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SERVICE TAX
2018-TIOL-2755-CESTAT-MUM
Executive Engineer Mechanical Vs CCE, C & ST
ST - Mechanical Divisions are engaged in manufacturing and erection of various types of gates for dams such as radial gates, vertical gates etc. and are registered with the Central Excise department - demand has been raised against the appellant on the ground that they are rendering 'Technical Inspection and Certification Service' as they have carried out third party inspection in respect of projects viz. Ghatprabha, Zambre, Arjuna of the works done by the Civil Wings i.e. Statutory corporations which are part of Water Resources Department - demand confirmed, hence appeal to CESTAT.
Held: Issue is no more disputed as in Appellant's own case - 2014-TIOL-419-CESTAT-MUM Tribunal has allowed the appeal filed by the appellant by holding that the activity of infrastructural construction catering to the needs of agriculture are excluded from the purview of service tax levy both under the category of CICS and Works Contract - following the same, demand of service tax is not sustainable - appeal allowed by setting aside the impugned order: CESTAT [para 3]
- Appeal allowed: MUMBAI CESTAT
2018-TIOL-2754-CESTAT-MAD
Deccan Park Resorts Vs Commissioner of GST & Central Excise
ST - The assessee company is registered for providing short term accomodation service - During the period of dispute, the assessee was served an SCN on grounds that it had been collecting service tax but was yet to deposit it - It was also alleged that the assessee failed to obtain registration - Duty demands were raised with interest & imposition of penalty u/s 77 & 78 - It was also proposed that the duty already paid be appropriated - Such demands were confirmed on adjudication - On appeal, the Commr.(A) gave partial relief to the assessee.
Held: Considering the decisions of the Tribunal in Sri Velmurugan Sago Factory Vs. Commissioner of C. Ex., Salem and Shriram Epc Ltd. Vs. Commissioner of Service Tax, Chennai and also considering the fact that the assessee paid duty with interest at least three years before SCN was issued, the penalty imposed under second proviso to Section 78 is not sustainable - Besides, as the assessee obtained registration prior to issue of SCN, no contravention of Section 77(2) can be alleged: CESTAT (Para 2,5,6,7)
- Appeal allowed: CHENNAI CESTAT
CENTRAL EXCISE
2018-TIOL-1853-HC-KERALA-CT
State Of Kerala Vs Hindustan Lever Ltd
Whether pre-mixed coffee powder can be classified under category of powders, granules & concentrates and not under coffee beans, coffee seeds & coffee powder - YES: HC
- Revenue's revision petition dismissed : KERALA HIGH COURT
2018-TIOL-1852-HC-MUM-CX
National Standard India Ltd Vs Addl.CCE
CX - This petition challenging the order dated 13th January 2017 was filed on 10th April 2017 i.e. admittedly within the 60 days - This Petition was filed bonafide as according to petitioner, the impugned order is in breach in principle of natural justice - Therefore, would justify interference by the Court in its writ jurisdiction - There is no delay and/or negligence on the part of petitioner in challenging the impugned order - This on a bonafide belief that this Court will exercise its writ jurisdiction - The word 'bonafide" only means honest/sincere, absence of deceit in prosecuting the petition - An alternate efficacious remedy is available to Petitioner, where he could get the same relief - When the Act itself provides for a remedy to challenge an order under the Act, the same should not become a dead letter in absence of acquiesce/accepting the order and/or negligence in challenging the order - Petitioner has not accepted the impugned order, but forum chosen was not appropriate - Apex Court in M.P. Steel Corporation 2015-TIOL-89-SC-CUS on an identical/similar facts arising under Customs Act, 1962 has taken a view that even where the statute provides for a period of limitation including the extended period, yet the quasi judicial authorities such as Commissioner of Customs (A) would have powers to condone the delay by invoking the principle of Section 14 of Limitation Act, 1963 - In case the petitioner does file an appeal with Commissioner of Central Excise (A) within two weeks, he would consider the appeal on merits: HC
- Petition disposed of : BOMBAY HIGH COURT
2018-TIOL-2753-CESTAT-MAD
Texport Industries Pvt Ltd Vs CCE & ST
CX - Assessee is engaged in manufacture of cotton knitted garments, commonly known as 'Hosiery garments' - Prior to 09.07.2004, assessee was availing credit and paying duty - W.e.f. 09.07.2004, he had two options ie., either continue to pay duty by utilizing the credit in terms of Notfn 29/2004-CE or to clear their final products at 'nil' rate of duty by discontinuing availing credit of duty - Admittedly, assessee chose the second option and discontinued availing credit though there was unutilized accumulated credit lying in their records - After a gap of four years, assessee applied the refund of same, when their factory was ultimately closed they surrendered their excise license - In as much as the refund stands filed after a period of three years and five months from the relevant date, lower authorities have held the same to be barred by limitation - Supreme Court in case of Porcelain Electrical Mfg. Co. held that the refund claim filed before the departmental authorities are to be governed by time limit provided under the statute - General law of limitation is not available and decisions where assesses have invoked extraordinary jurisdiction of High Courts and the Courts have applied the period of three years are inapplicable to the cases where the refund applications have been moved before the Revenue authorities - The Tribunal being a creature of statute has no jurisdiction to go beyond the period prescribed under the law - The refund stands filed even beyond the general period of limitation of three years: CESTAT
- Appeal rejected: CHENNAI CESTAT
2018-TIOL-2752-CESTAT-DEL
Baerlocher India Additives Pvt Ltd Vs CCE
CX - Assessee is the manufacturer of Inorganic Chemicals and Compounds Stabilizer of Rubber - The assessee was observed to have availed Cenvat Credit on inputs and capital goods under Rule 3 of CCR, 2004 on the ground of those being used for manufacture of their final products - The Department during scrutiny had noticed that the said credit has been availed on MS Bars, MS Channels, MS Joists & MS beams which the Department while issuing the said SCN had denied to be considered as inputs and finally a demand was raised - In the case of Saraswati Sugar Mills 2011-TIOL-73-SC-CX, the Apex Court has held that anything without which the machine is not complete will fall within the meaning or expression of component/part spare in clause (iii) (2a) of CCR, 2004 - Support also drawn from the decision of Tribunal in Srinathji Ispat Ltd. 2015-TIOL-2355-CESTAT-DEL wherein it was held that Cenvat Scheme being beneficial legislation, should be given as wider meaning as possible - Chartered Engineer of assessee has certified that the foundation for which impugned articles have been used, same is technically necessary as per the requirement of engineering norms for the blending machine to be used to give the output - This particular certification is sufficient to hold that MS Bars, MS Channels, MS Joists & MS beams are very much the integral component/spare part of the machine meant to yield output hence can well be classified as capital goods and the inputs - Assessee has rightly availed the Cenvat Credit on these articles - Consequently, the order under challenge is hereby set aside: CESTAT
- Appeal allowed: DELHI CESTAT
CUSTOMS
2018-TIOL-2751-CESTAT-DEL
Wide Impex Vs CC
CUS - Assessee filed the appeal being aggrieved with terms of provisional release, with regard to goods imported vide Bill of Entry dated 11.12.2017 against the impugned order dated 27.04.2018 - In spite of application made for provisional release dated 18.01.2018, the provisional release has been allowed belatedly by the impugned order dated 27.04.2018 and that also, on the intervention of High Court - Till date the SCN has not been issued to assessee in the matter - So far as bank guarantee is concerned, the amount is modified from Rs.34,06,418/- to Rs.15 lakhs - The condition for furnishing the bonds for Rs.67,85,77/- is not modified - The undertaking/affidavit required that the importer shall not dispute the value of seized goods, is waived - Upon complying of the modified conditions, Customs Authorities shall release the goods forthwith within a period of 3 days: CESTAT
- Appeal allowed: DELHI CESTAT
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