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2020-TIOL-1611-CESTAT-MUM
Sonata Information Technology Ltd Vs Pr.CCE & ST
ST - CENVAT - The appellant was held as liable to pay tax, under section 66 A of Finance Act, 1994, on the consideration for procurement of ‘information technology software service' in January 2012 and in February 2012 - Tax paid by utilising CENVAT credit which utilisation is held incorrect by the impugned order - appeal to CESTAT.
Held: Once appellant is held to be the person liable to service tax under reverse charge basis, he becomes provider of taxable service under Rule 2(r) and consequently becomes output service provider under Rule 2(p) of the Cenvat Credit Rules - utilisation of CENVAT credit for payment of tax is proper - Issue settled by the decision GTL Infrastructure Ltd.- 2019-TIOL-1370-HC-MUM-ST - Impugned order is not consistent with law - Same is set aside and appeal is allowed with consequential relief: CESTAT [para 4 to 6]
- Appeal allowed: MUMBAI CESTAT
2020-TIOL-1610-CESTAT-MUM Gateway Terminals India Pvt Ltd Vs CC
Cus - The application under section 129B(2) of Customs Act, 1962 has been preferred by assessee for Rectification of Mistake apparent on the face of record in Final Order dated 24.10.2019 - From the plain reading of para 4.7 of impugned order, it is evident that it is the finding which has been recorded by Tribunal and it cannot be said that finding is perverse - Any finding of fact or finding in law recorded cannot be an error apparent on record, which can be rectified in terms of Section 129 B (2) of Customs Act, 1962 - Assessee in their application stated that while passing the order, Tribunal has referred to certain decisions without establishing the relevance of those decisions - They referred to para 4.4 and have stated that Tribunal has relied upon the decision of Bombay High Court in case of Valecha Engineering Ltd , without stating how the same is applicable in their case, and also they were not given the opportunity to argue against the same - After having considered and recorded the findings as available in the Order of Commissioner, Tribunal has referred to the decision of Bombay High Court and the other decisions to finally conclude the issue at para 4.7 - Finding of facts and law as recorded in para 4.7 cannot be brushed aside as an error apparent on record for the purpose of Section 129 B(2) - The decision in respect of power of rectification, referred by assessee will come into play only if it can be shown that there exists an error apparent on record in the impugned order - The application filed under Section 129 B (2) of the Customs Act, 1962 is dismissed: CESTAT
- Application dismissed: MUMBAI CESTAT
2020-TIOL-1609-CESTAT-KOL
Stan Commodities Pvt Ltd Vs CCGST & CE
CX - The appeal was filed by assessee on 24.09.2019, thereafter on 29.06.2020, they filed the Misc. Application praying for withdrawal of appeal since they opted under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - In view of the aforesaid written communication, Registry is directed to list the appeal for regular hearing on 28.10.2020 - The Misc. Application for withdrawal of appeal is dismissed as infructuous: CESTAT
- Appeal dismissed: KOLKATA CESTAT
2020-TIOL-1608-CESTAT-DEL
Continental Petroleum Ltd Vs CCE & ST
ST - The assessee is engaged in manufacture of lubricating oil/ grease and break oil and also in refining of waste oil - They had also set up a plant for incineration of hazardous waste arising out of the refining process of waste oil - The issue that arises for consideration is as to whether the assessee rendered "cleaning activity" services in terms of section 65 (24b) of Finance Act taxable under section 65(105)(zzzd) of the Finance Act by incinerating the waste of other industries - The first contention of assessee is that since an audit objection for the period April 1, 2011 to March 31, 2013, regarding the issue raised in SCN, was dropped by Superintendent by a letter dated January 20, 2016, the Commissioner could not have confirmed the demand - It has also been pointed out that an audit objection was at earlier raised on April 8, 2011 for the period March 2009 to December 2010, but this audit objection was subsequently dropped by Commissioner by letter dated May 16, 2012 - Thus, not only was the SCN liable to be withdrawn on the dropping of the relevant paragraphs of the audit objections, but the impugned order is also liable to be set aside on this ground - In the first instance, the Commissioner committed an error in noting that section 65 (24b) of Finance Act, which defines 'cleaning activity', was inserted w.e.f. May 1, 2011 since it was actually inserted by Finance Act, 2005 w.e.f. June 16, 2005 - The audit period was after section 65(24b) was inserted and not before it - This apart, the issue as to whether demand can be confirmed, if for the same issue the audit objection had been dropped, was considered by a Division Bench of Tribunal in M/s. Kalyan Poject Construction 2019-TIOL-3115-CESTAT-CHD and it was held that in such a situation the demand cannot be confirmed - Thus, as the audit objection had been dropped, the demand confirmed in the impugned order has to be set aside - The impugned order holds that the activity of incineration of hazardous waste is covered under 'exterminating of objects' under the definition of 'cleaning activity' - It is clear that 'exterminating of objects' covers destroying insects, rodents and other pests in respect of objects/premises - Hence, the term 'extermination' has to be in connection with activities such as fumigation; pest control or other such activities which are in the form of treatment of premises/objects against animal or pest infestation - The impugned order, therefore, erred in treating the term 'extermination' as being equivalent to 'incineration' - It would be also pertinent to refer to CBEC Circular dated July 13, 2007 which specifically provides that incineration of waste is not taxable under business auxiliary service or any other taxable service - Thus, the demand confirmed under the impugned order cannot be sustained and is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2020-TIOL-1607-CESTAT-BANG
CCE & ST Vs BESL Infra Projects Ltd
ST - Revenue is in appeal against impugned order wherein Commissioner has confirmed a demand of Service Tax against assessee under head "Commercial or Industrial Construction Services" during the period 16.06.2005 to 30.09.2007 - The Commissioner has imposed penalty under Section 78 of FA, 1994 and has refrained from imposing penalty under Section 76 ibid - Revenue is in appeal against such non-imposition of penalty - In view of the order of High Court of Kerala in Krishna Poduwal , it is found that the Department has made a case for imposition of penalty both under Section 76 & 78 of FA, 1994 - The Commissioner was categorical in holding that but for the intervention of Preventive Section of Commissionerate, the duty evasion would have remained not detected - Though the Commissioner establishes mens rea on the part of assessee refrained from imposing penalty under Section 76 - However, the courts and Tribunals have been consistently holding that separate penalties are imposable under both Sections - In view of the same, the Revenue's appeal is allowed and a penalty of Rs. 100 per day on the Service Tax confirmed on the assessee is imposed in terms of Section 76 of FA, 1994 - Member (J) is not agree with the view of Member (T) - He observed that Revenue relied on the ruling of Kerala High Court in Krishna Poduwal, (pronounced prior to Amendment in Section 78, addition of proviso w.e.f. 10.5.2008) wherein it have been held that simultaneous penalty under both the Sections 76 and 78 ibid can be imposed if the conditions for imposition are satisfied - However, Kerala High Court have also observed that the assessing officer may in his wisdom has discretionary power not to impose penalty under Section 76 where penalty under Section 78 have been imposed - The wisdom of Commissioner in not imposing penalty under Section 76, in view of penalty having been imposed under Section 78 cannot be questioned, in view of the provisions of Section 80 of FA, 1994 - Penalty is not imposable simultaneously under Section 76 and Section 78 as both the Sections are mutually exclusive dealing with different types of default - Accordingly, the impugned order is upheld - In view of the difference of opinion, the question arise for consideration by the 3rd Member is, whether penalty under Section 76 and 78 are prescribed for different type of violations and are mutually exclusive as held by Member (J) or that both the penalties can be imposed simultaneously as held by Member (T): CESTAT
- Case deferred: BANGALORE CESTAT |
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