SERVICE TAX
2018-TIOL-2933-CESTAT-HYD Apex Company Vantage India Pvt Ltd
ST - The assessee is engaged in the export technology information services - It filed application Rule 5 of CCR, 2004 to claim refund of CENVAT credit in proportion to their export services - However, the Revenue rejected the application on grounds that assessee didn't debit the Cenvat credit amount from their books of accounts at the time of making the claim as required - On appeal, the Commr. (A) upheld the order of Adjudicating Authority - Hence, the present appeal against the order-in-appeal.
Held: The relevant Notification No. 05/2006-CE(NT) provides that the amount claimed as refund of Cenvat should be debited before applying for the Refund - The assessee is in violation of condition 2(h) of the notification as they have debited the amount, but much later - Hence, the order under challenge is upheld : CESTAT (para 1, 7, 8, 9)
- Appeals Dismissed: HYDERABAD CESTAT
2018-TIOL-2932-CESTAT-DEL
Espire Infolabs Pvt Ltd Vs CCE
ST - Assessee filed the refund claim under Notfn 27/2012 on the export of services for Cenvat Credit availed on input services - The original adjudicating authority has rejected the claim mainly on the ground of there being a difference in mailing address and there being a difference in export turnover given in ST-3 and that of the actual export turnover - On appeal, Commissioner (A) has held the assessee eligible to benefit of Cenvat Credit on input service received at unregistered premises - However, directed remand for re-quantification of said demand - As far as the issue of export turn-over whether to be equal to total turn-over or not, the relief to the assessee was declined - Since the part issue of assessee has already been decided in his favour and re-quantification has already been directed for the same, the only issue for the present adjudication is as to whether export turn-over of inputs would be equal to the "Total Turnover" in terms of clause (E) of Rule 5 (1) of CCR, 2004 and that when there is no dispute of Service Tax payment on input services, whether the assessee is eligible for refund of Cenvat Credit which remains unutilized - It is the case of assessee that Department has calculated the value of those invoices as well for which the payment was not received during relevant quarter though those invoices were mentioned in ST-3 Returns - Commissioner (A) has technically appreciated the said provision but he is opined to have ignored a relevant fact that all the invoices as were mentioned in impugned ST-3 Returns could not have received the payment which otherwise was to be in foreign currency - The documents on record even the order of original adjudicating authority acknowledges the FICR, for some of the said invoices to have been received later - The emphasises as put forth by Revenue has already been considered in the terms that the adjudicating authority despite appreciating the legal position have failed to appreciate the corresponding factual position as far as the inclusion of the value of the unpaid invoices is concerned - Resultantly, order under challenge is opined to be erroneous on this aspect, same is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2018-TIOL-2931-CESTAT-MAD
Grama Vidiyal Trust Vs CCE & ST
ST - The assessee is a Trust engaged in providing loans to Women’s Self Help Groups and involved in micro financing - The Revenue took a view that the activities of the assessee were covered under Banking & Other Finance Services - Duty demand was raised on grounds that assessee was a financial institution - Hence, the present appeal.
Held - The assessee is registered as a Charitable Trust - Moreover, they have not been approved to function as a bank or even as a non-banking institution by the R.B.I - Thus, they cannot be termed as a "Banking Company" or "Financial Institution" - Therefore, the demand in this respect is deleted - Further, the assessee has already paid up the remaining demand with respect to rent-a-cab services - Hence, the order under challenge is set aside : CESTAT (para 1, 5, 6, 7)
- Assessee's appeal partly allowed: CHENNAI CESTAT
CENTRAL EXCISE 2018-TIOL-2936-CESTAT-MAD Fenner India Ltd Vs CCE
CX - Though the Tribunal had held that credit is eligible and by typographical error, it has been stated that disallowance of credit is 'justified' though the impugned order has been set aside on this count - Since being a typographical error, the error needs rectification and ROM on this count is allowed - The assessee has also brought to the notice of Tribunal that in respect of credit to the tune of Rs.30,192/-, assessee had reversed voluntarily the credit before utilization - That the Tribunal did not consider this issue and required to set aside the penalties on this count - The decision in case of Strategic Engineering (P) Ltd. 2014-TIOL-466-HC-MAD-CX holds that in case the assessee reverses the credit before utilization, they are not liable to pay any penalty - The assessee has accepted to pay appropriate interest on this amount - Taking note of this error, penalty on this count is set aside: CESTAT
- ROM application allowed: CHENNAI CESTAT
2018-TIOL-2935-CESTAT-MUM
Dura Line India Pvt Ltd Vs CCGST & C
CX - Admissibility of CENVAT credit in respect of services provided by overseas commission agent including the services of sales promotion - services provided by M/s MASER are inclusive of services of sales promotion - since activities undertaken by overseas commission agents are inclusive of activities of sales promotion, in view of decisions cited and Board Circular 943/4/2011-CX dated 29.04.2011, admissibility of credit cannot be disputed - appeal allowed: CESTAT [para 7, 9]
- Appeal allowed: MUMBAI CESTAT
2018-TIOL-2934-CESTAT-DEL
Fiba Hardwyn Locks Ltd Vs CCE
CX - The assessee paid Excise duty on finished goods & availed Cenvat credit on inputs used - It later opted for SSI exemption & stated their turnover to be below threshold limit - The Revenue opined that the assessee first had to pay an amount of cenvat credit in cash on inputs, semi-finished goods and finished goods lying in stock on the date of opting the exemptionas per Rule 11(3) of CCR, 2004 - Duty demands were raised on such account with interest being levied & penalties being imposed.
Held: Considering the provisions of Rule 11(3) of CCR it is seen that an assessee must pay the amount of cenvat credit in cash if no balance is lying in cenvat credit account - The provisions of Rule 11(3) only seek to ensure that if an assessee opts for exemption then the assessee must reverse credit on inputs & finished goods lying in stock as on date of opting for exemption - Hence if there is no balance in the Cenvat credit account then the assessee need not pay credit on such goods lying in stock - Hence the demands are set aside: CESTAT (Para 1,2,7,10)
- Appeal allowed: DELHI CESTAT
CUSTOMS
NOTIFICATIONS
ctariff18_066
Integrated Tax and Compensation Cess exemption extended up to March 31, 2019 on goods imported against Advance Authorisation/EPCG Scheme
dgft18pn040
DGFT revokes status of M/s Supreme International FZC as Pre-Shipment Inspection Agency
CASE LAWS
Samir Akbarali Rayani Vs CC
Cus - Impugned order of Tribunal is a common order relating not only to M/s. Panama Petroleum Ltd., & its employee i.e. the two assessees before court but also relates to Gandhar Oil Refinery (I) Ltd., Sah Petroleum Ltd. and M/s. Apar Industries Ltd., and their employees - The common impugned order was challenged by Gandhar Oil Refinery (I) Ltd., Sah Petroleum Ltd., and Apar Industries Ltd. , before this Court - Vide 2016-TIOL-2366-HC-MUM-CUS , the appeals were restored to the Tribunal for fresh consideration - It is an agreed position between the parties that for the reasons stated in said order would equally apply to the present appeals - Thus, following the said decision, impugned order is set aside - However, both the assessee's appeals are restored to the Tribunal for fresh disposal, in accordance with law: HC
-Appeal allowed : BOMBAY HIGH COURT
2018-TIOL-2930-CESTAT-MAD
Swarna Heating And Control Company Vs CC
Cus - Assessee had imported goods declared as "Used Power Press, Johns, APRX 100 MT Elec/Hyd Operation, Remote Hyd Power pack, Rotating 1100 MM Die Auto INDX (Complete Set)" - The goods were found to be second hand in nature without any accompanying load port CA Certificate - It appeared to Custom House that the price of machinery when worked out per ton basis was much than the price per ton of Heavy Melting Scrap imported from Australia during that period which was in vicinity of AUD 400/ton - The assessee have contended that goods were purchased by them in and through e-auction only and the purchase price as indicated in invoice should be taken as transaction value - Assessee have submitted that the ex-works charges incurred was AUD 6000 - It is therefore obvious that the 100 ton power press is considerably large in size and weight only due to which reason even the extraction / removal cost is around four times the e-auction cost of machinery itself - Tribunal is therefore then unable to fathom why when such a large Power Press is involved, there are no details in e-auction invoice of age, year of manufacture or other serial / identification numbers that would normally be expected to be made available for such machinery - Even gross weight of the machinery is not indicated in invoice, though, from the inspection report of the Chartered Engineer, it emerges that the gross weight is as much as 27500.00 kgs - In the absence of such particulars, the Customs authorities cannot be faulted for not having accepted the transaction value - In fact, the original adjudicating authority in his order has given detailed reasons why the value of such used second hand goods cannot be adopted on the basis of declared value and why the local Chartered Engineer had to examine and value the goods - The fact that the declared value of goods was much lower than per/ton value of industrial scrap imported from same country, though not an approved method for arriving at the transaction value, is nonetheless an indicator of grossly low value of imported goods as declared - No infirmity found in order of lower appellate authority upholding the manner and reasoning of revaluation of impugned goods and the resultant enhancement that came about - Appeal does not have merit for which reason it is dismissed: CESTAT
- Appeal dismissed: CHENNAI CESTAT
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