2020-TIOL-1648-CESTAT-HYD

Raja Rajeswai Builders Vs CCT

ST - The assessee is a builder engaged in construction of residential flats and are registered with service tax department under construction of residential complex service and commercial use or exploitation of any event service - They entered into joint development agreement with owners of residential plots to construct residential building complexes - They had filed a declaration under VCES, 2013 for payment of service tax under residential complex services on the land owner's share of constructed area in residential projects undertaken by them - The VCES had provision whereby the Commissioner, if he has reasons to believe that the declaration made was substantially false, may serve a notice to the declarant in respect of such declaration - Under this provision, a SCN was served upon assessee seeking to reject their classification of service under construction of residential complex service and instead classifying the same under Works Contract Service and after applying the Works Contract Composition Scheme demanding differential duty both on the proposed payment for land owner's share as well as payment of service tax on the builder's share - The adjudicating authority must be given an opportunity to examine the case in the light of order in the case of Vasantha Green Projects 2018-TIOL-1611-CESTAT-HYD and PNR Infra India Pvt Ltd with respect to the land owner's share of the flats - Letter F.No.332/22/2015-TRU of TRU regarding classification of work undertaken - To examine if there is any provision in the Works Contract Rules, 2007 whereby the department can, in the absence of any request from the assessee, impose the composition scheme or calculate the amount of service tax based on it - Leaving all issues open, without passing any remarks on the merits of the case, the matter is remanded to the adjudicating authority to examine afresh: CESTAT

- Matter remanded: HYDERABAD CESTAT

2020-TIOL-1647-CESTAT-CHD

Dujodwala Resins Terpens Ltd Vs CCE & ST

CX - The Revenue has filed an application for rectification of mistake in 2020-TIOL-285-CESTAT-CHD - On going through the order passed by Tribunal, it is found that the order has been passed after due consideration of submission made by both sides alongwith written submissions - Moreover, the assessee has claimed that the amount of Rs. 18,28,984/- has been debited on various dates and also intimated to the department through various letters with regard to adjustment of amount of Rs. 18,28,984/- - The said fact has not been controverted by Revenue during the course of argument - Moreover, it has been recorded by Tribunal that no SCN has not been issued to assessee for appropriation of said amount paid by them - Further, in final order, this Tribunal has taken on record the letter dated 10.08.2007 which is a reply to the letter dated 12.06.2007 demanding interest on the amount of Rs. 36,57,968/- for delayed/reversal or debited of the amount - Said fact clearly indicate that the assessee has reversed/deducted or adjusted a sum of Rs. 36,57,968/- which is the subject matter of the refund claim in hand - Further, it has been recorded by Tribunal that no proof has been produced by Revenue that the adjustment/rejection of amount in refund claim has been communicated to the assessee - In fact, the Revenue claimed that it is rejection of refund claim in question while entertaining the refund claim in 2005 - The Refund claim in question was not the subject matter of said refund claim which was entertained by adjudicating authority while sanctioning the refund claim for the month of February, March and September, 2005 - There is no mistake apparent on record while passing the order by this Tribunal, the Revenue seeks to review of the order which is not permissible in law - Therefore, the application for rectification of mistake deserves no merit, hence rejected: CESTAT

- Application rejected: CHANDIGARH CESTAT

2020-TIOL-1646-CESTAT-KOL

CRI Ltd Vs CC

Cus - The appeal is filed against impugned order confirming the demand of Special Additional Duty (SAD) along with applicable interest and equivalent penalty - The issue involved is, whether the benefit of Notfn 45/2005 as amended granting exemption from SAD is available in respect of "Blanks" cleared from "SEZ Unit" of assessee by way of stock transfers to its "DTA Unit" - It is undisputed that the clearance of blanks to "DTA" is not by way of sale and that the underlying goods are not exempted by State Government from the levy of VAT - The adjudicating Authority has himself accepted that such blanks attract VAT @ 5% as Ball Pen parts and the same is also evident from a sample Tax Invoice - Therefore, the proviso is not attracted at all - There is no exemption from VAT/Sales Tax but just a deferral of VAT/Sales Tax liability until the sale takes place - The issue is squarely covered by decision in case of Serum Institute of India 2019-TIOL-1168-CESTAT-MUM and GE India 2013-TIOL-01-ARA-CUS - The impugned order itself records that the subject goods as "ball pen parts" were generally exempted from central excise duty under S. No. 325(ii) of Notfn 12/2012 - Even on the point of limitation the demand has to fail as the BOE's were countersigned by the customs official prior to clearance of goods from the Falta, SEZ - Therefore, the department was aware that the goods were cleared by way of stock transfers not attracting any VAT/Sales Tax - The Notice was issued only after the expiry of the normal period of limitation of 1 year and could not revive the demand, which had got time barred - The decision of Tribunal in Baccarose Perfumes 2012-TIOL-2202-CESTAT-AHM and Aveco Technologies 2018-TIOL-1150-CESTAT-HYD fully supports the case of assessee - Coming to the issue of limitation, the bills of entry were filed and assessed by customs officers incharge of the SEZ; the issue involves interpretation of a notification; therefore, no suppression and wilful misstatement with intent to evade payment of duty can be alleged and extended period cannot be invoked - The imports being undertaken for the period April-December 2014, normal period, as per the provision of law existing on that day, ends in October, 2015 - Therefore, the issue is beyond normal period by the time the amendment came in to force - Therefore, department cannot issue SCNs for the normal period, of two years also - Hence the impugned order is set aside, and the appeal is allowed on merits and limitation: CESTAT

- Appeal allowed: KOLKATA CESTAT