SERVICE TAX

CC, CE & ST Vs Suzlon Energy Ltd

ST - The assessee imported Technical Know-how, engineering designs & drawings during the period of dispute - The Revenue sought to classify such import within 'Design Service' & raised duty demand accordingly - On appeal, the Tribunal held that such engineering designs & drawings were included as part shipment in accordance with contract for wind generators - The same is established through bills of entry filed by the assessee - It also noted that taxation of goods & services are mutually & explicitly conceived levies - Thus it was held that the same activity cannot be taxed twice, namely as goods as well as service - Hence the demand was set aside.

Held - Appeal admitted - Tag with CA No 4814 of 2009 - Hearing expedited.

- Revenue's appeal admitted: SUPREME COURT OF INDIA

2018-TIOL-3592-CESTAT-BANG

Tuljabhavani Transport Vs CCT & CE

ST - Assessee is registered with Service Tax Department as provider of service under category of 'Supply of Tangible Goods Service' - On the basis of objections in audit report, a SCN was issued alleging that service tax liability due for quarter ending September 2011 was not paid and on pointing out it was paid vide challan dated 09.01.2012 and the return was filed on 31.01.2012 - As far as availment of cenvat credit is concerned, documents produced by assessee did not tally with each other and in both the documents, engine number is different and only the chassis number is matching - Further the amount of cenvat credit is also different in both the documents - In view of this discrepancy, the issue of availment of cenvat credit is remanded to original authority to verify the said document and assessee is directed to clarify the discrepancy which has occurred in these two documents - As far as imposition of penalty under Section 78 is concerned, assessee has paid duty along with interest before the issuance of SCN and as per Section 73(3), once the duty is paid along with interest before the issue of SCN, then in that case the Revenue should not issue SCN unless there is a allegation of fraud or suppression of facts with intent to evade payment of tax - Further, Tribunal in case of Bhoruka Aluminum Ltd. - 2016-TIOL-3060-CESTAT-BANG on an identical issue set aside the penalty on the ground that the service tax with interest was paid before the issuance of SCN - Therefore, by following the ratios of said decisions, the imposition of penalty under Section 78 is not warranted and therefore, penalty under Section 78 is set aside and for the purpose of determining the correct amount of cenvat credit, matter is remanded to the original authority who after giving an opportunity to the assessee will decide the quantum of cenvat credit which the assessee is entitled to get: CESTAT

- Matter remanded : BANGALORE CESTAT

2018-TIOL-3589-CESTAT-BANG

CCE, C & ST Vs Sherbrooke Aluminium Products

ST - The assessee is engaged in construction of doors, windows and partitions of commercial buildings and residential complexes or units as per the contracts - The doors/windows/partitions are fixed along with buildings at the time of construction of walls and become integral part of buildings - The assessee has registered themselves for service tax under categories of 'Commercial or Industrial Construction Service' and 'Construction of Residential Complex Service' and paid service tax after availing the benefit of exemption/abatement in terms of Notfn 15/2004-ST - The department proposed to categorize the services rendered by assessee under completion and finishing services in relation to 'Commercial or Industrial Construction Service' and 'Construction of Residential Complex Service' - CBEC have clarified vide its Circular that post construction, completion and finishing services are specifically included in definition of 'Commercial or Industrial Construction Service' as the activity undertaken by assessee appears to be before the completion of complex or buildings - The Commissioner (A) has also dropped the contention of department - For a final appreciation of the facts of the case and to classify the services rendered by assessee under appropriate heading, matter remanded to the original adjudicating authority to decide afresh: CESTAT

-Matter remanded : BANGALORE CESTAT

CENTRAL EXCISE

2018-TIOL-3591-CESTAT-AHM

Ganga Jamuna Metals Vs CCE & ST

CX - The main assessee was manufacturer of non-ferrous metals and was using Aluminum in various shapes as inputs - On an investigation carried by officers of DGCEI, on the basis of investigations carried out at M/s Shreeji Aluminum Pvt Ltd and various scrap dealers, it was noticed that the main assessee had availed Cenvat Credit on the basis of five invoices issued by one of the scrap dealer M/s Silverline Metals indicating the description of goods as 'Aluminum Extruded Profiles' - After recording various statements and further investigation, SCNs were issued seeking to deny cenvat credit to the main assessee on the ground that they had not received goods indicated in invoice raised by Silverline Metals purportedly purchased from Shreeji Aluminium Pvt Ltd. - First Appellate Authority as well as Adjudicating Authority in impugned orders has recorded that the main assessee availed cenvat credit on Aluminum extruded Profiles on the basis of five invoices issued by Silverline Metals, Bhavnagar, though they have received Aluminum scrap - There is nothing on record to show that goods mentioned in the invoices issued by Silverline Metals (Aluminum Extruded Profile) were not scrap or damaged nor it is mentioned that they are new Aluminum Extruded Profiles - On perusal of invoices, said invoices do not indicate that they are scrap but at the same time, it is the contention of main assessee before lower authority and before the Tribunal that he had not received Aluminum Extruded Profile; but only received waste and scrap from M/s Silverline Metals - Damaged Aluminum Extruded Profiles can also be Aluminum waste and scrap for manufacturer of such profiles i.e. Shreeji Aluminium Pvt Ltd. - The argument of main assessee before lower authorities that Aluminum Extruded Profiles can also be melted and used in manufacture of Aluminum ingot is not controverted by lower authorities - On perusal of invoices, it is found that said invoices indicates the value of Aluminum profiles for discharge of duty as on per kg basis which would be mean that the goods which were received under said invoices from Silverline Metals were not and cannot be used as Aluminum Extruded Profiles as value of Aluminum Extruded Profiles is will be far more than the rate as mentioned in invoice - The disputed invoices also indicate the price range of Rs 103-110/- per kg - It is a known factor that Aluminum profiles are not sold on per kg basis but based upon the dimensions of said profiles - Further, there is no dispute as to the fact that Aluminum profiles, even if they are purchased or procured, can be melted in furnace of assessee and the melted mass can be converted into Aluminum Ingots, is technically possible even the claim of main assessee that they had received damaged Aluminum Extruded Profiles, cannot be summarily dismissed - In view of foregoing, it has to be held that assessee had received Aluminum Extruded Profiles which is considered by than as Aluminum waste and scrap as consumption in factory premises is not being disputed - In view of this, the confirmation of demand of cenvat credit as ineligibly availed is incorrect and unsustainable - As regards the penalties imposed on other assessee, Adjudicating Authority has imposed penalties under provision of Rule 26(2) of CER, 2002 for the violation of, if any, which took place during the period March 2006 to Oct 2006 - The ratio of the decisions of High Court of Punjab and Haryana in case of Mini Steel Traders would directly apply, wherein it is settled that provisions of Rule 26(2) can be invoked only after 1.3.2007 for imposing of penalties - On this ground itself penalties imposed on other assessees set aside: CESTAT

- Appeals allowed : AHMEDABAD CESTAT

Usha Enterprises Vs CCE

CX - Assessee is engaged in manufacture and clearance of Brass and Copper Sheet, Circles and Frame for which they are registered with Department and are availing facility of CENVAT credit - M/s M/s NSIPL and M/s GE are engaged in trading of excisable goods - DGCEI in its investigations brought out that one Sh. Amit Gupta had been operating seven registered dealer companies where Sh. Amit Gupta was passing on inadmissible CENVAT credit to numerous manufacturers and dealers without delivery of goods - M/s GJSPL were found to be one such recipient of invoices - On the basis of information received from M/s DGCEI, the premises of M/s UE, M/s NSIPL, M/s GE and other manufacturers/dealers were visited - M/s UE were issued SCN proposing to demand and recovery of CENVAT credit with interest besides proposing penal action - Penalty was also proposed upon M/s GE and M/s NSIPL - The impugned order has been passed in violation of statutory provisions - The decision of Principal Bench of this Tribunal in case of similarly placed assessee is applicable in the present case and the same has been subsequently relied upon by the Commissioner (A) in his order in the case of M/s Lakshmi Industries & others - As far as assessee is concerned, there is no lapse and violation of any CENVAT Credit Rules in purchasing the material from registered dealer as assessee have maintained statutory records and the payments have been made to suppliers through banking channels and assessee have paid duty on the final product which has not been disputed by department - Further, there are no allegations of any serious violation against assessee in SCN which is primarily against Sh. Amit Gupta with whom the assessee have no direct concern - The cases of assessees are squarely covered by decision of Division Bench of Tribunal in case of Shri VK Bhuraria and others 2018-TIOL-1884-CESTAT-DEL , which has been subsequently followed by Commissioner (A) also in the case of M/s Lakshmi Industries & others - By following the ratio of said decision, impugned order is not sustainable and therefore same is set aside: CESTAT

- Appeals allowed : CHANDIGARH CESTAT