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SERVICE TAX
2019-TIOL-1700-CESTAT-BANG
Air Travel Enterprises India Ltd Vs CCE, C & ST
ST - Appellant is rendering services to exporters, in the nature of Air Travel Agents as well as Custom House Agents - appellant had not included certain charges recovered by them for issue of Air way bills - demand issued and confirmed along with penalties by original authority - Commissioner(A) waived the penalty imposed u/s 76 but upheld the rest of the order - appeal to CESTAT.
Held: Liability for differential service tax has not been challenged, hence the differential service tax already paid with interest is not to be interfered with - In the circumstances of the case, in which the entire differential service tax arising on account of inadvertent omission on the part of the appellant, has already been paid, Bench waives the penalties imposed under Section 80 of the Finance Act, 1994 - appeal disposed of: CESTAT [para 4]
- Appeal disposed of: BANGALORE CESTAT
2019-TIOL-1699-CESTAT-AHM
AIMS Pharma Pvt Ltd Vs CCE & ST
ST - Transaction of the appellant of leasing of gas cylinders to the group company does not fall under 'supply of tangible goods' services - Accordingly, demand raised under the said category is not sustainable - Hence, the impugned order is set aside and Appeal is allowed: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2019-TIOL-1683-CESTAT-BANG
Popular Vehicles And Services Ltd Vs CC, CE & ST
ST - The assessee is allegedly providing service in respect of sale of insurance products for and on behalf of M/s. Maruthi finance to the buyers of vehicles from M/s. Maruthi Udyog Ltd. - In both the activities, the assessee was receiving remuneration/commission from M/s. Maruthi Insurance Brokers Ltd./M/s. Maruthi Udyog Ltd. - As the said activities of assessee appeared to fall under BAS as defined in Clause 19 of Section 65 of FA, 1994 and having found that no service tax had been paid, SCNs were issued to assessee demanding service tax for the period 01/04/2005 to 31/09/2005 and 01/10/2005 to 31/03/2006 and also proposing penalties under the provisions of FA, 1994 - In AVG Motors Ltd., the Tribunal on an identical issue has confirmed the demand but dropped the penalties - Further the Tribunal has dropped the penalty on the ground that the subject matter involved relates to interpretation issue - Similarly in the case of City Honda - 2017-TIOL-4018-CESTAT-BANG , the Division Bench of Tribunal confirmed the demand of service tax but dropped the penalties - Therefore the demand of service tax confirmed but the penalty is dropped: CESTAT
- Appeal disposed of: BANGALORE CESTAT
2019-TIOL-1682-CESTAT-AHM
Vijay Commercial Cooperative Bank Ltd Vs CCE & ST
ST - The issue relates to refund of Rs. 81,533/- - Whether the assessee is entitled for an adjustment of cenvat credit - As regard the refund of Rs. 81,533/-, same was rejected on limitation that the formal refund claim was filed after 1 year - It is observed that the assessee before filing formal refund claim, they had written a letter to the department for adjustment of the cenvat credit - Therefore, the said letter should be considered as refund claim only and the period of limitation should be reckoned considering the letter dated 22.10.2014 as a claim for refund - As regard the adjustment of cenvat credit of Rs. 1,85,149/-, this is cenvat credit which was already accrued to the assessee, before 01.09.2014 there was no time limit for which adjustment was sought for all the invoices were issued prior to 01.09.2014, therefore, cenvat credit on the said invoices cannot be denied on the ground of time bar - Therefore, the demand of Rs. 1,85,149/- is not sustainable and the same is set aside - As regard refund claim of Rs. 81,533/-, the same may be re-processed: CESTAT
- Appeal partly allowed: AHMEDABAD CESTAT
CENTRAL EXCISE
2019-TIOL-1702-CESTAT-MAD
ADR Plastics Vs CCE
CX - SCN proposes to club the clearance of Raj Plastics wherein Shri Gunasingh and his brother D.Asir are partners and the clearance of ADR Agencies which is owned by the wife of Shri Gunasingh with that of the Appellant wherein Shri Gunasingh and his father Shri DuraiRaj are partners on the grounds that all the three firms are owned by family members and the house mark 'ADR' is commonly used by all the three firms on their products, and Shri D.Gunasingh exercised pervasive finance and management control over all the three units - demand confirmed and, therefore, appeal before CESTAT.
Held: There are a disturbing number of discrepancies and inadequacies in the entire proceedings which have been flagged by the appellant - Entire proceedings of alleged clandestine manufacture and clearance as well as clubbing of clearance has been made mainly based on evidences recovered from third parties such as raw material suppliers, job workers, buyers, etc and statements recorded from such third parties and based on the contents of pen drives seized from the opposite unit and statements recorded from Shri D Gunasingh and other partners/employees of the above three concerns - Appellant is correct in his assertion that the requirement of Section 36B have not been complied with; so also, the evidence of a newly joined employee (Ms. Amsavalli) cannot be relied upon - printouts taken from the pen drives cannot be said to have passed the strict proceduralities mandated in Section 36B ibid and hence cannot be treated as admissible evidence - law as laid down in Section 9D of the Central Excise Act is very clear that adjudicating authority is required to examine the witnesses before admitting the statement recorded from them as admissible evidence - Bench, therefore, finds merit in the contention of appellant that such statements which have been recorded, relied upon and however not cross examined even after a specific request was made for the same by the appellant, cannot be considered as admissible evidence - department has not proved its case on merits inasmuch as the clubbing of clearances of different units can only be done when there is irrefutable evidence that they are actually running as one with financial flow back between the units, if all the units in question are using just one set of machinery showing that each of them have manufactured and cleared goods separately and so on - impugned order holding that clubbing the clearances of the appellant with ADRA and Raj by treating them as single financial entity constituting one single manufacturer, cannot be sustained and is, therefore, set aside - appeal allowed with consequential benefits: CESTAT [para 3.10, 7.4, 7.5, 7.7, 7.9, 8.1, 9, 10]
- Appeal allowed: CHENNAI CESTAT
2019-TIOL-1701-CESTAT-ALL
Annakut Biscuit Company Pvt Ltd Vs CCE
CX - Cream Mix emerging in factory and used captively for manufacture of exempted edible biscuits - whether excisable/marketable and chargeable to central excise duty - Issue stands decided by Tribunal in the case of Bhagwati Foods Pvt. Ltd., Order dated 02.05.2018 wherein it is held that "Cream Mix" is not marketable and hence not excisable - following the same, impugned order confirming duty liability on Cream Mix is set aside and appeal is allowed with consequential relief: CESTAT [para 3]
- Appeal allowed: ALLAHABAD CESTAT
2019-TIOL-1681-CESTAT-ALL
Satya Prakash Gupta Vs CCE & ST
CX - The assessee-company manufactured Gutkha & had two machines installed in its premises - Both machines were sealed at the assessee's request - They later purchased two more packing machines under cover of invoice issued by the seller - The two new machines were installed in July 2012 at the assessee's premises & Excise duty was paid in respect of the same - However, the assessee omitted to inform the Revenue about the new machines - The Revenue opined that the two machines were registered w.e.f. March 2012 & so duty demand was raised for such period along with penalties being imposed - During adjudication, the assessee approached the Settlement Commission, which then directed the assessee to approach the Commissioner for adjudication - The assessee then approached the High Court - The adjudicating authority decided to wait for the High Court's order but later proceeded to pass an adjudication order raising duty demand with penalty.
Held: From the order in original, it is seen that no reply was filed by the assessee no opportunity of personal hearing had been granted - Besides, the adjudicating authority did not refer to any evidence on record - Also as there was no defence reply, the adjudicating authority simplicitorily observed that the assessee indulged in illicit manufacture & clandestine removal - Hence the order in original is quashed & the matter warrants remand for passing a fresh order: CESTAT
- Assessee's appeal allowed: ALLAHABAD CESTAT
2019-TIOL-1680-CESTAT-KOL
CCE Vs Esab India
CX - The assessee is engaged in manufacture of Welding Electrodes - These goods are partly sold at the factory gate and partly stock transferred to depots situated in different places and sold subsequently to customers - In respect of goods stock-transferred to depots, the duty is paid by assessee at the factory gate - The dispute relates to such stock transfer to depots made during the period April, 1997 to November, 1999 - The Revenue noticed that in respect of some of the clearances made to depots, the duty was paid at prices lower than the prices prevalent contemporaneously at the depots at the time of clearances - While there is no dispute to the legal interpretation of issue, dispute has arisen on account of the fact that assessee has more than one price for sales of goods from the depot at any given date and time - There is one price charged from individual customer at the depot, whereas in respect of certain class of customer, there are contract prices which are often less than the price charged to the individual customer on any given date and time - Revenue has taken the view that duty is required to be paid only at the highest such price charged to individual customer - This is resisted by assessee with the submission that Section 4(1)(a) Proviso (i) provides for different normal prices for different classes of buyers - It provides when goods are sold at different prices to different classes of buyers each such price shall be deemed to be the normal price in relation to such class of buyers - There is a price charged on any given date from individual buyers, but at the same time at the same date, the lower prices are charged to different customers with whom the assessee has contracted prices, keeping in view the volume of business and promptness of payment - It appears that each contract price can be considered as applicable to a particular class of buyers - A perusal of invoices issued at the factory gate in respect of goods meant for supply at contracted prices reveals that the invoice issued for stock transfer invariably indicates the name of the customer and the contract price - On subsequent sale at the depot, the depot invoice indicates the very same price - Assessee has discharged duty for such goods transferred to depot appropriately - Consequently, no infirmity found in the impugned order which is sustained: CESTAT
- Appeal rejected: KOLKATA CESTAT
CUSTOMS
NOTIFICATION
dgft19pn010
Amendment in the para 4.95 (j) of the Handbook of Procedures, 2015-20 and notification of the ANF 4R
CASE LAWS
2019-TIOL-1228-HC-MAD-CUS
Fortune Marketing Pvt Ltd Vs ACC
Cus - Refund claim filed by petitioner was rejected by the impugned order - in the refund application filed in the prescribed template application form, column 12 seeks to know “whether personal hearing required or not before the case is decided” and the petitioner applicant's response is “Yes” - in the impugned order, there is no mention about the personal hearing and there is nothing before the Court to demonstrate that an opportunity of personal hearing was afforded to the writ petitioner - case, therefore, falls under the category of violation of 'Natural Justice Principles' and warrants an interference in writ jurisdiction - impugned order is set aside and the respondent is directed to process the refund application of the writ petitioner in a manner known to law, more particularly, after affording an opportunity of personal hearing - exercise to be completed within four weeks - Writ Petition is disposed of: High Court [para 5 to 11]
- Petition disposed of: MADRAS HIGH COURT
2019-TIOL-1679-CESTAT-MUM
Advanced Spectra Tek Pvt Ltd Vs CC
Cus - Assessee have filed Bill of Entries during the period 15.03.2000 to 18.10.2001 for import of "Danload 6000 Electronic Preset Flow Metering Equipment and Its Parts" - The goods were accordingly assessed and cleared on payment of Customs duty - Issue can be decided on the ground of limitation itself as the SCN demanding the duty in respect of imports made vide bill of entries filed during the period 15.03.2000 to 18.10.2001 was issued on 11.03.2005 - The assessee have made the declaration on the Bill of Entries as per the description given in invoices of foreign supplier - Since the description as has been given by foreign supplier declare on the Bill of Entries, the assessee cannot be held guilty for mis declaring the same - The classification declared by assessee on the Bill Of Entry is as per their understanding and assessment, it is for the assessing officer to determine the correct classification and duty payable - It is not the case of department that assessee have made any declaration which was contrary to the documents available with the importer at the time of filing of Bill of Entry - No evidence has been produced by the department to the effect that catalogue of the "DANLOAD 6000" was called for by the assessing officer and not produced by assessee - The entire case of the revenue is based on the few statements recorded by the Custom officers - Since all the facts including the catalogues relied upon in SCN were made available to revenue as early as in 2002, the delay in issuance of SCN could not be justified - Case of assessee on the issue of extending period of limitation is squarely covered in their favour by the decision of Apex Court in Magus Metal P Ltd - Extended period of limitation is not invokable in the present case - By the impugned order Commissioner has confirmed demand of duty which was never there in SCN - While SCN demanded duty of Rs 33,55,461/- Commissioner has confirmed demand of Rs 49,49,505 - The justification given by the Commissioner by referring to Section 154 of the Customs Act, 1962 is not tenable - Since Tribunal is not in position to sustain the order of Commissioner on ground of limitation under proviso to Section 28 (1), no observation made on the issue of classification, decided by the Commissioner: CESTAT
- Appeal allowed: MUMBAI CESTAT |
