SERVICE TAX

2019-TIOL-1993-CESTAT-BANG

Tractor And Farm Equipment Ltd Vs CCT

ST - The assessee-company provides services such as transport of goods by road, GTA service, BAS & Consulting Engineer Service - The assessee filed a refund claim in respect of excess service tax paid on GTA service during the relevant month - On adjudication, the major portion of the refund was sanctioned while the remaining sum was adjusted against refund payable in respect of delayed payment of tax - The Department filed an appeal against such order before the Commr.(A) and the same was allowed - Hence the present appeal by the assessee.

Held: The Commr.(A) allowed the Revenue's appeal by relying on the Apex Court's decision in Flock (India) Pvt. Ltd. and Priya Blue Industries Ltd. Vs. Commissioner - The assessee's counsel claimed that such cases are inapplicable in the present case since there is self-assessment involved - It is also claimed that refund cannot be rejected solely because an appeal has not been filed against the self-assessment - Considering the Tribunal's decision in Premier Agencies Vs. CCE, Nagpur and Gimatex Industries Pvt. Ltd. Vs. CCE, Nagpur the O-i-A in challenge is unsustainable and merits being quashed: CESTAT

- Assessee's appeal allowed: BANGALORE CESTAT

Port Officer Vs CC

ST - The assessee is an office of Gujarat Maritime Board - They are engaged in providing services, namely, Port Services and hold valid service tax registration under Section 69 of Finance Act - The assessee was collecting charges like beaching, wharfage charges, ship breaking, landing and shipping, wireless telephone and anchorage charges and paid service tax on the said amount - The assessee however did not pay service tax on wharfage charges, ship breaking charges in respect of Less Displacement Tonnage (LDT) - From the nature of amount collected by assessee, it is clear that the said amount relates to compensation paid by ship breaker on account of failing to fulfill the contracted LDT - In these circumstances, it cannot be said that the said charges related to provision of any service - Prior to 1.7.2003 the levy under the head of Port Service was limited to the services provided in Major Ports - None of the ports administered by Gujarat Maritime Board are major ports - There cannot be any levy under the head of Port Service in respect of services allegedly provided on minor ports prior to 01.07.2003 - Thus, on both the counts, the demand cannot be sustained: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

2019-TIOL-1991-CESTAT-ALL

CCE & ST Vs Shiv Shanker Electricals And Contractors

ST - Being aggrieved with the order passed by Commissioner vide which he has dropped the demand in respect of activities of Construction undertaken by assessee for the construction of sub-stations for transmission of electricity, Revenue has filed the present appeal - The Adjudicating Authority has observed that all such activities was in connection with the transmission of electricity, which is exempted by way of Notfn 11/2010-ST - Revenue in the memo of appeal has reiterated the same stand that since the substations are constructed by assessee, they are liable to pay service tax under Construction services - The various grounds of appeal raised by Revenue are silent about the declaration of law by the precedent decision of the Tribunal or their applicability to the facts of the present case - Inasmuch as the various precedent decisions discussed by the Adjudicating Authority covers the disputed issue in favour of the assessee and in the absence of any rebuttal by the Revenue, no reasons found to take a different view than the one taken by Adjudicating Authority - Accordingly, Revenues appeal is rejected being lacking on merits: CESTAT

- Appeal rejected: ALLAHABAD CESTAT

CENTRAL EXCISE

2019-TIOL-1485-HC-MUM-CX

Shree Pushkar Chemical And Fertilizers Ltd Vs UoI

CX - The petitioner challenges the orders dated 31st October 2013 and 23rd March 2015 passed by Assistant Commissioner under CEA, 1944 - The challenge to the aforesaid two impugned orders in original have been made, as consequent to the impugned orders, the Central Government under Section 11C of the Act has issued notfn 4 of 2016 C.E. (N.T.) - Indisputably, no fault can be found with the impugned orders passed by Assistant Commissioner or orders of Commissioner (A) dismissing the petitioner's appeals - Prima facie, the Revenue cannot recover the amounts which have been confirmed by two impugned orders - However, as yet no recovery proceedings have been taken against the respondent consequent to the two impugned orders and therefore, at this stage, the present petition is premature - In case, the Revenue seeks to recover demands confirmed by two impugned orders of Assistant Commissioner of Central Excise, in the face of notfn 4 of 2016 C.E.(N.T.) issued under Section 11C of the Act that it it would be open to the petitioner to challenge the same - The petition is not justified as there is no action taken by the Revenue in the face of notification issued under Section 11C of the Act - It is clarified that court have not expressed any opinion on the merits of recovery notice in the face of Section 11C Notification - This for the reason, it does not arise in the present facts: HC

- Petition disposed of: BOMBAY HIGH COURT

2019-TIOL-1990-CESTAT-ALL

RRK Polymers Pvt Ltd Vs CCGST

CX - The assessee is engaged in manufacture of HDPE Woven Fabric, HDPE Woven Fabric Laminated Paper, Laminated Bags & Corrugated Boxes - Their factory was visited by Central Excise Officers who conducted various checks and verifications - As a result unaccounted final products as also raw materials were seized - The Appellate Authority has simplicitorily observed that there was an intention on the part of assessee to remove the goods in question without payment of duty - He has neither referred to any evidence on record nor has established such an intention on the part of assessee - He has also not denied that the assessee were working under the small scale exemption Notification - In this scenario, confirmation of demand of duty or confiscation of the goods and imposition of penalties was neither justified nor warranted - However, the assessee is duty bound to enter such goods in their record to show their clearances on the basis of documents issued by them - The impugned order is set aside: CESTAT

- Appeal allowed: ALLAHABAD CESTAT

2019-TIOL-1989-CESTAT-MAD

Ruchi Soya Industries Ltd Vs CGST & CE

CX - The assessee is engaged in manufacture of Refined Palmolien, Refined Palm Oil, Vansapathi and Acid Oil - During audit, it was noticed that assessee had availed Cenvat credit on high quality RBD Palm Stearin procured by them - The department was of the view that the process does not amount to manufacture - When the assessee has discharged excise duty on the final product, the credit cannot be disallowed on the inputs alleging that the process does not amount to manufacture - The department ought to have intimated the assessee before discharge of excise duty that the process does not amount to manufacture and that they need not pay excise duty - After discharging the excise duty, the department cannot disallow the credit - Further the payment of duty on the inputs is also not in dispute - The issue stands settled by the decision in case of M/s. Vishal Precision Steel Tubes & Strips Pvt. Ltd. - 2017-TIOL-613-HC-KAR-CX - Following the said decision, disallowance of credit is unjustified, same is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

CUSTOMS

2019-TIOL-1484-HC-AHM-CUS

Inox India Pvt Ltd Vs UoI

Cus - The petition challenges the denial of refund of Drawback, Interest on Drawback and Refund of CVD, under their re-export, even when the same is long due and pending to assessee and they have exhausted every remedy under Law till date, to claim the same and which is otherwise clearly admissible to petitioner - The authority concerned should undertake the necessary process of sanctioning and taking the final decision with regard to the ground of refund of interest on CVD as well as on drawback, at the earliest - The respondent No.3 is directed to complete the process and take an appropriate decision in this regard within a period of four weeks: HC

- Writ application disposed of: GUJARAT HIGH COURT

2019-TIOL-1988-CESTAT-MUM

Semco Electric Pvt Ltd Vs CC & CE

Cus - The assessee-company is a 100% EoU - It imported Die Casting machine after availing benefit of Customs duty exemption under Notfn No 53/97-Cus - This machine was installed in the assessee's factory & was used to manufacture electric wiring accessories - Upon becoming obsolete, the assessee sold it off to a DTA buyer - Written permission was sought from the Deputy Commissioner of Central Excise & Customs & copy of letter seeking permission was forwarded to the Development Commissioner, SEEPZ - The machine was cleared to one entity against EPCG license issued to it, on payment of 5% ad velum duty - Upon audit, objection was raised that the assessee was refused permission by the Development Commissioner for DTA clearance & so was required to pay duty on the depreciated value and not on the transaction value - Hence it was held that merit rate of duty and not EPCG rate was applicable - SCN was issued proposing demand for differential duty - The Die Machine was confiscated u/s 111(d) & 111(o) of the Act, with interest u/s 28B and penalty u/s 112(b) and Section 114A - On adjudication, such proposals were confirmed and subsequently upheld by the Commr.(A) - Hence the present appeal by the assessee.

Held: From a perusal of the communication issued by the Development Commissioner, it is clear that the Development Commissioner is authorized to permit conversion of EoU under EPCG as one time option for which the request to sell one machine could not be considered at their end but appellant may sell the same in the DTA after payment of applicable duties subject to compliance of Customs procedure - Hence the O-i-A erroneously held that the Development Commissioner refused permission for clearance of goods to DTA - Moreover, the jurisdictional Superintendent debited the transaction value as declared by the assessee before allowing clearance of the machine, according to which the commercial invoice was raised - The assessee's contention that re-assessment cannot be done without review of the assessment order, is correct, considering mandate of Section 129D of the Act - Hence no mis-declaration or suppression of fact can be attributed to the assessee to warrant invoking extended limitation - Hence the O-i-A merits being quashed: CESTAT

- Assessee's appeal allowed: MUMBAI CESTAT