SERVICE TAX

2019-TIOL-153-CESTAT-MUM + Case Story

Ddb Mudra Max Pvt Ltd Vs CGST

ST - Adjustment of excess paid service tax - singular also means plural and hence "month" should be interpreted as "months" - adjustment made in the months of December 2013 and March 2014 in respect of excess service tax paid in the months of March and April 2011 is proper and justified - matter is res integra in view of the decision in Schwing Stetter (India) Pvt. Ltd. - 2016-TIOL-1895-CESTAT-MAD - Impugned order set aside and appeal allowed: CESTAT [para 4, 5]

- Appeal allowed: MUMBAI CESTAT

2019-TIOL-152-CESTAT-MAD

Pawan Cargo Forwards Pvt Ltd Vs PR CST

ST - The assessee, a air cargo agent is paying service tax on commission amount paid from the airlines - Department took the view that assessee should have been paying service tax also on the freight charges reimbursed by them from their customers charged over and above the freight amount payable to the airline companies - The very issue had been addressed in decisions of Tribunal in case of Skylift Cargo (P) Ltd. and La Freight Pvt. Ltd. relied upon by assessee holding that mere sale and purchase of cargo space and earning profit in the process is not a taxable activity - The facts of this case are pari materia with those cases wherein the issue was held in favour of assessee - The same view has been taken by Tribunal earlier also in case of Tax Global India Ltd. - No ground found to take a different view, hence following the ratio already laid down, impugned order is set aside: CESTAT

- Appeals allowed: CHENNAI CESTAT

 

CENTRAL EXCISE

2019-TIOL-116-HC-KOL-CX + Case Story

Haldia Petrochemicals Ltd Vs Joint Secretary

CX - Rebate - rule 18 of CER, 2002 - Notification 19/2004-CX(NT) - CBEC Supplementary Instructions, 2005 - Non production of documents stipulated in the notification does not ipso facto result in the rebate claim being invalidated when the exporter is able to substantiate the same by leading secondary evidence - order of revisionary authority quashed - authorities directed to act in terms of the order passed by the appellate authority, namely, sanction the refund: HC [para 9 to 11]

- Petition disposed of : CALCUTTA HIGH COURT

2019-TIOL-151-CESTAT-BANG

Beml Ltd Vs CC & CE

CX - The assessee is engaged in manufacture of earth moving equipment, earth coaches, trailers and defence aggregators at their factories - The only issue to be decided is whether it is correct on the part of department to demand excise duty second time for the clearance of goods under warranty/replacement, during warranty period and consequently, denial of refund of duty paid under protest for clearance of warranty goods is justified - The department has not disputed that warranty cost of 2.5% of factory cost was already included in original value of equipment at the time of removal of original equipment - The assessee has not charged any price for replacement of goods during warranty period - With regard to the same issue, the Commissioner (A), Mangalore has allowed the appeal of assessee and the assessee has got refund and therefore, department cannot take a contrary stand with regard to same issue by different Commissionerates and the department should not take contrary decision and deny the refund - Further, in the circular issued by Department on 30.6.2000, it is also clear that assessee is not required to pay excise duty on goods cleared under warranty/replacement clause - Therefore, the impugned order is not sustainable in law, same is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT

2019-TIOL-150-CESTAT-BANG

CCE, C & ST Vs Hindalco Industries Ltd

CX - Revenue has moved applications seeking withdrawal of present appeals in terms of litigation policy with reference to Board's Instruction F. No. 390/Misc./116/2017-JC as disputed amount involved in each of these cases is less than Rs. 20 lakhs - The prayer is allowed: CESTAT

- Appeal dismissed: BANGALORE CESTAT

2019-TIOL-149-CESTAT-BANG

Hindustan Coca Cola Beverages Pvt Ltd Vs CCT

CX - A SCN was issued by Revenue alleging that assessee had availed cenvat credit on strength of some invoices issued by suppliers of inputs and by provider of taxable services and that the assessee's claim in availing cenvat credit was on the basis of invoices issued prior to six months from the date on which the credit was taken - No rejection is made on the basis of invalidity or illegality of any invoice, i.e. no invoice against which cenvat credit was claimed is thrown out as irregular or illegal or wrong - CBEC has come out with another Notfn 06/2015 wherein Rule 4(7) has been further amended to the effect that 'six months' is replaced by 'one year' - There is also no finding that either there was no supply of input or input service against these invoices by Revenue authorities - It is also an admitted position of law that prior to 01.09.2014 there was no time limit prescribed to avail cenvat credit - It can be safely assumed that amendment would apply to invoices raised on or after the said date of amendment - In the light of later amendment vide Notfn 06/2015, the period of six months has been extended to one year and if the Notfn 21/2014 were to operate retrospectively, then the same effect would have been provided to Notfn 06/2015 as well - The Tribunal has decided a similar issue in case of M/s. Mercedes Benz India Pvt. Ltd. - 2018-TIOL-2455-CESTAT-MUM - The Revenue authorities have erred in denying the benefit of cenvat credit on inputs and input services for which reason, impugned order is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT

 

 

 

 

CUSTOMS

2019-TIOL-148-CESTAT-AHM

Modern Communications And Broadcast Systems Pvt Ltd Vs CC

Cus - The assessee had imported Encoder / Multiplexer / Modulator classifying the same under CTH 8517 and availed the benefit of exemption from payment of duty under Notfn 24/2005-CUS - It was alleged that assessee has wrongly classified the impugned goods under CTH 8517 whereas the same are classifiable under CTH 8528 - The Revenue has sought to classify impugned products under 85.28 mainly on the ground that these are parts and apparatus for transmission of signals for television transmission - It is an undisputed fact that the items in question are having individual functions - Each of these products is having independent functions and are used for various purposes for transmission of data - The assessee is selling these goods not only to TV Cable operators but also to other users such as Space Centre Application, Infosys, Hathway Cable Datacom and Broadband - These products are used for conversion and compression (coding) used for conversion of signals as apparatus for transmission at transmission site for both wired and wireless networks - The goods are not used at subscribers end as reception apparatus for television - The adjudicating authority has over-looked this aspect while passing the impugned order - Further, the same goods have been imported into India by others classifying the same under CTH 8517 - The goods classified under CTH 8517 have functions as enumerated above, whereas the goods falling under Chapter 8528 are only of reception apparatus with no functions of transmission - It is only on this basis that the impugned goods would merit classification under CTH 8517 - In case of Indelox Services Pvt. Ltd. - 2016-TIOL-3257-CESTAT-MUM , the Tribunal has held that if the device is having function of transmitting data through network from one server to other and has function of security for data transmitted, the same would fall under CTH 8517 - It is clear that as impugned goods are having the function of transmission of data and other functions and hence the same would merit classification under CTH 8517 - Accordingly, goods are classifiable under CTH 8517 - Impugned order is set aside: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

2019-TIOL-147-CESTAT-AHM

Rama Cylinders Pvt Ltd Vs CCE & Custom

Cus - Assessee's Unit-1, situated in Kandla Special Economic Zone (KASEZ) cleared the goods to its DTA unit (Unit 2) which is the present assessee's unit - While clearing the said goods, Special Additional Duty (SAD) of Customs, at the rate 4% was paid - Thereafter, assessee submitted refund claim of 4% SAD in terms of Notfn 102/2007-Cus - On the contention that no statutory provision exist either in SEZ Act, 2005 or the Rules and Regulations made there under, the refund claim was returned to assessee in original along with all the relevant documents by lower authorities - The goods so received by DTA unit from SEZ unit were subsequently sold on payment of Sales Tax/ VAT in the domestic market - With this fact, the major requirement of said Notfn stands fulfilled that DTA unit that is indeed an importer as per SEZ Act, 2005 and the goods received by DTA were duly SAD paid - The lower authorities rejected the claim on the ground which apparently not tenable - As regards the jurisdiction, it is already decided by Gujarat High Court in assessee's own case that DTA Unit of assessee had correctly filed the refund claim with the Adjudicating Authority therefore, on this ground refund cannot be rejected - As regards the issue raised by lower authority that assessee have not complied with the condition mentioned at Point (vii) of Circular 16/2008-Cus , the goods were supplied by SEZ unit and received by DTA unit of the same company who sold the goods in the market therefore, in the transaction, consignment agent does not exist - The question of fulfilling a condition mentioned at point (vii) of Circular does not arise - As regards the rejection of refund claim on the ground of transfer of goods from SEZ to DTA unit is not an import, as per SEZ Act, 2005 and the legal fiction provided therein, the supply made from SEZ is treated as import for the receiving DTA unit and in case of any supply from DTA to SEZ, the same is treated as export - This issue is squarely covered by decision in case of Adinath Trade Link - 2013-TIOL-874-CESTAT-AHM - It is clear that supply of goods from SEZ to DTA is eligible for exemption Notfn 102/2007-Cus and consequently, the DTA unit is entitled for refund of Special Additional Duty of customs paid on such supply - Accordingly, impugned order is set aside: CESTAT

- Appeal allowed: AHMEDABAD CESTAT