ST - When the review order and the appeal of the revenue has not disputed the portion of order dropping the demand, the revenue cannot, in hearing, before the Tribunal dispute the same - Without any evidence, in the SCN, it is assumed that the restoration work has been performed in India, therefore, service tax liability cannot be fixed on respondent - Entire exercise is also Revenue neutral - Moreover, nature of services was in the knowledge of the revenue since 2008 as appearing in the regular correspondence with the revenue and, therefore, there is no ground to raise demand by invoking extended period of limitation - Revenue appeal dismissed: CESTAT [para 4 to 6] - Appeal dismissed: MUMBAI CESTAT

ST - Agreement is for supply of materials and cannot, by any stretch of imagination, be considered as an agreement for rendering services and the amount of advance received against this agreement, cannot become part of the value for demand of service tax liability - Service tax demanded to the said extent is set aside and so is interest and penalty thereon: CESTAT [para 7, 8]

ST - Penalty - Tax liability and interest paid by appellant and is not contested - Appellant being in the organized sector should have discharged the service tax liability on receipt of the amounts as an advance from RINL in the matter of invoice no. 8 and 10 i.e. agreements no. 1 & 3 without waiting for the audit party to point out the errors – Penalty upheld: CESTAT [para 6] - Appeal disposed of: MUMBAI CESTAT

ST - Assessee, a 100% EOU engaged in manufacture and export of spices and spice products - 50% of their issued capital is held by M/s. AVT group and 50% by M/s.Mc Cormick Co Inc, USA - The assessee was receiving the services of latter with reference to technical know-how and assistance as per an agreement entered into between them and they were paying fees for those services as royalty - As it appeared that assessee as service receiver is liable to pay service tax on said services as service provider is not a registered unit in India, a SCN was issued to assessee - Sole contention of Department is that such technical know-how is recognised under international treaties to which India is a signatory and hence it is leviable to tax in India - As per Article 253 of Constitution of India, for implementing any treaty agreement or convention with any country or any decision made at international conference, there should be a municipal legislation enacted for giving effect to such international agreement or treaties - Further, SCN does not clearly state the nature of know-how which the assessee has availed from his foreign company - In the case of Navinon Ltd. 2004-TIOL-710-CESTAT-MUM , it has been held by Tribunal that receiving technical know-how from foreign company against payment of royalty not being an authorised representative of foreign company cannot be fastened with service tax liability - Therefore by following the ratio of said decision, impugned order is not sustainable in law: CESTAT - Appeal allowed: BANGALORE CESTAT

ST - Assessee engaged in manufacture of MDF, particle boards and wooden flooring - They have availed service of GTA - They paid service tax on reverse change basis on such GTA service - Contending that such tax was paid erroneously by them and claiming exemption under S.No.21 of Notfn 25/12-ST, as amended for transportation of agricultural produce by road, assessee filed claim for refund of said amount - Same was rejected on the ground that logs/wood/timber transported by GTA for assessee is not an agricultural produce and as such, the service tax paid by assessee on such transportation service is correct and no exemption is available - The impugned order examined the scope of term "agriculture" and "agricultural produce" in terms of Section 65 B - The impugned order did not record a categorical evidence to the effect that these trees are cultivated /grown by specific effort and intend using human skill and labour, as is the case with the general agricultural cultivation - The claim of assessee and the observation in impugned order are generic and resolution of dispute was not focused on this crucial aspect - Rather more emphasis is given only on "processes" undertaken on wood logs - In absence of categorical evidence recorded to contrary, it is to be considered that timber now under considerations is wholly or partly out of spontaneously grown trees and not all are product of deliberate cultivation due to human agency or effort - Dealing with the income generated in sale of such timber/wood for income tax purposes the High Court and Apex court held that income cannot be treated as agricultural income - Exemption available to GTA service for transport of 'agricultural produce' cannot cover the transport of cut wood of trees - Accordingly, impugned order set aside: CESTAT - Appeal allowed: DELHI CESTAT

2018-TIOL-1327-CESTAT-DEL

2018-TIOL-1325-CESTAT-BANG

CUSTOMS

Cus - Assessee have imported semi-finished spectacle and had sought clearance of same classifying the said semi-finished spectacle lenses under Chapter subheading 9001.40.90 and 9001.50.00 respectively, depending on nature of materials used in lenses and claiming benefit of exemption under Notfn 6/2006-CE - Assessing Authority had concluded that semi-finished spectacle lenses can be more appropriately classifiable under Chapter subheading 9001.90.90 of Customs Tariff Schedule, as 'other' optical elements and denied the benefit of exemption contained under Notfn 06/2006-CE - Issue involved is no more res integra and has been settled by apex court in favour of assessee in their own case in 2016-TIOL-87-SC-CUS wherein the apex court disposed of the bunch of appeals by assessee and has allowed the appeals of assessee with consequential relief - By following the ratio of decision of apex court, impugned order set aside: CESTAT - Appeals allowed: BANGALORE CESTAT

Cus - Assessee exported Indian Brown Basmati Rice Par-boiled through Shipping Bills - Representative samples were drawn and were sent to directorate Marketing and Inspection, Regional Agmark Laboratory, New Delhi, which was duly approved by DGFT - The test report further certified that the samples confirmed to the requirement of length and length/breadth ratio, as per DGFT Notfn 55 (RE-2008)/2004-2009 - Oiginal authority held that though samples confirmed the requirement of said Notfn, since they did not confirm to Basmati Rice (Export) Grading and Marketing Rules, 1979, the export of said goods was prohibited and ordered for confiscation of goods exported - Parameters laid down under said DGFT Notfn read with Notfn 57/2009-2014 have been met with - No merit found in impugned order in confiscating the goods in question which have already been exported and imposing penalty on assessee and its proprietor, based on negative report received from laboratory in the light of Basmati Rice (Export) Grading and Marketing Rule, 1979, especially when the said report was challenged and request for retesting the samples by some other laboratory was made which was rejected without any plausible reasons - Impugned orderset aside: CESTAT - Appeals allowed: ALLAHABAD CESTAT