2022-TIOL-571-CESTAT-DEL
Pashupati Nath Tubewells Vs CCE
ST - The issue involved is, whether the services provided by appellant i.e. digging of bore well is exempted under Section 66 D(d)(i) - Appellant had stated that Income Tax, TDS have not been deducted as activities of digging of bore wells of farmers do not attract deduction of tax at source - They had also led evidences by filing copies of land records of service receivers as well as affidavits from service receivers - Such evidences led before the Court Below have not been found to be untrue - The Court Below have rejected the evidences arbitrarily and against the Scheme of Finance Act read with the Rules thereunder - Appellant have also produced copy of clarificatory letter F.No.354/35/2014-TRU and it was clarified that the said services are excluded from tax liability since it is covered in the scope of Negative List Entry under Section 66 D(d)(i) of Finance Act, 1994 - Relying on the ruling of Supreme Court in case of Raja Binoy Kumar Sahas Roy 2002-TIOL-150-SC-IT-LB , it is held that the agriculture/cultivation includes irrigation or watering of plants, as due to lack of irrigation, it is very difficult to have any agriculture produce - Accordingly, the activities carried out by appellant is covered in Negative List, which are exempt from tax - Impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-570-CESTAT-MUM
Deepwater Pacific 1 INC Vs CST
ST - The issue in dispute is of exigibility to tax of 'service' rendered in 'exclusive economy zone (EEZ)' of India between July 2009 and February 2010 - The appellants were in the business of rendering of 'drilling service' taxable under Section 65(105)(zzzy) of Finance Act, 1994 and had not been discharging tax liability claiming that Finance Act, 1994 did not extend to the area of their operation in 'exclusive economic zone (EEZ)' - In view of the settled finding of High Court of Bombay in 2015-TIOL-1100-HC-MUM-ST of non-taxability between July 2009 and February 2010, insofar as 'drilling' undertaken by appellants for oil exploration in 'continental shelf and exclusive zone (EEZ)' is concerned, the impugned orders are set aside: CESTAT
- Appeals allowed: MUMBAI CESTAT
2022-TIOL-569-CESTAT-HYD
CC Vs Sarvaraya Sugars Ltd
ST - The assessee, a sugar mill is receiving sugar cane harvest from farmers by using transport services - Payment to transporters is made by assessee from the amounts adjusted against price of sugarcane payable to suppliers/farmers at the minimum support price of sugarcane in terms of clause 2(g) of Sugarcane Control Order, 1966, which is for supply of sugar cane at the factory gate - A SCN was issued to assessee for non payment of service tax on freight charges paid by them to transporters under GTA service head for the period from January 2005 to March 2010 - The issue whether the assessee can be termed recipient of GTA services in such cases has been decided by Tribunal in case of NANDGANJ SIHORI SUGAR CO. LTD. - Assessee have pleaded that there was no issuance of any consignment notes by transporters and they cannot be stated to have received GTA services to attract Service Tax liability on RCM basis - Said plea was also taken by assessee in their reply to SCN - However, Adjudicating authority has decided the matter on the ground that assessee cannot be stated to be the recipient of transport services - No reason found to interfere with impugned order and therefore the order is sustained: CESTAT
- Appeal dismissed: HYDERABAD CESTAT
2022-TIOL-568-CESTAT-AHM
Amglo Resources Pvt Ltd Vs CC
Cus - The Appellant is in appeal against impugned order, by which the terms of provisional release order dated 06.04.2022 have been upheld by Commissioner (Appeals) to the extent it directs the appellant to furnish a bank guarantee to the extent of 15% of value of seized goods - Appellant herein had imported Cooper Cathodes under Bills of Entry - The overall value of goods is over 100 crores - The order dated 04.02.2022 and 06.04.2022 have been issued under Section 110A of Customs Act - Once the order dated 04.02.2022 was issued by deputy commissioner of customs he became functious officio and could not have reviewed the said order - Also the aforesaid findings of Commissioner (Appeals) is amusing as both order dated 04.02.2022 and 06.04.2022 have been issued under section 110A of Customs Act and to hold that one order was executive and accepting appeal against 06.04.2022 is self contradictory stand - Appellant was always willing to deposit entire duty of BCD + IGST which is over 25 crores and therefore, condition to direct the appellant to furnish a bank guarantee of 15% of value of goods which is over 100 crores is excessive and arbitrary more importantly when the appellant is willing to deposit the duty payable on seized goods - The provisional release order dated 06.04.2022 and the seizure memo dated 02.02.2022 does not mention anything about undervaluation - A perusal of seizure memo clarifies that it is the case of department that the goods were imported from Iran as against the declared country viz., Zambia - It is not the case of department that there was any restriction on import of goods from Iran - The investigation is ongoing and country of origin of goods will be determined only after the investigation is concluded - At this point of time, it cannot be said with certainty that the goods were imported from Iran - Be that as it may, issue before Tribunal is limited to provisional release of goods and the same be decided keeping in mind the fact that the appellant never intended to avail any benefit basis the country of origin and were and are willing to pay the duty on the goods imported vide bills of entry - The order of Commissioner (A) is set aside to the extent it directs provision of bank guarantee of 15% of value of goods - Ends of justice shall be met if appellant is allowed the provisional release of subject imported goods on execution of Bond of full value of such goods and furnishing the bank guarantee of Rs.1 Crore - Appellant shall pay Customs duty as assessed by department at the time of provisional release of goods: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-567-CESTAT-AHM
Jee Pumps Pvt Ltd Vs CCE
CX - The only challenge is imposition of penalty under Rule 8(3A) of Central Excise Rules, 2002 - Though the rule clearly prescribes the penalty however, Revenue has not followed the principle of natural justice inasmuch as they have not issued any SCN and no opportunity was given to assessee to defend or explain their case - It is a settled law that even though there is no explicit provision for issuance of SCN, as per the Principle of natural justice an assessee should be given sufficient opportunity to explain their case particularly for invocation of penal provision - Admittedly neither SCN was issued to assessee nor was any opportunity given - Therefore, penalty is set aside only on the ground of principle of natural justice: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-566-CESTAT-MUM
Savita Oil Technologies Ltd Vs CCE
CX - The issue revolves around the alleged non-receipt of 'inputs' in excess of tolerance margin of 0.4% at the facility of appellant as evidenced by their own 'goods receipt note (GRN)' for the disputed period - The credit taken by appellant is duty of central excise paid by supplier as recorded in invoices and any difference in quantity, manifested in 'goods receipt note (GRN)' on actual weighment at place of receipt, does not alter the tax thus borne on goods except when credit accrues to supplier through appropriate debit notes raised by recipient - No such document is placed on record - There is no evidence of any of inputs having been returned to supplier or rerouted elsewhere - It is only by adverse presumption that liability under Rule 14 of Cenvat Credit Rules, 2004 has been ordered for recovery - Tolerance limits are prescribed according to the nature of goods and for the purpose of computation wherever such quantity is critical - Insofar as CENVAT credit is concerned, the underlying foundation is discharge of identical amount of duty on 'inputs' procured for manufacture or for rendering of service on the part of supplier - It was submitted on behalf of appellant that any compensatory restitution received upon settlement of insurance claim is adjusted by payment of duty to such extent and that has not been controverted by Revenue - The decision in Petronet LNG Ltd 2019-TIOL-3157-CESTAT-DEL makes it abundantly clear that such loss in transit is not includible for computation of 'assessable value'; conversely, inclusion therein implies higher value per unit and consequent absorption of higher liability of tax - Impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
