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SERVICE TAX
2018-TIOL-1442-CESTAT-DEL Punj Lloyd Ltd Vs CST
ST - Assessee entered into an agreement with MCD for "Covering of Sunehari Nallah from Lala Lajpat Rai Marg to Dayal Singh College along Lodhi Road & covering of Kushak Nallah from Jawaharlal Nehru Stadium (South Gate) to IVTH Avenue Road, Lodhi Road, Lodhi Colony, for providing parking facility for Commonwealth Games-2010" - Revenue entertained a view that said construction activity will be covered for service tax liability under 'works contract service' for period 2007-08 to 2011-12 - Another issue regarding service tax liability of assessee is with reference to tax liability on manpower services provided to group company of assessee - Impugned order erred in making un-supported presumption regarding possible commercial usage, to uphold service tax liability under 'Works Contract Service' - Admittedly, creation of present facility by MCD using the services of assessee is for Commonwealth Games - It is clear that said games were organized and conducted by Govt. involving participation of large number of countries - Such sport event and the structure created for such sport event cannot be considered as commercial or industrial venture - Though the subsequent use of facility created should not have any implication on question of tax liability which should be with reference to status of facility at the time of provision of service, even here, the clarification issued by SDMC supports the case of assessee - Accordingly, impugned order is not legally sustainable in upholding tax liability under WCS.
On the Second issue, assessee have deputed some of their employees to their subsidiary group company - For such deputed employees, they have got consideration on actual basis reimbursed by the said subsidiary unit - The assessee have recovered cost for such deputation on actual basis without any mark up - Decision of Tribunal in Airbus Group India Pvt Ltd - 2016-TIOL-2312-CESTAT-DEL settles the issue in favour of assessee - Deputing employees to group company cannot be considered as supply of manpower - Service tax liability on assessee on this issue cannot be sustained: CESTAT - Appeal allowed: DELHI CESTAT
2018-TIOL-1438-CESTAT-DEL
Umak Educational Trust Vs CST
ST - ROM - Assessee submits that in para 11(i) of Final order, it is mentioned that courses which train the students for award of university degree such as B Sc. BBA, such courses cannot be considered as vocational courses - It is stated that this finding is wrong in view of Delhi High Court decision in case of Ashu Export Pvt. Ltd. 2014-TIOL-379-HC-DEL-ST - After hearing both the sides and perusing the material available on record, Tribunal has passed the Final order on 17.8.2017 - Assessee has already got the substantial relief and there is no further scope to grant the relief - ROM application is misuse of judicial process, and the same has no merit: CESTAT - ROM application dismissed: DELHI CESTAT
CENTRAL EXCISE
2018-TIOL-1440-CESTAT-MUM
Hindustan Petroleum Corporation Ltd Vs CCE
CX - CENVAT - Cavil is to the imposition of penalty although the disputed CENVAT credit had been reversed and interest thereon paid - appellant questions the issuance of show cause notice in the circumstances merely for imposition of penalty without evidencing the existence of ingredients enumerated in section 73(4) of the FA, 1994.
Held: Tribunal in the appellant's own case in Hindustan Petroleum Corporation Ltd. - 2017-TIOL-3834-CESTAT-MUM has held that appellant being a Government of India undertaking and no individual's interest is involved, no malafide can be attributed so as to impose penalty u/s 11ACof the CEA, 1944 - following the said decision, penalty set aside - appeal allowed: CESTAT [para 5] - Appeal allowed: MUMBAI CESTAT
2018-TIOL-1439-CESTAT-DEL
Scorodite Stainless India Pvt Ltd Vs CCE
CX - the assessee company manufactures SS Pipes & Tubes - The assessee availed Cenvat credit of service tax paid on outward freight from its factory to the buyer's premises - Such availment was challenged by the Revenue, who alleged contravention of Rule 2(3) of the CCR, 2004, as well as wilful suppression of facts with intent to evade payment of duty - Duty demand was raised for recovery of such credit, along with imposition of penalty under Rule 15(2) of CCR, 2004 -
Held - The issue of availing credit on input service of transportation for clearing final products from factory gate to buyer's premises, was hotly contested during the period of dispute - Matters on the same issue are pending before the Apex Court - Hence there is no contumacious conduct or suppression of fact by the assessee - Moreover, the SCN is not maintainable as it was issued for different period of limitation - It will not apply for the normal period, as per the Apex Court's decision in CCE, Jaipur vs. Alcobex Metals - Hence the demands imposed are set aside: CESTAT (Para 2,7) - Appeal Allowed: DELHI CESTAT
CUSTOMS
2018-TIOL-1441-CESTAT-DEL
Fast Cargo Movers Vs CC
Cus - Issue involves imposition of penalties for illegal export of Red Sanders, instead of declared goods as Polished Marble Slabs - Allegations against assessees are mainly concerned with failure to discharge their duties and responsibilities mandated under various Regulations for dealing with goods in legalized manner - Apparently, there is no material evidence available on record to prove that assessees were either involved in smuggling of goods, or encouraged and supported the wrong doer in doing the wrongful act in attempting to export the goods - These penal provisions call for prior knowledge of wrong doing or existence of deliberate intend (malafide) - Section 114 A of the Act also provides for imposition of penalty for furnishing incorrect or false declarations- Here also such declaration should be intentional with prior knowledge - Thus, as per the settled principles, penal provisions cannot be invoked for imposition of penalties under Section 114 and 114AA of the Act: CESTAT -Appeals allowed: DELHI CESTAT
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