|
SERVICE TAX
CCGST Vs Citicorp Services India Pvt Ltd
ST - The assessee-company provides taxable services falling under the heading of Banking & Other Financial Services - During the relevant period, the assessee filed 15 applications claiming refund of service tax paid on input services used for providing output service which was exported - Such applications were filed u/r 5 of the CCR 2004 r/w Notfn No 27/2012-CE(NT) - On adjudication, the refund was partly sanctioned - On appeal, the Commr.(A) held that the refund claimed were filed within one year from the date of receipt of consideration in forex & so was within limitation - The Commr.(A) also found the assessee to be eligible for credit on Real Estate Agent Service - Hence the present appeals were filed by the Revenue.
Held - Limitation - The issue stands settled by the Larger Bench of the Tribunal in C.C.E., CUS. & S.T., Bengaluru Vs. Span Infotech (India) Pvt. Ltd which although was delivered in context of refund of service tax under Notfn No 27/2012-CE(NT), but the concept of relevant date must equally be applicable to rebate claims - Hence the Revenue's arguments in respect of limitation period of the refund claims do not hold much water: CESTAT
Held - Export of Services - The FEMA Regulations and notifications issued thereunder recognise the receipt of consideration for exports in Indian INR currency from the overseas bank account as receipt of forex - Hence the authorized dealer, namely the receiving branch issues the FIRC, even when the currency is received in INR from overseas accounts - Hence the assessee is eligible for rebate in respect of export of services for which the FIRCs were issued showing receipt of INR currency: CESTAT
Held - Perusal of samples of FIRCs reveals that the assessee received the entire consideration as expressed in the foreign currency denomination, in the invoices and the difference in the receipt is only due to forex rate fluctuation - The same is the internal accounting entry of forex gain or loss reflected by the assessee - Hence there is no short-receipt of consideration as alleged by the Revenue: CESTAT
Held - Rebate on WCS - As the services were used for maintenance & repair of UPS systems and ACs rather than for construction of any civil structure, such works contract service merits considerations as input service for claiming rebate: CESTAT
- Revenue's appeals dismissed: MUMBAI CESTAT
CENTRAL EXCISE
Elango Industries Ltd Vs CGST & CE
CX - The assessee is engaged in manufacture of MS ingots - Based on intelligence that they were evading payment of central excise duty by suppression of production and clandestine removal of MS ingots, the officers of DGAE conducted search operations in assessee's factory and recovered documents under mahazar - SCN for the period March 1995 to August 1996 was issued to assessee being the duty on finished products removed clandestinely and Rs.18,93,298/- being the wrongly availed MODVAT credit - The allegations are two-fold - Firstly, that the assessee has purchased unaccounted raw materials and also availed fraudulent MODVAT credit - Secondly, that the assessee has clandestinely cleared finished products (MS Ingots) without payment of duty to the tune of Rs.24,13,918/- - The matter had earlier reached the Tribunal and vide Final Order dated 7.8.2008, the Tribunal had remanded the matter for fresh adjudication - However, while analyzing the case at that stage, it was observed by Tribunal that the department has not filed any appeal against the earlier order passed by Commissioner on the issue of dropping the penalties on traders / suppliers and transporters and therefore no penalty can be imposed on such persons in denovo adjudication - The main evidence is the documents recovered from premises of assessee, the document recovered from Rajarathina Transport, electricity consumption details and statements recorded - The other evidence is small spiral note book recovered from assessee which is alleged to have maintained by Shri T.K. Renganathan, GM of the company - These contained details of clearances - The allegation is that assessee cleared 1752.34 MTs clandestinely - Such minor differences in quantity in few instances are not sufficient to prove clandestine clearance of huge quantity of MS Ingots - Apart from some katcha slips and private documents, department has not been able to prove the correlation of clearance of such huge quantity of finished goods with the stock/account of the buyers - Though one to one correlation may not be possible, a probable case has to be made out which is totally lacking - On physical verification of stock, no discrepancy with regard to raw materials has been noted by department - Even though statements of various traders were taken, the stock as recorded in the RG-I register and that was lying in the factory did not show any difference - The other evidence relied is with regard to the cash deposits made in the account of Shri Prem Kumar, who is the director of the company - The amounts in his Karur Vysya Bank account has been explained by him stating that he had other business of construction activities and amounts are with regard to such business - The department has rejected and not accepted this explanation - No verification has been done in this regard - Therefore, merely because there are certain cash deposits in the account of director of company, it cannot be concluded that these are amounts received from sale of clandestinely removed finished products - Therefore, department has failed to establish the allegation that the assessee availed fraudulent MODVAT credit - The demand on this count cannot sustain - Consequently, the charges against other assessees also cannot sustain - In the result, the impugned order is set aside: CESTAT
- Appeals allowed: CHENNAI CESTAT
Fowler Westrup India Pvt Ltd Vs CCE, C & ST
CX - The issue involved is classification of "galvanized silo storage systems" manufactured by assessee - The assessee is contending that the goods are rightly classifiable under subheading 8437 1000 of Schedule to CETA, 1985 as "machinery used in milling industry" - The Revenue, on the other hand, has taken the stand that the goods are classifiable under heading 9406 0099 as "prefabricated building used for storage" - The two competing Central Excise Tariff headings for the classification of goods manufactured by assessee are 8437 1000 as well as 9406 0099 - The case was remanded in last round of litigation to Commissioner with certain directions - The adjudicating authority, while passing the order in de novo proceedings does not appear to have complied with the directions of Tribunal - While examining the issue of classification keeping in view the directions of Tribunal, he has proceeded on the assumption that the assessee has conceded the classification of products under CETH 9406 0093 - The claims that classification has been made under 8437 by certain other manufacturers of similar goods also appear to have been brushed aside by the adjudicating authority - All the impugned orders are set aside and matter remanded to the adjudicating authority for a de novo consideration and after compliance of the directions already given by Tribunal vide Final Order dated 13.10.2014 - The assessee also submits that the disputes for period subsequent to December 2014 are also pending adjudication before the same adjudicating authority - The adjudicating authority is directed to take up adjudication of all the cases in a consolidated manner on a priority basis to be completed within a period of three months: CESTAT
- Matter remanded: BANGALORE CESTAT
CUSTOMS
NOTIFICATION
ctariffadd19_025
Anti-dumping duty on Ductile Iron Piples - Period extended up to Oct, 2019
CASE LAWS
2019-TIOL-1795-CESTAT-MUM
Accord Global Express Pvt Ltd Vs CC
Cus - All assessees challenge the penalties imposed on them under section 112 and section 114AA of Customs Act, 1962 - The detriments that were visited upon assessee was the consequence of interception of a package received from Dubai at EICI Courier Terminal of International Airport Mumbai and though described in courier bill of entry as 'kaftan sample', was found to be articles of clothing laced with gold beads - The consignment, booked by one Mohammed Athif, was intended for delivery to one Aayazuddin Shaikh of Mumbai for which documentation was filed in the name of M/s Poonam Courier Pvt Ltd - That the courier route was mis-utilized for smuggling of gold is not in dispute - That M/s Poonam Courier Pvt Ltd had undertaken the task of clearance of impugned package and that M/s Accord Global Express Pvt Ltd was associated with the handling of the package are also not in dispute - It is only their knowledge of the contents of the package, connivance in the modus and intentional contravention of Regulations that are - It is ironical that a proceeding for imposition of penalties under section 112 and section 114AA of Customs Act, 1962 has travelled beyond the ingredients mandating such penalties to render a finding on adherence to obligations and requirements under Courier Imports and Exports (Clearance) Regulations, 1998 which, contrary to a validation in accord with prescriptions of section 112 and 114AA of Customs Act, 1962, are entirely outside the jurisdiction of original authority and the first appellate authority - Indeed, note cannot but be taken of the categorical finding by original authority that the transgression of M/s Poonam Courier Pvt Ltd was a manifestation of folly rather than deliberate connivance with the smuggling - Note is also taken of absence of evidence that would justify the finding of deliberate involvement on the part of various noticees - Admittedly, the statements are bereft of such indictment - The lower authorities appear to have considered the notice which the assessee were placed on to be sufficient for arriving at the conclusions they did and as sufficient discharge of burden of responsibility for invoking of such detrimental consequence - Considering the lack of any evidence other than statements that are also not inculpatory, the penalties under section 112 and section 114AA are not sustainable - The penalties imposed against assessee will not sustain: CESTAT
- Appeals allowed: MUMBAI CESTAT |
