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SERVICE TAX
2018-TIOL-1323-HC-MAD-ST
Cobra Personnel and Intelligence Service Vs UoI
ST - the assessee company is engaged in providing security services - During the relevant AY, duty demand was raised against it - Due to a typographical error in the Department's records, the duty demand of the assessee was mentioned at a figure higher than the actual dues owed - This resulted in additional liabilities for the assessee - The assessee was informed that it has remedy available u/s 74 of the Act, wherein the Central Excise officer has the power to rectify any error - The assessee filed a representation in this regard but did not receive any response.
Held - Section 74 does not contemplate any particular format empowering the Central Excise officer to rectify the mistake, either suo motu or on being brought to his notice by the assessee - Hence the authority concerned would consider the application and decide it within eight weeks: HC (Para 3,4,6,7) - Writ Petition Allowed : MADRAS HIGH COURT
2018-TIOL-1322-HC-MAD-ST
Executive Officer Kaveripattinam Selection Grade Town Panchayat Vs CCE
ST - the assessee herein is a panchayat body - Duty demand was raised on it for certain services provided by it - It filed a writ petition seeking that the Commr.(A) be directed to dispose off the assessee's pending appeals - However, the Single Judge rejected the petition on grounds that the Executive Officer of the assessee organization had agreed to pay tax - The Single Judge also held that the appeal was filed belatedly as there was no provision for condonation of delay.
Held - the rejection of the assessee's claims on grounds of estoppel are unsustainable - There is no estoppel against statute & if it is found that some of the services sought to be taxed are actually exempted from levy of service tax - The concession or an admission of liability by the officials cannot be a ground to reject the challenge to the very levy of the service tax - Hence the Commr.(A) is directed to pass orders in the assessee's appeals pending before it & also decide the issue of limitation: HC (Para 1,5,6) - Writ Petition Allowed : MADRAS HIGH COURT
2018-TIOL-1313-HC-AHM-ST
Commissioner of Central CGST and Central Excise Vs Unique Pharmaceuticals Laboratories
ST - Revenue is in appeal against order of Tribunal 2017-TIOL-3856-CESTAT-AHM wherein it is held that the service tax paid on "Courier Service" for various purpose viz. sending samples, documents and finished good would be eligible to Cenvat Credit before and even after amendment to the definition to "Input Service" w.e.f. 1.4.2011 - Issue is now not res integra in view of decision of Division Bench of this Court in 2011-TIOL-891-HC-AHM-ST and in 2011-TIOL-1049-HC-AHM-CX - While dealing with the similar issue, the Division Bench in said cases has observed that outward transport service used by manufactures for transportation of finished goods from place of removal upto the premises of purchaser is covered within the definition of "input service" provided in rule 2(l) of CCR, 2004 - No substantial question of law arise as issue is already covered against the Revenue: HC - Appeal dismissed : GUJARAT HIGH COURT
2018-TIOL-2125-CESTAT-DEL
CCE Vs Bhayana Builder Pvt Ltd
ST - Assessee provides taxable service under category of Commercial or industrial construction service, works contract service, erection, commissioning or installation service - During audit, Department observed that assessee had short paid Service Tax in respect of completion and finishing service provided by it and also wrongly availed the benefit of Notfn 1/2006 - Revenue has assailed impugned order on the ground that services provided by assessee should be confined to commercial or industrial construction service and cannot be termed as works contract service during the disputed period - However, on perusal of records, it is found that assessee has provided construction service as well as supply of goods for execution of such service - Thus, as per the judgment of Supreme Court in case of Larsen & Toubro Ltd. 2015-TIOL-187-SC-ST wherein it is held that composite contract should be considered as works contract and to be taxed only w.e.f. 01.06.2007 - Therefore, no merits found in appeal filed by Revenue to the extent that the CICS involving the composite contract, should not be taxed under the works contract service - With regard to availment of exemption Notfn 4/04 as amended, assessee had not collected any service tax amount from the service receiver, in view of the fact that such service receiver was the SEZ unit/developer - In context with non-payment of Service Tax on services provided to SEZ, issue is no more res-integra, in view of the decision of Tribunal in case of Reliance Ports and Terminals Ltd. 2013-TIOL-1473-CESTAT-AHM wherein by interpreting the provisions contained in Section 26 (1) (e) and Section 51 of SEZ Act, 2005, Tribunal has held that services provided to SEZ Unit/developer should not be subjected to any Service Tax in respect of services provided to them - No infirmity found in impugned order: CESTAT - Appeal dismissed : DELHI CESTAT
2018-TIOL-2124-CESTAT-DEL
Tata Consultancy Services Ltd Vs CST
ST- The assessee is engaged in activities relating to information technology - The assessee was running a course of software technology for which the students madev payment - Out of the total 75 % was retained by the assessee & the rest paid to the affiliated centre - The Revenue was of the view that for the 25% amount retained by the assessee service tax was levied - With regard to management consultancy service, the Revenue took a view that the activities to be carried out by the assessee included operation of the systems and management of the centre - These activities were liable to payment of service tax under category of Management Consultancy Service - In addition, activities of application data management, pre-examination and post-examination activities were to fall under manpower recruitment services - Duty demand was raised on franchise service, management consultancy service, manpower recruitment or supply agency service - The Commr. (A) confirmed the demand along with interest & penalty.
Held: Following the ratio of assessee's own case of own case CMC Ltd. V/s Commissioner - The demand under the Franchisee Service is upheld but penalty is deleted by way of Section 80 of the Act as interpretation of the provisions is involved - Hence, the appeal is partly allowed : CESTAT (Para 1, 8, 9 , 10, 11, 12, 13, 14, 15, 16, 17) - Appeal Partly Allowed : DELHI CESTAT
2018-TIOL-2123-CESTAT-AHM
QX Global Services LLP Vs CST
ST - Assessee has filed refund claim of service tax paid on specified service used in accordance with Notfn 27/2012-CE(NT) which was denied on the ground that the said services could not called as export services in view of the meaning of export service prescribed under Rule 6 (A)(f) of Service Tax Rules, 1994 - Prima facie, Commissioner (A) has not examined the issue whether both the companies are mere establishments or separate legal entities and consequently, service provided by assessee would qualify as export service and accordingly they are eligible to refund of the service tax paid on specified services used in the export of service or otherwise - Also, the issue of taxability was never raised in SCN nor in the order of adjudicating authority, therefore, remand order of Commissioner (A) to examine the issue of taxability is beyond the scope of brief and cannot be sustained - In the result, to examine the issue, whether the service rendered by assessee is export service or otherwise and consequently eligible to the refund, the matter is remanded to Commissioner (A): CESTAT - Matter remanded : AHMEDABAD CESTAT
CENTRAL EXCISE
2018-TIOL-1321-HC-KAR-CX
K2K Infrastructure India Pvt Ltd Vs UoI
CX - Duty demand was raised against the assessee pursuant to assessment for the year 2013 - Thereafter, recovery proceedings were initiated by the DGCEI which also issued an SCN - When the assessee filed writ petition, the Single Judge held that the benefit of VCES Scheme 2013 availed by the assessee had nothing to do with the recovery proceedings arising from assessment for period commencing after 2013 - The Single Judge also held that the assessee had equally efficacious alternate remedy of appeal to the Tribunal - Hence its petition was dismissed.
Held - The present matter is not one warranting invokation of extraordinary writ jurisdiction - The petitioner was rightly pointed towards the Tribunal - No opinion expressed on merits: HC - Writ Petition Dismissed : KARNATAKA HIGH COURT
2018-TIOL-2122-CESTAT-AHM
CCE & C Vs Nesco Ltd
CX - Whether assessee is entitled to refund duty paid against invoices dtd 31.3.2013 where the goods were consigned to one M/s Bhawani Industries Ltd. but goods were not cleared from the factory - Commissioner (A) without scrutiny of evidences and recording reasons about non-clearance of goods and non recovery of value of goods shown in respective invoices as claimed by assessee has mechanically observed that refund cannot be denied for not following procedure laid down CBEC Manual - It is not in dispute that assessee had claimed refund of duty on the ground that goods mentioned in respective invoices on which duty though discharged but not cleared from factory, as the order placed by consignee 'M/s Bhawani Industries Ltd' mentioned in those invoices had been cancelled - On the issue of non-intimation of cancellation of invoice on rejection of order, assessee pursued with consignee for lifting the goods over a period of time, hence, in all probability they might not have intimated or filed the refund immediately - All the evidence needs to be scrutinized to ascertain whether in fact the goods had been cleared from the factory or otherwise - Therefore, matter is remanded to Adjudicating Authority to ascertain in detail by scrutinizing the evidences produced by assessee and to arrive at a conclusion on the eligibility of refund: CESTAT - Matter remanded : AHMEDABAD CESTAT
2018-TIOL-2121-CESTAT-AHM
CCE & ST Vs Hindalco Industries Ltd
CX- During the course of manufacturing of Aluminum Alloy Wheels by the assessee, Aluminum Dross was produced during the period in dispute - The Revenue took a view that assessee cleared the Aluminum Dross under the Commercial invoices without payment of duty not showing the details of manufacturing and clearance of Aluminum Dross in the monthly returns - Duty demand was raised - However, the Commr. (A) deleted the penalty following the ratio laid down by SC in the case of UOI vs M/s DSCL Sugar Ltd. - Hence the present appeal.
Held: The good in question i.e. dross and skimming were non-ferrous metal for any such by-product or waste which are non-excisable goods and are cleared for a consideration from the factory - These goods need to be treated like exempted goods for the purpose of reversal of credit of input or input service in terms of Rule 6 of the CCR - The issue is covered by the case of M/s Hindustan Industries Ltd. vs UOI wherein the SC decision was affirmed as well as clarification through Board's Circular 1027/15/2016 - Hence, the order challenged is upheld : CESTAT (Para 2, 4, 5, 6) - Revenue's Appeal Dismissed : AHMEDABAD CESTAT
CUSTOMS
2018-TIOL-1320-HC-MAD-CUS + Case Story
Mehler Engineered Products India Pvt Ltd Vs UoI
Anti-dumping duty - Entry in the Notification 51/2015-Cus(ADD) dated 21.10.2015 shall be 5402 47 for all purpose and it shall be so with effect from 21.10.2015 - Notification No .5 of 2016 , dated 22.02.2016 being substitutive in nature is to be held as retrospective - Petition allowed - petitioner, who has imported products classifiable under Chapter Heading - CTH 5402 2090, is not liable for payment of anti-dumping duty on the subject goods - respondent directed to consider and sanction refund claim made by the petitioner as expeditiously as possible, preferably, within a period of three months: High Court [para 10, 12, 14, 15, 16] - Petition allowed
: MADRAS HIGH COURT
2018-TIOL-1314-HC-KAR-CUS
Swarna Electricals Vs CC & ST
Cus - Assessee has dragged the matter into litigation about the stay application itself filed before the Tribunal for unduly long period and for the reasons best known to assessee, the correct legal position of amendment of law w.e.f. 6.8.2014 as well as CBEC Instructions issued on 16.09.2014 were not brought to the notice of Tribunal for making a request with regard to taking into account the deposits already made by assessee during investigation and assessment period in question - Not only repetitive Fora were approached but despite the rejection of earlier appeal filed by the assessee by this Court on 3.7.2014, the assessee successfully kept even the lis alive by filing Miscellaneous Application before the Tribunal - In year 2016, when the said Miscellaneous Application was argued before the Tribunal also, without referring to the amendment of law and CBEC Instructions, surprisingly, a prayer was made that the deposit of 7.5% of Rs.20,00,000/- may be taken as a sufficient compliance with amended provisions of Section 129E of the Act even though demand raised was for Rs.78,35,010/- and since the said prayer was rejected by Tribunal and again appeal has been filed by assessee before this Court - The provisions of Section 130 of the Act as were applicable for the person who files an appeal in this Court requires existence of a substantial question of law for maintaining such appeal before this Court, court do not find any such substantial question of law to be arising in the present case because not only the present appeal has been filed in the second round of litigation by assessee but essentially the appeal arises out of an interlocutory order passed by Tribunal initially on 20.03.2013 and again on 11.02.2016 rejecting the Miscellaneous Application filed by assessee: HC - Appeals dismissed : KARNATAKA HIGH COURT
2018-TIOL-2120-CESTAT-MAD
Lenovo India Pvt Ltd Vs CC
Cus - the assessee filed 38 bills of entry for clearance of 'Lenovo Notebook Computer' - The assessee calculated & paid CVD on MRP basis based on the premise that laptops were included in Notification No. 14/2008-CE for MRP-based assessment - Upon clearance, the assessee was asked to clear them on transaction value - The assessee did so but subsequently, filed claim for refund - Such claim was rejected on grounds that it had been filed without first challenging the O-i-O which made such final assessment - Such adjudication order was upheld by the Commr.(A).
Held: Following the ratio laid down by the Delhi High Court in Micromax Informatics Ltd. , the order upholding rejection of the refund claim on grounds that assessment order had not been challenged, cannot sustain - Besides, the issue concerning the manner of valuation for purposes of CVD is settled against the Revenue by the Tribunal's decision in P.G. Electroplast Ltd. Vs. Commissioner of Central Excise, Noida - Hence the original authority is directed to process the refund claim on merits within three months: CESTAT (Para 1,5,6) - Appeal Allowed : CHENNAI CESTAT
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