SERVICE TAX
2018-TIOL-2028-HC-MUM-ST + Case Story
CST Vs Crescendo Associates
ST - Amounts collected from flat owners before formation of cooperative society for payment to municipal corporation and various service providers such as security agent, cleaning service providers is not taxable under the category of Management, maintenance and repair services - no distinction pointed out in facts and/or law in the present case vis-à-vis the decision dated 25 January 2018 - 2018-TIOL-288-HC-MUM-ST which held in favour of respondent assessee - no substantial question of law arises as the issue raised stood concluded by the earlier decision - Revenue appeal dismissed: High Court [para 4, 5]
- Appeal dismissed : BOMBAY HIGH COURT
2018-TIOL-2952-CESTAT-MUM
Slim N Slender Vs CCE & ST
ST - Demand raised and confirmed on the ground that the appellant were providing service of "Health Club & Fitness Center" - in appeal, the appellant submitted that they are rendering services which are related to health problem and are mainly in the nature of corrective as well as prevention of probable diseases which occur due to obesity and overweight; that treatment is not undertaken to preserve or enhance the physical appearance or beauty and that the services are provided by appellant under supervision and direction of doctor who is a qualified physiotherapist; that they are entitled to exemption in terms of notification 25/2012-ST; that entire amount of service tax has been deposited along with interest.
Held: Neither during investigation nor during making submission before lower authorities have the appellant adduced any evidence that the services are being rendered by authorized medical practitioner or paramedics - such contention has been made only at the appellate stage - even from the treatment offered it does nowhere occur that the same are physiotherapy services as the nature of services shown are for excessive weight or shoulder pain -appellant is, therefore, not entitled to exemption from payment of service tax - demand correctly made and penalties rightly imposed - no infirmity in the order, appeal dismissed: CESTAT [para 4]
- Appeal dismissed: MUMBAI CESTAT
2018-TIOL-2951-CESTAT-MAD
Areva T And D India Ltd Vs CCE & ST
ST - The assessee is a manufacturer of transformers and other electrical switchgear which are supplied to various Electricity Boards and other entities engaged in transmission and distribution of electricity - The DGCEI carried out investigation against assessee in connection with the allegation that they were not paying service tax, but were claiming ineligible abatement under Notfn 1/2006-ST - After conclusion of investigation, SCN was issued to assessee - In respect of supply contracts and the erection and commissioning contracts, practically there are no disputes. In the former no service tax is payable and in the latter, tax stands paid at full rate without abatement - The dispute centres around the contracts for civil works which admittedly involve the materials viz., cement and steel - Considering the civil works contract, the adjudicating authority has blindly gone by classification declared in ST-3 returns under 65 (105) (zzd) - The execution of civil works no doubt involves supply of materials in the form of steel and cement - Consequently, such contracts merit classification under 65 (105) (zzq) under commercial or industrial construction service which also enjoys abatement in terms of Sl.No. 7 of the Notfn 1/2006-ST - Assessee will be entitled to benefit of abatement under Sl.No. 7 of Notfn ibid - The adjudicating authority was in error by blindly sticking on classification under 65 (105) (zzd) as declared by assessee in their ST-3 returns - Assessee will be entitled to assessment under Works contract service for such contracts and entitled to payment of service tax only on the value of service portion - The adjudicating authority is directed to extend such a benefit subject to assessee producing satisfactory documentary proof evidencing the value of service: CESTAT
- Appeal partly allowed: CHENNAI CESTAT
2018-TIOL-2950-CESTAT-HYD
Worldwide Diamond Manufacturers Pvt Ltd Vs CCE, ST & C
ST - The assessee, a SEZ unit who claimed refund of service tax paid on services used by them - Such refund is admissible as per the Notfn 17/2011-ST and 40/2012-ST both of which prescribe detailed procedure for claiming a refund - Their only argument is that it took time to collect necessary documents and file the refund claim - Whenever a notification is issued all relevant factors are considered by Government before issuing it - As the process of collecting documents may take time, this notification provided one complete year from the date of payment of service tax for the assessee to file the refund claim - The notification further allowed by Assistant Commissioner or the Deputy Commissioner discretion is beyond one year if he has reasons to do so - In this case, assessee could not put forth in satisfactory reasons for filing the refund claim after more than one year of delay - There is not any reason for the refund claim to be filed so late - Refund claim was filed beyond the time period stipulated in the notification and therefore was rightly rejected by Assistant Commissioner and the appeal was rightly rejected by Commissioner (A): CESTAT
- Appeal rejected: HYDERABAD CESTAT
CENTRAL EXCISE
2018-TIOL-2949-CESTAT-MAD
Om Steel Rolling Mills Vs CCE & ST
CX - The assessee is in appeal against impugned order wherein Cenvat credit on inputs has been denied on the premise that the dealer M/s. S.K. Garg & Sons who has supplied the goods to the assessee is non-existence and he has merely issued invoice not the goods - No investigation conducted at the end of manufacturer/supplier or the transporter to reveal the truth whether manufacturer/supplier has supplied the goods in question to M/s. S.K. Garg & Sons or the transporter has transported the goods to the premises of assessee which is vital evidence to reveal the truth - Further, M/s. S.K. Garg & Sons was registered dealer during the impugned period and all the ER-1 returns were filed by M/s. S.K. Garg & Sons which were accepted by department - Therefore, in the absence of any corroborative evidence to show that the assessee have not received the goods, it cannot be alleged against assessee that they have received the invoices and not the goods merely on the ground that there was no storage facility specifically when the landlord made a statement that the godown was let out to the dealer - The same issue came up before Tribunal in case of Sadhashiv Casting Pvt. Ltd., wherein Tribunal relying on the precedent decision of Tribunal in case of M/s. Dhawan Steel Industries and M/s. Jain Steel Tubes and other - The Cenvat credit cannot be denied to the assessee - Impugned order set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2018-TIOL-2948-CESTAT-DEL
Abha Power And Steel Pvt Ltd Vs CCE
CX - The assessee company is engaged in manufacturing MS Ingots & availed Cenvat credit - The Department received intelligence tip-off that the assessee consumed electricity in excess of what is normally consumed - Hence clandestine manufacture & removal of MS Ingots was alleged - Duty demand was raised in this regard.
Held: The Revenue's case is based on the statements taken from the representative of some other company - There are a plethora of judgments to the effect that a serious charge such as clandestine removal must be based on clinching evidence and that no demands can be raised based on assumptions and presumptions alone - Nor can such charges be based on third party evidence or on statements of buyers which is not based on documentary evidence - Demands be set aside: CESTAT (Para 1,5)
- Appeals allowed: DELHI CESTAT
2018-TIOL-2947-CESTAT-DEL
Secure Meters Ltd Vs CCE AND ST
CX - Assessee is engaged in manufacturing of Electric Energy Meters and Gas Meters and has been denied CENVAT Credit for the period April, 2012 to March, 2013, on Banking & Financial Services regarding realisation of export proceeds which, as per the department, is post export activity and therefore not covered under the definition of Input Service provided under Rule 2(1)(ii) of CCR, 2004 - The contention of department that the services received for post export period cannot be termed as input service and therefore the service tax paid on such services, received for post export period, is not eligible input service credit is not sustainable - The services were received for causing export and since they are for export purposes therefore they are prior to removal from factory and are eligible - Realization of export proceeds is a necessary concomitant of export and therefore the same is also eligible for input service credit - Realization of export proceeds is a sine qua non of export business - Otherwise also, Banking and other financial services, although related to post export period, but are covered in the inclusive part of definition of input service in Rule 2(l) under the head "Financing", since the said services have been utilised for the purpose of business and therefore the Cenvat Credit is available to assessee in terms of Rule 2(l) of CCR, 2004 - In the matter of Fiamm Minda Automotive Ltd. - 2016-TIOL-930-CESTAT-DEL, it has been held that the Cenvat credit of Service Tax paid on Banking and other financial services which have been used/utilised for accomplishing the purpose of business towards payment of export clearance of the final produce, is available to the manufacturer/service provider in terms of Rule 2(1) of Rules, 2004 - So far as the extended period of limitation is concerned, since on merits the case is decided in favour of assessee therefore there is no need to go into this issue: CESTAT
- Appeal allowed: DELHI CESTAT
CUSTOMS
2018-TIOL-2946-CESTAT-DEL
Ingram Micro India Ltd Vs CC
Cus - The assessee company imported licenses for software on paper media - These were classified under CTH 4907 0030 covering Documents of title conveying the right to use Information Technology Software - The Department opined these to be paper licenses and so classifiable under CTH 8523 8020 as Information Technology Software - The assessee cleared the items under protest under the classification favored by the Department - On appeal, the Commr.(A) upheld the classification favored by the Department
Held: The issue in hand stands settled by the Customs Circular No- 15/2011-Cus dated 18.03.2011 - Considering relevant portions of the Circular, the assessee's contentions that the imported items do not qualify as PUK cards but as paper licenses is correct - Hence they are correctly classifiable under CTH 4907 0030 - The O-i-A in challenge is set aside: CESTAT (Para 1,5,6,7)
- Appeal dismissed: DELHI CESTAT
2018-TIOL-2945-CESTAT-HYD
AVBGPR And Company Vs CC AND ST
Cus - The assessee company filed the present application seeking restoration of its appeal which had been dismissed by the Tribunal - The assessee's counsel claimed that the bench did not look into the merits of the matter and dismissed the appeal on grounds of repeated adjournment - The assessee also filed an application seeking rectification of mistake.
Held: The application seeking restoration of appeal is not sustainable as the Tribunal dismissed the appeal on merits - Regarding the application for rectification of mistake, it is seen that the case relied on by the assessee is entirely different from the present case - However, such application does have merits regarding the question of interest - Both O-i-O & O-i-A indicate that the orders passed for finalization of bills of entry are provisional in nature - The O-i-O raising duty demand with interest was passed on a date on which provisions of Section 18 did not mandate charging of interest on the differential duty payable - Thus the order confirming duty demand is upheld but orders confirming the interest are unwarranted and not in accordance with Section 18(3) of the Customs Act, 1962: CESTAT (Para 2,3,7,9)
- Applications partly allowed: HYDERABAD CESTAT
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