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SERVICE TAX
2019-TIOL-1762-CESTAT-DEL
Eid Mohammed Nizamuddin Vs CCE & ST
ST - Appellant admittedly is paying Service Tax under reverse charge mechanism on various services and those services were incurred for procuring agricultural produce viz. tendu leaves - labour was involved in plucking the tendu leaves and the services of GTA were procured for dispatching the plucked tendu leaves - Since all these services relate to the agricultural produce and were not liable to service tax, refund claim filed on the ground that Service Tax was allegedly wrongly paid by them due to lack of knowledge of Service Tax Provision - Commissioner(A) upheld the findings of original adjudicating authority rejecting the refund claim, except modifying the same with the finding that the refund claimed on GTA for transportation of tendu leaves was admissible, however, the same is hit by bar of unjust enrichment - appeal to CESTAT.
Held: It is obvious in the given circumstances that the incidence has been borne by the appellant who otherwise is the service recipient - Resultantly, as far as the observation of the adjudicating authority with respect to unjust enrichment is concerned, Bench is convinced with the case law as relied upon by the appellant and hold that the said ground is not sustainable for rejecting the refund of the appellant - Insofar as the allegation that no proof has been tendered by the appellant to show that the impugned services were with respect to agricultural produce, it was again the appellants own burden to prove that the services for which the refund has been claimed were incurred by him solely for his activity related to the procurement of agricultural produce (tendu leaves) but there is apparently no such evidence on record, except the CA certificate and the certificate is absolutely silent about the services being incurred for tendu leaves only - Once there was no evidence on record to prove that the refund of service tax was with respect to such services as were incurred in relation to agricultural produce only, the adjudicating authority had no option but to reject the claim - no infirmity in the order of rejection - appeal dismissed: CESTAT [para 9 to 11]
- Appeal dismissed: DELHI CESTAT 2019-TIOL-1754-CESTAT-AHM
CCE & ST Vs Reliance Industries Ltd
ST - The assessee-company is a leading industrial conglomerate in India - During the relevant period, the assessee filed refund claims in terms of Notfn No 12/2013-ST - The refund was claimed in respect of services used exclusively by the SEZ unit for authorized operations & also in respect of services common to the authorized operations in the SEZ and the operations in the DTA which were distributed amongst the two as per Rule 7 of CCR - On adjudication, the claims were sanctioned - The Revenue's appeal against such findings was dismissed by the Commr.(A) - Hence the present appeal by the Revenue
Held - Even if it is presumed that the adjudicating authority processed the refund claim without verifying the compliance with the condition regarding time limitation, there is yet no warrant to remand the matter back the adjudicating authority as even if the adjudicating authority did not exercise the jurisdiction vested with it, the Tribunal can exercise such jurisdiction to condone the delay in filing the refund claim as per Clause (e) of Para 3(III) of the Notfn - Any other interpretation would run contrary to the objective of the refund mechanism - It is undisputed that any service used by an SEZ for undertaking its authorized operations will not attract service tax - The earliest point of time for an SEZ unit to claim refund is after the ISD distributes the tax credit, for which there is no time limit as per Rule 7 of CCR - The ISD invoice is deemed to the tax-paying document - Hence the date of the ISD invoice is to be considered when computing the one year period as per the Notfn - Therefore, if the SEZ unit filed the refund within one year from the ISD unit distributing credit to it, any delay in filing refund claim can be condoned where tax is paid to the service provider as per Para 3(III)(e) - Moreover, it is undisputed that the services were common to the authorised operations in the SEZ and the DTA operations - Such common credit was distributed based on turnover of the SEZ unit & DTA unit as per Para 3(III)(e) - Hence the findings of the adjudicating authority are in accordance with law: CESTAT
- Revenue's appeal dismissed: AHMEDABAD CESTAT
2019-TIOL-1753-CESTAT-BANG
Roughton International Pvt Ltd Vs CCE & ST
ST - Assessee is engaged in providing ‘Consulting Engineering Services' and formed a Joint Venture with M/s. Consulting Engineering Group Ltd. and provided services of consulting engineers for golden quadrilateral road laying work of NH4 under an agreement with Government of India - They have provided services for Haveri-Hubli, Belgaum Bypass, Dharwad- Belgaum Sections under different packages - The Revenue have contended that whereas the assessee was paying service tax, on the third package, inclusive of TDS withholding tax, accommodation charges and remuneration charges - They did not do so on first two packages - The department has issued a SCN covering a period of July 2001 to January 2006 seeking payment of service tax - Coming to the issue of withholding tax and TDS, the assessee claim that the same were not collected by them and it was merely added and deducted in the invoice for accounting purposes in the invoice - Therefore, it cannot be considered as part of taxable value - One more issue which is agitated in impugned order is about whether the exemption contained in Notfn 2/1999 is applicable to the assessee - The Commissioner (A) has contended that it is seen that as per the agreement is entered into between NHAI and the assessee in joint ventures with Consulting Engineers Group Ltd., the assessee is main party to the agreement and by no stretch of imagination they can claim themselves as sub consultants - Therefore, no abatement can be available - Regarding the receipt of remuneration in freely convertible foreign currency, the Commissioner (A) has held that as per the proviso to Notfn 21/2003-ST, exemption is not available when the remuneration received is repatriated back - It is not understood as to how Commissioner (A) has come to a conclusion that the same has been repatriated as no clear findings have been given on this issue - However, a SCN on the same issue being already issued to assessee and the assessee submitting the returns along with bills and challans regularly, department has not made a case for invoking the extended period - Therefore, Tribunal is not looking into the issue of includability of TDS and withholding tax and the exemption claimed by assessee on freely convertible foreign exchange - However, while holding that accommodation and other reimburse charges are not includable in the assessable value of taxable service, the entire SCN is barred by limitation - The impugned order is set aside partly on merits and totally on limitation: CESTAT
- Appeal allowed: BANGALORE CESTAT
CENTRAL EXCISE
2019-TIOL-1279-HC-MUM-CX
Vishal Expert Services Pvt Ltd Vs CCT
CX - The person-in-charge of appeal was the same person-in-charge of appeal in Appeal No.16 of 2019 before this Court - The delay of 188 days in filing an appeal from the order of the Commissioner (A) was condoned on 9th April, 2019 by this Court, on assessee paying cost of Rs.20,000/as the condition precedent to the Commissioner of Central Excise for restoring appeal before the Tribunal - This amount is to be paid to Commissioner of Central Excise within a period of two weeks from the date on which the order is uploaded - The impugned order be set aside and the appeal is restored to the Tribunal for fresh disposal - This subject to the condition that assessee to pay cost of Rs.20,000/to the Commissioner of Central Excise within the period of two weeks from the date on which this order is uploaded - On the aforesaid payment of Rs.20,000 to the satisfaction of Tribunal, the appeal of assessee would be restored to the Tribunal - Thereafter, the Tribunal would after condoning the delay, hear the appeal on merits - It is made clear that if the amount is not paid within the stipulated period, the appeal stands dismissed: HC
- Appeal dismissed: BOMBAY HIGH COURT
2019-TIOL-1761-CESTAT-ALL
DSM Sugar Vs CCE
CX - CENVAT - Period involved is January, 2007 to June, 2007 - H.R. Plates, M.S. Sheet, M.S. Plate, M.S. Angle, M.S. Channel, C.R. Coil, S.S. Flat, Chequered Plate, M.S. Square, C.R. Strips, M.S. Girder, C.I. Casting, Rails & Welding Electrodes were used in fabrication of new machineries and parts thereof used for manufacture of sugar - Explanation 2 to rule 2(k) of CCR, 2004 allows credit on inputs used either as inputs directly or indirectly in the manufacture of final products or used in the factory of production for manufacture of further capital goods which are further used in the factory of manufacturer - Appellants are entitled to CENVAT credit in respect of the items in question - Final Order No. 70814-70817/2018 dated 07/12/2017 in appellant's own case allowing credit is squarely applicable - impugned order set aside and appeal allowed: CESTAT [para 2]
- Appeal allowed: ALLAHABAD CESTAT
2019-TIOL-1270-HC-MAD-CX
Gemini Iron And Steel Pvt Ltd Vs Assistant Commissioner of GST & CE
CX - During adjudication proceedings for the relevant period, an O-i-O was passed against the petitioner herein, raising duty demand - The petitioner claimed to have not been served a copy of such O-i-O & that a detention notice issued consequently was served to it only - The present writ was filed in challenge of such order and contending that though the petitioner is willing to exercise right of statutory appeal before the Commr.(A) - Nonetheless, the petitioner sought to be exempted from having to pre-deposit 40% of the duty demanded - The petitioner claimed that it is liable to pay only 7.5% of the same.
Held - When an O-i-O was passed, the petitioner is not entitled to challenge the detention notice without challenging such O-i-O - Hence the writ petition is not maintenable - Thus the petitioner is directed to withdraw the present writ and approach the Commissioner(A): HC
- Writ petition dismissed: MADRAS HIGH COURT
2019-TIOL-1269-HC-MUM-CX
Haldex India Ltd Vs CCE & C
CX - The impugned order of Tribunal dismissed the petitioner's appeal before it seeking to take CENVAT Credit in respect of twelve imports made during period January, 2009 to May, 2009 on the basis of xerox copies of triplicate bills of entry issued by its bankers - The impugned order rejects the appeal on the ground that the triplicate copies of bills of entry cannot be the basis for taking CENVAT Credit - In any case, it further proceeds to record that though substitute documents such as these have been accepted in some cases, it is only on the same being duly certified by jurisdictional commissionerate - As assessee before it has not produced such certificate from jurisdictional authority, certifying that due payment of import duty, assessee is not entitled to take the same as CENVAT Credit - Assessee has filed additional affidavit of its authorized signatory and brought on record the fact that jurisdictional committee has certified the import duty paid in respect of 11 imports - The affidavit has annexed the letter dated 25th April, 2019 issued by Assistant Commissioner of Customs certifying the import in respect of eleven bills of entry in support of assessee's case to the effect that the customs duty had been paid on imports under 11 bills of entry during period January, 2009 to May, 2009 as claimed by petitioner - As the impugned order rejected the assessee's appeal only on the assessee not having produced the certificate from jurisdictional authority, permitting substitution of documents, additional affidavit filed by assessee, prima facie, meets the objection of Revenue - This, as the affidavit indicates that they are now in a position to produce certificate issued by jurisdictional authority, certifying that the duty has been paid in respect of subject 11 bills of entry involved in this appeal - It would be appropriate to set aside the impugned order: HC
- Appeal disposed of: BOMBAY HIGH COURT
2019-TIOL-1268-HC-MUM-CX
CGST & CE Vs Twenty First Century Wires Rods Ltd
CX - The appellant invited the attention to an order dated 5th February, 2018 passed by this Court in Central Excise Appeal Nos.24 of 2016 and 28 of 2016 wherein, the Court was informed that an identical issue had been raised before the Apex Court and this Court had adjourned both the appeals sine die - This for awaiting the decision of Supreme Court on appeal filed by the State against the decision of the Gujarat High Court in Indsur Global Limited - It must be pointed out that the aforesaid order dated 5th February, 2018 was not pointed out to the bench which passed an order on 25th April, 2019 - Thus, this Court examined the issue on merits and passed a final order on 25th April, 2019 - As the order dated 25th April, 2019 has already taken a view on the issue raised in these two appeals, therefore, the court is inclined to follow the same - Thus, the present appeal is disposed of: HC
- Appeals dismissed: BOMBAY HIGH COURT
CUSTOMS
2019-TIOL-1267-HC-MUM-CUS
Anirudh Verma Vs UoI
Cus - The gold bars weighing 12 kags were confiscated under Section 111 (b)(d) and (l) of Customs Act, 1962 - Besides, penalty of Rs. 32 lakhs under Section 112 (a) and (b) of the Act was imposed upon each of the petitioner - There is an efficacious alternative remedy available from impugned order dated 9th May, 2017 to the Commissioner (A) - The petitioner's grievance with regard to merits of impugned order including non-granting of cross-examination would be considered by Commissioner (A) and adjudicated upon - It does not warrant interference of this Court in its extraordinary jurisdiction - However, while the petitions dismissed, in case the petitioner does file an appeal before Commissioner (A) within a period of three weeks from today, Commissioner (A) would entertain the appeal on its own merits as the time spent in prosecuting these petitions before this Court has to be excluded - This is on the basis of Apex Court decision in M.P. Steel Corporation 2015-TIOL-89-SC-CUS - The petitioners require to satisfy the other requirements for filing an appeal, including statutory requirements of pre-deposit in terms of Section 129E of the Act: HC
- Petitions disposed of: BOMBAY HIGH COURT
2019-TIOL-1752-CESTAT-MUM
Lynx Express Pvt Ltd Vs CC
Cus - Assessee is aggrieved by forfeiting of security deposit, furnished by them at the time of registration/renewal of their courier licence while imposing penalty in proceedings under section 158 of Customs Act, 1962 with further ban on operation as 'authorized courier' under regulation 14(1) of Courier Import & Export (Clearance) Regulations, 1998 - Revocation of registration and forfeiture of security is permissible under three specified circumstances and after following due process of placing the courier on notice with right to be heard in defence - Furthermore, the detriment is also tentative in that regulation 14 also affords an opportunity to represent to the Chief Commissioner - Furthermore, suspension is an eventuality that is contemplated in Regulation when the grounds for proceeding further calls for investment in time for inquiry and to be ordered when inquiry is underway - The jurisdiction of Tribunal to entertain the appeal is not in question - The Regulations are not framed under any special authority or law but is a procedure notified under general powers vested in section 157 of Customs Act, 1962; the opportunity for representing to the Chief Commissioner of Customs against any penalty does not foreclose recourse to appellate jurisdiction in section 129 of Customs Act, 1962 - The respondent has invoked the power to suspend under regulation 14 of Regulations, 1992 - Implicit in this invoking is lack of prima facie justification for establishing one of the grounds that could lead to revocation of registration, and/or forfeiture of security, as enumerated in said Regulation - A lack at the stage of suspension cannot be filled at the stage of notice without the inquiry mandated in power to suspend - It can only be deduced that the notice, as well as the detriments, have been proceeded with despite this lack - Consequently, the de-registration and forfeiture lack the authority of law - Eternity is accepted only in matters of faith - Yet the respondent has taken it upon himself to resort to banning operation for all time to come which is not a jurisdiction that is permissible to be invoked under Regulations - It is tantamount to interference with exercise of regulation 10 of Regulation, 1988 which is not within the scope of notice issued to the assessee: CESTAT
- Appeal allowed: MUMBAI CESTAT |
