ST - Assessee is engaged in civil and commercial construction work - The period in dispute is 2011-2012 - It appeared to Revenue that assessee have deliberately not given proper particulars to evade payment of service tax - It also appeared that assessee was engaged in providing services under category of commercial or industrial construction service as per sub-clause 25 (b) of Section 65 and construction of complex service as per Section 65 (105) (zzzh) of FA, 1994 or works contract service in case of transfer of property in goods which involved for execution of such contract - Issue is no longer res-integra and same have been decided in favour of assessee by Tribunal in Macro Marvel Projects Ltd. 2008-TIOL-1927-CESTAT-MAD wherein tribunal held that service tax under category construction of complex is leviable only in case if construction of a building or buildings having more than 12 units - This judgment of the Tribunal was upheld by Supreme Court - Issue regarding taxability of rainwater drains have already adjudicated by Commissioner in favour of assessee in assessee's own case, wherein the Commissioner held that said work is not liable to service tax as part of residential complex and also not qualify as facility for the residents of colonies - The work is in the nature of infrastructure constructed for disposal of rainwater - Further the same cannot be made taxable under 'works contract service' under sub-para (b) of para (ii) of sub-clause (2) of the (zza) of section 65 (25) of FA, 1994, has not used for commercial purpose - So far as the demand on the construction of drain is concerned, since the Adjudicating Authority himself in his previous order has agreed to the contention raised by assessee, therefore, no merit found in confirming the demand - Impugned order set aside: CESTAT - Appeal allowed : DELHI CESTAT

ST - Assessee enters into an agreement with various factories for supply of food and beverages to employees of factory as per agreed upon charges - The service so provided per se are in the nature of outdoor catering services as it has been provided from the place other than that of the assessee - Consideration is paid directly by factory to caterers - Maintaining canteen for employees is a statutory requirement under Factories Act for certain category of factory and outsourcing the same is not barred under the Act ibid and Rules made thereunder - Based on the provisions of Section 66F(1) of the Act it is also alleged that the main service i.e. canteen service is exempted under the Notfn 14/2013-ST and not the outdoor catering services which is used to provide such service - In the negative list based service tax regime "canteen" and "outdoor caterer" is not defined - Therefore, it would be prudent to take recourse to definitions provided under Finance Act, 1994 as these were in existence till 30/06/2012 - Section 65(24) [as it existed till 30/06/2012] of the Act ibid provided that – "caterer means any person who supplies, either directly or indirectly, any food, edible preparations, alcoholic or non-alcoholic beverages or crockery and similar articles or accompaniments for any purpose or occasions" - Thus the services provided by assessee is covered by Entry No.19A of the Negative List and exempted from payment of Service Tax: CESTAT - Appeal allowed : ALLAHABAD CESTAT

ST - The assessee is registered for providing "Site Formation and Clearance" services - During verification of records, it was found that assessee is rendering service under category of "Management, Maintenance and Repair Services" and were not discharging their service tax liability under this category - The main contention put forward by assessee is that the services were rendered to their sister concern and they have not collected the service tax - It is therefore right that assessee ought to be given cum-tax benefit in quantification of demand of service tax - Further, since the services are provided to the sister concern, the situation is revenue neutral one and the penalties imposed is unwarranted - There is no evidence brought out that assessee have suppressed the facts with intention to evade payment of service tax - Penalties imposed under Section 76 and 78 are wholly unjustified and same are set aside: CESTAT - Appeal partly allowed : CHENNAI CESTAT

CX - Assessee is engaged in manufacture of cylinder liners which are in nature of parts / components of automobiles - The assessee cleared said goods in bulk to State Transport Undertakings for being used by them in maintenance of their fleet - The clearance to these transport undertakings were subject to duty of excise based on their transaction value under section 4 of CEA, 1944 - Department views that the duty has to be on the basis of MRP - Undisputedly, assessee had cleared cylinder liners in bulk to State Transport Undertakings for their own consumption - There is no dispute that goods were not cleared for retail sale - Chapter 2 of Standards of Weights and Measures Act and Rules 1977 provides that said Rules do not apply when goods are not intended for retail sale - The authorities below have relied upon Rule 34 to confirm the demand - Rule 34 has undergone an amendment with effect from w.e.f 17.7.2006 whereby clause (a) has been omitted - The authorities below have relied upon this clause to state that the exemption provided under Rule 34 is not available to assessee for the reason that the subject goods are used in service station / workshop of Transport Undertakings - The major period involved in these appeals is after 17.7.2006 - Demand confirmed on the basis of Rule 34 which is not in existence is unsustainable and same is set aside - Moreover, for the period prior to 17.7.2006 also, demand is unsustainable: CESTAT - Appeals allowed : CHENNAI CESTAT

CX - Assessee is in appeal against impugned order of Commissioner (A) upholding the order of lower authority that denied the benefit of notfn 6/02-CE on clearance of volume bottle to M/s Dresser Rand (I) Ltd. - It is the submission of assessee that they had been relieved from liability to duty on these goods in accordance with the exemption notification which allowed that privilege if such goods, when imported into India, were exempt from duty by application of notfn 21/2002-Cus - He pointed out that lower authorities had held against them on the ground that 'volume bottle', otherwise known as 'pulsation dampener', are parts which are not covered by list enumerated in said notification and that such eligibility is further available only to participants in 'international competitive bidding process' - It is not in dispute that 'volume bottles' were supplied for a project which was being executed for M/s ONGC and that the said project had been awarded by M/s ONGC in an 'international competitive bidding process' - On perusal of the notification according benefit of exemption to specific goods required for execution of specified projects, it is seen that 'list 12' encompasses accessories of goods specified in the same list and of which serial no. 9 is compressor - As notfn 21/2002-Cus enables exemption from duties of customs for accessories of compressors, the benefit of duty free clearance envisaged at serial no. 301 read with condition no. 64 in notfn 6/2002-CE is available to assessee - Turning to the second ground for denial of exemption, viz. participation in 'international competitive bidding process', Tribunal in case of Toshniwal Industries Pvt. Ltd 2017-TIOL-1670-CESTAT-DEL , has held that exemption cannot be denied for the reason that sub-contractor did not take part in International Competitive Bidding - The ineligibility, as decided by lower authorities for non-participation in bidding process will not sustain: CESTAT - Appeal allowed : AHMEDABAD CESTAT

CX- In the instant case, the assessee filed the rectification application as its a case of difference of opinion with regard to Member (Judicial), who first passed order observed that as the penalties on various dealers/drivers/transporters, authorize representative stands imposed by the Commissioner, on the basis of evasion of duty by HSG (M/s Harsingar Pvt. Ltd.) - In addition, the Tribunal has already upheld the confirmation of demand against HSG only in respect of Supari received by them from Mahesh & Co. - The matter as regards penalty of various persons is remanded to the Commissioner for judging afresh in the light of the findings of the Tribunal.

Held - The lower authority is directed to re-adjudge the penalties including these assessee's in terms of the Final Order No. A/53294-53330/2014-EX[DB] dated 27/08/2014 : CESTAT (Para 1, 6, 7, 8) - Matter remanded : ALLAHABAD CESTAT

CUSTOMS

NOTIFICATION

cnt66_2018

Appreciable reduction made in Tariff Values of Gold, Silver, Edible Oils by CBIC

CASE LAWS

2018-TIOL-307-SC-CUS + Case Story

Surinder Kumar Khanna Vs Intelligence Officer

NDPS - Seizure of Heroin - Confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused - apart from the statements of co-accused there is no material suggesting involvement of the appellant in the crime in question - In the absence of any substantive evidence, it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused - The appellant is, therefore, entitled to be acquitted of the charges leveled against him - Unlike Section 15 of Terrorist and Disruptive Activities Act, 1987 (similarly, section 18 of the Maharashtra Control of Organised Crime Act, 1999) which specifically makes confession of a co-accused admissible against other accused in certain eventualities, there is no such similar or identical provision in the NDPS Act making such confession admissible against a co-accused - orders of conviction and sentence set aside and the appellant is acquitted - Appellant to be released forthwith unless his custody is required in connection with any other offence: Supreme Court [para 10 to 14] -Appeal allowed : SUPREME COURT OF INDIA

2018-TIOL-2344-CESTAT-KOL

R A Enterprises Vs CC