|
SERVICE TAX
2020-TIOL-508-CESTAT-BANG
Lotus Lab Pvt Ltd Vs CCT
ST - The assessee conducts clinical and pharmaceutical research on new drugs through testing and analysis of their effect on human beings/volunteers with the resultant data being evaluated by experts situated abroad, who analyze the data and arrive at certain outcome of the test results - During the relevant period, SCN was issued to the assessee proposing to deny cenvat credit on Technical Testing & Analysis service rendered by the assessee to its client, and also denying credit on catering service availed for the relevant period and on service tax paid in respect of rent paid on premises acquired by it - The SCN conceded that though the service was delivered outside India, used outside India and payment for the same was rendered in convertible foreign exchange, the same would not qualify as export of service, merely because the testing was done on volunteers in India - The Revenue opined that the Export of Service Rules 2005 did not envisage any service being performed partly outside India - The credit in respect of catering service was denied on grounds that it had no co-relation with the output service of Technical Testing & Analysis service - Similarly, credit was denied in respect of the rent paid on the premises, on grounds that the building was not used for providing the output service - The SCN invoked extended period of limitation and the demand was subsequently confirmed - Hence the present appeal.
Held: Admittedy, the services were performed from India - Further, the principal or service recipient is located outside India - Hence the technical testing and analysis service has been delivered by the assessee outside India and has been used by the service provider outside India - The Revenue's contention that merely because the clinical tests are performed on people in India, the services would be said to have been performed in India, is invalid - Besides, the assessee satisfied the other conditions such as receiving service charges in convertible foreign exchange - Moreover, the issue of eligibility for cenvat credit on catering service is settled in favor of the assessee, by the decision in the case of Resil Chemicals Pvt. Ltd. Vs.CCE Bangalore-I - Regarding the issue of service tax on input service of renting, admittedly, such premises were taken for business purposes - In the relevant period for which the rent had been paid, the premises were undergoing renovation and repair so as to make them more suitable for the assessee's use - The same is deemed to be be used for business purpose - Hence denial of credit on any of these grounds is not sustainable: CESTAT
- Assessee's appeal allowed: BANGALORE CESTAT
CENTRAL EXCISE
2020-TIOL-507-CESTAT-DEL
Ram Wires Vs CCE & ST
CX - (1) Excise Appeal No.51298 of 2018 - Vide impugned order, the Principal Commissioner has confirmed the central excise duty against the appellant [M/s. Shri Ram Wires] along with interest and penalty on the ground of alleged suppression of production and clearance thereof without payment of duty.
Held: The entire case of the department is based on the documents recovered i.e. handwritten pencil ledgers at the premises of M/s. Deepak Industries - since, the said ledgers were not legible, the details were prepared on computer and the said computerised chart has been relied upon in the instant case to come to a finding that the appellant was one of the buyers of M/s.Deepak Industries - the department is also relying upon the statements of Shri Ravindra Singh, Proprietor of M/s Deepak Industries and Shri Ajay Kumar Singh, Service-Senior Assistant of M/s.Prakash Industries Ltd., wherein they have explained the handwritten pencil ledgers - the appellant requested for cross-examination of these witnesses, however, the department was not able to produce these witnesses - it is well settled law that if the department is not able to produce their witness for cross- examination, then the said statements of those witnesses cannot be relied upon as held by High Court of Madras in the case of Karan Traders - 2016-TIOL-1411-HC-MAD-CX and Arsh Castings Pvt. Ltd. [1996 (81) ELT 276 (Tribunal) ] - on bare perusal of the statement, it is clear that there is no admission on the part of the appellant that they have removed goods clandestinely, however, it has been categorically stated that the goods have been purchased and cleared on bills - it is further found that the department has also relied upon the documents recovered from the premises of the appellant, however, it is found that there is neither any signature of the appellant or panchas or even officers of DGCEI, and the said documents have never been confronted to the proprietor of the appellant - this clearly raises a suspicion on the genuineness of the said documents, especially, when there is no other cogent and positive evidence adduced by the department in the nature of purchase of raw material, use of electricity, sale of final products, payment, realization of sale proceeds, mode and flow back of funds as held by the High Court of Allahabad in the case of Continental Cement Company - 2014-TIOL-1527-HC-ALL-CX and Balaji Perfumes [2017 (358) ELT 87 (Del.) ] - there is no iota of evidence on records as per law - in the facts of the present case, the allegations are not sustainable - in view of the above findings and observation as well as legal position, the demand, interest and penalty is not sustainable in the eyes of law - therefore, the impugned order is set aside and the appeal is allowed: CESTAT [para 5, 6]
(2) Excise Appeal No. 51301 of 2018 - M/s. Chaurasia Abrasive and Steels Pvt. Limited - the facts of this appeal are similar to the appeal of M/s. Shri Ram Wires - SCN was issued for confirmation and recovery of duty on account of clandestine manufacture and removal of goods - proposed demand was confirmed in part mainly based on the third party evidences collected from M/s. Deepak Industries and statement of Shri Ajay Singh and Shri Ravinder Singh and also the retracted statement of Director Shri Subodh Chaurasia - there is no corroborative evidence of receipt of raw materials, transportation of raw materials payment for the same, manufacturing capacity, clearance of the alleged finished goods nor any details of the buyers of such alleged clandestine clearance nor any flow back of money etc. having brought on record - in view of the ruling of Allahabad High Court in Continental Cement Company - 2014-TIOL-1527-HC-ALL-CX, these appeals have to be allowed with appropriate relief: CESTAT [para 7, 8]
(3) Excise Appeal Nos. 51743 - 51744 of 2017 - Shri Ram Chandra Jaiswal, M/s Maa Durga Wire - these appeals are by the manufacturer M/s. Maa Durga Wire and Shri Ram Chandra Jaiswal - the facts are more or less similar to the facts of M/s. Shri Ram Wires - the adjudicating authority confirmed demand of Rs.1.14 crore for manufacturing and clearing of 1843.060 MT of binding wire without payment of duty and further demand of Rs.53.25 lakhs for binding wire manufactured and cleared on job work basis - in view of the total quantum of duty confirmed, benefit of SSI exemption was denied - so far the evidences recovered at the end of M/s. Deepak Industries is concerned and they have cleared goods to these appellants without payment of duty, this Tribunal in the appeal of M/s. Deepak Industries - 2019-TIOL-857-CESTAT-DEL have held that these evidences are not reliable and hence it was held that M/s. Deepak Industries has not cleared the goods as alleged without payment of duty - further, the statements recorded under section 14 of the Act cannot be held to be voluntary as the same has been retracted - further, in absence of corroborative evidence, the retracted statements are not reliable as held by Gujarat High Court in the case of Suntrek Aluminium P. Limited [2013 (288) ELT 500 (Guj.)] - in view of the above finding and taking note of the final order of this Tribunal in M/s. Deepak Industries and Others, the demand and penalty against these appellants is not sustainable - therefore, the impugned order is set aside and the appeals are allowed: CESTAT [para 12, 13, 14]
- Appeals allowed: DELHI CESTAT
2020-TIOL-506-CESTAT-AHM
RR Kabel Ltd Vs CCE & ST
CX - The issue involved is that whether the appellant is entitled for CENVAT credit in respect of GTA service used for removal of goods wherein the sale is on FOR basis.
Held: As per the facts, the sale is on FOR basis, freight was borne by the appellant for clearance of the goods and the same is included in the assessable value on which excise duty is discharged - under the same set of facts, this Tribunal, in the case of Ultratech Cement - 2019-TIOL-1420-CESTAT-AHM, after considering the Supreme Court judgment in the case of Ultratech Cement - 2018-TIOL-163-SC-CX, allowed the credit - from the facts of the above judgment of the Tribunal, it can be seen that in the present appeals also, the same set of facts are existing - accordingly, following the ratio of the above decision, the impugned orders are set aside and the appeals allowed: CESTAT [para 4, 5]
- Appeals allowed: AHMEDABAD CESTAT
CUSTOMS
2020-TIOL-505-CESTAT-ALL
CC Vs Capri International
Cus - The issue at hand in the present application is in relation to refund of SAD claimed under Notfn No 102/2007-Cus - The Revenue's counsel claimed that its appeal had been dismissed by considering the National Litigation Policy, which did not apply to cases of refund for the period prior to 04.04.2018 and period after 25.05.2018 - Considering that the appeal was filed on 31.10.2018, the order passed by the Tribunal merits being recalled - The Revenue also contests O-i-A allowing the refund claimed by the assessee - It is seen that the assessee submitted a certificate issued by the statutory auditor to the effect that the burden of 4% SED was not passed on by it - These satisfy the test of unjust enrichment as provided for by Circular No.6/2008-Cus dated 28.04.2008 and Circular No.18/2010-Cus dated 08.07.2010 - Hence the O-i-A allowing the refund claim, merits being upheld - The Revenue's appeal is dismissed while the ROM application is allowed: CESTAT
- Revenue's appeal dismissed: ALLAHABAD CESTAT
|
|
