2018-TIOL-3896-CESTAT-MAD

Mas Logistics Vs PR CCT & CE

ST - Assessee is registered with service tax department under category of C&F Agent and for GTA services - They rendered Logistic Support service to shipper namely M/s. JETL and received consideration in convertible foreign exchange - While executing such service, they availed various input services for export of logistics services and hence filed a refund claim under Rule 5 of CCR, 2004 for the quarter ending 30.09.2016 - Same was rejected - The main contention put forward by department is that the assessee is an intermediary and therefore the place of provision of service is within India - Assessee was engaged by M/s.H&H, China - So also, it is admitted that assessee have provided services to H & H, China - The only conclusion therefore possible is that H & H, China is the intermediary if at all, and not the assessee - The recipient of logistic services being situated outside India, and the consideration having received in convertible foreign currency, the transaction has to be treated as export of service - It is brought out from the statement as well as from perusal of records that assessee has facilitated the re-export of goods - The input services availed for doing such return of goods to China are services availed for exports of goods only - Therefore, the rejection of refund alleging that input services having not been availed for export of services cannot sustain - Assessee is eligible for refund of cenvat credit availed on input services used for export of logistic services - The impugned order upholding the rejection of the refund claim is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

2018-TIOL-3895-CESTAT-MAD

Modern Engineering Constructions Vs CCE

ST - Assessee was engaged in providing 'Commercial or Industrial Construction Services' - The department was of the view that assessee is liable to pay service tax on construction services for constructing the buildings for educational institutions and hospitals - SCN was issued demanding service tax along with interest and also for imposing penalties - From the definition, it is clear that only when the building is used for commercial purpose, the demand of service tax is sustainable - The Tribunal's decision in Banna Ram Choudhary 2017-TIOL-2405-CESTAT-DEL has analyzed the very same issue holding in favour of assessee that when the construction of buildings are not used for any commercial purpose, the levy of service tax cannot sustain - Following the same, demand in this case is unsustainable - In the result, impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

 

2018-TIOL-3894-CESTAT-CHD

Lally Motors Pvt Ltd Vs CCE

CX - The assessee is registered under category of 'Authorized Service Station' and 'Business Auxiliary Service' - The allegation in SCN is that the assessee had wrongly used input service credit on services which were used both in respect of taxable services of authorized service station and for trading activities - The department has alleged that trading activity was an exempted service - Admittedly, the trading has been categorized as an exempted service only w.e.f. 01.04.2011 - The trading activity not being a service at all, the assessee was not required to maintain separate account as the provisions of sub-rule 3 of Rule 6 of CCR 2004, could not be applied prior to 01.04.2011 - Hence, the view of department that assessee was not entitled to Cenvat credit for not maintaining separate account is not correct. At the same time, credit could not be allowed against trading activities since it was neither a service falling under FA, 1994, nor "manufacture" under CEA, 1944 - Therefore, the portion of input service credit availed for trading activity is not admissible - On the question of limitation, assessee have admittedly argued that the issue was clearly of interpretation, which was finally settled by way of insertion of explanation under Notfn 3/2011-CE (NT) - In similar set of facts, in case of Krishna Auto Sales 2015-TIOL-2994-CESTAT-DEL , this Tribunal has held that extended period is not invokable in such a case - The extended period is not invokable in the present case - As there is no element of suppression or mis-declaration or intent to evade service tax, penalty under Section 78 of FA, 1994 is not imposable: CESTAT

- Appeal partly allowed: CHANDIGARH CESTAT

2018-TIOL-3893-CESTAT-HYD

Raasi Refractories Ltd Vs CCE, C & ST

CX - Assessee was alleged to have availed irregular CENVAT credit on invoices issued by SRPL without receiving inputs into their factory premises - It was noticed by lower authorities that the main assessee was purchasing refractory/Mortar from SRPL and the goods were delivered directly to RINL (earlier VSP) for use, while availing CENVAT credit of Central Excise duty paid by SRPL; it is also noticed by authorities that RRL had issued invoices in the name of RINL for refractory bricks/refractory mortar purchased from SRPL and discharged Central Excise duty on said goods - SCN was issued for demand of ineligible CENVAT credit availed, as lower authorities of view that RRL could not have availed the CENVAT credit on such goods purchased from SRPL - It is undisputed that the amount of CENVAT credit availed by assessee of the duty paid on refractory bricks which were procured by RRL from SRPL, were delivered to RINL (VSP), on the invoices raised by assessee, which indicated discharge of duty - In short, even assuming that assessee has availed ineligible CENVAT credit, they have paid back the same to the Government of India by discharging duty liability on bricks which were delivered to RINL (VSP) - Admittedly, the transaction was back to back and there was no manufacturing activity of the bricks in RRL is factory for which Central Excise duty needs to be discharged - The ratio in case of Tripura Containers Pvt. Ltd. squarely covers the issue in favour of assessee - Respectfully following the same, demands raised along with interest and also the penalty imposed is set aside - Since no demand arises on assessee, question of imposing any penalty does not arise on the individual Shri Sanjay Aggarwal: CESTAT

- Assessee's appeal allowed: HYDERABAD CESTAT

2018-TIOL-3892-CESTAT-DEL

Ramayana Ispat Pvt Ltd Vs CCE & ST

CX - The assessee is engaged in manufacture of stainless steel and MS Ingots - The dispute is regarding the entitlement to take Cenvat Credit on various goods which are claimed by assessee to have been used in manufacture of capital goods - The disputed inputs are said to consist of Old structures, dismantled but procured by assessee as 'Scrap' - They have also procured and used various other structural items such as MS Channel/ Angles/ Bars - The question begging a decision is whether goods procured by assessee, which are admittedly in the form of scrap, have been used in fabrication of capital goods such as EOT Crane Slag Crusher Machine, Pollution Treatment Plant, Mould Stand and Cable Tray - This fact has been certified by an independent Chartered Engineer vide his certificate - The reason why such a certificate has not been accepted by the lower Authority is that the certificate describes the inputs as 'MS Steel Scrap' - The inputs on which such Cenvat Credit has been availed have been classified under 73089010 - These cover goods in the form of fabrication structures - The use of the term 'MS Steel Scrap' by the Chartered Engineer cannot discount the value of certificate - The Chartered Engineer has certified the usage of such inputs in fabrication of capital goods - This establishes that the inputs procured have in fact been used in the fabrication of capital goods and hence are entitled to the Cenvat Credit - Revenue has brought nothing on record to either disapprove such certificate or bring on record any evidence contrary to the same - Consequently, the quantity of inputs amounting to 525.5 MT will be entitled to the Cenvat Credit by assessee - Any credit availed by assessee in excess of said quantity will be liable to be recovered: CESTAT

- Appeal allowed: DELHI CESTAT

 

CUSTOMS

PUBLIC NOTICE

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DGFT hikes MEIS benefit to 10% for export of Onions

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Increased validity and utilisation of the norms ratified by Norms Committee (NC) under Para 4.12 of Hand Book of Procedures 2015-2020 of the Advance Authorization obtained under para 4.07, by other applicants of advance authorisations

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Allocation of preferential export of sugar to USA under TRQ for the year 2018-19 -Clarification on definition of raw sugar

CIRCULAR

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Preparation of Minutes of Norms Committees (NCs).

CASE LAWS

2018-TIOL-3898-CESTAT-BANG

CC Vs Ashirvad Agro Processors

Cus - The appeal has been filed by Revenue against impugned order, whereby the Commissioner (A) has allowed the appeal of assessee and directed the lower authority to refund the SAD amount - After going through the decision of Bombay High Court as well as Delhi High Court, the Commissioner (A) has also considered the decision of Sony India Pvt. Ltd. 2014-TIOL-532-HC-DEL-CUS as well as decision of Gulati Sales Corporation 2017-TIOL-2477-HC-DEL-CUS and other decisions of High Court and thereafter has come to the conclusion that no time limit is prescribed for claiming the refund of SAD - The Tribunal in case of Purab Textile Pvt. Ltd. has also relied upon the decision in case of Sony India Pvt. Ltd. and has held that limitation as prescribed under Section 27 of Customs Act is not applicable in case of refund of SAD - Further, the Division Bench of Tribunal also in case of Gulati Sales Corporation relied upon the Sony India Pvt. Ltd. and has held that the limitation of one year as prescribed in Section 27 of Customs Act is not applicable - Since the Division Bench of Tribunal has relied upon the decision of Sony India Pvt. Ltd. as also the Tribunal in case of Purab Textile Pvt. Ltd. has also relied upon the decision of Sony India Pvt. Ltd. , therefore by following the ratios of said decisions, no infirmity found in impugned order, same is upheld by dismissing the appeal of Revenue: CESTAT

- Appeal dismissed: BANGALORE CESTAT

2018-TIOL-3897-CESTAT-AHM

Dipen Overseas Vs CC

Cus - The common issue involved is; whether the goods imported by assessee is classifiable under Customs Heading 63051090 as other Jute Bags as claimed by Revenue or under CTH 63101030 as used Gunning Cutting as claimed by assessee - In bill of entry, assessee had declared the description as Used Jute Bags under classification of 63051090 - After assessment of bill of entry, the assessee challenged the said assessment order - The Commissioner (A) held that since the assessee themselves declared the goods as Used Jute Bags under CTH 63051090, therefore, they cannot challenge said assessment - The assessee have raised a new issue which is indeed a question of law that in case of M/s Dipen Overseas CVD is not chargeable as Used Jute Bags imported by assessee are not manufactured in India - However, both the lower authorities had no occasion to deal with this important issue - As regard the appeal of M/s Dipen Trading Company, the Commissioner (A) dismissed the appeal as non maintainable - Tribunal absolutely disagree with the contention of Commissioner (A) - It is settled law by Supreme Court in case of Priya Blue Industries Ltd 2004-TIOL-78-SC-CUS , that the assessment order of bill of entry is an appealable order - Therefore, the order of Commissioner (A) inasmuch as dismissed the appeal of M/s Dipen Trading Company as non maintainable is not sustainable - Since all the issues involved mixed question of law and fact, the matter as a whole should be considered afresh, accordingly, matter remanded to adjudicating authority: CESTAT

- Matter remanded: AHMEDABAD CESTAT