| SERVICE TAX
2019-TIOL-2900-CESTAT-MUM
Vishay Semiconductor India Pvt Ltd Vs CC, GST
ST - The dispute in the appeal is the denial of refund of cenvat credit to the appellant on the ground that the appellant has received the services in the premises which are not registered or in other words that the appellant has not obtained centralized registration for all the units in the SEZ :
Held - the issue involved in the instant appeal is no more res integra - in the matter of mPortal India Wireless Solutions (P) Ltd. - 2011-TIOL-928-HC-KAR-ST in a similar issue, the High Court of Karnataka answered the question in favour of the assessee - the aforesaid decision of the High Court been followed by the Tribunal from time to time - in the absence of a statutory provision which prescribes that registration is mandatory, the claim of the appellant cannot be rejected - there is no dispute with respect to the receipt and consumption of input services within the SEZ - it is settled law that any beneficial provision should be interpreted liberally and for a mere procedural lapse, substantive benefit cannot be denied to the assessee - since in the instant matter it is only a procedural lapse, therefore, the same can be condoned - accordingly, the order passed by the Commissioner (Appeals) is set aside and the appeal filed by the appellant is allowed : CESTAT [para 3, 4, 5]
- Appeal allowed: MUMBAI CESTAT
2019-TIOL-2899-CESTAT-HYD
Vijay Leasing and Company Vs CC, CE & ST
ST - Appellant during the period 16.6.2005 to 30.9.2006 were providing services which the revenue authorities thought would fall under the category of 'site formation and clearance, excavation and earth moving and demolition services' -the officers on visit directed the appellant to pay the amounts of ST so calculated by them -appellant contested but paid the same and subsequently noticing that the services rendered by them would get correctly classifiable under the services of mining which is introduced w.e.f. 1.6.2007, they filed a refund claim with the authorities - in the second round of litigation, the adjudicating authority rejected the refund claim on the ground of unjust enrichment by recording a finding that appellant had collected the ST from their service recipient by issuing debit note - appeal to CESTAT.
Held: If the debit notes are not acted upon and not recorded as receivables in the books of the appellant,they are not receiving any sum as ST from the customers in any manner and hence it is to be held that service recipient has not paid the ST element to the appellant -therefore, doctrine of unjust enrichment is not attracted in this case -except relying on the investigation done at the back of the appellant, department has not produced any evidence whatsoever that ST has been paid by the service recipient and if so the mode of payment to appellant -hence only on the basis of conjectures and premises the lower authorities have rejected the refund claim which is incorrect and the statistics which are sought to be mentioned in the O-I -O by the adjudicating authority are irrelevant to the facts of the case i.e., the refund claim is for a specific period i.e., 16.6.2005 to 30.9.2006 -the Chartered Accountant was correct in stating that CA Certificate cannot be ignored unless a contrary evidence is found to prove that the certificate is erroneous and the case laws relied upon by him are on the point and is applicable in the case in hand -in view of the foregoing, the impugned order is unsustainable and liable to be set aside - the impugned order is set aside and the appeal is allowed : CESTAT [para6, 7, 8, 9]
- Appeal allowed: HYDERABAD CESTAT
2019-TIOL-2898-CESTAT-MAD
Vodafone Cellular Ltd Vs Commissioner of GST & CE
ST - Appellants, engaged in providing Telecom Services to their customers, received various services, but had not paid ST on the same as required under reverse charge mechanism - SCN issued - demand confirmed along with interest, equivalent penalty imposed - on appeal, the Commissioner (Appeals) upheld the same - appeal to CESTAT.
Held - Demand under Management, Maintenance and Repair Services received by the appellant from service providers situated outside India -the definition of 'Management, Maintenance and Repair Services' was amended by adding an Explanation only w.e.f. 1.6.2007 -the Explanation stated that "goods" includes "computer software" -the Department has relied upon the Circular dated 7.10.2005 to hold that the maintenance or repair of computer software is leviable to service tax with effect from 9.7.2004 itself -the High Court of Madras in the case of Kasturi& Sons Ltd. - 2011-TIOL-240-HC-MAD-ST has declared the Circular dated 7.10.2005 to be ultra vires and the same has been quashed -when the definition has been amended by including computer software in the category of "goods" with effect from 1.6.2007, Management, Maintenance or Repair Services of computer software can be leviable to ST only w.e.f. 1.6.2007 - the decision of the Tribunal in the case of Phoenix IT Solutions Ltd. [2017 (52) S.T.R. 182 (Tri.-Hyd.)] has discussed the very same issue - after appreciating the facts and following the above decisions, the demand of ST under Management, Maintenance or Repair Services cannot sustain and requires to be set aside, and is set aside: CESTAT
Demand of Service Tax under Business Support Services for the period 2007-09 - Telecommunication Services have been brought into the ST net w.e.f. 1.6.2007, which includes the activity of international access and use of inbound/outbound roaming facility -when a subscriber of the appellant travels outside India, he will be able to use the mobile network of the Foreign Telecom Operator as per the agreement entered between the appellant and the Foreign Telecom Operator -for such services provided to the appellant, the appellant has to discharge ST under reverse charge mechanism -when the said services fall under the category of 'Telecommunication Services', the very same activity cannot be subjected to levy of ST by treating them as 'Business Support Services' -the Department has taken the view that the Foreign Telecom Operators have provided Business Support Services in the nature of identification/authentication of the customers -needless to say, the Foreign Telecom Operators/visiting network provide services to the inbound roamer treating him as a subscriber on a temporary basis only -the definition of 'Telecommunication Services' includes both inbound and outbound roaming service to and from national and international destinations -in any case, it has to be noted that the appellant is paying the appropriate ST on the amount billed to the customers including their International Outbound Roaming charges -thus, the fact remains that the ST is already paid on the said activities -there is no justification to demand ST under Business Support Services on the very same amounts - therefore, the demand raised cannot sustain and requires to be set aside and is set aside: CESTAT
'Development and Supply of Value-Added Services' for the period 2008-09 - the appellant is not contesting the issue on merits and is confining the contest only to the penalties imposed -the appellants have paid ST along with interest much before the issuance of the SCN -the High Court of Karnataka in the case of Adecco Flexione Workforce Solutions Ltd. - 2011-TIOL-635-HC-KAR-ST has held that when the ST along with interest is paid before the issuance of SCN, the penalties cannot sustain -the Tribunal in the case of Saksoft Ltd. - 2019-TIOL-1728-CESTAT-MAD had occasion to consider a similar situation wherein it was held that when the demand along with interest has been paid prior to issuance of SCN, the penalties cannot sustain: CESTAT
Conclusion: (a) demands in respect of 'Management, Maintenance or Repair Services' and 'Business Support Services' require to be set aside and is set aside (b) demand in respect of 'Development and Supply of Value-Added Services' is upheld -however, the penalties imposed in this regard are set aside - the appeal is partly allowed in above terms [para6.2, 6.3, 6.4, 7.1, 7.3, 7.4, 8, 9, 10]
- Appeal partly allowed: CHENNAI CESTAT
CENTRAL EXCISE
2019-TIOL-2897-CESTAT-MUM
Vijay Industries And Projects Ltd Vs CCE
CX - Demand of duty confirmed on parts of fire protection systems manufactured by appellant on site while undertaking turnkey projects - appellant challenges resort to rule 6 of the Central Excise (Valuation) Rules, 1975.
Held: Entire dispute pertains to the period prior to 1.7.2000 - the appeal of the appellant before the first appellate authority was rejected solely on the ground of coverage by the decision of the Tribunal in the case of Vijay Fire Protection Systems Ltd. [2004 (170) ELT 20 (Tri.-Mumbai) ] which has been set aside, after detailed consideration by the Supreme Court, in the case of UTC Fire and Security India Ltd. [2015 (319) ELT 591 (SC) ] -following the decision, the impugned order is set aside and the appeal allowed to the extent of the demand pertaining to the period prior to 1.7.2000 : CESTAT [para 6, 7]
- Appeal allowed: MUMBAI CESTAT
2019-TIOL-2896-CESTAT-MUM
CCE Vs Walpat Industries
CX - Whether the respondents are eligible to the benefit of exemption notification no.8/2003-CE, dated 1.3.2003, when they manufactured and cleared Printed Polyethylene Rolls/Sheets bearing brand names of various producers of milk.
Held: Commissioner (Appeals) has confirmed the demand on merit, following the ratio laid down in the case of Kohinoor Elastic Pvt. Ltd. - 2005-TIOL-120-SC-CX - however, he has dropped the demand, observing that extended period of limitation cannot be invoked in the present case, as no suppression of facts is involved on the part of the respondent - the issue has been considered recently by the Supreme Court in the case of RDB Textile Mills - 2018-TIOL-59-SC-CX - following the aforesaid judgment, the respondents are eligible to the benefit of exemption notification no.8/2003-CE, dated 1.3.2003, on merit also - besides, it is also found that the Commissioner (Appeals), after analysing the evidences, came to a categorical conclusion that there has been no suppression of facts in availing the benefit of said notification - no contrary evidence brought on record by the Revenue - hence, on this count also, Revenue's appeal is devoid of merit - in the result, Revenue's appeal is rejected : CESTAT [para 4, 5, 6]
- Appeal of Revenue rejected: MUMBAI CESTAT
2019-TIOL-2895-CESTAT-BANG
Wadpack Pvt Ltd Vs CCT
CX - Cenvat credit has been denied to the appellant on the ground that the invoices are addressed to their Yeshwanthpur unit whereas the services were availed at Doddaballapur unit - further, the credit has been denied on the ground that the appellant have not produced the documentary evidence to show that the services were actually availed at Doddaballapur unit - appeal to CESTAT.
Held: Perusal of various invoices clearly shows that in some invoices the name of both the units i.e. Yeshwanthpur as well as Doddaballapur are mentioned but in some invoices only the name of Yeshwanthpur unit is mentioned - as per the appellant's case, these services have been used at Doddaballapur unit because the said unit came into operation in 2008 and these input services were used for the said unit after it came into operation - further, as per RG-1 register of Yeshwanthpur factory, the operation was stopped from January 2010 onwards and there was no production and clearance of the goods from the said factory - the invoices produced on record pertain to the services which were availed after the closure of Yeshwanthpur factory which clearly shows that those services were availed by Doddaballapur unit - it is not the case of the Department that appellant have availed the CENVAT credit at both the places and the mentioning of the address of Yeshwanthpur factory on some of the invoices is only procedural lapse for which the CENVAT credit cannot be denied to the appellant - the entire demand is barred by limitation because the extended period has been invoked merely on the ground that irregular credit was detected during audit otherwise it would have gone unnoticed - whereas the appellant has been filing the returns regularly for Doddaballapur unit and has been showing the credit availed - in view of this, it cannot be said that the appellant has suppressed the material fact with intent to evade payment of tax - therefore, on merit as well as on limitation, the impugned order is not sustainable in law - therefore, the same is set aside by allowing the appeal of the appellant : CESTAT [para 6]
- Appeal allowed: BANGALORE CESTAT
CUSTOMS
2019-TIOL-2894-CESTAT-DEL
Pap Fast Movers India Ltd Vs CC
Cus - The appellant is a Customs broker - During the relevant period, the Revenue alleged that the appellant facilitated the clearance of a consignment of Red Sanders wood - Proceedings were initiated against the appellant - Penalty u/s 114(a) of the Act was imposed on the appellant, which was upheld by the Tribunal on an earlier occasion - Hence the present appeal.
Held - The issue at hand stands settled - Besides, the matter was adjourned for more than 8 times - Considering such facts and circumstances, pendency of appeal cannot be allowed to be a ground for the appellant to avoid the illegality alleged - Simultaneous absence of the appellant on the day of hearing is sufficient to infer that the appellant is disinterested in pursuing the matter and is gaining time and benefit of avoiding penalty imposed, by keeping the appeal pending - Hence the present appeal merits being dismissed on account of intentional non-prosecution and also since the matter has no merit: CESTAT
- Assessee's appeal dismissed: DELHI CESTAT |
