2018-TIOL-NEWS-106, Dated: Monday, May 07, 2018

ST - By producing a true copy of SCN dated 12.10.2006, signed by Mr.B.Ravichandran, the then Commissioner, who had issued the SCN and thereafter became the Technical Member of CESTAT and was also part of the Bench, which passed impugned orders in instant Civil Miscellaneous Appeals viz., Final Order dated 12.09.2017 and Misc. Order dated 14.09.2017, assessee submitted that Ground Nos.'J' and 'K' in CMA Nos.501 and 502 of 2018, respectively, have been substantiated - SCN dated 12.10.2006, shall form part of the record - It is evident that as adjudicating authority, on prima facie satisfaction, a SCN, has been issued - The said authority, has subsequently became a Technical member, on bench of CESTAT, which has decided the issue against assessee - Though likelihood of bias has not been pleaded before Tribunal, but a ground has been raised in instant appeals - Impugned order set aside and matter remanded to CESTAT, Chennai for fresh consideration on merits: HC - Matter remanded: MADRAS HIGH COURT

ST - Assessee made agreements/ arrangements with hotels namely, WH Rama International, Grand Bay, Srinivasa Resort, ITC Park (Chennai), Fortune Park Hotels Ltd., Maharaja Heritage Resorts Ltd., Landbase India Ltd., Sullivan Court and International Travel House for stationing various managerial/ supervisory personnel, in order to maintain ITC standards and run its operation in a smooth and efficient manner - It is an undisputed fact on record that assessee is not engaged in business of providing/ recruiting/ supply of man power - Since the actual expenses incurred by assessee towards deployment of managerial personal were reimbursed by hotels on actual basis, without any markup, it cannot be said that such expenses should be considered a service fee, taxable under category of "Manpower Recruitment or Supply Agency" service - In case of Fortune Parks Hotels Ltd. 2016-TIOL-3207-CESTAT-DEL , which is one of the hotels, where the respondent deploys its staff members, the Tribunal has held that the salary paid to the employees and reimbursed by the hotels, without any markup, cannot be subjected to service tax under Section 67 of the Act, by treating the same as part of the 'gross amount' charged by service provider 'for services provided by him' - No merit found in the appeal filed by Revenue, accordingly, same is dismissed: CESTAT - Appeal dismissed: DELHI CESTAT

CX – Rule 4(5)(b) of CCR - Moulds/dies manufactured and cleared by claiming exemption under notfn.67/95-CE to job workers for automobile part manufacture – demand made by denying exemption – entire exerise is revenue neutral – order set aside and appeal allowed: Tribunal by Majority [para 23] -Appeal allowed : CHANDIGARH CESTAT

CX - Assessee claim refund of excess duty paid on component of Sales Tax paid by them - Same was rejected by authority below on the ground that as Sales Tax has been paid after completion of the contract and same is not inclusive in the contract, therefore, they have to bear the amount of Sales Tax and whatever duly have been paid by them at the time of clearance of goods is correctly paid - Member (J) observed that the amount of Sales Tax paid by assessee during the normal period of limitation was required to be deducted from composite price of goods payable by assessee and on that amount, duty was not payable - In that circumstances, assessee is entitled to claim the refund of excess duty paid by them on account of Sales Tax paid by them - On the other hand, Member (T) observed that any increase in duties, tax levy after expiry of delivery date has no bearing on the price of past clearances, therefore, any increase in duty tax is to be borne by assessee from their account - Therefore, no excise duty has been paid on Sales Tax element and hence there is no excess payment of duty - Besides, assessee have failed to submit any concrete/specific documentary evidence to prove that contract price actually included the Sales Tax - In absence of any documentary proof, it is mere assumption that Sales Tax figure was included in price charged from the buyer - As there is difference of opinion between both the Members, therefore, matter is place before the President to appoint third Member to decide the issues: CESTAT - Case deferred: CHANDIGARH CESTAT

CX - Both the Revenue and assessee are in appeal against impugned order whereby Commissioner (A) has upheld the rejection of refund claim of Rs. 11,94,519/- on the ground that the claim filed after a lapse of one year from the date of purchase - However, Commissioner (A) has allowed the refund of Rs. 23,36,069/- - Issue has already been held in favour of assessee by High Court of Gujarat in case of Anita Exports 2014-TIOL-2162-HC-AHM-CUS which has also been considered by Division Bench in case of Adani Power Ltd . - By following the ratio of said decision, no infirmity found in impugned order granting the refund claim of Rs. 23,36,069/- claimed by assessee and the Revenue's appeal is dismissed - As far as assessee's appeal against denial of refund of Rs. 11,94,519/- on the ground of time-bar, both the authorities have wrongly computed the period of limitation from the relevant date, in fact the transaction in such a situation completes only on the payment of amount indicated in invoice and not from the date of invoice and in the present case the payments were made from 04.04.2014 to 21.04.2014 and if this is taken as a relevant date then the refund was well within the time limit and the rejection of refund on time-bar is not legally tenable and therefore, finding in impugned order rejecting the refund of Rs. 11,94,519/- on limitation set aside: CESTAT - Revenue's appeal dismissed: BANGALORE CESTAT

CX - The issue relates to demand of reversal of service credit taken on management consultancy service pertaining to the unit in location of area based exemption - Tribunal in assessee's own case vide order dt. 29/10/2015 disposed of two appeals against the same impugned order - Further in the order dt. 29/10/2015, this Tribunal has considered all the submissions of the assessee which have been raised in the present appeals also by the assessee as well as by the Department - Issues which are before this Tribunal have already been considered in the earlier appeals decided by Tribunal and therefore nothing found new to be considered in the present appeals - It is also a fact that assessee has not challenged the order of the Tribunal dt. 29/10/2015 vide which the Tribunal has disposed of two appeals of assessee - Therefore by following the judicial discipline, appeal of assessee disposed of on the same terms and condition vide which the earlier appeals were disposed of - As far as Department's appeals are concerned, no force found in the grounds raised by Department as the Department's appeals only relate to the non-imposition of penalty on the plant as well as on the ISD - Therefore Department's appeals are dismissed: CESTAT - Appeal disposed of: BANGALORE CESTAT

CUSTOMS

2018-TIOL-831-HC-MAD-CUS

Kanpur Trading Company Vs DCC

Cus - The petitioner has filed writ petition challenging an order passed by respondent dated 22.9.2017 - While considering the request made by petitioner for grant of provisional release of goods under Section 110A of Customs Act in respect of goods imported, respondent imposed three conditions for provisional release of goods, namely, execution of a personal bond, furnishing of a bank guarantee and p ayment of applicable differential duty on redetermined value - Court finds that the manner, in which quantum for furnishing of bank guarantee was calculated at Rs.1.70 Crores, was not clearly stated - Bearing in mind the object of provision under Section 110A, if this Court examines the impugned order, it is found that direction to furnish bank guarantee for a sum of Rs.1.70 Crores apart from executing a personal bond for a sum of Rs.2.29 Crores and payment of differential duty of Rs.64,30,210/- appear to be onerous - Therefore, interest of Revenue can be protected sufficiently by slightly modifying the conditions imposed in impugned order - Taking into consideration the fact that the Bill of Entry was filed in June 2017 and that the respondent himself is willing to provisionally release the goods, Court is inclined to dispose of writ petition by modifying the conditions imposed in the impugned order: HC - Writ petition partly allowed: MADRAS HIGH COURT

2018-TIOL-1433-CESTAT-MAD

L And T Metro Rail Hyderabad Ltd Vs CC

Cus - Assessee imported the 'Electrical Multiple Unit' (EMU) consisting of '2 EL S-PR RAILWAY COACH-DMC (Locomotive) (Drive motors cars-DMC)' and '1 EL S-PR RAILWAY COACH-TC (Locomotive) (Trailer cars-TC)' - These EMUs were intended for use in Hyderabad Metro - The dispute relates to correct classification of trailer cars which came as a combination of EMU along with DMCs - Assessee claimed classification of these EMUs under CTH 8603 1000 with full exemption of BCD in terms of Sl. No. 886 of Notfn 152/2009-Cus. while Revenue held a view that these TCs are not self-propelled railway or tramway coaches and they are more appropriately to be classified under CTH 8605 0000 as railway or passenger coaches not self-propelled - Admittedly, there is no dispute that EMU is a set of DMCs and TCs and whole propulsion of EMU is integrated with different components located in DMCs as well as TCs - DMCs have no capacity to draw or convert the power to make them capable of self-propulsion - That being the case, it is not clear how the DMCs can be considered as railway coaches with self-propulsion capacity apparently without pantograph and transformers DMCs cannot work - The point DMCs being self-propulsion coaches without the TCs itself is not sustainable - Based on technical specification and arrangement of functioning of EMUs, it is apparent and clear that EMUs operate together and TCs or DMCs cannot operate separately - It is clear that very same goods were examined by Committee which gave a categorical ruling that EMUs are treated together and are to be classified under CTH 86.03 - In fact, it is recorded that the T-cars could not be treated separately - Similar view has been taken by the US Customs authorities in advance ruling - TCs as well as DMCs which are integrally forming part to make a functional EMU are to be treated together for the purpose of classification assessment - The concession available, extended by Revenue to DMCs are to be extended to EMUs as EMU is an integrated unit consisting DMUs and TCs - Neither DMC nor TC can be self-propelled on their own: CESTAT - Appeals allowed: CHENNAI CESTAT