SERVICE TAX
2018-TIOL-1583-CESTAT-MUM + Case Story
Akbar Travels of India Pvt Ltd Vs CST-I
ST - Notification 22/97-ST dt. 26.06.1997 - Any activity in relation to booking of passes by air travel agent would be covered under 'air travel agency services' - Whether the ticket is bought directly from the airline or through the General Sales Agent (GSA) the same would not make any difference - impugned order classifying the services under BAS and demanding service tax is not sustainable in law - Tribunal decision in Zuari Travel Corporation - 2013-TIOL-2301-CESTAT-MUM followed - order set aside and appeal allowed with consequential relief: CESTAT [para 8 to 11] - Appeal allowed: MUMBAI CESTAT
2018-TIOL-1582-CESTAT-DEL
SNC Lavalin INC Vs CST
ST - Assessee is a project office of M/s. SNC Lavalin Inc, Canada (SNC, Canada) - SNC, Canada entered into an agreement with Govt. of Uttaranchal and Canada Commercial Corporation (CCC) which mandated SNC, Canada to do design and other consultancy for project in India - They have undertaken designing and other engineering technical assistance from Canada - The project office in India was registered with statutory authorities in India as per existing regulations and discharged service tax on services rendered by SNC, Canada in terms of agreement - The dispute relates to service tax liability of assessee with reference to certain debit entries made in their books of accounts, which are with reference to deployment of certain officers by SNC, Canada in pursuance of agreement for engineering and technical assistance for the project in India - Regarding the contention of Revenue with reference to deemed legal entity in terms of Section 66A, scope of the said provisions have been subject matter of various decisions of Tribunal - There will be no tax liability by invoking such provision - In Kusum Health Care Pvt. Ltd. - 2018-TIOL-549-CESTAT-DE Tribunal relying on the decision of Torrent Pharmaceutical Ltd. - 2014-TIOL-2647-CESTAT-AHM and Milind Kulkarni - 2016-TIOL-709-CESTAT-MUM held that the fiction created under Section 66A to consider the branch of an assessee as a separate establishment is not to tax a service rendered to its head office - On the same ratio, even service if any received by branch office cannot be subjected to tax - Assessee has not received any service to be taxed in present situation - The debit entries are for maintaining complete financial transaction on behalf of SNC, Canada - Further, it is clear that SNC, Canada cannot be categorized as a manpower recruitment or supply agency while involving deputing their own staff to execute their own contract in India - No justification found to hold against assessee for service tax liability: CESTAT - Appeal allowed: DELHI CESTAT
2018-TIOL-1581-CESTAT-MUM
Aksh Medialab and Software India Pvt Ltd Vs CST
ST - CENVAT - Issue is whether for the purpose of rule 5 refund, the period of one year for filing the refund should be reckoned from end of the quarter for which the claim pertains or from the date of FIRC through which the convertible foreign exchange is received. Held: Though there is no explicit provision either in rule 5 of CCR and the notification and/or u/s 11B of the CEA, 1944, the issue has been considered time and again by the Tribunal and finally the Larger Bench in the case of Span Infotech India Pvt. Ltd. - 2018-TIOL-516-CESTAT-BANG-LB held that the relevant date should be taken from the end of the quarter and not from the date of FIRC – following the ratio of this decision, impugned order set aside and appeal allowed: CESTAT [para 4] - Appeal allowed: MUMBAI CESTAT
CENTRAL EXCISE
2018-TIOL-1580-CESTAT-MUM + Case Story
Manikgarh Cement Vs CCE
CX - CENVAT - Appellant in their own books of account have not booked the said C&F charges as a expenditure but as C&F charges recoverable - it is clear that C&F agency service provided by the C&F agency is for and on behalf of the buyer, therefore, merely routing billing transaction through appellant will not make appellant as recipient of service - services provided by C&F are not Input services for appellant - C&F charges was also not includible in the value of the final product - CENVAT credit rightly denied by lower authorities - case laws cited by appellant distinguished as in those cases the charges were borne by the assessee which stands absorbed in the value of final product/taxable services - Impugned order upheld and appeal dismissed: CESTAT [para 5] - Appeal dismissed: MUMBAI CESTAT
2018-TIOL-1579-CESTAT-MUM
PRS Permacel Pvt Ltd Vs CCE
CX - CENVAT - Credit availed on Modular Partitions, flame proof partitions, quartz plate, verticals panel, non-walkable ceiling, PCQ1 door etc. - Department alleging that these items would not fall under the category of capital goods and hence credit denied - appeal to CESTAT.
Held: It is the claim of the appellant that the above machinery and modular partitions are used in the manufacture of sensitive printing materials - there is no dispute that the goods were received in the factory premises and put to use for construction and partition of walls; there is also no dispute of the duty paid nature of the goods – similar issue came up before the Tribunal in the case of Rane Brake Lining Ltd. - 2011-TIOL-706-CESTAT-MAD wherein similar items of pre-fabricated structures used for fabrication of cold room were treated as capital goods and credit was allowed - following the same, impugned order is held as not sustainable and set aside – appeal allowed: CESTAT [para 5] - Appeal allowed: MUMBAI CESTAT
2018-TIOL-1578-CESTAT-MUM
Indian Hume Pipe Co Ltd Vs CCE & C
CX - Refund - Goods were cleared before the differential duty was crystallised in adjudication proceedings and the goods had been cleared on challans reflecting the declared price and declared duty liability - burden of differential duty would not have been passed on - rejection of refund claim by the lower appellate authority on the ground of unjust enrichment is not tenable - appeal allowed with consequential relief: CESTAT [para 5, 6, 8, 10] - Appeal allowed: MUMBAI CESTAT
2018-TIOL-1577-CESTAT-MUM
Ultratech Cement Ltd Vs Commissioner of GST & CCE
CX - CENVAT credit availed in respect of 'Diesel Hydraulic Shunting Locomotive' in the month of June 2013 and vide letter dated 06.08.2013, department was intimated of the same - SCN issued on 14.01.2016 seeking denial of credit - demand confirmed, hence appeal to CESTAT.
Held: Appellant have availed credit in the month of June 2013 and intimated the department on 06.08.2013 and a copy of the invoice was also submitted on 26.08.2013 – therefore, SCN issued on 14.01.2016 after the normal period of one year is time barred as no fact has been suppressed by the assessee – impugned order set aside and appeal allowed on the ground of time bar without going into the merits of the case: CESTAT [para 4] - Appeal allowed: MUMBAI CESTAT
CUSTOMS
2018-TIOL-1588-CESTAT-HYD
Babaji Shivram Clearing And Carriers Pvt Ltd Vs CC
Cus - The appellant herein is a Customs broker - During the period of dispute, it sought to renew its permit to operate as customs broker agency - While conducting a background check upon the appellant, there were no major irregularities found, except that two inquiry cases were pending against it - While the relevant authority from the appellant's parent Customs commissionerate cleared the appellant for extention of customs broker license, the jurisdictional authority rejected the request, considering the two pending cases - Subsequently, while the charges in one inquiry were dropped, despite repeated requests, the appellant's application was eventually rejected, in light of the other inquiry being pending - The adjudicating authority also held that intimation in Form C under Regulation 7 (2) of the CBLR 2013 does not automatically entitle a Customs broker to operate in a particular Customs station & that such right is conditional upon the permission granted by the jurisdictional Commissioner.
Held - Although the parent commissionerate did underscore the two pending inquiries, it nonetheless extended the appellant's license & that it had no objection to the appellant operating from a different station - Besides, the parent commissionerate also intimated about dropping of charges in one of the inquiries - Considering such circumstances, the order rejecting the assessee's application for extension is invalid & is not supported by law - The particulars in Form C cannot be used to deny to a CHA the right to operate in a particular commissionerate: CESTAT (Para 1,7) - Appeal Allowed: HYDERABAD CESTAT |
