2022-TIOL-831-CESTAT-MUM
Venus Petrochemicals Pvt Ltd Vs CC
Cus - Appeal of appellant was rejected for non-compliance with requirement of pre-deposit as per Section 129E of Customs Act, 1962 - Since Commissioner (A) has not passed any order in matter remanded back to him, on merits, ends of justice will be met if this matter is again remanded back to Commissioner (A) for deciding issue involved, on merits, as per earlier remand order of Tribunal - Appellant would be barred from claiming refund of amount pre-deposited for filing of appeal in Tribunal till the disposal of appeal by Commissioner (A) in remand proceedings - As matter is sufficiently old, Commissioner (A) should decide the issue in remand proceedings within three months: CESTAT
- Matter remanded: MUMBAI CESTAT
2022-TIOL-830-CESTAT-DEL
Sohan Lal Khandelwal Vs CCE & CGST
ST - Appellant is a service provider being a pure agent who used to enter into contract with his client agreeing to incur expenses in course of providing taxable service - The demand in impugned case has been of Rs.4,91,762/- and for the financial year 2013-14 and 2014-2015 - Coming to the confirmation of demand on the amount of discount received by appellant from M/s. Obsurge Biotech Ltd., Adjudicating Authority has proceeded on the presumption that the amount in question has been obtained as consideration received for providing taxable service - There is no denial that appellant was providing taxable service but impugned amount is the amount of discount - Hence, it was for adjudicating authority to first decide whether the amount is towards consideration of service provided as of pure agent - Commissioner (A) has specifically mentioned that the amount of discount is not related with service - Still applying section 66 D of Service Tax Act for confirming service tax on this amount, is therefore held to be a wrong finding - Demand of service tax on the amount of discount received by appellant has wrongly been confirmed by Adjudicating authority - Same is set aside - Coming to the issue of demand of service tax on amount of commission received by appellant, agreement clarifies that the amount received as commission was very much the part of amount of consideration received for providing said services - However, as brought to notice the Notfn 33/2012, it is observed that the exemption from payment of service tax has been provided to small scale providers i.e. the one whose value of taxable service in proceeding year had not exceeded Rs.10 lakh - Year 2013-14 is the preceding year for 2014-15 when the value of taxable service rendered was less than Rs.10 lakh - Hence, exemption of said Notification shall definitely be available to appellant from paying service tax on value of taxable service received by him in the year 2014-15 - However, with reference to demand of service tax for year 2013-14, there is no data about the taxable income received by appellant in preceding year of Financial year 2013-14 (financial year 2012-13) - In absence of any documents for the same, benefit of exemption in said notification from payment of service tax cannot be extended for the amount of commission received by appellant during the financial year 2013-14 - Consequently to that extent demand stand confirmed i.e. on the amount of commission: CESTAT
- Appeal partly allowed: DELHI CESTAT
2022-TIOL-829-CESTAT-KOL
Kashvi Power And Steel Pvt Ltd Vs CCGST & CE
ST - The Assistant Commissioner allowed the exemption by way of sanctioning an amount as refund of Service Tax paid on taxable specified service for export of goods made under Bills of Export claimed by assessee - Pursuant to Review Order, Department filed an appeal before Commissioner(A) who allowed the appeal and modified the O-I-O on the ground that assessee is eligible for refund of Service Tax paid on pro-rata basis and is not entitled to Rs.32,62,020/- - In short, Rs.26,12,389/- has been considered as allowable by Commissioner(A) out of total claim of Rs.58,74,409/- - Once it is not in dispute that services are specified for refund purposes and since Service Tax was actually paid on 'specified service' pertaining to export activity, in terms of particular scheme of refund under Notfn 41/2012-ST as amended with clarifications, exporter is eligible for refund - Order passed by Commissioner (A) cannot be sustained as substantive benefit should not be denied to an assessee if conditions are fulfilled - It would not be out of place to mention that sole intention of Government to introduce this rebate schemes is to promote Indian exporters to enjoy a level playing field and to compete with exporters of other countries in global market - Further, it has never been the intention of Government to export taxes hence after much deliberation these schemes have been notified and refund claims if rejected on such grounds, will defeat the very purpose of rebate schemes - Impugned order is set aside : CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-828-CESTAT-KOL
Uniglobal Paper Pvt Ltd Vs CCGST & CE
CX - The only issue arises is, whether the Paper Cess is to be included in calculation of Education Cess and Secondary and Higher Education Cess - Department took a stand that Education Cess is levied on excise duty and Cess on paper is also a duty of excise, therefore, it should be included - Paper Cess is not levied by Department of Revenue, it is levied by Industrial Development, Ministry of Commerce and Industry - No doubt it is collected by Department of Revenue, but not levied by it - Hence Paper Cess is not includible - Lower authorities were proceeding on an erroneous premise when they considered the Paper Cess as a levy by Central Government in Ministry of Finance - They obviously lost sight of Circular 978/2/2014-CX where it has been clarified that the Education Cess and Secondary and Higher Education Cess are not to be calculated on cesses which are levied under Acts administered by Department/Ministries other than Ministry of Finance (Department of Revenue), but rather only collected by Department of Revenue in terms of those Acts - Facts of present case are similar to that of case in Joshi Technologies International 2016-TIOL-1240-HC-AHM-CX - Similar provisions as referred to in said case and Board's Circular have also been discussed by lower authorities - As High Court has already discussed at length there is no need to mention provisions separately - High Court after considering the decision of Supreme Court in case of Mafatlal Industries Ltd. 2002-TIOL-54-SC-CX-CB , allowed the refund claims in an identical situation - Accordingly, since Cess on Paper is not a duty of excise, provisions of Section 11B of Central Excise Act would not apply - Following the decisions of High Court, appeal filed by appellant is allowed: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-827-CESTAT-AHM
Schaeffler India Ltd Vs CCE & ST
CX - Appeal has been filed by appellant against demand of central excise duty, interest and imposition of penalty - Appellants are manufacturers of bearings - They also import bearing and sell the same after re-packing - The issue in dispute is if these "bearings" imported and repacked by appellant are covered by Sr. No. 100 and 100A of Third Schedule of CEA, 1944 and the activity of "packing or re-packing of such goods in a unit container or labeling or re- labeling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on goods to render the product marketable to consumer" amounts to manufacture and the goods will need to be assessed under Section 4 A in terms of Notfn 49/2008(NT) - It is clear that bearings falling under Chapter heading 8482 cannot be called "Parts" and "Parts and Accessories" even if they constitute integral part of engine or motors of machines or apparatus of heading 8401 to 8479 - Articles of heading 8481 or 8482 are excluded from the definition of "Parts" and "Parts and Accessories" under Section Note 2 (e) of Section XVII - As far as heading 8483 are concerned the same could be classified as "Parts" and "Parts and Accessories" provided they constitute the integral part of engine and motors - It cannot be held that the goods ordinarily falling under heading 8482 can fall under any classification under Section XVII of CETA, 1985 - Thus, implying that goods ordinarily classifiable under 8482, cannot be classified under any other heading as parts and machines - Impugned order is set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
