SERVICE TAX
2018-TIOL-3604-CESTAT-MUM + Case Story
CST Vs Reliance Communication Infrastructure Ltd
ST - Transaction between respondent and assignee is one of assignment/sale of receivables for a consideration and not one of providing taxable service of OIDAR - It is not even the case of the department in the show cause notice that any amount in respect of the amounts so assigned has been collected by the respondents - transaction per se between the respondents and assignee for which a consideration of Rs.297 Crore has been received is not in respect of telecom services provided by the respondents to its customers - transactions between the respondent and its customers are distinct from the transaction between the respondents and assignees - receivables may have arisen on account of some taxable services provided by M/s RIL or M/s RCOM or M/s RCIL (respondent) to their customers, but the sale of assignment of the said receivables cannot be said to be in respect of the provisions of the said taxable services - It is not the case of the department that in the present case the transaction sought to taxed is in respect of the services provided by respondents to its customers either directly or indirectly - Revenue appeal dismissed: CESTAT [para 4.1, 4.2, 4.3, 4.6, 4.10]
- Appeal dismissed: MUMBAI CESTAT
2018-TIOL-3598-CESTAT-MUM
Commissioner of Central GST Vs ITS Digitech Pvt Ltd
ST - Issue is whether the respondent has filed the refund claims u/r 5 of the CCR within the period of one year from the expiry of the quarter for which refund claim is preferred - both the lower authorities have held that the period of one year needs to be calculated from the day of the export invoice and not the quarter for which refund has been filed - Revenue appeal before CESTAT.
Held: Issue is no longer res integra - Larger Bench of the Tribunal in the case of Span Infotech Pvt. Ltd. - 2018–TIOL-516-BANG-LB has held that relevant date for purposes of deciding the time limit for consideration of refund claims u/r 5 of the CCR may be taken as the end of the quarter in which the FIRC is received, in cases where the refund claims are filed on a quarterly basis - impugned order does not need any interference - Revenue appeal is rejected: CESTAT [para 4, 5]
- Appeal rejected: MUMBAI CESTAT
2018-TIOL-3597-CESTAT-HYD
Essar Constructions India Ltd Vs CCE, C & ST
ST - The two services which are provided by assessee are construction of Tailing Dam for M/s Essar Steel and desilting of a tailing dam for M/s NMDC - The first work involved both supply of material as well as provision of service - The services on this account are clearly not liable to Service Tax before 01.06.2007 in view of the Apex Court judgment in case of Larsen & Toubro - Therefore, the demand on this account is set aside - As far as the services related to construction of Tailing Dam post 01.06.2008 are concerned, the demands are not made under the head "Works Contract Service" but are under the head of "Site Formation and Clearance, Excavation and Earth Moving and Demolition Service" and hence they also set aside as well - The second service provided by assessee was desilting the tailing dam of NMDC and transporting the silt to their dump which involved excavation of the material and moving it - This could have been covered by the definition of site formation services as there was no composite works contract and excavation was clearly covered within the meaning of site formation services - However, excavation and earth moving work related to renovating or restoring of water bodies are specifically excluded by definition of site formation services - Since these services are rendered with respect to the dam in question which is a water body, they get excluded and no service tax is payable on these services - The Board circular itself has clarified that site formation services are liable to service tax only if they are provided independently and not as a part of complete work - In respect of Tailing Dam constructed by assessee, the work was not carried out in isolation but as part of the composite contract for construction of the dam - Therefore, the service tax under the head of site formation services cannot be levied even on this ground - Consequently, no penalties are imposable: CESTAT
- Assessee's appeals allowed: HYDERABAD CESTAT
CENTRAL EXCISE
2018-TIOL-3606-CESTAT-DEL
KEC International Ltd Vs CCE AND GST
CX - The assessee is engaged in manufacture of galvanized transmission towers - In their factory, they fabricate various steel angles and plates, galvanize the same and clear the same upon payment of duty to the site, where the transmission towers are erected - For purposes of erection of such transmission towers, assessee also requires various other components such as nuts, bolts, washers and other accessories, which are procured from various other manufacturers, who supply them directly to the site - The Department took the view that the assessee is required to discharge duty on the entire value of the transmission tower contract including the value of components delivered directly at the site - Tribunal has considered the identical issue of transmission towers in the case of Unitech Power Transmission Limited, which stands decided in favour of assessee - No justification found for including the value of nuts, bolts, washers, etc., in the assessable value - The impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT 2018-TIOL-3596-CESTAT-MAD
Giordano Fashions India Pvt Ltd Vs Commissioner of GST & CE
CX - The Revenue issued a SCN to the assessee alleging inter alia that assessee had taken CENVAT Credit on certain goods purchased which were not used in manufacture of their final products; the CENVAT Credit taken was therefore not legally correct and proper - It is found from perusal of SCN that there is no allegation of suppression or fraud or misstatement - In fact, the only strongest allegation against the assessee is that the fact of availing ineligible credit came to the knowledge of Department only after the verification conducted by the internal audit wing of the Department, which had been duly reciprocated in good faith by assessee by accepting and filing its December 2012 ER-1 return which remains undisputed - It is also an undisputed fact that assessee had reversed the unutilized CENVAT Credit since it is nowhere disputed, either in SCN or in impugned Order as to the availability of excess CENVAT Credit - It is found from the documents furnished along with appeal memo that the assessee, in its response to SCN, had categorically submitted that the ineligible CENVAT Credit was never utilized, rather the same was available as balance in its CENVAT Credit Account and that as of February 2016, the excess balance amount was lying in its CENVAT Credit - Said categorical statement has neither been controverted nor examined or confronted by both the authorities - The action of the Revenue in demanding interest and penalty is not proper and hence, same is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2018-TIOL-3595-CESTAT-MUM
Ceat Ltd Vs CCE
CX - CENVAT - Welding Electrodes consumed in the factory of the appellant wherein manufacturing activity took place is an ‘input' in terms of the rule 2(k) of the CCR, 2004 and credit is admissible - Tribunal decisions in ACC Ltd. - 2016-TIOL-113-CESTAT-MUM and Pratibha Ispat Pvt. Ltd. - 2017-TIOL-2806-CESTAT-MUM , Rajashree Cement - 2017-TIOL-3629- CESTAT-BANG relied upon - impugned orders set aside and appeals allowed: CESTAT [para 4, 5]
- Appeals allowed: MUMBAI CESTAT
2018-TIOL-3594-CESTAT-MUM
Jai Jyotawali Steel Pvt Ltd Vs CCE
CX - Clandestine manufacture and removal - Allegation is that raw materials viz. M S Ingots received from suppliers were not taken into stock and the CTD bars were removed without ever recording the production - alleged illicitly manufactured goods were quantified by application of standard input output norms to the consumption of electricity and furnace oil - Duty demand confirmed by adjudicating authority (AA), therefore, appeal to Tribunal - Appellant contending that various submissions pertaining to unusually high fuel and electricity consumption had been offered but the AA disregarded the same.
Held: It is observed that the AA instead of examining the justifications offered characterised that the same were not convincing as a businessman cannot allow to continue a loss due to manpower for such a long period while being superficially dismissive of other reasons that were found to be prevalent every year and in every manufacturing unit - as regards penalty imposed u/r 26 on the broker Nitin Khandelwal, it is seen that the appellant was not present for personal hearing and instead of relying upon the records, the AA has based his finding on the submissions recorded in the personal hearing before his predecessor in office - both actions of AA are not in conformity with the principles of natural justice - findings stand vitiated owing to breach of mandatory requirement of adjudication proceedings - consequently, impugned order set aside and matter remanded for fresh adjudication: CESTAT [para 6, 7]
- Matter remanded: MUMBAI CESTAT
CUSTOMS
2018-TIOL-3593-CESTAT-MUM
CC Vs La Tim Lifestyle And Resorts Ltd
Cus - Notification 102/2007-Cus - Refund of SAD -Revenue in appeal contending that refund is not admissible since the respondent had failed to furnish any certificate with conclusive evidence that the burden of 4% Special Additional Duty claimed as refund has not been passed on to their customers; that no mention of fact of ineligibility of 4% SAD as credit is made in respective sales invoices.
Held: Issue is settled in favour of the respondent by the Larger Bench in the case of Chowgule & Company Pvt. Ltd. - 2014-TIOL-1191-CESTAT-MUM-LB where it is held that condition 2(b) of the notification 102/2007-Cus requiring an endorsement that no credit of SAD shall be admissible is merely procedural - insofar as issue of unjust enrichment is concerned, the Chartered Accountant's certificate produced by appellant clearly states that the amount claimed as refund has been shown in their books of account as receivable and the same has not been passed on to the buyers - no contrary evidence has been produced by Revenue to contradict the said certificate nor the findings of the Commissioner(A) have been rebutted with material particulars - no merit in the contention of the Revenue, therefore, Revenue's appeals are dismissed: CESTAT [para 6, 7]
- Appeals dismissed: MUMBAI CESTAT
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