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2023-TIOL-362-CESTAT-MAD
CC Vs TVS Interconnect Systems Ltd
Cus - Appeal is filed by Department against order passed by Commissioner (A) who dismissed the appeal filed by Department on the ground of limitation - It is seen hand written on first page of O-I-O that date of receipt of order by Review Cell is 14.07.2010 - Commissioner (A) has discussed in impugned order that even after repeated requests Department did not furnish the date on which the original order was received by Reviewing Authority - No ground found to take a different view - The impugned order sustained: CESTAT
- Appeal dismissed: CHENNAI CESTAT
2023-TIOL-361-CESTAT-KOL
Uniglobal Papers Pvt Ltd Vs CCGST
CX - Appellant is engaged in manufacture of Kraft Paper and Duplex Paper - A SCN was issued proposing to deny and recovery of CENVAT Credit - The SCN also proposed to impose penalty in terms of Rule 15(2) of CCR, 2004 r/w Secion 11AC of CEA, 1944 - Issue is no more res integra since the period of dispute is 2007-08 and 2008-09 and amendment to the definition of 'input' was made on 07.07.2009 and which was made to be not retrospective - It is the case of appellant that disputed items of iron and steel, cement, welding electrodes were used in factory in manufacture of storage tank and also for pollution control system and thus are eligible as inputs and are squarely covered by definition of 'input' - In view of decisions in Singhal Enterprises Pvt.Ltd. 2016-TIOL-2451-CESTAT-DEL and SLR Steels Ltd. 2011-TIOL-892-HC-KAR-CX , impugned orders cannot be sustained and are therefore set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-360-CESTAT-DEL
Mangalam Cement Ltd Vs CCGST, Excise & ST
CX - The appellant is engaged in the manufacture of cement and clinker falling under Chapter 25 of the Central Excise Act, 1985 and has been availing cenvat credit on inputs, capital goods and input services under the provisions of Credit Rules, 2004, hereinafter referred to as the Rules - The appellant had set up another unit, i.e., Manglam Grinding Unit (MGU) which was located at a distance of about 2 kms from the existing original unit on a single piece of land - The appellant vide letter dated 23.01.2014 had approached the Department for granting common registration in respect of both the original unit as well as MGU - Initially the Original Registration Certificate was amended on 31.01.2014 so as to include the extended unit, MGU, however the Department subsequently changed its stand and challenged the said order - The issue of registration was finally decided both by the Tribunal as well as by the High Court of Rajasthan vide order dated 06.11.2015 and 25.05.2016 respectively, in favour of the appellant whereby the common registration granted was approved - On examination of the monthly ER-1, it was noticed that the appellant had availed the cenvat credit on input services which were actually used by them in the setting up of their new unit MGU which is not admissible after amendment of the definition of input service w.e.f 01.04.2011 - On examining the details, it was observed that the appellant had included all the bills and payments made from October 2013 to 03.02.2014 in respect of various services specified though the commercial production started only from 24.02.2014, which means that they were used by them in setting up of the new unit - Accordingly, SCN dated 26.08.2015 was issued for the period October 2013 to February 2014, as the Department was of the view that the appellant had wrongly availed the cenvat credit amounting to Rs 1,36,25,467/- on the services used in setting up of the new plant, namely MGU - Both the adjudicating authority vide order dated 14.02.2017 and the Commissioner (Appeals) as per the impugned order dated 13.06.2018 disallowed the credit solely on the ground that the definition of 'input service' under Rule 2(l) has been amended w.e.f. 01.04.2011, thereby the words input services relating to 'setting up' have been omitted vide Notification No. 3/2011-CE (NT) dated 01.03.2011 - Also, under the exclusion clause of the definition of input service the 'construction services' have been specifically added and therefore the credit has to be disallowed.
Held - The judgments relied on by the Revenue are distinguishable and are not applicable onto the facts of the present case - There is no agreement with the plea of per incuriam raised by relying on M/s Case New Holland Construction Equipment (I) Pvt. Ltd., vs. CC Ex., Ujjain to say that in the case of Hindustan Zinc the law laid down has not been considered as the said decision is based on the earlier decisions on the subject. The case law cited by the authorised representative is not applicable in the present controversy and is clearly distinguishable - We chose to take the same view as has been repeatedly and successively taken in the line of decisions by different Benches of this Tribunal and therefore reliance placed on Parle International Ltd., vs. UoI -2021 cannot be pressed. He also informed that the decisions of the Tribunal in the above said cases of Hindustan Zinc, Kellogs India have not been accepted by the Department and appeal has been preferred against them before the respective High Courts - However, there is no order of stay by any higher forum and therefore as a matter of judicial discipline the earlier decisions of this Tribunal on the same issue are binding on this Bench - The demand made by the Rvenue to deny cenvat credit by the appellant and order its recovery is rejected: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-359-CESTAT-KOL
MC Nally Sayaji Engineering Ltd Vs CCGST & CE
ST - The Appellant is in Appeal before the Tribunal assailing the Orderin- Appeal wherein the demand of Service Tax of Rs.19,61,585/- was confirmed along with interest and penalties of Rs.9,80,793/- imposed under Section 78(1) and Rs.10,000/- under Section 77 of the Finance Act, 1994 - The demand was confirmed on the ground of alleged mis-match of freight charges reflected in ST-3 vis-à-vis the books of account of the Appellant and on the grounds of non-payment of Service Tax on commissions paid by the Appellant for external commercial borrowings - The appellant underwent Corporate Insolvency Proceedings under the Insolvency and Bankruptcy Code 2016 and Resolution Plan framed thereunder has been approved by the relevant bench of the NCLT.
Held - From the date of approval of the Resolution Plan by the NCLT, the Appeal filed by the Appellant has abated and this Tribunal has become functus officio in the matters relating to this Appeal - Further it is also settled that the impugned Order-in-Appeal has got merged in the order of the NCLT approving the Resolution Plan - The Appeal stands abated as per Rule 22 of the CESTAT Procedure Rules, 1982 w.e.f. the date of approval of the Resolution Plan by the NCLT, i.e., 24.02.2023: CESTAT
- Appeal disposed of: KOLKATA CESTAT
2023-TIOL-358-CESTAT-MAD
VSL India Pvt Ltd Vs CST
ST - The issues required to be considered are; classification of service involved; whether TDS amount remitted by appellant partakes the character of consideration for 'service'; whether contention of appellant that situation is revenue neutral is correct and whether SCN issued by invoking extended period is justifiable - Appellant is primarily engaged in field of civil construction, performing supply of post tensioning slabs/beams, installation, stressing and grouting - It appears that while no definition of term "management" can be satisfactory, the best way to approach its construction would be negatively, i.e., by elimination - Section 65(65) too is worded widely enough to provide for this and covers financial management, human resources management, marketing management, management of information technology resources and, crucial residuary limb "other similar areas of management" - All the services under agreement will fall under one or the other of these limbs - There is some congruence, for example between "financial management" in statutory definition and financial services being rendered by foreign entity - Similarly, marketing management brings advertising within its scope - Other services such as insurance and legal services will fall within residuary limb, especially because these are not purported to be provided directly or with any professional expertise - It is not as if foreign enterprise is itself an insurer or a lawyer - It appears that it will only make those services available to appellant - Tribunal agrees with conclusions drawn by Commissioner in classifying services received by appellant under 'management or business consultant' service - Tribunal now consider the contention as to issue involving interpretation for invoking larger period and this appears to be genuine - This is because of reason that there was a host of services received but there is also no doubt in minds that a few of activities could possibly be brought under consultant engineer services - The very fact that even Board itself was not clear, for which reason an opinion was sought from expert, namely, IIM Ahmedabad, fortifies the stand of appellant that interpretation was involved - Thus, appellant has made out a case for interference insofar as invoking the larger period of limitation is concerned - To ascertain, however, tax liability for normal period, this issue, to this extent, is remitted to file of adjudicating authority - With regard to includability of TDS, appellant was correct in not including the TDS amount in value of taxable services: CESTAT
- Appeals partly allowed: CHENNAI CESTAT |
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