|
SERVICE TAX
2019-TIOL-1339-CESTAT-AHM
J J Transport Vs CCE & ST
ST - The present appeal was filed by the assessee contesting the duty demand raised on Cargo Handling Service provided by them after invoking extended period of limitation.
Held - The assessee undertook certain services & do not deny that part of these were Cargo Handling Services - However, no registration was taken nor ST-3 returns filed - Hence the assessee apparently suppressed vital information from the Revenue - In the present case, the Revenue clearly pointed out deficiencies through the SCN - Hence the extended period of limitation has correctly been invoked - Moreover, as the assessee has been operating for about 5 years, it apparently was aware of the laws: CESTAT (Para 6)
Held - Export of consignment - The assessee claimed to have exported part of the consignment - However, it is seen that before the lower authority, no such claim was made by the assessee & such issue was raised for the first time before the Tribunal itself - Besides, there is no assertion from the assessee that it is ready to produce any documents - Thus the onus lies on the assessee to establish such fact of having exported part of the consignment - As such onus has not been discharged by the assessee, no benefit can be given to it: CESTAT (Para 7)
Held - Income earned from hire charges - The duty demand happens to be raised based on sample bills raised by assessee to the service recipient - From these bills it is seen that the when the loader is provided on per hour basis it would amount to supply of loader on hire, whereas when the charges are made on per metric ton basis, these are the charges for the cargo handling - Hence the duty demanded on supply of Terex Loader & provision of Cargo Handling Service warrants being revised so as to exclude demand raised in respect of the same, by treating the same as hiring of Terex Loader - Hence matter warrants remand to re-quantify the demand: CESTAT (Para 9)
- Assessee's appeal partly allowed: AHMEDABAD CESTAT
2019-TIOL-1338-CESTAT-DEL
Klm Royal Dutch Airlines Vs CST
ST - The assessee-company is a leading airline operator - It provided service under Transport of Passengers embarked in India for domestic journey or international journey by air - It is registered with the Service Tax Department under the category of Goods Transport Agency service, Business Auxiliary Service & Transport of Passenger by Air Service - The Revenue opined that the assessee did not pay service tax on gross amount collected from the customers under the category of transport of passenger by air service - The Revenue noted that the assessee collected airfare from passengers under basic fare, fuel surcharges, administrative charges, PSF & airport taxes - The Revenue opined that amount received on account of Passenger Service Fee (PSF) & Airport taxes were not included in the taxable value - SCNs were issued alleging non-payment of tax - Duty demands were raised upon adjudication & were confirmed by the Commr.(A) - Hence the present appeals.
Held - The issue at hand stands settled by the Tribunal in M/s. Royal Jordanian Airlines and others vs. CST, Delhi wherein it was observed that PSF was collected from the passengers and then duly remitted to the Airport Authority - It was held that PSF formed part of airport service u/s 65(105)(zzm) and so the same could not be taxed again under Transport of Passenger Service and doing so may result in double taxation - The findings laid down in this case are squarely applicable to the matter at hand - Following the same, the O-i-A is devoid of merit & must be quashed: CESTAT
- Assessee's appeal allowed: DELHI CESTAT
CENTRAL EXCISE
2019-TIOL-1341-CESTAT-AHM
Patels Airtmep India Ltd Vs CCE & ST
CX - As regard inclusion of value of free supplied goods by buyer is undisputedly includable in assessable value, therefore, the demand on merit on this issue is clearly sustainable - As regard, limitation and cum-duty price, the Tribunal dealing with the identical set of facts and legal issue in case of Jimcon Industries held that in case of inclusion of cost of free supplied material, the landed cost has to be added, therefore, there is no question of cum-duty price - In the same case, it was held that invocation of extended period is correct for the reason that free supplied goods and non inclusion of value thereof was not disclosed by assessee to the department - Therefore, the demand on this count is clearly sustainable - As regard the issue of Cenvat Credit on endorsed invoice, though the invoice was issued in favour of principle on whose behalf assessee have manufactured the excisable goods but the facts remains that such invoices were endorsed in favour of assessee by the principle - The receipt, use of the goods of the said endorse invoice by assessee is not under dispute - So long the goods on which Cenvat Credit was availed have been used in manufacture of goods on behalf of principle the credit is correctly available to them - Accordingly, the demand on the issue of Cenvat credit is set aside and corresponding interest, penalty are also set aside - As regard, the penalty imposed on director of company, the issue of non-inclusion of value of free supplied goods is technical issue for which the malafide intention on part of the director cannot be attributed - In this nature of case penalizing director is not proper, therefore, the penalty imposed on director is set aside - As regard, the appeal of the Company is partly allowed: CESTAT
- Appeals partly allowed: AHMEDABAD CESTAT
2019-TIOL-1340-CESTAT-BANG
Prince Tmt Steels Pvt Ltd Vs CC, CE & ST
CX - The appellants are engaged in manufacture of MS ingots - The preventive team of Central Excise Commissionerate have visited the appellants' premises and seized some documents - However, no discrepancy was noticed in physical stock - Follow up search was conducted at the premises of M/s. PTSPL and M/s. BPCPL on 13.07.2006 - The impugned order alleges that the appellants have suppressed the capacity of plant to be 6 MT whereas it was actually of 8 MT - Though the invoice mentioned the furnace to be 6 MT, it is evidenced by drawings supplied by M/s. Inductotherm (India) Pvt. Ltd that the furnace was of 8 MT - The department has not produced any other evidence than the alleged drawings attached to the invoice - It was not confirmed as to whether the payment was made by appellants for 6 MT furnace or 8MT furnace - No trial run was conducted in the presence of experts to ascertain the actual capacity of the furnace - No report of any action taken by jurisdictional Central Excise authorities on M/s Inductotherm (India) Pvt Ltd for suppression of capacity and thus understandably the value of furnace cleared by them - In the absence of any other concrete proof, one cannot conclude simply on the basis of drawings attached to the invoice - Clandestine removal is a serious charge and for alleging the same, the department has to meticulously prove the purchase of main Raw material and other inputs; manufacture of final goods; clandestine removal of the same; transportation; receipt of the same in the customer's premises and the financial transactions - The evidence whatever was heavily loaded towards only one aspect of the above - That is unaccounted production based on the records alleged to have been maintained by Shri Sibiraj, Chemist and Shri Anbu, Cashier and statements of some persons - Shri Sibiraj, Chemist claimed that he did not maintain those records but one Shri Armugham may have maintained - All the statements were retracted twice once during the investigation and once during the cross examination - Production was estimated on the basis of certain numbers, mentioned in the slips which were taken to be number of ingots, with average weight of an Ingot - It was alleged that the appellants have manufactured and cleared about 2014 MT of MS ingots and have cleared the same mostly to their sister concerns M/s PTSPL and M/s BCPL - The only discussion was about unaccounted purchase of 167 MT of scrap for the period 5-7-2006 to 11-7-2006 - The appellants contended that since they have not availed the Cenvat credit they have not accounted for the same - Moreover, they have submitted that during the period January - July 2006 they have imported/indigenously procured about 6,473 MT of scrap - The impugned order did not take these submissions in to account - Purchase of any other raw material was not established - It cannot be alleged that all clearances were clandestine - As a matter of fact, Revenue did not rely on these records while issuing SCNs to their sister concerns i.e. M/s PTSPL and M/s BCPL - Whereas the sister concerns M/s PTSPL and M/s BCPL were alleged to have received about 166 MT and 11 MT of MS ingots from the appellants respectively - Therefore, private records alleged to evidence production were not relied upon by the department themselves - The edifice of allegation in SCN was sought to be built mainly on four pillars, Production records alleged to have been maintained by Shri Sibiraj, Chemist, Production records alleged to have been maintained by Shri Anbu Cashier about payments to production contractor, Consumption of electricity and Capacity of furnace - All other aspects were either not investigated or investigated perfunctorily - Out of these four, first two were negated by the department itself while issuing SCNs to the sister concerns i.e. M/s PTSPL, M/s BCPL and Shri Aftab - They are not otherwise corroborated - The third one was nullified by sample run conducted by VAT department on the directions of High Court of Kerala - The fourth one was not investigated to thoroughly establish as discussed - Tribunal is inclined to accept the submissions of the appellants: CESTAT
- Appeals allowed: BANGALORE CESTAT
CUSTOMS
2019-TIOL-1337-CESTAT-DEL
R D Extrusions Pvt Ltd Vs CC
Cus - The appellant company sought to export some consignments of goods - It sought the conversion of free shipping bill to drawback shipping bill - The same was denied by the Revenue - On appeal, the Tribunal remanded the matter back to the adjudicating authority, who permitted the conversion of shipping bills in respect of 30 consignments - However, the conversion in respect of three supporting bills was refused - Hence the present appeal was filed.
Held - It is not apparent from the order that as to why the permission was not granted in respect of the three shipping bills for their conversion into drawback shipping bill at All Industrial Rate - In the present case, the export was made by the appellant under the supervision of the Jurisdictional Central Excise Officer & the consignment was factory sealed in container - Hence the export of these consignments vide the shipping bill is not in doubt - Hence the O-i-O is quashed the conversion of the three shipping bills is permitted: CESTAT
- Assessee's appeal allowed: DELHI CESTAT
|
|
