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SERVICE TAX
2019-TIOL-749-CESTAT-MAD
Coimbatore Enterprises and Holdings Ltd Vs GST & CE
ST - The dispute relates to period 01.01.2013 to 30.09.2013 - By this appeal, assessee is challenging the penalty levied by adjudicating authority under Section 77 and 78 of FA, 1994 - Admittedly, assessee had got itself registered and paid service tax with interest and late fee as well and in any case Section 77 stands controlled by Section 80 - In the case on hand, much before issuance of SCN, the assessee has got itself registered, paid the taxes along with applicable interest and this also is established by the fact that the same is appropriated in O-I-O - In the SCN as well as the orders of the lower authorities, the Revenue has but for reiterating the wordings in the Sections itself, has not gone beyond that to put on record any reasons on the alleged malafides, fraud or suppression - The impugned penalties cannot sustain for which reason, same is set aside: CESTAT
- Appeal allowed : CHENNAI CESTAT
2019-TIOL-748-CESTAT-BANG
99 Games Online Pvt Ltd Vs CCE & CT
ST - The appellant company is engaged in exporting Information Technology Software Services - It also imported Business Auxiliary Services and Information Technology Software Services - During the relevant AY, it claimed refund of accumulated & unutilized Cenvat credit availed on input services used in providing output services later exported - The Revenue issused SCN alleging that credit could not be availed as the appellant had paid service tax only upon audit conducted by the Department - Duty demands were confirmed upon adjudication - Such denial of refund was upheld by the Commr.(A) - Hence the present appeal.
Held - The appellant availed Cenvat credit of service tax paid on import of service under RCM, based on ST challans and in accordance with the provisions of Rule 9(1)(e), which permits the appellant to avail Cenvat credit based on challan, under RCM - Hence both the lower authorities erroneously denied Cenvat credit on grounds that the Rule 9(1)(bb) is inapplicable in the present case - Hence the O-i-A is unsustainable: CESTAT (Para 3,7,7.1)
- Assessee's appeals allowed : BANGALORE CESTAT
CENTRAL EXCISE
2019-TIOL-763-CESTAT-MAD
Azam Laminators Pvt Ltd Vs CCE
CX - Betel nut powder known as 'supari' was manufactured by cracking of dried betel nuts into small pieces and gently heating pulverised betel nut with vanaspati and then coating the same with sweetening and flavouring agents and the resultant product is then packed in small pouches and marketed as 'Nizam Pakku' - Issue is whether the impugned product namely, 'Nizam Pakku' manufactured by the assessee has to be classified under CETH 2106 9030 attracting rate of 16%, as contended by the department or under CETH 0802 9019 attracting 'Nil' rate of duty, as contended by the assessee - Assessee and department are in appeals before CESTAT.
Held: Period involved is prior to introduction of 8-digit classification w.e.f 28.02.2005, post 28.02.2005 and w.e.f 07.07.2009 - From the samples of the product at various stages submitted during the course of hearing, Bench finds that the assessee will start with betel nut split as raw material, convert it and add flavourings like cardamom etc. to arrive at the end product - Possibly, final product would only look as betel nut in crushed form - It is also interesting to note that the final product is marketed in pouches with the brand name / description 'Nizam Pakku' (in Tamil) and Betel Nut (in English) - It is, therefore, evident that the asssseee markets this product only as 'betel nut' and not as 'supari' - It, therefore, appears to reason that in the market, this product is only known as 'pakku' or betel nut and not as supari - There is also credence in the contention of the appellant assessee that the impugned product is just betel nut and not 'betel nut products known as supari' - The betel nut per se would, therefore, come within the ambit of CETH 08.01 as, Edible Fruit and Nuts; Peel of Citrus Fruit or Melons? and not under 21.07 as, “Miscellaneous Edible Preparations" - This being so, the classification of the product cannot be dragged into Chapter 21 of CETA and, in particular, sought to be classified under CETH 2106 9030 as betel nut product known as supari - In consequence the product satisfying the requirements of Chapter Note 3 (b) of Chapter 8 will, therefore, necessarily fall under 0802 9019 as claimed by the assessee - impugned order dt. 17.02.2012 upholding the classification of 'Scented Betel Nut' under CETH 2106 9030 as against CETH 0802 9019 claimed by the assessee, cannot be sustained and is, therefore, set aside - Assessee appeal allowed with consequential relief and Revenue appeal is dismissed: CESTAT [para 8.8.8.9, 9. 10]
- Assessee appeal allowed/Revenue appeal dismissed: CHENNAI CESTAT
2019-TIOL-747-CESTAT-BANG
Hewlett Packard India Sales Pvt Ltd Vs CCE
CX - The assessee was engaged in manufacture of personal computers and selling the computers to their wholesale dealers both at factory and their depots - They have entered into agreements with their wholesalers/distributors for purchase and sale of computers in question - In terms of agreement, they extended 30% of discount to the wholesale dealers from the list price - The agreement also contained a clause towards the Re-sellers providing re-seller through the inventory reports to the assessee and in respect of which additional discount of 1% is provided to the re-sellers - More or less similarly worded agreements were in place during the periods disputed in three SCNs - Whether the additional discount of 1% provided by assessee to resellers is includible in the assessable value of goods cleared by assessee under the new Section 4 of CEA, 1944 post 1.7.2000 - These discounts are not in the nature of discounts as understood in common parlance - They are directly or indirectly an expenditure to the assessee - The remuneration due to the wholesalers is given in form of discounts - Therefore, these add to the cost of products that assessees are selling - More so, in respect of EHTP unit, the clearances made to the wholesalers in domestic market are in nature of imports by wholesalers - Therefore, all the amounts paid or payable by wholesalers form part of "transaction value" for the purpose of wholesalers in terms of Section 14 of Customs Act, 1962 - As regards to limitation, assessee have been regularly filing their monthly ER-1 Returns indicating the quantities of computers manufactured and cleared every month, the details of invoices raised during the said month and the total value of clearances affected during the month in question - When the Department is quite aware of activities of assessee, no suppression, nonetheless of a material fact with intent to evade payment of duty can be alleged - As the Department has already raised a issue subsequent to the new Section 4 of CEA, 1944, it not open to the Department to issue two more SCNs invoking extended period - Therefore, the SCNs are barred by limitation: CESTAT
- Appeals partly allowed : BANGALORE CESTAT
2019-TIOL-746-CESTAT-DEL
Caparo Engineering India Ltd Vs CCE & ST
CX - The assessee was engaged in manufacture of sheet metal parts and were availing the benefit of Cenvat credit on various inputs - However, an objection was raised by Revenue in respect of credit so availed by them and as a result, the assessee was caused to reverse the Cenvat credit - Thereafter, the original adjudicating authority as also the appellate authority confirmed the demand against them - On an appeal there against, the Tribunal set aside the said confirmation and held in favour of assessee - As a consequence, the said amount was re-credited in their account - Subsequently, assessee raised the claim of interest on the said amount, which stands rejected by lower authorities - Assessee submits that as the said issue was not raised by lower authorities, during the adjudication and appellate procedure, the detailed facts could not be placed before them - By drawing the attention to a chart placed on record, he submits that during the period in question, they had to pay duty in cash on account of the said reversal of the Cenvat credit and unavailability of the same for utilisation - Inasmuch as the said chart was not placed before authorities below, matter is remanded to the original adjudicating authority for verification of assessee's claim: CESTAT
- Matter remanded : DELHI CESTAT
CUSTOMS
CIRCULAR
cuscir10_2019
Scheme for Rebate of State and Central Taxes and Levies on export of garments and made-ups (RoSCTL) dgft18cir021
Discontinuation of physical copy of Advanced/EPCG Authorisation - Procurement from SEZs CASE LAW
2019-TIOL-750-CESTAT-BANG
BPL Telecom Pvt Ltd Vs CCE, C & ST
Cus - The appellant company manufactures Power Line Carrier Communication equipments (PLCC), Electronic Private Automatic Branch Exchange (EPABX) and other telecommunication equipments - It trades in various indigenous as well as imported products - The appellant imported certain telecommunication software through Air Cargo Complex at Thiruvananthapuram & filed bills of entry declaring the same to be customized information technology software in CD falling under CTH 84 23 8020 and CETH 85 23 8020 - The appellant sought exemption from Customs duty under Notfn No 20/2002-Cus, No 20/2006-Cus & No 06/2006-CE - The Department opined that the appellant is ineligible for such benefit & summoned the appellant to explain the nature of the imported goods - Pursuant to investigation, the adjudicating authority confirmed duty demand & imposed penalty on the appellant, along with personal penalty upon the Company Secy and Deputy General Manager of the appellant company - Hence the present appeals.
Held - From a perusal of the O-i-O, it emerges that the Commissioner gave detailed reasons for holding that the imported software is not a customized software and that the same fell within the category of canned software - Such findings were based upon a consideration of the relevant material - Moreover, the appellant's counsel was unable to rebut the detailed findings of the adjudicating authority - Hence such order does not warrant any interference with: CESTAT (Para 2,7,8)
- Assessees' appeals dismissed : BANGALORE CESTAT |
