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SERVICE TAX
2018-TIOL-2536-CESTAT-MUM-LB + Case Story
Cox And Kings Ltd Vs Commissioner
ST - Constitution of Larger Bench - There is no enabling provision that empowers the Central Government to delegate the powers of the President on any of the Members of the Tribunal - Conferment as Head of Department cannot transform the nominated Member into the President for the purposes of section 129 and 129C of Customs Act, 1962 - In Customs Act, 1962, while the Central Government is empowered to appoint the President and Vice-President, there is no express empowerment of the Central Government to delegate their functions and powers of these to any other authority - Settled law that the power to delegate should flow from an express provision of the statute - Head of Department has a particular connotation in the administrative structure of the Central Government - President and Members of the Tribunal are not in such a superior-subordinate relationship in the discharge of functions under Customs Act, 1962 - It is, by far, better to await the appointment of President and thus erase any trace, however remote, of any controversy in the provenance of the Larger Bench - Hearing is adjouned sine-die - File to be put up before President of CESTAT, as and when he joins: Larger Bench by Majority [para 12, 16, 18, 2 1]
Cus/ST/CEX - Section 129, 129C of Customs Act, 1962 - A bench that cannot, owing to circumstances, hear a matter, erases to exist and reconstitution is tantamount to a fresh exercise of power to constitute a Larger Bench because the President has the primal right to be in the Larger Bench: CESTAT [para 19]
- Matter adjourned : MUMBAI CESTAT
2018-TIOL-2526-CESTAT-MAD
Akhilandeshwari Carbon Gas Pvt Ltd Vs CCE & ST
ST - Assessee is engaged in manufacture of carbon-di-oxide and for transport of these goods, they availed services of GTA to take their finished goods to the buyers and bring back the empty cylinders back to the factory - Department took the view that apart from the gross amount charged by assessee for the service provided, the cost of diesel is also required to be added for arriving at assessable value in view of Rule 5 (1) of Service Tax (Determination of Value) Rules, 2006 - Matter is covered by judgment of Intercontinental Consultants & Technocrats Pvt Ltd. 2012-TIOL-966-HC-DEL-ST wherein High Court of Delhi interalia held the said Rule 5 (1) to be ultra vires - Tribunal in recent decision in case of Dream Loanz 2017-TIOL-2503-CESTAT-MAD relying upon the judgment in Intercontinental Consultants & Technocrats Pvt. Ltd. has allowed the appeal of assessee in that matter - In view of these, impugned order cannot be sustained: CESTAT
- Appeal allowed : CHENNAI CESTAT
2018-TIOL-2525-CESTAT-KOL
Success Zone Vs CCE & ST
ST - Assessee is a proprietorship concern of which, M/s Ashish Kumar is proprietor - They are running coaching center in the name and style as "M/s Success Zone" - SCN was served upon the assessee alleging that M/s Success Zone Educational Private Limited and the proprietorship concern, M/s Success Zone, the assessee, are in fact, one and the same on the ground that they have given common advertisement in newspaper and also share a common website and a common logo - The commercial training and coaching services came into service tax net w.e.f.01.07.2003 under Section 65 (105)(zzc) of FA, 1994 vide Notfn 07/2003-ST - The assessee has sworn an Affidavit on 14.09.2017 - Further, assessee filed a copy of ITR-V along with computation of income for the last three years and he also made the Bench go through gross receipts mentioned in computation of income, which tallies with the figures as shown in adjudication order - Demand of tax raised is squarely based on clubbing of gross receipts of assessee and that of the Private Limited Company - The only allegation was that a common logo was used by both the entities - It has not been brought on record that there was financial flow-back between the assessee and the Private Limited Company - The condition of clubbing or gross receipt has not been established in this case - The Private Limited Company is separately registered with the service tax authorities and they are discharging their service tax liabilities on a regular basis which has not been disputed by Department - The status of both the entities is independent of each other - The assessee is running his coaching institute since, 2010 and the Private Limited Company has come into existence only on 3rd June, 2013 - No justification found for clubbing the gross receipts of assessee and the Private Limited Company - Accordingly, the impugned order is set aside: CESTAT
- Appeal allowed : KOLKATA CESTAT
2018-TIOL-2524-CESTAT-CHD
CCE Vs Zenith Punjab Rollers Pvt Ltd
ST - Assessee is engaged in re-rubberisation of old, worn out rubberised rollers of various industries - The customers send them their used rollers at random and re-rubberisation comprises removing the old rubber from spindle and replacing it with the fresh rubber compound coating - During investigation, various records/documents maintained by assessee were examined by officers of DGCEI and statements of various employees/Directors of assessee were recorded to ascertain the facts whether re-rubberisation undertaken by assessee on behalf of their customers was classifiable under category of 'Management, Maintenance or Repair' Services or under the category of 'BAS' - A similar issue came up before Tribunal in the their own case 2013-TIOL-1841-CESTAT-DEL wherein it has been held that the activities undertaken by assessee merits classification under BAS and not Management, Maintenance or Repair service - Therefore, no infirmity found with the impugned order, same is upheld: CESTAT
- Appeal dismissed : CHANDIGARH CESTAT
CENTRAL EXCISE
2018-TIOL-2529-CESTAT-ALL
Pr Commissioner, Central Goods & Service Tax Vs Bajaj Hindusthan Sugar Ltd
CX - Whether the transaction being transfer of 'rights and privilege of export of sugar quota' by assessee on receipt of consideration, whether the same is a service or goods - In view of ruling of Supreme Court in case of Vikas Sales Corporation 2002-TIOL-608-SC-CT-LB , which have been reaffirmed by Supreme Court in Yasha Overseas and others 2008-TIOL-97-SC-CT , transaction in question regarding sale of rights and privilege of export of sugar quota is sale of goods and no service is involved - Accordingly, impugned order upheld: CESTAT
- Appeal dismissed : ALLAHABAD CESTAT
2018-TIOL-2528-CESTAT-ALL
Smc Pneumatics India Pvt Ltd Vs CC & CE
CX - The assessee are engaged in the manufacture of excisable goods namely bus doors assembly, shelf plate for bus door kit, front & rear valve plate under CH 87082900 - In addition, they manufactured joint, bands, clevis, trunnion & retainer plate CH 84129090 - Futher, it made exports to various countries in terms of Rule 19 of CER read with Notification No. 42/2001-CX(N.T ) , under self-sealing and self-certification procedure envisaged under Notification No. 42/2001-CX(N.T ) - As per essential condition mentioned in notification they were regularly filing the application within 24 hours of the removal of goods with the concerned Superintendent or Inspector of Central Excise - However, during the period in dispute they filed application (ARE-1) beyond 24 hours - Duty demand was raised and penalty was imposed - The demand was confirmed by the adjudicating authorities - Hence, the present appeal - Held - The delay occured as concerned employee met with road accident - However, the said ARE-1 Applications were filed as soon as said employee resumed his duty - The delay caused is nothing but procedural irregularity & the assessee is not a habitual offender - Hence, the order challenged is set aside: CESTAT (Para 2, 7)
- Appeal Allowed : ALLAHABAD CESTAT
2018-TIOL-2527-CESTAT-HYD
CCE & C Vs Dr Raj Laboratories Ltd
CX - The assessee are manufacturers of P or P medicaments - On audit, the Revenue noticed that assessee were removing goods without payment of duty & crossing the exemption limit as per Notification No. 8/2001-CE
- Revenue's Appeal Dismissed : HYDERABAD CESTAT
2018-TIOL-2521-CESTAT-MAD + Case Story
Vedanta Ltd Vs CCE
CX - Assessee is engaged in manufacture of Copper Anode, Anode Lime Sulphuric Acid and Phosphoric Acid - In audit, it was observed that assessee had used portion of CENVAT credit towards payment of education cess and secondary higher education cess - Department was of the view that assessee cannot utilize CENVAT credit of basic excise duty for payment of education cess / secondary higher education cess - Rule 3(4) clearly lays down that the CENVAT Credit availed under Rule 3(1) by a manufacturer / service provider can be utilized for payment of any of duty of excise on any final product - Following the decision in case of Madura Industries Textiles 2012-TIOL-1094-HC-AHM-CX, the demand cannot sustain, same is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
CUSTOMS
CIRCULAR
cuscir27-2018
Clarification regarding bank guarantee requirement for bond executed by EOUs
NOTIFICATION
cnt72_2018
CBIC revises new exchange rate for South African Rand
CASE LAWS
2018-TIOL-2523-CESTAT-MAD
S Chidambaram Vs CC
Cus - In the case of Commissioner of Customs vs. Sayed Ali the Apex Court ordered that officers of Directorate of Revenue Intelligence were not proper officers u/s 2(34) of Customs Act - After this, the provisions of section 28 of the Customs Act, 1962 were amended with effect from 08.04.2011 vide Finance Act, 2011 - The CBEC issued a Notification No. 44/2011-Cus (NT) assigning the functions of the proper officer to various officers (including Additional Director General, DRI) - This issue came up before the Delhi HC Mangli Impex Vs. UOI observed that the DRI was not competent to issue show-cause notice - However, the Mumbai HC & Telangana- AP HC held contrary views as against the Delhi HC in the case of Sunil Gupta vs. Union of India & Vuppalamritha Magnetic Components Ltd. vs. DRI (Zonal Unit) - In October, 2016 the Supreme Court ordered stay on the operation of order of Delhi HC, therefore, the issue is subjudice before the Supreme Court- In addition, in the case of BSNL vs. UOI the HC of Delhi granted liberty to the by observing that "petitioner is permitted to review the challenge depending on the outcome of the appeals filed by the UOI in the Supreme Court against the judgment of the Court in the case of Mangli Impex Ltd.".
Held - Following the same principle, the Tribunal in this case remanded the matter to the original adjudicating authority to first decide the issue of jurisdiction after the availability of Supreme Court decision in the case of Mangli Impex - Furthermore, the Revenue has to provide an opportunity to the assessee of being heard - The Tribunal Vide Final Order No. 42040/2017 in the case of M/s. Rajeswari Enterprises had taken a similar view - Hence, the order challenged is set aside and the status quo is to be maintained: CESTAT (para 2, 10, 11, 12)
- Case remanded : CHENNAI CESTAT
2018-TIOL-2522-CESTAT-AHM
CC Vs Ruchi Soya Industries Ltd
Cus - In the present case, the Commr.(A) set aside the O-I-O denying the benefit of exemption in Notification No. 21/2002-Cus on the ground of beta-carotene content in the crude palm oil imported by the assessee being below the prescribed threshold to disentitle them from the privilege - Demand for differential duty was raised.
Held - In the assessee's own case, it is clear that expert opinion holds that carotene content reduces due to lapse of time - This is reflected in the test reports too - The various tests of the samples were effected over a period of four months since arrival of cargo and there is a consistent decline in the distinguishing content - Therefore, the conformity of goods with crude palm oil as per prescribed parameters at the time of import should not be in doubt: CESTAT (Para 1, 4, 5, 6)
- Revenue's Appeal Dismissed : AHMEDABAD CESTAT
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