| SERVICE TAX
VRK And Company Vs CCE, C & ST
ST - The assessee was issued SCN proposing to demand service tax under Commercial or Industrial Construction services - After due process of law, the original authority confirmed the demand, interest and imposed penalties - The period involved as per operative part of the order is from 10.09.2004 to 31.03.2008 - On perusal of records, it is seen that the period involved as per the transactions in SCN is from 10.09.2004 to November, 2007 - The issue that arises for consideration is whether the confirmation of demand under CICS can sustain for the period prior to 01.06.2007 - Undisputedly, the contracts are composite in nature which has been brought out from the evidences placed before Tribunal - Though cement and steel was supplied free, other goods viz-wood, sand, consumables were used for execution of the piling works - The assessee has paid VAT and filed VAT returns for the very same work orders for which certificate is issued by Commercial Tax Officer - Further, a certificate issued by Chartered Accountant is also produced to show that apart from steel and cement other materials have also been used - On perusal of this certificate, it is found that the assessee has used consumables to the amount of Rs. 38,01,188/- in financial year 2004-05 and Rs. 26,62,871/- in 2005-06 - There is also purchases of brick, wood and other items which have been used for executing the work orders - Thus, it is established that the contracts are composite in nature - There upon the decision in case of Larsen & Toubro - 2015-TIOL-187-SC-ST would apply to the period prior to 01.06.2007 and therefore the demand cannot sustain - For the period after 01.06.2007 the decision of Tribunal in the case of Real Value Promoters - 2018-TIOL-2867-CESTAT-MAD as followed in P. Balakrishnan - 2019-TIOL-1554-CESTAT-MAD would assist the assessee - By applying these decisions, the entire demand cannot sustain - The impugned order is set aside: CESTAT
- Appeal allowed: HYDERABAD CESTAT
ST - The assessee is engaged in providing restaurant service - While acting on an intelligence, department observed that despite providing the taxable service, assessee is not registered with the department nor is paying the service tax - Scrutiny of records revealed that the assessee had short paid the service tax during period from May 2011 to September, 2015 - Commissioner (A) has clearly recorded that he had the power to condone delay only coupled to the extent of 30 days beyond 60 days from the date of the order to be challenged and since the impugned appeal was much beyond 30 days/one month, it being filed after a delay of one year, the Commissioner (A) had dismissed the appeal being barred by the period of limitation - From the order under challenge, it is apparent that there was no reason for delay was mentioned in the appeal - There is apparent a letter written by assessee to Commissioner (A) on 30 May, 2018 praying for treating the said letter as a mercy petition - From the O-I-O, it is clear that the assessee was heard and the order is not ex-party - Accordingly, there is no reason apparent as to why the assessee took one year time to seek the copy of the order - The application is also silent about the source of assessee's knowledge about the O-I-O to have been passed - It is also observed from said application itself that the assessee has mentioned for his business to have been closed since May, 2015 - Nothing is apparent on record about any information ever been given by assessee to the Department in the said respect rather his address is same since the issuance of SCN till the impugned order under challenge - Accordingly, none of these reasons are opined sufficient to explain the delay as huge as that of one year beyond the period of limitation - Above all, Section 85(3A) of Finance Act makes it clear that Commissioner is not empowered to condone any delay in filing appeal in excess of limitation period prescribed under the said Section as was held by Tribunal in the case of Modern Syntex (I) Ltd. - There is no infirmity in order under challenge - Commissioner (A) had no option to dismiss the appeal on the ground of limitation - As a result, the appeal stands dismissed not only for want of the prosecution on part of assessee but also for the reason that the appeal has no merits to sustain: CESTAT
- Appeal dismissed: DELHI CESTAT
CENTRAL EXCISE
Lupin Ltd Vs CCGST
CX - The assessee-company manufactures P&P medicines and bulk drugs falling under Chapter Heading 29 & 30 of the CETA 1985 - The assessee exported finished goods under claim of rebate of duty paid on finished goods u/r 18 r/w Notfn No 19/04-CE (NT) dated 6.9.2004 - The assessee paid excise duty on CIF value (inclusive of freight and insurance) for certain exports - Upon receiving intimation from the rebate sanctioning authority that rebate claim be restricted to FOB value, the assessee voluntarily corrected the rebate claim to the extent of FOB value - The Superintendent issued duty paying certificate only to extent of FOB value arrived at by deduction amount of duty paid on freight and insurance - The assessee took suo motu credit of excess duty paid, in its Cenvat a/c - The Superintendent issued letter to the assessee requesting copies for orders passed by the competent authority, allowing re-credit - Later, SCN was issued proposing to disallow and recover cenvat credit u/r 14 of CCR 2004 r/w proviso to Section 11A of CEA 1944, imposing penalty u/r 15 of CCR and demanding interest u/s 11AB of CEA - On adjudication, the terms of the SCN were sustained - On appeal, the Commr.(A) too sustained such findings on grounfs that suo motu credit was impermissible in absence of valid duty paying documents and that credit taken without challenging the refund rejection order is irregular - Hence the present appeal.
Held - It is accepted by the Revenue that the assessee is entitled to refund of excess duty paid, which is of nature of deposit with the Govt - Considering the verdict of the Madras High Court in ICMC Corporation Limited vs. CESTAT, Chennai wherein an assessee is entitled to take re-credit of the undisputed amount and have taken the credit under intimation to the Revenue, the proceeding for disallowing the same is unwarranted and there is no requirement to file separate application for refund of duty u/s 11B - Further, the Commr.(A) in the impugned order erroneously rejected the appeal having observed that the assessee took suo motu credit without valid duty paying documents - Such observation is factually wrong and vitiates the O-i-A - Besides, the order is cryptic and non-speaking - In such facts and circumstances, the assessee rightly took credit under intimation to the Revenue - Hence the O-i-A merits being quashed: CESTAT
- Assessee's appeal allowed: DELHI CESTAT
Ramco Cements Ltd Vs CCE
CX - The assessee-company manufactures Cement and uses Fly Ash in the process - Verification of invoices issued by service providers revealed that they charged the assessee in invoices towards services provided by them for operation and maintenance of thermal power station - However, the assessee took credit on such invoices claiming that the same is input service to them - SCN was issued to the assessee proposing reversal of cenvat credit and imposing penalty u/r 15(2) of CCR 2004 - Such proposals in the SCN were sustained on adjudication - Hence this appeal.
Held - It is not the Revenue's case that the assessee is not using fly ash for manufacturing Cement - The maintenance of PDFACS systems by the contractors or the appellants in terms of thermal power station is undoubtedly under round the clock collection and supply of fly ash - Hence it is evident that the service rendered by the contractors of the assessee is surely in or in relation to the manufacture of Cement by the assessee - As long as the services are used directly or indirectly in the manufacture of dutiable products by the appellants such services are to be deemed to be services rendered to them and the input services for that purposes - Hence the assessee is entitled to avail input service credit on the activities performed by the contractors maintaining the systems to collect the fly ash generated in the thermal power plant: CESTAT
- Assessee's appeal allowed: CHENNAI CESTAT
CUSTOMS
Cus - The assessee imported raw material for manufacture of final product-steel - They could not declare the final prices of imported goods and hence all bills of entry were assessed provisionally - Thereafter, they submitted the final invoices based on which the bills of entries are finally assessed and the differential duty was ordered to be paid to the assessee by the original authority - Revenue appealed against these orders and it was their contention before the First Appellate Authority that the assessee has not proven that they have not indirectly added the excess duty paid to their customers by adding it as the cost of raw materials - Agreeing with the Revenue, the First Appellate Authority set aside the orders of lower authority sanctioning the refund - Assessee submits that they have, accounted the differential of customs duty paid as "receivables" as they were expecting the amount to be received as refund from the department - They have only added the final amount of customs duty assessed to the cost of raw materials - In support of this, he filed an affidavit by the Assistant Manager of company and cost accountant certificates along with an abstract of the balance sheet - The certificate of the cost accountant indicated that differential custom duty was included in this receivables account - No evidence found to the contrary in records - Evidently, the amount is added in books of accounts as "amount receivables" and not as "cost of raw materials" and it could not have been passed on indirectly to the customers - Assessee is entitled to refund of differential duty and their claim is not hit by clause of unjust enrichment: CESTAT
- Appeals allowed: HYDERABAD CESTAT |
ADAHEAD_15.jpg)
