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SERVICE TAX
2019-TIOL-2307-CESTAT-MAD
Shell India Markets Pvt Ltd Vs Commissioner of GST & CE
ST - The assessee is engaged in providing a host of taxable services and are registered with erstwhile LTU, Mumbai and filed refund claims under Rule 5 of CCR, 2004 r/w Notfn 27/2012-C.E. (N.T.) being the unutilized CENVAT Credit pertaining to various periods - There are various services on which refund was rejected as ineligible - As regard to Construction Service, the requirement of establishing nexus between input service and the output has been done away with by Board itself vide D.O.F. No. 334/1/2012-TRU - The issue has been considered by this very Bench in case of M/s. Mckinsey Global Services India Pvt. Ltd. wherein after considering various decisions/orders, it has been held that there is no requirement to demonstrate the nexus between the input services and the output - Moreover, the fact that the Construction Services were used in modernization and renovation of the premises has not been doubted by Revenue - Assessee is entitled to refund and the rejection is not in order, same is set aside - With regard to Interior Decorator Services, the said issue has been decided by High Court of Gujarat in case of M/s. Cadila Healthcare Ltd. to hold that Interior Decorator and Commercial or Industrial Construction Services were covered in inclusive part of definition of 'input service' in relation to renovation or repairs of factory or office relating to it - Assessee is correct in his assertion that the same issue has been decided by Gujarat High Court and that the said view has also been adopted by other Benches of Tribunal in cases of M/s. Reliance Industries Ltd. - 2016-TIOL-2392-CESTAT-MUM and M/s. Convergys India Services Pvt. Ltd. - 2017-TIOL-937-CESTAT-CHD - Following the said ratio, the impugned denial of refund cannot sustain and therefore, the same is set aside - With regard to Works Contract Services, on going through the definition in terms of Rule 2(l) ibid as amended w.e.f. 01.04.2011, the provision makes it clear that the services utilized in relation to modernization, renovation and repair of factor would definitely fall within the meaning of input services even though the construction of a building or of a civil structure or part thereof is placed under the exclusion clause - Same has also been clarified by Board vide Circular No. 943/04/2011-CX wherein the input service used in modernization, renovation or repair has been clarified to be eligible for credit - The impugned order is set aside : CESTAT
- Appeals allowed: CHENNAI CESTAT
2019-TIOL-2306-CESTAT-ALL
CCE Vs Lion Security Guards Services
ST - The assessee is registered with Service Tax Department for providing services under "Security Services" on which service tax liability was being discharged by them - Revenue found that they have entered into agreement with M/s Nagar Nigam Lucknow for executing the cleaning work and are employing a number of persons for the same - By entertaining a view that the activity of assessee would amount to providing services under category of Manpower Supply to M/s Nagar Nigam Lucknow, they initiated proceedings against them by way of issuance of SCN raising demand of duty by invoking longer period of limitation - The assessee had also filed an affidavit on record declaring that to execute the said work, they engaged the workers from outside and paid them wages on day to day basis - No permanent workers were engaged by them to execute the said work - As such Commissioner (A) concluded that the workers deployed by assessee for completion of contract work were not contractual workers employed by them - As such by relying upon the Tribunal's decision in case of Samarth Sevabhavi Trust - 2013-TIOL-1129-CESTAT-MUM , he held in favour of assessee - As against the findings of Commissioner (A), Revenue has not advanced any evidence to reflect upon the fact that the assessee was actually supplying the Manpower to Nagar Nigam - The various contracts and agreements entered by assessee with Nagar Nigam clearly show that the work required to be done by them was the lump-sum work of cleaning for which purpose they were being paid - The workers deployed by them are clearly working on behalf of the assessee himself and they are not under the supervision or control of the service recipient - The Tribunal's decisions in case of Divya Enterprises and Ritesh Enterprises have considered the identical situations and have held that in the absence of any agreement to utilize the services of an individual, assessee cannot be said to have provided Manpower Recruitment or Supply Agency Services - No individual were being supplied by assessee, who were only doing the cleaning job, no merits found in the Revenue's appeal, same is accordingly rejected: CESTAT
- Appeal rejected: ALLAHABAD CESTAT
2019-TIOL-2305-CESTAT-HYD
Pioneer Hi Bred Pvt Ltd Vs CCT
ST - The assessee an exporter of services and engaged in providing scientific and technical consultancy services to their parent company abroad with respect to development and testing of various seeds of plants - They had claimed the refund of CENVAT credit under Rule 5 of CCR, 2004 in respect of services which they have exported which was partly allowed and partly rejected by Assistant commissioner - As far as the invoices not bearing service tax registration no. is concerned, in terms of Rule 9(2) of CCR, 2004 certain details must be mentioned in invoices before CENVAT credit can be availed that includes the details of duty or service tax payable, description of goods or taxable services, assessable value, central excise or service tax registration number of the person issuing the invoice, name and address of the factory or warehouse Service Tax registration number being an essential requirement under CCR, 2004 cannot be waived - The Tribunal has no power of delegated legislation to make or modify the Rules - Assessee is entitled to CENVAT credit of refund under Rule 5 with respect to these two invoices - They are not entitled to CENVAT credit refund in respect of other invoices where there is no service tax registration number - As far as the second issue of invoices not bearing the name of assessee is concerned, it was on account of a takeover of the firm from another unit - Accordingly, once the business has been taken over, all assets and liabilities of the previous unit will be taken over by the present assessee including any invoices which may have been wrongly issued in the name of previous concern - Accordingly, assessee is entitled to refund of invoices not bearing the name of the assessee as service recipient but bearing the name of the previous unit - Assessee is entitled to CENVAT credit as well as refund under Rule 5 in respect of these invoices - The appeal is partly allowed and remanded to the original authority for the limited purpose of computation: CESTAT
- Appeal partly allowed: HYDERABAD CESTAT
CENTRAL EXCISE
2019-TIOL-1806-HC-MUM-CX
Gauri Plasticulture Pvt Ltd Vs CCE
CX - During the relevant period, the assessee-company claimed cash refund of unutilized Cenvat credit - However, such refund was denied by the Revenue & such findings were upheld by the Tribunal - Hence the present appeal by the assessee, raising the issue as to whether such refund could be denied where the assessee had stopped production due to closure of factory & had surrendered its registration certificate & where there was no express prohibition against such cash refund.
Held: It is agreed between the parties that similar issues were raised in Union of India and Others vs. M/s. Simplex Mills Co. Ltd - 2019-TIOL-1248-HC-MUM-CX-LB . wherein they had been answered in favor of the Revenue - Hence the substantial questions of law raised in the present appeal too are answered in favor of the Revenue: HC - Assessee's appeal dismissed: BOMBAY HIGH COURT
2019-TIOL-2304-CESTAT-MUM
CCE & C Vs Schneider Electric India Pvt Ltd
CX - The Commissioner while adjudicating the demand against assessee has held that the goods cleared were to be assessed to duty in accordance with section 4A of CEA, 1944 for the period from April 2003 to March 2007 but limited the confirmation of liability to the normal period with a finding that the ingredients pertinent to invoking the extended period under section 11A of CEA, 1944 had not been established - The assessee had been marking the packages as intended for sale other than in retail despite which the goods were being sold to the final customers by trade channels - The substantive gap between an assessee, subject to duty on manufacture, and the person at whose premises the goods are employed is bridged by various independent links that were subject to other taxes on sale and purchase renders such visiting of arbitrary conferment of responsibility with harsh, and at times, disproportionate, consequences - More so, as the statutory provisions do provide for alternative intent of non-retail supply without providing for acceptable manifestation of intent - In the circumstances, the presumption that there has been any intent to evade duty becomes tenuous - The issue of the method of assessment to be adopted is yet to attain finality - That the Supreme Court has considered it necessary, in Subhash Arjundas Kataria - 2011-TIOL-121-SC-MISC to have the matter considered by a Larger Bench would imply that the controversy is not free of any doubt - The tagging of dispute arising from the decision of High Court of Bombay in re Larsen & Toubro - 2008-TIOL-141-HC-MUM-CX , which is the genesis of dispute of Revenue with the assessee, with that reference for constitution of a Larger Bench, suffices to reinforce the existence of controversy from the beginning - In matters concerning the invoking of extended period, which is also attended by a penalty of like amount under section 11AC of CEA, 1944, mere presumption will not suffice - The ingredients must be clearly established and benefit of doubt, if any, must go to the assessee: CESTAT
- Appeal dismissed: MUMBAI CESTAT
2019-TIOL-2303-CESTAT-MAD
Commissioner of GST & CE Vs Motherson Automotive Technologies And Engineering
CX - The assessee-company manufactures Motor Vehicle Parts of Plastics - It availed Cenvat credit on input goods, services & capital goods - It set up its factory, for which it received construction service from providers during the relevant period - The service providers collected service tax from the assessee for the total constructed area and the assessee availed credit on the service tax paid for the services - The Revenue noted that a portion of the factory premises was rented out by the assessee on the basis of a joint venture agreement and a lease agreement - The Revenue opined that the assessee is ineligible for credit as it pertained to a part of the factory which was not used for manufacturing final product - SCN was issued proposing to recover the credit so wrongly availed, with interest and also proposed to impose penalties - On adjudication, the proposals in the SCN were confirmed - On appeal, the Commr.(A) set aside such findings - Hence the Revenue's appeal.
Held: During the relevant period, the definition of input service had a very wide ambit and included the words ' activities relating to business ' - Leasing out a part of the factory which is not used by the manufacturer can help raise funds or other business benefits - Such activities used in relation to the business of manufacture would be covered by the inclusive part of the definition - Besides, during the relevant period, the service relating to setting up a factory was eligible input service - Post amendment in 01.04.2011, the service of setting up of factory as also activities relating to business of manufacture were deleted - Hence for the period prior to 01.04.2011, the credit availed on construction services for setting up of factory was eligible - When credit is eligible for setting up of factory and the respondents have correctly utilized the construction services for setting up of the factory, it cannot be denied alleging that a part or portion of the factory was leased out to another - Moreover, the SCN invokes Rule 3(5) of the CCR 2004 for reversal of irregularly availed credit - This rule proposes reversal of credit availed on inputs or capital goods cleared as such - The SCN does not allege that inputs or capital goods were cleared as such - Hence the demands proposed in the SCN are unsustainable - Thus the Commr.(A) justifiably quashed the demands: CESTAT
- Revenue's appeal dismissed: CHENNAI CESTAT
CUSTOMS
NOTIFICATION
cnt61_2019
Tariff values of all Edible Oils and Silver increased but Gold sees a dip CASE LAWS
2019-TIOL-1808-HC-MAD-CUS
CC Vs Adyar Gate Hotel Ltd
Cus - The assessee imported certain lights and light fittings which it used in its hotel for enhancing beauty and decor - The assessee claimed refund of duty paid on the them, but such claim was rejected - Subsequently, the Tribunal allowed such refund on grounds that the claim was not hit by unjust enrichment - It observed that the assessee had neither sold the goods to any other person nor consumed in the manufacture of other final products, owing to which the principle of unjust enrichment was inapplicable - Hence the Revenue's appeal.
Held: The factual findings recorded by the Tribunal are based on cogent evidence, including a Chartered Accountant's certificate issued in favor of the assessee - Hence no substantial question of law arises, warranting this court's intervention: HC
- Revenue's appeal dismissed: MADRAS HIGH COURT
2019-TIOL-1807-HC-MAD-CUS
Mohammed Ashraf Kizhakkini Yakath Vs CC
Cus - The petitioner, an individual working abroad since 1986, decided in 2018 to shift to india - His personal effects were entrusted to a mover & forwarders firm for transportation, whereupon the petitioner paid a certain sum in foreign exchange - The petitioner was given an assurance that the goods would be delivered at Chennai Port without having to make further payments - When the petitioner went over to collect the goods, further sums of money were demanded by the respondents for their clearance - Hence the present writ was filed, claiming that the petition was not liable to pay any amount.
Held: The petitioner claimed to have addressed a communication to the jurisdictional Dy Commr of Customs, albeit such letter was undated - Legal notices were also served to the two respondent-agencies handling the goods - Hence the petitioner is directed to proceed against such agencies pursuant to the notice served to them - The addressee of the communications, the Dy Commr. of Customs concerned, is also directed to reply to the same within 10 days' time: HC
- Writ petition disposed of: MADRAS HIGH COURT |
