SERVICE TAX

2018-TIOL-1547-CESTAT-DEL

ST - Assessee is registered with Department for providing service under taxable category of C&F agent service - As per agreement entered into between assessee and M/S HLL, assessee had provided services to M/s HLL for receiving their stock of frozen products, store them in its cold storage and forward the same thereafter in such lots, to such parties and destinations, as directed by M/s HLL - For nonpayment of Service Tax on cold storage charges, Department entertained the view that cold storage charges should be included in gross value charged by assessee for C&F service and assessee should be liable to pay Service Tax on such gross amount - On perusal of agreement entered into between assessee and M/s HLL, it is found that the service receiver M/s HLL cleared the goods from their factory through their own transporter and upon receipt of goods in godown with cold storage facility, assessee's role started for handling those goods and forwarding the same to destination/buyers, as per the instruction of service receiver, M/s HLL - Thus, as per the scope of contract, it is evident that assessee had only provided the forwarding activities with regard to goods received from service receiver M/s HLL - Since assessee had not provided C&F Services simultaneously, activities undertaken by assessee, only for forwarding the goods, should not fall under taxable category of C&F services - Punjab & Haryana High Court in case of Kulcip Medicines (P) Ltd. 2009-TIOL-202-HC-P&H-ST has held that if one person has rendered services as Forwarding Agent, without rendering any service as Clearing Agent, he should not be termed as C&F Agent - Since the law with regard to leviability of Service Tax on C&F Agent service is no more res Integra, Service Tax demand confirmed by adding the value of cold storage charges in gross value of C&F Agent Service cannot be sustained: CESTAT - Appeal allowed : DELHI CESTAT

2018-TIOL-1546-CESTAT-MUM

ST - Refund - When it is undisputed that the respondent is not required to discharge any service tax on the various services (of shifting of HT/LT wires and widening of public roads and supply of cables) rendered by them in view of exemption notification 12/2012-ST, the judgment of the Bombay High Court in the case of Parijat Construction - 2017-TIOL-2170-HC-MUM-ST and In House Productions Ltd. - 2017-TIOL-1242-HC-MUM-CX will apply in full force - in these cases it is held that when service tax is paid under mistake of law, the question of limitation or time-bar as envisaged u/s 11B of the CEA, 1944 does not arise - Commissioner(A) was correct in passing the impugned order holding that the respondent is eligible for the refund of service tax paid by mistake - no reason to interfere with such a reasoned order, same is upheld and Revenue appeal is rejected: CESTAT [para 6] - Appeal rejected : MUMBAI CESTAT

CENTRAL EXCISE

2018-TIOL-1545-CESTAT-ALL

CX - The first assessee company is engaged in manufacture of Thermionic Valves (Electron Guns) and Heater & Cathodes for Electron Gun - The second assessee is a 100% EoU engaged in manufacture of picture tubes for Color Televisions - The second assessee holds a certificate issued under the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001 - This certificate permits it to obtain excisable goods at nil rate of duty from the first assessee - This permit was for one year and was later extended by another year - However, the Department refused to extend such certificate - Hence it held that some quantity of 14" size Electron guns cleared by the first assessee to the second assessee was not permissible & was in contravention of the certificate - Hence duty demand was raised against the second assessee and penalties were imposed on both assessees - Such findings were upheld by the Commr.(A).

Held - It is admitted that the permission granted 2004-05 for duty-free procurement had been extended for 2005-06 - The SCN does not record any such permission being granted for the following year - The only allegation is that the second assessee procured duty-free goods during June 2005 to August 2005 - Since the permission is granted till July 2005 for procurement of duty-free goods, there is apparently no violation of any provisions of the certificate - Hence the SCN and the resultant demands are set aside: CESTAT (Para 2,3,5,9) - Appeal Allowed : ALLAHABAD CESTAT

2018-TIOL-1544-CESTAT-CHD

CX - the assessee company manufacture cut wire shot & exported such goods - During the period of dispute, it issued ARE-1 for exporting goods - However, the buyer cancelled the order & the export could not be made - The goods were then received back in the assessee's factory - The Department issued an SCN on grounds that the assessee had not entered such goods in its daily stock account register & that it failed to prove re-entry of the goods meant for export - Duty demand was raised with interest & imposition of equivalent penalty - A further penalty was imposed under Rule 27 of the CER, 2002 - Later, the Commr.(A) upheld the duty demand with interest & reduced the penalty imposed under Rule 25 of CER - The penalty imposed under Rule 27 was set aside.

Held - That the export had been cancelled due to cancellation of order by the buyer, is not disputed - The assessee got the consignment cancelled by the Customs and paid demurrage charges - When returning goods to its factory, the assessee produced evidence of filing Sales Tax challan & evidence of transportation - D-3 intimation was submitted after receiving the goods in the factory - The Department did not verify the goods within 24 hours of receiving of intimation as required - Hence the Department's claim that delay in D-3 intimation due to which verification of return goods was not possible within 48 hours of intimation, is untenable and arbitrary - Hence the bona fide of the assessee cannot be doubted & demands cannot be raised merely based upon presumptions - Hence the O-i-A is set aside: CESTAT (Para 2,6,7) - Appeal Allowed : CHANDIGARH CESTAT

CUSTOMS

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CBIC imposes anti-dumping duty on Ceramic Rollers imported from China PR

CASE LAW

2018-TIOL-1548-CESTAT-MAD

Cus - The assessee is engaged in business of import and sale of modular kitchen & appliances - Assessee filed a claim for refund of 4% of Additional Duty of Customs levied under Section 3(5) of the Customs Tariff Act, 1975 - The adjudicating authority rejected the refund claim citing mismatch of description and that the Chartered Accountant did not mention the relevant period in the certificate - The appellate authority while ordering placed reliance on the decision of Delhi HC of Principal Commissioner of Customs Vs Riso India Pvt. Ltd - 2015-TIOL-2384-HC-DEL-CUS . wherein order of single judge bench of Madras HC KSJ Metal P. Ltd. Vs Under Secretary ( Cus ) had been relied on- In terms of Section 27A of the Customs Act refund claim can be denyed to a successful applicant - On appeal, Commissioner (Appeals) upheld the order of rejection of refund-On further appeal to CESTAT, the matter was remanded to Commissioner (Appeals) for re-adjudicating the matter afresh - The Commissioner (Appeals) set aside order of rejection of the refund claim - Revenue has appealed against the de novo order.

Held - The Tribunal held that the judgmenet in KSJ Metal Pvt. Ltd. which is relied upon in the Riso India judgment, has been stayed on an identical issue in writ appeal filed by the Department in the case of Radhalakshmi Metallurgicals - Therefore, the Tribunal remanded the matter to the original authority to decide the issue after outcome of the appeals filed by the Department: CESTAT (para 2,5,6) - Case remanded : CHENNAI CESTAT