| SERVICE TAX
2020-TIOL-1136-CESTAT-DEL
Barwal Construction Company Vs CCE & CGST
ST - Refund - unjust enrichment - As per the agreement between the appellant and the Rajasthan Government, the construction of housing complex was on agreed price and, if any, service tax is payable, the same shall be payable by the appellant which means the amount of service tax is included in the value of service provided, if any, payable - As no service tax is payable by the appellant, therefore, question of recovery of service tax does not arise - In these circumstances, bar of unjust enrichment is not applicable to the facts of the case - appellant is entitled for refund - appeal is allowed with consequential relief: CESTAT [para 7]
- Appeal allowed: DELHI CESTAT
2020-TIOL-1135-CESTAT-MAD
Salem Starch & Sago Manufacturers Service Industrial Cooperative Society Ltd Vs CCE & ST
ST - Appellants are providing Storage and Warehousing Services and are selling the products on behalf of starch and sago manufacturers by issue of tenders - The department entertained the view that the activity would fall under the category of Auctioneering Services – accordingly, demand notice was issued and the adjudicating authority confirmed the demand along with imposition of penalty and interest – as the lower appellate authority rejected their appeal, the appellant is before the CESTAT.
Held: Issue stands settled in appellant's own case vide the decision of the Tribunal - 2018-TIOL-2127-CESTAT-MAD wherein the Tribunal has set aside the demand – following the said decision, the impugned orders are set aside and appeals are allowed with consequential reliefs: CESTAT [para 2, 3]
- Appeals allowed: CHENNAI CESTAT
2020-TIOL-1134-CESTAT-KOL
Central Bank of India Vs CCGST & CE
ST - The assessee, a Bank Branch provided 'banking & other financial services' as provided under section 65(12), with particular reference to Clause (ix) thereof - During the period under dispute, it was pointed out that the branch did not pay full amount of service tax on its income on the impugned service - A SCN followed and service tax was confirmed along with interest payable thereon and imposition of equal amount of penalty under section 78 ibid - It also denied the availment of CENVAT credit on purported ground of failure to produce the relevant documents, though no such point/issue was mentioned/made in the SCN - The order for denial of Cenvat availment to the extent of Rs.2,07,151/- was not raised in SCN - Till the time the bank was converted into a CBS branch, Service Tax on the services was not collected properly, particularly in respect of locker rent and agency commission - It is also submitted that whatever Service Tax was collected by the bank, the same was deposited with the exchequer - Regarding non-payment of tax on agency commission, it is submitted that the commission is earned by head office and the head office is discharging its liability of Service Tax and accordingly if the assessee is made to pay Service Tax all over again, that would tantamount to double taxation - They have not discharged their liability of Service Tax on various incomes during the impugned period over which they have realized the Service Tax in some cases and have not realized the Service Tax in some other cases - Cum-tax value benefit may be allowed in those cases where Service Tax has not been collected by assessee - This has also been clarified vide CBEC instruction No.341/18/2004-TRU (PT) - Tribunal do not find any ingredient of suppression of facts, misstatement with intent to evade payment of Service Tax - Hence, the penalty imposed under Section 78 of FA, 1994 is set aside - The matter is remanded for the limited purpose of re-computation of cumtax value and verification of the related documents - Penalty is set aside: CESTAT
- Appeal partly allowed: KOLKATA CESTAT
CENTRAL EXCISE 2020-TIOL-1133-CESTAT-KOL
Mahanadi Coalfields Ltd Vs CCE & ST
CX - The assessee, a subsidiary of Coal India Limited is engaged in business of manufacturing and selling of coal - Levy of Central Excise duty was imposed for the first time w.e.f. 1st March, 2011, through FA, 2011 wherein the Tariff rate of goods falling under Chapter 27.01 was made 5% against the 'NIL' rate - Prior to said rate, Coal had always been subject to 'NIL' rate of Central Excise duty - A concessional rate of central excise duty of 1% was also provided from aforesaid date, if assessee did not avail the benefits of CENVAT credit - In instant case, assessee chose to pay duty at the normal tariff rate of 5% with simultaneous benefit of CENVAT credit facility in terms of CCR, 2004 - The issue that arise for consideration is with respect to availment of CENVAT credit of excise duty paid on capital goods received prior to the imposition of central excise levy on final product - The case can be decided on the point of limitation - The levy of central excise was new in 2011 during which period the assessee has availed the credit on capital goods which is in dispute - Assessee, right from the adjudication stage to the stage of first appeal, has all along submitted that the subject goods, excavators, have been received in knocked down condition on 17.02.2011 which got ready for use only on 17.06.2011 on which date the GRN was prepared and goods were recorded in the Books and credited - The relevant documents were placed before the original as well as first appellate authority - The said facts have nowhere been disputed in original adjudication order - The Commissioner (A) has also not given any finding on the same - In view of the decisions in Nepa Ltd 2013-TIOL-2513-CESTAT-DEL and the Apex Court decision in Chennai Petroleum Corporation 2007-TIOL-66-SC-CX , assessee being a PSU would not have reason to avail wrong credit with intention to evade payment of duty - Moreover, since the central excise levy was made applicable for the first time, the issue of availing credit on capital goods during the cut off date would arise as a one-time affair for which there may be inadvertent error not attributable to wilful suppression or deceit to avail irregular credit - Further, the issue of availment of credit like in the given case involves a legal interpretation and therefore, it cannot be said that there would have been deliberate attempt on the part of assessee to avail irregular credit - The demand of duty interest and penalty is set aside by allowing the appeal on the grounds of limitation itself: CESTAT
- Appeal allowed: KOLKATA CESTAT
2020-TIOL-1132-CESTAT-KOL
Indian Oil Corporation Ltd Vs CCE
CX - The assessee has an Oil Refinery at Haldia - The dispute is pertaining to the period during which they removed certain goods without payment of duty for export - The goods cleared were Furnace Oil as well as Bitumen - Since the proof of export of such goods was not submitted within the prescribed period, the Department proceeded to demand the duty payable on such goods - In terms of the certificate dated 15.3.2018 submitted by assessee, it is seen that the jurisdictional Superintendent, Central Excise has certified the quantity of Bitumen which has been cleared within the Refinery for CRBM plant - This is covered under Notfn 67/95 and entitled to exemption for captive consumption - Further, export of disputed quantity of furnace oil has also been certified - The entire quantity of Furnace Oil and Bitumen stands accounted for - The impugned order is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2020-TIOL-1131-CESTAT-DEL
Makers Mart Vs CCGST, C & ST
CX - Issue is where the appellant is operating under SEZ, whether on debonding they are liable to pay duty on cement and iron & steel procured duty free for construction and development of their unit.
Held: Bench is satisfied that cement and steel are not included in the definition of capital goods as defined in rule 2(1)(e) of SEZ Rules, 2006 - Further, cement and steel also do not fall under the category of capital goods, raw materials, components, consumables, spares and finished goods - Thus, the authorities below have erred in considering cement and steel as capital goods - Accordingly, the impugned order is set aside and appeals are allowed - The appellants are entitled to consequential benefits including refund with interest: CESTAT [para 8]
- Appeals allowed: DELHI CESTAT
CUSTOMS
2020-TIOL-1291-HC-DEL-CUS
Great India Trading Vs Pr CC
Cus - The present petition was filed seeking that directions be issued to the Revenue authorities to provisionally or finally assess consignment of Dry Dates imported by the petitioner - An order or direction towards the provisional release of the goods was also sought, where the goods were seized without the petitioner's knowledge - The petitioner also claimed that it would suffice for the present petition if the respondents be directed to conduct provisional assessment of the subject goods.
Held - In keeping with the limited plea of the petitioner, the Revenue authority concerned is directed to conduct provisional assessment of the subject goods, i.e., dry dates, as per applicable law - Such exercise be conducted within two weeks' time: HC
- Writ petition disposed of: DELHI HIGH COURT
2020-TIOL-1130-CESTAT-BANG
Cochin Air Cargo Clearing House Vs CC
Cus - Appeal is directed against the impugned order dt. 19/05/2020 passed by the Commissioner of Customs whereby the suspension and denial of renewal of licence passed vide order dt. 21/04/2020 was continued and Inquiry Officer was appointed to conduct inquiry against the appellant for violation of various regulations.
Held: Commissioner vide his order dt. 21/04/2020 rejected the renewal of the customs broker licence of the appellant which had already expired on 13/04/2020 and also ordered for suspension of the licence on the basis of Order-in-Original (Prohibition) dt. 16/03/2020 issued by the Commissioner of Customs, Trichy prohibiting the appellant to transact the business under their jurisdiction - appellant had already applied for renewal of his licence by moving an application in the month of October 2019 - order dt. 21/04/2020 whereby the renewal of Customs Broker licence has been denied by the Commissioner was passed without following the principles of natural justice and without affording an opportunity of hearing to the appellant which is clear violation of principles of natural justice especially when his application for renewal of licence is already pending - Further, once the Customs Broker licence of the appellant has already expired on 13/04/2020, there was no need to pass an order of suspension because after 13/04/2020, the Bills of Entry filed by the appellant were not processed by the Customs - Suspension order dt. 21/04/2020 is, therefore, premature. Further, since the enquiry is pending, the finding of the Commissioner in the impugned order that the appellant has violated Regulations 10(d), 10(n) and 13(7) of CBLR, 2018 is without any basis because the appellant has submitted that he has not violated the regulations on the basis of the decisions rendered by the Tribunal and the High Court - Further, the show-cause notice issued to the appellant by Trichy commissionerate is pending before the High Court of Madras (Madurai Bench) - In view of the above, Bench is of the considered view that during the pendency of the enquiry ordered by the Commissioner of Customs, the Commissioner should not have denied the renewal, more so, when there are extra ordinary circumstances prevailing in the country on account of spread of pandemic Covid-19 during which the appellant is supposed to pay the wages to its employees as per the instruction issued by the Government of India - Further, keeping in view the livelihood of the appellant and the fact that enquiry is still pending regarding the violation of regulations against the appellant, Bench is of the view that the impugned order is not sustainable in law - Order is, therefore, set aside and the Commissioner of Customs is directed to allow the appellant to carry on his business of CHA during the pendency of enquiry except at Trichy Commissionerate where the alleged violation took place - Inquiry Officer is expected to conclude the inquiry expeditiously and will take into account the decisions rendered by the Tribunal and High Court cited supra while concluding the inquiry - Appeal is disposed of: CESTAT [para 6]
- Appeal disposed of: BANGALORE CESTAT |
