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SERVICE TAX
2018-TIOL-2625-CESTAT-ALL Ashirwad Constructions Company Vs CCE & ST
ST - An order was passed by Original Adjudicating Authority on 30.11.2010 which was admittedly received by assessee on 01.12.2010 - After receipt of O-I-O, the assessee filed a ROM application before Adjudicating Authority in terms of Section 74 of FA, 1994 - The said Section provides for filing of such rectification applications within the period of two years and admittedly the ROM was filed by assessee within the said period i.e. 16.08.2011 - The same was rejected by the authority on 15.02.2012, which order was challenged before Commissioner (A) and same stands rejected by him as barred by limitation vide present impugned order - The issue as to whether the date of original order has to be taken as relevant date for purpose of computing the limitation or the date on which ROM Order was passed, has to be considered as the relevant date - Issue stands considered by Tribunal in case of Sree Lotus Exports 2011-TIOL-1248-CESTAT-MAD and in case of United Corporation, it stands held that the time period of filing appeal has to be reckoned from date of rejection of ROM Application - If that be so the relevant date would be 15.02.2012 and the appeal filed on 19.07.2012 would be within the powers of Commissioner (A), for condoning the delay if any - As such impugned order set aside and matter remanded to Commissioner (A) to decide the limitation aspect afresh: CESTAT
- Matter remanded: ALLAHABAD CESTAT
2018-TIOL-2624-CESTAT-MAD
Star Vision Cable Network Vs CCE & ST
ST - Assessee, a cable operator received the signals from a multisystem operator M/s. SCV - Substantial portion of amount collected from the customers were paid to multisystem operator and assessee retained a small portion thereof - Assessee filed ST-3 returns indicating the amount retained by them as taxable value - On scrutiny of ST-3 returns filed, it emerged that the amounts declared in ST-3 returns were much lower than that paid to the link operator and the subscription collected - The assessee was brought into service tax net by FA, 2002 w.e.f 16.08.2002 by introduction of Section 65 (22) r/w Section 65 (105)(zs) of FA, 1994 - In absence of any specific evidence for the department, collection amount as voluntarily disclosed by assessee should have been accepted - There is no allegation of suppression in SCN - Moreover, the assessee contest only the penalties imposed on them - In view of decision in case of Trans Yamuna Communication Ltd., the penalties imposed on assessee under Section 77, and 78 of Finance Act are set aside without disturbing the demand and interest confirmed in impugned order: CESTAT
- Appeal partly allowed: CHENNAI CESTAT
CENTRAL EXCISE
2018-TIOL-2628-CESTAT-KOL
Bata India Ltd Vs CCE
CX - The assessee was engaged in the manufacture of footwear and parts of footwear - They were availing benefit of exemption from payment of the whole of the duty of excise leviable thereon under Notification No.49/86-CE - In continuation to the 1967 notification, a series of notifications were issued in respect of exemption of this item - The Reveneu took a view that no benefit of exemption was available to the assessee for manufacture of parts of footwear for the period in dispute - Duty demand was raised - On appeal, the Commr (A) rejected the appeal of the assessee, thus the present appeal.
Held - On reading relevant portions of the notification and subsequent notifications, it was found that the parts of footwear used in the factory of production in the manufacture of footwear falling under sub-heading No. 6401.11 is exempted from payment of Excise duty, except for the period in dispute - As a matter of fact the period in dispute is only four days - Moreover, the subsequent Notifications (i.e. Notification No. 119/87-CE ) would be treated as clarificatory Notifications and not a new Notification granting benefit for the first time - This ratio has been laid down by the SC in the case of WPIL Ltd. v. Commissioner of Cetral Excise & Ralson (India) Ltd. v. Commissioner of C.Ex wherein a similar situation came to light - Hence, the demand is set aside: CESTAT (para 2, 7, 8, 9, 10)
- Appeal Allowed: KOLKATA CESTAT
2018-TIOL-2627-CESTAT-KOL
CCE & ST Vs Dhanbad Fuels Ltd
CX - While importing coal the assessee paid CVD @2% instead of normal rate of 6% - It claimed refund claiming benefit under Notification No.12/2012-Cus - The Revenue issued SCN under the impression that assessee wrongly availed benefit of the notification - On appeal, it was held that assessee was eligible for claim of refund and adjudication order was set aside - Hence, the present appeal by Revenue.
Held - After it was pointed out by the Department, the assessee reversed the CVD credit in excess and filed for refund - Furthermore, imported coal is an input, however, Condition No.25 of the Notification No.12/2012-Cus restricts non-availment of any credit of input and input services, if the final products made therefrom choose to pay duty @ 1% vide Sl.No.67 or Sl No.128 of the Notification - Moreover, it is important to note here that the amount involved in this matter is below the monetary limit of Rs 10.00 lacs in terms of Board's Instruction F.No.390/Misc./163/2010-JC - Therefore, the present case falls under exclusion clause 3(c) of the National Litigation Policy which has been deleted later - Hence, the appeal has become infractuous : CESTAT (para 1, 3, 4)
- Appeal Dismissed: KOLKATA CESTAT
2018-TIOL-2626-CESTAT-MUM
Twilight Litaka Pharma Ltd Vs CCE
CX - Valuation - Section 4 of the CEA, 1944 - Physician Samples - Appellants are not distributing the ‘physician samples' free of cost but are manufacturing and selling the same to pharmaceutical companies - in these circumstances, when the transaction value in terms of section 4(1)(a) is available there is no reason to go for any artificial value - impugned order set aside and appeal allowed: CESTAT [para 4]
- Appeal allowed: MUMBAI CESTAT
CUSTOMS
NOTIFICATION
dgft_trade_notice_26_2018
Status of applications for Import /Non-SCOMET Export/ SCOMET Export Licenses CASE LAW 2018-TIOL-2623-CESTAT-AHM
Adani Winmr Ltd Vs CC
Cus - Assessee imported crude palm oil, degummed soya bean oil, sun flower oil and cotton seed oil in bulk for which they filed bills of entry - The assessee paid the duty in excess as compared to what they were required to pay based on difference of quantity between ullage quantity and the out-turn (shore tank) reports - They during the provisional assessment filed 13 refund claims for the excess duty paid - Initially when the refund claim was sanctioned by adjudicating authority, the assessment was provisional - Therefore, the refund itself at that stage was premature - Moreover, in department's appeal, Commissioner (A) set aside the refund sanctioning order and directed the adjudicating authority to provide final assessment order, against which assessee filed the appeal before Tribunal wherein Tribunal - has noticed the Commissioner (A's) order saying that the assessee have already been given an opportunity to challenge the assessment order and it was also held that if the final assessment order was not served, the same may be served now and on receipt of said order, it shall be challenged by assessee before the appropriate forum, thereafter, refund claim in dispute shall be decided - With this observation of Tribunal, the assessee was under obligation to file the appeal challenging assessment order in order to make themselves eligible for refund, however it is undisputed that the assessee have not challenged the final assessment order, accordingly, the direction of Tribunal was not complied with - Since the Tribunal's order dated 04.02.2009 had attained finality, there was no option for assessee except challenging the final assessment order, but the assessee has failed to file any appeal - Without filing any such appeal, they are not entitled for the refund - Accordingly, the impugned order is upheld: CESTAT
- Appeal dismissed: AHMEDABAD CESTAT
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By Naresh Minocha 
