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2021-TIOL-543-CESTAT-DEL
Satkar Logistics Vs CST
ST - The appellant provides cargo space to the customers who are importers/exporters of goods - They pays charges for space booking to different Shipping Lines/ Airlines and later on sells such space to the exporters/ importers at a slightly higher amount - The difference between the amount paid by appellant to the Shipping Lines/Airlines and the amount recovered by appellant from the customers (exporter/importers), is called the "mark-up" - SCNs were issued to the appellant demanding service tax with interest on the mark-up value - The Division Bench accepted the contention advanced on behalf of appellant in earlier decision that the appellant was only trading in space and was not providing any service - The Division Bench also noted that the issue involved was covered by decisions of Tribunal in Greenwich Meridian Logistics (India) Pvt Ltd. 2016-TIOL-869-CESTAT-MUM and Karam Freight Movers 2017-TIOL-907-CESTAT-DEL - The post negative list w.e.f. 01.07.2012 was also involved in the appeal that was decided - Thus, following the said decision of Tribunal, the impugned orders passed by Commissioner with penalty and interest are set aside: CESTAT
- Appeals allowed: DELHI CESTAT
2021-TIOL-542-CESTAT-AHM
Krishna Petrochemicals Vs CC
Cus - This appeal was filed against impugned order which was passed against speaking order of Assistant Commissioner of Customs - As regard the earlier order dated 04.03.2010, appellant had filed the appeal against the assessment of Bill of Entry - In the said O-I-A though some observation was made by Commissioner (Appeals) but he has dismissed the appeal as not maintainable - Once the appeal was dismissed as non maintainable no issue on merit stood decided - The appeal was filed against the impugned order which was passed in the appeal filed against the OIO - Therefore, the appeal before Commissioner (Appeals) was filed under legitimate right of appellant - It is a fact that the appellant has not filed any appeal before CESTAT against the Commissioner (Appeals)' order dated 04.03.2010 therefore, finding of Commissioner (Appeals) in the impugned order on this point is baseless - As regard time limitation is concerned, appellant was not given proper opportunity to explain the delay in filing an appeal - Accordingly, the Commissioner (Appeals) is directed to decide the issue of valuation as well as delay afresh, after giving opportunity to the appellant: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2021-TIOL-541-CESTAT-DEL
Case New Holland Construction Equipment India Pvt Ltd Vs CCE
CX - The appellant is in appeal against impugned order disallowing CENVAT Credit taken and utilized by them - Appellant claims that it is eligible for CENVAT credit on in-warranty repair and maintenance services under 'means' clause of definition of 'input service' in Rule 2(l) of Cenvat Credit Rules, 2004 which requires the service to be "used, directly or indirectly, in or in relation to the manufacture of final products" - The issue, therefore, that arises for consideration is whether CENVAT credit of service tax paid by appellant on 'repair and maintenance services' provided by dealers for fulfilling the warranty obligations of appellant has been denied for good and valid reasons - This precise issue was examined by Tribunal in Carrier Airconditioning & Refrigeration 2019-TIOL-690-CESTAT-DEL and Samsung India Electronics 2017-TIOL-05-CESTAT-MUMBAI - The Tribunal in the decision dated 24.11.2017 in own case of appellant, distinguished the earlier binding decisions of Tribunal on a mistaken belief that an amendment had been made in a definition of "input service", whereas the 'means' clause of definition had come up for consideration before Tribunal and it had not been amended - The Division Bench proceeded on an assumption that the benefit of CENVAT credit was being taken by appellant therein either under the 'includes' clause or 'excludes' clause of definition of 'input service', which portion had been amended whereas reliance had been placed by appellant on decisions which had interpreted the 'means' clause of definition of 'input service' - It was, therefore, clearly a case where that part of the statutory provision that should have been applied was ignored and that part of statutory provision that was not relevant to controversy was considered - When CENVAT credit was sought to be justified by appellant under 'means' clause, for which reliance was placed on the earlier decisions of Tribunal, there was no necessity to examine whether it can be justified under the 'includes' clause or 'excludes' clause of the definition - The decision rendered by Tribunal on 24.11.2017 is, therefore, clearly per incuriam - It is, therefore, considered appropriate to follow the three decisions rendered by Tribunal in Carrier Airconditioning & Refrigeration, Honda Motorcycle and Samsung India Electronics in preference to the later decision rendered on 24.11.2017, which has distinguished these three decisions on a non-existent ground - The appellant correctly availed CENVAT credit on the amount of service tax paid for services provided by dealers to the customers on behalf of appellant for fulfilling the warranty obligations of appellant - The impugned order passed by Commissioner (Appeals), therefore, cannot be sustained and is set aside: CESTAT
- Appeal allowed: DELHI CESTAT |
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