2018-TIOL-2332-CESTAT-MAD

S Kadirvel Vs CCE & ST

ST- The assessee was engaged in construction of residential complexes for the police personnel in various places - Duty demand was raised as the Revenue took a view that the activities undertaken by the assessee was to be covered under the category of "Construction of Residential Complex" - The lower authorities confirmed the demand and case was remanded for de novo adjudication - Thereafter, the Commr. (A) passed the order-in-appeal confirming the duty demand - Hence, the present appeal - Held - TNPHCL engaged the assessee for construction of Police Quarters and the ownership of the houses constructed vested with the Govt. of Tamilnadu which is nothing but an extended arm of the Govt. Section 65 (91) (a) of the Finance Act, 1994 defines residential complex - This definition excludes personal use - Following the decision of SIMA Engineering Constructions & 3 Ors. Vide Final Order No. 41143 - 41146/2018 wherein the facts of the case was similar to the present case, the demand was held not to sustain - The definition of residential comples excludes construction undertaken for personal use and such personal use includes permitting the complex for use as residence by another person - Thus, the above exclusion clause covers the construction activity undertaken by the assessee & not liable to service tax - Hence, the order challenged is set aside : CESTAT (Para 2, 5, 6) - Appeal Allowed : CHENNAI CESTAT

2018-TIOL-2331-CESTAT-MAD

Pioneer Engineering Industries Vs CC, CE & ST

ST - The assessee is engaged in job work of bending, cutting, drilling, shearing & punching on goods supplied to them by various customers - The Revenue took a view that such activities did not amount to manufacture and would fall within the definition of "Business Auxiliary Services" - Duty demand was raised with interest and penalty - Hence, the present appeal by the assessee - Held - The assessee furnished the declarations filed under Notification 214/86 to show that they are job work manufacturers for customers - In addition, the activity of fabrication, cutting edge, Plain Shuttering Plates, Well Steening, Shuttering Plates from steel angles , MS Plates, MS Sheets amount to manufacture - This follows from the decision of SC in the case of Orissa Bridge & Construction Corpn. Ltd, vs. Commissioner of C.Ex., Bhubaneswar - Therefore, when the activity undertaken by the assessee amounts to manufacture, the demand raised cannot be sustained - Hence, the order challenged is set aside : CESTAT (Para 1, 5) - Appeal Allowed : CHENNAI CESTAT

2018-TIOL-2330-CESTAT-MAD

Flyjac Logistics Vs Commissioner of Goods and Services Tax and Central Excise

ST - By the impugned order, original authority confirmed service tax liabilities on assessee with reference to Cargo Handling Service, BAS and GTA Services for period 16.08.2002 to 31.03.2006 - Further, certain cenvat credit availed by assessee on input services were also ordered to be reversed - Penalties under Section 76 & 78 of FA, 1994 were also imposed on assessee - The assessee is contesting only two issues - On the first issue, the various nature of fee and charges collected by assessee from the client have already been explained by them - On perusal of activities for such consideration, it is clear that none of them involve handling of cargo physically and these are activities which are mainly monitoring, managing the consolidation / de-consolidation of multiple / bulk cargo for which various charges are collected - No specific activity found which is involving physical handling of import cargo by assessee - No evidence to that effect has been discussed in impugned order - There is no evidence to identify the assessee's activities as "Cargo Handling Agent" - Accordingly, the service tax liability on this account will not survive - Regarding tax liability under BAS for incentives received from liners, matter stands settled by Tribunal decision in case of Bax Global India Ltd. - Following the said ratio, service tax liability of assessee on this issue cannot sustain - Regarding admitted and paid liabilities on GTA service and ineligible cenvat credit, the amounts have been paid before issue of SCN - The fact of payment of interest on delayed reversal of credit needs to be verified by authorities below - Wherever applicable such interests are to be paid by assessee - Provisions of Section 80 can be invoked to waive the penalties imposed on assessee: CESTAT - Appeal partly allowed : CHENNAI CESTAT

CENTRAL EXCISE

2018-TIOL-2335-CESTAT-DEL

Greenlam Industries Ltd Vs CGST C & CE

CX - Assessees have established their factories in State of Rajasthan and were operating under Rajasthan Investment Promotion Scheme - The assessees were eligible for subsidies as per the various schemes applicable to them and they were required to deposit VAT/CST/SGST at the applicable rate with the Government and in terms of the scheme notified, will be entitled to disbursement of subsidy by appropriated authorities - The subsidy concern is sanctioned and disbursed in Form 37B and as such challans in form VAT 37B can be utilised for discharge of VAT liability of assessee for subsequent period - The Revenue proceeded to include such subsidy amounts in the value of goods cleared by assessees and demanded the difference of duty - Identical issue has come up before the Tribunal in case of Shree Cements Ltd. 2018-TIOL-748-CESTAT-DEL where it was observed that there is no justification for inclusion in assessable value, the VAT amounts paid by assessee using VAT 37B Challans - By following said order, impugned orders set aside: CESTAT - Appeals allowed : DELHI CESTAT

2018-TIOL-2334-CESTAT-MUM

CCE Vs Geet Enterprises

CX - Respondent assessee defaulted in the monthly payment of duty in terms of Rule 8(3A) of CER, 2002 - Commissioner(A) set aside the penalty imposed u/r 25 r/w s.11AC of the CEA, 1944 and instead imposed penalty of Rs.5000/- u/r 27 of CER, 2002 - Revenue in appeal.

Held: Tribunal has time and again held that in case of default in monthly payment of duty in terms of rule 8(3A) of CER, 2002 it is not the case of clandestine removal or intent to evade payment of duty, therefore, penalty u/s 11AC or rule 25 is not imposable - impugned order upheld and Revenue appeal dismissed: CESTAT [para 4] - Appeal dismissed : MUMBAI CESTAT

2018-TIOL-2333-CESTAT-MUM

Hariwansh Packaging Products Vs CCE & C

CX - Appellant availed CENVAT credit on returned defective printed corrugated board boxes u/r 16 of CER - case of the department is that the corrugated boxes once they become defective cannot be repaired and, therefore, the same cannot be returned to the same buyer or even to other persons and so the credit is inadmissible - against order of Commissioner(A) denying credit of Rs.1,08,273/- on the ground that the goods are lying in the factory, appeal to CESTAT.

Held: As the said stock is liable for duty but only at the time of removal thereon, before that CENVAT credit cannot be questioned - Even as per rule 16 after taking CENVAT credit on the duty paid returned goods, subsequent payment of duty is made only at the time of removal of such returned goods and not during the time it is lying in the factory, therefore, finding of Commissioner(A) for denying credit is not correct - appeal is allowed: CESTAT [para 4] - Appeal allowed : MUMBAI CESTAT

CUSTOMS

NOTIFICATIONS

Govt notifies imposition of Safeguard Duties on Solar Cells for two years

cscaadri12-2018

Adjudicator appointed for DRI case

cscaadri11-2018

Adjudicating Authorities appointed for various DRI cases

cnt65_2018

Sea Cargo Manifest Regulations - Word Aug 1, 2018 substituted by Nov 1, 2018

dgft_trade_notice_22_2018

Activation of E-com module for applying for SEIS, based on ANF 3B as notified vide Public Notice 15/2015-20 dated 28.06.2018

CASE LAW

2018-TIOL-2329-CESTAT-KOL

Arunabha Chakraborty Vs CC

Cus - Officers of Customs and Anti smuggling unit of Agartala and BSF personnel detected one Truck loaded with 9000 bottles of Recodex Cough Syrup and 6000 bottles of Phensedyl Cough Linctus concealed under the load of miscellaneous goods - Same were seized by authorities - The assessee is an employee of M/s. Sherowali Trade & Transport, Agartala - Commissioner (A) observed that during his tenure as a Manager of said Transport Company M/s. Abhishek Textiles, consigned the goods to M/s. Krishna Textiles, Agartala which was found by investigating officers as false since there is no existence - It is observed by Commissioner (A) that the assessee being an employee of Transport Company has to carry out his duties properly and also verify the genuineness of goods and documents while same goods are transported by Transport Agency for illegal export by an unauthorised route to Bangladesh - Allegation is that the seized goods namely Cough Syrup and Cough Linctus of huge quantity were admittedly smuggled to Bangladesh - Assessee has not come up with reasonable explanation against charges labeled against him - Therefore, imposition of penalty is justified but same is reduced to Rs.10,000.00: CESTAT - Appeal partly allowed : KOLKATA CESTAT