2019-TIOL-14-HC-KERALA-GST

PSN Automobiles Pvt Ltd Vs UoI

2019-TIOL-232-CESTAT-ALL  

Star Enterprises Vs CCE & ST

ST - The assessee was engaged in providing services of Erection Commissioning and Installation to Uttar Pradesh Rajkiya Nirman Nigam - As per the contract entered by assessee with said Government undertaken, the rates were inclusive of all taxes and duties - In terms of said contract, as per assessee, they paid the excess service tax to service recipient, who deposited the same with exchequer and as such they were entitled to refund of the same - Accordingly, they filed a refund claim claiming refund of duty deposited during the period of 2013 - If amounts claimed to be refunded were otherwise required to be paid, the refund claim would not arise - As such, if all the refund claims which are not payable to the revenue, are allowed without examining the limitation aspect, the provisions of Section 11B, which provide a period of one year for claiming such refund, would become redundant - Commissioner (A) have relied on decision in Rallis India Ltd. - 2002-TIOL-529-SC-CX laying down that the limitation as provided under Section 11B of the Act is required to be adhered to - A further reference can be made to Supreme Court’s decision in case of M/s Porcelain Electrical Manufacturing Co., wherein it was observed that the revenue authorities are bound by the provisions of the Act and cannot exercise the extraordinary jurisdiction, as available to High Courts in terms of Article 226 of Constitution - As such, Tribunal being a creature of Act cannot go beyond the provisions of Act and cannot extend the period of limitation for claiming the refund - Inasmuch as refund claim admittedly stands filed after a period of one year from the relevant date, the lower authorities have rightly rejected the same as barred by limitation: CESTAT

- Appeal rejected: ALLAHABAD CESTAT

S D Earth Movers Vs CCE & ST

ST - The assessee is registered with Service Tax and is engaged in "Supply of Tangible Goods Service" - A SCN was issued alleging wrong availment and utilization of Cenvat Credit on Tippers as capital goods on the strength of invalid invoices - There is also an allegation of excess Cenvat Credit utilized during the period from April 2010 to September 2012 - The assessee has brought on record the supporting invoices issued by M/s Tata Motors and has issued regular excise invoices evidencing payment of Central Excise duty on those chassis number and engine numbers of the tippers - In support thereof the assessee has annexed the documents marked as ANNEXURE R/4, ANNEXURE R/5 and ANNEXURE R/6 - Apart from the above, the assessee had directly purchased one Excavator from M/s Earth Mover Consultancy (P) Ltd, which was duly registered with Central Excise and had issued Central Excise Tax Invoice evidencing payment of central excise duty, the same is annexed as Annexure R/8 - Though the Comm. (A) accepted the fact that under proviso to sub rule (2) of rule 9 of CCR, 2004 there is an inbuilt provision of leniency which provides that even if the document does not contain all the particulars, but contains the details of duty or service tax as accounted for in the books and accounts, then the Dy/ Asst. Commissioner may allow the Cenvat Credit - The goods were duly financed by Finance Companies who have also issued No Objection Certificates after the loans were duly cleared - Thus, the fact that goods were not received by assessee is not correct - The SCN was issued in year 2015 for period April 10 to Sept 2012 and was thus clearly barred by limitation since there was no intention of fraud collusion with an intent to evade payment of duty - Supreme Court, High Courts and the Tribunal have consistently held that when it has been established beyond doubt that the duty stood paid on the goods and the goods were received by the assessee, denial of credit on the procedural irregularity would not be justified - The impugned order is set aside: CESTAT

- Appeal allowed: KOLKATA CESTAT

2019-TIOL-230-CESTAT-BANG

Kishore Kumar Company Pvt Ltd Vs CCE & ST

ST - Assessee is acting as purchase agents for overseas buyers of processed sea foods, looking after sourcing the seller, negotiating price on behalf of foreign buyer, checking the quality of the processed food and supervision of packing and dispatch - They receive commission as a percentage of purchase - The principal takes a decision and places order and the assessee who in time place the purchase order on respective Indian exporters - The foreign principal opens a Letter of Credit (L/C) in the name of assessee - The assessee then transfer the L/C to the exporter with an instruction to Banker and exporters that the amount of L/C includes the commission of assessee - After export, the exporter transfers the commission to assessee in INR - In some cases, the foreign buyer remits the commission to assessee in freely convertible foreign exchange - The Department issued a SCN on the allegations that assessee provided services falling under BAS and that consideration received by them was not in convertible foreign exchange and thus are not exempted from payment of Service Tax - Coming to the export of services, the recipients of services, to whom the benefit of services accrued, are located outside India - Therefore, it is evident that service provided by assessee is either provided to a person located outside India or the benefit of service accrued to a person placed outside India or it could be construed to be provided at a place outside India as the nature of Service Tax was held to be consumption-based destination Tax - It is very clear that services were rendered by assessee who is located in India and the beneficiary of the services was located outside India and such services were required to be treated as export of services for a harmonious construction of the legal provisions over the years - The assessee have successfully demonstrated that the commission due to them was received either directly in foreign exchange from foreign clients or in INR from Indian exporters from the export proceeds - Therefore, it is clear that remittance is received by assessee is nothing but a portion of export proceeds received by exporter, though paid to the assessee in Indian Rupees - It is to be considered as receipt in foreign exchange only albeit is an indirect fashion - It is very clear that the amounts received by assessee as commission required to be treated as to have been received in freely convertible foreign exchange - The case of Department does not stand on merits, the question of maintaining the penalty does not arise at all: CESTAT

- Appeals allowed: BANGALORE CESTAT

2019-TIOL-229-CESTAT-MUM

Sucden India Pvt Ltd Vs C, CGST

ST - Notification 41/2012-ST - refund of service tax paid on the input services - Filing of refund application is governed by s.11B of the Central Excise Act, 1944, as made applicable to the service tax matters u/s 83 of the FA, 1994 - Statute provides that refund application should be filed with the competent authority before the expiry of one year from the relevant date - In view of date of issue of LEO, the refund application was required to be filed on or before 14.04.2016 - refund application along with supporting documents was filed on 21.04.2016 before the jurisdictional service tax authorities - appellant has not furnished any information with regard to non-filing of the claim application on 18.04.2016 and on 20.04.2016 (14, 15 and 19.04.2016 being public holidays), which were not declared as public holidays and the Service Tax Department was functional during those days - It is evident that the refund application was filed beyond the stipulated time frame prescribed u/s 11B - Authorities functioning under the statute are guided by the provisions contained therein and no discretion has been vested under the statute to condone the delay in late filing of the refund application - no infirmity in the order of the Commissioner(A) holding that the refund claim was time barred - Appeal dismissed: CESTAT [para 5, 6]

- Appeal dismissed: MUMBAI CESTAT

2019-TIOL-226-CESTAT-MUM

CCGST & CE Vs Western Union Services India Pvt Ltd

ST - Refund - Revenue has contended that since the services were provided in relation to selection of potential representative, advertisement, publicity etc., which were ultimately used for investment in India, such services cannot be considered as export of service in terms of Rule 3 of the Export of Services Rules, 2005.

Held: Matter is no longer res integra in view of Tribunal decision in Paul Merchants Ltd. - 2012-TIOL-1877-CESTAT-DEL - Inasmuch as service receiver located abroad, since has paid for the services, the beneficiary of service in India cannot be termed as service receiver for the purpose of consideration of export, in terms of Rule 3 of the Export of Services Rules, 2005 - no infirmity in the order passed by the Commissioner(A) - Revenue appeal dismissed: CESTAT [para 5, 6]

- Appeal dismissed: MUMBAI CESTAT

2019-TIOL-228-CESTAT-MUM  

KSB Pumps Ltd Vs CCE

CX - Applicant assessee seeks recall of the final order dated 25 th October 2017 to be heard afresh for deciding on the submissions made by them; that the Tribunal had ignored their submission that section 11A of CEA, 1944 cannot be invoked in the light of the cited case law.

Held: Prayers of the applicant run contrary to the purpose and spirit of section 35C(2) of the CEA, 1944 that restricts the scope of such proceedings to errors apparent on record - once the facts are distinguished from a decision cited by either side, the applicability of the cited decision is rendered irrelevant, therefore, non-consideration of submissions, as claimed by applicant, does not constitute error warranting rectification - applications rejected: CESTAT [para 3, 4, 7]

- Applications rejected: MUMBAI CESTAT

Saertex India Pvt Ltd Vs CCE

CX - Trimmings and end-cuts arising during the course of manufacture of ‘stitched bonded fabrics of glass' - classification under heading 7001 0090 - first appellate authority had held the goods to be of a different heading, but at the same time, upheld the demand - Tribunal upheld the classification decided by the original authority - ROM filed contending that the impugned order of Commissioner(A) had exceeded the proposal in the SCN.

Held: Question of having exceeded the jurisdiction in reclassifying the goods, which the first appellate authority is alleged to have done, does not alter the confirmation of demand of duty which is the prime purpose of the adjudication proceedings - In view of the demand having been upheld, the classification that was finally decided upon was considered to be irrelevant - Tribunal has in its order arrived at its own conclusion on the classification of the goods, which, in effect, upheld the order of the original authority and also the latter order of the lower appellate authority - no scope for rectification of the order - ROM application dismissed: CESTAT [para 5, 6]

- Application dismissed: MUMBAI CESTAT

2019-TIOL-225-CESTAT-BANG  

Thameema Trading Corporation Vs CC

Cus - The assessee have imported Global and Bull padlocks brass/iron - The value declared was less than that of the raw material - Nobody having any commercial prudence would manufacture goods and sell them at price less than that of the raw material which has gone into the manufacture of the same - Raw material needs to be worked upon and certain amount of time, labour and money would have be spent on the same to create a new marketable product - Having declared a price which is less than that of the scrap, the assessee cannot claim by any stretch of imagination that the value declared by them was correct - Moreover, there was discrepancy in quantity also as found during the physical examination - The test report given by Custom House Laboratory has indicated that the composition of material in impugned goods was far different from the one submitted by assessee - These factors together would constitute beyond doubt reason to believe that the declared value was incorrect - Therefore, the declared price was rightly rejected - No infirmity found with the order of Commissioner, in which, he has rejected the transaction value and has re-determined the value in terms of Rule 7A of CVR, 1988: CESTAT

- Appeal dismissed: BANGALORE CESTAT

2019-TIOL-224-CESTAT-AHM

Aditya Birla Nuvo Ltd Vs CC

Cus - Assessee is in appeal against confirmation of demand of duty by including the value of know-how license and rights in assessable value of goods imported under EPCG scheme - The agreement between International Chemical Investors and the assessee has some notable ingredients - The primary defence of assessee is that technology know-how is merely documentation which has been imported as goods and should be assessed as goods - From the examination of two agreements, it is apparent that the technology know-how license agreement is essentially an agreement that permits the assessee to use the Spool Technology (VFY) - The machinery imported by them is essentially a machinery which uses Spool Technology and the said machine cannot be used without a license to use the said 'Spool Technology' - Thus, facts are akin to the facts in case of M/s Essar Gujarat Ltd. - 2002-TIOL-44-SC-CUS-LB - In said case, like in instant case, the fee was for right to use the technology embedded in the capital goods - In both cases it was paid to a third party - In both the cases plant could not be made operational without license to use the technology - It is apparent that there may be no express condition to pay for the license know how while purchasing the goods but there is an implicit condition as the goods cannot be used without a license to use the technology inbuilt into it - Thus, relying on the decision of Apex Court in Essar Gujarat Ltd., the appeal is not maintainable on merit: CESTAT

- Appeal dismissed: AHMEDABAD CESTAT