2019-TIOL-430-SC-ST

CST Vs Sidhi Designers Pvt Ltd

ST - The present appeals of the Revenue were filed against an order passed by the Tribunal wherein the Revenue's appeals were dismissed on the grounds that the issues raised therein were already adjudicated by the High Court.

Held - It is seen that the subject matter before the High Court in the writ petition filed by the assessee, was limited to the rejection of refund claim by the Revenue - Hence the observations of the High Court must be understood in that context only and not as having adjudicated the correctness of the order passed by the adjudicating authority, which was the subject matter of appeal before the CESTAT - Hence the Tribunal's order merits being quashed and the parties relegated to the Tribunal for reconsideration of the appeal on merits - No opinion on merits is expressed by this bench: SC

- Case remanded: SUPREME COURT OF INDIA

2019-TIOL-2209-HC-MUM-ST

WNS Global Services Pvt Ltd Vs UoI

ST - Refund - Rule 5 of CCR, 2004 - Petitioner challenges the Order-in-Original passed by the Assistant Commissioner rejecting the refund claimed by the Petitioner - Petitioner centralized its registration at Mumbai of all their units and the refund claims were subsequently transferred to the office of the Commissioner at Mumbai - Petitioner reiterates that the original documents in respect of the refund claims have been submitted to the Service Tax Office at Gurgaon, Haryana, however, authority which was to process the claim of refund received no document claimed to have been submitted by the Petitioner; that petitioner never produced copies of the claims i.e. applications for refund of CENVAT Credit under Rule 5 of the CENVAT Credit Rules; that in the absence of original input and output invoices, it is not possible to ascertain authenticity of the claim - Assistant Commissioner, by the impugned order rejected the claim of refund of the Petitioner of Rs.3,32,77,659/- - Petitioner, therefore, seeks to invoke writ jurisdiction of this Court in spite of an alternate remedy of an Appeal under Section 35 of the Central Excise Act, 1994 and submits that the original documents submitted by the Petitioner have been lost by the Respondent - Department which has made the Petitioner virtually remediless.

Held: Assistant Commissioner states that no details of original documents which were submitted to the Commissioner, Gurgaon has been given by the Petitioner and it cannot be construed that they have submitted original documents - there is no consensus as regard the fact that the necessary original documents were submitted by the Petitioner and were lost by the Respondent–Department, therefore, a factual enquiry will have to be then undertaken to find out whether original documents were submitted by the Petitioner, which were the original documents that were submitted, and assuming such original documents were submitted, whether they were germane for the purpose of the enquiry in respect of refund as contemplated in law – as the Petition involves disputed question of fact and that a statutory remedy of appeal is available to the Petitioner u/s 35 of CEA, 1944, Bench is not inclined to exercise its writ jurisdiction - If the Petitioner files an appeal before the Commissioner of Appeals within 60 days, same will be considered on its own merits - Writ Petition is rejected: High Court [para 7 to 10]

- Petition rejected: BOMBAY HIGH COURT

2019-TIOL-2717-CESTAT-DEL

IDP Education India Pvt Ltd Vs CCE

ST - The assessee had entered into an agreement with IELTS, Australia - This IELTS Centre Agreement granted a license to assessee to operate the business of IELTS Test Centers from various locations in India - IELTS, which is called 'International Standardized Test of English Language Proficiency' is widely accepted as a reliable means to determine whether a candidate can study in english medium language - The demand of Service Tax is based on the allegation that assessee provided 'commercial training or coaching' services to students - A perusal of relevant clauses of agreement clearly show that the agreement is with regard to holding of IELTS Test by assessee - There is nothing in agreement which may require the assessee to coach or train any candidate desires of appearing at the IELTS Test nor any consideration in terms of money is earmarked for this purpose - 'Commercial training or coaching' has necessarily to be provided by a 'commercial training or coaching centre' which centre has been defined to mean any institute or establishment providing commercial training or coaching for imparting skill or knowledge or lessons on any subject or field - The holding of a test cannot by any stretch of imagination, be considered as imparting skill or knowledge or lessons on any subject or field - In any view of the matter, assessee has not received any consideration for any of these alleged activities as is not only clear from the agreement but also from the receipts given to students - To arrive at a conclusion that the assessee was conducting coaching or commercial training activity, it was imperative for Commissioner to have based his conclusion on some positive evidence in this regard, rather than drawing such an inference - In any case, for levy of service tax, there has to be an evidence that the assessee was conducting commercial coaching or training - The earlier SCN pointed out three discrepancies out of which only one was regarding non-payment of Service Tax on income received for providing training to students taking the IELTS Test - In the present SCN dated 6 May, 2014, the allegation is only with regard to non-payment of Service Tax for the income received towards test for the students appearing at the Test - The SCN dated April, 2013 refers to three relied upon by the documents, which have been enclosed with the appeal and these documents pertain to the holding of the Test - The contention of Department that the holding of Test is itself a skill and, therefore, the assessee is providing commercial training or coaching cannot also be accepted - No skill or knowledge is being provided to the candidates appearing at the test - Thus, it is not possible to sustain the impugned order passed by the Commissione - It is, accordingly, set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2019-TIOL-2716-CESTAT-MUM

CST Vs Lamhas Satellite Services Ltd

ST - The assessee-company claimed refund in terms of Rule 5 of CCR 2004, for refund of accumulated credit against export of services - Upon consideration of the same, the Revenue rejected all four claims of the assessee - Later, the Commr.(A) partly allowed the assessee's appeals - Hence the present cross appeals filed by the assessee and the Revenue.

Held: The assessee raised the preliminary ground that the Commr.(A) by treating the service provided by them as intermediary services, has travelled beyond the scope of the SCN - The SCN treated the services provided by the assessee as having been provided in India, owing to which they could not qualify as export of service - The SCN sufficiently discloses the grounds for making disallowance for treating the services to be provided in India - The only omission is non-mention of the relevant provisions of the Place of Provision of Service Rules 2012 - Where all the ingredients for charge for treating the services as having been provided in India have been brought out in the SCN, not mentioning the exact provisions of Place of Provision of Service Rules 2012 in the SCN would not be fatal to the SCN - Moreover, in terms of Rule 6A(1)(d) for a service to qualify as export of service, the place of provision should be outside India - In the present case, the services were provided in India as per the POPS Rules 2012 & so do not qualify as export of services: CESTAT

Held: Intermediary services - From the scheme of the services, it is seen that the head office of the service recipient is outside India & was billed by the entity located in the USA - Hence the services were held to be provided in USA - In the present case, except for routing the payment through the assessee, the service was provided directly by the Channel Distribution Partners to the recipient directly - Hence the services provided by the assessee in this regard qualify as intermediary services - Moreover, the present case is not a case of bundled services naturally bundled, but is a case of providing services which as per the contract itself are not bundled together & need to be examined on its own - Hence the Channel Carriage Service is not provided by the assessee on his own account and so qualifies as an intermediary service - Hence the same cannot be added to the export turnover for determining refund of accumulated credit u/r 5 of CCR 2004 - However, the professional fee & service fee towards services provided by the assessee on its own account, must be added to the export turnover - The refund claims be disposed off in such terms: CESTAT

- Revenue's appeal allowed: MUMBAI CESTAT

2019-TIOL-2715-CESTAT-KOL

CCGST Vs Kolkata West International City Pvt Ltd

ST - The assessee is registered with Department as service tax assessee - On scrutiny of documents, it was observed that the assessee has taken service tax credit during the period 2009-2010 on the input services - During the period 2010-2011, it was observed that the assessee have availed both Cenvat Credit and abatement under Notfn 01/2006-ST as amended - For the year 2010-2011 & 2011-2012, the allegation is that the assessee have made expenditure in foreign currency towards the professional and consultancy charges in respect of which they had discharged the service tax liability - Show cause cum demand notice was issued - Regarding service tax demand of Rs.13,01,708/-, the assessee have reversed the amount - As regards, service tax demand for the period, 2010-2011 and 2011-2012, they have paid the entire demand of service tax along with interest and the same stands appropriated by the adjudicating authority - It is also observed that the demand of Rs.40,000/- being late fees for the service tax return for the period April, 2011 to September, 2011 and October, 2011 to March, 2012, has also been paid and there is no occasion to impose any separate penalty for the same and the Commissioner (A) has rightly set aside the same - Since the assessee has paid entire amount of service tax along with interest before issuance of SCN, the Commissioner (A) has rightly set aside the penalty by invoking the provisions of Section 80 - No reason found to interfere with the order of Commissioner (A) and accordingly, the appeal filed by Revenue is dismissed: CESTAT

- Appeal dismissed: KOLKATA CESTAT

CENTRAL EXCISE

CCE, C & ST Vs Bakelite Hylam Ltd

CX - During the relevant period, an O-i-O had been passed against the assessee raising duty demand u/r 9(2) of the CER 1944 and imposing penalty u/r 173Q - Thereafter, appeals were filed both by the Revenue as well as by the assessee - When the assessee's appeal was listed for hearing, the same was allowed by the Tribunal - It was held that when there were clear cut findings that the ex factory price was genuine & there was no appeal of the Revenue against the finding, the demand was set aside - Later, the Revenue moved application for recall of the Tribunal's order & the same was allowed & the appeals were listed for hearing - Subsequently, the Tribunal dismissed the Revenue's appeal by relying on its earlier order - Hence the Revenue's appeal.

Held - The basis on which the Tribunal took a decision, namely its earlier order, is flawed since the earlier order relied upon was recalled - Hence the proceedings merit being remanded to the Tribunal in respect of the inadvertent error which cropped up in the judgment - Hence the order of the Tribunal is quashed and the appeal restored to the Tribunal for fresh disposal: SC

- Case remanded : SUPREME COURT OF INDIA

2019-TIOL-2714-CESTAT-AHM

Star Tubes And Metals Pvt Ltd Vs CCE & ST

CX - In a case of clandestine clearances of copper tubes and pipes, the appellants were issued SCN demanding CE duty of Rs.1.15 crore - demand confirmed along with interest, penalties imposed, therefore, appeal before CESTAT.

Held: Case against the appellant unit is mainly booked on the basis of records of transporter M/s.Rajasthan Goods Carrier [co-appellant] and statements of its employee - further, the fact remains that the goods were also seized from the transporter's premises - the appellant is also aggrieved that they were not allowed inspection of documents - further, the unnumbered challan referred in SCN and panchnama drawn at Rajasthan Goods Carrier was not available - the appellant has also submitted that the Annexure - 'A/1' showing alleged clearances by appellant is without any basis as no records evidencing the same is available - the Panchnama and other records of which inspection has been sought by the appellant should have been provided to the appellant - the documents relied upon in the SCN also should have been provided to the appellant to prepare their case - in such case, the Bench considers it fit to remand the case back to the adjudicating authority to provide the copies of records as pleaded by the appellant and to decide the case thereafter expeditiously after granting them opportunity of being heard - the impugned order is set aside and the case is remanded back in above terms - all the appeals are disposed of as above : CESTAT [para 6]

- Matter remanded: AHMEDABAD CESTAT

2019-TIOL-2216-HC-MUM-CUS

VKC Nuts Pvt Ltd Vs CC

Cus - Legal position is settled that an appeal would be maintainable from a communication or order, whatever be the nomenclature, in respect of provisional release of goods before the Appellate Tribunal - Presumably, this position of law was not brought to the notice of the Tribunal when it passed the impugned order - In these circumstances, the question of law as framed is answered in favour of the Appellant - impugned order dated 31 July 2019 is quashed and set aside - Custom Appeal stands restored to the file of the CESTAT - Tribunal will decide the same on its own merits within a period of four weeks - Appeal disposed of: High Court [para 7 to 9]

- Appeal disposed of: HIGH COURT OF BOMBAY

2019-TIOL-2208-HC-P&H-CUS

Famina Knit Fabs Vs UoI

Whether writ petition under Article 226 is maintainable against impugned show cause notice dated 9.2.2018?

Whether reenacted Drawback Rules, 2017 [w.e.f 01.10.2017] save Show Cause Notice dated 9.2.2108 (Annexure P-9) issued under Rule 16 of repealed Drawback Rules, 1995?

Whether Rule 16 of Drawback Rules, 1995 provides complete machinery to declare already paid drawback as erroneous or excess and thus recovery thereof?

- Petition allowed: PUNJAB AND HARYANA HIGH COURT

2019-TIOL-2713-CESTAT-AHM

Mahesh Harlalka Vs CCE & ST

Cus - A case of fraudulent availment of rebate of duty was made out, wherein the assessee and Sh. Deepak Nathmal Kedia have acted as mediator in arranging the fraudulent rebate and fraudulent cenvat credit for which the penalties were imposed - Penalties on assessee and Sh. Deepak Nathmal Kedia were imposed under Rule 13 (1) of CCR, 2002 which can be imposed only on the person who availed the cenvat credit whereas in the present case, it is admitted fact that the assessee have only acted as mediator in arranging the cenvat credit or fraudulent rebate, therefore, penalties under Rules 13(1) is not relevant - Accordingly, the penalties imposed under Rule 13 (1) of Cenvat Credit Rules are set aside - As regard penalties imposed under Rule 27, since the assessees are neither manufacturer nor exporter, no contravention of provision can be alleged against them, therefore, the penalty under Rule 27 is also set aside - As regard penalty under Section 117 of Customs Act, since the assessees were not involved either in import or export of any goods, they cannot be alleged with contravention of any provision of Customs Act, 1962, therefore, this penalty is also not maintainable, hence the same is set aside - As regard Revenue's appeal proposing recovery of fraudulent availed rebate, interest and consequential penalty against proprietor of Sh. Sairam International, no proposal was made against Sh. Sairam International in SCN, therefore, by way of review, the SCN cannot be amended or developed - Accordingly, the appeal of Revenue proposing something which is not arising out of SCN cannot be maintained - The parties' appeals are allowed: CESTAT

- Appeals allowed: AHMEDABAD CESTAT