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2023-TIOL-394-CESTAT-MUM
Ribbit Studios Vs Asstt. CCGST & CE
ST - Issue relates to denial of CENVAT Credit and asking for its recovery with interest and equal penalty - Dispute remains confined to sole point as to if invoices not raised as per address mentioned in registration certificate of appellant are eligible for purpose of availment of CENVAT Credits - Judicial precedent relied upon by appellant, including the one referred by Commissioner (A) in case of mPortal India Wireless Solutions P. Ltd. 2011-TIOL-928-HC-KAR-ST are in favour of appellant - Since it has been distinctly analysed in all those judgements that there was no such requirement of having premises registered so as to make credits eligible for purpose of its availment against inputs taken for providing output services - In respect to non-adherence of judicial precedent set on issue, as found in relied upon decisions, the ground cited by Commissioner (A) is that in all such cases the premises were sought to be registered subsequently - This is also untrue for the reason that in leading case of mPortal India Wireless Solutions P. Ltd. itself, referred by Commissioner (A), it was held that registration with department is not a pre-requisite for claiming credit as no provision is in existence in CENVAT Credit Rules, 2004 to impose such restriction - Moreover, going by judgments relied upon, it is not noticeable that only because premises were subsequently registered credit for previous period was allowed since in some of the cases credits were also allowed in respect of other unregistered premises - As could be found from CENVAT Credit Rules, 2004 except for filing application for refund which is to be made to jurisdictional Commissioner under whom the business of appellant is carried out no such provision exist for rejection of credit availed by any assessee on the ground that the service provider has not issued the invoices in its address registered with Service Tax Authority - Impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2023-TIOL-393-CESTAT-AHM
N J Devani Builders Pvt Ltd Vs CST
ST - As regard the service tax demand on construction service to GERMI apart from ground that the same is not commercial construction being an education trust, appellant also made an additional ground by way of miscellaneous application that entire service falls under works contract service - However, this ground was taken first time before Tribunal - Therefore, lower authorities had no occasion to deal with this issue - Issue in respect of construction of GERMI… needs to be re considered from the angle of work contract service - As regard the issue of service tax on supply of furniture, Lower Authority have held the said activity as commercial construction and demanded tax accordingly - Mere supply of readymade furniture cannot be classified as commercial construction service, supply of furniture is nothing but sale of furniture - Hence, the same cannot be classified as taxable services - Accordingly, service tax demand is not sustainable and same is set aside - As regard the issue relates to demand of Service tax on the activity of strengthening of culverts on roads, this service is directly connected to road and any work related to public road is excluded from service of commercial or industrial construction - For this reason, same cannot be taxed under commercial or industrial construction service - Hence, demand is set aside: CESTAT
- Appeal partly allowed: AHMEDABAD CESTAT
2023-TIOL-392-CESTAT-MAD
CC Vs LG Electronics India Pvt Ltd
Cus - Assessee filed a refund claim for whole of additional duty of customs paid at the time of import of electronic goods which were subsequently sold in domestic market with proper sales invoice - It was observed that goods were declared as "LG Brand Super Multi DVD Re-Writer, LG Brand DVD-Writer Drive", whereas description of goods in Bill of Entries were "LG Brand DVD Writer Drive and LG Brand DVD ROM Drive" - Assessee has imported goods claiming exemption under Notfn 102/2007-Cus - As noted by Commissioner (A), Revenue has not produced any documentary evidence at any stage of appeals to show that discrepancy exists between description of goods imported and those sold - Revenue has not provided evidence to establish the fact as alleged by them and their appeal in this regard fails - As regards the issue of unjust enrichment, appeal has stated that procedure to be adopted for refund of 4% additional duty of customs is given in Board Circular 6/2008- Customs and Customs Public Notice No. 39/2011 - Certificate of Chartered Accountant submitted in this case does mention that aforesaid claim is out of Additional Duty of Customs and has been recorded in books of accounts as 'Claims Recoverable' from Customs Department - There is nothing in the appeal to show that 100% verification of invoices was not done by Chartered Accountant before submission of claim - Copy of documents were produced during the hearing by assessee - Allegations in the appeal to be general in nature and does not pinpoint any specific para of Notification/Circular/Public Notice which has been violated or not adhered to so that the same could be examined in detail - Merely stating that 'the review order was issued on grounds that certificate is not emphatic to the effect that unjust enrichment is not applicable and incidence of duty was not passed on to ultimate customer', will not suffice, a more focused approach is required - The Boards Circular only requires the statutory auditor/Chartered Accountant who certifies the importer's annual financial accounts under Companies Act or any statute, to explain how the burden of 4% CVD has not been passed on by the importer and to fulfill the requirement of unjust enrichment - This is satisfied by Chartered Accountant's certificate - No grounds found in the appeal strong enough to prima facie differ from the views of assessee - Impugned order is upheld: CESTAT
- Appeal rejected: CHENNAI CESTAT
2023-TIOL-391-CESTAT-MAD
Mak Controls And Systems Pvt Ltd Vs CGST & CE
CX - The assessee is engaged in the manufacture of 'alternators' which are further used in the production of (a) Ground Power Unit (GPU), for servicing of aircrafts falling under Chapter 8303, (b) Auxiliary Power Unit (APU), for battle tanks and (c) Dual Frequency Genset (DFG), for missile launching vehicles falling under Chapter Heading 8502 - After the first round of adjudication by the Commissioner, the adjudication order dated 31/07/2009 was challenged before the CESTAT, Chennai who vide order No 215/10 dated 22/02/2010 have remanded the matter to the lower authority for a fresh decision after taking into account the written submission field by the appellant on 20/03/2009 - Accordingly, the Commissioner in de-novo proceedings vide the order has held that the 'alternators' manufactured and cleared from Unit – I are dutiable articles falling under Central Excise Tariff Heading (CETH) 8501.00 upto 27.2.2005 and under CETH 85016100/85016200 with effect from 28.2.2005 - He has gone on to confirm the duty demanded and also imposed penalty - Hence the present appeal. Held - Regarding the issue of 'alternators' not being exigible to duty in their semi-finished state in Unit I and accordingly the monetary demands made and penalty imposed in the impugned order under various provisions of law, are set aside: CESTAT + the classification of 'alternators' if it had been found to be manufactured by Unit I would fall under CETH 8501.00 up to 27.2.2005 and under CETH 85016100/85016200 with effect from 28.2.2005, as decided in the impugned order and not under CETH 8803/ 8710 as claimed by the appellants. 19. Coming to the issue of whether the 'alternators' of Unit I were eligible for the exemption claimed by the appellant, as at para 6 (c) above. The appellant has stated that for 'alternators' falling under CETH 8803 the Tariff rate is NIL upto 11.5.2007. Therefore, the demand on the Alternators of GPU from May, 2003 to 10.5.2007 is not sustainable. The learned counsel stated that irrespective of CETH [whether it is 8803 or 8501], the parts of aeroplanes or helicopters of any chapter for servicing of aeroplanes or helicopters are exempted vide Sl.No:240 of Notification 6/2002-CE dated 1.3.2002, which was rescinded with effect from 1.3.2006. The above exemption was further extended by Notification 6/2006-CE dated 1.3.2006 [Sl.No:88] upto 28.2.2007. From 1.3.2007, notification was further amended by Notification 6/2007-CE dated 1.3.2007, wherein Sl.No:88 was omitted and exemption for parts of aircrafts - 8803 was introduced from 1.3.2007 [Sl.No:54B]. It is a conditional exemption. Further, Sl.No:54B was further amended by notification 19/2007-CE dated 7.3.2007, wherein "any chapter" was substituted for "8803". Further, bulk quantity of GPUs was also exported under notification 42/2001-CE (NT). It is an admitted fact that Unit-II has availed these exemptions for GPUs and such exemption was not denied by the Revenue; (Para 18) + The impugned order has discussed the ineligibility of 'alternators' for exemption under notification 67/95 CE dated16/03/1995 which provides for duty exemption on inputs used within the factory of production in or in relation to the manufacture of the final products. The impugned order reject the claim for exemption on two grounds (a) the goods are not manufactured in the same unit. Unit I and Unit II have different premises and different Central Excise Registration Certificates and hence the 'alternators' are not consumed within the factory. (b) the second condition of the notification is that the final products should suffer duty, which is not so in this case. We hence agree with the impugned order that the appellant was not eligible for the said exemption on 'alternators' during the period covered by the SCN; (Para 19)
- Appeal partly allowed: CHENNAI CESTAT
2023-TIOL-390-CESTAT-HYD
Livelife Hospitals Pvt Ltd Vs CCT
ST - The assessee here is a hospital - Demand was raised wrt Bariatric surgery performed by the assessee, which the Revenue claimed to be Cosmetic surgery, renting of immovable property service and Business Support Service. Held - Renting of immovable property service - In respect of confirmed demand of Rs.26,574/- regarding renting of immovable property, it is seen that the same amount has been paid by the Appellant by valuing the service as inclusive of Service Tax - In the absence of any evidence that the invoices were clearly showing the amount collected was inclusive of Service Tax, this submission cannot be accepted - We hold that they are required to pay Service Tax on the full value of Rs.2,50,000/- received by them - The Department should verify the already paid amount and the Appellant should pay the balance amount and pay the interest on the entire Service Tax amount along with equal amount of penalty: CESTAT Held - Bariatric Surgery - The issue is no more res integra and this issue is squarely covered by the decision of the Delhi Bench in the case of M/s Mohak Hi Tech Speciality Hospitals - The Tribunal has dealt with an identical issue in this case and has considered the activity involved in detail in respect of Asian Bariatrics, Rajkot - In that case, the demands are dropped by the Additional Commissioner and this decision was accepted by the Department without any further Appeal being filed - Here, the Department itself accepted the findings of the Additional Commissioner in the aforesaid order dated February 22, 2016 that bariatric surgery is not cosmetic surgery or plastic surgery, it is not open to the Department to now contend that bariatric surgery is cosmetic surgery or plastic surgery & hence the confirmation of demand in the impugned order for this reason was not sustained - Following such findings, the demand merits being set aside: CESTAT
- Appeal allowed: HYDERABAD CESTAT |
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