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SERVICE TAX
2019-TIOL-1531-CESTAT-HYD
CC, CE & ST Vs K Ramachandra Rao Transmission And Projects Pvt Ltd
ST - The assessee-company is registered with the Service Tax Department and paid service tax under Works Contract Service - During the relevant period, the assessee claimed refund on grounds of having wrongly paid tax on execution of works contract which were composite contracts involving supply of material and of services - The assessee also claimed to be eligible for deduction on the value of materials which was not claimed by oversight and which is admissible as per Notfn No 12/2003-ST - On adjudication, the Revenue denied such refund claims on grounds of not supplying relevant documentary evidence & on grounds of unjust enrichment - On appeal, the Commr.(A) partly allowed the refund claimed - Hence the Revenue's appeal.
Held: The assessee's claim for deduction of material cost of 55% of the value of the works contract has been properly appreciated by the Commr.(A) - The Revenue's argument that the Commr.(A) traversed the scope of the SCN also does not hold much water as the assessee claimed refund of an amount equivalent to 55% of the value ofthe contract as cost for use for use of material while executing the works contract service is undisputed - The findings of the Commr.(A) on availability of Notfn No 01/2006-ST have not effectively enhanced the refund claim - While it was held that the assessee is eligible for benefit under this Notfn, the same was not extended to the assessee in effect - Hence the Revenue's contentions become academic in nature - In respect of the challenge to the validity of the CA's certificate, the relevant entries in the assessee's books of account show that the tax liability was borne by it and the incidence of the same was not passed on - Hence the O-i-A in question does not warrant any interference with: CESTAT (Para 2,7,8)
- Revenue's appeal dismissed: HYDERABAD CESTAT
CENTRAL EXCISE
2019-TIOL-1148-HC- MEGHALAYA -CX
Fw Ferro Tech Pvt Ltd Vs UoI
CX - The present writ petition was filed seeking directions to the Revenue to refund EC and SHEC collected from the assessee on the basis of Excise Duty.
Held - An indentical issue was resolved by the Apex Court in SRD Nutrients Private Limited v. Commissioner of Central Excise Guwahati wherein it was held that there cannot be any surcharge when basic duty itself is Nil - Ergo, where whole of excise duty or service tax is exempted, even the Education Cess as well as Secondary and Higher Education Cess would not be payable - Following such findings, the present petition is disposed off with directions to refund the EC & SHEC collected from the assessee: HC
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Writ petition allowed
: MEGHALAYA HIGH COURT
2019-TIOL-1533-CESTAT-DEL
Ester Industries Ltd Vs CCE
CX - The assessee-company manufactures Polyester Pet Chips (Estoplast), Polyamide Chips (Nylon), Polyester Film (RM/Plain) & availed Cenvat credit of duty paid on input goods & services & capital goods u/r 3 of CCR 2004 - Upon audit for the relevant period, it was noted that the assessee availed some amount of credit on obsolete inventory which has been written off during an earlier period - SCNs were issued proposing to raise duty demand for reversal of credit allegedly availed irregularly & unlawfully - On adjudication, duty demand was raised - Such demands were sustained by the Commr.(A) on appeal - Hence the present appeal.
Held: The Rules of 1944 did not envisage any period within which the input is to be consumed - Cenvat credit was available as provided u/r 57A - Rule 57F provided for the manner of utilisation of inputs and the credit allowed in respect of duty paid thereon - It is seen that the liability of the assessee to pay duty equal to the amount of credit availed in respect of a particular input would arise at the time of the removal of the inputs for home consumption - It did not envisage reversal of credit even before removal of goods - There was no provision under which Cenvat credit already taken under the Rules of 1944 could be directed to be reversed simply because the input goods were not utilized for a certain period of time - There is a significant difference in the accounting approach for the Income Tax purpose and the approach for stock maintenance for the purpose of manufacturing activities relevant for the question of Excise - Therefore, merely because the value of goods diminished in the books of account of the assessee would not by itself permit the Department to insist on reversal of the credit particularly when such goods were still available in the factory in usable condition - Hence in absence of authority, the CBIC could not have issued Circular for reversal of credit - The reversal of the credit would amount to collection of duty which would be wholly unauthorised - Thus the order in challenge is quashed: CESTAT
- Assessee's appeal allowed: DELHI CESTAT
2019-TIOL-1532-CESTAT-HYD
Cubex Tubings Ltd Vs CCE, C & ST
CX - The issue at hand pertains to the duty demands raised against the assessee for availing Cenvat credit in respect of certain bills of entry, which the Revenue claimed were not received by the assessee in its factory premises - SCN was issued proposing reversal of such credit - On adjudication, it was noted that three persons were called for cross examination but they did not show up - The orders were passed raising duty demand & imposing penalty - Hence the present appeals.
Held: The assessee sought the opportunity to cross examine various persons in order to defend the allegation raised in the SCN - The same was not granted by the adjudicating authority - Hence the matter warrants re-consideration by the adjudicating authority, considering the ratio laid down by the High Courts in the cases of Ambika International and HI Tech Abrasives Ltd. wherein it was held that the provisions of Section 9D of the CEA 1944 had to be followed scrupulously before settling the issue in adjudication proceedings: CESTAT
- Case remanded: HYDERABAD CESTAT
2019-TIOL-1530-CESTAT-KOL
CCE & ST Vs Hindustan Coca Cola Beverages Pvt Ltd
CX - The Revenue's appeal is dismissed on account of having been withdrawn due to tax value involved being lower than the limit of Rs 20 lakhs as prescribed in CBIC Instruction No 390/Misc./116/2017-JC dated 11/07/2018: CESTAT
- Revenue's appeal dismissed: KOLKATA CESTAT
CUSTOMS
2019-TIOL-1145-HC-DEL-CUS
Pushpak Lakhani Vs UoI
Cus - The Petitioner praying for release of goods seized under Panchnama - The main ground on which such release is sought is that the mandatory requirement of Section 110 r/w 124 of Customs Act, 1962 i.e. that a SCN should have been issued to the Petitioner within six months of such seizure had not been complied with - Apparently the seizures were of high end luxury wrist watches recovered from the car parked outside the residence of the Petitioner - Simultaneous with the recovery of wrist watches, there were other seizures of similar goods as well as cash from other co-noticees i.e. Ms. Shikha Pahwa, Mr. Pankaj Lakhani and Mr. Purshottam Jajodia - In the case of Mr. Purshottam Jajodia, this Court delivered a judgment holding that there had been a failure to effect service of SCN on Mr. Jajodia within the extended statutory period which expired on 28th October, 2013 - Against the said judgment of this Court in case of Mr. Jajodia, the DRI as well as Customs filed SLP in Supreme Court, which is pending as of date - In the said SLP, there was a stay granted on the judgment of this Court - Separate counter affidavits have been filed by both the DRI and the Customs - Annexed as Annexure "B? to the counter affidavit filed by Customs is a copy of an acknowledgement of receipt of the SCN by the wife of the Petitioner - The said acknowledgement is explicit that she has received the said SCN on 28th October, 2013 - Despite two and a half years having lapsed since the filing of the said counter affidavit, the Petitioner has not chosen to file a rejoinder disputing the document. - The address of the wife of the Petitioner is clearly the same as his address and that it was received by her has not been able to be denied by the Petitioner - As far as the central issue in the writ petition is concerned, with the Petitioner not having been able to persuade this Court about the Respondent's failure to serve him the SCN on or before 28th October 2013, the Court is not inclined to entertain the writ petition : HC
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Writ petition dismissed
: DELHI HIGH COURT
2019-TIOL-1534-CESTAT-MAD
Vishnu Kumar Traders Pvt Ltd Vs CC
Cus - The assessee have exported rice which is prohibited for export through Chennai (Sea-Port) in violation of prohibition imposed in Customs Act, 1962 r/w FTP 2004-2009 - The allegation against assessee is that they have exported rice, pulses and semolina in the guise of non-prohibited items - During search, the department recovered certain invoices, shipping bills and also data from the computer - The foremost point raised by assessee is that they have not been supplied with copy of actual invoices submitted by them to the department at the time of export - Inspite of specific direction by Tribunal and repeated requests on the part of assessee, it is seen that the department has not been able to give copies of relied upon documents - This is clear from the letter issued by department dated 23.10.2017 - From the letter, it is seen that the department is relying on 52 shipping bills and is not relying on any other documents - But, the confiscation is made on the basis of comparison of invoices retrieved from computer and the invoices in EDI system invoices submitted at the time of export - The copies of these invoices have not been supplied - The department has only furnished screen shots of shipping bills - Such screen shots are not sufficient for the assessee to defend their case - When the SCN is issued proposing to impose such huge penalties, the department ought to have taken sufficient care to supply all relied upon documents to the assessee - The adjudication conducted without supply of entire relied upon documents is against principles of natural justice and vitiated - For this reason itself, the confiscation and penalty cannot sustain - Section 138C of Customs Act deals with admissibility of micro-film, facsimile, copies of documents and computer printouts, as documents and evidence - The said section provides for certain requirements to be complied to make the statement from computer to be admissible in evidence - There is no certificate produced as required under sub-section (4) of section 138C - The statement of Shri Vishnukumar has been retracted at the earliest - Therefore such statements without strong corroboration cannot be relied - So also, the request of assessee to cross-examine witnesses has been denied by the department - The case of the department is founded on suspicion and assumptions and not supported by any material or evidence - So also, the non-supply of documents to the assessee inspite of the direction given in the remand order by the Tribunal has seriously vitiated the proceedings - The impugned order is, therefore, set aside: CESTAT
- Appeals allowed: CHENNAI CESTAT |
