2018-TIOL-2174-CESTAT-DEL

Apollo Hospitals Vs CCE

ST - Assessee is engaged in providing health care facility - To provide medical services to patients visting the hospital, assessee have engaged professional and doctors on contractual basis - These doctors are provided space in the hospital with required facilities to attend to patients - These doctors engaged on contract basis, are paid professional fee in terms of the contract - The fee paid to the doctors is computed, based on a pre-determined ratio on the amount received by assessee from the patients - It appeared to Revenue that the portion of fee collected by assessee and retained by them is by way of collection charges/facilitation fee and is liable to service tax under category of Business Support Service for the period July, 2012 to July, 2013 - Issue is no longer res integra and have been decided in favour of assessee for the previous period in batch of appeals wherein assessee was one of the assessee - Accordingly, impugned order set aside: CESTAT - Appeal allowed: DELHI CESTAT

2018-TIOL-2173-CESTAT-DEL

CCE Vs Balaji Action Buildwell

ST - Dispute is regarding availability of exemption to GTA service for transport of agricultural produce - It has been vehemently argued that a detailed written submission was submitted on behalf of assessee on 19.01.2018 as per the directions of Bench but the same appears to have not been considered - The assessee has also supported his arguments with the decision of Madras High Court in case of Roots Multiclean Ltd. 2016-TIOL-324-HC-MAD-CX - It appears that cited final Order dated 19.02.2018 is a detailed speaking order and has been passed after taking note of all the written and oral arguments raised - The Supreme Court of India in case of Stock Exchange Ltd. 2008-TIOL-170-SC-IT has laid down the ratio as to what can be considered as an error apparent on the face of record - When ROM is considered in the light of Apex Court's decision, it cannot be said that there is an error apparent on the face of record - It may be mentioned that it is not necessary to discuss each and every argument of assessee - Only the cumulative effect will have to be mentioned in the order as per the ratio laid down in case of Karam C. Thappar 2002-TIOL-1929-SC-IT - In the name of ROM, review of appeal is not permissible - No merit found in ROM, which is hereby dismissed: CESTAT - Appeal dismissed: DELHI CESTAT

2018-TIOL-2172-CESTAT-MAD

ST - The assessee is engaged in rendering CHA and steamer agent services - The Department opined that assessee did not discharge service tax liability on various inputs and availed Cenvat credit on certain ineligible input services for the period in dispute - In addition, the Department noted that assessee has collected consolidated charges and service charges but paid service tax only on service charges - Differential service tax was demanded - On appeal, the Commr.(A) set aside the penalties on consolidated charges, demand on telephone, fax, telex - Also, the penalties imposed u/s 76 and 78 in respect of wrong availment of Cenvat credit and delayed payment of service tax were deleted - Hence, the present appeal by the Revenue.

Held - The owners were in connection with their principals using the telephone lines of the assessee and hence such charges were collected only as reimbursable charges - consolidated charges are also in the nature of reimbursable expenses and hence not includible in the computation of valuation for levying service tax - This point of view was taken by the Tribunal in the case of Rolex Logistics Pvt. Ltd. Vs. CCE - In the present case, the disputed expenses were reimbursed - As per CBIC Circular No.119/13/2009-ST exclusion is to be given to reimbursable charges incurred by the CHA - Hence, the O-i-A is upheld: CESTAT (Para 1, 5, 6) - Revenue's appeal dismissed: CHENNAI CESTAT

CENTRAL EXCISE

2018-TIOL-1363-HC-KAR-CX + Case Story

Pr.CCE Vs Vilax Industrial Fabrics Survey

CX - Soon upon the mistake being pointed out by the Officer of the Department, the Respondent Assessee immediately reversed the Cenvat Credit wrongly availed by it - In view of thereof, there cannot be said to be any mis-statement, fraud or collusion on the part of the Respondent Assessee through which it wanted to evade the Excise Duty in question - setting aside of the interest and penalty by the CESTAT, in these circumstances, cannot be faulted Revenue appeal dismissed: High Court [para 8, 9] -Appeal dismissed: KARNATAKA HIGH COURT

Bharat Oman Refineries Ltd Vs CC GST & C

CX- The assessee is a refinery for the manufacture of petroleum products - The contractor paid the service tax under the Works Contract Composition Scheme & availed Cenvat credit of the service tax - In terms of the Works Contract Composition Scheme, the contractor was not allowed to avail Cenvat credit on inputs used by him in providing the service - The Department took a view that assessee availed inadmissible credit - A SCN was issued and the credit on inputs & capital goods was denied along with imposition of penalties - Hence, the present appeal.

Held - The issue at hand is that in terms of WCS Composition Scheme can the contractor avail Cenvat credit under Rule 3(2) - If yes, then can the Cenvat credit be passed on to the assessee as well - For installation & commission of oil refinery project the assessee awarded tender to the contracter - Even though, the contractor has discharged the duty under Rule 3(2) of WCS Composition Scheme, the assessee was still entitled to avail cenvat credit on the capital goods lying with it - Therefore, the contractor could not avail Cenvat credit on the capital goods in the execution of work contract - From the purchase order it is clear that contractor procured goods from dealer - Thus, Cenvat credit of duty paid on inputs used in providing of the WCS was admissible to the contractor and not to the assessee - What cannot be done directly is not to be allowed to be done indirectly - This follows from the case of M/s Gauri Plasticulture Pvt. Ltd. - When CENVAT credit on the input goods is not to be allowed to the contactor, who is service provider, the same cannot be passed on directly to the assessee - Under the Cenvat scheme, Cenvat credit is passed on by using the invoice documents, which are to be transferred to the buyer of the goods only - Here buyer of the goods is the contractor and not the assessee - With respect to SCN barred by limitation, the assessee willingly entered into the contract & was aware of the terms & conditions and their legal implications - Therefore, the Revenue is correct in invoking extended period of limitation - Hence, the order challenged is upheld : CESTAT (Para 2, 6, 7, 8, 9) - Appeal dismissed: DELHI CESTAT

2018-TIOL-2170-CESTAT-BANG

Microlabs Ltd Vs CCT

CX - Assessee is engaged in manufacture of pharmaceutical products having factories in and around 11 locations in various parts of the country - They are registered as ISD and are availing service tax credits on common input servicers received by them on courier services, telecommunication services, cargo handling services, manpower recruitment services and clearing and forwarding services and distributing the service tax credit in capacity of ISD to their manufacturing units at various locations - It is alleged that assessee had wrongly availed CENVAT credit on several input services for period December 2008 to December 2011 - The demand has been confirmed against ISD and as per the settled position of law, recovery can only be effected from the manufacturing units or the output service provider and cannot be made from the ISD - Further, Division Bench of Tribunal in case of Mahindra and Mahindra Ltd. has considered this issue and has held that the demand raised on ISD is not sustainable in law - As far as limitation is concerned, assessee have not suppressed any material fact from the Department with intention to evade duty - The period involved in the present case is from December 2008 to December 2011 and SCN was issued on 16.1.2014, thus entire demand is also barred by limitation: CESTAT - Appeals allowed: BANGALORE CESTAT

Tata Autocomp Systems Ltd Vs CCE

CX - SCN proposed disallowance of credit on the ground that credit was availed on the strength of supplementary invoice which was issued by appellant's Hinjewadi unit in respect of duty, which was paid only after departmental officer pointed out the short payment due to improper method of costing; that there was suppression of facts on the part of the appellant's Hinjewadi unit, therefore, credit is not admissible in terms of rule 9(1)(b) of CCR, 2004 - adjudicating authority dropped proceedings for disallowance of credit of Rs.9,25,387/- but in Revenue appeal, the order was reversed by Commissioner(A) - appeal before CESTAT.

Held: This is not a case of clandestine removal with intent to evade payment of duty - Appellant's Hinjewadi unit cleared the goods on payment of duty and short payment is only due to the wrong calculation of costing - This does not mean that Hinjewadi unit intentionally suppressed the value to evade duty - moreover, exercise is revenue neutral -Settlement Commission while settling the case imposed a token penalty of Rs.1.5 lakhs as against equal penalty proposed in the SCN and which shows that a lenient view was taken proving that there is no malafide intention - Moreover, Settlement Commission has not explicitly given any findings to hold that there is suppression of facts on the part of the appellant - no reason to deny CENVAT credit - appeal is allowed: CESTAT [para 5] - Appeal allowed: MUMBAI CESTAT

CUSTOMS

NOTIFICATION

ctariff18_053

Govt hikes basic import duty on many textile goods

CASE LAWS

2018-TIOL-2168-CESTAT-BANG

Eureka Forbes Ltd Vs CC & ST

CUS - The assessee imported steam generator and classified the item as spray guns under Customs Tariff Heading 8424 20 00- However, the Revenue took a view that correct classification of the product would be for domestic use under Customs Tariff Heading 8516 79 90 - The Appellate Authority confirmed the classification by Revenue - Hence, the present appeal by assessee.

Held - The imported goods, as seen from the catalogue for the appliances, are used for the cleaning of tiled floors, walls, mirrors, glass surface - Further the equipment can be used for cleaning carpets, cloths, cars - In addition, from the weight & nature of use of the equipment it can be concluded that they are for domestic use - The equipment cannot be considered as spray guns for industrial use - The classification of the products is ordered under 8516 as "electro thermic appliance" of a kind used for domestic purposes- Hence, the order challenged is upheld : CESTAT (Para 1, 6, 7, 8) - Appeal dismissed: BANGALORE CESTAT

2018-TIOL-2167-CESTAT-MAD

Shelf Drilling International Inc Vs CC

Cus - the assessee filed 20 bills of entry for clearance of goods such as equipments & spares - It paid duty on these goods without availing benefit under Notfn No 21/2002-Cus - The assessee later claimed refund of such amount & produced Essentiality Certificate of the Director General of Hydrocarbon (DGH) - Such certificates had been issued pursuant to orders of the Delhi High Court, which also held that the pendency of the petition be accounted for when disposing of the refund applications - However, the original authority rejected the request for re-assessment & refund on grounds that assessment had reached finality - Later, the Commr.(A) allowed the assessee's appeal in respect of 22 bills of entry & directed the original authority to re-examine the matter in light of the High Court's findings - However, the original authority rejected the appeal in respect of 7 bills of entry, on grounds that no evidence was put forth to show that duty had been paid under protest - Hence the present appeal.

Held - The refund claims were indeed filed pursuant to the goods being cleared based on interim orders of the High Court - Considering the Apex Court's decision in Mafatlal Industries Ltd. Vs UOI wherein it was held that when the duty is paid under the orders of Court, whether by way of an order granting stay, suspension, injunction or otherwise pending an appeal, reference & writ petition, it would certainly be a payment under protest - In light of such findings, the order in challenge is unsustainable: CESTAT (Para 1,5) - Appeal Allowed: CHENNAI CESTAT