SERVICE TAX
2018-TIOL-2609-CESTAT-MAD
CCE & ST Vs Udhaya Semiconductors Ltd
ST - The assessee is a 100% EOU undertaking the process of lamination of solar cells - It received Photovoltaic Cells from their principal on which they would carry out job work, resulting in Photovoltaic Solar Laminate - It availed the exemption under Notification No.24/2003-CE, 6/2002-CE and 6/2006-CE - Duty demand was raised along with interest & penalty - The adjudicating authorities confirmed the demand - However, the Commr.(A) held that the activity of "lamination" by the assessee on job work basis to their client amounts to manufacture and would not attract levy of service tax under BAS - Hence, the Revenue is in appeal.
Held - Solar Laminate emerges when the Photovoltaic Cells is sent to the principal for job work - The activity lamination is a series of activities to manufacture Solar PV Laminate - This process amounts to manufacture within the meaning of Section 2(f) of the CEA, 1944- Therefore, no service tax is liable under BAS - Hence, the order challenged is upheld : CESTAT (para 1, 4, 5, 6, 7, 8)
- Revenue's appeal dismissed :CHENNAI CESTAT
2018-TIOL-2608-CESTAT-DEL
Mateshwari Indrani Contractors Pvt Ltd Vs CCE & ST
ST - The assessee during period under dispute have acted as a contractor for NHAI/DMG/CTD and has participated in the activity of collecting statutory dues - As per the procedure adopted by statutory agencies, a successful bidder of tender process is required to make up front payment of agreed amount so as to acquire the right to collect such statutory levies - The actual collection could be less or more than the amount paid to the authorities in lump sum - Considering the assessee to be a 'Commission Agent', Revenue was of the view that Service Tax is liable to be paid on such commission under category of BAS - The Commissioner has taken the view that assessee will be covered within the definition since they are providing the service of collection of tax even if it may not be a taxable service - He is of the view that such services have been provided to Government agencies - But before jumping to the conclusion that assessee falls within said category, it is necessary to examine whether the recipient of service is engaged in business or commerce so as to be covered by BAS - Such a view has been expressed by Tribunal in case of Sukhmani Society for Citizen Services 2016-TIOL-2604 -CESTAT-ALL - As held by Tribunal, Service Tax under category of BAS would become liable only if service is rendered in relation to business of recipient - Assessee, as a contractor, has engaged in collecting statutory levies on behalf of the Government department (CTD)/ statutory authority (NHAI) neither of whom are engaged in business - Secondly, levy of Service Tax cannot be sustained on the Commission retained by assessee - In respect of the activity of toll collection, it is also fairly well settled that no Service Tax can be levied on such an activity as held by Tribunal in case of Intertoll ICS 2011-TIOL-1005-CESTAT-DEL - On the activity of collection of commercial taxes for CTD, assessee will also be entitled to benefit to exemption under Notfn 13/2004-ST which specifically exempts the services provided by any person to Government of State in relation to collection of any duties or taxes levied by Government from the whole of Service Tax leviable thereon: CESTAT
- Appeal allowed :DELHI CESTAT
CENTRAL EXCISE
CCE Vs Thermax Ltd
CX - CENVAT - Rule 2(l) of CCR, 2004 - Disallowance of CENVAT credit on ‘Outdoor Catering Service' and ‘Health Insurance Service' set aside by Commissioner(A) - Revenue in appeal before CESTAT.
Held: Impugned order has rendered the finding that no evidence has been placed on record to prove that these services were intended for the personal consumption of the employees - therefore, the submission that the Outdoor catering and Insurance are in the nature of expenses incurred for personal consumption does not find sustenance - appeal of Revenue is without merit, hence dismissed: CESTAT [para 3]
:MUMBAI CESTAT
2018-TIOL-2610-CESTAT-MUM
Vista Packaging Pvt Ltd Vs CC
CX -Appellant is engaged in manufacturing of Printed film in roll form and for which purpose they procured duty paid plastic granules out of which plastic film was made and thereafter laminated - same cleared on payment of CE duty by utilizing CENVAT credit availed on granules - Department has denied CENVAT credit, therefore appeal before CESTAT.
Held: Identical matter had come up before the jurisdictional High Court in the case of Ajinkya Enterprises - 2012-TIOL-578-HC-MUM-CX wherein it is held that once the duty on the final products has been accepted by the department, CENVAT credit availed need not be reversed even if the activity does not amount to manufacture - following the same, impugned order set aside and appeal allowed: CESTAT [para 4, 5]
- Appeal allowed :MUMBAI CESTAT
Commissioner of Central Goods and Service Tax Vs Bhoorathanam Construction Co (P) Ltd
CX - The appellant has challenged the order of Tribunal whereby the Tribunal has set aside the demand determined on the basis of non-fulfillment of conditions of exemption Notfn 47/2002-CE & Notfn 6/2006-CE for the clearance of finished goods i.e. MS Specials to the water supply projects without payment of Central Excise Duty - Appellants have not produced any evidences contrary to the facts mentioned in impugned order except that MS Pipes and MS Specials are one and same things - Therefore, there is no point to interfere in impugned order - Moreover, the appellants during course of personal hearing stated that the certificates in respect of clearances of MS Specials shall be provided within one month but after expiry of more than 3 month, the same has not been submitted - Further, the Pipes are cleared in running length whereas the MS Specials were cleared in Nos. and Kgs which clearly indicated that both the products are different and their uses are also different and known in the market with different names and characteristics - The production is the same, manufacturing and the process is the same and excise duty is liable on the manufacturing, merely because in certificate there is no mention of MS Special, the taxing statute will not be different - In view thereof, the view taken by Tribunal is just and proper and no interference is required: HC
- Appeal dismissed : RAJASTHAN HIGH COURT
CUSTOMS
UoI Vs Beekay Hygiene Products
Cus - Appeal filed by Revenue assailing the order passed by Tribunal allowing the appeal preferred by respondent Company to set aside the duty demand, confiscation of capital goods and penalty - Court has not framed any substantial question of law as to the illegality of impugned order setting aside penalty imposed on respondent company - In the absence of any challenge to said part of the order, an independent challenge only to the order setting aside confiscation of capital goods and imposition of penalty may not be open to challenge - The SCN issued against respondent did not refer to any particular nature of default as envisaged in various sub-clause of Section 111 for which the respondent would be held liable for confiscation of capital goods - Appellant has not assailed the validity of order passed by DGFT allowing the respondent company's application for de-bonding and has accepted the said order by allowing respondent to pay 10% of CIF value as penalty for de-bonding and opt out of 100% EOU prematurely - Similarly, Revenue has not assailed the order of Development Commissioner on 31.12.2002 holding that the respondent has achieved the value addition - It always remained open for authority to refuse debonding and at the same time initiate action for payment of duty which the respondent was exempted at the time of import of capital goods for EOU Unit - The resultant effect of allowing de-bonding and holding that value addition has been achieved by respondent is that there was no willful attempt to evade duty by importing duty free goods for EOU without ever intending to operate and manufacture the goods in EOU Unit - Once the element of intention to evade duty is absent and as a matter of fact there is no such allegation in SCN, demand of duty, confiscation of capital goods and imposition of penalty ought not to have been fastened on the respondent - The order of confiscation of capital goods and imposition of penalty has rightly been set aside by Tribunal: HC
- Appeal dismissed : CHHATTISGARH HIGH COURT
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