ST - The issue involved is that whether the service tax attributed to TDS deducted by service tax recipient is refundable to the service provider - The service charge which is billed by service provider is a gross value in terms of section 67 of FA, 1994 - TDS even if deductible by the service recipient, it is available to the service provider for adjustment against their tax liability - Therefore, the service tax is chargeable on the gross amount and not on the amount excluding the TDS - Accordingly, no infirmity found in impugned order and the same is upheld: CESTATS

- Appeal dismissed: AHMEDABAD CESTAT

ST - The assessee is engaged in export of Information Technology Software Services and filed a refund claim to the extent of around Rs.4.24 Crores - The refund to the tune of around Rs.3.89 Crores was sanctioned and in respect of balance proceedings were initiated by way of issuance of SCN proposing denial of balance refund claim on the ground that some of the input services are not Cenvatable inasmuch as they are not relatable to their output export services - Admittedly service provider has paid the Service Tax - Irrespective of the fact under which category the said Service Tax has been paid, assessee has utilized his services, which are required for providing output services - As such the Service Tax paid by service provider would be admissible as a credit to assessee and consequently as a refund in terms of provisions of Rule 5 of Cenvat Credit Rules read with Notfn in question - As such refund of Rs.4,50,111/- relatable to said services allowed - As regards the refund claim relatable to Event Management and Commercial Training, said issue already stands considered by Tribunal in assessee's own case laying down the said services as Cenvatable input services and assessee being entitled to refund of the same - As such by following the said decision of Tribunal, refund of Service Tax of Rs.97,129/- and Rs.33,913/- relatable to said services allowed - As regards the interest portion in respect of Rs.20.98 Lakhs withdrawn by assessee from their claim of refund and reversed from their Cenvat credit account, assessee having availed the said credit, on its own decided that the same was not available to them - The issue as to whether the interest would be leviable stands decided by Karnataka High Court in case of Bill Forge Pvt.Ltd. - 2011-TIOL-799-HC-KAR-CX and by the Madras High Court in case of Strategic Engineering (P) Ltd - 2014-TIOL-466-HC-MAD-CX - It stands held in said decision that the reversal of wrongfully availed credit without utilization will not attract any interest liability - By following the said decisions, demand for interest is set aside: CESTAT

- Appeal allowed: ALLAHABAD CESTAT

ST - It is clear from impugned order that vide a letter dt. 14.07.2004, the Superintendent of Central Excise, Service Tax Cell had directed the respondents to discharge service tax liability for donations received by them for period 1999-2000 to 2002-2003 - There appears to have been no further follow up thereafter in the matter by the department - Subsequently both the units were visited twice by internal audit of Service Tax Commissionerate during which time also the point of dispute earlier communicated by Superintendent in their letter dt. 14.07.2004 was not followed up - Only in the third audit conducted in 2007 did the disputed amount re-emerge and the SCNs have finally been issued on 22.09.2008 - Quite obviously, there has been considerable laxity on the part of department - Nothing prevented them from issuing SCNs in 2004 itself when after collecting information, assessees had been advised by the department that service tax liability is required to be paid on the amount of "donation" - No infirmity found with the order of Commissioner (A) that extended period cannot be invoked; that in the case of SCN dt. 22.09.2008 in respect of Rani Meyyammai Hall, the demand for the period from 23.09.2007 to 30.11.2007 alone will survive; that similarly, in the case of SCN dt. 22.9.2008 in respect of Raja Muthiah Hall the demand only for the period 23.09.2007 to 30.11.22007 alone will survive: CESTAT

- Appeals dismissed: CHENNAI CESTAT

CX - The assessee-company was served an SCN in the relevant period, alleging that it procured unaccounted raw material and indulged in clandestine manufacture & removal of finished goods - Such charges were based on intelligence gathered by the Department - Duty demand was raised on quantity of goods allegedly cleared clandestinely - Duty already paid through Cenvat ledger entry was appropriated - Demand was raised seeking recovery of credit availed proportionate to the quantities of inputs clandestinely cleared - Demand was raised for recovery of credit availed on inputs found to be short received - Demands for interest were raised & penalties were imposed u/s 11AC of CEA 1944 & u/r 15(2) of CCR 2004 - Personal penalties were also imposed on the directors in the assessee-company - Such demands were confirmed by the Commr.(A).

Held: The entire amount of duty is already paid & has not been demanded back - Hence the scope of the appeal pertains to credit availed on raw material & imposition of equivalent penalty on the assessee company and also the personal penalty imposed on the directors - Regarding credit availed on raw coal, it is seen that such coal is send to washeries for removing impurities before being used in manufacture of final products - The job worker paid the service tax on the entire value - The Department denied credit on grounds that entire raw material was not used in manufacturing the final product & some part of the inputs was lost - However, as the Department conceded that the washing process was undertaken in the assessee's own factory, the entire credit is available - Such part of the O-i-A which denies credit is unsustainable - Moreover, it is seen that the allegations of shortage are based on statements taken from an office-bearer of the assessee-company - As far as the company & its directors are concerned, such person is a third party - Besides, the statements are uncorroborated & proper physical verification of stock, raw material & finished goods was not conducted - The estimation is based on presumptions - Thus allegations of clandestine removal being serious in nature, cannot be sustained based on third party evidence & where no clinching evidence is found - Thus considering that there is no shortage as alleged & the duty demand is paid before issuing SCN, the proviso to Section 11AC is applicable, under which the assessee has to pay penalty of only 25% of the duty demanded - Moreover, the Department denied credit to the assessee, relying upon the provisions of Notfn No 214/86 - However, such notification is nowhere mentioned in the SCN issued - Thus if the allegations in the SCN are not specific, then the assessee cannot be said to have been given sufficient opportunity - Such grounds not mentioned cannot be allowed to travel beyond the SCN - The personal penalty on the directors is scrapped as no mens rea evade taxes is attributed & considering that duty allegedly short-paid was already paid before issuing SCN - Hence the appeals are partly allowed: CESTAT (Para 2,6-11)

- Assessees' appeals partly allowed; DELHI CESTAT

CX - The assessee-company and its director challenge duty demand raised on account of duty demand raised with interest & penalty, on account of clandestine clearances made on the basis of parallel invoices.

Held: It is seen that the present case involves blatant misuse of self-removal procedure under Central Excise - The appellants issued parallel invoices for clearing goods without payment of duty - This was evidenced through invoices recovered from the dealers & the same was confirmed by buyers - Moreover, as the situation is not revenue-neutral as claimed by the appellants, the extended period of limitation is correctly invoked - The personal penalty on the director is sustained, since he was aware of the illicit activities & his signatures also appear on the invoices - Hence the duty demands with interest are sustained as the appellants herein cleared goods without preparing invoices - However, option of paying reduced penalty @ 25% is extended if the appellants pay duty demanded with interest within 30 days of demand being raised: CESTAT (Para 2,4,6,8,11,12)

- Assessees' appeals partly allowed: AHMEDABAD CESTAT

Cus - The appellants were involved in the business of trading of pre-painted steel coils which were imported on payment of customs duty @ 10% - Further, the appellants noted that the effective rate of duty was 7.5% as per Notification No.12/2012 which resulted in excess payment - Thus, the appellants filed a refund claim before the Deputy Commissioner - But such claim was returned based on the matter where import were finalized and the Department was not in a position to process the refund claim hence the appellant was advised to challenge the Bill of Entry - On appeal, the Commissioner(A) rejected the appeal of appellants.

Held: The appellant has proved on record that he has filed the appeal - The Court held that the appeal section has wrongly sent the appeal to the refund section - Further, it is only through the RTI application, it was known that the appeal was filed but the Commissioner(A) has taken literal interpretation of the forwarding letter - It was also mentioned that the appeal was within time before the Commissioner(A) - Thus, the appeal on time bar is not tenable in law and remand the case back to the Commissioner(A) by affording an opportunity of hearing to the appellants: CESTAT (paras 2, 6)

- Case Remanded: BANGALORE CESTAT