SERVICE TAX

2019-TIOL-2079-CESTAT-MAD

SSS Tours And Travels Vs Commissioner of GST & Central Excise

ST - The assessee is registered for providing services under category of "Rent-a-Cab" Operator Services - During verification of accounts of assessee, it was observed that they had not paid service tax under the said category - SCN was issued proposing to demand service tax along with interest and also for imposing penalties - The assessee has been contending that their activity would not fall within the levy of service tax net as they were charging the customers on per kilometre basis and there was no renting of vehicle involved - This issue has been mired in litigation for a long time and there are conflicting decisions also - Taking into account the fact that there are conflicting decisions on the issue as also the same being interpretational, assessee cannot be saddled with allegation of suppression of facts with intention to evade payment of service tax - Moreover, the Department has not produced any cogent evidence to show that there was a positive act of suppression on the part of assessee - The entire demand has been raised on verification of accounts of assessee - This shows that nothing was suppressed with any intent to evade payment of service tax - The SCN is time-barred - The assessee succeeds on the ground of limitation - Since the issue on limitation is found to be in favour of assessee, Tribunal do not think it necessary to go into the merits of the case - The impugned Order is set aside on the ground of limitation: CESTAT

-Appeal allowed : CHENNAI CESTAT

2019-TIOL-2078-CESTAT-ALL

CCE & ST Vs Statestreet Hcl Services India Pvt Ltd

ST - Tribunal is informed about the Instructions dated 11-07-2018 issued by CBEC in exercise of powers conferred by Section 35R of CEA, 1944 fixing monetary limits below which appeal shall not be filed in Tribunal - The monetary limit has been enhanced to Rs. 20 lakhs through the said Instructions - The High Courts of Madras, Karnataka and Gujarat in - 2015-TIOL-2512-HC-MAD-ST and 2011-TIOL-889-HC-KAR-CX have held that the litigation policy containing monetary limit for filing appeals will apply to pending appeals also - The appeals filed by Revenue are dismissed under litigation policy for the assessee: CESTAT

-Appeals dismissed : ALLAHABAD CESTAT

CENTRAL EXCISE

2019-TIOL-2077-CESTAT-DEL

Shiv Shakti Steel Pvt Ltd Vs CCE & ST

CX - Suppression of production and clandestine removal of Sponge Iron - demand confirmed of Rs.1,09,39523/- with equal penalty on appellant company and penalty imposed on Directors - appeal to CESTAT.

Held: In the present case, there is no evidence of excess purchase of raw material, transportation thereof, sale of finished goods, realization of sale proceeds, excess power consumption, transportation of finished goods - during search, no goods were found in excess or short - there is no positive evidence brought on record by the revenue to alleged suppression of production/clandestine removal of goods - allegations of clandestine manufacture and removal are vague and liable to be set aside - Despite the name of the customers, truck no. & other details mentioned in the private records, no attempt has been made to investigate the matter at the end of the buyers, transporters, etc. - impugned order set aside with consequential relief to the appellants: CESTAT [para 16 to 18]

- Appeals allowed :DELHI CESTAT

2019-TIOL-2076-CESTAT-DEL

Shivangi Polysack Pvt Ltd Vs CCE & GST

CX - Section 4(3)(d) of the CEA, 1944 - Rajasthan Investment Promotion Scheme notified by Government of Rajasthan - Payment of VAT using 37B Challans are considered legal payments of tax - such subsidy amounts are, therefore, not required to the included in the transaction value - there is, therefore, no justification for inclusion in the assessable value the VAT amounts paid by the assessee using VAT 37B Challans - issue stands settled in favour of the appellant - impugned orders are set aside and the appeals are allowed: CESTAT [para 9 to 12]

- Appeal allowed :DELHI CESTAT

2019-TIOL-2075-CESTAT-AHM

Shree Digvijay Cement Company Ltd Vs CCE & ST

CX - Matter contained in appeals is a recurring issue and periodical demands were raised - appeal dismissed earlier on monetary limit without going into the merit is restored - CENVAT credit of hotel bills is admissible as hotel stay is for the purpose of business activity by the company staff and not for personal use - impugned order set aside and appeal allowed: CESTAT [para7]

- Application allowed/Appeal allowed :AHMEDABAD CESTAT

CUSTOMS

2019-TIOL-2074-CESTAT-MUM

Manish Patel Vs CC

Cus - The appellant Shri Subhash Chaudhary, Proprietor of M/s Salasar Imports imported packing paper by declaring the same as "Fruit Grape Guard Packaging Paper in sheet form coated with Sodium Meta Bi Sulphite" claiming benefit exemption Notfn 21/2002 Cus. - On chemical test of consignment imported against Bill of Entry, it was found to be free from 'Sodium Meta Bi Sulphite' - Consequently, alleging that assessee had wrongly availed duty exemption against Sr. No. 153 of Notfn 21/2002-Cus by misdeclaring the description of goods, SCN was issued to them for recovery of differential duty and proposing confiscation of goods seized during investigation and also proposal for imposition of penalty under various provisions of Customs Act, 1962 - On going through the impugned order, it is found that not only on the basis of chemical test report but also relying upon the statement of Shri Dilip Patel, authorised signatory of appellant, the Adjudicating authority had concluded that the sample of imported papers when subjected to chemical test, found to be free from Sodium Meta Bi Sulphite - Consequently, he has held that the appellant is not eligible for benefit of exemption Notfn - The Commissioner has rightly rejected the request for cross examination of chemical examiner expert, observing that the tests were carried out in normal course of official function and in absence of any bias or malafide, cross examination of experts is unwarranted - The test reports cannot be brushed aside merely because the reports from some private agencies are produced indicating different results - Also, reading the opinion of UDCT, Mumbai, there is no contra report to the test results of CRCL - In the said report, the method of testing of samples has been narrated - There is no opinion about the contents of samples - Therefore, the said reports also would not be of any help to the appellant - In absence of any adverse test report of the samples relating to past consignment, no merit found in the order of Adjudicating authority, to apply the test results of the samples drawn to the past consignments in directing confiscation and denying the benefit of exemption Notfn - Consequently, the test report be restricted to the consignment of packing papers whose samples were drawn and tested and found to be free from Sodium Meta Bi Sulphite - However, since there is mis-declaration of description of imported goods, in order to avail the benefit of exemption Notfn, the goods which were seized and released provisionally are liable to confiscation and the importer and the persons associated are liable for penalty: CESTAT

- Appeals disposed of : MUMBAI CESTAT

2019-TIOL-2073-CESTAT-DEL

Rubal Logistics Pvt Ltd Vs CC

Cus - Present is apparently a case of misdeclaration, misclassification and under valuation of import of wireless Point of Sale Devices (POS) and Mobile Point of Sale Device (MPOS) - Department is of the opinion that the product (MPOS) has been imported by M/s. Pax Technology India Pvt. Ltd. and cleared through the Customs broker, M/s. Rubal Logistics Pvt. Ltd. i.e. the present assessee, who initially filed the Bill of Entry on the basis of invoices raised by M/s. Wang Technologies Ltd. by replacing earlier invoice raised by M/s. Pax Technology Ltd., Hong Kong to M/s. Pax Technology India Pvt. Ltd. itself - From the O-I-O, it is observed that the adjudicating authority has gone into the details of statements of all concerned recorded at the stage of investigation - Not only this, the authority has perused the Master Distribution Agreement of M/s. Pax Technology India Pvt. Ltd. and has observed that the soft-ware license was an integral part of the devices without which the impugned devices could not be operated and that the value of soft ware license fee has to be included in the total value of devices - Though the CHA was accepted as having no mensrea of the noticed mis-declaration/under- valuation or mis-quantification but from his own statement acknowledging the negligence on his part to properly ensure the same, CH definitely has committed violation of Regulations - These Regulations caused a mandatory duty upon CHA, who is an important link between the Customs Authorities and the importer/exporter - Any dereliction/lack of due diligence since has caused the Exchequer loss in terms of evasion of Customs Duty, the original adjudicating authority has rightly imposed the penalty upon the assessee - No infirmity found in the order under challenge, same is hereby upheld: CESTAT

- Appeal dismissed : DELHI CESTAT