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SERVICE TAX
Commissioner of GST Vs Orange Business Solutions Pvt Ltd
ST - The assessee-company filed refund claims for the quarters July 2012 to September 2016 as per Notfn No 27/2012-CE, in respect of unutilized Cenvat credit availed on input services used in providing Business Auxiliary Service to its client located abroad - On adjudication, the refund was sanctioned by the jurisdictional Assistant Commissioner - Later, the Commr.(A) sustained such order - Hence the present appeal by the Revenue.
Held - The sole allegation made by the Revenue is that the assessee provided intermediate service & so the same cannot qualify as export of service - Considering the agreement between the assessee and its client, it is seen that the activity of computer networking is networking service which is an application running at the network application layer & above, that provides data storage, manipulation, presentation, communication or other capability which is often implemented using a client server or peer to peer architecture based on application layer network protocols - From the same, there is no arrangement or facilitation of the main service between two parties by a third person under the category of computer networking services - The assessee processes equipment supply orders including liaison or coordination, which is equivalent to solicitation - Each mandate where there are two or more than two companies are involved would not automatically by termed as intermediary - Hence the assessee is not an intermediary and is not providing any service in this capacity - Hence no service tax is payable & the O-i-A merits being upheld: CESTAT
- Revenue's appeal dismissed : CHANDIGARH CESTAT
Krishak Bharti Cooperative Ltd Vs CCE & CST
ST - The assessee is engaged in manufacture of various kinds of fertilizers and registered under category of GTA service - As recipient of GTA service, the assessee is discharging their service tax liability - It has been the contention of department that assessee has not included the value of loading /unloading, and stacking charges in service value of GTA service - The department has primarily relied upon CBEC circular 104/2007-2008ST - The contracts for transportation of fertilizers cargo filed by assessee, with regard to various transport contractor are very categorically having two parts, first, which is primarily for transportation of fertilizers; and second is for loading / unloading and stacking/ de-stacking of fertilizers and separate charges for each activity are indicated - The assessee has very categorically and in very transparent way has provided that the service tax on transportation charges will be paid by them and in case of cargo handling will be paid by service provider himself - Since the value of both the services have categorically been provided separately, the assessee has discharged his service tax liability under reverse charge mechanism of transportation charges as is the requirement of Service tax law, no legally tenable ground found to demand service tax on cargo handling charges on which service tax as per the provisions of service tax law is to be discharged by the service provider - Since the value has been indicated separately and there is no charge of department that the service provider of cargo handling service like loading /unloading stacking /destacking of fertilizer consignment has not discharged their service tax liability - It is seen that the department has not even tried to prove that there is short payment of service tax - Since there is no charge of non-payment of service tax by contractors of cargo handling services like loading / unloading in that case they must have paid service tax on the full value of service and if same is added to the transportation charges, the assessee will be entitled for prescribed abatement and as a result the Department would get less amount of service tax - Thus, no merit found in confirming short payment of service tax - Since the assessee is being audited regularly by Department and all the details have been in knowledge of the department and the charge of suppression of facts or mis declaration have not been established by department, therefore the demand of duty under section 73 (1) under extended time proviso is not sustainable on the ground of limitation - Therefore, demand is also barred by limitation: CESTAT
- Appeal allowed : DELHI CESTAT
P Balakrishnan Vs CCE & ST
ST - During the relevant period, the assessee was issued summons, based on intelligence that duty in respect of Commercial or Industrial Construction Services was not paid - On scrutiny of balance sheet, it appeared that such service had been provided between 2005-06 to 2009-10 & that the assessee had not included the entire amount received in taxable value - Also, value of free supplies were not included in taxable value - On adjudication, duty demand was raised with interest & penalties being issued - Hence the present appeal.
Held: A cursory glance of P&L a/c reveals that assessee purchased & sold or transferred such material in execution of works contract - VAT assessment orders also show that the VAT was assessed on such materials procured - Though the assessee received free supplies of Cement & Steel from the customers, the use of other material for executing such works contract makes it a composite contract - Hence demand raised for period before 01.06.2007 cannot sustain, considering Apex Court's judgment in Commissioner of Central Excise & Customs, Kerala Vs M/s. Larsen & Touboro Ltd - Similarly, demand under CICS cannot be raised on composite contract - This follows from Tribunal decision in M/s. Real Value Promoters Pvt. Ltd - Hence the demands are quashed: CESTAT
- Assessee's appeal allowed : CHENNAI CESTAT
CENTRAL EXCISE
2019-TIOL-1562-CESTAT-ALL
Interarch Building Products Pvt Ltd Vs CCE & ST
CX - Appellant had, during the period June 2010 to July 2012 paid excess duty of around Rs.21 lakhs due to programming error in their computer system-Upon detection of the same, they suo motu took CENVAT credit in the month of November 2012-Revenue denied such availment of credit by order-in-original dated 26.12.2014-Commissioner(A) vide o-in-a dated 08.10.2015 remanded the matter to examine whether excess duty paid has been passed on or not-in denovo adjudication, Joint Commissioner passed an o-in-o on 28.03.2017 and noted that the excess duty paid has not been taken as credit by the appellant's sister unit to whom the goods were cleared-against this order, Revenue filed an appeal and the Commissioner(A) held that there is no provision in the Central Excise law to take suo motu refund and that the duty was passed on and, therefore, in view of the principles of unjust enrichment, refund cannot be claimed-appeal to CESTAT.
Held: Bench notes that the o-in-a dated 08.10.2015 was not challenged by Revenue and, therefore, the findings in the said order cannot be challenged by Revenue before another Commissioner(A) since the same are hit by principles of res judicata-said findings were in respect of admissibility of suo motu credit based on finding and final order of Tribunal in Annapurna Malleable P. Ltd. as affirmed by the Chattisgarh High Court-impugned o-in-a is unsustainable-o-in-o dated 28.03.2017 restored-appeal allowed: CESTAT [para 4] -
Appeal allowed
: ALLAHABAD CESTAT
2019-TIOL-1553-CESTAT-MAD
Honda Seil Power Products Ltd Vs Commissioner of GST & CE
CX - The issue involved is with regard to denial of Cenvat credit on outward transportation of goods upto the buyer's premises - The bench of this Tribunal after the decision of Apex Court in M/s. Ultratech Cement Ltd. and also consequent upon Board circular had disposed a batch of cases by remanding the matter to adjudicating authority to consider the issue of place of removal and then decide the eligibility of credit - Presently, it is seen that in decisions passed by Bench at Ahmedabad, it is held that credit on GTA Services upto buyer's premises is eligible when sale is on F.O.R. basis - It is also stated that assessee have not furnished necessary documents to prove that the sale is on F.O.R. basis - Though, assessee has produced the documents now to show that the sale is on F.O.R. basis, it is best that the matter be remanded for the purpose of verification of these documents - Therefore, matter remanded to the adjudicating authority to reconsider the issue of place of removal as well as eligibility of credit on outward transportation of goods upto the buyer's premises: CESTAT
- Matter remanded : CHENNAI CESTAT
Hero Steel Ltd Vs CCE & ST
CX - The present appeal was filed contesting denial of Cenvat credit on grounds that requisite documents u/r 9 of CCR 2004 were not produced & credit was availed based on photocopies.
Held: The assessee produced most of the 10 certificates needed for availing Cenvat credit - Hence the order denying credit is quashed & the matter is remanded: CESTAT
- Case remanded : CHANDIGARH CESTAT
CUSTOMS
NOTIFICATION
cnt39_2019
Cus - Exchange rate for South African Rand revised cnt38_2019
CBIC revises tariff value for several commodities
DRAFT NOTIFICATION
Draft
Draft Comprehensive ITC (HS) Export Policy, 2019
CASELAWS
2019-TIOL-219-SC-CUS
CC Vs Epson India Pvt Ltd
Cus - The assessee imported goods namely, business projectors - It classified the subject goods under CHT 85286100 and were assessed to BCD at nil rate of duty in terms of Notification No. 24/2005-Cus., ADD @ 10% and education cess at 3% and SAD at nil rate in terms of Notification No. 29/2010-Cus - The Revenue opined that the goods were rightly classified under CTH 85286900 and not eligible for claiming exemption under the said notifications - Duty demands were raised with interest & penalty & were sustained by the Commr.(A) - Later, the Tribunal held that the subject goods were to be classified under CTH 85286900, considering the decision in M/s. Casio India Co. Pvt. Ltd. Vs. Commissioner of Customs, New Delhi - Hence the Revenue's appeal.
Held - There is no reason to take a view different from that adopted by the Tribunal - As it is, the decisions relied upon by the Tribunal attained finality, as two appeals filed in those matters had been dismissed by this court - Hence the present appeals & pending applications are dismissed too: SC
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Revenue's SLP dismissed
: SUPREME COURT OF INDIA
2019-TIOL-1156-HC-MEGHALAYA-CUS
Manik Ranjan Paul Vs CC
Cus - Four trucks of betel nuts, two carrying whole betel nuts and two carrying spilt betel nuts were seized - The assessee has claimed to be the owner of same - In effect, assessee has admitted that the betel nuts were of foreign origin i.e., were imported from Myanmar - The observation that the assessee could not purchase on credit from four unknown persons is misplaced, when four persons are admitting that they have sold the betel nuts on credit to the assessee, how can that be denied has not been looked into - That apart, four persons have filed four affidavits in this Court admitting that they have sold the betel nuts to the assessee - If any person has to sell his product to anyone and admits to have sold even abruptly creating buyer, that cannot be questioned, this aspect of the case too has not been looked into by the Tribunal - Tribunal has not appreciated the contentions nor there is any logical reason recorded for agreeing with the findings recorded in O-I-O - Whether dry betel nuts could be preserved for more than one year or not, no finding to that effect has been recorded except by showing that there is a gap of one year between import and sale, when according to assessee dry betel nuts can be preserved after proper treatment for a longer period - It will be appropriate to remand the case back to the Tribunal for deciding appeal filed by assessee afresh - Order of the Tribunal is set aside and matter remanded to the Tribunal: HC
- Matter remanded: MEGHALAYA HIGH COURT
2019-TIOL-1551-CESTAT-DEL
CC Vs DS Cargo Agency
Cus - Revenue is in appeal against the impugned order wherein the proceedings against assessee has been dropped under CBLR, 2013 alongwith an application for stay of operation of impugned order - CBLR have been framed in terms of Section 146 (2) of Customs Act, 1962 - As per the said provisions, the Legislature have empowered the broad the procedure of appeal to be filed against an order of suspension of revocation of license - Admittedly, as per the said provisions, an appeal can be filed before this Tribunal against the revocation of Customs Broker License and it is not the case of revocation of suspension of Customs Broker Licenses - In fact, the proceedings initiated against customs broker has been dropped by the impugned order by the Commissioner of Customs - Tribunal agrees with the observations made by Tribunal in case of PSB Logistics Pvt. Ltd. - 2017-TIOL-4253-CESTAT-DEL - Therefore, force found in the preliminary objection raised by assessee - Appeal is not maintainable against the impugned order before this Tribunal: CESTAT
- Appeal dismissed : DELHI CESTAT |
