SERVICE TAX SECTION

Rosalinds Mediretta Institutional Foundation Vs CST

ST - Assessee is an educational Trust running the institute in collaboration with Thames Valley University, UK - From 2008 onwards, assessee stopped the said course and instead conducted a 3 year BA (Hons.) in International Hospitality Administration, as an approved Institute of IGNOU - Revenue views that assessee is liable to service tax under category of commercial training or coaching centre in terms of Section 65(27) r/w Section 65(105) (zzc) of FA 1994 - The period covered is from 1.4.2008 to 30.09.2011 - Original Authority did not accept claim of assessee for exemption under notfn 24/2004 on the ground that course conducted by assessee has resulted in professional degree awarded by a foreign university and same is not a vocational course - Admittedly, the course offered by assessee is in specialized area of hospitality industry and are intended for seeking employment in that specified area of hotel management, courses conducted by assessee in collaboration with Thames Valley University, UK in international hotel management is covered by exemption notfn 24/2004 - No service tax liability can be fastened on assessee for this period.

Post 2008, assessee have started a 3 year course of BA (Hons) in International Hospitality Administration approved by IGNOU, leading to an award of degree by IGNOU, which is, admittedly, a recognized open university under UGC Act - As long as the course results in award of recognized degree by an approved university, same is excluded from tax entry of Commercial or Coaching Service - For the period, during which the assessee were conducting courses results in award of degree by a recognized university, they are not covered by the scope of "Commercial Training or Coaching Centre": CESTAT - Assessee's appeal allowed: DELHI CESTAT

2018-TIOL-898-CESTAT-DEL

ST - Refund claim in respect of period October, 2007 to Dec. 2007, Jan. to March 2008, and April 2008 to June 2008 were filed by assessee on 27th June 2008 - As per the provisions of Notfn daed 6.10.2007 , same were required to be filed on 29.2.2008 and 30.5.2008 - Thus, refund claims were filed beyond the stipulated time frame, provided in said Notfn - Since the refund application is in relation to availment of exemption, and is no way, connected with erroneous payment of service tax, time limit provided under Section 11B of Act is not applicable and the time frame prescribed in said Notfn is strictly applicable for consideration of refund application - Tribunal in case of K.S. Oils 2017-TIOL-625-CESTAT-DEL has held that time limit provided under Notfn 41/2007 dated 6.10.2007 is strictly applicable for consideration of refund of service tax - In view of settled position of law, refund claims filed in respect of quarter ending October to Dec. 2007 and Jan. to March 2008 are barred by limitation of time and thus, there is no infirmity in impugned order, in rejecting the refund claims filed by assessee.

However, with regard to refund claim filed for quarter ending April 2008 to June 2008, in terms of notfn dated 18.11.2008 , the same is not barred by limitation of time, having been filed within six months from the relevant date - However, since this limitation aspect has not been dealt with by the authorities below, matter should go back to the original authority for proper verification of refund applications to ascertain, whether such applications were filed within the prescribed time limit prescribed under Notfn 32/2008-ST dated 18.11.2008: CESTAT - Appeals partly allowed: DELHI CESTAT

2018-TIOL-897-CESTAT-BANG

ST - Appellants, engaged in providing export of service, refund claims of cenvat credit under rule 5 of Cenvat Credit Rules, 2004 [CCR] read with notification no.5/2006 dated 14.3.2006 -the refund was rejected in toto by the adjudicating authority - on appeal, the Commissioner (Appeals) allowed the appeal by way of remand -aggrieved by the said remand order, the appellants have filed this appeal solely on the ground that the refund claims are not hit by limitation since the relevant date should be computed from the last date of the quarter in which the FIRCs are received :

HELD - The issue involved in the present appeal is no more res integra and is settled by various decisions wherein the Tribunal has consistently held that in case of export of Services, the relevant date shall be the date on which the consideration for services exported is realized and not from the date of export of service - in view of the Division Bench decision in the case of Bechtel India Pvt. Ltd. - 2013-TIOL-1977-CESTAT-DEL and also in the case of Hyundai Motor India Engineering Pvt. Ltd. - 2015-TIOL-739-HC-AP-ST decided by the Andhra Pradesh High Court, it is not the date of export of service or the last date of the quarter to which the claim pertains is the relevant date for computation of period of one year limitation -the original authority will decide the refund claim of the appellant keeping in view the date of receipt of foreign exchange as the relevant date for computation of limitation period -therefore, the impugned order is set aside and the case is remanded back to the original authority with the above directions : CESTAT [para 5.1, 6] - Matter remanded: BANGALORE CESTAT

CENTRAL EXCISE SECTION

2018-TIOL-490-HC-ALL-CX

Commissioner of CGST and Central Excise Vs Rama Sales and Services

CX - Assessee are franchisee/distributors appointed by BSNL and as per documents on record, they were engaged in purchase of SIM cards from M/s. BSNL and their respective sale to buyers - The records show that they have not provided any service in relation to sale promotion of goods belonging to M/s. BSNL - As such, activities carried out by them cannot be treated as falling within the purview of BAS - Moreover, M/s.BSNL have already discharged the burden of Service Tax on gross amount of SIM cards and demand of service tax on the same amount from assessee will only lead to double taxation which is not permissible under law - Hence, demand of service tax is not sustainable - When demand is not sustainable, penalties imposed are also not maintainable: HC - Appeal dismissed : ALLAHABAD HIGH COURT

2018-TIOL-489-HC-ALL-CX

CCE Vs India Glycols Ltd

CX - Appeal filed by department against the order passed by Tribunal - The Tribunal has relied on their earlier decision in a case relating to assessee itself wherein he took a view that loses had occurred in storage of molasses due to natural phenomena which was within the prescribed limit of 2 per cent as laid down by Board Circular dated 06.02.1982 and also the Tribunal noted that identical issue is covered by earlier decision of Tribunal in assessee's own case - Following the decision in case of assessee itself, Tribunal therefore, allowed Cenvat credit in respect of molasses lost during storage when admittedly the duty stands paid by manufacturer on the full quantum of the molasses - Questions of law are answered in favour of assessee: HC - Appeal dismissed : ALLAHABAD HIGH COURT

2018-TIOL-896-CESTAT-MUM

CX - Appellant have got goods manufactured from job worker for which they supplied Steel - After job work, certain waste and scrap arose which was retained by the job worker - however, appellant paid the excise duty on such scrap at the value of prime material of steel whereas excise duty should have been paid on the prevailing price of the scrap - Accordingly, for the duty which was paid in excess, appellant filed refund claim - refund rejected, therefore, appeal.

Held: Appellant have not sold the scrap, therefore, sale price of such scrap is not available - to determine the value of the scrap, recourse has to be made to the Central Excise Valuation Rules, rule 7 - in the present case, appellant have relied upon purchase invoice of scrap where under they purchased the scrap - However, at the same time department could not produce any material on record to reject such comparable price, therefore, appellant correctly applied the price of the comparable goods i.e. scrap - whatever excess excise duty was paid, the same is refundable in accordance with law - appellant entitled to refund subject to verification - impugned order set aside and appeal allowed: CESTAT [para 5] - Appeal allowed: MUMBAI CESTAT

2018-TIOL-895-CESTAT-DEL

CX - Assessee engaged in manufacture of taper/roller bearings and axle box and exported goods to U.S.A. where it was found that the goods were not marketable, hence, goods were returned to India - On re-import of goods, assessee has paid CVD - After receipt of goods in factory some modification and repacking was carried out before supplying the same to Indian Railways on payment of applicable excise duty - Department opined that assessee was required to reverse Cenvat credit of CVD and hence demanded the differential excise duty between CVD credit taken and excise duty paid - Goods have been re-imported upon return of same by foreign buyer - Though the list of processes is elaborate, it cannot be said that processes have changed the goods substantially and anything new has come into existence - The re-packing of same will not alter the nature of goods - Accordingly, re-imported goods have been subjected to only various processes of repair and refurbishment and same cannot be considered as processes of manufacture as per Section 2 (f) of CEA, 1944 - Assessee is not required to pay excise duty when such re-processed goods are cleared but are required to reverse the Cenvat credit availed at the time of re-entry of goods back into the factory - This finds support from the specific provision in Rule 16 of CER, 2002 - Impugned order upheld: CESTAT - Appeal dismissed: DELHI CESTAT

2018-TIOL-894-CESTAT-MAD

CX - Assessee, a Govt. of India Undertaking and a SSI unit, are manufacturer of Primer, Bituminous paints and Anti-corrosive black paints - They also manufactured Road Marking Paints which they classified under 3210.90 - Department disputed the classification and instead proposed classification under CETA 3208.90 based on Chemical Examiner's report - Assessee have accepted the CETA classification of 3208.90 in respect of Road Marking Paints manufactured by them as confirmed in orders of lower authorities - They are only contending that they are eligible for SSI exemption as prevalent during impugned period, in which case they claim that there shall be no duty liability since all their clearances will be within the exempted turn over limits - Assessee had opted for availing modvat credit ab initio , in which case, they will not be eligible for full duty exemption but instead will have to discharge duty liability at "effective rate of duty less 10%" from beginning - This being so, contention of assessee that they are eligible for availing turn over based SSI exemption does not succeed - SCNs have worked out the differential duty liability after deducting 10% from effective rate of duty for CETA 3208.90 - In the circumstances, total differential duty liability confirmed in adjudication order and upheld in impugned order does not require any interference - SCNs based on which differential duty has been demanded have been issued well before introduction of Section 11AA / Section 11AB, and in consequence they do not incorporate any demand of interest liability on differential duty demanded - Demand of interest is not supported by law then in force, for which reason it will not sustain - Accordingly, that portion of orders confirming/upholding the demand of interest under Section 11AB set aside: CESTAT - Appeal partly allowed: CHENNAI CESTAT

Chennai Polymers Pvt Ltd Vs CTO

Whether a dealer can claim to be a mere agent for a supplier, not involved in handling the goods, when in fact the goods are dispatched after such dealer made payment & control over the goods remains with the dealer - NO: HC

Whether where a dealer is bound by an principal-to-principal agreement with a supplier, to indemnify such dealer against all taxes, costs, interest & penalties, can such dealer evade liability by claiming to be a del credere agent - NO: HC - Assessee's Writ Petitions Dismissed: MADRAS HIGH COURT