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SERVICE TAX
2018-TIOL-2007-CESTAT-MUM
Ida Trading Foundation Pvt Ltd Vs CST
ST - Refund - Rule 5 of CCR, 2004 - whether limitation of one year for filing refund is reckoned from the date of receipt of FIRC or from the end of the quarter in which the FIRC is received.
Held: In the present case, the appellant has filed a refund claim under rule 5 within one year from the end of the quarter in which FIRC was received - in view of Larger Bench decision in Span Infotech India Pvt. Ltd. - 2018-TIOL-516-CESTAT-BANG-LB , refund is to be considered as filed within the prescribed time limit of one year as provided u/s 11B of the CEA, 1944 - appeal is allowed: CESTAT [para 3, 4] - Appeal allowed : MUMBAI CESTAT
2018-TIOL-2006-CESTAT-MAD
CST Vs Jsa Forwarders
ST - Assessee engaged in providing CHA service - During verification of accounts, it was noticed that assessee excluded certain charges from gross receipt for purpose of arriving at taxable value on the ground that these charges are in nature of reimbursement of expenses incurred by them - The loading and unloading charges and certificate of origin charges claimed to be reimbursable expenses by assessee was disallowed since these charges were not supported with documents - So also, the Commissioner has disallowed the claim on incidental expenses, examination, processing and inspection charges observing that these are expenses incurred for providing CHA services - Thus, Commissioner has given a detailed discussion and has excluded part of reimbursable expenses claimed by assessee from taxable value of services - The Tribunal in cases of International clearing & Shipping Agency Pvt. Ltd. 2011-TIOL-1357-CESTAT-MAD , Aashita International Ltd. and International Shippers & Traders Pvt. Ltd. has held that reimbursable expenses is not to be included in total value of taxable services - In assessee's own case, Tribunal has allowed the claim of assessee setting aside the demand raised on reimbursable expenses - Impugned order does not call for any interference: CESTAT - Appeal dismissed : CHENNAI CESTAT
2018-TIOL-2002-CESTAT-BANG
CCE, C & ST Vs Stumpp Schedule And Somappa Pvt Ltd
ST - Assessee, a 100% EOU have been paying commission on export orders procured by agents situated outside the country - They were also incurring sales promotional expenses on export sales - Issue in both the appeals is that of leviability of service tax under Rule 2(l)(d)(iv) on reverse charge mechanism for import of services rendered abroad by outside agents - Law on this issue is settled in favour of assessee in case of Bombay High Court's judgment in Indian National Ship owners Association 2008-TIOL-633-HC-MUM-ST , which has been affirmed by Supreme Court - By following the judgment of Bombay High Court, demand of service tax, interest and penalties for the period prior to 18.4.2006 are set aside - For the period after 18.4.2006, there is no dispute as assessee have paid appropriate service tax along with interest before the issuance of SCN - By following the judgment in case of C Ahead Info Technologies India Pvt Ltd , the penalty under Section 78 imposed on assessee is set aside: CESTAT - Assessee's appeal allowed : BANGALORE CESTAT
CENTRAL EXCISE
2018-TIOL-2005-CESTAT-MAD
Prabha Beverages Pvt Ltd Vs CCE
CX - Assessee was manufacturing aerated /soft drinks under various brand names - It appeared to department that assessee had indulged in suppression of production and clandestine removal of goods; that further assessee was manufacturing goods with brand names belonged to M/s. LFFL and M/s. AMPL and that the assessee was e not eligible to claim SSI exemption using these brand names - In the first issue, demand is based on the grounds that figures of sales indicated in Sales Manager Report (SMR) sent by assessee to their franchisors was more than the clearances shown in RG 1 Register - However, identical issue in case of Moon Beverages concerning another franchisee of PEL was decided in favour of that assessee - Moon Beverages's decision will on all fours apply to the facts of the present dispute and since that decision has attained finality, the ratio thereof will necessarily have to be applied to facts of the present case also - Hence that portion of impugned order on this issue confirming the demand will not sustain - The 2nd issue concerns an allegation that assessee is not eligible for SSI exemption in respect of production of clearances of Bisleri Club Soda, since the owners of that brand Aqua Minerals Pvt. Ltd. do not themselves manufacture the goods - In an identical issue, Supreme Court in case of Sri Ganganagar Bottling Co . 2007-TIOL-155-SC-CX has held in favour of those assessees - Applying the ratio of said decision, portion of the impugned order confirming demand on this issue cannot be sustained.
The last issue of contention involves the duty demand on the ground that LFFL, brand owners of CITRA are not eligible for SSI exemption as they have exceeded statutory limits of aggregate value of clearances - Supreme Court in case of Brindavan Beverages P. Ltd. 2007-TIOL-118-SC-CX has unequivocally held that when the assessee is not having knowledge of any deliberate fragmentation by franchisor to avail SSI exemption and it is not shown that there has been connivance on the part, the benefit of SSI exemption to the assessee cannot be denied - The benefit of SSI exemption cannot be denied to assessee not only for the impugned period covered by Notfn 175/86-CE but also that covered by Notfn 1/93-CE - Hence that part of the impugned order on an allegation of wrong availment of SSI exemption cannot be sustained.
In the result, the total demand of duty with equal penalty on assessee is set aside - In consequence the penalties imposed on Shri Arun G. Nagar, M/s. Parle Bisleri Pvt. Ltd, Ramesh Chauhan, S.K. Motani and Kadeer Khan are set aside and the related appeals filed by these persons also allowed: CESTAT - Appeals allowed : CHENNAI CESTAT
2018-TIOL-2004-CESTAT-MUM
Shah Forged Rolls Pvt Ltd Vs CCE
CX - CENVAT - appellant have purchased inputs from second stage dealer M/s SGR Steels Pvt. Ltd. - investigation revealed that the first stage dealer M/s GanapatiUdyog is non-existent - CENVAT credit availed by appellant has been denied - appeal to CESTAT.
Held: Purchase of goods, receipt thereof, transportation thereof and payments made by appellant to M/s SGR Steels Pvt. Ltd. is not under dispute - no fault found in this transaction, therefore, it cannot be alleged that the appellant has indulged in fraud, collusion, willful misstatement, mis-declaration, suppression etc. - from the facts, it is clear that the appellant was absolutely unaware about any fraud or non-existence of M/s GanapatiUdyog, the first stage dealer, therefore, appellant had made a bonafide transaction and extended period of limitation cannot be invoked - demand dated 30.07.2015 for recovery of credit allegedly wrongly availed during August 2010 to October 2010 is hit by limitation, hence set aside - appeal allowed on limitation without going into the merits of the case: CESTAT [para 4] - Appeal allowed : MUMBAI CESTAT
CUSTOMS
NOTIFICATION
cnt58_2018
Tariff values of Gold, Silver and Edible oils see appreciable reduction
CASE LAW
2018-TIOL-2003-CESTAT-BANG
Shri Bhuvanesh Engineering Works Vs CC
CUS- The assessee are a proprietorship company and have imported used printing, cutting machines from Japan on payment of duty - The Revenue opined that assessee undervalued the imported goods - Demand for differential duty was raised - In the O-I-O, the assessable value was re-determined and differential duty demand was confirmed along with interest and the goods were confiscated, redeemable on payment of fine - However, the Commr.(A) deleted the penalty u/s 114A but imposed penalty u/s 112 (a) - Hence, the present appeal.
Held - After considering all the documents as well as the statements of the Proprietor the value of imported goods were re-determined - The lower authorites have mistakenly set aside the penalty u/s 114A and sustained penalty u/s 112(a) - Therefore, imposition of penalty on the assessee under Section 112(a) is set aside and penalty u/s 114A is upheld - Considering the valuation of the imported goods, the redemption fine too is upheld: CESTAT (Para 2, 6, 7) - Appeal partly allowed : BANGALORE CESTAT
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