SERVICE TAX
2019-TIOL-2657-HC-MAD-ST
Hindustan Oil Exploration Company Ltd Vs Commissioner of GST & CE
ST - Petitioner challenges the Order-in-Original dated 29.05.2019 passed by the Commissioner and seeks for a direction to the first respondent to decide the matter afresh in accordance with law after affording the petitioner and an opportunity of personal hearing since the adjudicating authority failed to consider the Board Circulars issued on 12.02.2018 and 05.03.2018.
Held: There is no dispute to the fact that as against the present order passed by the first respondent, a statutory appellate remedy is available before the CESTAT and therefore, all the factual contentions raised by the petitioner by relying on those two Circulars can very well be raised before the Appellate Tribunal, which, undoubtedly, also a fact finding authority, will have to go into the merits of the contentions raised by the petitioner and decide as to whether the Adjudicating Authority has in fact considered the effect of such Circulars while passing the impugned order or not, even though, those two Circulars were not referred to in the impugned order - When such remedy is available to the petitioner and more particularly, when this Court finds that the dispute raised in this writ petition by relying on those two Circulars cannot be considered and decided without going into the factual aspects of the matter, Bench is of the firm view that the petitioner has to only resort to the statutory appellate remedy by filing regular appeal before the CESTAT - Therefore, without expressing any view on the merits of the contentions raised by both parties, this writ petition is disposed of only by granting liberty to the petitioner to file such appeal within a period of four weeks from the date of receipt of a copy of this order before CESTAT - And on receipt of such appeal, the CESTAT shall consider the same on its own merits and pass orders in accordance with law, without reference to the period of limitation: High Court [para 10 to 12]
- Petition disposed of : MADRAS HIGH COURT
2019-TIOL-2656-HC-DEL-ST
C P System Pvt Ltd Vs CST
ST - Delay of 468 days in filing cross objections u/s 86(4) of the Finance Act, 1994 was not condoned by the CESTAT, hence the appellant has filed an appeal before the High Court - it appears that the Revenue had filed an appeal challenging the order passed by the Commissioner of Service Tax and which has been numbered as 50787/2014 - notice was issued by the CESTAT on 8.02.2017 and if any cross objection was to be filed, the assessee ought to have done the same within 45 days of receipt of notice in terms of s.86(4) of the FA, 1994 - period of limitation for filing of cross objection was over on the 31st March, 2017 and the cross objection was filed by the appellant before CESTAT, New Delhi on 20th July, 2018 but the same was rejected on the ground that there was no reasonable reason to condone the delay - appellant submits that they were facing financial difficulties and the documents of the year 2005 and 2006 were being traced - counsel for Revenue submits that only nominal fees are required to be filed for filing cross objection; that matters were adjourned on various dates upon request of appellant; that several lawyers appeared on behalf of the appellant on various occasions; that the said time could have been used for filing cross objections.
Held: There is no cogent reason for condonation of delay by the CESTAT and aspect of the matter has been properly appreciated by Tribunal - financial difficulties cannot be a reason for such a huge delay in filing the cross objections because the highest court fees to be paid is approximately Rs. 10,000/- - it appears that when the appellant was engaging lawyers who have appeared for as many as 9 dates before CESTAT, New Delhi, they could have filed cross objections within period of limitation - Bench is in full agreement with the reasons given by the CESTAT, New Delhi for not condoning the delay vide order dated 12th September, 2019 and High Court sees no reasons to take any other view - Appeal dismissed: High Court [para 9, 10, 11, 13, 14]
- Appeal dismissed : DELHI HIGH COURT
2019-TIOL-3403-CESTAT-HYD
Deloitte Tax Services India Pvt Ltd Vs CC & CE
ST - The assessee-company was served SCNs in the relevant AY, proposing to raise duty demand for manpower recruitment or supply agency service as for commercial training or coaching service - Both demands were raised under RCM on grounds that such services were availed from overseas partners and paid for by the same - The assessee claimed to have paid the duty demanded under Commercial Training and Coaching service and that the same had been appropriated - In respect of the other service, the assessee claimed that its parent company in the USA sent employees on secondment which had been treated by the Revenue as manpower recruitment or supply agency service - Hence the present appeal contested the duty demand raised on this count.
Held - The matter warrants remand to the adjudicating authority so as to verify the relevant documents and then verify if the personnel deployed and the assessee had an employer-employee relationship - The principles of natural justice be followed and the assessee be given adequate opportunity to present the requisite documents: CESTAT
- Case remanded: HYDERABAD CESTAT
2019-TIOL-3400-CESTAT-AHM
Gujarat Sidhee Cement Ltd Vs CCE & ST
ST - Both the appellants are sister concerns under the Mehta Group of Companies and are engaged in the cement manufacturing business - During the course of audit of both the companies it was noticed that for the period 01.07.2006 to 31.03.2007, both the companies were sharing various expenses incurred in their factories on the basis of sharing formula depending upon turnover and other overhead cost basis - The issue to be decided is that whether the common facility such as staff etc. used on sharing basis by two sister concerns of the same group companies is liable for service tax under man power recruitment and supply agency service - This issue is no longer res integra in view of judgments in Arvind Mills Ltd 2013-TIOL-1455-CESTAT-AHM , Paramount Communication Ltd 2013-TIOL-37-CESTAT-DEL and Gujarat State Fertilizers & Chemicals Ltd 2016-TIOL-198-SC-ST wherein it was held that common staff used on sharing basis by two group companies does not amount to provision of service, accordingly, demand of service tax were dropped - Accordingly, relying upon the judgments, the impugned orders are set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
CENTRAL EXCISE
2019-TIOL-3402-CESTAT-CHD
Max Speciality Films Ltd Vs CCE & ST
CX - The appellant is in appeal against impugned order wherein Cenvat credit on "New Conference room wooden flooring & finishing in Line 3, painting & Polishing of entire new conference room line 3 & New control room in line 4 and interior decoration fee for conference room line 3 & new control room in line 4, painting & Polishing of new built up canteen, consultation charges including full design & interiors of above canteen, upholstery & furnishing of new built amenity block, full painting & polishing of above area", has been denied on the ground that these are new constructions and as per Rule 2(l) of CCR, 2004 w.e.f. 01.04.2011, they are not entitled to avail Cenvat credit on new constructions - On earlier occasions, the appellant was asked to file an affidavit to the effect that these are only renovation and maintenance of conference room, canteen and amenity block whereas the revenue was directed to inspect the site and to give the report whether these services are availed for renovation and maintenance or new conference room, new canteen and new amenity block has been constructed by assessee - On the other hand, appellant has filed an affidavit to the fact that these services are nothing but only renovation and maintenance of canteen, conference room and amenity block - As the contents stated in affidavit are non controverted by revenue with sufficient evidence, in that circumstances, without examining the site the Cenvat credit cannot be denied to the appellant, therefore, the above mentioned services are availed by appellant for renovation and maintenance of their conference room, canteen and amenity block and cenvat credit cannot be denied to them - The impugned order is set aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
2019-TIOL-3401-CESTAT-MUM
KEC International Ltd Vs CCE
CX - The assessee-company manufactures power cables falling under Chapter 85 of the CETA 1985 - During the relevant period, the assessee removed excisable goods to M/s NDPL pursuant to purchase order issued by them - Such purchase order provided the rate of supply of the goods by the assessee, which included all taxes and duties - While issuing the relevant Excise invoices, the assessee separately claimed Central Excise duty on ad valorem basis - Later, the assessee claimed refund of excess duty paid by it - The original adjudicating authority sanctioned the refund amount - Later the Commr.(A) quashed such O-i-O - Hence the present appeal.
HELD - In the purchase order, it is specifically mentioned that unit rate or circuit meter will be inclusive of all taxes and duties - The conditions contained in the purchase order clearly show that the price indicated therein is all inclusive and no separate amount shall be charged or claimed by the supplier in respect of the taxes and duties attributable to the goods supplied by it - Considering the excise invoices issued by the assessee, it is had separately mentioned the duty amount on ad valorem basis - For accounting purpose, the assessee also issued credit note to the buyer showing the differential amount claimed in the invoices vis-à-vis the price indicated in the purchase order - The CA certificate also shows excess amount claimed by assessee in the invoices issued by it - Since, the excess amount claimed in the invoices was inclusive of central excise duty, the excess paid duty amount should be available as refund to the appellant inasmuch as such incidence of duty has been borne by the assessee itself and had not been passed to the buyers or any other person - Hence the O-i-A is unsustainable: CESTAT
- Assessee's appeal allowed: MUMBAI CESTAT
CUSTOMS
2019-TIOL-2648-HC-MUM-CUS
CC Vs Parimala Singh
Cus - The respondent has filed affidavit dated 22nd October, 2019 wherein she has stated that the entire amount of pre-deposit payable by her in terms of stay orders of Tribunal, have been deposited - In support, evidence of payment of deposits has also been annexed - In view of the affidavit, respondent submits that the appeal itself is now listed on the board of Tribunal for final hearing - Revenue is unable to dispute the facts stated in affidavit filed by the respondent - The grievance that the deposit as directed by Tribunal has not been done by the petitioner, is not correct: HC
- Petition disposed of: BOMBAY HIGH COURT
