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SERVICE TAX
2018-TIOL-2721-CESTAT-DEL
Larsen and Toubro Ltd Vs CCE
ST - The assessee had entered into contractual arrangements with M/s NTPC in connection with setting-up of a Super Thermal Power Projects (STPP) at Sipat in Bilaspur - The dispute is with reference to service tax liability of assessee on reverse-charge basis on "transport of goods by road services" - Matter travelled upo the High court - The Chhatisgarh High Court framed the question only with reference to the act of Tribunal in not considering the issue of territorial jurisdiction of Commissioner, Raipur - The said question was answered in favour of assessee and the Tribunal was directed to examine the objection on territorial jurisdiction raised by assessee - Even for central registration, there can be cases where in respect of certain services, such central registration can be obtained and in respect of certain other taxable services, the liability can be on the individual premise from where such services were provided/received - One more important aspect is that the present dispute is with reference to the tax liability of assessee on reverse-charge basis for goods transport service - As already noted, the assessee did not register themselves under the category of goods transport service, even in Hyderabad - The case laws relied upon by assessee do not have any relevance to decide the dispute at hand - Accordingly, the proceedings initiated by Commissioner at Ranchi cannot be held to be without jurisdiction.
Though assessee contested the original order on merits, the Tribunal in final order dated 02.03.2017 examined the said contentions and dismissed the appeal - As pointed-out by Revenue, the High Court framed the question only with reference to non-consideration of jurisdictional issue by Tribunal - Now, the issue of jurisdiction is considered and decided - On merit, Tribunal have closely considered the merits of case - In case GTA service, the levy of service tax had been shifted from the service provider to the service recipient who is liable to pay freight as cosigner or consignee of the goods, this applies to specified categories of service recipient - The assessee paid identified amount of freight for the transportation of goods - M/s Lee actually paid service freight charges in terms of the sub-contract executed by them - M/s Essemm dealt with the transportation of goods - Freight paid to the transporter is by M/s Lee as agent of assessee, who reimbursed the same - The assessee is one of the categories specified for tax liability on reverse-charge basis - The freight is borne by assessee - Though the arrangement is such that M/s NTPC imported the goods as per the contract, the assessee is in-charge of reaching the goods at site office and, thereafter, for further work - As such, assessee's liability to pay service tax is correctly held by the original authority: CESTAT
- Appeal dismissed : DELHI CESTAT
2018-TIOL-2720-CESTAT-ALL
Jindal Steel And Power Ltd Vs CC & CE
ST - Assessee submitted an application for refund of Service Tax claiming that the said amount was paid as service tax by M/s Dynacon Projects Private Limited under the service of works contract service and that said amount was reimbursed or borne by them through various invoices as recipient of said service and that the work that was assigned to M/s Dynacon Projects Private Limited was of construction of residential building and that the said residential buildings were for personal use of assessee and that the said service tax borne by assessee was credited to the exchequer by M/s Dynacon Projects Private Limited and that construction of residential complex for personal use does not attract service tax and therefore, they were entitled for said refund - The said refund claim was rejected - The applications were without any documents to establish that the amount claimed by assessee for refund was actually credited to exchequer - CBEC has issued supplementary instructions under Chapter IX of supplementary instructions issued in respect of Refund - The Original and Appellate Authority are bound by the said instructions which also includes that refund claims received without supporting documents should be rejected - No infirmity found in impugned orders: CESTAT
- Appeals dismissed : ALLAHABAD CESTAT
2018-TIOL-2719-CESTAT-MAD
Sify Technologies Ltd Vs Commissioner of GST & Central Excise
ST - Assessee is providing various taxable services such as internet cafe service, leased circuit service and franchise service - Scrutiny of ST-3 returns and records maintained by assessee indicated that they had not discharged service tax liability in full for the period October 2005 to March 2006 - The main allegation was that service tax paid by tax payer as shown in ST-3 returns for this period was less than the tax payable as calculated on the value shown in same ST-3 returns filed by them for the impugned period - It is clear that the adjudicating authority has primarily focused on comparing the figures given by assessee in the first and second round of adjudication - In the first round of litigation, CESTAT Chennai had clearly indicated that the adjudicating authority came to pass the impugned demand as the proper reconciliation exercise was avoided - These directions of CESTAT Chennai have evidently not been followed in the de novo adjudication - Tribunal is left with no other alternative but to once more send the matter back to the adjudicating authority to cause reconciliation as per the directions already given by the Tribunal in their earlier order dt. 04.06.2009 - It is also directed that the adjudicating authority will cause such reconciliation based on the figures and data provided by assessee during the second round of adjudication.
Coming to the matter of penalty, discernably, the issue is on a matter of interpretation of the figure provided by assessee - There is definitely a case for waiver of penalty imposed under Section 78 since none of the ingredients which call for imposition of penalty under that section is present - In the event, penalty imposed under Section 78 is set aside: CESTAT
- Matter remanded : CHENNAI CESTAT
CENTRAL EXCISE
2018-TIOL-1820-HC-MAD-CX + Case Story
CC, CE & ST Vs Sri Kumaran Alloys Pvt Ltd
CX - Interest - Amendment to a statute done prospectively cannot be interpreted to be an answer to doubts which had arisen earlier to the amendment - Amendment to a statute, which has been given prospective effect, cannot be used as an aid to interpret the statutory provision, which existed prior to the amendment, unless and until it is held to be clarificatory - amendment to rule 14 of CCR, 2004 by notification 18/2012-CX(NT) dated 17 March 2012 substituting the words “taken or utilised wrongly” by the words “taken and utilised wrongly” is not clarificatory to be held to be retrospective - however, it will be a very hard case for the Court to reverse the decision of the Tribunal, especially when the Revenue does not dispute the factual position - Revenue appeal dismissed: High Court [para 10, 16, 17, 18]
- Appeal dismissed
:
MADRAS
HIGH COURT
2018-TIOL-2724-CESTAT-DEL
National Engineering Ind Ltd Vs CCE
CX - Assessee is engaged in manufacture of ball bearings and axle boxes and availing the facility of cenvat credit on imported wire bars as well as on domestically procured wire bars - Some of the wire bars imported by assessee as well as those purchased from domestic market were cleared as such, which is permissible under CCR, 2004 and reversed the cenvat credits availed on CVD and Cess credits in case of imported goods and reversed Central Excise duty credit of domestically procured goods - The assessee however in ignorance have not reversed the credits of Additional duty (SAD) availed by them on imported wire bars - The department has alleged that quantities of wire bars cleared as such were only pertaining to imported wire bars and therefore Credit of Additional duty (SAD) should have been reversed by assessee along with interest - The department does not have any concrete evidence to establish that the inputs namely wire bars cleared as such, for sale were only from the imported quantities of wire bars on which credits of SAD has been taken by assessee - On the other hand, assessee have calculated the proportion of procurement year to year basis of imported and locally procured wire bars and that ratio has been applied for reversal of cenvat credit along with interest with regard to SAD - The ratio adopted by assessee wherein proportion of quantities of imported consignment wire bars and locally procured wire bars have been taken for determining the amount of SAD which needs to be reversed against inputs namely, the wire bars cleared as such - There is no merit in demanding reversal of entire amount of SAD on the entire quantity of wire bars sold by assessee as such since 2010 to 2011 and without any scientific or factual basis when facts remain that the as such quantities were both from imported as well as locally purchased consignments - The assessee immediately on being pointed out about the lapse, reversed the SAD credits voluntarily, availed by them during 2014-2015, even before issuance of SCN - Methodology of reversal of cenvat credit adopted by assessee is based on scientific and factual basis and therefore, the amount of SAD is reversed by them along with interest, need to be accepted - Thus, the proper compliance of Rule 3 of CCR, 2004 has been made and therefore, no reason found to impose penalty on assessee: CESTAT
- Appeal disposed of : DELHI CESTAT
2018-TIOL-2723-CESTAT-MUM
Mahindra & Mahindra Ltd (FES) Vs CCE
CX - Refund - CENVAT - Rule 5 of CCR, 2004 - Irrespective of whether the refund is admissible on merit or otherwise, the foremost condition is that the accumulated credit should be lying unutilized in respect of the refund being sought by the appellant - Since as per the admission of the appellant, the entire CENVAT credit in respect of which refund is sought has been utilized, there is no question of refund of the said amount - appeals dismissed without going into the merits of the case: CESTAT [para 4]
- Appeals dismissed : MUMBAI CESTAT
2018-TIOL-2722-CESTAT-DEL
Escorts Ltd Vs CGST, CC & CE
CX - Whether the assessee is liable to pay interest and penalty on wrongly availed Cenvat Credit despite the fact that much before the issuance of SCN, they have reversed the same - It is not disputed that on pointing out by audit team, immediately the assessee reversed the credit on 25/02/2016 whereas the SCN for the same was issued on 16/05/2016 - This itself shows that there is no intention on the part of assessee to evade payment of tax rather they were having sufficient balance in their Cenvat Credit account - Since the assessee did not utilized the cenvat credit wrongly taken and reversed it before utilization, therefore, it amounts to non-taking of credit - Similar issue was raised before this Tribunal in the matter of M/s Rallison Electricals Ltd. , wherein this Tribunal relying upon the decision of High Court of Karnataka in matter of Bill Forge Pvt. Ltd. 2011-TIOL-799-HC-KAR-CX has held that since the assessee was having sufficient balance in their Cenvat Credit account, therefore, the assessee is not liable to pay the interest - in view of the decision of Karnataka High Court as well as the order of this Tribunal, the appeal filed by the assessee is allowed: CESTAT
- Appeal allowed : DELHI CESTAT
2018-TIOL-1822-HC-DEL-CUS + Case Story
UoI Vs Amazon Seller Services Pvt Ltd
Cus - Kindle E-book reader, as such, is not a dictionary or translator device - not entitled to exemption notification 25/2005-Cus. - AAR order quashed: High Court [para 19, 20, 21, 27, 29, 30, 31, 32, 33]
- Petition allowed
: DELHI HIGH COURT
2018-TIOL-2718-CESTAT-MAD
Allwin Cargo Vs CC
Cus - The assessee's Custom House Agent licence was revoked by the Revenue - Hence, the present appeal for setting aside the revocation order on the ground of limitation.
Held - As per Regulation 20 of Customs Broker Licensing Regulation, 2013 - The time prescribed under the Customs Brokers Licensing Regulations for preparation and submission of enquiry report by the Deputy Commissioner has not been followed - Following the ratio of cases wherein the position on this issue is settled namely, M/s. Sowparnika Shipping Services Vs Commissioner of Customs, Chennai-VIII , M/s. Patriot Freight Logistics System Vs. Commissioner of Customs, Chennai, Commissioner of Customs, Tuticorin Vs M/s. MKS Shipping Agencies Pvt Ltd., M/s. Masterstroke Freight Forwarders Pvt. Ltd. Vs Commissioner of Customs, Chennai-I - Hence, the order under challenge is set aside: CESTAT (para 1, 3, 4)
- Appeal Allowed : CHENNAI CESTAT
2018-TIOL-2717-CESTAT-KOL
Sony India Pvt Ltd Vs CC
Cus - Assessee is in appeal against order of Commissioner (A) wherin he has not adjudicated on merits of case and has dismissed the appeals on the ground that the appeals do not lie against a Bill of Entry in terms of Section 128 of Customs Act, 1962 - The assessee has filed the main appeal against Bill of Entry involving a differential duty amount - In addition, assessee have also filed supplementary appeals with regard to remaining 78 Bills of Entry, which were adjudicated by impugned order - The order of assessment passed under Section 17 of Customs Act,1962, and the order of clearance passed under Section 47 of Customs Act, 1962, are quasi-judicial orders under Section 128 of Customs Act, 1962, which can be set aside only by the competent appellate authority, on an appeal being filed against the same - Since mobile phones are imported, the question of availment of Cenvat on the inputs or the capital goods, does not arise - The Supreme Court in case of SRF Ltd. 2015-TIOL-74-SC-CUS held that when the question of fulfilling such conditions does not arise, it shall be treated as if the conditions have been satisfied and the exemption benefit shall be available - It is further observed that even if the exemption was not claimed at the time of filing of Bill of Entry, the assessee would not be deprived from claiming such benefit at a later stage - Since the Commissioner (A) has not decided the matter on merit, it would be appropriate to remand the matter to Commissioner (A) for deciding the matter afresh on merit and to pass an order in accordance with law: CESTAT
- Matter remanded : KOLKATA CESTAT
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