2019-TIOL-43-HC-MAD-VAT

PCK Buderus India Special Steels Pvt Ltd Vs Assistant Commissioner (CT)

Whether the demand made in respect of previous assessment years which were remanded at the Stage of Writ Court for re adjudication, can be sustained in absence of any fresh assessment order - NO: HC

- Case disposed of: MADRAS HIGH COURT

SERVICE TAX

2019-TIOL-06-SC-ST

UoI Vs Indian Association Of Tour Operators

ST - The Delhi High Court held that Rule 6A of the Service Tax Rules, 1994 is ultra vires of the Finance Act 1994 - It was also observed that even after July 01, 2012, services provided by Indian tour operators to foreign tourists, which had been paid for in convertible forex would not attract levy of service tax.

Held - Delay condoned - Special leave to petition granted: SC

- Revenue's SLP admitted: SUPREME COURT OF INDIA

2019-TIOL-54-CESTAT-MAD

Visshu Constructions Vs CCE

ST - The assessee had undertaken projects to various clients and had availed abatement under Notfn 1/2006-ST - Further verification revealed that assessee paid the service tax partly by cash and partly by utilizing the input service tax credit account - As per Notfn, assessee can claim abatement only if they do not avail CENVAT Credit - Department was of the view that assessee is not eligible for abatement - On said allegation, SCN demanded an amount as short payment of service tax for the period 2007-08 and for the wrongly availed abatement as well as CENVAT Credit on input services - Assessee has mainly argued on the ground of limitation - The period involved is from 2008-09 to 2009-2010 - The SCN is issued on 17.03.2011 invoking extended period - On perusal of ST-3 returns, it is seen that assessee has disclosed that they are availing the benefit of Notfn 01/2006 - As per the Notfn, the benefit would not be eligible if assessee avails credit on inputs/input services - However, assessee has availed credit on certain input services - The same has been disclosed by them in ST-3 returns by Column 5B - Thus, the Department was put to knowledge and it cannot be said that assessee had suppressed any facts from the Department with an intention to evade payment of service tax - The demand is hit by limitation as there are no ingredients satisfying the invocation of extended period - The impugned Order is set aside on the ground of limitation: CESTAT

- Appeal allowed: CHENNAI CESTAT

2019-TIOL-53-CESTAT-MAD

PL Worldways Ltd Vs CST

ST - The assessee is engaged in rendering services in booking of air tickets - During audit, it emerged that assessee had received commission from M/s. Amadeus India Pvt. Ltd. for booking of tickets through CRBS offered by said company - Department took the view that assessee was required to pay service tax on said incentive received since the same was BAS - Proposals confirmed - In the Grounds of Appeal / Statement of Facts filed by assessee before Commissioner (A), seen in appeal paper book, that there was an agreement between them with Amadeus, whereby the latter was used in entire reservation agreement in Indian subcontinent and received loyalty incentive per segment booked on Amadeus - In the grounds of appeal filed before this forum, assessee have argued that there is no promotion of service provided by Amadeus software - At the same time, assessee have not countered the findings of lower appellate authority that the agreement is a conditional agreement and that loyalty incentive will only be paid on tickets booked in airlines specified by Amadeus based on achievement of segment volumes - Tribunal is unable to fathom how in spite of such agreement between assessee and Amadeus, there could have been any confusion that they were promoting the business of the latter and in such a situation how there could be any bonafide belief that the services are not in the nature of BAS - There is no infirmity in order passed by lower appellate authority confirming the invocation of extended period - At the same time, it has to be kept in mind that there was some interpretational confusion that prevailed in respect of taxability of impugned services - This being so, while sustaining the demand of service tax along with interest thereon and the penalty imposed under section 77, there is reasonable cause for failure to pay service tax and hence the penalties imposed under sections 76 and 78 are set aside by invoking Section 80 of the Finance Act: CESTAT

- Appeal partly allowed: CHENNAI CESTAT

 

 

 

CENTRAL EXCISE

2019-TIOL-07-SC-CX

Commissioner of Central Goods and Service Tax Vs Shree Cement Ltd

CX - the assessee is a leading manufacturer of Cement - Its factories in Rajasthan operate under the Rajasthan Investment Promotion Scheme, wherein it received subsidies - It had to deposit VAT, CST or SGST at the applicable rate with the Govt upon which it would be entitled to disbursement of subsidy - Such subsidy is sanctioned & disbursed in Form 37B & such challan in Form VAT 37B can be utilized to pay VAT liability for subsequent periods - The Revenue opined that the VAT liability discharged by using the investment subsidy granted in Form 37B could not be considered as VAT actually paid u/s 4 of the CEA, 1944 - Thus it included subsidy amount in value of goods cleared & raised demand for differential duty, with interest & penalty - Later, the Tribunal considered an identical issue in the assessee's own case for a previous AY and held that payment of VAT through Form VAT 37B was a valid method for payment of duty - Hence the demands were set aside.

Held - Delay condoned - Notice issued - Tag with Civil Appeal Nos.1259-1270 of 2018: SC

-Notice issued : SUPREME COURT OF INDIA

2019-TIOL-05-SC-CX

Ganpati Alloys Vs CCE, C & ST

CX - The assessee, engaged in manufacture of MS Ingots - During the period of dispute, its factory got submerged due to flooding - The assessee informed the Department about the damage incurred as well as documents/records lost - Thereafter, upon audit, the Department noted that the assessee availed Cenvat credit, without original copies of Cenvat invoices - In the first round of appeal, the Tribunal remanded the matter for de novo adjudication, with directions to produce more documents - However, the assessee did not present the new documents & sought to rely upon those already submitted - Thereafter, the second round of proceedings before the Commissioner were circumscribed by the earlier directions given by the Tribunal - However, the High Court later dismissed the assessee's appeal, on account of its failure to produce the requisite documents.

Held - The assessee sought to withdraw the petition, seeking liberty to apply for correction of errors, if any - Hence the present SLP is dismissed as withdrawn: SC

- Assessee's SLP dismissed: SUPREME COURT OF INDIA

2019-TIOL-52-CESTAT-MAD

Icon Household Products Pvt Ltd Vs CC, CE & ST

CX - The assessee is engaged in manufacture of Mosquito Coils - The Officers of Preventive Unit visited the premises and found that they had cleared 'pre-mix' to their sister units situated at Guwahati without payment of duty during the period from May 2004 to August 2005 - It appeared to department that such pre-mix is an intermediate product manufactured by assessee and would be classifiable under chapter heading 3824 of CETA, 1985 - The issue for consideration is demand of duty on the pre-mix powder - The said pre-mix powder is stock transferred to their sister units at Guwahati from where it is used as inputs for manufacture of final product namely Mosquito coil - The final product is cleared on payment of duty - If assessee had paid duty while clearing the pre-mix powder to their sister units, same would be eligible for Cenvat Credit to their sister units at Guwahati - The entire exercise would be revenue neutral one - The SCN is issued for period 5/2004 to 8/2005 invoking extended period - The Apex Court in case of Nirlon Ltd. - 2015-TIOL-96-SC-CX has observed that there can be no malafide or intent to evade payment of duty when the entire exercise is revenue neutral - The jurisdictional High Court in case of Tenneco RC India Pvt. Ltd. - 2015-TIOL-1579-HC-MAD-CX has taken a similar view - The pre-mix powder having been cleared to their sister units, the entire exercise being revenue neutral one, the demand of duty invoking the extended period cannot sustain: CESTAT

- Appeal allowed: CHENNAI CESTAT

2019-TIOL-51-CESTAT-KOL

IAC Electricals Pvt Ltd Vs Commissioner of CGST & CE

CX - The assessee is engaged in manufacture of Transmission Hardware fittings used in High Tension Power Transmission lines - They sells their products to various State Electricity Boards and also to various Mega Power Projects - Clearance of its goods to such projects is done without payment of duty under Notfn 6/2006-CE as amended vide Notfn 46/2008-CE against Project Authority Certificates, backed by undertaking furnished/issued by an officer not below the rank of Deputy Secretary, Ministry of Power, Govt. of India - A SCN was issued for recovery of refund along with interest - Since refund has been made in cash and not by crediting in Cenvat Credit account of assessee, the assessee is not getting additional credit for which it has to pay more in cash and less through CENVAT Credit Account - Thus, in effect, it does not make any difference so far, payment of Central Excise Duty is concerned - The O-I-O sanctioning refund is upheld and the impugned order is set aside: CESTAT

- Appeal allowed: KOLKATA CESTAT

 

 

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