SERVICE TAX
2018-TIOL-2607-CESTAT-MAD
CCE & ST Vs Xerox India Ltd
ST - Assessee is engaged in business of manufacture/ import and sale of photocopiers, printers, scanners, fax machines, MFDs, their parts and accessories and are providing the service of maintenance of said products - Whether the activity undertaken by assessee for various contracts for Maintenance and Repairs do qualify as Maintenance or Repair Service - Assessee is required to replace the parts and accessories at the time of repair or maintenance and the Apex Court has examined the contract of assessee and held that these contracts i.e. FSMA, SSMA, AMC etc. are Works Contracts and assessee is liable to pay VAT/Sales Tax on the material portion of said contract, as per various State VAT Act - Therefore, these are the Works Contracts and assessee is paying VAT on portion of materials supplied, therefore in the light of decision in case of Wipro GE Medical Systems Limited, assessee is liable to pay service tax only on Labour Portion -
Whether the service namely, XGS shall qualify under 'Business Support Service' or 'Business Auxiliary Service' or under Works Contract service - Assessee is engaged in the activity of printing of bill and not 'Billing' - Therefore, the said printing of bill is altogether a different activity from the billing and cannot be termed as 'Billing' - In that circumstances, services in question do not qualify under category of 'Business Auxiliary Service' - Therefore, Revenue's appeal deserves no merits.
Whether the activities undertaken by assessee under various contracts of Maintenance and Repair Service and Business Support Service are properly classifiable under Works Contract - The activities undertaken by assessee do not qualify as taxable service under Works Contract service, under Section 65 (105) (zzzza) of FA, 1994, during the period -
As the activities undertaken by assessee under various contracts in question, is in nature of Works Contract i.e. the service has been provide along with material and value of the material cannot be vivisected and therefore, prior to 01.06.2007 assessee is not liable to pay service at all - For the period post 01.06.2007, as assessee is providing services in question along with material but the same is not covered under Works Contract as per Section 65 (105) (zzzza) of FA, 1994 - Therefore, assessee is not liable to pay service tax under the category of Maintenance and Repair service/ 'Business Support Service'/'Business Auxiliary Service' - As no demand is sustainable on assessee, therefore demand of interest and penalties are also set-aside: CESTAT
- Revenue's appeal dismissed :CHENNAI CESTAT
2018-TIOL-2606-CESTAT-MAD
S Gurumurthy Vs CCE & ST
ST - The assessee is a practicing CA - He was engaged in providing services such as advice on finance, management, social or political issues, legal matters, negotiations, retainer service to various corporate entities - The Revenue took a view that service provided by assessee were taxable under "Management, Consultant" service in terms of Section 65 (65) read with Section 65 (105) (r) of FA, 1994-The adjudicating authority confirmed the demand and imposed penalty under Section 77 and 78 of the Act - Hence, the present appeal.
Held - With respect to no service tax on management, consultant service - The guidelines in Code of Ethics framed under the CA Act, 1949 categorically states that CA can practice to render entire range of "Management Consultancy and other Services" - Para 2.2.4 defines such services and therefore, assessee is liable to service tax as against its own view that no service tax is attracted - This follows from the decision of Shree Cements Ltd Vs Union Of India - With respect to services provided to two entities, which were legal in nature - The scope of tax entry for Management Consultant Service covers these activities - With respect to extended period of demand and revenue- neutrality, the statutory provisions which are directly relevant to the practicing CA were amended and therefore the services provided are taxable - Hence, the order under challenge is upheld : CESTAT (para 1, 6, 7, 8, 9)
- Appeal Dismissed :CHENNAI CESTAT
2018-TIOL-2605-CESTAT-MUM
Deogiri Infrastructure Pvt Ltd Vs CCE
ST - ROM application filed on the ground that the argument that the appellant is providing service to MHADA which is a government organization providing houses to poor people has not been considered by the Bench.
Held: In paragraph 4 of the order the fact that MHADA is a government organization has been considered - the appellant, however, is not a government organization and, therefore, the service provided by the appellant is not in capacity of non-profit or philanthropic organization - no merit in the application, hence rejected: CESTAT [para 3, 4]
- Application rejected :MUMBAI CESTAT
CENTRAL EXCISE
2018-TIOL-2604-CESTAT-CHD + Case Story
Escorts Ltd Vs CCE & ST
CX - Assessee is registered with Department for manufacture of tractors parts and are availing Cenvat credit on inputs and capital goods - SCN was issued for recovery of Cenvat credit and appropriation of Cenvat credit which had already been reversed by assessee immediately on being pointed out by audit party - The assessee is not contesting the demand, same is therefore upheld - Admittedly, assessee had sufficient balance in their Cenvat Credit account and had not utilized Cenvat credit in dispute - The SCN not does not make express allegation of suppression or wilful misstatement - In view of the decisions in case of Flextronics Technologies (India) Pvt. Ltd 2015-TIOL-676-HC-KAR-CX and M/s.Vilax Industrial Fabrics Survey 2018-TIOL-1363-HC-KAR-CX , the penalty imposed under Rule 15 of CCR, 2004 read with Section 11AC is set aside: CESTAT
- Appeal allowed :CHANDIGARH CESTAT
2018-TIOL-2603-CESTAT-MUM
Eu-Medicaments Vs CCE
CX - Appellant, engaged in manufacture of pharmaceutical formulations claimed benefit of notification 171/70 dated 21.11.1970 in respect of control samples drawn by them from regular stream of manufacture and tested in the factory - one of the conditions of the notification was that the control samples should be packed in a packing which is distinguishable from normal trade packing - lower authorities observed that the samples were being packed in the same normal packing, so benefit of notification (supra) was denied and duty demand was confirmed on the ground that the said goods were allegedly cleared from the factory - appeal in CESTAT when assessee argued that the samples tested by them were kept for a period of around 6 months after expiry of medicine and which fact is not disputed, therefore, allegations leveled by department are not sustainable.
Held: In view of the rebuttal of the factual position, distinction in the packing of the sample by itself will not make them liable to duty - impugned order set aside and appeal allowed with consequential relief: CESTAT [para 4]
- Appeal allowed : MUMBAI CESTAT
2018-TIOL-2602-CESTAT-MUM
Glenmark Pharma Vs CCE & CC
CX - CENVAT - Input Service - Rule 2(l) of CCR, 2004 - Whether Medical Insurance service in respect of employees is an Input service.
Held: Insurance of employees is mandatory under the Factories Act, therefore, it is in relation to manufacture of the final product as without employees contribution no manufacturing can take place, however, credit in respect of event management and insurance of family members is disallowed - issue is debatable, hence no malafide intention can be attributed to appellant - penalty imposed u/r 15(2) of CCR, 2004 r/w s.11AC of CEA, 1944 is set aside - Appeal partly allowed: CESTAT [para 5, 6]
- Appeal partly allowed : MUMBAI CESTAT
2018-TIOL-2601-CESTAT-MUM
Larsen and Toubro Ltd Vs CCE
CX - On the ground that none of the rules viz. 2(l), 4(5) of CCR, 2004 prescribe that the Input services on which credit is to be availed have to be used within the premises of the person manufacturing the goods, services of Fork Lift, Crane, Hydra and DG set provided at the job worker's premises were held to Input Services for appellant and credit of tax paid thereon was allowed - however, Tribunal in its order dated 28.09.2017 - 2017-TIOL-4010-CESTAT-MUM concluded that the appeal is ‘dismissed' - ROM filed by appellant.
Held: Clerical errors have occurred in the Tribunal's order dated 28.09.2017 and they have been corrected in the following manner - 'grounds of review' be read as ‘impugned order' in paragraph 3 and words ‘appeal is dismissed' be read as ‘the appeals are allowed' in para 5 - ROM applications are allowed in above terms: CESTAT [2,3]
- Applications allowed : MUMBAI CESTAT
CUSTOMS
Axiom Cordages Ltd Vs UoI
Cus - The petitioner is aggrieved and dissatisfied with what he feels is an arbitrary and illegal command issued by respondent nos. 3 and 4 to the distinct authority, namely, the Development Commissioner - The petitioner is aggrieved and dissatisfied with the communication of paper book, whereunder, it was informed that investigation against the unit product is under progress, therefore, no MEIS benefit at this stage may be granted - The petitioner has made representations in the month of November and December, 2017 - The petitioner says that a specific order should be passed after hearing the petitioner so that they can challenge it by urging that there is no mandate to withhold, suspend or cancel the benefits merely because of an investigation or a pending SCN - Second respondent is directed to consider this petition and its annexures as a representation of petitioner - Let him pass a speaking order on that, after hearing the petitioner within a period of four weeks: HC
- Writ petition disposed of : BOMBAY HIGH COURT
2018-TIOL-2600-CESTAT-MUM
P Cawasji and Company Vs CC
Cus - Case under Customs Act, 1962 was detected at the time of filing Bill of Entry i.e. on 01.03.2017 and SCN was issued on 27/09/2017 - if the Revenue was of the view that the case is of a serious nature, the Customs brokers license could have been suspended immediately, which was not done so - since the department waited for more than six months, it clearly shows that there was no immediate requirement of suspension of licence - Bombay High Court in the case of National Shipping has held that the power of suspension is an emergent power to be used in those cases where it is required that CHA licence be immediately suspended - accordingly, order suspending the Customs Broker licence is set aside - Commissioner of Customs has liberty to conduct enquiry and conclude the proceedings under CBLR, 2013 - appeal is allowed in above terms - Stay petition disposed of: CESTAT [para 4]
- Appeal allowed : MUMBAI CESTAT
|
