| SERVICE TAX
2019-TIOL-2539-HC-MAD-ST
PS Vinod Vs CST
ST - Two issues are canvassed before this court; firstly, the assessee being the individual professional photographer cannot be stated to render taxable service in terms of Section 65(105)(zb) of Finance Act - The second contention is that the extended period of limitation could not have been invoked, since assessee was of the bonafide belief that being a individual photographer whatever assignments done by him will not become taxable service - A SCN was issued to assessee - The Tribunal after considering factual position has dismissed the appeal insofar as it relates to demand of service tax, but granted relief to the assessee by deleting the penalty - The assessee cannot dispute the fact that he is a professional photographer - It should be seen as to whether the provisions of Section 65(105)(zb) of the Finance Act could be made applicable as per the assessee's stand that he does not own a photography studio or even does not own a camera, which is very hard to believe - However, Section 65(105)(zb) of the Act not only restricts the definition to photography studio alone but also to an agency - The assessee is an individual, a proprietary and he is an agency in the legal sense of the terms - Therefore, Section 65(105)(zb) of the Finance Act would stand attracted and the assessee is liable to pay service tax - With regard to invoking extended period of limitation, the assessee in year 2005 voluntarily registered himself with the department and it will not lie in the mouth of the assessee to now state that the registration itself should be cancelled and whatever tax paid by him for the period between October, 2005 to September, 2006 should be refunded - Upon registration with department, an audit was conducted, documents were scrutinized and it was found that the assessee did not get himself registered prior to October, 2005, when he ought to have done, when he was realizing taxable service - Thus, the facts clearly disclose that the assessee failed to get himself registered with the department and consequently would fall within the scope of suppression and extended period of limitation could be invoked - The Tribunal rightly deleted the penalty levied on the assessee and the Revenue has not filed any appeal against the said portion of the order passed by the Tribunal - Both the substantial questions of law are answered against the assessee: HC
- Appeal dismissed: MADRAS HIGH COURT
2019-TIOL-3230-CESTAT-MUM
Saloni Pharma Vs CGST
ST - Assessee is a manufacturer of chemical and availed the services of tempo for transporting their outward material from the factory - By considering the said use of tempo as receipt of GTA service, proceedings were initiated against him raising demand of service tax by way of issuance of SCN - The assessee have taken a categorical stand in their appeal memo to the effect that they were using the local individual tempo for transportation of their product, who were not issuing any consignment note - As such the services cannot be held to be that of GTA, so as to make him pay the service under the reverse charge mechanism - There is no finding of the lower authorities that consignment note were being issued by said individual tempo driver in which case the services cannot be held to be GTA service so as to make the assessee liable to service tax - Further, in terms of the notification 25/2012, if the charges are not more than Rs. 1500/- per trip the same are exempted - The statement attached indicate that the said charges were less than Rs. 1500 per trip - The demand, which stands raised by invoking extended period is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
CENTRAL EXCISE
2019-TIOL-2538-HC-P&H-CX
CCE Vs JSL Stainless Ltd
CX - The respondent is engaged in manufacture of stainless steel slabs, ingots and blooms - It was availing Cenvat Credit on inputs used in manufacture of said excisable goods - It is also procuring furnace oil of Low Viscosity for use in generation of electricity in their captive power plant installed in the factory premises, part of which is used in factory and part of which exported to DHBVNL, Hisar - As per the case of Revenue, respondent was not reversing the proportionate Cenvat Credit taken on fuel consumed by it for generation of electricity exported/injected to/cleared from their factory to the power grid of DHBVNL - Accordingly, SCN was issued for reversal of Cenvat Credit availed on proportionate fuel used for generation of electricity exported outside the premises - The appellant admits that in view of instructions dated 22.8.2019, the instant appeal would not be maintainable before this Court, as amount of revenue involved i.e. Rs.12,168/- is below the monetary limit of Rs. 1 Crore - Appeal dismissed as withdrawn: HC
- Appeal dismissed: PUNJAB AND HARYANA HIGH COURT
2019-TIOL-2537-HC-P&H-CX
CGST Vs Samrat Plywood Ltd
CX - The respondent is engaged in manufacturing of Plywood and Block Boards - During search was conducted at its business premises as well as head office and a private office - During search records were resumed - Scrutiny of resumed records revealed receipt of excess payment when compared to invoices during the period 2002- 03, 2003-04 and 2004-05 - Calculation charts of differential duty prepared on the basis of resumed record showed differential duty for the period 2002-03, 2003-04 and 2004-05 to the tune of Rs.13,27,928/-, Rs.46,50,531/- and Rs.43,43,153/- respectively totaling Rs.1,03,21,612/- - Further, total short paid/not paid Central Excise duty appeared to be recoverable from the respondent on account of clandestine sale of their final products - A SCN was issued - The issues raised in the present appeal have relation with valuation of exciseable goods hence, in view of the bar contained in Section 35G and 35L (1)(b)of CEA, 1944, the appeal would be maintainable before Supreme Court and not before this Court - It is further not disputed that in case the material as referred to by him in the appeal is considered, the same will have relation with valuation of exciseable goods - As undisputedly the issues raised in the present appeal have relation with the valuation of goods for the purpose of assessment of duty, the appeals filed in this Court will not be maintainable - Accordingly, the present appeal is disposed of: HC
- Appeal disposed of: PUNJAB AND HARYANA HIGH COURT
2019-TIOL-3229-CESTAT-HYD
Dalmia Cement Bharat Ltd Vs CC, CE & ST
CX - The assessee has several factories in the country and was registered with LTU, New Delhi under a centralised registration - The issue arises in this case is, where the original refund application was filed within time but it was returned for deficiencies and is resubmitted by assessee after rectifying the defects, the original date should be considered or the date of the final submission for purpose of reckoning limitation under Section 11B - The issue is no longer res integra and it has been decided by High Court of Delhi in case of Arya Exports - 2005-TIOL-41-HC-DEL-CX as well as by the High Court of Gujarat in case of AIA Engineering Ltd that the date of the original application should be considered - In this particular case, there is another twist inasmuch as the applicant has filed a consolidated refund application before the LTU covering all their units while the final refund application was confined to their Kadapa unit only and hence the amount of refund claimed was different - Nevertheless, the ratio of the aforesaid judgements applies to this particular case and therefore the date of their original refund application filed before the LTU, New Delhi should be reckoned as the date of filing the refund application - As far the question of computation and verification of documents is concerned, the original authority should be given an opportunity to verify all the documents and examine and settle the claim as per the provisions of the law - The appeal is allowed by way of remand to the original authority: CESTAT
- Matter remanded: HYDERABAD CESTAT
2019-TIOL-3228-CESTAT-MUM
Bosch Ltd Vs CCE & ST
CX - The assessee is a LTU and it received catering and house-keeping services at the factory premises for both employees of its two units namely EOU and DTA - They had paid the amount charged by service provider for such canteen and housekeeping services and taken credit of service tax paid on the said services - Assessee was issued with two SCNs with allegation of availment of cenvat Creit on catering and housekeeping services which were no inputs having any relationship with manufacture products and against availment of Cenvat Credit on the amount recovered from employees towards canteen and catering service used by its employees of EOU - The argument led by assessee that no specific ground was proposed in SCN to recover input credits except that it was irregular, is not acceptable in view of the fact that the entire narration in SCN is based on allegation as to why the credits were inadmissible - It is the settled principle of law that service tax paid on catering and house-keeping services are eligible input credits before negative list came into force, for which both in O-I-A and O-I-O, the credits were held to be admissible - It is undisputed fact that the assessee is a LTU unit which is governed by Rule 12 A - Cursory reading of the said Rule would indicate that Cenvat Credit available with one of registered manufacturing premises can be used by other such registered manufacturing premises and if the transfer is done from the premises providing taxable service, the other registered premises should also be providing taxable service and not vice versa, which is applied by the authorities below and argued by revenue - This being so, the credit attributable to EOU could be taken and utilised by assessee DTA - Concerning availability of Cenvat Credit on recovery made from employees towards canteen service, the issue has now been set at rest by Bombay High Court in case of UltraTech Cement Ltd - 2010-TIOL-745-HC-MUM-ST, that such availment of credit is not admissible - However, considering the unsettled position of law on the issue of admissibility and inadmissibility of credits on catering and house-keeping services, extended period cannot be invoked but since the 2nd SCN is confined to the normal period and even SCN does not indicate malafide intention on the part of assessee to avail ineligible credit, confirmation of penalty u/s 78 by Commissioner (A) is hereby set aside: CESTAT
- Appeal partly allowed: MUMBAI CESTAT
CUSTOMS
2019-TIOL-3227-CESTAT-MUM Honda Siel Cars India Ltd Vs CC
Cus - The appellant-company imported cars and cleared the same on payment of duty by debiting the duty under DEPB scheme - Upon import, the appellant paid 4% SAD through TR-6 challan - Later, on sale of imported cars, it filed for refund of such 4% SAD as per Notfn No 102/07-Cus - On adjudication, the refund claim was rejected by the adjudicating authority on grounds of limitation - Such rejection was sustained by the Commr.(A) - Hence the present appeal.
Held - Considering the decision of the Bombay High Court in CMS Info Systems Pvt Ltd Vs UoI it is clear that the period of limitation even if specifically not mentioned under the Notfn No 102/07-Cus before its amendment, all refund of Customs duty being governed u/s 27 of the Customs Act, the limit of one year from the date of payment of 4% SAD would be applicable - In the present case, as the refund was filed after one year from the payment of 4% SAD, the same is barred by limitation - Hence the O-i-A merits being sustained: CESTAT
- Appeal dismissed: MUMBAI CESTAT
2019-TIOL-3226-CESTAT-HYD
West Asia Maritime Ltd Vs CCT
Cus - The appeal filed before the Commr.(A) by the appellant company had been rejected for not making the mandatory pre-deposit within the time limit prescribed for such purpose - Hence the present appeal.
Held - The issue at hand is whether in a case where the appeal has been filed within time or within the condonable time limit but no pre-deposit has been made and such pre-deposit has been made after the condonable time limit, the date of filing the appeal should be reckoned or the date of making the pre-deposit should be reckoned for the time limit under section 128 of the Customs Act - The High Court of Gujarat in Ramesh Vasanthbhai Bhojani drew a distinction between Section 128 and 129E and held that the date of filing the appeal u/s 128 is different from the date of making the mandatory pre-deposit without which the appeal could not be entertained u/s 129E - Following such decision, the appeal is filed within the condonable time limit - Hence the matter is remanded to the Commr.(A) for reconsideration: CESTAT
- Case remanded: HYDERABAD CESTAT | 
