SERVICE TAX
2019-TIOL-283-CESTAT-MAD
M Rajan Vs CST
ST - The assessee who is a proprietor is engaged in business of conducting training / coaching programme on personality development as well as English speaking course - On scrutiny of records, it was noticed that assessee was not discharging service tax under category of 'Commercial Training or Coaching Service' - The Tribunal in case of C.S. Natarajan - 2018-TIOL-1356-CESTAT-MAD has considered identical facts wherein it has been held that said courses would fall under category of vocational training course - The Tribunal has followed the decision in Mariya Computer Systems (P) Ltd. - 2017-TIOL-864-CESTAT-DEL - Following the decision in said final order, the demand in respect of 'Commercial Training or Coaching Service' cannot sustain - Assessee has vehemently argued that they had failed to discharge service tax in respect of franchisee service due to the confusion in change of definition of franchisee service - By invoking section 80 of FA, 1994, the penalty imposed in respect of franchisee service requires to be waived - In the result, the impugned order is modified to the extent of setting aside the demand in respect of 'Commercial Training or Coaching Service' and the penalty imposed in respect of 'franchisee service' without disturbing the demand or interest in respect of franchisee service: CESTAT
- Appeal partly allowed: CHENNAI CESTAT
2019-TIOL-282-CESTAT-MAD
CCE Vs P And C Constructions Pvt Ltd
ST - The assessee had entered into a contract for construction of Residential Quarters with M/s. CPWD and had constructed 192 Residential Complexes for which assessee had discharged applicable service tax - A SCN was issued proposing to demand service tax under category of ‘Construction of Residential Complex Service' - Assessee has contended that the very same issue has been considered by this very Bench of Tribunal in case of Ramalingam Construction Co.(P).Ltd. apart from the decision of Ahmedabad Bench of Tribunal in Khurana Engineering Ltd. - 2010-TIOL-1712-CESTAT-AHM - T he Commissioner (A) is justified in allowing the assessee's appeals and therefore, the Department Appeal is dismissed: CESTAT
- Appeal dismissed: CHENNAI CESTAT
2019-TIOL-281-CESTAT-MAD
Mohabir Enterprises Vs CST
ST - Assessee was registered with service tax department under category of "Survey and Exploration of Minerals" - On the basis of investigations, it appeared that assessee had entered into a contract for execution of integrated Seismic Job services and drilling of shot holes for Sector S-4 in Gujarat with ONGC in respect of M/s.Geofizyka Torun - It was alleged that assessee had collected service tax from said person, however did not remit the same to the Government - There seems to be some confusion concerning the exact nature of services carried out by assessee - Though the SCN in para-3 alleges that assessee have carried out seismic job services for ONGC, para-4 alleges that they have collected service tax on survey and exploration services - There is no further elaboration forthcoming of what was the exact nature of services performed - Specific geological, geographical or prospecting activity or map-making is a sine qua non for meriting inclusion under the above service category for becoming exigible to service - From the meagre facts available on record and due to absence of contract submitted by assessee, Tribunal is not able to make a headway in deciding the matter - Accordingly, the issue concerning tax liability with interest, relating to the contract referred to in SCN, the matter is being remanded to the adjudicating authority for analyzing the contract to arrive at a decision whether in fact the services provided would fall within the scope of 'Survey and Exploration of Mineral' service - In such de novo adjudication, assessee should produce copies of contract entered into with ONGC and any other evidence in support of their claim - It is not in dispute that assessee have collected the amount of service tax under Survey and Exploration Service. - This allegation has not been refuted by assessee either during adjudication stage or before this forum - Hence the said demand is not interfered with - On the issues of penalties also, matter is remanded to the original adjudicating authority: CESTAT
- Appeal partly allowed: CHENNAI CESTAT
CENTRAL EXCISE
2019-TIOL-285-CESTAT-AHM
Shree Digvijay Cement Company Ltd Vs CCE & ST
CX - Issue involved is that whether in respect of intermediate product i.e. Clinker manufactured and used in manufacture of Cement, the assessee is entitled for Exemption under Notfn 67/95-CE in the case when final product i.e. Cement is cleared under Exemption Notfn 6/2006-CE in respect of supply against "International Competitive Bidding" - The assessee have manufactured Clinker which is an intermediate product and the same was consumed in manufacturing of other final product i.e. Cement - The said final product has been cleared against "International Competitive Bidding" in terms of Exemption Notfn 6/2006-CE, according to which the rate of duty is nil - They availed Exemption Notification in respect of the Clinker under notfn 67/95-CE - The assessee has discharged obligation prescribed in Rule 6 of CCR, 2004, therefore, even though the final product of assesse is cleared under exemption from whole of the duty but since it is under Notfn 6/2006-CE in terms of Rule 6(6)(vii) of Cenvat Credit Rules, the Notfn 67/95-CE is legally eligible to supply made by assessee - This issue has been considered in case of Thermo Cables Ltd - The same issue has also been considered by Tribunal in case of Kei Industries Ltd - 2017-TIOL-151-CESTAT-DEL - Following the ratio of said judgments, the issue is no longer res-integra, therefore, the impugned orders are not sustainable, hence the same are set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2019-TIOL-284-CESTAT-DEL
Balaji Metals Vs CCE
CX - The assessee is engaged in manufacture of bare copper wire of various sizes - They in fact were bunching various thin sized wires into one thick wire reduced in reels with the aid of machines installed in their premises - For reducing thickness of said copper wire, a chemical commonly known as Cu-56 was being used by assessee - On the basis of searches and the statements recorded of various concerned persons, the Department raised a demand of Central Excise duty under Section 11A of CEA, 1944 alongwith interest at the appropriate rate and proportionate penalty under Rule 25 of CER, 2002 r/w Section 11 AC of CEA, 1944 - Though the assessee has emphasised upon documents as that of discharge of his VAT liability but said documents will corroborate only the accounted removal and those documents are also absolutely insufficient for rebutting aforesaid admission of Shri Lalit Jain and admission even of assessee himself - There is admission on part of assessee to the extent of admitting recovery of entire said document from his factory as well as residential premises with acknowledgment that the documents are reflecting the sales proceeds of bare copper wire - Though the assessee had retracted these admissions but in the absence of any appropriate remedy of protest sought by them, the retraction cannot be ruled out to be an afterthought - Even if statement as recorded on the date of seizure is considered to be under threat and pressure; firstly, there is no evidence by assessee to that effect secondly, there is no reason for similar admission of assessee in his subsequent four statements, though with minor retractions - The assessee requested for cross examination of three panch witnesses only - The Adjudicating Authority served letters thrice calling three of them to appear for being cross examined but the letters either were returned undelivered and in case were delivered, the concerned the person did not turn up for the cross examination - In said circumstances, assessee himself had agreed to proceed with the case without waiting further for cross examination of these panches - It is not the grievance of assessee that Adjudicating Authority despite the presence of witnesses to be cross examined declined the opportunity to assessee - Simultaneously, no infirmity in the order under challenge has been noticed rather the same is observed to have been meticulous appreciation of voluminous evidence on record, sufficiently, proving the alleged clandestine removal of bare copper wire by assessee on the basis of kacha parchies against the cash transactions - The Order accordingly is upheld: CESTAT
- Appeal dismissed: DELHI CESTAT
CUSTOMS
2019-TIOL-35-SC-CUS-LB + Case Story
CC Vs Atul Automations Pvt Ltd
Cus - Used Multi-function printers have been rightly classifed as 'Other Wastes' under the Waste Management Rules and were not prohibited but restricted items for import - Merely because earlier on more than one occasion, similar consignments of the respondent or others may have been cleared by the customs authorities at other ports on payment of redemption fine cannot be a justification simpliciter to demand parity of treatment for the present consignment also - respondent was entitled to redemption of the consignment on payment of the market price at the reassessed value by the customs authorities with fine under Section 112(a) of the Customs Act, 1962 - no error in the penultimate direction of the High Court to the respondents for deposit of bond without sureties for 90% of the enhanced valuation of the goods leaving it to the DGFT to decide whether confiscation needs to be ordered or release be granted on redemption at the market value, in which event the respondents shall be entitled to set off - Revenue appeals dismissed: Supreme Court Larger Bench [para 8 to 14]
- Appeals dismissed: SUPREME COURT OF INDIA
2019-TIOL-207-HC-AHM-CUS + Case Story
Goodluck Garments Pvt Ltd Vs CCE & C
Cus - Chapter IX of the Import Export Policy & Procedures, 1992-1997 - Notification No.13/81-Cus dated 09.02.1981 is primarily concerned with fulfillment of export obligation from the goods imported into India - Mere fact that wastage is in excess of the Input Output norms, without anything more, would not be sufficient for the Assistant Collector to arrive at the satisfaction that the imported fabric has not been used for the manufacture of the articles for export - there is no allegation with regard to diversion of imported goods viz. fabrics - despite the fact that excess consumption has been found as compared to the standard input output norms, such excess waste has been permitted to be destroyed by the Deputy Commissioner, Central Excise & Customs, and hence, the respondent is not justified in demanding customs duty forgone – Impugned order of Tribunal quashed and set aside – Appeal allowed: High Court [para 16 to 20]
- Appeal allowed: GUJARAT HIGH COURT
2019-TIOL-280-CESTAT-HYD
CC Vs SSK Ventures Pvt Ltd
Cus - The assessee had filed bills of entry which were self-assessed and subsequently noticing that they have not claimed the benefit of Notfn which was due to them, filed refund claims which got rejected - On an appeal, the 1st appellate authority by impugned order set aside the O-I-O and remanded the matter back to the adjudicating authority for reassessment and consequent refund - It can be seen that the 1st Appellate Authority has directed the adjudicating authority to reassess the goods which is a correct appreciation of facts and law - No reason found to interfere in such a well reasoned order passed by the 1st appellate authority - Accordingly the impugned order is upheld: CESTAT
- Appeal rejected: HYDERABAD CESTAT
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