SERVICE TAX
2018-TIOL-3455-CESTAT-HYD
ICFAI Academy Vs CCE, C & ST
ST - The appellants are various branches of an academy engaged in managing educational & vocational training institutions & to aid in the establishment & maintenance of universities & study centres for imparting higher education - The universities run by the appellants are recognized by the UGC & the respective State Acts of respective States - In earlier proceedings, some of the appellants were found to be taxable under 'Commercial training & coaching centre' - Upon remand, the Department was directed to look into whether or not the appellants were eligible for exemption under Notfn No 09/2003-ST, based on the premise that the appellants classified as vocational training institutes - Later, the adjudicating authority denied such exemption as well as benefit under Notfn No 09/2003 and Notfn No 03/2010.
Held: From a perusal of Circular No. DOF/334/1/2010-TRU dated 26.02.2010, it is seen that its provisions are squarely applicable to the appellants herein as the certificates issued by the appellants have approval of law - Similar issue was resolved in the cases of ITM International Pvt Ltd Vs CST and CCE Delhi Vs IILM Undergraduate Business school and M/s Rosalnds Mediretta Institutional foundation Vs CST - As the certificates issued by the appellants are recognozed by the State Acts, the Board Circular and their validity is established in several precedent cases, the issue in the present case is settled in favor of the appellants - Moreover, the Tribunal's findings in the assessee's own case, granting benefit under Notfn No 09/2003 & Notfn No 24/2004, too is applicable to the present case - Hence the O-i-O in challenge merits being set aside: CESTAT (Para 2,8,9,10,12)
- Assessees' appeals allowed: HYDERABAD CESTAT
2018-TIOL-3454-CESTAT-MAD
Sri Agarsen Steel Industries Vs CST
ST- The assessee are dealing in MS angles, MS squares, MS rounds, MS sheets and MS rectangle bars - On audit, it was found that assessee incurred considerable expenditure towards freight inwards and outwards but has not paid service tax on the same - Duty demand was raised - In addition, duty demand was raised as it was noticed that assessee was liable to pay service tax under clearing and forwarding agent service for the period in dispute - The adjudicating authorities confirmed the demand and Commr. (A) upheld the same as well as imposed penalty u/s 78 of FA - Hence, the present appeal by assessee challenging the penalties.
Held: The demand has been quantified in the SCN basing upon the verification done by the Department as well as the details furnished by the assessee - Mere failure to pay service tax cannot be presumed as suppression of facts with intent to evade payment of service tax - Furthermore, the assessee was a dealer and not a provider of output service - Therefore, liable to pay service tax under RCM - Hence, the penalty imposed requires to be set aside: CESTAT (Para 2, 6,7)
- Appeal Partly Allowed: CHENNAI CESTAT
CENTRAL EXCISE
2018-TIOL-3456-CESTAT-ALL
Annpurna Plastics Products Pvt Ltd Vs CCE
CX - Assessee is engaged in manufacture of Poly Propylene Glasses - The present appeal stands filed by them against impugned order vide which the comissioner confirmed the duty on the allegations and findings of clandestine removal alongwith confirmation of interest and has further imposed penalty of identical amount under Section 11 AC of CEA, 1944 - Such findings are primarily based upon the records seized by visiting officers including labour contractor record - The assessee's authorized representative as also labour contractor has admitted that the payments reflected in said record are in respect of packaging of assessee's final product - Inasmuch ay the same have not been found to having entered in RG-1 records, the findings of clandestine clearances stand arrived at by the adjudicating authority - The Commissioner has himself observed that the reference to electricity consumption is only to corroborate the other evidences - Similarly, in respect of the project report and the capacity of the machine installed in the factory, he has observed that the same are corroborative evidences to the main allegations, which are primarily based upon the entries made in the packaging register and the labour contract register - Further, though the statements of various persons including the statement of the Director cannot be held to be sufficient evidence, on its own, but when read with the other evidences on record, leads to the inevitable conclusion of assessee indulging in clandestine activities - Inasmuch as, the Revenue has been able to establish the procurement of excess raw materials, excess payments made to the labourers, the excess electricity consumption and the excess installed capacity, the cumulative effect of all these evidences would lead to the inevitable conclusion that the assessee have manufactured and cleared clandestinely their final product - No infirmity found in the findings of adjudicating authority - Accordingly, the impugned order is upheld: CESTAT
- Appeal rejected: ALLAHABAD CESTAT
2018-TIOL-3453-CESTAT-MAD
CCE Vs Amrutanjan Healthcare Ltd
CX - Assessee is engaged in manufacture of Ayurvedic Medicaments (Pain Balm) - During verification of their records, it was found that they have availed CENVAT on input services on advertisement expenses, agency work, advertisement - They have another unit at Uppal, Hyderabad manufacturing dutiable Ayurvedic goods - The services on which credit was availed was common to both these units - The department was of the view that they are not eligible to avail 100% input service tax credit and that they ought to have taken ISD registration and distributed the credit proportionately to the Uppal Unit as well as the assessee unit - Undisputedly, the invoices are issued in the name of assessee company who has availed the entire credit - Rule 7 of CCR, 2004 as it stood during the relevant period uses the word "may" and not "shall" - The word "shall" was used only in 2016 as argued by assessee - Therefore, no merit found in the appeal filed by the department - The impugned order is upheld: CESTAT
- Appeal dismissed: CHENNAI CESTAST
CUSTOMS
NOTIFICATION
dgft18pn046
Amendments in Para 2.79A and 2.79B of Handbook of Procedures for issue of export authorization for "Stock and Sale" of SCOMET items CASE LAW
2018-TIOL-3452-CESTAT-CHD
Ghaio Mall And Sons Vs CC
Cus - Assessee is the importer of DTEX Semi Dull Nylon6 Multifilament Yarn - They filed refund claim on account of additional duty of custom levied under Section 3(5) of Customs Tariff Act, 1975 paid at the time of import of yarn in terms of Notfn 102/2007-Cus - As per the Notfn 102/2007-Cus as amended vide Notfn 93/2008-Cus, additional duty of customs is exempted if the goods are imported for the subsequent sale - Further, assessee have filed the refund claim within one year from the date of subsequent sale - Further, this issue is squarely covered by decision of High Court in case of Sony India Pvt Ltd. 2014-TIOL-532-HC-DEL-CUS, wherein it has been held that the time limitation of one year specified under the Notification shall not apply until and unless the basic provisions of Section 27 of the Act dealing with refunds are made applicable - In view of the decision of High Court of Delhi in case of Sony India Pvt Ltd., the issue is squarely covered in the favour of assessee and by following the ratio of said decision, impugned order is set aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT |
