| SERVICE TAX
2020-TIOL-366-CESTAT-MUM
Asha Transport Vs CCGST
ST - Tour Operator Service - It seems that appellant discharged the duty liability, though belatedly, even before the matter was brought to its knowledge by the respondent Department - The dispute, therefore, remained confined to payment of interest component which appellant claims to have paid but respondent Department denies to have received the same - Both, the show cause notice as well as adjudication orders clearly indicate that appellant had not collected the required service tax from the customers, therefore, it is entitled to cum tax benefits u/s 67 of FA 1994 - This coupled with discharge of service tax liability against services extended to other service receivers for which no duty demand was made by the respondent department, it can be affirmatively stated that there was no intention traceable, in the entire proceeding concerning suppression of fact for the purpose of non-discharge of service tax - Penalty is, therefore, not imposable u/s 78 of FA, 1994 - Appeal allowed: CESTAT [para 5, 6]
- Appeal allowed: MUMBAI CESTAT
2020-TIOL-365-CESTAT-DEL
Chhattisgarh State Civil Supplies Corporation Ltd Vs CCE & ST
ST - Appellant was not liable to pay service tax on transportation of rice as same was exempt from payment of service tax as per Notification No. 25/2012-ST dated 20 June 2012 - time limit prescribed under Section 11B of the Central Excises Act, 1944 is not applicable to the facts of this case in view of Tribunal decision in Hitachi Metals (I) Pvt. Ltd. which relied upon Delhi High Court decision in National Institute of Public Finance & Policy 2018-TIOL-1746-HC-DEL-ST - impugned order set aside and appeal allowed with consequential relief: CESTAT [para 5]
- Appeal allowed: DELHI CESTAT
2020-TIOL-364-CESTAT-HYD
Orange Logisys Pvt Ltd Vs CCE, C & ST
ST - The assessee-company entered into an agreement with a shipping line company to act as its agent for selling space on the latter's ships - For sale of space, the principal has a sales tariff, which it gave to the assessee - The assessee is also at liberty to sell the space after adding some profit on their own over and above the sales tariff and retain the difference as profit - The principal also reimburses to the assessee, brokerage @ 2% on the freight - An SCN was issued proposing to raise duty under BAS, in respect of the amounts received by the assessee for acting as an agent of the principal as they assisted the principal in its business - On adjudication, the demands were confirmed and were proposed to be recovered with interest u/s 75 of the Finance Act and equivalent penalty u/s 78 and penalty u/s 77 - On appeal, the Commr.(A) quashed the penalties imposed u/s 77 & 78 but sustained the demand - Hence the present appeal.
Held: A reading of the agreement between the assessee and the shipping line shows that this is not a case of agreement on a principal to principal basis, but the assessee is appointed as an agent by the shipping lines for rendering service of selling space on their ships - Such activity clearly falls within the ambit of BAS - Besides, the penalties imposed by the lower authorities were quashed by the Commr(A) and the Revenue did not contest the same - In such circumstances, the assessee is liable to pay tax on BAS - Hence the O-i-A merits being sustained and warrants no interference with: CESTAT
- Assessee's appeal dismissed: HYDERABAD CESTAT
CENTRAL EXCISE
2020-TIOL-363-CESTAT-DEL
Ashirwad Ispat Udyog Vs PR CC
CX - CENVAT credit in respect of the invoices for the period March to April, 1994 was sought to be denied by SCN dated 01.07.1994 - later another SCN dated 28.02.1996 issued to deny credit in r/o same invoices on some other ground - since facts were already in knowledge of department, proceedings time barred - impugned order set aside and appeals allowed with consequential relief: CESTAT [para 8, 9]
- Appeals allowed: DELHI CESTAT
2020-TIOL-362-CESTAT-MUM
CCE & C Vs Skoda Auto India Pvt Ltd
CX - The assessee-company is engaged in manufacturing motor vehicles falling under Chapter 8703 of the CETA 1985 - In the relevant period, the assessee sold motor vehicles through dealers across India - In the Letter of Intent/agreement with the dealers, it is mentioned that the advertisement and sales promotions of Motor Cars would also be undertaken by the dealers - Alleging that in view of the Circular No. 643/34/2002-CX dated 1.7.2002 and Circular No. 681/72/2002-CX dated 12.12.2002, the cost of advertisement incurred by the dealers is includible in the transaction value, SCNs were issued to the assessee proposing to recover differential duty on the revised assessable value with interest and penalty - On adjudication, the Commissioner dropped the proceedings - Hence the present appeal.
Held: Considering the letter of intent, there are no clauses therein from which it can be inferred that any enforceable right is provided to the assessee in relation to advertisement and sales promotion by the dealers - Besides, the Apex Court in Commissioner Vs. TVS Motors Company Ltd observed in relation to pre-delivery inspection charges and after sales service charges that these were not to be included in the transaction value of the goods - Moreover the High Court of Bombay in Tata Motors Ltd. Vs. Union of India also held that such charges are not to be included in the assessable value - Similarly, the Tribunal in Ford India Pvt. Ltd. Vs. Commissioner of Central Excise, Chennai-III held that the cost of advertisement incurred by the dealers cannot be added to the transaction value - The Revenue did not put forth any judgment to the contrary - Hence the Revenue's appeal is devoid of merits: CESTAT
- Revenue's appeal dismissed: MUMBAI CESTAT
CUSTOMS
2020-TIOL-361-CESTAT-ALL
Zerogravity Aesthetics Llp Vs CC
Cus - The assessee filed self-assessed BoE on import, declaring the goods as Beauty and Make up preparations and classified the same under CTH 3304 9990 - The BoE was filed at ICD Dadri - The Revenue opined that ICD, Dadri was not the port authorized for importing the goods in question - Hence the goods were confiscated and penalty equivalent to their value, was imposed - Pursuant to the High Court's intervention, the adjudicating authority permitted redemption of the goods on payment of fine - Hence the present appeal contesting such findings.
Held: The Revenue nowhere established that the subject goods were banned for import into India - It need not be examined as to whether the goods were authorized to be cleared at ICD Dadri because the assessee opted to trans-ship the goods at its own cost to ICD Tughlakabad or ICD Patparganj - The Customs Act provided for trans-shipment of imported goods to the ports where import of such goods were allowed - Hence the goods imported by the assessee were not banned goods & so their confiscation merits being quashed - Consequently, no question of redemption fine or penalty arises - Hence these too are quashed - The Revenue is directed to permit trans-shipment of the goods from ICD Dadri to other ICD suitable to the Customs Department, the cost for which would be borne by the assessee - Thereafter, the Customs authorities shall examine the goods for clearance to home consumption: CESTAT
- Assessee's appeal allowed: ALLAHABAD CESTAT
2020-TIOL-360-CESTAT-ALL
CC Vs Akash Trading
Cus - Commissioner (Appeals) set aside the confiscation of the betel nuts on the ground that there is nothing on record to show that the same were not purchased from the local market but were of foreign origin - Support was also drawn from the reply received to an RTI query wherein the Director of the Arecanut Research & Development Foundation, Mangalore has informed that it is not possible to determine the place of origin of betel nuts through a test in the lab - Commissioner(A) also observed that respondents have provided the supplier's name through which the goods were purchased and as betel nuts are non-notified items u/s 123 of the Customs Act, the onus is on the Department to prove that the same are smuggled - Revenue is in appeal before CESTAT.
Held: Identical appeals of the Revenue were considered by the Tribunal and it was held that identical report of M/s Arecanut Research & Development Foundation, Mangalore was not applicable; that in the absence of any evidence of smuggling of goods, their confiscation cannot be appreciated - Revenue appeal dismissed: CESTAT [para 2, 3]
- Appeal dismissed: ALLAHABAD CESTAT
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