SERVICE TAX

2018-TIOL-2149-CESTAT-BANG

CCE, C & ST Vs Jnanakshi Constructions

ST - Assessee engaged in providing site formation and clearance, excavation and earthmoving and demolition services - They were issued SCN alleging that they have availed ineligible CENVAT credit in respect of tippers - Assessee filed return for half year April 2008 to September 2008 on 10/09/2009 on the basis of which Department issued the SCN and in said return, assessee has given full details regarding CENVAT credit availed by them - Further, assessee has also submitted all the relevant details and on the basis of which CENVAT credit was availed which is a fact admitted in SCN itself - Return was filed on 10/09/2009, therefore SCN should have been issued on or before 10/09/2010 whereas the SCN was issued on 13/08/2011 much after the normal period by invoking the larger period - The assessee filed the return on 10/09/2009 giving complete details of CENVAT credit availed by them on tippers and it was not alleged by department that the assessee had not given such details or given incorrect details in their ST3 return or had availed credit fraudulently or without receiving the subject capital goods - Further, Commissioner (A) has rightly relied upon the decisions in case of Chemphar Drugs & Liniments 2002-TIOL-266-SC-CX wherein it was held by Supreme Court that extended period of 5 years was applicable only when something positive other than mere inaction or failure on the part of manufacturer is proved and conscious or deliberate withholding of information by manufacturer is necessary to invoke larger limitation of 5 years - Further in case of P. V. Narayana Reddy 2008-TIOL-2550-CESTAT-BANG , it has been held that demand raised invoking extended period when returns are regularly filed is not sustainable - Similarly, in case of PTL Enterprises Ltd., it was held that extended period is not invokable when there is no deliberate withholding of information by assessee which will give a valid ground to the Revenue for demanding duty beyond the normal period - There is no infirmity in impugned order, same is upheld: CESTAT - Appeal dismissed : BANGALORE CESTAT

2018-TIOL-2148-CESTAT-DEL

Kamdhenu Ispat Ltd Vs CCE

ST- The assessee are engaged in the manufacture of iron & steel products including M.S. Ingots, TMT bars sold under the brand name "Kamdhenu" - For the use of this name, the assessee was recovering certain royalty amounts from the franchisee - In addition, it allowed certain other manufacturer to clear goods with the same brand name - On audit, the Department seized digital evidence i.e. data retrieved from laptops, CPUs and pen drives & concluded that during the period in dispute, the assessee received towards royalty amount - Further, in the returns filed by the assessee the amount was found to be under declared as taxable value - Duty demand was raised - The Adjudicating Authority confirmed the demand and imposed penalties - Hence, the present appeal by Revenue.

Held: The evidence relied upon has been was retrieved by GEQD - A detailed report highlights that the data filed was modified after seizure by another official of GEQD - It is seen that the Adjudicating Authority has recorded statement of employees of assessee-company but not of the concerned official - As the entire demand is based on the GEQD report, the matter needs to be remanded for de novo adjudication - Further, directions to consider the submissions made by the assessee for extending the cum-tax benefit as well as re-computation of service tax on receipt basis for the period in dispute - Inaddition, non-compliance of the requirement of Section 36 B of the Act needs to be looked into - Hence, the order challenged is set aside : CESTAT (Para 1, 10, 11, 12, 13) - Matter Remanded : DELHI CESTAT

2018-TIOL-2147-CESTAT-MAD

Leaap International Pvt Ltd Vs CST

ST - Assessee is engaged in providing CHA Service and BAS - During audit, it was noticed that assessee is engaged in booking space for cargo transportation in airlines/ ship - Whenever consignment of their customers are sent using the space booked, they charge their customers freight charges for the transportation of goods - While charging their customers towards freight charges for the cargo booked, they are collecting extra charges and collect the same from their clients - Department was of the view that such revenue would fall under BAS - Issue stands covered by decision of Tribunal in case of Greenwich Meridian Logistics (I) Pvt. Ltd. 2016-TIOL-869-CESTAT-MUM - Following the same, demand cannot sustain: CESTAT - Appeals Allowed : CHENNAI CESTAT

2018-TIOL-1334-HC-HP-CX

Pr.CCE Vs Deyam Industry

CX - the assessee company is engaged in manufacturing electrical goods - During the period of dispute, the assessee began availing area-based exemption under Notfn No 50/2003-CE - The Revenue issued an SCN seeking explanation as to why exemption should not be discontinued - The Revenue also proposed to recover the same with interest & penalty - Subsequently, the demands were scrapped by the Tribunal on grounds that the action was initiated beyond period of limitation and that no grounds for invoking extended limitation were made out.

Held - The Tribunal has considered the factual circumstances before concluding that the Revenue failed to make its case - In the case of Pushpam Pharmaceuticals Company Versus Collector of Central Excise, Bombay, the Apex Court laid down the circumstances in which extended limitation could be invoked after the five-year period - It explained that in normal understanding, contravention of any of the provisions of the Act could not be read in isolation or differently, that of the accompanying words, such as fraud, collusion or willful default - It also held that the act must be deliberate and with intent to evade payment of duty - It further held that where facts are known to both the parties omission by one to do what he might have done and not that he must have done is not tantamount to suppression - Hence the Tribunal's order warrants no interference: HC (Para 2,4,10,11) - Appeal Dismissed : HIMACHAL PRADESH HIGH COURT

2018-TIOL-1333-HC-UKHAND-CX

CC, ST & CE Vs Fena Pvt Ltd

CX - The assessee company is engaged in the manufacture of Acid Slurry - During the process, spent Sulphuric Acid emerged as by-product - The Department sought to levy duty on the by-product, in light of Notfn No 89/1995 for a unit enjoying area-based exemption under Notfn No 50/2003 - Later, the Commr.(A) held the assessee to be eligible to avail exemption under Notfn No 89/1995 as it fulfilled all the requisite ingredients - Hence the Revenue's appeal.

Held: The matter at hand involves determining the assessee's liability under Notfn No 89/1995 which is an exemption Notfn - Following the decision of this court in Commissioner of Central Excise & Service Tax vs. M/s Tirupati LPG Industries Ltd., the present appeal is dismissed as being non-maintainable: HC (Para 1,3,5) - Appeal Dismissed : UTTARANCHAL HIGH COURT

2018-TIOL-2151-CESTAT-MUM + Case Story

CX - Assessee had cleared physician samples by determining the value on the basis of cost of 100% and paid Central Excise duty - The contention of department is that assessee should have determined the value on pro-rata basis - Undisputedly, assessee is clearing the physician samples not freely but on sale basis to the brand name owner - Therefore, the sale price is available - Thus, valuation has to be determined in terms of Section 4(1)(a) of CEA, 1944, the valuation on pro-rata basis can only be applied when the transaction value is not available in such case the valuation has to be determined in accordance with Section 4(1)(b) and valuation rules made thereunder - This issue has been considered by Tribunal in case of Cosme Remedies Ltd. 2016-TIOL-821-CESTAT-MUM - As the demand is not sustainable, question of penalty does not arise: CESTAT - Appeal dismissed : MUMBAI CESTAT

2018-TIOL-2150-CESTAT-AHM

Everest Composites Pvt Ltd Vs Commissioner of Central Goods & Service Tax & Central Excise

CX - Assessee is engaged in manufacture of excisable goods and an accident of fire took place in premises of assessee on 15.03.2012 which resulted in loss/damages of finished/semi finished goods and raw material/input - An application for remission of duty was filed on 11.04.2013 seeking remission of duty involved on finished products - The assessee was issued with SCN on 05.04.2013 for recovery of Cenvat credit involved on the raw material and finished goods destroyed in fire accident - Pending adjudication of said SCN, the Commissioner by impugned order, rejected their application for remission of duty - Commissioner has observed that there was a delay of 6 days in filing intimation of accident of fire with the department - It is her reasoning that since there was delay in filing the intimation with the department, therefore, the exact quantum of finished goods and raw material destroyed in fire could not be ascertained by department - Said reasoning is devoid of substance in as much as from other evidences, namely, Police Panchnama, Fire Fighting Department Report, Insurance Company's Report the extent of damages of finished goods and raw materials could be ascertained - Also, Tribunal has been consistently holding the view that the delay in filing the intimation of incident of fire cannot be considered as fatal to the right of seeking remission of duty under Rule 21 of Central Excise Rules - In the interest of justice, matter remanded to the Adjudicating Authority to consider the evidences on record and that would be produced by assessee in support of the remission application: CESTAT. - Matter remanded : AHMEDABAD CESTAT