2018-TIOL-1638-CESTAT-DEL
CCE & GST Vs Providence Equity Advisors India Ltd
ST - Assessee had filed instant refund claims seeking refund of CENVAT Credit for Banking & Financial Services, which have been exported out of India under Notfn 27/2012-CE(N.T.) - The adjudicating authority admitted that assessee provided services for Rs.9,81,08,841/- but realized Rs.1,70,97,480/- in convertible foreign exchange and held that the differential amount of Rs.8,10,11,361/- falls under 'other services' - In view of judgement in Aam Services India Pvt. Ltd. 2016-TIOL-725-CESTAT-MUM , Commissioner (A) held that the value of exempted services and taxable services provided in taxable territory is NIL - Accordingly, assessee would be entitled to refund of full CENVAT Credit reduced by Cenvat Credit of Rs.26,331/- along with interest - Apart from said decision, Appellate Authority has also referred to the High Court's decision in case of Quintiles Technologies Ltd. , wherein various decisions of Tribunal on said decision including the decision in case of Aam Services India Pvt. Ltd. were considered - Accordingly, Commissioner (A) has held in favour of assessee - Inasmuch as the issue stands decided by various decisions, which have not been distinguished by Revenue in their memo of appeal and applicability of the same has not been questioned by Revenue, no reasons found to interfere in impugned order: CESTAT - Appeal rejected: DELHI CESTAT
2018-TIOL-1637-CESTAT-DEL
Santur Developers Pvt Ltd Vs CCE & CGST
ST - Lower authorities have rejected assessee's application filed under VCES on the ground that an enquiry was pending against them - Assessee had filed the declaration on 23/12/2013 under the said scheme - As per Revenue, prior to said date, i.e., on 26/10/2012, a communication was addressed to assessee requiring them to produce the specified documents before officer within a period of 7 days of receipt of the letter - The assessee's contention is that the said letter was never received by them till the filing of declaration under VCES Scheme - The Board vide its circulars Nos. 170/5/2013-ST as also vide Circular No. 174/9/2013-ST has clarified that such type of roving enquiries would not attract the provision of Section 106 (2) (a) of FA, 2013 - In as much as vide the present communication assessee has only been directed to produce the various records maintained by them, the roving enquiries cannot be held to be an obstacle in filing in VCES declaration - In view of decision in case of Sidhi Vinayaka Enterprises Pvt. Ltd. 2016-TIOL-1325-CESTAT-DEL , in as much as in the present case the SCN has admittedly been issued beyond the period of 30 days, impugned orders of authorities below rejecting the VCES declaration are unsustainable: CESTAT - Appeal allowed: DELHI CESTAT
2018-TIOL-1636-CESTAT-MAD
Larsen and Toubro Ltd Vs CST
ST - Assessee availed Cenvat credit in respect of common input services in terms of provisions of Rule 6 (3) (c) of Cenvat Credit Rules - In as much as the utilization of credit availed was only to the extent of 20% of their tax liability on output service, the same left a balance of credit in assessee's Cenvat credit account - Under the advice of assessee's own auditors, they reversed such excess accumulated and unutilized credit lying in their books of Cenvat account - Revenue initiated proceedings for recovery of interest - Issue stands considered by Karnataka High Court in case of Bill Forge Pvt. Ltd. 2011-TIOL-799-HC-KAR-CX , wherein after considering the Supreme Court decision in case of Ind-Swift Laboratories Ltd. 2011-TIOL-21-SC-CX , the High Court held that in case the credit availed stands reversed, without utilization, no interest liability would arise - Impugned order set aside: CESTAT - Appeal allowed: CHENNAI CESTAT
2018-TIOL-1634-CESTAT-HYD
GMR Energy Vemagiri Power Generation Limited Vs CC & CE
ST- The assessee- company is engaged in generation and distribution of power - The assessee-company had entered into an agreement with a Korean entity for operation and maintenance of power plant - The agreement between assessee and Korean entity was a composite contract, assessee filed a refund claim of the amounts paid by them to Korean entity as service tax in respect of operation of the power plant for the disputed period - There were three questions to be answered by the Tribunal one of them being liability to pay service tax and whether the refund claims filed by the assessee were beyond limitation - Further, if the doctrine of unjust enrichment had been satisfied as the power purchase agreement between the assessee and entity states only one price towards purchase of power - The Revenue rejected the refund claims - However, the Adjudicating Authority ordered that operation portion of the power plant is undertaking manufacturing activity and out of the purview of service tax - Held - Following the ratio laid down in Hyundai Heavy Co. Ltd , the Assessee is eligible for filling refund claims as no service tax liability arises on operation charges of the fees paid to an entity - With respect to the refund claims being beyond limitation the provisions of Section 11B of Central Excise Act, 1944 which lays down the period within which refund claim is to be filed will not apply in view of no service tax liability - As regards unjust enrichment, the CA certificate shows bifurcation of the amounts towards maintenance charges and operation charges wherein it is specifically certified that the assessee has not passed on the service tax liability on the operations part to any one and has borne the burden of the service tax - The ratio laid down in Hero Motorcorp Limited is applicable in the present case: CESTAT (Para 3, 9,10,12) - Revenue's appeal dismissed: HYDERABAD CESTAT
CENTRAL EXCISE
2018-TIOL-1646-CESTAT-MUM + Case Story
Todi Rubber Pvt Ltd Vs CCE
CX – Whether the price is higher or lower during the exemption and thereafter cannot alone be the ground to hold that the appellant has collected the amount representing excise duty - Section 11D of CEA, 1944 can be invoked only if it is found that during the sale of the goods, part of the sale value is explicitly indicated as excise duty, which is not the case here - demand was raised without any basis u/s 11D and hence is not sustainable – impugned order set aside and appeal allowed with consequential relief: CESTAT [para 5, 6] - Appeal allowed: MUMBAI CESTAT
2018-TIOL-1635-CESTAT-CHD
Ritesh International Ltd Vs CCE & ST
CX - the assessee manufactures Stearic Acid & cleared the same on payment of duty - It also manufactured Hydrogenated Rice Bran Oil (HRBO) flakes & cleared these without payment fof duty - Upon investigation by the Revenue, samples were taken of the items manufactured & the same were tested in laboratories - It was alleged that the assessee cleared Stearic Acid under invoices mentioning HRBO flakes - The assessee was served SCN proposing re-classification of HRBO flakes - The Revenue alleged that the assessee was not manufacturing HRBO flakes & were only making Stearic Acid - Duty demand was raised with interest after invoking extended limitation - Equivalent amount of penalty was imposed as well, with personal penalty on the director of the assessee firm -
Held - The CRCL report relied on by the Revenue is inconclusive as to whether the items in question are HRBO flakes or Stearic Acid - Further, opinion was sought for the chemical composition of HRBO flakes - Further, the CRCL report states that the samples have characteristics of Hydrogenated material and the Stearic Acid can be obtained by splitting but not by Hydrogenation - Hence the samples drawn cannot be said to be of Stearic Acid - Since the reports are inconclusive, the benefit of dount goes in favor of the assessee - Also, statements of buyers are irrelevant in such facts & circumstances - While the Revenue relied on the invoices allegedly manipulated, it made no effort to quantify the goods or determine how the assessee allegedly manipulated the clearance of HRBO flakes - Admittedly, the assessee manufactured both items - The statements of buyers & suppliers claiming that the assessee cleared Stearic Acid in the guise of HRBO flakes, are uncorroborated with any evidence - Hence the demands raised are set aside: CESTAT (Para 2,17,18,19,20,21,22) - Appeals Allowed: CHANDIGARH CESTAT
2018-TIOL-1633-CESTAT-BANG
Hawe Hydraulics Pvt Ltd Vs CCT
CX- The assessee's are engaged in manufacture and clearance of excisable goods such as compact hydraulic power pack & hydraulic accessories falling under Chapter 84 & 5 of CETA, 1985 - They avalied CENVAT credit on manpower, rent professional fee, technical services, repair and maintenance and security, they were not maintaining separate set of accounts for receipt and usage of services for manufacture of dutiable and exempted goods - They followed the procedure of proportionate reversal of cenvat credit - The assessee highlighted that they cleared windmill energy goods without payment of duty - Moreover, they procured inputs without payments of duty and did not avail cenvat - With regard to common services they worked out the proportionate Input service attributable and reversed the credit - The Revenue took a view that the assessee had availed credit without payment of duty claiming exemption under Notification No.12/2012-CE - Duty demand was raised and assessee was asked to pay an amount equal to 6% of the value of the exempted goods as per Rule 6(3)(i) of the CCR, 2004 - Held - As the ratio of CCE v. Himalaya Drug Co. applies here, there is no liability of payment of the price of exempted products - Also, if the assessee has reversed proportionate credit before issuance of SCN which is the position in the instant case then Rule 6(3)(i) will not be applicable - Hence the order of Commissioner (Appeals) is set aside :CESTAT (Para 2,6,7) - Appeal Allowed: BANGALORE CESTAT
