| SERVICE TAX
2018-TIOL-2791-CESTAT-MUM
CCE Vs GB Desai
ST - To METC, the assessee is engaged in providing construction as well as manpower recruitment services - It availed exemption from paying duty under Notification No. 45/10-ST issued with retrospective effect u/s 11AC of Central Excise Act, 1944 - In addition, exemption was given under Notification No. 11/10-ST dated 27- 2-2010, effective prospectively - Duty demand was raised - However, the Original Authority dropped the demand - Hence, the present appeal by Revenue.
Held: All the services which are provided in relation to transmission of electricity are exempted under the notification - It is a settled principles decided on the bases of variouss judgments of the Tribunal such as MD Aub Khan vs. CCE, CCE vs. Sri Rajyalakshmi Cement Products, JC Electricals vs. CCE - Hence, the order challenged is upheld : CESTAT (para 1,3)
- Revenue's appeal dismissed: MUMBAI CESTAT
2018-TIOL-2790-CESTAT-DEL
Flt Lt Rajan Dhall Charitable Trust Vs CST
ST - The assessee is engaged in health care services to the patients - To provide medical services assessee has engaged professionals and doctors on contractual basis and are paid professional fee - The Revenue took a view that the "collection charges/ facilitation fee" retained by the assesee’s are liable to service tax under the category of Business Support Service - Further, it formed a opinion that these charges retained by the assessee culminates into a taxable consideration for the service of infrastructure support provided by the assessee to the doctors to enable the doctors to carry-out their work in the hospital - Duty demand was raised.
Held: Following the ratio laid down by the Tribunal in the case of Sri Ganga Ram Hospital & Others vs. CCE, Delhi wherein a similar issue arose - The issue is decided in favour of the assessee on grounds that the retained money is also used for paying doctors and other related activities - It can be concluded that this amount was used in providing health-care services (output service) - Hence, the demand is deleted and order under challenge is set aside : CESTAT (para 1, 4)
- Assessee's appeals partly allowed: DELHI CESTAT
CENTRAL EXCISE
2018-TIOL-2793-CESTAT-ALL
CCE Vs Indo Asian Fusegear Ltd
CX - The assessee were engaged in manufacturing of CFL lamps - It classified CFL lamps under CTH 85393110 attracting duty @8% as per Sl. No.32 of Notification No.6/2006-CE - The Revenue took a view that CFL parts were classifiable under CTH 85399010 attracting duty @ 16% and same was classification for subject goods - Duty Demand was raised - The Adjudicating Authority confirmed the demand on grounds that assessee were in violation of Rule 10 of CCR and imposed personal penalty on proprietor - However, on appeal Commr. (A) held that the stage at which processed goods were removed from Noida Unit, were properly classifiable under Tariff Item No.85393110 - Hence, the present cross-appeals by assessee & Revenue.
Held: Going by the findings of the Commr. (A) wherein it is held that subject goods were transferred to Haridwar unit from Noida unit - They had essential character of a complete CFL, because if electricity was passed in the same there was the capacity of glowing - Therefore as the essential character of CFL is to glow the light, they were capable of doing so - The stage at which goods were transferred from Noida unit, the said goods were classifiable under Tariff Item No.85393110 which is entry for CFL - On examination of Rule 2 of General Rules of Interpretation and relying on decisions of Tribunal in cases of M/S O K Play vs. CCE & Universal Commercial Corporation Vs Collector of Customs, Delhi wherein it is concluded that the goods which were cleared from Noida unit were classifiable under Tariff Item No.85393110 - The matter is decided in favour of assessee - Hence, the order under challenge is upheld : CESTAT (para 1,4)
- Revenue’s appeal dismissed: ALLAHABAD CESTAT
2018-TIOL-2792-CESTAT-ALL
Taj Products Vs CCE
CX - Assessee was operating illegally from their premises and were indulging in clandestine manufacture and removal of Pan Masala, without obtaining the registration and without paying duty - Officers seized the machine along with seizure of Pan Masala found present in said premises - Proceedings were recorded in Panchnama on 10/04/2011 - The only dispute require to be resolved is as to whether duty is required to be paid by assessee for the period during which actual manufacture of Pan Masala took place or the same would be required to be paid from 01/04/2010 - Dispute revolve around interpretation of provisions of Rule 17(2) of said rules - The unit was found to be not registered on 10/04/2011 - As such by strict application of said rule, the duty liability would arise against assessee w.e.f. from first day of April, 2011 and not first day of April, 2010 - However, there is exception in said rule which shows that if an assessee is otherwise is in a position to establish actual date of stock of manufacture, the deeming provisions would not apply - The Commissioner has accepted that assessee was indulging in manufacture and clandestine clearance of Pan Masala since January, 2011 - There is also evidence on record to show that there was agreement between assessee and their brand owner, Shri Sunil Kumar Agarwal, Director of M/s Astha Fragrance Pvt. Ltd. which was executed with effect from 01/10/2010 and the present premises in which the machines were found to be installed were taken on rent by assessee from January, 2011 as per the statement of owner of premises - As such, it is clear that assessee was manufacturing said goods in rented premises w.e.f. January, 2011 - As such duty liability is legally to be confirmed against assessee from January, 2011 - As regards penalty, matter remanded back to the Original Adjudicating Authority for quantification of exact amount of duty liability against the M/s Taj Products for the period of actual manufacture of the goods and for imposition of penalty.
As regards penalty imposed upon Shri Sunil Kumar Agarwal, there is no evidence on record to suggest that the said activity was in the knowledge of Shri Sunil Kumar Agarwal - In such a situation, the owner of brand name cannot be held liable to penalty - Penalty imposed upon him set aside: CESTAT
- Appeals partly allowed: ALLAHABAD CESTAT
CUSTOMS
2018-TIOL-1887-HC-DEL-CUS
Chand International Vs PR CC
Cus - The appellant/CHA at the behest of one Mr. Deepak Yadav had filed a Bill of Entry on behalf of M/s. Bharat Medical Device Pvt. Ltd. - The articles imported were found to be misdeclared - The ensuing proceedings resulted in a SCN proposing penal action besides forfeiture of CHA licence - During proceedings, it was discerned that M/s. Bharat Medical Devices Pvt. Ltd, the importer, had in fact not authorized the import of goods; the documents relied upon by CHA holder turned out to be forged - Initially, the CHA holder/G-card holder Mr. Ravindra Singh faced penalty besides forfeiture of licence - Later, the licence was restored and the penalty–imposed vide O-I-O to the tune of Rs. 10 lakhs reduced by Tribunal to Rs. 5 lakhs - A plain look at the authorization letter creates suspicion in as much as apart from the address, no other detail is shown - This exercise of discretion by CESTAT in reducing the penalty amount to Rs. 5 lakhs was not unreasonable - No question of law arises: HC
- Appeal dismissed: DELHI HIGH COURT
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