| SERVICE TAX
2020-TIOL-785-CESTAT-MAD
RR Donnelley India Outsource Pvt Ltd Vs Commissioner of GST & CE
ST - The assessee is engaged in providing BPO services - They were issued SCN alleging wrong availment of cenvat credit on Membership of Club or Association service and Convention services - As regard to club or association services, assessee has taken membership in NASSCOM and paid charges for such membership which is actually expenses incurred by the company for being a member in such associations - As the membership helps the company to be updated with regard to market trends and also help them in augmenting their business, it cannot be said that the membership acquired by the company is for the personal use of the employees - In the case of BNY Mellon Technology Private Ltd. 2019-TIOL-3278-CESTAT-MAD , the Tribunal has considered the very same issue and held the same in favour of the assessee - The disallowance of credit on the said service is unjustified and same is set aside - As regards to the credit availed on convention services, on perusal of the invoices, it is seen that the event that was conducted for a training programme for designing and installing automatic sprinkler systems, is not for personal consumption of employees or food or beverages consumed by them - It is for conduct of event of training - The said service cannot be said to be an activity involving personal use or consumption of the employees - For this reason, the event management service cannot fall under Outdoor Catering Service and thus will not stand excluded from the definition of 'input services' - The disallowance of credit on the said service is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2020-TIOL-784-CESTAT-MAD
Zamil Steel Engineering India Pvt Ltd Vs Commissioner of CGST & CE
ST - Assessee is registered with service tax department under Information Technology Software Services and were also engaged in business of providing Consulting Engineering Service - They are aggrieved by the rejection of refund for the reason that unutilized cenvat credit has been carried forward to TRAN-1 GST - It is brought out from the facts that though the credit was availed prior to introduction of GST the refund claim was filed by them only on 22.03.2018 - The requirement to debit the refund amount as under para 2 (h) of the notification can be applied only when the assessee is required to file ST-3 returns - After introduction of GST, it is not possible for the assessee to file ST-3 returns - It is not required for the appellant to deduct the amount in the ST-3 returns as and when credit is availed - Only if they intend to file refund claim they are required to debit the same - Therefore the contention of revenue that assessee ought to have debited the amount during the existence of Finance Act, 1994 itself cannot have substance - Said issue is covered by the decision of Tribunal in the case of Global Analytical India Pvt. Ltd. 2019-TIOL-3534-CESTAT-MAD - The impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
CENTRAL EXCISE
2020-TIOL-783-CESTAT-AHM
Tarun Santra Vs CCE & ST
CX - The appeal has been filed by KEC International Ltd. against denial of Cenvat Credit and by Shri Tarun Santra against imposition of penalty - The issue involved is liability of CENVAT credit on Garden maintenance and housekeeping within the factory premises - The issue regarding admissibility of CENVAT Credit in respect of garden maintenance is squarely covered by decision of Tribunal in case of Nhava Sheva Intl. Container Terminal (P.) Ltd. 2017-TIOL-1263-CESTAT-MUM - The impugned order on this ground is set aside - As far as admissibility of CENVAT credit on house-keeping is concerned, it is noticed that the consent obtained from the Pollution Control Committee by assessee is subject to the condition that they shall maintain good housekeeping in the factory premises - Thus, maintenance of good housekeeping is requirement to run the factory - Hence, the credit on same count cannot be denied - Penalty is set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2020-TIOL-782-CESTAT-AHM
Vikrant Extrusions Vs CCE & ST
CX - The assessee is in appeal against confirmation of demand of reversal of Cenvat Credit, interest and imposition of penalty - The present proceedings are in respect of SCN issued on 07.03.2016 demanding reversal of entire Rs.36,51,570 on the ground that the assessee could not have taken re-credit and that they are not entitled to avail credit on capital goods used for carrying out Job work under Notfn 214/86 - The basic issue regarding admissibility of capital goods used for Job work under said Notfn 214/86 has been decided by Tribunal in assessee's own case in respect of part of the current demand vide Order dated 06.06.2019 - In the present proceedings, the first objection raised is regarding Suo-motu re-credit taken by assessee after first reversing the said amount - Issue stands covered by decision of High Court of Madras in case of ICMC Corporation Ltd. 2014-TIOL-121-HC-MAD-CX - It is obvious that there is no need of filing of refund claim and in such circumstances, assessee could avail the Cenvat Credit which was voluntarily reversed - The objection raised by revenue does not sustain, as regard the balance credit of Rs. 18,25,784: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
CUSTOMS
2020-TIOL-970-HC-AHM-CUS
Lilaram Arjandas Asudani Vs UoI
Cus - A SCN dated 05.05.2006 came to be issued by the Commissioner, Customs alleging that the import of parts of mobile phones made in the past were, actually, imports of mobile phones in Semi Knocked Down / Completely Knocked Down units and that the assessable value of such imported goods had to be considered on the basis of the value of a complete mobile phone; and on that basis, differential customs duty was proposed to be demanded by the petitioner and other importers for 122 consignments imported between May 2002 to December 2002 - Commissioner of Customs, Ahmedabad, thereafter, passed an order dated 20.12.2006 raising a demand for the differential customs duty for the goods contained in 258 parcels, severally and jointly from the petitioner and others, along with interest and penalty - Vide order dated 20.01.2017, the CESTAT held that there was breach of the principles of natural justice as the petitioner was not provided with the relevant documents so that he could get an opportunity to defend himself and accordingly, remanded the matter to the Commissioner (Customs), Ahmedabad for adjudication afresh within a period of four months from the date of receipt of the order, after giving due opportunity of hearing and submission of evidence to the petitioner - It is the case of the petitioner that pursuant to the order of remand passed by the CESTAT, on 20.01.2017 the petitioner was given a personal hearing by the respondent No.2 on 20.01.2007, however, no documents as directed by the CESTAT were supplied to the petitioner - On 15.11.2018 the Superintendent of Customs from the Office of the respondent No.2 indicated that the petitioner should file final submissions without any delay as all the available documents had been supplied by their Office and the case would be taken up for final adjudication - Petitioner, inter alia, seeks for issuance of a writ of prohibition or any other appropriate writ, direction or order, completely and permanently prohibiting the Principal Commissioner / Commissioner of Customs, Ahmedabad (the 2nd Respondent herein) from conducting adjudication of show cause notice - in the affidavit-in-reply filed on behalf of respondent No.2, it has been admitted that all documents, as were directed by the CESTAT in its order dated 20.01.2017, have not been supplied to the petitioner.
Held: In the opinion of this court, the stand taken by the respondents is in clear violation of the directions issued by the CESTAT - The court notices that the order dated 20.01.2017 passed by the CESTAT has not been complied with by the respondents - Instead of approaching the CESTAT seeking modification of its order dated 20.01.2017, the respondent No.2 has proceeded with the assessment proceedings in utter disregard of the directions issued by the CESTAT - In the opinion of the Bench, if the respondent No.2 was of the view that it would not be possible for it to comply with the directions issued by the CESTAT in the order dated 20.01.2017, then it ought to have taken recourse to any other remedy available under the law - The respondent authority could not assume the role of a Judge in its own cause - It is necessary that once any direction is issued by any Appellate Authority, the same is scrupulously followed by the authority against whom the directions are issued - It is not only about the grant of an opportunity of being heard to the party concerned, but of complying with the principles of natural justice, which includes the furnishing of relevant documents also, which is vital for the purpose of adjudication - Considering the facts of the case, this court is of the opinion that the communication dated 15.11.2018 addressed to the advocate for the petitioner by the Office of the respondent No.2 stating that in case of non furnishing of final submissions by the petitioner before 30.11.2018, the case shall be proceeded for final adjudication, deserves indulgence - Hence, the communication dated 15.11.2018 issued by the Office of the respondent No.2 deserves to be quashed and set aside and appropriate directions are required to be issued to the respondent No.2 - Petition is partly allowed - The respondent No.2 authority is directed to furnish the documents, as mandated by the CESTAT in its order dated 20.01.2017 within a period of Four Weeks - In the event of its inability to furnish the said documents to the petitioner, the respondent No.2 authority shall approach the CESTAT seeking necessary modification of its order dated 20.01.2017 - Till the final outcome of the application that may be made by the respondent No.2 before the CESTAT seeking modification of its earlier order dated 20.01.2017, the respondent No.2 authority is restrained from proceeding further with the adjudication of the showcause notice dated 05.05.2006 - It is made clear that this court has not entered into the merits of the case: High Court [para 12, 13, 14, 15, 17, 18]
- Petition partly allowed: GUJARAT HIGH COURT
2020-TIOL-968-HC-AHM-CUS
PR CC Vs Nopaji Lakhmaji Charitable Trust
Cus - Whether in the facts and circumstances of the present case, an appeal under Section 129A(3) was maintainable before the CESTAT, challenging a Compounding Order passed by the Compounding Authority?
Held: First question of law as proposed by the Revenue is concerned, the same stands answered vide judgment and order rendered by a Co-ordinate Bench of this Court in the case of Commissioner of Central Excise Vs. Girish B. Mishra - 2013-TIOL-1290-HC-AHM-CX. - It is held therein that the Commissioner's order does decide the question of compoundability of an offence of the applicant concerned and would, therefore, satisfy the description of ‘any order or decision' passed by him under this Act - It is clarified that although the decision of the Coordinate Bench in the case of Girish B. Mishra is in connection with the provisions of the Central Excise Act, yet the provisions of Customs are analogous to the provisions of the Act, 1944, therefore, the principle of law as explained in Girish B. Mishra [Supra] is applicable in the present case: High Court [para 3, 4]
Cus - Whether in the facts and circumstances of the present case, the CESTAT was right in interpreting the Order in Original dated 31.03.2005 and coming to a conclusion that there was no demand of redemption fine?
Held: Tribunal in so-many words has observed that there was no clear proposal in the show-cause notice with regard to imposition of the redemption fine and also in the order-in-original - The tribunal has observed that there is no crystallized demand of redemption fine against each of the noticee - In such circumstances, none of the questions of law as proposed by the Revenue could be termed as substantial questions of law - Tax appeal dismissed: High Court [para 7 to 9]
- Appeal dismissed: GUJARAT HIGH COURT
2020-TIOL-792-CESTAT-BANG Yes Pee Sons Enterprise Vs CC
Cus - The appeal is directed against impugned order whereby the Commissioner has confiscated the goods under Section 111(o) of Customs Act, 1962 but allowed redemption of the same on payment of fine and also imposed penalty on the assessee under Section 112(a) of Customs Act, 1962 - Admittedly, the assessee has violated the conditions of notfn 97/2004 - Further, the imported goods were not installed within 6 months and no application for extension of time was submitted to the Customs as per the condition of the notification - The Commissioner (A) after considering all the submissions of assessee has come to the conclusion that they had violated the condition of the Notfn and consequently has imposed redemption fine and penalty on the assessee under Section 112(a) of the Customs Act, 1962 - No infirmity found in the imposition of redemption fine and penalty since the assessee has not complied with the conditions of the said notfn - Hence, the impugned order is upheld: CESTAT
- Appeal dismissed : BANGALORE CESTAT 2020-TIOL-781-CESTAT-ALL
Industrial Exim Pvt Ltd Vs CC
Cus - For enhancing the value of the imported goods, Revenue is under an obligation to first reject the transaction value by production of evidences to the contrary - The said issue was considered by the Tribunal in the case of Sanjivani Non-Ferrous Trading Pvt. Ltd. - 2017-TIOL-3396-CESTAT-ALL which stands upheld by the Supreme Court when the appeal filed by the Commissioner was rejected - Supreme Court in the case of Sanjivani Non-Ferrous Trading Pvt. Ltd. in Civil Appeal No.18300-18305 of 2017 - 2018-TIOL-447-SC-CUS held that unless the value declared by the appellant is not rejected by the Revenue, the same cannot be enhanced in terms of the Section 14 of the Customs Act, 1962 - There is no evidence produced by the Revenue rejecting the transaction value - Otherwise also, NIDB data has been held as non-reliable for the purpose of enhancement of value of imported goods, by various decisions - enhancement of the value of the goods is unsustainable – Impugned Order is accordingly set aside and all the appeals are allowed with consequential relief: CESTAT [para 3, 4]
- Appeals allowed: ALLAHABAD CESTAT |
