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SERVICE TAX
ST - The appellant company claimed refund in respect of services availed in respect of authorized operations in an SEZ - On adjudication, such refund was denied - Such findings were then sustained by the Commr.(A) - Hence the present appeals by the assessee.
Held: The issue at hand stands settled in the assessee's own case for an earlier period, wherein it was held that the immunity to Service Tax provided under Section 7 or 26 of the 2005 Act cannot be so interpreted as to be eclipsed the procedural prescriptions of Notification No. 9/2009 or 15/2009. These Notifications are calibrated to enable recipients of taxable services (exempt from liability to tax under the provisions of the 2005 Act), to claim refund of the Service Tax, wherever assessed and collected by Revenue or remitted otherwise by the taxable service provider, inadvertently - Following such findings, the O-i-A in challenge merits being quashed: CESTAT
- Assessee's appeals allowed : CHENNAI CESTAT
ST - The issue at hand is as to whether or not reimbursable expenses would form part of the assessable value of the services being provided by the appellant under the heading of BAS - Duty demand had been raised upon adjudication - Before the Commr.(A), the assessee claimed that invocation of Rule 5 of Service Tax (Determination of Value) Rules, 2006 was invalid, considering that such provision had been found to be ultra vires in the Delhi High Court's judgment in Intercontinental Consultants and Technocrats vs. Union of India - 2012-TIOL-966-HC-DEL-ST . However, the Commr.(A) had brushed aside such arguments.
Held: The findings of the Commr.(A) are contradictory - While it is admitted that Rule 5 was held to be ultra vires it is also observed that such decision is inapplicable in light of the agreements and expenses incurred by the assessee - Once Rule 5 is held to be ultra vires it must be read as if it does not exist in the statute book - In such case, the provisions of Rule 5 cannot be invoked at all - Apparently, the anxiety of the Commr.(A) to reject the appeal on any ground led him to act against the law declared by the High Court, which he was legally obliged to follow - Hence the O-i-A merits being quashed: CESTAT
- Assessee's appeal allowed : ALLAHABAD CESTAT
ST - The assessee is a local authority established under Constitution of India read with the Panchayat Raj Act to carry out the statutory functions of the State/Local Government - They have leased out some of their properties for rent but the rental income of assessee during all the financial year was always less than ten lakhs and because of that the assessee was not paying the Service Tax and not obtained registration under the Finance Act - In impugned order, Commissioner (A) has not considered at all the submissions made by assessee in their application seeking Condonation of Delay in filing the appeal before him - Further, assessee has specifically stated in application that they did not receive the impugned order and there was frequent transfer of the chief officers of assessee which is a statutory authority working for the State - When the assessee's accounts were freezed on the basis of O-I-O then they came to know about the said order and thereafter, they moved an application for obtaining the order which is alleged to have been served on them on 30.01.2017 but there is no proof of the said service - Even adjudication order was passed without giving sufficient opportunity to the assessee to put up their defence - In view of these infirmities, the impugned order dismissing the appeal on time bar is not sustainable in law and therefore same is set aside - Consequently, the appeal is allowed by way of remand: CESTAT
- Matter remanded : BANGALORE CESTAT
CENTRAL EXCISE
CX - The assessee was engaged in manufacture of M.S. Pipes, M.S. Flanges and M.S. Specials Joint - They availed SSI exemption under Notfn 08/2003-CE for supplies made to Bilaspur Jaipur Water Supply Project, Jaipur, which has been financed by Japan Bank of International Cooperation, Japan, and Japan Bank of International Corporation, which were not notified as international organization under Section 3 of United Nation Privileges and Immunities Act, 1947 - Accordingly, they were not entitled for said exemption under Notfn 08/2003-CE - Alternatively, assessee claimed the benefit under Notfn 06/2006-CE which provides for removal of goods duty-free when supplied under International Competitive Bidding subject to the condition that the goods are exempted from duty of customs leviable under First Schedule to Customs Tariff Act, 1975 and additional duty leviable under Section 3 of Customs Tariff Act, 1975 when imported into India - It appeared to Revenue that assessee was not eligible for said exemption as M/s Kirloskar Bros. Ltd., to whom the assessee had cleared the goods under 'International Competitive Bidding', was not registered with the Customs Department - The assessee is entitled to deduction of bought out items and accordingly liable to pay duty on reduced turnover of Rs. 73,69,638/- on which they have paid duty of Rs. 7,59,073/- - Accordingly, there is no duty implication on this score - So far as penalty is concerned, assessee have regularly informed the Department about its transaction and their intention to avail the exemption - For the transaction, it appears that if Revenue was not clear about availability or non-availability of exemption and the fact that assessee was running from pillar to post for clarification, there is no malafide on the part of assessee - Accordingly, the penalty imposed under Section 11-AC of the Act is set aside - As far as refund of tax is concerned, as the same was collected by assessee from the buyers, they are not entitled for any refund - In the result, the appeal filed by assessee is allowed in part: CESTAT
- Appeal partly allowed : DELHI CESTAT
CX - This appeal has been preferred by assessee against an O-I-O wherein the Commissioner has disallowed CENVAT Credit on capital goods availed by assessee on the ground that the capital goods in question, being oxygen plant, were leased to assessee by Praxair India Ltd., and that at any point in time the oxygen gas was in absolute control and possession of Praxair, who was the financing company and at no point in time, Praxair has passed the right to use said oxygen plant to the assessee and therefore the credit was availed in contravention of Rule 4(3) of CCR, 2002 - From the agreement between the parties, the fact that the assessee acquired the possession of equipments under lease agreement and that operation and maintenance of said plant by Praxair was on payment of agreed lease rent and operation and maintenance charges by assessee to it are clear - The documents on record also evidence that oxygen produced at the said plant was solely and exclusively captively used in factory by assessee for manufacture of dutiable final products - The issue is no longer res integra - It has been held that ownership is irrelevant for purpose of availing CENVAT Credit under Cenvat Credit Rules - Dealing with the similar case, the Bombay High Court in case of Modernova Plastyles Pvt. Ltd. - 2015-TIOL-2045-HC-MUM-CX held that for taking credit of duty paid on capital goods (moulds) it would not be necessary that capital goods shall be owned by the assessee or those shall be acquired by finance from financing agency and denial of credit based on such ground is unsustainable - The contention that cenvat credit on capital goods taken on lease from a company which was not a finance company is not allowable has also been rejected by Tribunal in a number of decisions while interpreting Rule 4(3) of Cenvat Credit Rules - The assessee had correctly availed cenvat credit in respect of duty paid on capital goods involved and their entitlement to such CENVAT Credit cannot be denied: CESTAT
- Appeals allowed : KOLKATA CESTAT
CUSTOMS
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
Cus - The appeal has been filed by assessee against O-I-O wherein the adjudicating authority in his capacity as the Licensing Authority for Customs Broker, has ordered revocation of licence held by assessee as customs broker - Further, he has ordered forfeiture of full amount of security deposit furnished by customs broker - The involvement of assessee or its partner in the alleged customs offence detected and investigated by DRI is not established - The bill of entry for the import was filed in the name of assessee using his Customs Broker Licence number - In the statements recorded from Shri Arup Mukherjee, he has submitted that the import declaration form bears his signature, but he could not explain how the blank form signed by him found its way into the hands of Shri Barun Chanak - But what stands established is that the partner of assessee has signed and handed over the import declaration form without filling up the details of any particular import - This has given room for misuse of such form subsequently - The contravention of Regulation 10 of CBLR, 2013 stands established against them - But taking into consideration the gravity of the violation, the ends of justice would be met by imposition of penalty of Rs.25,000/- on assessee - The revocation of the Customs Broker Licence is not justified and hence is set aside: CESTAT
- Appeal partly allowed : KOLKATA CESTAT |
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