2019-TIOL-39-HC-MAD-VAT

Arul Rubbers Pvt Ltd Vs Assistant Commissioner (ST)

Whether grievances/contentions raised by the dealer before the CTO by properly filing application under VAT Act, merits to be considered properly before passing appropriate orders - YES: HC

-Case remanded : MADRAS HIGH COURT

2019-TIOL-38-HC-MAD-VAT

Sambavi Properties Vs Joint Commissioner (CT)

Whether when the assessment order was passed based on the reason that the assessee did not respond to the penalty notice, and the AO has imposed penalty thereon without affording any hearing opportunity, then such matter calls for consideration afresh - YES: HC

- Case remanded : MADRAS HIGH COURT

2019-TIOL-37-HC-DEL-VAT

Teleworld Mobiles Pvt Ltd Vs Commissioner of Trade & Taxes

Whether the Commissioner has the power to delegate powers to VAT authorities not below the rank of Assistant VAT Officer, to conduct search/investigation and issue DVAT 50 form - YES: DB.

- Assessee's Writ petition allowed : DELHI HIGH COURT

SERVICE TAX

2019-TIOL-44-CESTAT-MUM + Case Story

CCE Vs Chanakya Mandal Pariwar

ST - Tribunal has not properly considered its observations made in the Stay order while passing the final order - apparent mistake needs rectification - miscellaneous application by Revenue allowed - appeal to come up for hearing: CESTAT [para 3, 4]

- Application allowed: MUMBAI CESTAT

2019-TIOL-43-CESTAT-ALL

Pelican Tobacco India Pvt Ltd Vs CC, CE & ST

ST - The assessee is engaged in manufacture of various brands of Cigarettes falling under Tariff Item 24039920 such as 'Clock', 'Clock-100', 'Fighter', 'Pelican', 'Venus' and 'Vintage' - A search was conducted at factory premises of assessee and at few other places - Subsequent to the same, they recorded various statements and on the basis of investigations and statements recorded assessee was issued with a SCN - Though the Original Authority has not accepted that the unit was under physical control however the provisions of Rule 6 of CER, 2002 and Para 2.2 of Chapter IV of CBEC's instructions and cross examination of officers who were posted in factory and acceptance of the fact by Commissioner that manufacture used to take place only after de-sealing of machines till such machines were re-sealed, Tribunal is satisfied and convinced that the unit was under physical control - Further during recording of his finding in O-I-O, the Original Authority has referred the contents at Para 2.2 of Chapter IV of CBEC's supplementary instructions stating that the checks exercised by officers are as per the instructions contended in commodity manual for cigarette - He has not referred to cigarette manual to know the details about various supervisions the officers posted in manufacturing unit of cigarette factory are supposed to undertake and without examining such detailed instructions Original Authority has come to the conclusion that unit was not under physical control - Such finding of Original Authority is not sustainable - The unit was throughout under the physical control of Central Excise Officers who were posted in the factory of assessee and they were supervising the manufacture and clearance of goods and as provided under Rule 6 of CER, 2002, the Central Excise Officers were assessing duty payable before removal of goods - The investigation did not establish as to from where the raw material such as tobacco was obtained and to whom the goods were cleared and how the money was recovered out of alleged clandestine clearance of such goods - The Central Excise Duty is on manufacture and the clandestine manufacture of cigarette was not possible in view of presence of Central Excise Officers within the factory - Therefore, there are no grounds to establish that the quantity of cigarettes were manufactured by assessee on which demand of about Rs.39 crores was raised - Therefore, impugned order is set aside: CESTAT

- Appeals allowed: ALLAHABAD CESTAT

2019-TIOL-42-CESTAT-AHM

Urja Engineering Ltd Vs CCE & ST

ST - The dispute on merit is that whether the assessee was liable to pay Service Tax prior to 01.05.2006 on service of Erection, Commissioning or Installation - The lower authority has decided the classification of service under Erection, Commissioning or Installation services - As per the amended definition w.e.f. 01.05.2006, Erection, Commissioning or Installation of structures, whether pre-fabricated or otherwise was added w.e.f. 01.05.2006 only - Accordingly, the Service Tax prior to 01.05.2006 was not leviable on the services provided by them - Therefore, it is clear that this service was not covered under definition of Erection, Commissioning or Installation prior to 01.05.2006 - As regard the issue that whether the refund claim is time barred or otherwise, assessee has submitted a letter wherein they clearly lodged their protest on payment of Service Tax on Erection, Commissioning or Installation services - Protest is only an expression of protest which once raised on a particular issue, it will continue till the dispute is settled, therefore, once a letter was filed towards the payment of Service Tax under protest, the protest was in continuation and whatever Service Tax was paid, that will be treated as under protest - Accordingly, time bar will not apply in this case - As regard unjust enrichment, assessee's claim is that since the Service Tax was not paid by their Service Recipient, there is no unjust enrichment - This alone is not sufficient to prove that the incidence of refund claim has not been passed on - As per section 11B, it provides that the refund can be given only when it is proved by the assessee that the incidence of duty/Service tax paid was not passed on to any other person - Therefore, assessee is required to establish that incidence of service tax paid by them was not passed on to any other persons by providing the sufficient evidence - Impugned order is set aside and matter remanded to the Adjudicating Authority for passing a fresh order: CESTAT

- Matter remanded: AHMEDABAD CESTAT

 

 

 

CENTRAL EXCISE

2019-TIOL-41-CESTAT-BANG

Sigma Metaliks Vs CCT

CX - This is an assessee's appeal wherein assessee has challenged the denial of cenvat credit of service tax paid on input services at its Unit-I which is received and utilized in their additional premises (Unit No. II) - They had also challenged the demand of interest under Section 11AA and penalty under Section 11AC of Central Excise Act - The assessee has been canvassing before authorities below that the use of additional premises/Unit-II was within the knowledge of Department - From a perusal of O-I-O, it is found that there is no rejection by Revenue on request of assessee, nor has the adjudicating authority suspected the veracity of letter - Again, the attention of adjudicating authority also was drawn to letter dated 29.01.2010 which is purported to be a declaration in terms of Notfn 214/1986 - Even this letter/declaration has not been doubted by adjudicating authority anywhere in O-I-O, nor has the Adjudicating Authority held that this declaration was not as per Notification - When the Revenue was within the knowledge as early as in 2006 as to the existence of additional unit along with request for registration/permission, the registration/permission for which having not been refused in writing, Revenue cannot claim ignorance of such request and declaration - Apart from alleging mere suppression, the authorities have not pointed out any positive action/inaction, conscious or otherwise, on the part of assessee - Going therefore by the decision of Supreme Court in case of Royal Enterprises , impugned order is not sustainable, same is set aside - The appeal is therefore allowed on the limitation/technical ground alone with consequential benefits if any since going again on merits becomes academic: CESTAT

- Appeal allowed: BANGALORE CESTAT

2019-TIOL-40-CESTAT-DEL

Jindal Steel And Power Ltd Vs CCE & ST

CX - The assessee is engaged in manufacture of various excisable goods and have been availing cenvat credit on duty paid inputs, capital goods and on the tax paid input services under the provisions of CCR, 2004 - During special audit, Department noticed about assessee's clearing the said goods without cover of excise invoices, resultantly, raised the impugned demand - As regards to demand on goods as that of MS angle and MS beam used by assessee for construction of civil structure foundation, it was the onus of Department to prove that goods were manufactured by assessee or that they have availed cenvat credit thereupon but there is no such evidence on record - It being an apparent fact that these goods were removed after being dismantled i.e. they were not treated as generated during the course of manufacture - It is assessee's case that no cenvat credit was also availed on these goods - Department could not have proved otherwise - It becomes clear that note 8(a) of Section XV of Central Excise Tariff is not relevant to such operations and such items are not liable to duty even in accordance of Section 2(f) and Section 3 of CEA, 1944 - The Order confirming this demand is therefore set aside - With respect to goods received by assessee from principal manufacturers for job-work, Notfn 214/86 comes to the assessee's rescue by virtue of which he is not liable for payment of duty on the job- worked goods - Otherwise also, the CA certificate is simultaneously certifying the factum of sending/ receiving goods on/for job-work within 180 days thereof - These documents are sufficient to hold that demand has wrongly been confirmed by authority below and thus is liable to be set aside - Goods returned to the suppliers due to discrepancy or defect without availing cenvat credit - In absence of discharge of onus on part of Department with the simultaneous presence of cogent evidence by assessee which has miserably been unnoticed / ignored by Adjudicating Authority, the authority below has committed a blatant error while confirming the remaining demand as well - The goods for which demand has been confirmed though were cleared on gate passes but there is ample evidence on record to show that these goods were not manufactured by assessee and were such on which assessee had not availed any cenvat credit - Confirmation of demand is therefore opined unsustainable - The Order under challenge is therefore set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2019-TIOL-39-CESTAT-MUM

Saurashtra Engineering Corporation Pvt Ltd Vs CCE

CX - Appellant had manufactured and cleared excisable goods on job work basis without payment of duty by claiming benefit of notification 83/94-CX - as per the said notification the principal manufacturer had to file necessary declaration with the jurisdictional Assistant Commissioner in this regard but which had not been filed - Department demanding CE duty and same confirmed by lower authorities - appeal to CESTAT.

Held: In claiming exemption from payment of duty, burden lies on the assessee to establish that they have complied with all the necessary conditions prescribed under the notification and their case falls within the four corners of the exemption notification - moreover, declaration prescribed to avail the benefit cannot be considered to be a mere procedural formality - Apex court decisions in Eagle Flask Industries - 2004-TIOL-74-SC-CX and Dilip Kumar & Co. - 2018-TIOL-302-SC-CUS-CB relied upon - demand has, therefore, been rightly confirmed - as appellant had cleared the goods without payment of duty and without disclosing the same in their statutory returns, larger period of limitation has been correctly invoked - however, as regards mandatory penalty, the benefit of reduced penalty of 25% ought to have been given and which is now extended subject to the fulfillment of conditions laid down u/s 11AC of CEA, 1944 - Appeal partly allowed: CESTAT [para 7]

- Appeal partly allowed: MUMBAI CESTAT

 

 

CUSTOMS