|
SERVICE TAX SECTION
2018-TIOL-1161-CESTAT-DEL Kiran Enterprises Vs CCE
ST - Assessee engaged in providing "Management, maintenance and repair services" - Their contention was that as per Section 98 of FA, 2012, no service tax was payable on management, maintenance and repair service - Accordingly, assessee had filed the refund claim which was rejected by lower authorities - Assessee has not produced complete contracts entered into between it and the service receivers - Since for ascertaining the fact of applicability of doctrine of unjust enrichment, documents are required to be scrutinized in proper perspective, impugned order passed by Commissioner (A) in rejecting the refund application of assessee is in consonance with statutory provisions - However, considering the fact that assessee, at this stage, submits that they had demonstrated that the incidence of service tax has not been passed on to the service receiver and the same has been borne by them, matter can be go back to Original Authority for verification of contracts to be produced by assessee: CESTAT - Matter remanded: DELHI CESTAT
2018-TIOL-1160-CESTAT-DEL
Mahanagar Telephone Nigam Ltd Vs CCE (Dated: February 16, 2018)
ST - Assessee is a telecommunication service provider - Dispute relates to period April to September 2004 in respect of service tax credit availed during the said half year - Noticing that assessee did not file required statutory return in form ST-3 as per Rule 7 of STR, 1994 proceedings were initiated against them to deny the said credit - Assessee did file the return later and the impugned order held that the credits availed were not admissible due to various shortcomings noticed with reference to said credits - Admittedly the impugned order proceeded in a summary manner to deny the credit by simply recording that the services are not covered under definition of input services - Even, a plain perusal of the various input services like security services, electrical works, repair and maintenance, mobile charges, advertisement charges and auditor charges will show that these are with reference to business of assessee and provision of taxable output service which in the present case is telecommunication service - Assessee availed credit based on large number of duty paid documents - They did submit details in a consolidated summary - It is open to Jurisdictional Authorities to verify each one of the document - Apart from the present proceedings going beyond the scope of the allegations made in SCN, this is a second round of litigation - No useful purpose will be served by remanding the matter again as dispute relates to period which is 14 years before - As the impugned order did not support the finding for denial of credit and no detailed proposal was made in SCN before such denial was ordered, impugned order is set aside: CESTAT - Appeal allowed: DELHI CESTAT
CENTRAL EXCISE SECTION
2018-TIOL-1163-CESTAT-ALL
CCE Vs Shivangi Metal Industries Pvt Ltd
CX - Assessee is manufacturer of Brass Ingots & Zinc Ingots - They also has a separate trading division for these products, which is separately registered with CX Department - Office of Manufacturing Unit & Trading Unit is situated in Trading Division, which is in factory premises of Manufacturing Unit - During search of Manufacturing & Trading premises, some discrepancies found - Stock valuation has been done by weighment of only a sample and thereafter eye estimation is made for whole lot of stock - In this view of manner of stock taking, there is bound to be variation and no adverse inference could be drawn on the basis of such variation - This is also evident from the statement of Authorized Signatory recorded on the date of visit, wherein on being questioned about the excess stock found, he stated that- we first re-enter all the entries in our computer and then in RG-1 register - The production of Brass Ingots for date 22/02/2007, is duly entered in computer but could not be entered in RG-1 register, as he was out of station for some urgent work - He has further stated that he has requested the inspection team to take printout from the computer of stock records, which has been denied by inspection team, and the computer sealed - It is further stated that the weighment have been done by way of eye estimation and if the proper stock taking was done and tallied with computer records, there shall be hardly any discrepancy - Under these facts, stock taking by Revenue is defective and it has been rightly held so by Commissioner (A) - On such defect in stock taking, there cannot be any adverse inference is drawn against assessee - In this view of matter, appeal filed by Revenue is dismissed: CESTAT
As regards to issue of clandestine removal based on register of vehicles booking maintained by New Vikas Transport Company, these are not record of vehicles actually transported but only a memoranda record of bookings recorded by transporter for approximate vehicles to be supplied to assessee - This is very clear from the record of cross examination of transporter Moin Khan, which leaves no room for any other interpretation and therefore any such demand is not sustainable - This also applies to the demand based on loose GRs - The substantial demand based on Ledger account of royalty amount, resumed from premises of Kamdhenu Ispat Ltd., it is observed that as per the basic principle of accounting the entries in debit side and credit side of ledger cannot be totaled together - A perusal of ledger resumed from Kamdhenu Ispat Ltd Shows separate column for Debit and credit amount whereas Revenue has put the amount of debit column as well as credit column in one single Column and then totaled it, which is nearly doubled because of wrong merging of the Debit side and credit side column - Any confirmation of demand based on such doubling of amount(s) cannot be sustained - There is no plausible reasoning given by Revenue in support of totaling of debit amount and credit amount, while calculating demand of duty because of difference in royalty - Further, not recording of statement of Kamdhenu Ispat Ltd, on such resumed ledger account, also shows that there is no substance in the finding of the Revenue that alleged difference in royalty leads to clandestine clearances: CESTAT - Appeal dismissed: ALLAHABAD CESTAT
2018-TIOL-1162-CESTAT-DEL
Raghuveer Metal Industries Ltd Vs CCE
CX - The main assessee-M/s Raghuveer Metal Industries Limited (RMIL) engaged in manufacture of TMT Bars under brand name of "KAMDHENU" and MS ingots - The brand name "KAMDHENU" belongs to 'Kamdhenu Ispat Ltd.' (KIL), who charged a royalty of Rs. 150 per metric ton of sales made by assessee excluding service tax - During course of search, some discrepancies were noticed in stock of raw materials and finished goods - SCN was issued proposing confiscation of excess TMT Bar seized in factory premises of RMIL and premises of its dealer/distributor RC H and Rajasthan Steels - Further, confiscation of Indian currency seized during investigation was proposed to be confiscated with proposal to impose penalty - Another SCN was issued demanding duty with proposal to appropriate already deposited by RMIL with interest and further penalty was proposed under section 11 AC along with penalty under Rule 25 and also under Rule 26 on the directors & others - On the first issue regarding Physical verification of stock, such exercise was challenged by assessee immediately after search, the Pancha witness Shri Daulat Ram during cross examination confirms not undertaking of stock taking exercise - During subsequent statements, assessee or its directors were never again confronted on the aspect of retractions and from this, force found in assessee's arguments that no such stocktaking was actually done - Further, it can also be understood that stock of approximately 2200 tons of steel cannot be undertaken in total duration of 15 hours - Therefore, this finding of Commissioner is not sustainable - Commissioner's finding that each test recorded in diary of chemist is one heat and calculating total production by an arithmetic calculation is not sustainable in view of specific statement of the director during investigation and not recording of the any statement of the chemist who had made entries in the said diary - Further, it is a legally settled position that no demand for clandestine manufacture can be sustained based on theoretical and uncorroborated calculations.
As regards to issue of clandestine removal based on register of vehicles booking maintained by New Vikas Transport Company, these are not record of vehicles actually transported but only a memoranda record of bookings recorded by transporter for approximate vehicles to be supplied to assessee - This is very clear from the record of cross examination of transporter Moin Khan, which leaves no room for any other interpretation and therefore any such demand is not sustainable - This also applies to the demand based on loose GRs - The substantial demand based on Ledger account of royalty amount, resumed from premises of Kamdhenu Ispat Ltd., it is observed that as per the basic principle of accounting the entries in debit side and credit side of ledger cannot be totaled together - A perusal of ledger resumed from Kamdhenu Ispat Ltd Shows separate column for Debit and credit amount whereas Revenue has put the amount of debit column as well as credit column in one single Column and then totaled it, which is nearly doubled because of wrong merging of the Debit side and credit side column - Any confirmation of demand based on such doubling of amount(s) cannot be sustained - There is no plausible reasoning given by Revenue in support of totaling of debit amount and credit amount, while calculating demand of duty because of difference in royalty - Further, not recording of statement of Kamdhenu Ispat Ltd, on such resumed ledger account, also shows that there is no substance in the finding of the Revenue that alleged difference in royalty leads to clandestine clearances: CESTAT - Appeals partly allowed: DELHI CESTAT
CUSTOMS SECTION
2018-TIOL-1159-CESTAT-BANG Hindustan Petroleum Corporation Ltd Vs CC
Cus - Assessee engaged in refining and marketing of petroleum products - They receive and store imported as well as indigenous LPG in bulk and thereafter send it to various LPG bottling plants in the state of Karnataka, Kerala, Tamil Nadu, Andhra Pradesh and Goa for bottling and also for supply of LPG through retail dealers - During investigation, it was found that assessee have paid demurrage charges to supplier for detention of vessel beyond the agreed 'Lay Time' and during the relevant period, on 36 occasions they detained the vessel beyond the agreed time - Assessee was issued SCN proposing to include demurrage charges paid to the supplier, on account of detention of vessel beyond the 'lay time', into assessable value of imported LPG and High Sea Sale (HSS) commission into the assessable value and to include differential canalizing charges into assessable value - On an identical issue and on identical facts, Tribunal vide its Final Order dt. 30/08/2017 has allowed the appeal of assessee by dropping the demurrage charges relying upon the decision of Supreme Court in case of Mangalore Refinery Petrochemicals Ltd. 2015-TIOL-306-SC-CUS - Similarly, the Tribunal in said order has also dropped the penalty imposed by impugned order under Section 114A by holding that the same is not applicable in that case - Further Tribunal has also dropped the imposition of redemption fine relying upon the decision in case of Jai Balaji Industries Ltd. and Shiv Kripa Ispat Pvt. Ltd. 2009-TIOL-388-CESTAT-MUM-LB - Further, interest as demanded by impugned order under Section 18(3) was also set aside in view of decision of Tribunal in the Sterlite Industries (India) Ltd. - Considering the facts and circumstances and by following the ratio of decision rendered by Tribunal dt. 30/08/2017, impugned order is not sustainable in law and the same is set aside: CESTAT - Appeal allowed: BANGALORE CESTAT
|
|
