI CESTAT
2018-TIOL-877-CESTAT-BANG Electro Diesels Vs CCE, C & ST
ST - the assessee-company is engaged in providing services under 'Management, Repair and Maintenance Service' - The Department alleged discrepancies in payment of service tax, and raised duty demand along with Education Cess and interest - Further, penalties u/s 76, 77 and 78 were also imposed - Later, the Commr.(A) held that penalties u/s 76 & 78 could not be imposed simultaneously & so set aside the penalty u/s 76 -
Held - The Commr.(A) noted there to be no suppression of fact by the assessee, to warrant penalty u/s 78 - Hence the Commr.(A) erroneously upheld penalty u/s 78 despite such findings - Besides, the assessee already paid duty demanded, with interest - The assessee also paid penalties raised u/s 76, 77 & 78 - Thereby, penalties imposed u/s 76 & 78 are dropped: CESTAT (Para 2,7) - Assessee's Appeal Partly Allowed: BANGALORE CESTAT
2018-TIOL-876-CESTAT-MUM
Pr Commissioner, CGST Vs Tata Consultancy Services Ltd
ST - Refund claimed of unutilized cenvat credit lying in the balance - adjudicating authority rejected the claim but Commissioner(A) setting aside the order and allowing refund - Revenue in appeal before CESTAT seeking stay of the order.
Held: First appellate authority has gone into detail and has come to a conclusion that the respondent is eligible for the refund of the amount of cenvat credit lying in balance for which he has relied upon the ratio of the decision of Karnataka High Court in mPortal India Wireless - 2012-TIOL-933-CESTAT-BANG - High Court has reiterated their findings in the case of Kyocera Wireless - 2016-TIOL-2596-HC-KAR-ST - no merits in the Stay petition, hence dismissed: CESTAT [para 6, 7] - Application dismissed: MUMBAI CESTAT
CENTRAL EXCISE SECTION
2018-TIOL-875-CESTAT-MUM
Sequent Scientific Ltd Vs CCE
CX - CENVAT credit - Case of the department is that capital goods received was old and used machinery, therefore, sister unit should have charged duty on depreciated value, but in failure to do so they have passed on excess credit which is not admissible to them.
Held: Machine supplied by their sister concern was not installed, therefore, in case of removal of capital goods ‘as such' the assessee is required to pay duty equal to the Cenvat credit availed - total duty paid by the sister concern for removal of capital goods to the appellant is in order - moreover, even though there is dispute in quantum of duty at the supplier's end whatever duty actually paid by the supplier credit is admissible at the recipient end as the reassessment cannot b e done at the recipient end - impugned order set aside and appeal allowed: CESTAT [para 4] - Appeal allowed: MUMBAI CESTAT
2018-TIOL-874-CESTAT-MUM
Sridevi Tool Engineers Pvt Ltd Vs CCE
CX - Appellant removed moulds to jobworker in terms of rule 4(5)(a) of CCR, 2004 - foreign technical carried out processes at job worker's end and raised invoices - appellant paying service tax under reverse charge and availing CENVAT credit - department contending that appellant ought to have availed exemption in terms of notfn. 8/2005-ST and, therefore, what has been paid is not available as CENVAT credit - Appeal to CESTAT.
Held: Firstly, service was not provided by the job worker but by foreign technical persons which are not exempted under notification No. 8/2005-ST, therefore, appellant being recipient of the services has rightly paid service tax - Further, even if it is presumed that activity of job worker is exempted by notification no. 8/2005-ST there is no compulsion for availing such exemption notification as same is optional, therefore, whatever service tax is paid on the job work activity is admissible as cenvat credit to the appellant being recipient of the service - There is no section similar to section 5A of the CEA, 1944 which mandates that exemption should be necessarily availed - impugned order is set aside and appeal is allowed: CESTAT [para 5] - Appeal allowed: MUMBAI CESTAT
2018-TIOL-873-CESTAT-MUM
Savita Oil Technologies Ltd Vs CCE
CX - CENVAT - Appellant's head office is registered as input service distribution (ISD) and had availed CENVAT credit on common input services and distributed the same to different manufacturing units - While distributing such credit, ISD distributed the entire CENVAT credit availed - It is the case of the Revenue that ISD should not have done so because the trading activity undertaken is to be considered as an exempted service and the CENVAT credit attributable to such trading activity needs to be proportionately reduced - demand confirmed, appeal before CESTAT.
Held: ISD cannot reverse the CENVAT credit as per the provisions of CCR, however, the manufacturing unit to whom the service tax credit has been distributed can do so - said reversal of the CENVAT credit attributable to the trading activity, if it is done at the manufacturing unit level, would suffice and satisfy the provisions of CCR, 2004 on reversal of such CENVAT credit - Since the entire issue needs to be factually verified and the figures need to be arrived as to what is the amount to be reversed and this exercise has to be undertaken by the units, matter remanded to adjudicating authority - issue involved in this case is a question of interpretation, hence appellant cannot be visited with any penalty, however, interest payable - Appeal disposed of: CESTAT [para 5, 6, 7] - Appeal disposed of: MUMBAI CESTAT
2018-TIOL-872-CESTAT-MUM
Rotomatic Containers Pvt Ltd Vs CCE
CX - Whether plastic tanks manufactured on job work basis on behalf of M/s. Boraste Agro Implements and Allied Industry is reservoir tanks and classifiable under 3925 1000 as claimed by the department or classifiable under 8424 9000 as parts of mechanical appliances of kind used in agriculture or horticulture as claimed by the appellant.
Held: Tank manufactured by the appellant is having various fitments and it has a specific shape which is used for making spraying unit which has a specific use in agriculture - As per the photographs it is found that the tank has a specialised attachment and shape and is used for spraying the material in the agricultural field, therefore, it is clear that the tank manufactured by the appellant is not for general use of storage of water - impugned goods are rightly classifiable under CH 8424 - impugned order set aside and appeal allowed: CESTAT [para 5, 6] - Appeal allowed: MUMBAI CESTAT
2018-TIOL-871-CESTAT-MUM
Pharmaceutical Product of India Ltd Vs CCE
CX - CENVAT - On pointing out by Audit, appellant reversed CENVAT credit and also paid interest for the period April 2011 to March 2012 till the date of reversal - rule 14 of CCR was amended on 17.03.2012 by Notfn. 18/2012-CE(N.T.) according to which interest is chargeable only when assessee takes and utilizes the CENVAT credit, earlier the words employed were ‘taken or utilized' - appellant, therefore, filed refund claim of interest but the same was rejected by lower authorities - appeal before CESTAT.
Held: Appellant, admittedly though taking credit but the same was not utilized till 30.08.2013, therefore for the period from 17.03.2012 onwards as per the amended provision, interest is not chargeable on unutilized cenvat credit - Bench, therefore, views that interest paid for the period 17.03.2012 till reversal i.e. 30.08.2013 is refundable to the appellant - Accordingly, impugned order is set aside, appeal is allowed: CESTAT [para 5] - Appeal allowed: MUMBAI CESTAT
CUSTOMS SECTION
2018-TIOL-870-CESTAT-DEL
Tahir Star Vs CCE
Cus - Assessee imported glass chatons and filed bills of entry - Goods were mis-declared both in general description and value - However, the plea of assessee is that second undeclared invoice unearthed during investigation could have been accepted instead of contemporaneous import value as of NIDB data - Assessee admitted all the misdeclarations and requested for assessment of goods and paid the duty along with penalty and redemption fine to clear the cargo - Waiver of SCN and requirement for personal hearing has also been done by assessee - Assessee have duly been informed about the correct value proposed by Revenue and same has been accepted - It is clear that assessee themselves were in fault in presenting a fake invoice - The investigation unearthed two invoices for same consignment and assessee admitted the proposal of re-valuation based on contemporenous imports of similar goods - It is not open to assessee now to ask for detailed reasons for such value, which apparently has been adopted in impugned order: CESTAT - Appeal dismissed: DELHI CESTAT
2018-TIOL-869-CESTAT-MAD
S Benjamin Vs CCE
Cus - Penalty - M/s. Hi-Bright Apparels India Pvt. Ltd. engaged in manufacture and export of readymade garments and have an approved 100% EOU for said purpose - The case against EOU is that they have not undertaken any manufacture as mandated in permission nor they have followed the procedure for getting goods manufactured from job workers - The role of assessee for violation of various provisions of Customs Act, 1962 connected to duty-free import of items for EOU cannot be contested with any force - The original authority examined the depositions made by assessee during investigation as corroborated by various other evidences before arriving at his conclusion - There is no substantial ground to reverse the finding of original authority - Assessee cannot shift the blame to carelessness of employees for violation of Customs Act - Accordingly, liability for penalty under section 112(A) cannot be contested - Assessee pleaded for reduction of penalty on the ground that duty loss has been calculated without extending the benefit of Customs Notfn 14/2003 - Same is reduced to Rs.5,00,000/-: CESTAT - Appeal partly allowed: CHENNAI CESTAT
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By Satish Gandla 
By Kundan Kumar 
