In writ, the High Court finds that no such notice seems to have been issued, as there is no reference to that effect in the orders, this Court remands the matter back to the AO for passing fresh orders of assessment.

- Case remanded: MADRAS HIGH COURT

2019-TIOL-3132-CESTAT-ALL

A V Tech Interiors Vs CCE & ST

ST - The assessee is a proprietor firm engaged in fixing of aluminium and glass structures in their customers' premises - They got themselves registered in December 2010 with Service Tax department under category of 'works contract' and opted to pay Service Tax on the basis of composition rules - Accordingly, proceedings were initiated against them by way of issuance of SCN proposing to reject their VCES declaration and confirming the demand of Service Tax - Undisputedly, the SCN was issued on 25 June 2014 - In terms of provisions of section 73 of FA, 1994, Revenue can raise the demand for maximum period of five years from the date of issuance of SCN - As such, the period prior to five years from the date of SCN cannot be re-opened by Revenue and demand for said period is liable to be set aside on this ground - As regards the period following the period of five years from the date of issuance of SCN, it is found that the assessee have filed VCES declaration declaring the tax dues to the extent of Rs.8.88 Lakhs - The demands stand raised by adjudicating authority by applying the rates in terms of composition rules, whereas the assessee's contention is that the provisions of Rule 2A of Service Tax Valuation Rules were required to be adopted - Favour found with the contention of assessee - Admittedly, the composition rules are applicable on an option exercised by assessee - Such an option was exercised by assessee only w.e.f. December 2010 onwards - In the absence of any option having been exercised for period in question, the applicability of composition rules cannot be upheld - As such, the demand has to be quantified in terms of provisions of Rule 2A of Service Tax Valuation Rules, by taking into account the VAT assessment orders - Matter is remanded to the adjudicating authority for fresh quantification of demand against assessee for the period falling within five years from the date of SCN - As regards the revenue's appeal, the same is only against the adjustment of deposits already made by assessee in terms of provisions of VCES scheme - The VCES declaration filed by assessee was not finalized and in fact the same is the subject matter of present impugned order - As such any deposits made by assessee under the said scheme are required to be adjusted against the liability of assessee either against demand or against penalty - As such, no merits found in Revenue's appeal, same is accordingly rejected: CESTAT

- Appeals disposed of: ALLAHABAD CESTAT

2019-TIOL-3131-CESTAT-DEL

Image Advertising Vs CST

ST - The assessee is rendering advertising agency service - A SCN was served upon assessee seeking recovery of wrongly availed cenvat credit and service tax not paid along with interest and penalties - From the SCN, two issues were raised first was about the wrong availment of cenvat credit by assessee on RCC pipe, RCC Main pillar, HR Sheet Conical Manhole Cement HRC sheet used in fabrication of Structural support while executing the construction contract/ agreements in their favour and utilizing the same secondly about the demand of service tax for includuing advertising agency services along with proportionate interest and penalty - As far as the first issue is concerned, the Commissioner (A) has already dropped the demand and the department has not challenged the same therefore, the first issue stand decided in favour of assessee otherwise also the Tribunal opined that while dropping that demand, the authority below has rightly relied upon the authority of Apex Court in case of Maruti Suzuki Ltd. - 2009-TIOL-94-SC-CX hence, no infirmity found qua those findings, the findings allowing the cenvat credit to the assessee are hereby confirmed - With respect to the second issue of discharging tax liability as that of advertising agency services, assessee had contracted with the M/s. Prime Site and M/s. Graphis Ads for the making or preparation of the advertisements which were to be displayed by assessee at the site to be constructed by him under an agreement in his favour by MCD - Thus, irrespective M/s. Prime Site and M/s. Graphis Ads had charged the service tax from their clients and discharged their liability for rendering said part of advertising agency service but as far as the display of advertisement of the said clients, both the said advertising companies have made payment to the assessee as is apparent from the invoices raised, by the assessee himself on both those companies - Thus, assessee being the main service provider was still liable to discharge liability for payments received by him from both the said advertising agencies - The fact that the service provided by sub contractor are used by main service provider for completion of his work, as in the present case, does not, in any way, alter the fact of provision of taxable service by the sub contractor though these may be in nature of input services, the service tax is still leviable on any taxable service provider - In view of settled provision and the apparent and admitted delay on part of assessee, there is not infirmity in confirming the demand of interest from the assessee - Finally relying upon the Section 76 and Section 78 of the Act, no infirmity found in the order where the proportionate penalties have been imposed and confirmed - No infirmity found when the adjudicating authority below has observed suppression of facts on part of assessee - The admitted fact of making no payment of the tax liability by assessee till the issuance of SCN to him is opined to be a sufficient positive act on part of assessee which may amount to suppression with the whole intention of evading tax - It is the service provider to discharge the service liability - Failure on his part to do same has rightly been considered as misrepresentation and suppression of facts - Therefore, no infirmity found when the proportionate penalties have been confirmed against assessee: CESTAT

- Appeal rejected: DELHI CESTAT

2019-TIOL-3130-CESTAT-DEL

UP Gujarat Freight Carrier Vs Commissioner of CGST & CE

ST - Appeal preferred against impugned Order whereby the appeal is held to be hit by bar of non-payment of mandatory pre-deposit of 7.5% of the service tax involved in this case - Two payments have been made by assessee with respect to the impugned demand as is apparent from the copies of Challans annexed on record vide which Rs.18,930/- each has been deposited by assessee - There is no denial to these nor even to the fact that both these payments are in lieu of the demand in question - The perusal of Circular 984/08/2014-CX relied upon by assessee, makes is abundantly clear that the 10% of the amount of demand confirmed as is mandatorily to be deposited by assessee at the time of filing the Appeal before this Tribunal is a mandatory deposit in terms of Section 35F of Central Excise Act - However, any payment made by assessee during the course of investigation has to be adjusted against said percentage of mandatory deposit - The 7.5% on the amount of duty confirmed was to be paid at the time of filing of appeal before the Commissioner(A) - The amount of duty confirmed in this case was Rs.1,57,050/- - The amount already stands deposited is Rs.37,860/- and 7.5% thereof will be Rs.11,778.75 - The amount admittedly already stands deposited is Rs.37,860/-, hence, the Commissioner (A) has committed an error while dismissing the appeal in limini to be barred by Section 35F - Order accordingly is set aside: CESTAT

- Matter remanded: DELHI CESTAT

2019-TIOL-3129-CESTAT-DEL

Herbicides India Ltd Vs Commissioner of Central Goods and Service Tax

CX - The assessee-company manufactured plant growth regulator under brand name Achiever Granules and cleared the same under Chapter Sub Heading 3808.00 on payment of applicable Excise duty - Later, the assessee introduced a new product, Achiever Gold which is Bio-Extract formulated with Sea Weed extracts, Bentonite clay, Rice bran wax and nutrients - The assessee applied for amendment of the registration certificate by including Achiever Gold under Chapter Heading 3101.00 of the CETA 1985 - The assessee classified and cleared the product under sub heading 3808.20 and paid duty @ 16% adv - The Revenue was satisfied and amended the RC and approved the inclusion of Achiever Gold as Bio Fertiliser under CTH 3101.00 and issued fresh certificate - The assessee transferred and cleared Achiever Gold as liquid bio extract organic fertiliser and not plant growth regulator under sub heading 3101.00 with nil rate of duty and disclosed the same in ER-1 - The assessee claimed that the Revenue exerted pressure and insisted that Achiever Gold is plant growth regulator & would not fall under Bio Fertiliser and instead would fall under chapter sub-heading 3808.00 and issued an SCN on account of bio fertilizer being manufactured and cleared without payment of duty - So as to avoid disputes, the assessee agreed to clear Achiever Gold after payment of 16% duty under protest - Later, the Commr.(A) settled the classification dispute in favor of the assessee - Later, the Asst Commr. granted the refund of the principal amount of duty - The Revenue filed appeal against such disbursal of refund and such appeal was allowed on grounds that the issue of unjust enrichment had not been considered - Hence the present appeal.

Held - From the material at hand, it is evident that the assessee charged no duty from the buyer of the goods and did not issue any debit notes and did not issue any supplementary bill - Hence there is no way the assessee could have collected any amount subsequently - Such fact is supported by evidences such as copy of invoice, balance sheet, CA certificate, affidavit etc - The assessee admittedly deposited duty upon demand being raised by the Revenue - Besides, it is trite law that where duty is paid under protest, there is no time limit to claim refund - Besides, as per CBIC Instructions dated 2.2.2002, the adjudicating authority was bound to refund the duty deposited by the assessee under protest, which is in the nature of pre-deposit u/s 35F - Duty paid under protest ipso facto becomes pre-deposit u/s 35F till date of grant of refund - Hence the O-i-A merits being set aside and the adjudicating authority is directed to grant refund within 45 days time: CESTAT

- Assessee's appeal allowed: DELHI CESTAT

2019-TIOL-3128-CESTAT-BANG

CCT Vs Yaskawa India Pvt Ltd

CX - The assessee-company manufactures Transistors & inverters falling under Chapter 85 of the CETA 1985 - On audit, the Revenue observed that the assessee received certain common input services such as telephone/internet services, manpower supply services, security services, rent paid on immovable property used for trading and manufacturing activities of the company - Since the trading activities are exempted services as per Rule 2(e) of the CCR 2004, the company is required to reverse the credit pertaining to the common input services used in relation to the exempted activities of trading as per Rule 6(3A) - The Revenue opined that the assessee wrongly availed cenvat credit on common input service - Hence SCN was issued proposing duty demand with interest & penalty - On adjudication, the original authority confirmed the duty and appropriated the amount already reversed and also sustained the interest & penalty - On appeal, the Commr.(A) held that the assessee already reversed the entire credit amount with interest even before issuing of SCN & so was not liable to face penalty - Hence the Revenue's appeal.

Held - The issue at hand stands settled by the verdict of the High Court of Karnataka in CC&ST, LTU, Bangalore Vs. Bill Forge Pvt. Ltd. by virtue of which where the assessee has not utilized the Cenvat credit & paid the duty prior to the issuance of the SCN, then the assessee is not required to pay interest and penalty - Hence there is no infirmity in the O-i-A dropping the penalty: CESTAT

- Revenue's appeal dismissed: BANGALORE CESTAT

2019-TIOL-3127-CESTAT-MUM

Century Enka Ltd Vs CCE

CX - The assessee-company manufactures nylon and polyester filament yarn, nylon tyre cord falling under Chapter 54 & 59 of the CETA 1985 - During the relevant FY, the assessee resorted to provisional assessment, upon finalization of which a sum became refundable to the assessee - Later on being directed by the Asst Commr., the assessee took credit in its Cenvat a/c - Later, the assessee was served SCN for recovery of credit, which was confirmed on adjudication - On appeal, the Tribunal directed the assessee to reverse credit and file refund claim for the disputed amount and the assessee complied with such directions - Later, the Asst Commr refunded a portion of the said amount and the assessee was served an SCN proposing to reject refund of the balance amount on grounds of limitation and unjust enrichment - Such rejection of refund was sustained by the Commr.(A) on the same grounds - The Tribunal then remanded the matter for deciding on merits - The Commr.(A) once again rejected the refund claim on grounds of unjust enrichment - Hence the present appeal.

Held - This is the third round of litigation before this Tribunal - The assessee placed sufficient evidence to support its claim that the amount was not collected from its customers - Such evidence in the form of Cost Accountant's certificates and balance sheets, has been put forth - The Commr.(A) however rejected the refund claim without analyzing or scrutinizing such evidence - Hence the O-i-A merits being quashed and the matter warrants remand back to the Commr.(A) for verification of such evidence and then ascertaining if the burden of duty was passed on - The fresh proceedings be completed within four month's time: CESTAT

- Case remanded: MUMBAI CESTAT