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2023-TIOL-389-CESTAT-MUM
OSM Ecocar Pvt Ltd Vs CC
Cus - Provisional release of seized goods - The goods sought to be cleared are used machinery items/capital goods - The goods seized were assessed by appraising group on the basis of procedure prescribed as per circular dated 05.02.2020 - The charge of under valuation cannot be established without challenging assessment made by assessing group as per the procedure prescribed - As no reasons are forthcoming for enhancing the value of imported goods over and above the value belonging by Chartered Engineer - The order prescribing conditions of provisional release is too harsh, taking note of the fact that on assessed value appellant has already paid duty - Taking into account, the fact that issue is in respect of redetermination of assessed value, the bond should not be more than diferential value - Commissioner (A) has in fact modified the order in respect of security deposit to be made without amending the value of bond - The value of bond and security needs to be redetermined in interest of justice protecting interest of both revenue and the appellant - Accordingly, conditions modified in the order of provisional release stating that used equipment (Capital goods) imported by appellant and seized can be released on execution of indemnity bond of Rs. 4,00,00,000/- (Rupees Four Crores) along with bank guarantee of Rs. 50,00,000/- (Rupees Fifty Lakhs) - Matter needs to be finalized expeditiously say within 6 months - Thus, appeal is allowed modifying the impugned order to the effect of stating that seized goods except tyres be allowed provisional release against Indemnity bond along with bank guarantee: CESTAT
- Appeal allowed: MUMBAI CESTAT
2023-TIOL-388-CESTAT-KOL
S K Sarawagi And Company Pvt Ltd Vs CCGST & CE
ST - Appellant had filed a refund claim in terms of Notification No. 41/2007-S.T. as amended by Notification No. 3/2008-S.T. for rebate of service tax on specified services received and used by them for export of iron ore fines during period February 2011 and from March 2011 to April 2011 - Dispute regarding admissibility of refund relates to two separate Service Tax Registration, one has been obtained for their Visakhapatnam unit and another has been obtained for their Kolkata office - Appellant brings to notice of Bench para 3.2.1 of C.B.E. & C. Circular No. 120/01/2010-S.T . to argue that self-certification of exporter or a Chartered Accountant, if given, is sufficient to sanction refund - In para 6.2 of this Circular, C.B.E. & C. has clarified that only a broad co-relation of input services and Service Tax paid is required to be made with respect to exports - Though the clarification was with respect to Notification No. 5/2006-C.E. (N.T.) but it clearly conveys that in budget 2009 scheme under Notification No. 41/2007-S.T. was simplified in Notification No. 17/2009-S.T. by providing self certification or Chartered Accountant's certification about co-relation and nexus between input Services & exports - That logic can be followed for Notification No. 5/2006-C.E. (N.T.) where such simplification ofNotification No. 17/2009-S.T. may not be available - Impugned order cannot be sustained and is accordingly set aside: CESTAT
- Appeals allowed: KOLKATA CESTAT
2023-TIOL-387-CESTAT-KOL
MTM Wines And Bottlers Pvt Ltd Vs CCE & ST
ST - The appellant is engaged in manufacturing of Indian Made Foreign Liquor (IMFL), from its plant located at Itanagar, Arunanchal Pradesh - The Appellant has entered into agreement with United Sprits Ltd. (USL), the Brand Owner (BO) as Contract Bottling Unit (CBU) to manufacture IMFL with its Brand name - Due to State Excise Regulation, it is a common practice in the industry that the Appellant has appointed a CBU to manufacture IMFL in CBU's factory and CBU's License with the brand belonging to the Brand Owner - The necessary raw/packing material is procured by the CBU in accordance with the instructions of the Brand Owner, i.e., from the vendors approved by the Brand Owner at the rates approved by the Brand Owner - Even disposal of the leftover raw/packaging material is to be done at the instructions of the Brand Owner - The manufacture, dispatch and sale of IMFL are also carried out as instructed by the Brand Owner at the prices decided by the Brand Owner - The actual manufacturer being the CBU, the necessary compliances with respect to tax and regulatory provisions are carried out by the CBU. Expenses required for manufacture are incurred by the CBU - The bank account in which the sale proceeds are received is controlled by the Brand Owner - For carrying out the manufacturing activity under the brand belonging to the Brand Owner, the CBU is entitled to agreed retention charges which are similar to job charge paid to the job worker in a job work manufacture scenario - Separately, the Brand Owner for providing his technology, brand, etc to the CBU for the manufacture of IMFL, charges CBU a certain amount under the Usership Agreement - The Brand Owner has paid Service Tax on the said amount being received from the CBU under the Usership Agreement - The Revenue issued two separate Show Cause Notices first for the period 23/09/2009 to 30th June 2012 on 14/09/2014 and second for April 2015 to June 2017 on 20th October 2020 to demand Service Tax from the Appellant on raw material/packing material cost and other expenses including Brand Owner surplus, disregarding the fact that the true nature of the transaction is that of a job work transaction, in which only the job work charges are taxable service - The said Show Cause Notices were adjudicated and demand of Service Tax was confirmed.
Held - As the issue involved in this matter has been settled by the decision of the Apex Court in the case of Union of India Vs. Intercontinental Consultants and Technocrats Pvt. Ltd. wherein it has been held that reimbursable expenses are not to be included in valuation of taxable service therefore, we hold that in Appeal No. ST/75983/2015, the reimbursable expenses cannot be includble in the assessable value of taxable service provided by the Appellant - Further the amount retained by the brand owner is also not includble in taxable value of service as per CBEC Circular dated 30th October 2009 - Therefore, the impugned order in Appeal No. ST/79893/2015 is set aside and Appeal is allowed - As the impugned period is 2015-17, wherein the Show Cause Notice has been issued to the Appellant on 20th October 2020, which is highly time barred as earlier - As earlier show Cause Notice of the same issue had been issued to the appellant on 16/09/2014 - Therefore, We hold that the Show Cause Notice is barred by limitation - Accordingly, Appeal succeeds on limitation - In these circumstances, we set aside the impugned order in Appeal No. ST/75951/2021 and allow the Appeal with consequential relief, if any: CESTAT
- Appeals allowed: KOLKATA CESTAT
2023-TIOL-386-CESTAT-BANG
Nucor Weld India Pvt Ltd Vs CCE, C & ST
CX - The issue arises for determination is whether by affixing brand name "NUCOR WELD" and "KEMTRODE" to manufactured welding electrodes, the appellants become ineligible to benefit of exemption Notification No. 8/99-C.E. - It is the allegation of department that said brand name belongs to erstwhile company viz., M/s. Nucor Weld Pvt. Ltd. and Kemtrode Pvt. Ltd. and even though appellant after signing MoU with M/s. Nucor Weld Pvt. Ltd. and Deed of Assignment with M/s. Kemtrode Pvt. Ltd., they cannot claim the benefit of Notification No. 8/99-C.E. since the said brand names used by them belongs to others - On the other hand, it is the claim of appellant that brand names assigned to them and transferred by a MoU by defunct companies would not disentitle them in availing the benefit of said Notfn inasmuch as said brand names does not establish a connection in course of trade of manufacture and sale of electrodes by defunct companies any more - The companies which were using trade mark "NUCOR WELD" and "KEMTRODE" since 1987 became defunct in 1997 and by way of MoU and Deed of Assignment, authorised the present appellants to use brand name for which appellant also made an application for registration of said brand name in their favour with trade mark authorities in year 1999 before using same brand mark - Trade mark authority ultimately registered the brand name "NUCOR WELD" and "KEMTRODE" in their favour subsequently in year 2004 and 2006 - The parties to brand name never contested about Assignment Deed nor signing of MoU in favour of appellant for use of said brand name - Appellant had discharged their burden by producing MoU as well as Deed of Assignment that brand name no more used by defunct companies but authorised to be used by appellant in course of trade - Thus, following the ratio of Supreme Court in case of M/s. Otto Bilz (I) Pvt. Ltd. 2015-TIOL-217-SC-CX and M/s. Stangen Immuno Diagnostics 2015-TIOL-133-SC-CX ; brand name "NUCOR WELD" and "KEMTRODE" used by appellant cannot be said to have been belonging to others establishing the connection of trade, thereby make them ineligible to benefit of said Notfn - Impugned order is set aside: CESTAT
- Appeals allowed: BANGALORE CESTAT
2023-TIOL-385-CESTAT-MAD
CPC Pvt Ltd Vs CGST & CE
CX - The appellants hold Central Excise registration as well as Service Tax registration - During the scrutiny of CENVAT documents, it was noticed that the appellant has availed input service credit attributable to the service tax paid to various CHA services in relation to their exports - The Notification No. 41/2007-S.T., dated 06-10-2007 provides exemption from service tax on specified services, including CHA services by way of applying for refund of the service tax paid by exporter provided no CENVAT credit on the service tax paid is availed - It was noticed by the Department that the appellant, instead of applying for refund of the service tax paid on CHA service tax had availed CENVAT credit of the same which was not eligible - The SCN was issued to the appellant to recover the wrongly availed CENVAT credit along with interest and also for imposing penalties - After due process of law, the original authority dropped the proceedings holding that the appellant is eligible to avail CENVAT credit - Against such order, the Department filed appeals before the Commissioner (Appeals) who set aside the order and allowed the appeals filed by the Department holding that the appellants are not eligible to take the credit and should have applied for refund.
Held - The issue at hand stands resolved by the Tribunal in the case of Monarch Catalyst Pvt. Ltd Vs. CCE wherein keeping in view all the facts and circumstances and the definition of ‘input services' as well as Notification No. 18/2009-S.T, it was held that the appellant therein was entitled to avail Cenvat credit in respect of commission paid to the commission agent based abroad & so the demand had been set aside - Following the judgment in Monarch Catalyst Pvt. Ltd Vs. CCE and in Save Industry Vs. CCE the demand raised merits being set aside: CESTAT
- Appeals allowed: CHENNAI CESTAT |
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