SERVICE TAX

2019-TIOL-1827-CESTAT-MUM

Deogiri Nagari Sahakari Bank Ltd Vs CCE

ST - Appellants had Centralized Registration for providing taxable services under the category of "Banking and Financial Services" and had availed the CENVAT Credit in respect of common input services used for providing taxable and exempted services - appellants had not filed any intimation regarding their option to follow the procedure prescribed in Rule 6(3)((ii) read with sub-rule (3A) of Rule 6 of the CENVAT Credit Rules, 2004, therefore, were required to pay an amount equal to 8% (6% w.e.f 07.07.2009) of the value of exempted services provided by them - appellant submitting that that reversal of proportionate credit subsequently would be sufficient for the purpose of fulfillment of obligation under Rule 6; that they were under bonafide belief that they were entitled to avail whole of the Credit as first time sub rule (3B) to Rule 6 was inserted by Notification No 3/2011-CE (NT) , restricting the Credit availment by Banking and Financial Services providers - that demand made for extended period is not sustainable; that they had paid back the credit availed on other than the 16 specified services along with interest even prior to issue of show cause notice, and hence they had no intention to evade payment of taxes.

Held: Issues raised in the present appeal are identical to those decided by CESTAT in case of UCO Bank = 2014-TIOL-1902-CESTAT-KOL & HDFC Bank Ltd - 2018-TIOL-3516-CESTAT-MUM - Since the issue is no longer res-integra, matter remanded to the adjudicating authority to reconsider the issue of limitation: CESTAT [para 5.2, 5.4, 6.1]

- Matter remanded: MUMBAI CESTAT

2019-TIOL-1826-CESTAT-MUM

Elara Securities India Pvt Ltd Vs ACST

ST - Issue is whether the service tax paid on services received by the Appellant and used in the new office taken on Leave and License basis is eligible to CENVAT Credit - Appellant, after taking possession of the office premises against leave and licence agreement with India Bulls Real Estate Co. Pvt. Ltd, carried out certain civil construction/repair work - Also, they have carried out renovation of the premises as advised by the architecture so as to make optimum use of the space and other necessaries like air conditioners, Fire fighting equipment etc. useful for the employees and as per their requirement - service tax paid by the service providers on these services was taken by them as CENVAT Credit - Case of the department is that the expression "setting up" has been deleted from the definition of input service w.e.f. 1.4.2011, accordingly, various services received by the Appellant cannot be called as 'input service' - appeal to CESTAT.

Held: Tribunal in the case of Ion Exchange (I) Ltd. - 2018-TIOL-752-CESTAT-AHM has held that from a harmonious reading of the inclusive part of the definition and the exc lusion clause mentioned at clause (a) relating to construction service of the definition of 'input service', it is clear that the construction service relating to modernization, renovation and repair of the factory continued to be within the meaning of 'input service' and accordingly, the Service Tax paid on such service is eligible to credit - also, service received in relation to installation of airconditioners, interior work etc. fall within the scope of input service - impugned order is, therefore, set aside and appeal is allowed with consequential relief: CESTAT [para 5 to 7]

- Appeal allowed: MUMBAI CESTAT

2019-TIOL-1825-CESTAT-MUM

Genovate Solutions India Pvt Ltd Vs CCE

ST - CENVAT credit amounting to Rs 3,54,91,292/- is denied to the appellant on the ground that the input service invoices were issued in the addresses of the appellant which was not registered with the department nor the appellant during the relevant period possessed centralized Registration as required under the Relevant Rules.

Held: There is no dispute of the facts that the accounts of all branches are maintained at the appellant's head office and service tax is also paid from the head office - In other words, centralized accounting system has been operated from the Head Office at Mumbai where credit has been availed and utilized in discharging service tax liability from the Head Office - In these circumstances, following the ratio laid down Dashion Ltd.'s case - 2016-TIOL-111-HC-AHM-ST , merely because the Mumbai office has not obtained centralized registration under the Relevant Rules, CENVAT credit availed on the service tax paid on input services which are undisputedly utilized by the appellant in providing the taxable output services cannot be disallowed: CESTAT [para 13, 14]

ST - 'Commercial Training or Coaching Service' - Penalty - Considering that the appellant had paid the entire amount of service tax with interest and does not dispute the liability for the period 10th September 2004 to March 2009, Bench is of the view that penalty under Section 76 for the said period on the liability relating to 'Commercial Coaching or Training Service' is justifiable - But, for the earlier period i.e. 01st July 2003 to 10th September 2004 since the appellant neither intimated the department about the rendering of service and availing exemption involving suppression the fact, accordingly, the demand is sustainable invoking extended period of limitation and penalty is imposable under Section 78 of the Finance Act, 1994: CESTAT [para 15]

ST - The demands relating to 'Management Consultancy Services', 'Intellectual Property Rights Service' and 'Management, Maintenance or Repair Service' are set aside and the same are remanded to the adjudicating authority to reconsider the liability after taking into consideration various submissions advanced by the appellant: CESTAT [para 16]

- Appeal partly allowed: MUMBAI CESTAT

CENTRAL EXCISE

2019-TIOL-1824-CESTAT-MUM

D A Stuart India Pvt Ltd Vs CCGST

CX - CENVAT - Service provider has inadvertently stated the Hyderabad unit address on the invoice in question but Bench has been informed that later on it was corrected by the service provider by putting the Bhiwandi unit address therein - From the records it is apparent that Appellant was effectually the recipient of service and not its Hyderabad Unit - there is no dispute with respect to the receipt of input services, its use, quantum of credit and period - It is settled legal position that any beneficial provision should be interpreted liberally - There is a lapse but on whose part, whether on the part of the service provider or the appellant - Since it is merely procedural lapse due to which substantive benefit of Cenvat Credit cannot be denied to the Appellant - appeal is allowed with consequential relief: CESTAT [para 5, 6]

- Appeal allowed: MUMBAI CESTAT

2019-TIOL-1823-CESTAT-MUM

CCE Vs Indian Smelting And Refining Company Ltd

CX - Issue is whether the value of copper scrap declared by the raw material supplier for job work would be revised at the end of the job-worker - respondent has availed CENVAT Credit of duty paid on scrap by the principal manufacturer and there is no objection raised by the jurisdictional Commissionerate on the value declared by the principal manufacturer - issue is no more res integra and covered by the principles laid down by the Supreme Court in of MDS Switchgear Ltd.'s case - 2008-TIOL-245-SC-CX and Sarvesh Refractories (P) Ltd.'s case - 2007-TIOL-233-SC-CX laying down the principle that value of the raw material declared by the principal manufacturer cannot be questioned in the hands of the receiver unless there is allegation of connivance or collusion between the raw material supplier and receiver of the same is established - in the present case there is no such allegation forthcoming - Also, no proceeding has been initiated against the principal manufacturer who supplied the copper scrap for job-work to the respondent alleging undervaluation of the scrap - in the circumstances, impugned order is upheld and Revenue appeal is dismissed as being devoid of any merit: CESTAT [para 6]

- Appeal dismissed: MUMBAI CESTAT

2019-TIOL-1822-CESTAT-MUM

Man Industries India Ltd Vs CCE & ST

CX - Appellants have manufactured and cleared M.S. pipes and used for supply of water from Narmada rivers to various water treatment plants and from the said water treatment plants to storage facility - Short issue involved is whether the Appellants are eligible to the benefit of Notification No. 6/2002-CE and Notification No.8/2004-CE for the pipes manufactured and cleared to M/s Subhash Projects & Marketing Ltd and M/s Indian Humes Pipe Corporation Ltd. for its use beyond the “first storage facility”.

Held: It is the Department which has actually supplied the words 'first' before the expression, "storage facilities" trying to deny the exemption, whereas the Notification as interpreted on the basis of the language used therein, cannot restrict the exemption being extended to pipes used for delivering water upto subsequent storage points which are part of the water treatment project - Following the Tribunal decision in M/s Electro Steel Castings Ltd.- 2009-TIOL-1880-CESTAT-KOL , impugned order set aside and appeal allowed with consequential relief: CESTAT [para 6, 7]

- Appeal allowed: MUMBAI CESTAT

CUSTOMS

2019-TIOL-1821-CESTAT-MUM

Satelec India Pvt Ltd Vs CC

Cus - The assessee-company imported X-Mind DC 230VCL 800SAT and filed bills of entry for assessment purposes - The assessee paid CVD @ 8% as per Notfn No 02/2006-CE - It later realised that its assessment must be done under the amended Notfn No 58/2008-CE wherein the goods falling under CTH 9022 attracted 4% CVD - As the assessment was done as per the former Notification, the assessee approached the Commr.(A) - The assessee also filed bill of entry without claiming benefit under Notfn No 20/2006-CE whereunder SAD applicable on goods required for medical, surgical, dental & veterinary use was nil - However, on assessment 4% SAD had been charged - The Commr.(A) dismissed the appeals in respect of both issues, triggering the present appeals.

Held: In both cases, the goods were imported by the assessee after issuing of the amending Notifications - Upon assessment, the AO did not extend the duty benefit provided in both notifications - Hence, the assessee appropriately filed the appeal before the Commr.(A) for extending benefit under these notifications - It is not in dispute that the concessional rate of duty under these notifications was not subject to fulfilment of any condition by the importer - Since the exemption has been provided for the goods falling under CTH 9022, the benefit should also be available to the assessee - Thus the O-i-As in question merit being quashed: CESTAT

- Assessee's appeals allowed: MUMBAI CESTAT

2019-TIOL-1820-CESTAT-MUM

CC Vs Videocon Industries Ltd

Cus - The assessee-company imported split ACs during the relevant period, while filing into-bond bill of entry for purpose of CVD - While the goods were in the warehouse, the assessee re-affixed the MRP at a slightly lower figure & then cleared the goods by filing ex-bond bill of entry - The Assistant Commissioner directed provisional assessment as the MRP of the goods could not be ascertained at the time of their clearance from the warehouse - Later, the Dy Commr. revised the MRP as it originally stood & raised demand for differential amount of duty - On appeal, the Commr.(A) quashed such findings - Hence the present appeal by the Revenue.

Held: The Adjudicating Authority while finalising the assessment did not accept the reduced MRP on grounds that no evidence is placed in its support - It is seen that before the Commr.(A), the assessee produced certain sales invoices which the former verified & accepted - As such evidences were not examined at the original adjudication stage, it is fit case for remand to such effect: CESTAT

- Revenue's appeal allowed: MUMBAI CESTAT