2022-TIOL-653-CESTAT-MUM
SBI Life Insurance Company Ltd Vs Pr.CCGST
ST - Assessee engaged services of insurance agents and availed "Insurance Auxiliary Services" as under section 65(55) of Finance Act, 1994 - DGCI initiated investigation alleging that assessee had not included certain expenses and also illegally recovered service tax from insurance agents and the same was recoverable under section 73A(3) of Finance Act, 1994 - SCNs were issued demanding service tax and confirmed by impugned order - Appeal filed by assessee. Held : Section 73A(2) and 73A(3) state that any person who has collected any amount representing service tax, which is not required to be collected, from any other person, shall forthwith pay the amount to the Central Government - No provision says that service tax already paid should not be recovered from anyone - Service tax has already been paid by the assessee - The provisions would apply only when such service tax recovered from the customer is not paid to the Government - Thus, demand and interest imposed cannot be sustained - Further, expenses incurred by the assesee for training/refresher training and other expenses cannot be included in the value of taxable services as they do not form part of taxable services on which gross taxable amount is charged - It is the assesee who has incurred expenses for training etc. and not the service provider and hence it is not included under explanation to section 67D of Finance Act, 1994 - Impugned order set aside - Appeals allowed: CESTAT
- Appeals allowed: MUMBAI CESTAT
2022-TIOL-652-CESTAT-BANG
Texas Instruments India Pvt Ltd Vs CCE, C & ST
ST - Impugned orders denied refund claims on the issue that there is no nexus of input services with services exported - Admissibility of credit and refund thereof in respect of Marketing Services where payments are claimed to have been received in USD is also disputed - This Bench has decided the nexus in respect of various services in case of Samsung R&D Institute India Bangalore Pvt. Ltd. 2019-TIOL-3122-CESTAT-BANG - Issue of nexus in respect of services, raised in impugned orders are now settled - Therefore, on the issue of nexus, Tribunal is inclined to accept the contentions of appellants and allow the appeals to that extent - Coming to the issue of refund of credit of service tax wherein invoices were raised in USD, in respect of ITSS Services, refund relates to invoices raised by many companies; though the services were procured in India, receipts were in foreign currency - It is an argument of appellants that these services were utilised by them while rendering service to overseas entity - It is clear that even as per tripartite contracts, appellants are a sort of middle-man in respect of services rendered by vendors - While TI, USA receives the services rendered by the vendors and pays for the same in USD, TI, India acts only as a facilitator in receiving the money in USD from TI, USA and making payments to the Indian vendors in INR - Appellants, therefore, cannot be held to be receivers of input services rendered by vendors and used in export of services to TI, USA - Appellants neither take the credit of service tax paid on the services rendered by vendors nor claim the same as refund: CESTAT
- Appeals partly allowed: BANGALORE CESTAT
2022-TIOL-651-CESTAT-CHD
Reckitt Benckiser Healthcare India Pvt Ltd Vs CCGST
CX - The issue involved is, whether the refund filed by appellant on account of unutilised PLA (Personal Ledger Accounts) balance lying in their Central Excise Accounts is barred by limitation in view of section 11B of CEA, 1944 - Issue is no more res integra in view of various decision of Tribunal including M/s. WMW Metal Fabrics Ltd 2021-TIOL-498-CESTAT-DEL - In the matter of Fluid Controls Pvt. Ltd. 2018-TIOL-979-CESTAT-MUM , it has been held by co-ordinate Bench of Tribunal that PLA deposits are mere deposits for purpose of their utilisation in future and the same is not duty, in which case the provision of section 11B ibid would not apply and if the same is not in a position to utilise, depositor has to be held as the owner of said amount which is required to be refunded to them in the absence of any limitation prescribed under the Act for such refunds - Even High Court of Punjab and Haryana in Indian Oil Co-operation Ltd. while deciding the issue about applying limitation prescribed u/s. 11B ibid on un-utilised PLA balance has held that the rejection of application of claimant by Central Excise Authorities on the ground that application has been filed beyond the prescribed period from the date of crediting amount in their personal ledger accounts cannot be sustained because the State cannot enrich itself unjustly when no duty was liable to be paid by petitioner - Appellant is eligible for refund claim of unutilized balance lying in their PLA (Personal Ledger Accounts): CESTAT
- Appeal allowed: CHANDIGARH CESTAT
2022-TIOL-650-CESTAT-CHD
Gabriel India Ltd Vs CCE & ST
CX - Issue involved is regarding wrongful availment of Cenvat Credit by appellant and recovery of same from them as per Cenvat Credit Rules, 2004 read with section 11A(5) of Central Excise Act, 1944 - Demand was confirmed by Adjudicating Authority only on the ground that appellant did not produce any documentary evidence in support of their submission - The documents filed by appellant were not available with Adjudicating Authority, for whatever reason - Therefore, they are directed to file all relevant documentary evidence with Adjudicating Authority within a period of two weeks in support of their submission qua the demand as Adjudicating Authority is proper Authority to examine documentary evidences - Adjudicating Authority is directed to decide the issue afresh after taking into consideration the documentary evidence to be produced by appellant - Since the issue involved is very short, therefore Adjudicating Authority is directed to decide the issue within period of three months: CESTAT
- Matter remanded: CHANDIGARH CESTAT
2022-TIOL-649-CESTAT-AHM
Bansal Fine Foods Pvt Ltd Vs CC
Cus - Appellant had exported Rice under disputed Shipping Bills which were originally booked for Iran, but investigation revealed that the consignments were delivered to UAE and hence violated the provisions of para 2.40 and 2.53 of Foreign Trade Policy - Accordingly, SCN was issued to appellant - The whole case revolves around irregularities in respect of receipt of currency with regard to exported goods - These violations relate to post-export conditions - There is no doubt that any violation relating to foreign exchange are covered under FEMA, 1999 and not under Customs Act - Though the SCN invoked Section 113(d) and 113(i) of Customs Act but these provisions were invoked by only alleging violation of para 2.53 of FTP and section 8 of FEMA, 1999 - There was no violation of Customs Act in any manner - There is no dispute about description of goods, its quantity and value - The export of rice was neither prohibited nor restricted - It is a well settled law that in respect of alleged violation of foreign exchange, it is the erstwhile FERA authorities or FEMA authorities who are competent to initiate the proceedings against party - With regard to violations of Exim policy, adjudication can be done only by authorities notified under section 13 of Foreign Trade (Development & Regulation) Act, 1992 - Hence, since it was only a case of alleged violation of provisions of Foreign Trade (Development & Regulation Act) and rules made there under as well as that of Foreign Exchange Management Act, the Customs authorities did not have jurisdiction to issue the SCN for said violation. In respect of appeal filed by M/s. V. Arjoon, CHA, it is found that the CHA had filed shipping bills as per documents provided to him by exporter - Therefore, bona fide act of appellants cannot be doubted - Further, since it is held that the goods were ultimately delivered to buyers at Iran, there is no justification for imposing penalty upon appellants, therefore, penalty imposed on all the co-appellants is set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
