SERVICE TAX

2019-TIOL-784-CESTAT-MAD

Lotus Footwear Enterprises Ltd Vs CGST & CE

ST - The appellant, an SEZ unit approved by the Development Commissioner, consumed certain services in relation to its authorized operations, as per Notfn No 09/2009-ST - By virtue of being an SEZ, the appellant is entitled to refund of service taxes paid on the services used in relation to its authorized operations in terms of Notfn No. 09/2009 as amended by Notfn No. 15/2009-ST dated 20.05.2009 - During the relevant period, the appellant claimed refund, which was denied by the Department & SCNs were issued in this regard - Upon adjudication, the refund was partly allowed and refund in respect of some services was rejected on grounds that certain operations were not included in the authorized operations - The Commr.(A) upheld such rejection of refund - Hence the present appeals.

Held: The services provided by the appellant are in the list of specified services approved by the UAC - The appellant manufactures footwear, which certainly cannot be said to be for self-consumption - Thus they can only be used for sale or marketing - The Approval Committee has issued the LoA and the same is issued by the Development Commissioner after examining the nexus - Hence the Revenue cannot sit in judgment over the certificate - Moreover, the approval of the certificate cannot be questioned since the jurisdictional Commissioner of Central Excise is also a member of the Approval Committee - Also considering the decision of the Tribunal in Tata Consultancy Services Ltd. Vs. Commr. of C.Ex. & S.T. (LTU) the reasons for denial of refund are insufficient: CESTAT (Para 1,8,9,10)

- Assessee's appeals allowed: CHENNAI CESTAT

Multi Tech Constructions Vs CC, CE & ST

ST - During period 2004-2005 to 2008-2009, assessee was rendering services of Management, Maintenance or Repair (MMR), Commissioning & Installation Services, Rent-a-Cab - During verification of P & L accounts of assessee, the values declared in ST-3 returns, it was observed that there was a short payment of service tax inasmuch, service tax was not paid on gross values received for the services provided by them - The work orders issued by Visakhapatnam Steel plant are on record and on perusal of same, it seems that the work which has been entrusted by assessee is upkeep and maintenance in wagon tippler and conveyor galleries, refractory maintenance of CDCP, CCP, of C &CCD, B.F.-1 & 2, CRMP, Sinter & TPP repair, conveyor galleries of maintenance, overhaul, replacement and changing of refractory bricks - It is the case of the Revenue that this activity would fall under the definition of maintenance or repair services during the period in question - It can be seen from the definition that repair and maintenance of immovable property gets covered under taxable category only from 15.06.2005 hence the demand for the period prior to 16.06.2005 is unsustainable - As regards the service tax liability on assessee as a subcontractor for the work executed by them from HSCL, Rosy Enterprises, UB Engineering and Monisha Constructions, the main claim of assessee is that original contractor has discharged the tax liability - The ratio of judgement of Tribunal in case of Power Mech Projects Ltd., - 2016-TIOL-3137-CESTAT-HYD would apply if assessee is able to evidence that the main contractors has discharged the tax liability under the category of Management, Maintenance and Repair services post 16.06.2005 - Since, the evidences are not forth coming, matter remanded back to the Adjudicating Authority - As regards the demands raised on account of short payment for erection and commissioning service, GTA service the assessee having not paid the tax liability with interest, the same are upheld and penalties imposed on this point are set aside by invoking the provisions of Section 80 of FA, 1994 - As regards the limitation, issue left open to the Adjudicating Authority to reconsider it: CESTAT

- Appeal disposed of: HYDERABAD CESTAT

CENTRAL EXCISE

2019-TIOL-782-CESTAT-AHM

Gujarat Alkalies And Chemicals Ltd Vs CCE

CX - The assessee have taken ISO Tank Container on rental basis - The ISO Tank Container was being used for transportation of exports consignment of Anhydrous Aluminium Chloride to their foreign based Customers - The case of department is that since ISO Tank Container was used for transportation of export consignment, the same was used beyond the place of removal and up to the destination of customer in Germany, therefore, the credit in respect of renting of supply of tangible goods service used beyond the place of removal is not admissible - The supply of tangible goods i.e. renting of ISO Tank Container is not used in relation to manufacture of final product - It is also not covered in inclusion clause to the definition - Therefore, the service of supply of tangible goods is not covered in any of the 3 category of services, therefore, does not fall under the ambit of input service - The finding given by Commissioner (A) as regard the limitation issue is also found to be correct - Accordingly, no infirmity found in the impugned order, hence the same is sustained: CESTAT

- Appeal dismissed: AHMEDABAD CESTAT

Miraj Products Pvt Ltd Vs CCE & ST

CX - The assessee is engaged in manufacture of chewing tobacco - During investigation, assessee had surrendered unaccounted income of Rs.129.41 crores - It is alleged that assesse has evaded Central Excise duty in respect of notified goods i.e. chewing tobacco produced/ manufactured by them without declaring the number of machines and part of section/ place of manufacture and cleared without recording the production in stock, without assessing and without payment of duty thereby contravening the provisions of Rule 6, 7 and 9 of Chewing Tobacco and Unmanufactured Tobacco Packing Machines Rules, 2010 thus rendered these goods cleared without payment of duty i.e. being clandestine removal, liable to confiscation under Rule 25 of CER, 2002 read with Rule 18 Rules, 2010 - The assessee is aggrieved of being denied an opportunity of cross examination - The theory of cross examination has to be examined in perspective of its purpose - At the stage of SCN, there is no adjudication - It is only a step in process of adjudication because the SCN in itself is not an order of assessment - The said order has to be passed post issuance of SCN after affording an opportunity of hearing the parties and after considering the evidence and material which is placed before the adjudicating authority - After receiving SCN, the only proceeding to respond by assessee was the impugned letter of 20.12.2017 praying for cross examination of the witnesses - The question of cross examination of such persons who are not yet been classified as witness or have not yet been summoned even by the adjudicating authority, does not at all arise - Assessee is first required to submit his reply to the SCN received - No doubt, the absence of his reply will not debar him from cross examining the witnesses but the stage of cross examination is post the examination in chief of a person who has been summoned by the adjudicating authority, in his discretion after satisfying himself qua his requirement to be examined as a witness to prove the allegations of SCN - Neither statutory nor any principle of natural justice requirement exists for allowing cross examination at a stage of receiving the mere SCN - The request of assessee in question was a premature request before the Commissionerate hence the Order under challenge needs no interference - However, the Commissioner is hereby required, irrespective of assessee filing any reply to SCN or not, to follow the principles of adjudication as far as examination of witness and cross examination thereof is concerned - The adjudicating authority below/ Commissioner is required to reconsider the request of assessee at the appropriate stage - However, keeping in view that the basic concept behind the cross examination is fair play, it being the most effective of all the means for extracting truth and exposing falsehood - It is clarified that observations shall have no effect on discretionary power of adjudicating authority below exercised with reasonable care and caution but at the appropriate stage for the same: CESTAT

- Appeal disposed of: DELHI CESTAT

CUSTOMS

NOTIFICATION

dgft18pn079

New Online facility for obtaining import license for 'Restricted' items from 18th March, 2019 (Para 2.50 of Hand book of Procedure, 2015-2020

cnt23_2019

CBIC revises tariff value of several commodities

ctariff19_007

CBIC amends tariff heading for certain items in Notfn No 152/2009-Cus on Indo-Korean FTA

Trade Notice 49

Online facility for obtaining import license for 'Restricted' itmes from 18th March, 2019 (Part 2.50 of Handbook of Procedures, 2015-2020)

CASE LAWS