SERVICE TAX

2019-TIOL-469-CESTAT-MAD

Khivraj Techpark Pvt Ltd Vs CST

ST - The assessee is engaged in providing Renting of Immovable Property Services - On investigation, it was noticed that assessee is not discharging service tax on fit outs leased to tenants - Undisputedly, assessee have entered into two different agreements for leasing the premises and leasing the fit outs - The fit outs include air conditioners, CCTV and fire alarms - They are discharging VAT on the rent received for leasing the fit outs - They have been discharging VAT even before the services of renting of immovable property became taxable - The decision in case of Imagic Creative Pvt. Ltd. - 2008-TIOL-04-SC-VAT has held that service tax and VAT are mutually exclusive - Further, the Tribunal in case of Ascendas IT Park (Chennai) Ltd. - 2014-TIOL-262-CESTAT-MAD has considered the very same issue and held that VAT and service tax being mutually exclusive, service tax cannot be demanded on the very same consideration received for renting of movable properties - Since there are two separate agreements for renting of fit outs and renting of premises, it can never be said that the amount received for renting of fit outs/movable properties would fall under renting of immovable properties - Following the said decisions, demand cannot sustain - Miscellaneous Applications filed by Department for change in cause title are allowed: CESTAT

- Appeals allowed: CHENNAI CESTAT

2019-TIOL-468-CESTAT-KOL

Lexmark International India Pvt Ltd Vs Commissioner of CGST & CE

ST - The appellants are engaged in exporting taxable output service namely, 'Information Software Service' - For providing the service, exported outside the country, the appellant availed various input services - Therefore, the services qualified as 'Export of Service', thus, the appellant filed Refund Claim in terms of Rule 5 of the Cenvat Rules read with the provisions of Notification No. 27/2012- CE(NT) for the relevant period - However, all the three adjudication orders as well as orders-in-appeal disallowed refund of credit.

Held: There cannot be two different yardsticks, one for permitting credit and the other for eligibility for granting rebate - Thus, whatever credit has been permitted to be taken, the same has to be permitted to be utilized, and when the same is not possible, there is provision for grant of refund or rebate - Accordingly, when the credit taken is not questioned the credit taken, the eligibility to rebate cannot be questioned - In the present case, some of the input services did not qualify the definition of input services of Cenvat Credit Rules - Accordingly, the Cenvat Credit was disallowed on the ground that the invoices were un-signed - But it was not in dispute that the payments had been made through Bank Account, which required verification - Hence, the matter was remanded back: CESTAT. (Para 7)

- Case remanded : KOLKATA CESTAT

 

 

 

 

CENTRAL EXCISE

2019-TIOL-467-CESTAT-AHM

Associated Power Structure Pvt Ltd Vs CCE & ST

CX - The assessee-company is engaged in manufacturing telecom towers & parts of windmill falling under Chapter 73 of the CETA 1985 - During the period of dispute, the Department conducted some investigations and then alleged that the assessee undertook job work activity on windmill parts & cleared them without payment of duty under Notfn No 06/2006-CE - It also alleged that the assessee availed credit on inputs used to produce both dutiable & exempted goods & that no separate accounts had been maintained - It was further alleged that the assessee availed credit on raw material supplied to them free of cost - It was further alleged that the assessee had not arrived at proper value for purpose of 10% reversal under Rule 6(3)(b) of CCR 2004 - Duty demands were raised with interest, along with penalty u/s 11AC of CEA 1944 r/w Rule 15(2).

Held: Regarding demand raised on assessee for retaining scrap arising from job work process, it is seen that the assessee already included scrap in job work charges - Hence it cannot be included again in the assessable value - The job work charges are not reduced by the value of scrap & there is no evidence alleging so - Besides the scrap retained was cleared after payment of duty - Hence the demand for differential amount of duty raised u/r 6(3)(b) is not sustainable - Regarding the demand raised on grounds that Cenvat credit of raw material be added to assessable value, such issue is settled by the Apex Court in Dai Ichi Karkaria Ltd. - Hence there are no grounds to demand duty on value equal to Cenvat of raw material - Besides, the quantum of scrap and its valuation has been adopted by Revenue as per the basis of the average of entire production of all products, irrespective of difference in design or specification - Hence as scrap generation can vary as per the product, the valuation method adopted by the Revenue is unsustainable - Duty demands warrant being set aside: CESTAT (Para 1,4,5,6) 

- Assessees' appeals allowed : AHMEDABAD CESTAT

2019-TIOL-466-CESTAT-ALL

Bhushan Steel Ltd Vs CCE

CX - During the period of dispute, the assessee-company cleared its products from its factory gate as well as from depots - The goods cleared from the factory gate were later sent to the depots after payment of duty at the factory gate itself - Hence in respect of some goods cleared from the depots, the assessee was liable to get some refunds.

Held: An identical issue was resolved by the Tribunal by remanding the matter - Hence the appeals filed in the present matter are similarly remanded back to the adjudicating authority, without expressing any opinion on merits: CESTAT  

- Case remanded : ALLAHABAD CESTAT