ST - The assessee, among other activities, are engaged in providing various services - On verification of accounts, it was found that the assessee though collected service tax, had not deposited the same to Government for periods from 2006-07 to 2008-09 - A SCN was issued proposing to demand service tax along with interest and also for imposing penalties - Assessee has confined the contest to the penalties imposed - The assessee, though initially were paying service tax and were filing returns properly, had defaulted payment of service tax and filing of returns after 2005-06 - The company was going through much financial hardship and it took some time for them to recover and for that reason, the service tax liability got accumulated - Nothing is brought out from evidence that there was any positive act of suppression with an intention to evade payment of service tax - Other than the delay caused due to financial crisis, no material found to establish an intention to evade payment of service tax - In Lawson Travel & Tours (I) Pvt. Ltd. - 2014-TIOL-2295-HC-MAD-ST, the High Court held that when the assessee faced financial crisis due to criminal breach of trust committed by their sub-agent and thereafter, paid the service tax voluntarily, the penalties imposed have been rightly set aside invoking Section 80 - The assessee having paid entire demand of service tax along with interest, the prayer for setting aside the penalties merits consideration, especially when there is no evidence to show that the delay/default was due to any wilful act to evade payment of duty - This is a fit case to invoke Section 80 since the assessee has put forward reasonable cause for failure to discharge service tax liability - Therefore, penalties imposed under Section 76 and 78 of FA, 1994 are set aside without interfering with the penalty imposed under Section 77 of the Act ibid: CESTAT

- Appeals partly allowed: CHENNAI CESTAT

ST - The assessee is engaged in providing Construction Service - During audit, it was noticed that assessee have entered into an agreement with M/s. Shyamala Pictures and Hotel (P) Ltd. (land owner) for construction of a residential complex and commercial complex - As per the agreement, the land owner handed over the land to assessee for the purpose of construction of commercial and residential complex - It appeared to department that said activities undertaken by assessee are taxable under category of "Commercial or Industrial Construction Service" and construction of "Residential Complex Service" (RCS) - Issue as to whether a composite contract involving provision of service as well as transfer of property in goods could be covered under CICS and RCS from the date of introduction of service tax levy on such services stands finally settled by Supreme Court in case of L&T Ltd. 2015-TIOL-187-SC-ST - The very same issue is also squarely covered by recent decision of this Bench in the assessee's own case - Following the same, impugned order cannot then sustain and is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

CX - The assessee is engaged in manufacture of oil - Revenue entertained a view that assessee's final product is refined vegetable oil inasmuch as all the processes laid down under the Prevention of Food Adulteration Act, 1954 stands adopted by them - The SCN culminated into an order passed by original adjudicating authority confirming the demands and imposing penalties on assessee as also on the other co-noticees - The said order was appealed against by assessee before Commissioner (A) on various grounds - The assessee categorically took a stand that since August, 1997, they had started production of distilled oil after installing a specialised plant and technology imported from Japan - They contended that they manufacture distilled oil out of imported vegetable oil which cannot be converted into refined edible oil - The imported oil is tested at the point of clearance from the Custom authorities and in one of the instances of such imported inedible mixture of vegetable oil, the sample taken was got tested by the Dy. Commissioner in October, 2005 in Mumbai Municipal Council Lab, which has reported that the oil mixture cannot be converted into edible oil - They never purchased rise bran oil which is essential raw material for the manufacture of edible vegetable oil - No sample has been drawn by the Revenue to ascertain whether the oil manufactured by them was edible grade or not - The fatty acid present in the imported mixture of oils can only be removed at a temperature of 200 degree centigrade and they are not equipped to maintain such high degree temperature in their factory so as to convert the imported oil into an edible oil - On going through the findings of Commissioner (A), it is found that the same are detailed findings and the appellate authority's reliance on the laboratory test report conducted by Revenue itself at the time of import of the goods is appropriate - As far the said report, the imported oil can never be converted into edible oil and the said report defaces the Revenue's entire stand - The Revenue in their memo of appeal has not advanced any arguments to rebutt the above findings of Commissioner (A) - No infirmity found in impugned order, same is upheld: CESTAT

- Revenue's appeal rejected: ALLAHABAD CESTAT

CX - The assessee availed CENVAT credit on the strength of invoices issued by M/s Good Luck Empire who is the first stage dealer - M/s Good Luck Empire purchased goods from a manufacturer namely M/s Tribhuvan Industries Pvt. Ltd. - The department carried out an investigation wherein it was revealed that one particular vehicle purportedly used for transportation of goods covered under invoice was not used as per the statement of transporter for transportation of goods from manufacturer, M/s Tribhuvan Industries Pvt. Ltd to M/s Goo Luck Empire - On this basis, the department contended that since the goods were not transported from manufacturer to first stage dealer - There is no supply of goods from first stage dealer to assessee - On this basis, credit in respect of 7 consignment was disallowed - The entire case is based on one statement of transporter, that too in respect of one consignment between manufacturer M/s Tribhuvan Industries Pvt. Ltd. and M/s Good Luck Empire - As regard statement of director of assessee's company, there is no admission regarding wrong availment of credit without receipt of the goods - The assessee has recorded the receipt of goods in their records - The payments were made against invoices of a first stage dealer, M/s Good Luck Empire - There is no investigation carried out on the further transportation of goods from first stage dealer to the assessee - Regarding consignment note since the service tax on transportation was paid by assessee that itself establish the transportation of goods - Merely because consignment note was not produced, it cannot be said that goods were not transported - Since the entire case is on the basis of one transaction between the manufacturer and the first stage dealer which is not relevant with the assessee, any evidence of that transaction cannot be used against the assessee, particularly, when no tangible evidence was unearthed in the transaction between the dealer M/s Good Luck Empire and the assessee - Despite the visit of officers to assessee's factory, no discrepancy was noticed - Therefore, no reason found to deny the Cenvat Credit - There is no evidence to conclude that assessee have availed Cenvat credit without receipt of inputs - Since the appeal decided on the facts of the case, Tribunal is not going into the aspect of limitation - Therefore, impugned order is set aside: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

CX - The assessee who is engaged in manufacture of aerated water without containing sugar, aerated water and sweetening beverage were also availing the facility of CENVAT credit of duty paid on inputs, capital goods and service tax paid on input service - It is clear that assessee had adjusted higher amount from CENVAT credit amount towards discharging duty liability for months of July and November 2012 - Later, realizing the mistake, they had taken suo moto credit of excess CENVAT amount debited by them - The department has denied suo moto credit alleging that there are no proper documents for availing credit for the second time - This allegation by department found erroneous for the reason that for the second time, the assessee have taken the credit only because they had made a wrong book entry at the initial stage - This does not amount to availing credit for second time - The Larger Bench of Tribunal in case of BDH Industries Ltd. - 2008-TIOL-1211-CESTAT-MUM-LB, had held that the assessee cannot take suo moto credit - However, the Karnataka High Court had earlier held that the mistake of debiting amount in CENVAT credit can be corrected by assessee later - Further, the jurisdictional High court in case of ICMC Corporation Ltd. - 2014-TIOL-121-HC-MAD-CX had occasion to analyse the very same - This decision was followed by High Court of Allahabad in Krishnav Engineering Ltd. - 2016-TIOL-939-HC-ALL-CX - Following the said decisions of High Courts, allegations in the SCN cannot sustain - The impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

CUSTOMS

2018-TIOL-2629-HC-MUM-CUS

Cus - The issue relates to rate of anti dumping duty - This duty is levied under Section 9(A) of CTA, 1962 - The proceedings for appeal under Tariff Act are governed by sub-section (8) of Section 9(A) of Tariff Act - Further the questions as proposed challenges the impugned order to the extent as it held that no anti dumping duty is leviable on imported goods - The extent of relief sought against the order of Tribunal does not decide the jurisdiction / maintainability of appeal under this Act - The proposed order by Court will not decide maintainability of appeal - As the issue relates to rate of duty by virtue of Section 9A(8) of Tariff Act read with Section 130 of the Act, the Revenue would have to approach the Supreme Court in terms of Section 130 E of the Act: HC

- Appeal disposed of: BOMBAY HIGH COURT

2018-TIOL-2628-HC-AHM-CUS

Cus - Petition challenges query memo dated 13.11.2016 issued by the Superintendent of Customs, Old Tune Port, requesting to supply the documents/information listed thereunder; as well as the communication dated 16.11.2018 issued by the Superintendent of Customs, Old Tuna Port, informing the petitioner that in respect of the Shipping Bill No.106/2018-19 dated 13.11.2018, certain representations have been received by that office raising the issues enumerated thereunder, which is under consideration of the Customs House, Kandla and further informing the petitioner that after consideration of the same, a decision will be taken in the matter, which will be communicated to it:

Held: Insofar as the query memo dated 13.11.2018 is concerned, the petitioner has already complied with the same and hence, the challenge thereto no longer survives - in the absence of non compliance of any statutory provision, the respondent no.3 is not justified in keeping on hold the shipping bill of the petitioner - the representations received by the respondent no.3 being extraneous to the provisions of the Customs Act, ought not to have deterred him from performing his duties in accordance with law - the impugned communication dated 16.11.2018 whereby the shipping bill of the petitioner has been kept on hold, therefore, cannot be sustained - the petition succeeds and is, accordingly, allowed - the impugned communication dated 16.11.2018 is hereby quashed and set aside - the respondent authorities are directed to process the shipping bill of the petitioner in accordance with law without any further delay - applications made by one Animal Welfare Foundation and by Akhil Bharat Krishi Go Seva Sangh respectively, seeking to be impleaded as parties to the main petition - court is not inclined to entertain the applications as the petition challenges the action of the respondent No.3 and is not in the nature of a public interest litigation: HIGH COURT [para 7, 9, 17, 18, 20]

- Petition allowed/Civil Applications rejected: GUJARAT HIGH COURT

2018-TIOL-3801-CESTAT-DEL