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2023-TIOL-501-CESTAT-MAD
Inox Air Products Ltd Vs CGST & CE
ST - The assessee is registered for providing various taxable services and are also engaged in manufacturing items such as Liquid Nitrogen, Liquid Oxygen - The liquid gases are transported by trucks in special vehicle transport tanks and delivered to the customers as per the requirement - The assessee had entered into agreement with various customers for supply of goods (gases) as well as for providing fixed facilities in the nature of Vacuum Insulated Storage Tanks at the customer's site - On verification of agreements entered between the assessee and their customers, it was found that the assessee installed the said tanks at the customer's premises for continuous supply of nitrogen liquid - The customers are required to provide space for installing the said tanks and free access is given to the assessee for supply of liquid nitrogen gas - The assessee was receiving fixed facility charges (FFC) from their customers for providing such storage tanks - The ownership, control, maintenance and insurance are undertaken by the assessee and the customers are restricted to use the said tanks for storage of the products purchased from the assessee alone - It therefore appeared to the Department that the assessee is providing services in the nature of ‘supply of tangible goods' - The Show cause notice was issued to the assessee demanding service tax along with interest and for imposing penalties - After due process of law, the original authority confirmed the demand, interest and imposed penalty - On appeal, the Commissioner (Appeals) upheld the same.
Held - It can be seen that ownership of the tanks remains with the assessee and the possession and effective control of the tanks is with the customers during full term of the agreement - The definition of "supply of tangible goods" as per Section 65 (zzzzj) defines as "any service provided or to be provided to any person, by any other person in relation to supply of tangible goods including machinery, equipment and appliances for use, without transferring right of possession and effective control of such machinery, equipment and appliances" - In the peculiar nature of the products, the assessee has to supply tanks before supply of liquid gases to the customers - Thus the assessee is required to include the value of FFC and MOTP in the transaction value of the gases for discharging the Central Excise duty - The said clarification issued by the Board was considered by the Tribunal in the case of Goyal MG Gases Private Ltd. (supra) - The issue considered in the said decision by the Tribunal is whether the FFC collected by the assessee would be taxable under Business Support Service (BSS). During the disputed period, the appellant has been discharging excise duty on the FFC which is not disputed by the Department - Since it is also clarified by the Board in the assessee's own case that the said charges have to be included in the transaction value for payment of excise duty, there is no reason to hold that FFC charges are in the nature of consideration received by appellant for providing supply of tangible goods - Relevant Board circular is binding on the Department: CESTAT
- Appeal allowed: CHENNAI CESTAT 2023-TIOL-500-CESTAT-CHD
Fresenius Kabi Oncology Ltd Vs CCE
CX - The appellants M/s Fresenius Kabi Oncology Limited (previously known as Dabur India Limited, Injection Division) are engaged in manufacture and clearance of PP Medicaments - During the visit to the factory, Officers of the Preventive Unit observed that the appellants were clearing the medicaments claiming deduction on the count of Octroi charges and Additional Sales Tax on an equalized basis rather than on actual basis - SCNs were issued and confirmed and the same have reached this Tribunal in the second round of litigation.
Held - The language and the tenor of the SCN are very clear to seek denial of deduction claimed on account of Octroi and Additional Sales Tax - Though, the word "PME" is used in both SCNs, in the SCN in respect of Appeal No. E/1226/2012, denial of deductions on account of Octroi and Additional Sales Tax are mentioned after the word "PME" not once but twice - Moreover, in the SCN, the deductions have been clearly mentioned to be on account of Octroi and Additional Sales Tax etc. without use of word "PME" - We further find that in the SCN relating to the other Appeal No. E/1226/2012 word "PME" followed by Octroi charges and Additional Sales Tax in brackets was mentioned only once and term "etc." is also used once - Notwithstanding the mere mention of the words "PME and etc." in one or two places, we find that the gist of the SCNs was to deny the deduction on account of Octroi and Additional Sales Tax for the reason that the same are claimed on an equalized basis, even though paid on some non-excisable goods - The SCN needs to be understood in that perspective alone - The term "etc." when used in conjunction with Octroi and Additional Sales Tax would, by means of any imagination, would mean the statutory or Government levies, if any, rather than other post-manufacturing expenses like secondary freight as is claimed by the Department - We find that it has been held in several cases that the SCN is not an empty formality and the same needs to be clear and unambiguous - It is not open for the Department just to seek a demand on the basis of figures supplied by the appellant by mistake - In the instant case, we find that there was no whisper of seeking denial of deduction on secondary freight and to that extent, there is no ambiguity in the SCN and it is not open for the Department to claim confirmation of duty on account of secondary freight at this juncture. Moreover, we find that this Tribunal vide above cited Order has clearly stated that the deduction on account of Octroi and Additional Sales Tax are permissible and the remand to the Original Authority to allow the deductions on the lines indicated in the order - Hence the appeals merit being allowed: CESTAT
- Appeals allowed: CHANDIGARH CESTAT
2023-TIOL-499-CESTAT-DEL
Varun Associates Vs CST
ST - Issue arises is as to whether Commissioner could have confirmed demand of service tax under a category that was not proposed in SCNs - It is clear from order that was passed by Commissioner after remand that demand of service tax has been confirmed under works contract service though SCNs that were issued to appellant proposed demand under erection, commissioning or installation services - It has been repeatedly held that a demand cannot be confirmed under a category not proposed in SCN - A Division Bench of Tribunal in M/s Gurjar Construction 2019-TIOL-2199-CESTAT-DEL examined such a position and after placing reliance on decisions of Supreme Court in Hindustan Polymers Company Ltd. 2002-TIOL-822-SC-CX and Reckitt & Colman of India Ltd 2002-TIOL-813-SC-CX observed that a demand made under a particular category cannot be sustained under a different category - It is, therefore, not possible to sustain the impugned order passed by the Commissioner - It is accordingly, set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-498-CESTAT-DEL
CST Vs Cushman And Wakefield Property Management Services India Pvt Ltd
ST - The Revenue filed the present appeal to contest validity of an O-i-A wherein the proceedings against the assessee were dropped - The assessee had availed exemption from payment of service tax for services provided to Special Economic Zones SEZ but did not provide documentary certificates to support its claim of exemption, as was required under the notifications dated 03.03.2009 and 01.03.2011 - Accordingly, a SCN was issued to the assessee and the Commissioner by the impugned order has partially dropped the demand of service tax.
Held - The issue at hand in the present appeal came to be settled by the CESTAT vide judgment in the case of SRF Ltd Vs Commissioner of Customs, Central Excise & Service Tax, LTU, New Delhi wherein it was held that "...there is no need for any exemption notifications under any of these three Acts nor is it necessary to fulfil any conditions of any of the conditions laid down in exemption notifications, if any, issued for the purpose. Thus, the charge of excise duty under Section 3 of the Central Excise Act, the charge of Customs Duty under section 12 of the Customs Act and the charge of service tax under sections 66, 66A and 66B of the Finance Act, 1994 will not apply to goods and services supplied to developers and units for authorized operations in the SEZ areas by virtue of the overriding provisions of the SEZ Act. Any exemption notifications and conditions therein are therefore, redundant because, the Parliament itself has, through section 51 of the SEZ Act, overridden the charge in the other laws. 48. Thus, as the charge of service tax under the Finance Act, 1994 on the services provided for authorised operations of the appellant are overridden by section 51 of the SEZ Act, 2005, any exemption notifications for such services as well as the conditions laid down in them are redundant. Service tax, if any, paid on such input services for authorised operations need to be refunded to the appellant. We also find no force in the other grounds raised for denying the refund of service tax paid and discussed above...." - The decision of the Tribunal in SRF Ltd was subsequently followed by the Tribunal in Lupin Limited Vs. Commissioner of Central Goods & Service Respondent Tax & Central Excise - Therefore the Revenue's appeal warrants being dismissed: CESTAT
- Appeal dismissed: DELHI CESTAT
2023-TIOL-497-CESTAT-MAD
CC Vs K V Paints And Chemicals Company
Cus - Revenue is in appeal against impugned order, wherein departmental appeal was rejected in respect of sanction of SAD refund to assessee - Assessee has died during the pendency of present appeal - In terms of Rule 22 of CESTAT (Procedure) Rules, 1982 on the death of assessee, proceedings will be abated unless an application is made for continuance of such proceedings - In this case no such application is made - As the Death has occurred on 22.08.2019, more than three and half years passed already - In case of Shabina Abraham & Ors. 2015-TIOL-159-SC-CX, it has been held that no proceedings can be initiated or continued against a dead person as it amounts to violation of natural justice in as much as the dead person, who is proceeded against is not alive to defend himself - It is held that on the death of assessee, appeal stands abated: CESTAT
- Appeal disposed of: CHENNAI CESTAT
2023-TIOL-496-CESTAT-KOL
Gobinda Das Vs CC
Cus - On 02.04.2017, Officers of the DRI recovered 120 Pcs of Gold Biscuits from the possession of Shri Bishnupada Dey and subsequently gold weighing 13993.2 gms valued at Rs. 4,08,60,120/- was seized from his house - Shri Dey could not produce any licit document in support of possession carrying, transporting or dealing with the said gold biscuits - His statement was recorded on 02.04.2017 wherein he had taken the name of Shri Gobinda Babu (The Appellant) of Barasat whom he came across in February 2017 at Burrabazar when he came there in connection with his cloth business and requested him to provide some means to earn extra money - Shri. Gobinda Babu offered him the work of carrying smuggled gold from Basirhat to Kolkata against payment of Rs. 1000/- for carrying 10 Pcs. Of Gold Biscuits per trip - Since he was coming to Kolkata every week in connection with his own business, he agreed and started carrying smuggled gold from middle of March 2017 and intimated the same to Gobinda Babu in his Mobile No. 8276875110 - Shri Dey did not know the proper home address or office address of Gobinda Babu but he knew that Gobinda Babu had an Office in Sonapatti at Burrabazar and his home was at Barasat - Regarding the 120 pcs of gold seized, he stated that he was to handover the said gold to one Sri Ratan Kumar Saha who was introduced to him by Shri. Gobinda Babu - Shri Dey was carrying the gold biscuit at the instruction of Gobinda Babu to deliver the same to Shri Ratan Kumar Saha, whose Mobile Number was 9073804239 - Shri Dey was arrested - On 07.04.2017, his house was searched but nothing incriminating was found - The search of his shop premises also did not yield anything incriminating - On 14.07.2017, he had given statement again but he did not say anything about the Appellant - Investigation was made in respect of Shri Ratan Kumar Saha but he was not found in his address - From the subscriber details, the phone number stated to have been used by Shri Ratan Kumar Saha was found to be registered in the name of Somnath Mullick, who was a daily labourer and he never took any mobile connection bearing number 9073804239 and he did not know any person named Sri Ratan Kumar Saha - Further, from the subscriber details of mobile number 8276875110 stated to be used by Gobinda Babu, it was found that the same was registered in the name of Soumyadeep Talapatra, who denied taking any such mobile connection and also stated that he did not know any person named Gobinda Babu or Gobinda Das in Barasat Area - In another case booked on 22.04.2017, 140 Pcs. of Gold Biscuits were recovered and in the course of follow up action of the said case, the shop premises, G.D. Gold House at 3rd Floor of Nalini Seth Road, Kolkata, was searched and Indian Currency of Rs. 43,12,280/-, believed to be the sale proceeds of smuggled gold, were recovered and seized. It was inferred that Shri Gobinda Babu mentioned by Shri Bishnupada Dey and the Proprietor of G.D. Gold House, Sri Gobinda Das were one and the same person. Shri Gobinda Das (Appellant) was summoned but he did not appear - The Appellant along with others were issued with a Show Cause Notice vide DRI F. No. DRI/KZU/AS/ENQ-23/2017/3390 dated 26.09.2017. An Order-in-Original dated 11.01.2019 was issued by the Principal Commissioner of Customs confiscating the gold seized - He also imposed penalty of Rs. 4,08,60,120/-under section 112(b) of the Customs Act, 1962 on both Gobinda Babu and Ratan Kumar Saha.
Held - The entire case of the Revenue has been built on the basis of the statement of the co-accused - Section 9D of Central Excise Act, 1944 is in pari materia to Section 138 B of Customs Act, 1962 and hence the ratio of the above said decision squarely applicable to this case as well - In this case, the adjudicating Authority has not examined the person who has given the statement which has been relied upon to implicate the Appellent - Also, no opportunity of cross examination given to the Appellant to question the basis on which the co accused has implicated the Appellant in this case - When the procedure set out in Section 138 B is not followed, the statement of the co accused has no evidentiary value - Also, in this case the statement of the co accused has not been corroborated by any other evidence - In view of the decisions discussed in para 6 above, the Appellant cannot be penalized based on the statement of the co-accused alone - Hence the order passed merits being set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-495-CESTAT-DEL
Akansha Logistics Vs CC
Cus - Appellant filed the appeal against impugned order whereby the Commissioner revoked their Customs Brokers licence, forfeited the entire security deposit and imposed a penalty - The SCN issued to appellant alleges that they violated Regulation 10(d) of CBLR, 2018 - Appellant had not filed Shipping Bill at all and exporter in whose name the Shipping Bill was filed was not its client - Therefore, if exporter violated laws and attempted to smuggle out red sanders, by no stretch of imagination can the appellant be faulted - To come to such a conclusion, it must be presumed firstly that exporter was appellant's client (which it was not) and that appellant was aware that Shipping Bill was filed (which it was not), that appellant was aware that exporter violated the laws (which it was impossible considering that appellant was not even aware of Shipping Bill) and ultimately that appellant had not advised the exporter - Any Facility Notice by Commissioner is to facilitate the processes and procedure in Custom House and it does not take the shape of a statutory regulation - Therefore, even if there was a violation of any instructions in such notice, it does not automatically be concluded that Regulations have been violated - The violation of Regulation has to be established - At any rate, if appellant mainly operates in Delhi, it has no reason to keep checking the system for Shipping Bills and Bills of Entry filed in various Custom Houses across the country and also checking what instructions were issued by respective commissioners - So long as it follows the instructions in Customs formations where it operates, appellant cannot be faulted - Further, if system is not designed to send an alert to Customs Broker if a Shipping Bill is filed in its name in service centre at Custom House and only sends an alert if it is filed online, Tribunal is unable to fathom how the appellant can be faulted if this loophole in system was exploited by another person after making a fake Customs card - Impugned order cannot be sustained: CESTAT
- Appeal allowed: DELHI CESTAT |
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