SERVICE TAX SECTION

2018-TIOL-1218-CESTAT-MUM + Story

Chanakya Mandal Pariwar Vs CCE

ST - Commercial Training and Coaching - Appellants are running parallel college for imparting education in degree/diploma recognized by law - There is no doubt that the courses run by the Appellant trust are equivalent to regular courses of YCMOU and there cannot be any distinction between the regular colleges and the education imparted by the Appellant - Appellant is not liable to service tax: CESTAT [para 4] - Appeal allowed: MUMBAI CESTAT

2018-TIOL-1212-CESTAT-BANG

ABB Ltd Vs CCE, C & ST

ST - Assessee's both units Peenya as well as Vadodara are engaged in manufacture and clearance of excisable goods - Both the units of assessee, apart from the activity of manufacturing and providing taxable output services, are also engaged in trading activities - They availed CENVAT credit on certain common input services which were also used and utilized for their trading activity also - It appeared to revenue that the credit availed on common input services were ineligible as these services were used neither for providing taxable output service nor were used for manufacture of final product - In the present case invoking the longer period is not sustainable because on the same issue earlier SCNs are pending decision before Tribunal - Further I find that this issue is squarely covered in favour of assessee by judgments of Supreme Court in Caprihans India Ltd. 2015-TIOL-244-SC-CX , ECE Industries Ltd. 2003-TIOL-89-SC-CX and Nizam Sugar Factory 2006-TIOL-56-SC-CX - In view of various decisions of Supreme Court holding that longer period of limitation is not invocable, entire demand in the present case is barred by limitation: CESTAT - Appeals allowed: BANGALORE CESTAT

2018-TIOL-1211-CESTAT-MAD

Cols Calibre Vs CCE & ST

ST - The assessee, a proprietorship concern has branches in various places in Tamilnadu and is a training centre for communicative English, Personality Enhancement, IELTS and TOEFL - The department was of the view that assessee is providing taxable service under category of commercial coaching or commercial training and issued SCN proposing to recover service tax, interest and also for imposing penalties - The exemption Notfn 24/2004-ST is available to the institutes that impart training to enable the trainee to seek employment or self-employment directly after such training or coaching - The Notfn 24/2004 has been further amended vide Notfn 3/2010-ST, in which the term "vocational training institute" has been clarified to mean an "Industrial training institute or an Industrial training centre affiliated to the National Council for vocational training" - The period involved is prior to 2010 - In Maria Computer Systems Pvt. Ltd . 2017-TIOL-864-CESTAT-DEL , Tribunal observed that coaching/training imparted for acquiring skills in English language definitely improves better chances to seek employment - Needless to say, that proficiency in communicative English as well as personality enhancement is the criteria for getting employment in BPOs/Call centres - Similar view has been taken in case of British School of Language 2017-TIOL-2206-CESTAT-DEL - Following the dictums laid two decisions, assessee is eligible for exemption as per Notfn 24/2004-ST - The demand is unsustainable and same is set aside: CESTAT - Appeal allowed: CHENNAI CESTAT

2018-TIOL-1210-CESTAT-DEL

CST Vs Chanson Car at Call Pvt Ltd

ST - Assessee is providing various vehicles for transport of people - In respect of such transport for individual passengers for which consideration was received on the spot by driver of said vehicle, no service tax liability arises - This position is not in dispute - The dispute is with reference to service to corporate clients - Uttrakhand High Court in Sachin Malhotra 2014-TIOL-2039-HC-UKHAND-ST held that the most important and crucial element to decide whether the activity is renting of cabs is with reference to control of vehicle were made-over to hirer and he is given possession for howsoever short a period - The Tribunal in APSRTC ADDAPA 2017-TIOL-4420-CESTAT-HYD relying on said decision held that when the contract is to hire a vehicle, there is no renting of cab - The said ratio has been followed in other decisions of Tribunal also - No reason found to interfere with impugned order: CESTAT - Appeal dismissed: DELHI CESTAT

CENTRAL EXCISE SECTION

2018-TIOL-1209-CESTAT-DEL

Mukesh Katheil Vs CCE & ST

CX - Main assessee filed a declaration under Rule 6 of Packing Machine Rules and declared one single track packing machine - He filed an intimation for closure of his factory in the month of July 2008 - But during search, it was found that gutka was being manufactured by using a total of 12 packing machines in three different premises which were not declared to the department - SCN have been issued and the impugned order has been passed - It stands fairly established that main assessee has taken on rent four premises and making use of raw material prepared in premises adjacent to registered factory, sent the raw material-mix to the three unregistered premises - In the three premises, by installing 12 machines illegally, gutka has been packed and sold bearing the brand name Paheli - It is settled proposition that in quasi judicial proceedings, the level of evidence required to be produced is to be such that the case is established to the extent of preponderance of probability - The standard of proof need not be as required in the case of judicial proceedings - Main assessee has carried out manufacture of gutka using 12 packing machines in illegal factories - Hence, demand of Central Excise duty to the extent of Rs.1.5 crores along with interest and equal amount of penalty upheld - Penalties have also been imposed amounting to Rs. 10 lakhs each on various persons - All the persons have played an important part in abetting the clandestine manufacture of gutka in the illegal factories - Consequently, they are liable for penalty under Rule 26 of CER, 2002 and penalties imposed on them upheld: CESTAT - Appeals dismissed: DELHI CESTAT

2018-TIOL-1208-CESTAT-DEL

VE Commercial Vehicles Ltd Vs CCE & ST

CX - Both M/s V.E. Commercial Vehicles Limited (VECVL) and M/s Man Trucks India Pvt. Limited (MFTPL) are engaged in manufacture of heavy commercial vehicles for transport of goods and chassis of such motor vehicle - The dispute is with reference to classification of motor vehicles as well as chassis fitted with engine which is also cleared at times by assessee - The motor vehicles have been described as "tipper" which have been claimed to be meant for off-road use and hence classifiable under 8704 2390 - However, Revenue views that such vehicles are meant for offroad use and hence are to be described as "dumpers" for off-road use which are classifiable under 870410 - The HSN explanatory notes can serve as a useful guide in deciding the classification of goods under the First Schedule to CETA, 1985 - Supreme Court in case of Woodcraft Pvt. Ltd. 2002-TIOL-278-SC-CX-LB , has observed that HSN is a safe guide for ascertaining true meaning of any expression used in Act unless there an expressed different intention indicated in the tariff itself - In the light of HSN explanatory notes and the various tariff headings and sub-headings, motor vehicles manufactured by assessee do not fall in category of dumpers designed for off-highway use under 8704 10 - They are classifiable, as claimed by assessee under 8704 2390 as tipper trucks likewise the classification of chassis also will fall under 87060042 and not under 87060043 as claimed by Department - No justification found in demand for differential duty of NCCD made by adjudicating authority in impugned orders.

The second issue in respect of MFTPL is that during the period June, 2008 to February, 2011, the MFTPL has exported chassis fitted with engines but they paid Excise duty only @ 10% under claim of rebate whereas the applicable Excise duty during relevant time was 10% plus specific Excise duty @ Rs.10,000/- per chassis - Admittedly, there is a short payment of duty by assessee - However, the fact remains that if differential duty is paid by assessee the same will also be available to them as rebate since the goods have been exported - Consequently, this leads to revenue neutral situation - Demand of duty set aside alongwith the interest and penalties: CESTAT - Appeals allowed: DELHI CESTAT

2018-TIOL-1207-CESTAT-AHM

Savita Construction Pvt Ltd Vs CCE & ST

CX - The short question involved is; whether the assessee could utilize cenvat credit in discharging their duty liability under Rule 8(3A) of CER, 2002 during defaulted period - Issue rests only on the outcome of appeal before Supreme Court filed by Revenue against the judgment Gujarat High Court in Indsur Global Ltd. 2014-TIOL-2115-HC-AHM-CX - In these circumstances, matter is remanded to the adjudicating authority to decide the issue on the basis of the outcome of the pending case before the Hon'ble Supreme Court on the appeal filed by the Revenue: CESTAT - Matter remanded: AHMEDABAD CESTAT

2018-TIOL-1206-CESTAT-ALL

Sukalp Agencies Vs CCE

CX - Assessee engaged in trading and also manufacturing D.G. sets - For manufacturing of D.G. sets, they purchased engine, alternator and coupling and assemble the same to make D.G. sets - It is alleged that there is a huge difference in sale value of finished goods as compared to invoice(s) - That on account of this there is difference of Rs. 80,31,776/- in turnover - It appeared that assessee cleared finished goods without issuing invoice and without payment of Central Excise duty and thus the difference of duty short paid or not paid is Rs. 12,85,084/- - Further allegation was that assessee have short paid the duty - Assessee have provided a plausible and correct conciliation as regards the amount of Rs. 12,85,084/- - It is evident from reconciliation that assessee have shown correctly the clearance value in their returns, as is evident from Annexure-B to the SCN, at Rs. 4,55,87,015/-, whereas the clearance value as per reconciliation is coming at Rs. 4,53,65,172/- - Thus, assessee have shown correct value of clearance in their excise returns, which does not call for an adverse inference - Accordingly, demand of Rs. 12,86,084/- set aside - So the other demand of duty of Rs. 62,650/-, no error and/or mistake has been pointed out in calculation submitted by assessee as per the invoice(s) - So far as it appeared that some invoice details are missing, it is admitted fact that the assessee had asked for copy of invoice(s) which were not provided to them - Revenue cannot take advantage of its own wrong and saddle the assessee with duty, and accordingly demand of Rs. 62,650/- set aside - The penalties also stand set aside: CESTAT - Appeal allowed: ALLAHABAD CESTAT

CUSTOMS SECTION