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SERVICE TAX
2019-TIOL-1882-CESTAT-MAD
CCE & ST Vs L Balaji
ST - Appellants are cricket players representing various Teams owned by various franchisees in the IPL - Revenue contention is that the assessee's were providing Business Support Services upto 30.06.2010 and Business Promotion Services for the subsequent periods - Commissioner(A) set aside that portion of the demand pertaining to the period upto 30.06.2010 raised under BSS and upheld the balance service tax demand for and from 01.07.2010 onwards under Business Promotion Services - appeal to CESTAT by assessee as well as Revenue.
Held: Categorization of the same set of activities under two different services for two different periods is not permissible - Having taxed under BSS, the Revenue should not have changed its stand for a different period (and contended that the services are taxable under BPS) when there is no change in the nature of services alleged - decision of the Kolkata High Court in the case of Sourav Ganguly (2016-TIOL-1283-HC-KOL-ST) is required to be followed, there exists employer-employee relationship, the players are paid remuneration and, therefore, there is no service which is liable to be brought under the tax net for both the periods under the alleged heads - accordingly, the department appeals are dismissed and the assessee's appeals are allowed: CESTAT [para 7.3, 7.4, 8]
ST - Prize money was not given by the franchisee, rather it is the money received from BCCI directly for winning and not towards any services - Hence, the prize money could never be included in the taxable value - in any case, since Bench has held that there was no service at all, the above question is just academic: CESTAT [para 7.5]
- Assessee appeals allowed/Revenue appeals dismissed: CHENNAI CESTAT
2019-TIOL-1864-CESTAT-MAD
Sri Kalki Enterprises Vs Commissioner of GST & CE
ST - The assessee is engaged in manpower supply service - During audit, it was noticed that assessee had short-paid service tax for the period July 2008 to September 2009 and also noticed that it had paid service tax belatedly for the period from April 2006 to June 2008 - On being pointed out, the assessee paid the service tax along with interest on various dates - They had also not filed the ST-3 returns during the said periods - SCNs were issued proposing to demand service tax along with interest and also for imposing penalties - The assessee is contesting the penalties imposed only - The adjudicating authority has imposed a penalty under section 76 and under section 78 of FA, 1994 - The assessee has furnished documents to argue that there was only delay in payment of service tax and there was no act of suppression of facts with intention to evade payment of service tax - On perusal of documents such as the list of sundry debtors, it is seen that there was huge amount pending as receivables - So also they had to meet expenses for salary, accident compensation of employees provided under manpower supply service - The department does not have a case that any of the transactions were unaccounted or that they had been indulging in a parallel accounting - It is commonly understood that the employees supplied through manpower supply service have to be given the salaries within due time - If the service receivers delay the payment, it would cause much hardship to the service provider as they have to make the statutory payments such EPF, ESI to the Government - Therefore, assessee has put forward reasonable cause for not paying the service tax within due time and is a fit case for invoking Section 80 of Finance Act for setting aside the penalties - The impugned order is modified to the extent of setting aside the penalties imposed under sections 76 as well as 78 in these appeals: CESTAT
-Appeals partly allowed: CHENNAI CESTAT
2019-TIOL-1863-CESTAT-ALL
M S Engineers India Pvt Ltd Vs CC & CE
ST - The assessee was registered for providing construction services at Noida and they were also providing construction services at various other places - The Service Tax demand confirmed in respect of entire construction activities done by assessee at various places - There is neither any observations by Adjudicating Authority nor any findings to the effect that registration at Noida was a Centralized registration, covering all the activities being provided by them at other place - Even in terms of the order relied upon by Adjudicating Authority, it is the Commissioner in whose territorial jurisdiction, the registered office of the service provider is located, has the jurisdiction to decide - It is the assessee's case that Noida office is not their registered office and the registration granted to them was only for the services to be provided from Noida - In the absence of any finding to the effect that Noida office was registered office, no merits found in the findings of Adjudicating Authority - As such, matter remanded to Adjudicating Authority for fresh decision on all the points including the point of jurisdiction, after verifying the factual positions: CESTAT
-Matter remanded: ALLAHABAD CESTAT
CENTRAL EXCISE
2019-TIOL-1867-CESTAT-KOL
Arunachal Wood Based And Chemical Industries Pvt Ltd Vs CCE & ST
CX - The assessee is engaged in production and clearance of Wood and articles of Wood and availing exemption under Notfn 8/2003 as amended being a SSI Unit - The SCN was issued since the assessee crossed full exemption of Rs. 150 Lakhs in the month of September, 2011 and it is also alleged that they failed to pay duty correctly for the month of September, October, November and December, 2011 - Further it was also observed that there was default in payment of duty beyond 30 days from the due dates of payment which resulted in their forfeiture of the facility to pay duty on monthly basis and in terms of Rule 8(3A) of CER, 2002 - It is found from appeal paper book that the assessee had paid the amount of Rs. 1,90,000/- along with interest on 24.11.2012 - The jurisdictional High Court at Calcutta, in the case of Goyal MG Gases Pvt. Ltd. has held the portion of rule 8(3A) as ultra vires - By following the decision of jurisdictional High Court, there is no bar in making use of accumulated Cenvat Credit in making payment of Central Excise Duty even during the default period - In the result, the impugned Order is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2019-TIOL-1866-CESTAT-AHM
Ashima Ltd Vs CCE & ST
CX - The issue involved is that from which date the assessee is entitled for interest on refund claim sanctioned to them - The assessee during the investigation of demand case deposited an amount under protest, thereafter, a SCN was issued wherein the demand of Central Excise duty and Customs duty was raised - The refund application filed by assessee was admittedly filed on 14.07.1999 only, thereafter, the cause of action for refund arises - Since an amount i.e. 60 Lacs minus adjudged due as per O-I-O dated 21.04.1999 become refundable and the same should have been sanctioned within 3 months from date of filing of application i.e. 14.07.1999 - Accordingly, on such balance amount the interest is payable from 3 months of date of filing the refund i.e. 14.07.1999 - As regard remaining amount of refund that has arisen only from the date of Tribunal order dated 12.06.2002 by which the demand confirmed by original order was set aside, that means the amount of duty which was set aside by Tribunal become refundable from 3 months of Tribunal order dated 12.06.2002 - Accordingly, on such amount interest is payable from 3 months of date of Tribunal order - As regard the submission that it is a deposit made during investigation which was otherwise not required, the interest is payable from the date of deposit, Tribunal do not agree with this submission for the reason that the assessee has suo-moto deposited an amount of Rs. 60 Lacs and admittedly the refund application for same was filed on 14.07.1999, therefore, since the assessee themselves have not claimed the refund earlier, there is no question of sanction of the same and consequential interest from the date of deposit - The Supreme Court in case of Ranbaxy Laboratories Ltd - 2011-TIOL-105-SC-CX , clearly held that in case of refund, interest is payable from 3 months of the date of filing of application - The period for interest has to be reckoned not only with reference to filing of refund application but also as per the provision of explanation (B)(ec) of section 11B, therefore, interest is payable in accordance with said provision: CESTAT
-Appeal partly allowed: AHMEDABAD CESTAT
2019-TIOL-1865-CESTAT-MAD
Commissioner of GST & CE Vs ITC Ltd
CX - The assessee is engaged in manufacture of packaging and printing products - They were availing CENVAT credit on Outward Courier, CHA and C&F Agent Services - A SCN was issued to assessee alleging that the credit availed on these services is not eligible - The said amount involves both inward transportation of raw materials as well as goods sent for job works - The definition does not put any restriction with regard to inward transportation of raw materials and so also in the case of goods sent for job work - The credit availed on service tax paid for such charges would thus be eligible - However, the amount has to be quantified - The Apex Court in case of M/s. Ultratech Cement Ltd. - 2018-TIOL-457-SC-CX has held that after the amendment, the credit availed on outward transportation beyond the place of removal would not be eligible w.e.f. 01.04.2008 - The Tribunal in case of M/s. Mahle Engine Components India Pvt. Ltd. has, after looking into the Board Circular dated 08.06.2018, remanded the batch of appeals directing the adjudicating authority to determine the place of removal and thereafter decide the eligibility of credit - Assessee has pointed out that the period involved is from March 2007 to February 2010 - The credit availed up to 01.04.2008 would therefore be eligible to them - Thus, the eligibility of credit in respect of courier services needs re-consideration both with regard to quantification as well as eligibility for the period after 01.04.2008 - The said issue is remanded to adjudicating authority who shall relook into the matter: CESTAT
-Matter remanded: CHENNAI CESTAT
CUSTOMS
CIRCULAR
dgft18cir025
Clarification on Jurisdictional RA/RA concerned for SEIS-Para 3.06 (c) of Handbook of Procedures CASE LAW
2019-TIOL-1862-CESTAT-MUM
Advance Laminates Pvt Ltd Vs CC
Cus - The issue which has come up to the Tribunal stage in second round of litigation is refusal of Commissioner (A) to grant benefits of Notfn 71/2009-Cus. to the assessee exempting Safe Guard duty on import of aluminium foil - Admittedly notfn 71/2009 exempted colour laminated aluminium foil from Safe Guard duty w.e.f. 23-03-2009 and "assessee's" import was made and goods were cleared in between the two dates but none of the documents produced before Customs Authorities for customs clearance reveal the description of item was colour coated aluminium foil - There is no such occasion at the time of clearance to draw representative sample, as there was no dispute concerning application of Safe Guard duty on imported goods which occurred due to subsequent notification with retrospective effect - Assessee also produced a sample foil before this Tribunal and as found from the order of Commissioner (A), sample piece was also produced before him during hearing of appeal but that by itself cannot establish links between imported goods and sample produced by assessee, besides the fact that production of additional evidence/Exhibits before Tribunal is subjected to Rule 23 of CESTAT procedure rule that has not been followed by assessee - Assessee also has not sought permission from this Tribunal, as described in Rule 23 of CESTAT procedure Rules, to produce such document at the appeal stage nor was asked by Tribunal to produce the same, for which it could not be taken as a piece of evidence - Further the certificate does not bear any date of issue to substantiate that it was obtained by assessee before or during hearing of appeal by Commissioner (A) - More importantly, the said certificate does not reveal that "colour coated aluminium foil" were shipped to the assessee since shipment category mentioned in certificate is "roll aluminium foil/coil colour and polyester (PE) coated" - The use of "slash" between two categories of goods brings confusion as to which of those two categories was imported vide invoice under reference - More importantly, the annexed document to such certificate containing description of goods indicated that it was of "silver colour" which is usually the colour of normal aluminium foil - Assessee failed to substantiate with cogent evidence that it had imported "colour coated laminated aluminium foils" to make it eligible for exemption from Safe Guard duty - The impugned order is upheld: CESTAT
-Appeal dismissed: MUMBAI CESTAT |
