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SERVICE TAX
2019-TIOL-1054-CESTAT-DEL
Home Land Industrial Vs CCE & ST
ST - The assessee is a proprietary concern registered with Service Tax department for providing taxable category of "Security Agency Services" - After investigation, a SCN came to be issued to the assessee wherein Service Tax was demanded under section 73(1) of FA, 1994 and the penal provisions of sections 76, 77 and 78 were also invoked - Interest as leviable under section 75 of FA, 1994 was also demanded - The assessee had entered into an agreement with Shri Abhishek Kumar whereunder he was made responsible for fulfillment of the entire statutory/mandatory requirements of laws - Clause 4 (c) of the agreement specifically mentions that Shri Abhishek Kumar will follow and fulfill all the statutory requirements pertaining to the service tax - The assessee placed documents which demonstrate that the assessee was making payment of service tax regularly to Shri Abhishek Kumar who was the authorized person - It was Shri Abhishek Kumar who has failed to deposit the service tax with the Revenue authorities - The submission of assessee, therefore, was that there was no reason to impose penalty under Section 76 and 78 of FA, 1994 as the circumstances were beyond control of assessee and in a way the assessee was making compliance of payment of the service tax through its agent, but, the agent cheated him as well as the department by not depositing the service tax amount with the Revenue authorities - In this regard, assessee did not commit fraud nor was there any mis-statement or suppression of the facts with an intention to evade payment of service tax as he was regularly paying the required amount of the service tax to his authorized representative - This indicates that there was no intention on the part of assessee to evade payment of service tax - It was not appropriate to impose penalty under Sections 76 and 78 on assessee - The penalties imposed under the impugned order under Sections 76, 77 and 78 of the Act should not have been imposed - Accordingly, the service tax alongwith interest was rightly confirmed by the impugned order, but the imposition of penalties under Sections 76, 77 and 78 of the Act is set aside: CESTAT
- Appeal partly allowed: DELHI CESTAT
2019-TIOL-1053-CESTAT-MAD
Kumaran Enterprises Vs CCE
ST- The Appellant, registered with ST Department was providing 'Clearing & Forwarding services' to a company - in consonance of the same, it received monthly remunerations as commission & reimbursement of its expenses- the Appellant was regularly filing its ST-3 returns- it claimed threshold exemption of Rs. 4 lacs for in terms of Notif No. 6/2005-ST- disagreeing with the same, the Revenue issued SCN to the appellant on the ground that its accounts showed that it had crossed the limit of 4 lacs & hence liable to pay ST- this demand was then confirmed- in appeal, the Commissioner (Appeals) upheld the OIO- then, the appellant approached the Tribunal.
Held : The Department relied solely upon the provisions of Rule 5 of Service Tax Rules 2006 to hold that any expense or cost incurred by service provider in the course of providing taxable service of such expense or cost, is to be treated as consideration & that such consideration is to be included in the value for purpose of charging service tax - However, the provisions of Rule 5 were declared to be ultra vires by the Delhi High Court in the case of M/s. Intercontinental Consultants and Technocrats Pvt. Ltd. Vs Union of India - Such findings were sustained by the Apex Court - In light of such precedent, the findings of the lower authorities warrant being quashed: CESTAT (Para 1,5.2)
- Assessee's appeal allowed: CHENNAI CESTAT
CENTRAL EXCISE
2019-TIOL-164-SC-CX
Mangalam Cement Ltd Vs CCGST
CX - The assessee-company manufactures Cement - During the relevant period, it availed Cenvat credit of service tax paid on GTA service from factory to customers, from railway siding to godown and from godown to customers; Auction Services and Rent-a-Cab Services - The Revenue opined that theser services were not valid input services as per Rule 2(l) of CCR 2004 - SCNs were issued proposing to raise duty demands with interest u/r 14 of CCR 2004 and Section 11AA of CEA 1944 - Penalty was imposed u/r 15 of CCR 2004 - On adjudication, the demands, interest & penalty were confirmed - Thereafter, the Tribunal remanded the matter to determine the place of removal - On remand, the adjudicating authority re-iterated the demands - On second appeal before the Tribunal, the demands were quashed - Later the High Court remanded the matter to the Tribunal to determine the issue of penalty, while reviving the order passed by the Adjudicating authority - Such findings were based on the amended definition of input service w.e.f. 01.03.2008 and also the judgment of the Apex Court in Commissioner of Central Excise Service Tax Vs. Ultra Tech Cement Ltd. - Hence the assessee's appeal.
Held - It is seen that the decision in Central Excise and Service Tax Vs. Ultra Tech Cement Limited 2018-TIOL-42-SC-CX does not have any application in the facts of the present case - Such argument raised was not dealt with properly by the High Court - Hence notices be issued to the parties, returnable within four weeks' time: SC
- Notice issued: SUPREME COURT OF INDIA
2019-TIOL-1052-CESTAT-KOL
CCE & ST Vs Jai Durga Iron Pvt Ltd
CX - The assessee is engaged in manufacture of sponge iron and MS Ingots - They had availed and utilized Cenvat Credit on iron & steel items such as M.S. Angle, H.R. Plate, M.S. Beam and M.S. Channel - SCN was issued on the ground that the same are not covered under definition of Rule 2(k) of CCR, 2004 - The usage of these items in various capital goods/parts and components of such capital goods fabricated inside the plant of the assessee, has been examined by lower appellate authority - He also examined the factual application of these iron and steel items as certified by Mr. Sarat Behra who was engaged in the manufacture of the capital goods - The main thrust of argument of Revenue is that the iron and steel items were mainly used in the support structure and will not satisfy the criteria of parts and components or accessories of such machinery - Such observation has to be supported by material facts - The same is not available in the present appeal - Whether iron and steel item is to be considered as part or component or accessory of capital goods can be decided by applying "user test" as decided in Jawahar Mills Ltd. 2002-TIOL-87-SC-CX and elaborated in Rajasthan Spinning & Weaving Mills Ltd. 2010-TIOL-51-SC-CX - In fact, the ratio evolved by Supreme Court has been consistently followed by various High Courts as well as this Tribunal while deciding the disputes of similar nature - A reference can be made in the recent decision of Tribunal in case of M/s. Singhal Enterprises Pvt. Ltd. 2016-TIOL-2451-CESTAT-DEL and in M/s. Lafarge India Ltd. 2 016-TIOL-2875-CESTAT-DEL - Tribunal rely on decision of Madras High Court in Madras Aluminium Co. Ltd. 2016-TIOL-3095-HC-MAD-CX which also deals with the scope of credit on similar items and also application of the concept of support structure while deciding the dispute - Accordingly, no reason found to interfere in impugned order: CESTAT
- Appeal dismissed: KOLKATA CESTAT
2019-TIOL-1051-CESTAT-MUM
Maharashtra Seamless Ltd Vs CCE
CX -CENVAT - Rule 2(l) of CCR, 2004 - Input Service - Whether service tax paid on repair and maintenance service in respect of Windmills located outside the factory is entitled to credit - Electricity generated through these windmills are used by the appellant in factory.
Held: In appellant's own case, the CENVAT credit has been allowed by Tribunal - 2011-TIOL-1059-CESTAT-MUM - no reason to deviate from the conclusion reached in the said case - impugned order is, therefore, set aside and appeal is allowed: CESTAT [para 4]
- Appeal allowed: MUMBAI CESTAT
CUSTOMS
NOTIFICATION
cnt31_2019
CBIC notifies fresh Tariff Value for several commodities
TRADE NOTICE
dgft_trade_notice_05_2019
Requirement of documents for online IEC application - modification and modification procedure to follow Clarifications - reg CASE LAWS 2019-TIOL-832-HC-DEL-CUS
Saint Gobain India Pvt Ltd Vs UoI
Cus - The petitioner firm regularly imports soda ash for its plants from several countries - The respondent had imposed anti-dumping duty vide Notfn dated 03.07.2012 for a period of 5 years from the date of Notfn on the imports of soda ash originating in or exported from China, PR, EU, Kenya, Pakistan, Iran, Ukraine and USA - Further, on 21.12.2016, the respondent vide Notfn 55/2016-Customs (Add) rescinded Notfn 34/2012-Customs but kept the same in abeyance as per directions of Gujarat High Court - Subsequently, on 16.06.2017, the designated authority had initiated sunset review - Further, the said duties under Notfn dated 03.07.2012 were extended by respondent in the meantime for a period of one year in terms of Section 9A(5) vide Notfn 33/2017 till 02.07.2018 - The original imposition was by way of Notfn dated 03.07.2012 and was valid till 02.07.2017 - The levy was extended in the exercise of power under second proviso to Section 9A(5) of the Act through Customs Notfn 33/2017 by a year till 02.07.2018 - No notification extending duties can now be issued in terms of settled law - Further, the law on the issue raised in present petition is well settled by this court in Forech India Ltd. 2018-TIOL-1061-HC-DEL-CUS by holding that second notification imposing anti-dumping duty for a period of five years cannot be sustained because it has to be issued within the period of first five years or in the extended one-year period - It has been specifically held that the moment the levy comes to an end or there is break in its continuance, it cannot be revived in the sunset review exercise - Thus, no notification with retrospective or prospective effect can now be issued by Respondent herein even if the sunset review is decided in favour of applicant domestic producers in terms of the settled legal position that there cannot be a gap between expiry of original duties or extension of one year thereof under second proviso to Section 9A(5) and extension of period of such imposition by 5 years under first proviso to Section 9A(5) of Customs Tariff Act, 1975 - Clearly, as a result of discussion, the petition has to succeed; the respondents are hereby restrained and enjoined from collecting any duties under Notfn 34/2012-Customs (ADD) read with subsequent Notfn 33/2017-Customs (ADD) on or after 02.07.2018 - Any amounts collected or obligations imposed on the basis of those notifications are declared to be without authority of law - The petitioner is discharged from such obligations and is entitled to the refund of any amounts collected after 02.07.2018: HC
- Writ petition allowed: DELHI HIGH COURT 2019-TIOL-1050-CESTAT-MUM Dicitex Decor Pvt Ltd Vs CC
Cus - It is a settled law that chargeability to duty on import crystallizes on the entry of goods into the territorial waters of India and that the rate of duty that conforms to the prescription in Section 15 of the Customs Act, 1962 applies - Bills of entry were presented much before notification 64/2008-Cus dated 09th May 2008 was issued, therefore, the rate of duty applicable under the earlier notification would have to be adopted - Rate prescribed in the authorization produced by the appellant at the time of import would well have reflected the new Policy and if the new Policy was to be the arbiter of the rate of duty, there would be no need to take recourse to section 25 of the Customs Act, 1962 - Policy is given effect only upon the issue of corresponding notification under the enabling statute viz. s.25 and on the relevant date the duty that was to be levied was @5% and not @3% - no merit in appeal, hence dismissed: CESTAT [para 6 to 8]
- Appeal dismissed: MUMBAI CESTAT |
