SERVICE TAX SECTION

Vatsal Construction Company Vs CCE

ST - Assessee had filed a refund claim for an amount being service tax paid in respect of services provided to various municipal/ Govt. Organizations which became exempted retrospectively by virtue of Section 102(1) of FA, 2016 - The authorities below had sanctioned refund claim of Rs. 24,14,667/- paid through cash, however, rejected the refund amount of Rs. 18,25,194/- paid by way of debiting their Cenvat credit account, observing that such refund would result in double benefit to assessee - Nowhere under the said Finance Act, mode of payment of service tax, was a condition for allowing refund of the amount of service tax paid during the period in question - Therefore, it is difficult to appreciate how double benefit of refund allowed under Sec.102(2) would accrue to assessee once the amount paid by utilizing Cenvat credit if now refunded to their Cenvat credit account only - Further, there is no allegation on the aspect of eligibility of CENVAT credit availed and utilized by them during the said period - Impugned order set aside: CESTAT - Appeal allowed: AHMEDABAD CESTAT

2018-TIOL-973-CESTAT-MAD

ST - Assessee offer services like Computer Graphics, Digital Restoration and Reverse Telecine - Dispute relates to such services provided by assessee to customers outside India - Whereas the assessee sought to cover the services under BAS, department however took the view that they are in nature of "Video Tape Production Services" - It is clear that services performed by assessee definitely do not involve his recording of any programme, event or function - In fact, this aspect has been considered even by adjudicating authority - The activities of services of Computer Graphics, Digital Restoration, and Reverse Telecine all involving activities on old feature films is definitely a post-production film activity inter alia, rendered for service recipients abroad as per their requirements - Ostensibly, department and adjudicating authority have been influenced by second limb of definition of "Video Tape Production" in Section 65 (120) of the Act - The definitions have to be read in totality and part thereof cannot be picked up to justify that the activities performed will come under "Video Tape Production Services" - The definition of "Video Tape Production Service" is very clear and does not offer any ambiguity - Services provided by assessee will certainly not fall under ambit of "Video Tape Production Services": CESTAT - Appeal allowed: CHENNAI CESTAT

CENTRAL EXCISE SECTION

2018-TIOL-986-CESTAT-MUM + Story

CX - CENVAT - Rule 2(l) of CCR, 2004 - Input sevice - Legal services availed for defending suit filed against Chief Executive of the company are Input services - legal services were rendered to defend the plaint against alleged theft of technical know-how - same was necessary for the continuation of the production facility of the appellant and hence the nexus with the manufacturing process is undeniable - impugned order set aside and appeal allowed: CESTAT [para 5] -Appeal allowed : MUMBAI CESTAT  

2018-TIOL-979-CESTAT-MUM + Story

CX - Refund of PLA balance - Amount in PLA is ‘duty waiting to be debited' and not ‘duty', therefore, provisions of section 11B of CEA, 1944 would not apply - if PLA balance cannot be utilized, depositor is to be held as owner and the same is required to be refunded in the absence of any limitation prescribed under the Act for such refund - Impugned order set aside and appeal allowed: CESTAT [para 3, 4] - Appeal allowed: MUMBAI CESTAT

2018-TIOL-978-CESTAT-MUM

CX - Rule 5 of CCR, 2004 - Refund of CENVAT credit accumulated due to export of goods - Application for refund filed on 13 May 2013 in respect of period April 2012 to June 2012 - claim rejected on ground of limitation by observing that claim should have been filed within one year from relevant date viz. from the date of the first export on 07.04.2012 - Commissioner(A) holding that the appellant is required to file claims only once in every quarter and the opportunity for exports exists till the last date of the quarter; adoption of any other date as ‘relevant date' would detract from the period prescribed in section 11B of CEA, 1944 - Revenue in appeal before CESTAT.

Held: Law is now well-settled that the relevant date cannot be prior to the last possible date of exports pertaining to the quarter for which refund is claimed - no justification for disputing the order of the Commissioner(A) - Revenue appeal is, therefore, dismissed: CESTAT [para 4, 5] - Appeal dismissed: MUMBAI CESTAT

2018-TIOL-977-CESTAT-MUM

CX - Refund - Section 11B of the CEA, 1944 - Appellant, a mnufacturer of 'sugar' and 'molasses' - 'bagasse' and other materials emanating from the production process were cleared without payment of duty between May 2008 and September 2009 - Revenue seeking demand of 5% of the value of the 'exempted' bagasse etc. in terms of rule 6 of CCR, 2004 - Matter reached Tribunal and relying upon the Allahabad High Court decision in Balrampur Chini Mills - 2013-TIOL-557-HC-ALL-CX , demand set aside - refund pursuant to this decision rejected on ground of unjust enrichment - two other refund claims of Rs.11,46,852/- and Rs.3,95,154/- rejected on the ground that they were premature inasmuch as no cause of action had arisen for claiming these refunds.

Held: Rejection of refund claims of Rs.11,46,852/- and Rs.3,95,154/- is proper as refund can be claimed only upon consequence of a decision in these two disputes - as regards ground taken of unjust enrichment for transfer of refund claim to Consumer Welfare fund, appellant had submitted evidence in the form of a Chartered Accountant certificate for not having passed on the burden of payment discharged u/r 6 of CCR, 2004 - moreover, this was not a duty that could have been availed as credit by the buyer of waste products - rejection of this refund claim of Rs.13,12,107/- is without authority of law, hence set aside: CESTAT [para 8, 9] - Appeal partly allowed: MUMBAI CESTAT

2018-TIOL-976-CESTAT-MUM

CX - Refund claim made under rule 5 of CCR, 2004 was rejected on the ground that the credit was availed when the appellant's unit was a DTA and which was subsequently converted into a 100% EOU - appeal to CESTAT.

Held: Identical issue has been decided in the appellant's own case reported as - 2014-TIOL-108-CESTAT-MUM , therefore, the issue is no longer res integra - moreover, the issue raised of unjust enrichment by original authority is not applicable as the refund claim is against the export of goods - appellant is entitled to refund subject to verification of documents by sanctioning authority - appeals allowed: CESTAT [para 4] - Appeals allowed: MUMBAI CESTAT

2018-TIOL-975-CESTAT-MUM

CX - SCN was issued alleging that the appellant had availed credit on the basis of invoices issued by Shreeji Aluminium Pvt. Ltd. without actual receipt of goods - demand confirmed along with imposition of penalties on appellant, supplier and transporter etc. - appeal to CESTAT.

Held: Appellant has been regularly procuring rejected hollow profiles from M/s Shreeji Aluminium and the same has been recorded as scrap by them and which is subsequently used for manufacture of Ingots - statements of the consignee of the goods and the consignor are exculpatory as they have clearly stated that the goods were received by the consignee - therefore, only for the reason that the transporter refused the transportation of goods or that invoices were not appearing in gate register or no GRN was prepared by appellant, credit cannot be denied - goods stands recorded in raw material account of the consignee and the payment towards purchase was made through banks - there is no flowback of consideration to appellant - In such facts, there is no reason to disallow credit - Consequently, penalty imposed on all Appellants is also not sustainable - impugned order set aside and appeals allowed: CESTAT [para 5] - Appeals allowed: MUMBAI CESTAT