SERVICE TAX

2019-TIOL-2101-HC-MUM-ST

My Country Mobile Pvt Ltd Vs UoI

ST - Petitioner challenges the OIO passed by the Commissioner on the ground that the confirmation of the two show cause notices is in breach of the principles of natural justice inasmuch as no hearing was granted in respect of SCN dated 9 th April 2018 - Counsel for Revenue submitted that the SCN dated 9 th April 2018 is identical to the earlier SCN dated 9th June 2017 and in which regard the matter was heard.

Held: Bench finds that this grievance of the Petitioner in the facts of the present case is debatable and the same could be considered appropriately by the Appellate Authority under the Act - Petitioner had, in fact, specifically asked for personal hearing by a letter dated 21st May, 2018 in respect of the second show cause notice dated 9th April 2018 - Even if the Revenue counsel is correct in stating that both the show cause notices are identical, the demand for period may not necessarily be confirmed on the basis of the demand for earlier period being confirmed, as there could be a change in law and/or the fact which the Petitioner would be able to point out at the time of personal hearing, which the Petitioner has specifically asked for - impugned order dated 29th June, 2018 to the extent it confirms the show cause notice dated 9th April, 2018 is bad in law and cannot be sustained - Insofar as the impugned order dated 29th June, 2018 confirming the show cause notice dated 9th June, 2017 is concerned, Bench sees no reason to interfere with it - Petitioner is at liberty to challenge the same in appeal before the Tribunal - Tribunal, without taking up the issue of limitation, in case the appeal is filed within four weeks, take up the appeal for consideration on merits as the Petitioner was bona fide prosecuting the present Petition - Petition disposed of: High Court [para 5 to 9]

- Petition disposed of: BOMBAY HIGH COURT

2019-TIOL-2587-CESTAT-MUM

ST - Whether the appellant is entitled to cenvat credit of ST paid on the staff welfare (annual medical check up and insurance, related to life and medical) health insurance policies taken? HELD: In view of the precedent judgments of this Tribunal in Hindustan Coca-Cola Beverages Pvt. Ltd., which have been further accepted by Madras High Court in Ganesan Builders Ltd. 2018-TIOL-2303-HC-MAD-ST , it is held that under the fact that the health and medical benefit were provided to the group of employees and not to a particular employee in particular, the appellant is entitled to cenvat credit on the health insurance policy - accordingly the appeal is allowed, the impugned order is set aside, and appellant is entitled to consequential benefits, in accordance with law : CESTAT [para 9]

- Appeal allowed: MUMBAI CESTAT

2019-TIOL-2586-CESTAT-MUM

ST - Vide impugned order, ST demand of Rs.75.60 lakhs confirmed on the ground that the appellant did not pay ST on the taxable service, namely, manpower recruitment/supply agency service provided by it to various clients - appeal to CESTAT. HELD: The appellant did not produce the relevant bills/invoices and also the copy of contracts entered into between them and various parties for execution of the assigned task - since the terms and conditions of the contract are relevant for determining the taxability of service, in absence of those records/documents, the adjudged demands were confirmed on the appellant - at this stage, though the appellant has submitted sample copies of some of the relevant documents/contracts, the Bench is of the view that the entire set of documents/records are required to be examined at the original level to ascertain whether, the scope of work as per the contract is confirming to the definition of taxable service under the category of 'manpower recruitment or supply agency" service - therefore, by setting aside the impugned order, the matter is remanded to the original authority for passing of fresh adjudication order - in the result, the appeal is allowed by way of remand to the original authority : CESTAT [para 4, 5, 6]

- Matter remanded: MUMBAI CESTAT

CENTRAL EXCISE

Titagarh Wagons Ltd Vs CCE & ST

CX - The petitioner suffered a SCN dated May 6, 2014 to which the petitioner submitted a reply - In the reply, the petitioner set up various defences - One of such defences is a decision of Jurisdictional CESTAT Bench in Esab India Ltd. - In Esab India Ltd., it is held that, where the documents are not available, and where it is not practicable to maintain separate accounts of the inputs used in exempted and dutiable finished goods, in absence of separate rule to deal with such situation, it will be appropriate to ask the manufacturer to reverse the proportionate amount of credit - One of the charges against the petitioner is on such aspect - The impugned order proceeds not to consider Esab India Ltd. - It does not apply the law correctly - It proceeds to confirm the demand made in SCN without dealing with Esab India Ltd. - The confirmation of demand made in SCN by the impugned order is contrary to the ratio laid down in Esab India Ltd. - Therefore, non-consideration of Esab India Ltd. is an incident, which tantamounts to breach of principles of natural justice by the adjudicating authority - The impugned order is set aside: HC

- Writ petition disposed of: CALCUTTA HIGH COURT

2019-TIOL-2585-CESTAT-MUM

CX - Commissioner (Appeals) allowed the appeal filed by the respondent - Revenue before CESTAT. HELD: During the pendency of earlier round of litigation, the department had issued protective SCN dated 21.6.2016 proposing to recover the amount of refund sanctioned vide O-i-O dated 6.5.2016 - the present proceedings are arising out of this protective SCN - now since the refund of the amount of Rs.20.19 lakhs has finally been decided by the Tribunal in favour of assessee vide order dated 15.2.2018, in the absence of any challenge to the aforesaid order, the same has attained finality - therefore, there is no basis for the issuance of the SCN dated 21.6.2016 - in view of the aforesaid, the Commissioner has rightly dismissed the appeal filed by the Revenue - therefore, there is no merit in the instant appeal filed by the Revenue and the same is accordingly dismissed : CESTAT [para 2]

- Appeal of Revenue dismissed: MUMBAI CESTAT

2019-TIOL-2584-CESTAT-MUM

CX - In a case of clearance of excisable goods without payment of duty, the adjudicating authority confirmed CE duty amounting to Rs.5.30 lakhs with interest, imposed penalty of Rs.5.30 lakhs under section 11AC of the CEA read with rule 25 of the Central Excise Rules, 2002 [CER] on the appellant, and also imposed penalty of Rs.5.30 lakhs on Mr.Jasbir Singh Siwach & Ms.Kiran S Siwach, partners of the appellant firm under rule 26 of the CER - on appeal, the Commissioner (Appeals) upheld the O-i-O but reduced the penalty on Mr.Jasbir Singh Siwach & Ms.Kiran S Siwach, from Rs.5.30 lakhs to Rs.2 lakhs - appeal by assessee in the matter of imposition of penalty on partners. HELD: It is settled principle and there are umpteen number of decisions in which it was held that once a firm is penalised, separate penalty is not imposable upon the partner of the firm because partner is not separate legal entity and cannot be equated with the employee of the firm - therefore, as per the settled legal position, the authorities below are not justified in imposing the penalty on the partners of the appellant firm and, therefore, the penalties imposed on them are not sustainable and are hereby set aside - the appeal is allowed to the extent of setting aside the penalty against the partners : CESTAT [para 3, 4]

- Appeal partly allowed: MUMBAI CESTAT

CUSTOMS

Gold Star Line Ltd Vs CC

Cus - Petitioner seeks a direction to respondents to release and direct the return of the petitioners four containers which contain plants and which have been abandoned by the importers - counsel for respondent, on instructions, states that his Officers would re-inspect the four containers from the angle of plant quarantine and if found compliant and / or otherwise permissible would issue NOC to the Customs Department within one week and who would act upon the same and issue necessary permission in terms of Section 48 of the Act within a period of two weeks from the date of receipt of the NOC from respondent no.3 - This order should not be misconstrued as a direction to the respondent no.3 to issue a No Objection Certificate - Petition disposed of: High Court [para 3, 4]

- Petition disposed of: BOMBAY HIGH COURT

2019- 3-CESTAT-DEL

Cus - In a case of import of restricted items [refrigerant gas R-22] by concealment behind cartons of copier paper, the respondent was issued SCN dated 17.4.2014 for imposition of penalty under section 112 of Customs Act, 1962 - in adjudication proceedings, the charge of imposition of penalty on the respondent was dropped by the Adjudicating Authority - revenue is in appeal before CESTAT. HELD: Both the sides have heavily relied upon the audio conversation extracted from the iphone 5 belonging to Shri Rupender Singh Chadha, the main conspirator - the Bench is not in agreement with revenue's contention that the conversation proved respondent's involvement in clearance of impugned consignment for following reasons: (a) when DRI intercepted the consignment, those had already been examined and passed out of Customs charge was already given by the inspector and the Superintendent - thus, there is no allegation/ evidence of influencing any of the officer in clearing the container by the respondent (b) there is no evidence to suggest that the respondent was in contact with any of the other co-noticees - in the entire SCN, there is no allegation about the respondent having ever been received or made any call to any of them - the revenue's contention that there were telephone calls between respondent and Shri Rakesh Kumar, so as to cast aspersion on the respondent's conduct is not valid especially when Shri Rakesh Kumar was neither held to be a conspirator nor a co-noticee in the impugned SCN (c) no one, who has been indicted in the SCN as conspirators, have ever insinuated the respondent in any manner (d) averments in paragraph 22(vii) of the Review Order and paragraph 34.2 of SCN relate to incidents after the import and seizure of subject goods and do not in any manner prove that respondent was instrumental in import or clearance of subject goods - otherwise also, holding the respondent guilty on the basis of audio recording is beyond justification as even Shri Chadha in whose phone, recordings were found, has not recognized the voice or context of said recording - the retrieval was not made in presence of independent witness and the report of Central Forensic Science Laboratories is not conclusive as conversation is not clear at many places/inaudible/paused, rendering it inadmissible as evidence - the audio recording as observed by the DRI and Commissioner in the impugned order is dated 11.5.2013 after the clearance of the cargo and detention/seizure by the DRI - thus, the audio recording cannot be construed as an admissible piece of evidence relating to import and clearance of contraband which took place on 16.4.2013 and 20.4.2013 respectively - thus, no discrepancy found in the finding of Commissioner that respondent was neither involved in assessment nor examination of the consignment, and hence had no direct or indirect role in the clearance of consignment and thus case of imposition of penalty under section 112 had not been made out against him - in view of above analysis, no infirmity found in the impugned order as far as it relates to respondent and appeal filed by the revenue is dismissed: CESTAT [para 9, 10, 11]

- Appeal of Revenue dismissed: DELHI CESTAT