2022-TIOL-712-CESTAT-DEL
Sconce Global Pvt Ltd Vs CST
ST - Services provided by appellant were on turnkey basis and a composite amount is charged by appellant for its services and for goods used in providing them - Appellant treated this as works contract services and paid VAT to respective State Governments as appropriate - It has been settled by Supreme Court in case of Larsen & Toubro 2015-TIOL-187-SC-ST that composite works contract services involving supply of goods/deemed supply of goods and rendering services are a separate species of contract known to commerce and must be treated as works contract services only - Such services become taxable under head of works contract service under Section 65(105)(zzzza) of Finance Act, 1994 w.e.f. 1.6.2007 - Prior to this there was no charge of service tax on works contract services - Therefore, there was no levy of service tax on such composite services under any other head before 1.6.2007 - Since it is undisputed that appellant's contract involved provisions of services as well as supply/deemed supply of goods they can only be classified under head "works contract services" as per law laid down by Supreme Court in Larsen & Toubro - Such services could not have been charged with service tax under any other head either before or after 1.6.2007 - SCNs demanding service tax under head "Pandal and Shamiana services" from appellant, therefore, cannot be sustained - Consequently, impugned orders are set aside: CESTAT
- Appeals allowed: DELHI CESTAT
2022-TIOL-711-CESTAT-AHM
Shresth Leasing And Finance Ltd Vs CCE & ST
ST - Issue arises is that whether the appellant can submit additional documents/records and additional evidences before appellate Tribunal in their support - Tribunal being a final fact finding authority can very well admit fresh evidence and argument - This issue has been considered by Supreme Court in National Thermal Power Co. Ltd. 2002-TIOL-279-SC-IT-LB , which is to the effect that Tribunal has jurisdiction to examine the question of law which arises on facts, as found by authorities below and having bearing on tax liability of assessee, even though said question was neither raised before the lower authorities nor in appeal memorandum before Tribunal, but sought to be added later as an additional ground by a separate letter - When Service tax is demanded on alleged services, it is responsibility of department to show that appellant had rendered these services to customers with positive evidences - Department failed to do so - Demand was raised under category of "Business Auxiliary Service", and Management or Business Consultant Services, without analyzing the activities carried out by appellant - It is found that appellant was engaged in providing GTA Service and some other services which do not cover under services alleged by revenue - Therefore, very foundation of allegation is misplaced - For confirmation of service tax demand revenue also relies upon TDS /26As Statement /3CD Statement - Said statement under provisions of Income Tax Act, 1961 is an Annual Consolidated tax statement - Income tax and service tax are two different/ separate and independent special Act and their provisions are operating in two different fields - Therefore, by relying the 26AS /TDS Statement/3CD statement under the Income Tax Act, demand of service tax cannot be made - In case of M/s Ved Security 2019-TIOL-3162-CESTAT-KOL it was held that the value of taxable services cannot be arrived at merely on the basis of TDS statements filed by clients inasmuch as even if payments are not made by client, expenditure are booked based on which form 26AS is filed, which cannot be considered as value of taxable services for purpose of demand of Service tax - Appellant had provided maintenance service to M/s KEC International Ltd. - Said activity is directly related to principal supply of transmission and distribution of electricity - They provided services of commission agent to M/s Chaz Insurance Brokers Pvt. Ltd. - Said brokerage company deal in business of life insurance and general insurance products - In terms of C.B.E. & C. Circular No. 59/8/2003-ST , services provided by insurance agent were covered under 'insurance agent' or 'insurance auxiliary service' - Activity of appellant classified by department under head 'business auxiliary service' is legally not correct - Revenue alleged that appellant have collected service tax payment - However, revenue in support of their contentions nowhere produced any corroborative evidence in the form of Bank Details or any documents recovered from business premises of appellant - Revenue clearly failed to prove the case that appellant have collected service tax from their customers - Since the matter is decided on law, court do not incline to deal with the other issues such as Limitation, demand to be made under Section 73 or 73A, omission of Chapter V the Finance Act, 1994 vide Section 173 of CGST Act and the same are kept open - Interest and penalty is not sustainable and same is accordingly set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-710-CESTAT-AHM
Sanjay Casting Vs CCE & ST
CX - The appellant and its partner Shri Dipak Rathod are in appeal against impugned order wherein demand of excise duty and cenvat credit demand was confirmed with interest and penalty and also a separate penalty of Rs. 2,00,00,000/- was imposed on Shri Dipak Rathod - As regard the goods allegedly lying outside the factory premises whether liable for confiscation, appellant have applied for extension of ground plan for inclusion of premises where the goods were lying well in advance and subsequently, the ground plan was approved - Therefore, it cannot be said that the goods were lying outside the factory - Moreover, appellant received the old and used moulds for the purpose of job work in their factory under Notification No. 214/86-C.E. therefore, no cenvat credit was taken on such goods accordingly, such goods cannot be treated as excisable goods hence, no question arise for confiscation of goods - Neither confiscation is legal nor the duty demanded on such goods is correct - Moreover, goods were subsequently taken into factory and used in manufacture for job work - For this reason also, demand and confiscation of goods is not sustainable - As regard the demand on C.I. Mould which was manufactured on job work basis in terms of Notification No. 214/86-CE, case of department is that the appellants have manufactured and cleared fresh goods in guise of conversion of old and used mould into the job worked goods, therefore, they are liable to pay duty - All the documents and records clearly show that appellant have received the old and used moulds and converted into fresh mould and returned back to supplier of old and used mould for which they merely charged the job work charges - Accordingly, demand on this count is not sustainable - As regard the denial of Cenvat credit and the ground that the same was lying outside the factory, appellant had not taken cenvat credit when the goods were lying stored outside, credit was taken only after taking the coal into the factory therefore, there is no violation of any Cenvat Credit Rules - Secondly, coal was lying outside the factory but it was lying within premises which is owned by appellant only - Appellant had applied for inclusion of said premises in factory premises even before storing the goods and subsequently, permission was granted and said premises deemed to have been part and parcel of registered premises of appellant - For this reason also the Cenvat credit on coal cannot be denied - Since the demand itself is not sustainable, penalty on main appellant as well as co-appellant is also not sustainable - Entire demand made against appellant and confiscation of goods is not legal and correct hence the same is not sustainable: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2022-TIOL-709-CESTAT-KOL
CCE Vs Indian Steel And Wire Products Ltd
CX - The goods and wire rods have been cleared for payment of duty on value fixed by TISCO for whom appellants have performed job work - Since the value adopted was clearance of goods as fixed by TISCO for their customer it would have taken into account all the wastes including value of waste and scrap retained by appellants - All the components going into value would have thus formed part of assessable value for such clearances - It is not the case that job work charges have been suppressed to the extent of value of waste and scrap as goods have been cleared on actual value fixed by TISCO - Similar view has been held by Tribunal in case of Surindra Steel Rolling Mills which has been confirmed by Punjab and Haryana High Court - No reason found to defer from said decision: CESTAT
- Appeal dismissed: KOLKATA CESTAT
2022-TIOL-708-CESTAT-MUM
CC Vs Reliance Jio Infocomm Ltd
Cus - Issue relates to classification of Small Factor Pluggable (SFP) and alternative claim of exemption under Notification No. 24/2005-Cus. - The department has not filed any appeal against the order passed by Commissioner (Appeals), Hyderabad and whereas no appeal has been filed against the order passed by Commissioner (Appeals), Mumbai - It is not open for Department to take a different stand on the same issue in Mumbai and Hyderabad - Such a differential classification of impugned goods imported at different places would negate the very purpose of Tariff Act on the one hand and would cause avoidable litigation for importers on the other - The findings given by Commissioner (Appeals) are quite elaborate and reasoned which were followed by Commissioner (Appeals), Mumbai in impugned order - Therefore, no case has been made out by Department against impugned orders and accordingly, impugned orders do not require any interference by this Bench: CESTAT
- Appeals rejected: MUMBAI CESTAT
2022-TIOL-707-CESTAT-KOL
Eagle International Vs CC
Cus - Appellant was given opportunity for hearing was extended by Commissioner to them to appear before him - But the same could not be availed by him for the reasons as stated that address has changed and CHA had never informed him about fixation of date of hearing - Without going further into merits of case, ends of justice will be met if order in respect of appellant is set aside and matter remanded back to Commissioner for decision on the notice issued to appellant after allowing him opportunities of hearing him before passing the order - On the request of Counsel tentatively, Commissioner is directed to hear the appellant - In case of any difficulty, Commissioner may fix any other date convenient to him and hear the appellant on that date - As matter is substantially old, Commissioner should re-adjudicate this matter within three months: CESTAT
- Matter remanded: KOLKATA CESTAT
