SERVICE TAX
2018-TIOL-1126-HC-MAD-ST + Case Story CGST & CE Vs Bnp Paribas Sundaram Global Securities Operations Pvt Ltd
ST - CENVAT - Refund - Rule 5 of the CCR, 2004 does not stipulate registration of premises as a necessary pre-requisite for claiming a refund - Issue is no longer res integra and is covered by the decision in Commissioner of Services Tax-III, Chennai Vs. M/s. Scioinspire Consulting Services India Private Limited, Chennai and another, in C.M.A.No.860 of 2017 - 2017-TIOL-798-HC-MAD-ST - Revenue appeal dismissed: High Court [para 13 to 15] - Appeal dismissed: MADRAS HIGH COURT 2018-TIOL-1858-CESTAT-BANG
CCT & CE Vs Sulthan Bathery Municipality
ST - The assessee is a public authority, engaged in the providing the services of renting of immovable property and mandap keeper services - The Revenue opined that service tax was not paid & issued a SCN raising tax demand under "Mandap Keeper Services", "Renting of immovable property" & imposed penalties under section 76, 77 & 78 of the FA Act, 1994 - The Commr. (A) modified the order & deleted the penalties, hence the present appeal by Revenue.
Held - The assessee has no special interest or benefit in concealing the facts from the Revenue - They have duly paid the duty demanded along with interest - Further, with respect to waiving off penalty, no penalty can be imposed in the case of such statutory or government body as there could not be any mala fide intention to evade payment of duty - For dropping the penalty, the cases of Punjab Ex-servicemen Corporation vs. CCE and Surat Municipal Corporation vs. CCE has been followed - Hence, the Order-in-Appeal is upheld: CESTAT (Para 2, 6) - Revenue's Appeal Dismissed: BANGALORE CESTAT
2018-TIOL-1857-CESTAT-AHM
Transit Tours And Travels Vs CCE & ST
ST - Assessee is registered as a service provider under taxable category of 'Air Travel Agent Service' - Also, they were providing tickets to their customers, at times, purchased tickets from other authorized IATA Travel Agents and sale the same to their customers for which they received a discount from the said Air Travel Agents - Also, the assessee used software of various software developers, namely, M/s Amadues India Pvt. Ltd, to access to the Centralized data base for booking tickets - Alleging that the discounts received by assessee from Air Travel Agents and also incentives received from software developers are liable to service tax, demand notices were issued to assessee - Tribunal in Trade Wings Ltd's case taking into consideration the fact that the nature of transaction between the registered IATA Agents and the subsequent sub-agent, is that of sale and purchase, and accordingly, held that service tax is not required to be paid by the said sub-agent on the discount received - On the second issue, about liability of service tax on incentives received from various software developers, Tribunal after taking note of the order of the Principal Bench in Ram Krishna Travels Pvt Ltd's case, observed that service tax is leviable on the amount received by assessee from CRS companies under category of BAS but the demand be restricted to normal period limitation and no penalty is imposable on assessee - Impugned orders are modified: CESTAT - Appeals partly allowed: AHMEDABAD CESTAT
2018-TIOL-1856-CESTAT-CHD
Surya Air Products Pvt Ltd Vs CCE & ST
CX - Assessee engaged in marketing of Hydrogen Gas Cylinders - The unit of assessee is adjacent to manufacturing unit of SIEL who is engaged in manufacture of hydrogen gas - The assessee receives 99.9% pure hydrogen gas from SIEL through pipeline at a pressure of 1000 to 1200 mmwc - This gas is filled in returnable gas cylinders with identification marking of assessee and sold to various consumers - Department was of the view that filling and marketing of hydrogen gas cylinders with label amounted to manufacture in view of Chapter Note 9 of Chapter 28 of Central Excises and Salt Act as applicable at that time - Accordingly, SCN invoking extended period of limitation raising demand was issued to assessee wherein penalty of equal amount was also sought to be imposed - The jurisdictional Commissioner after hearing the parties confirmed the demand with interest and imposed penalty of equal amount - A similar issue has been examined by Tribunal in case of Goyal M.G. Gases Pvt. Limited 2015-TIOL-2907-CESTAT-DEL - As issue has already been settled by Tribunal holding that activity undertaken by assessee does not amount to manufacture therefore, assessee is not liable to pay duty - Impugned order is set-aside: CESTAT - Appeal allowed: CHANDIGARH CESTAT
2018-TIOL-1855-CESTAT-MUM
Spenlex Industries Ltd Vs CCE
CX - The assessee is a manufacturer and exporter of yarn - It filed claim of refund of tax paid on 'custom house agent', 'terminal handling charges' & 'banking and financial services' for the disputed period - The claim for refund was rejected by the Revenue on grounds that it was in connection with the goods cleared for export of earlier period.
Held - The Revenue have not examined the eligibility for credit relating to earlier period for refund against the claim for disputed period - Therefore, the matter is remanded for re- examination of relevant date of export: CESTAT (Para 1, 3, 4) - Matter Remanded: MUMBAI CESTAT
2018-TIOL-1854-CESTAT-BANG
Garment House India Vs CCT
CX - Assessee engaged in manufacture of readymade garments - The levy of excise duty on goods was exempted as per Notfn 11/2013-CE - However, it was taxable prior to 28.2.2013 - The assessee was undertaking manufacturing activity in a rented premise and were paying rent for manufacturing unit where final product was manufactured - The Landlord collected the rent under ‘renting of immovable property’ but failed to issue invoice and to collect service tax from service recipient - Assessee was exempted from payment of excise duty as per Notfn 11/2013-CE and statutory returns filed by assessee ending February 2013 has shown ‘NIL’ balance in their PLA account - Assessee have paid the service tax on supplementary invoice by landlord and thereafter, recasted the PLA and filed the refund claim on the ground that they are entitled to get the refund as the assessee is not liable to pay excise duty in view of Notfn 11/2013-CE - Commissioner (A) has also observed that claim has been filed on 25.9.2014 which appears to be time barred under Section 11B of Central Excise Act - In the SCN, there is no allegation regarding time bar raised by assessee - Therefore, this finding of Commissioner (A) is beyond the SCN and is not tenable under law - Further, Commissioner (A) has also considered the decision of High Court in case of Slovak India Trading Company Pvt. Ltd. 2006-TIOL-469-HC-KAR-CX and has come to the conclusion that said decision is not applicable - There is no infirmity in impugned order warranting interference by Tribunal and therefore, impugned order upheld: CESTAT - Appeal dismissed: BANGALORE CESTAT
CUSTOMS
2018-TIOL-1853-CESTAT-DEL
RN Metal India Pvt Ltd Vs CCE & GST
Cus - Assessee imported certain goods and filed two Bills of Entry declaring the import of 'Alloy Steel Melting Scrap' - Customs authorities opened and examined all the ten containers covered under two Bills of Entries and found that seven containers were stuffed with the declared item but in respect of three containers the goods were found to be 'Grinding Media Balls' which appear to be new and unused and in perfect shape and size - Out of total goods imported, such goods were separated and proposed for classification as 'grinding media balls' under Customs Tariff item 73259100/ 7326 1100 which attracted the higher rate of duty - The allegation in present case is that the assessee has declared imported goods as 'Alloy Steel Melting Scrap' - But amidst declared melting scrap, examination by Customs Officers revealed that 'Grinding Media Balls' were found which were new and unused - Such balls can also be considered as scrap only if they were new and old - The proceedings before lower authorities have taken twists and turns with contrary opinions expressed by different experts - The opinion given by CRCL as well as National Test House has been of little help in deciding the controversy one way or other - The three experts whose opinion was taken by Customs Department took the view that impugned goods were 'Grinding Media Balls' which were new and unused - During cross examination of these experts before Commissioner (A), they have stood by their opinion but other expert Sh. I.P.S. Arora, Chartered Engineer who has originally given the opinion that there were deep cuts and were of varying dimensions retracted his original view during cross-examination - Order passed by lower authority, who has gone by the majority of opinions, merits no interference - Impugned order upheld: CESTAT - Appeals rejected: DELHI CESTAT
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