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SERVICE TAX
CORRIGENDUM
[F.No. 137/14/2018-Service Tax] CBIC issues Sec 11C notification to grant ST exemption to training provided by Deen Dayal Upadhyaya Grameen Kaushalya Yojana
CASE LAWS
2019-TIOL-1460-CESTAT-MAD
Benchmark Services Vs CGST & CE
ST - Appellant entered into an agreement with ICICI Bank for rendering activities of collection of instalment / loan from the customers of the bank - department was of the view that the said activity would fall within the category of BAS and accordingly, SCN dated 21.4.2010 was issued for the period 2004 - 05 to December 2009 proposing to demand service tax on the amounts received from ICICI bank - Though the department alleges that the appellant is guilty of suppression of facts, there is no evidence brought forth as to what is the positive act committed on the part of the appellant - appellant had requested the department to clarify whether the activity is subject to levy of service tax and have intimated the department that ICICI bank had refused to pay service tax stating that it is not a taxable activity - The department has not responded to this letter of the appellant - Various documents show that the appellants have furnished the entire records as requested by the department - department has failed to establish suppression of facts with intent to evade payment of service tax so as to invoke extended period - appellant succeeds on the ground of limitation - demand made invoking the extended period is set aside as time-barred - Scope of the work is to act as collection agents of ICICI - Such ‘Recovery agent services' have been bought under the category of recovery agent service with effect from 1.5.2006 - After 1.5.2006, the demand is set aside since the activity does not fall under BAS - Appeals allowed with consequential relief: CESTAT [para 5.3, 5.4, 6]
ST - Demand on reimbursable expenses - Following the apex court decision in Intercontinental Consultants & Technocrats Pvt. Ltd. - 2018-TIOL-76-SC-ST , the demand on reimbursable expense cannot sustain: CESTAT [para 5.5, 6]
- Appeals allowed: CHENNAI CESTAT
2019-TIOL-1459-CESTAT-ALL
Ashok Kumar Kesharwani Vs CCE & ST
ST - VCES, 2013 - SCN issed on the ground that the appellant had filed substantially false declaration and accordingly confirmed tax demand and imposed equal penalty - appeal to CESTAT.
Held: It is provided through Section 108 of Finance Act, 2013 that once a discharge certificate under Sub-section (7) of Section 107 is issued then revenue does not have authority to reopen any proceedings in respect of declaration made - show cause notice and impugned proceedings are bad in law - impugned order set aside and appeal allowed: CESTAT [para 1, 2]
- Appeal allowed: ALLAHABAD CESTAT
CENTRAL EXCISE
2019-TIOL-1462-CESTAT-ALL
Paramount Pesticides Ltd Vs CCE
CX - The assessee had defaulted in payment of duty in terms of Rule 8 of CER, 2002, which requires them to pay duty within a stipulated period - In terms of Rule 8(3A) of said rule, in case of default of duty, the assessee is debarred from using the Cenvat credit and is required to pay duty in cash, during the subsequent period - Accordingly proceedings initiated against all the assessees resulted in confirmation of demands, required to be paid in cash and imposition of penalties, even though such duties were paid by assessees by using the credit amount - In the case of Baba Vishwakarma Engineering Company Pvt. Ltd. - 2017-TIOL-2873-CESTAT-ALL , the relief was granted to the assessee - Further vide Final Order dated 25/04/2017 passed in the same assessee's case, the Tribunal took note of the fact of the stay of Gujarat High Court's decision, by Supreme Court in case of M/s R.K. Machine Tools Ltd. - The entire development was taken note of and the Gujarat High Court decision was followed - The Tribunal in case of Kalson Automotives Pvt. Ltd. took note of the latest decision of the Delhi High Court in case of Space Telelink Ltd. - Inasmuch as the issue stands decided by various decisions, impugned orders are set aside holding against the assessee: CESTAT
- Appeals allowed: ALLAHABAD CESTAT
2019-TIOL-1461-CESTAT-KOL
Tata Metaliks Ltd Vs CCE
CX - The issue involved is regarding the availment of Cenvat Credit on duty paid by assessee from M/s TSL - It has not been disputed by Department that the duty has been paid by manufacturer of goods in pursuance of the judicial pronouncement vide the order of Adjudicating Authority and upheld by Commissioner (A) - No infirmity found committed by assessee within the provisions of CCR, 2002-04 by availing such credit - Reliance is placed on various decisions wherein it has been held that in such a situation, Department cannot deny the credit to assessee - Rule 3(1) of the CCR, 2002-04, specifically provides that a manufacture/procedure of the final good is entitled to take cenvat credit of excise duty paid on any input/capital goods received in the factory for manufacture of final product - Rule 3(4) also allow the assessee to utilise the said credit for payment of Central Excise Duty in respect of dutiable final product manufactured and cleared by assessee during impugned period - Hence, no irregularity found committed by assessee by availing of Cenvat Credit and also the assessee has availed and utilised the Cenvat Credit as per the law - No merits found on the contention raised by Department that the duty paid by the supplier M/s TSH should not be treated as the duty but merely deposit and hence not eligible for Cenvat Credit under Cenvat Credit Rules - This assertion is contrary to CCR, 2002/2004: CESTAT
- Appeal allowed: KOLKATA CESTAT
CUSTOMS
TRADE NOTICE
dgft_trade_notice_17_2019
Discontinuing submission of physical copy of RCMCs with effect from 1.07.2019 while filling application for incentives/entitlements under FTP and further clarification in the matter CASE LAW
2019-TIOL-1458-CESTAT-ALL
Ajanta Manufacturing Ltd Vs CC
Cus - The assessee had imported High Allumina Balls classifying the same under CTH 69022020/30 - On examination of same goods, department contended that the goods should appropriately be classifiable under 69149090 of CTH - Accordingly, SCNs were issued seeking for confirmation of differential amount of duty on account of the rate of duty prescribed for different chapter sub-headings - While importing the subject goods, assessee had claimed clarification under CTH 6902020/30, which was proposed to be classified under 69149090 in SCNs and that while adjudicating the matter, the Original Authority had travelled beyond the scope of SCN and classified the subject goods under CTH 69099090 - For such change in classification, no opportunity or no separate notice was issued to assessee before adjudication of the matter - Therefore, on appeal, Commissioner (A) had allowed the appeal by way of remand on the ground that fair opportunity was not granted by Original Authority for change in classification of subject goods - Consequent upon passing of the order, fresh SCN was issued, seeking for classification of subject goods under CTH 69099090 - The said notice was issued beyond the period of 6 months from the date of filing of the Bill of Entry, and was issued under the Section 28 of the Act - It is not the case of Revenue that non-payment/ short-payment of duty by assessee was owing to the reason of misstatement or suppression of facts in as much as the initial SCNs issued by department clearly indicated the description of the goods imported by assessee, classification of such goods under the CTH, and claim of exemption provided for such goods - Thus, the subsequent SCN issued beyond the normal period should not stand for judicial scrutiny and accordingly, proceedings initiated based thereon cannot be sustained as barred by limitation of time - With regard to the other issue i.e change in classification of the subject goods during the course of adjudication proceedings, since classification made in assessment order was not proposed in the SCN, the said order cannot go beyond the scope and ambit of SCN and should only confine to the findings, whether the proposals made in SCNs for different classification should sustain - Since the Adjudicating Order had entirely changed the classification of the product, as proposed in SCN from 69149090 to 69099090, without issuing any notice to assessee, differential duty confirmed under the changed classification should also not stand for judicial scrutiny. - Accordingly, it is held that the impugned order confirming the differential duty is not proper and justified: CESTAT
- Appeals allowed: ALLAHABAD CESTAT |
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