SERVICE TAX
2018-TIOL-2757-CESTAT-DEL
Ravindra Kumar Dubey Vs Central Goods and Service Tax Central Excise Commissioner of Customs
ST - Assessee is a contractor operating from a remote place near Chhatarpur (MP) and the only issue in this appeal is about the imposition of penalty under Section 78 of FA, 1994 - The basic plea of assessee is absence of mensrea - Merely the payment of service tax by assessee before the filing of appeal before Commissioner (A) did not establish the absence of mensrea on the part of assessee - Had the assessee acted under bonafide belief, then they ought to have cooperated in investigation - But it has come on record that they did not coperate with the department nor produced the record for quantification of service tax liability - If Department did not carry out the investigation then the amount of service tax would not have come into notice of department - The assessee cannot take the plea that they were under benofide belief because if that has been so then the amount of service tax, which they have paid after the passing of Order-in-Original had been paid by them at time of investigation itself or before the issuance of SCN - The assessee also failed to produce any document to prove their bonafide believe or to show that they did not collect the amount of service tax from their clients: CESTAT
- Appeal dismissed : DELHI CESTAT
2018-TIOL-2756-CESTAT-MAD
Raymix Concrete India Pvt Ltd Vs CST
ST - The assessee is engaged in production of Ready Mix Concrete - On audit, it was noticed that assessee delivers RMC to the plant - In the process it collects mobilization charges, pumping charges and labour charges from the customers - The assessee had discharged VAT on the gross value collected by them - The Revenue noticed that assessee was using the equipment for other purposes and collecting charges on them showing them separately in P&L A/c but no duty has been discharged on them - Duty demand was raised under the category of BSS along with interest and penalties - Hence, the present appeal before the Tribunal.
Held - To comprehend whether the activities undertaken by the assessee falls under BSS, the Tribunal looked into the definition of BSS post amendment of May, 2011 as given u/s 65 (105)(104c) and found that the definition does not cover them - Moreover, the aseessee paid excise duty on RMC manufactured by them @ 1% with effect from May 2011 - The Department is collecting excise duty as the activity of production of RMC amounts to manufacture - Following the cases of GMK Concrete Mixing Pvt Ltd and Vikram Ready Mix Pvt Ltd wherein the question whether the activity of pouring, pumping and laying of concrete is a taxable service was answered in negative - Primary and dominant object of contract between parties is for supply of RMC which is sale - Therefore no service tax can be levied on such activities - Moreover, as a matter of fact assessee has not collected any such charges in respect of RMC batched by other manufacturers - Hence, the demand is set aside : CESTAT (para 3, 5, 6, 7, 8)
- Appeal Allowed : CHENNAI CESTAT
CENTRAL EXCISE
2018-TIOL-1855-HC-RAJ-CX
CCE & ST Vs Air Liquide North India Pvt Ltd
CX - Whether the CESTAT was correct in holding that the activities/services provided by assessee to its clients/buyers of installing plant and machinery and storage tanks for storage of gases sold by it and of installing all connected pipes and gauges - In the factory of its clients/buyers and maintaining them and not 'infrastructure supports services' which is covered under the ambit of taxable entry "Business Support Services" under section 65(104C) of the Chapter VI of FA, 1994 without examining the issue in detail - Matter ought to have been remitted back to the authority to distinguish between the excisable goods like oxygen and service rendered - Tribunal has rightly held that the gas storage facility in industrial unit are not fitting into overall scope of infra structural support services and in support of the same, the tribunal has relied upon the decision of Royal Western India 2012-TIOL-1145-CESTAT-MUM - No substantial question of law arises: HC
- Appeal dismissed : RAJASTHAN HIGH COURT
2018-TIOL-1854-HC-RAJ-CX
Commissioner of Central Goods and Service Tax Vs Man Serve Pharma
CX - O-I-O is being passed in respect of SCN issued to assessee, the manufacturer of P.P. medicines on the grounds that they had not accounted for production of P.P. medicines in their RG-I Register/Book of Account and removed the same clandestinely without issue of any invoice and without payment of duty - The tribunal while considering the matter has considered the explanation rendered by assessee regarding 'P' which has been referred in the document and held that only on the statement recorded of the partner without further corroboration or confirmation of the goods received by the third party, duty and penalty cannot be imposed - The view taken by Tribunal is just and proper - Hence, no substantial question of law arises: HC
- Appeal dismissed : RAJASTHAN HIGH COURT
CUSTOMS
2018-TIOL-2759-CESTAT-HYD
Nokia India Sales Pvt Ltd Vs CC
Cus - The assessee had imported mobile phones - They paid duty on goods @ 6% CVD and 1% NCD - Subsequently, assessee claimed refund of duty in view of the decision rendered by Supreme Court in case of SRF Ltd. on the ground that they were eligible for concessional rate of duty of CVD @ 1% advalorem by virtue of Sl. No. 263A of Notfn 12/2012-CE - Same was rejected by original authority - The only question that remains in both the appeals is whether the assessee is able to prove the hurdle of unjust enrichment has been passed on or not - The CA's Certificate clearly recorded that for the purpose of examining the case of unjust enrichment, they audited importer's books of accounts and other documents and record of goods, based upon such verification, certified that incidence of duty is not passed on - As against such clear evidence from Chartered Accountant, Revenue has not adduced contrary evidence to show that assessee had passed on the incidence of duty - In absence of any contrary evidence, CA's Certificate needs to be accepted - It is noticed that identical/similar issue came up before High Court of Karnataka, which was disposed of directing Revenue Authorities to sanction the refund, by holding that refund is eligible for granted to them - High Court of Madras in case of Micromax Informatics on identical set of facts held that refund is admissible - On the face of authoritative judicial pronouncement on self same issue, Lower Authorities have erred in coming to a conclusion that assessee has not passed the hurdle of unjust enrichment - The impugned order is set aside on the question of unjust enrichment: CESTAT
- Appeals allowed : HYDERABAD CESTAT
2018-TIOL-2758-CESTAT-DEL
Agya Import Ltd Vs CC
Cus - Issue relates to import of consignment of HOP extract - Alleging that declared price of consignment is not in conformity with contemporary price of item imported, customs seized the imported consignment - Importer has filed the Bill of Entry in respect of imported consignment on 13.5.2016 on first check basis - However, consignment remained pending clearance by Customs department consequently the same became subject matter of Writ Petition before High Court of Delhi - It is informed to the Court by department that Bill of Entry will be finalised within a period of 10 days - Thereafter, the goods were placed under seizure on 10.8.2016 - Subsequent to seizure, SCN was issued to importer by adjudicating authority under Section 124 of Customs Act - During pendency of adjudication, provisional release was granted by Commissioner (Import) vide impugned order of provisional release of goods - From the perusal of provision of Section 110A and Circular No. 35/2017-Cus , it is quite evident that in case of provisional release of seized goods is to be decided by adjudicating authority who is competent to decide the case as per SCN - It is on record that SCN has been issued by Joint Commissioner of Customs who is also the adjudicating authority in the case - In the circumstances, it is not understood as to how and why the provisional release was granted by Commissioner who as per SCN is not the competent adjudicating authority in this case - The proper course would have been to get the provisional release ordered by Joint Commissioner of Customs to whom the SCN is made answerable from importer - Therefore, the action of Commissioner granting provisional release itself is not sustainable and is set aside - As the provisional release is pending since long time, adjudicating authority is directed to release the goods in terms of guidelines contained in CBEC Circular 81/2011-NT and Circular 35/2017-Cus within 10 days: CESTAT
- Appeal allowed : DELHI CESTAT
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