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SERVICE TAX
2020-TIOL-1414-CESTAT-CHD
Soma New Towns Pvt Ltd Vs CCE & ST
ST - The assessee is engaged in providing services to 'PUNGRAIN' vide agreement dated 14.01.2013 - The agreement is for providing of warehouse and other ancillary services such as security, insurance provision of main power and weigh bridge operation - The issue to be decided is, whether the services rendered by assessee would be falling under category of "Renting of Immoveable Property Services" or "Storage and Warehousing Services" for agriculture use both prior to 01.07.2012 and thereafter - The perusal of agreement and the monthly bill raised by assessee leaves no doubt that the service provided by them is not merely of renting of godown to M/s PUNGRAIN but it is along with the preservation, maintenance and security services, which subsequently are being used by Food Corporation of India (FCI) for storage of the food grains - This aspect regarding the storage of food grains is also not disputed by the Department - It is the contention of Department that the assessee has not directly provided the warehouse storage services, but it is through M/s PUNGRAIN to F.C.I. - This issue has come up for decision before this Tribunal in case of Punjab State Warehousing Corporation 2018-TIOL-913-CESTAT-CHD , wherein it has been held that such services would be more appropriately covered under category of 'storage and warehousing services' in terms of Section 65(105)(zza) of the Act - The services being rendered by assessee would be more appropriately covered under category of services which are under the negative list vide entry no. 66D(v) - The impugned order is incorrect in holding the services rendered by assessee in the category of declared service - Thus, the demand pertaining to this period is also not sustainable - Accordingly, the impugned order is set aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
2020-TIOL-1413-CESTAT-KOL
Mukherjee Enterprise Vs Commissioner Of CGST & Excise
ST - The assessee was issued a SCN alleging inter-alia, that they have contravened the provisions of Section 70 of FA, 1994 as amended r/w Rule 7 of STR, 1994, inasmuch as the assessee did not furnish their ST-3 Return for period from April, 2008 to September, 2008 and October, 2008 to March, 2009 - The assessee was registered with Service Tax Authorities and was filing the ST-3 Return right from April, 2006 to March, 2008 - Thereafter, assessee entertained a view that they are no more liable to pay service tax and stopped filing ST-3 Returns without giving any intimation to the Department - The assesse should have intimated the Department by filing either NIL ST-3 Returns or an intimation explaining the reasons for non-filing of service tax returns - Similarly, the adjudicating authority should have called for details and further when an appeal was already pending before the first Appellate Authority for the period April, 2006 to March, 2008, they should have waited for final outcome of Appellate Order - Similarly, the Commissioner (A) should have remanded the matter to the adjudicating authority - Thus, matter is remanded to the adjudicating authority to decide the matter in denovo proceeding after calling for details from assesse and also wait for the order of first Appellate Authority in an appeal, which is pending for the period April, 2006 to March, 2008 - Adjudicating authority will decide this matter only after receipt of Appellate Order from the Commissioner (A) for the preceding period: CESTAT
- Appeal dispose of: KOLKATA CESTAT
CENTRAL EXCISE
2020-TIOL-1412-CESTAT-DEL
Kaizen Organics Pvt Ltd Vs Commissioner of CGST
CX - Allegations in the show cause notice of taking irregular cenvat credit is based on a communication dated 30.02.2012 received from the Additional Commissioner, Customs & Central Excise, J & K, Jammu, stating that the several units in their jurisdiction located in Jammu & Kashmir appear to be not actually engaged in the manufacturing activities - Appellants have led evidence that they have received the inputs [from M/s. Abhay Chemicals, Jammu] along with duty paying documents and that the appellants have made payments for receipt of inputs by cheque - Further, the appellants have manufactured finished products from the inputs and cleared the same on payment of duty, which is an admitted fact - Further, Revenue has not identified any alternate source of receipt of raw materials clandestinely - Tribunal in the appeal of Abhay Chemicals along with Neeru Enterprises - 2019-TIOL-3071-CESTAT-CHD has held that Abhay Chemicals as well as other units are genuine units engaged in manufacture - Thus, the allegation of Revenue are vague and are proved wrong - Accordingly, appeals are allowed by setting aside the impugned order - The appellants shall be entitled to consequential benefit - Adjudicating Authority is directed to grant the refund of disputed cenvat credit in cash along with interest as per Transitory Provisions under CGST Act: CESTAT [para 6, 7]
- Appeals allowed: DELHI CESTAT
2020-TIOL-1411-CESTAT-MUM
Hindustan Petroleum Corporation Ltd Vs CCE
CX - Appellants during the relevant period received duty paid Motor Spirit from their Refinery and also received duty paid Ethanol at their Vashi Terminal - The MS and Ethanol are stored separately in different storage tanks at their Vashi Terminal - For clearance of EBP (Ethanol Blended Petrol), they pumped MS as well as Ethanol simultaneously in the ratio of 95% and 5% respectively by volume from the storage tanks to the road tankers/trucks, which is mixed on line - The Appellant claimed partial/full exemption from various types of duties on the clearance of EBP taking shelter of various exemption Notifications [Notification No. 28/2002 dated 13.5.2002 amended by Notification No. 16/2003 dated 1.3.2003 read with Notification No. 14/2003 and Notification No. 15/2003, further amended by Notification No. 12/2004 dated 4.2.2004] issued from time to time - Revenue's main contention is that to be eligible for exemption under aforesaid Notifications, inter alia , it is required to show that EBP conforms to the BIS 2796:2000 standards - It is the Revenue allegation that the Appellant failed to establish that the EBP cleared by them from their Vashi Terminal conforms the BIS specification - Appellants, on the other hand, claimed that the tests carried out on the samples of EBP at their Vashi Terminal even though limited to nine out of fifteen tests, indicate that the EBP confirms to the BIS 2796:2000 specification - Not accepting the contention of the appellant on the ground that since the Vashi Terminal did not have the facility to conduct all the 15 tests required for BIS 2796:2000 specification, the department issued demand notice to the appellant - Subsequently, after drawing samples of EBP, the appellant got the sample tested at their Refinery, which is equipped with the facility to test all the parameters, and produced two test reports indicating that the samples conforms the BIS 2796:2000 specification - In the first round of litigation, Tribunal had remanded the matter to the adjudicating authority to analyze and consider the said two test reports, however, the Commissioner did not accept the same on the ground that since it was conducted in 2004 and the demand was for the period April, 2003 to June, 2004, it is an attempt on the part of the appellant to show that it conforms BIS 2786:2000 specification which is an afterthought and lacks evidentiary value – appeal to CESTAT.
Held: Bench does not find merit in the reasoning advanced by the Commissioner in rejecting the test reports - At the Vashi Terminal where the duty paid MS and Ethanol were received, and after blending the same, EBP emerges, the Appellant carry out tests, albeit nine out of fifteen tests, which indicated that it conforms the BIS 2796:2000 specification and the control Order, 1998 [Motor Spirit and High Speed Diesel (Regulation of Supply & Distribution and Prevention of Malpractices) Order, 1998]; and accordingly cleared/sold to their customers like other Refineries /terminals did - Later on, being disputed by the department about the correctness of the test reports of EBP at Vashi Terminal as all the tests were not carried out on the samples, they subjected the samples tested at their Refinery and produced test certificates dated 1.6.2004 and 5.6.2004, which conform to BIS specification 2796:2000 - Therefore, the subsequent tests conducted by the appellant cannot be considered as an afterthought but it was carried out when the department did not accept the routine tests conducted on the product at Vashi Terminal - Also, it cannot be ignored and lost sight of the fact that the Appellant is a Public Sector Undertaking and on many occasions, in absence of facilities at Govt. Laboratories, the tests conducted in such well equipped laboratories are accepted by the department for classification purposes under the Tariff Act - Thus the test reports on EBP at Vashi Terminal cannot be brushed aside unless contrary test result is produced by the Revenue - Bench also takes note of the argument that even though MS blended with Ethanol sold from other Terminals in Maharashtra, no objection was raised by the Department nor any notice was issued to other terminals proposing denial of benefit of exemption on the ground that the EBP did not conform to BIS specification 2796:2000 - It is evident that the Appellant had complied with condition of the Exemption Notifications i.e. the EBP at Vashi Terminal conformed the BIS specification 2796:2000, hence the benefit cannot be denied to them: CESTAT [para 11 to 14]
CX - Provisions of Section 11D of CEA, 1944 have to be read along with other provisions and it is observed that only where any amount is collected as representing as duty of excise then only it is to be credited to the Government - In the present case, the Revenue could not show that the appellant, after blending ethanol with duty paid motor spirit collected separately, mentioning the duty on ethanol in the invoices, but not paid to the Government - Therefore, Section 11D of CEA, 1944 cannot be said to have been attracted - impugned order is set aside and appeal is allowed with consequential relief: CESTAT [para 17 to 19]
- Appeal allowed: MUMBAI CESTAT
CUSTOMS
2020-TIOL-1582-HC-MAD-CUS
ACC Vs Chang Sic
Cus - Petition has been filed by the Assistant Commissioner of Customs challenging the order of Judicial Magistrate, Special Court for Customs, Alandur, Chennai directing the petitioner to return the passport of the respondent herein on certain conditions.
Held: Bench observes that the order is challenged only on the ground that if the passport is returned to the respondent, he will flee from India and there is possibility of abscond and he will not return to India for investigation; that he will escape from the clutches of Court and abscond - The respondent came to India by ETA business visa - His entry was on 28.11.2019 and the permission to stay expired on 28.04.2020 – Therefore, his stay at India became illegal under Section 14 of Foreigners Act without Registration Request to FRRO, Chennai prior to valid e-visa period, namely 25.04.2020 - Since the resoibdebt was arrested and his passport was seized, he was not able to register his request for extension of his visa at FRRO, Chennai - That apart, the offence registered against the respondent are not related to the passport of the respondent, therefore, the Judicial Magistrate, Special Court for Customs, Alandur, Chennai rightly ordered to return his passport on certain conditions. - However, this Court imposes further conditions - With the said directions, Criminal Original Petition is disposed of: High Court [para 7]
- Petition disposed of: MADRAS HIGH COURT
2020-TIOL-1581-HC-DEL-CUS
Great India Trading Vs PR CC
Cus - Import of Dry Dates - Initially there was a dispute about the assessable value, the duty and the country of origin of the goods etc. - In the earlier round of litigation by these petitioners regarding provisional assessment, an order was passed for provisional assessment to be done, and the writ petitions were disposed of - now the Orders-in-Appeal dated 04.09.2020 have been passed in all the aforesaid three matters in respect of aforesaid bill of entries and the Orders-in-Original have been modified to some extent for provisional assessment - petitioners contend that the respondents are not complying with the aforesaid Orders-in-Appeal, whereas the respondents contend that the aforementioned conditions have not been complied with by the petitioners.
Held: Writ petitions are disposed of with the direction that, if the three conditions are complied with by these petitioners, namely the bonds are given, the bank guarantees are given and the phytosanitary certificates are given to the authorities concerned, the goods in question shall be released by the respondent authorities within a period of one week from the date of receipt of the same - petitioners shall cooperate with the respondent authorities during the investigation - Writ petitions are disposed of: High Court [para 5 to 7]
- Petitions disposed of:DELHI HIGH COURT
2020-TIOL-1410-CESTAT-MUM
VKC Nuts Pvt Ltd Vs CC
Cus - Assessee had imported 794 bags of In-shell Walnut and claimed exemption under Notfn 98/2009-Cus on the strength of DFIA against import item of 'dietary fibre' under SION E5 - Post clearance of said In-shell walnuts, Customs authorities seized 791 bags lying in godown of Hemkunt Agro Care Private Limited, on the belief that they are liable for confiscation as the benefit of duty exemption was wrongly claimed - The imported In-shell walnuts are not liable for confiscation and the exemption claimed by assessee appears to be correct in view of the judgement of Madhya Pradesh High Court in M/s. Global Exim and the order of the co-ordinate Bench of Tribunal in M/s. Uni Bourne Food Ingredients LLP - It has been held in the said decided cases that In-shell Walnut is allowed to be imported against the DFIA issued for export of assorted confectionery and biscuits under SION E1 and E5 respectively as input items namely, Nut and Nut products, relevant food flavour, flavouring agent/flavour improvers, dietary fibre and fruit/cocoa powder - However, the ratio of judgment in case of Global Exim was held to be inapplicable to the facts of the present case by Commissioner on the ground that the said judgment delivered by Madhya Pradesh High Court was accepted by department and not appealed against on the monetary limit fixed by the CBEC - With regard to the precedential value of decision of Tribunal in M/s Unibourne Food Ingredients LLP , the Commissioner has held that such order of Tribunal has not been accepted and the department is in the process of filing an appeal before the High Court of Telangana - Further, the technical opinion furnished by Joint Director, JNCH Lab, opining that walnuts may be used of source of dietary fibres in the manufacture of Biscuits/Cookies and confectionery was not discussed by Commissioner in impugned communication - Thus, in order to meet the ends of justice as an interim measure, the impugned communication directing the assessee for execution of Bond/Bank Guarantee and submission of undertaking for payment of future adjudged dues should be stayed till final disposal of case through proper adjudication process - The impugned communication/order is set aside with direction to the department for unconditional release of seized goods - The authorities are directed to return the bond and bank guarantee furnished by assessee: CESTAT
- Appeal allowed: MUMBAI CESTAT | |
