Cus - Power project itself cannot be said to be goods - Goods which are imported are directly used in power project, cannot be said to be 'manufactured in India', therefore, claim of petitioner of deemed export drawback is rightly rejected: HC

I-T - Reimbursement of handling & warehousing collection charges to transporters doesn't attracts TDS obligation u/s 194C: ITAT

CX - SCNs issued more than decade back and proceedings having not been concluded within reasonable time, same are quashed - words 'where it is possible to do so' in s.11A of CEA, 1944 will not stretch period to decades: HC

SERVICE TAX

2018-TIOL-2594-CESTAT-DEL

Bacardi India Pvt Ltd Vs CST

ST - The assessee were engaged in manufacture and marketing of various brands of Indian Made Foreign Liquor - They were registered with the authorities under the category of recipient of goods transport services - On investigation, it was found that assessee entered into THREE AGREEMENTS - The first w.r.t. contract bottling arrangement with an entity in Bangalore for providing them technical assistance and marketing services in respect of goods manufactured by another entity, under the trademark of the assessee - The Revenue took a view that the amount of fee received by the assessee from the manufacturing entity is liable to tax under BAS - Secondly, agreement for providing marketing services to them and also for sale of IMFL manufactured by WMIL or procured by them from other manufacturers - The Revenue took a view that services were covered under BAS - And thirdly, for promoting the products of an entity in the markets in India for which assessee received remuneration in convertible forex - The Revenue took a view that for the period in dispute these services were covered under BAS - Duty demand was raised - The original authority confirmed the demand along with interest and penalties.

Held - Considering the definition of BAS, no tax can be imposed by inference or analogy or by trying to probe into intentions of the legislature and by considering what was the substance of the matter - If the Revenue satisfies the Court that the case falls strictly within the provisions of the law, the subject can be taxed - This principle was laid down by SC in the case of CCE Pondicherry vs. Acer India Ltd. - In the first agreement the entity is providing service to the assessee while manufacturing the product under the brand name of the assessee - In this process the entity is providing any technical know-how, the specifications, marketing strategies and promotional services which is actually providing those services to sell, the product marketed being the product of the assessee itself - The entity is merely a Contract Bottling Unit (CBU) - A similar ruling has been given in Radico Khaitan Ltd. vs. Commissioner of Service Tax, Delhi & BDA Pvt. Ltd vs CCE which has been affirmed by SC in the case of Commissioner vs BDA Pvt. Ltd - Therefore, the services rendered by the assessee were rendered to self & will not fall under BAS - For the second agreement, every intention and purpose of the agreement of assessee with the entity is to market and sale the product of affiliate - The business of this entity is centered around promotion and marketing activities - These activities fall under BAS - In addition,assessee has been receiving regular consideration from the entity for rendering such services - Therefore, the demand is legitimate - Thirdly, in the agreement the entity is situated abroad - The assessee were providing promotional and marketing activities and receiving payment in forex - Where consideration is received in convertible forex exemption is available under Notification No. 6/99 but was withdrawn later - However, in case an exemption is withdrawn and again reinstated and during the interim period, there is no change in the policy of the Government, then the later Notification reinstating the exemption is mere clarificatory in nature and would hence have retrospective effect - There can be no demand of service tax on the ground that exemption Notification No. 6/99 was withdrawn in March, 2003 when the identical exemption was reintroduced in November, 2003 - Therefore, the export of service continued to be tax free despite the withdrawal of the Notification No. 6/99 - This principle follows from the case of SC in WPIL vs CCE & followed by Mumbai Tribunal in SGS India P. Ltd. vs Commissioner, Service Tax, Mumbai - In the present case, the SCN were issued by invoking extended period of limitation but it is a settled law that the Department has to prove intention to evade payment of tax which has not been done as yet - Only one out of the three agreements is held to be BAS - Moreover, the SCN for that agreement was issued beyond one year - Hence, the demand is deleted and order challenged is set aside : CESTAT (para 2, 9, 10)

- Appeal allowed: DELHI CESTAT

Heather Constructions Contractors And Engineers Vs CC, CE & ST

ST - Assessee has paid service tax and later on realized that service tax is not leviable and thereafter filed the refund application - They had filed the refund application under Section 11B as that is the only provision which deals with refund of any amount refundable to a person - Section 11B is applicable in case of service tax matters by virtue of Section 83 of FA, 1994 - Since the amount claimed as refund by assessee can be refunded only under Section 11B, the limitation provided in said section shall also be applicable for sanction of refund - There is no other provision for refund of service tax / excise duty except Section 11B of the Act - Therefore, limitation is applicable - The Division Bench of Tribunal in case of LNG Security Services Pvt. Ltd. 2017-TIOL-1701-CESTAT-DEL has examined the applicability of Section 11B as applicable to service tax vide Section 83 of Finance Act after considering various case laws - As far as application of principle of unjust enrichment is concerned, it is a fact that the assessee has collected service tax from main contractor BSNL who was the consultant in whole project and as per Commissioner (A), the assessee has not refunded the service tax collected by them from BSNL back to BSNL and no documentary proof to that effect has also been produced before the Commissioner (A) - Principle of unjust enrichment is applicable since the assessee has collected service tax from BSNL - Therefore, impugned order upheld: CESTAT

- Appeal dismissed: BANGALORE CESTAT

2018-TIOL-2592-CESTAT-BANG

Padlock Detective And Security Agency Vs CCE, C & ST  

ST - The assessee, a proprietorship was engaged in providing security agency services during the period in dispute - Duty demand was raised for payment of service tax along with penalty - However, the proprietor of the firm died on 18/04/2005 and that too before the case was adjudicated - In addition, service tax registration was surrendered in May, 2005 by the assessee - On appeal, the Commr. (A) set aside the demand on grounds that liability of service tax will not arise in the case of the proprietary concern after the death of the proprietor.

Held - As a matter of fact, the proprietor's son surrendered service tax registration and produced a copy of death certificate before the Tribunal - Besides, appeal filed by the Department seeking restoration of penalty under Section 78 has already been dismissed under Litigation Policy - In light of the Apex Court's decision in Shabina Abraham Vs. CCE&C wherein it was held that in regards death of the sole proprietor, no recovery proceedings can be initiated - Hence, the duty demand is deleted and assessee is entitled to refund of the amount deposited while filing this appeal: CESTAT (para 2,6)

- Appeal allowed: BANGALORE CESTAT

CENTRAL EXCISE