|
SERVICE TAX
2019-TIOL-2690-CESTAT-MUM
Morningstar India Pvt Ltd Vs CCGST
ST - Partial rejection of refund claim on unutilised CENVAT credits by Commissioner (A) is assailed by assessee in these appeals - Rejection of refund is on the ground that no nexus between input and output service exist - The ground of rejection on Chartered Accountant service was for the reason that Billing address is different in invoice and ST-2 return - In the course of argument and in the additional consolidated submissions, assessee submitted that billing address, as found in the invoice was covered in ST-2 return of assessee and without looking at valid ST-2 form for the disputed period, the said credit was denied though subsequent to such bill of 2014, CA had taken a new premises in 2015 with new registration - He enclosed ST-2 form in Annexure-G to justify that no variation exists between the invoices of the return filed - Even without accepting the said annexure as admissible piece of additional evidence as objected by department, it can be said that the ground is too technical to deny refund since name of the service provider remain unchanged, for which the said credit and consequential refund is held to be admissible - For Q-2, tax paid on commercial coaching and training services were held to be inadmissible by Commissioner (A) on ground that no service detail was provided and nature of services was not identifiable or services were provided for personal benefit of employees - Assessee submitted that such services were availed from Aptech Ltd. to provide training on computers to identified employees of the assessee to enhance their management and negotiation skills - But, no evidence is forthcoming that such stand was taken before the lower authorities for which assessee is required to justify the stand before Commissioner (A) - The Commissioner (A) had denied several CENVAT credits to the assessee on the ground that invoices were not submitted in respect of those services - Assessee in referring to judicial decisions in Kesarwani Zarda Bhandar 2016-TIOL-2939-CESTAT-ALL and Essel Propack Ltd. 2007-TIOL-1643-CESTAT-MUM submitted that challan is a valid document under Rule 9 of CCR, 2004 to avail CENVAT credit and in cases where service tax was paid under reverse charge mechanism, the same should have been allowed on the strength of valid challans produced by assessee - However, he conceded that in respect of other services, invoices could not be produced at the time of hearing, for which he produced sample invoices before Tribunal during the hearing to arrive at right decision - The appeals are allowed in-part by way of limited remand to the Commissioner (A) - The order of Commissioner (A) concerning rejection of CENVAT credit in respect of event related service, legal consultancy service, Chartered Accountant service is hereby set aside by allowing refund on those credits to the assessee - In respect of rejection of refund of tax paid on Commercial Coaching and Training services as well as refusal of refunds for non-submission of invoices/invalid documents, re-examination by Commissioner (A) is to be initiated with liberty to assessee to produce the relevant documents upon notice: CESTAT
- Appeals partly allowed: MUMBAI CESTAT
2019-TIOL-2689-CESTAT-MUM
Neeta Tours And Travels Vs CST
ST - Appeal No ST/174, 345/2012 and Cross Objections ST/CO/71/2012 -Appellants are providing taxable services under category of "tour operator services" -even though the services provided by the appellant became taxable from 1.4.2000, they did not obtain the registration, nor filed the return and neither paid the ST due on the services provided by them - SCN dated 30.8.2004 was issued demanding Rs.7.94 lakhs - demand confirmed along with interest, penalties imposed - on appeal,the Commissioner (Appeals) upheld the O-i-O- appellant before CESTAT [Appeal No.ST/345/2012] - they paid ST for the period 2005-06 and 2006-07 - for the period 1.4.2007 onwards, though they had provided tour operator service (point to point bus service) (upto5.7.2009), tour operator services (Chartered Bus Service) (upto 31.3.2010) and advertisement services (upto 31.3.2010), they had not filed ST-3 returns in respect of the services provided nor have paid any ST in respect of these services rendered - SCN dated 23.08.2010 was issued totally demanding Rs.4.77crores - demand confirmed along with interest, penalties imposed - on appeal, the Commissioner (Appeals) upheld the O-I-O - appellant before CESTAT [Appeal No.ST/174/2012]
HELD - The demands made on the appellants can be put in three categories viz (a) Tour Operator Services (Chartered Bus Booking) (b) Tour Operator Service (Point to Point Bus Service) & (c) Advertisement Services
- Appeals dismissed: MUMBAI CESTAT
CENTRAL EXCISE
2019-TIOL-2692-CESTAT-DEL
Kuchchal Light Metals Pvt Ltd Vs PR CE & ST
CX - M/s KLMPL is engaged in manufacture of Aluminum profiles/billets/ logs - They are also availing facility of cenvat credit of central excise duty paid on inputs - Based upon investigation, they were issued SCN demanding duty alleging that they have removed finished goods without payment of duty - The personal pen drive of Shri Sukhdev alias Saral Patidar, diary of Shri Ritesh Gupta, loading challans of M/s Parnami Transport and personal diary of Shri Sunil Atri of TCC Carriers have been relied upon - Shri Sukhdev alias Saral Patidar in his statement has stated that the pen drive is his own - There is no findings as to on whose instructions such data was maintained by him - Shri Sukhdev alias Saral Patidar has never clarified as to for what purpose the data was copied by him in his pen drive, nor has he said as to from which computer such data was copied - In such facts, the data found in pen drive is not a reliable piece of evidence - The Managing Director of Appellant concern, Shri Ritesh Gupta, in his statement has denied the data to be pertaining to the Appellant concern as well as stated that such data was not maintained under his instruction or directions - Shri Ritesh Gupta, during recording of his statement, has refused that his diary contains details of clandestine removal of any goods or that the goods covered by such loading challans were cleared by them clandestinely - It is also a fact that no statement of any of the buyers has been relied upon in SCN, though the SCN states that the buyers in their statement have accepted receipt of goods - None of the buyers has accepted receipt of alleged clandestinely removed goods by the Appellant - The loading challans of Parnami Transport are their internal record and no document from any of the buyers of the goods has been adduced as evidence - The transporters, M/s Parnami Transport, in their statement has stated that bilties or any other transportation documents were not prepared as some person from the appellant factory used to accompany the goods to Delhi - No such person has been identified by the transporter - Looking to the quantum of goods alleged to have been cleared without payment of central excise duty, it was obvious that hundreds of trips might have been undertaken to Delhi and the Revenue authorities could not find even a single person who used to accompany such goods - Thus, the evidences relied upon by Revenue are incomplete and do not have any evidentiary value - In absence of any buyer of the goods or transportation evidence, money receipts, the demands based upon alleged clandestine removal of goods, cannot be sustained - In case of demand of Rs. 1,53,163/-, the demand has been made against assessee on the ground that they have cleared the goods to M/s Kuchchal International, M/s Sunshine Marketing and M/s Baser Sales Corpn - Further, the quantity of goods, i.e. aluminum Section & profiles, were ordered to be confiscated - The demand has been made on the basis of alleged receipt of goods at the job workers/processors premises, i.e. anodizers or dealers premises - However, no investigation has been conducted at the Appellant's end or their factory and the demand is based on the records of such alleged job workers - Only on the basis of documents of the third parties, without any corroborative evidence at the end of the manufacturers, the demand does not sustain - The impugned order confirming demand against M/s KLMPL is not sustainable - Since the main appeal filed by M/s KLMPL is allowed, consequently, appeals filed by other Appellants are also allowed: CESTAT
- Appeals allowed: DELHI CESTAT
2019-TIOL-2691-CESTAT-AHM
Gujarat Victory Forgings Pvt Ltd Vs CCE & ST
CX - The demands were raised by three SCNs - The demand of Rs. 18,39,876/- has been made on the ground that the assessee has availed credits on the basis of invoices issued by M/s AIPL - The SCN also alleged that M/s AIPL had deposited payments in their bank accounts received from the assessee, but the same were withdrawn in cash - Reliance has also been placed upon the SCN issued to M/s AIPL by Commissioner, Ludhiana - Similarly, in case of demand of Rs. 64,57,520/-, the imported goods, which were purchased by assessee on high sea sale basis from Sri Lanka were alleged to have not been received and credit was availed without receipt of goods - The demand is based on statements made by transporters and CHAs who stated that the goods were transported in container locally - In case of goods received from M/s AIPL, the transporters were engaged by M/s AIPL and the assessee had made all inclusive payments to the suppliers, as per the understanding - There is no dispute about the fact that assessee had made payment to M/s AIPL through banking channels and the goods were duly entered in the accounting and statutory records of assessee- Similarly, in case of imported ingots purchased on high seas sale basis, payment was made to the importers through banking channels and even the payment to CHAs for clearance of goods was made by the assessee - In case of such imported goods, the goods were transported by importers as assesseehas made all inclusive payments to them- Similar is the situation in case of 26 consignments purchased by assessee from M/s Shri Vaishnudevi Metals, Jammu - The statutory and private records maintained by assessee clearly show the payments towards the goods as well as accounting of goods in their records and further usage and use in production - The finished goods manufactured out of such inputs have been cleared on payment of duty - There is no evidence that the assessee procured any goods locally to re-furnish the quantity, which is allegedly not received by them - Not a single seller of such goods has been brought on record to show that the assessee procured any other goods in lieu of goods, which has allegedly not been received by them - The assessee was not concerned or engaged in deputing the transporters - Though the reports from transport or commercial department check post states that the goods did not crossed the border posts, however in case of 24 trucks the documents bears stamp of check post - Thus for the reasons that the LRs do not bear the check-post stamp, it cannot be concluded that the goods did not pass through the transit state - The third party records, i.e. transporters record or their statements, cannot be made basis for alleging contravention by assessee - In a plethora of cases, it has been held that the statements of transporters being merely third party/co-accused cannot be solely relied upon to confirm serious charges and merely because the said check-post records do not show movement of vehicles from its record - In case of Motoabhai Iron & Steel Industries 2014-TIOL-704-CESTAT-AHM, the Tribunal in similar situation has held that the demands are not sustainable - The said order of Tribunal was upheld by Gujarat High Court 2014-TIOL-1617-HC-AHM-CX - Thus, the demands and penalty made against the assessee and penalty imposed on Shri V.K. Gupta are not sustainable: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
CUSTOMS 2019-TIOL-2177-HC-DEL-CUS Exim Cargo Services Vs CC
Cus - CBLR, 2013 - Forgery of import invoices, misdeclaration of imported goods and undervaluation - CESTAT held that it was imperative upon the Customs Broker to keep control and supervision over the conduct of their employees; that they cannot escape the vicarious liability for action of their employees and, therefore, penalty consequences under the Regulations were fully justified - appeal to High Court.
Held: There is nothing to show that the appellant, or any of its employees, could be attributed any conscious or deliberate mis-statement on behalf of the importer - In the instant case, there is no corroborative evidence or statement of anybody that the CHA had information, knowledge or has connived in the alleged forgery of invoices, mis-declaration and under-valuation - an element of mens rea, or any direct or indirect involvement attributable to the CHA through active knowledge or connivance is required to be proved in a proceeding for revocation of license of a Customs Housing Agent/ Customs Broker - Customs Broker/ Customs House Agent merely acts as a facilitator or agent for carrying out import operations and, therefore, it appears that there is no reason to attribute any negligence to the appellant in the instant case - CESTAT fell into error in attributing the statement of Rajender @ Raju to the appellant and on that basis, directing cancellation of the CHA license of the Appellant - Bench is of the view that there is no negligence which would be attributed to the appellant who acted on the basis of the instructions of the importer while filing the documents for clearance of the import - appeal succeeds: High Court [para 7, 8]
- Appeal allowed: DELHI HIGH COURT
2019-TIOL-2688-CESTAT-MAD Sri Steels Vs CC
Cus - The COD application has been filed by assessee seeking to condone the delay of about 4½ years in filing the appeal - On perusal of COD application, it seems that assessee has not even mentioned the number of days of delay in the application - Assessee has submitted that the delay occurred because the OIA was not communicated to them - The Proprietor of assessee Shri Vinod Kumar had attended the personal hearing on 26.03.2014 - Thereafter, the Proprietor has not enquired about the outcome of their appeal - It is only on 29.01.2019 that the very same Proprietor Shri Vinod Kumar has filed the RTI application requesting for details of the OIA - In reply to the RTI query, the department has furnished the number and date of OIA and also provided a copy of the same - The date of despatch is mentioned as 11.04.2014 and the mode of despatch is also shown as 'Speed Post' - The assessee has not preferred any appeal against the said reply furnished by the CPIO of the department under the RTI Act - There has been inordinate delay on the part of assessee to file the appeal - The plea put forward by assessee that department did not inform them as to whether the matter was referred to call book is not reflected anywhere in the records - This is a mere assumption made by assessee - There is huge delay in filing the appeal which remains unexplained by assessee - COD application is dismissed: CESTAT
- Appeal dismissed: CHENNAI CESTAT | |
