| SERVICE TAX
2020-TIOL-637-CESTAT-DEL
Post Master Vs CCGST & CE
ST - Appellant is a Post Master, Head Post-Office, Bikaner (Rajasthan) and is required to pay service tax on courier services (speed post services) - it was observed that the appellant has discharged their tax liability under the category of "Courier Agency Service" [for the period April 14 to September 14 and October 14 to March 15] partly through cenvat credit (Rs. 1,02,799/-) and partly through book adjustment (Rs. 9,61,025/-) - Further, as per the instruction letter no. 137/24/2014-ST dated 21.04.2014, it was clarified that the facility for payment of service tax by way of book adjustment, to the Postal Department, has been withdrawn with effect from 01.04.2014 - Accordingly, the show cause proposed to demand the amount of Rs. 9,61,205/- along with the interest and further penalty was proposed under Section 76 - appellant in response to the SCN, brought on record a clarification issued by the Sr. Accounts Officer/ PA Miscellaneous Office of the Directorate of Accounts (Postal), Jaipur, whereby in letter dated 31.01.2017, it is clarified that the payment of service tax has been made which is the responsibility of DDO/HPO, DAP Jaipur; that the certificate issued by Sr. Accounts Officer of the Director of Accounts, Postal Department, Jaipur clarifies that the amount collected as service tax during the month Apr 2014 to Mar 2015 amounting Rs. 10,62,260.00/- on different postal services by Postmaster Bikaner HO has been classified and booked directly in the Major Head 0044 Service Tax and uploaded on month to month basis in the major head - Adjudicating authority confirmed the demand with interest and penalty was imposed of Rs. 500/- under Section 76 - Commissioner(A) dismissed the appeal on the ground of limitation as the appeal was filed with a delay of ten months and 29 days and which is beyond the condonable period - appeal to CESTAT.
Held: Claim of the appellant as regards payment of tax by way of book adjustment has not been found to be untrue and appellant has given sufficient proof to the Service Tax Department as regards payment of service tax - demand of service tax for the second time is against the scheme of the Service Tax Act read with Article 265 of the Constitution of India - impugned order is set aside and appeal is allowed with consequential relief: CESTAT [para 8, 11]
- Appeal allowed: DELHI CESTAT
2020-TIOL-636-CESTAT-DEL
Prakash Builders Vs CCE, C & ST
ST - Principal Commissioner has confirmed the demand of service tax with regard to the work executed for the MP Housing and Infrastructure Development Board [Construction of Duplex] under "construction of complex" services as well as demand on GTA service - appeal to CESTAT.
Held: The definition of a "residential complex" leaves no manner of doubt that it would be a complex comprising of a building or buildings, having more than twelve residential units - Independent buildings having twelve or less than twelve residential units would not be covered by the definition of "residential complex" - It is not possible to accept the reasoning given by the Principal Commissioner for the simple reason that in the present case the appellant has not constructed a residential complex having more than 12 residential units - It has constructed independent buildings having one residential unit - levy of service tax on the appellant under 'construction of complex service' is not justified and, cannot be sustained: CESTAT [para 15, 21, 23]
+ Insofar as demand on GTA service is concerned, appellant may submit the necessary documents before the Principal Commissioner to substantiate that the payment made was for local cartage and not towards GTA Services - matter remanded to this extent: CESTAT [para 25]
- Appeal disposed of: DELHI CESTAT
CENTRAL EXCISE
2020-TIOL-634-CESTAT-CHD
Met Trade India Ltd Vs CCE
CX - Appeals filed along with applications for condonation of delay for more than seven years - against the stay order passed by the Commissioner(A), the appellant had filed appeals before the High Court in the year 2011 - on the ground that no stay was granted by the High Court, the Commissioner(A) dismissed their appeal in the year 2011 - the Writ Petition was finally dismissed by the High Court on 07.05.2018 on the ground of being infructuous - after dismissal of the writ petition, the appellant has filed appeals before CESTAT with a request for condonation of the delay - Appellant submits that the junior counsel did not bring to the notice of the High Court the order of the Commissioner(A), which is being impugned, resulting in the High Court not taking cognizance of the same; that due to the fault on the part of the Advocate, the appellant should not suffer as held by the apex court in the case of N. Balakrishnan vs. M. Krishnamurthy -2002-TIOL-737-SC-LMT .
Held: As no appeal was pending against the impugned order, therefore, Bench is unable to entertain the applications for condonation of delay filed by the appellant which are highly time barred, therefore, the applications for condonation of delay are dismissed - appeals are also dismissed - appellant are liberty to take appropriate remedy before the appropriate forum: CESTAT [para 6, 7]
- Appeals dismissed: CHANDIGARH CESTAT
2020-TIOL-633-CESTAT-ALL
CCT, GST & CE Vs LH Sugar Factories Ltd
CX - Short issue required to be decided is as to whether the explanations entered in Rule 6(3) w.e.f. 01st March, 2015 would have the effect of the assessee being under a legal obligation to pay duty on the non-excisable goods bagasse and press mud.
Held: Bench notes that the explanations were considered by the Tribunal in the case of M/s. Simbhaoli Sugar Ltd. - 2018-TIOL-2808-CESTAT-ALL and wherein it is observed that inasmuch as according to Supreme Court's decision in the case of DSCL Sugar Ltd . - 2015-TIOL-240-SC-CX, bagasse has been held to be an agricultural waste or residue, there could be no manufacturing activity - The press mud has also been held to be a waste and not a manufactured product and, therefore, the amendment made in the provisions of Rule 6 would not have any effect to the facts and circumstances of the present case - no merits in the Revenue's appeal, hence rejected: CESTAT [para 5, 6]
- Appeal rejected: ALLAHABAD CESTAT
CUSTOMS
2020-TIOL-635-CESTAT-ALL
Manoj Kumar Soni Vs CC
Cus - Appellant's request for cross-examination of Panch witnesses as also the officers is prima facie a genuine request so as to complete the adjudication proceedings judiciously - Bench deems it fit to direct the Adjudicating Authority to ensure the appearance of Panch witnesses during the next date of hearing to be fixed by him - In case, after the examination of Panch witnesses, the appellant still feels the need of cross-examining DRI officers, he is at liberty to make a request to that effect to the Adjudicating Authority, who would deal with the same in a judicious manner - Appeal disposed of: CESTAT [para 3]
- Appeal disposed of: ALLAHABAD CESTAT
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