Spacewood Office Solutions Pvt Ltd Vs CCE & ST

ST - CENVAT credit denied on the ground that the invoices did not reflect the name of the appellant as the service receiver and accordingly the requirements of rule 4A(1) of STR, 1994 had not been complied with - appeal to CESTAT.

Held: Since the department has not specifically alleged the fact regarding misuse of CENVAT credit, mere change in the name of the appellant reflected in the invoices cannot be a defensible ground to deny CENVAT credit - credit cannot be denied on procedural ground - impugned order set aside and appeal allowed: CESTAT [para 3, 4]

- Appeal allowed: MUMBAI CESTAT

2018-TIOL-2460-CESTAT-DEL

TM Motors Pvt Ltd Vs CGST, C & CE

ST - The assessee is engaged as a dealer of Maruti cars - They not only sell cars manufactured by M/s Maruti Suzuki Ltd. but also undertake the servicing thereof - Department while carrying out the audit of accounts of assessee noticed that assessee has failed to pay service tax on certain receipts - Accordingly, SCN was issued proposing to demand service tax under various grounds - As regards to whether the discounts/ incentives received by assessee from the manufacturer of cars will be liable for payment of service tax, by following the decision in case of Toyota Lakozy Auto Pvt. Ltd. 2016-TIOL-3152-CESTAT-MUM demand of service tax on this ground set aside - During course of carrying out service of vehicles as an authorised service centre for Maruti cars, assessee also used various consumables/ spare parts - Department proposed to demand service tax by including value of such consumables/ spare parts - Service tax is not chargeable on consumables/ spare parts since these have been sold by assessee during course of servicing the vehicle - From invoices it is clear that for spare parts and consumables sold during provision of service VAT as appropriate has already been paid - Tribunal in case of Krishna Swaroop Agarwal 2014-TIOL-2005-CESTAT-DEL has held that service tax is not required to be paid on sale of goods - Demand of service tax on this ground also set aside - The assessee has carried out not only service as an Authorised Service Station but also the activity of trading of Maruti cars as well as spare parts - Department ordered for reversal of an amount at the rate of 6% of value of exempted service, i.e., trading service, in terms of Rule 6(3) of CCR, 2004 - Entire amount of common input service on which cenvat credit has been availed has since been reversed by assessee - It has been held by Allahabad High Court in case of Helo Mineral Waters 2004-TIOL-57-HC-ALL-CX that subsequent reversal of credit amounts to non taking of credit - By following the said decision, no justification found for the amount ordered to be paid under Rule 6(3) of Cenvat Credit Rules - Hence, demand on this ground also set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2018-TIOL-2459-CESTAT-MAD

Vignesh Alloys Pvt Ltd Vs CCE & ST

ST - The assessee are engaged in the manufacture of Aluminium Alloy Ingots availing the facility of Cenvat credit of duty paid on inputs - It procured as well as imported Aluminium scrap and availed credit of the duty paid on such Aluminium scrap procured locally and the CVD paid on imported scrap - On scrutiny, it was noticed that the assessee cleared Cenvat availed imported aluminium scrap 'as such' under Rule 3 (5) of CCR 2004 & availed credit - The Revenue took a view that as per definition of "first stage dealer" given in CCR 2004, the dealer should purchase the goods directly from the manufacturer and that the appellants are not eligible for the credit availed on the Aluminium scrap which were resold to them - Furthermore, invoices issued by first stage dealers under which the credits were transferred back to the assessee were not valid documents for availing the cenvat credit - Duty demand was raised and confirmed imposing interest & penalties.

Held - For the purpose of Rule 2, the dealer is one who purchases "goods" from the manufacturer, and is not limited to somebody who only purchases goods "manufactured" by the manufacturer - Hence, the order challenged is set aside: CESTAT (Para 1, 5)

- Appeal allowed: CHENNAI CESTAT

CENTRAL EXCISE

CUSTOMS

Raj Traders Vs CC

Cus - The assessee imported consignments comprising television sets (LED) of 'SAMSUNG' & 'SONY' brands - The Revenue initiated recovery proceedings for not being compliant with Electronics and Information Technology Goods (Requirements for Compulsory Registration) Order, 2012 issued under the Bureau of Indian Standards Act, 1986 and for misdeclaration of value - In addition, one of the consignments was seized as assessee violated IPR & misdeclared value of goods and invoked section 11 - The Revenue rejected the value declared by the assessee and enhanced the value of goods - Further, under section 112(a)(i) r/w Rule 9 absolute confiscation was ordered along with penalty and penalty on Manager & Authorized Signatory of assessee-company.

HELD - The issue at hand was whether the television sets are liable to confiscation u/s 111 of Customs Act, 1962 for non-compliance with the compulsory registration scheme of the Bureau of Indian Standards - The confiscation of 'SONY' television sets and the direction of re-export is not legitimate - However, with respect to 'SAMSUNG' sets there is no evidence of registration - Thus, clearance into the domestic market on payment of redemption fine would run counter to the objectives of the FTP in prescribing such registration as a pre-requisite for import - The quality of the goods and safety to the consumer is assured only with such registration - Therefore, the confiscation of 'SAMSUNG' sets is valid - With respect to valuation of 'SONY' Tv sets, in the absence of any evidence of contemporaneous imports to support the enhancement - The confiscation is invalid & deleted - On the other hand, the confiscation of 'SAMSUNG' TV sets for not being compliant with the compulsory registration scheme of BIS is upheld - With respect to subject goods being violative of IPR, implementation of the convention are not within the purview of the Commissioner, only the law framed hereunder is - Likewise, Circular no. 41/2007-Customs envisages the same principle - In the present case, counterfeits can be detected only through the prescribed procedure which has not been followed herein - Therefore, the goods are not counterfeits - Section 11 and, consequently section 111, is not liable to be invoked - Hence, the confiscation of the 'SONY' TV sets and 'SONY' panels as well as the enhancement of assessable value of both is set aside along with penalty - The confiscation of 'SAMSUNG' television sets is upheld with the redemption fine, subject to re-export, being reduced to Rs. 5,00,000/-: CESTAT (para 2, 6, 7, 8, 12, 13,1 4, 15)

- Appeal allowed: AHMEDABAD CESTAT