2019-TIOL-1395-CESTAT-MAD  

Swift Shipping Madras Pvt Ltd Vs CST   

ST - Assessee is registered as Multimodal Transport Operator (MTO) - Pursuant to investigation, it emerged that assessee availed services of overseas agents for destuffing the cargo from the containers sent by them from India at Hub port and reshipped the cargo to the intended destinations - On their export container loads, they are reimbursed 2% brokerage by liner agent on freight - They have a centralized registration at Chennai and are paying service tax for all the branches in Chennai - It appeared to department that the main activity of assessee is promoting services of various shipping lines and also managing distribution and logistics and that the services performed by assessee would be liable to classify under BAS under category of services in relation to promotion and marketing of services provided by client and under category of any incidental or auxiliary support services, classifiable under sub clauses (ii) and (vii) of Section 65 (19) for the period 01.07.2003 to 30.04.2006 and w.e.f. 01.05.2006 under the category of "Business Support Services" - Assessee is correct in its assertion that the issue concerning taxability of services performed by Multimodal Transport Operator has been laid to rest by the Tribunal in Greenwich Meridian Logistics 2016-TIOL-869-CESTAT-MUM - Even as far back as 11.02.1998, the department had information from assessee with regard to their activity which was in turn replied and conveyed vide assessee's letter - Further, subsequently assessee have also vide a letter dt. 13.10.2000 requested for clarification for payment of service tax as MTO - In response, the department vide their letter dt.23.11.2000 conveyed that MTO is exempt from liable to service tax - Even thereafter the assessee had preferred a letter enclosing a note of activities carried out by their company and in the income streams - By no account, can the department make an allegation that the activities of assessee had been suppressed by them - This being so, the delayed issue of SCN only on 23.10.2008 for the period 01.07.2003 onwards, extending the period of limitation is certainly not sustainable since there are no ingredients present to justify such invocation and will require to be set aside - The assessee is found to succeed on both on merits as well as on limitation: CESTAT

- Appeal allowed: CHENNAI CESTAT

2019-TIOL-1394-CESTAT-MAD

VLCC Healthcare Ltd Vs CGST & CE

ST - The assessee is engaged in providing output services in nature of 'Beauty Parlour', 'Health Club and Fitness Centre' and also receiving various other services - The allegation is that the Credit availed by assessee on the invoices distributed by Head Office is not eligible, alleging that the Head Office has not taken the registration of a First Stage Dealer or a Second Stage Dealer as required under Rule 7A of CCR, 2004 - The assessee is only a unit, which has availed the Credit distributed by their Head Office - The Department has no case that the service tax relating to Credit has not been paid or that the services have not been availed - By merely alleging that the Head Office has not taken registration as a First/Second Stage Dealer, Credit is sought to be denied at the recipient's end - It is seen in assessee's own case dated 01.06.2012 and in many other orders passed by lower authorities, the demands raised on the very same allegation have been set aside - The SCN issued to assessee raising the above allegations cannot sustain - The demand confirmed in impugned Order, therefore, is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

Technip India Ltd Vs CCGST    

ST - The appeal arises on account of amalgamation of three entities - All the three companies had a common holding company which decided to amalgamate these companies - The scheme of amalgamation was presented and obtained the approval of three High Courts in respect of each of these entities respectively - In terms of the orders of High Courts sanctioning the amalgamations scheme, which came into effect on 21.04.2014, the assessee intimated the Service Tax Department - In the letters, it was duly pointed out by assessee that the scheme has been sanctioned by High Court and in terms of the scheme, Cenvat Credit available with entity registered at Chennai and Mumbai, stood transferred to the entity registered at Noida w.e.f. 21.04.2014 - The SCN proposed to deny credit on the ground that no prior permission stands taken by assessee - However, the said issue stands accepted by Adjudicating Authority and as such it was not open to Revenue to deny the credit on further allegations - The legal issue that Adjudicating Authority cannot go beyond the SCN is well settled by catena of judgments - Reference can be made to Allahabad High Court’s decision in case of Sarika Jain 2017-TIOL-1394-HC-ALL-IT wherein it was held that Appellate Authority cannot confirm the demand on the basis which was not the foundation of Department’s case in SCN - As such, impugned orders are liable to be set aside on this ground alone: CESTAT

- Appeal allowed: ALLAHABAD CESTAT

2019-TIOL-1390-CESTAT-DEL

JBM Auto Ltd Vs CC

Cus - The assessee imported certain press dies declaring them as press dies for manufacturing of particular part of press machine and declared classification under chapter heading 84 - The Bills of Entry were assessed and appropriate duty by classifying the imported goods under Chapter 84 was demanded which was paid by assessee and cleared the goods - Later-on, it was found that the classification of imported goods is not proper - Therefore, a SCN was issued to assessee by invoking extended period of limitation to re-classify the goods under Chapter 8207 of CTA, 1975 - Before 18.04.2011 also goods were examined and allowed to be cleared, classifying the goods under Chapter 84 of tariff Act - It means, it was the understanding of assessee that the merit classification of their goods was under Chapter 84 during the period in question - Admittedly, after 18.04.2011 also bills of entry were examined and cleared for home consumption by classifying the same under Chapter 84 of the Tariff Act - It means, both Revenue as well as the assessee were having the understanding that classification assessed prior to 18.04.2011 was correct at the time of clearance of the bills of entry in question - Further, the SCN has been issued on 13 July, 2015 by invoking extended period of limitation - In such a situation, the bonafides of assessee have been proved and it is not a case of suppression of classification by assessee - Assessee sought classification under chapter 84 of Act, it is the duty of adjudicating authority to classify correctly and to examine whether the classification sought is correct or not - Admittedly, the goods were classified under Chapter 84 of the Act, therefore, proviso to Section 28 of Customs Act, 1962 are not invokable, to invite extended period of limitation - Extended period of limitation is not invokable as whole of the demand confirmed against assessee is by invoking extended period of limitation - Therefore, the demand confirmed against assessee is set aside - Accordingly, no penalty is imposable on assessee: CESTAT

- Appeal allowed: DELHI CESTAT