SERVICE TAX SECTION

DCB Bank Ltd Vs CST

ST - Appellant had informed the department that they have adjusted the excess payment of service tax by filing revised service tax returns - inspite of that the department did not issue any show-cause notice for more than three years - department has not been able to bring on record any material which says that there was suppression of fact on the part of the appellant with intention to evade payment of service tax - without going into the merits of the case, held that the entire demand is barred by limitation of time - impugned order set aside and appeal allowed with consequential relief, if any: CESTAT [para 6] - Appeal allowed: MUMBAI CESTAT

2018-TIOL-1153-CESTAT-DEL

Jindal Water Infrastructure Ltd Vs CCE & ST

ST - Assessee engaged in supply and erection of raw water piping and pumping system for M/s Raj West Power Limited and Common Effluent Treatment Plant and RO System for ELDCO SIDCUL Industrial Park at Sitarganj in Rajasthan - Revenue entertained a view that assessee is liable to service tax under works contract service and for the same, gross value which includes materials supplied also should have been considered byassessee - Similar is the case for the second project of affluent treatment plant executed at Sitarganj Industrial Park - Here also assessee admitted the tax liability only on civil work part of contract claiming that supply contract is separate and the value of supplied materials need not be included for service tax purpose - Main focus of dispute is with reference to the claim of assessee that they had separate contracts -one for supply of materials and another for execution of work either for erecting piping and pumping of raw water supply or for effluent treatment for two clients - Assessee had shown two contracts in respect of Barmer Project - One is claimed to be supply contract and another is claimed to be erection contract - There is a coordination agreement dated 30/08/2007 - While examining the two contracts, except for substitution of word "contractor" for "supplier" the warranty or defects liability condition mentioned in Clause 34 of both the agreements are identical - It clearly establishes that as supplier and contractor is one and the same the warranty and defect liability is to be on assessee without any distinction for supply contract or erection contract - Materials are supplied in terms of supply contract which also carries same terms - This alongwith the scope of coordination agreement clearly reveals that the scope of composite works contract is clear and should be read together for the purpose of service tax - Tribunal is in agreement with findings recorded by Original Authority regarding composite nature of contract executed by assessee and the valuation method that should be followed for discharging service tax liability.

Even while discharging service tax on erection contract, assessee chose to pay concessional rate by availing composition scheme for works contract - If the erection contract is only a service contract there is no question of availing composition scheme available to works contract service - In fact, assessee later switched over to payment of service tax with full rate without composition - This clearly reveals that action of assessee is with full knowledge of the legal implication of course of action for discharging service tax by them - No reason found to interfere with the findings either on merit or on limitation: CESTAT - Appeals dismissed: DELHI CESTAT

2018-TIOL-1152-CESTAT-BANG

CCE Vs Elite Distilleries and Bevarages Company

ST - Appeal filed by Revenue against impugned order whereby Commissioner (A) has held that assessee is eligible for refund of Rs. 9,62,543/- paid by them against services rendered to M/s. Seven Seas Distillery Ltd. - Commissioner (A has allowed the refund on the ground that the tax was collected without authority of law and therefore, the time-limit under Section 11B is not applicable - This finding of Commissioner (A) is not sustainable in law in view of decisions rendered by Tribunal in case of Jodhpur Vidyut Vitran Nigam Ltd. 2017-TIOL-75-CESTAT-DEL and Rajasthan State Mines and Minerals Ltd . 2017-TIOL-437-CESTAT-DEL wherein it is held that any refund claim filed beyond the period of one year will be barred by Section 11B - Commissioner (A) has disallowed the refund claim of Rs. 15,69,169/- for the period from April 2006 to September 2007 holding that no evidence was produced to establish that the tax has not been passed on to the clients - In reply to this, assessee submitted that the tax was paid for period from April 2006 to September 2007 on 16.11.2007 from the total amount received from client clearly marking under protest on each challan and a formal letter was also given on 22.11.2007 - To substantiate that the amount paid on 16.11.2007 was never collected from client, assessee produced the extracts from cash book duly certified by CA - This piece of evidence has not been considered sufficient by Commissioner (A) - Assessee has also produced on record the certificate issued by CA before this Tribunal which was not produced before Commissioner (A) - Case remanded to the original authority to examine two things; whether the entire service tax was paid under protest - Secondly, the aspect of unjust enrichment should also be considered by the original authority in view of the documents produced by the assessee along with the certificate of CA certifying that incidence has not been passed on to the client: CESTAT - Matter remanded: BANGALORE CESTAT

CENTRAL EXCISE SECTION

CCE Vs Hindustan Petroleum Corporation Ltd

CX - No demand of interest u/s 11AB of CEA, 1944 could be made beyond the period of limitation when the Revenue has failed to show any ground for invocation of longer period of limitation – in the impugned order, the Commissioner has expressed gratitude to the respondent insofar as they have paid duty which was beyond the normal period of limitation – no challenge to the finding of the adjudicating authority that there was no malafide in the respondent's action – Revenue appeal dismissed: CESTAT [para 5, 6] - Appeal dismissed : MUMBAI CESTAT

2018-TIOL-1157-CESTAT-ALL

Titawi Sugar Complex Vs CCE

CX - Assessee engaged in manufacture of sugar and molasses - During audit, it was noticed that assessee have not made the payment of 10% of amount of sale price of exempted final product, that is electricity sold to U.P. Power Corporation Ltd. nor have made reversal of proportionate CENVAT credit availed on inputs, input services used and consumed in generation of electricity sold, in terms of rule 6(3) of CCR, 2004 - Assessee is before the Tribunal on the grounds that they manufactured dutiable goods namely, sugar and molasses and the electricity, a non-excisable item is produced primarily for running the sugar mill, wherein a small quantity of inputs being turbine oil and lubricants are used in generation of electricity - Only the surplus electricity so generated, as it cannot be stored, is sold to U.P. Power Corporation Ltd - In the facts and circumstances that electricity is primarily generated for captive consumption and not for sale or clearing outside the factory, the provisions of Rule 6 are not attracted - However, it is not the final product of assessee and at best it is an intermediate product - Issue in this appeal is no longer res-integra and the same is covered by decision vide Final Order dated 8/8/2015 passed by this Tribunal in assessee's own case: CESTAT - Appeal allowed: ALLAHABAD CESTAT

2018-TIOL-1156-CESTAT-AHM

Milano Papers Pvt Ltd Vs CCE & ST

CX - During search of factory of assessee, excess stock of 383.138MT was found - It was alleged that assessee has failed to record their production of 383.138MT finished goods in their daily stock register and the goods found in stock was seized under Section 110 of Customs Act, 1962 - Main objection raised by assessee is that, as per Section 110 (2) of Customs Act, 1962, if seized goods are not released within six months, then for extension of seizure, a SCN is required to be issued, failing which the goods are required to be released unconditionally - Admittedly, in this case, no SCN in terms of Section 110(2) of the Customs Act, 1962 has been issued to assessee therefore, assessee is entitled to get seized goods back unconditionally.

As the goods were required to be released unconditionally, in that circumstance, although the goods are liable for confiscation but, as the goods are not available nor any condition has been imposed on assessee for seizure of goods, in that circumstances, in the light of Larger Bench decision of Tribunal in case of Shiv Kripa Ispat Pvt. Limited , no redemption fine can be imposed on seized goods - Therefore, redemption fine imposed on seized goods is set-aside.

With regard to penalty imposed on Shri Bachubhai B Agola, no statement during course of investigation was recorded and no role of assessee has been specified in SCN - In that circumstance, no penalty can be imposed on assessee without specifying the role for confiscation of goods - Therefore, penalty imposed on Shri Bachubhai B Agolais also set-aside: CESTAT - Appeals allowed: AHMEDABAD CESTAT

2018-TIOL-1155-CESTAT-ALL

CC, CE & ST Vs Weld Excel India Ltd

CX - Appeal filed by revenue entertaining the view that Cenvat Credit was not admissible to assessee on various accounts such as admissibility of service tax paid on constructions service including fixing of EOT hoist get, service tax paid on Air Travel Agent Bill/VISA, service, tax paid on rent before registering with Service Tax Department, service tax availed on strength of photostat copies, credit of service tax paid on invoices having addresses at various offices and service tax paid on outward transportation service - Commissioner (A) has held that in view of the fact that ER-1 and ST-3 returns were filed by assessee regularly there was no case of any suppression and, therefore, finding of Commissioner (A) in respect of setting aside penalty imposed on assessee under Rule 15 of Cenvat Credit Rules read with Section 11 AC of CEA, 1944 upheld: CESTAT - Appeal dismissed: ALLAHABAD CESTAT

2018-TIOL-02-AAR-GST + Story

Synthite industries Ltd

GST - Goods are liable to IGST when they are imported into India and the IGST is payable at the time of importation of goods into India: AAR [para 13]

GST - Integrated tax on goods imported into India shall be levied and collected at the point when duties of customs are levied on the said goods under Section 12 of the Customs Act, 1962 i.e. on the date determined as per provisions of Section 15 of the Customs Act, 1962: AAR [para 10]

GST - Applicant is neither liable to GST on the sale of goods procured from China and directly supplied to USA nor on the sale of goods stored in the warehouse in Netherlands, after being procured from China, to customers, in and around Netherlands, as the goods are not imported into India at any point: AAR [para 13] - Application disposed of : AUTHORITY FOR ADVANCE RULING

2018-TIOL-01-AAR-GST + Story

Caltech Polymers Pvt Ltd

GST - Recovery of food expenses from the employees for the canteen services provided by company is an 'outward supply', hence taxable: AAR [para 12]

GST - Canteen service to employees - There is no similar exemption (notification 25/2012-ST) as existing under the Finance Act, 1994 prevailing under the GST laws: AAR [para 8]

GST – Upon a plain reading of the definition of "business" given in Section 2(17), clauses (a) and (b) of the CGST Act, it could be safely concluded that the supply of food by the applicant to its employees would definitely come under clause (b) of Section 2(17) as a transaction incidental or ancillary to the main business: AAR [para 9]

GST - Even though there is no profit as claimed by the applicant on the supply of food to its employees, there is "supply" as provided in Section 7(1)(a) of the GST Act, 2017. The applicant would definitely come under the definition of "Supplier" as provided in sub-section (105) of Section 2 of the GST Act, 2017: AAR [para 10]

GST - Since the applicant recovers the cost of food from its employees, there is consideration as defined in Section 2(31) of the GST Act, 2017: AAR [para 11]

Ruling:

+ Recovery of food expenses from the employees for the canteen services provided by company would come under the definition of 'outward supply' as defined in Section 2(83) of the Act, 2017, and therefore, taxable as a supply of service under GST. [para 12] - Application disposed of : AUTHORITY FOR ADVANCE RULING