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SERVICE TAX
2020-TIOL-969-CESTAT-KOL
Turret Industrial Security Pvt Ltd Vs CCE & ST
ST - The assessee is engaged in providing security services - Service tax on "security services" was first introduced on 16.10.1998 - The assessee obtained registration with authorities on 11.02.1999 belatedly, and started discharging service tax on own ascertainment basis - Based on an Audit, SCN was issued proposing demand of service tax alongwith interest u/s 75 and penalties u/s 76 and 78 - The Tribunal vide Final Order directed the adjudicating authority to compute the service tax liability by extending cum-tax benefit where the service tax amount has not been realised by assessee and also to decide the issue on limitation - The Commissioner in de-novo adjudication has reduced the service tax liability by extending cum-tax benefit on being satisfied that the tax amount has not been realised by assessee - Thus, it can be concluded that the impugned SCN was issued by solely placing reliance on the figures as appearing in the audited financial statements of assessee - Be that so, as it may, the assessee had duly informed the department vide their letters, which are on record and have not been disputed by Commissioner in his impugned order, that they were not depositing the tax amount in cases where the clients are not reimbursing the tax amount - In identical cases, where duty could not be paid by assessee which was well within the knowledge of department, this Tribunal has held that allegation of wilful suppression could not be levelled against the assessee - In any case, the very fact that the Commissioner on being satisfied that tax amount could not be recovered by assessee from its clients, he reduced the tax demand - Further, the very applicability of tax on security service being a new subject, the conduct of assessee could not be doubted - Thus, the Department cannot allege suppression on the part of assessee to justify invocation of extended period of limitation - With regard to further contention made by assessee that the SCN cannot be converted for raising demand for shorter period of limitation, when the extended period of limitation is found not to be invokable in absence of willful suppression or fraud, amendment was made vide the Finance Act, 2013 - The issue has already been settled by Supreme Court in Alcobex Metals 2003-TIOL-85-SC-CX - The impugned SCN could not be legally issued and therefore, the demand of service tax, interest and penalty cannot sustain: CESTAT
- Appeal allowed: KOLKATA CESTAT
2020-TIOL-968-CESTAT-KOL
IXIA Technologies Pvt Ltd Vs CST
ST - The assessee entered into an agreement with M/s Ixia USA in terms of which the assessee acted as exclusive representative of Foreign Company to solicit orders from customers in India for its products and to provide marketing support services to maximise the sales of such products in India for commission as agreed by parties in foreign currency - The assessee claimed exemption from service tax levy on consideration that the services rendered by them to Foreign Company constituted 'export of service' as per the Export of Services Rules, 2005 - The Commissioner while accepting the fact that the services had been used outside India and the commission was received in convertible foreign currency held that since the services were not delivered outside India, the conditions laid down in Export Rules were allegedly not satisfied - Based on said findings, he confirmed demand of service tax with interest and penalty - Identical issue has been dealt by Tribunal in Airbus Group India Pvt. 2016-TIOL-2312-CESTAT-DEL for the period 2006 to 2011 wherein it has been held that the services provided by assessee would qualify as export of service even if the activities were undertaken in Indian soil upon the instructions of service recipient located outside India - Therefore, the issue is no longer res-integra since the same stands decided by co-ordinate Bench of Tribunal - The sale of the products and services manufactured or provided by Foreign Company have been made by assessee to Indian customer/client is completely immaterial inasmuch as the assessee has provided the services at the behest of service recipient located outside India - The subject services are to be held to be used outside India as well as delivered outside India and therefore, constitutes export of service on which no service tax stands payable - The impugned demand of service tax is set aside: CESTAT
- Assessee's appeal allowed: KOLKATA CESTAT
CENTRAL EXCISE
2020-TIOL-1150-HC-DEL-CX
Hectafine Alusystems India Ltd Vs CCGST
SLVDRS - The present petition was filed by the petitioner company on account of the rejection of its application, filed for settlement of dispute under the Sabka Vishwas (Legacy Dispute Resolution) Scheme 2019 - The Revenue claimed that the petitioner had indulged in tax evasion and also had not submitted the requisite documentation evidencing its correspondence with the Revenue.
Held - The Respondents are given four weeks' time to file counter affidavit in respect of a letter addressed to the Revenue by the petitioner-company's director - Matter listed for hearing on Sept 15 2020: HC
- Writ petition disposed of: DELHI HIGH COURT
2020-TIOL-967-CESTAT-KOL
Vedanta Ltd Vs Commissioner of CGST & CE
CX - During the period 2010-11, assessee had availed Cenvat Credit on various capital goods and input services - A SCN was issued alleging that the Credit involved in the input services received for use in or in relation to the final products, cannot be utilized by assessee for discharging its Service Tax liability on account of the output service rendered by it, inasmuch as the input services for which the assessee had no nexus or integral connection with the output service rendered by the assessee - The Adjudicating Authority disallowed the Cenvat Credit taken and confirmed the demand of Service Tax along with appropriate interest and imposed penalty of equal amount under Section 78 of FA, 1994 r/w Rule 15 (3) of CCR, 2004 - The Tribunal in Final Order dt.01/05/2018 had decided in favour of the assessee - The impugned order is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2020-TIOL-966-CESTAT-CHD
Yamuna Power and Infrastructure Ltd Vs CCE & ST
CX - In the matter of non-payment of interest, Assistant Commissioner directed the appellant that if they are aggrieved by the order dt. 17.01.2017, they can file an appeal against the said order – However, instead of filing the appeal against the intimation dt. 22.06.2017, the appellant continued to pursue the matter with the adjudicating authority – For this, the appellant is relying on the decision of this Tribunal in the case of Kamdhenu Ispat Ltd to say that the time consumed before the adjudicating authority by the appellant is required to be excluded in terms of Section 14 of Limitation Act, 1963 for limitation purposes - Later, when they filed appeal before the Commissioner(A) on 11.01.2018 , same was dismissed as time barred – appeal filed before CESTAT.
Held: In the cited case, although the appellant pursued the remedy before the adjudicating authority but when the adjudicating authority advised the appellant to file an appeal before the higher forum against the order passed adjudicating authority, the appellant filed the appeal before the higher forum - Admittedly, the time consumed by the appellant till 22.06.2017 is required to be excluded in terms of Section 14 of Limitation Act, 1963, but thereafter the appellant did not file the appeal before the Commissioner (Appeals) within time and the Commissioner (Appeals) has no power to extend the period of limitation in terms of Section 35A of the CEA, 1944 – since the appellant did not follow the advice given by the adjudicating authority vide letter dt. 22.06.2017, the appeal filed is rightly held as barred by limitation by the Commissioner (Appeals) - appeal is, therefore, dismissed: CESTAT [para 9, 10]
- Appeal dismissed: CHANDIGARH CESTAT
2020-TIOL-965-CESTAT-AHM
Madhu Hydrocollides Pvt Ltd Vs CCE & ST
CX - Refund - In the first round of proceedings, the Commissioner(A) had held that the refund claim is not hit by limitation - In Revenue appeal, the CESTAT remanded the matter to the adjudicating authority keeping all the issues open - Adjudicating authority issued a fresh show cause notice dated 13.10.2014 and passed an order-in-original on 18.02.2015 sanctioning the refund - against this order, Revenue filed an appeal and which was allowed by the Commissioner(A), hence assessee is in appeal before CESTAT.
Held: Appellant has raised very important issue as to whether revenue is legally right in issuing the second time show cause notice in the same case, however, this vital issue was not answered by the Commissioner (Appeals) in the impugned order - Since the second show cause notice dated. 13.10.2014 is the genesis of the present case, without dealing with the issue of legality of issuance of said show cause notice, the entire finding given by the Commissioner (Appeals) is of no meaning - impugned order is set aside and appeal is allowed by way of remand to the Commissioner (Appeals): CESTAT [para 4]
- Matter remanded: AHMEDABAD CESTAT
CUSTOMS
2020-TIOL-964-CESTAT-BANG
Sri Manjunatha Cargo Pvt Ltd Vs CC
Cus - Assessee is in appeal against impugned order whereby the assessee's Customs Broker license is revoked under Regulation 14 r/w Regulation 17 of CBLR, 2018 and also forfeited the security deposit furnished by assessee - Further the Commissioner has imposed penalty on assessee - The allegation against assessee is that they have violated the Regulations 11(d) and 11(n) of CBLR, 2013 - In impugned order, the Commissioner has held that the assessee has not directly interacted with the IEC holders and is guilty of violation of Regulation 17(d) of CBLR, 2013 - This finding is factually incorrect because in the statements of Mr. Mohammad Yusuf Siddique, G Card holder and Power of Attorney of assessee, he has stated in his statement that he had interacted with the IEC holders - As per Commissioner, assessee has not brought to the knowledge of Department that IEC holders have lent their IECs to other persons - There is no evidence on record brought by the Department to show that the assessee had knowledge regarding the lending of IEC - The lending of IEC is not an offence under the Customs Act, 1962 - As far as allegation against the assessee that he had not verified the antecedents of IEC holders, as per Regulation, the Customs Broker is to verify the correctness of IEC number, identity of client and functioning of them at the declared address using reliable, independent, authentic documents data or information - Further physical inspection of premises of importer or exporter is not required under the law as well as under the Board's Circular 9/2010-Cus - Assessee had obtained copies of PAN card, Aadhaar Card, GST registration certificate, IEC certificate from all the three exporters concerned - As far as time limit prescribed under Regulation 17(7) is concerned, the Inquiry Report is dated 15/07/2019 and if it is accepted that the said report was submitted on the same date, even then, as per Registration 17(7) of CBLR, 2018, the Commissioner is supposed to pass the order within 90 days but the Commissioner in this case has passed the order on 20/09/2019 which is beyond the time limit prescribed under Regulation 17(7) of the CBLR, 2018, the time limit prescribed under CBLR is mandatory and not directory - Therefore, the impugned order is set aside for violation of Regulation 17(7) of CBLR, 2018 - The impugned order is set aside on merits as well as on limitation: CESTAT
- Appeal allowed: BANGALORE CESTAT
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