Eiha Unit Of Oberoi Flight Services Vs CST

ST - The assessee is engaged in the business of providing food to various airlines along-with the responsibility of packing and handling of food loading and transportation of food trolleys, storage and handling of dry stores, cleaning of equipment and laundry services - The Revenue raised an objection on computation of service tax paid and included the cost of food supplied by assessee to the airlines, in the value of the said services for the purpose of paying the Tax - Duty demand was raised.

Held: To comprehend this the term outdoor catering services has to be elaborated - The invoice raised by assessee is showing sale of food separately from the charges of other services rendered in addition to supply food - They are not serving the food on board hence as far as supply of food is concerned property therein stands transferred the moment it is loaded on the air craft trolley - Tax on outdoor catering was introduced in the year 1997 w.e.f 01.08.1997 and since the serving was not popular it was withdrawn w.e.f 01.06.1998 - This was brought back by Finance Act, 2004 w.e.f 10.09.2004 in the form of introduction of Section 65(105)(zzt) seeking to impose service tax on the services rendered by an outdoor caterer - The cases of K Damodharaswamy Naidu & Bros vs State of Tamil Nadu, Tamil Nadu Kalyana Mandapam vs UOI & Narang Hotels & Resorts vs State of MH have analysed the object and purpose of the 46th Amendment to the constitution holding outdoor catering services as sale of goods - Therefore, it can be concluded that assessee was simply supplying the food and not serving the same to the passengers on board - It has discharged the VAT liability on sale of such goods & paying service tax for other services - The activity undertaken by assessee is not covered under outdoor catering services - Hence, the order under challenge is set aside : CESTAT (para 1, 6, 7, 8, 9)

- Appeal Allowed: DELHI CESTAT

2018-TIOL-2802-CESTAT-MUM

Loft Quality Process Delivery Center India Pvt Ltd Vs CCE & ST

ST - Refund of Service Tax paid on Input Services in terms of Rule 5 of CCR, 2004 - Applications for refund were filed within one year from the relevant date, however, relied upon documents in support of such refund claim applications were filed after the limitation period prescribed under the notification 27/2012-CX(NT) read with section 11B of the CEA, 1944 and, therefore, claims rejected - appeals to CESTAT.

Held: Since the refund applications were filed within the prescribed statutory time limit, documents in support of such claim submitted later-on should not be considered as the date of filing of fresh application for the purpose of consideration of the limitation period - rejection of claim is not in consonance with the statutory provisions - Delhi High Court decision in Arya Exports- 2005-TIOL-41-HC-DEL-CX relied upon - impugned order set aside and appeals allowed: CESTAT [para 6, 7]

- Appeals allowed: MUMBAI CESTAT

CENTRAL EXCISE

CC & CE Vs Trimurti Products

CX - The assessee was engaged in the manufacture of 'Shikar' brand of Gutka - On the basis of statement of various persons including Authorized Signatory of assessee-company the Revenue took a view that the assessee cleared bags of Shikhar Gutkha for the period in dispute without payment of duty - A SCN was issued invoking extended period of limitiation u/s 11 A (1) of CEA, 1944 - There was imposition of personal penalty on other noticees too - However, the Original Authority dropped the proceedings and held that demand raised on the basis of statements of various persons is not sustainable - Hence, the present appeal by Revenue.

Held: The proprietor of assessee-company has stated that he sold the goods at the factory gate on cash payment and that there was no evidence to prove that the goods were transported by them - The Original Authority recorded that one person based on whose statement the SCN was issued was responsible for booking Gutkha with the transporter and Original Authority has held that Revenue could not establish that he was an employee of the assessee - company - Furthermore, it was difficult to ascertain the quantum of duty paid or not duty nature of goods particularly because the SCN was issued by placing reliance on the statement persons - Herein, they stated that duty paid goods were booked on GRs and non duty paid goods were booked on JST slips - From the statement of propreitor, its clear that they were manufacturing Shikhar Brand Gutkha as franchisee - When he was asked to name the person from their firm responsible for dispatch of Shikhar Brand Gutkha , he replied that he himself used to dispatch Shikhar Brand Gutkha and further stated that they did not have any delivery van for transportation - In addition, the goods manufactured by them were sold at factory gate and their customers made arrangements for transportation of the same - The Original Authority noticed that name of Shikhar Brand Gutkha has not been shown in the private records such as 'private diary pad', 'JST Slips' and 'Loading Register' maintained by the transporter - It can be seen that the order of Original Authority is detailed and reasoned - Hence, the order challenged is upheld: CESTAT (para 2, 5, 6)

- Revenue's Appeal Dismissed: ALLAHABAD CESTAT

2018-TIOL-2804-CESTAT-HYD

CCE & C Vs Fizikem Laboratories Pvt Ltd

CX - Assessee is manufacturer of P or P medicaments and availing SSI exemption - It appeared to department that Fizikem had control over the dealing of distributing firms; that transaction between Fizikem and their distributing firms were not on principal to principal basis and was also not at arm's length; that the distributor is a "related person" for the purpose of Section 4 of the Act; that as per Section 4 (1) (a) (iii) valid upto 30.06.2000, the normal price of the goods shall be deemed to be the price at which the goods are sold by the related person during the course of wholesale trade - Department adopted the sale price of goods when sold by respondent-4 as the basis for the purposes of assessable value and took the view that value of clearances of Fizikem had crossed Rs.300 lakhs during 2001-02; hence they are not eligible for availing exemption during 2002-03; that as the value of clearances in the related preceding financial years had exceeded the SSI limit, they are not eligible for duty exemption in the immediately following financial years - Commissioner (A) has analysed the contentious issues very thoroughly in his order - He has noted that during 6.12.1998 to 31.3.2000, Fizikem sold the entire production to sole selling distributors, Subhash International and Subhash International by adding profit, sold the goods to Sterling Remedies and in turn Sterling Remedies sold the goods at higher prices to customers; that from 1.4.2000 Fizikem sold the entire production to Sterling Health Care, their sole distributors at 1/3rd value of M.R.P and Sterling Health Care in turn sold the goods to customers at 90% of M.R.P. - Lower appellate authority has however found that there are no substantial grounds or evidence for holding that there is "mutuality of interest" in this case between Fizikem and its distributors - Tribunal do not find any fault in this finding - The investigation has not thrown up irrefutable evidence to establish that there is "mutuality of interest", flow back of funds or even tangled web of financial arrangements between the respondents - The lower appellate authority is correct in concluding that there is no corroborative evidence to substantiate the allegation that advertising charges are borne by respondents 3 & 4 on behalf of Fizikem - No infirmity found with the findings of the lower appellate authority: CESTAT

- Appeals dismissed: HYDERABAD CESTAT

CUSTOMS

NOTIFICATIONS

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One time relaxation for regularisation and issue of EODC for exports made prior to imports where Advance Authorisation issued for import of Natural Rubber/Silk

Allocation of preferential export of sugar to USA under TRQ for the year 2018-19

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Safeguard duty on Solar cells whether or not assembled in modules or panels

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CBIC imposes Anti Dumping duty on Flat Base Steel Wheels imported from China PR

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CBIC removes Anti Dumping duty imposed on Flat Base Steel Products imported from China PR

CASE LAWS

Lipi Data Systems Ltd Vs CC

Cus - SAD Refund - Notfn. 102/2007-Cus - Claim rejected by observing that while issuing the invoices of sale of imported goods, importer is required to specifically indicate that in respect of goods covered therein, no credit of additional duty of customs (SAD) shall be admissible, however, the importer has not made any such declaration - appeal to CESTAT.

Held: Following the decision of the Larger Bench in the case of Chowgule & Company Pvt. Ltd. - 2014-TIOL-1191-CESTAT-MUM-LB , there cannot be any deemed passing of the duty, particularly, SAD as CENVAT credit - impugned order set aside and appeal allowed to the extent indicated: CESTAT [para 4]

- Appeal allowed: MUMBAI CESTAT

2018-TIOL-2800-CESTAT-MUM

CC Vs Deepak Agro Solutions Ltd

Cus - Respondent imported 'Mono Potassium Phosphate' and classified the same under heading 3105 9090 - proper officer took a view that the goods are correctly classifiable under heading 2835 and consequently duty was held recoverable - Commissioner(A) set aside the demand, hence Revenue in appeal.

Held: Tribunal in Vardhaman Fertilizers & Seeds Pvt. Ltd. - 2016-TIOL-2548-CESTAT-MUM held that inclusion of the imported items in the Fertiliser (Control) Order, 1985 cannot but reinforce the opinion that these are indeed fertilizers as decided by the competent department of the Government of India; that classification of the imported goods should fall under chapter 31 and not chapter 28 of CTA/CETA - following the same, Revenue appeal is dismissed: CESTAT [para 4]

- Appeal dismissed: MUMBAI CESTAT