| SERVICE TAX
2020-TIOL-1239-HC-AHM-ST
CCGST & CE Vs Bilfinger Neo Structo Construction Ltd
ST - Impugned orders in both the appeals passed by the Appellate Tribunal are one relating to the rate of duty of service tax - According to counsel for Revenue, the appeal would lie before the Supreme Court - In view of the aforesaid, both the appeals are disposed of as not maintainable before this High Court with the liberty to take appropriate steps in accordance with law before the appropriate forum - Both the appeals stand disposed of accordingly without expressing any opinion on the merits of the substantial questions of law involved: High Court [para 6 to 8]
- Appeals disposed of: GUJARAT HIGH COURT
2020-TIOL-1077-CESTAT-MAD
Sat Vision Network Vs CGST & CE
ST - On investigation, it was revealed that that when compared to the amount paid by cable operators to the MSO, the service tax paid by cable operators was far below the actual tax payable – demand issued and confirmed along with interest and penalty, therefore, appeal to CESTAT.
Held: Appellant does not contest the demand of service tax and the interest thereof – Request of the appellant to give them the adjustment of CENVAT credit in respect of service tax paid to the intermediary MSO who were supplying the signals and link to them is tenable – on production of documentary evidence, credit can be allowed and for which purpose the matter is remanded to the adjudicating authority for verification – appellant has also paid substantial demand amount, therefore, penalty requires to be set aside: CESTAT [para 5, 6]
- Appeal partly allowed: CHENNAI CESTAT
2020-TIOL-1076-CESTAT-ALL
Motilal Nehru National Institute of Technology Vs CCE & ST
ST - Appellant is a Central Government Educational Institution and registered with the Service Tax Department - During the period 2007-08 to 2011-12, they provided services of "Service of Renting of Immovable Property" but did not discharge service tax, hence SCN issued and demand confirmed along with penalty and interest – appeal before CESTAT.
Held: Appellant is admittedly an educational institution, which is wholly owned by Government of India - As such, in terms of the Rajasthan High Court's decision in Rajashtan Renewable Energy Corporation Ltd., no mala-fide can be attributed to them so as to justifiably invoke the longer period of limitation - demand beyond the normal period is hit by limitation and is unsustainable – Penalty is also set aside - demand falling within the normal period is upheld alongwith interest and the demand falling beyond the normal period is set aside along with setting aside of interest and entire penalty – Appeal disposed of: CESTAT [para 5, 6]
- Appeal disposed of: ALLAHABAD CESTAT
2020-TIOL-1075-CESTAT-KOL
Ludlow Jute & Specialities Ltd Vs CST
ST - The assessee is engaged in manufacture and export of jute products outside India - For the purpose of obtaining export orders, assessee is incurring commission amount for payment to the selling agents located outside India which is liable to service tax under category of BAS - Enquiry was initiated by Department with regard to non-payment of service tax under reverse charge mechanism on commission amount paid by assessee to the service provider located outside India - SCN was issued and the demand of service tax was confirmed alongwith interest and penalty vide adjudication order - The applicability of service tax on commission amount paid to the service provider located outside India is not in dispute - The assessee has already deposited the service tax with applicable interest well before the issue of SCN - It is their submission that they did not have any intent to wilfully evade payment of service tax and that the tax amount was initially not paid out of ignorance - The levy of service tax on services received from outside India was a new concept and the same was made applicable only w.e.f. April 2006 - There was an ignorance on the part of assessee regarding service tax liability on import of services from outside India - Service tax amount if paid would have been available as credit or refund since the same has been used in making export of goods and the situation would have been revenue neutral - The Supreme Court in Nirlon Ltd 2015-TIOL-96-SC-CX has held that there cannot be willful suppression in case of revenue neutral situations - Moreover, since the service tax amount with interest have already been paid before the issue of SCN, there is no justification to impose penalty and the assessee is entitled to waiver of same in view of the dispensation provided in Section 80 of FA, 1994 - The penalty imposed in impugned order is set aside: CESTAT
- Appeal partly allowed: KOLKATA CESTAT
CENTRAL EXCISE
2020-TIOL-1074-CESTAT-KOL
Elmech Engineers Vs CCGST & CE
CX - The assessee is a manufacturer of Diesel Generating sets, the main components of which are Alternators and Diesel Engines - Such components are procured by assessee from reputed concerns like M/s.Crompton Greaves and M/s. Kirloskar Oil Engines Ltd. - The manufactured DG sets are supplied mostly to the Government departments - The assessee availed Cenvat credit on the components and materials used in manufacture of DG sets - On examination of the books of accounts, it was alleged that there was shortage of 99 numbers of diesel engines and 167 numbers of alternators - Accordingly, the credit on such components of DG sets was alleged to have been taken irregularly - SCN was issued for disallowance and recovery of Cenvat credit amounting to Rs.29,22,195/- - The assessee had shown the serial numbers of diesel engines and alternators at the time of clearance of diesel generator sets in their Central Excise invoices - Hence, it is not difficult to co-relate such documents with the receipts and clearance of diesel engines and alternators and diesel generator sets - The adjudicating authority did not consider the submissions made by assessee in his reply to the SCN and also the documents submitted by them along with their reply and also the submissions made at the time of de novo adjudication proceeding - Hence, the order of adjudicating authority was not a speaking order and such order is not maintainable under the statute - The Commissioner (A) also did not consider the submissions made in their appeal petition and also did not consider the documents submitted along with their appeal petition - His order also is not proper and valid - He has not also considered the Chartered Accountant's certificate which was filed as per his instructions at the time of personal hearing - Assessee should be given one more opportunity to explain their case before the lower authorities since there have been violations of principles of natural justice on the earlier occasions - Accordingly the appeal is remanded to the adjudicating authority to consider the submissions of assessee on the basis of supporting documents, statutory registers and the Chartered Accountant's certificate: CESTAT
- Matter remanded: KOLKATA CESTAT
2020-TIOL-1073-CESTAT-KOL
Century Plyboards India Ltd Vs CCE
CX - The assessee have been issued a SCN seeking disallowance of Cenvat Credit for alleged violation of Rules 3(1), 3(5) of CCR, 2004 and demanding Central Excise Duty and Cenvat Credit thereof - Without going into the merits of the case, it is found that prima facie there has been injustice caused to the assessee in providing an opportunity for being heard, therefore the Principle of justice have been violated - The Commissioner has provided 2-3 opportunities, however, such opportunity was provided only in letter but not in spirit - The request of assessee to give further time to reply found to place corrected figures was not allowed - This is a clear and gross violation of Principle of natural justice - Consequently, in the interest of justice, the matter is remanded to the Adjudicating Authority for the first consideration on merits while giving an opportunity to the assessee to be heard - The assessee is also directed to submit all the evidence they would like to rely upon, within four weeks: CESTAT
- Matter remanded: KOLKATA CESTAT
2020-TIOL-1072-CESTAT-HYD
Handum Industries Ltd Vs CCT, CE & ST
CX - Section 9D has to be scrupulously followed whenever a statement recorded by an officer of Central Excise is to be relied upon in any adjudication proceedings as has been held by the Punjab & Haryana High Court in the case of Jindal Drugs Private Ltd. - 2016-TIOL-1230-HC-P&H-CX which has not been done in this case - judgment of the High Court (supra) was not before the adjudicating authority and at that time Section 9D has not been followed although it was there in the statute book - Neverthless, Section 9D has to be followed and since it was not done in this case, Bench finds that this is a fit case to be remanded to the original authority for re-adjudication - All appeals are allowed by way of remand to the adjudicating authority with a direction to follow the procedure under Section 9D in respect of every statement he wishes to rely upon: CESTAT [para 5, 6]
- Matter remanded: HYDERABAD CESTAT
CUSTOMS
2020-TIOL-1227-HC-KERALA-CUS
ML Francis Vs CC
Cus - The petitioner is a blacksmith by profession - His residence was raised by Customs officers, on grounds that they have information regarding handling of illegally imported Gold - The petitioner claimed that the seizure proceedings caused great difficulty in carrying out day to day activity - Hence the present petition was filed seeking that seizure Mahazar be quashed and mandamus be issued for release of the seized Gold.
Held - Directions are issued to the Revenue officials concerned to decide upon the petitioner's application seeking provisional release of the Gold, after affording opportunity of personal hearing: HC
- Writ petition disposed of: KERALA HIGH COURT
2020-TIOL-1226-HC-MAD-CUS
GT Jayanti Agrochem India Pvt Ltd Vs CC
Cus - The present writ petitions were filed by the petitioner company, on being aggrieved by the rejection of its request for refund of Special Additional Duty.
Held - The Tribunal has in a catena of decisions, settled the issue of refund of SAD, in favor of the importer - Considering the in-principle decision taken by the Revenue to refund the Special Additional Duty, the court finds no need to delve into the merits of the grounds raised by the petitioner-importer - Hence the petitioners are at liberty to file application before the authorities concerned and seek refund of SAD paid: HC
- Writ petition disposed of: MADRAS HIGH COURT |
