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2022-TIOL-1085-CESTAT-DEL
Babulal Gurjar Vs CCGST
ST - Appellant had taken suo motu registration in November 2016 and had started making compliance by filing Return and depositing admitted tax w.e.f. 01/10/2016 - Further, they maintained proper records of its transactions and turnover and also filed their IT-returns - There is no suppression or failure on the part of appellant to make compliance under service tax provisions - Rather revenue have chosen to not make any enquiry for period prior to 01/10/2016, soon after taking of registration in November 2016 - Thus, allegation of revenue that appellant have concealed its particulars of turnover from service tax department, and revenue came to know upon receipt of information only in 2019 on the basis of data received from the Income Tax Department is vague and frivolous - SCN is bad for invocation of extended period of limitation - During period under dispute, almost the whole turnover for providing service is in respect to work done in packing plant-maintenance job for Shree Cement Ltd - Admittedly, service has been provided inside the factory premises by providing JCB - Further, fuel was to be provided by service recipient whereas lubricants and maintenance was to be provided by appellant - Thus, appellant was to provide competent operating staff to operate JCB - Appellant have received hire charges for JCB, through bank and have also maintained proper records - Clause (f) of Section 66D provides that services by way of carrying out any process amounting to manufacture or production of goods, falls under the negative list and is exempted from levy of service tax - Classification of service under Works Contract Service by Commissioner (A) is beyond the scope of SCN and is held to be bad - Impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-1084-CESTAT-DEL
Shree Ganesh Constructions Vs CCGST & CE
ST - SCN was issued alleging that appellant was main contractor and they received the services of sub-contractor – Nadia Enterprises, on which service tax short paid is Rs. 64,521/- - Further, it was alleged that appellant have received input services of supply of manpower from Nagendra Mishra and on taxable value received during year 2011-2012 and 2012-2013, service tax was payable - Court below is not in error in observing that credit of the amount of Rs.3,58,555/- was not available on 31.03.2013 - However, in view of transitional provisions under CGST Act, 2017, if appellant is required to deposit said amount again in cash, the amount of tax adjusted earlier through cenvat credit will become refundable to them - Thus, situation is definitely revenue neutral - Further, this amount was admittedly deposited by service provider with interest - Demand of Rs. 3,58,555/- is set aside - Penalty imposed under Section 78 is also set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-1083-CESTAT-AHM
United Phosphorus Ltd Vs CCE & ST
CX - The Cenvat Credit was denied to appellant on two count i.e. that the appellant have availed Cenvat Credit on strength of photocopy of invoices of various service providers which is in favour of appellant's Head Office - Secondly, the Head Office was not registered as an ISD, therefore Head Office could not have distributed credit under a cover of invoice in terms of Rule 4A (1)(i) of Cenvat Credit Rules, 2004 - As regard, the issue is that whether appellant has correctly availed credit on strength of photocopy - Credit was denied only on presumption that there is a possibility of availing credit by other unit of appellant - Firstly, there is no charge in SCN to these effects - Secondly, without any evidence such serious allegation cannot be accepted - Since, there is a large number of services and invoices involved, same was in co-operated the statement, the statement contains all the details as required under Rule 4A, therefore, on the basis of such statement credit is admissible - Said statement is also document which contains all the details as required under Rule 4A at the same it is valid document under Rule 9 of Cenvat Credit Rules, 2004 - Issuance of documents under Rule 4A is a procedural requirement and substantial benefit like Cenvat Credit cannot be denied on the basis of procedural infraction - As regard, the issue that appellant Head Office was not registered as an ISD, therefore, distribution of credit is not admissible as Cenvat Credit to appellant, there is no dispute about payment of Cenvat Credit on input service received and credit thereof was distributed by Head Office - It has not been established by department that credit which distributed on invoices was distributed to more than one manufacturing unit of appellant, as same was neither a charge in SCN nor evident in impugned order - The appellant's Head Office had complete record of taking and distributing the credit which shows that ISD has not transferred excess credit as against the credit availed - The Head Office of appellant have filed periodic service tax return with Jurisdiction Service Tax Office disclosing all details of credit availed distributed to various units - Non-obtaining the ISD registration will not disentitled the appellant from availing the Cenvat credit - Appellant is entitled for Cenvat Credit, hence, the impugned order denying Cenvat Credit is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-1082-CESTAT-AHM
CCE & ST Vs Alok Industries Ltd
CX - Applicant filed miscellaneous application in view of NCLT order - The NCLT has passed an order by approving resolution plan of appellant company in favor of JM Financial Asset Reconstruction Company Limited and Reliance Industries Limited, who are the resolution applicant - As per resolution plan approved by NCLT and in light of Supreme Court judgment in case of Ghanashyam Mishra & Sons Pvt. Ltd. , it prima facie appears that adjudged dues cannot be recovered by department however, this issue has to be decided by department and not by Tribunal - For this reason, that firstly, there is no provision made in Customs and Central Excise Act to give effect of NCLT proceedings - This Tribunal being creature under Customs Act, even though the Insolvency and Bankruptcy Code have over riding effect over all the other acts, in absence of any explicit provision under Customs/Central Excise Act, Tribunal cannot decide finally whether adjudged amount can be recovered by department - Appeals became infructuous - Central Board of Indirect Taxes & Customs may consider issuing guideline/procedure for dealing with case before tribunal wherein, against applicant's company, Insolvency and Bankruptcy Code (IBC) proceeding has been initiated: CESTAT
- Appeals dismissed: AHMEDABAD CESTAT
2022-TIOL-1081-CESTAT-AHM
Utkarsh Chemicals Vs CC
Cus - Appellants were importing goods namely Polyester Bed Cover - A SCN was issued to appellant proposing classification of imported goods as "Polyester Woven Fabrics" under Tariff Item 54075490 of Customs Tariff Act, 1975 against declaration as "Polyester Bed Cover" under CTH 63041990 and differential duty of customs apart from confiscation and imposition of penalty - Issue is no longer res integra as same was already decided by this bench vide Final Order dated 11.01.2022 - Following the said decision, impugned order is not sustainable, hence same is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
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