|
SERVICE TAX
2019-TIOL-1175-CESTAT-DEL
CST Vs Bharuch Dahej Railway Company Ltd
ST - The respondent-assessees received orders from the Railways Ministry to lay down rail tracks - The cost incurred for the same is borne by the ministry on revenue-sharing basis - On assessment for the relevant period, the Revenue opined that the activity of laying down railway tracks on which the Railways were to operate their wagons, amounted to providing Infrastructure Support Service - Hence the Revenue opined that the assessees were liable to pay duty under Business Support service - Duty demands were raised by invoking extended period of limitation - On adjudication, the demands were dropped on grounds that such activity of the assessee did not constitute service - Hence the Revenue's appeals.
Held: An identical issue stands settled by the Tribunal in Mundra Port and Special Economic Zone Ltd. vs. CCE, Rajkot - 2011-TIOL-1321-CESTAT-AHM wherein it was held that investing in railway lines enabling railways to run its wagons, could not be treated as providing infrastructural service - The cost of laying railway lines is being recovered from the railways by the assessees - The ratio laid down in this case is fully applicable here & there is no reason to take a different view - The Revenue's appeal cannot be accepted on the sole ground that its appeal against such order is pending before the Supreme Court - Hence the Revenue's appeals lack merit: CESTAT
- Revenue's appeals dismissed: DELHI CESTAT
2019-TIOL-1174-CESTAT-MAD
Banu Engineering Contractor Vs CGST & CE
ST - The appellant is registered for providing Manpower Recruitment & Supply Agency service - During the relevant period, the appellant collected services charges along with service tax from the service recipients, but the same was not deposited with the Government within the prescribed time limit - The appellant also did not file ST-3 returns - SCN was issued proposing duty demand for service tax short-paid, along with interest & equivalent penalty - Such demands were confirmed upon adjudication - On appeal, the Commr.(A) sustained such demands - Hence the present appeal, contesting only the penalties.
Held: Perusal of records shows that apart from an allegation that the appellant collected service tax but failed to remit the same, there is no act of suppression which is alleged in the SCN and established by the Department - It is settled in various judgments that the term suppression is qualified by the term wilful - Hence there should be some positive act of suppression with intent to evade payment of service tax - Mere collection and delay in remission of duty cannot be considered to be an act of suppression - Hence the penalty imposed u/s 78 of the Finance Act 1994 is unwarranted - However, the penalty imposed u/s 77 of the Act is sustained: CESTAT (Para 2.1,2.2,7,9)
- Assessee's appeal partly allowed: CHENNAI CESTAT
CENTRAL EXCISE
2019-TIOL-1199-CESTAT-HYD
CCE & ST Vs Ivrcl Infrastructure And Projects Ltd
CX - Respondents had supplied pipes to various projects which were processing and supplying water to various bleaching and dyeing units and claimed exemption from CE duty in terms of notification 03/2004-CX - District Collector, Coimbatore had issued certificates as mandated under the exemption notification - at the instance of the department, these certificates were cancelled and the appellant paid the Central Excise duty and pursued the matter before the CBEC - Board clarified that the respondent is covered by the exemption notification, therefore, fresh certificates were obtained from the District Collector and refund was sought of the duty already paid - Commissioner (A) setting aside the order of the original authority denying the refund claim and allowing the appeals filed by the assessee - Revenue in appeal - Primary contention of Revenue is that the revised certificate reflected more quantity of pipes and since there is no co-relation between the first set of certificates and the second set, same cannot be accepted
Held:
++ There is no force in the argument of the Revenue that the quantities cannot be revised in the second set of certificates - There is nothing in the notification which requires nexus between the new certificate with the cancelled certificate - Respondent has satisfactorily explained the reasons for the difference in quantities inasmuch as the first certificate was issued based on the estimated quantity of pipes that would be required for the project and the second certificate was issued after the projects were executed to a large extent and they were able to indicate the actual quantity of pipes used - Appeal E/1798/2011 of Revenue on this count is rejected: CESTAT [para 3 to 5]
++ In the second appeal, Revenue seeks to deny the exemption on the ground that the pipes were used for carrying treated water from the plant to the industrial units - Such denial is clearly not covered by the notification which exempts both, pipes needed for delivery of water from its source to the plant as well as from there to the storage facility - Revenue has not made out a case that the storage facility is located in the plant only and not in the units which received water - Further, even if there is a storage facility with multiple storage points, it is now well settled that the exemption is not confined up to the first storage point only as the notification does not stipulate so - no force in the argument of the Revenue on this count: CESTAT [para 7]
++ Respondent is not the manufacturer of pipes but has procured it from the manufacturer - As regards adjustment of Rs.68,72,164/- towards liability of the manufacturer u/r 6 of the CCR, the Assistant Commissioner has attempted to pin the alleged liability of the manufacturer on the respondent, who is claiming refund and which is preposterous - It is not clear under what authority of law the Assistant Commissioner has sought to recover the CENVAT credit due from the manufacturer, from the buyer - This is also beyond the scope of the SCN and is completely untenable - Commissioner(A) has rightly allowed the appeal of the respondent - Revenue appeal no. E/1173/2012 is also rejected: CESTAT [para 8]
-
Appeals rejected
: HYDERABAD CESTAT
2019-TIOL-1177-CESTAT-MAD
Suvida Drums Vs CGST & CE
CX - The Audit Officers during audit of assessee’s unit, alleged to have noticed that assessee had availed dual benefit i.e., CENVAT Credit of Excise Duty paid on capital goods as well as depreciation on Excise Duty paid on capital goods under Section 32 of Income Tax Act, 1961 which prompted the issuance of SCN dated 05.05.2016 seeking the recovery of CENVAT Credit under Rule 14 of CCR, 2004 read with Section 11A(4) of CEA, 1944 along with applicable interest and penalty - The judgement of jurisdictional High Court in case of S.L. Lumax Ltd. prevails being a binding one - However, since neither the adjudicating authority nor the Commissioner (A) has given any finding on the acceptance or otherwise by Income Tax authorities of revised return claimed to have been filed by assessee - A factual finding is required to be given - Matter is remanded back to the file of adjudicating authority, and the assessee is directed to furnish revised return as well as income tax assessment Order based on its revised return to the satisfaction of the lower authority and the lower authority shall pass a fresh Order taking into consideration the decision of the jurisdictional High Court as also such other decisions that may be furnished by the assessee: CESTAT
- Matter remanded: CHENNAI CESTAT
2019-TIOL-1176-CESTAT-AHM
Phthalo Colours And Chemicals India Ltd Vs CCE & ST
CX - The assessee is 100 % EOU engaged in manufacture of Copper Phthalo Cyanine Blue - Apart from export of goods, they have also cleared the goods in DTA which was manufactured by using raw-material procured from indigenous Vendor against invalidation of Advance Authorization or procured from another 100 % EOU - They have availed exemption under Serial No. 3 of Notfn 23/2003-CE - The SCN was issued to assessee denying the exemption Notfn under serial No. 3 of Notfn 23/1003-CE and contended that the assessee is entitled for exemption under serial No. 2 of the said Notification - The appeal can be disposed of on the ground of limitation itself - Since the dispute relates to Exemption Notfn 23/03-CE which is based on the condition that such goods is manufactured out of raw material produced or manufactured in India, the case is related to the raw material procured from 100% EOU and/or from Holder of Advance Licence - In both the cases, the procurement of raw material was permitted by departmental authority and CT3 procedure was followed - The issue involved is of grave interpretation of Notification - Undisputedly a SCN was issued and demand was proposed under proviso to section 11A(1), wherein there is no explanation carried out for the purpose of limitation of 1 year or 5 years for clearance made from 100% EOU - Therefore, once the demand is raised under proviso to section 11A(1), the ingredient of proviso for invoking longer period of 5 years should exist in the facts of the case - B17 Bond is only enforced for recovery of confirmed demand otherwise whole process of adjudication such as issuance of SCN, adjudication, appeal will not be required and straight away, the Revenue can enforce Bond and recover the duty without exercising the process of adjudication - Such provision is not available in the statute - The issue has been considered with reference to limitation particularly against 100% EOU units in the case of Emcure Pharmaceuticals - 2014-TIOL-1263-CESTAT-MUM which was affirmed by Bombay high Court - 2016-TIOL-2679-HC-MUM-CX - In the case of Jain Grani Marmo Pvt. Ltd - 2009-TIOL-707-CESTAT-DEL, the demand against 100% EOU was held time barred on the ground that there is no suppression of fact and mis-declaration - The Gujarat High Court in case of Meghmani Industries Ltd. affirmed the Tribunal decision whereby the demand of extended period was dropped in the case of 100% EOU - The contention of Commissioner that since B17 Bond was executed by assessee, limitation shall not apply is not sustainable - The demand is not sustainable on limitation as the SCN was issued beyond the period of 1 year: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
CUSTOMS
NOTIFICATION
cnt33_2019
Shipping Bill (Electronic Integrated Declaration and Paperless Processing) Regulations, 2019
dgft_trade_notice_08_2019
Upgraded Module for Online Filing & Tracking Quality Complaints/Trade Disputes relating to International Trade - both for Indian and foreign entities
dgft19pn005 Online Filing and Tracking of Quality Complaints/Trade Disputes - reg
CASE LAWS
2019-TIOL-1179-CESTAT-KOL
CC Vs NN Traders
Cus - In view of the reasons as explained in Miscellaneous Applications, the delay in filing the appeals before this Tribunal, is condoned - The disputed duty involved is below the monetary limit of Rs.10 lakhs which has been notified by Government vide Circular 390/Misc./163/2010-JC and F.NO.390/Misc./116/2017-JC - Accordingly, the appeals are dismissed under National Litigation Policy - Stay Petition also get disposed off: CESTAT
- Appeals dismissed: KOLKATA CESTAT
2019-TIOL-1178-CESTAT-KOL
CC Vs Navrang Trading Company
Cus - The disputed duty involved in this case is below the monetary limit of Rs.10 lakhs which has been notified by the Government vide Circular 390/Misc./163/2010-JC and F.NO.390/Misc./116/2017-JC - Accordingly, the appeal is dismissed under National Litigation Policy - Stay Petition also gets disposed off: CESTAT
- Appeal dismissed: KOLKATA CESTAT |
