SERVICE TAX
2018-TIOL-1316-CESTAT-DEL
CST Vs Hindustan Coca Cola Beverages Pvt Ltd
ST - Assessee engaged in manufacture and sale of aerated water, fruit pulp based juices and have registered with Service Tax Department for providing various types of services - During audit, Department noticed that certain incomes were booked under sub heading "other income" - The dispute is with reference to the amount booked under head "other miscellaneous income" - The Department alleged that such income is received on account of various services provided by assessee - Argument raised by assessee that miscellaneous income is not on account of any rendering of service but on account of sale of miscellaneous articles has been supported by submission of Certificate issued by Chartered Accountant - But it appears that such detailed break-up of various items under miscellaneous income as well as certificate issued by Chartered Accountant service does not seem to have been considered by adjudicating authority - Adjudicating authority's conclusion is very cryptic and is not a reasoned finding - Impugned order set aside and matter remanded to adjudicating authority: CESTAT - Matter remanded: DELHI CESTAT
2018-TIOL-1315-CESTAT-MAD
Trinity Papers India Pvt Ltd Vs CCE
ST - Assessee who are registered dealer for writing and printing paper and copier paper, were also engaged in marketing the products, namely paper bags meant for packing cement on behalf of M/s. APR Packaging Ltd., a unit of M/s. Ballarpur Industries Ltd. on commission basis since 1999 - On verification of records and investigations conducted by department, it appeared that assessee have rendered BAS and did not obtain registration or discharge service tax liability on commission received - The main contention of assessee is that out of total commission amount of Rs.87,29,235/-, an amount of Rs.47,11,000/- pertains to commission received by Shri V.M. Radhakrishnan who was the sub-agent for rendering BAS for M/s. Ballarpur Industries - There is no document placed to show that Shri V.M. Radhakrishnan was acting as an agent for and on behalf of M/s. Ballarpur Industries Ltd. / APR Packaging Ltd. - In fact, invoices issued by Shri V.M. Radhakrishnan are raised in name of assessee - This document shows that Shri V.M. Radhakrishnan has paid the service tax on commission received from the assessee - The document does not show that any commission was paid by M/s. Ballarpur Industries Ltd. to Shri V.M. Radhakrishnan - So the contention of assessee that Shri V.M. Radhakrishnan was a sub-agent acting on behalf of M/s. Ballarpur Industries Ltd. for Palakkad area, and that he has received commission from M/s. Ballarpur Industries Ltd. is untenable - Assessee is liable to pay service tax on the entire commission received by him - It is clear that assessee was holding a bonafide belief that they are not liable to pay service tax - In fact, they had discharged service tax other than the amount of commission received by Shri V.M. Radhakrishnan - The assessee has also given details of accounts maintained by them with regard to commission received as well as commission paid to Shri V.M. Radhakrishnan - Thus, assessee has put forward a reasonable cause for not discharging service tax liability and there is sufficient ground to invoke section 80 of FA, 1994 - Thus, penalties imposed are set aside - The matter is partly remanded for verification of the documents as to whether assessee is eligible for CENVAT credit: CESTAT - Appeal partly allowed: CHENNAI CESTAT
2018-TIOL-1314-CESTAT-DEL
Whitecliff Tea Pvt Ltd Vs CCE
ST - Assessee engaged in activity of blending and packaging of tea for M/s TATA Tea Ltd. and entered into two separate agreements with M/s TATA Tea Ltd. namely; lease/rent agreement and manufacturing agreement - Department, after investigation, came to the conclusion that the activity of packing undertaken by assessee for M/s TATA Tea Ltd. was liable to service tax under category of Packaging Service falling under Section 65 (105) (zzzf) - It stands admitted by assessee that the activity carried out was covered within the definition of service of packaging and hence they have admitted their liability to pay service tax on such activity - In this connection, their only request is that the cum duty benefit should be extended to them - By following the decision of Tribunal in case of Advantage Media Consultant 2008-TIOL-548-CESTAT-KOL, cum tax benefit allowed and the reduced demand is upheld.
As regards to lease agreement as per which the assessee has received consideration towards lease rent - Stand of Revenue is that even though there is a separate lease agreement dated 12/12/2000, it is nothing but a means of getting additional consideration for the packaging activity carried out on behalf of M/s TATA Tea Ltd. - Separate service of renting of immovable property has been included in statute only w.e.f. 01/06/2007 - Assessee w.e.f. that date has already started discharging the service tax liability under said service and under the lease agreement - In the result, service tax liability arises on consideration received under lease agreement only w.e.f. 01/06/2007 and the demand prior to this date is set aside - As per the decisions of Tribunal in cases of Rashtriya Ispat Nigam 2003-TIOL-102-SC-CX and Gaurav Mercantiles Ltd. 2005-TIOL-231-HC-MUM-CX, the liability for payment of service tax, after discharging of service tax prior to issue of SCN, merits consideration for waiver of penalty - By following these case laws, demand for penalty set aside: CESTAT - Appeal partly allowed: DELHI CESTAT
CENTRAL EXCISE
2018-TIOL-1322-CESTAT-MUM + Case Story
CCE Vs Helios Food Additives Pvt Ltd
CX - Assertion by Revenue that Writ Petition is pending is incorrect as the Writ Petition filed by Revenue had already been disposed of - It is obvious that the present appeal has been filed in a routine manner without application of mind as it ignores the fact that the said Writ Petition by Revenue had already been rejected by the High Court much before filing of the appeal – in view of the High Court's order since Section 4A is inapplicable and determination of value has to be done under Section 4 of CEA, 1944, there is nothing in the matter which needs further examination - Appeal dismissed: CESTAT [para 8 to 10] - Appeal dismissed: MUMBAI CESTAT
2018-TIOL-1313-CESTAT-BANG
Arvind Ltd Vs CCE
CX - Assessee is manufacturer of excisable goods i.e. Readymade Garments and are availing benefit of cenvat credit under CCR, 2004 - SCN was issued to assessee on various allegations - As regards to allegation that assessee availed cenvat on capital goods such as steel structures viz steel racks, slotted angle rack, self supporting ladder which were used for storage of raw materials and finished goods, assessee is entitled to cenvat credit during period August 2003 to December 2004 for cenvat credit on capital goods in view of decision of K.K. Nag Ltd. and the Larger Bench decision of Tribunal in Banco Products (India) Ltd. 2009-TIOL-421-CESTAT-AHM-LB - As regards to removal of fabrics as such under delivery challan without payment of duty and without reversing cenvat credit, for the period June 2004 to February 2005, department cannot recover the alleged irregular cenvat credit availed by assessee as there was no recovery provision during relevant period which came only on 01.03.2013 - As regards to raising debit notes on suppliers on the grounds of plea of fabric, returning or rejected fabric, returning of rejected fabric or defective fabric, for short receipt, amount collected through debit notes without reversing the credit to the tune of Rs. 3,89,825/- cannot be recovered from assessee because there was no recovery provision during the relevant period which came only on 01.03.2013 and in view of the decision in case of Heidelberg Cement India Ltd. 2017-TIOL-2120-CESTAT-BANG, department cannot effect the recovery of these amounts from assessee - With regard to denial of other credits for period January 2004 to February 2005 for the fabrics consigned to others received by assessee, assessee have submitted detailed documentations to prove their correlation but the same was not considered by both the authorities below - In view of this, case is remanded back to original authority to examine afresh all the documents which may be produced by assessee to establish the receipt of goods in factory: CESTAT - Appeal partly allowed: BANGALORE CESTAT
2018-TIOL-1312-CESTAT-ALL
Aroma Chemicals Vs CCE
CX - Assessee engaged in manufacture of various Mentha Products including De-Mentholised Oil (DMO) and also procured DMO from other manufacturers for use in their factory - During period from April, 2009 to March, 2011, they cleared DMO on ARE-3 to supply M/s Quality Flavors Exports, Moradabad, a 100% EOU out of the stock of DMO procured as input from other manufacturer on which Cenvat Credit was availed - Whether under Sub Rule (5) of Rule 3 of CCR, 2004, assessee was required to reverse said Cenvat Credit on clearance of DMO to 100% EOU - Provisions of Sub Rule (1) of Rule 6 of Cenvat Credit Rules shall not be applicable in case the excisable goods are removed without payment of duty to a 100% EOU - The provision that is pari materia as that of Rule 57F, is Sub Rule (5) of Rule 3 of Rules, 2004 - Further Sub Rule (1) of Rule 6 provide that Cenvat Credit shall not be allowed on such quality of inputs which are cleared without payment of duty - Sub Rule (5) of Rule 3 requires that it the inputs on which Cenvat Credit has been availed are cleared as such then amount equal to the Cenvat Credit availed on inputs is to be reversed - Taking above provisions of Rules into consideration, when Rule 57F was on Statute there was no provision equivalent to Caluse (ii) of Sub Rule (6) of Rule 6 - Therefore, the ruling by Larger Bench in case of Lakshmi Automatic Loom Works Ltd. 2008-TIOL- 1905 -CESTAT- MAD-LB is not applicable - If the Cenvat Credit is availed on inputs and if the same are cleared to 100% EOU as provided under Sub Rule (6) of Rule 6, Cenvat Credit of duty paid on such inputs cannot be denied: CESTAT - Appeal allowed: ALLAHABAD CESTAT
2018-TIOL-1311-CESTAT-KOL
CCE Vs Laxmi Electrovision Pvt Ltd
CX - the Department passed an order against the assessee - On appeal, the Commr.(A) settled the dispute in favor of the assessee - Hence the Departmental appeal - Held - The assessee did not object to the grounds of appeal filed by the Revenue - Hence the matter be remanded to the Commr.(A) to decide the matter: CESTAT (Para 1,3,4) - Case Remanded: KOLKATA CESTAT
CUSTOMS
NOTIFICATION
ctariffadd18_023
Seeks to amend notification No. 50/2017 Customs dated 30.06.2017 so as to maintain effective rate of BCD on Whey, concentrated, evaporated or condensed, liquid or semi-solid (0404 10 10) and Other Whey (0404 90 00) at 30%. CASE LAWS
2018-TIOL-1310-CESTAT-DEL
CC Vs Falcon India
Cus - Assessee is a CHA and certain proceedings were initiated against them under CBLR, 2013 for certain violations of Regulations - The original authority concluded that assessee is liable for penalty of Rs. 25,000/- under provisions of Regulation 18 r/w Regulation 20(7) and 22 of CBLR, 2013 for various acts of omission and commission - Revenue is in appeal submitting that the penal consequences are not appropriate and commensurate - Tribunal in cases of Aramex India Pvt. Ltd. 2017-TIOL-156-CESTAT-MUM and Naresh Jaisingh 2015-TIOL-2707-CESTAT-MUM, laid down that the conditions of CBLR, 2013 did not provide for an appeal by Revenue against the order of licensing authority - Issue regarding right of Revenue to file an appeal under CBLR, 2013 was specifically examined by coordinate Bench in more than one occasions and concluded that in presence of specific provision for CHA as well as no specific provision for Revenue, such appeal is not contemplated or permissible under CBLR, 2013 on the part of Revenue - No reason found to differ with said decisions and accordingly appeal filed by Revenue is not maintainable: CESTAT - Appeal dismissed: DELHI CESTAT
2018-TIOL-1309-CESTAT-DEL
ITC Infotech India Ltd Vs CC
Cus - These proceedings were initiated pursuant to SCN issued by officers of D.R.I. for the imports made prior to April 2011 - Jurisdiction of the D.R.I. Officers to act as 'proper officer' for demand proceedings under the Customs Act, 1962 has been a subject matter of dispute - In similar such cases, various Benches of Tribunal have set aside the impugned orders and remanded the matter to original authority for deciding the issue of jurisdiction and thereafter to decide on the merits of case, upon pronouncement of judgment by Supreme Court in case of Mangali Impex - Impugned orders set aside and matter remanfded to Original Authority for deciding the issues - Status quo shall be maintained in the interim period: CESTAT - Matter remanded: DELHI CESTAT |
