| SERVICE TAX
2020-TIOL-1401-CESTAT-KOL
CST Vs Naresh Kumar & Company
ST - The assesee is rendering various services like; liaison and follow up on behalf of their consumers (power generation companies) between collieries and railways; supervisions, monitoring, witnessing the loading of specified size and grade of coal and shortage en route, ensuring optimum quantity of supply, ensuring proper weighment; Co-coordinating receipt of necessary documents and submitting the same to consumers and Organising sampling and analysis of coal - It is the case of the Revenue that these activities amount to rendering "clearing and forwarding services" and are accordingly chargeable to Service Tax under this head - It is the case of assessee that these activities do not amount to rendering "clearing and forwarding service" as they do not physically handle or receive or store the goods/coal, but only do liaisoning, supervision and co-ordination - Following the decision of Apex Court in case of Coal Handlers Pvt. Ltd. 2015-TIOL-101-SC-ST and the judgment of Tribunal in assessee's own case, this Bench, vide Final Order No.76188- 76189/2019 dated. 25/06/2019 has held that the appellant assessee is not liable to pay service tax - As the issue has already been settled in the assessee's own case in 2018-TIOL-121-CESTAT-MUM for a different period, by following the said ratio, it is held that the assessee is not liable to pay service tax on the services rendered by them - Accordingly, the entire demand in the impugned order is set aside: CESTAT
- Revenue's appeal rejected: KOLKATA CESTAT
2020-TIOL-1398-CESTAT-ALL
Super Shine Services Pvt Ltd Vs Addl DG GST
ST - The main appellant opted for VCES Scheme and declared their unpaid service tax liability up to 31.12.2012, paid the same and received immunity from any proceedings for the period upto 31.12.2012 - A SCN was issued for the period from 01.01.2013 to 30.09.2015 raising demand of Service Tax under proviso to Sub-section (1) of Section 73 of FA, 1994 by invoking extended period of limitation on the ground that the assessee had not filed ST-3 returns till the issue of SCN - There was proposal for imposition of penalties on the other two appellants - The Original Authority has accepted the plea of appellant that the details of transactions were recorded by them in their specified records - Further, he has held that the appellants were entitled to reduced penalty - This indicates that there were no elements for invoking extended period of limitation - Appellant submitted that the amount voluntarily deposited was more than service tax liability for normal period, there were no provisions for issue of said SCN in view of provisions of Sub-section (3) of Section 73 of FA, 1994 - Therefore, SCN was not sustainable - The impugned order is set aside: CESTAT
- Appeals allowed: ALLAHABAD CESTAT
2020-TIOL-1397-CESTAT-DEL
RK Transport Company Vs CCE & CGST
ST - Vide O-I-O, the demand was confirmed and also appropriated alongwith interest - Further, penalty @ 15% under Section 78 of Finance Act was imposed - On appeal, Commissioner (A) enhanced the penalty under Section 78 to 50% - The assessee confirms that they have filed declaration form SVLDRS-1 and accordingly they have been issued final settlement certificate in Form-SVLDRS-4 - Thus, the dispute in these appeals stand settled as regards the tax, interest and penalty matter - Accordingly, these appeals are disposed of in terms of the settlement between the parties: CESTAT
- Appeals disposed of: DELHI CESTAT
CENTRAL EXCISE
2020-TIOL-1566-HC-MAD-CX Commissioner of GST & CE Vs JSW Steel Ltd
CX - When the Assessee had changed its method of valuation on the advice of the Department's Authority himself based on some Audit objection as indicated in the communication dated 17.1.2008 , how by turning the tables on the Assessee, the Adjudicating Authority, without referring to the said communication dated 17.1.2008 , could invoke the extended period of limitation and hold that the Assessee is guilty of suppression of relevant facts viz., the Steel Bars were supplied to their Sister Concerns for the construction work and not for further manufacture of excisable goods, and thereby impose the duty following the Rule 4 Valuation and not Rule 8 Valuation as advised by the Department's Authority itself, while the Assessee had followed the said advice/suggestion of the Department and changed its valuation method from Rule 4 to Rule 8 (110%) of the cost of transfer of goods - Revenue Authority cannot be allowed to take a different stand at different point of time to suit their convenience and impose Additional Duty on the Assessee without establishing any suppression of facts on the part of the Assessee - The Revenue Authority, in the present case, could not disown or ignore the communication dated 17.1.2008 issued by the Superintendent of Central Excise which, very much supports the case of the Assessee that based on the Audit Objection, the Assessee was advised to adopt the valuation method of duty as per Rule 8 of CAS-4 basis and, therefore, the Assessee cannot be blamed for suppression of facts in the present case and the extended period of limitation cannot be invoked by the Authority concerned under the impugned Show Cause Notice - Appeal filed by the Revenue is without any merit, hence it is dismissed: High Court [para 10 to 12]
- Appeal dismissed : MADRAS HIGH COURT 2020-TIOL-1409-CESTAT-BANG
Hical Technologies Pvt Ltd Vs CCE
CX - CENVAT - It is not in dispute that the subject services have been procured by the appellants for use in manufacturing their final products and further, there is no dispute with regard to payment of service tax on the subject input services of which credit has been availed / distributed by the appellant - Insofar as the distribution of credit prior to the period when ISD registration was obtained, issue is no longer res-integra inasmuch as the Gujarat High Court in the case of Doshion Ltd - 2016-TIOL-111-HC-AHM-ST has clearly decided the issue in favour of assessee to hold that mere non-obtaining of the registration as 'ISD' cannot disentitle the assessee from claiming the credit and the same is purely a procedural lapse which is curable in nature: CESTAT [para 7]
CX - CENVAT - With regard to invoices raised on 100% EOU units, Bench agrees with the submissions of the appellant that credit is otherwise eligible even if the export goods are exempted from payment of duty inasmuch as the intention of the Government is to export the goods and not the taxes - Therefore, there is no reason to deny credit on exempted goods which are exported outside India and hence the appellant's eligibility to avail credit in the instant case is upheld: CESTAT [para 8]
CX - CENVAT - Insofar as the denial of credit on services like catering, C&F services, freight on exported goods, travelling and vehicle maintenance services, Bench is of the view that no restriction was placed in the definition of 'input services' as was applicable during the impugned period - The definition appearing under Rule 2(l) of the Credit Rules was very wide covering within its ambit all the services which are used in or in relation to manufacture of final products - No exclusion was provided in the definition to deny the credit on aforesaid services - No reason to deny credit availed by the appellant in the instant case - demand of duty, interest and penalty are set aside and the appeals are allowed with consequential relief : CESTAT [para 9]
- Appeals allowed: BANGALORE CESTAT
2020-TIOL-1400-CESTAT-ALL
Bharat Heavy Electricals Ltd Vs CCE
CX - A three Judge Bench of the Supreme Court in the case of SAIL - 2019-TIOL-204-SC-CX-LB has held that where the differential duty, on account of variation/enhancement in the price is paid subsequently, the interest element gets raised from the date when the duty was required to be paid till the date when it was paid - As the issue now stands decided against the assessee, no reason to interfere with the impugned orders - appeals rejected: CESTAT [para 3, 4]
- Appeals rejected: ALLAHABAD CESTAT
2020-TIOL-1399-CESTAT-CHD
Hans Udyog Vs CCE
CX - Clubbing of clearances and denial of SSI exemption 8/2003-CE - As per panchnama, all units were found working during the course of investigation itself and machinery were installed - Documents which have been found during the course of investigation show that these units were separate manufacturing units and their clearance were the below the threshold limit in terms of Notification No.08/03-CE dt.1.3.2003 as amended - Moreover, the Revenue is confused, as one side, it has been alleged that these are dummy units of M/s. MWF and on the other hand, they are demanding duty separately from them - If the Revenue alleged that these are dummy units of M/s.MWF, then the duty is required to be demanded from M/s.MWF whereas the duty has been demanded from these units which itself show that these units are independent units - Therefore, the department is confused and has concluded that these units are independent units from M/s.MWF and demanded duty from them by denying the benefit of Notification No.08/03-CE dt.1.3.2003 - Clearances of these three units are below the threshold limit of SSI exemption Notification No.08/03-CE dt.1.3.2003 and the same has not been disputed by the Revenue while quantifying the duty and there is no allegation of suppression of clearance by these units - In that circumstance, it is held that these units are separate and independent units and are entitled for the benefit of SSI exemption under Notification No.08/03-CE dt.1.3.2003 as amended during the impugned period, therefore, no duty demand is sustainable against these three units -The Revenue's case is based on oral evidence by discarding the documentary evidence available on records during investigation - Oral statements have no evidentiary value against the documentary evidence available on record - Allegations made by the Revenue in the show cause notice are not sustainable - No merit in the impugned order, hence same is set aside - appeals are allowed with consequential relief: CESTAT [para 39, 41, 42, 44]
- Appeals allowed: CHANDIGARH CESTAT
CUSTOMS
2020-TIOL-155-SC-CUS-LB Busrah Export House Vs UoI
Cus - The assessee approached the High Court seeking release of certain goods which had been seized u/s 110 of the Customs Act - The assessee claimed that the statutory appeal filed by the assessee against the order of seizure, had been settled in favor of the assessee - The High Court held that the appropriate course of action for the assessee would be to approach the adjudicating authority, which has passed the order of confiscation of goods, to give effect to the order passed by the appellate authority, for releasing the seized goods, if the seizure order has been set aside in appeal and there is no interim order against the assessee reviving seizure of goods - Simultaneously, it would be open for the Department to pursue the stay application in the pending appeal - No mandamus can be issued in the writ petition, it was held.
Held - The Revenue is given liberty to file it's counter affidavit in these proceedings within a period of three weeks' time - Rejoinder affidavit, if any, be filed within a period of one week thereafter - The Revenue is at liberty to move the CESTAT for early listing of the appeal or the stay application in the meantime: SC LB
-Case deferred :SUPREME COURT OF INDIA 2020-TIOL-1402-CESTAT-MUM
Krishna More Vs CC
Cus - Based on intelligence that certain persons were indulging in imports of Laminated Sheets and Plywoods by under declaring the weight and value and by making use of bogus IEC, four live consignment of M/s Saibaba Impex, M/s National Enterprises, M/s D S Enterprises & M/s Peekay Enterprises were examined by officers of Director General Revenue Intelligence - The consignments on weighment were found to be in excess of weight declared and hence seized under proper panchnama - After completion of detailed investigations, SCN was issued - All the statements and evidence available on record clearly bring out the role played by each of the noticee to the show cause in act of illegal importation of these goods of which some live consignments have been seized and confiscated - In the past, Shri Manish Karia and Shri Vishal Dedhia had by following this modus operandi have imported nearly 200 such consignments as admitted by them - From the order of Commissioner, it is quite evident that adequate opportunity was extended to appellants to file the reply to the SCN and also appear for personal hearing - It is for the appellants to avail opportunity that has been granted - It is not the case where no opportunity was granted for making representation against the SCN however appellant chose not to avail the same and appear before the adjudicating authority - When sufficient opportunity has been granted by adjudicating authority before making the order to noticees in the case, and noticee do not make use of those opportunity then the order cannot be said to be bad for the reason that it hit by vice of Natural Justice - Thus, no merits found in any of the submissions made by and on behalf of the appellants - More so over there is no challenge by importer to the confiscation of goods - As all the facts and evidences have been admitted by appellants in their statements recorded under Section 108 of Customs Act, 1962, no merits found in these appeals: CESTAT
- Appeals dismissed: MUMBAI CESTAT
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