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SERVICE TAX
2018-TIOL-2622-CESTAT-DEL Airport Authority Of India Vs CCE
ST - The assessee was providing Airport services along with other services - On special audit of the accounts of the assessee, it was found that assessee failed to pay service tax on various categories of service - A SCN was issued based on the audit report - The assessee accepted the shortfall and paid differential duty with interest for the period in dispute - The adjudicating authority confirmed the tax liability on admitted amount and appropriated the service tax with interest paid by the assessee - It did not impose any penalty as proposed in SCN - Hence, the present appeal by Revenue on the ground of penalties - Cross appeal has been filed by the assessee against the levy of service tax
Held - The adjudicating authority has refrained from imposing penalty since the entire Service Tax liability along with interest has already been paid even before the issue of Show Cause Notice - The Tribunal in its earlier order Final Order No. 52501/2017 dated 20.03.2017 in favor of the assessee held that no duty is warranted is assessee has made payment before the issuance of SCN - Hence, the appeal filed by the Revenue is dismissed - With respect to demand under the category of "Business Support Services" on the commission received by the assessee on top of electricity charges recovered from the concessionaire - Although, there is no documentary evidence that shows that no service charge has been recovered during the period in dispute, an affidavit has been filed by the assessee stating that no such service charges have been recovered - Therefore, the case is remanded for de novo adjudication, to consider the claim of the assessee that no such service charge has been recovered, if supporting documentary evidence is produced - Hence, the portion of the order challenged relating to this aspect is set aside: CESTAT (para 2, 6, 10,11, 12)
- Matter Remanded: DELHI CESTAT
2018-TIOL-2621-CESTAT-CHD
Evalueserve Com Pvt Ltd Vs CST
ST - Assessee is in appeal against impugned order wherein the refund claim for period April 2015 to September, 2015 filed under Rule 5 of CCR, 2004 r/w Notfn 27/2012 has been rejected - The assessee themselves engaged in providing of services to their client and facilitating their clients for providing those services by third party - In that circumstance, it is to be seen whether the provider of services is covered as intermediary or not - In impugned order, Commissioner (A) has fell in error holding that the assessee provided services on behalf of Evalueserve Ltd., Bermuda - In fact, the assessee has provided the services to customers of their Client and having no direct nexus with the customers of their client has been provided by assessee to their client and nowhere has facilitated or arranged for services provided to their client by third party - Furthermore, assessee has themselves provided the services to their client as main service provider principal to principal basis, therefore, the activity undertaken by assessee do not qualify intermediary as defined in Rule 2(f) of Place of Provision of Services Rules, 2012 - Similar view was taken by Advance Rulings Authority of India in case of Universal Services India Pvt.Ltd 2016-TIOL-09-ARA-ST and Godaddy India Web Services Pvt.Ltd. 2016-TIOL-08-ARA-ST - Same Commissioner (A) who has adjudicated these matters has also adjudicated the matter in case of M/s.LBF Travel India Pvt.Ltd on an identical issue and took contrary view in assessee's case - Assessee is not intermediary in terms of Rule 2(f) of Place of Provision of Service Rules, 2012 - Therefore, assessee is not liable to pay service tax being provider of service in India in terms of Rule 9 of Place of Provision of Service Rules, 2012 - Therefore, demands against assessee is not sustainable - Consequently, refund claim filed by assessee is admissible: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
2018-TIOL-2620-CESTAT-MAD
Resurgent Corporate Support Services Pvt Ltd Vs CCE & ST
ST - The assessee is registered in the service tax under BAS, Security Agency Service and Rent a cab service - On audit, it was found that the assessee was providing basic infrastructure such as computers, dot matrix printers to their corporate clients - However, assessee failed to discharge service tax liability on them - Duty demand was raised - On appeal, the Commr.(A) set aside the penalties imposed u/s 76 and 77 but upheld the demand and penalty imposed u/s 78
Held - the assessee is discharging VAT on the hire and rental charges for the period in dispute - However, the authorities did not consider this plea - For the next AY, demand of service tax on the very same activity has been dropped by the adjudicating authority after verification of the VAT documents furnished by the assessee - Therefore, it is held that as VAT and service tax are mutually exclusive - The demand is quashed - Hence, the order challenged is set aside : CESTAT (para 1, 5)
- Appeals Allowed: CHENNAI CESTAT
CENTRAL EXCISE
2018-TIOL-2619-CESTAT-MUM
Tytan Organics Pvt Ltd Vs CCE
CX - Appellant purchased imported Raw/Crude Naphthalene from trader and availed credit of CVD and SAD - said input was exported by debiting CVD amount but the amount of additional duty of excise was not debited - against exports, the appellant claimed rebated of CVD paid and which has been sanctioned, however, Revenue issued SCN demanding SAD in respect of such exported goods - original authority dropped demand on ground of revenue neutrality but Commissioner(A) allowed Revenue appeal by setting aside order-in-original - Assessee in appeal before CESTAT. Held: Once the goods have been exported, no duty demand can be made - moreover, appellant have been granted rebated in respect of CVD paid by them, therefore, even if appellant paid the duty at the time of removal, the same was refundable to them along with the CVD, therefore, it is a clear case of Revenue neutrality - impugned order is set aside and appeal is allowed: CESTAT [para 4]
- Appeal allowed: MUMBAI CESTAT
2018-TIOL-2618-CESTAT-MUM
Nicholas Piramal India Ltd Vs CCE
CX - Valuation - Section 4 of the CEA, 1944 - Period September 2000 to May 2002 - Physician Samples cleared by resorting to valuation on cost construction basis as per CBEC Circular 643/34/2002-CX dt. 01.07.2002 - demands were raised and confirmed on the ground that the value of the physician sample has to be worked out under rule 4 of the Valuation Rules, 2000 based on comparable price of the trade pack as provided in terms of Board Circular 813/10/2005-CX dated 25.04.2005 - appeal to CESTAT.
Held: Larger Bench of Tribunal in the case of Bezel Pharma Pvt. Ltd. - 2008-TIOL-89-CESTAT-MUM-LB (upheld by apex court) has held that Board Circular dated 01.07.2002 has to be applied retrospectively w.e.f 01.07.2000, therefore, valuation undertaken by the appellant cannot be questioned - impugned order set aside and appeal allowed with consequential relief: CESTAT [para 3, 4]
- Appeal allowed: MUMBAI CESTAT
2018-TIOL-2617-CESTAT-MUM
CCE Vs Bosch Chasis Systems Ltd
CX - CENVAT - In respect of various inputs on which credit was taken, the assessee had in the year 2011 and 2012 made provision for writing off of inventory to the extent of Rs.1,17,90,102/- and Rs.2,53,56,036/- respectively - corresponding proportionate reversal of CENVAT credit taken on these inputs was made good upon being pointed out by Audit, on 1st August 2013 and 22 nd September 2014 - SCN was issued on 21 March 2015 and in adjudication demand of Rs.45,91,263/- was confirmed u/r 14 of CCR along with interest and penalty - Commissioner(A) held that assessee having reversed the CENVAT credit, issue of show cause notice itself was redundant; penalty and interest set aside - Revenue in appeal before CESTAT.
Held: On perusal of rule 3(5B) of CCR, it is unambiguously clear that the reversal of CENVAT credit is mandatory whenever the value of inputs is written off or provisions are made for same in the books of accounts - In the instant dispute, reversal was made by appellant, hence there is no call to invoke rule 14 of CCR, 2004 - consequently, there is no scope for invoking rule 15 of CCR for imposing any penalty - impugned order sustained and Revenue appeal dismissed: CESTAT [para 8]
- Appeal dismissed: MUMBAI CESTAT
CUSTOMS
2018-TIOL-1708-HC-KAR-CUS + Case Story
Kasturba Medical College Vs UoI
Cus Notfn. 64/88-Cus - Exemption from tax or customs duty is a burden on the public Ex-chequer or public revenue and to that extent, the public loses its money in favour of the beneficiary institutions - it is all the more necessary that a strict, meticulous and complete compliance of conditions with the relevant and cogent evidence is proved beyond doubt before the concerned Authorities - A casual, cavalier or compliance by a paper formality is not enough to allow such Institutions to avail exemption under the said exemption notifications - Very purpose of such exemption will be defeated if the conditions are allowed to breached with impunity and then glossed over by a paper exercise in the name of submitting of a so-called reply furnished by the petitioner in the present case, which does not inspire any confidence - There is no breach of principles of natural justice, as the petitioners and the whole lot of them were provided adequate opportunity to establish their claims, but they not only failed to avail such opportunity before the Authority concerned, but the Authority concerned noted that despite personal presence of 22 representatives, none of them have produced any documentary proof - petitioner- Institutions took their exemption from customs duty for granted, without satisfying the conditions therefor - petitioners do not deserve any liberal or sympathetic view in the matter - Writ Petitions dismissed: High Court [14, 16, 18, 19, 21, 22, 23]
- Petitions dismissed
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KARNATAKA
HIGH COURT
2018-TIOL-2616-CESTAT-MAD Biocon Ltd Vs CC
Cus - The present restoration applications have been filed to restore the appeals which were dismissed for non-prosecution - In the present case, the appeal was earlier posted for hearing on 22.08.2017 - On this day there was a national holiday and so they requested for adjournment - The asssessee produced a copy of a letter requesting for adjournment dated 21.08.2017 - However, there was no report along with the adjournment or fax letter to show that the fax was delivered to the Registry of CESTAT - On 03.10.2017, there was neither any representation nor request for adjournment on the part of the assessee -Thus, the appeal was dismissed
Held - Even though no one appeared after seeking adjournment, it is decided to give the assessee a chance to contest the case - The ROA is allowed on condition that assessee pay a cost of Rs 15,000/- to the Revenue: CESTAT (para 2, 5)
- Appeal Allowed: CHENNAI CESTAT
2018-TIOL-2615-CESTAT-KOL
Numaligarh Refineries Ltd Vs CC
Cus - The assessee-company, engaged in the manufacture of refined petroleum products - For setting up a new refinery it filed for registration of contract for project import under heading 9801.00 for import of material for motor spirit projects as required by Regulation 5 of the Project Imports Regulations, 1986 - It filed claim under Exemption Notification No.21/2002-Cus dated 01-03-2002 as amended by Notification No.07/2004-Cus and claimed refund of customs duty paid in excess - However, Revenue took a view that the appellant imported first consignment before filing the application for registration & rejected the claim of the assessee - Hence, the present appeal
Held - While importing machinery and spare parts the order of clearance was passed only after submission of application for registration - The assessee duly obtained the Essentiality Certificate for availing project rate of customs duty as applicable for setting up a new industrial unit as per the norms - Therefore, benefit of exemption under the notification is available to the assessee-company - Furthermore, following the decisions of Commr. of Cus. (Imports), Mumbai v. Tullow India Operations Ltd. &) O.N.G.C. Ltd. v. Commissioner of Customs, Mumbai, wherein it is held that once the Essentiality Certificate has been issued, the conditions precedent for obtaining exemption in terms of the exemption notification stands fully satisfied - Hence, the order challenged is set aside: CESTAT (Para 2, 6, 7, 9)
- Appeal Allowed: KOLKATA CESTAT
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