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SERVICE TAX
2019-TIOL-2200-CESTAT-DEL
Giriraj Construction Company Vs CCE & ST
ST - Construction of row houses for Rajasthan Housing Board for Avas Vikas - For the levy, it should be a residential complex comprising of more than 12 residential units - Admittedly, in the present case, the appellants constructed individual row houses, each being a residential unit - In any case, it appears, the law makers did not want construction of individual residential units to be subject to levy of service tax - not taxable: CESTAT [para 6]
ST - Work of construction of park, boundary wall is also not taxable under 'Works Contract Service' under sub para (b) of para (ii) of sub-clause (2) of the (zza) of section 65 (25) of Finance Act, 1994, as not used for commercial purpose - no Service Tax is exigible on construction of boundary wall of park in the housing scheme: CESTAT [para 7]
- Appeal allowed: DELHI CESTAT
2019-TIOL-2199-CESTAT-DEL
Gurjar Construction Vs CCE
ST - Appellant had provided services relating to construction of Outer Central Verge, Park Boundary Wall, Civil Park, Rain Water Harvesting, Path Ways and Individual Residential Houses for Ansal Properties & Infrastructure Ltd., Jodhpur - SCN alleged that the assessee was engaged in providing 'Construction of Residential Complex Services' and, therefore, service tax was payable thereunder - demand confirmed and upheld by lower appellate authority while extending the benefit of cum-tax price - appeal to CESTAT.
Held: From the judgment of the Supreme Court in Larsen & Toubro -2015-TIOL-187-SC-ST, it is clear that a Composite Works Contract cannot be taxed under CCS under Section 65(105) (zzzh) as the scope is limited to cover contract of service simplicitor only - Importantly, the definition of CCS in Section 65(105)(zzzh) remained the same even after 01 June, 2007 when WCS was introduced - In the absence of any change in the definition of CCS, the judgment of the Supreme Court in Larsen & Toubro will apply to a period after 01 June, 2007 also - The position that comes out very clearly, therefore, is that even prior to 01 June, 2007 and post 01 June, 2007, the nature of service rendered by the Appellant was WCS and not CCS - The impugned order, therefore, deserves to be set aside for this reason alone since the demand made under a particular category of service found to be incorrect in a subsequent proceeding, cannot be sustained - Tribunal decision in Ashish Ramesh Dasarwar - 2017-TIOL-3230-CESTAT-MUM, also needs to be referred - impugned order is set aside and appeal is allowed: CESTAT [para 11, 12, 14, 17]
- Appeal allowed: DELHI CESTAT
CENTRAL EXCISE
2019-TIOL-328-SC-CX
Hero Motocorp Ltd Vs CCE
CX - The issue at hand pertains to the liability of assessee-company to pay NCCD - This issue was pending consideration when these appeals were filed - This court's decision in Bajaj Auto Limited Vs. Union of India later clarified such legal position, wherein it was held that NCCD is in the nature of Excise duty & so exemption can be availed in respect of such duty - In light of such legal position, the appeals are liable to be allowed in terms in the judgment in Bajaj Auto Limited Vs. Union of India - In such circumstances, the amount paid to the Department be refunded within two months time: SC
- Revenue's appeal dismissed: SUPREME COURT OF INDIA
2019-TIOL-2202-CESTAT-CHD
Manish Vinyls Vs CCE
CX - The appellants are in appeal against impugned order demanding duty alongwith interest and imposing penalties on both of them - The demand has been confirmed on two counts i.e. non receipt of inputs by the appellants and receipt of the inputs without cover of invoices and non-accountal of goods in statutory records and the same were used in manufacturing of final goods which were cleared clandestinely - As there are difference of opinion between the Members, therefore, the matter is referred to the third Member - The issue regarding compliance of mandatory provisions of Section 9D have been discussed by various Courts/Tribunals in many cases where it is held that the compliance to the provisions of Section 9D is mandatory and non-negotiable and the adjudicating authority has no option but to follow the same - The case pertaining to the period 1998-99 and 1999-2000 and the SCN was issued on 11.02.2002, which was adjudicated by impugned order, which is nearly after 21 years of institution of the proceedings against the appellant - Otherwise also, the gap in adjudication proceeding is not required to be filled up at the level of this Tribunal that too after so many years, of the booking of the case, where in all probability would be a merely non-productise - The Member (J) has rightly followed the law, and therefore, the decision of High Court in the case of Flevel International - 2015-TIOL-2230-HC-DEL-CX is rightly applicable in the present proceeded - The Member (T) has simply held that the circumstance under the case of Flevel International is not applicable in the present case without making only differentiation on record - Thus, the observation of Member (T) is not devoid of any legal proposition - Under the circumstance, the Member (T) observation is not as per the provisions of Section 9D of the Act as held in various case laws including the case of Flevel International, therefore, disagree with the view expressed by Member (T) and concur with the findings of Member (J) - In view of the majority decision, the credit cannot be denied to the appellant and no demand can be confirmed against the appellant on account of clandestine removal of the goods - Therefore, the impugned order is set aside: CESTAT
- Appeals allowed: CHANDIGARH CESTAT
2019-TIOL-2201-CESTAT-DEL
Madhyanchal Steel Pvt Ltd Vs CCE
CX - The assessee is being charged for both shortages of raw materials on which Cenvat credit was taken i.e. Billets as well as for clandestine removal of goods - Accordingly, firstly, the assessee is entitled for setting of Cenvat credit on Billets amounting to Rs.2,60,325/- from the demand of duty - Secondly, they had raised proper Central Excise Invoice wherein total duty involved is Rs.3,36,510/- - The inspection had taken place on 27/12/2011, wherein due date for payment of duty was 05/01/2012 - Thus, as the due date for payment was not yet to come, the allegation of clandestine removal of goods on these invoices is not substantiated and accordingly the demand of Rs.3,36,510/- is set aside - Thus, only the balance demand is held payable as raised in the SCN - Further, the admitted fact is that the assessee had deposited the amount of Rs.13,46,036/- before the issue of SCN and further Rs.3,17,381/- towards penalty and further Rs.24,000/- towards interest - Accordingly, assessee is entitled to concessional rate of penalty of 25%, charged under the provisions of Section 11AC(1)(c) of the Act - Assessee is not entitled to benefit of Section 11A(7) of the Act - As regards transactions on parallel invoice and loose papers were not recorded in the books of account maintained in the ordinary course of business, thus, the appeal is allowed in part: CESTAT
- Appeal partly allowed: DELHI CESTAT
CUSTOMS
NOTIFICATIONS Trade Notice 28
Mechanism to apply for additional claims under MEIS for certain HS codes for which enhanced rates were notified with retrospective effect
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CBIC notifies new exchange rate for Japanese Yen w.e.f August 06, 2019
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Revision of SION H-68, H-301 & H-302 of Export Products- Double Decorative/Single side Laminates with or without Barrier Paper - M/s Marino Industries Ltd., M/s Merino Panel Product Ltd. & M/s Greenlam Industries Ltd., Kolkata
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Provision for claiming additional benefits under MEIS for HS Codes for which rates were enhanced with a retrospective effect. CASE LAW
2019-TIOL-1679-HC-MAD-CUS
Winstar Marketing India Pvt Ltd Vs DCC
Cus - The petitioner imported furniture items and respondent did not accept the declared value saying that furniture has to be assessed on the value arrived at on the basis of weight of furniture - Saying so, respondent assessed aforementioned ten Bills of Entry, enhanced the value of imported goods and collected enhanced duty - Prior to the aforesaid two orders in appeal made by Appellate Authority, petitioner moved this Court by way of an earlier writ petition and the same came to be disposed of by Single Judge of this Court vide order dated 17.8.2015, wherein provisional release of consignment imported by petitioner was ordered on certain terms, but it may not be necessary to advert to those terms and suffice to say that provisional release did happen - Revenue submits that there are no further appeals against the aforesaid orders and that the same have been given legal quietus - Also to be noted, as alluded to supra, writ petitioner has abridged/restricted the prayers and submitted that it will suffice if there is a direction to the respondent to assess the Bills of Entry within a time frame - Therefore, there shall be a direction to the respondent to assess/process ten Bills of Entry in accordance with the orders dated 9.2.2016 and 31.3.2016 within eight weeks : HC
- Writ petition disposed of: MADRAS HIGH COURT |
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