SERVICE TAX

2018-TIOL-3210-CESTAT-MUM

Reliance Infocom Infrastructure Ltd Vs CCE

ST - Appellant is engaged in providing taxable service and had declared Navi Mumbai office as the place of business in the registration certificate - during disputed period, service provider M/s C.B.Ricards Ellis, South Asia had issued invoices in the name of the appellant mentioning that the taxable services were provided at Chennai office - since Chennai office was not specified as place of business in the registration certificate, department objected to availment of CENVAT credit of the service tax paid on the taxable service - nonetheless, the appellant obtained centralised registration incorporating therein the office at Chennai as the place of business - however, since at the relevant time, Chennai office was not registered, SCN issued for recovery of allegedly irregularly availed credit - demand confirmed and, therefore, appeal before CESTAT.

Held: There is no specific allegation made regarding non-payment of service tax, non-receipt of input service by the appellant - since the address of the Chennai office was subsequently incorporated in the centralized registration certificate, the requirement of the CENVAT statute, more particularly rule 9 of the CCR have been duly complied with for the purpose of availment of CENVAT benefit - no merit in the impugned order, hence set aside and appeal allowed: CESTAT [para 5, 6]

- Appeal allowed: MUMBAI CESTAT

CST Vs Lloyd Insulation India Ltd

ST - Respondents were providing 'Construction Services (Commercial & Industrial building of civil structure)' and were awarded a contract for design, supply and erection of pre-fabricated, pre-engineered warehouses, including roof sheeting, civil and electrical work at ICD, Dronagiri - said warehouses were for exclusive use of Container Corporation of India (CONCOR) for transport of cargo through Railways - Alleging that service tax is payable on such construction service, SCN was issued and the demand was confirmed along with penalties and interest - Commissioner(A) set aside the order by observing that case against respondent is sustainable only when it is proved that the services rendered by them were not in respect of Railways - Revenue in appeal before CESTAT.

Held: Burden to claim exemption from levy requires to be established by the claimant; that his case falls within the four corners of the exemption clause - it is respondent's burden to establish before the authorities through cogent evidence that the construction work undertaken by them relates to Railways - In the interest of justice to allow an opportunity to the respondent to establish their case, matter remanded to Commissioner(A) - appeal allowed by way of remand: CESTAT [para 6]

- Matter remanded: MUMBAI CESTAT

CENTRAL EXCISE

2018-TIOL-3208-CESTAT-AHM

Akash Ceramics Pvt Ltd Vs CE & ST

CX - The assessee company availed Cenvat credit on MS Angles, MS Beams, SS Plate/Coil/ Sheet, Round Bar, Scrap bar, Channel used for repair & maintenance of capital goods - The Revenue alleged that credit could not be availed on these items - Duty demand was raised with interest seeking recovery of such credit - Such levies were upheld by the Commr.(A).

Held: The issue at hand had already been settled by the Tribunal in Kisan Sahkari Chini Mills Ltd. Vs. Commissioner of Central Excise, Lucknow - Considering the relevant findings laid down therein, the credit can be availed on these items - Hence the demands are set aside: CESTAT (Para 2,6,7)

- Assessee's appeal allowed: AHMEDABAD CESTAT

Arvindra Electricals Vs CCE & ST

CX - Demand sought to be confirmed under category of 'Erection, Commissioning and Installation Services' - Assessee has provided the services in question along with material - Therefore, the classification of services is Works Contract as per the decision of Apex Court in case of Larsen & Toubro 2013-TIOL-46-SC-CT-LB wherein the Apex Court held that any service provided along with material falls under category of Works Contract, therefore, prior to 01.07.2012, the service tax liability is not sustainable against the assessee under category of 'Erection, Commissioning and Installation Services' - For the period post 01.07.2012, in terms of exemption Notfn 25/2012-ST, the services provided to government organisations or a local authority, by way of construction, erection, commissioning, installation completion, fitting out, repair, maintenance, renovation, or alteration of civil structure or any other original works meant predominantly for use other than for commerce, industry or any other business or profession was exempt from payment of duty - Admittedly, assessee is providing the said services to government organisation namely are not engaged in any commerce, industry or any other business or profession - In that circumstance, in terms of Notfn 25/2012-ST, the services provided to these organisations under contracts are exempted from payment of duty - With regard to services provided to Guru Granth Sahib University and M/s. H P Singh and others, work was completed before the negative list regime and the service has been provided by the assesse along with goods - In that circumstance, in the light of decision of Apex Court in case of Larsen & Toubro , merit classification of the said services under Works Contract, therefore, demand of service tax is not sustainable under 'Erection, Commissioning and Installation Services' - With regard to limitation, there is no specific allegation against assessee that they have not paid the service tax with intent to evade payment of service tax - In fact, assessee was providing services to organisations which are not engaged in any commerce, industry or any other business or profession - Therefore, extended period of limitation is not invokable: CESTAT

- Appeal allowed: CHANDIGARH CESTAT

2018-TIOL-3205-CESTAT-HYD

Lee Pharma Ltd Vs CCE, C & ST

CX - Assessee is manufacture of pharmaceutical products and is a 100% EOU - They obtained approval from Development Commissioner VSEZ and cleared goods on payment of duty to the DTA in terms of Para. 6.8 (H) of Foreign Trade Policy - The assessee had sold the goods on payment of VAT as required under the state VAT laws - A SCN was issued seeking to deny that the benefit of notification and to recover differential duty from them on the ground that the development commissioner had issued permission for domestic clearance of goods on payment of full duties under para 6.8 (h) of Foreign Trade Policy - Therefore, it was felt that availment of exemption in respect of SAD at the rate of 4% is irregular and a contravention of the conditions of permission granted by Development Commissioner - Whether a 100% EOU, who clears the goods to domestic tariff area on payment of VAT, are entitled to benefit of Notfn 22/2006 -CE which exempts goods cleared to domestic tariff area from the SAD - Issue is no longer res integra, it has been decided in cases including the Larger Bench in case of Moser Baer India Ltd. 2009-TIOL-1058-CESTAT-DEL-LB - Para 6.8 (h) of FTP refers to full duties which would obviously, mean full duties as applicable - If an exemption notification is available, this para does not place any restriction on its applicability - Thus, demand is not sustainable and neither are the interest and penalties: CESTAT

- Appeal allowed: HYDERABAD CESTAT

CUSTOMS

2018-TIOL-3206-CESTAT-HYD

Gayatri Timber Pvt Ltd Vs CC & ST

Cus - Assessee is the importer of timber logs which they sold after cutting them into smaller pieces - They filed refund claim for SAD paid on imported timber as they had paid VAT on cut logs which they have sold - Same was rejected on the ground that the goods which were sold were not the same as the goods which were imported - On appeal, High Court of Andhra Pradesh & Telangana sanctioned the refund - Thereafter, assessee has sought interest on delayed refunds under section 27A of Customs Act - The appeals for earlier period were decided in favour of assessee by this Bench - The refund in this case is of SAD under section 27A of this Act provides for payment of interest if the refund is not made within 3 months from the date of application of refund - There is no amendment to Section 11B of Central Excise Act which allowed greater latitude to the assessee to file a refund claim will have a bearing on Section 27A of Customs Act - In fact, Section 11BB of the Central Excise Act as well as Section 27A of the Customs Act are similarly worded and both provide for payment of interest if the refund is not given within three months of an application - It does not matter whether the refund is sanctioned by Assistant Commissioner himself or on an appeal by the Commissioner (A), Appellate Tribunal or any Court - The interest has to be calculated from three months after receipt of application till the date it is paid - These sections do not provide for exclusion of any time for reckoning the interest - No reason found to deviate from the earlier order of this Bench in respect of the same assessee on the same issue - Accordingly, impugned order is set aside: CESTAT

- Appeal allowed: HYDERABAD CESTAT