ST - The assessee is a statutory body under the Agriculture Produce Market Act, 1961 - It collects fee on the sale and purchase of agricultural produce within its specified area - It also lets out shops and godowns to traders, brokers and consignment agent within the agriculture produce market set up by it - SCN was issued invoking extended period of limitation, in respect of service tax payable on the receipt of rent under RIPS - Further, the assessee neither collected nor paid such tax - On adjudication, the duty demand was sustained and penalty was imposed - Before the Commr.(A), the adjudicated amount was deposited, albeit under protest - The Commr.(A) settled the issue in favor of the assessee on grounds that it was eligible for threshold exemption - The assessee claimed refund of the duty paid, but the same was rejected on grounds of it being barred by limitation - Hence the present appeal.

Held - In respect of the amount pre-deposited by the assessee u/s 35F of the CEA 1944, it is clear that as per Section 35FF, an assessee is entitled to refund by way of consequential relief on being successful in appeal - Where any amount deposited by the assessee u/s 35f is to be refunded pursuant to order of Commr.(A), the same is payable to the assessee with interest at a rate fixed by the Govt - The assessee is thus entitled to refund on being successful - Further Section 35F r/w Section 35FF does not provide for any refund application to be made by the assessee after being successful in appeal - Hence limitation prescribed u/s 11B is inapplicable to refund claim u/s 35FF - Hence the subject order is quashed and the appeal is allowed - The assessee is entitled to refund of both amounts with interest from date of deposit till date of refund: CESTAT

- Assessee's appeal allowed: DELHI CESTAT

ST - The assessee is engaged in manufacture and trading of wooden cupboards/storage units and was of the view that since they provided composite works contacts orders, they are not liable to pay service tax on these activities - SCN was issued for the period from 2005 to 1.6.2007 proposing demand of service tax under category of Commercial or Industrial Construction Service - Works executed by assessee is composite in nature involving both supply of goods as well as rendering of service - The department has agreed that the appellant's activity is covered by Works Contract Service for the period subsequent to 1.6.2007 - The Supreme Court in case of Larsen & Toubro Ltd. 2015-TIOL-187-SC-ST has held that activities which gets covered under Works Contracts Service w.e.f. 1.6.2007 cannot be classified under any other service for the period prior to 1.6.2007 - Ratio of the said judgment is squarely applicable in the present case - Thus, impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

CX - Hot Re-rolling Steel Mills Annual Capacity Determination Rules 1997 - s.3A of CEA, 1944 - Rule 96ZP of CER, 1944 - During the period 1.4.1998 to 31.3.2000, the assessee failed to pay duty liability for the said period and show cause notice was issued to them demanding the duty from April 1998 to March 1999 and for the period April 1999 to March 2000 along with interest and for imposing penalty - demand confirmed but without imposition of any interest/penalty - in appeal, matter was remanded by Tribunal and in denovo proceedings the adjudicating authority set aside the demand for the period from 18.6.1998 to 31.3.2000 - However, he confirmed the demand along with interest and imposed penalty for the period 1.4.1998 to 17.6.1998 - appeal to CESTAT.

Held: It is evident that there was stoppage of production in the factory prior to 18.6.1998 even though the intimation of stoppage of production was given only on 18.06.1998 - The Commissioner has also observed that the proceedings could have been avoided if the appellant had intimated the department prior to 1.4.1998 - on similar set of facts in Kalai Magal Alloys Steel Pvt. Ltd. - 2014-TIOL-191-HC-MAD-CX, High Court has held that facts if not taken into consideration would lead to miscarriage of justice - Taking note of the fact that there is stoppage of production during the period 1.4.1998 to 17.6.1998, Bench is of the considered view that demand of duty, interest or penalty for the disputed period cannot sustain and the same is required to be set aside - appeal allowed with consequential relief: CESTAT [para 4]

- Appeal allowed: CHENNAI CESTAT

CX - Allegation of clandestine manufacture and removal without payment of duty - There is no computer on which the data stored in pen drive was produced - There is also no person who was identified and examined who has prepared such data - In such case the pen drive data cannot be considered as admissible evidence Moreover, pen drive data cannot be relied upon without following the requirements of Section 36B of the Central Excise Act, 1944, therefore, the demands based upon pen drive cannot be confirmed against M/s SSPL: CESTAT [para 12]

CX - Appellant during the adjudication proceedings had sought cross examination of persons and officers whose statements were relied upon in show cause notice u/s 9D of the CEA, 1944, however the same was denied to them - When the demand against M/s SSPL was based upon pen drive and papers seized from residence of third party Shri Bhavesh Shah as well as statements of third party i.e traders/brokers, in that case it was imperative for the adjudicating authority to allow cross examination of such persons to the Appellant - Since no opportunity to cross examine such persons whose statements has been relied upon was provided to the assessee, the statements given by these persons cannot be considered to uphold the charges of clandestine removal against Appellant Unit: CESTAT [para 12]

CX - Statements of few traders/broker were recorded but none of them has provided even a single name of customer or actual buyer - No finished goods alleged to be clandestinely cleared was seized from any alleged buyer - No transport Bilty or octroi receipts/records has been brought on record to show that the goods were consigned from Chhatral to Mumbai Therefore, there is no primary evidence to allege any clandestine clearance - The statements and third party records which are secondary evidence cannot be relied upon to allege clandestine clearance as the same has no independent evidentiary value impugned order set aside and appeals allowed: CESTAT [para 13, 16, 17]

- Appeals allowed: AHMEDABAD CESTAT

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