SERVICE TAX
2018-TIOL-1685-CESTAT-MUM
CCE Vs Limson Engineering Pvt Ltd
ST - Refund - Respondent received an order for fabrication of goods from customers and after carrying out the fabrication activity supplied the finished goods to the customers, raised invoices for labour charges and discharged service tax liability and filed returns - Revenue initiated action alleging that the fabrication activity undertaken amounts to manufacture on which the respondent is liable to pay central excise duty - SCN was issued demanding CE duty and the matter was settled before the Settlement Commission - subsequently, application filed for refund of service tax paid by mistake - claim rejected on ground of limitation and applying the doctrine of unjust enrichment - Commissioner(A) allowed the appeal of the assessee, therefore, Revenue before CESTAT.
Held: Once the matter was settled before the Settlement Commission, it should mean that the service tax discharged by the respondent was not payable by them and in turn it has to be held that the amount paid as service tax was held by the Revenue without any authority of law - 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 are directly on the point and covers the issue in favour of the respondent - Regarding unjust enrichment, the respondent had produced a Chartered Accountant certificate indicating clearly that the amount of refund claim filed by them are reflected in the balance sheet as amounts receivable from the Central Excise department and they have not passed on the amount to their customers - in absence of any contrary evidence to indicate that the respondent has received this amount from the customers, the lower appellate authority had come to a correct conclusion in holding that there is no unjust enrichment in the case - impugned order is upheld and Revenue appeal is rejected: CESTAT [para 8, 9] - Appeal rejected: MUMBAI CESTAT
2018-TIOL-1684-CESTAT-DEL
China Eastern Airlines Vs CST
ST- Assessee was providing services of 'Transport of Passengers by Air' and 'Transport of Goods by Air' - The issue at hand relates to liability to pay service tax on Passenger Service Fees & other charges collected, as part of consideration when the tickets are issued to the passengers - Duty demand was raised -
Held - An identical issue was settled yb the Tribunal in M/s Royal Jordanian Airlines & Ors. Vs CST, Delhi - Following such decision, the demands are set aside: CESTAT (Para 2,4) - Appeal Allowed: DELHI CESTAT
CENTRAL EXCISE
2018-TIOL-1683-CESTAT-BANG
Avery Dennison India Pvt Ltd Vs CCE, C & ST
CX - The assessee is engaged in the manufacture of Garments labels & are availing cenvat credit under CCR, 2004 - During internal audit, it was observed from the trial balance that provisions were made towards inventory obsolete of raw-material - Duty demand was raised & the original authority confirmed the demand of excise duty with interest & penalty -
Held - During the period in dispute there was no recovery mechanism to recover the Cenvat credit wrongly taken under the provisions of Rule 3(5B) - The recovery mechanism was brought into existence from 01.03.2013 vide Notification 3/2013 - Moreover, at the time of audit the assessee on their own reversed the cenvat credit - The demand of crenate credit for inputs along-with demand of interest & penalty is dropped - Therefore, following the ratio of Heidelberg Cement India Ltd. Vs. CCT the order-in-appeal is set aside : CESTAT (Para 1, 5) - Appeal Allowed: BANGALORE CESTAT
2018-TIOL-1682-CESTAT-BANG
CCE Vs Apotex Research Pvt Ltd
CX- The assessee is a 100% EOU manufacturing & export of organic compounds - The assessee filed refund claim for the accumulated CENVAT credit on input services under Notification No.5/2006-CE - In the Order-in-Original the refund claim of the assessee was rejected on grounds that the claim was time barred under Section 11B of the CEA, 1944 - The Commissioner (A) allowed the appeal holding that the limitation of time bar does not apply to a claim of accumulated CENVAT credit -
Held - In the case of export of goods, the relevant date for computation of period of one year will be the date of export of goods - This follows from the judgment of M/s. GTN Engineering (I) Ltd. vs. CCE the relevant date must be the date on which the final products are cleared for export - Hence, the order is set-aside and remanded for fresh adjudication: CESTAT (Para 2, 6, 7) - Matter Remanded: BANGALORE CESTAT
2018-TIOL-1681-CESTAT-BANG
Alupro Building Systems Pvt Ltd Vs CCE
CX - the assessee company manufactures Aluminium doors, window frames & Aluminium sections - An audit by the Department revealed that the assessee was not paying duty on Aluminium composite panels (ACP) - The assessee claimed that mere cutting of larger panels into smaller sizes & grooving did not change the nature of the resultant product - The Department claimed that the assessee cut ACP sheets as per the requirements of customers & also re-assembled the same at site & that such process amounted to manufacture - Duty demands were raised with interest & penalty - Later, the Tribunal settled the issue in favor of the assessee and held that ACP items were not excisable - Thereupon, the duty paid was refunded, partly in cash & part in the Cenvat a/c - Later, the High Court allowed the Department's appeal and restored the duty demands raised - Later, demands were raised from the assessee seeking reversal of the erroneously-granted refund, with interest -
Held - The assessee's appeal against the High Court's decision is pending - However stay on the operation of such order was rejected - In such circumstances, the decision of the High Court is binding on the present court - The duty demands are upheld: CESTAT (Para 2,7) - Appeal Dismissed: BANGALORE CESTAT
CUSTOMS
2018-TIOL-1686-CESTAT-BANG
Jameel Mohameed Khan Vs CC & ST
Cus- In the present case, the custom authorities confiscated gold biscuits found in the baggage of the assessee - The Revenue alleged that assessee was trying to smuggle the same without declaring it to the Customs - In the adjudication order goods recovered from the assessee were confiscated and penalty was imposed u/s 112 of the Customs Act - The Revenue approached Commr.(A) for modification of the order by imposing 10% of the value of seized goods u/s 114AA of the Act.
Held - As the case relates to baggage which involves gold smuggling, there is bar on jurisdiction of the Tribunal to decide the matter - Therefore, the appeal is not maintainable as per section 129A of the Customs Act, 1962: CESTAT (Para 2,3,4) - Appeal Dismissed: BANGALORE CESTAT
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