2023-TIOL-218-CESTAT-MUM
Creative Newtech Ltd Vs CC
Cus - Appeals filed against impugned order wherein Commissioner (A) has decided the appeals against re assessment order made on Bill of Entry modifying the self assessment made by appellant claiming benefit of exemption under Notification No. 50/2017-Cus without issuance of any speaking order as per Section 17(5) of Customs Act, 1962 - Issues that need to be considered are, correct classification of imported goods whether under heading No 8525 80 20 or under the heading 8525 80 90; whether exemption under Notification No. 50/2017-Cus is admissible to appellant - The cameras imported by appellant of Models referred in table are "Digital Cameras", and would merit classification in this heading 85258020 only which is more specific rather than residual entry at 85258090 as held by Commissioner (A) - The only reason for holding classification of these cameras under heading 8525 80 90 as stated in impugned order is that the imported cameras are capable of recording video also - Accordingly, classification of imported action cameras by appellants of the models as indicated in table will be under CTH 8525 80 20, at the relevant time - Tribunal is not in agreement with findings recorded in impugned order to the effect that phrases used in Notification No. 50/2017-Cus has to be interpreted in light of Explanation which was there in some other Notification at any point of time - Tribunal is not concerned with interpretation of Notification wherein explanation was given defining phrase "Digital Still Image Video Cameras" - Said explanation cannot be used to restrict the phrase used in notification under consideration - If government intended that said phrase should have been interpreted according to explanation contained in earlier notification then same explanation could have been inserted in present notification - There are two notifications one of which impose a restriction in terms of capacity and time limitation of recording, whereas the other do not impose and such restriction, once it is found that imported action camera qualifies as "Digital Still Image Video Camera", benefit of exemption under Notification No. 50/2017-Cus cannot be denied - Since no speaking order has been made either by assessing officer Commissioner (A) and matter remanded to assessing officer to pass an speaking order, no infirmity found in order of Commissioner (A) - However while dismissing the appeals filed by appellant against this order, assessing officer is directed to finalize the assessment orders as per observations made: CESTAT
- Matter remanded: MUMBAI CESTAT
2023-TIOL-217-CESTAT-AHM
Ultratech Cement Ltd Vs CCE & ST
CX - Issue arises is as to whether appellant is entitled for refund under Notification No. 52/2011-S.T. in respect of services namely, documentation charges and agency fees, draft survey charges, bunker survey charges, sampling and analysis charges for export of excisable goods i.e. Cement - This issue has been considered in appellant's own case by Tribunal vide order 2013-TIOL-675-CESTAT-AHM and has been decided in favour of appellant - There is no dispute about use of these services for export of goods - The only dispute raised by appellant is that classification of services is not correct - Revenue cannot raise objection challenging classification at the recipient end which is a settled law - On this ground refund cannot be denied: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2023-TIOL-216-CESTAT-MAD
Tansi Pump Unit Vs CGST & CE
CX - The issue to be considered is, whether appellant is liable to pay duty on scrap that has been sent to job workers for manufacture of intermediate products such as angles and channels - It is not disputed that removal of scrap to job worker was done as per Rule 4(5)(a) of Cenvat Credit Rules, 2002 - So also, it is not disputed that job worker cleared intermediate goods in nature of angles and channels to appellant by paying duty and raising invoices - SCN is issued invoking extended period - Appellant has accounted removal of scrap to job worker as well as clearance of intermediate goods (angles and channels) by payment of duty - Department has vaguely alleged that appellant has suppressed facts with intention to evade payment of duty - There is no evidence to show that appellant has done any positive act to deliberately suppress the facts so as to evade payment of duty - Appellant therefore succeeds on ground of limitation also - Impugned order is set aside on merits as well as on the ground of limitation: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-215-CESTAT-MAD
Fifth Avenue Sourcing Pvt Ltd Vs CCE & ST
ST - Present appeals are a follow-up of original SCN issued to assessee for period from July 2003 to March 2007, which resulted in issuance of O-I-O - The Tribunal vide Final Order dated 07.09.2017 held that no tax liability would arise and that there was no justification for imposition of penalties and allowed the appeal filed by assessee - Assessee rendered services to foreign companies for evaluation of prospective garment manufacturers, processing purchase orders, customer management, tracking of delivery schedules, operational assistance for marketing, customer service, pricing policies, managing, distribution and logistics - They also rendered services to domestic vendors by procuring orders for them from foreign companies, rendered operational assistance in execution of purchase orders and ensured receipt of sale proceeds from foreign buyers - The services have been correctly classified under specific heading of 'support services of business or commerce' and does not require to traverse through section 65A(2) of Finance Act, 1994 - Section 65A(1) ibid states that for purposes of this Chapter, classification of taxable services shall be determined according to terms of sub-clause of clause (105) of Section 65 ibid - Same having being satisfied, provisions of Section 65A(2) ibid need not be examined - Moreover, none of SCNs have taken recourse to section 65A(2) to decide on classification of service - The Tribunal's judgment in case of assessee in M/s. Fifth Avenue 2009-TIOL-1815-CESTAT-MAD has clearly found without ambiguity that services rendered to vendors and companies by assessee therein conformed to statutory definition of SSBC and hence, services rendered to vendors and companies were classifiable under SSBC and not under BAS - Hence section 65A of Finance Act, 1994 was not required to be discussed in order - As regards revenue's claim that LC margin retained by assessee was nothing but consideration received for marketing services rendered for vendors and identification and procurement services rendered to buyers and hence, could not be classified as "export of service" - Matter has also been examined in detail by Tribunal vide Final Order dated 07.09.2017 - The issue hence does not survive for fresh consideration - It was also brought to notice by assessee that appeal filed by Department against said judgment before Supreme Court was dismissed as withdrawn - Impugned orders are set aside: CESTAT
- Appeals allowed: CHENNAI CESTAT
2023-TIOL-214-CESTAT-AHM
R D Contractor And Company Vs CCE & ST
ST - Issue arises is that the construction service provided to Gujarat State Police Housing Corporation Limited for construction of residential complex for police staff is liable to service tax or otherwise - Lower authorities have contended that Gujarat State Police Housing Corporation Limited is not a Government of Gujarat organization whereas the same is an independent Company registered under the Company's Act therefore, service provided to Gujarat State Police Housing Corporation is liable to service tax - It is found that the Gujarat State Police Housing Corporation Limited is 100% owned by Government of Gujarat under the Ministry of Home Affairs therefore the same was held to be a government organization in various judgments - Demand of service tax cannot sustain: CESTAT
- Assessee's appeal allowed: AHMEDABAD CESTAT
2023-TIOL-213-CESTAT-BANG
Softline Upvc Windows And Doors Vs CCT & CE
ST - Appellant is engaged in providing fabrication services from premises taken on lease from Kerala Industrial Infrastructure Development Corporation (KINFRA) - They filed the refund claim which was rejected by adjudicating authority as sufficient documents were not produced before him including invoices issued by M/s. Kinfra and also the worksheets submitted by appellant did not tally with refund claim - Refund claim was filed within prescribed time period of six months as stipulated under Section 104 of Finance Act, 2017 - Only issue to be addressed is correctness of documents vis-à-vis quantum of claim filed by appellant - Appellant submits that relevant Invoices, certificates were procured by them subsequent to order of adjudicating authority and appellate authority, by which now they can establish that refund amount is correctly claimed by them and admissible - Revenue vehemently argues for verification of documents - Matter remanded to adjudicating authority only for the limited purpose of verification of documents on record and documents that would be submitted by appellant during remand proceedings so as to verify the claim filed by appellant - It is directed that refund claim be adjudicated within three months from date of communication of Order: CESTAT
- Matter remanded: BANGALORE CESTAT |
