|
SERVICE TAX
2019-TIOL-751-CESTAT-MUM + Case Story
Multiplex Electronics Vs CCE
CX - Valuation - S.4A of the CEA, 1944 - In absence of machinery provision during the period of dispute, AV, even though not found to be affixed on product would have to be accepted as the 'retail selling price' - impugned order set aside and appeal allowed: CESTAT [para 4, 5]
- Appeal allowed : MUMBAI CESTAT 2019-TIOL-745-CESTAT-DEL
Jd Ispat Pvt Ltd Vs CCE & ST
ST - The assessee is engaged in manufacture of MS billet and was availing Manpower Supply Service rendered by various service providers to them - Department during audit observed that the assessee has made payment to various contractors for receiving the Manpower Supply Services but has not discharged the service tax liability - The assessee herein is not contesting the demand of service tax - They are contesting the penalty only - Period involved herein is of the year 2013-14 - The demand as been raised qua receiving the manpower services was not taxable till 30.06.2012 i.e. till the preceding year of the period involved - No doubt till 29.10.2014 i.e. when the audit was conducted by Department, assessee had neither got itself registered nor had discharged service tax liability but the aforesaid unawareness due to the impugned amendment being very much proximate to the period of demand, the possibility of assessee being unaware cannot be ruled out - Further, Section 11AC of Central Excise Act which can be read in furtherance of Section 83 of FA, 1994 and even Section 80 of Finance Act makes it clear that where any penalty has been paid prior the issuance of SCN no penalty either under Section 76 or 77 or 78 of the Finance Act shall be any more liable - It is apparent that the entire amount of service tax as demanded was paid alongwith the interest on said date i.e. much prior the issuance of SCN - The question of imposition of penalty upon assessee does not at all arise: CESTAT
- Appeals allowed: DELHI CESTAT
2019-TIOL-744-CESTAT-MAD
Pentasoft Technologies Ltd Vs Commissioner of GST & CE
ST - Appellants supplied course materials to its students in providing computer training services - they also during the course of its business received royalty, business partner fee, training fee and rents from renting of immovable property - Revenue, during audit, formed a belief that tax liability was not properly discharged - Also, course materials supplied were not standard textbook and benefit of CBEC Circular No. 59/8/2003-ST dated 20.06.2003 was not warranted - Accordingly demand was raised and penalty was proposed by issuance of show cause notice - The Original Authority confirmed the propositions in the notice issued - appeal to CESTAT.
Held: - The appellants were compelled to remove and store the hazardous waste outside the factory and to engage security for providing protection for the hazardous waste - The security services are related to manufacturing activity - the denial of input tax credit is, therefore, unjustified - impugned order to the extent of disallowing credit on security services is set aside and appeal allowed with consequential relief: CESTAT[para 6]
the period of dispute is from 01.07.2004 to 15.06.2005 - The judgement of the Supreme Court in the case of M/s. Sunwin Techno solution Pvt. Ltd. came on 13.09.2010 - in that case, the Apex Court has held that during the period from 10-9-2004 to 15-6-2005, an assessee providing computer training services is required to pay service tax inasmuch as the subsequent notification effective from 16-6-2005 was only a clarificatory notification and was effective retrospectively - the Tribunal decision in M/s. Gargi Consultants Pvt. Ltd. relied on that Apex Court decision - such ratio laid down will apply on all fours to the present appeal on hand - Thus, demand with interest for the period from 10.09.2004 to 15.06.2005 is set aside on the ground of limitation - The demand for the previous period, from 01.07.2004 to 09.09.2004 is upheld - With regard to the inclusion of value of course materials for the purpose of arriving at value of taxable service, the matter has been settled in favour of the appellants by the Tribunal in M/s. Chate Coaching Classes Pvt. Ltd. - Thus, the demand for supply of study materials for the period 2004-05 and 2005-06 cannot sustain and will have to be set aside - Penalty imposed u/s 78 is also reduced - assessee appeal partly allowed: CESTAT[para 7.1.1, 7.1.2, 7.2]
- Appeal partly allowed : CHENNAI CESTAT
CENTRAL EXCISE 2019-TIOL-743-CESTAT-CHD
Nanda Mint And Pine Chemicals Ltd Vs CC
CX - Revenue conducted investigation at various units located in their jurisdiction - it was to find out purchasing activities regarding Menthol Solution and Dementholised Oil from J & K based unit - it was disclosed that appellant's manufacturing unit in J&K were not purchasing raw material and as such there was no question of manufacture of finished goods - such goods from J&K unit were sold to UP based manufacturers who in turn partially exported their finished goods and partially sold in domestic market - show cause notices to UP based manufacturers was issued to deny cenvat credit availed on goods purchased from J&K based suppliers - notice was also served to J&K based manufactures under Notification No. 56/2002-CE dated 14.11.2002 - Demand was confirmed by the adjudicating authority - the matter was heard by the CESTAT - order was challenged before the High Court which remanded the matter back to CESTAT.
Held: The sole allegation against the appellant is based on the investigation made by Commissioner of Central Excise, Merrut - From the facts of the case, the check post movement of trucks which were carrying inputs as well as finished goods were found entered - The appellant has also produced the evidence of the entry of all the transport vehicles - Such entries has been certified by the Punjab Sales Tax Department - It cannot be said that the raw material/finished goods have never entered or left the state of J & K without conducting any investigation at the end of the appellant - show cause notice on the basis of the assumption and presumption and investigation conducted by the Commissioner is not sustainble - Appellant is entitled for benefit of the exemption Notification No. 56/2002- CE dated 14.11.2002 - impugned order set aside and appeal allowed with consequential relief: CESTAT[para 6, 7, 12]
- Appeals allowed : CHANDIGARH CESTAT
2019-TIOL-742-CESTAT-BANG
Murugarajendra Oil Industry Pvt Ltd Vs CCE, ST & C
CX - The assessee is engaged in manufacture of vegetable oils and by-products that are incidental to manufacture and are nothing but waste arising during course of refining of oil, the assessee can be held to be manufacturers of such waste products arising during course of manufacture - The Commissioner has erred in finding that the assessee is not eligible for Notfn 89/95 because they are manufacturing tins as submitted by assessee - The Commissioner has not appreciated the fact that the tins manufactured are also eligible for exemption under Notfn 10/96 as submitted by assessee - The instant case is squarely covered by Ricela Health Foods - Assessee is entitled to exemption contained in Notfn 89/95-CE on the products which arise incidentally to the manufacture of vegetable oils - The impugned order misplaced itself and the findings vis-à-vis Tin Boxes manufactured and captively consumed in the factory - The impugned order is set aside: CESTAT
- Appeals allowed : BANGALORE CESTAT
2019-TIOL-741-CESTAT-KOL
Ioc Ltd Vs CCE
CX - The assessee was receiving duty paid products from their Barauni Refinery during period from January 2008 to April 2008 - SCN was issued on the ground that assessee is also engaged in the manufacturing of Xtra Mile Super Diesel and Xtra-premium MS by the process of blending of HSD and MS with multifunctional additives (MFA) - The SCN alleged evasion of payment of Central Excise Duty holding the process as manufacture - The issue is no more res-integra in view of Tribunal's decision in Hindustan Petroleum Corporation Ltd. 2008-TIOL-2668-CESTAT-DEL whereby the Tribunal, has held that a process or treatment to enhance the marketability of a product or to improve the value addition does not amount to manufacture - The impugned order cannot be sustained: CESTAT
- Appeals allowed : KOLKATA CESTAT
CUSTOMS
2019-TIOL-560-HC-MUM-CUS
Living Stones Vs UoI
Foreign Trade (Development and Regulation) Act, 1992 [FTDR Act] - Petitioners have challenged the orders/communications dated 3.6.1999, 8.11.1999 and 16.3.2000 calling upon them to pay penalty for non-fulfillment of export obligation within time.
Held: Implicit in the scheme of the export obligation is a power in the authorities to extend the time -on that occasion and when the extension was granted, the power to impose penalty was not specifically to be found - it came to be introduced by amending para 8.19 of the Hand Book of Procedure by the public notice -once there were amendments brought into force and the amendments being effective from 24.8.1998, but the export obligations being fulfilled prior thereto, in the peculiar facts and circumstances, the petitioners should not have been called upon to pay the fine - the impugned orders/communications quashed and set aside - Bank guarantee, if in force, stands duly cancelled and is to be returned to petitioner within two weeks: HIGH COURT [para 11] - Writ Petition allowed
: BOMBAY HIGH COURT
2019-TIOL-740-CESTAT-MUM
Sarjan Vs CC
Cus -Valuation - Allegation is that the appellant-importer had undervalued Water purifier parts mainly RO membrane, booster pumps - SCN issued by DRI alleged that as against the actual transaction value of Rs.1,44,49,359/- appellant had declared the total value as Rs.97,64,378/- at the time of filing of bill of entry and paid duty thereon; that in their statements appellant had admitted that differential amounts over and above the value declared to Customs were paid to the suppliers in cash either through representatives of the overseas suppliers of by them whenever they went abroad; Rs.7 lakhs paid voluntarily towards duty liability on past imports - demand confirmed along with imposition of penalties and redemption fine - Commissioner(A) set aside the redemption fine but upheld the rest of the order - appellant before CESTAT contending that the demand is confirmed based on the statements of the partner which were obtained by deceit and trickery; that there is no positive and tangible evidence of undervaluation; that although the imports took place from January 2006 to 01.12.2008, value was enhanced based on the price quotes obtained after 16.12.2008 after recording the statement of the partner under threat or third degree treatment and arrest; that they had already submitted proof in the form of details of bill of entries in respect of other importers where value assessed by customs authorities during contemporaneous period was similar to the value at which the appellant's bill of entries were assessed - AR submitting that the statements were not retracted hence the averment being made that they were obtained under coercion is incorrect; that duty of Rs.7 lakhs was voluntarily paid during investigation.
Held : In the statement dated 16.12.2008, importer has in the initial part stated that he had not made any undervaluation but in the later part the statement proceeded in a volte face manner and records that the appellant accepted undervaluation - second part of the statement recorded on 20.05.2009 i.e. after around 8 months is also worded identically - evidence that the department claims to possess are some emails from M/s Micro Filter Co. Ltd. & others and they would clearly indicate that they were tailor made as per request of the importer for submitting to their banks for enhancing their finance limits and that too well after the imports have taken place - prices at which other importers imported identical items from the same companies at about the same time are either comparable or less than value declared by appellants and this fact has been ignored by department - no import data produced of contemporaneous import by department to indicate that the appellants had misdeclared the value of imports - allegation of misdeclaration of value of imports does not stand - allegation of appellants that the statements were recorded by way of threat and coercion is not substantiated - incoherence in recording of statements and a long gap between two statements cannot by itself prove threat and coercion though the same may lose evidentiary value - no evidence adduced by department of any contemporaneous import made at a higher price than that declared by appellants - demand is, therefore, not sustainable and as a consequence penalty also goes - appeals allowed with consequential relief: CESTAT [para 6.1, 6.2, 6.3, 7]
- Appeals allowed : MUMBAI CESTAT |
