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SERVICE TAX
2018-TIOL-1466-CESTAT-CHD + Case Story
CCE Vs Punjab Cricket Association
ST - Once it is held that there is no mis-statement on the part of the appellant while setting aside penalty imposed u/s 78 of FA, 1994, can interest liability be saddled for the extended period of limitation – Difference of opinion – matter referred to President for Majority decision: CESTAT - Matter referred
: CHANDIGARH CESTAT
2018-TIOL-1458-CESTAT-MAD
APL Logistics India Pvt Ltd Vs CST
ST - Assessee engaged in providing Logistic Support Services - Dispute is with reference to two no. of items generated by assessee out of providing services to independent cargo exporters to the overseas buyers, namely, Container Freight Services (CFS) and Cargo Receipt (CR) Issuance Charges received by them from Indian exporters of cargo - It appeared to department that assessee is providing services on behalf of overseas logistics company appointed by overseas buyer and hence service tax liability would arise under heading of BAS - Discernably, when there is BAS provided, the service provider will markedly be responsible for resultant additional service, business and consequently additional business income/profit accruing to the client - No portion of CFS charges and CR Charges received by assessee from the Indian exporters of cargo are alleged to have been remitted or transferred to foreign client to APL WMS HKL - On the contrary, a certificate issued by Chartered Accountants of assessee confirm that CFS Charges and CR Issuance Charges is accounted by assessee as its income for the financial year 2003-06 and that the same is retained in India - While there is no allegation in SCN that CFS Charges and CR Issuance Charges have been further remitted or transferred to APL WMS HKL, it has been proposed therein to levy service tax, on the entire CFS Charges and CR Issuance Charges received by assessee - Thus, no portion of amount collected by assessee from Indian exporters of Cargo is being transmitted to APL WMS HKL - It is also pertinent to note that APL WMS HKL, do not also pay any commission fees or incentives to assessee - Hence, the impugned order, will not sustain: CESTAT - Appeal allowed: CHENNAI CESTAT
2018-TIOL-1457-CESTAT-DEL
MS Construction Vs CCE & ST
ST - Assessee is registered under CICS, since 2005 and under Works Contract Services (WCS) since 2007 - The present proceedings stand initiated with issue of SCN dated 19/10/2012, covering the period of demand 2009-10 and 2010-11 - It is seen from record that the earlier SCN dated 07/04/2010 was issued invoking the suppression clause under Section 73 of the Act covering the period 2004-05 to 2008-09 - Crux of issue raised in present proceedings is no different from that in earlier proceedings - All the issues remain the same - Even the respective contracts, received by assessee were from the same organizations for similar kind of construction work - Department is not justified in invoking the suppression clause once again in second SCN - By following the decision of Supreme Court in case of Nizam Sugar Factory 2006-TIOL-56-SC-CX, it is to be held that the demand raised in SCN dated 19/10/2012, on the same grounds as the earlier SCN dated 07/04/2010 has to be restricted to the normal time limit - Tribunal fail to see any specific evidence brought forth by Revenue indicating any positive act of suppression on the part of assessee - On account of this reason also, demand is to be restricted to that falling within the normal time limit - Matter remanded to adjudicating authority for de novo decision on merit for the period falling within the normal time limit - The assessee will have the liberty to argue the case on merit, especially in view of the submissions that the demands stand dropped for the earlier as well as subsequent periods: CESTAT - Matter remanded: DELHI CESTAT
CENTRAL EXCISE
2018-TIOL-1461-CESTAT-CHD + Case Story
Jindal Drugs Ltd Vs CCE
CX - Availing self-credit of duty paid in terms of notification 56/2002-CE or availing full exemption under notification 10/2010-CE - Both exemptions are issued u/s 5A of the CEA, 1944 - Settled law that choice is available to the claimant when more than one exemption is available on the same goods - no fault if the assessee claims benefit of 56/2002-CE and forgoes 10/2010-CE - demand unsustainable - impugned order set aside and appeal allowed: CESTAT by Majority - Appeal allowed: CHANDIGARH CESTAT
2018-TIOL-1460-CESTAT-MUM
Kiroloskar Oil Engines Ltd Vs CCE
CX - Section 4 of the CEA, 1944 - Valuation - Issue is whether 50% advertisement expenses borne by dealer with reference to sale of the finished goods by appellant should be included in the Assessable Value (AV) or otherwise.
Held: From the facts, it is clear that 50% of the advertisement expenses are borne by dealer - since this amount is not flowing to the manufacturer, it cannot be said that there is an additional consideration, therefore, there is no question of inclusion of any amount which is not flowing to the appellant - Issue is no longer res integra in view of the apex court decision in TVS Motors [2015-TIOL-299-SC-CX] - impugned orders are set aside and the appeals are allowed: CESTAT [para 4] - Appeals allowed: MUMBAI CESTAT
2018-TIOL-1459-CESTAT-DEL
Caparoo Engineering India Ltd Vs CCE
CX - the assessee company manufactures automobile parts & exports them - On audit, the Revenue raised duty demand to recover credit availed by the assessee under the head 'Business Auxiliary Service' - Penalty was imposed as well.
Held - The order confirming the duty demand with penalty discusses serious infirmities in the SCN issued to the assessee - Nonetheless, it denies credit on the sole ground that the input services were availed post-removal & post-export of the goods - However, the Revenue merely presumed that the input services were provided to the assessee by a foreign firm - The SCN made no specific allegation in this regard - The SCN omitted to categorize the input services or examine the provisions of CCR, 2004 - The assessee also claimed to have submitted & categorized details of services availed - Since the demands are based on assumptions, they are unsustainable - The matter warrants remand for fresh verification of facts: CESTAT (Para 1,5,6) - Case remanded: DELHI CESTAT
CUSTOMS
2018-TIOL-1456-CESTAT-DEL
RSR Forwarders Vs CC
Cus - Revocation of licence - Assessee filed shipping bill on behalf of exporter M/s R. P. Basmati Rice Limited for export of basmati rice - On examination, it was found to contain Red Sander logs which was concealed in container alongwith the non basmati rice - The CHA filed the shipping bill for clearance of basmati rice on behalf of exporter M/s R.P. Basmati Rice Limited - The shipping bill was filed on the basis of documents e-mailed to Ranbir Bhola, CHA through a middleman - The investigation has established that export of contraband was master minded by one Sh. Sumit who has impersonated as Sh. Sudhir and Sh. Chanderbhan, Proprietor of M/s Dwarika Logistics - Sh. Ranbir Bhola, CHA was in possession of an authorisation from M/s R.P. Basmati Rice Limited for clearance work - However, Ranbir Bhola, CHA filed the shipping bill on basis of invoice, packing list and other document which was sent to him by Sh. Chanderbhan by e-mail through Sh. Hitesh Bhatt - After the shipping bill was filed, Sh. Ranbir Bhola did not receive any intimation for export of goods and their examination at ICD, Loni - Later, during investigation, it was brought out that this was reportedly done by Sh. Sumit and after filing the shipping bill Sh. Ranbir Bhola had no more role to play in clearance of export consignment - Consequently, it appears that Sh. Ranbir Bhola was not directly involved in carrying the prohibited red sanders wood, alongwith non basmati rice used for concealing goods - However, investigation has established that they have failed in verifying the antecedent of the actual exporter - They have simply relied on the documents forwarded by Sh. Ranbir Bhola - This has, in fact, paved the way for substitution of cargo and attempt to export the contraband - Adjudicating authority have concluded that assessee is guilty of violation of various regulations of CBLR, 2013 - Even though the assessee is guilty, violations are not so grave as to justify the revocation of custom licence - Ends of justice will be met with forfeiture of security deposit of Rs. 75,000/- and in addition imposition of penalty of Rs.50,000/-: CESTAT - Appeal partly allowed: DELHI CESTAT
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