2023-TIOL-239-CESTAT-AHM
Chowgule Brothers Pvt Ltd Vs CCE
ST - Issue involved is that whether refund of appellant is hit by mischief of unjust-enrichment as per Section 11 B (1) of Central Excise Act, 1944 - Limited issue to decide is that in spite of issuing credit note by appellant to their customers towards service tax which was initially charged whether unjust-enrichment exists or otherwise - There is no dispute that appellant have initially charged service tax to customer - Subsequently, same was reversed by issuing credit note to customers, therefore, incidence of service tax paid by appellant was not passed on - Unjust-enrichment does not exist in case where appellant initially charged duty / service tax and subsequently issued credit note for the same - Appellant's refund claim does not fall under clutch of unjust-enrichment - Accordingly, appellant is entitled for refund claim, hence, impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2023-TIOL-238-CESTAT-DEL
Prem Motors Pvt Ltd Vs CCE & CGST
ST - Assessee is in appeal against impugned order challenging levy of service tax for incentives granted by manufacturer to them - Tribunal examined the dealership agreement entered between MSIL and the assessee and it is found that MSIL is engaged in manufacturing, marketing and selling of motor vehicles and assessee purchases the vehicles from manufacturer as their authorised dealer on principal to principal basis - The activity undertaken by assessee is for sale and purchase of vehicle and incentives are in nature of trade discounts - The incentives, therefore form part of sale price of vehicles and have no correlation with services to be rendered by assessee - That in terms of dealership agreement, assessee purchases the vehicles from MSIL and sells the same to its end customers - The activity of promoting sale is with respect to vehicles owned by assessee which incidentally is in interest of both the parties - Reliance is placed on the observations referred in case of Kafila Hospitality and Travels Pvt Ltd. 2021-TIOL-159-CESTAT-DEL-LB - Assessee is engaged in onward sale of vehicles which involves merely transfer of property in goods which is excluded from definition of 'service' - That section 66D of Finance Act, 1994 contains the negative list of services under various clauses and clause (e) provides for 'trading of goods' - On this ground also, it is found that incentives which are part of sale activity are not exigible to service tax - The amount of incentives and discounts cannot be treated as consideration for any service and therefore no Service Tax is leviable thereon - Having decided the issue on merits in favour of assessee, it is no longer required to go into the question of limitation raised by assessee - Impugned order is therefore, set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-237-CESTAT-MAD
ITC Ltd Vs CGST & CE
CX - The points for consideration before Commissioner (A), which are also the points for determination listed in appeal are, whether IDSC debit notes would form part of cost of paper and paper board received from their Bhadrachalam Unit, whether value of paper received from Bhadrachalam unit is 115%/110% of cost of production or just 100% in hands of appellant and whether unabsorbed overheads due to idle capacity of machine be loaded to cost of production and cost of closing stock - The three issues on which demand for differential duty was confirmed by orders of Deputy Commissioner have since been decided in appellant's favour by Tribunal Vide Final Order dated 28.2.2023 in respect of period 2001 – 2003 – 04 involving identical facts - The issues listed in this order are answered in favour of appellant - Impugned order is set aside: CESTAT
- Appeals allowed: CHENNAI CESTAT
2023-TIOL-236-CESTAT-MAD
ABB Ltd Vs CC
Cus - Appellant filed refund claim in terms of Notfn 102/2007-Cus. as amended - Said claim was for refund of 4% of Special Additional Duty (SAD) paid by them at the time of import of goods - Same was partly rejected observing that appellant has not satisfied the requirement as stipulated in para 2 (b) of notification - It is not disputed that appellant-importer is a trader - The trader-importer would be eligible for refund even though the requirement under para 2(b) of Notfn 102/2007-Cus. is not satisfied - Rejection of refund cannot be justified - Impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT |
