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2023-TIOL-462-CESTAT-MAD
Lakshmi Electrical Drives Ltd Vs CCE & ST
ST - The issue arises for consideration is, whether appellant is liable for payment of service tax under Section 66A of Finance Act, 1994 under Reverse Charge Mechanism - There was no condition attached for RCM that Foreign Service Provider should not have an office in India - Whereas, appellant relies on Explanation-1 to Section 66A to drive his point that RCM cannot be made applicable to him as M/s. CSA International, Canada is having its 100% Subsidiary Branch Office operating as M/s. CSA Private Ltd. at Bangalore - Whereas, revenue relies on sub-section-2 of Section 66A, to fasten tax liability on appellant which states that where a person is carrying on a business through a permanent establishment in India and through a permanent establishment other than India, such permanent establishment shall be treated as separate persons - However, records clearly reveal that inspection service got performed in India though the certificate was issued by M/s. CSA International, Canada - As M/s. CSA International, Canada has got its 100% Subsidiary in Bangalore, invoking the provisions of Section 66A of Finance Act and fastening the tax liability on appellant on RCM basis is not legally sustainable and as such, appellant succeeds on merits - As such, other issues like invoking extended period and imposition of penalties are not discussed - Impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-461-CESTAT-KOL
Acclaris Business Solutions Pvt Ltd Vs CCGST & CE
ST - Appellant filed a refund claim for Rs. 9,79,412/- in terms of Rule 5 of CCR, 2004 - Adjudicating Authority granted refund of Rs. 6,61,571/- and rejected the refund claim of Rs. 3,17,841 - Appellant did not contest the rejected refund amounting to Rs. 32,572/- and contested the balance amount of Rs. 2,85,269/- before Commissioner (A) - They have also submitted original documents that were available and in some cases photocopy of some documents were produced - In majority of cases, they have fulfilled all requirements - Because of format of date adopted by them same is not tallying with invoice date - Commissioner (A) held that these invoices are not pertaining to refund claim - Appellant submits that this is only on account of error on account of date format - Otherwise invoice details, value details and Service Tax details all are perfectly matching - In respect of refund claim amount of Rs. 6,629/- they are not in a position to get hold of copies of invoices, therefore, they are not insisting for refund of Rs. 6,629/- - In respect of Rs. 2,78,640/- (Rs. 2,85,269-Rs. 6,629/-) since all the claims made by appellants are verifiable by Adjudicating Authority by going through documentary evidence produced by appellant as well as Departmental records being available, Tribunal deems it fit to remand the matter of refund of Rs. 2,78,640/- to Adjudicating Authority - He may get the verification done for documentary evidence placed by appellant - He may pass necessary order by following principles of natural justice within 4 months: CESTAT
- Matter remanded: KOLKATA CESTAT
2023-TIOL-460-CESTAT-MUM
Finolex Industries Ltd Vs CCE & ST
CX - The Appellant is manufacturer of sugar and molasses - They availed CENVAT Credit of Service Tax paid on insurance of vehicles of the manufacturing unit, Service Tax paid on consultancy services engaged for receiving consultancy in relation to cogeneration plant, Service Tax paid on insurance availed for plant, machinery, equipment and stock of the goods, Service Tax paid on insurance on gratuity for the employees and subscription fee paid to National Sugar Federation - In the opinion of Revenue, CENVAT Credit on account of above stated issues was not admissible to the appellant - Therefore, appellant were issued with a show-cause notice dated 23.6.2011 proposing to deny above stated CENVAT Credit and to recover said CENVAT Credit to the tune of Rs. 1,56,584/- - On contest, Order-in-Original confirmed the demand - The Commissioner (Appeals) did no interfere with the confirmation of such demand - Hence the present appeal. Held - The co-generation plant though was not installed during the relevant period, consultancy was received during the said period and Service Tax paid on consultancy is claimed as CENVAT Credit and the same is admissible - I also find that manufacture is not possible without plant, machinery and equipment being in order - To keep the plant, machinery and equipment in order, one of the method is to insure the same - Therefore, I hold that Service Tax paid on insurance of plant, machinery and equipment required for manufacture is admissible as CENVAT Credit - I allow the CENVAT Credit of Rs. 1,56,584/- involved in the present appeal by setting aside the impugned order: CESTAT
- Appeal partly allowed: MUMBAI CESTAT
2023-TIOL-459-CESTAT-MUM
Bhaurao Chavan SSK Ltd Vs CCE & C
CX - The Appellant is manufacturer of sugar and molasses - They availed CENVAT Credit of Service Tax paid on insurance of vehicles of the manufacturing unit, Service Tax paid on consultancy services engaged for receiving consultancy in relation to cogeneration plant, Service Tax paid on insurance availed for plant, machinery, equipment and stock of the goods, Service Tax paid on insurance on gratuity for the employees and subscription fee paid to National Sugar Federation - In the opinion of Revenue, CENVAT Credit on account of above stated issues was not admissible to the appellant - Therefore, appellant were issued with a show-cause notice dated 23.6.2011 proposing to deny above stated CENVAT Credit and to recover said CENVAT Credit to the tune of Rs. 1,56,584/- - On contest, Order-in-Original confirmed the demand - The Commissioner (Appeals) did no interfere with the confirmation of such demand - Hence the present appeal. Held - The co-generation plant though was not installed during the relevant period, consultancy was received during the said period and Service Tax paid on consultancy is claimed as CENVAT Credit and the same is admissible - I also find that manufacture is not possible without plant, machinery and equipment being in order - To keep the plant, machinery and equipment in order, one of the method is to insure the same - Therefore, I hold that Service Tax paid on insurance of plant, machinery and equipment required for manufacture is admissible as CENVAT Credit - I allow the CENVAT Credit of Rs. 1,56,584/- involved in the present appeal by setting aside the impugned order: CESTAT
- Appeal allowed: MUMBAI CESTAT
2023-TIOL-458-CESTAT-MUM
G R Jewellers Vs CC
Cus - Appeal filed against impugned order passed by Commissioner (A), wherein gold was ordered to be absolutely confiscated modifying the Original Authority's order to release the said goods on payment of redemption fine - It is submitted by appellant that Commissioner (A) has rejected their appeal stating that they had not made mandatory pre-deposit - Original authority has set aside customs duty demanded and therefore, there was no customs duty demand in original order if goods were not redeemed - The goods were not redeemed - Accordingly, there was no need for any pre-deposit by appellant for filing appeal before Commissioner (A) - Therefore, to that extent finding of Commissioner (A) in impugned order is erroneous - Original authority did not impose any penalty whereas Commissioner (A) has enhanced penalty to Rs. 8,40,467/- and such enhancement of penalty was done without following the procedure laid down in first proviso of sub-section (3) of Section 128 of Customs Act, 1962 which requires Commissioner (A) to put the appellant before him on notice and give him a reasonable opportunity of showing cause against proposed order of enhancing penalty - Impugned order is not sustainable, same is set aside and matter is remanded to Commissioner (A) for deciding afresh both the appeals filed by appellant and Revenue: CESTAT
- Matter remanded: MUMBAI CESTAT
2023-TIOL-457-CESTAT-DEL
Nanz Med Science Pharma Pvt Ltd Vs CC
Cus - Issue arises is as if guar gum which is imported is of food grade or of other than food grade - Revenue's contention that it is of food grade is based on test reports of AES to whom the samples were sent by CRCL - Appellant did not dispute the samples being sent to this laboratory and in fact, had paid the fee for testing also - All samples which are drawn are entered in a register by Customs and the entry number in register gives the correlation with sample and these numbers were further correlated with test reports - For these reasons, test reports of AES found credible and they state that the imported guar gum was of food grade - The appellants' contention that valuation should be based on transaction value is not correct for four reasons - Firstly, quantity of goods is much larger than what was declared, secondly, the buyer and seller are related parties, thirdly, grade of guar gum has been mis-declared by appellant as 'not of food grade' but on testing, it is found to be of food grade - Fourthly, declared value is Rs. 19.264 per kg as opposed to the contemporaneous import prices of Rs. 424.95 per kg - Impugned order is correct in rejecting transaction value and determining the value based on contemporaneous values available in NIDB - Undisputedly, Shri Puri and Shri Malhotra were involved in mis-declarations and therefore, impugned order is correct in imposing penalties on them - All three appeals are rejected and impugned order is upheld: CESTAT
- Appeals rejected: DELHI CESTAT |
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