SERVICE TAX
2019-TIOL-294-HC-MUM-ST + Case Story
CST Vs Idea Cellular Ltd
ST - Revenue seeking confiscation of CENVAtted capital goods as credit has been denied thereon - Tribunal had, in assessees appeal, held that extended period of limitation cannot be invoked since it is a matter of interpretation and also set aside the penalties and, therefore, question of confiscation does not arise and accordingly Revenue appeal was rejected - Appeal to High Court.
Held: A finding rendered by the Tribunal in the backdrop of the peculiar facts and circumstances is a mixed finding and once such is the nature of the finding, it cannot be termed as perverse, but a plausible and possible view of the matter - the questions proposed by the Revenue in appeal are not substantial questions of law, therefore, appeal dismissed but without any order as to costs: High Court [para 4, 5]
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Appeal dismissed
: BOMBAY HIGH COURT
2019-TIOL-389-CESTAT-DEL
Atul Engineering Udyog Vs CC & CE
ST - The assessee-company is manufacturer and supplier of CI Castings & M.S. Castings - Penalty to the tunes of identical amount of the service tax was levied on the ground that the assessee was providing business auxiliary services to their principal manufacturers and as such the activity was not covered under Notification No.214/86-CE - Such demand was confirmed by the Commr.(A).
Held - Conversion of waste and scrape into casting amount to manufacture and such manufacturing activity was being undertaken in terms of Notification No.2014/86-CE, which was permitted by the Revenue itself - The melting of scrap by electric furnace resulted in emergence of some product - Thus, demand confirmed to the extent as well as the penalty is set aside - Also, on admission of the assessee, service tax stands confirmed against the appellant in respect of commission earned on trading of commodities - Since, the law during the relevant period was not clear and there could be a bona-fide belief on the part of the assessee that the said transaction are not taxable, the penalty is set aisde: CESTAT (Para 4,5,6,8)
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Assessee's appeal partly allowed
: DELHI CESTAT
2019-TIOL-387-CESTAT-BANG
Suprajit Automative Pvt Ltd Vs CCT
ST - The assessee is engaged in manufacture of excisable goods i.e., automotive cables - During audit, it was noticed that assessee had availed excess credit without availability of credit and taken a wrong opening balance of service tax credit in ER-1 return - The Department entertained the view that the assessee has taken irregular CENVAT credit - The assessee is a 100% EOU and as and when the audit pointed out the irregular availment of credit, the assessee reversed the same along with interest and also paid 25% of penalty as directed by original authority - But they have challenged the imposition of penalty before Commissioner (A) but the Commissioner (A) rejected the said appeal - Further, the department has not brought any evidence on record to show that assessee have suppressed the material fact with intent to evade payment of duty - As and when it was brought to their notice, they reversed the same - Therefore, penalty is not imposable in such circumstances: CESTAT
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Appeal allowed
: BANGALORE CESTAT
2019-TIOL-379-CESTAT-MUM + Case Story
Ranjana S Nargolkar Vs CCE
ST - Change in law mandating pre-deposit should have been included in the preamble to the order to enable appellant to comply - rejection of appeal by Commissioner (A) on the ground that pre-deposit was not made before filing appeal cannot be concurred with - since appeal not disposed on merits, matter remanded for proper disposal: CESTAT [para 5, 6]
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Matter remanded
: MUMBAI CESTAT
CENTRAL EXCISE
2019-TIOL-388-CESTAT-KOL
Shyam Ferro Alloys Ltd Vs CCE & ST
CX - The assessee is engaged in manufacture of Ferro alloys in two manufacturing units - Manganese Ore is an imported raw material for both units and import of such raw material is co-ordinated from Head Office situated at Calcutta - A common Bill of Entry has filed for clearance but such raw materials have been diverted to Durgapur as well as Wardhman units as required in respective units - For such transfer, inter-office document termed as 'transfer memo' has been issued to which a copy of bill of entry has been attached - The assessee (in Durgapur Unit) availed Cenvat Credit to the extent of quantities received by them of CVD and SAD paid in Bill of Entry - Such Cenvat Credit availed was disallowed by Adjudicating Authority on the ground that 'transfer memo' is not a document which is specified in Rule 9 of CCR, 2004 - The imported ore has been transferred directly to two manufacturing units of assessee including Durgapur - The relevant document indicating payment of duty was the bill of entry - Since the entire quantity covered by bill of entry, has not been moved to one unit, assessee has issued an internal document termed as 'transfer memo' in which the quantities transferred to Durgapur unit has been indicated - There is no dispute regarding receipt of such goods in Durgapur unit or the use of such raw material in manufacture of final product - Similar case has been considered by Supreme Court in case of Marmagoa Steel Ltd 2008-TIOL-249-SC-CX - In said case, the Apex Court has allowed the Cenvat Credit on basis of Bill of Entry attached with a delivery challan indicating the quantities - Similar view has also been taken by Tribunal in many cases - Tribunal have no hesitation in allowing Cenvat Credit availed by assessee on the basis of Bills of Entry and transfer memo - In the result, the impugned orders are set aside: CESTAT
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Appeals allowed
: KOLKATA CESTAT
CUSTOMS
2019-TIOL-386-CESTAT-MAD
Indo Organic Chemical Corporation Vs CC
Cus - The assessee-company imported some quantities of Ammonium Persulphate, Sodium Persulphate and Potasium Persulphate from China - The Revenue opined that the imported goods would attract Anti-Dumping Duty as per Notfn No 96/2007 - Duty demands were raised through SCNs - In the subsequent O-i-O, it was noted that the Revenue unsuccessfully tried to serve the notices to the assessee & so the provisions of Section 153 of the Customs Act were attracted, wherein the notices could be affixed to the Customs House notice board - The assessee then approached the Commr.(A), claiming that the demand had become barred by limitation by the time the assessee received the demand notice - It was also claimed that the assessee's address mentioned on the demand notice was incorrect - When a fresh O-i-O was passed, the assessee again approached the Commr.(A), who dismissed the assessee's appeal.
Held - The assessee claimed that the order passed by the Commr.(A) too mentioned the incorrect address of the assessee, in the sense that one particular detail was missing - Considering the Bills of Entry filed and the assessee's letter head, the supposedly missing details is not mentioned any where else - It is also missing in the assessee's Form of Appeal, filed before the Commr.(A) - It is also not the assessee's case that its address had changed or that the notice was sent to the wrong address - The assessee does not also challenge the remarks made by the postal authorities, who claimed to have been unable to serve the notice due to 'door lock' - Moreover, the assessee also does not dispute the laibility of ADD - Hence all the objections raised by the assessee are unwarranted & do not hold much water - The O-i-A in challenge does not warrant any intervention: CESTAT (Para 2.2,5.5,6)
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Assessee's appeal dismissed
: CHENNAI CESTAT
