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SERVICE TAX
Saajawat and Company Vs CST
ST - the assessee company is engaged in interior designing work for construction projects executed by builders as well as individual owners of apartments - The Department opined that such services were taxable & raised duty demand with interest & penalties - Although the Tribunal remanded the matter to determine whether the assessee rendered any service of advice or consultancy, the Department confirmed the duty demand with interest & penalty u/s 78 of the Finance Act, 1994 -
Held - The Department was unable establish wilful suppression of facts by the assessee - In fact the assessee provided all details before the Department & even paid substantial portion of service tax before issue of SCN - The assessee also paid the balance duty demanded & also agitated the issue before the Tribunal, thus indicating bona fide belief that the service it provided was non-taxable - In such case, penalty u/s 78 is unwarranted - Hence, duty demand with interest is upheld while penalty is set aside: CESTAT (Para 1,5) - Appeal Partly Allowed : CHENNAI CESTAT
Shree Mohangarh Construction Company Vs CCE & ST
ST - Department proceeded against assessee on the ground that services provided by it to different parties fall under taxable category of service under cargo handling - Thus, it was contended by Revenue that assessee was liable to pay service tax for such service provided to different parties - Adjudicating Authority has dropped the SCN on the ground that principal activity of assessee was transportation of goods and cargo handling was incidental to such service and that recipient of service had discharged service tax liability, as recipient of service under Rule 2(1)(d) of STR, 1994 - However, Commissioner (A) has upheld the proposal made in SCN on the sole ground that the assessee did not produce any document to show that it owned the trucks and those trucks were used for transportation of the goods - On perusal of certificates issued by Shree Mohangarh Shramik Theka Sahakari Samiti Ltd., M/s Ujjwal Pariwahan Sahkari Samiti Limited and M/s Ideal Movers Pvt. Limited, assessee had in fact, used its own trucks for transportation of lime stone and for providing for such transportation services to various parties/ consignees, service tax liability were discharged by consignees under reverse charge mechanism, in terms of Rule 2(1)(d) of Rules read with Section 66A of the Act - However, since those document produced by assessee at this juncture were not available for scrutiny by Commissioner (A), matter remanded to the Original Authority for proper verification of documents to be produced by assessee: CESTAT - Matter remanded : DELHI CESTAT
South Eastern Coalfields Ltd Vs CCE & ST
ST - Assessee engaged in production of coal from its various mines and sells the same on payment of Sales Tax/ VAT - As per the requirement of customers, assessee also provides the activities of bringing down the sizes of mined coal into certain specific sizes - For providing such activities, assessee receives the consideration, in name of "sizing charges" - Department interpreted that such activities provided by assessee should fall under taxable category of BAS - Issue is quarely covered by decision of Tribunal in case of Mahanadi Coal Fields Ltd., wherein it is observed that sales tax and service tax cannot be made applicable on same transaction as the same is includible to each other - Impugned order set aside: CESTAT - Appeal allowed : DELHI CESTAT
CENTRAL EXCISE
CCT, Visakhapatnam GST Vs Sri Sitarama Lakshmi Jute Mills Pvt Ltd
CX - The assessee imported jute yarn from Bangladesh which was exempted from Basic Customs Duty and CVD - However, they paid SAD @ 4% as applicable and applied for refund of SAD under Notfn 102/97-Cus - Their application for refund was rejected by lower authority - Condition No. 3 of notfn 102/97 says that the application for refund must be filed with jurisdictional officer - Goods were imported through ICD Petrapole in West Bengal and jurisdictional customs officer is Assistant/Deputy Commissioner, Petrapole lCS with whom the refund application should have been filed - Instead, the importer filed the refund application with Assistant Commissioner of Central Excise, Vizianagaram - (SAD) @ 4% was introduced to provide a level playing field to the domestic manufacturers who suffer VAT - If imported goods are further sold on payment of VAT, SAD is refunded as per the notfn 102/97-Cus - It is not in dispute that the importer was entitled for SAD refund on merits - Refunds are sanctioned and conversely demands are raised only by officers having jurisdiction - If such a scheme of things is not followed, there will be chaos and confusion with any officer raising a demand or sanctioning a refund to any assessee - It is also an essential condition for sanction of refund as per the said Notfn - However, both the assessee and departmental officers were oblivious of this factor until the refund was sanctioned by Deputy Commissioner based on the first order of Commissioner (A) - The result is that refund is sanctioned by an officer without the jurisdiction - As that there is no dispute about the merits of admissibility of refund, there is no monetary loss to the Revenue - The technical fault of assessee in applying for the refund to the wrong officer and the fault of the departmental officers in sanctioning the refund are both Revenue neutral - Therefore, it founds unnecessary to interfere with impugned order: CESTAT - Appeal rejected : HYDERABAD CESTAT
CCE & ST Vs Isher Alloys Pvt Ltd
CX - The assessee is engaged in the manufacture of M.S. Ingots which is used as basic raw material by re-rolling mills - The assessee availed benefit of small scale exemption in terms of Notification No. 8/2003-CE - The Revenue found that there to be clandestine removal of goods with the intent to evade payment of duty - With respect to whether the benefit of small scale exemption is required to be extended to the assessee, when the final products have been removed clandestinely, the benefit of exemption cannot be extended - In addition, the Revenue imposed penalty on the director of assessee-company under Rule 26 of CER Rules, 2002 -
Held - There was difference of opinion between the Member (T) & Member (J) members on the issue of penalty imposed - The matter was referred to the Third Member, however, the issue has become infructuous as the Director passed away - In view of the same & the litigation policy of the Government, the penalty imposed is deleted: CESTAT (Para 2, 3, 4, ) - Revenue's appeal dismissed : CHANDIGARH CESTAT
AMP Products Ltd Vs CCE & ST
CX- The assessee manufactures pan masala & gutkha - The pan samagri was manufactured and cleared when there was no production of notified goods - The Revenue opined that duty was payable as assessee was manufacturing the notified goods from three separate machines - SCN was issued to pay duty on maximum number of pouch packing machines installed in their factory for manufacture of Gutkha - In addition, the assessee sought abatement of duty, which were rejected - Duty demand was raised for duty short paid -
Held - Rule 8 of PMPM Rules, 2008 provides that where a manufacturer uses an operating machine to produce pouches of different RSP during a month, duty is payable on pouches of the highest RSP for the whole month - In the Rules, the new retail sale price used in first proviso to Rule 8, the RSP of Rs 0.50/- per pouch cannot be treated as a new RSP, as it belongs to the same slab to which RSP of Rs.1 belongs - In the present case the assessee have paid the duty on the basis of MRP/RSP per pouch which is highest of the notified goods- Therefore, the demand is set aside - With respect to abatement the assessee is entitled to abatement during the period of closure, if they have removed or cleared any non-notified goods during the period of closure - Hence, the appeal is allowed : CESTAT (Para 2, 4, 5, 6, 7) - Appeal Allowed : ALLAHABAD CESTAT
CUSTOMS
NOTIFICATIONS
ctariffadd18_033
Anti-dumping duty on imports of 'Hydrogen Peroxide' originating in or exported from Bangladesh, Taiwan, Korea RP, Indonesia, Pakistan and Thailand by amending notification No. 28/2017-Customs (ADD) dated June14, 2017
ctariffadd18_032
Anti-Dumping Duty on imports of 'Digital Offset Printing Plates' originating in or exported from China PR imposed vide Notification No. 51/2012- Customs (ADD), dated December 03, 2012
No. 7/14/2018–DGAD
Initiation of anti-circumvention investigation concerning the alleged circumvention of anti-dumping duty
imposed on the imports of “O-Acid”, originating and exported from China PR
CASE LAW
KLA India Public Ltd Vs CC, CE & ST
Cus - Assessee engaged in export of Basmati Rice to various countries - The containers were opened for examination and samples were sent for test to M/s SGS India Pvt. Ltd. - It was reported in Test Report that the percentage of Basmati Rice in sample was nil - Therefore, said goods were confiscated and redemption fine was imposed - Further, penalty was imposed on assessee - After this Tribunal had directed to get the samples tested through Agmark approved laboratories in view of the fact that M/s SGS India Pvt. Ltd. was not a qualified laboratory as per Circular issued by the DGFT Revenue should not have once again relied on the test report given by M/s SGS India Pvt. Ltd. for adjudication in present matter - On going through OIO, it appears that Original Authority did not understand the process of adjudication nor he has any knowledge of judicial discipline - It was held by Tribunal by affirming the order dated 31/03/2010 passed by Commissioner (A) that report given by M/s SGS India Pvt. Ltd. was not qualified to adjudicate the matter - Original Adjudicating Authority passed the judgment on the finding of Tribunal through OIO - It is more pitiable that Senior Officer of Rank of Commissioner working as Commissioner (A) did not object to such an action by Original Authority - In view of stated observations, impugned order set aside: CESTAT - Appeal allowed : ALLAHABAD CESTAT
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