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SERVICE TAX
2018-TIOL-2774-CESTAT-MUM
CCE Vs Akruti Projects
ST - Refund - For providing Commercial and Industrial Construction Service (CICS) to the client of the main contractor, both the main contractor as well as the respondent had discharged the service tax liability - fact is also not disputed that the main contractor had not additionally provided any taxable service to its client, over and above the services provided by the respondent to it under the capacity of sub-contractor - for providing the services of CICS, only one party was liable to pay service tax - since both the parties had discharged service tax liability for the same work, tax amount paid twice, cannot be retained by the Government as the legitimate due - claim of one tax as refund by either of the persons should have been refunded - furthermore, since Works Contract Service was specifically brought into the tax net only w.e.f 01.06.2007, respondent should not be liable to pay service tax under CICS in view of Apex Court decision in Larsen & Toubro - 2015-TIOL-187-SC-ST on this ground also respondent succeeds for entitlement of refund benefit - no infirmity in the order of Commissioner(A) - Revenue appeal dismissed: CESTAT [para 7] -
- Appeal dismissed: MUMBAI CESTAT
2018-TIOL-2773-CESTAT-ALL
CC, CE & ST Vs Ingersoll Rand Industrial Products Pvt Ltd
ST - The assessee were engaged in providing management, maintenance & repair services as well as in trading of goods - The Revenue took a view that as assessee was availing the option of payment of Cenvat credit attributable to input services and inputs used for provision of exempted service i.e. trading - This option was to be exercised within 15 days from the date of adjustment - Duty demand was raised - The Original Authority held that assessee has to pay the unpaid amount under Rule 6(3A) of Cenvat Credit Rules - After receiving report from the Range Superintendent that assessee has reversed the amount for the period in dispute - The Authority dropped the demand - Hence, the present appeal.
Held: Rule 6(3A) nowhere provides for 15 days to assessee to exercise the option - The crux of the clause is that Cenvat credit should be reversed - It is confirmed that assessee correctly reversed the Cenvat credit attributable to the exempted service - Hence, the order under challenged is upheld : CESTAT (para 2, 5, 6)
- Revenue's appeal dismissed: ALLAHABAD CESTAT
2018-TIOL-2772-CESTAT-BANG
Macmillan India Ltd Vs CST
ST - Assessee, an EOU have been alleged to have received services relating to photo typesetting, printing, computer software, data capture, copy editing and allied activities in UK, Europe, U.S.A. and Australia from a foreign company i.e. Macmillan Press UK Ltd. pertaining to export sales of assessee - U. K. Company did not have any office in India - The Department has issued a SCN demanding Service Tax in regard to "BAS" received by assessee from U. K. Company - In respect of service provider being abroad, the liability to pay Service Tax on "reverse charge mechanism" has come into effect only from 18.04.2006; this has been held by various judgments and particularly, the Indian National Ship Owners Association 2008-TIOL-633-HC-MUM-ST maintained by Supreme Court - Therefore, there is no need to deliberate on the issue as being a settled one - The assessee have also submitted that payment of Service Tax for period from 18.04.2006 onwards would be a revenue neutral exercise as they would be eligible to pay CENVAT Credit and utilized the same or to get back the refund on the credit - Tribunal is not able to accept this line of contention of assessee on the neutrality of the revenue post 18.4.2006 - It is not forthcoming, which are the services that the assessee is exporting, so as to be eligible in terms of such Notification - It is not clear whether the assessee is registered as Service Tax provider and whether they are availing facility under CENVAT Credit Rules and are following proper procedure - Under the circumstances, assessee is liable to pay Service Tax for the period from 18.04.2006 to 31.12.2006 - If assessee is otherwise liable to take credit of the same and to obtain a refund of same cannot be decided at this end - Having observed that service tax is payable by assessee for the period 18.4.2006 to 31.12.2006, once the duty is paid, the issue of refund would be, subject to the relevant provisions of law and procedures, be decided by jurisdictional authorities - For this reason the issue needs to go back to the original authority - Lower authorities directed to quantify Service Tax and penalty payable by assessee for the period from 18.04.2006 to 31.12.2006: CESTAT
- Appeal partly allowed: BANGALORE CESTAT
CENTRAL EXCISE
2018-TIOL-1869-HC-MUM-CX
CCE Vs Blue Star Ltd
CX - The Commissioner of Central Excise confirmed SCN to the extent of a demand of Rs.9.61 lakhs - Besides it imposed an equivalent penalty under Rule 173Q of CER, 1944 - Both the Revenue as well as assessee filed an appeal to the Tribunal - The assessee's grievance was that no penalty is imposable when assessments are provisional while Revenue's grievance was that the order of Commissioner did not confiscate the land and building under Rule 173Q of Rules as proposed in SCN - Impugned order of Tribunal has rendered a finding of fact that the assessment during relevant period were provisional - This finding of fact is not shown to be perverse in any manner - The view taken by impugned order of Tribunal is a possible view - If the above finding of fact is not disturbed, then even according to Revenue, no occasion to impose any penalty or confiscate the plant, machinery land or building even arise - The only submission of Revenue is that assessments were finalized and not provisional - Question as proposed being a question of fact which is not shown to be perverse, would not give rise to any substantial question of law - Thus not entertained - So far as Question 2 is concerned, Revenue having specifically stated that Revenue does not agitate the issue of penalty not being imposable even when assessment is provisional, renders the question No.2 as proposed academic, thus, not entertained: HC
- Appeal dismissed: BOMBAY HIGH COURT
2018-TIOL-1868-HC-MUM-CX
CST Vs Life Care Medical Systems
CX - Assessee is engaged in the business of promoting/ selling medical equipments and also rendering after sales services like installation and commissioning in India to a foreign party - The foreign party in turn pays commission to assessee for service rendered by them in India - It is the case of Revenue that as the services are performed in India, assessee is liable to pay service tax on its service to a foreign party on Reverse Charge Mechanism - Court in SGS India Pvt. Ltd. has held that where services were rendered in India to a foreign party, then such service is not liable to tax as it would be export of service - In fact, CBEC has issued a clarification by Circular No.111/2009 that in terms of Rule 3(1)(iii) of Export of Service Rules 2005, it is not the place of performance but the location of the service receiver which will make it an export of services - It clarified that word 'outside India' to mean that the benefit should accrue outside India - The aforesaid Circular is completely in favour of assessee: HC
- Appeal dismissed: HIGH COURT OF BOMBAY
2018-TIOL-2778-CESTAT-MUM + Case Story
Golden Tobacco Ltd Vs CCE
CX - Valuation - Section 4 of the CEA, 1944 - 'Shells', 'cut labels' and 'printed sheets' captively consumed by the cigarette manufacturer - Revenue arriving at valuation based on cost construction method and addition of notional profit of ten percent - assessee contending that they had been making loss in respect of sale of the finished products, viz., cigarettes.
Held: Exercise was to determine the assessable value of inputs used in the manufacture of cigarettes in the form in which it is finally presented for sale - goods being entirely consumed within the factory does not have a comparison basis with sales made by the appellant or by anybody else, of like goods - appellant is unable to show that the assessable value adopted by the lower authorities does not reflect the cost of production and the profit that might have been earned even if these goods have been sold by the assessee or purchased by the assessee from outside - A loss on the product that is cleared finally using the impugned goods as an input is not relevant for determining the notional profit envisaged in rule 6(b)(ii) of CE Valuation Rules, 1975: CESTAT [para 6, 7]
- Appeal dismissed: MUMBAI CESTAT
2018-TIOL-2777-CESTAT-MUM
Essel Propack Ltd Vs Central Goods and Service Tax and Central Excise
CX - Input Service - Rule 2(l) of CCR, 2004 - Pest Control Service, Telephone Service, Repair and maintenance service of air conditioners are used in or in relation to the manufacture of the final product and having nexus with the ultimate final product manufactured by the appellant, CENVAT credit cannot be denied - impugned order set aside and appeal allowed: CESTAT [para 4]
- Appeal allowed: MUMBAI CESTAT
2018-TIOL-2776-CESTAT-MUM
CCE & ST Vs Demag Cranes And Components India Pvt Ltd
CX - Revenue is in appeal against setting aside of penalty imposed u/r 15(2) of CCR, 2004 r/w s.11AC of the CEA, 1944.
Held: Punjab & Haryana High Court in the case of Sangrur Agro Ltd. - 2010-TIOL-779-HC-P&H-CX has held that section 11AC of the CEA, 1944 will have not application in case of reversal of excess availed CENVAT credit, in terms of rule 6(3)(b) of CCR, 2004 - since operation of said judgement has not been stayed or overruled by the apex court, ratio has binding effect on the Tribunal - contrary stand, therefore, cannot be taken by Tribunal - impugned order stands insofar as dropping of penalty is concerned - interest, however, is payable by the assessee in view of Bombay High Court decision in GL & V India Pvt. Ltd. - 2015-TIOL-1210-HC-MUM-CX interest demand confirmed demand is proper and justified - cross appeal filed by respondent assessee is dismissed: CESTAT [para 4, 5]
- Revenue appeal/Assessee cross appeal dismissed: MUMBAI CESTAT
2018-TIOL-2775-CESTAT-MUM
CNH Industrial India Pvt Ltd Vs CCE
CX - Valuation - Section 4 of the CEA, 1944 - Pre-delivery inspection charges and other Sales Service charges cannot form part of assessable value of motor vehicles as held by the apex court in the case of TVS Motors Co. Ltd. - 2015-TIOL-299-SC-CX - Impugned order is, therefore, devoid of merit, same is set aside and appeal is allowed: CESTAT [para 6, 7]
- Appeal allowed: MUMBAI CESTAT
CUSTOMS
2018-TIOL-2771-CESTAT-MAD
JSW Steel Ltd Vs CC
Cus - Assessee is a manufacturer of steel products and has set up manufacturing facilities at multiple locations in India - The assessee imported some of the capital goods required for setting up additional manufacturing lines as well as technological /capacity upgradation and expansion of existing plants, by debiting the applicable duty against EPCG license and the remaining capital goods by debiting the same against the SHIS scrips - SCN was issued to assessee for demanding differential customs duty for imports that had taken place through different ports along with interest - The said issue has been elaborately dealt by Tribunal in assessee's own case 2015-TIOL-2517-CESTAT-MAD wherein the Tribunal rejected the appeal of Revenue holding that the importer is eligible for benefit of said notfn under SHIS scheme for clearance of imported goods - Assessee is eligible for benefit of Notfn: CESTAT
- Appeal allowed: CHNNAI CESTAT
2018-TIOL-2770-CESTAT-AHM
Hindustan Copper Ltd Vs CC
Cus - The assessee imported copper concentrate - During provisional assessment and subsequently, finalization of assessment some duty was found to have been paid in excess - Differential duty demand was raised - The excess amount was credited to consumer welfare fund - The assessee challenged the final assessment order wherein the Commr. (A) upheld the order of Adjudicating Authority but dropped the interest during the period in dispute - Hence, the present appeal by Revenue.
Held: The assessee merits a chance to present relevant documents to establish whether or not incidence of excess duty paid was passed on - Matter warrants remand to such end - In case of provisional assessment being finalized, Section 28AB charging interest is not applicable - Following the decision of Chemsilk Commerce Ltd vs. CCE, Kolkata wherein it was held that in case of provisional assessment the interest was not chargeable prior to 13.07.2006 - Hence, the order under challenge is upheld and interest is deleted - : CESTAT (para 1, 2)
- Assessee's appeal partly allowed: AHMEDABAD CESTAT
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