SERVICE TAX

2018-TIOL-3132-CESTAT-ALL

Ashirwad Equipments Pvt Ltd Vs CC, CE & ST

ST - The assessee company received services of loading and unloading of coal, transportation of coal & removal of over-burden coal from M/s Eastern Coalfields Ltd. within the mining area - Duty demands were raised under category of Mining services & penalties were imposed.

Held: The issue at hand is no longer res integra & stands settled by the Tribunal in Sarvmangla Construction Co. v. CCE & ST, Raipur and Arjuna Carriers Pvt. Ltd. v. CST, Raipur - In the latter case the Tribunal held that mere handling of coal and movement of the same through the motor vehicles or any other means of transport would not constitute mining service for the purpose of levy of service tax - Following the same, the demands are set aside: CESTAT (Para 1,2,4)

- Appeal allowed: ALLAHABAD CESTAT

CCE & ST Vs BLS Projects Pvt Ltd

ST - The assessee is engaged in activity of construction of commercial/ industrial /institutional buildings and is registered with the department under category of 'Works Contract services' - The department alleged short / non payment of Service Tax resulting in SCN which raised a demand along with interest and proportionate penalty - There is no challenge by department for the finding of adjudicating authority about the services of assessee to be that of 'works contract services' - The only grievance is about the benefit of composition scheme being given to assessee, that too on the ground that option has not been exercised as is required under Rule 3(3) of said Composition Scheme - There has been communication by assessee to the department before making payment of his liability under Composition Scheme for works contract services - No infirmity found in the findings of Commissioner in the order in challenge - While relying upon the decision of ABL Infrastructure Pvt Ltd. 2015-TIOL-360-CESTAT-MUM and another decision of Tribunal in case of Bridge and Roof Co. (India) Ltd. 2012-TIOL-539-CESTAT-DEL wherein even non-fulfillment of condition of exercising option for payment of tax under Composition Scheme was found to be not appropriate ground for denial of the benefit of composition scheme to the assessee, findings of Commissioner (A) affirmed - Option Rule 3(3) has been exercised by assessee - It is admitted fact that option is filed prior to making payment which is only the mandate of Composition scheme under Rule 3(3) of 2007 Rules thereof - The sole plea of department that option has not been exercised, is therefore found not tenable - As far as benefit of cum tax is concerned, no infirmity found qua those as well findings in the impugned order of Commissioner (A): CESTAT

- Appeal dismissed: DELHI CESTAT

CENTRAL EXCISE

2018-TIOL-3130-CESTAT-MUM

Argus Coatings And Polymers Pvt Ltd Vs CCE

CX - Considering the activity of repacking and relabeling as manufacture, appellant discharged appropriate CE duty after availing CENVAT credit on inputs - alleging that activity does not amount to manufacture SCN issued seeking reversal of CENVAT credit availed of Rs.2,17,77,276/- - demand confirmed with interest and penalty - appeal to CESTAT.

Held: Issue is no more res integra in view of Bombay High Court decision in Ajinkya Enterprises - 2012-TIOL-578-HC-MUM-CX wherein it has been held that once duty on final products has been accepted by the department, CENVAT credit availed on inputs need not be reversed even if activity does not amount to manufacture - following the principle of law laid down in the aforesaid case, no merit in impugned order - order set aside and appeal allowed: CESTAT [para 6, 7]

- Appeal allowed: MUMBAI CESTAT

Beston Electrovision Pvt Ltd Vs CCE

CX - A company, M/s BDP Radio Corporation, applied for registration of its brand name 'BESTON' - The Trade Mark Registry issued a certificate of registration in the name of the assessee's proprietor - Meanwhile the proprietor of the assessee company formed a new company named M/s. Beston Electrovision Pvt. Ltd. - This new company took over the firm M/s BDP Radio Corporation with its assets and liabilities - The brand name of BESTON was transferred as well and the new company began manufacturing goods under that brand name - Pursuant to investigations, goods were detained & records such as invoices of trading and manufacturing, balance sheets & purchase bills were seized - The detention of goods was later revoked as no case was made out against the assessee - Later the assessee signed an agreement with one M/s Beston Skyvision Pvt. Ltd. which allowed the latter to use the former's brand name - The Department alleged that the assessee was using the brand name of BESTON which belonged to another person and so could not avail benefit under Notfn No 8/2003-CE.

Held: It must be noted that the registration of the brand name was registered in the name of the proprietor of the erstwhile company as well as the new company - Hence the availment of SSI exemption cannot be denied - Hence the orders in challenge are set aside: CESTAT (Para 2-6,9,12,18)

- Appeals allowed: DELHI CESTAT

CUSTOMS

NOTIFICATION

dgft18pn042

INSTRUCTION

cus_instruction17_2018

Guidelines for handling and storage of valuable goods that are seized/confiscated by the Department

CASE LAWS

Adyar Gate Hotel Ltd Vs CC

Cus - The assessee had imported light and light fittings under EPCG Scheme and had claimed the benefit of Notfn 28/97-Cus - The Tribunal has settled the issue and has held that the goods are entitled to the benefit of said Notfn; that based on order of Tribunal, the assessee filed a refund claim along with interest @9% per annum placing reliance on the decision of Supreme Court in the case of Sandvik Asia Ltd. 2006-TIOL-07-SC-IT ; that the LAA did not process the refund claim within the time limit stipulated by Board, they filed a Writ Petition before High Court of Madras who directed the Assistant Commissioner to consider the refund claim on merits and in accordance with law; thereafter impugned order was passed wherein the LAA had sanctioned only Rs. 1,31,761/- as against the claimed amount and ordered that the same be credited into Consumer Welfare Fund - Revenue has not challenged the direction of Commissioner (A) who has held that the assessee would be entitled to interest as per Section 27A of the Customs Act based on the decision of M/s. Ranbaxy Laboratories Ltd. 2011-TIOL-105-SC-CX - High Court of Karnataka in case of Pfizer Products India P. Ltd. 2015-TIOL-1958-HC-KAR-CUS while considering a similar issue, has felt it proper to direct the Department to pay an additional interest at the rate of 9% per annum for the reasons contained in judgment, in the light of Section 27A of the Customs Act - The rate of interest varies between 5 to 30% per annum, as is fixed by the Central Government by Notifications - The adjudicating authority is therefore directed to ascertain such Notifications available till the date of passing the consequential order and compute the interest at the prescribed rates for the period involved in the case on hand: CESTAT

- Appeal allowed: CHENNAI CESTAT

Aricent Technologies Holdings Ltd Vs CC

Cus - Assessee is a 100% EOU working under STP Scheme - They have imported the goods considering the same as modular furniture and have availed the benefit of Notfn 52/2003 - In the proforma invoice and sale invoice and Bill of Entry, they have described the goods as parts of modular furniture - STPI authorities have also permitted the import of goods under said Notfn after satisfying themselves that the goods were eligible for duty free import and necessary certificate was also issued - For availing exemption under said Notfn, two conditions need to be satisfied (a) STPI unit is set up as per the authorization granted by Development Commissioner / STPI authorities and a certificate is issued by STPI stating that the goods are required to be installed or used in the unit and (b) the import is authorized by the Standing Committee - In the present case, both the conditions have been fulfilled by assessee and once the Committee has authorized the import, then, the Customs Department later on cannot question the benefit under the Notfn - In case of Cognizant Techno Solutions India Pvt. Ltd. , the Kolkata Tribunal held that mineral fibre sound absorbing sheet, cut to sizes and used as false ceiling, is a modular furniture and is entitled to the benefit under Notfn 52/2003 and in the present case, the goods procured are in the nature of connecting parts between the two workstations, therefore it can be considered as parts of modular furniture only and the benefit of notification can be extended to assessee - The Department has invoked the extended period of limitation and has not brought any evidence on record to show that there was an element of fraud, collusion or any willful mis-statement or suppression of facts on the part of assessee justifying the invocation of extended period of limitation - Consequently, entire demand is barred by limitation - The impugned order is not sustainable in law on merits as well as on limitation: CESTAT

- Appeal allowed: BANGALORE CESTAT