2022-TIOL-576-CESTAT-MUM
Neelkamal Realtors Towers Pvt Ltd Vs CC
ST - The issue involved is, whether availment of CENVAT Credit by appellant on the basis of a debit note availed by M/s IGSSTPL without receiving any service is admissible as per law - It was appellant's claim that the amount transferred to them by Development Manager is a financial service and, therefore, M/s IGSSTPL have debited the Service Tax to appellant's account and that under CCR, 2004, debit note is also a document prescribed for availment of CENVAT Credit - On the other hand, it is the contention of Department that transaction in money is not a financial service and, therefore, appellants have not received any financial service from Development Manager and thus, they cannot avail CENVAT Credit of the same - As per the terms of agreement, M/s IGSSTPL would also avail loan from M/s DHFL and transfer the same to appellants - Whereas the consideration given by appellants to the Development Manager is Rs. 520 Crores and the loan amount transferred is only Rs. 100 Crores - The components of processing fee is around and above Rs.84 Crores, on which Service Tax has been paid by M/s DHFL and collected from M/s IGSSTPL who have in turn passed on the burden of this Tax to the appellants in the form of a debit note - There is no doubt even in mind of Department that the said Service Tax becomes an input credit for Development Manager - However, it is not clear as to whether while raising an invoice on appellants, appropriate Service Tax, if any, has been paid by Development Manager while rendering the so called financial service or any service for that matter, to the appellant - In absence of such rendering of service and payment of service tax by M/s IGSSTPL the Development Manager to the appellants, a simple transfer of Service Tax credit by them on the processing fee collected by the finance leasing company directly to the appellant will not entitle the appellants to avail CENVAT Credit of the same and not certainly on the entire amount as it is not disputed that the amount transferred to the appellant was only to the extent of Rs.100 Crores for repayment of loan to Yes Bank - The balance was utilized by M/s IGSSTPL for construction related activity in terms of agreement - Secondly, it is also not forthcoming from the case records as to what are the services rendered by appellant as an output service provider, so as to be eligible to avail CENVAT Credit on the Service Tax and as to whether the appellants have discharged any Service Tax on the same - Unless M/s IGSSTPL have paid the service tax on services provided to appellant; unless the appellant has utilized the same services for provision of an output service chargeable to Service Tax, admissibility of credit cannot be decided - The Commissioner has given a categorical finding that M/s IGSSTPL have debited the service Tax, charged by M/s DHFL, to appellants on 30.06.2017 itself even before the total disbursement of loan - The loan was disbursed on 03.08.2017 - Understandably, by that time M/s IGSSTPL were yet to provide any service to appellants - This aspect also needs to be looked into afresh - It is not possible to come to a categorical conclusion on the basis of available documents/records, so as to examine the claims of rival parties - While holding that credit of Service Tax cannot be availed just because M/s IGSSTPL had raised a debit note on the appellants without rendering any particular service and without raising any invoice on the appellants indicating categorically the details of the service provider, service recipient, the service provided and the remuneration thereof - Matter remanded to adjudicating authority by keeping all the issues open - It is directed that a fresh order shall be passed within 12 weeks: CESTAT
- Matter remanded: MUMBAI CESTAT
2022-TIOL-575-CESTAT-DEL
Nagarro Enterprises Services Pvt Ltd Vs CCGST
ST - The issue involved is, whether the refund claim under Rule 5 of Cenvat Credit Rules, 2004 r/w Notification No. 27/2012-C.E. (N.T.) have been rightly rejected on the ground of limitation - The Court below have erred in taking the date of defect removal as the date of filing refund claim - Date of filing refund claim is 30.03.2017 and accordingly, it is held that the appellant has filed refund claim within the period of limitation - The Adjudicating Authority is directed to disburse the refund claim within a period of 45 days alongwith interest under Section 11BB of Central Excise Act, 1944 : CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-574-CESTAT-MAD
Unimech Industries Pvt Ltd Vs CCE
CX - The appellants are engaged in manufacture of tractor parts and components on job work basis to M/s. TAFE Ltd. - Department was of the view that the appellants had not included the value of scrap and have not discharged Excise Duty on the same - While estimating the value of goods cleared to principal manufacturer, appellant has taken the value of entire raw materials received by them - The scrap generated during process of manufacture has been cleared by them on payment of appropriate duty - Same is not includible in assessable value of goods cleared by the job worker to principal manufacturer - In appellant's own case for a different period, Tribunal has relied upon the decision in M/s. P.R. Rolling Mills Pvt. Ltd. and set aside the demand - Following the decision passed in appellant's own case, demand cannot sustain - I mpugned orders are set aside: CESTAT
- Appeals allowed: CHENNAI CESTAT
2022-TIOL-573-CESTAT-KOL
Cabcon India Pvt Ltd Vs CCE
CX - Maharashtra State Electricity Board (MSEB) awarded a contract to joint venture of Asea Brown Bovery Ltd. and Best and Compton Engineering Ltd. for supply of specified goods and supplies to be made in India to a project financed by Japan Bank for International Co-operation Fund (JBIC) - Appellant got a sub contract for the same on 23.12.2000 and the same was amended on 13.01.2001 - In terms of Notification No. 108/95-CE, MSEB arranged for necessary certificate for procurement of goods - A SCN was issued to appellants demanding duty along with interest and penalty under Section 11AC of Central Excise act, 1944 and Rule 25 of Central Excise Rules, 2002 - Appellant is not arguing the case on merits - However, they are disputing the invocation of extended period for issuance of SCN - A certificate was given by M/s. MSEB and the same was counter-signed by Principal Secretary (Energy), Govt. of Maharashtra - Appellants have informed jurisdictional Asstt. Commissioner about their intention to avail the benefit of Notification No. 108/95-CE on the strength of said certificate - They have cleared their goods during the period 20.02.2001 to 06.10.2001 and they have been filing RT-12 returns regularly - Though the department was informed as early as February 2001 took note of ineligibility of Notification in June 2003 by which the time limit prescribed for issuance of SCN for duty not paid not levied as already expired - Department to cover up their inaction immediately after the submission of said letter by appellants have taken recourse to invocation of extended period - This is not legal and proper - No material evidence has been suppressed by appellants with intent to evade payment of applicable duty - In fact only in 2003, Tribunal has decided that said certificates are not valid for availing exemption under Notification No. 108/95-CE - Appellants cannot be faulted for availing exemption in bona fide belief that said certificate issued by competent authority is valid for availing the exemption - No case has been made for invocation of extended period - Therefore, impugned order cannot be sustained to be legal and proper: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-572-CESTAT-AHM
Anjaleem Enterprise Pvt Ltd Vs CCE & ST
Cus - The appellant applied for D-Bonding of 100% EOU and by letter, department of Industrial Development permitted the appellant to clear capital goods without payment of duty and to gift the imported capital goods to an educational institution which was eligible to import such goods without payment of duty - A SCN was issued demanding duty on imported goods - By applying the depreciation upto date of payment of duty, vide letter, appellant submitted before Deputy Commissioner that duty payable was NIL and that therefore the amount which had been deposited by appellant be refunded to appellant - Tribunal have to place on record its disapproval of action of both the Lower authorities in not following the directions of Tribunal - Both the authorities have clearly violated the terms of remand order of Tribunal - It is on record that, vide O-I-O, Lower Adjudicating authority held that deprecation was allowed only upto the date of permission for de-bonding which has been categorically held to be incorrect by Tribunal in its remand order - Clearly, lower authorities are not following the directions given by Tribunal - Therefore, impugned order is not sustainable in law - Adjudicating authority is bound to allow depreciation upto the date of payment of duty - As per submission made by appellant that if depreciation is considered upto the date of payment then duty comes to Nil - There is no rebuttal to this fact, hence the demand is not sustainable - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
