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SERVICE TAX
2019-TIOL-1890-CESTAT-BANG
New Mangalore Port Trust Vs CE & ST
ST - The assessee is providing 'Port Services', 'Renting out of Immovable Property Services' and 'Mandap Keeper Services' and are availing CENVAT credit facility under CCR, 2004 - During audit, it was noticed that they have availed CENVAT credit on 'Rent a Cab' and on 'Insurance of Vehicles' which are not eligible - Further, they have availed CENVAT credit on certain services which were used/consumed in their facilities outside the registered premises such as NMPT colony and school - Therefore, a SCN was issued to assessee demanding for CENVAT credit along with interest and imposition of penalty - The assessee has paid CENVAT and interest towards Rent-a-Cab service and other services before the issue of SCN and the same has been appropriated in the adjudication order - Assessee has not contested the payment of CENVAT towards Rent-a-Cab service and interest thereon and has only prayed that under Section 73(3) penalty should be dropped - Once the assessee has paid CENVAT and interest towards Rent-a-Cab service and other services, the Revenue should not have issued the SCN as there was no suppression of fact with intent to evade payment of Service Tax - Therefore, the imposition of penalty is set aside equal to the CENVAT credit along with interest which is paid before the issue of SCN - As far as other input services are concerned, adjudicating authority has only considered three service viz. Works Contract, Electrical Works and Hiring of Tugs for decision on their eligibility for CENVAT credit - The original authority have not considered the material furnished by assessee to prove that the said services fall in the definition of 'input service' - With regard to Pest Control service, Advertising service and Event Management service, Electrical Works, Erection, Commissioning and Installation of DG Set service, there is no finding by both the authorities - The Commissioner (A) has merely confirmed the O-I-O without considering the submissions of assessee - In view of all these, case remanded to the original authority for passing a de novo order with regard to all the services except Rent-a-Cab service which is not being contested and CENVAT has been paid by assessee - Consequently, the appeal is allowed by way of remand: CESTAT
- Matter remanded : BANGALORE CESTAT
2019-TIOL-1889-CESTAT-MAD
P K Kutty Vs CCE & ST
ST - The assessee is a dealer and distribution agent for M/s.Amway India Enterprises - They were issued with a SCN demanding service tax on 'commission received' from M/s.Amway under the category of 'BAS' - The assessee is contesting the penalty imposed under section 78 only - It is argued by assessee that the issue whether the activity of a distribution agent for M/s.Amway India Enterprises would be subject to levy of service tax was contentious and several litigations were pending - The issue was interpretational that the assessee has failed to discharge service tax only because they entertained a bona fide doubt as to taxable nature of the activity - Since the assessee has paid entire demand along with interest and there being no evidence for suppression of facts, the penalty imposed under section 78 is unwarranted - The impugned order is modified to the extent of setting aside the penalty imposed under section 78 without disturbing the demand or interest thereon: CESTAT
-Appeal partly allowed : CHENNAI CESTAT
CENTRAL EXCISE
2019-TIOL-1888-CESTAT-CHD
Great India Steel Fabricators Vs CCE
CX - The assessee is in appeal against impugned orders wherein the refund claim under Rule 5 of CCR, 2004 was rejected on the ground that the assessee has not physically exported the goods and it is a case of deemed export - In the assessees' own case for earlier period, this Tribunal vide order dt.10.8.2018 has denied refund claim on account of deemed export under Rule 5 of CCR, 2004 - Therefore, following the precedent decision of Tribunal, the refund claim filed by assessee is rejected: CESTAT
-Appeals dismissed : CHANDIGARH CESTAT
2019-TIOL-1887-CESTAT-MUM
Asian Rubber Vs CCE
CX - The assessee-company manufactured Rubber Gaskets and Rubber Washers of various types falling under Heading 4016.19 and 4016.91 of the CETA 1985 - The assessee availed SSI exemption - Based on investigation by Preventive Unit, the Revenue served an SCN seeking exclusion from the benefit of the Notification, the value of those branded products manufactured by the assessee - On adjudication, the proposals of the SCN were confirmed - Duty demand was raised along with equivalent amount of penalty u/s 11AC along with penalty u/r 173Q - On appeal, the Commr.(A) upheld such findings - Hence the assessee's appeal. Held: A plain reading of the Explanation to Condition V of the Notfn No 8/98-CE reveals that a name or mark such as symbol, monogram, label, signature or invented words so as to indicate the connection in the course of trade between such goods and some person using such name would be considered as a brand name or trade name - In the present case, the assessee manufactured parts of pressure cookers of various brands for the original equipment manufacturers - On the rubber gaskets manufactured, the assessee would mention the name or initials of the original equipment manufacturers - Therefore, the gaskets manufactured by the assessee with identification marks certainly indicate the connection of the original equipment manufacturers with particular trade of pressure cookers - Hence the conclusions drawn by the Commr.(A) are correct - Besides, it is settled principle of law that if there is no ambiguity in the wordings of the notification, the same must be construed strictly - However, though penalty is imposed u/s 11AC of CEA 1944, the assessee was not extended the benefit of discharging 25% penalty subject to conditions laid down therein - Penalty u/r 173Q is quashed: CESTAT
- Assessee's appeal partly allowed :MUMBAI CESTAT
2019-TIOL-1886-CESTAT-MUM
Ashwini Pannalal Agarwal Vs CCE
CX - The assessee manufactures MS Ingots falling under Chapter 72 of the CETA - The Revenue received intelligence of irregular availment of Cenvat credit by the assessee, without actual receipt of any goods, with intent to evade payment of duty and that the assessee clandestinely removed finished goods - The DGCEI officials conducted search & seizure operations at the assessee's factory premises and verified the physical stock of raw materials and finished products - Shortage of some quantity of raw materials was found - SCNs were issued proposing to raise duty demand - On adjudication, the duty demands were confirmed with interest & equivalent penalty - Penalty was also imposed on the second-appellant company - Hence the present appeals. Held: The assessee admitted to having availed Cenvat credit on 2500 MT of raw material, based on invoices alone and without actual receipt of goods - No plausible explanation was offered for the same, leading to the plausible conclusion that the motive behind such activity was to evade payment of duty - It is a settled principle of law that an admission does not need any further proof - The only dispute here pertains to the raw material found to be short - While the assessee attributed such loss to pilferage, no police report was filed or any evidence produced to prove the same - Besides, the valuation of the raw material was admitted by the assessee - In absence of any rebuttal evidence, as per Rule 9(5) of CCR 2004, the burden of proof is on the assessee to establish the admissibility for Cenvat credit - Hence the O-i-A in challenge warrants no interference with: CESTAT
- Assessee's appeal allowed :MUMBAI CESTAT
CUSTOMS
NOTIFICATION
Trade Notice 22
Review of the Foreign Trade Policy-inviting suggestions regarding
dgft19pn015
Amendments in Appendix 4J of Hand Book of Procedures 2015-20 CASE LAW
2019-TIOL-1387-HC-MAD-CUS
S Varadharajan Vs CC
Cus - The assessee is engaged in manufacture of copper products - Its finished goods are exported - They had been issued advance licenses for import of copper concentrate - In the year 2010, the Central Excise Authorities initiated investigation against the Company on the presumption that it had violated the conditions of the advance licenses - A draft SCN has been prepared by the Central Excise authorities and forwarded to the office of the first respondent - Customs authorities, on perusal of draft SCN, did not agree with the allegation of misuse of advance license - However, the assessee is issued with the SCN by the first respondent - The assessee seeks to collect some documents in possession of first respondent to support their case, even though those documents are not relied upon documents in SCN - If at all the assessee want to get those documents from the first respondent, they could have very well filed one more RTI application and pursue the same or they could have pursued by way of filing an appeal before the first appellate authority under the RTI Act, if their original application filed for furnishing certain documents are not furnished in full - This aspect has been considered by the Tribunal which rightly rejected such request with which Court found no infirmity - The assessee submitted that an RTI application filed for furnishing documents and that the same is pending - If that be the case, it is for the assessee to work out their remedy under the said application in a manner known to law, as this Court at this stage, is not expressing any view on that application, at it would go beyond the scope and jurisdiction of the present appeals: HC
- Appeals dismissed : MADRAS HIGH COURT |
