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SERVICE TAX
2019-TIOL-2376-CESTAT-HYD
Gimpex Pvt Ltd Vs CCT
ST - Appellant filed a refund claim for the ST paid under Notification No.41/2012-ST dated 29.6.2012 in respect of export of Barytes powder - the refund application was partly rejected and partly allowed by the Assistant Commissioner - on appeal, the First Appellate Authority has further allowed refund of some amount but rejected refund of Rs.25.87 lakhs on the ground that the application was filed beyond the time limit - appeal to CESTAT.
HELD: Appellant had filed a refund claim after one year from the date of ‘let export order' in respect of exported goods - the relevant date to be considered for one year for filing refund claim under Notification No.41/2012-ST is the date of 'let export order' - the entire benefit of refund accrues to the appellant only from the notification but for which no refund is admissible in this case - any notification, being an exception to the general rule, must be strictly construed - if the notification prescribes any time limit it must be complied with - it is not open to this Bench to change the notification to enlarge, constrict or otherwise modify it - the vires of the notification has not been questioned or tested nor has any portion of it been declared ultra vires - in this case, the refund application was filed more than one year after the export - accordingly, the refund is not admissible as per the Notification No.41/2012-ST - therefore, no infirmity found in the order of the First Appellate Authority in partly rejecting the refund claim to the extent it is time barred - the impugned order is upheld and the appeal is rejected : CESTAT [para 5.5]
- Appeal rejected: HYDERABAD CESTAT
2019-TIOL-2375-CESTAT-HYD
Environment Protection Training & Research Institute Vs CC, CE & ST
ST - Scientific and Technical Consultancy Service - The Assistant Commissioner, vide O-i-O, vivisected the demand into two components and held that the service charges pertaining to pollution testing are exempted under the head "technical inspection and certification services" - he, however, confirmed the demand only on the report preparation part of the income amount of Rs.5.34 lakhs being the amount relatable to report preparation - the Commissioner, vide impugned order-in-revision, held that the services rendered by the appellant cannot be vivisected into components and confirmed the demand of Rs.18.86 lakhs for the services rendered from 16.7.2001 to 31.3.2004 - appeal to CESTAT.
HELD: Whether the appellant was performing a statutory function - the appellant is a society registered under Registration of Societies Act by the State Government supported by it but it is an autonomous organization - the statute does not place any responsibility upon the society - the society provides training and consultancy in the field of environment - what the appellant was doing is more or less akin to the job of a Chartered Accountant with respect to the Income Tax Act, Companies Act, etc. - definition of State under Part-III (Fundamental Rights) of the Constitution of India does not extend to several other parts of the Constitution or to other laws.
Whether the appellant is liable to pay ST under the head "scientific and technical consultancy service" - as can be seen from the definition of "scientific and technical consultancy service" in section 65(92) of the Finance Act, the appellant herein is definitely an organisation and they have been created for the purpose of providing training and scientific and technical consultancy in the field of environmental aspects and have been rendering these services - therefore, the appellant is liable for ST under this head - further, as per s ection 65A of the Finance Act, 1994, where a service rendered is a composite service consisting a combination of different services it shall be classified as if they consisted of a service which gives them their essential character - in this case, the essential character of the service rendered by the appellant is scientific and technical consultancy service and the same cannot be divided into different services for the purpose of calculation of Service Tax - this mistake of the Assistant Commissioner was corrected by the Commissioner in his impugned Order-in-Revision - therefore, no infirmity found in the said order - the impugned order is upheld and the appeal is rejected : CESTAT [para 6, 7, 8]
- Appeal rejected: HYDRABAD CESTAT
2019-TIOL-2374-CESTAT-MUM
Axis Bank Ltd Vs CST
ST - Issue is whether ST is payable by the appellant on the commission received from RBI for carrying out activities of maintaining the accounts of Central and State Governments in the capacity of an agent of RBI under the taxable head of "Banking and other Financial Services".
HELD: Present dispute is no more open for any debate in view of the decision of Larger Bench of Tribunal in the case of State Bank of Patiala - 2016-TIOL-2849-CESTAT-DEL-LB wherein it is held that scheduled bank is the agent of RBI under Section 45 of the Reserve Bank of India Act, 1934 and thus, should be entitled for exemption under Notification No. 22/2006-S.T . dated 31.5.2006 from payment of ST on taxable services provided to or by RBI - it has further been held that as an agent of RBI, since the scheduled bank is transacting sovereign Government business, the same should not be subjected to levy of ST - in view of the above settled position of law, no merits found in the impugned order passed by the Commissioner (Appeals) - accordingly, after setting aside the same, the appeal is allowed in favour of the appellant : CESTAT [para 7, 8]
- Appeal allowed: MUMBAI CESTAT
CENTRAL EXCISE
2019-TIOL-2373-CESTAT-BANG
Fibertek Communication Pvt Ltd Vs CCT
CX - Appellants are engaged in the manufacture and clearance of outdoor/indoor OFC assembly and also availing benefit of CENVAT credit of duty paid on inputs - two SCNs were issued to the appellant for irregular availment of CENVAT credit on "HDPE Pipes" as it appeared that these HDPE pipes were only 'optional' requirement and are not essential for the functioning of the goods manufactured - demands confirmed, penalties imposed -Commissioner (A) rejected assessees appeal, therefore, appeal before CESTAT.
HELD: HDPE pipes are supplied along with the FO integrated system and the excise duty is also paid on the same - further, in the absence of HDPE pipes, the final product of the appellant is not functional - definition of input as contained in rule 2(k) of the CCR, 2004, includes accessories of the final product cleared along with the final product - HDPE pipes are accessories of the final products and is always cleared along with the final product as is reflected in the invoices produced by the appellant - impugned orders are not sustainable in law, therefore, set aside and appeals allowed: CESTAT [para 7, 7.1, 7.6]
- Appeals allowed: BANGALORE CESTAT
2019-TIOL-2372-CESTAT-HYD
Vijaya Ferlloys Vs CC, CE & ST
CX - The assessee-company manufactures Cast Iron pipes, Cast Iron Fittings and Cast Iron Scrap - The issue at hand is whether the Cast Iron Fittings are eligible for exemption under Notfn No 06/2006-CE - The Revenue answered this question in the negative on grounds that the Notfn only covered pipes needed for delivery of water & did not include fittings - On appeal, the Commr.(A) held that that CI pipes with 20 cm diameter in respect of which there was a dispute were eligible for exemption Notfn No. 06/2006-CE dated 01.03.2006 but pipe fittings were ineligible for exemption Notfn No. 06/2006-CE dated 01.03.2006 as amended - Hence the present appeal by the assessee.
Held - The only issue at hand is whether the benefit of this exemption Notfn can be extended to pipe fittings not explicitly covered under Sr No 7 of the Notfn No 06/2006-CE - No benefit can be extended to pipe fittings in the absence of an exemption Notfn, in view of the strict interpretation of exemption Notfn as held by the Apex Court in Bharat Forge & Press Industries (P) Limited - Hypothetically, even if two views are possible w.r.t. an exemption Notfn, even then, that interpretation favoring the Revenue has to be adopted, as follows from the Apex Court's decision in Dilip Kumar - Therefore, the assessee is ineligible for exemption: CESTAT
- Assessee's appeal dismissed: HYDERABAD CESTAT
2019-TIOL-2371-CESTAT-MAD
Gem Granites Vs CGST & CE
CX - Appellant is a 100% EOU - Revenue alleged that appellant had used duty-free imported raw materials in the manufacture of granite slabs, hence benefit of Sl. No.3A of Notification No.23/2003 which precludes usage of such imported raw material, has not been complied with - SCN issued - demand confirmed, ordering enforcement of the B-17 Bond to appropriate the amounts demanded - appeal to CESTAT.
HELD: Discernibly, the duty-free exemption under Sl. No.3A of the Notification will only be available if the goods cleared to DTA have been produced or manufactured in India - the Department has demanded differential duty only on the allegation that the appellants have breached this condition - however, no evidence has been put forth by the appellants to dispute this allegation, except for the affidavit of P. Thiruvenkadam dated 19.3.2013 - the affidavit, without any supporting or corroborating evidence, will not have any evidentiary value - the appeal filed by the appellant will not succeed on merits: CESTAT [para 7.1, 7.2]
CX - Limitation - Since the SCN is a periodical one, subsequent SCNs cannot invoke the extended period of limitation as per the law laid down by the Apex Court in the case of Nizam Sugar Factory - 2006-TIOL-56-SC-CX - in the circumstances, the impugned Order affirming the demand for the period from 1.12.2008 to 31.10.2011, initiated by the SCN dated 19.7.2012, can be sustained only for the normal period of limitation, to be calculated backwards from the date of issue of the Notice - for this, the demand for the remaining portion will consequentially be set aside - for the limited purpose of re-calculating the duty liability for the normal period of limitation, the matter is remanded to the adjudicating authority - the appeal is partly allowed by way of remand : CESTAT [para 8.1, 8.2, 9, 10]
- Appeal partly allowed by way of remand: CHENNAI CESTAT
2019-TIOL-2369-CESTAT-HYD
Sri BioTech Laboratories Ltd Vs CC, CE & ST
CX - Assessee is engaged in manufacture of Single/Multi Micro Nutrient Mixtures etc. -based on the chemical examination of samples drawn, Show cause notice was issued alleging that micronutrient which are classified by the assessee under 3105 of CETA, 1985 was actually Plant Growth Regulators and would fall under CH 3808 9340 attracting higher rate of duty; that bio-pesticides/bio-fertilizers of microbial origin has to be classified under CH 3105 and not under CH 3002 and bio-pesticides / bio-fertilizers of plant / animal origin were proposed to be classified under 3105 / 3808 of CETA, 1985 - Original authority upheld the allegations insofar as classification proposed was concerned but held that the demands are payable only for the normal period of limitation - appeal to CESTAT by assessee as well as Revenue.
Held: The issue as to the classification of Micronutrients has been clarified by the Board vide Circular No. 1022/10/2016-CX dated 06.04.2016 and wherein it is explained that Plant Growth Regulators are different from nutrients (Micronutrients); that the Micronutrients (single/multi) have to be classified under 3105 only, therefore, the demand raised by the department classifying them as Plant Growth Regulators under 3808 cannot sustain and requires to be set aside - Consequently department Appeal No. E/23051/2014 is dismissed - Insofar as second issue is concerned with regard to the classification and demand of duty on Bio Fertilizers/ Bio-pesticides of Microbial origin, Tribunal in the case of T.Stanes and Co - 2008-TIOL-2582-CESTAT-MAD has analyzed the said issue and held that the correct classification of these items is under 3002 and not 3808, therefore, the demand of duty classifying the said products under 3105 and 3808 cannot sustain and requires to be set aside; correct classification of these products are under 3002, attracting nil rate of duty - however, Bio-Fertilizers of Plant/Animal origin and Bio-pesticides of Plant/Vegetable origin are classifiable under 3105 1000 and 3808 9910 respectively - original authority has set aside the demand beyond the normal period observing that the issue is of classification as well as interpretation and such order is upheld, however, penalties imposed are unwarranted and are required to be set aside - Appeal No. E/22786/2014 filed is allowed, Appeal No. E/22787/2014 is partly allowed and Appeal No. E/23051/2014, filed by the department, is dismissed: CESTAT [para 6, 6.1, 6.2, 6.3, 6.4]
- Appeals disposed of: HYDERABAD CESTAT
CUSTOMS
2019-TIOL-2370-CESTAT-MUM
Kuber Impex Ltd Vs CC
Cus - Appeal filed in the context of letter of Dy. Commr. in the context of provisional release of VRLA batteries imported by appellant - AR informed the Bench that SCN in context with the subject imports have already been initiated and the matter has been adjudicated vide order dated 05.09.2018.
Held: Considering the fact that the imported goods have already been released by the competent authority, Bench is of the view that the present appeal for provisional release of the imported goods cannot be considered at this juncture being infructuous- appeal dismissed: CESTAT [para 2, 3]
- Appeal dismissed: MUMBAI CESTAT |
