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SERVICE TAX
2019-TIOL-537-CESTAT-MAD
Rajesh Associates Vs CC
ST - M/s. Rajeswari Enterprises filed two Bills of Entry for import of crude palm oil availing duty exemption under Notfn 21/2002 - The importer filed four TRAs pertaining to DEPB license for various dates claiming adjustment of duty against duty payable amount - On verification, it was found that the TRAs were not issued to Tuticorin Port but to Chennai Port and also nto issued in favour of M/s. Rajeswari Enterprises - SCN was issued for confiscation of goods for demand of duty along with interest and for imposing penalty under section 112(a) / 114A of Customs Act, 1962 - There is nothing brought out from records that assessee had indulged in any conscious act while dealing with DEPB scrips - The department has failed to establish that assessee had prior knowledge that DEPB scrips / license were fraud at the time of transfer of such scrips by him to the importer - Further, the immediate reaction of assessee in reimbursing the money received itself would show that he had no knowledge of fake nature of the scrips - In fact, assessee has become a victim of dealings as he did not know about the fake nature of scrips - He had scouted for brokering under reference and there is nothing to establish his involvement in the chain of events - Assessee has relied heavily on the decision in case of Sanjay Agarwal wherein it was observed that when there is no evidence of any direct involvement of the broker as regards forgery of the license, penalty cannot be saddled upon the broker for mere involvement in transfer of the license in the normal course of business - Following the same, penalties imposed on assessee cannot sustain - The impugned orders are set aside: CESTAT
- Appeals allowed: CHENNAI CESTAT
2019-TIOL-536-CESTAT-MAD
S K Ramkumar And Company Vs CCE
ST - The assessee had undertaken civil construction work for BSNL Madurai and Tirunelveli - Though he was registered with department under CICS, did not pay service tax and that BSNL did not pay any service tax to him - It is deposed by assessee in his statement that all his tax compliance such as TDS and works contract tax are being looked after by BSNL authorities and that they have not informed him that he has to pay service tax - The main contention put forward is that he was under the impression that BSNL was deducting whatever tax payable and therefore he had no liability to pay the service tax - The issue whether works contract service is subject to levy of service tax was under dispute for a long time and it was settled by the decision of Supreme Court in case of Larsen & Toubro Ltd. - The Commissioner (A) has therefore rightly set aside the demand prior to 1.6.2007 - However, taking note of the fact that the issue was contentious and also the pleadings of assessee that he was unaware that the said services are subject to levy of service tax, the penalties imposed are unwarranted and are set aside invoking section 80 of FA, 1994 - Impugned order is modified to the extent of setting aside the penalty imposed under section 78 only: CESTAT
- Appeal partly allowed: CHENNAI CESTAT
2019-TIOL-535-CESTAT-DEL
Rama Construction Company Vs CCE
ST - The assessee is registered with service tax department for providing service of construction of commercial or industrial buildings and civil structure and work contract service - They had filed a refund claim on the ground that they have wrongly paid service tax under construction of complex service as they were otherwise exempted from payment of service tax - Its a matter of record that assessee has constructed 72 Type VI flats after getting a work order from NBCC Ltd. - It is apparent that where the NBCC is directly constructing the houses for Government of India which are meant for its officers, same are covered by the exemption category given under residential complex definition under Section 65 (50a) of FA, 1994 - It has further been clarified by CBEC in its Circular dated 21st October, 2011 that the benefit of exemption which are available to the main contractor of any infrastructure project same exemption cannot be denied to sub-contractor who is undertaking the construction of various infrastructure projects under work contract service - The sub-contractor providing service to NBCC who is the main contractor for construction of residential complex for Government of India will also be entitled for exemption category which is given in the definition of the residential complex itself - Since the activity itself of construction of houses for personal use is beyond the taxable category even if this activity is undertaken by any sub-contractor the category for the levy of service tax will not change and the sub-contractor will also be entitled for exemption which is given in definition itself - Tribunal also take shelter of decision in case of Khurana Engineering Ltd.- 2010-TIOL-1712-CESTAT-AHM - The order-in-appeal is without any merit and same is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2019-TIOL-534-CESTAT-BANG
Intuit India Product Development Centre Pvt Ltd Vs CCT
ST - The assessee is a unit registered under SEZ scheme and is engaged in business of provision of Information Technology Software Services - They have entered into an agreement with their overseas firm vide which they have agreed to provide various services relating to information technology and Research & Development service which are in the nature of export of service and for providing these services the assessee have availed various input services - The assessee in terms of provisions contained in notfn 12/2013- ST filed refund claims for various periods - Thereafter SCN was issued to assessee for nonsubmission of some of documents as well as for filing the refund claims as time barred under provisions of Section 11B of CEA, 1944 read with Section 83 of FA, 1994 - Both the authorities have not considered the reasons given by assessee for filing the refund claims after expiry of period specified in the notification - The original authority as well as Commissioner(A) both have not considered the reasons for delay in filing the claims and has not given any finding on the same - Whereas the Notfn 12/2013 has specifically given the power to Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise to condone the delay after being satisfied with the reasons given by the assessee - Further, Tribunal in various decisions has observed that the prayer for extension of time to claim refunds should be granted in a liberal manner - The impugned order is not sustainable in law as the same has been passed without appreciating the facts and the law and without affording the opportunity of hearing to the assessee - Therefore matter remanded back to the original authority to decide the claims of refund of assessee within a period of three months: CESTAT
- Matter remanded: BANGALORE CESTAT
CENTRAL EXCISE
2019-TIOL-72-SC-CX
Western Coalfields Ltd Vs CCE
CX - Whether the period of limitation of six months shall apply where the refund of central excise duty has been claimed by the buyer and paid by the manufacturer (M/s. Fenner (India) Ltd.) Under Protest.
Held: It is not disputed that the excise duty was paid by the manufacturer(M/s. Fenner (India) Ltd.) under protest to the department and the dispute with regard to the classification of the product finally came to be decided by this Court in M/s. Fenner India's case and the manufacturer M/s. Fenner (India) Ltd. never moved any application for refund of the excise duty at any given point of time - appellant is the buyer and purchased conveyor beltings from the manufacturer M/s. Fenner (India) Ltd. during the period 20 July, 1988 to 15 January, 1994 - The period for which the refund of excise duty has been claimed differs but in all the cases, applications have been filed by the appellant(buyer) much after the period of limitation which was six months from the date of purchase of goods at the time of filing of the application to claim refund under Section 11B of the Act - Section 11B deals with claim of refund of duty as paid on his own accord by any person for refund of such duty to the competent authority before the expiry of six months from the relevant date as prescribed but where the duty was paid under protest in terms of the secondproviso to Section 11B(1), the period of limitation may not apply - Although the buyer can also apply for refund provided the duty of excise is borne by the buyer and he had not passed on the incidence of such duty to any other person as referred to under Section 11B(2)(e) and the application has been moved within the period of six months from the relevant date of purchase of the goods by such person in terms of Section 11B(5)(B)(e) of the Act - scheme of Section 11B makes a distinction between right of the manufacturer to claim refund from right of the buyer to claim refund treating them separate and distinct for making an application for refund exercising their right under Section 11B of the Act - In the instant case, indisputedly the application was filed by the appellant as a buyer of the goods(conveyor belts) from M/s. Fenner (India) Ltd. who paid the duty under protest much after a period of limitation(six months) as prescribed under the mandate of law disentitles the claim of refund to the appellant as prayed for in view of the judgment of this Court in Allied Photographics India Ltd. case (supra) holding that the purchaser of the goods was not entitled to claim refund of duty made under protest by the manufacturer without complying the mandate of Section 11B of the Act, 1944 - the appeals are without substance and deserve to be rejected - appeals fail and are accordingly dismissed: Supreme Court [para 11, 12, 14, 15]
- Appeals dismissed: SUPREME COURT OF INDIA
2019-TIOL-71-SC-CX
CC, CE & ST Vs Mahindra And Mahindra Ltd
CX - The assessee-company manufacture Motor vehicles & parts thereof - One such model is the Mahindra Bolero Camper - The issue at hand is as to whether it is classifiable under CETH 8703 as vehicle for transportation of passengers or under CETH 8704 as vehicle for transportation of goods - Later the Tribunal applied the test of common parlance, and concluded that the car in question was not principally designed to transport passengers, but instead was designed for transporting goods - It also could not be treated as a station wagon under Heading 87.03 - Hence it held that the vehicle would fall under CETH 8704 - While the Revenue sought to treat it as a passenger vehicle, no evidence was put forth to prove that the vehicle was predominantly used to transport passengers & not goods - Besides, the vehicle is registered as a goods vehicle by the Road Transport Authorities, which the Tribunal found to be an accurate reflection of what the vehicle is understood to be in common parlance - Hence the Tribunal rejected the classification favored by the Revenue.
Held - The Delay condoned - Notice issued: SC
- Notice issued: SUPREME COURT OF INDIA 2019-TIOL-533-CESTAT-ALL
CNH Industrial India Pvt Ltd Vs CC, CE & ST
CX - The assessee is manufacturer of ‘Tractors' - Vide Notfn 23/2004-CE, the tractors became exempt from payment of duty - Therefore, assessee was asked to reverse Cenvat credit on the inputs laying in stock and work in progress - In pursuance to Notfn 23/2004-CE, the tractors manufactured by assessee became exempt from payment of duty - Therefore, assessee was directed to reverse Cenvat credit through PLA for input laying in stock, work in progress and contained finished goods - Admittedly, at the time of availment of Cenvat credit, the tractors are dutiable - Therefore, they were entitled to take Cenvat credit of inputs and capital goods - In that circumstances, the amount so deposited, not duty and the same has been decided by this Tribunal vide Final Order dated 30.04.2009, if amount paid under protest which is held to be not a duty - In the light of the decision of Madras High Court in case of UCAL Fuel Systems Ltd., the assessee is entitled to claim the interest from date of deposit to its realization - Therefore, assessee is entitled to pay interest from the date of payment of deposit till its realization: CESTAT
- Appeal allowed : ALLAHABAD CESTAT
CUSTOMS
CIRCULAR
cuscir06_2019
Rescinding Board Circular No. 132/95-Customs dated 22nd December, 1995: regarding
cuscir05_2019
Drawback rates hike for certain goods
CASE LAW
2019-TIOL-532-CESTAT-KOL
Adani Wilmar Ltd Vs CC
Cus - The assessee-company filed the present applications seeking condonation of 2-day delay in filing appeal before the Tribunal as well as seeking out of turn hearing.
Held: It is seen that the Commr.(A) dismissed the appeal on grounds of time bar - Further, while all the present appeals were filed beyond the 60-day limitation period, they were filed within the condonable period of 30 days - Hence the delay in filing appeal before the Commr.(A) is condoned & consequently, the O-i-A dismissing the appeals merits being quashed - The Commr.(A) is directed to hear the matter afresh in keeping with the principles of natural justice: CESTAT
- Assessee's applications allowed: KOLKATA CESTAT
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