SERVICE TAX

2019-TIOL-2558-CESTAT-HYD

ST - The assessee claimed refund of service tax paid on services used for SEZ authorized operations in terms of Notfn 12/2013-ST - After issuing SCNs and adjudication, the claims of assessee were partly allowed and partly denied - As regards to Banking & Financial Services, the documents in question do not even have the name of assessee - Therefore, no credit of service tax or refund of service tax is admissible on such services because it lacks the basic information essential even for the banking services - It is submitted that he would be in a position to collect relevant information to substantiate his claim that these documents pertain to services received by them - Accordingly, for this purpose, the matter is remanded to the original authority before whom they will produce all available evidence to satisfy him - As Rent a Cab services, refund of service tax is allowed even in respect of services availed prior to approval of UAC - With regard to Technical Inspection and Certification service, matter is remanded to original authority to enable the assessee to produce evidence to establish that they have paid to the vendor with respect to each of the invoices - As regards to Technical Inspection, in respect of the disputed invoices, although the invoices were raised on dates prior to the period of refund they had received these invoices only during that quarter and hence could only claim with respect to that quarter - In view of clarification provided by assessee, assessee is entitled for refund of service tax in respect of this amount: CESTAT

- Appeals partly allowed: HYDERABAD CESTAT

2019-TIOL-2557-CESTAT-MUM

ST - Appellants are engaged in providing services of facilitating disposal of hazardous solid waste generated by various industrial units - alleging that the services of disposal of industrial hazardous solid waste provided to various customers fall under the taxable category of 'Support Services of Business or Commerce' and taxable w.e.f. 1.5.2006, periodical SCNs issued to the appellant demanding total ST of Rs.33.42 crores for the period from 2006 to 2012-13 – demands confirmed, hence appeal before CESTAT.

HELD: Appellants, for the first time, have raised the issue of admissibility of benefit of notificati on no.42/2011-ST, dated 25.7.2011 claiming that the appellants collected enrollment fee from the respective industrial units who became members of the common facility for disposal of hazardous waste provided by the appellant - the eligibility of notification which was given retrospective effect by Finance Act, 2012, need to be examined to consider its applicability to the facts of the present case - in these circumstances, in the interest of justice, it is prudent to remand the matter to the adjudicating authority to examine the issue afresh by taking into consideration the eligibility of said exemption notification to the services provided by the appellant to various industrial units - appeal is allowed by way of remand : CESTAT [para 5, 6, 7]

- Matter remanded: MUMBAI CESTAT

CENTRAL EXCISE

2019-TIOL-2556-CESTAT-AHM

CX - The assessee had reversed the credit in view of dispute in interpretation to availment of cenvat credit - They voluntarily came forward to debit the credit in case it is found that the same is not available to them - However, since they were of the view that they are eligible for the credit they also intimated to the department that they reserve their right to avail credit in case if it is found that the same is available to them - Since no objection was raised on their credit availment, they applied for reversal of credit - It cannot be said that the assessee had plainly debited the credit - Had the credit was found to be not available to them, the same would have been recovered and other penal consequences would have followed - But here the assessee themselves debited the amount with reserving their right to claim re-credit of the same - This explicit condition stated by assessee in their letter is nothing but expression of reversal having been made "Under Protest" - Only for the reason that the words "Under Protest" is not appearing in the letter, it cannot be construed that the reversal was not under protest - In case of Indian Cements Ltd. - 2002-TIOL-433-SC-CX , the Apex Court has held that where an assessee raises an objection about the levy and the department has insisted for payment, the letter has to be considered as protest - In the present case, intention of assessee making reversal "Under protest" was apparent from content of their letter - The refund of credit is permissible - The claim of assessee is not time barred and they are entitled for the refund - However as the Appellate Commissioner has not given his findings on eligibility of refund on merits i.e whether the assessee is otherwise eligible for the credit in the light of the FTP Scheme, it is appropriate to remand back the matter to the Appellate authority for deciding this limited aspect - Appeal is allowed by way of remand: CESTAT

- Matter remanded: AHMEDABAD CESTAT

2019-TIOL-2555-CESTAT-BANG

CX– Cenvat credit denied on Clearing & Forwarding [C&F] charges for export of goods up to Chennai Port on the ground that port of export is Bangalore ICD and not the Chennai Port by relying upon the Board's Circular No. 999/6/2015-CX dated 28.2.2015 – appeal to CESTAT.

HELD: In the present case, as per the Bill of Lading, the port of loading is the Chennai Port and not the ICD Bangalore –further, the decisions [Bhilai Engineering Corporation Ltd. – 2015-TIOL-2645-CESTAT-DEL , Adani Pharmachem (P) Ltd. – 2008-TIOL-1582-CESTAT-AHM ] relied upon by the appellant are squarely applicable in the present case and it has been consistently held by the Tribunal that in the case of export of goods, port is the place of removal where the actual loading of goods happens and till that place, all the services fall in the definition of input services and are eligible for CENVAT credit –following the ratio of the cited decisions, impugned order is set aside and appeals are allowed : CESTAT [para 6]

- Appeals allowed: BANGALORE CESTAT

2019-TIOL-2554-CESTAT-DEL

CX - Assessee is in appeal against impugned order wherein the appeal of assessee has been dismissed on the ground of limitation observing the delay in filing the appeal as that of 218 days - The Commissioner (A) has no power to condone the delay beyond the period of one month then the period of 60 days from the date of the order appeal against - While Relying upon the decision of Singh Enterprises - 2007-TIOL-231-SC-CX , it is held that there is no infirmity in the said order - The application is not sustainable for the said reason and also for the reason that the reason mentioned in the application for the said delay not appears to be sufficient cause specifically in the absence of any medical records for the purpose: CESTAT

- Appeal dismissed: DELHI CESTA

CUSTOMS

2019-TIOL-2069-HC-MAD-CUS

Cus - The appeal has been filed by assessee against the order of Tribunal by which their appeal has been dismissed under which the assessee had challenged the imposition of penalty and redemption fine - No question of law arises under Section 130 of the Act for consideration by this court - The assessee ought to have approached the Departmental Authorities for waiver of the penalty and in such circumstances, in view of a very low and marginal difference of chemical material content in the goods imported and that too is one of several components and that other parameters as given in Laboratory Report being within limit is not disputed by parties, would bring the commodity in question under "Non Alloy Steel" and Authority concerned should have taken a liberal view of the matter regarding the imposition of penalty and redemption fine in question imposable on the goods - Therefore, with the liberty to assessee to approach the competent Authority concerned for waiver of fine and penalty, the present appeal is disposed of: HC

- Appeal disposed of: MADRAS HIGH COURT

2019-TIOL-2553-CESTAT-MUM

Cus - The assessee is in appeal against impugned order which, in dispute on the import of marble slabs that was subject to policy restriction limiting free importability only to slabs with a value more than US $ 60/sq metre, upheld the order of the original authority - The confiscation of 21.71 sq meter of 'marble slabs' that were in excess of declaration is sustainable in law - The enhancement of assessable value appears to have relied upon four bills of entry of which only two pertains to the period prior to the import effected against bill of entry - However, it is not ascertainable from the records if those two bills of entry can be accepted as benchmarks or had been subject to re-assessment in like manner and, thereby, not appropriate for subjecting the impugned goods to revised valuation - The first appellate authority, while confirming the competence of assessing officer to reject the declared value on the basis of contemporaneous imports, has failed to subject the conformity of second action, viz., the determination of assessable value, with Customs Valuation Rules, 2007 - In these circumstances, the enhancement of value does not appear to be sustainable in law - As the goods are, admittedly, imported at a value below the threshold prescribed for free importability and the policy had come into force on 4th August, 2011 with shipment occurring thereafter, the plea of assessee that the quotation received in June 2011 as proforma invoice would entitle them to relief in accord with the transitional provision in the Foreign Trade Policy is not acceptable - While setting aside the valuation, Tribunal uphold the confiscation of goods under section 111(d) of Customs Act, 1962 - The fine payable for redemption is reduced to Rs 2,00,000/- and the penalty to Rs 1,00,000/- The impugned order is modified to this extent: CESTAT

- Appeal partly allowed: MUMBAI CESTAT

2019-TIOL-2552-CESTAT-DEL

Cus - The importers had imported certain pearls and declare description of the same in the invoice in the bills of entry for clearance of the same - On the basis of valuation report, the revenue adopted the higher value which is on higher side and demanded duty from the assessee and held that goods were liable for confiscation - Accordingly, redemption fine was imposed and penalties on all the assessees were also imposed - The assessee have failed to give complete description of imported goods with regard to size, colour and shine and, therefore, valuation are required to be reassessed as the value declared by assessees are not acceptable in the absence of description of goods as there is discrepancy in details and prices of imported goods, therefore valuation is required to be done in this case - There are various complaints against Shri Apurva Jagdish Mehta, therefore, his reports are not acceptable - As there is no valuation report by approved valuer, therefore, a panel is appointed to value the pearls who shall examine the remnant samples of goods in question, and thereafter to determine appropriate value of imported goods and the same shall be the basis of valuation of imported goods - The panel shall be of an officer of department who is expert in the valuation of pearls, an office bearer of Gem and Jewellery Association, Jaipur and one independent valuer who is having knowledge of valuation of pearls in trade - The panel of these three people shall examine the goods and to arrive the correct approximate value of imported goods: CESTAT

- Appeals disposed of: DELHI CESTAT