2022-TIOL-786-CESTAT-MUM
IDBI Intech Ltd Vs CCGST & CE
ST - Appellant is provider of services under category of 'information & technology software service', 'commercial training service' and 'business auxiliary service' - During audit, it was detected that appellant has availed inadmissible cenvat credit of service tax paid on outdoor catering services - Initially appellant contested said objection but subsequently vide their letter informed that they have paid entire amount of tax and interest vide GAR-7 challan under protest - A SCN was issued to appellant - Commissioner (A) has quoted the definition of input service - In view of express provision of Rule 2(l) of Cenvat Credit Rules, 2004 defining the input services to exclude outdoor catering services, and decision of larger bench of Tribunal in case of Wipro Ltd. 2018-TIOL-3256-CESTAT-BANG-LB , the decision rendered by Single Member Bench in case of Hawkins Cookers 2021-TIOL-169-CESTAT-MUM is per incurriam and cannot be relied upon as binding precedence - The view expressed in case of Wipro Ltd., has been approved by High Court of Karnataka, High Court of Bombay and Supreme Court - No merits found in submissions made by appellant in respect of admissibility of credit - On the issue of limitation, it is observed that appellant had nowhere declared in respect of credit being taken by them in respect of outdoor catering services - The argument that they have been paying service tax on subsidized rate treating canteen services as their output services is without any merits - It was during the course of audit that this fact came to light that appellant had availed cenvat credit in respect of excluded services - Issue of limitation is question of fact based on existence of ingredients provided by Section 73 of Finance Act, 1994 for invoking extended period of limitation - The facts which were in knowledge of appellant but not disclosed at any time to Revenue would be a suppression of fact with intention to evade payment of service tax - Demand made invoking extended period of time can be sustained - Even otherwise appellant has deposited this amount on 03.07.2018 and SCN was issued on 18.07.2018 - Since appellants had paid the amount under protest and SCN was issued to them within less than a month the same cannot be said to be hit by bar of limitation - On being pointed out by audit, appellant has deposited entire amount of tax due along with interest under protest - The amounts paid have been appropriated by O-I-O against demand - As entire amounts along with interest have been paid prior to issuance of SCN, in view of Explanation 2 to the sub-section (3), no merit found in penalty imposed on appellant under section 78 ibid and same is set aside : CESTAT
- Appeal partly allowed: MUMBAI CESTAT
2022-TIOL-785-CESTAT-MUM
BNP Paribas India Solutions Pvt Ltd Vs CST
ST - Appellant filed refund applications under Rule 5 of Cenvat Credit Rules, 2004 r/w Notification No. 05/06-C.E.(N.T.) for period October 2009 to March 2010 and April 2010 to September 2010 - Same were rejected in part - First ground for modification of refund claims is that certain credits which have been taken for computation of refund in terms of Rule 5 are ineligible credits - However, admittedly no proceedings have been initiated against appellant for denial of such credit in terms of Rule 14 ibid - In absence of such proceedings, lower authorities cannot be justified in modifying refund claims for this reason - This is the view which has been expressed by Tribunal in appellant's own case 2021-TIOL-831-CESTAT-MUM - From the total CENVAT Credit taken deductions is made of amounts reversed under Rule 5C of Cenvat Credit Rules, 2004 - The formula is very clear on this aspect that no deduction from the total cenvat credit taken will be made on any other account while computing Net CENVAT Credit - Whatever taxes are paid utilizing cenvat credit availed during period will automatically get deducted because if an assessee has utilized certain portion of credit, then that amount would not be available as a balance on close of month/quarter in which the refund is sought - It is very clear that that while filing the refund claim claimant has to debit the amount claimed by him as refund under Rule 5 ibid from his CENVAT Account - Lower authorities have been in error while deducting the amount of credit that would have been utilized for payment of taxes/duties in respect of domestic clearances from total CENVAT Credit taken while determining Net CENVAT Credit for application of formula as per Rule 5 - Accordingly impugned order can not be sustained on both the counts: CESTAT
- Appeals allowed: MUMBAI CESTAT
2022-TIOL-784-CESTAT-DEL
CCGST & CE Vs Paraj Exim
CX - Issue is regarding eligibility of exemption Notification No. 50/2003-C.E. to respondent - Tribunal has, in final order observed that "the whole issue is whether the gold unit which was purchased by respondent was availing area based exemption or not" and remanded the matter to adjudicating authority for this limited purpose - It is clear that Tribunal was aware that respondent had purchased only the silver and gold unit from OSMI on 15 October 2015 and this unit was established by OSMI in October 2015 and due intimation was given to Department - Tribunal is unable to agree with submission of revenue that Tribunal had an incorrect impression that entire unit of OSMI was transferred to respondent and accordingly passed the final order - The final order passed by Tribunal attained finality and matter was remanded for limited purpose - The factual report by Superintendent was that the gold and silver unit was availing benefit of exemption notification before it was transferred to respondent - Therefore, impugned order of Commissioner (A) upholding the order of Assistant Commissioner are correct and proper: CESTAT
- Appeal rejected: DELHI CESTAT
2022-TIOL-783-CESTAT-DEL
Nakoda Ispat Ltd Vs CC
CX - The issue involved is regarding allowance of proper interest under Section 35FF of Central Excise Act, 1944 - In case of Parle Agro Limited , wherein the amount was deposited during stage of investigation/audit, Tribunal have held that on being successful in appeal, interest is allowable under Section 35FF from date of deposit till the date of refund - Further, following the ruling of Apex Court in case of Sandvik Asia Ltd. 2006-TIOL-07-SC-IT , it has been held that interest shall be payable @ 12% p.a. - Single Member Bench of Tribunal in case of Riba Textiles Ltd 2020-TIOL-932-CESTAT-CHD have also granted interest @ 12% p.a. under Section 35FF - This order had been appealed against by Revenue before High Court and, by its judgement, High Court have upheld the grant of interest @ 12% p.a. - Impugned order(s) modified to the effect that appellant shall be entitled to interest under Section 35FF ibid @ 12% p.a. from the date of deposit till the date of grant of refund - Accordingly, Adjudicating Authority is directed to grant balance amount of interest within 45 days: CESTAT
- Appeals allowed: DELHI CESTAT
2022-TIOL-782-CESTAT-DEL
BBM Impex Pvt Ltd Vs Pr. CC
Cus - The only issue involved is as to under which Section, appellant is entitled to interest, rate of interest and period of interest - Appellant is entitled to grant of interest under Section 129EE of Customs Act, 1962, for the period from the date of deposit till the date of refund - As regards the rate of interest, interest is payable @ 12% P.A. following the ruling of Supreme Court in Sandvik Asia Ltd. 2006-TIOL-07-SC-IT - Impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
