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SERVICE TAX
2018-TIOL-1167-HC-MUM-ST + Case Story
Rajasthan Crane Service Vs Additional Commissioner of CGST & CCE
ST - For any inaction on part of Revenue to submit Final Verification Report, petitioners cannot be made to suffer – it appears that the respondent has hurriedly rejected the application for Settlement without giving sufficient opportunity to the petitioner - matter remanded to Settlement Commission – Petition disposed of: High Court [para 13, 14] - Petition disposed of: BOMBAY HIGH COURT
2018-TIOL-1934-CESTAT-ALL
CCE Vs C L Gupta Exports Ltd
ST - Whether assessee, a 100% EOU engaged in manufacture and export of Handicrafts are entitled to refund of service tax paid on Port Services under provisions of Notfn 41/2007-ST - The ground of appeal taken by Revenue is that the invoices issued by shipping lines cannot be considered as invoice issued by port or its authorised agent - Assessee points out that CBEC vide its Circular No.112/06/2009-ST have considered the issue- the service provider providing services to the exporter, provides various services but he has registration of only one service - The refund is being denied on the ground that taxable services that are not covered under registration certificate of provider, are not eligible for such refund - Clarifying the issue, Board observed that Notfn 41/2007-ST provides exemption by way of refund from specified taxable services used for export of goods - Granting refund to exporters on taxable services, that he receives and uses for export, do not require verification of registration certificate of supplier of service - Further, he relies on preceding ruling of Tribunal in case of Western Agencies Pvt. Ltd. 2008-TIOL-1888-CESTAT- MAD wherein Tribunal have held that all services otherwise taxable, covers also port services, when rendered within territorial limits of a port or other port - It was also held that 'Cargo Handling Service' provided within limit of port, being more specific in relation to port, is covered under 'port service' - Issue is wholly covered by clarification by CBEC and also by ruling of Tribunal in said case - Accordingly, appeal filed by Revenue is dismissed: CESTAT - Appeal dismissed: ALLAHABAD CESTAT
2018-TIOL-1933-CESTAT-ALL
Grid Power Systems Vs CCE & ST
ST - Assessee engaged in works contract service which includes some repair and maintenance work particularly of transformers - They are also engaged in a small manner in rent-a-cab service and manpower supply service - From the SCN, it is apparent that gross receipts have been taken as per form 26AS and on such gross receipts for period 2010–11 to 2014–15 without allowing any abatement the service tax have been demanded - There appears to be no examination as to the taxable nature of gross receipt as per the provisions of Service Tax Law and Rules thereunder - No merit found in appeal of Revenue as Commissioner have rightly allowed deduction for work relating to laying of underground cables under or alongside the road, following Notfn 123/5/2010-TRU - So far the appeal assessee is concerned, Commissioner have erred in not allowing the abatement as provided in Rule 2A Clause (ii) (A) - There is failure on the part of Commissioner to allow the admissible abatement under Service Tax Amendment Rules, 2012, read with the Service Tax Rules, 2006 - From the workings given by assessee even by allowing 30% abatement the service tax payable comes to almost equal to the admitted tax already paid and properly declared in their returns filed with Department - SCN is not maintainable and misconceived, same is set aside: CESTAT - Assessee's appeal allowed: ALLAHABAD CESTAT
CENTRAL EXCISE
2018-TIOL-1931-CESTAT-AHM
Sabic Innovative Plastics India Pvt Ltd Vs CCE & ST
CX - The assessee is engaged in the manufacture of "Poly Carbonate, ABS, PBT" - The sale of goods takes place at the factory gate as well after transfering the goods to the depots - The Revenue opined that during the period in dispute assessee has incorrectly determined the assessable of goods sold from the depots - Differential duty demand was raised with interest & penalty - In appeal, the assessee challenged the method adopted by the Revenue for determination of differential duty demand.
Held - No evidence was adduced by the assessee to substantiate the clearance of product from factory gate, susequently clearance from depot - In addition, the difference in the value & price of the finished goods removed from factory gate and the price when actually sold or removed from depots was not justified - Therefore, the order challenged was set aside directing the Adjudicating Authority to consider the evidences produced by the assessee in determining the assessable value for the period in dispute: CESTAT (Para 2, 5, 6) - Matter Remanded: AHMEDABAD CESTAT
2018-TIOL-1930-CESTAT-MAD
Thiraviam Engineering Works Vs CCE
CX - Assessee engaged in manufacture / fabrication of spares/ parts for heavy equipments and were availing benefit of SSI exemption - M/s. Quality Engineering, another partnership firm was also engaged in manufacture of similar products - On inquiry and investigation, it was held that M/s. Quality Engineering was a dummy unit of assessee - SCN was issued proposing to club the clearances of M/s. Quality Engineering with that of assessee and to deny the SSI exemption benefit - Tribunal in case of Ambi Plywood has analyzed the very same issue and held that when no SCN has been issued to alleged dummy unit, same would vitiate the proceedings - Following the said decision, demand cannot sustain as the department has not issued SCN to the alleged dummy unit proposing to club the clearances of same with the assessee - In fact, that even the copy of O-I-O has not been served upon the alleged dummy unit - Impugned order set aside: CESTAT - Appeals allowed: CHENNAI CESTAT
CUSTOMS
2018-TIOL-1166-HC-MAD-CUS
Gold Soap Company Vs Customs & Excise Settlement Commission
Cus - According to petitioner, he purchased goods through unaccounted sources and he does not have any documentary evidence to substantiate the admitted duty evasion - It is also the contention of petitioner that Commissioner (Investigation) appointed under Settlement Commission has submitted a report and Settlement Commission has totally ignored the same - In support of his contention that report of Commissioner (Investigation) shall be relied on, he cited the judgment in Bond Stores Pvt. Ltd. 2011-TIOL-372-HC-MAD-CUS - Admittedly, on a previous occasion, Court by order dated 19.12.2008 has given a categorical finding that Revenue should produce positive evidence and co-operate with Settlement Commission - Settlement Commission is directed to look into the Investigation Report submitted by Commissioner (Investigation) appointed by Settlement Commission and also the materials that are going to be produced by petitioner before the Commission and arrive at a conclusion - Accordingly, matter is remitted to Settlement Commission: HC - Matter remanded : MADRAS HIGH COURT
2018-TIOL-1165-HC-MAD-CUS
Industrial Mineral Company (IMC) Vs CC
Cus - Assessee, a 100% EOU is manufacturer and exporter of processed and upgraded ilmenite falling under CTH 26140020 and paid duty under protest @ 10% - But the appropriate duty would be 5% from 01.03.2013 vide Notfn 15/2013-Cus. and 2.5% from 01.03.2015 vide Notfn 08/2015-Cus. - When a decision was taken by Higher Judicial Forum, it is binding on subordinate authorities - The Tribunal, admittedly, held that duty is not leviable @ 10% as claimed by assessee, but, it is only leviable under CH26140020, as per the Notfn issued by Department then and there - It is well settled that duty paid by assessee under protest, if ultimately found, was not leviable, it would automatically entitle him for refund - The payment under protest by itself would tantamount to claiming refund, but, it cannot be turned down merely because he has not filed any appeal or appeal was filed by the Department before a higher forum - Petitioner is entitled to get refund - Since a binding decision has not been followed by Adjudicating Authority in this case, Court can interfere straight away without relegating the assessee to file an appeal - The second respondent is directed to refund the amount in question to petitioner within a period of four weeks after taking immovable property security from the petitioner: HC - Writ Petition allowed : MADRAS HIGH COURT
2018-TIOL-1932-CESTAT-MAD
Sterlite Industries India Ltd Vs CC
Cus - Assessee is manufacturer of Copper Anode, Copper Cathode and Continuous Cast Copper Wire Rod - They had imported copper concentrate under an advance authorization dt. 24.01.2007 - In said advance authorization it had been specifically mentioned that duty exemption is for gold and silver only and that copper content in concentrate is to be cleared on payment of customs duty as applicable - A letter was issued to assessee referring to this aspect and pointed out that in SION C 1950 also, there is a specific Note on similar lines - The Deputy Commissioner inter alia conveyed that copper in copper concentrate should only be cleared on payment of duty under said authorization - Assessee filed an appeal with Commissioner (A) who upheld the view taken by original authority and rejected the appeal - Assessee is correct in his assertion that DGFT vide their letter dt. 23.11.2010 have issued a clarification as averred by him - This being so, very basis of dispute does not exist any further and the copper concentrate can be very well be adjusted against fulfilment of export obligation of SION C-1503 as clarified by DGFT - In the event, matter remanded to original authority only for limited purpose of applying the clarification given by DGFT in their letter in respect of impugned goods: CESTAT - Matter remanded: CHENNAI CESTAT
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