| SERVICE TAX 2019-TIOL-2947-CESTAT-MUM Mediacom Media India Pvt Ltd Vs CCGST
ST - Circular No. 943/04/2011-CX dated 29.4.2011 clarifies that credit on rent-a-cab service shall be available if its provision had been completed before 1.4.2011 - There is no dispute that the services have been availed during the period prior to 1.4.2011 - It is an expenditure in relation to business being incurred by the Appellant for its efficient running, therefore, services of outdoor catering service as well as rent-a-cab service are in relation to the business activity undertaken by the Appellant and the Appellant is eligible for Cenvat Credit - Input Services are not only those services used directly or indirectly in the provision of output service, but it also includes services that relate to the business activities of the assessee - appeal allowed with consequential relief: CESTAT [para 4]
- Appeal allowed: MUMBAI CESTAT
2019-TIOL-2946-CESTAT-HYD
Kirby Building Systems India Ltd Vs CCT, C & ST
ST - During verification of records of the appellant, the department found that they have received services from abroad in the form of "Intellectual Property Rights Services" and "Consulting Engineering Service" and were, therefore, liable to pay ST on these services under reverse charge mechanism during the period 2003-2008 -accordingly, SCN was issued to the appellant demanding the aforesaid ST invoking the extended period of limitation - demand confirmed by Commissioner, penalties imposed under sections 77 & 78 of the Finance Act, 1994 [Act] - appeal to CESTAT.
Held: Entire amount of ST demand along with interest has already been paid and the appellant has also availed CENVAT credit of the ST so paid -for this reason, the appellant is not pressing for setting aside of the demand of ST -as far as penalties are concerned, this is a case of revenue neutrality where the very same assessee would be entitled to CENVAT credit of the ST paid under reverse charge mechanism -hence, there cannot be any motive to evade payment of ST - for this reason, there is a reasonable ground to invoke section 80 of the Act to waive the penalties imposed upon the appellant - in view of the above, the penalties imposed in the impugned order are hereby set aside invoking section 80 - appeal is partly allowed as discussed herein above : CESTAT [para5, 6, 7]
- Appeal partly allowed: HYDERABAD CESTAT
2019-TIOL-2945-CESTAT-ALL
Mega Trends Advertising Ltd Vs CCE & ST
ST - Revenue has picked up the figures from the balance sheet and profit and loss account maintained by the assessee - The balance sheet and profit and loss account have been held to be public documents by various decisions and it stands concluded that when the income arising from various activities stand reflected in the said public documents, it cannot be said that there was any suppression or misstatement on the part of the assessee so as to invoke the longer period of limitation - demand time barred - Appeal allowed with consequential relief: CESTAT [para 6, 7]
- Appeal allowed: ALLAHABAD CESTAT
CENTRAL EXCISE
2019-TIOL-2944-CESTAT-DEL
Kiran Global Chems Ltd Vs CCE & GST
CX - During the course of audit, the Department observed that appellant has wrongly taken CENVAT credit of Rs.3.13 lakhs on the strength of two invoices printed for self-address which was later amended (allegedly fabricated) by ink in the name of their sister unit - SCN issued proposing recovery of wrongly availed CENVAT credit alongwith the interest and the proportionate penalty - proposal confirmed - on appeal, the Commissioner (Appeals) rejected the same, hence appeal before CESTAT.
Held: After hearing and keeping in view the submissions on behalf of the appellant as mentioned at the stage of rebuttal and also keeping in view that the credit has been denied for want of register 23A only, document is relevant piece of evidence - also the ground for denying relief in the order under challenge is the presumption about no possibility of such huge quantity to be transported by one tractor cannot be the sole criteria to adjudicate the impugned issue - apparently, these two are the only grounds for rejecting the appeal - in the given circumstances, holding the document as prayed to be produced as an utmost important document and that the same was not produced earlier, the matter is remanded to the original adjudicating authority with the direction to appellant to produce all relevant records including RG-23 (Part I&II) before the authority within 15 days of receiving the notice of the subsequent adjudication -the original adjudicating authority, after receiving the documents, shall be adjudicating the issue afresh not only about the impugned CENVAT credit but also about the penalties and about the plea of SCN being barred by time as taken by the appellant -with these observations, appeal stands allowed by way of remand : CESTAT [para 6]
- Appeal allowed by way of remand: DELHI CESTAT
2019-TIOL-2943-CESTAT-ALL
Kameshwar Enterprises Vs CCE
CX - Penalty of Rs.28.95 lakhs imposed on the appellant by the lower authority -after a series of litigation, the Tribunal, vide Order dated 18.3.2014, again directed the appellant to deposit 75% of the penalty within a period of eight weeks - the appeal was again dismissed by Commissioner (Appeals) for non-compliance with the directions of the Tribunal's order dated 18.3.2014 - appeal to CESTAT.
Held: Appellant has not still deposited the amount as directed by the Tribunal, though they have deposited 10% of the penalty in terms of the amended provisions of section 35F of the CEA - however, the Tribunal's Final Order dated 18.3.2014 was not challenged by the appellant and had attained finality -as such, in terms of the directions of the Tribunal the appellant was duty bound to deposit 75% of the penalty amount -having not deposited the same, the appeal has rightly been rejected by Commissioner (Appeals) - the delay in filing the appeal before the Tribunal is of 1174 days -no justifiable and reasonable cause stands advanced by the appellant for such a delay in filing the appeal -the huge delays, especially when the appellant's appeal has no merits, cannot be condoned - in view of the above, the appeal is dismissed as barred by limitation as also by observing that inasmuch as, the appellant has not honoured the Tribunal's directions, nothing survives in the appeal : CESTAT [para 5, 6, 7]
- Appeal dismissed: ALLAHABAD CESTAT
2019-TIOL-2942-CESTAT-AHM
Matchwell Vs CCE
CX - Base paper was received by the appellant in roll form from their principals and the appellant was merely carrying out printing activity thereon, while clearing the same to their principals - Such printed paper is to be used in production of decorative laminate sheets/MDF boards etc. - The department is of the view that after receipt of base paper, since the appellant prints the same and returns to the principals, the said goods may be classified under CETH 4811 9099 and not under CETH 4911 9990 and accordingly, duty demand has been raised - appeal to CESTAT.
Held: Nature of printing carried out by the appellant does not alter the identity of the product as the paper remains as a paper only and mere printing does not amount to manufacture - even if there is change in tariff heading, but there is significant change in the process and the said process does not amount to manufacture, merely change of tariff heading does not make product dutiable once again - any printed paper, if amounts to manufacture, the same is correctly classifiable under chapter 49 and the most appropriate Central Excise Tariff Heading shall be 49119990 which attracts nil rate of duty - whether the product is classifiable under chapter 48119099 or under 49119990, appellant is not liable to pay duty - impugned order is set aside and appeal is allowed: CESTAT [para 7 to 9]
- Appeal allowed: AHMEDABAD CESTAT
CUSTOMS
2019-TIOL-2378-HC-KERALA-CUS
Kerala Roadways Ltd Vs CCT & CE
Cus - The appeal is filed against an order passed by Tribunal dismissing an application to condone delay - There was a delay of 3666 days in filing the appeal - In respect of subsequent assessment period the appeal is still pending before the CESTAT and in respect of another period the appeal has been allowed - It is submitted that the assessee has valid contentions to be raised in the appeal and if an opportunity is not granted to file a better affidavit explaining the reasons to condone the delay, it would render serious hardship to the assessee - It is only appropriate to grant the assessee one more opportunity to file a better affidavit explaining the reasons for the delay - The matter should be remitted back to the Tribunal: HC
- Matter remanded: KERALA HIGH COURT
2019-TIOL-2941-CESTAT-MUM
20 Microns Ltd Vs CC
Cus - These appeals lie against the order of the lower authority, as confirmed by Commissioner (Appeals) in the import of 'natural calcite powder' against bill of entry dated 18.11.2006 on which duty of Rs.41,950/- was self-assessed -it was held that the goods had been mis-declared as the test results found the samples to be 'precipitated calcium carbonate' and, thereby not eligible for exemption notification no.21/2002-Cus dated 1.3.2002 (sl. no. 517) -besides confirming differential duty of Rs.1.69 lakh and confiscating the goods, penalty of Rs.1 lakh and Rs.25,000/- was imposed on the importer and on the individual appellants herein -in the impugned order, duty recovery, confiscation and penalties were upheld while directing the original authority to rectify the omission of fine in lieu of confiscation in the adjudication order - appeal to CESTAT.
Held: Claim of the appellant for classification under heading 2530 9030, and for consequent exemption, was denied by classifying the goods under heading 2836 9030 of the CTA - it is seen from the test results and the cross-examination thereof that the 'oil absorption value' of the impugned goods cannot be excluded from description as 'natural calcite powder' without more specific tests and that reliance on tests does not suffice to revise the classification claimed at the time of import - the contention of the appellant that 'oil absorption value' and 'particle size' are both critical in determining classification cannot be lost sight of -the test report does not refer to 'particle size' and it has been officially admitted that the chemical facilities of the department is deficient in capacity to carry out that test -as the test result is faulty, the Bench applies the principle laid down in the case of Gulshan Polyols Ltd. - 2019-TIOL-997-CESTAT-ALL and Shakshi Makfin Pvt. Ltd. [2015 (12) TMI 1638 CESTAT CHANDIGARH ] and the decision of the Tribunal in the case of Manikya Creations Pvt. Ltd. - 2018-TIOL-2474-CESTAT-ALL to set aside the impugned order and allow the appeals : CESTAT [para4, 5]
- Appeals allowed: MUMBAI CESTAT
2019-TIOL-2940-CESTAT-AHM
Kesar Spices Vs CC
Cus - Vide impugned order passed by Principal Commissioner of Customs, Mundra, for provisional release of the goods, the appellant was directed to furnish bond of full value of seized goods and give a bank guarantee of Rs.85 lakhs - aggrieved by this condition for provisional release, appellant is before CESTAT.
Held: While passing the impugned order, the Principal Commissioner has not considered the amount of duty, interest and penalty of Rs.87.05 lakhs already deposited by the appellant - therefore, the amount deposited by the appellant appears to be sufficient as security - however, it is found that appellant themselves have proposed to give bank guarantee for 25% of the bond amount - it is sufficient to safeguard the interests of the Revenue, if bank guarantee of 25% of the bond amount is furnished - accordingly, the amount of bank guarantee is reduced from Rs.85 lakhs to 25% value of the seized goods - the impugned order stands modified to the above extent - appeal is partly allowed : CESTAT [para 4, 5]
- Appeal partly allowed: AHMEDABAD CESTAT | 
