2022-TIOL-906-CESTAT-MAD
GKN Driveline India Ltd Vs CGST & CE
ST - The only issue to be decided is, whether Revenue was justified in demanding Service Tax on liquidated damages under Section 66E(e) of FA, 1994 - Issue is no more res integra as same is decided by Tribunal in case of M/s. Neyveli Lignite Corporation Ltd. 2021-TIOL-439-CESTAT-MAD which has followed the earlier decision of co-ordinate Delhi Bench in case of M/s. South Eastern Coalfields Ltd. 2020-TIOL-1711-CESTAT-DEL - Order of demand cannot be sustained and consequently, impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2022-TIOL-905-CESTAT-MUM
Middle Earth Enterprises Vs CST
ST - Appellant, having provided certain services that are clearly recognizable as 'security agency services', has discharged tax liability on consideration received from sub-contractor next, and above, in hierarchy of such delegation - As far as invoices raised by appellant on same recipient of services and which are in dispute here, are concerned, nature of service has not been identified - In absence of such identification, inclusion thereof in a composite service and applicability of the judicial decisions led by either side or the resort to section 65A of Finance Act, 1994 is not only academic but also a non-starter - Taking that definition into section 65(105)(w) of Finance Act, 1994 would lead to outcome of every compound wall/fence put up by any person to be that of 'security agency'; consequently and by extension, every civil project would be activity of 'security agency', thereby rendering 'construction service' or 'work contract service' in section 65 of Finance Act, 1994 to be superfluous - Fencing/compound wall are, after all, intended as safeguard against encroachment by neighbour, taken over by squatters or ingress by thieves - That, surely, cannot be the intent of section 65 of Finance Act, 1994 - The hierarchical assumptions on which demand has been established has collapsed on itself - Demand cannot sustain and consequently, impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-904-CESTAT-MUM
Dynasty Oil And Gas Pvt Ltd Vs CCGST
ST - Applicant is engaged in business of chartering of rigs on hire basis to Oil & Natural Gas Corporation - Applicant was duly discharging service tax on whatever amount it charged for such services rendered to ONGC under head 'mining services' - However, issue involved is, whether free of cost fuel/diesel supplied by service recipient i.e. ONGC in terms of agreement is includible in taxable value of mining services rendered by applicants - The Principal Commissioner has sought to distinguish the decision of Larger Bench of Tribunal and Supreme Court which is not correct - Decision in case of Bhayana Builders (P) Ltd. 2018-TIOL-66-SC-ST is squarely on issue under consideration - Said decision of Bhayana Builders has been followed in case of Vantage International Management Company 2021-TIOL-139-CESTAT-MUM - Since issue involved is identical to that of judgments and following the same, appeals allowed: CESTAT
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-903-CESTAT-KOL
Van Shah Fragrance Pvt Ltd Vs CCE
CX - Appellant was manufacturing Soya Products with brand name "Gulab" - On investigation, it was found that brand name "Gulab" was registered in name of M/s. Vinita Soya Products, a partnership firm in which Shri S. B. Sharma as well as Shri P. K. Sharma were partners - Revenue was of the view that appellant will not be eligible for benefit of SSI Exemption under Notfns 8/2002 as well as 8/2003 in as much as appellant had manufactured and cleared Soya Products bearing the brand name of another person - Benefit of SSI exemption has been denied to appellant not only for the reason that they were clearing the goods under brand name "Gulab Brand" but also for the reason that they had crossed the maximum prescribed limit of Rs 3 crore for availing said exemption in year 2003-04 - Revenue has further adduced evidences by making market enquiries and recording the evidences in form of statement of Directors of appellant and purchaser of goods - It is not just the statement but all circumstantial evidences which have been taken into account by adjudicating authority for concluding that Appellant had cleared the goods contrary to provisions of SSI Exemption Notification - Since benefit of SSI Exemption cannot be extended to appellant for said reasons, the question as to when they have crossed exempted turnover limit of Rs 1 crore is of no significance - As regards to limitation, Commissioner in impugned order have concluded that extended period of limitation can be invoked for making this demand - Appellant's contention is that they were under bonafide belief that their goods were classifiable under 23.04, and attracted Nil rate of duty till the issuance of Notfn 3/2006 classifying the said goods under 21061000 and attracting duty @ 8% - Appellants have not been able to show any ground by which they could claim that they entertained a bonafide belief that goods manufactured and cleared by them were not subject to excise duty or attracted nil rate of duty or were exempt from payment of duty - It is settled law that bonafide belief is not blind belief and need to be established before that plea can be taken - Thus, order of Tribunal in first round determining classification of goods and dutiability of goods manufactured and cleared by appellant has acquired finality - Appeals filed by appellant 2 and appellant 3 are allowed to extent of reducing penalties from Rs 2 lakh imposed on each by impugned order to Rs 50,000/- in view of the reduction granted by Tribunal in its earlier order: CESTAT
- Appeals partly allowed: KOLKATA CESTAT
2022-TIOL-902-CESTAT-KOL
Corporate Ispat Alloys Ltd Vs CCE & ST
CX - Refund claim filed by assessee have been denied under Rule 5 of CCR, 2004 - Commissioner (A) in impugned order has not examined the aspect of time bar - He has rejected the appeal only on the ground that since the assessee has already claimed benefit of drawback, refund of CENVAT Credit under Rule 5 is not admissible - No observation has been made with regard to other issues which were subject matter of dispute - Issue with regard to admissibility of refund, in case where drawback of only customs portion have been availed by assessee, has already been decided in favour of assessee by Tribunal in case of Cholayil Pvt. Ltd. 2020-TIOL-939-CESTAT-HYD and Sabharwals Medicals 2018-TIOL-414-CESTAT-ALL - There is no reason to deny refund when assessee has availed drawback of only the customs duty portion and not of excise duty which facts are not in dispute - Insofar as aspect of time bar is concerned, since no observation has been made by Commissioner (A), it would be fit to remand the matter to Commissioner (A) to decide the issue as to whether the refund claimed by assessee is within time: CESTAT
- Matter remanded: KOLKATA CESTAT
2022-TIOL-901-CESTAT-MAD
Intimate Fashions India Pvt Ltd Vs CGST & CE
CX - Appellants are engaged in manufacture of womens' inner garments - They avail the facility of CENVAT credit on taxes paid for various input services - Appellants have availed ineligible credit on outdoor catering services for period January 2010 to August 2010 for an amount of Rs.4,45,329/- - SCN was issued proposing to disallow the credit and also for recovery of same along with interest and for imposing penalty - Later a SCN dated 12.9.2011 was issued proposing to disallow credit for period from September 2010 to April 2011 for an amount of Rs.4,68,131/- on very same services - From the periods involved in both SCNs, it is seen that only one month from 1.4.2011 to 30.4.2011 pertains to period after amendment in definition of input services - Supreme Court in case of Toyota Kirloskar Motor Pvt. Ltd. has held that after 1.4.2011, appellant cannot avail credit on outdoor catering services - Following the same, credit availed for period 1.4.2011 to 30.4.2011 which is part of SCN dated 12.9.2011 is not eligible for credit - For the remaining period i.e. from January 2010 to August 2010 as well as from September 2010 to March 2011, credit will be eligible as definition of input service prior to 1.4.2011 included such services - Following the decisions in cases of Sharda Motor Industries Ltd. 2019-TIOL-2592-CESTAT-MAD and Chennai Container Terminal Pvt. Ltd. 2021-TIOL-478-CESTAT-MAD , it is held that the credit on outdoor catering services for these periods is eligible - The impugned order is modified to the extent of allowing credit for period from January 2010 to March 2011 and disallowing credit from 1.4.2011 to 30.4.2011: CESTAT
- Appeal partly allowed: CHENNAI CESTAT
2022-TIOL-900-CESTAT-MAD
CC Vs Genuine Copier Systems
Cus - Provisional release of goods - First Appellate Authority has only followed the order of Tribunal in case of M/s. S.P. Associates 2021-TIOL-632-CESTAT-MAD and also the decision of Apex Court in case of M/s. Delhi Photocopiers to order for provisional release of goods - The ratio of said case has been followed by Tribunal in case of M/s. Kutty Impex, wherein it was held that First Appellate Authority was correct in allowing the appeal thereby ordering provisional release of goods in question and since there is no change in facts, same is required to be followed in case on hand as well - Following the said ratio decidendi, therefore, appeal of Revenue is dismissed: CESTAT
- Appeal dismissed: CHENNAI CESTAT
2022-TIOL-899-CESTAT-MAD
Salasar Tools (An HUF) Vs CC
Cus - The issue arises is, whether Redemption Fine imposed under Section 125 of Customs Act, 1962 in regard to goods to reexport and penalty imposed under Section 112 (a) of the Act ibid is legal and proper - On an earlier occasion, very same goods were imported by appellant-importer from very same supplier through Nhava Sheva Port - The documents relating to earlier imports have been furnished by appellant and it is stated that they have been produced before original authority also - Relying upon the decision of jurisdictional High Court in Sankar Pandi 2003-TIOL-1525-HC-MAD-CUS , redemption fine imposed requires to be set aside - Appellant has argued to set aside penalty of Rs.7 lakhs imposed by adjudicating authority - Apart from goods at Sl.No.6 & 7 all other goods have been redeemed by appellant by paying redemption fine and appropriate duty - These goods which fall in Sl.No.2, 8, 10 & 11 have also been misdeclared/misclassified - Penalty imposed under Section 112 (a) of Customs Act, 1962 is improper - However, penalty of Rs.7 lakhs appears to be on a higher side, same is reduced to Rs.2,00,000/-: CESTAT
- Appeal partly allowed: CHENNAI CESTAT
