| SERVICE TAX
2020-TIOL-824-CESTAT-DEL
Man Trucks India Pvt Ltd Vs CCE, C & ST
ST - The assessee is engaged in manufacturing heavy commercial vehicles falling under Chapter 87 of the Schedule to the CETA 1985 - The assessee entered into an agreement with M/s Man Trucks & Bus AG, Germany MAN Germany for supply of Heavy Commercial Vehicles bearing the "MAN" trademark for sale outside India - The transaction involved sale of heavy commercial vehicles by the Appellant to MAN Germany and thereafter by MAN Germany to its buyers - The assessee relied on the agreement to claim that it would not be responsible for after sale service in relation to the vehicles supplied by it to MAN Germany - Since the after sales service is to be provided by MAN Germany, the assessee extended a price reduction of 500 Euros to MAN Germany on sale of each heavy commercial vehicle sold - An SCN was issued to the assessee, proposing duty demand on the discounts allowed by the assessee for the relevant period - The demand had been raised under reverse charge and on account of being a declared service for agreeing to refrain from providing warranty services - On adjudication, the demands were partly dropped - Hence the present appeal.
Held - The findings in the O-i-O are not in conformity with the terms of the agreement between the assessee and MAN Germany - The assessee's role is limited to sale of trucks and spare parts thereof - The agreement clearly provides that the assessee would not be responsible for rendering any after-sale services - That the agreement provides that the assessee will provide a discount in respect of any truck sold to MAN Germany, does not entail that MAN Germany is rendering after sales service on behalf of the assessee - Hence it cannot be said that MAN Germany provided after sales service on behalf of the assessee - The after sales service was agreed to be provided by MAN Germany on its own account - The discount offered by the assessee to MAN Germany is simply an adjustment in the price of the goods sold and is not provision of any service to be undertaken by MAN Germany on the assessee's behalf - Thus the service provided by MAN Germany would not classify as BAS - Statements taken from an employee of the assessee also shows it to be clearly stated that the discount offered to MAN Germany was because the assessee was not providing warranty and after sale service - It was also stated that after sale service would not be provided by the company and that it was open to MAN Germany to either provide or to not provide the service to the customers - Hence the demand cannot be sustained - Extended period of limitation cannot be invoked as well: CESTAT
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Assessee's appeal allowed:
DELHI
CESTAT
CENTRAL EXCISE
2020-TIOL-823-CESTAT-AHM
Asian Paints Ltd Vs CCE & ST
CX - The limited issue to be decided by this tribunal is that whether prior to amendment by Notfn 22/2009-CE(N.T.) in Rule 3(7) whether the Education Cess and Secondary and Higher Education Cess should be taken into account or computing the Cenvat Credit on the goods received from 100% EOU, though the amendment does not specify the retrospective effect - However, this tribunal dealing with the same issue in JAI CORP. LTD. 2014-TIOL-2518-CESTAT-AHM held that amended rule 3(7)(a) is applicable even before amendment also - In the case of ZABATEX TEXTILES INDIA PVT. LTD . 2016-TIOL-521-CESTAT-AHM, the issue of amendment of said Notfn 22/2009-CE(N.T.) has been specifically dealt with - It was held that the amendment made in Rule 3(7) in 2009 is only for the purpose of removal of doubts and not for any other reason - The assessee is entitled for Cenvat Credit in respect of Education Cess and Secondary and Higher Education Cess - However, the Adjudicating Authority has liberty to calculate correctly the amount of Cenvat Credit after taking into account said Cess as per the formula prescribed in the Rule: CESTAT
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Appeal allowed:
AHMEDABAD
CESTAT
2020-TIOL-822-CESTAT-DEL
Zeon Steel Pvt Ltd Vs CCE
CX - An investigation was conducted in premises of one M/s Pankaj Ispat Limited wherein the purchase register shows the name of assessee - Moreover, in their private records, some entries were found showing the procurement of raw material from the assessee without payment of duty - On the basis of investigation conducted in year 2012, a SCN was issued to assessee alleging that they had cleared the goods to M/s Pankaj Ispat Limited without issuance of invoice without payment of duty - The facts of the case are not disputed - Moreover, the SCN has been issued after a gap of almost four years - Proceedings against the assessee are not sustainable on the basis of third party evidence which is highly time barred - The impugned order is set aside: CESTAT
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Appeal allowed:
DELHI CESTAT
CUSTOMS
2020-TIOL-821-CESTAT-DEL
Mahle Engine Components India Pvt Ltd Vs CC
Cus - The assessee imported automobile parts and affixed the Retail Selling Price on the same - The goods were then cleared after payment of duty as per Section 3 of the CEA 1944 - During the relevant period, proceedings were initiated against the assessee for not discharing the additional duty on customs in accordance with proviso to Section 3(2) of the Customs Tariff Act 1975 - Duty demand was raised with the goods being confiscated u/s 111(m) of the Customs Act with option being given to redeem the same on payment of fine - Penalty u/s 112 of the Act was also imposed - Hence the present appeal.
Held - The issue at hand is if the goods subjectedto assessment u/s 4A of the CEA 1944 when manufactured in India, are mandatorily required to be subjected to additonal duties of Customs under the corresponding provisions of the CTA 1975, even if not sold as such after import - The assessee is admittedly barred from disposing of the goods without affixing the various particulars as prescribed under the Legal Metrology Act 2011 - In conjunction with inclusion in Third Schedule of CEA 1944, the goods cannot be denied assessment to additional duty of Customs by reference to declared, or assessed transaction value - The expression that is variably deployed in connection with such assessment is 'intended for retail sale' - This implies existence of such labelled price from the time of import or clearance from factory, till arrival at the point of retail sale - Such goods when routed through channels for industrial/institutional consumers are explicitly excluded from the statutory requirement under Legal Metrology Act, 2011 - Hence it appears that demonstrated intention of the importer/manufacturer by affixing of 'retail selling price' is the sole decider for adopting the alternative mechanism for assessment of additional duties of customs or duties of central excise, as the case may be - Hence, even if such goods are covered by notification for assessment to duties of central excise on 'retail selling price' to the extent that these are further subject to duties of central excise in circumstances of inclusion in the Third Schedule to CETA, 1985, the prescription of affixing of 'retail selling price' and assessment thereof does not arise - Therefore, the consequence is assessment on the basis of transaction value - Hence the subject order merits being set aside: CESTAT
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Appeal allowed:
DELHI
CESTAT |
