2018-TIOL-2324-CESTAT-ALL

Tata Chemicals Ltd Vs CCE

ST - Assessee was issued with a SCN wherein it was contended that for the period from January, 2005 to March, 2008 assessee did not pay Service Tax on outward freight where gross amount charged was between Rs.750/- and Rs.1500/- by availing benefit under Notfn 34/2004-ST to which they were not eligible and therefore, by invoking the proviso to Sub-section 1 of Section 73 of Finance Act for extended period, demand of Service Tax was raised - In Para-9 of said SCN, Revenue has contended that the assessee had suppressed the fact by way of not disclosing the full details of freight paid in cases where the gross amount charged does not exceed Rs.1,500/- but exceed Rs.750/- in their ST-3 returns with their intention to evade payment of Service Tax and therefore the extended period of limitation was invocable - ST-3 returns requires declaration of only the taxable value and also the value on which tax is not being paid and obviously the value on which tax was not paid, was declared by them in their ST-3 returns and therefore, suppression is not established - Therefore, extended period was not invocable: CESTAT - Appeal allowed : ALLAHABAD CESTAT

2018-TIOL-2323-CESTAT-KOL

CCE Vs Cement Manufacturing Company Ltd

ST - Assessee is engaged in manufacture of Cement - A SCN was issued alleging that assessee had utilised Input Service Credit wrongly - Cenvat Credit was denied on input services on Rent-a-cab, Repair and Maintenance of vehicle and machineries and Insurance for those vehicle and machineries, manpower supply, short payment of Service Tax for GTA Service by availing irregular abatement - There is no evidence produced by Adjudicating Authority that the aforesaid services were used for activities not related to manufacture - Assessee cannot be denied the credit of ST paid thereon, viz. Rent-a-Cab, repair and maintenance of vehicles and machineries, and the insurance for those vehicles and machineries, as the services are so eligible, being squarely covered by definition of 'input service' - Assessee is legally entitled to abatement stipulated by Notfn 32/04 in respect of GTA Service - There is no reason for interference with order of Commissioner (A): CESTAT - Appeal dismissed : KOLKATA CESTAT

2018-TIOL-2322-CESTAT-MAD

Ford India Pvt Ltd Vs CCE & ST

ST - The dispute covers the period 15.03.2005 to 14.04.2006, during which the assessee rendered certain services involving identification of vendors and manufacturers on whom purchase orders can be placed by foreign manufacturer for procurement of parts and components - Such services were rendered to foreign principal of assessee for which the assessee received certain payments in convertible foreign currency - The department views that since the services for evaluation/development of prospective customers in India were carried out in India, the same does not amount to export of services - The Tribunal in case of M/s. GAP International Sourcing (India) Pvt. Ltd. 2014-TIOL-465-CESTAT-DEL held that the services are liable to be considered as export of services - By following the sad decision, impugned order set aside: CESTAT - Appeal allowed : CHENNAI CESTAT

CENTRAL EXCISE

2018-TIOL-1479-HC-MUM-CX + Case Story

Oriental Veneer Products Ltd Vs UoI

CX - With great difficulties and obstacles, parties get an opportunity to argue old appeals - Tribunal should, therefore, not pass any orders which would delay the proceedings further - Public interest suffers adversely if any tentative and prima facie view is expressed, like in the present manner, and it delays the final hearing of the appeal and thereafter the passing of the orders - The available material should have been taken into account to dispose of the appeal - Tribunal should be well aware that in the event there is any obstruction to the course of justice or the Tribunal is not rendered the necessary cooperation and assistance by parties in deciding appeals, it can very well report this fact to this Court by specifically mentioning it in its final orders and, thereafter, it is for the High Court to take appropriate action and that much trust and confidence must be reposed by the Tribunal in a higher Court - Petition disposed of: High Court [para 5, 8, 9] - Petition disposed of : HIGH BOMBAY COURT

2018-TIOL-2328-CESTAT-ALL + Case Story

CCE Vs Aditya Flexi Pack

CX - Assessee is engaged in manufacture of Branded Laminated Poly Rolls and pouches - Officers of DGCEI searched the premises of three manufacturers of LD film, which is the raw material for assessee and based upon the recovery of alleged loose slips entertained a view that said three raw material manufacturers have supplied the LD film to assessee, who have utilized the same for manufacture of their final product, without reflecting the same into statutory records and have cleared their final products without payment of duty - Statements of representative of three raw material suppliers were recorded, admitting the fact that LD film in question were manufactured and cleared by them without payment of duty to the assessee - Revenue's case is based upon the recovery of some loose slips from 3rd party premises - There is admittedly no such evidence available on record which could show that there was unaccounted production and clearance of final products - The Supreme Court in case of Vishwa Traders Pvt. Ltd. have upheld the order of Gujarat High Court in 2012-TIOL-1087-HC-AHM-CX vide which the order of Tribunal laying down that in absence of evidence of unrecorded procurement and use of raw material, the allegation of clandestine removal cannot be upheld - Similarly, the Allahabad High Court in case of Sunil Kumar Gupta has rejected the revenues appeal by observing that the demand of clandestine removal cannot be based solely on the statement of Director, without corroborative evidence - The burden of proof to establish clandestine removal is on the revenue and is required to be discharged effectively - Apart from the confessional statement and recovery of loose slips from premises of 3rd party, there is factually no other evidence to indicate any clandestine activity on the part of assessee - Accordingly, no justifiable reasons found to interfere in impugned orders - Revenue appeals rejected: CESTAT [para 6] - Appeals rejected : ALLAHABAD CESTAT

2018-TIOL-2327-CESTAT-ALL

Hindustan Coca Cola Beverages Vs CCE & ST

CX - Assessee is a manufacturer of 'Aerated Water' and 'Post Mix Canisters' and filed the refund claim upon finalization of the provisional assessment - Same was denied on the ground of unjust-enrichment - From the O-I-O finalizing the provisional assessment, it is evident that assessee had filed all the documents necessary to determine tax liability for finalization - Thus, courts below are not justified in observing that the assessee did not led sufficient evidence and did not produce any vouchers for discharge of their onus as regards unjust-enrichment - Further, Tribunal has held in case of M/s Nahar International Ltd. that the Excise duty is not shown separately in the invoice, it does not mean that incidence of duty has not been passed on - The assessee have specifically pleaded that sale/invoices issued to customers from Depot is final transaction value on which the duty was admittedly determined at the time of finalization; observation of Commissioner with reference to Section 12 B of the Act is misplaced, as there is no material on record to assume that assessee have passed on more duty liability then what is indicated in its invoices - Observations of the court below as regards to different discount given to different buyers is misplaced and call for no adverse inference - Further, assessee have also filed certificate of CA, certifying that they have not passed on the incidence of duty determined to be paid in excess by them to their customers - There is no finding by courts below, regarding passing of incidence of duty by assessee to its customers - The refund has been denied simply based on presumptions which is not tenable: CESTAT - Appeals allowed : ALLAHABAD CESTAT

2018-TIOL-2326-CESTAT-ALL

CCE Vs JBM Auto Components Ltd

CX - In the present appeal, two separate Final Orders were passed by Tribunal, First Final Order dated 03.09.2014 was set aside and the matter was remanded by High Court - Thereafter, the 2nd Final Order dated 11.11.2016 was passed, after rehearing as per directions of High Court - Accordingly, no error found on the record(s): CESTAT - Misc application dismissed : ALLAHABAD CESTAT

2018-TIOL-2325-CESTAT-MAD

Honda Motor India Pvt Ltd Vs CCE

CX - The assessee had imported certain automobile spare parts and affixed labels containing MRP in the port itself after adopting valuation under section 4A of CEA, 1944 in Bills of Entry - After receipt of imported parts in factory, they had availed CENVAT credit of excise duty (CVD), education cess / higher education cess and SAD - The dispute is with regard to situation wherein, after import of items, assessee affixes the MRP labels at port itself, adopted valuation under Section 4A and brought to warehouses or by stock transfer to their premises and then undertook activities of packing / repacking, affixing sticker / label such as "marketed by", "HONDA" without revising the MRP mentioned in label affixed at the port - Whether these activities could be brought within the ambit of manufacture as defined under section 2(f)(iii) of CEA, 1944 - While at the time of import, labeling is affixed on each of the packages, as per the requirement of Legal Metrology Act, with the tagline "Imported and Packed By", at the premises of assessee one more labeling with the tagline "Marketed By HONDA Motor Pvt. Ltd." is affixed - Affixation of "Marketed By" label and especially the "HONDA" trademark label, enhances the marketability of these products - Trademarks are efficient commercial communication to capture customer attention - It speaks about the company, its reputation and products and services - An internationally known trademark like 'HONDA' will serve to allay any doubts on basic quality of the goods and make the goods more marketable - There can be then no doubt that these operations carried on the packages not only come within the mischief of deemed manufacture on account of "labeling or relabeling" process included under section 2(f)(iii) ibid but also will become "any other treatment to render the product marketable to the consumer" - Viewed in this light, the processes carried out on impugned goods received by assessee from the port / other warehouses will amount to manufacture within the meaning of section 2(f)(iii) of the Act - Impugned orders cannot sustain: CESTAT - Appeals allowed : CHENNAI CESTAT

CUSTOMS

2018-TIOL-2321-CESTAT-MAD

Horizon Forwarders Vs CC

Cus - the appellant is a Customs broker who assisted in the import of 'Defective CR Coils' & 'Defective Hot Rolled Coils' - The Importer claimed benefit under Notfn No 46/2011-Cus & 69/2011- Cus - However it was found that the importer did not submit AIFTA Certificate of Origin in the formats prescribed in the Notfns - Hence it was alleged that the appellants contravened the provisions of Regulation 11D of the CBLR 2013 - Hence the appellant's license was revoked & penalty was imposed - Held - There has been some lack of diligence on the appellant's part - It should have properly advised the importer on being told of the deficiency in the certificates - Considering that the certifcates were only found to not be in the prescribed format & that the importer paid the differential duty on being pointed out & that there is no intention of fraud or connivance, the revocation of license is an over-kill - Hence the same is set aside - However, the penalty is sustained: CESTAT (Para 1,2,3,5) - Appeal Partly Allowed : CHENNAI CESTAT

2018-TIOL-2320-CESTAT-KOL

Fine Processors Pvt Ltd Vs CCE & ST

Cus - The Commissioner (A) has not decided the appeal on merits but has dismissed the same as time barred - O-I-O was sent vide Speed Post and not by "Registered Post Acknowledgement Due (RPAD)" as per the requirement of Section 37C of CEA, 1944 - Therefore, sending of order by Speed Post cannot be said to be proper service of order as per the requirement of law - Bombay High Court in case of Amidev Agro Care Pvt. Ltd. 2012-TIOL-395-HC-MUM-CX has clearly held that "Speed Post" is not a sufficient compliance to the provisions of Section 37C(1)(a) of CEA, 1944 - There is no evidence on record that the order sent by Speed Post was delivered to assessee - However, Commissioner (A) has not gone into the merits of case and dismissed the same as time barred - In view of this, impugned order is set aside and the delay in filing of appeal is condoned and the matter is remanded to Commissioner (A) to decide the appeal on merits and pass order in accordance with law: CESTAT - Matter remanded : KOLKATA CESTAT