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SERVICE TAX
2019-TIOL-2316-CESTAT-MAD
Madurai Union Club Vs CCE
ST - The issue pertains to amounts collected by assessee from its members such as Bar account collection charges, Bar sundry collection, Cards account collection charges, Bar dining collection charges and Guest House amenity charges - Assessee placed reliance on the judgment in case of Ranchi Club Ltd. - 2012-TIOL-1031-HC-JHARKHAND-ST and also the decision of this Bench in a batch of cases in the case of Cosmopolitan Club & others - 2018-TIOL-2739-CESTAT-MAD - The ratio laid down by High Court of Jharkhand in Ranchi Club and also by High Court of Gujarat in Sports Club of Gujarat - 2013-TIOL-528-HC-AHM-ST has not been stayed by Apex Court - The judgement of Bangalore Club - 2013-TIOL-05-SC-IT relied upon by him is totally on a different aspect and also relates to income tax taxability under the Income Tax Act and the same cannot be made applicable to Finance Act, 1994 - In consequence, issue found in favour of assessee - Impugned order then cannot sustain: CESTAT
- Appeal allowed: CHENNAI CESTAT
2019-TIOL-2315-CESTAT-ALL
Maisur Construction Company Pvt Ltd Vs CC, CE & ST
ST - Through the impugned order, service tax under the category of 'Commercial & Industrial Construction Service' was confirmed - Further, service tax under 'BAS' was also confirmed - The contention of assessee is that BAS was admitted by them to the tune of Rs.14 lakhs paid alongwith interest before issuance of SCN and therefore as provided under Sub-section (3) of Section 73 of FA, 1994, SCN should not have been issued in respect of the same - Though there is mention about the deduction of VAT at source still there is no record available that the entire contract was to be executed alongwith material - In so far as the confirmation of service tax under 'Commercial & Industrial Service' is concerned, the matter needs to be re-verified at the level of Original Authority who shall take into consideration the facts of the case and provisions of law and the said Final Order of Tribunal in the case of Gambhir Construction Company and also the law declared by Supreme Court in case of Larsen & Toubro Ltd. 2015-TIOL-187-SC-ST - In so far as the imposition of penalty under Section 78 of FA, 1994 equal to the amount of service tax of 'Business Auxiliary Service' the same is set aside - The assessee shall not raise the issue related to 'Business Auxiliary Service' in the proceedings before the Original Authority - By partially setting aside the impugned order, matter remanded to Original Authority: CESTAT
- Matter remanded: ALLAHABAD CESTAT
2019-TIOL-2314-CESTAT-DEL
Kharkia Alloys Pvt Ltd Vs CCE
Service Tax - Assessee is a manufacturer of goods and have availed the services of GTA either as a consignor or consignee of goods - As per reverse charge mechanism, they were required to pay Service Tax under category of GTA, which they did by availing the benefit of Notfn 32/2004-ST - The Department issued a SCN proposing to deny the benefit of abatement under Notfn 32/2004 on the ground that the benefit of such Notification is not available to the assessee, since they were not a GTA but only a consignor/consignee.
Held: The dispute before this Tribunal is limited to those consignment notes in which the assessee could not produce the certificate as prescribed under CBEC Circular - The wording of original SCN reads that the benefit is proposed to be denied on the ground that the assessee is not a GTA but is liable to pay Service Tax as consignor/consignee - But the issue has since been clarified by CBEC by means of Section 37 B Order - The assessee has also expressed the difficulty in procuring the certificates as per CBEC Circular on dates which are subsequent to actual dispatch of the consignments - The demand of Service Tax in respect of those consignment notes where the certificates could not be produced is not justified: CESTAT
- Appeal allowed: DELHI CESTAT
CENTRAL EXCISE
2019-TIOL-2318-CESTAT-AHM
CCE & ST Vs Shree Radha Krishna D And P Mills Pvt Ltd
CX - The Revenue filed the present appeal seeking confiscation of goods removed illicitly and consequent redemption fine - The Commissioner (A) did not confiscate the goods on the ground that the same was not available for confiscation, on the basis of judgments in the case of Shiv Kripa Ispat Pvt. Limited - 2009-TIOL-388-CESTAT-MUM-LB and Associate Marketing Services - 2005-TIOL-1502-CESTAT-MAD - However, both the judgments are related to DTA Units - At the same time, revenue relied on the judgments which are directly in case of 100% EOU - Therefore, the Commissioner (A) order for non- confiscation of goods and non imposition of redemption fine, relying on the judgments of DTA unit, is not proper - Therefore, the matter is remanded to the Adjudicating Authority for deciding the confiscation and redemption fine: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2019-TIOL-2317-CESTAT-MAD
Sri Ram Company Vs Commissioner of GST & CE
CX - The assessee is trader of timber wood and registered with department for payment of service tax under BAS, Renting of Immovable Property Service, Supply of Tangible Goods Service and GTA Service - On scrutiny of ST-3 returns, it was revealed that assessee has taken and utilised Cenvat credit of certain input services which according to department was ineligible as their activity was normally trading - SCN was issued proposing to recover wrongly availed credit along with interest and also for imposing penalty - The assessee has disclosed entire credit availed by them - The ST-3 returns also reflect these details - Therefore, the assessee cannot be saddled with guilt of intention to evade payment of tax - Further, an earlier SCN has been issued invoking extended period which overlaps with the period involved in present SCN - The Supreme Court in case of M/s. Nizam Sugar Factory - 2006-TIOL-56-SC-CX has held that when all relevant entries were within the knowledge of department while which issuing the first SCN, the second SCN invoking extended period cannot sustain - Following the said decision, the demand is held time-barred - The appeal succeeds on limitation - On perusal of SCN, it is seen that there is no invocation of provision of CGS Act in SCN - Therefore, such confirmation of demand or penalties or interest invoking the provisions not contained in the SCN also cannot sustain: CESTAT
- Appeal allowed: CHENNAI CESTAT
CUSTOMS
2019-TIOL-2319-CESTAT-KOL
CC Vs SJ Impex
Cus - The assessee imported used and worn unmutilated and fumigated mix cloth and five Bills of entry were filed covering the consignments of import - At the time of original assessment, the declared value of imported goods was enhanced from CIF price of US$ 1.10 per kg. to US$ 1.316 per kg. - The original adjudicating authority ordered confiscation of imported goods for violation of Import Trade Control restrictions and the goods were confiscated under Section 111(d) of Customs Act, 1962 - He also imposed redemption fine under Section 125 of the Act @ 30% and personal penalty under Section 112(a) of the Act, 11% (Approx.) - The Commissioner (A) has ordered reduction of redemption fine and personal penalty on the basis of ratio laid down by Three Member Bench of CESTAT, Delhi in the case of Omex International - 2015-TIOL-582-CESTAT-DEL - The Three Member Bench has taken the view that redemption fine of 10% and penalty of 5% of the value of the imported goods, would be appropriate in case of import violating Exim Policy Provisions - No reason found to interfere with the findings of Commissioner (A) on the basis of such decision - The impugned order is upheld and the appeal filed by the Revenue is rejected: CESTAT
- Appeal rejected: KOLKATA CESTAT |
