SERVICE TAX SECTION

2018-TIOL-1099-CESTAT-MUM + Story

Elephant Lashing Vs CCE & ST

ST - BAS - Assessing authority is required to determine the specific characteristic of the service which is a necessary pre-requisite for fastening liability -- moreover, Port Trust has engaged the services of the appellant and that appellant is in receipt of consideration from the Port Trust - In these circumstances, the existence of third party in transaction, which is a necessary element for coverage under section 65(105)(zzb) read with section 65(19) of Finance Act, 1994 is questionable -- impugned order set aside and appeal allowed: CESTAT [para 4] - Appeal allowed : MUMBAI CESTAT

Swastik Enterprises Vs CCE

ST - the assessee-company entered into contract for transportation of goods and cargo handling services - While the assessee claimed that considering the agreement, the service was taxable under GTA service, the Revenue claimed that it was taxable under Cargo Handling service - Held - The adjudicating authority specifically noted that over and above the GTA service, the assessee provided services relating to loading, unloading of wagons, stacking and de-stacking - Besides it separately charged for these services, such services merit consideration as cargo handling service - However, there are no findings w.r.t. distance covered for transportation of goods - Also considering the decision of the Tribunal in Arvind Singh , no suppression or misstatement can be alleged against the assessee, which justfies invoking extended limitation to isse SCN - Hence demand limited to normal period: CESTAT (Para 2,4,5) - Appeal Partly Allowed : DELHI CESTAT

2018-TIOL-1091-CESTAT-DEL

ST - Assessee engaged in business of refining and distribution of petroleum products through a network of depots/installations - They entered into contractual arrangement with M/s. IGL, who were engaged in manufacture of CNG from natural gas and its further distribution in and around Delhi - IGL supplied CNG to various similarly placed Public Sector Undertakings Oil Companies including the assessee - Revenue entertained the view that considerations received by assessee from IGL are in the nature of commission for rendering BAS in terms of Section 65(19) of FA, 1994 - Similar set of facts in respect of assessee 's own case in Mumbai and for IOCL with IGL has been a subject matter of decisions of Tribunal - In case of Indian Oil Corporation 2017-TIOL-4373-CESTAT-DEL , Tribunal examined on an identical agreement of IGL with IOCL and the demand of service tax under "BAS" was set aside by Tribunal - The transaction between IGL and assessee are on principal to principal basis - The assessee has been prohibited from holding himself as an agent of IGL - The agreement categorically states that the same is on principal to principal basis - Considering the ratio of decisions of Tribunal, service tax liability under BAS cannot be sustained against assessee, same is set aside: CESTAT - Appeal allowed : DELHI CESTAT

2018-TIOL-1090-CESTAT-MAD

Thirumala Enterprises Vs CCE

ST - Assessee had entered into an agreement with M/s. MALCO to carry out mining services - Department took the view that these activities would fall within the fold of BAS and in proceedings initiated against assessee, confirmed the tax liability with interest thereof and imposition of penalties against them - Tribunal in case of Thiriveni Earthmovers Pvt. Ltd. 2009-TIOL-683-CESTAT-MAD had held that activity of loading and transportation of limestone and from mine head to crushing premises under taken within mining area and covered by Mines Act, 1952 would not be taxable under BAS - Issue is squarely covered by ratio of said decision - This being so, impugned order upholding the levy of service tax as BAS cannot then be sustained: CESTAT - Appeal allowed : CHENNAI CESTAT

CENTRAL EXCISE SECTION

2018-TIOL-626-HC-DEL-CX + Story

Golden Tobacco Ltd Vs CST

CX - Conduct of appellant lacks bonafide and manifests recklessness - This careless attitude and indifference is unacceptable ? 22 years delay in filing application for restoration of appeal rightly rejected by Tribunal: High Court - Appeal dismissed : DELHI HIGH COURT

2018-TIOL-1089-CESTAT-MUM + Story

CX – Rule 2(l) of CCR, 2004 - Appellant sourcing 'emergency response vehicles' while handling hydrocarbons which are inflammable and combustible – Service Tax paid on such vehicles availed as CENVAT credit – Department denying the same on the ground that 'rent-a-cab' service is excluded from the definition of 'Input service' w.e.f 01.04.2011 – appeal to CESTAT. Held: Even if the distinction between 'hire' and 'renting' is ignored, it is clear that the service availed by the appellant is not that of 'rent-a-cab' - hiring of vehicles does not render provider of vehicles to be taxed as provider of 'rent-a-cab service' - Consequently, the disallowance of CENVAT credit and the resultant recovery of duty will not sustain – Impugned order set aside and appeal allowed: CESTAT [para 4, 5] - Appeal allowed : MUMBAI CESTAT

2018-TIOL-1088-CESTAT-AHM

Nico Extrusion Pvt Ltd Vs CCE & ST

CX - Assessee is in appeal against impugned order wherein demand of interest for intervening period has been confirmed and penalties on both the assessees have been imposed - For demand of interest, revenue relied on decision of Apex Court in case of Ind-Swift Laboratories Ltd 2011-TIOL-21-SC-CX - In said case, the facts are that assessee availed cenvat credit on the strength of fake invoices which is not facts of the case in hand - In that circumstances, decision of Ind-Swift Laboratories Ltd. cannot be relied to the facts of the case - Moreover, the judgement of Karnataka High Court in case of Bill Forge Pvt Ltd. 2011-TIOL-799-HC-KAR-CX has examined the decision of Apex Court in case of Ind-Swift Laboratories Ltd and held that during intervening period, if there is a sufficient balance in cenvat credit account, demand of interest is not sustainable - Therefore, relying on decision of Karnataka High Court in case of Bill Forge Pvt. Ltd for the intervening period, assessee is not required to pay interest - As, it is the fact on record that statutory records of assessee were seized in year 2006 itself and assessee has not availed cenvat credit on any fake invoices - In that circumstances, penalties on both assessees are not imposable - Moreover, the fact was in knowledge to department for availing inadmissible credit in month of October 2010 itself but, SCN has been issued after three years which is highly barred by limitation - Therefore, penalties on both the assessees are not imposable: CESTAT - Appeal allowed : AHMEDABAD CESTAT

2018-TIOL-1087-CESTAT-AHM

CX - Assessee for the manufacture of textile fabrics procured Polyester Staple Fibre (PSF) without payment of duty in accordance with provision of Rule 191 BB of erstwhile CER, 1944 read with Notfn 33/90-CE (NT) - Since the quantity of PSF were being not used in manufacture of finished product, accordingly, demand notice was issued - The matter reached before Tribunal and the Tribunal vide its order dated 30.6.2003 observed that the demand under Rule 9(2) of erstwhile CER, 1944 for recovery of duty on PSF from assessee is unsustainable - Pursuant to the Order of Tribunal, Department has enforced three Bonds after furnishing the details of such Bonds and the conditions thereof appended to the Notification - The said Bonds have been appropriated against the refund amount of Rs.17,34,292/- - The contention of assessee that the observation of Tribunal in its order should not be followed, is misplaced, inasmuch as, no appeal has been filed by either sides and the said order has been pursued by assessee in various forums - In the result, impugned order is upheld: CESTAT - Appeal rejected : AHMEDABAD CESTAT

2018-TIOL-1086-CESTAT-ALL

CX - Assessee engaged in manufacture of electric transformer and enter into agreements with their customer for delivering the transformers at their premises - Assessee arrange for transportation of goods and pays service tax on transportation charges paid to transport operator - The impugned order in appeal upholds disallowance of credit, on the ground that the said activity of transportation of goods does not fall in definition of input service - In view of provisions of Rule 2(i)(d) of STR, 1994, it is the obligation of service receiver namely the Power Corporation which is liable to service tax - Thus, assessee was not liable to pay service tax under the scheme of the Act and the Rules and particularly as clarified vide Notfn 25/2012-ST - Taking notice that assessee is in status of GTA, accordingly, service tax of Rs. 13,11,933/- paid by them is an excess payment, service tax liable to be refunded to assessee, thus, the action of assessee of taking credit of the service tax so paid does not call for any adverse action on them - Accordingly, impugned order is set aside: CESTAT - Appeal allowed : ALLAHABAD CESTAT

2018-TIOL-1085-CESTAT-ALL

CX - the assessee-company manufactured Excavators, Backhoe Loaders & Skid Steer - The Revenue alleged that the assessee availed credit on service tax paid by service centres for providing free services during warranty period to vehicle buyers - The Revenue also claimed that the assessee provided certain services during the warranty period on the vehicles - The Revenue also observed that dealers were levied charges for free services provided during warranty period from the assessee and paid service tax thereon - Thus the Revenue sought to disallow the credit claimed on grounds that there were post-sale services, which would not classify as input services - Held - Considered relevant findings in the assessee's own case in Final Order No.70050-70051/2015 dated 20.10.2015 - The service centers of dealers provide services on behalf of the assessee, which were to be considered as input services to the assessee, because the vehicles sold by the assessee have free service during warranty period - Hence, Cenvat credit on these services cannot be denied to the assessee - Orders denying credit are set aside: CESTAT (Para 2,4,5) - Appeal allowed : ALLAHABAD CESTAT