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SERVICE TAX
2019-TIOL-932-CESTAT-MUM
Jayaswal Neco Industries Ltd Vs CCE
ST -Demand of tax confirmed by lower authorities on the services of ‘Renting of Immovable Property' - Revenue submitting that the appellant is not only engaged in providing Renting of Immovable Property Service but are deemed service providers in respect of GTA service on reverse charge basis and, therefore, taking into account total values of both the services, the appellant is not eligible for exemption notification 6/2005-ST - appeal to CESTAT.
Held: It is seen that in each year the gross value received towards renting of immovable property service is less than four (4) lakhs, therefore, the appellant is clearly eligible for the exemption notification 6/2005-ST - As regards Revenue contention of adding the GTA service value for computing the aggregate value of services, paragraph 3 of the notification clarifies that for calculating the threshold limit of Rs.4 lakhs, the value of goods transport agency service for which the person is liable to pay service tax shall not be taken into account - therefore, only the value of renting of Immovable property is to be taken into account for computing exemption limit - demand of service tax is, therefore, not sustainable - impugned order set aside and appeal allowed: CESTAT [para 4]
- Appeal allowed: MUMBAI CESTAT
2019-TIOL-931-CESTAT-MUM
Kalika Steel Alloys Pvt Ltd Vs CCE, C & ST
ST - Appellant had paid service tax on GTA on the 100% amount without availing abatement of 75% as available and availed the credit of the entire tax paid - objection raised that since as per notification, tax is payable only on 25% of the transportation charges, the credit of the service tax paid on 75% is inadmissible - appellant reversed the credit as advised by the audit party and adjusted the excess payment against tax liability for the subsequent period April 2009 to June 2009 - Revenue allegation is that such adjustment can be made only during the succeeding month and not beyond that, demand of Rs.2,66,635/- confirmed with interest and equivalent penalty- appeal to CESTAT.
Held: Notification is a concessional notification and unlike in Central Excise law wherein the unconditional notification should be mandatorily availed by the assessee, similar provision is missing in service tax - therefore, payment of service tax on GTA on the 100% amount is legal and correct - objection raised by the Audit is unsustainable - moreover, since entire exercise is revenue neutral, the impugned order is unsustainable and hence set aside - appeal allowed: CESTAT [para 10, 11]
- Appeal allowed: MUMBAI CESTAT
CENTRAL EXCISE
2019-TIOL-930-CESTAT-BANG
Carl Bechem Lubricants India Pvt Ltd Vs CCT
CX - The appellant company manufactures industrial special lubricating greases, falling under Chapter 27 & 34 of the First Schedule to the CETA - It availed Cenvat credit on input goods, services & capital goods - On audit, it was noted that the appellant did not maintain separate accounts of inputs used for dutiable goods and exempted services, considering that the appellant was manufacturing dutiable goods and also providing exempted services - It was also noted that Cenvat credit had been availed on inputs used in both activities - Hence the Revenue opined that the appellant was liable to pay 5%/6% of value of exempted input services as per Rule 6(3)(i) of the CCR 2004 - SCNs were issued - On adjudication, duty demands were raised with interest & penalty - On appeal, the Commr.(A) gave partial relief.
Held: It is seen that the appellant already reversed the proportionate amount of Cenvat credit as per Rule 6(3)(ii) r/w Rule 6(3A) - Hence the appellant is not required to pay 5%/6% of the value of exempted services - Such position stands settled by a catena of decisions - Hence the O-i-A in challenge is unsustainable and merits being set aside: CESTAT (Para 3,3.1,7)
- Assessee's appeals allowed: BANGALORE CESTAT
2019-TIOL-929-CESTAT-DEL
Arora Products Vs CCT
CX - Assessee filed a letter claiming consequential refund of amount pre-deposited in said matter vide O-I-O - Rs.3,96,847/- in cash was refunded which also included in impugned amount of Rs.1,66,322/- - Since the claim of refund of duty paid in excess was filed by assessee on 21.05.2010 - Accordingly, the assessee claimed the interest vide his letter - However, a SCN was issued proposing rejection of claim for said interest - The rejection as proposed was confirmed vide order of Assistant Commissioner - The appeal before Commissioner (A) was also rejected - There is no dispute that whenever the amount was sanctioned, the refund thereof was made within the statutory limit of 3 months as prescribed by Section 11B of CEA, 1944 - The only controversy is that the amount of said refund which got initially adjusted against the outstanding liability of assessee, if subsequently that liability is set aside, the said period of 3 months has to be counted whether from the date of the initial sanctioning order or from the date of doing away the liability qua which the said amount was adjusted - There is no dispute to legislative intent that whatever amount is sanctioned, the refund thereof has to be made within 3 months - The period of 3 months under Section 11BB has to reckon from the decision of Tribunal doing way the liability against which part of sanctioned refund was adjusted - Admittedly, the said adjusted amount has been refunded within 3 months of said order - Question of levy of any interest does not at all arise - Otherwise also the said amount was adjusted against liability of paying interest - Seen from this angle also there arises no question of levy of interest on interest - The Larger Bench of Tribunal in case of Indian Thermoplastics Pvt. Ltd. - 2003-TIOL-234-CESTAT-DEL-LB has held that the applicant is entitled to interest from the date of final order passed by Tribunal and if the amount is refunded within 3 months of order of Tribunal, the same will be in consonance with the principle as contained under Section 11BB of CEA, 1944 - The said decision has been upheld by Supreme Court while disposing of a Civil Appeal No. 1789/2005 wherein the Court has held that the interest on amount pre-deposited pending appeal is payable only from the date of final order in favour of assessee, as the entitlement to refund arises only when the appeal got finally disposed of - The Adjudicating Authorities have committed no error while declining the entitlement of assessee for interest on the amount sanctioned in its favour - Order is accordingly upheld: CESTAT
- Appeal dismissed: DELHI CESTAT
CUSTOMS
NOTIFICATIONS
cnt29_2019
Handling of Cargo in Customs Areas (Amendment) Regulations, 2019
cnt28_2019
Denotification of ICD Kheda
CASE LAWS 2019-TIOL-731-HC-MAD-CUS
Abans Commodities India Pvt Ltd Vs CC
Cus - The petitioners sought a Mandamus for release of consignments and a further direction to the respondents to issue a 'Detention Certificate' for waiver of Demurrage and Container Detention Charges in terms of Regulation 6(1)(l) of Handling of Cargo in Customs Areas Regulations, 2009 - The identical issue has been considered in case of M/s.Royal Impex 2019-TIOL-596-HC-MAD-CUS - The said order is applicable to the present case on all fours - The petitioners will remit the entire duty component of consignments imported by them in cases where such duty is leviable along with a bank guarantee for the 10% of invoice value - In cases where the duty impact is neutral, the petitioners shall furnish a bank guarantee for the 10% of the invoice value - Upon satisfaction of aforesaid conditions, the consignments shall be released forthwith - The authorities are at liberty to initiate proceedings in respect of transactions in question and if done, petitioners shall appear, be heard and file their submissions pursuant to which orders shall be passed by authorities in accordance with law - The petitioners have also prayed for waiver of demurrage charges incurred in respect of detained consignments - In the light of Rule 6(l) of Handling of Cargo in Customs Areas Regulations, 2009, which provides that Customs Cargo Provider shall not, subject to any other law for the time being in force, charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive officer or examining officer, as the case may be, there shall be a waiver of demurrage charges: HC
Writ Petition disposed of: MADRAS HIGH COURT
2019-TIOL-928-CESTAT-ALL
CC Vs Ashirwad Steels
Cus - Tribunal is informed about the Instructions issued by C.B.E. & C. in exercise of powers conferred by Section 35R of CEA, 1944 fixing monetary limits below which appeal shall not be filed in the Tribunal - The monetary limit has been enhanced to Rs. 20 lakhs through the said Instructions - The High Courts of Madras, Karnataka and Gujarat have held that the litigation policy containing monetary limit for filing appeals will apply to pending appeals - 2015-TIOL-2512-HC-MAD-ST ; 2012-TIOL-1113-HC-AHM-CX and 2011-TIOL-889-HC-KAR-CX : CESTAT
- Appeals dismissed: ALLAHABAD CESTAT |
