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SERVICE TAX
2018-TIOL-1570-HC-MAD-ST
Commissioner of GST & Central Excise Vs R S Development & Constructions India Pvt Ltd
ST - When the matter came up for hearing, on the basis of instructions dated 11.07.2018, Senior panel counsel for Department submitted that the appellant has instructed him to withdraw the Civil Miscellaneous appeal and he has also made an endorsement to that effect - Civil Miscellaneous Appeal is dismissed as withdrawn: HC - Misc appeal dismissed
: MADRAS
HIGH COURT 2018-TIOL-2487-CESTAT-MUM
Commissioner of Central GST Vs Barclays Wealth Trustees India Pvt Ltd
ST - Refund - Rule 5 of CCR, 2004 - Air travel, accommodation services were utilised for use of the employees at various locations to render output services which were exported - above services as well as Cargo Handling Services are squarely covered as eligible by the judgement in the case of Reliance Industries Ltd [ 2016-TIOL-2392-CESTAT-MUM ] and Accenture Service Pvt Ltd ( 2016-TIOL-30-CESTAT-MUM ) : CESTAT [para 7]
ST - Refund - Rule 5 of CCR, 2004 - Larger Bench in the case of Span Infotech Ltd. [ 2018-TIOL-516-CESTAT-BANG-LB ] has held that the refund claims filed under Rule 5 of the CENVAT Credit Rules, 2004 can be filed within one year from the end of the particular quarter - date of filing of the refund claim is within one year of the end of the specific quarters, hence refund claim is not time barred: CESTAT [para 4, 10]
ST - CENVAT - Invoices contained addresses which are not mentioned in the service tax registration, therefore, credit denied - appellants claiming that they were functioning from this premises earlier and invoices raised by the input service providers were at the old address - matter needs verification, hence remitted back to first appellate authority: CESTAT [para 9]
- Appeals disposed of
: MUMBAI CESTAT
2018-TIOL-2483-CESTAT-ALL
Unique Car Scanners Vs CCE & ST
ST - Assessee is an 'Authorized Service Station of Motor Vehicles' - A SCN was issued, subsequent to audit, wherein it appeared that assessee was paying Service Tax on labour charges only and not paying Service Tax on value of spare parts and lubricants used in course of servicing of motor vehicles - It appeared to Revenue that practice was not in tune under Rules 5 & 6 of Service Tax (Determination of Value) Rules, 2006 r/w Section 67 of Finance Act r/w C.B.E. & C. Circular No. 96/7/2007 -Service Tax - Service Tax was proposed to be levied on the amount relatable to spare parts and lubricants for extended period October, 2006 to September, 2011 with interest and further proposal of penalty under Sections 76, 77 & 78 of FA, 1994 - In view of settled legal position in case of Samtech Industries 2014-TIOL-643-CESTAT-DEL upholding the order of Tribunal by High Court of Allahabad and also in view of letter of C.B.E. & C. accepted the legal position that the cost of items supplied/sold and there is documentary proof specifically indicating value of goods, the demand of Service Tax against assessee for the cost of goods supplied during repair does not appear sustainable - In this view of the matter, impugned order set aside: CESTAT
- Appeal allowed : ALLAHABAD CESTAT
2018-TIOL-2482-CESTAT-MAD
Taanya Tour Travels and Freight Forwarders Pvt Ltd Vs CST
ST - Assessee is IATA Air Travel Agent and is registered with Service Tax Department under Air Travel Agent Service - The first issue that arises for consideration is incentive received for use of AMADEUS software - The same stands settled by decision in case of D. Pauls Consumer Benefit Ltd. 2017-TIOL-908-CESTAT-DEL - However, taking into consideration the fact that the issue was under litigation and highly contentious, penalties on this count cannot sustain - The demand has been confirmed on the incentive/commission received from insurance companies for arranging overseas medical claim policy for their clients - Said commission would be promotion of business of insurance companies and therefore would rightly fall under BAS - However, considering that the assessee had bonafide belief that as per Board clarification, they would not be liable to pay and the same would be subject to levy only under insurance auxiliary service, penalties imposed set aside - The amount of Rs.94,644/- is confirmed in respect of charges received by assessee towards delivery and handing over of tickets to clients - The department has considered the same to be taxable under tour operator service - Merely booking of tickets and collecting charges for handing over the tickets would not amount to tour operator service - Demand on this count set aside - The next issue is with regard to income received from airlines for cancellation of tickets - The issue stands covered in favour of assessee - Demand on this ground also set aside: CESTAT
- Appeals partly allowed : CHENNAI CESTAT
CENTRAL EXCISE
2018-TIOL-1569-HC-MAD-CX
Eid Parry India Ltd Vs Joint Commissioner GST & Central Excise
CX - Writ Petition is filed against impugned order denying CENVAT credit statutorily availed by petitioner during the period from April, 2015 to March, 2016 in complete violation of judicial discipline and principles of natural justice - The order passed by original authority is contrary to judicial discipline in flagrant disregard to law and rules and also in violation of principles of natural justice and the resultant position is, there is failure of justice in relying on interim order and ignoring the binding precedents - In such circumstances, instead of admitting the matter and keep it pending for years and indulging in re-appreciation of evidence or evaluation of evidence or correction of errors, it is always better to leave it to the concerned adjudicating authority to pass an order in compliance with judicial discipline and principles of natural justice - Therefore, matter remanded back to the first respondent for consideration afresh on a condition that petitioner deposits 10% of tax due within a period of four weeks: HC
- Matter remanded
: MADRAS HIGH COURT
2018-TIOL-2486-CESTAT-DEL
S R Protus Hygiene Pvt Ltd Vs CCE
CX - The assessee is engaged in making various types of tissue papers - The jumbo roll of paper was attached to the paper napkin machine, set in the required size and then embossing of design, cutting, slitting, and folding were undertaken using the machine - Thereafter, the cut to size products were packed manually in polythene (printed with 'PROTUS' brand) and finally into big cartons, i.e. corrugated boxes and sold - A SCN was issued demanding duty as the process of conversion of the disputed products from jumbo rolls of paper amounts to manufacture under Section 2 (f)(iii) of the CE Act - Thus, the Revenue opined that central excise duty was payable on the manufacture of subject goods - The issue at hand was whether the activity carried out by the assessee in their factory amounts to manufacture.
Held - To determine whether a certain process would amount to manufcature or not, the SC in the case of Servo-Med Industries has formulated four tests - The test no. 4 provides that in cases where goods are transformed into goods which are different or new after a particular process are marketable as such - The final product sold in the market place by the assessee is different from the jumbo rolls which are raw materials - Eventhough, both the jumbo rolls and final products such as napkins are made of the same tissue paper - The transformation of jumbo rolls into either toilet rolls or kitchen rolls or in the form paper napkins bring out a distinctive and different use in the article - Resultantly, products are perceived differently in the marker - Therefore, the test is satisfied in the present case and hence the process undertaken by the assessee is to be considered as a process of manufacture liable to payment of excise duty - With respect to the issue that demand is time barred, the reasoning of Adjudicating Authority is upheld even on extended period of limitation - Hence, the order challenged is upheld : CESTAT (Para 2, 10, 11, 12, 13, 14, 15, 16)
- Appeal dismissed : DELHI CESTAT
2018-TIOL-2485-CESTAT-DEL
Sanwariya Tiles Pvt Ltd Vs CEC & CGST
CX- The assessee is engaged in the manufacture of marble slabs out of the imported marble slabs - During the period in dispute, it availed the benefit of small scale exemption notification - It availed Cenvat credit of duty paid on the inputs lying in stock or in process or inputs contained in the final product lying in stock on the date of crossing of their exemption limit - The Revenue opined that assessee were not entitled to avail credit as Rule 4(1) allowed availment of credit only within a period of six months from the date of issuance of the documents - The Commr. (A) upheld the order, hence the present appeal.
Held - If the entitlement to avail the credit of the inputs lying in stock as on the date of their crossing the exemption limit is denied to the assessee then provisions of Rule 3(2) CCR become infructuous - Rule 4(1) provides for availment of credit within six months from relevant documents - Therefore, a harmonious reading of both the provisions the assessee is eligible to avail credit at the time of coming out of the exemption scheme - Hence, the order challenged is set aside : CESTAT (Para 2, 6, 7)
- Appeal allowed : DELHI CESTAT
2018-TIOL-2484-CESTAT-ALL
JPC Vs Commissioner Central Goods and Service Tax
CX - Whether the services of "Business Art Work", "Brand Support Service", "Web-Site Design and Maintenance Service" availed by assessee are to be considered as cenvatable input services in manufacture of final product and it's ultimate export, so as to make the assessee entitled to refund of service tax paid on the same in terms of provisions of Cenvat Credit Rules - The lower Authorities have observed that such services cannot be considered to be input services whereas the assessee have contested that the same are used by them directly or indirectly in manufacture and export of their final product - Law on the issue stands considered by various decisions of Tribunal as also by High Court and it has been held that input service definition as available in sub Rule 2(l) of CCR, 2004 is wide enough to take into its ambit the services which stand utilized directly or indirectly in manufacture and clearance of final product - The lower Authorities have not discussed the issue from said angle and have not considered the utility of said services in assessee's final business of export - Apart from that lower Authorities have also observed that all these services have not been used exclusively for purpose of export whereas the assessee have contended otherwise - A detailed discussion on uses of said services is required to be undertaken by lower Authorities and other verification of factual position and in the light of law declared by various courts - The said exercise can be done only at the level of Original Adjudicating Authority for which purpose matter remanded back to the Original Adjudicating Authority: CESTAT
- Matter remanded : ALLAHABAD CESTAT
CUSTOMS
NOTIFICATIONS
15/2018-Customs (NT/CAA/DRI)
Appointment of Common Adjudicating Authority by DGRI
14/2018-Customs (NT/CAA/DRI)
Appointment of Common Adjudicating Authority by DGRI
CASE LAWS
2018-TIOL-2481-CESTAT-MAD
Subam Traders Vs CC
Cus - The assessee filed Bill of Entry through their CHA for clearance of goods declared heavy melting scrap - The goods were examined and found to be re-rollable steel scrap and further assessee had not produced PSI certificate at the time of examination - The re-rollable scrap attracts 5% BCD under Notfn 21/2002 S.No. 190B, whereas heavy melting scrap attracts nil BCD - The department was of the view that the assessee had mis-declared the goods to evade payment of customs duty - The assessee is contesting only the redemption fine and penalty imposed - It is seen from the records that the assessee had misdeclared the goods as heavy melting scrap - However, the quantum of duty that would have been payable in case the goods are described as re-rollable scrap is only Rs.63,000/- - Further, it is submitted that assessee is a first importer - Taking these aspects into consideration, redemption fine is reduced from Rs.3,00,000/- to Rs.1,00,000/- - The penalty imposed is sustained as no ground found to interfere with penalty as Commissioner (A) has reduced the penalty to Rs.50,000/-: CESTAT
- Appeal partly allowed : CHENNAI CESTAT
2018-TIOL-2480-CESTAT-MAD
CC Vs Rfcl Ltd
Cus - The assessee-company claimed refund of SAD under Notfn No 102/2007 - Such claim was denied on grounds of unjust enrichment - On appeal, the Commr.(A) directed that the refund be sanctioned.
Held - The refund claim is filed under Notification No. 102/2007 which allows the importer to file refund claim of SAD on producing evidence that VAT is paid on sale of the imported goods - Hence it cannot be insisted upon that the assessee must show CVD as receivables immediately upon import of goods - As the Circular No. 7/2008-Cus prescribes for production of certificate issued by CA as well as self-declaration by the assessee, the Commr.(A) examined such records and correctly proceeded to sanction the refund - Hence the O-i-A merits no interference: CESTAT (Para 1,5)
- Appeal dismissed : CHENNAI CESTAT
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