2019-TIOL-599-CESTAT-MUM
Jaiswal Infrastructure Vs CCE & ST
ST - Condonation of delay - Appellant submitting that o-in-a dated 28.11.2017 had not been received by them and they came to know about it only after receiving letter dated 15.02.2018 from department directing them to pay the outstanding dues; that they procured a copy of the o-in-a from the office of Commissioner(A) on 27.08.2018 and an appeal was filed before CESTAT on 10.09.2018.
Held: Revenue has been able to establish on the basis of report of the Postal department accompanied with a copy of the acknowledgement that the o-in-a was delivered to appellant on 02.12.2017 and thus the due date for filing appeal was 02.03.2018 but the same was filed only on 10.08.2018 - There is no valid reason to accept the submission of the appellant that they have not received the copy of order as on 02.12.2017 - explanation furnished by the appellant explaining the delay seems to be not bonafide and is attributable to negligence of the appellant - therefore, miscellaneous application seeking condonation of delay is dismissed and so is the appeal: CESTAT [para 5, 6]
- Appeal dismissed: MUMBAI CESTAT
2019-TIOL-598-CESTAT-ALL
KDP Infrastructure Pvt Ltd Vs CCE & ST
ST - The assessee is engaged in providing taxable services under category of "Construction of Residential Complex" and is duly registered with Service Tax Department for said purpose - The first issue relates to inclusion of amount collected by assessee as IFMS - Revenue's contention is that the said collected amount would fall under category of 'Management Maintenance and Repair Services' and would be liable to service tax separately - The issue stands decided by decision in case of Sand Dune Construction Pvt. Ltd., whereby while taking note of the precedent decision of Tribunal in case of Kumar Beheray Rathi 2013-TIOL-1806-CESTAT-MUM - It was held that security deposits collected by Builder for providing maintenance to immovable property services would not be taxable under category of 'Management Maintenance or Repairs Services' - In fact, Commissioner (A) for the subsequent period in assessee's own case has dropped the demand - Inasmuch as issue stands decided, no reason found to take a different view - Accordingly demand on the said count is set aside, alongwith setting aside of penalty.
The second issue relates to demand of service tax on 'External Development Charges' received by assessee from the flat owners, which stands taxed under category of "Special services provided by Builder" which category was introduced in year 2010 - According to assessee, the said amounts stand collected by them from flat owners and given to Government Agencies for procuring the infrastructural facilities from them - The Adjudicating Authority has not disputed the said fact but has reasoned that inasmuch as the said amount were given to Ghaziabad Development Authority, which cannot be considered to be Government, the same would be liable to tax - Admittedly Ghaziabad Development Authority has been constituted under Uttar Pradesh Urban Planning and Development Act, 1973 and money collected by assessee stands paid to them for obtaining the facilities - As such nothing stand collected by assessee from their customers for providing any taxable service - Accordingly, said demand is also not sustainable: CESTAT
- Appeal allowed: ALLAHABAD CESTAT
2019-TIOL-597-CESTAT-MUM
Firstrand Services Pvt Ltd Vs Commissioner of CGST & CE
ST - Refund - CENVAT - Rule 5 of CCR, 2004 r/w notification 27/2012-CX(NT) - Rule 6A of STR, 1994 - Export of service - Adjudicating authority has allowed refund claim holding that the services rendered by the appellant to their counterpart situated outside India is an export service, however, in Revenue appeal this order has been reversed by Commissioner(A), therefore, appellant is before CESTAT.
Held: Rule 3 of POPS, 2012 - There is no allegation that any data stored outside India have been retrieved or used by the appellant so as to qualify under the category of OIDAR service prescribed u/r 9(b) of POPS, 2012 - also their case cannot be called as ‘intermediary service' under rule 2(f) of POPS, 2012 - as the appellant has directly provided services to the foreign clients and not acted as an intermediate in the provision of development of software and maintenance service, finding of Commissioner(A) that the appellant is an ‘intermediary' is without any basis and, therefore, not sustainable in law - impugned order is set aside and the order passed by the adjudicating authority is restored - appeal allowed with consequential relief: CESTAT [para 6, 8]
- Appeal allowed: MUMBAI CESTAT
CENTRAL EXCISE
2019-TIOL-606-CESTAT-MUM + Case Story
CCE Vs Orange City Alloys Pvt Ltd
CX - Valuation - Section 4 of CEA, 1944 - Even if the buyer company is an inter-connected undertaking, it cannot be treated as a 'related person' in absence of any relationship as specified under the sub-clause (ii), (iii) or (iv) of s.4(3)(b) of CEA, 1944 - resorting to valuation of the steel ingots in terms of rule 8 of the Valuation Rules, 2000 is untenable - o-in-a is legal and proper - Revenue appeal dismissed: CESTAT [para 4 to 7]
- Appeal dismissed: MUMBAI CESTAT
2019-TIOL-473-HC-MUM-CX
Raj Electrical Engineering Works Vs CC, CE & ST
CX - The assessee subjected himself to a scheme known as VCES - They runs an enterprise and is engaged in providing taxable services - The assessee received a notice and thereby certain amount was directed to be paid by them as against unpaid taxes - Assessee by placing heavy reliance on judgment of Madras High Court in matter of Narasimha Mills Pvt. Ltd. 2015-TIOL-1504-HC-MAD-ST submitted that the very issue fall for consideration before Madras High Court by specific observation, dismissed the appeal on the ground that there is no remedy of appeal in the scheme would be giving unfettered power to the authority and same is not acceptable - The impugned order is quashed and set aside - The CESTAT to hear the appeal afresh and pass appropriate orders on merit: HC
- Appeal allowed: BOMBAY HIGH COURT
2019-TIOL-596-CESTAT-MUM
Andrew Telecommunications India Pvt Ltd Vs CCE
CX - Appellant cleared excisable goods to their depot on payment of appropriate CE duty @14.42% - later, the said goods were brought back to their factory and CENVAT credit was availed of the duty paid - said goods were thereafter cleared again on payment of duty @10.30% instead of reversing the actual credit availed at the time of receipt from depot - Differential duty demand issued and confirmed along with interest and penalty - amounts paid of duty and interest were appropriated - appeal against imposition of penalty.
Held: Issue is whether on clearance of ‘returned goods' received u/r 16(1) of CER, appellant is required to reverse the amount of credit availed on the quantum of duty initially paid or pay the rate of duty prevalent on the date of clearance -It is clear on a plain reading of rule 16 that when the ‘returned goods' are subjected to process which does not result in manufacture, the assessee has to pay an amount equal to the CENVAT credit taken - no evidence has been brought on record to indicate that the goods were subjected to process amounting to manufacture, hence credit initially taken has to be reversed and there is no discrepancy in the order to the extent of confirmation of demand and interest - however, insofar as imposition of penalty is concerned, the demand has been issued for normal period and the assessee has paid the differential duty along with interest, therefore, penalty equivalent to duty/credit is unwarranted - penalty set aside and appeal is allowed to the said extent: CESTAT [para 6, 6.1]
- Appeal partly allowed: MUMBAI CESTAT
2019-TIOL-595-CESTAT-MUM
Athani Sugars Ltd Vs Commissioner of CGST
CX - Appellant engaged in manufacture of sugar and molasses - alleging that appellant had cleared exempted goods viz. Bagasse which emerged as byproduct without reversing the amount as mandated in terms of rule 6(3)(i) of CCR, SCN issued and demand confirmed by lower authorities - appeal before CESTAT.
Held: Issue has been settled in appellant's favour in their own case reported as - 2017-TIOL-4280-CESTAT-MUM, by taking note of the apex court decision in DSCL Sugar Ltd. - 2015-TIOL-240-SC-CX, therefore, impugned order is bad in law - same is set aside and appeal is allowed with consequential relief: CESTAT [para 6, 7]
- Appeal allowed: MUMBAI CESTAT
2019-TIOL-594-CESTAT-MUM
Basf Construction Chemicals India Pvt Ltd Vs CCE
CX -Input Service - Rule 2(l) of CCR, 2004 - Issue of eligibility of CENVAT credit of service tax paid on outward freight for the period prior to 01.04.2008 has been settled in favour by the apex court in the case of Vasavadatta Cements Ltd. - 2018-TIOL-90-SC-CX - it is held that the expression used in the Rule 2(l) is 'from the place of removal'; that it has to be from the place of removal upto a certain point, therefore, tax paid on the transportation of the final product from the place of removal upto the first point, whether it is depot or the customer, has to be allowed; that such view gets support from the amendment which has been carried out by the rule making authority w.e.f. 01.04.2008 vide Notification No. 10/2008 CE(NT) dated 01.03.2008 whereby the aforesaid expression 'from the place of removal' is substituted by 'upto the place of removal' -following the same, impugned order set aside and appeal allowed with consequential relief: CESTAT [para 6, 7]
- Appeal allowed: MUMBAI CESTAT
CUSTOMS
2019-TIOL-604-CESTAT-MUM
CC Vs Bytes World
Cus - Adjudicating authority held that Jet flash imported by the respondent is classifiable under CTH 8523 5100 and exempted from BCD under notification 24/2005-Cus and CVD under notification 6/2006-CX - pursuant to Revenue appeal, Commissioner(A) held that the imported goods are classifiable under CTH 8542 and denied the benefit of exemption notification 6/2006-CX - Revenue is again in appeal before CESTAT arguing that by changing the classification, the Commissioner(A) had gone beyond the scope of the appeal that was filed by department.
Held: To substantiate the claim that the Commissioner(A) had travelled beyond the scope of appeal filed, Revenue has not filed the appeal copy filed by them, therefore, the present appeal needs to be dismissed on the ground that the same is unsubstantiated - not a single ground has been mentioned stating as to why the classification under heading 8542 is not correct, therefore, Bench is not inclined to take up the issue of classification - appeal is dismissed: CESTAT [para 4.1 to 4.3]
- Appeal dismissed: MUMBAI CESTAT
2019-TIOL-593-CESTAT-MUM
Apar Industries Ltd Vs CC
Cus -Issue is whether differential duty could be levied and collected on the short landing of goods imported even though there is no change in the price declared in the respective invoice.
Held: Duty is payable on the quantity received in India, not the quantity exported from another country - Where goods which are imported are lost, pilfered or destroyed, no import duty is leviable thereon until they are out of customs and come into the hands of the importer - Quantity of crude oil actually received into a shore tank in a port in India should be the basis for payment of Customs duty - apex court decision in Mangalore Refinery & Petrochemicals Ltd. - 2015-TIOL-199-SC-CUS followed - impugned order set aside and appeal allowed with consequential relief: CESTAT [para 6, 7]
- Appeal allowed: MUMBAI CESTAT
