SERVICE TAX
2018-TIOL-2097-CESTAT-MAD
CST Vs AVR Cargo Agency Pvt Ltd
ST - Assessee is registered under CHA services as well as BAS - During audit, it was noticed that assessee is acting as agent to Airlines (IATA) and are receiving commission for services such as booking and transportation of cargo, preparing bills, collecting them and realizing payments - It was observed that assessee was paying service tax only on commission and was not paying service tax on the additional amount received as incentives based on volume of transaction for the activity of forwarding cargo through the airlines - Demand confirmed alongwith interest and penalties - Tribunal in case of Continental Carriers 2017-TIOL-3964 -CESTAT-DEL has held that the commission received from the airlines prior to 10.9.2004 cannot be subjected to service tax under BAS - The issue whether the incentive received based on the volume of business is liable to service tax under BAS has been considered by Tribunal in case of Indo Lloyd Freight Systems Pvt. Ltd. 2017-TIOL-3632 -CESTAT-MAD as well as St. John Freight Systems Ltd. and held the issue in favour of assessee - Following the said decision, no merit found in the appeal filed by department: CESTAT - Appeal dismissed : CHENNAI CESTAT
2018-TIOL-2096-CESTAT-CHD
E City Projects Construction Pvt Ltd Vs CCE & ST
ST - Assessee is in appeal against impugned wherein cenvat credit is sought to be denied on input services namely, organising Event Management service on the ground that the invoices are not in the name of assessee - In this case, SCN was issued to deny Cenvat credit on two grounds i.e. invoices are not in the name of assessee and that event management service is not input service for assessee - The a ssessee has produced a certificate issued by service provider and rectified invoices showing that service has been provided to assessee only and inadvertently, initially the invoices were raised in name of head office - As assessee has shown their bonafide that service has been received by them and the same has not been denied by Revenue with the help of cogent evidence, therefore, assessee is entitled to avail Cenvat credit on invoices initially issued in the name of Head Office - SCN alleges that event management service is directly or indirectly not related to output service provided by assessee - Case of assessee is that they are organising events for promotion of space which they want to provide to their clients but adjudicating authority has gone on some other issues stating that said event management service has not been received by assessee but has been received by their clients - Findings of authorities below are without any basis or evidence that input service availed by assessee is actually availed by their client - In that circumstance, evidence shown by assessee in form of invoice is acceptable - Therefore, assessee is entitled to avail Cenvat credit on event management service as Input service - Impugned order set aside: CESTAT - Appeal allowed : CHANDIGARH CESTAT
2018-TIOL-2095-CESTAT-BANG
Commissioner Of Central Tax Vs Aurigo Software Technologies Pvt Ltd
ST- The assessee is engaged in providing Management Consultancy Service to their foreign client - It paid tax on certain services and filed for claim of refund in respect of input service tax credit taken during the period in dispute - - However, the Revenue rejected refund application on grounds that the export turnover during the claim period was nil - The Commr. (A) allowed the refund, hence, the present appeal by Revenue.
Held - The finding in order-in-original that the assessee has complied with all the conditions stipulated under Rule 6A of Service Tax Rules, 1994 for considering the services provided as export of service is correct - The refund has been rejected, merely, on grounds that the export turnover has not been shown in the ST-3 return and that there was clubbing of quarters for claiming the refund - The Commr. (A) has not validated this ground - Following the decision of CC vs. M/s. U.P. Police, the order challenged is upheld : CESTAT (Para 2, 5, 6) - Revenue's appeal aismissed : BANGALORE CESTAT
CENTRAL EXCISE
2018-TIOL-1280-HC-MUM-CX CCE Vs Sussen Asia Pvt Ltd
CX - the present appeal, though raised on substantial questions of law, is withdrawn by the Revenue due to low tax effect: HC - Appeal disposed of : BOMBAY HIGH COURT
2018-TIOL-1279-HC-KAR-CX + Case Story
CCE Vs Indian Telephone Industries Ltd
CX - Excise Officer of the Central Government in the Central Excise Department chose to put public money in precious man hours and other resources in the whirlpool of litigation at various Forums by taking a rather too narrow and pedantic approach in the matter - various Litigation Policies framed by the Government to reduce the litigation in Courts do not seem to have touched the ground – High Court hopes that the persons concerned in the Government will awaken to this stark reality and take more well reasoned and considered decisions before launching a trail of litigation in the Courts of law – High Court is intrigued and also little pained by the manner in which the different organs or Departments of Central Government have fought this legal battle, which was absolutely unnecessary: High Court [para 14, 15, 16]
CX - In cases where duty is paid under Rule 9B and refund arises on adjustment under Rule 9B(5), then such refund will not be governed by Section 11B of the Act - Adjustment/refund or short payment of provisional duty was required to be determined by the Assessing Authority under Rule 9B(5) of the Rules as it then existed during the contemporary period of taxable event of manufacture and removal of goods took place - The Rule governing the obligations or liability of the Respondent-assessee relevant on the date of removal of goods and payment of provisional duty will apply, rather than the Rule as amended subsequently after which, the belated order came to be passed by the Assessing Authority in the year 2006 - no substantial question of law arises in the present appeals filed by the appellant-Revenue, hence dismissed: High Court [para 12, 17, 18] - Appeals dismissed : KARNATAKA HIGH COURT
2018-TIOL-2094-CESTAT-DEL
Dabur India Ltd Vs CCE & ST
CX- The assessee supplied goods to army and para military forces - The issue at hand is whether the Odomos Repellant Cream supplied by the assessee to Armed Forces/ Para Military Forces for their use is subject to assessment under Section 4 or 4A of CEA, 1944.
Held - Following the ratio laid down by the Tribunal in the case of M/s Wipro Ltd. vs CCE & ST & Cus. & Charms Cosmetics Pvt. Ltd. vs. CCE with respect to the supply of toilet soaps to CSD - Here, it was held that the assessment of such supply falls under the scope of Secton 4A of CEA, 1944 - In the instant case, the entire supply are made to Armed Forces and Para Military Forces for their use only and there is no sale - Hence, the order challenged is set aside : CESTAT (Para 3, 6, 7) - Appeal Allowed : DELHI CESTAT
2018-TIOL-2093-CESTAT-DEL
Oil India Ltd Vs CCE
CX - Assessee, a Public Sector Undertaking engaged in exploring oils and natural gas and they clear the same after mining production - The assessee produces mainly two items i.e. natural gas chargeable at Nil rate of duty and 'condensate' (crude oil) which is chargeable to duty - Assessee was availing Cenvat credit of service tax paid on repairs and maintenance services only - Since the assessee was not maintaining separate records as required by Rule 6(2) of CCR, 2004, therefore it appeared to Revenue that assessee is required to pay an amount at the prescribed rate in terms of Rule 6(3) on the value of clearance of exempted goods - As regards the retrospective effect of amended provisions under Rule 6(3), with effect from 1.3.2016, which enables an assessee to reverse the proportionate credit attributable to exempt turn over, the same stands adjudicated in favour of assessee by Gujarat High Court in Rituraj Holdings Pvt. Ltd. , wherein the High Court have held that provisions for reversal are retrospective or sub-rule 7 of Rule 6 have got retrospective effect - In this view of matter, issue is no more res integra and decided in favour of assessee - Admittedly assessee have reversed the proportionate credit attributable to exempt turn over based on order of the Court below - Accordingly, impugned order set aside to the extent amount have been demanded under Rule 6(3) of CCR, 2004 - Penalty also set aside: CESTAT - Appeals allowed : DELHI CESTAT
CUSTOMS
NOTIFICATIONS/CORRIGENDUM
ctariffadd18_035
Seeks to to impose definitive anti-dumping duty on imports of "High Tenacity Polyester Yarn(HTPY)" from China PR
ctariff18_051
Iron Ores & concentrates of NMDC origin and exported by MMTC Limited under LTA to Japan and South Korea to continue to attract reduced rate of duty of 10% till 31st March 2021
Corrigendum
Corrigendum to Notification No 9 of 2018
CASE LAWS
2018-TIOL-1278-HC-MUM-CUS
Shree Nageshwar Enterprise Vs UoI
Cus - the petitioner herein sought adjudication on the nexus between two proceedings involving itself - One of them culminated into an O-i-O being passed against it while the other is an SCN issued to the petitioner.
Held - The appeal before the Tribunal is up for hearing & since the Tribunal is endeavouring to dispose it off as it has stretched too long - In such circumstances, the adjudication of the SCN issued be stayed till Aug 10, 2018 - Thereafter, it may raise its pleas, aided by the Tribunal's order if favorable to it: HC (Para 1,2) - Writ Petition Disposed Of : BOMBAY HIGH COURT
2018-TIOL-2092-CESTAT-DEL
Surendra Khator Vs CC
Cus - the appellant is engaged as a Customs broker - It filed shipping bills on behalf of the exporter - On investigation, the Revenue held that the goods had been over-valued to avail benefit of DEPB - Penalty was imposed on the appellant under the CBLR 2013 - The appellant contested the same on merits as well as on grounds of limitation.
Held - The Department did not comply with the time limits specified under Regulation 20(1) & Regulation 20(7) of the CBLR - The Kolkata HC in W.P. No. 14810/16 in Order dated 24.08.2016 held that time limits specified in the CBLR are although not mandatory, they are to be construed as directory - Following such decision, the proceedings cannot be held as vitiated only because the time limits specified in the CBLR have not been strictly observed - It is seen from records that the CHA filed shipping bills based on documents made available by the exporter - There is nothing to show that the appellant was aware of said mis-declaration & over-valuation of goods - Hence the penalty imposed is unsustainable: CESTAT (Para 3,7,8,9,11) - Appeal Allowed : DELHI CESTAT
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