2019-TIOL-3657-CESTAT-MUM

M Net Partner Technologies Pvt Ltd Vs Commissioner of CGST

ST - The assessee exports various services and filed refund claims during the relevant period - Such claims were sanctioned on adjudication upon noting that the assessee fulfiled conditions of Export of Service as per Rule 6A of the STR 1994 - The assessee had provided ITSS service and the service provider was located in taxable territory whereas the recipient was located abroad and that the service was not one listed in the Negative List u/s 66D - As seen from the FIRC, it was also seen that the requirement of receipt of consideration in convertible forex was fulfilled - On Revenue's appeal, the Commr.(A) reversed such findings on grounds that the assessee was providing intermediary services and that location of the intermediary service provider was in India - Hence as per Rule 9 of the Place of Provision of Service Rules, 2012, the same could not be held to be export of service - Hence the present appeal.

Held - The issue stands considered in Final Order No. A/86651-86655/2019 dated 20.09.2019 wherein it was observed that no objection was raised by the Revenue at the time of availing of credit - It was further observed that Rule 5 allowd refund of accumulated credit and at time of granting refund, the Revenue could not examine the availability of credit - Such exercise was to be done by the Revenue at time of credit availment and through separate proceedings - Hence it was not permissible to raise the objection at the time of granting refund - Hence the O-i-A merits being set aside: CESTAT

- Assessee's appeal allowed: MUMBAI CESTAT

2019-TIOL-3656-CESTAT-BANG

LM Wind Power Blades India Pvt Ltd Vs CST

ST - The assessee is engaged in manufacture of rotor blades - The Revenue, on inspection of records of assessee, found that they have been obtaining Management Consultancy from foreign service providers and were not discharging service tax on such services received by them under Rule 2(1)(d)(iv) of STR, 1994 - A SCN was issued to assessee demanding service tax for the period 16.8.2002 to 31.03.2007 - The Department also opined that the assessee have obtained technical know how from Foreign Service providers and were not paying applicable duty on technical know how and intellectual property service - The assessee submits that they have deposited service tax of Rs.37,50,695/- for the period 16.8.2002 to 31.3.2006 (out of Rs.80,65,503/-) and service tax of Rs.48,76,268/- was deposited for the period 1.4.2006 to 31.3.2007 (out of Rs.65,94,694/-) - He submits that in view of judgment of Bombay High Court in case of Indian National Shipowners Association - 2009-TIOL-150-HC-MUM-ST affirmed by Supreme Court in - 2011-TIOL-05-SC-ST import of services are taxable in India only with effect from April 18, 2006 i.e., the date on which Section 66A was inserted in the Finance Act - The issue is no longer res integra - The assessee's contentions, as far as the applicability of service tax on Management Consultancy Services received by them before 18.4.2006 are concerned, are acceptable - The revenue's arguments are of no avail in view of the decision of Supreme Court in case of Indian National Shipowners Association - No service tax can be fastened to the assessee before 18.4.2006 - Accordingly, assessee is liable to pay service tax of Rs.48,76,268/- for the period April 2006 to March 2007 - As this amount stands paid, there would be no question of penalty - As such, the Departmental Appeal on this account is not sustainable - It is clear that the payments are made for technical knowhow, training and not for the use of logo - Though, the use of logo is permitted in terms of agreement unless a specific payment is made for the same, it cannot be said that the assessee have availed any trademark in terms of the service tax law - Assessee is not liable to pay service tax on "Consulting Engineering Services" and "Intellectual Property Services" as demanded by the department - As the demand itself does not sustain, department's plea on imposition of penalty under Section 78 does not survive: CESTAT

- Appeal partly allowed: BANGALORE CESTAT

2019-TIOL-3655-CESTAT-AHM

Sun Textile Engineers Vs CCE & ST

CX - CENVAT credit was denied to the appellant M/s Sun Textile Engineers and consequential penalty was imposed on M/s Shah Foils Ltd. on the ground that they had only issued the invoices but the goods were not supplied - there is no inculpatory statement as regard the transaction made between M/s Shah Foils Ltd. and M/s Sun Textile Engineers, therefore, the heavy reliance made by Commissioner (Appeals) only on the statements is not correct - There is no dispute that the goods invoiced under eight invoices were transported and the same was received by M/s Sun Textile Engineers - The physical receipt of the goods have not been questioned in the entire case - The goods have been recorded in the books of M/s Sun Textile Engineers and the payment against the supplies were shown in the books, even though it is partly or otherwise - No investigation was carried out with M/s Sun Textile Engineer regarding the receipt of the goods, accounting in the books, use in the manufacture of final product and the clearance of final product on payment of duty, therefore, the said facts are not in dispute – Bench is fully convinced with the findings given by the Assistant Commissioner for dropping the demand - finding given by the Commissioner (Appeals) has no leg to stand - accordingly, impugned order is not sustainable and, hence, the same is set aside and the Appeals are allowed: CESTAT [para 4]

- Appeals allowed: AHMEDABAD CESTAT

2019-TIOL-3654-CESTAT-MUM

Sharda Ispat Ltd Vs Commissioner of GST & CE

CX - The assessee is engaged in manufacture of iron and steel articles - They were also registered with service tax authorities and were paying service tax on reverse charge basis in respect of GTA service so received by them and were taking credit of the same - In terms of notfn 1/2006-ST, they were required to pay only 25% of service tax leviable on such services and the balance 75% was exempted subject to certain conditions - However, the assessee instead of availing the benefit of said notification paid the entire 100% service tax and availed the credit of entire service tax so paid by them - The only allegation in SCN was excess payment of service tax and excess availment of credit - As such, it was only this legal issue which was required to be examined and there was no question of production of any evidence before the Commissioner (A) - The appellate authority has clearly gone wrong on the subject - Coming to the legal issue, it is well settled law that an assessee cannot be compelled to avail the exemption, which in any case is conditional exemption - The revenue did not raise any objection at the time of payment of 100% service tax - It is only when the credit of the same was availed by assessee such objection came to be raised by the Revenue - In terms of CCR, 2004, an assessee is entitled to avail the full credit of service tax paid and not the tax payable - Inasmuch the assessee had paid 100% service tax, they were entitled to credit of entire tax so paid by them - The legal issue is no more res integra and stands settled by various decision - One such reference can be made to Bombay High Court judgment in Janiya Enterprises - 2012-TIOL-578-HC-MUM-CX - Reference can also be made to the majority decision in Asian Colour Coated Ispat Ltd. - 2014-TIOL-2111-CESTAT-DEL where originally, there was difference of opinion between two Members and as per the majority order, it was held that even if no duty was required to be paid on the final product being exempted, the assessee having paid the duty was entitled to the credit of the same - Inasmuch as the legal issue is settled, no reason found to deny the credit of service tax to the assessee: CESTAT

- Appeal allowed: MUMBAI CESTAT