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2022-TIOL-479-HC-MAD-ST
T Krishnan Vs Asstt. CCGST & CE
ST - Petitioners are government contractors and have challenged the impugned show cause notices issued by invoking the extended period of limitation - Entry 12 to Mega Exemption Notification 25/2012-ST granting exemption to Government Contractors providing services to the Government, Local Authorities or Governmental Authorities by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation and alteration of works specified, was removed by an amendment to the said Notification by Notification No. 6/2015-Service Tax, dated 01.03.2015 and reintroduced vide Notification No. 9/2016-Service Tax, dated 01.03.2016 as Sr. no. 12A - Demand is raised for the interregnum period.
Held: Exemption was withdrawn and re-introduced with certain conditions - The exemption is confined to a specific category of contracts entered before 01.03.2015, therefore, it is open for the petitioners to reply to the show cause notices and meet out the allegations contained in the show cause notices, taking advantage of the benefit given by the Parliament, vide Section 102 of the Finance Act, 2016 read with Notification 9/2016-ST, dated 01.03.2016 - Similarly, it is open for the petitioners to establish that part of the demand was time barred in terms of Section 73 of the Finance Act read with Rule 7 of Service Tax Rules, 1994 - The petitioners are also not without any remedy - Petitioners are, therefore, directed to give detailed replies to the respective show cause notices and participate in the adjudicatory mechanism provided under the Finance Act, 1994 - The petitioners shall file replies within a period of 45 days and the respondents shall pass appropriate orders within a period of 45 days thereafter - Petitions disposed of: High Court [para 32, 33]
- Petitions disposed of: MADRAS HIGH COURT
2022-TIOL-282-CESTAT-KOL
Maa Tarini And Company Vs CCE, C & ST
ST - Issue relates to confirmation of demand by both the lower authorities under Cargo Handling Service on the ground that the activity of transportation of minerals from the stock yard to railway siding qualifies under category of "cargo handling services" - The agreement itself provides for detailed break-up of rates for each of two activities to be undertaken by appellant - A plain reading of these rate schedules will show that the essence of contract is transportation of mineral along with loading of same in wagons - A similar issue came up for consideration before Tribunal in Hira Industries Ltd. 2012-TIOL-566-CESTAT-DEL - Since the contract is vivisectable, demand for transport work under cargo handling service cannot succeed - Also there is no counter made to the claim of appellant on payment of service tax under reverse charge mechanism by recipient on such amounts by department - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT 2022-TIOL-281-CESTAT-DEL
KEI Industries Vs CGST
CX - Appellant had sought to debond and was permitted to debond - The debonding was allowed after the Jurisdictional Assistant Commissioner has confirmed in writing that no Central Excise or Customs Duty are pending from appellant and they have been duty paid - The audit objection raised by CERA does not indicate how it had come to conclusion that there was a short payment of Rs. 139.58 Lakhs and that the appellant had cleared goods in excess of permission granted by Customs Authorities - There is no evidence either in audit report or in SCN, which was issued on the basis of audit report - The impugned order passed by Commissioner faithfully reproduces observations and directions of Tribunal in impugned order - However, in entire order, the fundamental question as to how much was cleared in excess of permission and whether duty was paid or not on the goods cleared in excess and what is the basis for coming to such a conclusion and what are the supporting documents and how the duty was calculated have not been indicated at all - The SCN raising a demand only on the ground that "audit said that you have short paid duty" with not even a vague attempt to explain how the demand was calculated cannot be sustained - During hearing, nobody was able to understand as to how demand was raised in first place and confirmed in impugned order - The inescapable conclusion is that the demand has been confirmed on some figment of imagination not supported by any facts or documents - Such a demand cannot be sustained and is set aside - Consequently, demand of interest and imposition of penalty also cannot sustain: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-280-CESTAT-DEL
Emami Cement Ltd Vs CCGST & CE
CX - Issue relates to refund of accumulated balance of credit on education cess and secondary and higher education cess - Prior to 01.03.2015, cess was leviable on manufactured goods, in addition to excise duty and appellant had availed credit under provisions of Credit Rules on cess paid on procurement of goods and services - By a notification dated 01.03.2015, levy of cess was exempted - The closing balance of credit of cess as on 28.02.2015, therefore, could not be utilized by appellant and it was carried forward by him in central excise returns - The plea of appellant is not for adjustment of credit on cess amount against payment of excise duty or service tax, but it is for refund of credit accumulated on account of payment of tax on cess - It needs to be noted that CENVAT credit avail is a vested right as has been held by Supreme Court in Eicher Motors 2002-TIOL-149-SC-CX-LB and Samtel India 2003-TIOL-40-SC-CX - Appellant is, therefore, clearly entitled to refund of the balance amount of credit of cess and the decision to the contrary taken by Commissioner (A) cannot be sustained - The impugned order passed by Commissioner (A) is, therefore, set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-279-CESTAT-BANG
CC Vs Bellary Iron Ore Pvt Ltd
ST - The assessee had filed a refund claim under Rule 5 of CCR, 2004 which had remained unutilised, which was availed by them on the input services like Goods Transport Agency, Port Services, BAS, Erection & commissioning, Installation service, repair & maintenance service, telephone charges, consultancy services, which were used in relation to manufacture of iron ore fines falling under Chapter 2601, during the period April 2007 to September 2007 - Adjudicating authority rejected the same primarily on the ground that the assessee was ineligible to avail cenvat credit on the input services claimed - On appeal, Appellate Authority directed the adjudicating authority to sanction substantial refund - Assessee contend that there was no requirement of exporting the goods under bond or Letter of Undertaking since, as held by First Appellate Authority, the goods manufactured and exported by the assessee were chargeable to 'NIL' rate of duty and there was no requirement to furnish bond or Letter of Undertaking - Issue is no more res integra since the same has been addressed to by this very Bench in assessee's own case 2018-TIOL-3429-CESTAT-BANG for a different period, wherein the appeal was decided in assessee's favour - In view of the same, no merit found in the appeal of Revenue, same is dismissed: CESTAT
- Appeal dismissed: BANGALORE CESTAT
2022-TIOL-278-CESTAT-MAD
Sovereign Agrotech Refinery Pvt Ltd Vs CGST & CE
ST - Appellant had claimed refund of service tax paid on development charges as under Section 104 of FA, 1994 as amended - The Section 104 of FA, 1994 does not provide as to who has to file the refund claim - When SIPCOT has collected service tax from appellant, refund claim can be filed by SIPCOT or appellant - However, when appellant has to make an application for refund, they have to get the necessary documents from SIPCOT - Only after obtaining necessary documents, refund claim can be filed - SIPCOT has intimated the appellant vide letter which has been received by appellant only on 26.11.2017 - The refund claim has been filed in the next month itself - Thus, there is no delay on the side of appellant - In case of Roop Automotives Ltd. , matter has been remanded to look into whether the refund has been made within a period of one year in terms of Section 11B of CEA, 1994 - Rejection of refund is not justified - Impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2022-TIOL-277-CESTAT-MAD
A Yunus Vs CC
Cus - The appellant is aggrieved by penalty imposed under Section 114(i) of Customs Act, 1962 - The attempt to export prohibited goods (Star Tortoises) had come to light on the information given by appellant that there was a pungent smell coming from the cargo - It is the appellant who had taken first step to note that there was something fishy in regard to cargo that was attempted to be exported - If appellant was colluding/intentionally facilitating import of said prohibited goods, he would not have intimated the higher officials - In such circumstances, it cannot be held that the appellant has facilitated attempt to export prohibited goods in question - The Adjudicating Authority has imposed penalty holding that the appellant has not been diligent in obtaining all documents and had not verified as to whether Let Export Order was issued - This cannot be the reason to hold that the appellant has abetted attempt to export prohibited goods - As it is established that it is the appellant who had frustrated the attempt to smuggle prohibited goods, penalty imposed under Section 114(i) of Customs Act, 1962 cannot sustain - Impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT |
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