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SERVICE TAX
2019-TIOL-650-CESTAT-DEL
Jindal Water Infrastructure Ltd Vs CCE
ST - The assessee has filed the applications for ROM in 2018-TIOL-1153-CESTAT-DEL passed by the Tribunal - Under the supply contract, assessee have purchased goods mainly from other manufactures/ supplier of goods and further resold the goods to principal, in course of transit by raising the invoice on principal, and endorsing the documents of title, as permissible in trade & also as specified under Sections 3(b) of Central Sales Tax Act, 1956 - In erection contract, assessee has also used and added the cost of material being cement & steel - Further, while doing the erection work, the items or materials being pipe, the ownership of the same stood already transferred to principal before the erection, as is evident from invoices raised by assessee - Copy of sample invoices are already on record - Thus, assessee could not have again transferred the material, supplied under the supply contract, by way of works contract or service contract - Thus, there is error in Final Order passed by Tribunal, whereby it has been considered that supply & transfer to the principal is by way of accretion under the erection contract - The findings in Final Order are perverse - Accordingly, Final Order dated 13.02.2018 is recalled - Assessee is not liable to Service Tax on the goods supplied under the separate supply contract, as the ownership was already with the principal at the time of execution of erection contract - Notfn 23/2009-ST provides that for calculation of gross amount under 'works contract', shall include the value of all goods used in execution of works contract, whether supplied under any other contract for a consideration or otherwise - However, it is provided that, this Notification is applicable prospectively, and will not apply where execution have commenced and/or payment received on or before 07-07-2009 - As admittedly the work commenced in 2007 & 2008, there is no clubbing applicable - Assessee is liable to pay Service Tax only on erection contract under the normal scheme and not under the composition scheme - The assessee is directed to file fresh computation of tax payable and pay tax or claim refund and file before the adjudicating authority for verification and arithmetical accuracy: CESTAT
- Appeals allowed: DELHI CESTAT
2019-TIOL-649-CESTAT-MAD
Ishwarya Publicities Pvt Ltd Vs CCE & ST
ST - The appellants provided services relating to preparation of advertisements on bus panels & stations - The Department opined that the appellant was prividing these services directly to clients, Government organizations and other agencies, without payment of service tax on service charges realized and without filing ST-3 returns - Duty demand was raised with interest & penalties for the relevant period - On appeal, the Commr.(A) set aside the penalty imposed u/s 76 of the Finance Act 1994, extended cum duty benefit and also directed revision of penalty imposed u/s 78 of the Act - The remaining order was upheld.
Held - The appellants only dispute the tax demanded regarding the services provided to other advertising agencies - Such agencies are the actual providers of the service providers to the client - This issue is clarified by the CBIC Circular No 341/43/96-TRU dated 31.10.1996 - Hence no demand can be raised on value of services provided to other advertising agencies - This part of the O-i-A must be quashed - It is also seen that the issue was mired in litigation during the time of dispute - Hence there was reasonable cause for the assessee's failure to discharge service tax in respect of services provided to Government agencies - Hence the penalties imposed merit being quashed: CESTAT (Para 1,5.3,5.4,5.5)
- Assessee's appeal partly allowed: CHENNAI CESTAT
CENTRAL EXCISE
2019-TIOL-653-CESTAT-AHM
ONGC Ltd Vs CCE & ST
CX - Assessee claimed cenvat credit in respect of services namely Jungle cut/grass cutting, construction of shed at bus stop, resurfacing of internal roads, repair of boundary wall gap, removing of unwanted waste, repair of potholes, maintenance of garden and other miscellaneous civil works - the lower authorities disallowed the claim on the ground that these services are not used in relation with the manufacture of final product - appeal to CESTAT by both the assessee and the Revenue.
Held: The services such as jungle cut or grass cutting, removal of unwanted waste and maintenance of garden are necessary to keep the factory premises clean - There is a statutory requirement from the Pollution Control Board and Environment Ministry that being a Petrochemical plant, the premises of the factory should be maintained and no pollution should be allowed - Since, the entire plant is meant for manufacture of final product, all services which are used in relation to and indirectly for the manufacture of goods - Whatever services are required in terms of statutory requirement such as Pollution Control Board, Factory Act and Industrial Act, is necessary for running a factory - Hence, such services are admissible for Cenvat credit - Since the credit has been allowed, the issue of penalty imposed by the lower authority does not sustain - Assessee's appeal allowed and Revenue's appeal dismissed: CESTAT[para 4]
- Assessee appeal allowed: AHMEDABAD CESTAT
2019-TIOL-652-CESTAT-DEL
Om Furniture And Interiors Vs CCE
CX - The assessee is engaged in manufacture, repair and trading of various furniture items - The Department has alleged that assessee was found engaged in clandestine procurement of rawmaterial used in manufacture of excisable goods i.e. wooden furniture and fixtures as that of Sofa set, Double Beds and were clearing the same without accounting for same in their record without keeping themselves registered with Central Excise Department - Though the assessee was claiming an SSI exemption but as apparent on record that despite affording that exemption of Rs.1.5 Crores, the Excise liability is still apparent against the assessee - The CA certificate of assessee's own firm also corroborates the activity of assessee as not only of re-selling but also of sale of manufactured items - Since ignorance of law can never be an excuse, the non-registration and non-discharge of excise liability on the part of assessee cannot be ruled out to be a strategy to avoid his liability - This particular fact supports the opinion for Commissioner to be right while declining the opportunity of cross-examination - It is also observed that proprietor of assessee had never retracted his statement - He himself has been stating about his transactions to have always been noted in the slip pads/ loose papers/ kachcha parchies - No justification found in the grievance of assessee - No case of remand as pleaded is opined to have been made out except that the same may be a time game strategy of assessee - No infirmity found in the order under challenge is opined, same is hereby upheld - The confirmation of confiscation of unaccounted finished goods is also opined to have no infirmity - It is clear that assessee has failed to discharge his liability of tax - He is not entitled to SSI exemption, his income being beyond Rs.1.5 Crore - The non-registration despite doing excisable activity is rather opined to be the sufficient positive act on his part, which can be categorized as an act with intent to evade duty - Department was therefore justified to invoke the extended period of limitation - Resultantly, the imposition of penalty is also opined to have no infirmity: CESTAT
- Appeal dismissed: DELHI CESTAT
2019-TIOL-651-CESTAT-CHD
CCE Vs Novice Polymers
CX - The assessee is the manufacturer of plastic mould and was availing benefit of Cenvat credit on inputs - On the basis of intelligence in factory premises of assessee, search was conducted, physical stock, raw material or finished goods were verified - They were found to be tallied - Certain records were resumed and after conclusion of investigation, it was alleged that assessee was receiving only the cevatable invoices without receiving the goods in question - The refrigerated van cannot transport the goods i.e. plastic mould to assessee; therefore, the said statement of driver is admissible by holding that Cenvat credit of invoice bearing vehicle no. HR-38N- 1285 and HR-38M-2282 is denied in case of M/s Novice Polymers and M/s Airvision India Pvt Ltd respectively - Therefore, the impugned order qua M/s Novice Polymers and M/s Airvision India Pvt Ltd is modified by denying the Cenvat credit on the invoices - In case of vehicle no. RJ14-1G-7077, there is categorical statement of owner of vehicle, that vehicle was carrying the goods from Yamuna Nagar to Jaipur through Harsh Roadlines, Yamuna Nagar who has brought GR issued by Harsh Roadlines as an evidence for movement of the vehicle - The said GR has not been controverted by assessee with any tangible evidence; therefore, the statement of Sh. Shankar Lal Jat is admissible and therefore, on the invoices the Cenvat credit is denied to M/s Novice Polymers - Consequently, the duty on account of denial of the Cenvat credit on invoices is confirmed along with interest and penalties to the extent of denial of the Cenvat credit are also imposed on M/s Novice Polymers and M/s Airvision India Pvt Ltd. - As M/s DR Polymers found to be involved for issuing the impugned invoices, in that circumstance, M/s DR Polymers to be penalized under Rule 26 of CER, 2002, but M/s DR Polymers is a company and having no knowledge or benefit arriving out of the activity; therefore, the penalty is not imposable on a juristic person under Rule 26 - Therefore, penalty on M/s DR Polymers is not imposable: CESTAT
- Appeals disposed of: CHANDIGARH CESTAT
CUSTOMS
2019-TIOL-654-CESTAT-KOL
Prabir Kumar Guha Vs CC
Cus - The appellants herein are officers of the Customs Department - They were charged with negligence, where in the relevant AY, they examined a consignment of Zinc Ingots bound for export - But such goods were not exported to the stated destination - Hence penalties were imposed on them - The appellants claimed that the notices were not issued within the time frame prescribed u/s 155(2) of the Customs Act.
Held - There is nothing on record to show that the provisions of Section 155(2) were complied with before initiating proceedings against the appellants - Hence the appeals are allowed - Regarding two other appeals, it is seen that the appellants therein did not appear for hearing despite service of notices - Hence their appeals are dismissed for non-prosecution: CESTAT
- Appeals partly allowed: KOLKATA CESTAT |
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