SERVICE TAX SECTION

2018-TIOL-1022-CESTAT-MUM

ST - Issue is whether the time period for filing refund under Rule 5 i.e. one year from the date of invoice or from the receipt of convertible foreign exchange against the export of service. Held: Period involved is after 01.07.2012 - definition of 'export service' under rule 5 of CCR, 2004 was amended w.e.f 01.07.2012 - reading of rule 6A of the STR, 1994, indicates that as per sub-rule (1) clause (e), the payment for such service should be received by the provider of service in convertible foreign exchange - therefore, unless and until the payment consideration in convertible foreign exchange against the export of service is received, the export of service is not complete - accordingly, the relevant date of one year for filing of refund claim should be reckoned from the date of receipt of convertible foreign exchange - impugned order is upheld and Revenue's appeals are dismissed: CESTAT [para 4, 5] - Appeals dismissed: MUMBAI CESTAT

2018-TIOL-1021-CESTAT-MUM

ST - Appellant is providing Management, Maintenance or Repair Service inasmuch as they carry out maintenance and repair of streets, streetlights, water supply, drainage etc.; collect from the lessees of the plots, an annual fee for providing such services, calling it as service charge - case of the Revenue is that the appellant is liable to pay service tax on such service under the category of Maintenance, Management or Repair Service - appeal to CESTAT. Held: Issue involved in the present case has already been settled in appellant's favour by the Bombay High Court judgment dated 23.08.2017 in their own case [ 2017-TIOL-2629-HC-MUM-ST ] - following judicial discipline, impugned order set aside and appeal allowed: CESTAT [para 4] - Appeal allowed: MUMBAI CESTAT

CENTRAL EXCISE SECTION

2018-TIOL-1020-CESTAT-DEL

CX - Assessee is in appeal against impugned order for demanding duty, imposing penalty and confiscation of goods alleging that they are using the brand name of another person and clearing the goods on strength of parallel invoices - As regards to issue that they are using the brand name of others and they are not entitled to avail benefit of SSI exemption Notfn 08/2003-CE, M/s. TCL is issuing purchase order for supply of goods namely, Defoamer under the brand name Neelco - Neelco is the brand of M/s. NASCPL - As per assignment deed, assessee was entitled to use the said brand name - In that circumstance, it cannot be said that they are using the brand name of another person - Further, the similar issue came before Apex Court in case of Vikshara Trading & Invest Pvt. Limited 2003-TIOL-97-SC-CX wherein it is observed that if there was an assignment of trademark in fact of assessee, the mere fact that the assignment deed is not registered can not alter the position - In that circumstances, assessee is not using the brand name of another person but they are using their own brand name as assigned to them - In that circumstance, benefit of SSI exemption Notfn 08/2003-CE cannot be denied to assessee.

As regards to issue that assessee is clearing goods on the strength of parallel invoices clandestinely, without payment of duty, the invoices are to be raised on monthly basis as per the quantities received by M/s. TCL - Revenue has not come up with any positive evidence contrary to the explanation given by assessee - Therefore, Revenue has failed to come up with positive evidence in support of clandestine removal of goods - Allegation of clandestine removal is not sustainable when M/s. TCL itself has explained that the explanation given by assessee at the time of investigation is in terms of purchase agreement and monthly invoices has been raised as per purchase agreement - Same is supported by the decision of Golden Steel Corporation Limited 2017-TIOL-440-CESTAT-KOL - Further, same has been taken by Allahabad High Court in case of Continental Cement Company 2014-TIOL-1527-HC-ALL-CX - Demand on both the issues are not sustainable against assessee: CESTAT - Appeals allowed: DELHI CESTAT

2018-TIOL-1019-CESTAT-MAD

CX - Assessee engaged in manufacture of various products such as orange syrup and kasthuri pan pills - The dispute relate to two items namely 'Rose Syrup' and 'Sarasaparilla Syrup' - Assessee was clearing the products under chapter sub heading 2001.00 claiming Nil rate of duty whereas SCN was issued for different periods alleging that products are rightly to be classified under 2108 and demanding duty accordingly - It is not disputed that the products are made out of rose petals and nannari (roots) - Chapter Note 6 to Chapter 21 of tariff clearly states that syrup containing not less than 10% fruit juice or flavoured with non-fruit flavours such as rose, khus, kewara fall under 2108.00 - Thus following the decision laid down in Bectors Foods Specialities Pvt. Ltd. 2008-TIOL-2833-CESTAT-DEL , subject goods merit classification under 2108.20 as 'Sharbat' from 16.3.1995 onwards - Therefore, demand prior to 16.3.1995 is unsustainable and set aside - Consequently, the demand as well as interest raised after 16.3.95 is upheld - The issue being classification and interpretational one, penalties imposed are unwarranted and same is set aside - Assessee has to be given benefit of re-quantification on basis of cum duty price from 16.3.95 onwards classifying the goods as under 2108.00 - Matter remanded to adjudicating authority for limited purpose of re-quantification of duty giving the benefit of cum duty price to assessee: CESTAT - Appeals partly allowed: CHENNAI CESTAT

2018-TIOL-1018-CESTAT-ALL

CX - Main assessee was engaged in manufacture of "Indian Katha" from Khair Wood attracting nil rate of duty - Said goods were manufactured by addition of catechins which were extracts from a plant called Gambier - The main assessee used to import gambier extract which contained catechins and tannins - Tannins are not required in Indian Katha, therefore, catechins and tannins were required to be separated from gambier extract and the work of extracting catechins from gambier extract was assigned to Bareilly Chemicals Private Ltd., a registered Private Limited Company - It appeared to Revenue that extraction of catechin from gambier extract amounted to manufacture - Assessee has submitted that through various contracts such as entered on 26 February, 1998 and 03 July, 2003 between them and Bareilly Chemicals Pvt. Ltd., the contract was for manufacture on principal to principal basis and by no stretch of imagination a registered private limited company can be considered to be equal to hired labourers and, therefore, he submitted that as clarified by CBEC in Circular dated 14.09.1995 in view of such finding by Tribunal, they could not be treated as manufacturer but Bareilly Chemicals Pvt. Ltd. was only required to be treated as manufacturer - The liability to pay Central Excise Duty on catechins manufactured by Bareilly Chemicals Pvt. Ltd was not on M/s Indian Wood Products Company Ltd - Therefore impugned order in respect of demand of duty and imposition of penalties set aside - Since demand of duty does not survive the question of interest does not arise: CESTAT - Appeals allowed: ALLAHABAD CESTAT

TD Cementation India Ltd Vs State of Tamil Nadu

Whether the Sales tax Tribunal can rely on certificate issued by Chartered Accountant for calculating gross profit, where the P&L a/c and balance sheet is also verified, and where a well-reasoned order is passed - YES : HC - Assessee's Appeal Dismissed: MADRAS HIGH COURT

2018-TIOL-550-HC-MAD-PMLA

PMLA - the petitioners herein are partners in a firm, accused of money laundering - Summons were served u/s 50(2) & 50(3) of the Act to answer queries, upon which a case of money laundering was registered & investigations were launched - Hence the present writ was filed seeking to set aside such proceedings, claiming that the respondent herein lacked the authority to register a complaint and that Section 3 of the Act was inapplicable to them - The petitioners further claimed there to be no material showing that its properties were proceeds of crime.

Held - considered the provisions of Sections 2(u), 3 and 5(5) of the Act - The petitioners were given an opportunity u/s 50 - Also, the Department claimed to have prima facie material proving that the property possessed by the petitioners were proceeds of crime - Based on such material, complaint was filed & investigation was launched - Hence, it cannot be construed that the authorities lack power u/s 3 or 5 to proceed against the petitioners or that the complaint itself is bereft of material - The petitioners must participate in the enquiry, on completion of which it is open to them to approach the appropriate forum for redressal of grievances, if any: High Court (Para 1,3,4) - Writ Petitions Dismissed: MADRAS HIGH COURT