2022-TIOL-682-CESTAT-HYD
Ramky Infrastructure Ltd Vs CCT
ST - Issue to be decided is, whether work orders issued for various works are indivisible to form a works contract or are individual services as demanded in SCN - Adjudicating authority has dealt with work orders in dispute and has come to a conclusion that services rendered by appellant are classifiable under commercial or industrial construction services - On perusal of work orders, it is seen that said work orders are for complete work and cannot be vivisected to form separate work under each head - As regards the demand confirmed under categories of Commercial or Industrial construction, Erection Commissioning and Installation services both prior to 01.06.2007 and post 01.06.2007, same cannot be sustained and hence the demand to the extent of Rs. 19,71,44,488/- and Rs. 2,11,55,639/- is set aside - As regards the demand on Site Formation Services, work order therein relates to land development, electrical distribution system, street lighting, Commercial hub, UGSR, OHT, WTP, Waster Conveyance system and CETP works at Vizag site - Services are not aligned to definition but includes set up of various other units such as WTP, CETP which is a composite works contract and hence the same would also merit classification under service of works contract - Thus, demand under site formation services cannot survive - Since the issue is decided on merits, opinion on the point of limitation is not expressed: CESTAT
- Appeal allowed: HYDERABAD CESTAT
2022-TIOL-681-CESTAT-AHM
Vatsal Resources Pvt Ltd Vs CCE & ST
ST - During search at the premises of appellants, no invoices/ debit notes raised to their customers were found - Department recovered the alleged debit notes/ invoices from customers - Further TDS Statement and other financial statement also seized by department from business premises of M/s Forward Resources Pvt. Ltd. - However, presumption of documents in certain cases under Section 36A of Central Excise Act, 1944 is available only when the documents are produced by or seized from custody or control of person concerned - Admittedly none of alleged invoices / documents was produced by appellant or seized from their premises or control - When presumption under Section 36A ibid is not available - The burden of proof is squarely on Department to prove that source documents are related to appellant and that any taxable services under source documents were actually provided by appellant - This burden has not been discharged - Department could not have simply accepted customers' documents provided by them on its face value and same needed strict corroboration which is completely absent - Adjudicating Authority has failed to follow requirement of Section 9D of the Act regarding examination in chief of witness, therefore demand of service tax on basis of statements of persons not sustainable - For confirmation of service tax demand, revenue also relies upon TDS /26As Statement - By relying upon 26AS /TDS Statement under Service Tax Act, demand of service tax cannot be made - Demand of services tax is not sustainable on the basis of TDS /26AS statements - As regard the service provided to M/s. Mohan Infosolution Pvt. Ltd. and M/s Windsor Machine Ltd., in affidavit appellant fairly admitted that they have paid services tax on taxable service provided to remaining entities - When tax amount stands already deposited before issuance of SCN, same was not required to be issued under Section 73(3) of Finance Act, 1994 - Since the tax amount already been deposited by appellant, no reason found to uphold penalty to extent to said service tax deposit amount - Further on basis of documents/ records received from customers of appellant, revenue alleged that they have collected service tax payment - However on the basis of records of other persons it cannot be concluded that appellant have collected service tax from their customers - Department clearly failed to prove the case that appellant have collected the service tax from their customers - Tribunal is not inclined to deal with other issues - Demand of service tax, interest and penalty is not sustainable and the same is accordingly set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-680-CESTAT-AHM
Santram Metals And Alloys Pvt Ltd Vs CCE & ST
CX - Issue involved is, whether appellant is eligible to Cenvat credit on the basis of documents which are claimed to have been received along with inputs invoices issued by units located at Jammu - In the entire investigation, evidences which were relied upon are related to transporters/ RTO check post - On the basis of such third party evidences revenue alleged that goods were not received by appellant in their factory - When the statutory records maintained by appellant do not disclose absence of receipt of inputs in factory and there is no cogent evidence of disposal elsewhere the credit cannot be denied - It is also not the case of department that appellant have procured some unaccounted inputs to cover up quantity of input shown in invoices - There is no allegation by department regarding financial flow back that against the invoices for which payments were made through cheque, any cash payment was received by appellant - No investigation was conducted at the end of manufacturers/suppliers of goods to ascertain the fact that whether they have supplied any goods to appellant - Merely on the basis of transporter records and RTO check-post reports, it cannot be concluded that the inputs were not received by appellant - In the absence of any evidence to the contrary, denial of Cenvat credit on the basis of investigations conducted at the third party end cannot be adopted as the sole basis for denial of credit - As appellant have discharged Central Excise duty on final product manufactured out of alleged raw material, if department is of the opinion that alleged goods was not received by appellant then it is the onus on department to prove that any other alternative raw material was used in final products, Department has failed to do so - Accordingly, allegation of Revenue that the appellant have not received inputs made against appellant are not sustainable and thus, impugned orders are set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2022-TIOL-679-CESTAT-AHM
Mono Steel India Ltd Vs CCE & ST
CX - The issue relates to availablity of Cenvat credit of Basic Excise duty for payment of Education Cess and Higher Education Cess - Following the decisions passed by Tribunal in M/s. Gallant Metal Limited and M/s. ASR Multimetals Pvt. Limited & others , it is held that appellant is entitled for utilization of Cenvat credit of basic excise duty for payment of Education Cess and Secondary and Higher Education Cess - Accordingly, impugned order is set-aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-678-CESTAT-AHM
Atul Ltd Vs CCE & ST
Cus - The limited issues to be decided is that whether appellant's request for conversion of Export Promotion Scheme from Duty Drawback to Advance License is legal and correct - Same was rejected on the ground that appellant had violated the Condition 3(e) of Circular No. 36/2010-Cus - On careful reading of said clause, it is found that contention of Principal Commissioner is incorrect in as much as though the appellant was granted DBK but appellant had already informed the department that they do not wish to get DBK amount credited in their Bank account and if at all it is credited they offered to surrender same amount along with interest - The conversion of shipping bill was sought by appellant in terms of Section 149 of Customs Act, 1962 - Goods were exported vide Shipping Bill whereas Advance Authorization (DEEC) is of dated 30.03.2017 - Therefore, there is no doubt that DEEC licence on the basis of which amendment is being sought by appellant was very much in existence at the time of export - Condition of Section 149 of Customs Act for the purpose of amendment in shipping bill stands satisfied - When the condition prescribed under Section 149 ibid is satisfied the conversion should be allowed - As regard the fact that whether DBK amount has been received by appellant or otherwise, department is at liberty to verify the same - Before making conversion of DBK shipping bill to advance license scheme, department has to ensure that if at all the DBK amount is credited to the appellant the same needs to be returned back to department - Impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
