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SERVICE TAX
2018-TIOL-2712-CESTAT-MUM + Case Story
CCE Vs Deluxe Recycling (India) Pvt Ltd
CX - Since Revenue appeal against order of Commissioner(A) was only challenging the admissibility of CENVAT credit and not in the matter of setting aside of penalty imposed on Director, restoration of the o-in-o by Tribunal is restricted to the assessee company only - Order of Tribunal should be read in the context and in relation to the appeal filed by the Revenue - Misc. Application (ROM) disposed of: CESTAT [para 4]
- Application disposed of: MUMBAI CESTAT
2018-TIOL-2711-CESTAT-HYD
Alchemist Hr Services Pvt Ltd Vs CCE, C & ST
ST - The assessee has been charging an amount as placement fees from willing students enrolled by ICFAI - It is this amount of fees the Revenue wants to tax under category of "manpower recruitment and supply agency services" - Undoubtedly the activity carried out by assessee is a service of placement to the student, which indicates that assessee is helping the students of ICFAI to get a job - Placement is an activity of finding the job for a person who is on the lookout of employment and is service rendered to prospective employee which will not, get covered under the definition of "manpower recruitment and supply agency services" - Similar issue came up before the Bench in case of Sydenham Institute of Management 2016-TIOL-1189-CESTAT-MUM and it is noticed that following the decision of Tribunal in case of Motilal Nehru National Institute of Technology 2015-TIOL-2975-CESTAT-ALL , the Bench held that amount collected from the students as placement fees is not taxable under 'manpower recruitment and supply agency services' - It can be seen that the view expressed by Bench in case of Motilal Nehru National Institute of Technology and Sydenham Institute of Management are directly on the point, in dispute in this case - Accordingly, following the ratio laid down by Tribunal on an identical issue, impugned order set aside and appeal allowed on merits itself: CESTAT
- Appeal allowed: HYDERABAD CESTAT
2018-TIOL-2710-CESTAT-MAD
Concord Express Logistics India Pvt Ltd Vs CST
ST - The assessee is engaged in providing logistics services - On audit, it was noticed that it provided services as a co-loader but did not discharge service tax on the same - Further, duty was unpaid in respect of service charges to Foreign Service providers who deliver assessee's documents or parcels in foreign countries - The Adjudicating Authority confirmed the demand along with interest and penalty - Hence, the present appeal
HELD - In respect of demand raised as a co-loader, as per the 1996 Circular, it is categorically clarified by the Department that a co-loader is not chargeable to service tax - This issue was settled in favour of the assessee in the case of United Business Xpress India Pvt Ltd vs. CST, Delh i - With regard to demand for providing parcels in foreign countries, the role of the overseas entity commences and ends beyond the border of India -Therefore, Rule 3 of Taxation of Service Rules has no application and demand is not legitimate - This ratio has been laid down in the case of First Flight Couriers Ltd vs. CST, Mumbai - Hence, the order under challenge is set aside: CESTAT (para 1, 5, 6)
- Appeal allowed: CHENNAI CESTAT
2018-TIOL-2707-CESTAT-MAD
ETA Travel Agency Pvt Ltd Vs CST
ST - The assessee is engaged in the business of providing travel assistance to its customers as an agent - The Revenue took a view that activity undertaken by the assessee falls under club or association service - The Adjudicating Authority confirmed the demand - Further, credit was denied on rent-a-cab service, health insurance services and air travel services on the ground that the same cannot be considered cenvatable input services - Hence, the present appeal.
HELD - Following the ratio laid down by the Gujarat HC in the case of M/s. Sports Club of Gujartat Ltd. Vs Union of India wherein the ratio laid down in the case of M/s. Ranchi Club Ltd., Vs Chief Commissioner of Central Excise & Service Tax, Ranchi Zone by Jharkhand HC is followed - The club or association service is held to be ultra-vires - Therefore, the demand in this respect is set aside - With respect to other services the issue is no longer res integra following the decisions of M/s Sanwar Foundries vs. CCE, M/s Fiem Industries Ltd vs. CCE and others - Hence, the order under challenge is set aside : CESTAT (para 1, 2, 4)
- Appeals allowed: CHENNAI CESTAT
CENTRAL EXCISE
2018-TIOL-1798-HC-UKHAND-CX
CCE & ST Vs Rohit Surfactants Pvt Ltd
CX - The issue, which is fundamental, is whether Sulphuric Acid, which emerges during the manufacture of final product is entitled to exemption under the Notifications issued (50 of 2003 and 89 of 1995) - Having regard to the judgment rendered in M/s Tirupati LPG Industries Ltd 2017-TIOL-1603-HC-UKHAND-CX , this appeal may not lie before this Court - Appeal is dismissed as not maintainable: HC
Appeal dismissed: UTTARAKHAND HIGH COURT
2018-TIOL-2709-CESTAT-KOL
IOCL Vs CCE
CX - The assessee is engaged in manufacture and sale of petroleum products - The petroleum products are manufactured in refineries of assessee situated in various parts of country - The present appeal relates to the Haldia refinery - In the course of refining crude oil, one of the petroleum products, Bitumen comes into existence - During the period April, 2000 to March, 2011, Bitumen in bulk packs was transferred under bond and thereafter upon payment of duty to the assessee's unit at Uluberia - For the purpose of packing in drums, owing to space constraint in Haldia refinery, permission for such transfer was granted by jurisdictional Central Excise authorities - Bitumen was mixed with duty paid Superior Kerosene Oil (SKO) and thereafter packed in duty paid empty barrels - The dispute is regarding availment of Cenvat Credit on the duty paid SKO and the barrels - The issue involved in this case is whether assessee have availed Cenvat Credit correctly or otherwise when the activity undertaken by them on the inputs according to Revenue does not amount to manufacture - In view of authoritative judicial pronouncements on the issue in cases of Vishal Precision Steel Tubes & Strips Pvt.Ltd. 2017-TIOL-613-HC-KAR-CX , impugned order is unsustainable and same is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2018-TIOL-2708-CESTAT-MUM
CCE Vs Vidyut Metallics Pvt Ltd
CX - Appellants are engaged in manufacture of shaving razor blades - heavy floods on 26.07.2005 destroyed the capital goods on which CENVAT credit was taken - Appellant received compensation from Insurance company upon which they reversed credit taken - department demanded interest on the amount reversed but lower appellate authority set aside this order, therefore, Revenue in appeal before CESTAT.
Held: It appears that on an identical issue, Tribunal vide order dated 21.04.2017 disposed of the matter by holding that interest is not leviable on the disputed amount - moreso, the capital goods were not removed as such and the same were put to use for the intended purpose, therefore, no reversal was required in view of the decision in Indchem Electronics - 2002-TIOL-181-CESTAT-MAD - no reason to interfere with the order of the lower authority -Revenue appeal dismissed: CESTAT [para 4, 5, 7]
- Appeal dismissed: MUMBAI CESTAT
CUSTOMS
2018-TIOL-1797-HC-KOL-CUS
Modern Agency Vs Chief Commissioner of Customs
Cus - A notice was issued under Section 124 of Customs Act, 1962 against the petitioners alleging that the petitioners are guilty of smuggling of cigarette of foreign origin into India - The prosecution was relying upon the statement of one Ravinder Kapoor in proceedings - The petitioners wanted to cross-examine such person and wanted to cross-examine one Tapan Ghosh, who is one of the prosecution witnesses - The adjudicating authority does not deal with the request for cross-examination - An adjournment was granted by adjudicating authority on April 6, 2018 - However, the same by itself does not allow an inference that the petitioners are employing dilatory tactics when the petitioners made a request for cross-examination of prosecution witnesses - In an adversarial litigation, where, the prosecution adduces a natural person as its witness, the principles of natural justice require that, such natural person is allowed to be cross-examined by opponent, that is, the delinquent - Impugned order stands vitiated by reason of breach of principles of natural justice, same is therefore, quashed - It is expected that, the adjudicating authority will keep the request allowing the petitioners to cross-examine the two witnesses noted in the writing dated April 25, 2018, in accordance with law: HC
- Writ petition disposed of: CALCUTTA HIGH COURT
2018-TIOL-2706-CESTAT-MUM
Reliance Industries Ltd Vs CC
Cus - Appellant has imported ‘Commercial Propane' and classified the goods under CTH 2711 1200 claiming exemption from payment of CVD under 4/2006-CE - Revenue took the view that the exemption is available only to the goods “Liquefied Petroleum Gases” which is a mixture of hydrocarbon gases i.e. propane, propylene, butane, butylenes and isobutene.
Held: Issue is no longer res integra - Identical issue has been decided by Tribunal in the case of Aegis Logistics Ltd. - 2014-TIOL-2994-CESTAT-MUM wherein the appellant was one of the respondents and the benefit of the exemption was extended - following the same, impugned order set aside and appeal allowed: CESTAT [para 4]
- Appeal allowed; MUMBAI CESTAT
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