SERVICE TAX

2019-TIOL-648-CESTAT-HYD

ARD Estates And Projects Pvt Ltd Vs CCCE & ST

ST - Construction of Residential complex services, Site formation/Works Contract services - Appellant is only contesting imposition of penalties u/ss 77 & 78 on the ground that they were under the impression that service tax was not payable and when it was pointed out they have paid the same immediately along with interest; that they have provided full information to the investigation agency DGCEI when called upon to do so and whch shows their bonafides.

Held: In view of the fact that the appellant has paid the entire service tax along with interest as and when pointed out and has also fully cooperated with the investigation by providing whatever information was sought without delay, the assessee has made out a case to seek waiver of penalty u/s 80 of the FA, 1994 - invoking the provisions of s.80, the penalties imposed u/s 77, 78 are set aside while upholding the demand of service tax and interest - appeal is partly allowed: CESTAT [para 5, 6]

- Appeal partly allowed: HYDERABAD CESTAT

2019-TIOL-647-CESTAT-DEL

Narmada Malwa Gamin Bank Vs CCE

ST - The assessee is a licensed Banker for undertaking the banking business - The assessee is registered with Service Tax Department under taxable category of banking and financial service - The bills/ invoices were issued by vendors in the name of Narmada Jhabua Gramin Bank, Indore and the head office distributed the credit through a letter, mentioning therein that the credit to be taken by regional office, Sehore - Based on this letter, assessee had availed and utilized Cenvat credit towards its service tax liability - On perusal of the document available on records, on the basis of debit note issued by head office, assessee had availed the Cenvat benefit - Since as per the proviso appended to Rule 4A (2), debit note cannot be denied as a proper document, the credit should be available to assessee, subject to fulfilment of other conditions laid down in sub-rule (2) of said Rules - Since the assessee submits that the debit note contained all the requisite particulars, as provided under the said rule, the matter should go back to the original authority for verification of documents and for allowing the Cenvat benefit, if the same are in conformity with the statutory provisions - Further, while examining the issue, the original authority should discuss the applicability of judgment of Karnataka High Court in case of Millipore India Ltd., the decision of Tribunal in case of Reliance Industries Ltd. - 2015-TIOL-181-CESTAT-MUM , BSNL - 2013-TIOL-2513 -CESTAT-DEL to arrive at the conclusion as to whether the premium on EDLI Scheme and Premium oh DI & CGC should be considered as the input service for availment of Cenvat benefit by assessee - Therefore, matter is remanded to original authority for deciding the issue afresh - The original authority should also decide whether penalty can be imposed, especially in view of the fact that the assessee is a banking company and is owned and controlled by Government Departments - Appeal is allowed by way of remand to original authority: CESTAT

- Matter remanded: DELHI CESTAT

2019-TIOL-646-CESTAT-BANG

Ultratech Cement Ltd Vs CCT

CX - The assessee is engaged in manufacture of cement - During audit on the records of assessee for the period July 2011 to April 2012 by internal audit wing, it was observed that assessee have irregularly availed service tax credit on construction service i.e., alteration and extension of railway track and locomotive engine servicing charges during February 2012 and March 2012 - A SCN was issued to assessee - The issue involved is covered by Division Bench decision of Tribunal in case of Jaypee Rewa Plant wherein the Tribunal has considered various decisions - Therefore, by following the ratio of said decision, the impugned order denying the CENVAT credit on railway sidings or alterations of sidings and extension of siding is not sustainable and therefore, same is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT

2019-TIOL-645-CESTAT-DEL

Jaypee Infra Venture Vs CST

ST - The assessee had entered into an agreement with JAL alongwith a Memorandum of Understanding vide which they have undertaken the consultancy work in field of tender preparation, planning, design and engineering works with respect to Hydro-electric Project in state of J&K against a consideration of Rs. 22.50 crores - JAL established a project office in the State of J&K for carrying out the works at Baglihar Hydro-electric project - The assessee has paid service tax in lieu of rendering of consulting engineering services for period 01.07.2012 to 31.03.2012 - However, they got the knowledge that services as rendered by assessee to JAL has actually been rendered in the state of J&K which is outside the taxable territory and accordingly they filed refund claim under Section 11B of CEA, 1944 - The refund application was initially rejected holding that the assessee as well as service recipient (JAL) are located in taxable territory relying upon Rule 8 of Place of Provision of Service Rules, 2012 - The JAL, though has Head Office in taxable territory but the provision of service was outside the taxable territory i.e. in the State of J&K, hence, apparently this rule is not applicable - Therefore, adjudicating authority below have committed an error while invoking this rule under the garb of Rule 14 of these Rules - The two applicable rules in the present scenario are rule 3&5 - In accordance to Rule 14, Rule 5 has to prevail - However, seen from any of these rules, the Place of Provision of Service is J&K which is outside the taxable territory in accordance of Section 66B - The Department was not liable to charge service tax qua the said provision of service - Since it was deposited by assessee without having this understanding, the assessee is very much liable to get refund thereof - The adjudicating authority is therefore opined to have committed an error while rejecting this claim - The order accordingly is set aside: CESTAT

- Appeals allowed: DELHI CESTAT

CENTRAL EXCISE

2019-TIOL-644-CESTAT-AHM

Guala Closures India Pvt Ltd Vs CCE

CX - The appellant manufactures excisable goods - During the relevant period, it availed input services of rent a cab service, courier service and Hotel Accommodation Services - The Revenue denied credit on these services on grounds that they had no connection with the manufacture of final product - Hence the present appeals.

Held: The services of Rent-a-cab and Hotel Accomodation were used for the overall business operations of the appellant - As the appellant is engaged in manufacturing excisable goods, the services are actually related to the appellant's manufacturing activities - Considering the plethora of judgments covering the eligibility for credit on these services, the demands raised on this count are quashed - Regarding courier services, the Apex Court in Ultratech Cement Ltd. held that credit is admissible only in respect of services used for removal of goods upto the place of removal - Regarding the issue of limitation, it is seen that the issue of service used for removal of goods was in doubt during the relevant period, as there were various conflicting decisions on the issue - It is also seen that the appellant availed credit by placing reliance on Circular dated 23.08.2017 which had not been withdrawn by the Revenue - No mala fide intent can be attributed to the the appellant - Hence the demand for extended period is hit by limitation and merits being quashed, being time barred - The demand for the normal period is sustained - The matter warrants remand for quantification of such duty: CESTAT (Para 2,4,5)

- Assessee's appeal partly allowed: AHMEDABAD CESTAT

2019-TIOL-643-CESTAT-ALL

Himangi Packaging Pvt Ltd Vs CCE & ST

CX - During the relevant period, the assessee-company availed credit of service tax paid on GTA services availed for outward transportation of final product - Such credit was availed on grounds that the goods were supplied at the buyer's premises & so the assessee retained ownership over the goods till their delivery - The Revenue proposed to deny such credit & SCNs were issued after invoking extended period of limitation.

Held: It is seen that in the relevant period, there were a host of decisions in favor of the assessee, prescribing that credit of service tax paid on GTA service for transportation of final product up to the buyer's premises, is permissible - This position was later reversed by the Apex Court's decision in Commissioner of Central Excise and Service Tax Vs Ultra Tech Cement Ltd. - The credit availed by the assessee was also reflected in the cenvat a/c - This indicates bona fide intent on the assessee's part - Hence no mala fide intent to avail credit is found, so as to justify invoking extended period of limitation - The Revenue also alleged that the assessee was aware of non-admissibility of credit, but it adduced no evidence to prove that credit was availed with mala fide intent - Hence the invoking of extended period of limitation is unjustified - Thus the demand raised under extended period of limitation is quashed - Consequently, the penalty must be set aside as well: CESTAT (Para 2,5,6,7)

- Assessee's appeal allowed: ALLAHABAD CESTAT

CUSTOMS

NOTIFICATION

Amendment to the Notification No. 63/1994-Customs (N.T) dated 21st November, 1994, w.r.t Golakganj LCS

CASE LAWS

2019-TIOL-501-HC-DEL-NDPS + Case Story

Omaxe Buildhome Ltd Vs UoI

NDPS - Section 68-O of the Narcotic Drugs & Psychotropic Substances Act, 1985 - Delay in filing appeal - Condonation beyond the mandated period - If the right of an Appellate Authority to entertain an appeal beyond a stipulated period has been curtailed by the legislature, the Courts in exercise of powers under Article 226 of the Constitution of India cannot overcome the said statutory limitation - It is well settled that the remedy under Article 226 of the Constitution of India is available to enforce a legal right - If the petitioner has no statutory right to file an appeal, the question of issuing directions under Article 226 of the Constitution of India to provide the same, contrary to the statute, would not arise - It is well settled that an appeal is a creature of statute and there is no inherent right of appeal - If the right of appeal is a creature of statute, it would be open for the legislature to curtail the said right as well - Petition dismissed: HC [para 8, 10, 15, 21, 23, 24, 25]

- Petition dismissed: DELHI HIGH COURT

2019-TIOL-642-CESTAT-HYD

PR CC & CT Vs Evonik India Pvt Ltd

Cus - The short point to be decided is whether the benefit of SAD in terms of Notfn 102/2007-Cus is available to importers who sell the imported goods on payment of nil rate of VAT when the applicable rate of VAT is nil - The Department seeks to rely on the judgment of Supreme Court in case of Dhiren Chemical Industries - 2002-TIOL-83-SC-CX-CB to hold that appropriate rate of VAT does not include nil - The first appellate authority relied on the orders of Tribunal in case of Gazal Overseas - 2015-TIOL-2454-CESTAT-DEL and held that SAD refund is available even in the appropriate rate of VAT is nil - No infirmity found in the impugned orders - This order of Tribunal was followed in case of Malhotra Imports & Exports Corporation and it was held that the benefit of notfn 102/2007 is available even when the appropriate VAT payable is nil - No infirmity found in impugned orders and no reason found to interfere with them: CESTAT

- Appeals rejected: HYDERABAD CESTAT