2021-TIOL-417-CESTAT-MAD

Origin Learning Solutions Pvt Ltd Vs CST

ST - Appellants are engaged in providing Information Technology Services and are also exporting the same - Refund claim u/r 5 of Cenvat Credit Rules, 2004 for the period July 2013 to September 2013 was allowed by the original authority but in Revenue appeal, the Commissioner (Appeals) set aside the order and held that the refund sanction is erroneous - Appeal to CESTAT - Appellant submits that the refund was claimed of the credit availed of the service tax paid on input services; that they had discharged the said service tax on input services under reverse charge mechanism but although the availment of credit was properly accounted, they omitted to mention the same in their ST-3 returns; that on this ground the department had filed appeal and the refund was denied. 

Held: The department does not have a case that the appellants are not eligible for the credit - However, the credit is being denied merely for the reason that the same was not reflected in the ST-3 returns - The services having been exported, the service tax paid on the input services used for export of services should be refunded to the appellants as per rule 5 of Cenvat Credit Rules, 2004 - The appellants have properly accounted in their books of account and not mentioning the credit availed in ST-3 returns is only a procedural lapse, which can be condoned - Appellants are eligible for refund as claimed - Impugned order is set aside and appeal is allowed with consequential relief: CESTAT. [para 5, 6]

- Appeal allowed: CHENNAI CESTAT

2021-TIOL-416-CESTAT-AHM

NJ Devani Builders Pvt Ltd Vs CST

ST - The issue relates to differential duty demand due to denial of abatement of 76% as provided under various Notification on the ground that the appellant had availed Cenvat credit in respect of Input Service - The same issue for previous period in appellant's own case came before this Tribunal and this Tribunal has held that the appellant is entitled for abatement Exemption Notification subject to reversal of Cenvat Credit - This very order was challenged before High Court wherein vide order 2020-TIOL-1672-HC-AHM-ST the High Court set aside the Tribunal's order as well as the SCN raising the demand on the ground that the service falls under works contract service and demand was raised under Commercial or industrial construction service - Considering the judgment passed by High Court, since the same issue involved in the present case and there is only difference of period, the ratio of High Court Judgment is squarely applicable in the present case - Accordingly, the demand as well as the impugned order is set aside: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

2021-TIOL-415-CESTAT-KOL

Madhura Ingots And Steel Company Pvt Ltd Vs CCGST & CE

CX - The appellant is engaged in manufacture of M.S. Ingots on which Central Excise duty is being paid - SCN was issued for proposing denial of CENVAT credit in respect of seven invoices on the ground that the dealers never supplied the goods as mentioned in the invoices - It is the case of appellant that CENVAT credit has been unjustifiably denied to them merely on the basis of communication made by DGCEI enclosing the statements made by persons whose cross-examination have not been allowed - No other evidence is available on record but the statements which too have not been allowed to be examined - In the absence of prosecution of said persons, the appellants cannot be deprived in any manner - On perusal of adjudication order, the request for cross-examination of persons whose statements have been relied upon has been turned down on the ground that despite several opportunities given by Department, those persons failed to turn up before the authorities - The reasons assigned by authorities below to reject cross-examination is clearly unsustainable in legal parlance for the obvious reason that no adverse inference can be drawn against appellant whose statements are to be relied by Revenue without ascertaining the veracity in absence of cross-examination - The impugned orders cannot be sustained and hence, the same are set aside: CESTAT

- Appeals allowed: KOLKATA CESTAT