SERVICE TAX

2019-TIOL-508-HC-KERALA-ST + Case Story

CCT & CE Vs Xerox Business Services India Pvt Ltd

ST - Deletion of the interest granted cannot be deemed to be a mistake apparent from the record - interest liability is a necessary consequence arising from the statute, specifically Section 11BB of the CEA, 1944, which cannot be restricted by a statutory authority - corrigendum issued has the effect of reducing the amounts of refund, insofar as the interest liability is concerned and then necessarily there should have been a notice issued - Even if the specific direction for grant of interest was not there in the order, the assessee would be entitled to the claim under Section 11BB from the date of refund application as has been held in  Ranbaxy Laboratories Ltd. - 2011-TIOL-105-SC-CX - corrigendum was issued in excess of the power conferred under Section 74 and, therefore, the Tribunal order is legal and proper - Revenue appeals rejected: High Court [para 5, 6]

- Appeals rejected : KERALA HIGH COURT

2019-TIOL-660-CESTAT-MUM

Royal Power Turnkey Implements Pvt Ltd Vs CCE

ST - Appellant are engaged in providing taxable services under the category of 'Erection and Commissioning or Installation services' - appellant have provided installation of street lights, traffic lights, flood lights and other electrical and electronic main appliances/devices to various authorities but have failed to discharge service tax - tax demand for the period April 2011 to March 2012 confirmed with interest and penalty, hence appeal.

Held: Appellant fairly submitted that for earlier period, in their own case, such services provided to Nanded Waghala City Municipal Corporation, were held to be taxable under Works Contract service, 2017-TIOL-4248-CESTAT-MUM, and an appeal has been filed before the Bombay High Court and is pending - no stay has been granted - no reason to deviate from the earlier order of the Tribunal - impugned order upheld and appeal dismissed: CESTAT [para 7, 9]

- Appeal dismissed: MUMBAI CESTAT

2019-TIOL-659-CESTAT-MAD

Citi Bank Na Vs CGST & CE

ST - The assessee provides banking services - It provides facility of credit cards to its customers - During the relevant period, SCNs were issued proposing to raise demand under 'Credit Card Services' with interest & imposing penalties - These proposals were confirmed upon adjudication - Hence the present appeals.

Held: A credit card transaction involves five parties, namely the issuing bank, the credit card holders, the acquiring bank, the merchant establishment & the card network - For a transaction of any amount, there is an interchange fee, which forms the subject matter in the present dispute - The Revenue insists that these would fall within the ambit of Credit Card Services - Besides, the Tribunal in ABN Amro Bank NV Vs. Commissioner of Central Excise held that the amount received by the assessee therein did not qualify as credit card services when acquiring bank has discharged service tax liability on the entire amount - It was also held that no service tax is payable by the assessee therein and that the amount offered by the assessee did not qualify as credit - Following such findings, the demands raised in the present case warrant being quashed: CESTAT (Para 1.2,5.2,5.11,5.12)

- Assessee's appeal allowed: CHENNAI CESTAT

CENTRAL EXCISE

2019-TIOL-667-CESTAT-DEL + Case Story

Nagarjuna Construction Company Ltd Vs CGST, C & CE

CX - SCN issued by way of change of opinion - no condition precedent available for invocation of extended period - Supreme Court in L&T Ltd. 2015-TIOL-236-SC-CX held that Notification No. 4/97-CE exempted Concrete mix or CM and not RMC (Ready mix concrete) - Revenue, in earlier proceedings, had taken the view that RMC is exempted by notification 4/97-CX, 4/2006-CX and wanted its turnover to be included for computing the aggregate value of clearances of Rs.4 crores under SSI notification 8/2003-CX but it was only after the ruling of the Supreme Court dated 6.10.2015 that the present show cause notice dated 9.3.2017 was issued for the period 01.03.2012 to 31.03.2012 and which is clearly hit by limitation - SCN is not maintainable - impugned order set aside and appeal allowed with consequential relief: CESTAT [para 6]

- Appeal allowed : DELHI CESTAT

2019-TIOL-658-CESTAT-BANG

BG Shirke Construction Technology Pvt Ltd Vs CCT

CX - The assessee entered into a contract with Bangalore Development Authority (BDA) for construction of affordable housing projects of different categories - As per agreement, BDA instructed the assessee to install their batching plant at Kumbalgodu at the location owned by BDA and assessee is permitted to prepare the concrete mix at the place provided by BDA - Department entertained a view that assessee is engaged in manufacture of Ready Mix Concrete and same is cleared by them from their plant situated at Kumbalgodu to the project site without taking any Central Excise Registration and without paying any excise duty - As per mahazar prepared on the spot in presence of witnesses, it is clearly mentioned that production of concrete mixing activity was in progress at the site of the project - The SCN which has proposed to classify the impugned goods as RMC is without any evidence and basis - Further in the SCN, there is no allegation that process adopted by assessee to manufacture impugned goods is similar to the process required for manufacturing RMC and Department has never disputed or challenged or considered the manufacturing process adopted by assessee - The Apex Court in case of Larsen & Toubro - 2015-TIOL-236-SC-CX has held that it is only the process of preparing the concrete mix which would determine as to whether the product could be termed as concrete mix or it would be treated as RMC - The SCN never considered the process of preparing concrete mix to allege that the impugned goods is RMC and the Commissioner (A) has completely ignored the allegation in SCN and has proceeded on a complete different tangent - Vide Notfn 12/2016 CE Sl. No. 144 of Notfn 12/2012 CE has been substituted to extend the benefit of exemption to "Readymix concrete as well" and it is well settled that when any substitute is made by way of amendment it is applicable retrospectively - In support of this, Tribunal refer to the case of Indian Tobacco Association - 2005-TIOL-109-SC-CUS - The CESTAT in assessee's own case has allowed the central excise duty exemption to concrete mix manufactured at site - Though the Department has invoked the extended period alleging suppression whereas there was no suppression on the part of assessee to evade payment of duty and the assessee had a bona fide belief that the impugned goods are exempted from payment of duty and there were two decisions in their favour by CESTAT and the issue was with regard to interpretation of notification which is purely legal in nature and during the period of dispute there were decisions in favour of assessee - Therefore, invoking the extended period of limitation to demand duty is not sustainable in law: CESTAT

- Appeal allowed: BANGALORE CESTAT

Philips Carbon Black Ltd Vs CCE

CX - The assessee is engaged in manufacture and sale of Carbon Black with its head office located at Kolkata - The Durgapur factory is registered with jurisdictional central excise authorities for manufacture of carbon black - The head office of assessee holds a centralized service tax registration for discharging service tax liability in respect of services taxable on a reverse charge basis - Besides, the head office is also registered as an ISD for distributing the credit of service tax paid on reverse charge basis as also the service received from various service providers in accordance with Rule 7A of CCR, to its plants - SCN was issued covering all the invoices proposing denial of cenvat credit to assessee on the ground that said ISD invoices were incomplete - The adjudication order that assessee had taken credit but not utilized the same and reversed the same prior to the issuance of SCN - The Adjudicating Authority following the Board's Circular dated 03.09.2009 observed that interest is payable even when credit has not been utilized - The Larger Bench of Tribunal in case of J.K.Tyre & Industries Ltd. held that wrong availment of Cenvat Credit, interest is not payable, if reversed before utilization - The Tribunal in case of Garden Silk Mills Ltd. 2015-TIOL-2304-CESTAT-AHM on the identical issue held in favour of assessee - Hence, the demand of interest on unutilised Cenvat Credit cannot be sustained - In the present case penalty was imposed for contravention of Rules and the same is warranted - Regarding the issue of cenvat credit on GTA Services comprising in ISD Invoice No.1, the issue is no more resintegra in view of recent decision of Supreme Court in case of Vasavadatta Cements Ltd. - 2018-TIOL-90-SC-CX - By respectfully following the ratio as laid down by Supreme Court, the impugned order is set aside with regard to cenvat credit on GTA Services comprising ISD Invoice No.1 - The demand of interest is also set aside and the penalty imposed under Rule 15(3) of CCR, 2004 is upheld: CESTAT

- Appeal disposed of: KOLKATA CESTAT

2019-TIOL-656-CESTAT-MAD

Rane Brake Lining Ltd Vs CGST & CE

CX - Assessee is engaged in manufacture inter alia of Brake Lining and Disc Pads had taken input service credit on outward transportation, car hiring, car repairing and outdoor catering services - Department took the view that assessee could not have taken cenvat credit on said input services - Accordingly, SCNs were issued to assessee proposing recovery / demand of said credit amounts availed, with interest thereon and also imposition of penalties under various provisions of law - The only dispute in these appeals are pertaining to car repair and canteen services - Assessee is correct in her assertion that there was no restriction or bar in definition of 'input services' in Rule 2 (l) ibid prior to 1.4.2011 - In view thereof, the impugned orders to the contrary cannot sustain and will have to be set aside: CESTAT

- Appeals allowed: CHENNAI CESTAT

CUSTOMS

2019-TIOL-655-CESTAT-HYD

Vasudha Pharma Chem Ltd Vs CC

Cus - The issue in this appeal may be covered by earlier decisions - Accordingly, application for out-of-turn hearing of appeal is allowed: CESTAT

- Appeal allowed: HYDERABAD CESTAT