SERVICE TAX
2019-TIOL-3420-CESTAT-HYD
CCE, C & ST Vs Giridhari Constructions
ST - Respondents filed VCES declaration u/s 107 of the Finance Act, 2013 - They paid service tax declared by them under Construction of Residential Complex services and department issued discharge certificate dt.11.04.2014 - Later, SCN dt.29.12.2014 was issued proposing to reclassify the services for which the respondent had filed declaration as Works Contact Services - original authority set aside the demand proposed under WCS holding that services for which the respondent has paid service tax would fall under Construction of Residential Complex services, therefore, Revenue is before the CESTAT.
Held: Tribunal in the case of Ashok Kumar Kesharwani - 2019-TIOL-1459-CESTAT-ALL had occasion to analyse similar situation wherein the Tribunal held that after acceptance of the declaration and issuance of discharge certificate, the department cannot reopen the proceedings in respect of the declarations made; that it would result in deviation from the immunity provided under section 108 of the Finance Act, 2013 and would render the scheme redundant and meaningless - When the declaration is filed, the department gets sufficient time to enquire and satisfy as to the category of service and value declared - On entertaining a different view, the department cannot allege misdeclaration - There should be substantial and conscious misdeclaration for re-opening a matter for which discharge certificate is issued - There is no evidence to show that there is any conscious and substantial misdeclaration on the part of the respondent - impugned order does not call for any interference - Appeal of Revenue is dismissed: CESTAT [para 6 to 8]
- Appeal dismissed : HYDERABAD CESTAT
2019-TIOL-3419-CESTAT-MUM
Growel Softech Ltd Vs CCE
ST - SCN had proposed to confirm the service tax demand under the taxable category of ‘Commercial training and coaching service' - proposals made in the show-cause notice were confirmed in the adjudication order - in appeal, the Commissioner (Appeals) 7 has held that the services provided by the appellant should merit classification under the taxable entry of "Franchisee Service" - assessee in appeal before CESTAT.
Held: On careful consideration of the show-cause notice and the impugned order, Bench finds that the appeal of the appellant was dismissed by the Commissioner (Appeals) solely on different grounds, as proposed in the show-cause notice - Thus, it is evident that the impugned order cannot be sustained, since it has travelled beyond the scope of the show-cause notice - no merits in the impugned order, hence set aside and appeal is allowed: CESTAT [para 6, 7]
- Appeal allowed : MUMBAI CESTAT
CENTRAL EXCISE
2019-TIOL-3418-CESTAT-MUM
Standard Chemical Company Pvt Ltd Vs CCE
CX - Appellants were procuring the Crude Sulphur on payment of duty and using the same as raw material for manufacturing various other excisable products - Credit was availed on input crude sulphur and the same was used while paying duty on manufactured sulphur powder -Alleging that the process carried out by the Appellant on sulphur lump does not result into manufacture within the definition of s.2(f) of the CEA, 1944, SCN was issued for recovery of CENVAT Credit of Rs.36,30,942/- availed on the lump during the period March 2006 to February 2010 with interest and penalty - Also, an amount Rs.49,33,162/- collected from the customers as duty was proposed to be recovered under Section 11D of Central Excise Act, 1944 - Proceedings u/s 11D were dropped by the adjudicating authority but the other demand viz. recovery of CENVAT credit was upheld - assessee is in appeal before CESTAT.
Held: Appellant had discharged appropriate Central Excise duty after undertaking the process of repacking, relabeling of the inputs on which credit has been availed by them - Thus, it is incorrect to allege that the appellants are not eligible to avail CENVAT Credit on inputs that has been utilized in the manufacture (repacking, relabeling etc.) of resultant product, on which appropriate excise duty was paid and accepted by the Revenue - Issue is no more res integra and covered by the judgment of Bombay High Court in the case of Ajinkya Enterprises - 2012-TIOL-578-HC-MUM-CX - following the principle of law laid down in the said case, impugned order is set aside and appeal is allowed: CESTAT [para 6, 7]
- Appeal allowed : MUMBAI CESTAT
2019-TIOL-3417-CESTAT-MUM
Commissioner of CGST Vs Schindler India Pvt Ltd
CX - Goods initially cleared from the factory of the manufacturer through OCC Division on payment of higher duty was subsequently neutralized by issue of credit note - refund allowed by Commissioner(A), hence Revenue in appeal.
Held: Amount of refund in question, was reflected under the Head 'Loans and Advances" in the Balance Sheet year ending 31 st March 2017 with narration "Balance with statutory/government authorities" - Upon verification of the particulars reflected in the balance sheet and accounting records maintained by the respondent, the Chartered Accountant's firm, by a certificate dated 31.08.2018, has given the breakup of the figure reflected in the balance sheet, which include of the amount in dispute, for which the respondent had filed the refund claim application - The records submitted by the respondent clearly demonstrate that the incidence of duty has all along been borne by it and the same has not been passed on to its buyer or to any other person - Since the excess duty initially paid was adjusted by issuance of credit note, such practice adopted by the respondent is in conformity with the accounting principles - no infirmity in order passed by Commissioner(A), hence Revenue appeal dismissed: CESTAT [para 5, 6]
- Appeal dismissed : MUMBAI CESTAT
CUSTOMS
2019-TIOL-2673-HC-AHM-CUS
JBF Industries Ltd Vs UoI
Cus - The petitioner submitted that the decision of this court in case of Maxim Tubes Company Pvt. Ltd. - 2019-TIOL-459-HC-AHM-CUS , has been challenged before Supreme Court in various Special Leave Petitions - It was pointed out that vide order dated 23.9.2019, the Supreme Court has stayed the operation and implementation of said judgment - The attention of the court was invited to the decision of the Calcutta High Court in case of Pijush Kanti Chowdhury, wherein the court has held that the effect of the order of stay in a pending appeal before the Apex Court does not amount to 'any declaration of law', but is only binding upon the parties to the said proceedings and at the same time, such interim order does not destroy the binding effect of judgment of High Court as a precedent because while granting the interim order, the Apex Court had no occasion to lay down any proposition of law inconsistent with the one declared by High Court which is impugned - Reliance was also placed upon the decision of Delhi High Court in Space Telelink Ltd. , wherein the court placed reliance upon the decision of Supreme Court in Shree Chamundi Mopeds Ltd. and held that an order keeping in abeyance the judgment of lower court or authority does not deface the underlying basis of judgment itself, i.e., its reasoning - It was submitted that therefore, the principles enunciated in decision of this court in case of Maxim Tubes Company Pvt. Ltd. would not stand defaced - By way of ad-interim relief, further proceedings pursuant to impugned SCN are hereby stayed - The respondents shall not take any coercive recovery against the petitioner for recovery of any amount under the impugned SCN: HC
-Notice returnable : GUJARAT HIGH COURT
2019-TIOL-2672-HC-MUM-CUS
ICI Coal And Mines Pvt Ltd Vs UoI
Cus - By the aforesaid communications, the Petitioner has been informed that the bills of entries which were provisionally assessed have now been finally assessed leading to a demand of Rs.62.63/- lakhs upon them - The Petitioner contended that the impugned communications have been passed without following the principles of natural justice in as much as no hearing was granted to them before finalising the bills of entries which were provisionally assessed - The impugned communications are quashed and set aside: HC
-Petition disposed of : BOMBAY HIGH COURT
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