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SERVICE TAX
2019-TIOL-995-CESTAT-MUM + Case Story
CCE & ST Vs IDBI Bank Ltd
ST - Section 35F of CEA, 1944 as made applicable to s.83 of FA, 1994 - Pre-deposit - Reversal from the inadmissible credit cannot be considered as sufficient compliance to the provisions of Section 35F since if allowed, it would be like the banker allowing encashment of fraudulent financial instrument like cheque or draft to that extent - Appellant directed to make pre-deposit within a period of 30 days and report compliance - Miscellaneous applications filed by Revenue allowed: CESTAT [para 5, 6]
- Applications allowed: MUMBAI CESTAT
2019-TIOL-982-CESTAT-MUM
Usv Ltd Vs CST
ST - Explanation inserted in rule 3(4) of CCR, 2004 by notification 28/2012-CX(NT) dated 20.06.2012 [w.e.f 01.07.2012] restricting utilization of CENVAT credit where tax is payable on reverse charge basis u/s 66A of FA, 1994 - Therefore, before 20.06.2012, there was no restriction upon the deemed service provider to pay service tax liability from CENVAT credit - period of dispute is prior to 20.06.2012 - impugned order is, therefore, not sustainable, hence set aside - appeal allowed with consequential relief: CESTAT [para 4, 5]
- Appeal allowed : MUMBAI CESTAT
ST - Appellant entered into agreements with various foreign entities for obtaining licence to use technical knowhow and technical information and also various engineering services in connection with setting up of their manufacturing plant/refineries - Revenue view is that the appellants had received taxable service under the category of 'Consulting Engineering Service' and is liable to pay tax in terms of s.65(31) r/w s.66A of FA, 1994 and rule 2(1)(d)(iv) of STR, 1994 - Adjudicating authority dropped the demand for the period 01.04.2003 to 18.04.2006 on the ground that the demands were for agreements prior to insertion of s.66A w.e.f 18.04.2006 and partly confirmed the demand for the period 19.04.2006 to 31.03.2007 - appellant is before CESTAT contending that the foreign collaborators are not covered under the category of 'Consulting Engineer'; that entire situation is revenue neutral, hence demand is not sustainable on this ground also.
Held: All the issues involved in the present case are identical to the issue involved in the case of Bharat Oman Refineries Ltd. [ 2017-TIOL- -] wherein it is held that when the agreement is for transfer of exclusive/non-exclusive technical know-how, the consideration received cannot be taxed under consultancy service - following the same, the demand in the present case does not sustain -since order is being passed on merits, other issues raised by the appellant are not gone into - impugned order set aside and appeal is allowed: CESTAT [para 5]
- Appeal allowed : MUMBAI CESTAT
CENTRAL EXCISE
2019-TIOL-998-CESTAT-HYD + Case Story
United Seamless Tubular Pvt Ltd Vs CCT
CX - Refund - Rule 5 of CCR, 2004 - Notification 27/2012-CX(NT) - Judicial discipline demands the lower authority follows the decision of the higher authority - Once it is decided by the CESTAT that the appellant is not entitled to refund, the lower authority cannot sanction such refund as it would constitute judicial indiscipline - Impugned order upheld and appeal rejected: CESTAT [para 11, 12]
CX - Transitional provison under CGST Act, 2017 - Section 140 of the CGST Act provides for transfer of CENVAT credit lying in balance in the assessee's account just before the CGST Act came into force - It does not provide for CENVAT credit which may have accrued to the assessee prior to this date but which was not in balance in their books of account - There is also no provision either under the old laws or under the CGST Act of cash refund of any CENVAT which may have accrued to the assessee prior to the CGST Act coming into force but which the assessee has not taken in their account: CESTAT [para 11]
CX - CGST, 2017 - GST Act has a different appellate mechanism for decisions under CGST Act - However, in transitional cases, CESTAT has to interpret and apply the provisions of CGST Act, to the extent and only to the extent, they modify the provisions of Central Excise Act and Finance Act, 1994 - Other transitional provisions such as transfer of CENVAT credit lying in balance as Input Tax credit under GST is purely a provision of the CGST Act and CESTAT has no role in interpreting or applying such provisions: CESTAT [para 11]
CX - Argument of appellant that they could have planned differently and taken back the credit before CGST Act came into force and could have transferred it as Input Tax credit and since they have not done so and hence they should now be paid in cash has no legal backing: CESTAT [para 11]
- Appeal rejected: HYDERABAD CESTET
2019-TIOL-984-CESTAT-KOL
Bilt Graphic Papers Products Ltd Vs CCCGST
CX - The assessee is engaged in manufacture of writing and printing paper in its unit Sewa located at Jeypore - They are also having other manufacturing units located in State of Maharashtra and Haryana - SCN was issued to disallow and recover cenvat credit alleged to have availed irregularly along with interest and to impose penalty - The assessee had cleared 2245.640 MT of inputs, viz., Pulp, Lime & Sodium Chlorate as such to its sister unit - For procuring these quantities, assessee had received Port and GTA services and availed cenvat credit paid on such Port services and GTA services respectively treating them as input services - They had also utilized the said cenvat credit so availed towards payment of Central Excise duty payable on the final product cleared from the factory - It is the case of Revenue that since the assessee did not use the inputs in or in relation to the manufacture of finished goods and accordingly, the services used in procuring the inputs would not qualify for availing cenvat credit - The issue is no more res-integra in view of various decisions of High Courts and the Tribunal - This Bench of Tribunal in case of Seven Star Steels Ltd. - 2013-TIOL-65-CESTAT-KOL by relying upon the decision of Tribunal in Chitrakoot Steel & Power Pvt. Ltd. - 2008-TIOL-246-CESTAT-MAD had allowed the appeal filed by assessee - The impugned order is set aside: CESTAT
- Appeal allowed : KOLKATA CESTAT
CX - The issue at hand is whether the appellant is entitled to avail Cenvat credit of duty paid by supplier, based on supplementary invoices - The Department opined that in respect of duty paid on supplementary invoices, the jurisdictional Commissioner had confirmed duty demand by invoking proviso to Section 11A - Hence it was alleged that the non-payment of duty by the supplier was on account of suppression of facts, due to which credit on supplementary invoice was not available to the assessee, as per mandate of Rule 9(1)(b) of CCR, 2004.
Held: It is seen that the Tribunal subsequently exonerated the supplier from the charges of suppression of facts - Penalty imposed u/s 11AC was also set aside - Hence the denial of credit to the appellant, based on allegations of suppression by the supplier company, is not tenable: CESTAT
- Assessee's appeal allowed : AHMEDABAD CESTAT
CUSTOMS
2019-TIOL-980-CESTAT-MUM
CC Vs Zenith Birla India Ltd
Cus - Refund - Failure to challenge the assessment of shipping bill has been raised for the first time before Tribunal - It is settled law that Revenue cannot raise fresh grounds at the 'second' appellate stage - no merit in Revenue appeal, hence dismissed: CESTAT [para 6, 7]
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Appeal dismissed
: MUMBAI CESTAT |
