|
SERVICE TAX
2019-TIOL-959-CESTAT-DEL
CCE Vs Height Consultants
ST - The assessee is providing commercial or industrial construction service w.e.f. 29.05.2007 and are discharging their liability since October 2007 by claiming abatement under Notfn 01.2006 - During an audit, it is observed that assessee, even prior to the said registration were engaged in construction services, but have not discharged the liability for the period with effect from April 2005 to September 2009 - A demand, accordingly, has been levied vide a SCN - In addition, the benefit of abatement under said Notfn has been denied to assessee by the department w.e.f. 16.06.2005 - Perusal of definition makes it clear that the services rendered by assessee will fall under Sub-clause C thereof - Since the material is also provided by service provider, the case of assessee as far as completion and finishing services as detailed above are concerned, it stands clearly covered under Item No. 5 of the Table given in Notfn 1/2006-ST - For this reason, the Commissioner (A) has rightly extended the benefit of this notfn - Further, admittedly, the Contracts were inclusive of material, hence the total value of the contract which amounts to transfer of property was to be excluded - The other construction services which are residential in nature, the phraseology itself takes that Contract out of the definition of Commercial and Industrial Construction - Hence, levying the demand for the said construction under the head of it being commercial is, therefore, not at all sustainable - Now, coming to the plea that all services of assessee are not commercial in nature, admittedly assessee is constructing Ambedkar Peeth, a programme under Government of Rajasthan for M/s AVS and is also rendering services to a PSU, i.e., Jaipur Vidyut Vitran Nigam Limited (JVVNL) both being the authorities under Government of Rajasthan in services rendered to them will clearly be out of the ambit of definition of Commercial and Industrial Construction - Resultantly, any demand raised for these constructions under Commercial or Industrial Construction Services is not sustainable - Commissioner (A) has rightly concluded that since the assessee has not filed the Service Tax return in form ST3 in the manner and frequency required under STR, 1994 and has also failed to pay the due Service Tax, the same amounts to the deliberate suppression of facts - Since the assessee has failed to act accordingly, the penalty under Section 76 and 78 have rightly been confirmed against the assessee - No infirmity found with the order where the penalty under Section 77 has been done away as being not warranted in view of the penalties imposed under Section 76 and 78: CESTAT
- Appeal rejected: DELHI CESTAT
2019-TIOL-958-CESTAT-MUM
Mirah Hospitality And Food Solutions Pvt Ltd Vs CCE
ST -Demand confirmed under the head ‘supply of tangible goods for use' and ‘renting of immovable property' - in the first round, matter was remanded for denovo adjudication - aggrieved by this order passed in remand confirming tax under both heads and appropriating the amounts paid, appellant before CESTAT arguing that since the transaction is in the nature of deemed sale and they had discharged VAT liability, same cannot be liable for service tax under Supply of Tangible goods service (SOTG).
Held: From the MOU, it is observed that various equipment were supplied by appellant to Encore Hotels P Ltd. and in such transaction only the right to use the equipment was transferred but the right of possession and effective control remained with the appellant, therefore, transaction does not fall under SOTG - moreover, CBEC has also clarified that where Sales Tax/VAT is chargeable/discharged, the same shall not be liable to service tax - matter needs to be reconsidered for verification of actual payment of VAT - appeal allowed by way of remand: CESTAT [para 4, 5]
- Matter remanded: MUMBAI CESTAT
CENTRAL EXCISE
2019-TIOL-965-CESTAT-ALL + Case Story
Precision Pipes And Profiles Ltd Vs CC, CE & ST
CX - The assessee is engaged in manufacture of automobile parts and was also engaged in import of various items - During period 2003 to July 2014, the assessee imported goods under Bills of entries and cleared the same on payment of additional Customs Duty - The said additional Customs Duty was not paid by assessee in cash, but the same was adjusted against DEPB - Revenue views that the benefit of additional Customs Duty is available as credit to the assessee only when the same is paid in cash - Inasmuch as the said duty was discharged on DEPB scrips, the assessee was not entitled to benefit of Cenvat credit of the same - Admittedly the SCN for the demand in question stands issued on 09.12.02.2005 for the period October 2003 to August 2004 i.e. by invoking extended period of limitation in terms of proviso to section 11A of Central Excise Act - The said expression appearing in section 11A has been the subject matter of various decisions of Supreme Court - Reference can be made to the Supreme Court decision in case of Chemphar Drugs 2002-TIOL-266-SC-CX - It stands held that extended period of five years is applicable only when something positive other than mere inaction or failure on the part of manufacture is proved - Similarly in the case of Pushpam Pharmaceuticals Company 2002-TIOL-235-SC-CX , it was observed that the expression "suppression of facts" appearing in section 11A, proviso has to be interpreted strictly because it has been used in the company of strong words as fraud, collusion or willful default - Mere omission to disclose the correct information is not suppression of facts unless it was deliberate to escape from payment of duty - There is no reference to any column or clause in said ER-1 which requires an assessee to disclose the information - In the absence of any requirement to disclose in said returns, the factum of payment of CVD through DEPB, non-disclosure, by itself cannot be made the ground for invocation of extended period - The Supreme Court have clearly observed that a mere failure of the assessee to disclose the information, by itself cannot be held to be a ground for invocation of extended period unless such non-disclosure was on account of any mala fide - There was no legal obligation on assessee to disclose the requisite information in ER-1 returns, in the absence of any clause or requirement in the said reports - As such the mere fact that assessee had not stated in the ER-1 returns as regards payment of duty through DEPB cannot be adopted a valid ground to justifiably invoke the extended period of limitation - The demands having been raised beyond the normal period of limitation are barred - Accordingly the impugned order is set aside: CESTAT
-
Appeal allowed
: ALLAHABAD CESTAT
2019-TIOL-957-CESTAT-MUM
Capacite Infrastructure Ltd Vs CCE
CX -Appellant had availed the benefit of amending notification 47/2002-CE, 6/2006-CE in respect of "Pipes" and "Pipe Fittings" manufactured by them - contention of Revenue is that the exemption is available only for "Pipes" and not "Pipe fittings" - CE duty demanded and confirmed with penalty and interest - assessee in appeal against duty confirmation and Revenue is aggrieved by non-imposition of equivalent penalty.
Held: On a simple reading of the aforesaid notification there is no room for doubt that the exemption has been allowed to ‘pipes' needed for delivery of water from its source to the plant and from there to the storage facility - It is clear that nowhere the expression ‘Pipe fittings' has been mentioned in the notification - an exemption notification has to be strictly construed - on merit, there is no reason to interfere with the order of the Commissioner - insofar as limitation is concerned, the appellant assessee has been meticulously reflecting the production and clearance of ‘Pipes' and ‘Pipe fittings' in the ER-1 returns, invoices and inter alia also discharging 10% of the value of purported exempted ‘pipe fittings' in accordance with rule 6 of the CCR, 2004, therefore, it is difficult to accept the contention of the Revenue that the appellant assessee had suppressed the facts - demand cannot, therefore, be sustained for the extended period of limitation and is required to be restricted to the normal period - matter is remanded for ascertaining the duty liability for the normal period, if any - assessee appeal is partly allowed - no justification for imposition of penalty as issue involved is interpretation of law and there is no suppression of fact - Revenue appeal is, therefore, dismissed: CESTAT [para 6 to 8]
- Assessee Appeal partly allowed/Revenue appeal dismissed: MUMBAI CESTAT
2019-TIOL-956-CESTAT-MUM
Rexnord India Pvt Ltd Vs CCE
CX - Appellant mistakenly paid excess duty in December 2014 and immediately on realizing the mistake took re-credit in January 2015 - after 18 months, the jurisdictional R/S directed appellant to reverse credit and file refund claim for the excess amount so paid - appellant reversed the same in June 2016 and filed refund in July 2016 - said claim rejected on the ground of time bar - since re-credit entries were reversed because of advice by department and a refund claim was filed, the appellants cannot be penalised for action taken by them at the instance of the Revenue authorities, which itself was not in accordance with law - amount paid by mistake cannot be termed as duty in the present case - limitation prescribed u/s 11B of CEA, 1944 is not applicable - appeal allowed: CESTAT [para 6]
- Appeal allowed: MUMBAI CESTAT
2019-TIOL-955-CESTAT-DEL
J N Footwears Pvt Ltd Vs CCE
CX - The factory premises of assessee was visited by Central Excise Officers and the unit was found engaged in manufacture of PVC granules from old and used PVC footwear - The granules were further used in manufacture of PVC soles - The available raw material and finished goods were placed under seizure - A SCN was issued proposing confiscation of seized goods and imposition of penalties - The department have adduced no credible evidence to show that the soles cleared by assessee were bearing 'AIM' and "JUMP' brand only - As regarding claim that the said brands were owned by the family, three buyers of assessee company, Sh. Pawan Kumar Bhatia, Sh. Sandeep Kamra and Sh. Anil Kumar Bhatia in their statements, on which heavy reliance is placed in SCN had stated that they were placing orders on Sh. Rajesh Kumar Garg which was executed sometimes on the invoice of M/s. Rajesh Plastics Pvt. Ltd and sometime on invoices of assessee - In Minimax Industries - 2011-TIOL-319-HC-DEL-CX , the Delhi High Court has held that the benefit of SSI Exemption can be denied if brand name is used to indicate a connection between the goods and such other person - Revenue have adduced no evidence to Show that the said brands had acquired such reputation so as to be identified with the persons who applied for registration - Benefit of SSI Exemption was available to assessee company: CESTAT
- Appeal allowed: DELHI CESTAT
CUSTOMS
2019-TIOL-754-HC-MAD-CUS
CC Vs Volex Interconnect India Pvt Ltd
Cus - The Revenue had filed 17 appeals against adjudication orders passed during the relevant period - Such appeals were filed before the Commr.(A) - These appeals were remanded by the Commr.(A) on grounds that the files were not immediately produced and that such files were necessary for disposing off the matter on merits - On further appeal, the Tribunal upheld such findings of the Commr.(A) - Hence the Revenue's appeals.
Held - The High Court cannot pursue the appeal by exercising its jurisdiction u/s 130 of the Customs Act - The Commr.(A) in capacity as fact-finding authority, held that in many of the appeals, review orders were passed after the stipulated period of 3 months from the date of communication of the O-i-O since the date of dispatch of the order could not be ascertained with authenticity - The onus is on the Revenue that the review orders have been passed within the stipulated time - If it was unable to discharge such onus, then the consequences must follow - The Commr.(A) also found that the appeals were not preferred within the time limit prescribed under the Act - The Tribunal noted how the Commr.(A) flagged number of days of non-condonable delay in each of the 17 cases - This is not disputed by the Revenue - As the Tribunal declined to interfere with the Commr.(A)'s findings, the Revenue cannot approach the High Court seeking a roving enquiry of re-adjudication of facts covered by the Tribunal - Hence the Tribunal's order warrants no intervention: HC (Para 4,7,8,9) -
Revenue's appeals dismissed
: MADRAS HIGH COURT 2019-TIOL-954-CESTAT-HYD
CCT Vs Gng Exports
Cus - The assessee has exported iron ore fines declaring the Fe content at 60% and classifying the goods under tariff item (HS Code) 2601 1140 - At the time of filing shipping bill, the rate of duty was Rs. 300/- per MT and they paid the duty accordingly - On 03.05.2007, notfn 62/2007-Cus was issued exempting iron ore fines of Fe content 62% and below in excess of Rs. 50/- per tonne - If the assessee is eligible for benefit of this exemption, they have to pay the customs duty of only Rs. 50/- per MT instead of Rs. 300/- per MT - This is an unusual case where there are only two test reports – one submitted by the exporter and the second one by Chemical Examiner and there is no scope for conducting re-test because there are no samples left - Therefore, a decision has to be taken based on the available two test reports - No definite conclusion can be arrived at regarding the Fe content of iron ore fines which were exported - There is no evidence to show that either of two reports is wrong - There is also no third report to substantiate either of the two reports - Re-testing is impossible because there is no sample left - The judgment of Apex Court gives precedence to the report of Chemical Examiner over that of any private party - However, when the assessee asked for a re-test, the department could not get the re-test done - No definite conclusion can be arrived at regarding the iron ore content of iron ore fine which were exported - Therefore, no definite conclusion can be arrived to decide whether or not the assessee is entitled to benefit of exemption benefit of notfn 62/2007-cus - Since the exemption notification is a general rule, any benefit of doubt must be held against the assessee and in favour of Revenue, as has been laid down by Apex Court in Dilip Kumar & Company and others - 2018-TIOL-302-SC-CUS-CB - Giving the benefit of doubt to the Revenue, appeal of Revenue allowed: CESTAT
- Appeal allowed: HYDERABAD CESTAT
2019-TIOL-953-CESTAT-CHD
Karan Logistics Vs CC
Cus - Revenue submits that the appeal has become infractuous as this caption appeal is against the suspension order of Custom Broker License, which has already been revoked by order and against that order, assessee has filed the appeal before this Tribunal, which has been listed for final hearing on 01.04.2019 - As the Custom Broker License has already been revoked, therefore, appeal filed by assessee has become infractuous: CESTAT
- Appeal disposed of: CHANDIGARH CESTAT |
