SERVICE TAX
2018-TIOL-3402-CESTAT-MAD
Sreevatsa Real Estates Pvt Ltd Vs CCE, C & ST
ST - The assessee company is registered for providing Construction of Residential Complex Service - It was paying service tax under this head but later stopped doing so, having treated such service as 'Works Contract service' & resumed payment of service tax under this head after availing benefit of reduced liability under the Works Contract (compensation scheme for payment of service tax) Rules, 2007 - The Department however opined that the assessee was required to pay service tax under both Construction of Residential Complex Service as well as Works Contract Service - The Department also sought to deny Cenvat credit on grounds that it had been based on measurement book instead of invoices issued by the contractor - Credit availed for some other time periods were disallowed on grounds that the invoices did not bear the requisite details such as invoice number or date - Hence duty demands were raised with interest for recovery of credit along with penalties being imposed.
Held - For the period up to 01.06.2007, no service tax liability can be pinned on the assessee, considering the decision of the Apex Court in CCE & Cus, Kerala Vs L&T Ltd. - Moreover, the Board Circular dated 10.02.2012 reiterating its earlier circular of 29.01.2009 has clarified that for the period 1.7.2010 such services provided by the builders / developers will not be taxable - Hence no tax can be raised for period prior to 1.7.2010 - For the period after this date, the benefit of composition scheme has been denied on sole grounds that the assessee did not exercise such option before due date of payment of tax - There is no such requirement laid down by law - Such a position is solidified by the Tribunal's decision in Mehta Plast Corporation Vs CCE Jaipur - Hence denial of credit on this ground is unjustified - Regarding denial of credit for period 1.6.2005 to 1.7.2010, it is held that credit cannot be denied where the duty has been paid & where it is availed even on exempted goods& then reversed upon clearance of the final product - Regarding, denial of credit on grounds on invoices not bearing names & numbers, it is settled law that such discrepancies are curable in nature & cannot be made grounds for denial of credit - Hence the O-i-O merits being dismissed: CESTAT (Para 2,5.1-5.6)
- Assessee's appeals allowed: CHENNAI CESTAT
2018-TIOL-3401-CESTAT-MAD
Vasantham Outdoor Advertising Pvt Ltd Vs CCE
ST - The assessee is registered for providing 'Advertising Agency Service' - It rented out hoardings - On audit, the Department noted that the assessee received some amount for activities which amounted to advertising on sub-contract basis - The adjudicating authority noted that the assessee had rented out hoardings & collected rental charges from other advertising agencies - Duty demands were raised with interest & equivalent penalty u/s 78 of Finance Act 1994.
Held - It is not alleged that the assessee itself prepared & displayed such advertisements - It is undisputed that these were prepared by the advertising agencies & that the assessee only rented out hoardings - It is evident that 'any service connected with', the making , preparation, display or exhibition of advertisement must obviously be a service of the same nature or generis - If the category of service involves creativity & even specifically includes 'advertising consultant', it would be too far-fetched to include renting of hoardings within the scope of such service - Hence such activity cannot be included in scope of 'Advertising Agency service' - Demands raised be set aside: CESTAT (Para 2,5.1,5.2,6)
- Assessee's appeal allowed: CHENNAI CESTAT
CENTRAL EXCISE
2018-TIOL-3400-CESTAT-MAD
Doosan Infracore India Pvt Ltd Vs CCE
CX - Assessee is engaged in manufacture of Portable Air Compressor and light source - The Portable Air Compressor are mainly used in mines and the light source are used for providing light in the mines and stages - They were availing facility of CENVAT credit on inputs and capital goods - They have a trading division at Puducherry which deals with certain types of compressors not manufactured by their Puducherry manufacturing unit and the Chennai Trading Division handles all the service related activities - The assessee cleared certain imported inputs namely air end, oil cooler and element separator on which CENVAT credit was availed by them to M/s. Sun Beam Generators, Puducherry and M/s. Fusion Metal Tech India Pvt. Ltd. on sale basis - They also cleared certain imported components to their trading division at Chennai for service purposes - It was noticed that assessee have failed to pay the amount equivalent to credit availed on imported CENVAT availed inputs cleared as such and have reversed lesser credit amount than what they have actually availed on the inputs - The major part of demand is in respect of CENVAT credit which has not been reversed when the inputs have been cleared as such - On perusal of the copy of ER-1 returns furnished along with the appeal records, it is found that the assessee has disclosed the entire details of inputs cleared as such - The corresponding reversal of duty shows a depressed amount, as 4% SAD has not been reversed - This has been explained by them in their reply to SCN as well as in appeal grounds - Assessee have discharged duty liability immediately on being pointed out by the officers - As the ER-1 returns clearly show the details of inputs cleared as such, assessee cannot be saddled with suppression of facts with intent to evade payment of duty - The allegation of double credit availed is explained by assessee that it was due to an inadvertent mistake - Same is found to be acceptable - The penalty imposed is unwarranted: CESTAT
- Appeal partly allowed: CHENNAI CESTAT
2018-TIOL-3399-CESTAT-MUM
Zenith Birla India Ltd Vs CCE
CX - Zinc Dross and Ash emerging during the process of galvanisation of MS Steel Pipes and Tubes are not excisable, hence not liable to duty - Tribunal decision in appellant's own case reported as - 2018-TIOL-927-CESTAT-MUM followed - impugned order set aside and appeal allowed with consequential relief: CESTAT [para 2]
- Appeal allowed: MUMBAI CESTAT
2018-TIOL-3398-CESTAT-MUM
Central Railway Vs CCE
CX - Whether the C.I. Roller and separators used by Railway department for transportation, in end unloading 'rake' to unload the welded rails measuring more than 13 Mtr length, whether the same are classifiable under Chapter 84.31 of CETA or under Chapter 86, and whether the same are eligible for exemption under Notfn 62/95 - The items disputed being Separators and CI rollers are specifically used by railways as the same are fitted to the specially designed wagons - As these items falls under Chapter 86 and as such are entitled for full exemption under Notfn 62/95-CE - So far waste and scrap is concerned under Notfn 89/95, as the same arise in manufacture of goods which are fully exempt from levy of duty are also held exempt - Thus, impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
CUSTOMS
2018-TIOL-3404-CESTAT-BANG
V K Mohammad Ali Vs CC
Cus - Certain quantity of gold and some amount of foreign currency was seized from the appellant - SCNs were issued proposing to confiscate the gold & currency and also impose penalties - On appeal, the Commr.(A) reduced the quantum of the penalty.
Held - It must be noted that for the goods to be prohibited under the Customs Act, they should have been imported in a manner which contravenes the conditions for import - Admittedly, gold is not prohibited under the Customs Act or other law - It is seen that the appellant did not produce any evidence to show that the goods were properly imported - Hence it can be inferred that the gold was imported without following due process of law & so must be deemed as prohibited goods u/s 2(33) of the Customs Act 1962 - Regarding the option of redemption fine, it is seen from the provisions of Section 125 that the adjudicating authority 'may' permit redemption of the goods - In such case, the Tribunal defer its judgment on the discretion exercised by the adjudicating authority empowered under the statute - The Madras High Court in Commr. of Customs (AIR), Chennai-I Vs. P. Sinnasamy held that if prima facie case of smuggling is made out then it is not for the Tribunal to direct the adjudicating authority to take a certain courrse of action - Hence the findings of the Commr.(A) warrant no intervention: CESTAT (Para 1,2,6.3,7)
- Assessee's appeal dismissed: BANGALORE CESTAT
2018-TIOL-3403-CESTAT-BANG
Gea Westfalia Separators India Pvt Ltd Vs CCE
Cus - During the period of dispute, the assessee imported goods without payment of applicable duty, having availed exemption from duty under DEEC license - The Department alleged that the assessee did not furnish any evidence proving that it fulfilled its export obligation - Hence it alleged violation of the provisions of Notfn No 93/2004 - Duty demand was raised with interest, seeking reversal of benefits so availed - Such demands were sustained by the Commr.(A).
Held - The assessee claimed that its obligation against advance license got subsumed against export obligation of EoU - The assessee's authority is still pending disposal before the licensing authority - It is also not the Revenue's case that the application got subsumed in the assessee's export obligations - The assessee's claim was thrown out without examining it on merits - It is also not the Revenue's case that the assessee tried to dispose off the assets which justifies taking coercive action - Hence the matter is remanded back to the adjudicating authority & the licensing authority is directed to process the assessee's request expeditiously - Appeal allowed by way of remand: CESTAT (Para 1,6,7)
- Assessee's appeal allowed: BANGALORE CESTAT |
