SERVICE TAX

2019-TIOL-2258-CESTAT-AHM

Synfab Sales And Industries Ltd Vs CCE & ST

ST - Whether the assessee is entitled for refund of Service Tax paid on commission paid to Foreign Agent which was otherwise not payable as per Notfn 14/2014-ST in case where the refund was filed beyond the period of 1 year from the relevant date i.e. payment of service tax - The issue that whether any amount paid as service Tax/duty without authority of law would be governed by Section 11B for the purpose of time limit in case of refund of the same - This issue has been elaborately dealt in the case of M/s Petronet LMG Ltd - 2018-TIOL-3265-CESTAT-AHM - The issue involved wherein it has been considered in detail and the Bench in the said judgment came to the conclusion that every refund claim is governed by Section 11B, hence, the period stipulated of one year in filing refund claim from the relevant date is also applicable - Accordingly, the impugned order is upheld: CESTAT

- Appeal dismissed: AHMEDABAD CESTAT

2019-TIOL-2257-CESTAT-MUM

Shoreline Hotels Pvt Ltd Vs CCGST & CE

ST - The assessee is a three star hotel and in order to provide car service to their guests, they used to hire the same - The service provider used to charge the assessee for the same alongwith the service tax and assessee in turn charge the amount from the guests alongwith service tax - During audit for the period 2011-12 to 2014-15, it appeared that assessee had taken Cenvat credit on input services towards Rent-a-cab Service and in respect of Professional charges viz. Expenses incurred towards Employee’s State Insurance, Employee’s Provident Fund which according to Revenue, did not have nexus with the output services provided them - As per Revenue, the professional services were in relation to their employees only and so far as Rent-a-cab service is concerned the assessee is not providing the same, rather they are arranging them from outside service provider - The service was utilised either for commuting of their employees or by their customers on specific requests received and both these services has not nexus with the output service - A SCN was issued to assessee for demanding Cenvat Credit wrongly availed and utilised by the assessee alongwith interest under Section 75 r/w Rule 14 of CCR, 2004 and also for imposing penalties u/Ss. 76,77 & 8 of FA, 1994 r/w Rule 15 of CCR, 2004 - An identical issue came up for consideration before a coordinate bench of Tribunal in matter of Marvel Vinyls Ltd. - 2016-TIOL-3071-CESTAT-DEL and the Tribunal while deciding the issue in favour of assessee therein held that the interpretation that motor vehicle are not capital goods for the service recipient cannot be appreciated inasmuch as motor vehicles are admittedly capital goods for the service provider in terms of Rule 2(a) of CCR, 2004 - The assessee is entitled to Cenvat credit on service tax paid on the service - Therefore the impugned order is set aside: CESTAT

- Appeal allowed: MUMBAI CESTAT

CENTRAL EXCISE

Palak Designer Diamond Jewllery Vs UoI

CX - During the relevant period, the petitioner herein was issued an SCN by the jurisdictional commissionerate, proposing duty demand on account of willful suppression of unaccounted manufacture and clearance of jewellery items - Demand for interest was raised too & penalty u/s 11AC was also imposed along with penalty u/r 25 of CER 2002 - Penal action was also proposed to be initiated u/s 9 of CEA 1944 r/w Section 132(a), (e), (h), (j) & (k) of CGST Act - On adjudication, such proposals in the SCN were confirmed - Hence the present writ.

Held - The petitioner has remedy of statutory appeal available with it - As per Circular No.31/05/2018-GST dated 9th February 2018 and the decision of the Apex Court Pahwa Chemicals Pvt. Ltd. v. Commissioner of Central Excise, Delhi, the present writ is dismissed without delving into merits - The petitioner is directed to exercise option of appeal: HC

- Writ petition dismissed: GUJARAT HIGH COURT

2019-TIOL-2260-CESTAT-BANG

RMC Ready Mix India Vs CCT

CX - Refund - CENVAT - Rule 5 of CCR - SCN for denial of refund claim is vague and does not state reasons on which the department proposed to reject the refund claim - documents have been attached by the appellant in support of his refund claim and no defect memo has been issued by department if any documents were missing - not disclosing the unutilized balance of CENVAT credit in ER-1 returns is only a procedural lapse and cannot be a ground to reject refund claim - impugned order is not sustainable, hence same is set aside and matter remanded to original authority to examine all documents filed in support of refund claim - original authority to dispose of claim within two months: CESTAT [para 6]

- Matter remanded: BANGALORE CESTAT  

2019-TIOL-2256-CESTAT-DEL

Shri Krsna Urja Project Pvt Ltd Vs CCE

CX - Appellant have manufactured 25 car carriers for their captive use for transportation of the cars, which are not sold by them - They have paid Central Excise duty on such car carriers as per the provisions of Rule 8 of Central Excise Valuation Rules, 2000 on the basis of value provided by Cost Accountant as per the requirement of CAS 4 certificate - Allegation of Revenue is that the assessable value shown by appellant in their CAS 4 Certificate for the years 2008-09 & 2009-10 has been shown on lower side - Inasmuch as the Revenue contends that cost of raw material and manufacturing cost is increasing day by day on account of inflation which is rising regularly and this fact is confirmed by the Cost Inflation Index notified by the Income Tax Department in Official Gazette - applying cost inflation index as notified by the IT department, demand for differential duty is issued and confirmed by the original authority which order was upheld by the Commissioner(A) - appeal before CESTAT.

Held: Valuation of captively used car body carriers adopted by the appellant assessee was based on certificate given by the Cost-accountant in the prescribed form of CAS 4 and on this cost of manufacture the appellant assessee has further added 10% value as per requirement of Rule 8 and duty has accordingly been paid - there is no legal basis for adopting the cost inflation index of the Income Tax Department for determination of assessable value - certified cost of the manufacture of product cannot be rejected on the basis of some vague reasons - method adopted by the appellant assessee for determination of assessable value under Section 4 of Central Excise Act, 1944, is legally correct - no merit in the order of Commissioner (Appeals), hence same is set aside: CESTAT [para 10, 11]

CX - Limitation - On the same issue, the department had issued a show cause notice earlier covering the period of 2004-2005 to 2007-2008 - The present impugned show cause notice dated 26.04.2013 covers the period of financial year 2008-2009 and 2009-2010 which is much beyond the normal period of demanding duty - Since the department has all along been aware about the practice followed by the appellant and they have also filed their return in time, there are no valid grounds for invoking extended time of limitation - demand is time barred, hence not sustainable: CESTAT [para 12]

- Appeal allowed: DELHI CESTAT

2019-TIOL-2255-CESTAT-AHM

Shreenath Plastopack Pvt Ltd Vs CCE & ST

CX - The entire order of Adjudicating Authority, for the confirmation of demand on clandestine removal of goods is based upon the two chit books recovered during visit of the officers to main assessee's factory premises - It is surprising to note that the investigating authorities did not record any statements of any of the directors or any other person from the management to arrive at a conclusion to hold that there was a clandestine removals, it is not fathomable mind of investigating authorities, in not recording the statement of director, is in itself enough to hold that the charge of the clandestine removal is not proved conclusively - The confirmation of demand on clandestine removal on solely a single statement of authorised signatory is totally incorrect and the main assessee was seeking cross examination of this gentlemen which were not offered to - The confirmation of demand under charge of clandestine removal is unsustainable - Secondly, it is undisputed that the chit books on which reliance is placed by Adjudicating Authority, in the denovo adjudication, contained details of names and addresses of recipients of the alleged clandestinely removed goods and the inputs - It is to be noted and surprisingly that Revenue Authorities /Investigating Authorities did not find time to record statement of any of the purchasers of final products/inputs allegedly cleared in a clandestine manner by main assessee - In absence of such corroborative evidence, the demand is not sustainable - Further, Revenue Authorities/Investigating Authorities have not brought on record as to whether and how the main assessee had received the consideration for alleged clandestine removal of inputs and finished goods - In the absence of any consideration being shown to have been received by main assessee, the allegation of clandestine removal fails - The demand of duty liability of Rs. 12,26,279/- with interest and penalty of Rs. 32,28,541/- is unsustainable - Since the demand is set aside, no reason found to sustain the confiscation of land, building, plant and machinery, accordingly the same is set aside - As regards the penalty on director, in entire proceedings the Adjudicating Authority has not pointed out any role that could be attributable to Shri Rajkishore Chaturvedi for visiting him with penalty of Rs. 10 lakhs under Rule 209A of CER, 1944 - As the entire demand raised against the main assessee is set aside, no penalty can be imposed on the director: CESTAT

- Appeals allowed: AHMEDABAD CESTAT

2019-TIOL-2254-CESTAT-KOL

Peekay Fastening Pvt Ltd Vs CCE

CX - The assessee entered into a contract with railways for supply of Railway Tracks, Nuts and Bolts - The dispute has arisen on account of certain amounts received by assessee from the railways in year 2004-05, which pertains to the goods cleared to the railways during period 2001-02 to 2003-04 - The Revenue was of the view that the escalation amounts are required to be added to the turnover of the respective years and the benefit of SSI exemption re-worked out - If, such exercise is carried out, differential duty as upheld by lower authorities becomes payable - But such view is strongly contested by assessee with the support of decision of Apex Court in case of Hitkari Fibres Ltd. - 2015-TIOL-248-SC-CX - Apex Court considered the case of additional amounts received by respondent therein pertaining to the goods cleared earlier - The decision of the Apex Court will be applicable to the present facts and circumstances since in the present case for no malafides are alleged against the assessee - By following the said decision, the impugned order is set aside: CESTAT

- Appeal allowed: KOLKATA CESTAT

CUSTOMS

2019-TIOL-1737-HC-MAD-CUS

PV Graphics Vs CC

Cus - The assessee-company imported a printing machine and its standard accessories - Pursuant to assessment proceedings, issues arose in respect of the clearance of such machinery, whereupon the assessee filed a writ petition before the High Court - The writ court directed provisional release of the machinery - Such terms were complied with and the machines were provisionally released - Proceedings were initiated for clearance of machinery, culminating into an order passed by the Tribunal, which achieved finality and acquired legal quietus - Thereafter, the assessee filed a refund application but the same was not processed - Hence the present writ.

Held: The assessee sought that directions be issued to the official concerned to consider the refund application that a decision be taken in the requisite time frame - Considering the narrow compass of the matter, jurisdictional Asst Commr. (Refunds) is directed to consider the refund application filed by the assessee and pass an order within 4 weeks time from date of receipt of order: HC

- Assessee's writ petition disposed of: MADRAS HIGH COURT

2019-TIOL-2259-CESTAT-MUM

Amarjeet Enterprises Vs CC

Cus - Valuation - As the appellants were not made part of market enquiry and copy of the report was also not provided to them and values of contemporaneous imports of identical/similar goods were not considered/examined, the impugned order is full of infirmities and as such is not sustainable under Law - Impugned order is set aside and the appeal is allowed in toto: CESTAT [para 10]

- Appeal allowed: MUMBAI CESTAT