2022-TIOL-853-CESTAT-KOL
Steel Authority Of India Ltd Vs CCGST & CE
CX - Appellant had erroneously paid Central Excise duty @10.3% instead of discharging duty @12.36% while issuing original invoice - On realizing the mistake, they issued supplementary invoices on with an objective to recover duty @ 2.06% (12.36% – 10.3%) - However, appellant once again paid the entire excise duty @ 12.36% instead of discharging the differential duty @ 2.06%, resulting in excess deposit of duty - Revenue has not controverted the Certificate of Chartered Accountant - It is settled law that if assessee has not received the amount from buyers, it cannot be held, that appellant will be unjustly enriched - Decision of Tribunal in case of Mhatre Engineering Pvt. Ltd. 2008-TIOL-1754-CESTAT-MUM and High Court of Madras in case of Southern Agrifurne Industries Ltd. are very much on the point - By following these judgements, it has to be held that impugned order is not sustainable: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-852-CESTAT-KOL
Shalimar Paints Ltd Vs CCGST & CE
CX - The Appellant is having three manufacturing units at Nasik, Sikandrabad and Howrah and Head Office at Kolkata - The Appellant was receiving services of Goods Transport Agency (in short GTA) at the head office for removal of goods from respective factories to its various depots. Though the Head Office was registered with the Service Tax Department since 2007 and they were distributing the credit to their units, they were not having ISD registration which was granted later on in 2016 - Since the Head Office was making payment in respect of all input services received at the Head Office and inward and outward GTA services at/to factories/depots, the Head Office passed on entire credit to its Howrah factory, the Appellant herein - Due returns were also filed with the Department - That on being enquired by the Department, the Appellant vide letter dated 10.01.2008 explained its stand on entitlement of credit in the manner stated above. Thereafter, summon dated 09.05.2008 was issued to Authorized Signatory Shri T.K. Ghosh asking him to appear on 16.04.2008 i.e. before the date of summon - However, his statement was recorded on 09.05.2008 itself - Nothing happened thereafter for over a year when show cause notice dated 28.01.2010 was issued for the period from January 2005 to March 2008. Thereafter another Show-cause Notice was issued on 02.05.2014 i.e. after more than four years from the first show cause notice for the period from April 2009 to March 2012. No Show-cause Notice was issued for the year 2008-09. Held - As regard the admissibility of credit on GTA services upto 1.4.2008, the issue is no more res integra on merits itself in the light of judgment of Supreme Court in the case of CCE vs. Ultratech Cement Ltd. and decision of the Tribunal in the case of Ultratech Cement Ltd. - Therefore, following the same, we hold that the credit on GTA services from the place of removal upto 1.4.2008 was rightly admissible to the Appellant - As regard the issue of distribution of credit prior to 1.4.2016, it is observed that Rule 7 of CCR provided mechanism to distribute the credit and it was only after amendment made in 2016, the condition for proportionate distribution was inserted - This issue has also been settled by the Tribunal in the case of Piramal Glass P. Ltd. that prior to 1.4.2016 there was no need to proportionately distribute credit to all the units - Therefore, the credit was rightly distributed to the appellant by its Head Office during the period in dispute - As regard the distribution of credit by the Head Office without obtaining ISD registration, here also the Counsel submits that the issue involved being of general in nature, the law has already been settled by the Gujarat High Court in Doshin Ltd. - The Appellant has also relied upon the Judgment of Madras High Court in the case of CCE vs. Pricol Ltd. and the Tribunal's decisions in the case of HICAL Technologies P. Ltd. and in the case of Rajendra Kumar & Associates - These decisions are squarely applicable to the facts of the present case - Hence the order denying credit on the basis of non- registration of Head Office as ISD is not sustainable: CESTAT Held - As regards invocation of extended period, since we are allowing the appeals on merits itself, there otherwise remains no need to look into the issue of limitation - However, it is an admitted fact that the Appellant was claiming credit on GTA services and this was duly entered in their statutory records, Head Office was registered with Service Tax Department and though the Department initiated enquiry in 2008 but still chose to issue show cause notice only in 2010 - Further second show-cause notice was issued in 2014 - This issue has already been dealt with by the Supreme Court in the case of Nizam Sugars Ltd. - Once it is settled that the decision is in favour of the Appellant on merits itself, there can otherwise be no scope for denial of credit by invoking extended period: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-851-CESTAT-DEL
Quality Builders And Contractor Vs CCGST
ST - The period involved is from 2015-16 and issue is as to whether appellant is entitled to claim refund of service tax deposited by appellant on construction of individual/independent residential houses and whether the same is hit by principles of unjust enrichment - Appellant had constructed residential houses for Housing Board - It is true that w.e.f July 01, 2012 'construction of complex' is a declared service, but Exemption Notification exempts services by way of construction, erection, commissioning or installation of original works pertaining to a single residential unit otherwise than as a part of a residential complex have been exempted - Commissioner (A) was not justified in holding that appellant would not be entitled to benefit of Exemption Notfn - Commissioner (A) was also not justified in holding that refund was hit by principles of unjust enrichment - As per work orders, service tax was to be borne by appellant and Commissioner (A) has also found, as a fact, that contract awarded by Housing Board to appellant mentions that service tax shall be borne by contractor - Allahabad High Court in Indian Farmers Fertilizers Coop. Ltd. 2014-TIOL-1157-HC-ALL-ST held that a refund can be claimed by a person who has borne the incidence of tax - Even in accordance with Exemption Notfn, 50% of tax to be deposited by Housing Board under reverse charge mechanism was deducted by Housing Board from amount payable to appellant - Commissioner (A) was, therefore, not justified in rejecting refund claim of appellant on the ground of unjust enrichment - Impugned order, therefore, cannot be sustained and is set aside - Appellant would be entitled to refund in accordance with law: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-850-CESTAT-AHM
Vinod H Patel Vs CCE & ST
ST - Assessee is in appeal against rejection of refund claim filed by them under Section 102 of Finance Act, 1994 - Said refund claim was not filed within a period of six months as provided in sub Section (3) of Section 102 of Finance Act, 1994 - The Finance Bill was granted assent on 14.05.2016 - Refund claim has been filed on 07.03.2017 - Issue has been settled by decision of Madhya Pradesh High Court in case of MDP Infra (India) Pvt. Limited 2019-TIOL-1935-HC-MP-CX , which was approved by Apex Court - Therefore, relying on the decision of Apex Court, appeal is dismissed: CESTAT
- Appeal dismissed: AHMEDABAD CESTAT
2022-TIOL-849-CESTAT-AHM
Pasupati Acrylon Ltd Vs CC
Cus - The issue involved is, whether the quantity of liquid import cargo should be taken on basis of weight mentioned in invoice or on actual shore tank received weight for the purpose of assessment of custom - Issue is no longer under dispute since not only the Supreme Court in case of Manglore Refinery & Petrochemicals Ltd 2015-TIOL-199-SC-CUS decided that quantity of liquid cargo should be taken on actual shore tank received basis and not on the basis of invoice and same was accepted by Board by withdrawing the earlier circular - Therefore, issue is no more under dispute now - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
