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SERVICE TAX
2019-TIOL-2463-CESTAT-HYD
D E C Infrastructure And Projects India Ltd Vs CCE & GST
ST - Assessee rendered the services under category of "works contract services" to the Government Authorities (CPWD, MES and JNTU) and avails the exemption under Sl. No. 12 of Notfn 25/2012-ST for construction for philanthropic purposes, education (non-commercial purposes) - They filed a refund application under Section 11B of CEA, 1944 made applicable to Service Tax under Section 83 of FA, 1994 - The Assistant Commissioner after due process sanctioned the refund under Notfn 25/2012-ST r/w Section 102 of Finance Act 2016, to the assessee with a condition that the assessee should submit the documentary evidence towards proof that the refund amount was passed on to the Government authorities.
Held: Section 102 of FA, 1994 prevails over the general provisions of Section 11B to the extent of inconsistency, i.e., to the extent of granting an extra window for filing the refund claim - However, the remaining part of Section 11B have not been modified - The form of applying for refund, the eligibility of refund on merits as well as the concept of unjust enrichment apply - There is no dispute regarding the merits or the time limit - It is not in dispute that the burden has been passed on to the customer - The Assistant Commissioner, in his O-I-O, replaced this scheme provided for by the Parliament in Section 11B with his own scheme, viz., despite passing on the burden to the customers, refund will be granted and after taking the refund, you may return it to the customers within 30 days - There is clearly no provision for such a scheme and the Assistant Commissioner cannot arrogate to himself the powers of the Parliament and modify such a scheme - Correctly, the First Appellate Authority set aside such an order - However, he has not ordered recovery of the amount so refunded - The judgement of High Court of Gujarat in case of Ranjeet Singh Choudhary 2018-TIOL-887-HC-AHM-IT was in a different factual matrix - The assessee or any other person in his place could have, after undertaking to reimburse the refunded amount to their customers, not done so - The modification of the scheme of ensuring that there is no unjust enrichment laid down in Section 11B if modified by the officers can have far reaching, disastrous consequences - Undisputedly, assessee not only received the refund but also gave it back to the customers - Both sides agree that there is no net loss to the exchequer or gain to the assessee: CESTAT
- Appeal allowed: HYDERABAD CESTAT
2019-TIOL-2462-CESTAT-HYD
Green Leaf Tobacco Threshers Ltd Vs CC, CE & ST
ST - The issue involved is regarding demand of service tax from assessee under the category of BAS for rendering of services in relation to threshing and redrying of tobacco leaves, as also small demand on GTA Services - The Adjudicating Authority has upheld both the demands so raised rejecting the argument of assessee with threshing and redrying of tobacco leaves is in relation to agriculture - Identical issue was decided by bench in case of M.L Agro Products Ltd. wherein, it was held that service tax liability on threshing and redrying of tobacco leaves does not arise under the category of Business Auxiliary Services - The said judgment of Tribunal was carried in Civil Appeal by the revenue before the Apex Court and Apex Court dismissed the said Civil Appeal, after condoning the delay - Since identical issue is now decided by Apex Court by upholding the order of Tribunal in case of M.L Agro Products Ltd. , the impugned order on this point is unsustainable and is set aside - The appeal of assessee on the issue of tax liability under category of BAS stands allowed - As regards service tax liability on GTA services, the said liability arises and accordingly the demand of Rs. 34,000/- along with interest on GTA services, but noticing that the assessee could have entertained the bonafide belief that the tax liability may not arise on GTA services, by invoking the provisions of Section 80 of FA, 1994, the penalties imposed on assessee is set aside: CESTAT
- Appeal disposed of: HYDERABAD CESTAT
CENTRAL EXCISE
2019-TIOL-2461-CESTAT-KOL
Das Brothers And Company Vs Commissioner of CGST & CX
CX - The assessee-company manufactures excisable goods and avails facility of Cenvat credit - During the relevant period, part of the total duty liability was discharged by making use of Cenvat credit - The balance duty was to be paid in cash, but was not paid by the due date, resulting in default of payment of duty - The Revenue opined that during the default period, the assessee was to pay duty on goods cleared on consignment to consignment basis only in cash, without making use of credit accumulated in the Cenvat credit a/c - However, the assessee had continued to make use of cenvat credit for discharging duty during the default period - The Revenue issued an SCN u/r 8(3) & 8(3A) of the CER 2002, proposing to raise duty demand in cash which was already debited from the Cenvat credit a/c - On adjudication, the duty demand with interest was confirmed & penalty was also imposed - On appeal, the Commr.(A) sustained the O-i-O - Hence the present appeal.
Held - The issue at hand stands settled in various decisions passed by the High Courts in Goyal MG Gases Pvt. Ltd. vs. Union of India , Indsur global Ltd. V. Union of India, Sandley Industries v. union of India and Precision Fasteners Ltd. V. CCE - A collective reading of these judgments clarifies that there is no bar in making use of the accumulated Cenvat Credit for making payment of Central Excise Duty even during default period - Besides, the Calcutta High Court in Goyal MG Gases Pvt. Ltd. vs. Union of India held the provisions of Rule 8(3A) to be ultra vires - Hence it is held that there is no bar to using accumulated Cenvat credit for paying Excise duty even during default period - Hence the O-i-A in challenge merits being quashed: CESTAT
- Assessee's appeal allowed: KOLKATA CESTAT
2019-TIOL-2460-CESTAT-MAD
Chennai Petroleum Corporation Ltd Vs Commissioner of GST & CE
CX - The assessee-company filed two claims for refund of excess duty paid by them - Such refund claims were rejected due to non-submission of the requisite documents - The assessee filed the refund claims again, but they were rejected this time on grounds of being time barred - On appeal, the Commr.(A) sustained the decision of the refund sanctioning authority - Hence the present appeals.
Held - The assessee initially filed the refund claim within the one year limitation period - Such refund claims were then returned by the sanctioning authority - Perusal of such letter shows that it does not mention the date which the assessee could re-submit the refund claims along with necessary documents - Besides, such letter did not reject the refund claims on any ground - The same is not an order in which the refund sanctioning authority applied mind for reaching a decision - Such claims were merely returned to the assessee - When the refund claims have been returned and not rejected and when they have been filed again, such filing has to be considered as resubmission of the refund claims and not as fresh refund claims - Hence the refund claims re-submitted by the assessee are not barred by limitation - The matter warrants remand to the refund sanctioning authority to decide the same on merits - The orders rejecting the applications are quashed: CESTAT
- Assessee's appeals allowed: CHENNAI CESTAT
2019-TIOL-2459-CESTAT-MAD
Chemplast Sanmar Ltd Vs Commissioner of GST & CE
CX - The assessee-company manufactures Caustic Soda Lye/Flakes & Ethylene Di-Chloride - On verification of accounts, it was noted that the assessee engaged a company to provide port operations and ship management services such as pilotage, towage, mooring as well as supply of manpower for providing such services at the Marine Terminal Facility owned by the assessee for clearance of Caustic Soda Lime through marine tanker vessels to Vizag Port and thereon to the customer - The Revenue opined that the services provided by such company is of the nature of outward transportation of goods & the assessee is ineligible to avail credit of the service tax paid for those services as the place of removal is the factory gate of the assessee - SCN was issued proposing to disallow credit and recover the same with interest & penalty - On adjudication, duty demand with interest was confirmed and penalty was imposed u/s 11AC of the CEA 1944 - On appeal, the Commr.(A) sustained the O-i-O - Hence the present appeal.
Held - It is seen that the company had been engaged to provide Port Operations, Ship Management Services and also manpower supply service at MTF, Karaikal Port - Such MTF is owned by the assessee - So also from the factory gate, the pipeline is laid upto the MTF for transportation of the final product, namely Caustic Soda to the MTF, from where it is transported to Vizag Port - The assessee explained in the SCN that the activity of the company hirec is not outward transportation of goods from the factory - In the present case, the goods are not transported by road and were in fact transported by pipeline & there is no issuance of consignment note - There is no evidence of the assessee having paid any freight charges for the transportation of goods from the factory gate to the MTF - The goods are transported through the pipeline owned by the assessee - The assessee claimed thta the goods passed on to the buyer only at The Vizag Port and not at the factory gate - The orders in challenge do not talk about the purchase order or the agreement for delivery of the goods upto the Vizag Port - When the ownership over the goods remains with the assessee till the buyer's premises, the sale takes place only at the buyer's end - Hence it is the assessee's duty to establish whether the ownership of the goods is with the assessee till they reach the buyer's premises - If the assessee agrees to supply the goods upto the buyer's premises at its own risk, then the ownership belongs to the assessee till the goods reach the buyer's premises - As there is no discussion regarding the purchase order and the agreement to deliver the goods upto the buyer's premises, the matter warrants remand, for determining the place of removal and then decide the eligiblity for credit: CESTAT
- Case remanded: CHENNAI CESTAT
CUSTOMS
2019-TIOL-2458-CESTAT-DEL
Sunrise Freight Forwarders Pvt Ltd Vs CC
Cus - The assessee was found to be dealing with some prohibited goods and therefore, through an Order dated 12.02.2019 Custom Broker License of assessee was suspended under Regulation 16 and also imposed with penalty under Regulation 18 of CBLR, 2018 - There is nothing in proceedings to suggest that the assessee was put on notice for imposition of penalty under Regulation 18 of said Regulations - There is no doubt that the Commissioner is having power to impose penalty under Regulation 18, however, the said power needs to be exercised by observing principles of natural justice - Assessee was not put on notice to defend themselves against imposition of penalty - Therefore, the penalty imposed is not sustainable, same is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2019-TIOL-2457-CESTAT-KOL
CC Vs Tripati Balaji Enterprises
Cus - Revenue has filed Miscellaneous Applications for withdrawal of their appeals - Accordingly, the appeals are dismissed as withdrawn: CESTAT
- Appeals dismissed: KOLKATA CESTAT |
