2022-TIOL-630-CESTAT-KOL
Vedanta Ltd Vs CCGST & CE
ST - Appellant claimed the refunds of amount as being Service Tax paid on "Banking and Other Financial Services" in respect of services received in SEZ unit - They claimed the benefit of Notification Nos. 12/2013-S.T., 17/2011-S.T. and 40/2012-S.T. - Same were rejected - Benefit of Notfns can be availed in either way i.e. the service provider may not tax the amount or the service recipient being SEZ can claim refund - The "Banking or Financial Service" involved in this claim application has been approved by "Approval Committee" for purpose of claiming exemption - M/s. VAL (SEZ Unit) have also furnished declaration in Form A-1 duly verified by Specified Officer of SEZ for the purpose of claiming exemption - M/s. VAL (SEZ Unit) have also submitted declaration to the effect that they have not taken Cenvat credit of Service Tax paid on specified services used for authorized operations in their SEZ - They are maintaining proper account of receipt and use of specified services on which exemption is claimed - Mere technical discrepancy in invoices cannot be the ground for denying substantive benefit of refund available to SEZ unit - It is the policy of Government to exempt or refund input tax incurred by SEZ unit - Keeping the policy of Government in mind and specifically in light of Sections 7 and 51 of SEZ Act, 2005, denial of refund claim on this ground is not sustainable - Regarding re-conciliation of Service Tax payment with evidence of challans, same was produced before lower authority and also before Tribunal and the same is satisfactory - If service recipient is a SEZ unit, they should pay Service Tax to service provider and claim the refund of amount - The fact that the appellant is SEZ unit is not disputed and the receipt of services is also not disputed as also the payment of Service Tax to service provider - In absence of any adverse findings on these issues, appellant is eligible for claiming refund of Service Tax paid by service provider which is in consonance with law - Impugned orders are set aside: CESTAT
- Appeals allowed: KOLKATA CESTAT
2022-TIOL-629-CESTAT-MUM
Jaymco Polymers Pvt Ltd Vs CC
Cus - The issue involved is, whether the Revenue was correct in reclassifying imported goods declared as "Mineral Hydrocarbon Oil-CTH 2710 19 88 and Mixed Mineral Hydrocarbon Oil-CTH 2710 19 90" as diesel under CTH 2710 19 44 and as Superior Kerosene Oil under CTH 2710 19 32 - It is admitted position of law that for a product to be classified under CTH 2710 19 44/2710 19 32 as SKO, it has to meet with specifications in Supplementary Note – (C) under Chapter 27 - In absence of evidences that imported goods meet all the specifications as laid down in Supplementary Note (c) to Chapter 27 for classification of a product as Kerosene and Supplementary Note (e) so as to classify a product as diesel, the case made out by Revenue cannot be sustained - Test reports are vitiated and not reliable as sampling has been done improperly and not in conformity to prescribed specifications - There is miscarriage of justice by denying the prayer for retest - There is no scope for applying preponderance of probability or principle of probability, as there are explicit rules and or instructions laid down for classification - Test reports relied upon by Revenue are inconclusive - The goods under import are to be classified as per CTH heading claimed/declared by appellant in bills of entry - Accordingly, rejection of transaction value is also bad and thus, declared value has to be accepted - Redemption fine and penalties on the appellants are also set aside - As the goods are lying under seizure and subsequent confiscation by Customs Department for more than two years, for no fault of appellant, grant of waiver of detention and demurrage charges is appropriate and direct that the proper certificate shall be issued by concerned authority - The goods in dispute be delivered to appellants forthwith, within a period of two weeks: CESTAT
- Appeals allowed: MUMBAI CESTAT
2022-TIOL-628-CESTAT-MAD
Polymer Products of India Vs CC
Cus - The appellant was unable to file all shipping bills before Adjudicating Authority as the same were not traceable - For the same reason, the duty has been demanded - Hence, matter is required to be remitted back to file of Adjudicating Authority, as pleaded by appellant, however, with a condition that the appellant shall not take unnecessary adjournments and shall co-operate by filing all relevant documents as and when called for by Adjudicating Authority - Also, the Adjudicating Authority shall pass a de novo adjudication order within a period of six months: CESTAT
- Matter remanded: CHENNAI CESTAT
2022-TIOL-627-CESTAT-MAD
Saint Gobain Glass India Ltd Vs CGST & CE
CX - The issue involved is admissibility of Cenvat credit on service tax paid on outward goods transportation up to the premises of buyer - Definition of "input service" under Rule 2(l) of Cenvat Credit Rules, 2004 is quite comprehensive and encompasses every activity /service used in provision of output services - The Apex Court in case of Andhra Sugars Ltd. 2018-TIOL-45-SC-CX held that outbound transportation from the place of removal gets covered by definition of "input service" - Tribunal vide Final Order 2022-TIOL-468-CESTAT-MAD have relied upon the above cited decision in Andhra Sugars Ltd. and the decision of jurisdictional High Court in case of Bata India Ltd. 2019-TIOL-1861-HC-MAD-CX - Impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2022-TIOL-626-CESTAT-DEL
Jagdamba Ispat Vs CCE & CGST
CX - The only issue in impugned appeals is claim of interest on deposits as were made by appellant during investigation and pursuant to initial order of Departmental Adjudicating Authority, confirming demand proposed in impugned SCN - Adjudicating Authority below has though sanctioned the refund of said deposited amount, however, while relying upon the section 11B of Central Excise Act, 1944 has denied the entitlement for interest on said deposit - Issue has been dealt in detail by Tribunal in case of Parle Agro (P) Ltd. 2021-TIOL-306-CESTAT-ALL - Even the Supreme Court in case of Sandvik Asia Ltd. 2006-TIOL-07-SC-IT has dealt with the issue deciding the same in favour of assessee holding the assessee entitled for interest @ 12% for refund of amount which were deposited not as the amount of duty - Issue is no more res integra that any deposits made if have not been confirmed as duty the time-bar of Section 11B ibid cannot be invoked - It stands clear that the amount in question was not the amount of duty after the Tribunal set aside the duty liability of appellant - Hence, it is held that Section 11B ibid is not applicable to such deposits - Commissioner (Appeals) is held to have wrongly invoked the said provisions - In terms of section 35 ibid, amount of refund being in nature of deposit only appellant is held entitled for interest on said amount that too @ 12% from the date of deposit till the date of realisation thereof: CESTAT
- Appeals allowed: DELHI CESTAT
2022-TIOL-625-CESTAT-BANG
Manav Marketing Pvt Ltd Vs CST
ST - Issues that require consideration are as to whether the services rendered by appellants can be considered as export of services and as to whether the refund claims are hit by limitation - Coming to the first question, in terms of distributor agreement, appellants are appointed as distributors - The Original Authority finds that claimant has actually undertaken the activity of commissioning of machines supplied by foreign supplier in premises of customers located within India and accordingly raised bills towards machine commissioning charges on the foreign supplier - Appellants did not counter the claim of Department on this count and mainly focussed on his arguments on limitation - There were literally no submissions or arguments on the merits of case, except for claiming that services are exported and payment of Service Tax was under a mistaken notion of law - In terms of agreement and as per records of case, it is seen that overseas suppliers deliver the machines directly at the premises of customers - It cannot be said that the services rendered by appellants are export of services, notwithstanding the fact that payment is received from overseas suppliers - As far as the amounts received by appellant under Head 'Office expenses', same are understandably the reimbursement of expenses incurred by appellants - There is no element of service rendered by appellants to overseas principals on this count - Appellants have no case on merits as far as machine commissioning charges and office expenses are concerned - Appellants are not required to pay service tax on the amounts received by them by way of 'Office Expenses' and 'Commission' - Apex Court in case of Mafatlal Industries 2002-TIOL-54-SC-CX-CB has categorically held that all refunds are governed by provisions of Section 11B - Madras High Court in a recent judgment in case of M/s M.G.M International Exports Ltd. 2021-TIOL-989-HC-MAD-ST held that "the refund of tax if any borne by petitioner had to be made only within a period of limitation prescribed under Section 11B of Central Excise Act, 1944" - This Tribunal has been holding the same in a number of cases: CESTAT
- Appeals partly allowed: BANGALORE CESTAT
