SERVICE TAX SECTION

2018-TIOL-1180-CESTAT-MUM + Story

Dinshaws Dairy Foods Ltd Vs CCE

ST - Since the specialized refrigerated vans are hired on monthly basis and the charges are not based upon destination but on kilometers basis, it cannot be said that the services involved are of Goods Transport Agency - it is also obvious that no consignment note is issued as the service is not of consignment to be taken to any particular destination and, therefore, the services would not fall under the category of Goods Transport Agency - impugned orders set aside and appeals allowed with consequential relief: CESTAT [para 5] - Appeals allowed : MUMBAI CESTAT

Vodafone Essar South Ltd Vs CST

ST - Assessee is providing telecommunication services and paying service tax on value of services - They are also providing maintenance or repair service, transportation of goods by road service and sponsorship service - As per the Department, assessee has taken CENVAT credit irregularly and they have wilfully suppressed the same in ST3 returns - On these allegations, SCN was issued to assessee proposing to recover irregularly availed CENVAT credit along with interest and penalties under various provisions of CENVAT Credit Rules as well as FA, 1994 - Various Benches of Tribunal have held that assessee is not entitled to take CENVAT credit on tower / tower materials and prefabricated buildings/shelters as capital goods as well as inputs - Issue has been subject matter of litigation before various Benches of Tribunal and the matter was also referred to Larger Bench and finally the Larger Bench in case of Tower Vision (India) Pvt. Ltd. 2016-TIOL-539-CESTAT-DEL-LB answered the reference in favour of Revenue disposing of various appeals including the appeal of assessee - Tribunal in said decision has also followed the decision of Karnataka High Court in case of MTR Food Ltd. wherein it has been held that if returns were filed properly and audit has also taken place, then there are no allegation of bona fide on the part of assessee and in such a situation extended period cannot be invoked - Demand can only be confirmed for normal period and extended period of limitation has been dropped - Issue in present appeals was of an interpretation nature i.e. as to eligibility of CENVAT credit or otherwise on towers and building and had to be settled in hands of High Court - Therefore, assessee could have entertained a bona fide belief - Hence all the penalties imposed on all assessees are set aside by invoking the provisions of Section 80 of FA, 1994: CESTAT - Appeals partly allowed: BANGALORE CESTAT

2018-TIOL-1168-CESTAT-MAD

Visual Graphics Computing Services India Pvt Ltd Vs CCE

ST - Assessee filed refund claims pertaining to various periods between October 2012 and June 2013 under Rule 5 of CCR, 2004 - The original authorities rejected part of the refund claims on the ground of (i) invoices without address and missing invoices (ii) input services on which credit taken are ineligible input service since they did not have any nexus with output services exported - On a reading of input service credits rejected, input services found fault are those relating to management maintenance, short term accommodation, hotel room charges for stay of VGI staff, air fare charges - Even after the amendment to Rule 2(l) w.e.f. 1.4.2011, it has been consistently held that so long as a particular input service is not specifically barred by Rule 2(l) or is not used for the personal consumption of an employee, that would very much an eligible input service - For all these reasons, impugned order cannot sustain for which reason same is set aside - In consequence, assessee will be eligible for refund of credits in respect of inputs services availed by them as listed out in said annexures - Coming to the other dispute concerning inadmissibility of cenvat credit on certain documents without STC code, missing invoices, etc. assessee has submitted that if an opportunity is accorded, they would be able to satisfy the refund sanctioning authority with necessary documentation in their support - Accordingly, for the limited purpose of providing an opportunity to assessee to produce necessary documents in respect of credits availed without STC code, missing invoices etc., the matter is remanded to the original authority: CESTAT - Appeals partly allowed: CHENNAI CESTAT

2018-TIOL-1167-CESTAT-BANG

Delta Infra Logistics Ltd Vs CCE & ST

ST - Assessee had availed CENVAT credit of duty paid on various invoices which cannot be said to fit in the definition under Rule 2 of CCR, 2004 - They had availed credit on the basis of invoices pertaining to motor vehicles as capital goods, credit of service tax on penal rent to M/s. NMPT, credit of motor vehicle cess, credit on irregular documents, credit of service tax which were not availed at their unit in Mangalore, credit of service tax on godown rent used for storing the goods - They had also not discharged the service tax liability on supply of tangible goods service - The total amount of credit so availed irregularly was RS.2552399/- which was sought to be denied along with interest and penalty under Rule 15(3) read with Section 78 for suppression of facts - The notice also demanded Rs.4,120/- for providing the service of tangible goods with interest and penalty - Commissioner (A) has partially allowed the appeal of assessee and partially dismissed and confirmed the demand - Case needs to be remanded back because the documents which had been produced before Tribunal have not been produced before the adjudicating authority, therefore, matter remanded to original authority to pass a de novo order after considering the evidence which the assessee may produce in support of his case: CESTAT - Matter remanded: BANGALORE CESTAT

CENTRAL EXCISE SECTION

2018-TIOL-1173-CESTAT-BANG + Story

Mann And Hummel Filters Pvt Ltd Vs CC, CE & ST

CX - Refund – Section 11B of the CEA, 1944 - Any amount deposited during investigation is to be treated as pre-deposit - principle of unjust enrichment will not be applicable: CESTAT [para 7] - Appeal allowed: BANGALORE CESTAT

2018-TIOL-1172-CESTAT-BANG

ITC Ltd Vs CCT

CX - Assessee is holder of Central Excise Registration Certificate for manufacture and clearance of Cigarettes, Smoking Mixture, Cut Tobacco, Chewing Tobacco and Flavours - They are availing cenvat credit of duty paid on inputs, capital goods and input services under provisions of CCR, 2004 - During audit, it was observed that assessee have availed input service credit passed on by Head Office of M/s. ILTD - The said M/s. ILTD are registered as an Input Service Distributor - Issue involved in the present appeal is no more res integra and is covered in favour of assessee by Division Bench of Tribunal on identical fact - Division Bench of Tribunal vide its order dated 12.07.2016 in assessee's own case has held that the assessee is entitled to cenvat credit of service tax - Tribunal while allowing the appeal of assessee earlier has merely relied upon the judgment of High Court of Karnataka in case of ECOF Industries Ltd. 2011-TIOL-770-HC-KAR-ST - Assessee has also annexed two more decisions in assessee's own case on an identical issue, wherein the Commissioner (A) has allowed the appeal of assessee and the Department has filed the appeal before this Tribunal and the Tribunal has dismissed the appeals of Department vide 2017-TIOL-3952-CESTAT-BANG - Considering the various decisions relied upon by assessee in their own case, impugned order is not sustainable in law: CESTAT - Appeal allowed: BANGALORE CESTAT

2018-TIOL-1171-CESTAT-DEL

Reliance Cable Industries Vs CCE

CX - Assessee is manufacturing electric wires & cables and enjoying the benefit of SSI exemption - A search was conducted at the business premises of assessee where the raw material, finished goods, books of accounts, loose sheets were seized - The case of Revenue is that the assessee has manufactured electric wires and cables and cleared the same clandestinely during the period 2008-09 to 2011-12 without payment of Central Excise duty - The investigation gathered evidences from which it appeared that the total value of clearances made by assessee was more than the limit specified in small scale industries exemption notification and accordingly demand of Central Excise duty has been made - Further, the unaccounted raw materials and finished goods found at the time of search in factory was also ordered for confiscation - Loose papers were recovered from factory and he accepted the guilt - Three suppliers had confirmed that they have supplied the raw material without invoices - In the light of evidences placed on record by Revenue in form of documents as well as various inculpatory statements, the allegation that assessee has procured raw materials, manufactured wires and cables and cleared the same clandestinely without payment of duty stands established - Consequently, the demand of duty as well as the penalties imposed in the impugned order is upheld - The order for confiscation of seized goods also stands upheld: CESTAT - Appeals dismissed: DELHI CESTAT

Decotech Paints Ltd Vs CCE & ST

CX - Assessee engaged in manufacture of wall puttiy and cement paints primers under brand name of 'Diamond Gold' and 'Decotech' - Shri Narender Kumar Gautam, (father) started M/s. Diamond Waterproof Compound P Ltd. who registered the items under trade mark 'Diamond Gold' and 'Decotech' - Later, both his sons have started through other companies namely, M/s. Diamond Retail Mart (P) Ltd. and M/s. Decotech Ltd. - Finally, in due course, M/s. Diamond Waterproof Compound P Ltd. run by father has stopped functioning, so the trade marks were transferred to M/s. Diamond Retail Mart (P) Ltd., who later on assigned the same to M/s. Decotech Ltd. as per the deed - The Commissioner has rejected the arrangement of assignment of trade marks and opined that assessee was using 'Diamond Gold' and 'Decotech' trade marks which was registered in name of another company, so SSI exemption was denied - The department has also made out a case of valuation of goods on the basis of MRP and clandestine removal - If the deed of assignment is taken into account, it appears that the assessee will be entitled to the benefit - But before such a conclusion can be arrived at, it is necessary to verify the amendment to the original deed which has not been done by original adjudicating authority - Thus, matter remanded to the original authority - The quantification of other two demands is also disputed - Goods covered by the impugned order are to be assessed on MRP basis under Section 4A - For this purpose, the price lists were called for but it has not been submitted in full and entire price list was not available with department - Assessee has submitted that full detailed price list can be resubmitted to the department if opportunity is given - Since the matter remanded, this aspect may be re-examined by the original authority and revised orders passed after extending the opportunity of hearing to assessee: CESTAT - Matter remanded: DELHI CESTAT

CUSTOMS SECTION