| SERVICE TAX
2020-TIOL-12-SC-ST
Chate Educare Pvt Ltd Vs CCE
ST - Dismissal of appeal for nonpayment of interest amount - The Tribunal granted stay on condition of predeposit of Rs 10 lakhs within six weeks - The assessee deposited Rs 10 lakhs on 15.03.2010 i.e. within stipulated period - The appeal came to be dismissed on the ground that interest amount is not deposited - Later, the Tribunal allowed another opportunity was granted to the assessee to deposit entire interest amount within a period of eight weeks - Subject to the assessee depositing entire interest amount within eight weeks from the date of this order, the Tribunal would hear the appeal filed by the appellant on its own merits and decide the same - Condition of deposit of interest amount is a condition precedent.
Held - The present Special Leave to Permission is sought to be withdrawn - Hence dismissed as withdrawn: SC
- SLP dismissed :SUPREME COURT OF INDIA
2020-TIOL-65-CESTAT-ALL
Vectus Industries Ltd Vs CST
ST - Issue is whether the commission earned by the Managing Director of the appellant company, apart from his fixed salary, is in lieu of services provided by him for promotion of the sales in the market and hence is liable to service tax.
Held: If the entire remuneration stands considered by Income Tax Authorities as salary, the same cannot be considered as service, so as to pay the ST - the Income Tax Authorities are the prime authority to adjudge the said issue - inasmuch as the adjudicating authority has not dealt with the said aspect and has not verified the fact of assessment by Income Tax Authorities under the head 'salary', the Bench deems it fit to set aside the impugned order and remand the matter to the Original Adjudicating Authority for fresh consideration : CESTAT [para 4]
- Matter remanded : ALLAHABAD CESTAT
2020-TIOL-64-CESTAT-AHM
Mastercard Mobile Transactions Solutions Pvt Ltd Vs CCE & ST
ST - The assessee filed claim for refund of unutilized Cenvat credit on input services used in export of Information Technology Software service, u/r 5 of CCR 2004 r/w Notfn No 27/2012-CE(NT) dated 18.6.2012 - The adjudicating authority observed that the assessee is an arm of M/s Master Card Mobile Transactions Solutions Inc., Illinois, USA, the service recipient and that the assessee failed to clarify whether M/s C-Sam Ink provided services to its Indian customers - Hence the adjudicating authority found that provision of service was consumed in India and so was outside the ambit of export of service and not in accordance with Rule 3(2) of the Export of Service Rules 2005 - Hence the adjudicating authority passed O-i-O, rejecting the refund claim - Such O-i-O was later sustained by the CIT(A) - Later, the Tribunal remanded the matter to the Commr.(A), who further remanded the matter - Considering findings in assessee's own case for a different period, the refund was allowed - On Revenue's appeal, the Commr.(A) again remanded the matter - Hence the present appeal.
Held - On an identical issue of refund u/r 5, various refund claims were filed by the assessee and there was a chequered history of the overall cases - The matter was remanded by the Tribunal to the Commr.(A) for reconsideration - However, the Commr.(A) also remanded the matter to the Adjudicating Authority - While the Tribunal has passed order No. A/13799-13800/2017 dated 22.11.2017 wherein, the identical issue was involved, the only difference was the period - As per the decision, the issue in dispute is finally settled - Hence the O-i-A merits being quashed: CESTAT
- Assessee's appeal allowed : AHMEDABAD CESTAT
CENTRAL EXCISE
2020-TIOL-11-SC-CX
CCE & ST Vs Shri Krishna Industries
CX - The assessee-company manufactures Ceramic Glaze Fritz falling under CETA sub-heading 3207.10/90 - Based on investigation by DGCEI, SCNs were issued to the manufacturers of such products, alleging evasion of duty - The assessee was served an SCN alleging under-valuation of goods, suppression of production based on excess consumption of fas, clearance of goods on parallel invoices & wrongful claim for SSI exemption as the clearances exceeded the exemption turnover - Separate demands were proposed on all these counts - On adjudication, the duty demands were confirmed along with equivalent penalty u/s 11AC - Later the Tribunal held that allegation of undervaluation is based on statements of some buyers and not on any evidence - Hence the demands raised in this regard are unsustainable - It was also held that the demands raised based on consumption of natural gas are unsustainable since unsupported by procurement of raw material, its processing or transportation or identification of buyer - Hence as the charges of undervaluation and clandestine removal are not sustainable against the assessee, there is no reason to deny SSI exemption.
Held - Delay is condoned - Notice issued - Matter be tagged with Civil Appeal Nos. 3133-3135 of 2018: SC
- Notice issued :SUPREME COURT OF INDIA
2020-TIOL-62-HC-MAD-CX Commissioner of GST & CE Vs Zylog Systems Ltd
ST - The assessee had taken registration as providers of IT Software service - In respect of services received prior to registration under cover of invoices, assessee availed cenvat credit of service tax charged thereon - However, credit of service tax so availed remained unutilized since they exported the services - Accordingly, they filed refund claim under Rule 5 of CCR, 2004 r/w Notfn 5/2006-CE (NT) - The issue in dispute is no longer res integra and has been laid down to rest by a number of decisions and in particular the judgement of High Court in BNP Paribas Sundaram Global Securities Operations Pvt. Ltd. wherein it has been held that registration of assessee's premises is not a pre-requisite for claiming credit of refund under Rule 5 of CCR, 2004 - The High Court reiterated their earlier decision in M/s. Scioinspire Consulting Services India Pvt. Ltd. and another - Hence the Tribunal proceeded to dismiss the Revenue's appeal.
Held - The Revenue's counsel claimed that though the issue issue was covered by the decision of the High Court, the Tribunal failed to decide the question of limitation for filing refund claim by the assessee before the authority concerned, even though a ground in this regard was raised in the grounds of appeal before the Tribunal - Such contentions of the Revenue appear to be correct since the Tribunal's order does not discuss issue of limitation - Hence the Revenue is at liberty to raise such ground before the Tribunal again: HC
- Revenue's petition allowed : MADRAS HIGH COURT 2020-TIOL-63-CESTAT-AHM
Reliance Industries Ltd Vs CCE & ST
CX - Appellant is engaged in the manufacture of motor spirit - the case of the department is that addition of 5% ethanol in the motor spirit is amounting to manufacture and, accordingly, clearance of motor spirit blended with ethanol is liable to excise duty - demand confirmed, equivalent penalty imposed - appeal to CESTAT.
Held : It is found that, among other findings, the Adjudicating Authority has heavily relied upon the Draft Circular F. No.83/04/2007-CX which intended to withdraw the Circular No. 83/83/94-CX dated 13.12.1994 which Circular was heavily relied upon by the appellant - the Draft Circular which was never issued as a Circular should be completely ignored and no reference can be drawn from such Circular - since the Draft Circular was not issued, the Circular No. 83/83/94-CX dated 13.12.1994 is continued and effective - therefore, the finding of the Adjudicating Authority based on the Draft Circular is not sustainable -in this situation, the entire matter needs to be given a relook by considering the various alternative submissions made by the appellant - therefore, the impugned order is set aside and the appeal allowed by way of remand to the Adjudicating Authority for passing a fresh order : CESTAT [para 7, 8]
- Matter remanded: AHMEDABAD CESTAT
2020-TIOL-62-CESTAT-HYD
Nagarjuna Fertilizers And Chemicals Ltd Vs CCE, C & ST
CX - The assessee had set up a unit No. 1 for manufacture of agriculture and horticulture equipment; they have also purchased plant and machinery of Bhagyanagar Wood Plast Limited who were engaged in manufacture of PVC pipes and set up a Unit No. 2 which was supplying PVC pipes as parts to their Unit No.1 for use in the manufacture of drip/sprinkler irrigation system - The assessee have classified the said PVC pipes under CETH 8424 9000 and availed the exemption contained at Sl.No. 70 of Notfn 03/2005-CE - The department contended that the classification adopted by assessee is wrong and the pipes are classifiable under CETH 3917 and accordingly are not eligible for said exemption - On perusal of agreements, the assessee had with various State Government/Agencies, it is seen that the same are for complete irrigation systems - The order placed by M/s GGRC Limited on the assessee is for supply and installation of Micro Irrigation System (MIS) in the fields of beneficiary farmers - The PVC pipes are mentioned as components alongwith others viz; filters, valves - Payments too are also for complete systems rather than pipes - The agreement with others also are more or less similar - It cannot be said that the pipes are supplied separately and as such are for general use - The moment the pipes are utilised for intended purposes in irrigation systems, they seized to be parts of general use and lose their character as plastic pipes to be classified under CETH 39.17 - This view has been constantly taken by Tribunal and has been affirmed by Apex Court - This being the case, reference to Board's Circular which issued in 1998, classified the product under CETH 39.17 is of no avail - The Department's contention that a specific heading should be preferred to a general heading is not applicable - In the result, as the PVC pipes manufactured and cleared by assessee are evidently shows to be for irrigational purposes in agriculture/horticulture, the classification of same is correctly done under CETH 8424 9000 and not under CETH 39.17 as contended by Department: CESTAT
- Appeal allowed: HYDERABAD CESTAT
CUSTOMS
2020-TIOL-61-HC-KAR-CUS
Dalmia Cement Bharat Ltd Vs UoI
Cus - The petitioner filed the present writ seeking that directions be issued to the Asst Commr. of Customs concerned to consider the petitioner's application for finally assessing the BoE by granting exemption of Social Welfare Surcharge amount as per Notfn No 24/2015-Cus.
Held - The Customs officer concerned is directed to consider and decide upon the representation through a speaking order within 6 weeks' time from date of receipt of a copy of this order: HC
- Writ petition disposed of : KARNATAKA HIGH COURT
2020-TIOL-60-HC-MAD-CUS
V K Industrial Corporation Ltd Vs CC
Cus - The assessee-company is aggrieved by an interlocutary order passed by the Tribunal, rejecting the assessee's prayer seeking test report in respect of samples drawn from goods imported by assessee - The assessee's counsel claimed that a similar request was brushed aside by the adjudicating authority without reason or discussion - The counsel also claimed that the Steel plates coated with Zinc Silicate imported by the assessee did not attract Anti Dumping Duty.
Held - A cryptic order passed by the Tribunal in rejecting the prayer of the assessee was unjustified - An evidence in this regard was led by the assessee before the adjudicating authority in the form of a test report and upon its negation, the assessee simply wanted a direction to the authority to secure a test report from another Government Laboratory or accredited Laboratory so that the evidence of the assessee can be weighed against that - The powers of a Civil Court are vested with the Tribunal which has co-extensive powers with that of the adjudicating authority - Hence its refusal of the assessee's application to summon such a Test Report merely because the counsel failed to point out the relevant provisions of law was not justified - Hence the Tribunal's order merits being quashed: HC
- Assessee's application allowed : MADRAS HIGH COURT 2020-TIOL-61-CESTAT-MUM
Indusind Media And Communications Ltd Vs CC
Cus - Based on specific intelligence that the assessee would be filing the documents for import of multiplexers, satellite receivers, test and measurement equipments, computers, software and rack wherein the value would be mis-declared to evade payment of customs duty by suppressing the value of software and integration charge, a watch was kept by SIIB section on the B/E being filed in the name of assessee - On examination of consignment, same was found to consist of 8 items as several cards were already assembled into the main units - Though the B/E described the goods individually they were found to be already built into multiplexers, descrambler/receivers/ system/ trackers/ servers - These items together constituted "Headend" for Cable TV operations - A Cable Headend is the equipment at a local cable TV Office that originates and communicates cable TV services and cable modem services to subscribers through conditional access mode - Thus, all the goods taken together were appropriately classifiable under CTH 85438999 in terms of Chapter Note 5(E) to Chapter 84 read with Section Note 4 to Section XVI - On the basis of investigations undertaken, it was viewed that under invoicing was too the extent of USD 100019 on account of service charges, USD 12000 on account of freight and insurance charges and USD 45275 on account of differential price for software - After adding the above to the declared CIF value and 1% towards landing and handling charges the assessable value appeared to be around US$ 365249 equivalent to Rs 1,72,03,243/-leviable to duty under CTH 85438999 at rate BCD 25% + CVD 16% + SAD 4%, and thus total duty payable was assessed at Rs 87,39,248/- and differential duty to be paid was worked out to be Rs 54,19,477/- - The goods were on request of assessee assessed provisionally on execution of P D Bond for Rs 1,72,03,242/- supported by Bank Guarantee of Rs 86,01,625/- - The goods were released provisionally on filing post bill of entry manually on payment of differential duty of Rs 54,19,475/- - The issue is squarely covered by decision of CESTAT Delhi bench in assessee's own case - It is evident that exactly identical imports were affected by assessee from Delhi and Mumbai - Even the quantities, unit value and FOB value as per the six invoices filed in respect of imports made at Delhi and Mumbai was identical - Hence, the issue as decided by Tribunal in case of Delhi, imports will squarely cover the imports made at Mumbai - Since the issue is squarely covered by said decision in case of assessee themselves, said decision was followed and the matter was remanded back to adjudicating authority for re-computation of differential duty and penalties to be imposed in light of re-computed duty liabilities - The impugned order is modified and appeals allowed by way of remand for re-quantification of duty and penalties: CESTAT
- Appeal allowed: MUMBAI CESTAT
2020-TIOL-60-CESTAT-HYD
Rado Impex Logistics Pvt Ltd Vs CC
Cus- Appellant is a Customs broker - in a case of mis-declaration of quantity of the goods imported, on appeal by Revenue, the Commissioner (Appeals), vide impugned order, imposed a penalty of Rs.4.82 lakh under section 114A of the Customs Act, 1962 upon the appellant - Aggrieved, Customs broker is before the CESTAT.
Held: As per section 12 of the Customs Act,the charge of customs duty is on the goods imported or exported -the importer or exporter is, therefore, liable to pay the customs duty -it does not matter if the importer or exporter entrusts this responsibility to somebody else, may be his own employee or an agent -the liability is on the importer or exporter only -the definition of importer also includes "any person who holds himself out to be importer" -in this case, the appellant has not claimed to be importer -in fact, the bills of entry mention the name of the main importer as the importer for the consignments -therefore, the liability of customs duty rests only upon the importer -accordingly,section 114A also applied to the importer in this case -it cannot apply to customs broker whose offence was mis-declaring facts in the bills of entry -section 114AA is meant for such offences and a penalty under this has already been imposed by the Deputy Commissioner which has been paid by the appellant - in view of the above, appeal is allowed and the impugned order is set aside : CESTAT [para 7, 8]
- Matter remanded: HYDERABAD CESTAT |
