ST - The assessee is an exporter of silk fabric and cushion covers and is a merchant exporter - He is registered with Service Tax Department for rendering services as goods transport agency - The refund claims have been filed for Service Tax by assessee to Courier Service, Clearing and Forwarding Agent Service and CHA Service for facilitating the exports of silk fabric and cushion covers - The relevant Notfn under which the present rebate claims have been filed is Notfn 41/2012-ST which prescribes the conditions for claiming the refund of Service Tax paid on transport services which are received by an exporter to goods and used for export of goods - The rebate claim has been rejected by both the authorities on the ground of limitation of time - The appeals relates to rebate which the assessee is claiming under Notfn 41/2012-ST - Further, in view of amendment carried out by FA, 2015 vide which the jurisdiction to entertain such an appeal has been ousted - In view of specific amendment in Section 86 of FA, 1984 vide Finance Act, 2015, appeals are not maintainable before Tribunal and the appeal lies before the Revisionary Authority in accordance with the provisions of Section 35EE of CEA, 1944 - All the appeals are dismissed being not maintainable before Tribunal; the assessee is at liberty to approach the Revisionary Authority in accordance with provisions of the Act and the Revisionary Authority without raising the objection of limitation will decide the matters on merits: CESTAT

- Appeals dismissed: BANGALORE CESTAT

ST - The assessee has paid an amount to their holding company for maintenance of SAP computer software system - Revenue authorities views that amounts paid by them under this contract to the holding company are liable for service tax under reverse charge mechanism under category of maintenance or repair services - Provisions of Sec.66A of FA, 1994 was brought into statute w.e.f. 18.04.2006, which enabled the Government to tax the amounts under reverse charge mechanism holding service recipient as service provider - This law is now settled by Apex Court in case of Indian National Ship Owners Association - 2009-TIOL-129-SC-ST by holding decision of High Court of Bombay in - 2008-TIOL-633-HC-MUM-ST wherein it is held that before enactment of Sec.66A, there was no authority vested with Government to levy service tax on amounts paid for services received from outside India - By following the same, for the period from 01.01.2005 to 18.04.2006, service tax liability would not arise on assessee under reverse charge mechanism - On plain reading of clarification given by Board, it would mean that amendment to word that "goods" would also include software and will be leviable under management, maintenance or repair service w.e.f. 01.06.2007 when the said explanation was brought in to the definition of management, maintenance or repair service - Similar issue came up before Tribunal in case of Larsen and Tubro Infratech Ltd - 2017-TIOL-1396- CESTAT-MUM, the Bench was considering the taxability of contract entered by assessee therein with various purchasers for maintenance of IT infrastructure - It is submitted and not disputed by revenue that from 01.06.2007, assessee has started discharging appropriate Service Tax liability on payments made by them under reverse charge mechanism - Period post 19.04.2006 to 31.05.2007, demands confirmed by adjudicating authority are unsustainable and is set aside: CESTAT

- Appeal allowed: HYDERABAD CESTAT

CX - Assessee is the manufacturer of bulk drugs and had availed CENVAT credit on certain input services, which according to department were not eligible - It is evident from the copies of invoices enclosed with SCN that the civil construction work undertaken was in the nature of composite works contract with some amount being added as sale of goods and VAT being paid and for the remaining amount, service tax being paid, considering it as the service element of the composite works contract - The assessee had argued earlier that they can prove through agreements, the contracts which they had with their service providers do not fall under the category of works contract - But they have not produced any such agreements and the invoices show that they were works contracts - Therefore, it is concluded that they have no evidence to show that these invoices do not pertain to works contract - As regards to limitation, assessee had disclosed the full value of credit which they have taken in the ER-1, but they have not disclosed the components of the credit which they have taken - The ER-1 during relevant period also did not provide details of the credit taken - The extended period of time under Section 11A can be invoked in this case - Consequently, fine and interest are also liable to be imposed on assessee - O-I-A does not need any interference: CESTAT

- Appeal rejected: HYDERABAD CESTAT

CX - The assessee is engaged in manufacture of refined edible oil - They were availing benefit of Sl.No. 244 (c) to Notfn 6/2002-CE in respect of their finished products - In terms of said Notfn in order to avail 'nil' rate of duty, refined edible oil are required to be manufactured out of refined edible oils on which appropriate duty of excise or additional customs duty has been paid - The assessee received RBD Palmolein oil on which CVD is paid by their customers and they receive the goods on job work basis for packing in their factory - The RBD Palmolein oil after packing and re-packing was cleared without payment of duty by mentioning on the invoices "imported RBD Polmolein oil-CVD paid and packed and sent on job work basis without payment of Central Excise duty" - On scrutiny of Bills of entry, it was noticed that RBD Palmolein oils were imported claiming exemption under Notfn 45/2002-Cus. issued under DEPB scheme - The department was of the view that since the CVD is debited in DEPB scrip, there is no payment of duty on imported goods and therefore assessee is not eligible for exemption under Sl.No. 244 (C) of Notfn 6/2002 as it states that the inputs should have suffered incidence of appropriate duty of excise or additional duty of customs as the case may be - SCN was issued raising the allegation and for demand of central excise duty along with interest and also for imposing penalties - The issue to be decided is whether the central excise duty exemption under Notfn 6/2002 Sl.No. 244 (C) is eligible for RBD Palmolein oil when the RBD Polmolein oil is imported on debit of DEPB scrip - The issue stands decided in cases of Tanfac Industries Ltd. - The demand cannot sustain, same is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

CX - The assessee company is engaged in manufacturing Corrugated Boxes, Cartons & other articles of Paper & Paper Board - It availed Cenvat credit on the duty paid on inputs such as Semi Kraft Paper, Virgin Kraft & Duplex Paper/Board - The assessee's factory was visited by officers of the anti-Evasion wing who conducted checks and verifications - They noted shortage of raw materials & raised SCN in this regard - Later, statements of various persons were also taken based on which the Revenue alleged that the assessee availed ineligible credit based on fraudulent invoices & without any actual receipt of goods - The Revenue also alleged clandestine removal of goods based on parallel invoices & that the assessee evaded payment of duty by mis-declaring goods - Duty demands were raised with interest & penalty along with personal penalty on the assessee's director.

Held: The duty demands based on the statements are unsustainable - Statements by themselves are not sufficient evidence unless they are corroborated or where the depositor is cross-examined - The Revenue also failed to prove any flow-back of money - The consideration for the raw material has been made through cheques & there is no evidence to support the Revenue's allegations - Hence denial of credit on this sole ground is unsustainable - The assessee availed credit on Duplex paper & must show use of raw material in manufacturing final product - The Revenue did not establish as to how much raw material of Duplex Board is required in the manufacture of one unit of final product & has not made any reference to the other raw materials, which are also required for the manufacture of final product - Hence denial of the credit to assessee, which has been availed by reflecting the same in Cenvat records, is not sustainable - Regarding the demands raised based on the parallel invoices, while the Commr.(A) upheld them on grounds of them not being contested, the assessee claimed to have challenged such demands - Hence the matter merits remand in this regard - Moreover, personal penalty imposed on the assessee company's director is set aside as no evidence is put on record to prove any mala fide intent on part of the director: CESTAT (Para 2-10)

- Assessee's appeals partly allowed: ALLAHABAD CESTAT

Cus - Assessee imported "Alumunium Scrap" and filed bill of entry - The Original Authority held that there has been mis-declaration in description of goods and imported goods required specific import license and therefore, confiscated the goods and also enhanced value of the goods for purpose of assessment of Customs duty - In Customs Tariff, Heading 7602 deals with "Aluminium Waste and Scrap" and that Sub-heading 76020010 covers "Aluminium Scrap as per ISRI Code" whereas Sub-heading 76020090 covers "Other Waste and Scrap" - As per 1997 ISRI Specification, "Aluminium Scrap Radiators" was covered by ISRI Code word "Talk" and the same is covered by Sub-heading No.76020010 - ISRI specifications have undergone some changes in 2011 - However, The Customs Tariff was not aligned with the reversed ISRI specifications - All the goods imported by assessee were classifiable under ISRI specifications of 1997 and the same were falling under Sub-heading 760020010 - As a result, there has been no mis-declaration - The value was enhanced by assessing officer without following the procedure laid down by Customs Act, 1962 - It was held by Tribunal in assessee's own case that before enhancing the assessable value, revenue has to first establish that the price is not the sole consideration and such exercise was not carried out in the present case - Therefore, impugned order is not sustainable: CESTAT

- Appeal allowed: ALLAHABAD CESTAT