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SERVICE TAX 2019-TIOL-1101-CESTAT-MUM
Marvel Landmarks Pvt Ltd Vs CST
ST - VCES, 2013 - Application was proposed to be rejected on the ground that vide letter dated 28.08.2012 addressed to M/s Marvel Realtors,inquiry was initiated against all appellants - Proceedings initiated under the SCN were dropped by the adjudicating authority but in Revenue appeal, the order was reversed - appellant is, therefore, before the CESTAT.
Held: Limited issue to be decided is whether the letter dated 28.08.2012 issued to M/s Marvel Realtors can be considered as initiation of enquiry contemplated u/s 106 of the Finance Act, 2013 - It is found that the appellants are private limited company and partnership firm in different names, therefore, the letter addressed to M/s Marvel Realtors cannot be considered as service of letter to all the appellants - Even though the letter was issued, on this technical lapse on the part of the Revenue, it cannot be said that the inquiry contemplated u/s 106(2) of the FA, 2013 was initiated - Secondly, Tribunal in the case of L.V. Construction Co. - 2016-TIOL-159-CESTAT-MUM has held that where the information sought is of a roving nature, provisions of s.106 are not attracted - in the present case also since similar information was asked from more than one assessee and the same is not specific and/or in relation to any particular assessee, the information sought is of roving nature - VCES declaration is acceptable and, therefore, impugned order is set aside and appeals are allowed: CESTAT [para 4]
- Appeals allowed: MUMBAI CESTAT
2019-TIOL-1100-CESTAT-DEL
Skylark Highway Solutions Pvt Ltd Vs CST
ST - The assessee is engaged in providing security agency service, manpower supply service and management, maintenance or repair services and for these services, they have got themselves registered with Service Tax department - Appeal has arisen against the confirmation of service tax along with interest and penalties as leviable under FA, 1994 on the ground that assessee have evaded Service Tax by suppressing the taxable value in their ST 3 returns on taxable service namely, security agency service and manpower supply service - Assessee have not contested that the figures given in balance sheet which they have submitted before the investigating agency are not factually correct - Even the duplicate were also prepared fraudulently and submitted before Departments Audit team - It has been confessed by CMD and other officials of assessee that the figures given in ST 3 returns are manipulated and does not reflect the correct value of services provided by them - No evidence has been adduced by assessee to controvert the facts that the taxable value declared by assessee in ST 3 returns were not wrong and manipulated - The demand under section 73(1) of FA, 1994 by adjudicating authority is legally correct in principal - However, so far as the quantum of service tax demand is concerned, the adjudicating authority need to examine the claim made by assessee that the value of certain exempted services namely, the construction of road and its maintenance provided by them ought to have been deducted from the total taxable value before determination of demand of service tax from them - As per provisions of service tax before 1.7.2011, the authorities should have determined the actual amount received in a financial year while demanding the service tax - However, this fact can only be checked at the level of original adjudicating authority and therefore, for the purpose of determining the financial year wise receipt of Service tax value prior to 1.7.2011, the adjudicating authority need to examine the balance sheet and other statement of accounts to re-determine the financial year wise receipts as claimed by assessee and to re-determine the demand of service tax for particular financial year - With regard to claim of assessee that cum-duty-benefit should have been provided to them, this fact also needs to be examined at the level of original adjudicating authority - Adjudicating authority is directed to examine the assessee's claim in this regard - This is an established case of intentional evasion of service tax by manipulating and forging the figures of taxable value for levy of service tax by assessee and therefore, the demand for extended time period is rightly invoked: CESTAT
- Appeal partly allowed: DELHI CESTAT
CENTRAL EXCISE
2019-TIOL-862-HC-SIKKIM-CX
Sikkim Organics Vs UoI
CX - Petitioner is a registered partnership firm having its principle place of business at Manpur, Sumbuk Block, South Sikkim and is engaged in the business of manufacture of industrial chemicals - When the petition was filed before this Court, the petitioner submitted before the Court that in case one more opportunity is given to them to make good the deficiency, the pre-requisite deposit could be made - Though, no such liberty was granted to petitioner but till date the petitioner has not taken any steps to deposit the amount - Section 35F of Act provides that the Appellate Tribunal shall not entertain any appeal against the decision or order passed by Commissioner of Customs, Central Excise and Service Tax, unless the petitioner has deposited seven and a half per cent of duty and penalty as imposed - In the case of petitioner, while filing the appeal before Appellate Tribunal, the petitioner did not deposit the amount as required by Section 35F of the Act - Therefore, the Tribunal has not committed any error in dismissing the appeal: HC - Writ petition dismissed :
SIKKIM HIGH COURT
2019-TIOL-1099-CESTAT-DEL
CCE Vs Cotton Products of India
CX - During the period under consideration, assessee was engaged in manufacture of "Absorbent Cotton Wool IP" and "Cotton Rolls" - During search, it was found that they were not only engaged in the manufacture of "Absorbent Cotton Wool IP", but also engaged in manufacture of "Absorbent Cotton Wool IP" of "Rupam" & "Girnar" brands owned and marked by M/s Modern Sales Corporation Bhiwandi, District – Thane (Maharashtra) and clearing the same without payment of duty - Accordingly, a SCN was issued demanding duty and penalties, but both the adjudicating authorities below dropped the demands on the ground that the goods are covered under Chapter sub-heading 56012110 and thus Notfn 30/2004-CE is not applicable - An identical issue has come up for consideration before the Tribunal in case of M/s Shanti Surgical Pvt. Ltd. & Ors. 2017-TIOL-2153-CESTAT-ALL - By following the earlier decision, no reason found to interfere with the impugned order and the same is hereby sustained along with the reasons: CESTAT
- Appeal dismissed: DELHI CESTAT
2019-TIOL-1098-CESTAT-BANG
CCE, C & ST Vs Lal Steels Pvt Ltd
CX - The appeals have been filed by Revenue against O-I-A wherein Commissioner (A) has dropped the demand of duty and set aside the O-I-O - From remand order that matter was remanded back to adjudicating authority to render a finding in respect of power consumption specifically, assessee have made detailed submissions in this regard, however, adjudicating authority has dealt the entire submission on the issue of power consumption - For making such observations, Original Authority has relied upon O-I-O which has been set aside by Commissioner (A) long back and the order of Commissioner (A) was set aside by Tribunal and matter was remanded back - Since adjudicating authority has not rendered any finding in respect of the issue for which the matter was earlier remanded back to him - He was not in a position to give any adverse finding in this regards - The backbone of case made against the assessee is variation in power consumption - Since adjudicating authority has not found it fit to render any finding in this respect, Tribunal draw adverse inference on it as has been done by Commissioner (A) - Since matter was quite old, no reason found for again remanding back the matter to the adjudicating authority for rendering the finding on this aspect - All the other evidences have been well considered by the Commissioner (A) in his order for dropping the demands - Accordingly, both the appeals filed by the Revenue are dismissed: CESTAT
- Appeals dismissed: BANGALORE CESTAT
2019-TIOL-1097-CESTAT-AHM
Madhusudan Industries Ltd Vs CCE & ST
CX - The ROM application has been filed by assessee in respect of order dated 15.09.2017 - A case was booked against assessee for clearances of branded vegetable oil in garb of unbranded vegetable oil - Various evidences were produced by Revenue - In defense, assessee argued that most of the buyers in their statements had stated that they received unbranded vegetable oil - They had also argued that in the months of March/ April 2003, they have manufactured certain quantity of unbranded oil and this aspect was not examined by Tribunal - The Tribunal examined the averments made by assessee by letter to the effect that quantity lying in their premises was consisting of branded goods - The Tribunal examined the various transporters documents available on record and also examined the facts regarding manipulation done in transport documents by cutting and over-writing - The Tribunal also examined the assessee's letter to M/s. Maruti Enterprises giving details of the dispatches in the month of March to April 2003 - The Tribunal examined the invoice-cum-challans in the name of M/s. Maruti Enterprises as well as the statement of Shri Nandlal Meghraj Shah of M/s. Maruti Enterprises - It is apparent that Tribunal has considered all the evidences for arriving at the conclusion and rejected the ones which were not found well supported - Any re-appreciation of the said evidences which has already been rejected by Tribunal now would amount to review of the order: CESTAT
- Application dismissed: AHMEDABAD CESTAT
CUSTOMS
2019-TIOL-1096-CESTAT-MUM
Renfro India Pvt Ltd Vs CC
Cus -Duty demand is not sustainable as the goods were not cleared outside EOU inasmuch as the goods were consumed within the EOU, hence there is no reason to demand duty - Issue is no longer res integra in view of Tribunal decisions in STI India Ltd. - 2007-TIOL-2314-CESTAT-DEL, Paras Fab International - 2010-TIOL-963-CESTAT-DEL-LB, Eurotex Industries & Exports Ltd . - 2016-TIOL-2841-CESTAT-MUM - following the same, impugned order is set aside and appeal is allowed: CESTAT [para 4 to 7]
- Appeal allowed: MUMBAI CESTAT
2019-TIOL-1095-CESTAT-MUM
Manamar Singh Bedi Vs CC
Cus -Valuation - Import of used second hand Krupp Hydraulic Truck Mobile Crane - Customs authority initiated investigations on the basis that the Chartered Engineer certificate produced by appellant suffers from various discrepancies viz. that the same was a photocopy and not on the original letter head of the Chartered Engineer's firm; the certificate did not bear the date of issuance and the date of correspondence - alleging undervaluation, the demand of Customs duty was confirmed, hence appeal by importer - Revenue also in appeal alleging that penalty imposed is insufficient.
Held: On perusal of the Certificate, it is observed that except for the discrepancy pointed out by the Customs Authorities, all other information is tallying with invoice such as make, model, country, year of manufacturing etc., therefore, certificate cannot be brushed aside straight away - however, from such discrepancy it cannot be established that the value declared by the appellant is incorrect - even if the value declared by the appellant is not considered as authentic, Revenue has relied upon the website printout - on comparison of both documents, it is seen that in the Crane network printout, though the machine is the same but in the case of the appellant's imported crane, the make is of “Krupp” whereas in the Crane network print out, against the make it is shown as “9” - It, therefore, cannot be said that the machinery shown in the Crane network website and the machine imported by the appellant is the same - There is absolutely no basis available with the Customs on which the value could have been enhanced - impugned order is set aside, consequently Revenue appeal is dismissed - Importer's appeal allowed: CESTAT [para5 to 7]
- Assessee appeal allowed/Revenue appeal dismissed: MUMBAI CESTAT
2019-TIOL-1094-CESTAT-MUM
Hindustan Petroleum Corporation Ltd Vs CC
Cus - Drawback of duty paid on importation is admissible on re-export of the imported goods - On import of goods, total duty paid was Rs.86,39,036/- - Eligibility to drawback of 98% of the duties of Customs paid at the time of import is not in dispute - having released a part of the claim, limited to the basic customs duty, the factum of export is also not in doubt - legality of withholding the additional duties of Customs amounting to Rs.47,07,366/- that had been discharged at the time of import is the sole issue remaining for resolution - The duties of Customs for the purpose of this dispute is the aggregate of the basic Customs duty and the additional duty of Customs and as Section 74 of the Customs Act, 1962 is applicable to the whole of the duties put together, it was improper on the part of the lower authorities to disaggregate this - Although the appellant had availed CENVAT credit on entry of the capital goods into their premises, factum of exports would disentitle them from such availment ab initio - as the credit has been reversed, it cannot be deemed to have been retained by the appellant at all - It would also appear that the provisions of CCR, 2004 pertinent to officers of Central Excise & Service Tax has been drawn upon by the officers of Customs without authority to do so, for denying claim of drawback - there is, therefore, no justification for withholding of the prescribed percentage of drawback at 98% of the additional duty of Customs as held by the lower authorities - order set aside & appeal allowed with consequential relief: CESTAT [para 4, 5, 6]
- Appeal allowed: MUMBAI CESTAT |
