SERVICE TAX

2018-TIOL-3902-CESTAT-MAD

Qsource Global Consulting Pvt Ltd Vs CCE

ST - The assessee is engaged in recruitment of manpower for software companies and call centres - During audit of accounts, it was noticed that assessee had only partly discharged the service tax for month of February, 2009 - Further, no service tax was paid for period from March, 2009 to December, 2009 - After due process of law, the Original Authority confirmed the demand, interest and imposed equal penalty under Section 78 and penalty under Section 77 also - The assessee is contesting only the equal penalty imposed under Section 78 of FA, 1994 - The SCN was issued on 12.04.2010 - It can be seen that assessee has paid a substantial amount prior to issuance of SCN - Case of assessee is that in Manpower Supply Recruitment Services, there is much problem of receiving the payments in due time and therefore, they could not discharge the service tax within time - That on being pointed out, assessee has made all efforts to raise funds and pay up the entire service tax liability - The High Court in the case of M/s. Tirupathi Fuels Pvt. Ltd. 2017-TIOL-1075-HC-AP-CX has observed that the law does not treat all cases of suppression of facts alike - This indicates that when the short payment is due to some wilful act of suppression, fraud or collusion only the penalty would be attracted - Apart from non-filing of ST-3 returns and non-payment of service tax, the Department has not been able to point out any deliberate act on the part of assessee to evade payment of service tax - The imposition of penalty under Section 78 is unwarranted and is set aside - M.A. filed by Department for change in cause title is allowed - Registry is directed to amend the cause title as prayed for: CESTAT

- Appeal partly allowed : CHENNAI CESTAT

2018-TIOL-3901-CESTAT-MAD

Sana Engineering Company Vs CCE & ST

ST - Pursuant to audit conducted of assessee, it was noticed from ledger accounts and trial balance that assessee had collected amounts towards use of cranes and torex with operator, manpower and supervision, either on single use basis or on monthly or specified period basis - Department took the view that such charges are collected attract levy of service tax under the category of BSS; that however assessee had not mentioned in ST-3 Returns for years 2007-08 and 2008-09 about such services provided and nor have they discharged service tax liability thereon - The main ground on which the tax demand has been confirmed and upheld by both the lower authorities is based on the wordings in the BSS, 'any service provided in relation to business or commerce' - Though the definition of BSS is no doubt an inclusive definition, it only means that the type of activities that would come within the fold of that category will necessarily have to be of the kith and kin or similar to the examples listed therein - Thus, for any other activity to find a fit within this definition of 'BSS' such activity should pertain to the same class or category or genus as the list of examples given in the definition - This is the basic all important maxim of ejusdem generis - In the circumstances, by no stretch of imagination can renting of cranes be called an activity of the same genre as the other examples listed in the definition of 'Business Support Service' in Section 65 (104c) of the Act - This being so, the attempt to rope in impugned activity of assessee within the ambit of BSS cannot sustain - If the argument adopted by lower authorities that all services for business and commerce will fall within the scope of Section 65 (104c) is to be accepted, there would not have been a need for the legislature to carve out so many types of services, which in the most, are performed only in relation to business or commerce - The impugned order is set aside: CESTAT

 

 

CENTRAL EXCISE

2018-TIOL-3904-CESTAT-AHM

DCM Shriram Consolidated Ltd Vs CCE & ST

CX - The issue involved is eligibility of Cenvat Credit in respect of M.S. Channels, Joists, MS Angles, Beams, HC Coils, HR Sheet Plates and Plates - The assessee intimated the department that they intend to avail the cenvat credit in respect of inputs for manufacturing of capital goods/ inputs (consumed capital goods) - It is further noticed that assessee have been filing Annexure along with ER-1 return showing detailed information of invoice No., date, description of inputs and amount of Cenvat credit to the department - In ER-1 return also, the attachment of this annexure is mentioned - From the annexure of Cenvat credit, description of input has been mentioned - With these information provided to department, nothing more than that is required for department, if at all they wish to issue SCN, nothing prevented to department from issuing the SCN within the normal period of one year at least from filing of the return - The period involved is July and August 2009 whereas the SCN was issued on 17.07.2012 which is much after the normal period of one year - Moreover, this issue was highly debatable and the matter was referred to Larger Bench in Vandana Global Ltd. - Despite the Vandana Global case decided the matter against assesse, the same was differed by Chhattisgarh High Court - In this legal position no malafide intention can be proved against assessee - Considering the same set of issue and facts in the various judgments, it was held that demand for extended period cannot be raised - Therefore, the demand is clearly hit by limitation - Since, the case is decided only on limitation, Tribunal is not going into the other facts and legal issue - The impugned order is set aside: CESTAT

- Appeal allowed : AHMEDABAD CESTAT

2018-TIOL-3903-CESTAT-ALL

CC & CE Vs Doaba Rolling Mills Pvt Ltd

CX - The assessee is engaged in manufacture of Ingots based upon electricity consumed by them, which in turn was based upon technical opinion of one Shri Dr. Batra of IIT, Kanpur, Revenue entertained a view that assessee had indulged in clandestine manufacture and clearance of their final product - Apart from making general comments that the Adjudicating Authority has not applied its mind to the facts of the case inasmuch as there was enough evidence on record to confirm the demand against the assessee, Revenue did not contend that the declaration of law in the case of R.A. Castings is not applicable to the facts of the present case - The demand was primarily based upon electricity consumption, which issue stands decided right upto the Supreme Court in the case of R.A. Castings - As such, no justifiable reason found to interfere in impugned order of Commissioner: CESTAT

- Revenue's appeal rejected : ALLAHABAD CESTAT

 

CUSTOMS

CIRCULAR

cuscir53-2018

Procedure to be followed in cases of manufacturing or other operations undertaken in bonded warehouses under section 65 of the Customs Act