SERVICE TAX
2018-TIOL-2816-CESTAT-AHM
CCE & ST Vs Mundra International Container Terminal Ltd
ST - Duty liability was raised by the Revenue as the assessee was providing services without registration - On appeal, the Commr. (A) partly upheld the demand and denied Cenvat credit but it deleted the penalty imposed u/s 76 of Finance Act, 1994 - Hence, the present appeal by Revenue.
Held: The assessee is not eligible for such Cenvat Credit at the time of receipt of the invoices - They become eligible at the time after taking the registration by the Service Providers and payment of Service Tax - The assessee is liable to pay interest liability from the date the Cenvat Credit taken till the Service Tax paid by the service provider - With respect to denial of credit due to no-mention of address, the assessee is eligible to credit - In respect of readjustment of credit, the lower authorities have to consider the findings of Commr. (A) - Therefore, the case is remanded in respect of Rule 6(3) of Service Tax Rules, 1994 - Further, the issue regarding the rate of Service Tax was 8% which was enhanced to 10.02% w.e.f 10.09.2004 - There are various decisions wherein the Tribunal has held that rate of Service Tax will be applicable as per the period of provision of service and not from the date of invoices or receipt of payment - Therefore, the demand is upheld - Hence, the order under challenge is upheld : CESTAT (1, 2, 7, 8, 9)
- Revenue's appeal dismissed: AHMEDABAD CESTAT
2018-TIOL-2815-CESTAT-KOL
Power Grid Corporation of India Vs CCE & ST
ST - Assessee is a Public Ltd. Company of Government of India Undertaking who have rendered consultancy services to Bihar State Electricity Board - The crux of dispute is whether the service tax liability under category of "Consulting Engineer" will be applicable to assessee for the period prior to amendment in said definition w.e.f. 01.05.2006 - In case of Simplex Infrastructures Ltd. , Calcutta High Court has decided the issue in favour of assessee and by following said decision the Tribunal has also decided accordingly, in the case of Sepco Electric Power Construction Corpn. - In the case of Turbotech Precision Engg. (P) Ltd. 2010-TIOL-498-HC-KAR-ST - Karnataka High Court in case of Tata Consultancy Services as well as the Calcutta High Court in case of M.N.Dastur and Co. Ltd 2005-TIOL-187-HC-KOL-ST have discussed the precise issue in length and have concluded that the definition of "Consulting Engineer" for the period prior to subject amendment w.e.f. 01.05.2006 will cover within its ambit, "Company as much as individual" - The definition of "Consulting Engineer" will include the assessee for the period prior to 01.05.2006 also and hence during the disputed period assessee will be liable to payment of service tax - Assessee is a Government of India Undertaking and it cannot be said that the non-payment of service tax was on account of willful misstatement or suppression on the part of assessee - Consequently, the demand of service tax upheld alongwith interest, but penalties imposed on assessee set aside by taking recourse to Section 80 of FA, 1994: CESTAT
- Appeal partly allowed: KOLKATA CESTAT
CENTRAL EXCISE
2018-TIOL-2818-CESTAT-MAD
Ambika Cotton Mills Ltd Vs CCE
CX - Assessee is manufacturer of cotton yarn - Period of dipute is from 7.12.2008 to 6.7.2009 - SCNs were issued to assessee proposing to recover the credit availed by them alleging that since cotton yarn attracted nil rate of duty, the assessee is not eligible to avail credit - Cotton yarn was never an exempted product for disputed period - Though there were parallel notifications wherein one of the notification prescribed duty at the rate of 4% on cotton yarn, there was another notification 58/2008 which prescribed nil rate of duty - Thus, on the same date there were two notifications one of which prescribed nil rate of duty and the other prescribed 4% duty - The assessee can opt for a notification which is beneficial to him and the assessee herein has chosen to pay duty at the rate of 4% and claim rebate - Thus, denial of credit is without any basis and unjustified: CESTAT
- Appeal Allowed: CHENNAI CESTAT
2018-TIOL-2817-CESTAT-MUM
Accutech Engineering Pvt Ltd Vs CCE
CX - Inputs cleared as such without reversing CENVAT credit to 100% EOU - demand confirmed and equivalent penalty imposed - appeal to CESTAT - appellant contending that entire exercise is revenue neutral as consignee was entitled to exemption under notification 22/2003-CE in respect of procurement of inputs.
Held: There is no doubt that consignee of goods being a 100% EOU is entitled to exemption from all duties on procurement of inputs, however, such exemption can be availed of by the manufacturer of inputs - A third party, appellant in the present case, cannot take it upon himself to accord that exemption through availment of CENVAT credit - revenue neutrality may apply to goods manufactured by appellant but it would tantamount to exemption from duty if allowed on inputs procured by them - Reversal of credit u/r 3(5) of CCR is inescapable - appeal is dismissed: CESTAT [para 4]
- Appeal dismissed: MUMBAI CESTAT
CUSTOMS
NOTIFICATIONS
Trade Notice No 32
Changing of Fees for Registration
Trade Notice No 31
'To do list for SCOMET Policy/Procedure' for feedback/inputs from industry for simplification of licensing procedure of SCOMET items
cnt78_2018
CBIC notifies tariff value for Palm Oil, Palmolein, Soyabean Oil, Brass Scrap, Gold, Silver & Areca Nuts
CASE LAWS
2018-TIOL-2814-CESTAT-KOL
Amarnath Overseas Ltd Vs CC
Cus - The assessee, a 100% EOU was converted into SEZ unit after following appropriate procedure and obtaining permission of the competent authority - The question to be deliberated before the Tribunal was whether the export obligation period has been extended and whether the assessee's have fulfilled the export obligation within such extended period and have also achieved positive NFE for the relevant period - The Tribunal in its earlier order remanded the matter to the original authority - Subsequently, the Adjudicating Authority confirmed the demand after taking into consideration of letter by the Development Commissioner, wherein it was stated that the Development Commissioner has extended the LOA period.
Held: Before expiry of the extended period of LOP it is neither open to the Development Commissioner nor to the customs authorities to treat that the assessee had ceased to be a 100% EOU after the expiry of the first block of five years and consequently the question of enforcing the penal liability before the expiry of the extended period does not arise at all - Likewise, this issue was deliberated & ratio was laid down in the case of Mavi Industrial Ltd. vs. Commissioner of Cus passed by the Bombay HC - Hence, the order challenged is set aside: CESTAT (Para 1, 5, 6, 7)
2018-TIOL-2813-CESTAT-MUM
Aakash Stone Industries Ltd Vs CC
Cus - Valuation - Import of "Polished small size cutter marble slabs" - Value enhanced on the basis of market enquiry and differential duty demanded and confirmed - appeal to CESTAT.
Held: Imports, though effected in the year 2002, were sought to be saddled with differential duty by recourse to a market survey that was conducted on a date not in conformity with the prescription in Customs Valuation Rules, 1988 - market enquiry conducted on 27th June 2007 which is beyond the period of six months prescribed in rule 7 of the said rules - enhancement of value does not stand the test of law - consequently, impugned order is set aside and appeal is allowed: CESTAT [para 4]
- Appeal allowed: MUMBAI CESTAT
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