SERVICE TAX

2018-TIOL-3609-CESTAT-HYD

Hindupur Bio Energy Pvt Ltd Vs CCT

ST - The assessee is a supplier of Ready Mix Cement (RMC) and is providing site formation and clearance, excavation, earth moving and demolition services - On investigation, authorities found that they have short paid the service tax on services and they have also not paid service tax on advances received from their customers - The assessee had subsequently discharged the service tax liability on advances received by them - It appeared that there was a delay in paying service tax - Accordingly, the Original Authority after following due process of law, confirmed the demand of interest on service tax on advances received by them and also imposed a penalty under Section 77 of the Act, 1994 - The service tax law does not provide any limitation for demand of interest on service tax - However, Supreme Court has, in the case of T.V.S. Whirlpool Ltd., laid down the law that period of limitation which applies to the principal amount also apply to the interest thereon - This judgment was passed under the Customs Act which also did not have the period of limitation for demand of interest during the relevant period - The ratio of this judgment has been followed in several orders passed by Tribunal - Respectfully following the same, demand of interest is liable to be set aside on the ground of limitation of time because not only is there no evidence of elements required to invoke extended period in SCN, there is not even any allegation that the interest has not been paid by reasons of fraud, collusion or willful misstatements: CESTAT

- Appeal allowed: HYDERABAD CESTAT

2018-TIOL-3608-CESTAT-KOL

CCE & ST Vs Hindustan Steel Works Construction Ltd

ST - The assessee entered into a contract with Steel Authority of India for re-laying steel work, carpeting and widening of road and repair and maintenance of the roads - They had provided the services by way of management, repair and maintenance of roads to Bokaro Steel Plant for the period October, 2005 to March, 2006 for a fixed consideration within the Steel Plant premises - Case of Revenue is that the assessee is providing repair and maintenance of road services and were not showing service and value thereof in ST-3 Returns submitted by them - Issue is no more res-integra in view of various decisions of High Courts and the Tribunal - The FA, 1994, has been amended by introducing Section 97(1) wherein special exemption has been granted for management, maintenance and repair of roads for the period from 16.06.2005 to 26.07.2009 - The period is subsequent to 16.06.2005, when the entries of for management, maintenance and repair of roads, came into existence - The Commissioner (A) has dealt with the issue in detail - Since, no infirmity found in the impugned order, same is accordingly sustained: CESTAT

- Appeal dismissed: KOLKATA CESTAT

2018-TIOL-3607-CESTAT-MAD

CCE Vs Loyal Textiles Ltd

ST - The disputed issue relates to refund of Cenvat credit of Service tax availed and utilised for export of goods in terms of Notfn 41/2007-ST, which prescribes a period of 60 days from the end of the quarter during which exports have taken place for filing refund claims - The issue of limitation in terms of Notfn 41/2007-ST is no more res Integra - In the decision of M/s. Midex Global Pvt. Ltd. - 2015-TIOL-2377-CESTAT-DEL Tribunal observed that the 60 days period provided in the notification have to be strictly adhered to - Similarly, in case of M/s. Spark Engineering P. Ltd. - 2013-TIOL-631-CESTAT-DEL it was observed that when the notification in question prescribes the limitation period, the same cannot be extended by referring to the other general provisions of limitation provided under the Act - Reference can also be made to other Tribunal decision in case of M/s. Sakay Overseas - 2013-TIOL-1022-CESTAT-DEL - The Tribunal in the case of M/s. Knitex Textiles Pvt. Ltd. has taken into consideration a subsequent Notfn 17/2009-ST, which extended the period for filing refund claims to one year and has observed that the exports undertaken prior to 07.07.2009 and the refund claims being filed within one year would be covered by the notification - In view of the said decision of the Tribunal in M/s. Knitex Textiles Pvt. Ltd. impugned order is set aside and matter remanded to the original authority for deciding the refund claim afresh: CESTAT

- Matter remanded: CHENNAI CESTAT

CENTRAL EXCISE

2018-TIOL-3612-CESTAT-DEL

Gatiman Auto Pvt Ltd Vs CCE AND CGST

CX - A SCN was issued to assessee alleging that they had cleared parts of tractors during period 2009 to March 2010 and did not pay tractor cess and hence contravened the provisions of Section 9 (1) of Industrial (Development and Regulation) Act, 1951 r/w Ministry of Industry SO No. 55(E) dated 19.01.1993 - The issue is to decided as to whether the tractor cess is leviable on the part and component of tractor cleared by assessee - It is clear that part and accessories of the tractor cannot be compared with that of the tractor itself - Therefore, the tractor cess is not leviable thereon in terms of Notification - For the aforesaid conclusion, Tribunal also draw support to CBEC Circular in the case of parts and accessories of the automobile which clearly goes in favour of the assessee - Impugned order set aside: CESTAT

- Appeal allowed: DELHI CESTAT

KCP Ltd Vs CCE

CX - The assessee is manufacturer of machinery and parts for sugar and cement industry - They are also engaged in execution of orders for installation of sugar plants located in Vietnam for which assessee export machinery and components of sugar machinery manufactured in their factory along with bought out items on which central excise duty is paid by them - They availed MODVAT/CENVAT credit on bought out items and exported the same under bond as inputs / capital goods cleared 'as such' - The department was of the view that bought out items such as components and assemblies procured from other manufacturers were not used for manufacture or even intended for use in manufacture within the factory of assessee and therefore assessee is not eligible to avail credit on bought out items which were merely exported as such - The department contends that the issue stands covered by judgment of Supreme Court in assessee's own case in 2013-TIOL-42-SC-CX - It is very much clear from the judgment of Supreme Court that the issue was considered on merits and the same was held against the assessee - Pursuant to this judgment, the two matters remanded by Tribunal as well as SCNs which were kept in call book were taken up for adjudication - The Commissioner then passed O-I-O - Assessee had filed appeals before the Tribunal which was disposed - The Tribunal had remanded the matter for limited purpose of requantifying after looking into the pleas raised by assessee - The Tribunal had categorically held that the issue stands decided by judgment of Apex Court - Thus, the remand order being for limited purpose, assessee cannot again reagitate the issue at this stage - The Commissioner has fully considered the directions of remand by Tribunal - The undeniable fact is that earlier order of this Bench, in assessee's own case had concluded, "that bought out items both inputs and capital goods in question cannot be considered as eligible capital goods for availing MODVAT credit" - The remand directions given by Tribunal in that order was only for 'computing and confirming the amount of irregularly availed MODVAT credit" based on the conclusion reached by them - This decision has been upheld by Supreme Court in 2013-TIOL-42-SC-CX - On the subsequent occasion, when same matter came up to this Tribunal, the Tribunal had once again gone into this issue and inter alia held that the matter has reached finality by the decision of Supreme Court - Judicial propriety requires the court to follow Apex Court view in assessee's own case - Such conduct is enjoined by the principle of 'stare decisis' namely, 'to stand for things decided' - Hence as a lower court, this court is definitely required to follow the precedent on an issue, when it is already decided by Apex Court, as it has been in this case: CESTAT

- Appeals dismissed: CHENNAI CESTAT

2018-TIOL-3610-CESTAT-MAD

Murugappa Morgan Thermal Ceramics Ltd Vs CCE & ST

CX - The assessee is the manufacturer of Ceramic Fibre products and are availing Cenvat credit on inputs, capital goods and input services - The issue in dispute concerns denial of Cenvat credit on input services availed by assessee for rent paid in respect of their head office - It is seen from records that the very Court has considered the identical issue wherein, it has been inter-alia held that non-registration as ISD should not deprive the assessee of substantial benefit of credit - In the assessee's own case, the Tribunal has held the matter in favour of assessee - Respectfully following the ratio of aforesaid Tribunal's order, matter remanded to the original authority for denovo consideration on the same lines as has been directed in Tribunal's order: CESTAT

- Matter remanded: CHENNAI CESTAT