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SERVICE TAX
2019-TIOL-1529-CESTAT-MAD
CGST & CE Vs Zylog Systems Ltd
ST - The assessee had taken registration as providers of IT Software service on 16.07.2009 - In respect of services received prior to registration under cover of invoices, assessee had availed cenvat credit of service tax charged thereon - However, credit of service tax so availed remained unutilized since they exported the services - Accordingly, they filed refund claim under Rule 5 of CCR, 2004 r/w Notfn 5/2006-CE (NT) - The issue in dispute is no longer res integra and has been laid down to rest by a number of decisions and in particular the judgement of High Court in BNP Paribas Sundaram Global Securities Operations Pvt. Ltd. 2018-TIOL-1126-HC-MAD-ST, wherein it has been held that registration of assessee’s premises is not a pre-requisite for claiming credit of refund under Rule 5 of CCR, 2004 - The High Court has reiterated their earlier decision in M/s. Scioinspire Consulting Services India Pvt. Ltd. and another 2017-TIOL-798-HC-MAD-ST - No merit found in the appeal of department, for which reason the appeal is dismissed: CESTAT
- Appeal dismissed: CHENNAI CESTAT
2019-TIOL-1528-CESTAT-MAD
Williams Lea India Pvt Ltd Vs CCE
ST - Assessee is engaged in business of providing man power supply service to their clients - Pursuant to audit, it emerged that assessee is a parent company of assessee - The said parent company had entered into a Master Agreement with the Reader's Digest Association, New York, relating to provision of products and services by offices of Williams Lea in various countries to Reader's Digest - The Master Agreement provided that the original offices of Williams Lea & Reader's Digest shall enter into a region specific agreement in line with the Master Agreement - It appeared to department that the assessee had provided composite services to Reader's Digest in relation to preparation of their promotional / marketing material and circulation of same to the intended customers - Department took the view that assessee should have treated the entire transaction as towards provision of taxable services under category of 'Advertising Agency' and discharged the service tax on entire value - Accordingly, a SCN was issued - In the first place, this agreement is a Master Agreement and not the local country agreement - Be that as it may, what comes out is that the assessee is required to create 'specification sheet and project documents subject to Reader's Digest approval' - From such activity, it cannot be concluded that assessee was engaged in making or preparing advertisement per se - It is evident that the specification sheet concerns only the dimensions of advertisement material to be printed on paper and envelopes subsequently required to be posted to the clients of Reader's Digest - Assessee is also required to develop project specification in accordance with postal requirements - This only means that the end product on which advertisement has been printed and communicated to the clients of Reader's Digest in a personalized form is to be of dimensions which are approved by the postal authorities - None of the other functions bear any remote connection to making or preparation of advertisement or for that matter, display of such advertisement - While the SCN allges that assessee have provided composite service to Reader's Digest which have element of taxable service in category of 'advertising agency service', 'business auxiliary service', and 'mailing list compilation and mailing service', however as per Section 65A of the Act, essential character of service is defined from the service of advertising agency and in terms of section 65A (2) (C) ibid, the service will merit classification as 'Advertisement Agency Service' - Without going into further details of the dispute or quantification of tax liability, it is held that the impugned order to the contrary confirming the demand of service tax liability on assessee under the category of 'Advertisement Agency Service' cannot sustain: CESTAT
- Appeal allowed: CHENNAI CESTAT
CENTRAL EXCISE
2019-TIOL-1527-CESTAT-ALL
Hindalco Industries Ltd Vs CCE
CX - During the relevant period, duty demand was raised against the assessee on grounds that during stock taking of available inputs in a factory on a particular date - There was difference of 0.2% to 0.5% by weight in the physical stock in comparison to the book balance.
Held: The receipt of the inputs is not disputed - The SCN does not allege that the short found inputs were removed without debit of credit availed - The difference in weighment can be attributed to a variety of reasons - The credit is based on the goods brought into the factory & since there is no dispute regarding the receipt of inputs, the order in challenge is quashed: CESTAT
- Assessee's appeal allowed: ALLAHABAD CESTAT
2019-TIOL-1526-CESTAT-KOL
CCE Vs Grasim Industries Ltd
CX - The assessee-company has depots in several parts of India - Upon sale from its depot at Mumbai, the assessee charged an amount being 2.6% of cum duty price from buyers as transportation charged - It mistakenly reflected such amount as Depot charges - Similarly, in case of sale made from its depot at Ludhiana, the assessee charged an amount being 1% of gross value, on account of handling charges - The Revenue issued SCNs proposing to include such charges in the assessable value - It was also alleged that the assessee violated Rule 7 of the Central Excise (Valuation) Rules 2000 r/w Section 4(3)(d) of the CEA 1944 - On adjudication, demands were raised on account of Basic Excise Duty (BED) and Additional Excise Duty (AED) along with interest & equivalent penalty u/r 25 of CER 1944 - On appeal, the Commr.(A) quashed the Order-in-Original, hence triggering the present appeal by the Revenue.
Held: It is seen from relevant portions of the O-i-A that when the goods have been cleared from the factory gate at the sale price prevalent at Depot on the date and even the goods are sold from the depot at the lower or higher price the question of addition of 2.36% from Mumbai Depot and 1% from Ludhiana - In the case of Steel Authority of India Limited Vs. Commissioner of Central Excise the Tribunal held that it is clear from the terms of the Section itself that valuation of a consignment under clearance is to be made on the basis of sale price prevailing on the data of removal at the place of removal (Depot) - Such position was clarified by the Board as well as by the Supreme Court in Castrol India Limited - Besides, the Apex Court in Commissioner of Central Excise Vs. Accurate Meters Ltd. held that freight and insurance charges are not includible in assessable value - In light of such factual and legal position, the O-i-A in challenge does not warrant any interference with: CESTAT
- Revenue's appeal dismissed: KOLKATA CESTAT
CUSTOMS
2019-TIOL-1525-CESTAT-AHM
Modern Communication And Broadcast Systems Pvt Ltd Vs CC
Cus - This appeal has been filed by assessee against demand of Customs duty by changing classification of product declared by importer under Chapter Heading 852520 to heading 8528 of Customs Tariff Act, 1975 - The product has been described as digital set top box - It is not disputed that the set top box has function of receiving signals and sending the same to other devices for use - The lower authorities have relied on original opinion of SAC but discarded the clarification on the ground that it was given only on the strength of data sheet - It is not proper to discard the clarification merely for that reason - Data sheet of equipment is a vital piece of evidence in itself - The matter was remanded directing lower authorities to examine the evidence that assessee produce - The assessee has produced Test Certificate of Electronics and Quality Development Centre - This has been discarded without any reasons - This test reports essentially echo's the revised clarification opinion of SAC - Thus, the issue regarding presence of transmission facility in imported product has not disputed even in the original proceeding - The rejection of second opinion of the SAC on the ground that it was based solely on the data sheet is misplaced - Moreover, set top box, inherently functions by receiving signals from satellite and transmission of same to other devices for display or use - The clarification report of SAC is further supported by test report of Electronics and Quality Development Centre - Even the report of Ministry of Communication and Information Technology support the fact that the set top box has reception and transmission apparatus - No merit found in impugned order and the same is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
