SERVICE TAX SECTION

Punjab State Warehousing Corporation Vs CCE

ST - Assessee is an undertaking of Government of Punjab and owner of warehouses which have been rented by them to Food Corporation of India for storage of food grains - Case of department is that the activity of letting out warehouses to FCI would attract service tax under section 65 (105 (zzzz) of FA, 1994 as renting of immovable property for business or commerce - As assessee is providing various other services apart from the space for storage, therefore, the services appropriately fall under category of Storage and Warehousing Services - Further, as these services are for agricultural produce, therefore, assessee is not liable to pay service tax on Storage and Warehousing which has been exempted from service tax as per section 65 (105) zza) of FA, 1994 - Assessee is not required to pay service tax on their activity: CESTAT - Appeals allowed: CHANDIGARH CESTAT

2018-TIOL-912-CESTAT-BANG

ST - Appeal is directed against impugned order whereby Commissioner (A) has upheld the finding of Asst. Commissioner relating to Export Turn Over (ETO) and Total Turnover (TTO) for purpose of calculating the refund amount - Assessee during the relevant period has only ETO, therefore, reimbursement of expenses has to be excluded from ETO as well as TTO and only then it will give the fair results - Therefore, both the authorities had wrongly applied the formula as prescribed under Rule 5(1)(E) of CCR, 2004 read with Notfn 27/2012-CE(NT) - In view of wrong application of formula, the refund has been rejected - In view of these facts, case needs to be remanded back to original authority to recompute the TTO as per Rule 5(1)(E) read with said Notfn: CESTAT - Matter remanded: BANGALORE CESTAT

CENTRAL EXCISE SECTION

Subhash Metal Industries Vs CCE

CX - Case against assessee was detected by department based on some intelligence that they were clearing copper/ brass rods plates and parts without payment of duty either under parallel invoices or forge invoices - Department intercepted a tempo outside the factory premises and came to a conclusion that the said invoices which was prepared is of parallel nature and debits were not made in statutory records - It is the case of assessee that lower authorities have not adduced any corroborative evidences of clandestine removal, which seems to be correct, if delivery challans were there, definitely the departmental officers would have caught hold of at least one of the purchasers whose name and address would be present on the said challans - The First Appellate Authority in impugned order has recorded that all these materials were clandestinely removed to their Head Office from where the sale took place; investigating authority despite visiting the Bombay office of the main assessee has not brought on record or statements of the individuals who would have definitely known purchasers to whom they have sold the goods on cash basis - Assessee's plea that as to there is no excess purchase or consumption of exercise and movement of materials and in the absence of any purchasers of the clandestinely removed goods, demand cannot be confirmed is not been addressed at all by First Appellate Authority in impugned order - In recent judgment of High Court of Gujarat in case of jai Bhawani Metal Industries 2016-TIOL-904-HC-AHM-CX held that in absence of any corroborative evidences, charge of clandestine removal cannot be upheld - Same is the view expressed by High Court of Gujarat in case of Sakeen Alloys Ltd. and upheld by Apex Court - Impugned order is unsustainable and set aside: CESTAT - Appeals allowed: AHMEDABAD CESTAT

2018-TIOL-915-CESTAT-ALL

CX - The dispute is about rate of duty on DTA clearances in terms of exemption under Notfn 23/03-CE - According to assessee, they are covered by Sl. No.3 of table to the notfn as goods have been manufactured wholly from the raw material produced or manufactured in India and accordingly duty payable on DTA clearances would be equal to the duties of excise payable under Section 3 of CEA, 1944 or any other law for the time being in force, on like goods produced or manufactured in India - However, according to Revenue, in view of Explanation II(ii) to said notification, the PSF received from M/s Indo Rama Synthetics under Deemed export benefit is deemed to be imported goods and hence not manufactured in India and therefore, rate of duty applicable would be the rate specified in Sl.No.2 of the table to the notfn i.e. 50% of aggregate of duties of customs - On this basis, a SCN was issued to assessee - M/s Indo Rama Synthetics (I) Ltd. has availed benefit of deemed export under said paragraphs of the Exim Policy and therefore, under said Explanation (ii) the supply received by assessee company were imported goods - Therefore, condition under Sl. No. 3 is not satisfied and therefore the benefit of exemption at Sl. No.3 is not admissible to assessee company - Since the matter was related to interpretation of notfn, therefore, there was no malafide on the part of assessee - Therefore, penalty imposed under Section 11AC set aside and also personal penalty of Rs.1 lakh imposed on Shri V.P. Yadav set aside - In so far as the demand of duty is concerned the impugned Order-in-Original is affirmed: CESTAT - Appeals partly allowed: ALLAHABAD CESTAT

2018-TIOL-914-CESTAT-ALL

CX - Assessees herein are aggrieved by the same issues, and contest two orders-in-original - The main assessee manufactured Menthol Crystal & Menthol Powders, Menthol Solution & De-mentholized Oil (DMO), Pepper Mint Oil, Menthones and Terpine and availed Cenvat credit on inputs used to manufacture these items - The assessee also availed credit on inputs received from other parties - The main assessee used such credit to pay duty on goods manufactured by it - On investigation by the Revenue, credit availed by the main assessee on inputs received from an entity based in Jammu, were scrutinized - The Revenue claimed that such entity availed benefit under Notifications No. 56/2002-CE & 57/2002-CE - Such Notfn provides for refund of duty paid through PLA to units manufacturing goods in J&K - Simultaneously manufacturers receiving input goods from units in J&K were allowed credit of entire duty paid - The Revenue sought to recover credit availed on inputs procured from Jammu-based suppliers - The Revenue further alleged fraudulent availement of credit, on grounds that the inputs were not actually manufactured by the entities supplying them - It alleged that these entities neither procured raw-materials nor had capacity to manufacture & so did manufacture the inputs procured by the assessee - Hence credit availed was held to be inadmissible - The Revenue's allegations were confirmed by the Orders-in-Original in question - Duty demands were raised and penalties were imposed on the assessee and those entities which supplied inputs to it - The evidence supplied by the assessee to prove that the inputs were being manufactured by the entities supplying them was not accepted on grounds that the jurisdictional Commr. himself did not witness the manufacture process - Such logic is flawed - The present system of assessment is record-based & assessing officer is not required to witness the manufacture process - The adjudication has to be done based on evidence submitted to the Adjudicating Authority - Considering provisions of the Evidence Act, any evidence in totality must be considered - Hence the orders-in-original are unsustainable, being based on a lack of understanding of the assessment or adjudication process - The Revenue did not investigate from where the assessee received the inputs - Besides, evidence submitted by the assessee indicated that in respect of units in Jammu, Revenue officers visited the factory premises and seen that the manufacturing process - The Original Authority was obliged to accept such evidenace and not discard it - Further the receipt of inputs was verified by the Revenue officers & samples were drawn and forwarded for chemical examination - Such evidence too was not considered - Hence the adjudication was pre-determined and not conducted in fair manner - Hence duty demands with penalties set aside: CESTAT - Appeals Allowed: ALLAHABAD CESTAT

KK Ramesh Vs UoI

GST – Petitioner seeks inclusion of Petrol and diesel under GST on the ground that although International market price of crude oil per barrel is very low an exorbitant increase in the selling price of petroleum products directly affects the common man for the reason that most of the goods are transported through road/service transport and any increase in price of the fuel is bound to increase the selling price of the commodities, especially essential commodities and it is high time that the petrol and diesel prices should be brought within the ambit of Goods and Service Tax (GST); that though the petitioner has submitted a representation dated 16.06.2017 to the respondents and inspite of receipt and acknowledgment, no response is forthcoming, hence petitioner before High Court. Held: Goods and Services Tax council is having representation of the State Governments also and, therefore, their views have also to be elicited, before the Goods and Services Tax council take a call as to bring the petrol and diesel within the ambit of Goods and Services Tax - it is the prerogative of the Central Government to take a call on the basis of the recommendations of the Goods and Services Tax council - it is a well-settled position of law that “it is not for the Court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair” and that Court can interfere only when it is found to be arbitrary or based on an irrelevant consideration or malafide or against any statutory provisions – High Court is not in a position to issue any positive direction to the respondents to consider the prayer sought for by the petitioner – Petition dismissed: HC [para 12 to 18] - Petition dismissed: MADRAS HIGH COURT

2018-TIOL-493-HC-MAD-VAT

Eastern Chrome Tanning Corporation Ltd Vs Assistant Commissioner (CT)

Whether when the AO fails to initiate any action on the assessee's revision petition for assessment, which resulted into issuance of recovery notice, same requires to be set aside and matter warrant reassessment - YES: HC - Assessee's writ petition allowed: MADRAS HIGH COURT