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2022-TIOL-08-CESTAT-MUM
Oerlikon Balzers Coating India Pvt Ltd Vs CC
Cus - The issue in dispute pertains to three agreements against which payments were to be made to overseas entity in terms of 'net sales' of final product - According to appellant, none of the agreements had incorporated condition which would validate the invoking of Rule 10 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 - It was also pointed that they had furnished the value of goods imported from related supplier as also the value of those from unrelated suppliers and, for each year between 2012-13 and 2015-16, ranged from 44.42% to 45.07% despite which the first appellate authority has, by referring to Rs. 9.80 crores of import from related suppliers, held those to be 87.5% of procurement - The decision of first appellate authority has been based on foundations which remain unverifiable and is of indeterminate origin - It would be appropriate for the matter to be heard afresh by the first appellate authority for decision after consideration of all submissions made by appellant: CESTAT
- Matter remanded: MUMBAI CESTAT
2022-TIOL-07-CESTAT-AHM
Ultratech Cement Ltd Vs CCE & ST
CX - The appellant for their employee either provided accommodation in their residential colony and in some cases where the employees are residing outside factory, house rent allowance given - Case of department is that since the appellant have provided residential quarters free of rent to their employee, renting of residential quarter is exempted service and accordingly on the value of such service which department calculated by taking a deemed rent demanded 6%/7% of value of such service as deemed consideration under Rule 6(3) of Cenvat Credit Rules, 2004 - Appellant is not receiving any value by providing rental house to their employee within the premises - Since no value is flowing from employee to appellant there is no question of calculating 6%/7% on the value which does not exist - Since the house were provided to employees who are engaged in manufacture of final product hence ultimately all the activities get absorbed in manufacture of final product which is cleared on payment of duty - It is a settled law that in respect of removable of waste and scrap, refuse or by-product, Rule 6 ibid is not applicable as held by Bombay High Court in case of Hindalco Industries Limited and the said judgment has been upheld by Supreme Court - Even on scrap, demand of 6%/7% in terms of Rule 6(3) ibid is not sustainable - Demand raised under Rule 6(3) ibid is not sustainable, accordingly, the impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-06-CESTAT-AHM
Encore Natural Polymers Pvt Ltd Vs CCE
CX - The appellant had availed Cenvat Credit in respect of construction of water tank and pump room - Since this construction was done in existing factory to expand the facility of existing factory therefore, it will clearly fall under Modernization and Renovation of factory - This is not a case where a new factory was set up which excluded from definition of input service - Since nature of construction done in factory is of Renovation and Modernization of existing factory which is clearly covered under inclusion clause of definition of input service, therefore, appellant was entitled for Cenvat Credit of such input service - Since the Cenvat credit itself is admissible, same is not recoverable, consequently, neither any interest can be demanded nor any penalty can be imposed, therefore, demand of interest and penalties is clearly illegal and incorrect - Hence, impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-05-CESTAT-BANG
Adithya Builders And Developers Vs CCT
ST - The appellant is engaged in selling of land, upon providing adequate infrastructure facilities - The scope of work and time limit for completion of project under said agreement were further extended by two more agreements - For carrying out assigned task, appellant was paid the amount as per norms prescribed in agreements - Department views that the activities undertaken by appellant in pursuance of agreements should fall under taxable category of "site formation and clearance, excavation and earth moving and demolition" service defined under Section 65(97a) of Finance Act, 1994 (up to 30.06.012) and thereafter, from 01.07.2012 under category of "Services", as defined under Section 65B(44) ibid - On examination of available records, it is found that the appellant had only undertook activities for completion of phase I of project and did not undertake any activities concerning phase II and phase III - Appellant had merely procured land and paid Government fees - This activity, in no way, can be considered as a taxable service under category of "site formation and clearance, excavation and earthmoving and demolition service" inasmuch as the work assigned under agreement for completion of phase I project do not attract any of the clauses itemized in definition provided under Section 65(97a) ibid - Thus, the activities undertaken by appellant pursuant to agreements entered into with the society will not fall under taxing net for levy of service tax up to the period 01.07.2012 - Similarly, services provided by appellant would also not fall under purview and scope of definition of "service" as per Section 65B(44) ibid for period post 01.07.2012, onwards inasmuch as such definition clause has specifically excluded the activity of transfer of title in goods or immoveable property by way of sale - Hence, mere procurement of land from the farmers and getting necessary approval from government authorities will not create a tax liability under taxable category of "service" - It is a settled legal position that levy of service tax depends on service rendered, but not on the basis of agreements which were never fulfilled and no payment was received by service provider - No merits found in impugned order and as such, confirmation of service tax demand, interest thereon and imposition of penalties cannot be sustained - Therefore, impugned order is set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT
2022-TIOL-04-CESTAT-CHD
CIIS Educational Services Society Vs CCGST
ST - The appellant is in appeal against impugned order wherein demand of service tax has been confirmed on account of short levy or not paid for the period 2012-13 and 2013-14 by invoking extended period of limitation - On going through the audit report, it is found that no such objection of short-payment or non-payment of service tax has been raised during audit, during argument and admittedly, the SCN has been issued on 21.04.2017 which is beyond the period of limitation of one year, therefore, demand cannot be raised against appellant as there is no suppression on the part of appellant as audit took place on 02.04.2014 itself - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT |
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