SERVICE TAX
2019-TIOL-366-CESTAT-MUM
Q And Q Research Insights Pvt Ltd Vs CGST & CE
ST -Penalty imposed u/s 78 of the FA, 1994 - Short payment of tax - SCN indicated that the appellant had failed to charge and pay the service tax on the value received as pure agent and value of director service for which it had contravened the provisions of section 68 of FA, 1994 - There is nothing available in the SCN that such contravention of the Act or Rule was made with an intent to evade payment of service tax - on the other hand, the SCN indicates that the appellant had failed to discharge the tax and such use of word that appellant failed to discharge service tax is also found in the OIO and OIA - when the appellant had met the duty demand without protest after the same was brought to its knowledge, Explanation 2 to Section 73(3) of FA, 1994 is applicable - appeal allowed to the extent of setting aside the penalty: CESTAT [para 5, 5.1]
- Appeal allowed : MUMBAI CESTAT
2019-TIOL-365-CESTAT-MAD
Klr Chit Funds Pvt Ltd Vs CGST & CE
ST - This appeal has been filed by assessee challenging the refusal of refund - It is the case of assessee that they had provided Chit Fund Foreman Service and paid service tax - Subsequent to the decision of High Court of Delhi in case of Delhi Chit Fund Association - 2013-TIOL-331-HC-DEL-ST which was decided on 23.04.2013, the assessee filed an application for refund contending that High Court of Delhi had held that no service tax was chargeable on services rendered by the foreman in a business of chit fund - Admittedly, the tax has been paid voluntarily by assessee and there is no plea by them that the same was paid by mistake or that there was any ignorance on the part of assessee while making the payment or that there was any demand raised by Revenue authorities - Even if benefit is to be extended to assessee of judgement of Delhi High Court which was pronounced on 23.04.2013 and approved by Supreme Court on 07.01.2014, subject to satisfying of other conditions as to the validity of its claim under statute, an application for refund should have been filed within one year from the date of Order of Supreme Court in terms of Section 11B - The amount was paid by assessee as service tax - The refund of the same was claimed because of classification made by the Department, by virtue of which the service involved became a non-taxable entity - Therefore, this is a case squarely falling within the provisions of CEA, 1944 and hence, the rule of limitation under Section 11B applies - A perusal of the Refund Request makes it abundantly clear that the said application for refund was made invoking Section 11B of the Act ibid, and therefore when this provision is invoked, the same applies with full force including the rule of limitation prescribed therein - It is therefore clear that there has been a delay of more than two years and it only points out that it is clearly an afterthought, to claim the benefit of a judgement that such an application for refund was made and assessee has nowhere whispered any reasons as to such an inordinate delay in making its application for refund - The impugned Order does not require any interference: CESTAT
- Appeal dismissed : CHENNAI CESTAT
CENTRAL EXCISE
2019-TIOL-368-CESTAT-BANG
Sankhla Industries Vs CCT
CX - The assessee is engaged in manufacture of PVC compound and PVC Master Batch and are availing facility of CENVAT credit under CCR, 2004 - During audit, it was noticed that assessee is undertaking job work of PU coating on fabrics and collecting amounts towards job work charges - The job work activity is covered under exempted category and attracted Nil rate of service tax - They were also engaged in trading activity - It was observed that they have not maintained separate books of accounts for receipt, consumption and inventory of inputs/input services used in relation to manufacture of dutiable final products and for the provision of exempted services as required under Rule 6(2) of CCR, 2004 - The assessee has already reversed proportionate CENVAT credit on 13.5.2015 whereas the SCN was issued on 22.1.2016 - Once the assessee has made reversal of proportionate credit then it is sufficient compliance of provision of Rue 6(3A) - Division Bench of Tribunal in case of Cranes & Structural Engineers has held in favour of assessee - The said decision is squarely applicable in the present case and by following the ratio of the same, impugned order is not sustainable in law: CESTAT
- Appeals allowed : BANGALORE CESTAT
2019-TIOL-367-CESTAT-ALL
Rachna Metal India Pvt Ltd Vs CCE & ST
CX - The assessee is engaged in manufacture of copper sheet, copper bus bar, copper circle and copper strips - They were procuring the raw material from one M/s.V.K.Metals on the basis of invoices issued by them and was availing benefit of Cenvat credit of duty paid on the same - Investigations were conducted - The entire case of Revenue is based upon investigations conducted by DGCEI at the end of M/s.V.K.Metals leading to denial of benefit of Notification to them and consequent confirmation against them, the setting aside of demand of duty against M/s.V.K.Metals by the Tribunal would have direct effect - Inasmuch as M/s.V.K.Metals have been held to be a manufacturing unit located in Jammu and correctly availing the benefit of Notfn 56/2002, the entire ground of Revenue for denial of credit to the present assessee, falls to ground - As such, assessee has correctly availed the Cenvat credit on the basis of invoices issued to M/s.V.K.Metals - Further, duty stands confirmed against assessee on the basis of computer print outs - The assessee had taken a categorical stand that such computer was installed at their reception and has got nothing to do with the manufacturing activities - By referring to decisions of Tribunal in M/s.Harsinghar Gutka Pvt.Ltd. - 2009-TIOL-2503-CESTAT-DEL , M/s.Premier Instrument and Controls Ltd. and Sree Chakra Cement Ltd. - 2008-TIOL-2865-CESTAT-BANG , it stands contended that in the absence of any other evidence corroborating the allegation of clandestine removal, allegations cannot be upheld on the basis of only the computer print outs - Inasmuch as nothing has been shown by the Revenue, no reasons found to confirm the demand - Accordingly the demand along with interest and imposition of penalty is set aside - The penalty imposed against Shri Rajender Ahuja also is set aside: CESTAT
- Appeals allowed : ALLAHABAD CESTAT
CUSTOMS
NOTIFICATION
Trade Notice 45
Interest Equalisation Scheme (IES) for pre and post Shipment Rupee Export Credit and its expansion
CASE LAW
2019-TIOL-364-CESTAT-MUM
CC Vs Venkatesh Agencies
Cus - Respondent CHA was granted extension under Regulation 10(1) of the CHALR, 1984 to transact CHA business in Mumbai Customs - allegation of import of tyres by misusing IECs - DRI officers alleged that the CHA had violated the provisions of regulations 13 and 19of the CHALR, 2004 - enquiry officer, in his report, submitted that charges leveled cannot be proved in absence of any plausible evidence of misuse of CHA licence - accordingly, adjudicating authority dropped all charges - Revenue in appeal before CESTAT.
Held: Tribunal has in the case of Mukadam Freight Systems P Ltd. - 2017-TIOL-1760-CESTAT-MUM held that the right to prefer an appeal to the Tribunal under section 129A of the Customs Act against an order passed under CHALR, 2004 is only available to the CHA and Revenue cannot question maintainability of order passed under such regulations - Appeal dismissed as not maintainable: CESTAT [para 4, 5]
- Appeal dismissed : MUMBAI CESTAT
