SERVICE TAX

2020-TIOL-1083-CESTAT-DEL

Suman Kumar Roy Vs CC, CE & ST

ST - This appeal seeks to assail the order dated 10 September, 2014 passed by Commissioner (A) by which the appeal has been dismissed for the reason that it was not filed within the period stipulated in Section 85 (3) of FA, 1994 - It is not in dispute that the order passed by Assistant Commissioner (STC) was sent to the assessee by speed post on 16 January, 2012 and was not sent by registered post with acknowledgment due - At the relevant time, there was no provision for sending the order by speed post - The Commissioner (A), after noticing that the order was dispatched on 16 January, 2012 by speed post, presumed that it should have been delivered within 15 to 20 days - The contention of assessee is that the order can be deemed to have been served only if it is sent by modes prescribed in Section 37C of Central Excise Act - The Bombay High Court in Amidev Agro Care Pvt. Ltd 2012-TIOL-395-HC-MUM-CX held that it was mandatory on the part of Revenue to serve a copy of the order of Adjudicating Authority by registered post with acknowledgment due to the assessee, but since it was sent by speed post, it was not sent in the prescribed manner - It is, therefore, seen that the order dated 9 January, 2012, passed by Adjudicating Authority, was not sent to assessee by either of the modes prescribed under Section 37(C) of Central Excise Act - The deeming provision contained in Sub-Section (2) of Section 37(C) of Central Excise Act could not, therefore, have been resorted to by Adjudicating Authority - The Commissioner (A) was, therefore not justified in observing that since the order was sent by speed post on 16 January 2012, it should be deemed to have been served on assessee within 15-20 days from the date of dispatch - According to assessee, the order was received on 22 May, 2014 - The appeal, therefore, should have been filed within three months from 22 May, 2014 and it was actually filed on 14 July, 2014 - The appeal was, therefore, filed before Commissioner (A) within the period provided for in Section 85(3) of Finance Act - The Commissioner (A), therefore, committed an illegality in holding that the appeal had been filed not only beyond the statutory period of limitation but also beyond the extended period of limitation provided for under in Section 85(3) of the Act: CESTAT

- Appeal allowed: DELHI CESTAT

2020-TIOL-1082-CESTAT-CHD

Punjab State Warehousing Corporation Vs CCE

ST - The assessee is an undertaking of Government of Punjab and owner of warehouses which have been rented by them to the Food Corporation of India for storage of food grains - The case of department is that the activity of letting out warehouses to FCI would attract service tax under section 65 (105 (zzzz) of FA, 1994 as renting of immovable property for business or commerce - In the assessee's own case for the earlier period vide 2018-TIOL-913-CESTAT-CHD , issue has already been decided in favour of assessee wherein it has been held that they are not liable to pay service tax under category of 'Renting of Immovable Property Service' or under the category of 'Storage and Warehousing Service' - As the same are exempted as per Clause (d) of Section 66D of FA, 1994 relevant for the period w.e.f. 01.07.2012 wherein the services relating to agriculture or agricultural produce by way of renting or leasing of vacant land with incidental use is exempted from payment of service tax, therefore, assessee is not liable to pay service tax - Accordingly, the impugned order is set-aside: CESTAT

- Appeal allowed: CHANDIGARH CESTAT

CENTRAL EXCISE

Jena Buildcon Pvt Ltd Vs CBIC

SVLDRS - The present petition was filed seeking that directions be issued to the Revenue to consider the petitioner's representation made under the Sabka Vishwas Legacy Dispite Resolution Scheme and also rectify the Form SVLDRS-03 wherein the tax payable by the petitioner was computed - The petitioner claimed there to be a miscalculation in the final determination, considering that a different computation had been made earlier and the same was accepted by the petitioner - In such earlier computation, the petitioner was given benefit of pre-deposit of duty, whereas the same was denied in the final computation under challenge - The petitioner claimed that such error is rectifiable u/s 128 of the Finance Act (No.2), 2019 read with Rule 6 (6) of the Sabka Vishwas (Legacy Dispute Resolution) Rules, but its representation in this regard was not considered.

Held - Notice issued - Considering the limited prayer sought, the Respondent-Revenue authority is directed to consider the petitioner's representation and decide upon the same, within two weeks' time: HC

- Writ petition disposed of: DELHI HIGH COURT

2020-TIOL-1081-CESTAT-ALL

Singhal Cable Industries Vs CCE

CX - Sole ground for seizure of the goods found lying in the appellants' factory is that the said goods were allegedly meant for clandestine removal - Apart from the fact that the goods were not entered in the records, there is no evidence produced by the Revenue to reflect upon the assessees' mala-fide intention that the said goods were not entered with an intention to clear the same without payment of duty - stand of the Revenue is based upon only assumptions and presumptions - Further in the absence of any confirmation of demand of duty or directions to the appellant to clear the said goods on proper payment of duty, Bench agrees that confiscation of the same (goods) or imposition of penalty was neither warranted nor justified - impugned order set aside and both the appeals were allowed with consequential relief: CESTAT [para 6]

- Appeal allowed: ALLAHABAD CESTAT

2020-TIOL-1080-CESTAT-KOL

Shiv Shakti Sponge Iron Ltd Vs CCE

CX - M/s SSIL is engaged in manufacture of Sponge Iron and have contravened various provisions of Central Excise Act and Rules by way of clandestine production and removal of excisable goods without payment of Central Excise Duty as per the impugned order - The demand was confirmed in pursuance of SCN for the period from 1st March, 2006 to 25th September, 2007 - During the search, the pen drive was recovered which allegedly contained the data regarding the clandestine removal of the goods without any search being conducted on assessee's premises - It is on record that the Department has solely relied upon the data in the pen drive without any further corroboration by the independent investigation conducted for the activity by assessee - But any data contained in the pen drive/printouts has to be as per the provisions of Section 36B of the Act which has definitely not been followed by Adjudicating Authority - The issue has been elaborately dealt in case of M/s Popular Paints and Chemicals 2019-TIOL-1239-CESTAT-DEL wherein it is held that following the mandatory requirement as contained under Section 36B of the Act, the reliance cannot be placed on the data contained in the electrical device - The statement of Shri Bharat Bhushan Sachdeva can also not be relied upon for not following the prescription under Section 9D of the Act - The charge of clandestine removal thrusted upon assessee based on the documents contained in pen drive without any other corroboration and this is mere presumption and assumption and the demand cannot be sustained which is based on presumption and assumption as held in case of Sakeen Alloys - As demand on SSWP is not sustainable, there is no question of imposition of any penalty on the Director of the company, Shri Bharat Bhushan Sachdeva - Accordingly, the impugned order is set aside: CESTAT

- Appeal allowed: KOLKATA CESTAT

2020-TIOL-1079-CESTAT-KOL

Harinagar Sugar Mills Ltd Vs CCE & ST

CX - The assessee is a composite Sugar factory operating under Cenvat Credit Scheme - They had installed a distillery division within the said factory premises which commenced production in June 2008 - The various subplants, machineries and materials required for installation of the distillery unit were sourced from M/s. Praj Industries Limited and the erection/commissioning were carried out by M/s. Peackon Industries Limited - A SCN was served upon assessee proposing denial of Cenvat credit on structural items on purported ground that these were used as construction/structural material in distillery division and being general purpose item do not qualify as capital goods within the meaning of Rule 2(a) of Cenvat Credit Rules - The Notice issued based on the Audit Objection from CERA did not dispute the receipt of structural items in the factory premises of assessee or the duty paid nature thereof - The eligibility of credit in Notice was questioned only on the ground that the structural items were general purpose items used as construction/structural material in Distillery Division - The Chartered Engineer Certificate also evidences the use of structural items in installation/commissioning of Distillery Division - Therefore, the Adjudicating Authority clearly misdirected himself in questioning the receipt and the duty paid nature of these items without any evidence to the contrary - Such iron and steel article used for installation of Distillery Division are eligible for credit both as inputs as well as capital goods within the meaning of Rule 2(k) and Rule 2(a) respectively of CCR - Such items also qualify as capital goods by applying the user test evolved by Supreme Court in Jawaharlal Mills case 2002-TIOL-87-SC-CX - Even if these items were used for repair and maintenance of capital goods, the same were eligible for credit in view of the decision of Allahabad High Court in DSCL Sugar 2019-TIOL-1175-HC-ALL-CX - The demand was even otherwise hit by limitation following the decision of High Court in Diamond Power Infrastructure 2016-TIOL-1206-HC-AHM-CX - The appeal is allowed both on merits and on limitation: CESTAT

- Appeal allowed: KOLKATA CESTAT

CUSTOMS

2020-TIOL-1078-CESTAT-KOL

CC Vs Moorgate Industries India Pvt Ltd

Cus - The assessee exported Iron Ore Fines declaring 57.30% Iron (Fe) content under an agreement with the foreign buyer, located at China - The related Shipping Bill, pending submission of required documents, was provisionally assessed by department and the export was allowed at Nil rate of duty in terms of Notfn 15/2016-Cus - The Fe content declared by assessee in the shipping bill was based on the load port analysis report prepared by M/s. Mitra SK Pvt. Ltd. - The dispute has arisen regarding the liability of assessee to pay export duty on Iron Ore Fines exported by them - Notfn 15/2016-Cus grants exemption from payment of export duty if the Fe content is between 55% and 58% - If the Fe content is more than 58%, export duty of 30% is liable to be paid - Testing of samples at the destination port gave the Fe content as 57.53% - These reports were ignored by Original Authority citing the reason that they were drawn without the presence of Customs Officer - The test report by Departmental Chemical Examiner indicated the Fe content to be 62.4% - But this test report is disputed by assessee with the argument that samples were drawn behind the back of exporter; were not withdrawn and sealed as per the Indian Standard specifications and further that the samples were tested after an inordinate delay of two months during which the moisture content could have changed - The Commissioner (A) took the view that the Fe content is to be estimated on the basis of discharge Port Report by ignoring the report of the Chemical Examiner - It is evident that copy of test report of Chemical Examiner, relied by Original Customs Authority for assessment, has not been made available to the assessee - Before relying on such a report, the basic principles of natural justice require that the assessee should be given a chance to rebut the report of chemical examiner including the misgivings on the manner of drawing of samples and testing thereof - The assessment is required to be done Denovo after giving a copy of Chemical Examiner Report along with the copy of Test Memo prepared by Customs at the time of drawing the samples - The assessee will have the right to challenge the same including cross examination of the Chemical Examiner, if necessary - The matter is remanded to Original Authority for Denovo Assessment: CESTAT

- Matter remanded: KOLKATA CESTAT