SERVICE TAX
2019-TIOL-213-HC-MP-ST
CC, CE & ST Vs Ultratech Cement Ltd
ST - The assessee is engaged in manufacture of cement and clinker - Fly Ash is one of the major input/raw material used by them for manufacture of cement, procured from various Thermal Power Plants - They had adopted two modes of transportation to procure fly ash from Thermal Power Plant situated in Kota to the factory site in open trucks for one way load and trip i.e. from source point to factory and bulkers (covered) for doing round trips - A SCN was issued by Department disallowing CENVAT Credit for return trip of truck from the factory to Thermal Power Plant - Considering the fact that assessee is paying service tax on the basis of rate fixed for per metric ton, which is to and fro from the cement factory to the Thermal Plant therefore, Tribunal rightly relying on decision in case of CCL Products (India) Ltd. 2010-TIOL-828-CESTAT-BANG has set aside the demand and notice issued by Department - The appeal filed by Department has no merit and is accordingly, dismissed: HC
- Appeal dismissed
:
MADHYA PRADESH
HIGH COURT
2019-TIOL-300-CESTAT-DEL
R K Premises Pvt Ltd Vs CCE & ST
ST - The assessee is engaged in providing taxable services under category of renting of immovable property - After noticing that assessee had not paid service tax under said category, various SCNs were issued - The tax liability itself is not being seriously disputed by assessee, who has paid the entire service tax demanded in impugned order on 03/07/2011 - The interest due thereon has also been claimed to be paid on 18/02/2014 - The only dispute is with reference to penalties under various Section of FA, 1994 - The SCNs have demanded payment of service tax alleging suppression on the part of assessee - This dispute came to be settled only with the decision of Delhi High Court in case of Home Solution Retail India Ltd. - 2009-TIOL-196-HC-DEL-ST - Subsequent to the said decision, the retrospective amendment in FA, 2010 was carried out and the definition of the service was amended retrospectively w.e.f. 01/06/2007 - Since the liability to pay service tax itself was under challenge, sustaining the penalties against assessee could not be proper - Demand of service tax with interest is upheld and the penalties imposed by the lower authorities are waived: CESTAT
- Appeal allowed: DELHI CESTAT
2019-TIOL-299-CESTAT-DEL
Sainik Mining And Allied Services Ltd Vs CST
ST - Assessee is a Delhi based company having centralised registration since 06.02.2007 under Site Formation and Clearance, Excavation and Earth Moving and Demolishing Services w.e.f. 30.09.2007 - A reference was received against assessee in furtherance whereof investigation against it were started - It was found that assessee was providing services to M/s RSMML - It is alleged that despite obtaining the charges for rendering those services, assessee was not discharging their liability to pay service tax to the Government - Assessee was already awarded work of mining activity i.e. of mining lignite from the mines vide an agreement - It is during this activity that assessee noticed a big water aquifer - Though water aquifers are often found in the mines and need simultaneous cleaning while mining but as per assessee, which is not been denied or disputed by Department, the impugned water aquifer was much bigger water body found within the mine having much large volume of water requiring much more amount of investment to depressurise the same - Resultantly, another agreement was entered into between the same parties - The activity carried out by assessee was mining activity which has been identified as taxable activity only beyond 01.06.2007 - Hence, the demand for the period prior the said date is absolutely not sustainable - Coming to the activities for period beyond 01.06.2007 till 31.03.2008, though the activities of assessees are no doubt the mining activities but it is observed from impugned SCN that the same has not been so alleged - The principle is well settled that classification of taxable service which is not alleged in SCN cannot be concluded to support levy of tax - Hence, it is now settled that the classification which is not proposed in SCN, the same cannot be concluded - For the said reason, the Order under challenge is held to suffer infirmity and is accordingly, set aside - With respect to penalties imposed, it is held that since the mining activity was never in tax net prior 01.06.2007, question of suppression of facts for not discharging the liability on the mining activity prior 01.06.2007 does not at all arise - The benefit of non awareness can readily be extended to assessee - In addition, there is no positive act alleged by Department which may amount to committing suppression of facts or which may reflect any malafide on part of assessee with an intention of evading tax - The question of imposition of penalty does not at all arise: CESTAT
- Assessee's appeal allowed: DELHI CESTAT
2019-TIOL-298-CESTAT-MAD
S V Janardhanam Vs Commissioner of GST & CE
ST - Shri S. Varadharaju Chettiar, Smt. V. Anusuya and Shri S.V. Janardhanam are joint owners of immovable property which was rented out for commercial purposes - The department was of the view that all these three persons who are co-owners of the property are to be treated as a single entity in the nature of association or body of individuals - The rent received by them when combined together would cross the threshold limit - Thus, they are liable to pay service tax - The demand has been raised on all the co-owners to treat them as association of person and levy service tax on the amount of rent received by them - When the co-owners are treated individually, the amounts undoubtedly fall below the threshold exemption - The Tribunal in case of Sarojben Khulsanchand & Ors. - 2017-TIOL-2284-CESTAT-AHM had occasion to consider similar issue - Following the said decision, demand cannot sustain: CESTAT
- Appeal allowed: CHENNAI CESTAT
CENTRAL EXCISE
2019-TIOL-297-CESTAT-AHM
Ashish Chauhan Vs CCE & ST
CX - The assessee is engaged in manufacture of Oil well platform and Errection, Installation and Commission there, at site that is Platform - The final product is exempted Vide Notfn 6/2006-CE, however, assessee is entitled for eligible to take Cenvat Credit in respect of service used for manufacture of such final product - The assessee have availed the Cenvat Credit among other inputs, on MS Plates which are supplied along with the final product at site and the same is used for counter balancing at the time of transportation as well as the time of Installation, Errection, Commission of the said Platform - The detailed submission made by assessee before Commissioner (A) which has been recorded but no finding was given, therefore, Commissioner (A) has not followed the principles of natural justice - In this position there is no option except the re-consideration of overall case by Commissioner (A) - Accordingly, impugned order is set aside and appeal allowed by way of remand to Commissioner (A) who shall pass a afresh order after providing the sufficient opportunity of personal hearing to the assessee - As regard the appeal of Shri. Ashish Chauhan, Deputy General Manager of assessee Company, entire issue is of interpretation of definition of inputs service, therefore, there cannot be any malafide intention particularly on the part of employee of Company, therefore, Shri. Ashish Chauhan being employee of Company is not liable for the penalty - Accordingly, the penalty imposed under Rule 15 of CCR, 2004 is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2019-TIOL-296-CESTAT-AHM
Bhavin Industries Vs CCE
CX - The assessee is manufacturer of excisable goods and have received Man Power Supply Service and paid Service Tax on 75% of Gross Value of Man Power Supply under Reverse Charge Mechanism in terms of Notfn 13/2012-ST and availed Cenvat Credit of Service Tax paid - W.e.f 01.04.2015 as per amended provision, they have paid 100% service Tax on Man Power Supply Service under Reverse Charge Mechanism, on the aid amount also they availed the Cenvat Credit - The case of department is that the assessee being a proprietorship concern was not liable to pay service Tax under Reverse Charge Mechanism; therefore, the Service Tax also paid by them is not available as Cenvat Credit to assessee - Even in case where the service itself is not taxable but if the service provider discharge the Service Tax, the same can be availed as Cenvat Credit by Service recipient - There is no restriction provided in Cenvat Credit Rules that if the Service Tax is not payable and if it is paid the Service recipient is not entitled for Cenvat Credit - The only condition is that service recipient should receive the services which duly Service Tax paid, if that is so Cenvat Credit cannot be denied to the service recipient - Therefore, the present case is on better footing as the Service Tax on Man Power Supply per say was taxable, therefore, Service Tax paid on such services irrespective by Service recipient, Cenvat Credit is admissible - The identical issue has been considered by Tribunal in case of Omori India Pvt. Ltd . wherein it was held that the credit of 75% of Service Tax paid by the Service recipient is admissible - Following the ratio of said order, impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2019-TIOL-295-CESTAT-HYD
Andhra Pradesh State Financial Corporation Vs CC, CE & ST
CX - The assessee was issued a SCN for confiscation of machineries which were seized by departmental officers and also for impositions of penalties - The adjudicating authority in impugned order has not ordered for confiscation of machinery but imposed penalty on the assessee - They were also directed to pay the amount of duties of Customs and Central Excise out of sale proceeds they got from auction sale of the assets of M/s KTL - The assessee has not contested the confirmation of demand of duties of Customs and Excise before the Tribunal - It can be seen that the contest is basically to strike off the liability of paying customs duty and Central Excise duty for which an undertaking was given before higher courts - The assessee is required to discharge duty liability of customs and central excise as Apex Court in an appeal filed by revenue against judgment of High Court of AP clearly directed that the duty liability shall be paid - No further arguments can be heard on discharge of duty by assessee, as the Apex Court very clearly held that duties are payable to assessee - Nothing survives in the appeal of assessee, though not contested in grounds of appeal, as to the demand of the duties of customs and excise - The adjudicating authority has come to a wrong conclusion in imposing penalty under Sec.112 of the Customs Act on assessee, inasmuch assessee had never engaged themselves in import of goods which are liable for confiscation under provisions of Sec.111 of Customs Act, 1962 - There is no order for confiscation of machinery which was sold by assessee in an auction proceedings - Hence, visiting the assessee with penalty under Sec.112 is unwarranted and not in consonance with the law: CESTAT
- Appeal disposed of: HYDERABAD CESTAT
CUSTOMS
Corrigendum
Corrigendum to Notification No. 29/2017-Customs (ADD) , dated the 14th June, 2017
CASE LAWS
2019-TIOL-214-HC-KOL-CUS
Shiva Sahu Vs UoI
Cus - The petitioner has challenged an order passed by Commissioner of Customs (Airports and Administration), imposing a penalty against petitioner under Sections 112(a) and 112(b) of Customs Act, 1962 - The petitioner had received a SCN - In course of proceedings, the petitioner before adjudicating authority had requested for an opportunity to cross-examine to other noticees in proceeding - Such prayer was repeated by a letter - The two noticees, whom the petitioner wanted to cross-examine, also did not appear on such date - The next date of hearing was on October 23, 2017 when admittedly the petitioner was not allowed the right of cross-examination - The impugned order does not record that the right of cross-examination was closed on May 1, 2017 - Assuming that adjudicating authority had closed the right of cross-examination on May 1, 2017, then also, adjudicating authority was required to decide on prayer made by petitioner to cross-examine the prosecution witnesses as contained in the letter - The petitioner was denied the right of cross-examination by adjudicating authority without cogent ground - Consequently, the impugned order suffers from vice of breach of principles of natural justice - This order will not prevent the authorities from proceeding with SCN and the reply thereto, in accordance with law, from the stage of hearing of such SCN and the reply: HC
- Writ petition disposed of
:
CALCUTTA
HIGH COURT
2019-TIOL-301-CESTAT-MAD
A K Paper Products Pvt Ltd Vs CC
Cus - During the period of dispute, the assessee filed bills of entry for importing 'Carbon Less Paper Black Image' & declared classification under CTH 48099000 - The Revenue passed order denying benefit under Notfn No 46/2011-Cus claimed by the assessee - On appeal, the Commr.(A) directed the authorities concerned to seek suitable classification from the Board on this issue - It was also directed that the assessee be granted relief as per the clarification - Later, based on clarification received from the CBIC (TRU), duty demand with interest was raised upon the assessee - Upon filing writ petitions against such orders, the assessee was directed to approach the Tribunal.
Held - It is seen that the remand order sought to be appealed against by the assessee, was already acted upon by the authority concerned, in the form of raising of duty demand with interest - Hence the assessee cannot be said to have any grievance against the O-i-A - Any grievance can only be against the order passed by the Revenue authority raising the demands - Since such officer holds the rank of Deputy Commissioner & is lower than the rank of Principal Commissioner, any appeal against such order would lie before the Commr.(A) and not before the Tribunal - Thus the assessee cannot jump the gun by approaching the Tribunal - The present appeal & application for condonation of delay are not maintainable: CESTAT (Para 2.1,4.2,4.3,4.6)
- Assessee's appeal dismissed: CHENNAI CESTAT
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