2021-TIOL-228-CESTAT-MAD

Hamid Basith Vs CC

Cus - The appeal has been filed against the order passed by Commissioner (Appeals) who rejected the appeal on the ground of being time-barred - The department contends that the O-I-O was sent on 18.11.2019 to the address of the appellant and that it was received by appellant on 20.11.2019 - To support this contention, the acknowledgement card of registered post has been produced - On perusal of this document, it is seen that a person named S. Mujahian has signed and received the registered post - The department is not able to explain who is Shri S. Mujahian or how he is related or known to the appellant - The appellant has denied receipt of Order by registered post and has affirmed this by affidavit - When a letter is sent by registered post a presumption is to be drawn that it has been received by addressee - However, such presumption is a rebuttable presumption - When the appellant has affirmed the negative by filing an affidavit, the burden shifts on the department to establish as to why they served the registered letter to Shri S. Mujahian - The only conclusion that can be arrived is that the order is served on some person other than the appellant - When the registered post is received by some person unknown to the appellant it cannot be said that the order is served or communicated to the appellant - The appellant has obtained a copy of O-I-O on 16.12.2019 - The appeal then has to be filed within 60 days from 16.12.2019 - The appellant has filed the appeal before Commissioner (Appeals) on 9.3.2020 - So when computed from 16.12.2019, the appeal has been filed within the time limit condonable by Commissioner (Appeals) - The appellant has filed appeal along with application to condone delay stating that he was sick - The rejection of appeal on the ground of time-bar cannot sustain, same is set aside - Matter remanded to the Commissioner (A) who shall consider the application for delay and dispose of the appeal on merits: CESTAT

- Matter remanded: CHENNAI CESTAT

2021-TIOL-227-CESTAT-DEL

Kajaria Ceramics Ltd Vs CCGST

CX - The appellant is engaged in manufacture of ceramic tiles - It appeared that the appellant have wrongly availed cenvat credit of service tax paid in respect of advertisements published through the service provider viz. M/s. Crayons Advertising Ltd. and have distributed by their ISD challan - It also appeared that the said service provider is an agent of Print Media and just booking/canvassing for advertisements for print media on commission basis - Providing services to print media by Crayons Advertisement Ltd. appears liable to service tax under 'Business Auxiliary Services' and not the 'Advertising Agency Services' as defined under Section 65(105)(e) of FA, 1994 and further clarified under CBEC's Circular 96/7/2007-ST - It further appeared that Crayons is receiving commission towards BAS services from Print Media whereas they have charged service tax from the appellant under advertising services - SCN is wholly mis-conceived as the Department has attempted to classify the service in dispute in the hands of the receipt of service - It has been held by Supreme Court in case of Sarvesh Refractories (P) Ltd. 2007-TIOL-233-SC-CX that cenvat credit cannot be denied questioning the assessment of service classification of the service provider, at the end of the recipient of service - Admittedly the appellant have received the input service and have paid for the invoice so raised by provider including the amount of service tax - In terms of Rue 2(l) of CCR, the appellant is entitled to take cenvat credit of any input service, which is received, by whatever name called, which is utilised in the manufacture of dutiable goods, or providing of taxable output service - Accordingly, the impugned order is set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2021-TIOL-226-CESTAT-MAD

Dynamic Techno Medicals Pvt Ltd Vs CCGST & CE

ST - The appellant filed refund claim of service tax paid on development charges to SIPCOT - As per section 104 of Finance Act, 1994, service tax on development charges is exempted for the period 1.6.2007 to 21.9.2016 - The refund claim though dated 26.9.2017 was received in the office of refund sanctioning authority on 9.10.2017 - Same was rejected - A refund claim as per section 104 has to be filed within six months from the date when the Bill receives the assent of the President of India - Such assent was received on 31.3.2017 - Thus, the refund claim ought to have been filed on or before 30.9.2017 - However, the refund claim is filed on 9.10.2017 - When the service tax has been collected by SIPCOT, the appellant would require necessary documents from SIPCOT to file the refund claim - It is also to be noted that original authority in the first round of proceedings has rejected the refund claim stating that it is for SIPCOT to make a refund claim - From this, it is clear that there was a confusion as to who has to file the refund claim and therefore this has led to the delay in filing the refund claim - In the case of Teknomec 2019-TIOL-3737-CESTAT-MAD , this Tribunal held that when claim has been filed within reasonable time from the date when appellant received intimation from SIPCOT, the refund has to be granted - Following the decision of Tribunal, rejection of refund claim is unsustainable - The impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT