2020-TIOL-NEWS-067, Dated: Friday, March 20, 2020

ST - The present appeal was filed by the Revenue seeking to challenge dropping of service tax demand raised in respect of the assessee - The Tribunal relied upon the findings of the High Court of Gujarat in Sports Club of Gujarat and of the High Court of Jharkhand in Ranchi Club.

Held - It is seen that these decisions of the High Courts were affirmed by the Apex Court in State of West Bengal & Ors. vs. Calcutta Club Limited which held that companies and cooperative societies which are registered under the respective Acts, can certainly be said to be constituted under those Acts, were not included in the service tax net - In light of such findings, no question arises for consideration: HC

SVLDRS - The present writ petition assails duty demand raised vide statement issued under the SVLDRS, without taking into account an amount already deposited by the petitioner.

Held - Notice issued to the parties in this regard - Meanwhile, operation of the subject judgment is stayed subject to the petitioner depositing the balance amount mentioned in the declaration: HC

CX - The assessee-company is engaged in undertaking various projects for erection and installation of pre-fabricated buildings for which they manufactured various parts in its factory - Such parts & components of pre-engineered buildings were being cleared by them to the site as also to their other own units located at various premises - The other units were also using such parts for erection of pre-fabricated buildings - The assessee was registered for rendering such service, under the category of Commercial and Construction services and paid service tax - The issue at hand in the present appeal pertains to valuation of such parts and components - The Revenue opined that the parts and components were cleared to the assessee's own unit and to its own construction sites - Hence the value thereof was to be adopted as per Rule 8 of the Valuation Rules, which mandated adoption of assessable value @ 110% of the cost of the goods - Duty demand was raised, upon invoking extended period of limitation - On adjudication, the assessee submitted CA's certificate arriving at the value of the parts in terms of the provisions of CAS-4 - The Revenue considered the same and calculated differential duty payable by the assessee - Hence the present appeal.

Held - The assessee is not disputing that the valuation is to be done as per Rule 8 and as per the principles of CAS 4 - The only dispute pertains to the quantification of the demand - The Adjudicating authority relied on two reports given by the Range Superintendent which were not provided to the assessee, and whose comments on the same were never sought - Further, the principles enunciated in CAS-4 were to be applied strictly and the same refers to the cost of the goods and not to value reflected in the invoices - Besides, the bought out items purchased by the assessee & cleared as such will not attract provisions of Rule 8 - As the issue relates to correct quantification, which can be done only at the level of the adjudicating authority, the matter is remanded to the authority for fresh decision: CESTAT

CX - Micronutrient fertilizers/Plant Growth Regulators are correctly classifiable under Chapter Heading 3105 as held by the Tribunal in their own case vide Final Order Nos. A/30648-30650/2019 dated 18.06.2019: CESTAT [para 6.1]

CX - Bio-fertilizers/Bio-pesticides of microbial origin are correctly classifiable under Chapter Heading 3002 attracting nil rate of duty - allegation by Revenue that the same are classifiable under Chapter Headings 3105 and 3808 cannot sustain: CESTAT [para 6.2]

CX - Classification of Bio-fertilizers of plant and animal origin and Bio-pesticides of plant/vegetable origin - re-classification of these goods have been accepted by the assessee under Chapter Headings 3105 1000 and 3808 9910 respectively and, therefore, the duty demand on this count is sustained: CESTAT [para 8.1]

CX - Penalties - Since the issue is with respect to classification and interpretation of tariff headings, Bench is of the view that penalties may not be warranted where the demand is sustained - however, interest, since mandatory, is sustained - appeal partly allowed: CESTAT [para 8.2, 9]

CUSTOMS

2020-TIOL-482-CESTAT-MAD

Avantor Performance Materials India Ltd Vs CC

Cus - The assessee-company filed four claims for refund of SAD as per Notfn No 102/2007-Cus - Upon adjudication, the refund claims were rejected - On appeal, the Commr.(A) allowed the refund claims - The Revenue's appeals against the findings of the Commr.(A) was dismissed by the Tribunal - Hence the issue of refund attained finality - The original authority sanctioned the refund but did not allow refund on the delayed refund - The assessee approached the Commr.(A) contesting denial of interest on delayed payment of refund who allowed partial relief - Hence the present appeal by the assessee.

Held - The Commr.(A) allowed the interest on the refund in respect of one O-i-O - The appeals in respect of two other O-i-Os were rejected on ground of limitation - However, it is seen that there was a delay of three days in filing the appeals - As the assessee did not file an application for condonation of delay, the condonation of such delay was not considered - It is seen from the date of service of the orders, that all three of them had been received on the same day - The Department has been unable to establish that the orders were received by the assessee on an earlier date - When computed from such date, the appeal is well within time - Hence the order passed in respect of the two O-i-Os, rejecting the appeal against them, merits being set aside: CESTAT

- Assessee's appeal allowed: CHENNAI CESTAT

2020-TIOL-481-CESTAT-DEL

Super Eco Automotive Company LLP Vs CC

Cus - Condonation of Delay - The assessee sought condonation of delay in filing appeal, on grounds that its employee who was looking after the matter had left the company - Further delay was stated to have been caused by the unfortunate demise of a family member of the proprietor of the assessee-company.

Held - The subject order being challenged was acknowledged to have been received by the assessee within 10 days of it being passed - While the date on which such person left the job has been mentioned, the assessee is silent on the date of joining of the person who filled the vacancy - Regardless of the fact that the assessee's employee left the company, the assessee still had sufficient time to avoid the delay - Hence there is lack of due diligence on part of the assessee - Besides, the reason of demise of family member, too will not be of any avail to the assessee, since such incident occurred after the limitation period for filing appeal had already lapsed - Hence the delay in filing appeal cannot be condoned: CESTAT

- Assessee's application dismissed: DELHI CESTAT