| SERVICE TAX 2019-TIOL-2925-CESTAT-DEL
Pushpa Food And Processing Pvt Ltd Vs CC, CE & ST
ST - Assessee is providing different services like 'Mandap Keeper Service', 'Rent-a-Cab Service' and 'Renting of Immovable Property Services - Their premises were visited by officers who conducted various checks and verifications - It was found that the assessee had crossed the threshold exemption limit in as much as 'Mandap Keeper Services' were not being taken into consideration by them for the purpose of payment of service tax - Statement of Director was recorded wherein he admitted that they were providing 'Mandap Keeper Service' and were receiving consideration of the same without raising the bills - The proceedings were initiated against them by way of issuance of a SCN raising demand of duty of service tax - Undisputedly, assessee never brought the fact of renting of Mandap to a third person - On the contrary, before both the authorities below, they accepted their tax liability and only sought some time to deposit the same, which, in fact, was also deposited by them - Even at this stage, assessee have not been able to show prima facie also that the Mandap in question was leased out by them to a third person - On specifically being asked, assessee has not been able to disclose the name of third person to whom the said Mandap was rented - Apart from that, this being a factual position, cannot be allowed to be raised at the second Appeal stage, as rightly contented by revenue - No reason found to interfere in the impugned Orders - Accordingly, no merit found in the assessee's plea on setting aside of penalties in as much as admittedly it is a case of clandestine activity and not a case of any legal interpretation of provisions - The assessee was admittedly providing 'Mandap Keeper Services' and was receiving the consideration for the same without payment of any service tax: CESTAT
- Appeals rejected: DELHI CESTAT
CENTRAL EXCISE
2019-TIOL-2924-CESTAT-MAD Everest Industries Ltd Vs CCE
CX - The assessee is manufacturer of Asbestos Cement products - In respect of the products on which they have paid excise duty, they charged certain price and they charged an identical price in respect of products containing fly ash on which no excise duty was paid, by availing the benefit of exemption - It is the case of department that as the price charged for exempted products (UT products) was the same as that of the other products on which excise duty was paid, an amount by way of excise duty was indirectly collected by assessee from their customers and such amount needs to be deposited in Government exchequer under Section 11D of CEA, 1944 - Evidently, it did not cover the goods which are only wholly exempt from duty but on which manufacturer collects some amount as representing Central Excise duty - This lacuna was corrected by introduction of Section 11D (1A) in 2008 - The amendment in 2008 has not been given retrospective effect - For this reason, the liability to Section 11D does not apply to assessee's goods because undisputedly, the products were fully exempted from payment of duty - There is nothing on record that they have collected any amount as representing excise duty - They have collected a consolidated amount stating it as inclusive of excise duties - On this ground also, the demand does not sustain - On the last point of res judicata however, Tribunal found in favour of Revenue because the original SCN has already been quashed as being without legal authority and the High Court of Madras in its judgment in Eternit Everest Ltd. - 2003-TIOL-11-HC-MAD-CX allowed adjudication and enforcement when a provision is made in law - Thereafter, when the law was amended, as per the amended provisions, a new SCN was issued and therefore there is no res judicata applicable in the present case - Consequently, the demand is not sustainable on merits because no amount was shown by assessee in their documents to their customer as representing Excise duty and collected from them and the goods which were fully exempted were, until 2008, not covered by the provisions of Section 11D: CESTAT
- Appeal allowed: CHENNAI CESTAT
2019-TIOL-2923-CESTAT-KOL
Doolahat Tea Estate Vs CCE
CX - The assessee is a tea factory located in Assam - It sought benefit of area-based exemption as per Notfn No 33/99 - Such exemption was claimed on grounds that the installed capacity for manufacturing tea in the factory had been increased by more than 25% by way of substantial expansion - The assessee filed its first refund claim, but the same was denied upon adjudication, on account of its purchase of Kilburn Model Dryer by way of substantial expansion - Though the date of the bill reflected the year 1998, the adjudicating authority suspected it to be 1999 - Such denial of refund was sustained by the Commr.(A) - Hence the present appeal.
Held - There are discrepancies in the total number of machines installed in various sections before and after the expansion of the factory - The Chartered Engineer who inspected the factory after expansion, certified that as a result of the installation of additional equipment, the installed capacity increased by more than the limit of 25% - Such conclusion of the Chartered Engineer is not disputed before the lower authorities - In such circumstances, the opinion of the Chartered Engineer may be accepted to arrive at the conclusion that the assessee duly expanded the installed capacity over 25%, which satisfies the substantial expansion as per the Notfn - Moreover, the refund claims under Notfn No 33/99 are not restricted by the time limits u/s 11B - Hence the refund claim is liable to be entertained: CESTAT
- Assessee's appeal allowed: KOLKATA CESTAT
2019-TIOL-2922-CESTAT-CHD
RB Jodhamal Industries Pvt Ltd Vs CCE & ST
CX - The assessee is in appeal against impugned order wherein the refund claim filed for education cess and higher education cess has been denied to assessee on the ground that the same does not form part of duty in terms of Notfn 56/2002-CE - The issue came up before Apex Court in case of SRD Nutrients Pvt. Ltd. 2017-TIOL-416-SC-CX wherein it has been held that the education cess and higher education cess is part of duty in terms of Notfn 56/2002-CE - Therefore, assessee is entitled for refund claim of education cess and higher education cess in terms of Notfn 56/2002-CE - Therefore, the impugned orders is set aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
CUSTOMS
2019-TIOL-2926-CESTAT-MUM
Voith Turbo Pvt Ltd Vs CC
Cus - The issue pertains to re-determination of assessable value on the ground that the substantial markup in supply of goods, as such, to their customers is a pre-arrangement with the supplier, to enable undervaluation with intent to evade duties - The assessee is in the business of maintenance and overhauling of specialised parts of equipment supplied to Indian Railways - From the impugned order, it is apparent that the process of bid acceptance for such work is long drawn and cumbersome - It also involves the deployment of personnel of assessee on such work - Considering that these overheads are bound to influence the price at which the imported goods are sold to Indian Railways, difference between the declared price at the time of import and the selling price cannot be designated as profit accruing to the assessee - Indeed, against the claim of assessee that the margins are a mere 15%-20%, it would appear that no effort has been undertaken to establish the contrary - Hence, even the suspected 'enrichment' that was found objectionable in the impugned order is without basis - No reason found to sustain the impugned order which is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT | 
By K Srinivasan
