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SERVICE TAX
2019-TIOL-580-HC-MUM-ST
Capgemini Technology Services India Ltd Vs UoI
ST – CENVAT – Rule 5 of CCR, 2004 – Service tax registrants who are exporters of services – In the matter of Refund claims filed on or before 31.03.2015 and which have not been disposed of as on the date of issue of Circular 187/6/2015-ST dated 10.11.2015, based on the certificate furnished by the statutory Auditor in case of companies and from a Chartered Accountant in the case of assessees who are not companies, provisional payment of 80% of the claimed amount was to be granted as refund within five working days – said instruction was also reiterated under CBEC Circular 195/05/2016-ST dated 15.06.2016 – Petitioner was sanctioned 80% of the refund claim and later on, order-in-original was passed – in all, in respect of refund claims filed for the period July 2012 to June 2015, seven such orders were passed - petitioner claims interest on the delayed refund.
Held: In view of the decisions in Tien Yuan India Pvt. Ltd. = 2016-TIOL-433-HC-MUM-CX , National Leather Cloth Mfg. Co. = 2015-TIOL-179-HC-MUM-CX , Garden Silk Mills Ltd. = 2016-TIOL-1512-HC-MUM-CUS and Tahnee Heights CHS Ltd. [ 2015-TIOL-1828-HC-MUM-ST ] petitioner is entitled to interest as claimed - amount of interest in terms of the legal provisions and as per the prayer to be released as expeditiously as possible and in any event by 30th April, 2019: High Court [para 7]
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Petition allowed
: BOMBAY HIGH COURT
2019-TIOL-761-CESTAT-MAD
CGST & CE Vs Chettinad Earth Movers Pvt Ltd
ST - The assessee company was assigned the work of handling raw materials such as coal and slag at the factory premises of M/s Chettinad Cement Corporation Ltd. (CCCL) - The assessee received pay-loader charges for such activity - The payment includes fuel cost, operator wages & maintenance costs - The work is carried out as per directions of M/s CCCL using the assessee's mining material, within a specified time - For loading of slag, it is put into tippers for transportation within the factory premises of M/s CCCL - SCNs were issued proposing to classify such service as Cargo Handling Service - These were confirmed upon adjudication and duty demand was raised with interest & penalties - On appeal, the Commr.(A) dropped the demands, holding that the activity of transportation which was essential for classifying such activity at Cargo Handling Service, was missing - Hence the Revenue's appeal.
Held: The definition of Cargo Handling Service has two parts, namely 'means' and 'includes' - Further, the 'includes' part has two limbs, namely Cargo handling specifically and Handling of cargo or goods - The term 'cargo' is not defined under the Finance Act 1994 - It is seen that the assessee's activities is clearly on the goods as part of the production process - Moreover, The 'means' part of the definition of 'Cargo Handling Services' relates exclusively to cargo - This indicates that loading, unloading, packing or unpacking could only be of the finished products and not the goods or raw materials - As the assessee is only helping in loading raw materials & is not transporting any final products, the activity cannot fall under Cargo Handling Service - Hence the O-i-A warrants no intervention: CESTAT (Para 1,2.1,2.2,6.1-6.4)
- Revenue's appeal dismissed: CHENNAI CESTAT
2019-TIOL-760-CESTAT-KOL
International Seaports Haldia Pvt Ltd Vs CCE & CGST
ST- The Appellant- company, was engaged in providing Port services- it was alleged that appellant was availing irregular Cenvat Credit in respect of Cement & TMT Bar used for construction of wall- in furtherance of same, SCN was issued to appellant- the demand was then confirmed by the Adjudicating Authority along with interest & penalty- in appeal, the Appellate Authority upheld the OIO- then, the assesssee approached the Tribunal wherein it contended that guard walls built were not merely boundary wall but specially constructed wall of relatively low height to prevent the down sliding of heap of coking coal and also to prevent mixing up of different sizes and quality of imported coking coal stored therein.
Held: It is noted that the guard wall was built for arresting the sliding cargo from the stands during rainy season & to help prevent jamming of dedicated railway tracks installed for movement of loading equipments like stacker-reclaimer- It results in smooth dispatches of the imported cargo- Also, the Kolkata Port Trust Haldia Dock Complex & Steel Authority of India Limited, by way of letters had found that the wall was imperative- It is also observed that SCN was issued after normal time limit & is set -aside being barred by limitation -Further, as the appellant had produced copy of ST-3 returns before both the lower authorities wherein Cenvat credit was availed & utilized for payment of ST, there is no element of fraud, collusion, suppression of facts or mis-statement wit intent to evade ST payment: CESTAT [paras 7 & 8]
- Appeal allowed: KOLKATA CESTAT
CENTRAL EXCISE 2019-TIOL-759-CESTAT-DEL
Maan Aluminium Ltd Vs CCE & ST
CX - The assessee is engaged in manufacture of dutiable products, such as, aluminium profiles, aluminium rods and bars and aluminium tubes and pipes - Apart from this, they are also engaged in trading of aluminium ingots and billets and have been availing Cenvat credit on input services which are common for manufacturing process as well as for trading of goods - The issue arises for consideration is as to whether the assessee is entitled for Cenvat credit of common input services used for trading of the goods - The matter is no longer res-integra as it has already been decided in case of M/s Mercedes Benz India Pvt. Ltd. - 2014-TIOL-476-CESTAT-MUM and followed in many other decisions on subject by Tribunal wherein it has categorically been held by Tribunal that the assessee is not entitled to input service credit on exempted goods which also cover trading activity - This order of Tribunal has also been upheld by Bombay High Court - The other issue arises for consideration, is whether the assessee need to reverse back the Cenvat credit @ 6% of value of traded goods or proportionate of Cenvat credit as availed by them towards trading of the goods - The Tribunal in its various decisions has held that it has never been intention of legislature to recover from the assessee what is actually attributed to have been used for providing exempted service - The assessee is not entitled for taking Cenvat credit on common input services going for trading of goods, however, if they have reversed back the proportionate amount of Cenvat credit, which have gone for exempted services, that is enough compliance of CCR, 2004 - However, since the Original Adjudicating Authority in his order has not opinioned whether the reversed amount of Cenvat credit is in proportion to use or turnover of exempted services i.e. trading in this case and this need to be done at the original adjudication level - O-I-O is correct in denying the Cenvat credit of input services used in exempted services i.e. trading of goods in this case, however, matter is remanded for denovo adjudication to Original Adjudicating Authority to see whether the party's claim of reversal of common input service credit is correct or not - Since the position of cenvat credits attributable towards trading of goods have already been reversed by assessee voluntarily before issue of SCN, no justification found in imposing penalty under section 11AC of CEA, 1944: CESTAT
- Matter remanded: DELHI CESTAT
2019-TIOL-758-CESTAT-DEL
Miraj Drymix Pvt Ltd Vs COMMISSIONER OF CGST, CC & CE
CX - Issue arises for consideration is whether the valuation of wall putty manufactured and cleared by assessee has been rightly done for the purpose of levy of duty; and whether the extended period of limitation has been rightly invoked - The other assessees are the Director and officers of assessee who have been imposed penalty under Rule 26 of CER, 2002 - It appeared to Revenue that assessee have not taken permission under Rule 7 of CER, 2002 for provisional assessment - Further, in terms of Rule 10A(ii) of Valuation Rules, where the excisable goods are produced or manufactured by a job worker on behalf of assessee, then in a case where goods are not sold by principal manufacturer at the time of removal of goods from factory of the job worker, but are transferred to some other place from where the goods are to be sold after their clearance from the factory of job worker and where the principal manufacturer and buyer of the goods are not related and the price is the sole consideration for the sale, the value of the excisable goods shall be the normal transaction value of such goods sold from such other place at or about the same time and where such goods are not sold at or about the same time, at the time nearest to the time of removal of said goods from the factory of job worker - It is apparently clear that there was no supply of raw material at all by Asian Paints Ltd. to the assessee for the manufacture of final product - Thus, the assessee have correctly discharged the duty on transaction value in terms of Section 4(1)(a) of CEA, 1944 - It is more than perspicacious from definition that only those manufacturing activities which are undertaken 'on behalf of' the principal manufacturer are covered within definition of 'job-work' - It is to be noted that definition does not cover within its ambit those manufactures which are undertaken 'for' the principal manufacturer - Under the provisions of Rule 10A with Explanation, the condition precedent, i.e supply of raw material by principal to the other manufacturer – job worker is not satisfied - Accordingly, the SCN is misconceived and provisions of Rule 10 A of Valuation Rules, 2000 do not attract in the present case - The facts are squarely covered by Precedential rulings of Tribunal in case of Innocorp Ltd. - 2012-TIOL-956-CESTAT-BANG in favour of assessee - Accordingly, impugned order is set asise - The appeals of Shri Ashok N Mehta, Shri Sanjay Mahagaonkar and Shri Rajkumar Yadav are allowed by setting aside the penalties imposed under Rule 26 of CER, 2002: CESTAT
- Appeal allowed: DELHI CESTAT
CUSTOMS
NOTIFICATION
dgft_trade_notice_48_2018 Consideration of applications for grant of authorization for import of gold dore-reg 09/2019-Cus (NT/CAA/DRI)
amends the Notification No. 6/2017-Customs (N.T./CAA/DRI)
08/2019-Cus (NT/CAA/DRI)
DRI amends the Notification No. 1/2016-Customs (N.T./CAA/DRI)
07/2019-Cus (NT/CAA/DRI)
Appointment of Common Adjudicating Authority - reg
06/2019-Cus (NT/CAA/DRI)
Appointment of Common Adjudicating Authority - reg
05/2019-Cus (NT/CAA/DRI)
Appointment of Common Adjudicating Authority - reg
CASE LAWS
2019-TIOL-573-HC-DEL-CUS
Rain Cii Carbon Vizag Ltd Vs UoI
Foreign Trade (Development and Regulation) Act, 1992 [FTDR Act] – Petitioner impugns the Minutes of the Meeting held on 12.12.2018, between the officials of the Directorate General of Foreign Trade (DGFT); the Ministry of Environment, Forest and Climate Change; the Ministry of Petroleum and Natural Gas and; the Indian Oil Corporation -petitioner is, essentially, aggrieved by the decision to restrict the import of Raw Pet Coke (RPC) to 0.7 Million MT for the period between October, 2018 and March, 2019 and the further decision to adjust the RPC imported during the period between July, 2018 and August, 2018 against the aforesaid allocation (as noted in Paragraph 7 of the impugned minutes).
HELD: The respondents are only implementing the quantitative limit of 1.4 Million MT as directed by the Supreme Court -admittedly, even if the RPC imported prior to 30.8.2018 is considered, and further import of 0.7 Million MT is fixed for the period between October, 2018 and March, 2019, the total quantity of RPC imported during the Financial Year 2018-19 would be within the overall annual cap as fixed by the Supreme Court - there is no rational basis in adjusting the goods that were imported prior to October, 2018 against the allocation for the remaining fiscal year that is, from October, 2018 to 31.03.2019 -the said decision as recorded in paragraph no.7 of the impugned minutes is unsustainable and is, accordingly, set aside – the petition is allowed to the extent that the RPC already imported by the petitioner prior to 30.8.2018 shall not be considered against the allocation for the period October, 2018 to 31.3.2019 : HIGH COURT [para13, 14, 15]
- Writ Petition partly allowed: DELHI HIGH COURT |
