SERVICE TAX

2018-TIOL-1520-CESTAT-MUM + Case Story

ST - Refund - Rule 5 of CCR, 2004 - Notfn. 27/2012-CE(NT) dt. 18.06.2012 - Lower authority held that the date of filing of refund claim is the date when the physical refund claim along with all the documents were filed - it is surprising that on one hand the Revenue allows assessee to file refund claim online through ACES and on other hand, they are disputing such refund claim on the ground of time bar - there was no provision for filing the documents online and, therefore, filing of physical copy of claim along with supporting documents subsequently cannot be objected to - Date of filing of refund through ACES should be reckoned as date of filing of refund claim - also per the Larger Bench judgment in the case of Span Infotech India Pvt. Ltd. - 2018-TIOL-516-CESTAT-BANG-LB , one year for the purpose of Section 11B should be taken at the end of the quarter and not either from date of invoice or from the date of receipt of FIRC - on both counts, refund claim is filed within time, therefore, impugned order rejecting the claim as time barred is set aside and appeal is allowed: CESTAT [para 4] - Appeal allowed : MUMBAI CESTAT

2018-TIOL-1519-CESTAT-MAD

ST - Assessee engaged in export of textile made-ups under claim of drawback and filed a refund claim of service tax paid on various input services in terms of Notfn 41/2007-ST - Assessee further claimed that subsequent Notfn 33/2008-ST which allowed such refund of service tax even where exports were under duty drawback claim, should be considered as retrospective in nature and their claims should be sanctioned - An identical issue was considered by Tribunal in case of Art & Craft Inc. & others 2016-TIOL-1395-CESTAT-DEL , wherein it was held that Notfn 33/2008-ST cannot be held to be of retrospective nature and the refund claims filed prior to the introduction of said notfn would be hit by Notfn 41/2007-ST, if exports have been made under duty drawback - The said decision of Tribunal was followed in case of Judhana Art and Crafts as also in case of Shriram Rayon 2016-TIOL-3298-CESTAT-DEL - In as much as exports were made prior to the introduction of Notfn 33/2008-ST and were admittedly under the claim of drawback, the refunds are not admissible to assessee in terms of said orders of the Tribunal: CESTAT - Appeals rejected : CHENNAI CESTAT

2018-TIOL-1518-CESTAT-DEL

ST - Assessee engaged in manufacture of iron and steel products - The dispute is with reference to agreements entered into by assessee - Vide the Development Agreement, assessee along with other parties acquired the Development Rights to a certain piece of land situated in Nashik - Subsequently, vide the Sale Deed, said land was sold by original owners to M/s Great Fortune Investment and Infrastructure Pvt. Ltd. - Further, out of consideration of Rs. 3,00,00,000/- against said sale, a part amount of Rs. 85,50,000/- was received by assessee - The issue, precisely, is regarding this consideration received by assessee - The assessee's claim is that such amount is towards the sale of Developmental Rights for piece of land in Nashik, whereas Revenue has taken the stand that such amount is towards facilitating the sale of the said piece of land, and hence, liable to payment of Service Tax under category of "Real Estate Agent Services" - A similar issue was considered by Tribunal in case of M/s Viraj Estate Pvt Ltd 2017-TIOL-1948-CESTAT-MUM - After perusing said case, it is noted that M/s Viraj Estates Pvt Ltd was also one of the signatories to both the Development Agreement dated 19.06.2006, as well as Sale Deed dated 11.10.2006 - Vide the Sale Deed dated 11.10.2006, M/s Viraj Estates received an amount of Rs. 1,10,00,000/-, whereas the assessee received an amount of Rs. 85,50,000/- - In view of the above, assessee is similarly situated to M/s Viraj Estates, as far as Sale Deed dated 11.10.2006 is concerned - Tribunal has examined the demand of Service Tax made by Revenue on M/s Viraj Estates, in respect of the amounts received by them and held with no Service Tax is liable to be paid by them - By following the decision of Tribunal in Viraj Estates case, consideration received by assessee is towards sale of Developmental Rights to the land and cannot be considered as commission for real estates agents services - No infirmity found in impugned order, same is sustained: CESTAT - Appeal dismissed : DELHI CESTAT

CENTRAL EXCISE

2018-TIOL-1517-CESTAT-MUM + Case Story

CX - Valuation - Section 4 of the CEA, 1944 - Rule 7 of Central Excise Valuation Rules, 2000 - Plain MS/HSD cleared from the factory and the same was sold from the depot as "Speed" MS/HSD - Term "such goods" appearing in Rule 7 is the goods which originally cleared from the factory, in the present case it is plain MS/HSD, therefore, sale price of plain MS/HSD shall apply - Impugned order set aside and appeal allowed: CESTAT [para 5, 6] - Appeal allowed : MUMBAI CESTAT

2018-TIOL-1516-CESTAT-ALL

CX - Whether appellants/respondents manufactures, manufacturing Refined Vegetable Oil which is exempted under Notification, whether they are entitled to exemption on the items being Fatty acids, Wax, Gums and Spent earth under Notfn 89/1995-CE - Similar issue was considered by a Larger Bench of Tribunal in a batch of appeals, vide Interim Order dated 30 January, 2018 wherein it is held that ssessee is eligible for exemption under said notfn - Accordingly following the opinion expressed by Larger Bench, assessee is entitled to exemption under Notfn 89/1995-CE on their waste generated in course of manufacture such as Fatty acids, Wax, Gums and Spent earth - Accordingly, appeals filed by Revenue are dismissed: CESTAT - Appeals dismissed : ALLAHABAD CESTAT

2018-TIOL-1515-CESTAT-DEL

CX - Assessee engaged in manufacture of heavy commercial vehicles for transport of goods and chassis of motor vehicles which attracts Central Excise duty - The heavy commercial vehicles of assessee are meant to trudge long distances for transportation of goods, such as, sand, coal, ore and metals to construction sites and also from mines to far off locations - These vehicles also have a tripping function, which is used to unload the material carried in vehicles at the site by vertically tilting the carriage portion of truck - Department views that motor vehicles as well as chassis manufactured by assessee are not trucks designed for highway use, but were "dumpers" designed for off highway use - Such vehicles were classified, as per Revenue, under 870410 as well as chassis under 87060043 - The rate of excise duty on dumpers and tipper trucks were not different - In respect of chassis also the rates of duty were the same - However, there was difference in rate of duty leviable under NCCD leviable under Section 136 of FA, 2001 - In respect of complete vehicles, dumpers as well as tipper, NCCD was exempted under Notfn 21/2005-CE - But NCCD was payable on dumper chassis but not payable on tipper chassis - Identical issue has come up for consideration before Tribunal in assessee's own case wherein it was observed that motor vehicles manufactured by assessee do not fall in category of dumpers designed for off-highway use under 8704 10 - They are classifiable as claimed by assessee under 8704 2390 as tipper trucks likewise the classification of chassis also will fall under 87060042 and not under 87060043 as claimed by Department - By following said order, impugned order set aside: CESTAT - Appeal allowed : DELHI CESTAT

2018-TIOL-1514-CESTAT-DEL

CX - Assessee engaged in manufacture of Cement and clinker and their factory is located in State of Rajasthan where assessee was availing the interest on subsidy granted under "The Rajasthan Investment Promotion Scheme, 2003" - The assessee holds a valid entitlement certificate under scheme and availed the wage subsidy @ 25% of wage payment to workers; and interest subsidy @ 5% of interest paid on term loan, restricted to the maximum of 75% of VAT/CST paid - Department is of the view that amount of interest received from State Government Scheme, 2003 is includible in assessable value of goods cleared during period in dispute - Identical issue has come up before Tribunal in case of Shree Cement Ltd. 2018-TIOL-748-CESTAT-DEL wherein it is held that there is no justification for inclusion in the assessable value, the VAT amounts paid by assessee using VAT 37B Challans - Similar view has also been taken in assessee's case 2018-TIOL-727-CESTAT-DEL - Impugned order set aside: CESTAT - Appeal allowed : DELHI CESTAT

CUSTOMS

2018-TIOL-1513-CESTAT-AHM

Cus - The refund claim of assessee was rejected on the ground that since the assessee had not filed appeal against assessment order, therefore, refund claim filed under Sec 27 of Customs Act, 1962 is not maintainable - The assessee has submitted that subsequent to amendment to Section 27 of Customs Act, 1962 for claiming refund of duty paid, assessment order need not be challenged - The period involved in present case is after 1.4.2011 - Needles to mention, the relevant provision governing refund of Customs duty ie., Sec. 27 has been amended with effect from 1.4.2011 - In view of principles of law laid down by Delhi High court, post amendment to Sec 27, w.e.f. 1.4.2011 there is no necessity to file appeal against assessment order, while claiming refund under Sec. 27 of Customs Act, 1962 - In result, impugned order is set aside and matter is remanded to Adjudicating Authority to consider the refund claim on merit: CESTAT - Matter remanded : AHMEDABAD CESTAT

2018-TIOL-32-AAR-GST

VPSSR Facilities

GST - Railways cannot be called a Municipality under Articles 243P and 243Q of the Constitution of India - Function of Railways is not covered in Schedule XII of the Constitution as it only covers the constitutional functions of Municipalities - Therefore, Cleaning Services (of locomotives, railway stations, railway lines) supplied by the applicant to the Northern Railway are not exempted under Sl. no. 3 of Notification 09/2017-IT(R) as amended by 02/2018-IT(R) and parallel notifications of CGST & SGST - Northern Railway has informed their sanitation contractors vide letter dated 20.11.2017 that contracts for station sanitation would be exempt from GST provided it is a pure service contract  - since u/s 103 of the CGST Act, 2017, this ruling is binding only on the applicant and the jurisdictional officers, the Northern Railway is free to contest the same, however, the applicant is required to deposit GST as per this Ruling: AAR