2023-TIOL-625-CESTAT-KOL
Maa Kalika Transport Pvt Ltd Vs CCGST & CE
ST - The appellant was issued a SCN demanding service tax for the period from 01.04.2015 to 31.03.2016 under category of 'Cargo Handling Service' - The Commissioner has arrived at the conclusion that appellant has provided multiple services in form of loading, unloading, handling, providing trucks, obtaining delivery orders obtaining mining permission and hence the services provided are not mere transportation - The contract is a composite contract primarily for purpose of transportation of coal beyond 180 to 200 KM - By relying on Board Circulars 104/07/2008-S.T. and 186/5/2015-ST , it is held that the contracts are essentially meant for transportation of goods and other activities are naturally bundled along with this principal service - Once the services rendered are classified as Transportation Service, the liability of payment of service tax on these services was not on appellant and the liability to pay service tax is on recipients of service as provided under Rule 2(1)(d)(i)(B) of Service Tax Rules, 1994 - Regarding classification of service rendered by appellant under category of 'Cargo Handling Service', Board has issued a clarification as to what type of services will fall under category of 'Cargo Handling service' - Appellant was not providing any of the services mentioned which fall under category of 'Cargo Handling Agent Service' - Further, there was no proposal in Notice to categorize the service rendered by appellant as 'Cargo Handling Agent service' - Adjudicating authority classified the services under category of Cargo Handling agent Service on his own - Thus, Adjudicating authority has travelled beyond scope of Notice, which is legally not sustainable - The next issue raised by appellant is that demand has been confirmed on the basis of data received from Income Tax department - There is no new material evidence brought on record for raising demand of service tax on value mentioned in records received from Income Tax department - The demand cannot be raised merely on the basis of data received from Income Tax Department, without any corroborating evidence to substantiate that the value received were in connection with taxable service rendered by appellant - Regarding invocation of extended period to demand service tax, appellant stated that there is no suppression of fact involved in this case - The department itself was not clear under what category the service rendered by appellant was classifiable - Adjudicating authority himself has classified the service under different categories - Thus, there was no clarity on classification of service even within the department - Accordingly, there is no suppression of fact involved in this case - Consequently, extended period cannot be invoked to demand duty - On the same reason, penalties imposed in impugned order are also not sustainable: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-624-CESTAT-HYD
Andhra Sugars Ltd Vs CCT
CX - Appellant submits that it is incorrect for the Department to accept the final order No. A/30507-30512/2018 dated 17.04.2018 of CESTAT and appeal against parallel protective SCN proceedings; the lower authority erred in finding that the previous decision of the Tribunal as "per incuriam"; in doing so, the Department is making the Tribunal to review its previous decisions instead of following the same; it was open for the Department not to withdraw the appeals pending before Hon'ble High Court even though on monetary grounds; there is no difference in the facts in the current case and the previous decisions of the Tribunal, the principles of res judicata should be honoured.
Held: Tribunal's order which attained the finality by (department) not filing an appeal was not implemented in spirit and a review process has been initiated through the back door by issuance of a show cause notice - This is clearly against the principles of judicial discipline - Commissioner (Appeals) cannot sit in judgment of the Tribunal's order and to hold the same to be issued as "per incuriam", whereas no appeal has been filed against the CESTAT Order and an appeal filed earlier on a case involving identical issue was withdrawn on monetary grounds - Commissioner (Appeals) has exceeded his brief - Department has followed ‘pick and choose' method making a joke of the judicial process and putting the appellant to unwarranted hardship by refraining from appealing past and future cases and selecting only case for review - Impugned order is set aside and the appeal is allowed with consequential relief: CESTAT [para 8, 10]
- Appeal allowed: HYDERABAD CESTAT
2023-TIOL-623-CESTAT-BANG
Vidya Herbs Pvt Ltd Vs CC
Cus - Customs officers on examination of the consignment found that the import consignment was "Coffee Husk/Bits" and not Robusta Coffee Beans - Coffee Board has given the Test report stating that the goods are "Raw Coffee Hulled/ Peeled" - By alleging mis-declaration of the imported goods, the Adjudication Authority vide impugned order denied the benefit of exemption notification 52/2003-Cus and confiscated the goods - Appeal filed against this order.
Held: It is an admitted fact that the importer sought bulk import of Vietnam Robusta Coffee and entire documents including Bill of entry shows proper declaration - When permission was given for import of Vietnam Robusta Coffee, percentage of constituents like Beans, husk and skins were not mentioned - In the absence of any such condition, no allegation of mis-declaration can be alleged at the time of import - As per the import policy liberal approach/ interpretation is taken to promote the activities of EOU - The importer can be authorised to import any raw material to meet the export requirement - However, certain restrictions are imposed on such EOU to ensure proper import of goods meant for export promotion activities and to ensure earning of net foreign exchange (NFE) while extending such exemptions - In the present situation, goods even if considered as consisting of coffee husk/bits as alleged, it is legally permitted to import subject to fulfilment of condition 2A under General Exemption No.69, Notification No.52/2003-Cus dated 31.03.2003 - Impugned order is set aside and the respondents are directed to release the goods by extending the benefit of Notification No.52/2003-Cus dated 31.03.2003: CESTAT [para 9, 10, 11]
- Appeal allowed: BANGALORE CESTAT
2023-TIOL-622-CESTAT-BANG
Vidya Herbs Pvt Ltd Vs CC
Cus - When the samples were drawn from the consignment for Phytosanitary inspection, the Customs officers have observed that the goods imported are "Coffee Husk/Bits" and not "Indonesia Robusta Coffee Beans" - Goods were subjected to 100% examination and that there is nothing on record as to whether the department drew sample for further test by testing agencies - By confirming the mis-declaration of imported goods, the Adjudication Authority, vide impugned order denied the benefit of exemption notification and confiscated the goods - Goods were allowed to be redeemed on payment of customs duty, fine and penalty - Aggrieved, the present appeal is filed.
Held: In the present situation, goods, even if they are considered as Coffee husk/Bits as alleged, they are legally permitted subject to fulfilment of condition 2A under General Exemption No. 69, Notification 52/2003-Cus. Dated 31.03.2003 - Importer can approach the concerned authority and submit a fresh application under Rule 5(1)(a) of Customs (Import of Goods at Concessional Rate of Duty) Rules, 2017, providing the information as was found by the customs authorities on examination of the goods and on submission of the amended/revised permission the Customs authorities to release the goods by extending the benefit of Notification No. 52/2003-Cus. Dated 31.03.2003 - In case, the appellant fails to produce the revised/amended permission, Customs Authorities to draw samples in accordance with law and based on the test report of the Authorised Test Agency, the Adjudication Authority shall pass appropriate orders after giving reasonable opportunity to the appellant - Appeal disposed of: CESTAT
- Appeal disposed of: BANGALORE CESTAT |
