SERVICE TAX SECTION
2018-TIOL-904-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
2018-TIOL-903-CESTAT-DEL
Angelique International Ltd Vs CST
ST - Assessee is in appeal against impugned order where refund claim filed by them have been reduced on the premise that value of sub contract of goods by taking into consideration while calculating their refund claim - The facts are to be examined whether assessee has availed proportionate cenvat credit attributable to their composite contract, on inputs as well as input service, and has not availed any cenvat credit on inputs and common cenvat credit attributable to input service for supply contract executed by them - These facts are to be examined by adjudicating authority - In that circumstances, matter needs examination for verification of facts whether the facts are identical to the order of Commissioner or not.
For denial of cenvat credit on CHA and CFA services, the refund claim was rejected on the ground that cenvat credit on input service has been availed by assessee on the basis of invoices which were not issued in name of their registered premises - In earlier round of litigation, Commissioner (A) has held in favour of assessee - Therefore, in remand proceedings, contradictory view cannot be taken for the authorities below as order in earlier round of litigation has attained finality - Therefore, on the said ground refund claim cannot be rejected.
With regard to eligibility of refund claim of Cenvat credit on the basis of input which was not issued in their registered office, has been settled by various judicial pronouncement namely in case of National Engineering Ltd. wherein it has been held that as not in dispute the assessee has received the service and used for export of goods, therefore, the refund claim cannot be denied - In that circumstances, on that ground also, the refund claim cannot be rejected.
On merits if the facts are similar to the order of Commissioner (A), then the assessee is entitled for refund claim - Further, all the facts are to be verified by adjudicating authority: CESTAT - Matter remanded: DELHI CESTAT
CENTRAL EXCISE SECTION
2018-TIOL-910-CESTAT-MUM + Story Saakshi Machine And Tools Pvt Ltd Vs CCE
CX - Appellant manufacturing various goods and discharging CE duty by availing CENVAT – Revenue view is that goods, not being 'apparatus', were not liable to duty, that the parts and accessories are classifiable under 9022 9090 and, consequently, ineligible for CENVAT credit– demand confirmed, appeal to CESTAT.
Held: In the absence of any assessment of returns, re-classification of the goods manufactured by the appellant will not stand test of law - To the extent that duty liability has been discharged in accord with interpretation, learning or wisdom of the appellant, there is no scope for denying the CENVAT credit on the inputs that find use in manufacture – Order set aside and appeals allowed: CESTAT [para 4, 5] - Appeals allowed: MUMBAI CESTAT
Also see analysis of the order
2018-TIOL-909-CESTAT-DEL
Bhagirath Coach And Metal Fabricators Pvt Ltd Vs CCE & ST
CX - Assessee engaged in manufacture of motor vehicle for transport of goods and body for motor vehicles - Taking of Cenvat credit by assessee was disputed by Department on the ground that the service tax was paid by service provider by reason of fraud, collusion or willful misstatement and accordingly, as per the provisions of Rule 9(1)(bb) of Rules, assessee is not permitted to take Cenvat credit - Charges leveled against service provider regarding fraud, collusion or willful mis-statement were no more in existence in view of the proceedings dropped by jurisdictional Commissioner (A) - Since the service tax amount in question was not paid by the reason of fraud and collusion, assessee cannot be denied the Cenvat credit benefit in terms of Rule 9(1) (bb) of the Rules - Further, Rule 3 of Rules entitles the service receiver to avail Cenvat credit of service tax paid by service provider - Since the service tax paid by service provider was availed as credit by assessee on the basis of bills raised by him, benefit of Cenvat credit cannot also be denied to assessee: CESTAT - Appeal allowed: DELHI CESTAT
2018-TIOL-908-CESTAT-ALL
Dynamic Industries Vs CCE & ST
CX - The issue in this appeal is whether Cenvat credit have been rightly denied on transportation expenses of employees/workers engaged, through manpower service provider - Transport charges raised by service provider for manpower service is related to transport/conveyance expenses of workers provided to assessee - Such transport expenses are incidental to providing of manpower service - Accordingly, transport expenses incurred are nothing but part of amount paid for manpower service - Assessee is entitled to Cenvat credit for transportation of manpower also being incidental to providing of manpower service - Thus, impugned order is set aside: CESTAT - Appeal allowed: ALLAHABAD CESTAT
2018-TIOL-907-CESTAT-ALL
Dhampur Sugar Mills Ltd Vs CCE
CX - Issue relates to refund of pre-deposit made under provisions of Section 35F and refund of said amount with interest as provided under Section 35FF of CEA, 1944 - Adjudicating authority have erred in not calculating the interest payable to assessee under the provisions of Section 35FF - Adjustment of demand in exercise of powers under Section 11 of the Act from the refund payable to the assessee is bad to the extent the adjustment have been made without issue of any SCN for the intended adjustment - Adjudicating authority is directed to calculate the interest on Rs.50,000/- for the period 28/03/2006 to 21/10/2013 and on Rs.62,369/- for the period 26/04/2010 to 21/10/2013 under Section 35FF: CESTAT - Appeals allowed: ALLAHABAD CESTAT
2018-TIOL-906-CESTAT-AHM
Dishman Pharmaceuticals and Chemicals Ltd Vs CCE
CX - Assessee was issued with SCN alleging wrong availment and utilization of CENVAT credit during period 2010 -2011, 2011-12, 2012-13, 2014-15 in respect of M.S. HR Coils, Aluminium Coils and Welding Rods used for purpose of repairing and maintenance of their capital goods - This issue has been considered by Tribunal in Kissan Sahakari Chini Mills Ltd's case wherein it is held that manufacturing activity is not possible with malfunctioning machines, and leaking tanks, pipes and tubes - Therefore, activity of repair and maintenance of plant and machinery is an activity which has direct nexus with manufacture of final products and the goods used in this activity would be eligible for Cenvat credit - Tribunal do not see any reason to deviate from findings of Tribunal - In the result, impugned order is set-aside: CESTAT - Appeal allowed: AHMEDABAD CESTAT
2018-TIOL-905-CESTAT-AHM
Akshay Industries Vs CCE & ST
CX - Assessee had availed Cenvat credit on input invoices issued by M/s V.N. Impex, Bhiwandi during period January 2005 to February 2005 - Alleging that they have not received the goods from M/s V.N. Impex, but availed credit only on the basis of invoices, demand notice was issued to them - Said invoices were issued by M/s V.N. Impex, Thane, against whom investigation had been initiated by Department alleging issuance of fake invoices, without supply of goods as there was no manufacturing facility available in the premises of M/s V.N. Impex - In process of said investigation, receivers of inputs were also investigated - Evidences were procured subsequent to adjudication proceeding and also appellate proceeding, therefore, assessee even though claimed in their letter 12.3.2009, that goods have been utilized, they could not produce investigation report conducted by the Range Supdt. way back in 2006 - This aspect should be addressed by adjudicating authority - Assessee further claimed that demand notice was received on 5.2.2010 for period January 2005 to February 2005, a part of it being more than 5 years, hence, barred by limitation; this aspect also needs to be scrutinized: CESTAT - Matter remanded: AHMEDABAD CESTAT
CUSTOMS SECTION
2018-TIOL-902-CESTAT-DEL
CC Vs Showa India Pvt Ltd
Cus - Assessee engaged in manufacture of electric power steering system for automobiles and entered into Technical Collaboration Contract (TCC) and other agreements with their principal in Japan - Since the import made by assessee from principal falls within Rule 2(2) of Customs Valuation Rules, transaction value of such imports were examined by (SVB) regarding acceptability of transaction value - The dispute revolves around Article 19 of Technical Collaboration Contract - From perusal of Article 19, it is easy to see that documentation charge and initial fee payable for models of products are towards covering a part of development and documentation cost in relation to such models and not towards royalty - Payment of models specified in Article 19 is mandatory for procurement of Master Samples/Utility Models which serves as reference model for manufacture of components by M/s Showa India using technical assistance provided by M/s Showa Japan - It is obvious that unless such amounts are paid, assessee will not be entitled to import components on an ongoing basis - Further, such payments are to be made in terms of TCC and will not be payable as per the invoices issued at the time of import of such models - Requirement of Rule 10(1) (e) are satisfied and hence, such payments made are required to be loaded on to the invoice value of Masters Samples/Utility Models.
Whether such loading can be extended to imports already made for period prior to renewal of SVB order - Revenue has justified mis-declaration on the part of assesee and invoking extended period of limitation - Since the entire contract was in possession of Revenue at the time of issue of both SVB orders and there is no material change in the contract during the meantime, hence allegation of suppression cannot be upheld - Consequently, there can be no justification for loading the transaction value of models imported for the period prior to the issue of initial SVB circular: CESTAT - Appeal partly allowed: DELHI CESTAT
2018-TIOL-901-CESTAT-MAD
Tarajyot Polymers Ltd Vs CC
Cus - Assessee imported polyethylene / polypropylene under various Bills of Entry - Due to crash in prices of goods in international market, assessee approached the supplier for reduction in price and applied for amendment of bills on the basis of reduced price - The request for amendment of shipping bills was not accepted and they were directed to file appeals for the same - Commissioner (A) has observed that it is not required to give a personal hearing when an adverse order is passed on an appeal or application and if such order is passed after taking into consideration of all points raised - In any case, assessee ought to have been given a reasonable opportunity of personal hearing - Denial of such personal hearing is blatant violation of principles of natural justice for which reason, matter remanded to Commissioner (A): CESTAT - Matter remanded: CHENNAI CESTAT
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