Income tax Act being beneficial piece of legislation, any levy or surcharge brought under Statute by insertion of new provision, calls for prospective application: HC

Cus - Imported goods sold at higher MRP after clearance by altering RSP - whether demand can be made of differential CVD or CE duty by treating activity as manufacture - Difference in Opinion: CESTAT

SERVICE TAX

2018-TIOL-2544-CESTAT-MAD

CST Vs Southern Cyber Logistics Pvt Ltd

ST - Assessee is engaged in business of Tour operator Services - They are providing services as cab operator to IT/ITES SEZ companies by way of picking and dropping the employees - Department views that assessee is liable to pay service tax on consideration received and that assessee is not eligible for exemption as per notfn 4/2004 - This notification provides for exemption of service tax for services provided to a SEZ unit for services consumed within SEZ unit - The SCN alleges that the services have not been consumed within SEZ unit - The Commissioner (A) has discussed the intention of notification granting exemption to SEZ units - The words 'in a SEZ' has led to doubts as to whether services which are partly availed outside the SEZ like that of tour operator service/ Rent -a-cab service used for picking up and dropping employees are eligible for exemption from service tax - Other service like courier services, telephone services, internet will all fall in such category where part of service may be availed outside the SEZ - When the service is ultimately consumed within the SEZ unit, whether services commenced outside the unit /or ended outside unit is of no consequence - When in effect the services are consumed within SEZ, the benefit of notification cannot be denied - Further by virtue of Section 51 of SEZ Act, the provisions of SEZ Act, has overriding effect over the provisions contained in any other law - The said Act has come into force on 10.02.2006 - Thus Section 26 which grants exemption will have overriding effect over the notification 4/2004 - More over the period involved is after 10.02.2006 - Rule 31 cannot restrict the benefit of exemption extended under the Act - The Rules are nothing but delegated legislation, and therefore cannot in any way over power the provisions of the Act - No ground found to interfere with the reasoning of Commissioner (A): CESTAT

- Appeal dismissed : CHENNAI CESTAT

2018-TIOL-2543-CESTAT-MAD

Indian Maritime University Vs Commissioner of Goods and Service Tax and Central Excise

ST - Assessee was rendering training on various courses to the officials of Major Ports, Minor Ports and National Highway of India - The academy had collected course fee from them - Department views that these activities would merit classification under Commercial Training and Coaching Services and assessees was liable to pay service tax for charges collected for period from 2003–04 to 2007–08 - Assessee submitted that the marine courses are approved by Government of India authorities and no further statutory approval is required - Vide letter dated 21.8.1998, Ministry of Surface Transport has granted approval for course of 'Personal Safety and Social Responsibility' - Again by letter dated 8.10.1998, Ministry of Surface Transport has granted approval to conduct 'Proficiency Medical First Aid and Elementary First Aid' course - On perusal of certificates issued for various courses, it is found that these are issued under auspices of Government of India, Ministry of Surface Transport and Directorate General of Shipping - It is also submitted by assessee that vide O-I-A, Commissioner (A) for subsequent period has dropped the proceedings - Taking note of these as well as the fact that the courses offered by the assessee are recognized by law being courses run under approval of Government, the demand is without legal basis, same is set aside: CESTAT.

- Appeal allowed : CHENNAI CESTAT

2018-TIOL-2542-CESTAT-MAD

CCE Vs Auroma Enterprises

ST - Assessee is providing services of C & F Agent, during the course of which he availed cenvat credit of service tax paid on GTA services - Revenue views that such credit is not available to them and accordingly, made the assessee reversed the credit so availed by them - Subsequently, in as much as there was no proceedings initiated against assessee for confirmation of said reversed debit entry, assessee filed a refund claim, same were admitted to be a repayable to assessee but denied by original adjudicating authority on the ground of unjust enrichment - On appeal, Commissioner (A) held that the refund, which the assessee is seeking, is for deposit of their own money and in such case, bar of unjust enrichment would not apply - Assessee had availed cenvat credit and on the instance of Revenue, same was debited - When the said debit entry was not being proposed to be confirmed, assessee sought correction of said entry - As such, it is not of any differential duty, which stands recovered by assessee from their customers - It is, in fact, assessee's own money in the shape of credit in their own credit account which can be utilized by them for payment of duty on their final product and hence unjust enrichment principles are not invokable - It is not a refund claim in terms of provisions of Section 11B of CEA, 1944 - In fact, only "unjust' thing happened in present appeal is denial of assessee's refund claim by original adjudicating authority and filing of the present appeal by Revenue against the "just" and fair order of Commissioner (A) - I mpugned order is upheld: CESTAT

- Appeal rejected : CHENNAI CESTAT

CENTRAL EXCISE

2018-TIOL-2541-CESTAT-DEL

Suryoday Steel Plant Pvt Ltd Vs CCE & ST

CX - Appeal filed against impugned order wherein Commissioner confirmed the demand of Central Excise Duty along with interest and penalty on assessee for clandestine removal of MS ingots - Penalty has also been imposed upon Shri Mahesh Agarwal in terms of Rule 26 of CER, 2002 - The said SCN is mainly based upon the entries recorded in diary of third party i.e. one Sh. S.K. Pansari proprietor of M/s. Monu Steel - The entire case of Revenue is based upon the records recovered from proprietor of M/s. Monu Steel - Only on the basis of statement of third party no demand could be made - The High Court of Allahabad in matter of Continental Cement Company 2014-TIOL-1527-HC-ALL-CX and also this Tribunal in cases of Raipur Forging Pvt. Ltd. 2016-TIOL-1121-CESTAT-DEL and Anand Founders & Engineers 2015-TIOL-2655-HC-P&H-CX have categorically held that the findings of clandestine removal cannot be upheld based upon the third party documents unless there is clinching evidence of clandestine manufacture and removal of the goods - In an identical matter this tribunal vide its order in Shree Consultants Pvt. Ltd set aside the demand which was also made only on the basis of entries made in the records of M/s. Monu Steel - The appeals are allowed and the impugned order is set aside - As a result the penalty imposed on Sh. Mahesh Agarwal, Director is also set aside: CESTAT

- Appeal allowed : DELHI CESTAT

2018-TIOL-2540-CESTAT-AHM

CCE Vs Universal Metals Company Ltd

CX - The assessee are engaged in the manufacture of S.S. Ingots, S.S. Flats and the principal raw materials used are S.S. scraps, M.S. scrap and Ferro Alloys - On audit, it was noticed that assessee availed inadmissible Cenvat credit without receipt of the inputs, mentioned against each of the 27 invoices issued by the dealers - Duty demand was raised - The adjudicating authority confirmed the demand along with interest and equal amount of penalty under Rule 15(2) of CCR - In addition, personal penalty was imposed on Director of assessee company - On appeal, the Commr. (A) rejected the appeals.

Held - As a common practice in the industry, when an assessee purchase bazar scrap from open market, it is received without duty paid invoice - The onus is on the assessee to establish the receipt of goods in their factory - Moreover, no reasonable explanation has been given by the assessee on the discrepancy of entry relating to the particular vehicles mentioned in the invoices - Thus, adverse inference could be drawn in this regard as has been done in the case of Gyscoal Alloys Ltd. vs CCE Ahmedabad by Guj HC - Therefore, the denial of credit in this respect is confirmed - As regards credit availed against 27 invoices - Merely on the basis of statements of the vehicle owners, it cannot be concluded that the vehicles were not used for transportation of the goods - The Revenue has not been able to corroborate the allegation of non receipt of the inputs against these set of input invoices- The RTO report reveals that the vehicle numbers mentioned in the said invoices are incapable of carrying the quantity of inputs mentioned in these invoices being in the nature of three wheelers or auto rickshaws - However, the persons on the basis of whose statement this report was prepared is questionable - Therefore, the Cenvat credit availed for this amount is admissible - Hence, the order challenged is set aside to this aspect: CESTAT (Para 2, 12, 13, 14)

- Revenue's appeals dimissed : AHMEDABAD CESTAT

2018-TIOL-2539-CESTAT-KOL

Vedanta Aluminium Ltd Vs CCE, C & ST

CX - The assessee had availed cenvat credit on various inputs, capital goods and services - The demand has been confirmed against them for utilizing cenvat credit from common pool account towards discharging their service tax liability - But the same was not allowed by Department - Identical issue has come up before the High Court of Bombay in case of S. S. Engineers - Assessee is engaged in manufacture of excisable goods and also providing various services for which they are also registered with Service Tax Department - The assessee has availed cenvat credit on inputs, capital goods and also input services and maintained a common account/Register, while discharging excise duty on clearance of finished goods also service tax on output service, they utilized the cenvat credit from the input common pool account - When the amount was utilized from the common pool account, then cenvat credit is eligible as per ratio laid down in said decision - Impugned order set aside: CESTAT

- Appeal allowed : KOLKATA CESTAT