SERVICE TAX
2018-TIOL-3115-CESTAT-BANG
Mast Global Business Services India Pvt Ltd Vs CCT
ST - The assessee have filed two refund claims for refund of service tax amount paid on the specified services said to have been used for authorized operations in SEZ under Notfn 12/2013-ST - Thereafter, two SCNs were issued to assessee on two grounds viz. certain input services are not covered in the definition of input service under Rule 2(l) of CENVAT Credit Rules and hence not eligible and secondly non-submission of documents required to process the claims - O-I-O as well as impugned order, both have rejected the refund claims on other grounds which are not taken in SCNs and therefore they have travelled beyond the SCNs which is not legally permissible - Impugned order also violates the principles of natural justice because the assessee has not been given the reasonable opportunity to defend himself on the ground on which the refund claims have been rejected - The other grounds on which the refund claims have been rejected by the impugned order is that assessee has not produced the approved list of specified input services from the UAC of SEZ which is a mandatory condition as per the Commissioner (A) - Keeping in view the intention of Government in enacting the SEZ Act and giving special fiscal concessions to SEZs, this is only a procedural and is not a mandatory condition as held by Commissioner (A) - Therefore the ground on the basis of which refund claims have been rejected is not tenable in law - As regards to the second ground on which refund claims have been rejected is that the assessee has availed cenvat credit and hence he is not entitled to file the refund claim - Assessee has already reversed the CENVAT credit without any utilization and it has been shown in ST-3 return filed for the period April 2015 to September 2015 and once he has reversed the CENVAT credit without utilization, it tantamounts to not taking credit in view of various decisions relied upon by assessee and the benefit of exemption would be admissible on reversal of CENVAT credit - The impugned order rejecting the refund claims is not sustainable in law and therefore same is set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT
2018-TIOL-3114-CESTAT-ALL
Tata Consultancy Services Ltd Vs CST
ST - The assessee company was engaged in the activity of computerization of Excise and Taxation Technical Service Agency - Such service had been provided to the State government of Punjab - Duty demands were raised under Business Auxiliary Service.
Held: In the assessee's own case for a previous AY, the Tribunal had held that the assessee was not liable to pay service tax on the amount received from Punjab Government for renovation of Technical Programme given by them for Excise and Taxation Technical Service Agency - Following such findings, the services provided by the assessee does not classify as Business Auxiliary service - Hence the demands must be set aside: CESTAT (Para 4,6,8)
- Assessee's appeals allowed: ALLAHABAD CESTAT
CENTRAL EXCISE
Ambika Overseas Vs CCE
CX - The first appellant company, engaged in manufacturing hand tools, had a sister unit in Himachal Pradesh - The sister unit was also manufacturing the same items but was availing area-based exemption - Pursuant to investigation, the DGCEI alleged that both companies evaded payment of duty through fraudulent availment of cenvat credit & area based exemption - The Department claimed that the goods declared to have been manufactured by the first appellant had in fact been manufactured and cleared by the second appellant without payment of duty - The factories of both appellants were visited, records were seized and statements of several persons were taken - The Department alleged that the first appellant cleared finished goods to the second appellant in the guise of inputs & so had misued exemption under Notfn No 50/2003-CE & that the first appellant fraudulently availed credit - It was also alleged that both appellants were related persons and that the first appellant under-valued goods sold to the second appellant - Duty demand was raised for reversal of credit.
Held: Regarding the claim that the first appellant supplied finished goods to the second appellant in guise of inputs, the adjudicating wrongly assumed that finished goods had been supplied - Such assumption was based on the abbreviations used to describe the inputs & finished goods, which shared the same initials - The appellant's explanations in this regard were not considered - Hence such assumption is fallacious - Regarding alleged misuse of exemption under Notfn No 50/2003-CE, it is seen that the second appellant has facility of electroplating in its factory - Hence the second appellant had indeed cleared goods from its factory - Hence it is entitled to benefit under such Notfn - Next, cenvat credit was denied to the appellants based on the statements of suppliers & transporters claiming to have delivered no goods to the appellants - Since such statements were not tested u/s 9D of CEA 1944 & no opportunity of cross examination was given - Hence credit cannot be denied based on such statements - Regarding allegation of under-valuation, based on allegation that both appellants are related units, it is seen that the first appellant cleared goods to the second appellant as well as to independent buyers at the same price - Hence Rule 9 of the Valuation Rules are inapplicable to the present case - Thus the demands are unsustainable: CESTAT (Para 2,14,15)
- Appeals allowed: CHANDIGARH CESTAT
2018-TIOL-3116-CESTAT-DEL
Ashok Kapoor Partner Vs CC
CX - The factory premises of two companies were investigated, whereupon search revealed some quantity of raw material such as Resin, as well as finished goods such as lastic granules, PVC Pipes, Wires and Cables - Such goods were seized & statements of various persons were recorded, based on which redemption fine was imposed with penalties - Demands were raised against one of the companies for alleged clandestine removal of PVC pipes - Separate penalties were imposed on both the firms' partners as well.
Held: It appears that the seized goods are of a different brand name and they are not the goods for which the SCN was issued - Hence these goods cannot be confiscated without any SCN being issued in this regard - Accordingly, the redemption fine & penalties are set aside as are the penalties imposed on the partner in the firm - Regarding the other firm, raw materials cannot be confiscated under Rule 25 of the CER 2002 - Other goods seized have not been manufactured by the assessee as it has no facilities to do so - Hence their confiscation is set aside - The assessee avails SSI exemption on manufacture of plastic granules & the Revenue could not produce any evidence showing that it is not eligible for the same - Hence such goods too cannot be confiscated - Besides, other wires & cables recovered from the residence of the partner cannot be confiscted without establishing that such goods have been manufactured by the firm - Hence all the fines and penalties are set aside: CESTAT (Para 2,8,9,10,11)
- Appeals allowed: DELHI CESTAT
CUSTOMS
NOTIFICATIONS
cnt86_2018
CBIC notifies tariff value for Crude Palm Oil, Palmolein, Soya bean oil, Brass scrap, Poppy Seeds, Gold, Silver & Areca Nuts
ctariffadd18_052
Govt rescinds Notification imposing anti-dumping duty on ‘Phthalic Anhydride’ CASE LAWS
2018-TIOL-2151-HC-MUM-CUS
CC Vs Rakesh Javerimal Shah
Cus - The reason for appeal having been filed according to the Affidavit is that the impugned order of Tribunal may have far reaching impact as it ordered a cross examination of all persons whose statements are relied upon - As it may now be construed that in all cases the Adjudicating Authority would necessarily have to allow cross examination - It is stated that the nonmentioning of fact that an order giving effect to the impugned order has been passed was a mistake, for which he tenders an unconditional apology - The Affidavit further states that filing of this appeal raises only academic issues and seeks to withdraw this appeal - In the present facts, court would have expected the Commissioner to have been more careful before having filed this appeal - However, court give him the benefit of doubt, that filing of this appeal was a bonafide mistake and accept his unconditional apology - He and the other Commissioners of Customs would apply their minds, to the orders of the Tribunal before filing appeals to higher forums - This Appeal is allowed to be withdrawn as sought by Shri Kantharia: HC
- Appeal allowed: BOMBAY HIGH COURT
2018-TIOL-2150-HC-MUM-CUS
Electromech Material Handling System India Pvt Ltd Vs UoI
Cus - This petition under Article 226 of Constitution of India seeks to set aside the minutes of a meeting / orders dated 29th August, 2016 and 6th July, 2017 of the Policy Relaxation Committee in the office of DGFT - Both the minutes of meeting / orders dated 29th August, 2016 and the review order thereon dated 6th July, 2017 rejected the petitioner's application for relaxation only on account of failure to produce copy of bill of export of their supplies to SEZ - However, in the present facts, as in the earlier two cases party has been able to establish that supplies have been made to SEZ units - There is no reason to take a different view in this petition from that taken in the earlier two petitions in Larsen and Tubro Ltd. 2017-TIOL-2291-HC-MUM-CUS and Rochem Separation Systems India Pvt. Ltd. 2018-TIOL-2060-HC-MUM-CUS, the impugned minutes of meeting/orders are set aside - The respondent no.3 is directed to issue the Export Obligation Discharge Certificate and respondent no.4 to redeem the Advance Authorizations dated 21.01.2008, 09.04.2008, 09.05.2008 and 03.02.2009: HC
- Petition disposed of: BOMBAY HIGH COURT |
