SERVICE TAX SECTION

2018-TIOL-1123-CESTAT-MUM + Story

Messung Systems Vs CCE & ST

ST - Sale of SCADA software – service tax demand is not on sale of software but on services rendered by the Appellant post sales and the demand on the same has been correctly made under the category of "Information Technology Software Services" – as there was no attempt on the part of the Appellant to suppress the facts of services in question, extended period of limitation is not invokable – penalty is also waived in terms of section 80 of the FA, 1994 – appeal partly allowed by confirmed demand for the normal period of limitation along with interest: CESTAT [para 4] - Appeal partly allowed: MUMBAI CESTAT

2018-TIOL-1122-CESTAT-BANG

Ikanos Communication (India) Pvt Ltd Vs CST

ST - Assessee had filed a refund claim under Rule 5 of CCR, 2004 r/w Notfn 05/006-CE for unutilized cenvat credit of service tax paid on input services used for export of Information Technology Software Services - Same was rejected - Similar issue came up before Tribunal in assessee's own case for earlier period and Tribunal vide Order dated 05.12.2016 allowed the refund claim - At the time of availment of cenvat credit, it was not disputed by Revenue that these services are not 'input services' - In the circumstances, at the time of claiming refund claim, cenvat credit cannot be denied - Refund claim of unutilized cenvat credit allowed in their cenvat credit account: CESTAT - Appeals allowed: BANGALORE CESTAT

2018-TIOL-1121-CESTAT-MAD

Indus City Scapes Constructions Pvt Ltd Vs CST

ST - Assessee engaged in business of construction of residential complex service - In year 2013, assessee sought to avail benefit of one time declaration and waiver of interest and immunity from penalty by filing prescribed declaration under VCES on 27.12.2013 - The issue posing for consideration is whether the SCN proposing to reject VCES declaration, issued after a period 30 days from the date of filing of VCES declaration is sustainable - Tribunal in case of Siddhi Vinayaka Enterprises Pvt. Ltd. 2016-TIOL-1325-CESTAT-DEL relied upon Board's Circular 169/4/2013-ST and held that SCN issued after a period of 30 days is non-est - Following said decisions, SCN issued after a period of 30 days of declaration filed under VCES is unsustainable - Impugned order is set aside: CESTAT - Appeal allowed: CHENNAI CESTAT

CENTRAL EXCISE SECTION

2018-TIOL-1129-CESTAT-MUM + Story

Standard Alkali Vs CCE

CX - Valuation - Section 4 of the CEA, 1944 - Hydrogen gas is supplied by appellant to NOCIL through pipelines owned by them - operation and maintenance of pipeline is not related with transportation, therefore, charges recovered are includible in Assessable value - as purchase orders of NOCIL were mentioning about separate recovery of maintenance and operation charges, it cannot be said that appellant had suppressed facts with intention to evade payment of duty - moreover records were audited by department - demand upheld for normal period of limitation - penalty imposed u/s 11AC set aside - Appeal partly allowed: CESTAT [para 4] - Appeal partly allowed: MUMBAI CESTAT

2018-TIOL-1128-CESTAT-DEL

Hershey India Pvt Ltd Vs CCE & ST

CX - Assessee engaged in manufacture of ready to drink Ice Tea under brand names "Tealite Lemon" and "Tealite Apple" as per an agreement with M/s Zydus Wellness Ltd. - Assessee has manufactured and supplied goods in terms of agreement, at prices included in agreement as per negotiation between the two parties - Claim of assessee is that the goods have been manufactured and supplied on principal to principal basis whereas Revenue, after referring the various clauses of agreement, have concluded that the transactions are in nature of job work as outlined in Rule 10 A of CER, 2000 - In terms of agreement, it is evident that assessee is required to manufacture goods exclusively for M/s Zydus, and using their specifications as an agent of M/s Zydus, and using the technical knowhow relating to product which will be supplied by M/s Zydus - It is evident from clause 4.1 of agreement that goods are to be manufactured from inputs supplied by suppliers identified by M/s Zydus which clearly satisfies as the third condition in the Explanation to Rule 10A - Goods have been manufactured by assessee as a job worker on behalf of M/s Zydus - From the price agreed between two parties it is obvious that various elements of cost which clearly are required to be included in selling price of manufactured product have not been included - Once it is concluded that assessee has acted as a job worker for M/s Zydus the mischief of Rule 10A of Valuation Rules becomes applicable and the goods are required to valued on the basis of price at which principal manufacturer, M/s Zydus sells such goods from their depot: CESTAT - Appeal dismissed: DELHI CESTAT

2018-TIOL-1127-CESTAT-DEL

Kamdhenu Ltd Vs CCE & ST

CX - the assessee-company manufactures paints - For promoting sales, it engaged commission agents & paid commission to them - However when the assessee claimed Cenvat credit on such commission paid, the same was denied -

Held - The issue at hand stands settled by the Tribunal's decision in M/s. J K Lakshmi Cement Ltd. - Following relevant findings recorded therein, the assessee's claim for Cenvat credit is allowed: CESTAT (Para 2,5,6) - Appeals Allowed: DELHI CESTAT

2018-TIOL-1126-CESTAT-BANG

Parrys Sugar Industries Ltd Vs CCE, C & ST

CX - Assessee is manufacturers of sugar and molasses and are availing benefit of cenvat credit on inputs, input services and capital goods - During audit, it was noticed that assessee have availed cenvat credit of service tax paid on canteen construction and sales commission - It appeared that the credit so availed does not fall within ambit of "input services" and assessee were asked to reverse the same - In impugned order, Commissioner(A) has categorically held that there was no intention to suppress and assessee has shown the CENVAT credit availed in their books of accounts and in the returns filed by them from time to time - Further, Commissioner (A) has also dropped the penalty by holding that there is no suppression on the part of assessee - In view of this finding, entire demand is barred by time as there is no mala fide intention on the part of assessee to avail an irregular credit - Though assessee has tried to justify the availment of credit on merit also, but once entire demand is barred by time, then in that case, no need to go into the merit of eligibility of credit - Case of assessee is squarely covered by various decisions wherein it has been categorically held that demand is time barred when demand is raised on the basis of assessee's records and there is no suppression with intent to evade payment of duty: CESTAT - Appeal allowed: BANGALORE CESTAT

2018-TIOL-1125-CESTAT-MAD

Nexus Electro Steel Ltd Vs CCE

CX - M/s. Crompton Greaves Ltd. had placed purchase orders with assessee for supply of "CRGO laminations" and in terms of said purchase orders, M/s. CGL were issuing invalidation letters in respect of their Advance Licence, so as to enable the assessee to import raw material without payment of entire Customs duty against Advance Licence - Thus, assessee imported raw materials and it appeared to department that there was a flow of additional consideration to assessee from M/s. CGL - On irregularity being pointed out to assessee, they debited an amount in their Cenvat account and also paid interest treating the Basic Customs duty and Customs Cess as additional consideration - They failed to pay additional duty accruing from inclusion of remaining portion of Customs duty, namely, CVD, Cess and SAD in assessable value in terms of Rule 6 of Central Excise (Valuation) Rules towards additional consideration - After adjudication, original authority observed that assessee have correctly paid an amount of Rs.19,16,871/- towards differential duty on the additional consideration accruing to them and dropped the demand of Rs.68,70,945/- - However, Commissioner imposed a penalty of Rs.2,00,000/- - It is indeed correct that Commissioner has found that assessee have paid correctly differential duty of Rs.19,616,871/- and dropped the demand raised in SCN - Hence, imposition of penalty is unwarranted and same is set aside: CESTAT - Appeal allowed: CHENNAI CESTAT

2018-TIOL-1124-CESTAT-MAD

Chola Pumps Pvt Ltd Vs CCE & ST

CX - Assessee engaged in manufacture of power driven pumps under brand name 'CRI' belonging to others along with their own brand name 'AKASH' and they were availing SSI exemption under the Notfn 9/2003-CE - It appeared to department that CRI-AKASH also belongs to assessee and that they have crossed the exemption limit and hence they are required to discharge differential Central Excise duty liability - During course of investigation, assessee had paid an amount for the period 2001-02 and 2002-03 - The assessee then subsequently filed a refund claim on 07.05.2004 - Same was rejected only on the ground of limitation - Any person seeking refund under Section 11 B of CEA, 1944 has to do so within a period of one year from the relevant date - There is no speaking order issued in this case - Notwithstanding the protestations of revenue, the letter dated 25.06.2004 cannot be considered as an order or decision in respect of the refund claim that could have been appealed against by assessee - This being so, the date of initial filing of the refund claim, viz., 07.05.2004 will then necessarily have to be considered as the date of filing of the claim - Once the relevant date is taken as 07.05.2004, the refund claim is found to be filed within the period prescribed under Section 11 B ibid - In arriving at this conclusion, sustenance drawn from the decision of Tribunal in case of DCM Shriram Consolidated Ltd. 2016-TIOL-2506-CESTAT-DEL - O rder of Commissioner (A) upholding the rejection of refund claim by original authority on the ground of limitation cannot sustain: CESTAT - Appeal allowed: CHENNAI CESTAT