2018-TIOL-1747-CESTAT-MUM + Case Story

Bhausaheb Baburao Ghuge Vs Commissioner of GST & CCE

ST - MIDC is a statutory body constituted by the Govt. of Maharashtra under Maharashtra Industrial Development Act, 1961 – services of garbage collection rendered to MIDC is exempted in terms of Sr.no.25 of Notfn. 25/2012-ST – since tax was not required to be paid by appellant, same is required to be refunded by Revenue – appeal allowed: CESTAT [para 6 to 8] - Appeal allowed: MUMBAI CESTAT

2018-TIOL-1746-CESTAT-BANG

Dix Engineering Project Services Pvt Ltd Vs CCE & ST

ST - Assessee is registered under Service Tax provision under category of works contract service, site preparation and clearance and construction services in respect of commercial or industrial buildings or civil structures - During audit, it was observed that although they have collected service tax but had not paid the same to Government account on taxable services rendered during period 2008-2009 and 2009-2010 under the categories of works contract service and supply of tangible goods services - Service tax along with interest has been paid by assessee before issue of SCN - The only issue which remains to be decided is penalty under Section 78 - It is a fact that assessee has collected service tax but not paid the same into Government account and the same has been done when Audit pointed out, which clearly shows that they have suppressed the facts - Though the assessee had shown service tax liability in their balance sheet for relevant period which is placed on record also but they have not shown the service tax liability in their returns filed with the Department - In fact, assessee during those two years have not filed returns, which clearly shows that they are liable to penalty - Assessee has relied upon the decision of Division Bench of Tribunal in case of Oriental Facility to show that adjudicating authority has not given the option of reduced penalty of 25% in adjudication order and prayed that the option may be given to them at this stage - By following the ratio of said decision, penalty imposed under Section 78 upheld but giving an option of penalty of 25% to assessee if the same is paid within one month: CESTAT - Appeal partly allowed: BANGALORE CESTAT

2018-TIOL-1745-CESTAT-DEL

D and H Secheron Electrodes Pvt Ltd Vs CCE

ST- in the manufacture of welding electrodes/ saw flux - The assessee availed Cenvat Credit in respect of Central Excise duty paid on the inputs and service tax on the input services - The assessee is the HO for other factories and has obtained ISD registration - This was a case of tax short paid wherein on the due date of payment the HO had no balance in their cenvat account - The assessee deposited the amount at a later date - On scrutiny of returns, the Department took a view that the assessee had wrongly availed/utilized cenvat credit - Duty demand was alongwith interest & penalty.

Held - The procedure initiated for recovery of the amount short paid by the assessee is proper -In addition, it is liable to pay interest for the days of delay in payment / reversal of the cenvat amount - As regards the show cause notice is not time barred as the assessee did not disclose the modus operandi voluntarily to the Department - Both penalties under section 76 & 78 of the FA Act, 1994 cannot be levied - Also, the entire disputed amount of Cenvat Credit has been reversed before issuance of show cause notice - Therefore, the penalty is reduced to 50% of the quantum of penalty confirmed by the Revenue Authorities : CESTAT (Para 2, 6, 7) - Appeal Dismissed: DELHI CESTAT

2018-TIOL-1744-CESTAT-MUM

CST Vs Basf India Ltd

ST- The assessee and various companies outside the country entered into agreement with the objective of defraying expense borne on common data server and software among the companies in the group - The assesee classified these services under the category of 'communication and system expenses', however the Department took a view that they are to be classified as OIDAR services - Duty demand was raised for payment of ST liability.

Held - In the present case, there is no evidence to establish that the assessee had access to data of others on the common server for which consideration was made over on which ST is to be charged - The assessee have not received OIDAR services from foreign service provider, therefore, not liable to ST - This follows from the decision of Tribunal in State Bank of India v. Commissioner of Service Tax : CESTAT (Para 1, 4, 5) - Revenue's Appeal Dismissed: MUMBAI CESTAT

CUSTOMS

Him Logistics Pvt Ltd Vs CC

Cus - Detailed investigation was carried-out by DRI in to the allegations of smuggling of televisions of sizes 32" and above, illegal import of Vitamin 'C' as well as illegal attempt to export contrabaned in form of Red Sanders Wood - The statements of various connected persons were recorded including that of Shri Bimendra Kumar Goyal, alleged kingpin of entire smuggling racket - As regards to appeal filed by M/s HIM Logistics (P) Ltd and directors Shri Ashok Sharma and Parkash Chand Sharma, case of department is that the assessee have acted as a Customs Broker at the Delhi Port with respect to some of firms alleged to have been used by Shri Bhimendra Kumar Goyal for his nefarious smuggling activities - Allegations made against assessee are not borne by evidence on record - Since assessee's name does not figure in any of fraudulent imports identified by DRI, no justification found for penalties imposed on four persons - For charge, that the assessees have failed to carry-out verification of KYC documents, no penalty can be imposed under provisions of Section 112 or 114A.

As regards to appeal filed by M/s Dex Logistics P Ltd and Shri Daulat Ram, Director, allegations against assessee are that they facilitated customs clearance of goods on behalf of Shri BK Goyal - The statement of Shri Daulat Ram, Director is on record - However, it is seen that allegation is not specific to any Bill of Entry identified against assessee - In absence of specific allegation, the charge of facilitation of illegal import cannot be sustained against assessee - Further, it is seen that no relied upon documents have been made available to assessee by Adjudicating Authority - Consequently, penalties imposed on two assessees set aside. -

As regards to appeal filed by M/s Shriniwasa Roadways P Ltd, Sh Nagendra Mishra, Shri Shriniwasa Bansal, assessees have admitted to transportation of 43 containers from Calcutta to Delhi through CONCOR - It further stands admitted that they have booked consignments showing their name as consignor on behalf of fictitious firms - Both Shri Bansal and Shri Mishra have admitted in their statement that empty containers were dispatched for loading of goods at places intimated telephonically - Assessees have to be held responsible for facilitating illegal import carried-out by Shri BK Goyal and Shri Rahul Goyal - Consequently, no reason found to interfere with penalties imposed on them which were sustained for the reasons mentioned, in detail, in adjudicating order.

As regards to appeal filed by Shri PK Ralli, Shri PK Ralli is alleged to have been actively involved in clearance of various goods imported by Shri BK Goyal in fictitious names - From the statement of Shri Ralli, it is revealed that he used to receive monetary consideration to the extent of Rs.3 to 4 lakhs per container from Shri BK Goyal - Shri Ralli is found to have acted as middleman and cleared several consignments of Shri BK Goyal in the past - He has admitted to have introduced many of fictitious firms to CHA M/s HIM Logistics or M/s HLPL Global Logistics - For such introduction, Shri PC Sharma of M/s HIM Logistics used to provide him commission on the basis of which consignment was imported in name of fictitious firms - The role of Shri Ralli is too significant to be ignored in the overall scheme of smuggling orchestrated by Shri BK Goyal.

Active role played by Shri PK Ralli in the scheme of illegal import under the direction and scheme of master-minded Shri BK Goyal stands established - No reason found to interfere with the penalty imposed on him which is sustained for the detailed reasons outlined in the impugned order: CESTAT - Appeals disposed of: DELHI CESTAT

2018-TIOL-1740-CESTAT-BANG

Delt International Services India Pvt Ltd Vs CC & ST

Cus - The dispute pertains to import of projectors by assessee during period April 2009 to April 2013 - Assessee claimed classification of imported goods under CTH 85286100 as "Projectors solely or principally used with Automatic Data Processing Machines" and also claimed the benefit of customs duty exemption under Notfn 24/2005 Cus. as well as successor Notfns 69/2004-Cus. and 28/2007-Cus. - Department was of the view that imported goods have features which are in addition to those which are normally found in goods covered under 85286100 and accordingly ordered classification of goods under 85286900 and denied the benefit of exemption notfns claimed by assessee - Classification of identical goods have been subject matter before Tribunal in several cases - In case of Casio India Co. Pvt. Ltd., Delhi Bench of Tribunal has considered the various features of projectors similar to ones imported by assessee - Various other decisions were considered on identical products in which classification of goods were ordered to be made under 85286100 as claimed by assessee - It has further been held that assessee will be entitled to benefit of various notfns as far as benefit of basic customs duty is concerned - I mpugned order is not sustainable and same is set aside: CESTAT - Appeal allowed: BANGALORE CESTAT