SERVICE TAX SECTION

Warburg Pincus India Pvt Ltd Vs CST

ST - Refund - Rule 5 of CCR, 2004 - Act of the adjudicating authority is totally illegal and arbitrary for the reason that the appellant has availed the cenvat credit and in respect of which they filed the refund claim - If at all the adjudicating authority is of the view that certain input service is not admissible for the purpose of cenvat credit, he should have issued a separate show cause notice and after carrying out the process of adjudication, order should have been passed holding that whether the said input services are admissible input services or not and, thereafter, a decision on refund should have been taken - as all the services in question are directly used by the service provider, CENVAT credit is admissible - appeal allowed: CESTAT [para 4, 5] - Appeal allowed: MUMBAI CESTAT

2018-TIOL-1228-CESTAT-DEL

DB Corp Ltd Vs CCE

ST - Assessee filed ST-3 return wherein they have shown the figure as Rs.67,83,503/- instead of Rs.27,13,679/- - Due to this incorrect figures written in ST -3 return, the amount of abatement was mis-calculated - Consequently, SCN was issued to assessee to demand service tax on differential value of duty shown in ST-3 return - Assessee has filed the relevant documents for verification or examination by Commissioner (A) on 5.7.17 whereas the impugned order has been passed thereafter after 26 days which shows that the Commissioner (A) did not bother to consider the documents filed by assessee which is his duty and bound to do so - Therefore, impugned order deserves no merits, hence, same is set aside - There is demand of interest for intervening period from the date of presentation of cheque till its realization - As per Rule 6 (2A) of STR, 1994, date of presentation of cheque is date of payment of Service tax - Same view has been taken by Tribunal in case of Travel Inn India Pvt. Ltd. 2015-TIOL-1259-CESTAT-DEL - Therefore, demand of interest is not sustainable against assessee - Commissioner (A) has not taken into consideration the documents filed by assessee, in that circumstances, matter needs examination at the end of Commissioner (A) to examine the documents, therefore, the matter is remanded: CESTAT - Matter remanded: DELHI CESTAT

2018-TIOL-1227-CESTAT-BANG

CCE, C & ST Vs Bellary Iron Ores Pvt Ltd

ST - Assessee engaged in export of iron ore fine and lumps - During course of manufacture of goods, assessee received certain input services on which they have availed cenvat credit and as they could not utilize cenvat credit, filed the refund claim under Rule 5 r/w Notfn 5/2006 CE - The Revenue is of the view that as the goods exported by assessee is an exempted goods, therefore as per Rule 6(1) of CCR, 2004, they are not entitled to cenvat credit on input/input services used for manufacturing of exempted goods - Identical issue came up before this Tribunal in case of Jolly Board Ltd. 2014-TIOL-316-CESTAT-MUM which was held in favour of assessee - The said order of Tribunal was carried before the High Court and the High Court dismissed the appeal filed by the Revenue and in the said order the High Court has observed that the appeal filed by the Revenue in the case of Drish Shoes Ltd. 2010-TIOL-350-HC-HP-CX has been dismissed by Apex Court - In that circumstances, no infirmity found in impugned order, therefore, same is upheld: CESTAT - Appeals dismissed: BANGALORE CESTAT

2018-TIOL-1226-CESTAT-BANG

CCE, C & ST Vs Aminbhavi and Hegede Consulting Engineers Pvt Ltd

ST - Assessee engaged in providing taxable service under category of "consulting engineer service" - SCN was issued and original authority confirmed the demand of service tax along with interest and penalties by taking the view that assessee had failed to pay appropriate service tax for period October 1999 to September 2004 - On appeal, Commissioner (A) passed the impugned order in which he restricted the demand of service tax to that falling within the normal period of one year and appropriated the service tax to that extent from the tax already paid by assessee - Department had in fact issued 5 SCNs which covered some of period covered in the present proceedings - From the earlier SCNs and corresponding order of original authority, it is noted that the Department, in fact, in addition to alleging non-filing of ST3 returns had also assessed the liability of assessee for a part of period which is covered in present proceeding - Under such circumstances, Tribunal agrees with the view expressed by Commissioner(A) that the Department was precluded from issuing another SCN invoking the suppression clause - No reason found to interfere with the impugned order, which is sustained: CESTAT - Appeal rejected: BANGALORE CESTAT

CENTRAL EXCISE SECTION

CCE Vs Sheth and Sura Engineers Pvt Ltd

CX - Activity of manufacturing of pipe is totally different from laying of pipe - pipe manufactured is movable, hence marketable and, therefore, excisable - Stand of revenue neutrality taken by the Adjudicating authority for setting aside demand on the ground that if any duty is payable on the pipe, same is available as CENVAT credit to MSEB does not appear to be convincing for the reason that in normal course, MSEB is neither a service provider nor manufacturer, therefore, the duty payable, if any, by the respondent cannot be taken as CENVAT credit by MSEB - However, this fact has not been verified before coming to the conclusion on the aspect of revenue neutrality, therefore, matter remanded to the adjudicating authority: CESTAT [para 4, 4.1, 5] - Matter remanded: MUMBAI CESTAT

2018-TIOL-1224-CESTAT-DEL

Shree Rohit Syn Fab Pvt Ltd Vs CCE

CX - Assessee engaged in processing MM Fabrics by activity of stantering and availing Cenvat Credit on Man Made Fabrics and clearing the same after payment of duty and for cotton fabrics they are maintaining Form IV register - SCN was issued to assessee to demand duty alleging clandestine removal of goods - During course of investigation, raw material and finished goods were found in order and no panchnama was drawn - Certain documents were resumed but there is no independent witnesses to say that these documents have been recovered from premises of assessee - Therefore, in absence of panchnama, documents recovered from possession of assessee cannot be relied upon as a piece of evidence as per the supplementary instructions wherein it has been instructed that during the course of search there should be presence of two independent witnesses - Therefore, the documents recovered during the course of search are not reliable documents - Hence, on the basis of documents, demands are not sustainable: CESTAT - Appeals allowed: DELHI CESTAT

2018-TIOL-1223-CESTAT-ALL

Indian Wood Products Co Ltd Vs CC, CE & ST

CX - the assessee-company manufactured 'Indian Katha' - While the assessee claimed that it was classifiable under sub-Heading 14049050, the Department claimed that it was classifiable under sub-Heading 32019010 -

Held - The issue at hand is already settled by a decision of this Tribunal in Final Order No. A/70009/2017- EX[DB] in Appeal No. E/58482/2013-EX[DB] dated 04.01.2017 - Moreover, the Revenue's appeal against such order was dismissed by the Apex Court - Following such order, the issue settled in favor of the assessee: CESTAT (Para 2,4,5) - Appeals Allowed: ALLAHABAD CESTAT

2018-TIOL-1222-CESTAT-BANG

Fimen Fibre Products Pvt Ltd Vs CCE, C & ST

CX - Assessee engaged in manufacture of "FRP Composite Doors and Frames" and claimed benefit of SSI exemption - Original authority finalised the classification of goods manufactured by assessee under CETH 3925.20 as "articles of plastics" and the claim of assessee that goods were rightly classifiable under CETH 4410.19 and 4410.90 as "articles of wood" was rejected - By appreciating the nature of doors and frames, the essential character stems from the wood which forms the core material without which the doors and frames will fail to have any rigidity or shape - No doubt, the plastic gives the door the additional character of moisture resistance but keeping the nature of use of goods, the essential character is given by wood and hence, in terms of Rule 3(b) of Rules for Interpretation, the goods will need to be considered as if they are made entirely of wood - Such a view will decide the classification of plastic under Chapter 44 i.e., articles of wood - This would also satisfy the guideline issued by CBEC, since the wood predominates in terms of weight and value of component materials which have gone into the manufacture of composite article - Goods in question are rightly classifiable under CETH 4410.19 as articles of wood (door) as well as under CETH 4410.90 as wooden frames - Assessee will be entitled to clearance at nil rate of duty in terms of Notfn 10/2003 (Sl. No.12) - Impugned order demanding differential duty also set aside: CESTAT - Appeals allowed: BANGALORE CESTAT

CUSTOMS SECTION

Bard Exports Vs CC

Cus - Drawback - Overvaluation of consignments cannot be proved by making reference to the market enquiry without there being any indication of comparability of the goods - Onus to prove over-valuation falls upon the Revenue and is required to be discharged by production of evidence - In the absence of positive evidence, the value of export cannot be rejected on the basis of market enquiry or on flimsy ground: CESTAT [para 4]

Cus - Appellant had admittedly received the entire remittance of the export proceeding by way of BRCs - If that be so, the Revenue's case that there was overvaluation of the goods does not stand - Appellant having been able to sell the goods even at higher value to their foreign buyer and having realized the entire consideration for the export consignments, is entitled to the drawback admissible to him under the law - impugned order set aside and appeal allowed with consequential relief: CESTAT [para 4.1] - Appeal allowed: MUMBAI CESTAT

2018-TIOL-1220-CESTAT-MAD

India Cements Ltd Vs CC

Cus - The issue in all appeals is with regard to classification of coal imported by assessee - During relevant period, assessees were importing coal from different countries, especially from Indonesia classifying as steam coal - The steam coal attracted nil rate of duty whereas the bituminous coal attracted 5% duty as per Notfn 12/2012-Cus. - Regarding the issue of classification of coal, different Benches of CESTAT rendered conflicting decisions - The Chennai Bench as well as Ahmedabad Bench held that coal imported would fall under steam coal attracting nil rate of duty - It was also followed by the Mumbai Bench - On the other hand, the Bangalore Bench of CESTAT held that the coal imported would be bituminous coal attracting duty @ 5% - Thus, the matter was referred to Larger Bench and the issue was taken up for consideration by Larger Bench - Taking note of fact that the decision rendered by Bangalore Bench in case of M/s. Maruti Ispat and Energy Pvt. Ltd. was appealed before Apex Court, the Larger Bench directed that the matter being subjudice before Apex Court, the assessees were granted opportunity to come again before Tribunal after the verdict from Apex Court - The department has not filed any appeal against said Larger Bench decision - Thus, appeals remanded to adjudicating authority for denovo consideration basing upon the outcome of decision of Apex Court in Maruti Ispat and Energy Pvt. Ltd., as laid down by Larger Bench of Tribunal: CESTAT - Matter remanded: CHENNAI CESTAT

2018-TIOL-1219-CESTAT-HYD

Laxmi Traders Vs CC,CE & ST

Cus - Assessee had imported used MFD Copiers of different make from Sharjah, UAE and USA; they were not imported from manufacturers, but from traders, as the goods were used / second hand machinery and imported from traders - On examination of goods, they were found to be used copiers which was restricted as per FTP, were classified as 'Hazardous waste' in terms of Hazardous waste Rules, 2008 and import of such goods require permission from Ministry of Environment and Forests and DGFT - Entire challenge of assessee is towards valuation /enhancement of value by lower authorities based upon certificate issued by CE - Both lower authorities relied on circular 25/2015 which clarified that all the imported second hand machinery / used capital goods shall ordinarily be accompanied by an inspection / appraisement report issued by an overseas CE or Equivalent, prepared upon examination of goods at the place of sale - Undisputedly this circular has not been followed in the cases in hand - Thus, action of rejection of declared value is correct and that the valuation arrived at by lower authorities and the findings recorded by First Appellate Authority on these points are correct and legal and does not require any interference - As goods were without any prior licence or permission from Ministry of Environment and Forests, and imported in violation of para 2.3 of FTP, 2015-2020, goods imported have to be held as of prohibited nature and correctly confiscated by lower authorities - Impugned Order is correct and legal and does not suffer from any infirmity: CESTAT - Appeals rejected: HYDERABAD CESTAT