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SERVICE TAX
Samarjeet Singh Vs CC, CE & ST
ST - The appeal was directed against the order dated 24.12.2010 affirming the issuance of SCN and the order thereon 12.3.2010 under section 73 of FA, 1994 directing the petitioner to deposit of service tax and Education Cess on “Cargo Handling Services” undertaken on contract and completed for the National Fertilizers Ltd. - The SCN also proposed the penalty under sections 76, 77 and 78 and interest under section 75 of 1994 Act, in case of nonpayment - After due deliberation and by overruling the contention on behalf of respondent that an appeal under section 35(G) of Excise Act, 1944 will lie instead of a Writ Petition under Article 226/227 of Constitution which definitely would have, had the application for condonation of delay was dismissed on merit, eventually leading dismissal of appeal being barred by time - The petitioner has the remedy seeking restoration of appeal and the application for condonation which has been dismissed for want of prosecution - The impugned order dated 12.8.2014 is set aside - The matter is relegated to the Tribunal for decision in appeal on merit: HC
- Petition disposed of : MADHYA PRADESH HIGH COURT
2019-TIOL-2390-CESTAT-AHM
Antique Marbonite Pvt Ltd Vs CCE & ST
ST - The assessee is engaged in manufacture of tiles and carried out major expansion programme in their manufacturing capacity - For the said purpose, they decided to import certain machinery from various suppliers situated at China, Hongkong, and European countries - During audit, it was observed that the assessee have availed services in nature of Erection, Commissioning and Installation Services from Foreign Service provider, therefore, the assessee is liable to pay Service Tax - Both the lower authorities have concurrently held that the services of Erection, Commissioning and Installation is a composite contract of works contract - The period involved is August, 2006- January 2007 - During this period the Works Contract Service was not liable to payment of Service tax as held by Supreme Court in the case of L&T ltd. 2015-TIOL-187-SC-ST - Therefore, for this reason itself, the demand is not sustainable - Accordingly, the impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2019-TIOL-2389-CESTAT-MAD
GE Drilling Engineering Services of India Pvt Ltd Vs Commissioner of GST & CE
ST - The assessee is engaged in providing Engineering, Design and Drawing Services and such services are predominantly exported - They had filed refund claims for refund of unutilized credit - Same was rejected by holding that the same are time-barred - As per Section 11B of CEA, 1944, the relevant date for computation of period of one year in the case of export of services is not mentioned - The said section deals only with relevant date in cases of export of goods - The issue is with regard to computation of period of limitation in case of export of services - The said issue stands settled by Tribunal's Larger Bench decision in case of Span Infotech (India) Pvt. Ltd. 2018-TIOL-516-CESTAT-BANG-LB - Following the said decision, rejection of refund claims on the ground that it is time-barred is unjustified - The impugned orders are set aside: CESTAT
- Appeals allowed: CHENNAI CESTAT
2019-TIOL-2388-CESTAT-ALL
International Recreation Parks Pvt Ltd Vs CCE & ST
ST - Assessee has a Mall under the name "The Great India Place" at Noida, Uttar Pradesh - The Mall consists of commercial shops - Some of the shops have been sold to third parties and the rest were rented out for commercial use - They also provided Common Area Maintenance Service in respect of Shops sold and rented in the mall - A SCN was issued to assessee for the period from June, 2007 to September, 2011 in respect of 'Renting of Immovable Property Service' and for the period from April, 2009 to March, 2011 in respect of 'Management Maintenance & Repair Service' - During relevant time, there were various pronouncements by Constitutional Courts in respect of levy of service tax on 'Renting of Immovable Property Service'.
Held: Malafide on the part of assessee cannot be established for not charging service tax from the tenants and for not depositing the same - Assessee has relied on the Final Order of Tribunal in the case of M/s Jumera Promoters & Developers 2017-TIOL-2310-CESTAT-DEL wherein it was held that 'Renting of Immovable Property Service' has been subject matter of litigation in various judicial fora - Infact renting per sale was held to be not taxable by Delhi High Court in case of Home Solution Retail India Ltd. 2011-TIOL-610-HC-DEL-ST-LB including retrospective amendment in statutory provisions for the said tax entry - As such, the demand cannot invoke extended period as the issue was not in free from doubt - The finding of Tribunal in said case is squarely applicable in the present case - SCN for extended period in respect of demand of service tax on 'Renting of Immovable Property Service' was not sustainable - Further, in respect of demand of service tax on 'Management Maintenance & Repair Service' the entire service tax along with applicable interest was paid by assessee before issuance of SCN - Therefore, as provided under Sub-section 3 of Section 73 of FA, 1994 there was no need to issue SCN demanding the same: CESTAT
- Appeal allowed: ALLAHABAD CESTAT
CENTRAL EXCISE
CX - This petition under Article 226 of Constitution essentially challenges two orders, both dated 25th September 2018 - By the two impugned orders, the respondent not only finalized assessment for Assessment Years 2013-2014 and 2014-2015 respectively but also confirmed a duty demand under Section 11A of the Act and also imposed penalties under Section 11AC of the Act while confirming the two SCNs - It is an admitted position between the parties that for Financial Years 2013-2014 and 2014-2015 the petitioner's request for provisional assessment was allowed by respondent - This was on the petitioner furnishing bond and bank guaranties to the satisfaction of the Revenue - The assessments of both the financial years continued to remain provisional till the passing of impugned orders - Therefore, neither the impugned SCNs nor the impugned order had occasion to invoke Section 11A of the Act while finalising of the assessment - The relevant date as defined in Section 11A, in case of duty of excise which is provisionally assessed, would be the date of final assessment - So also, penalty under Section 11A of the Act consequent to the demand would not arise at the stage as the provisional assessment continues - In support, the petitioner relied upon the decision of Apex Court in ITC Ltd. wherein it s held that the occasion to invoke Section 11A of the Act in the case of provisional assessment would only arise on finalization of the amount - The aforesaid decision of Apex Court in ITC Ltd completely covers the petitioner's case - The impugned order is set aside: HC
- Petition disposed of : BOMBAY HIGH COURT
2019-TIOL-2387-CESTAT-ALL
Covestro India Pvt Ltd Vs CCE & ST
CX - Whether the transportation cost incurred by assessee for movement of goods from factory gate to depots which cost stands recovered by them from their customer is liable to be added in excisable value of their final product - The issue stands covered in same assessee's case in 2018-TIOL-1679-Allahabad laying down that the said transportation expenses cannot be part of the excisable value of the final product - By following the said decision, the impugned order is set aside: CESTAT
- Appeal allowed: ALLAHABAD CESTAT
2019-TIOL-2385-CESTAT-CHD
G R Ispat Udyog Vs CCE & ST
CX - M/s PRS Rolling Mills Pvt. Ltd. cleared excisable goods on invoices of assessee to availing benefit of SSI exemption without payment of duty - The invoices also don't have duty element - The payment against those invoices have been received by assessee and later on remitted to M/s PRS Rolling Mills Pvt. Ltd. - Case of Revenue is that the assessee is involved in dealing with the excisable goods without payment of duty, therefore, they are to be penalized under Rule 26 of CER, 2002 - The penalty under Rule 26 can be imposed only if the goods are held liable for confiscation - Admittedly, the goods were not held liable for confiscation - In these terms, the provision of Rule 26 is not invokable - Therefore, penalties imposed on assessee are set-aside: CESTAT
- Appeals allowed: CHANDIGARH CESTAT
CUSTOMS
2019-TIOL-2383-CESTAT-AHM
Ambuja Cement Ltd Vs CC
Cus - The two ships M/s. Ambuja Shakti & M/s. Ambuja Keerti having registration of Mauritius at the behest of M/s. Cement Ambuja International Ltd. - The aforesaid two ships are charted from M/s. Cement Ambuja International Ltd to assessee vide Bareboat Chartercum- demise basis agreement - The said ships were converted from foreign run vessel to coastal run vessel - A SCN notice was served to assessee, according to which it was alleged that on the date of import of ships got registered in the name of assessee, there is an import of ships and date of import to be taken on 24.04.2003 - Accordingly, assessee should have filed the Bill of Entry at the time of import and failing to obtain the registration ships were proposed to be confiscated - The case can be decided on limitation itself without going into the merit of the case - In this regard, there is no dispute on the date of import which has been admitted by Revenue and recorded in the SCN i.e. 24.04.2003, the SCN was issued on 27.08.2008 and it is clearly after five years - In the judgment of Tribunal in the case of Usha Stud & Agricultural Farms (P) Ltd 2011-TIOL-1431-CESTAT-DEL this Tribunal relying on the decision of T.V.S. Whirlpool Ltd which was upheld by Supreme Court, held that even there is no time-limit is prescribe for issuance of SCN in the matter on confiscation of goods, the time period provided under Section 28 can be invoked - Admittedly the SCN was issued after the period of five years, therefore, relying on the decision of Usha Stud & Agricultural Farms (P) Ltd , since SCN has not been issued within a period of five years, the SCN itself is time bar and adjudication of such time barred SCN will not sustain: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
