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SERVICE TAX
2019-TIOL-1655-CESTAT-MAD
CCE & ST Vs Nippon Express India Pvt Ltd
ST - Assessee is providing services of CHA, Storage and Warehouse services and BAS - Alleging that assessee had excluded certain amount claimed to be reimbursable expenses and that the appellant had not discharged service tax under GTA services, two Show cause notices (SCN) No. 26/2009 dated 02.03.2009 and No. 566/2009 dated 21.10.2009 for the period July, 2007 to August, 2008 were issued proposing to demand service tax on both reimbursed expenses and GTA services along with applicable interest and penalties - With regard to service tax on issue of GTA services, it is found from the documents placed on file that the assessee had explained before the adjudicating authority that the reimbursement occurred on account of its services being rendered to SEZ customers from July 2007 to September, 2008 - There is also a letter from the Superintendent seeking documentary evidence, month wise in support of the above, from the assessee - However, in impugned order, the adjudicating authority has recorded that the assessee had not filed any documentary evidence in support of its claim from exemption - Tribunal is unable to perceive any discussion on the contentions of assessee as to providing service to SEZ or that assessee did or did not furnish any documents; nor that the assessee's contentions are correct or incorrect, Tribunal is therefore constrained to remand this issue back to the file of adjudicating authority to pass a denovo adjudication order, after offering reasonable opportunity to the assessee and after considering all such supporting documents placed/to be placed by assessee - The miscellaneous application is filed by Revenue for change of name and address of Revenue in cause-title due to change in jurisdiction of respondent - The prayer for amendment of the cause title as also the address for communication of the department needs to be amended in accordance with the change of address/jurisdiction of the department: CESTAT
- Revenue's appeal partly allowed: CHENNAI CESTAT
2019-TIOL-1654-CESTAT-MAD
Taneja Aerospace And Aviation Ltd Vs CGST & CE
ST - Without properly mentioning the different charges which fell under this category of airport service and also without verifying whether the same amount has spill over into other category of services, it would be unfair and improper to demand service tax alleging that every services which is provided within the airport area would fall under airport services - said issue requires reconsideration by the adjudicating authority: CESTAT [para 5.4]
ST - Appellant has acted as sales representative for sale of aircrafts by CESSNA, USA in India - Thus, the appellants were engaged in sales promotion and marketing of the aircrafts belonging to CESSNA, USA - The service recipient is situated outside India and the service is also received outside India - in cases of sales promotion on behalf of foreign principal, the benefit of services accrues outside India even if the activity is performed in India - payment should be received in foreign exchange - appellant has adjusted the amount received by them in their accounts after deducting the expenses - In any case, the demand prior to 18.4.2006 cannot sustain as per the decision of the Supreme Court in the case of Indian National Shipowners Association: CESTAT [para 5.5]
ST - Goods supplied to Vikram Sarabhai Space Centre, Hindustan Aeronautics Ltd., Bharath Electronics Ltd. etc. - labour charges collected - Process undertaken by the appellant amounts to manufacture - For these reasons, the demand of service tax under BAS for the job work done by the appellant cannot sustain and requires to be set aside - Therefore, the demand under BAS with respect to these income streams are set aside: CESTAT [para 5.6]
ST - Courses offered by the appellants are in the nature of aviation science, maintenance and repair of aircraft etc. - such courses help the students/candidates obtain employment after the course - demand under the category of Commercial Coaching and Training Services, therefore, cannot sustain: CESTAT [para 5.7]
ST - Renting of immovable property - legislation was amended in 2010 with retrospective application to bring the activity within the contours of service tax - matter was contentious - being an interpretational issue, penalties cannot be imposed, hence set aside: CESTAT [para 5.8]
- Appeal partly allowed/partly remanded: CHENNAI CESTAT
CENTRAL EXCISE
2019-TIOL-1653-CESTAT-KOL
Ellenbarrie Exim Ltd Vs CCE & ST
CX - The assessee is an Exporter and is granted a certificate of "Status Holder" by Licensing Authority being the office of Zonal Joint Director of Foreign Trade, Kolkata - The Central Government, through 2003 Edition of Exim policy 2002-2007 introduced a Duty Free Credit Entitlement (DFCE) Scheme to accelerate growth in exports by rewarding star export houses, who had achieved a quantum growth in exports - High performing star export houses were entitled for duty free credit based on incremental exports, substantially higher than the general annual exports target fixed - The Central Government by appropriate notification formulate and announce the exim policy 2002-07 and amend the same - Para 3.7.2.1 of the policy provided for DPC scheme and it was amended by notfn 6(RE)/05/04-09, whereby Note-8 was inserted, which provided that additional customs duty/excise duty paid in cash or through debit under the DFCE entitlement certificate, would be adjusted as Cenvat credit as per rules framed by the Department of Revenue - The Department of Revenue, by its circular dated 13.10.2006 clarified that Additional Customs Duties paid through debit in certificate issued under DFCE can be availed of as Cenvat credit - The relevant exim policy has a force of law and Adjudicating Authority should have considered the same before holding that Cenvat credit has to be availed and utilized on this strength of notification issued by CBEC - The assessee has acted on the basis of and in terms of notification issued by Central Government through Ministry of Commerce and the assessee should not be penalized for the delay in issuing the customs notification in line or re-confirming and/or complementing the Notification issued by the DGFT - The CBEC was expected to re-confirm and/or complement issued by DGFT simultaneously - However, the Customs notification came to be issued on 17.11.2005 - In the mean time, the assessee paid additional customs duty through debit through DGFT and availed in part the Cenvat credit - CBEC through its clarification clarified that additional customs duty paid by debit should be payable as Cenvat credit - Such clarification came before passing of impugned order - The Notfn dated 17.11.2005 amending the basic Notfn 53/2003 is a classificatory Notification and should be applied from the date of DGFT Notification - Benefit of credit should not be denied - Regarding the shortage of 52.250 MT of goods, it was alleged to have been found short - It is the case of assessee that the shortage was due to difference arising on account of weighment on different weigh bridges - Such quantity works out to be only 1.15% of the total quantity 7375 MT - Such percentage of shortage is not made the goods having different calibrations - No ingredient of mis- statement, suppression of facts found with an intent to evade payment of duty - Accordingly, no penalty is imposable under section 11AC read with Rule 15 of CCR, 2004 and Rule 25 of CER, 2002 - The Cenvat credit of additional customs duty paid under TP Scheme from the date of its operationalization is allowed: CESTAT
- Appeal allowed: KOLKATA CESTAT
2019-TIOL-1652-CESTAT-KOL
Shree Renuka Sugars Ltd Vs CCE
CX - Assessee is a manufacturer of refined sugar - Raw sugar as well as PP Bags are procured as inputs without payment of duty in terms of Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001 – Due to lack of demand and global recession, the assessee could not export part of the refined sugar - As per Rule 6 of the aforesaid Rules, the assessee was required to discharge duty on goods procured without payment of duty, which were not used for the purpose for which it was procured - assessee discharged its obligation under Rule 6 ibid by debiting the credit available in the CENVAT credit account along with interest as applicable which was paid in cash - Subsequently at the time of clearance of the finished product, the applicable central excise duty was paid and was cleared to domestic tariff area - Dispute is whether the credit available in the CENVAT book of the assessee can be utilized to discharge duty in terms of Rule 6 of the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001 read with Notification No.43/2001-CE(NT) - Related question is whether such amounts, once paid by debit in cenvat credit, can be allowed for recredit.
Held: Both these issues have come up before the Tribunal in the case of Shree Rajasthan Syntex Ltd. vs. Commissioner of C.Ex, Jaipur-II where it is held that payment of duty on the inputs by using the CENVAT credit is permissible and such payments can be further utilized as credit for discharging duty on the final products - appeal filed by the revenue is rejected and the appeal filed by the assessee is allowed: CESTAT [para 7 to 9]
- Assessee appeal allowed/Revenue appeal rejected: KOLKATA CESTAT
CUSTOMS
NOTIFICATIONS
dgft19pn009
Withdrawal of Merchandise Exports from India Scheme (MEIS) benefit for 'Onions Fresh or Chilled' under ITC (IIS) code 07031010 with immediate effect ctariffadd19_023 Seeks to extend levy of anti dumping duty imposed on 'PVC (resin) suspension grade' imported from China, Thailand and USA till August 12, 2019
CASE LAWS
2019-TIOL-220-SC-CUS
UoI Vs Farmson Pharmaceuticals Gujarat Pvt Ltd Etc
Cus - Application seeking exemption from filing certified copies of the judgments in challenge is allowed - Matter adjourned till June 17 2019 - Petitioners entitled to raise all issues before High Court: SC
- Case deferred: SUPREME COURT OF INDIA
2019-TIOL-1202-HC-DEL-CUS
Agfa Healthcare India Pvt Ltd Vs UoI
Cus - Goods imported are medical diagnostic equipment used in the health care industry - Department is insisting that the correct classification of the goods is CTH-84433290 - petitioner had requested for provisional assessment of goods under CTH-90189099 but vide letter dated 3 rd May 2019 the Assistant Commissioner of Customs, ICD, Patparganj, Delhi has rejected the same - Petitioner has filed Writ in respect of the consignments imported on the dates subsequent to those covered by the SCN dated 25 th April 2019 wherein classification of similar earlier consignments was questioned - grievance of the Petitioner is that it is being compelled to pay the entire disputed duty without there being any provisional assessment, as requested by it.
Held: Court is unable to view the impugned letter dated 3rd May, 2019 as an order of provisional assessment - while setting aside the impugned letter dated 3rd May, 2019, Court directs the Petitioner to appear before the authority concerned (Assistant or Deputy Commissioner of Customs), ICD, Patparganj, Delhi on 4th June, 2019 and who will consider the Petitioner's request for a provisional assessment in accordance with law and pass a reasoned order thereon not later than a week thereafter - petition disposed of: High Court [para 5 to 7]
- Petition disposed of: DELHI HIGH COURT
2019-TIOL-1201-HC-AHM-CUS
Farmson Pharmaceuticals Gujarat Pvt Ltd Vs UoI
Cus - Anti-Dumping - The issue at hand pertains to extention of Anti-Dumping Duty imposed on Paracetamol imported from China PR - The matter was to be adjourned at the instance of the Revenue as could be seen from an earlier order wherein also the Court in fact had reproduced the earlier order only with a view to infuse the sense of urgency which appears to have worked but not to the fullest as though the reply has come but in a soft copy which cannot be placed on record - There is a justification on the part of the petitioner's counsel w.r.t. the appropriate direction for extending the ADD so that the subject matter of petition may not be rendered anfractuous and irretrievable situation may be avoided - Hence directions be issued to the Revenue to extend the duty imposed on the products in question for a two-month period upto 24.6.2019 - Hence the matter is posted for hearing on 12.6.2019: HC
- Case deferred: GUJARAT HIGH COURT
2019-TIOL-1200-HC-AHM-CUS
Samir Kalyanjibhai Patel Vs UoI
Cus - Anti-Dumping - The applicants had originally approached the writ court seeking to challenge the Final Findings of the DGAD refusing to extend Anti Dumping Duty imposed on Paracetamol imported from China PR - It had been pleaded that such order be quashed & that no coercive steps be taken against the applicant pursuant to such findings of the DGAD - It was also sought that the imported consignments be released - On the earlier occasion, the High Court settled the matter in favor of the applicants upon observing a breach of the principles of natural justice - The Applicants approached the writ court for the second time, seeking enforcement of the order passed earlier, as the same had not been acted upon.
Held - Nothing prevented the Revenue from approaching this court for seeking the appropriate relief or clarification as needed - Perusal of Office Memorandum reflects the authority's conduct in avoiding compliance with the Court's order - Its author clearly reveals uncanny & enigmatic recalcitrant approach in complying with the order, when such orders are not subject to further challenge or review - Relevant portions of the Office Memorandum betray an unlawful and illegal attempt by the authority concerned to examine orders of this court - Where they were not restrained from approaching the courts to seek the clarification sought, the authority concerned could not suo motu decide to not comply with the order - In such backdrop, not providing relief to the applicants will result in grave miscarriage of justice & would render their petition infructuous - The Revenue cannot be permitted to arrogate any jurisdiction and power, which it did not have to thwart and impead the operation of Court's order - Hence the authority concerned is directed to comply with the orders passed earlier and so issue a notification extending the Anti Dumping Duty imposed - Notices be served to the parties - Revenue directed to show cause why appropriate action not be taken against the authority concerned for non-compliance with the orders of this court: HC
- Writ petition allowed: GUJARAT HIGH COURT
2019-TIOL-1651-CESTAT-MUM
Bora Agri Tech Vs CC
Cus - The assessee had imported White Poppy Seed from China vide four Bills of Entry - Alleging that the said imports were unauthorised and contrary to the Foreign Trade Policy provisions, a SCN was issued to assessee proposing confiscation of imported goods under Section 112(a) and penalty under Section 112(a) and Section 114AA of Customs Act, 1962 - It is not in dispute that as per the import policy, import of White Poppy Seeds is under licencensing control when imported from certain countries which included China during the relevant period - To import of said White Poppy Seeds, the assessee had registered two contacts viz. TTHK 09027 and TTHK 09028, with Narcotics Commissioner, CBN, Gwalior, who is the authority to allow import of White Poppy Seeds - Later, they have cancelled one of the Contract No.TTHK 09027 and surrendered Registration - The claim of assessee is that the imports be considered as made against Contract No.TTHK 09028 - The allegation of Department, on the other hand, is that the documents filed for import of the said White Poppy Seeds refers to Contract No.TTHK 09027 and there are certain discrepancies in the documents relating to said imports - Assessee had produced certificate of Chinese authorities indicating that the import was against Contract No.TTHK 09028, clarifying the mistakes in relevant import documents - Thus, the explanation furnished by assessee in wrong mentioning of reference number in import documents had later been clarified/rectified by approaching the appropriate Chinese authorities, is acceptable being supported by letter issued by the Chinese authorities, a fact not controverted by the department - Therefore, the findings of Commissioner that the imports were against cancelled Contract No.TTHK 09027 and not authorized is incorrect - On the contrary, the said contract No.TTHK 09027 was cancelled and Registration has been surrendered; hence the consignments imported were against Contract No.TTHK 09028, which was validly obtained - Therefore, imports were authorised under Contract No.TTHK 09028 and under valid Registration - Consequently, the impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
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