SERVICE TAX

2018-TIOL-3736-CESTAT-DEL

Trilok Singh Khanduja Vs CGST, CE & ST

ST - The assessee is engaged in providing taxable services under category of GTA Services to M/s. Western Coal Field Ltd. - SCN was issued on the ground that assessee was doing loading, transport and unloading of coal from mining under category of Cargo Handling Services - It can be seen from the terms of contract that rates which have been provided to assessee is based on the distance for which transportation of the coal is to be undertaken by service provider i.e. the assessee - The relevant prices is also subject to escalation of transportation rates as per changes in fuel price for the relevant period - This basically signifies that the rates are pre-dominantly for transportation of cargo rather than for handing of cargo - However, before proceeding further the relevant section 65 A of FA, 1994 need to be looked into in detail for classification of service rendered by assessee - The service provided by assessee have rightly been classified in GTA service - This issue has already been examined by Supreme Court in Singh Transporters - 2017-TIOL-249-SC-ST wherein it is held that activity undertaken by assessee of transporting of coal from the pithead of the mines to railway siding is more appropriately classifiable under service head of Transport of Goods by road services - No merit found in the impugned order, same is set-aside: CESTAT

- Appeal allowed: DELHI CESTAT

National Institute Of Banking Vs CC, CE & ST

ST - The assessee is a society promoted jointly by four different Banks like Oriental Bank of Commerce, Punjab & Sind Bank, The Jammu & Kashmir Bank Ltd. and The National Bank Ltd., with the purpose of providing training to the employees of these member Banks - The assessee is also providing training to employees of other Banks in the field of banking which enables the employees to efficiently handle the business of the Banks of which the trainees are staff - By entertaining a view that assessee is providing services under category of "Commercial Coaching or Training" and made taxable under Section 65(105) (zzc), Revenue initiated proceedings against the assessee - Admittedly the decisions on the issue was in favour of assessee and the subsequent setting aside of Tribunal order in the case of Great Lakes Institute Management Ltd. by Supreme Court and the declaration of law by Larger Bench, reversed the earlier views of Tribunal - In such a scenario assessee cannot be held guilty of any suppression or mis-statement, and not discharging his service tax liabilities, in which case the longer period would not be available to Revenue - As the issue stands decided against assessee by Larger Bench decision of Tribunal and as the decision of Larger Bench is binding on the Division Bench, Tribunal cannot proceed ahead to decide the correctness or otherwise of said decision of Larger Bench - As such, Tribunal is not inclined to pass an order on merits by considering the said submission of assessee as the judicial hierarchy system require to follow the law declared by Larger Bench, unless the same is set aside by any Higher Court - The demand falling behind the normal period of limitation is set aside along with setting aside of penalty and the matter is remanded to the Original Adjudicating Authority for re-quantification of the demand falling within the limitation period - Revenue has also filed appeal against the same very order of Commissioner vide which he has extended the benefit of cum-duty to assessee - Said issue is settled by cateana of judgments that while calculating duty demand, the benefit of cum-duty has to be extended to the assessee: CESTAT

- Appeal rejected: ALLAHABAD CESTAT

UP Projects Corporation Ltd Vs CCGST & CE

ST - The assessee had paid service tax on ‘Works Contract service’ provided to various departments of Government of Uttar Pradesh, as vide Notfn 06/2016-ST effective from 01.04.2015, Sl. No. (a), (c) & (f) of the entry 12 of Notfn 25/2012-ST were omitted and the services specified therein, provided to the Government, a local authority or a governmental authority, became taxable - However, vide Notfn 09/2016-ST, the aforesaid exemption was restored by inserting entry 12A in Mega Exemption - Subsequently, assessee in terms of Section 102 of the Act, applied for refunds under Section 11B of CEA, 1944 as made applicable to Service Tax matters vide Section 83 of the Act - The Appellate Authority has observed that Deputy/Assistant Commissioner should not have rejected the refund claims on merits inasmuch as they did not have any jurisdiction - He further observes that they should have rejected the refund claims only on the ground of jurisdiction and should have referred the same to the authority having jurisdiction to pass these refund claims - In spite of observing as above, Commissioner (A) has upheld the impugned orders to the extent of rejecting the refund claims on the ground that the same were filed in the wrong jurisdiction - The question of jurisdiction raised by Revenue is not about the basic jurisdiction of Assistant/Deputy Commissioner to deal with the refund claims - The objection is on area based jurisdiction - If Revenue was of the view that refund claims should have been filed with the jurisdictional officer of the Head Office, they were within their rights to transfer the same to the officer having the proper jurisdiction - Adopting an analogy that if an appeal against the orders of the Lower Authorities is to be filed before Delhi Benches of the Tribunal and same stands filed before the Allahabad Benches, the normal and accepted course of action would be to transfer the appeal to Delhi in spite of rejecting the same on the point of jurisdiction - Impugned order of Commissioner (A) is set aside and matter remanded to the Original Adjudication Authority - In case the officer feels that he does not have the jurisdiction, based upon the area, to deal with the refund claims in question, the same would be transferred to the appropriate authority for further dealing with the same: CESTAT

- Matter remanded: ALLAHABAD CESTAT

CENTRAL EXCISE

2018-TIOL-2572-HC-MUM-CX

Tulasee Bio-Ethanol Ltd Vs CCE

CX - The CESTAT had passed an order dismissing the appeal of assessee which has been challenged in the present appeal - The appellate Tribunal while remanding the proceedings to adjudicating authority for passing a fresh order, has also dealt with the contention of assessee regarding applicability of Section 38A of CEA, 1944 - It would emerge that the pending appeal before Tribunal is an offshoot of earlier order of Tribunal - The appeal before the Tribunal is admitted after the assessee has made mandatory predeposit - Allowing the Tribunal at this stage to proceed further with the appeal, would duplicate the efforts - If the present appeal of assessee was to succeed, the orders consequential to Tribunal's judgment would automatically not survive - It is also brought to notice that the decision of Tribunal in case of Sunrise Structural & Engineering Ltd. was in favour of assessee and it is the Department who is in appeal before High Court - In such circumstances, Tribunal is requested not to proceed further with assessee's appeals, till disposal of the present appeal: HC

- Notice of Motion disposed of: BOMBAY HIGH COURT

2018-TIOL-3732-CESTAT-ALL

Green Gas Ltd Vs CC, CE & ST

CX - The issue relates to denial of Cenvat credit on Cascade/storage tank/cylinders for 'Compressed Natural Gas' on the ground that they have not been used in the factory premises of the assessee - The assessee is a joint-venture between GAIL and IOCL for manufacture of 'Compressed Natural Gas' or 'CNG' - They are also engaged in distribution of 'CNG' at Agra and Lucknow - The manufacture of CNG is not possible without the use of cascades in question which acts as the storage tank for CNG upon its manufacture - Assessee is filling the CNG in 'Light Commercial Vehicle' mounted cascades which are filled inside the factory directly upon manufactures and as such are used both for storage of the manufactured CNG and for its transportation to the daughter stations or the retail outlet - Thus, without usage of these movable or lorry mounted cascades the assessee cannot manufacture and cleared their output namely CNG - Thus, these cascades are in the nature of storage tanks for the manufacture and sale of CNG - Accordingly, they qualify as capital goods under Rule 2(a)(A)(vii) of CCR, 2004 - Accordingly, the impugned order is set aside: CESTAT

- Appeal allowed: ALLAHABAD CESTAT

2018-TIOL-3731-CESTAT-MAD

Jansons Textile Processors Vs CCE & ST

CX - Assessee is manufacturer of cotton textile fabrics and made ups - They were clearing some of final products on payment of duty as per Notfn 29/2004-CE and claimed exemption under notfn 30/2004-CE on other products - W.e.f. 11.05.2008, they opted to clear all the goods claiming exemption under Notfn 30/2004- CE - At the time of exemption, assessee had reversed cenvat credit on inputs held in stock as on 11.05.2008 - After reversal of such credit, assessee still had a balance credit in the cenvat credit account - Department views that even this cenvat credit balance amount should lapse in view of provisions of Rule 11 (3) (ii) of CCR, 2004 - Accordingly, a SCN was issued to them proposing that said balance credit should be treated as lapsed and also proposing imposition of penalty under Rule 15 (2) of CCR -Sub-rule (3) (i) ibid will apply when the assessee opts for an exemption from whole of duty of excise leviable under a notification issued under Section 5A of CEA, 1944 - Sub-rule (3) (ii) ibid will be attracted only to those assessees who are confronted with absolute exemption in respect of final product/s manufactured by them, in which case the entire balance of cenvat credit lying in his account shall lapse and the same shall not be allowed to be utilized for payment of duty for home consumption or for export - Hence, in sub rule 3 (i) ibid, assessee has to 'opt' for exemption whereas in sub-rule 3 (ii) ibid, there is no such option available to assessee and the absolute exemption that may have been brought forth under Section 5A ibid would apply unilaterally to the related final product manufactured by assessee - It is important to note that the law makers have not incorporated the requirement of payment of cenvat credit equivalent to credit taken by the assessee in respect of inputs lying in stock or in process in sub rule 3 (ii) ibid - This is because once the entire cenvat credit account is reduced to naught, there will be no cenvat credit that will be available whatsoever, under sub-rule 3 (ii) ibid, for the assessee to avail - The findings and decision of lower appellate authority to the contrary in impugned order is not on sound legal footing - The impugned order then cannot sustain and is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

2018-TIOL-3730-CESTAT-DEL

Jamna Pharmaceuticals Vs CGST, CCE

CX - The assessee is engaged in manufacture of patent and proprietary medicines and SHASTROKTA medicines - They have been availing SSI exemption from payment of central excise duty up to the turnover of Rs. 1.50 crore's as per Notfn 8/2003 - During audit, it was detected that the assessee during financial year 2008-2009 and 2009-2010 have exceeded the value of clearances beyond rupees four crores - It is a matter of fact that while calculating aggregate value of clearances the assessee have not included the value of goods which were excisable but otherwise exempted vide Notfn 3/2005 - It is also a matter of record that as per the conditions of Notfn 8/2003, the value of exempted goods should have also been included while calculating the aggregate value of turnover in a particular financial year - Assessee have failed to include the value of clearances of SHASHTROKTA medicines in their value of clearances while calculating the turnover for the purpose of deciding whether they need to pay the duty after clearances of more than threshold limit - The provisions of Notfn 8/2003 are very clear that except the clearances as mentioned under para-3A all other clearances need to be included in the aggregate value of turnover for deciding the SSI eligibility under Notfn 8/2003 - Since the clearances of SHASHTROKTA medicines have not been included in total turnover by assessee for the relevant financial years and therefore they have failed to pay central excise duty as per law - Thus, the demand of duty on assessee is legally sustainable however since the assessee have truly declared their value of clearances to the Department vide their letter wherein the value of both the patent and proprietary medicines as well as that of SHASHTROKTA medicines have specifically been mentioned by assessee - Therefore, assessee did not have any intention of evading central excise duty, at the same time, it is found that the charges of suppression, mis-declaration or fraudulent intention with the purpose of evading central excise duty, as is required for invoking the extended time proviso under Section 11A of CEA, 1944 are not available - Demand is barred by period of limitation and therefore same is legally not sustainable: CESTAT

- Appeal allowed: DELHI CESTAT