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SERVICE TAX
2018-TIOL-1800-CESTAT-DEL
Devendra Arora Vs CCE & ST
ST - Appeals have been filed by assessee against impugned order of Commissioner (A) whereby one appeal has been dismissed on time bar and another appeal has been rejected on the ground that assessee have not furnished the invoices and service tax details and service tax registration number not available on invoices - Assessee is registered under service tax for providing computer software and other allied services - As taxable services rendered by assessee were exported outside India, input service credit availed by assessee on taxable input services remained unutilized - The assessee therefore applied for refund of unutilized input service credit under Rule 5 of CCR, 2004 r/w with notfn 27/2012 CE - Same was rejected by sanctioning authority - By following the Larger Bench decision in case of Span Infotech (India) Pvt. Ltd. 2018-TIOL-516-CESTAT-BANG-LB , case remanded back to the original authority to decide the refund claims as per said decision of Larger Bench - The second appeal is also remanded back to the original authority with a direction to consider all the invoices and the documents which the assessee may produce before original authority and thereafter original authority will pass de novo order deciding both the appeals: CESTAT - Appeals partly allowed: DELHI ITAT
2018-TIOL-1799-CESTAT-BANG
Arris Group India Pvt Ltd Vs CCE, ST & C
ST - Appeals have been filed by assessee against impugned order of Commissioner (A) whereby one appeal has been dismissed on time bar and another appeal has been rejected on the ground that assessee have not furnished the invoices and service tax details and service tax registration number not available on invoices - Assessee is registered under service tax for providing computer software and other allied services - As taxable services rendered by assessee were exported outside India, input service credit availed by assessee on taxable input services remained unutilized - The assessee therefore applied for refund of unutilized input service credit under Rule 5 of CCR, 2004 r/w with notfn 27/2012 CE - Same was rejected by sanctioning authority - By following the Larger Bench decision in case of Span Infotech (India) Pvt. Ltd. 2018-TIOL-516-CESTAT-BANG-LB , case remanded back to the original authority to decide the refund claims as per said decision of Larger Bench - The second appeal is also remanded back to the original authority with a direction to consider all the invoices and the documents which the assessee may produce before original authority and thereafter original authority will pass de novo order deciding both the appeals: CESTAT - Matter remanded: BANGALORE CESTAT
2018-TIOL-1798-CESTAT-DEL
Air Travel Bureau Ltd Vs CCE
ST - Assessee provides various taxable services, categorized under Air Travel Agent's Services, Rail Travel Agent Service and Rent-a-Cab Scheme Operator Service - During scrutiny of records, it was observed by Service Tax Department that as per the understanding made between assessee and M/s. Amadeus India Pvt. Ltd., said company has provided Central Reservation System (CRS) to book air tickets of various Airlines, with which they had business tie-ups - Department interpreted that such CRS activities are confirming to definition of BAS - The law is well settled that incentives/commission received from CRS Companies is taxable under category of BAS - Assessee also concedes the fact that they are liable to pay service tax under category of BAS - However, he pleads that leviability of service tax on such service was highly contentious and the issue was finally resolved by Tribunal in case of D. Pauls Consumer Benefit Ltd. 2017-TIOL-908-CESTAT-DEL - Thus, he contended that extended period of limitation cannot be invoked for confirmation of service tax demand and for imposition of penalties - The extended period of limitation as per the proviso to Section 73 (1) of the Act is invokable, only in situation, where there is involvement of suppression, fraud and mis-statement with intent to evade payment of service tax - It is an accepted fact that said ingredients are absent - Thus, in absence of proper substantiation regarding involvement of assessee in fraudulent activities, extended period of limitation cannot be invoked for confirmation of adjudged demand and demand, if any, should be confined to normal period - In an identical situation, Tribunal in case of Janta Travels Pvt. Ltd. 2017-TIOL-2943-CESTAT-DEL has held that extended period of limitation cannot be invoked, since leviability of service tax on CRS was not free from doubt - Assessee is liable to pay service tax under the normal period of limitation along with interest - However, no penalty shall be imposed on assessee: CESTAT - Appeal allowed: DELHI CESTAT
2018-TIOL-1797-CESTAT-DEL
Dynamic Enterprises Vs CCE & ST
ST - Assessee engaged in providing various services to Railway viz. Cleaning Services, Management, Maintenance, Repair Services and Cargo Handling Services - The dispute covers the period 2005-2006 to 2009-2010 during which the Department took the view that the various services provided by assessee were liable to payment of service tax.
As regards to demand of service tax made in regard to Mechanised washing and cleaning of mail express and passenger trains, Service tax levy of cleaning service cannot be levied on cleaning of railway wagons and coaches, as has been held by Tribunal in case of M/s R. K. Refreshment and Enterprises Pvt. Ltd. 2018-TIOL-817-CESTAT-DEL - However, in respect of railway buildings, premises, the same will be covered under category of cleaning of commercial or industrial buildings and premises thereof and hence liable to payment of service tax under Cleaning Service - Since the adjudicating authority has clubbed both the categories and raised demand of service tax under Cleaning Service, original authority is directed to bifurcate the demand and confirm the same only to the extent of cleaning activity of railway premises.
As regards to Cleaning and house-keeping of railway running rooms, washing and cleaning of bed sheets and pillow covers, cleaning and house-keeping of railway running rooms are liable to service tax under Cleaning Service - Washing and cleaning of bed sheets, pillow covers are also more appropriately classified under Cleaning Services rather than under ‘Management, Maintenance & Repair Service' - It cannot be readily observed whether the services falling under this category were proposed for classification under management or maintenance service - Hence, adjudicating authority is directed to uphold the demand of service tax under this category if the same was proposed for classification, in SCN under category of cleaning service - If it is otherwise, assessee will be entitled to benefit of travelling beyond the SCN.
As regards to services categorised under water tightening of wagons in monsoon season, maintenance of passenger amenities, running maintenance, repair, replacement of defective carriage watering hydrants and provisioning & maintenance of water, service tax demand in respect of three categories under the maintenance, management or repair service upheld - The tax will be liable to be paid alongwith interest, if not already done - However, since this involves interpretation and classification of service into different categories, penalty applicable on these services can be waived in respect of Section 80 if service tax liability with interest has already been paid prior to issuance of SCN.
As regards to supply, maintenance and supervision of mechanised machineries to be used for cleaning of various railway stations, assessee has supplied the machines to railway and for the consideration received, the adjudicating authority has charged service tax under category of Supply of Tangible Goods Service - Service is to be considered as supply of tangible goods service only in those cases which do not fall within ambit of VAT - The adjudicating authority is directed to verify the claim of assessee that VAT applicable to transaction have been paid and if so the demand for service tax is to be set aside: CESTAT- Appeal partly allowed: DELHI CESTAT
CENTRAL EXCISE
2018-TIOL-1804-CESTAT-AHM
Laxmi Steel Traders Vs CCE
CX - Assessee engaged in manufacture of excisable goods and opted for payment of Central Excise duty at the concessional rate of duty @ 9.6% adv. under Notfn 9/2003-CE on the clearances of their finished goods in financial year 2003-2004 - Allegation of Revenue is that there were shortages in stock of finished goods and scrap on the day of visit by central excise officers - The shortages were admitted by Power of Attorney holder and by Partner of firm Shri Niranjbhai Kantilal - The contention of assessee is that the documentary evidence submitted by them has not been considered by first appellate authority - In order of Commissioner (A), it is seen that there is no finding on documents submitted by assessee in their defence - Besides, the documentation which has been submitted before Tribunal requires to be examined by Commissioner (A) - Finding of Commissioner (A) on eligibility of assessee for small scale exemption is tentative and not categorical - In SCN itself, it is mentioned that assessee was eligible for concessional rate of duty, as aggregate value of their clearance was well within the limit of Rs. 3 crores in financial year 2002-03 - However, the same has not been taken into account by first appellate authority - Matter remanded to Commissioner (A), who should give findings on documentary evidence adduced by assessee in their support and to pass a fresh order on the issue of shortages and on the issue of eligibility of small scale exemption in accordance with law: CESTAT - Matter remanded : AHMEDABAD CESTAT
2018-TIOL-1803-CESTAT-AHM
Chalthan Vibhag Khand Udyog Vs CGST & CE
CX - Alleging that the assessee had wrongly availed CENVAT credit on HR Coil, MS Pipe, SS Tube and Joints used for fabrication of capital goods and its supporting structures, SCN was issued for recovery/ appropriation of said amount with interest and penalty - Issue is addressed in case of Singhal Enterprises Pvt. Ltd. 2016-TIOL-2451-CESTAT-DEL wherein credit is held to be admissible - Even though in principle, assessee is eligible to credit, however, the use of said item is not supported by evidence, hence, the matter is remanded to adjudicating authority for verification of the said facts: CESTAT
With regard to appeal filed by assessee, in case of Ultratech Cement Limited 2010-TIOL-745-HC-MUM-ST , Bombay High Court has held that any input service availed by assessee in course of their business of manufacture of excisable goods, assessee is entitled to avail credit on these services - Technical Director is an employee of company who assisted the assessee to do day to day manufacturing operation - The rent paid for technical director as terms of employment and is a part of expenses incurred by assessee - Admittedly, said service has been availed prior to amendment in Rule 2(l) of CCR, 2004 w.e.f. 1.4.2011 - Once such service has been excluded specifically, in that circumstance, credit has been correctly availed by assessee prior to that period, it is mandate of law, the assessee was entitled to avail credit - Therefore, in view of decision of Bombay High Court in case of Ultratech Cement Limited , assessee is entitled to avail credit of service tax paid on rent for residence of Technical Director: CESTAT - Matter remanded : AHMEDABAD CESTAT
CUSTOMS
NOTIFICATION
dgft18pn013
Eligibility of Indian Mackerel under Table 2 of Appendix 3B of Foreign Trade Policy 2015-20
dgft18not011
DGFT removes Port restriction on import of Natural Rubber of all forms covered under EXIM Code 4001
CASE LAW
2018-TIOL-1796-CESTAT-HYD
CC Vs Steel Authority of India Ltd
Cus - Interest on delayed refund - Assessee is in appeal for non granting of interest in the case of belated sanctioning of refund while revenue is in appeal against impugned order upholding the contentions of assessee that they are not liable to pay any differential duty and amounts of duty paid is to be refunded back to them - Assessee was granted adhoc exemption for import of TMBP coils at concessional rate of duty is cleared before 30.04.1984 by virtue of allocation order issued by Iron & Steel Controller - Based upon the revised order of Iron & Steel Controller, assessee cleared additional 8279.59 MT imported through Vizag Port - This quantity was sought to be disputed by Customs Department and differential duty was sought to be demanded from assessee, who succeeded before first appellate authority in their appeal - Iron & Steel Controller had revised the allocations in respect of all the three importers from various Ports which can be noticed from final outcome of the initial orders and the imports made by all three importers - In respect of imports made in excess of final/revised allotment order of Iron & Steel Controller, TCIL Kolkata have dischrged the differential duty as has been held by Tribunal in their appeal and - As regards duty liability on KRSU for excess quantity imported, based upon revised allocation order, nothing is brought on record as they have discharged duty or otherwise - Be that as it may, the fact that assessee has imported and cleared TMBP coils within the revised allocation order, is not disputed - If that be so, the differential duty paid by them during the proceedings on the same issue, needs to be refunded is correct view arrived at by the lower authorities and no reason found to interfere in such detailed findings recorded by first appellate authority.
As regards the appeal filed by assessee for grant of interest after 3 months from the date of filing of the refund claim, said refund claim is correct and needs to be accepted as the Apex Court in case of Ranbaxy Laboratories Limited 2011-TIOL-105-SC-CX has settled the law which holds that interest has to be paid to a refund seeker if the refund is not sanctioned within 3 months from the date of filing of the said claim - Accordingly, lower authorities directed to grant interest on appropriate rate to assessee in accordance with the law: CESTAT - Revenue's appeal rejected: HYDERABAD CESETAT
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