SERVICE TAX
2018-TIOL-2033-CESTAT-MUM + Case Story
Ducon Technologies India Pvt Ltd Vs CCE
ST - Section 66A of the Finance Act, 1994 - Import of manufacturing equipment - Fees linked to sale of output in India - classification of service as ‘Scientific and Technical Consultancy' in the SCN appears to be inappropriate and should have been under ‘Intellectual Property Service' - Appeal disposed of: CESTAT [para 12, 14]
ST - CENVAT credit on services before taking registration - substantive benefit cannot be denied on procedural grounds - Inasmuch as failure to register being a mere technical infirmity which could not stand in the way of availment of CENVAT credit and there being no dispute on the eligibility of various inputs/input services on which credit is claimed and the appellant having secured registration within a few months of shifting their operations to the new premises, the gap between the receipt of service and the registration is not of such significance to disallow availment - demand pertaining to availment without registration set aside: CESTAT [para 7]
ST - In the matter of amount received as mobilization advances, the appellant submitted that the same has been subject to tax subsequently upon settlement of the bills and which aspect had not been examined by the adjudicating authority, therefore, the matter remanded - If claim of appellant is found to be correct and appropriate interest liability has been discharged for such delayed payment of tax, recovery of tax and interest in impugned order will not sustain: CESTAT [para 10] - Appeal disposed of: MUMBAI CESTAT
2018-TIOL-2032-CESTAT-MUM
Sitel India Ltd Vs CCE
ST - The assessee is a BPO providing business support service to various International clients - On audit, it was found that service tax on import of services was not deposited - Duty demand was raised - The Commr. (A) deleted demand on certain services but confirmed the demand for some on grounds that service tax was paid after enquiry by the Department whereas it was required to be paid every month - In addition, the assessee did not pay service tax voluntarily which is why penalty was imposed u/s 77 & 78 i.e. failure to pay service tax for reasons of fraud & others - Hence, the present appeal.
Held - While it is true that service tax was paid after enquiry by the Revenue, the nature of services and non payment of service tax was not suppressed by the assessee - The details were appearing in book of accounts - Therefore, following the decision of Tribunal in Mahindra Water Utilities, Adecco Flexione Worforce Solutions Ltd, Independent New Services P. Ltd & Sunita Tools Pvt. Ltd., the penalties imposed on the assessee are deleted: CESTAT (Para 1,4, 5) - Appeal allowed: MUMBAI CESTAT
2018-TIOL-2031-CESTAT-MAD
Tidel Park Ltd Vs CGST & CE
ST - The assessee developed a multi-storied and multi-tenanted commercial space which was rented out to various companies engaged in services of IT - However, it did not discharge service tax on maintenance charged - Duty demand was raised for the period in dispute.
Held - In assessee own case the Tribunal sent the matter back to the original authority for re-calculation of net tax liability after giving the benefit of Cenvat credit to the assessee - In addition, the assessee-company is a State Government Corporation which is why the intention to evade payment cannot be established - Therefore, the penalty is deleted - Hence, the order challenged is modified and demand is upheld - Further, the Adjudicating Authority is directed to recalculate the demand giving the benefit of Cenvat credit: CESTAT (Para 1, 5, 6, 7) - Appeal dimissed: CHENNAI CESTAT
CENTRAL EXCISE
2018-TIOL-2030-CESTAT-DEL
Inani Marbles And Granites Vs CE & ST
CX - While dismissing the appeal of assessee, Commissioner (A) mainly relied upon the decision of Tribunal in case of Periwal Exports 2015-TIOL-190-CESTAT-DEL and held that the basic condition of Rule 21 of CCR, 2002 were not fulfilled and hence remission claim is not covered under the ambit of Rule 21 of CER, 2002, as goods were neither been lost/stolen nor destroyed due to natural cause or by unavoidable accident nor the claim has been filed before removal of goods but actually goods were damaged in an accidents after removal of goods from the factory - Assessee submitted that while passing the impugned order Commissioner (Appeals) failed to appreciate that before the decision of Tribunal in matter of Periwal Export 2015-TIOL-190-CESTAT-DEL there was another decision of Larger Bench of Tribunal in the matter of Bio-Vet Pvt. Ltd, in which the Larger Bench of Tribunal held that in cases where goods removed from factory for export under bond are destroyed before export, due to unavoidable accidents then in such situation the goods destroyed are to be treated as having being destroyed before involve in terms of Rule 21 of CER, 2002 - Department did not dispute the submissions made by assessee and he very fairly supported the submission that issue is covered by Larger Bench decision of Tribunal in the matter of Honest Bio-Vet Pvt. Ltd.: CESTAT - Appeal allowed: DELHI CESTAT
2018-TIOL-2029-CESTAT-MAD
Manatec Electronics Pvt Ltd Vs CCE
CX - Assessee engaged in manufacture of Computerized Wheel Aligner, Wheel Balancer, Computerized Petrol Exhaust Gas Analyzer and Computerized Diesel Smoke Meter and are registered with Department - On scrutiny of ER1 returns, it was noticed that assessee was manufacturing and clearing such goods along with Data Processing Machines which are loaded with basic software such as Windows XP - Assessee have also supplied customized software for various applications to be performed by said machines - The department was of the view that such software either loaded or accompanied with machine has to be levied to duty at the rates applicable to equipment / machine for which the software is meant - It is brought out from the evidence that apart from the basic software loaded into computerized garage equipment / machinery, assessee also supplies application software for various specific application which is essential for making the equipment to perform certain specific function as desired by the customer specific requirement - The said issue has been decided by Tribunal in case of Siemens Building Technologies Pvt. Ltd. 2018-TIOL-959-CESTAT-MAD - Following the said decision, impugned order cannot sustain and same is set aside: CESTAT - Appeals allowed: CHENNAI CESTAT
2018-TIOL-2028-CESTAT-CHD
Krishi Rasayan Exports Pvt Ltd Vs CCE & ST
CX - Assessee purchase Gibberillic acid and 6 Benzyl aminopurine from outside and mix them to produce plant growth regulator and pay excise duty on same product - As they are situated in Jammu and Kashmir, they took benefit of Notfn 56/2002-C.E. under which they get refund of excise duty paid through PLA - Revenue’s case is that the manufactured product continues to be Gibberillic acid and thus classification would be under 3808 93 40 under which goods are exempted vide a notfn, and therefore, the action of assessee in paying duty and then claiming refund as per the exemption notfn 56/2002-C.E. is not legally correct and the refund taken has to be paid back to revenue - Assessee have not disputed the merit classification of impugned goods in question but contested the issue of limitation - Process and product manufactured by assessee were known to the department by way of periodical returns filed by assessee wherein process of manufacture and product was shown - Moreover, periodically audit also took place and refunds were sanctioned to the assessee - Therefore, it cannot be said that assessee has suppressed material fact from the department - Therefore, extended period is not invokable, same is set aside - Refunds sanctioned to assessee have already attained finality as same have not been challenged - Therefore, in the light of decision of Apex Court in case of Priya Blue Industries 2004-TIOL-78-SC-CUS, impugned order is set aside: CESTAT - Appeal allowed: cHANDIGARH CESTAT
CUSTOMS
2018-TIOL-2027-CESTAT-CHD Claas India Pvt Ltd Vs CC
CUS- The assessee is a manufacturer of combine harvester & imported certain parts of track by claiming concessional under relevant notification - It was found that the imported goods were not used in or for manufacture of combine harvester - The Revenue denied benefit of notification and SCN was issued - Hence, the present appeal wherein assessee sought waiver of penalty on grounds that it was the issue of interpretation of the terms of the notification.
Held - The language of the notification clarifies that these tracks are to be used for manufacture of combine harvester - However, in the present case these tracks were neither used in the manufacture of combine harvester nor used for manufacture of combine harvester - Therefore, the language of the notification is very much clear stating that these are to be used for manufacture of combine harvester but the same has not been used for manufacture of combine harvester but the assessee used them as spare parts - Therefore, they are not entitled to concessional rate of duty in terms of the notification - As the entire amount of duty along with interest has been paid prior to issuance of the SCN, hence the penalty is reduced to 25% of the duty confirmed - However, penalty on Manager of the company is set aside: CESTAT (Para 2, 6, 7) - Appeal Partly Allowed: CHANDIGARH CESTAT
|
