2021-TIOL-503-CESTAT-MAD

Trimble Information Technologies India Pvt Ltd Vs CGST & CE

ST - The issue to be decided is denial of refund claim under Rule 5 of CCR, 2004 of unutilized credit on inputs and input services used for providing output services - With regard to denial of CENVAT Credit on Freight Charges, appellant has claimed that said charges were incurred on a day-to-day basis for carrying inputs used for providing output services and these are the charges paid to vendor for inward transportation - In any case, Freight Charges are included in inclusive part of definition of “input service” under Rule 2 (l) of CCR, 2004 and hence, denial by lower authorities is bad - On the Plant Rental Charges, it is seen that since services of renting of equipment for organizing events are allowed as valid input service, the same logic should apply here and accordingly, in principle, the denial of CENVAT Credit is held bad - A perusal of O-I-O as well as impugned O-I-A makes it clear that there is no specific discussion on this issue - In view of this, this issue is remanded to the file of Adjudicating Authority who shall verify all such details that may be furnished by appellant and then pass appropriate order - With regard to Cleaning Charges, in the cases of M/s. Alliance Global Services IT India Pvt. Ltd. 2017-TIOL-1271-CESTAT-HYD and M/s. HCL Technologies Ltd. 2015-TIOL-1977-CESTAT-DEL it has been held that cleaning services are essential for providing output services and therefore, the same would qualify as input service and hence eligible for refund - By following the same, denial of CENVAT Credit on this service is bad - On Pest Control Charges, appellant has claimed that this issue is akin to Cleaning Services, which is very much essential to keep the business premises safe and clean and hence, the denial is clearly uncalled for - With regard to denial of CENVAT Credit in respect of payment made under RCM, appellant submits that the issue is no more res integra as the same is settled by decisions of various High Courts/Tribunals - Following the same, issue is remanded to the file of Original Authority who shall verify the payment: CESTAT

- Appeal partly allowed: CHENNAI CESTAT

2021-TIOL-502-CESTAT-MAD

Eshakti.Com Pvt Ltd Vs CGST & CE

ST - The issue relates to refund of Service Tax paid on input services - Appellant is an exporter of readymade garments; he would get the garments manufactured/tailored through job workers located in and around Gurgaon, which were sold online i.e., exported by courier from Delhi airport to their customers, mainly in U.S.A. - Most of the services which are held to be not eligible for refund for the reason of them being not used after the production stage were such that, as explained by appellant, used in places located beyond the factory or the place of manufacture, like tailoring units, corporate office, clearing and forwarding services, advertisement, legal and accounting services which were obviously not located within the factory premises - Thus, the reasons attributed by Adjudicating Authority cannot be sustained since there is no doubt that these services were not used in factory of production but in any other place or premises of production or manufacture of the said goods, for their export - Appellant satisfies the conditions of Notfn 41/2012 ibid., as substituted vide Notfn 01/2016 ibid., and therefore, the denial cannot be sustained.

The second reason attributed for rejection of refund from the impugned order in respect of courier bills, is for want of corelation of such bills with the exports/shipping bills - Appellant had submitted the Chartered Accountant Certificate which had specifically corelated the bills with relevant exports/shipping bills, which aspect has not at all been considered by lower authorities - This issue requires re-adjudication, thus the matter is restored to the file of Adjudicating Authority, who shall cross-verify with the help of appellant as regards corelation is concerned and then pass an appropriate order in accordance with law - The last disallowance is the rejection of claim of refund of Swachh Bharat Cess and Krishi Kalyan Cess - It is the settled position of law that these cesses form part of Service Tax paid on various input services used in or in relation to the export of goods - This issue is also sent back to the file of Adjudicating Authority: CESTAT

- Appeals partly allowed: CHENNAI CESTAT

2021-TIOL-501-CESTAT-DEL

Avtec Ltd Vs CCGST & Excise

CX - The appellant is engaged in manufacture of engine and transmission elements and parts - During audit, it was observed that the appellant had taken Cenvat credit of service tax paid on outward transportation of finished goods - It appeared to Revenue that the transportation of goods is beyond the place of removal, on the basis of challans for the period under dispute - Appellant pointed out the terms and conditions of sale between them and their buyer M/s General Motors India Pvt. Ltd. - On perusal of excise invoices issued by appellant to their buyer, it is evident that freight is not a part of sale price and freight has been shown separately after charging excise duty on ex-factory price - Thus, under Sale of Goods Act, in view of the terms of sale between the parties, property in goods is transferred on the event of goods being delivered to transporter by the seller for delivery to the buyer, unless otherwise so stipulated in the contract Accordingly, the place of removal is factory gate of appellant - Thus, appellant have been rightly denied Cenvat credit on merits - As regards to limitation, admittedly appellant have been filing regular returns with Department - It is evident that the issue was highly debatable, and open to more than one interpretation - Accordingly, there is no mala fide on the part of appellant in having taken credit, which has been duly recorded in the books of account ordinarily maintained in normal course of business - The extended period of limitation is not invokable - Accordingly, the demand for the extended period of limitation is set aside - All penalties imposed are also set aside: CESTAT

- Appeal partly allowed: DELHI CESTAT

2021-TIOL-500-CESTAT-MUM

Remi Edelstahl Tubulars Ltd Vs CCE

CX - The Commissioner (A) vide impugned order has dismissed the appeal filed by appellant on the ground of limitation - The appeal was not preferred by appellant before office of Commissioner (A) within the stipulated time frame and also within the condonable period prescribed in the Statute - Since the Appellate Authority is a creature under the statute, the statutory mandates are strictly required to be complied by him - No infirmity found in the order passed by Commissioner (A): CESTAT

- Appeal dismissed: MUMBAI CESTAT

2021-TIOL-499-CESTAT-BANG

Kelhome Impex Peedukayil Vs CC

Cus - The appellant filed the Bill of Entry and declared the goods as Hand Mixer - Department raised the objection that the said goods are subject to mandatory BIS compliance and the Bill of Entry was not certified by BIS authorities and therefore, the same cannot be cleared for home consumption and subsequently the goods were ordered to be confiscated and allowed to be reexported on payment of fine - There is no dispute on the identity or declared description of goods and the respondent has not held that the appellant had wrongly declared the description for the purpose of overcoming BIS standard and there is no finding in impugned order that what is under import is Handheld blender and not Handheld Mixer as declared by appellant - Without such an express findings, the conclusion drawn by responded that the goods are covered by BIS Kitchen Appliances (Quality Control) Order is not sustainable - From the perusal of various standards as mentioned in BIS Kitchen Appliances Order, it is found that Handheld Mixer and the Handheld Blender are entirely different products having different specifications, mechanisms, performance, speed, power and even meant for performing different tasks - Perusal of those differences clearly shows that the language of said standard itself would draw a clear distinction between Handheld Blender and Handheld Mixer - Appellant has given clear distinctions of tasks that can be performed by Hand blender and Hand Mixer - The Handheld Blenders and Handheld Mixers are two different products and having different specifications, mechanisms, performance, speed, power and even built for performing different tasks - The impugned goods are not liable to have a BIS compliance as mentioned in BIS Kitchen Appliances (Quality Control) Order, 2018 as the same is not applicable in the impugned goods and therefore the impugned order is set aside - The Customs authorities are directed to release the goods on payment of appropriate customs duty which the appellant has already paid as per his submissions: CESTAT

- Appeal allowed: BANGALORE CESTAT