|
SERVICE TAX
2019-TIOL-773-CESTAT-BANG
Mudappilavu Kuries Pvt Ltd Vs CCE, C & ST
ST- The Appellant engaged in chit business voluntarily filed return under VCES-1- declared service tax dues & availed threshold exemption provided under Notf. No.6/2005- disagreeing with the same, the Revenue alleged that the appellant had mis-declared its tax liability & was ineligible for the small service povider exemption under the notification as foreman commission exceeded Rs 10 lakhs- in furtherance of the same, SCN was issued to appellant- Appellant replied that only declared services were taxable & in consonance with judgment of the Andhra Pradesh HC Chit Funds Vs. UOI services, chit funds were not taxable- in appeal, the Commissioner(A) confirmed the demand raised by Revenue- then the appellant approached the Tribunal by way of 5 appeals which are combined & a common order passed.
Held: The Tribunal applied the ratio of the judgment of the Apex Court in UOI and other Vs. Margadarshi Chit Funds (P) Ltd wherein the same issue had been dealt was held that chit funds business was not covered by sub-clause (v) of sub-section 12 of Section 65 even after its amendment by Finance Act, 2007- Further, the Apex Court had affirmed the Andhra Pradesh High Court which was relied upon by the appellant- Assessee's appeal allowed with consequential reliefs, if any.
- Appeal allowed : BANGALORE CESTAT
2019-TIOL-772-CESTAT-MAD
NLC Incoserve Vs CGST & CE
ST- The assessee is providing manpower recruitment or supply agency service - On verification of ST-3 returns, it was noticed that assessee had not included the administrative charges received by them in taxable value for discharging service tax on such category of service - On being pointed out, assessee paid the differential amount in instalments belatedly - They did not pay the interest upon such amount - The issue is only with regard to demand of interest - Though the assessee contends that administrative charges are not includible in total taxable value, as these are reimbursable expenses, no evidence has been furnished in this regard - The assessee have discharged the differential service tax with delay - Therefore, they are bound to pay the interest demand also - Even after repeated reminders, the assessee have not discharged the interest liability - Therefore, the SCN issued invoking extended period is justified - The impugned order is upheld: CESTAT
- Appeal dismissed : CHENNAI CESTAT
CENTRAL EXCISE
2019-TIOL-775-CESTAT-DEL
Mangalam Cement Ltd Vs CGST & CE
CX - The assessee is engaged in manufacture of cement and were availing cenvat credit on inputs capital goods and input services for payment of central excise duty on cement in terms of provisions of CCR, 2004 - Department has observed that assessee had not availed cenvat credit in accordance of Rule 4(1) of CCR, 2004 i.e. immediately or within a reasonable period in respect of explosives used in the mines - The issue of availing cenvat credit on explosives used in the mines catering cement factories was initially decided against the assessee by Tribunal vide the Final Order dated 13.11.2003 as has also been mentioned in impugned SCN - But the said decision, when was appealed, before the High Court Rajasthan got reversed as is apparent from the copy of Order produced by assessee - The said Order was also brought to the notice of Commissioner(A) but it is mentioned in the Order under challenge that he could not appreciate the same for want of the copy thereof - Mere non production of copy thereof is not a justified ground for the adjudicating authority to ignore the principles settled by the superior courts - In addition, it is apparent that assessee had also brought to the notice of Commissioner(A) the decision of Apex Court announced in year 2006 in case of Vikram Cement - 2006-TIOL-04-SC-CX-LB but the Commissioner (A) has ignored the said decision merely citing the reason that assessee was not the party thereof - Perusal of said decision makes it clear that utilization of inputs only within the factory premises is not necessary for availing cenvat/ modvat as was held by the Larger Bench of Apex Court - Hence, in view of law settled by Supreme Court with respect to availing credits on the explosives used in the mines, the assessee is absolutely entitled for the same - While ignoring the decision of Supreme Court which covers squarely the present case that too merely on the ground that assessee was not the party to the petition before Supreme Court is therefore opined to be an act of high judicial indiscipline on the part of Commissioner(A) - Impugned order is set aside: CESTAT
- Appeal allowed : DELHI CESTAT
2019-TIOL-774-CESTAT-DEL
Him Teknoforge Ltd Vs CGST & CE
CX - The appellants is engaged in manufacturing rough forging & forging articles of Steel - It availed Cenvat credit on inputs, capital goods & service tax - On scrutiny of accounts, the Department alleged that the appellant received grinding wheels, cutting tools & inserts as well as other refractory items, which the appellant had treated as inputs - The Department opined that these goods satisfied the definition of capital goods & so the appellant was not entitled to avail 100% credit of Cenvat during the same FY as has been availed - Hence SCNs were issued, proposing to raise duty demand with interest & penalty - Such demands were confirmed upon adjudication and upheld on appeal - Hence the present appeal.
Held: Regarding the demand raised on grinding wheels, cutting tools & inserts, it is seen that these are used in machines producing final products for the appellant - As such all these articles are inputs, even if grinding wheels also classify as capital goods - Neither the SCN nor the O-i-O denies that the three items are used by the appellant in machines manufacturing the final product - As per CCR 2004, capital goods as well as inputs are defined under Rule 2(a) and 2(k), respectively - Perusal of both clarifies that they are relative to the use they are put to - Hence despite classifying as capital goods, grinding wheels also acquire the relative character of being input goods - Hence three of the goods being held as inputs are eligible for cenvat credit with 100% utilisation thereof in the same FY - Regarding Refractory and Refractory Material, it is seen that the O-i-O acknowledges the interest liability of the appellant, as well as the fact thast the same is already deposited vide GAR-7 Challan - Hence SCN should not have been issued since it is beyond the date of deposit of the proposed interest liability - Moreover, as payment has already been made, the question of any mala fide intent to evade duty does not arise - Hence the O-i-A in challenge are quashed: CESTAT (Para 1.1,5)
- Assessee's appeals allowed : DELHI CESTAT
CUSTOMS
NOTIFICATIONS
cscaadri12-2019
Notification no. 12/2019-Customs (NT/CAA/DRI)
cscaadri11-2019
Notification no. 11/2019-Customs (NT/CAA/DRI)
cscaadri10-2019
Notification no. 10/2019-Customs (NT/CAA/DRI)
CASE LAWS
2019-TIOL-785-CESTAT-HYD
Avanti Feeds Ltd Vs CC, CE & ST
Cus/CX - Entire issue is regarding whether the adjudicating authority has jurisdiction to examine as to whether appellant has fulfilled export obligation by achieving minimum positive NFE or not under Notification No. 53/97-Cus and 01/95-CE, or otherwise.
Held: On holistic reading of notification in its entirety Bench finds that the appellant is required to import and fulfill the export obligation as required under EXIM policy - As to whether the conditions required fulfillment of export obligations as per EXIM policy, the jurisdictional authority for determining whether such obligation has been achieved or not, is also authority under the EXIM policy - Once jurisdictional Development Commissioner has concluded that the export obligation has been fulfilled, the conditions of the notification also stands fulfilled and the adjudicating authority cannot separately embark into ascertaining the same, without challenging the findings of the Development Commissioner - Tribunal decision in Vijaya Shrimp Farms Ltd. = 2013-TIOL-2609-CESTAT-BANG relied upon (and which decision has been maintained by the apex court) - it cannot, therefore, be held that appellant has violated any of the conditions of the notifications - jurisdiction to demand duty under Notification No. 53/1997-Cus arises in cases whether there is an allegation of diversion of imported goods and the same are not utilized in the manufacture of articles as provided at condition No. 6 of notification, allegations which are absent in the case in hand - in the present case the jurisdictional Development Commissioner has definitively held that appellant had achieved the requisite NFEP and export obligations as per the prescribed norms under the EXIM policy and hence findings in respect of adhering to the conditions Notification No. 53/1997 are equally applicable in the case of demand of excise duty and for same reasons, the demand cannot be sustained - Moreover, in the present case, appellant has paid applicable central excise duty under the proviso to Section 3(1) of the Central Excise Act, 1944, equivalent to customs duty which would have been payable on imports of like articles - In view thereof, once the full duty has been paid by the assessee, the question of demanding duty on raw materials indigenously procured does not arise as same has been made good while discharging the duty on the final products - there is also no loss to the Revenue in the entire case inasmuch as it is a matter of record that shrimp feed and prawns feed is exempt from excise duty, whereas appellant has paid equivalent to customs duty making appellant's products more expensive than the similar product produced by a DTA unit – Impugned orders upholding the demands of customs duty and excise duty are unsustainable, hence orders set aside and appeals allowed: CESTAT [para 14 to 16, 18, 19, 25, 26, 27, 30]
Limitation - There could not have been any suppression or mis-statement of facts when it is held that there was no evidence of suppression or mis-statement in the order dated 12.10.1999 - in any event, allegation of suppressions with intention to evade duty cannot be upheld in the given facts and circumstances of this case: CESTAT [para 28, 29]
- Appeals allowed: HYDERABAD CESTAT
Orient Sales Vs CCE & ST
Cus - The Revenue has alleged mis-declaration in quantity of net weight of goods - This allegation is not based upon the physical examination of goods and only refers to the fact that difference in the gross weight and net weight of fabrics is on the higher side than the one declared by same assessee in respect of imports of same very goods at ICD Tughlakabad, Tribunal is afraid that such type of comparisons cannot be upheld to lead to the findings of any mis-declaration in quantity of goods - Apart from recording the statement of importer, there is not even an iota of evidence to reflect upon the factum of under-valuation - According to assessee, even such statement was retracted - The evidentiary value of such statement without there being any corroboration by other independent evidences has been the subject matter of various decisions of the judicial or quasi-judicial authorities and it stands held that Revenue cannot entirely and solely rely upon the retracted statement, for upholding its view - Reference can be made to the majority decision in case of Tejwal Dyestuff Industries - As such in the absence of any evidence indicating that the value of the goods was actually on the higher side and there was excess payments to the foreign supplier, no justifiable reasons found to uphold the impugned order - Accordingly, same is set aside: CESTAT
- Appeals allowed : ALLAHABAD CESTAT
|
