Whether the date of filing of Form-29B can be relevant for attributing delay on the part of assessee for processing of refund - NO: HC

Whether taxpayer is eigible to claim interest u/s 244 on income tax refund, only from the date of revised return and not original return, as the delay in claiming enhanced refund can only be attributable to the taxpayer himself - YES: HC

- Assessee's appeal partly allowed : KERALA HIGH COURT

Whether benefit of deduction u/s 10A & 10B are available on all income generated through business activity of exports - YES: HC

Whether the scope of deduction available under u/s 10A & Section 10B are wider than the deduction available u/s 80IA, to the effect that deduction u/s the former provisions are available to all income generated by business activities pertaining to export - YES: HC

Whether certain provisions enacted with the objective of promoting the economic growth of a certain class of undertakings, must be construed liberally in keeping with the purpose behind such provisions - YES: HC

- Assessee's appeals allowed : MADRAS HIGH COURT

Whether the assessee would be liable for tax & for the expenditure incurred in importing, when it is sufficiently proved that he was the real importer though the licence of a third party was used- YES: HC

Whether deduction can be allowed on fine or penalty for redemption of goods ordered to be confiscated for breach of import conditions - NO: HC

- Revenue's appeal allowed : BOMBAY HIGH COURT

Tata Motors Ltd Vs CCE & ST

ST - A contractual obligation or collection of consideration for the same cannot be equated to providing of service: CESTAT [para 3.19, 3.20, 3.22, 3.24, 3.25, 3.26, 4.4, 4.4, 4.6, 5.2, 5.4, 5.5, 5.6, 5.7, 5.10, 5.13, 5.16, 5.18, 7.1]

- Appeals disposed of: MUMBAI CESTAT

2019-TIOL-612-CESTAT-KOL

ST - The assessee is engaged in providing "Cleaning Services" for removal of Ash deposited in Pond of Power plant of M/s. Bokaro Steel plant, unit of Steel Authority of India Limited and M/s. Bokaro Power Supply Company Limited, Bokaro - The active power of Steel was sold to one Bokaro Power Supply Company Limited, Bokaro for generation of power and steel - In course of generation of electricity, ash is generated which is dumped in Ash Pond - A SCN was issued directing the assessee to pay Service Tax under category of "Cleaning Services" - T he activity of excavation and transportation of fly ash from pond for channeling the slurry water-flow cannot be termed as "cleaning activity" in terms of Section 65 (24B) of Finance Act - The assessee is not clearing the fly ash with the objective of cleaning the pond or free the pond from contamination - Fly ash is being excavated and transported to specified areas as per the contract - Fly ash is a saleable good, which is further used in manufacture of bricks and hence it is not waste, which is being removed from the pond - It has specific utility and capable of being sold in the market - Issue is covered by decision in case of M/s. Calcutta Industrial Supply Corporation - No infirmity found in impugned order and accordingly, same is sustained: CESTAT

- Appeal dismissed: KOLKATA CESTAT

2019-TIOL-611-CESTAT-DEL

ST - During the relevant period, the Revenue claimed that the appellant company supplied aircraft/helicopters owned by it, to other entities for their use - The appellant would sign agreements with the other entities, to such end - Along with the aircraft, the appellant also supplied its own crew, thus retaining effective control and possession over the aircraft/helicopter - While the assessee was paying service tax under 'Transport of Passengers by Air Service', the Revenue opined that such activity was taxable as 'Supply of Tangible Goods Service' - The Cenvat credit taken by the appellant on spares, but not availed was also sought to be denied - Hence duty demands were confirmed with interest & penalties were imposed - Amounts already deposited by the appellant were appropriated.

Held: As the appellant retains effective possession and ownership over the aircraft/helicopters, it is entitled for Cenvat Credit on salary of pilots and service charges for repair and maintenance, including paid under Reverse Charge Mechanism - Moreover, there is no allegation in the O-i-O that the appellant did not cooperate with the investigation undertaken by the Revenue - The appellant fully complied with all the requisitions of the Department and also submitted all the documents/information as and when called for by the Revenue - Hence no case was made out against the appellant that it suppressed any facts or committed any fraud with intent to evade payment of service tax - Hence the allegations of suppression or fraud with intent to evade payment of service tax cannot be sustained - Besides, in Commissioner of Central Excise, Chennai Vs Chennai Petroleum Corporation Ltd. the Apex Court held that extended period of limitation could not be invoked based on mere allegation of suppression, if the Department was aware of the appellant's activities - Hence the invoking of extended period of limitation is set aside - Hence the duty demand be calculated for the normal period of one year - Regarding penalty, it is seen that while the appellant did not pay service tax under 'Supply of Tangible Goods Service', it suo motu deposited tax under 'Passenger Travel by Air' - Besides, it also contested the issue from the beginning of the investigation & did not suppress any information from the Department - Hence no penalty u/s 76 for non-payment of tax or u/s 77 for failure to file ST-3 returns or u/s 78 for deliberately suppressing facts, can be imposed - Hence the appeal is partly allowed: CESTAT (Para 2,35.7,5.12,5.13,5.14)

- Assessee's appeal partly allowed: DELHI CESTAT

2019-TIOL-610-CESTAT-DEL

CX - The assessee have established their factories in State of Rajasthan and were operating under Rajasthan Investment Promotion Scheme - The assessee was eligible for subsidies as per the various schemes applicable to assesses and they were required to deposit VAT/CST/SGST at the applicable rate with Government and in terms of scheme notified, will be entitled to disbursement of subsidy by appropriated authorities - The subsidy concern is sanctioned and disbursed in Form 37B and as such challans in form VAT 37B can be utilised for discharge of VAT liability of assessee for subsequent period - The Revenue was of the view that VAT liability discharged by utilisation of investment subsidy granted in Form 37B actually paid, for the purpose of Section 4 of Central Excise Act - The identical issue has come up before Tribunal in assessee's own case - By following the said order, impugned order is set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2019-TIOL-609-CESTAT-AHM

CX - The assessee-company is engaged in manufacturing bearings and supplying the same to various wind mill manufacturers - It was aggrieved by denial of benefit under Notfn No 12/2012-CE - The Revenue denied such benefit on grounds that the bearings supplied by them to wind mill manufacturers were not part of the wind mill and thus ineligible for benefit under the notification - Further, benefit for period after 11.07.2014 was denied on grounds of not satisfying conditions prescribed under No 332.(A) of the Notfn.

Held: It is seen that Notfn No 12/2012-CE exempts non-conventional energy devices or systems specified in List 8 from Excide duty - Sr No 13 of the Notfn covers 'wind operated electricity generators, its components and parts thereof including rotor and wind turbine controller' - Such exemption was available even after amendment of the notfn on 11.07.2014 - Hence not only wind turbine electricity generators but its components and parts are exempted under the Notfn, regardless of where they are used - In the present case, the bearings manufactured by the appellant are used as components of wind operated electricity generators & these bearings are supplied directly to manufacturers of wind operated electricity generators & are used as component of the wind turbine - Moreover, the Apex Court in Insulation Electrical P. Ltd. held that bearings were an integral component of windmills, without which the latter could not function - Thus a bearing can be treated as a component of a windmill & so eligible for exemption under Notfn No 12/2012-CE - Hence the orders denying exemption, merit being quashed: CESTAT (Para 1,2,4)

- Assessee's appeal allowed: AHMEDABAD CESTAT

2019-TIOL-608-CESTAT-AHM

CX - The assessee had cleared the glass manufactured by them on payment of Excise Duty on the price by claiming deduction there from in respect of cost of secondary packing, i.e., Wooden crates for the period April- November 1994 - Three SCNs were issued proposing to disallow said deduction and demand differential excise duty - After long litigation, the issue in dispute that whether the cost of secondary packing that is, wooden crates is includable in assessable value of the final product of assessee, i.e. glass has been settled by High Court of Gujarat in their own case - The refund claim in the present case has arisen from the order of demand case which was decided by Tribunal and the same was upheld by the High Court of Gujarat - In this position, the assessee is prima-facie entitled for refund of duty paid on merit - However, as regard the issue of unjust enrichment, since refund is governed by the provisions of Section 11B of CEA, 1944, the refund under the mandate of said law must pass the test of unjust enrichment - This view is supported by Supreme Court judgment in case of Sahakari Khand Udyog Mandal Limited - 2005-TIOL-48-SC-CX-LB - Revenue's appeal disposed of by way of remand to the Adjudicating Authority for passing a fresh order: CESTAT

- Matter remanded: AHMEDABAD CESTAT