2023-TIOL-699-CESTAT-DEL
Shakumbhari Automobiles Pvt Ltd Vs CCE
ST - Issue involved is regarding taxability of amount received by appellant from customers who purchased vehicle for assisting registration of vehicles with Regional Transport Office tax under 'BAS' as defined under section 65(19) of FA, 1994 and made taxable under section 65(105)(33b) - The first SCN demanded service tax under BAS - The subsequent two SCNs did not contain any fresh proposal or allegation but merely referred to first SCN - The Commissioner has confirmed demand with regard to there all SCNs by giving a categorical finding that amount received by appellant was taxable under BAS - Issue for period prior to 01.07.2012 is covered by decision of Tribunal in Arpanna Automotives 2016-TIOL-1550-CESTAT-MUM - This decision was followed by Tribunal in case of appellant - Commissioner was not justified in confirming demand of service tax under BAS for the period prior to 01.07.2012 - In regard to period post 01.07.2012, issue was decided in favour of appellant by Commissioner (A) - It would be seen from order passed by Commissioner (A) that even for period post 01.07.2012, the activity could not have been considered as a declared service and therefore, demand could not have been confirmed - Appellant also stated that said order passed by Commissioner (A) has attained finality and this fact has not been controverted by department - Even otherwise, second and third SCNs do not propose to demand service tax under section 65B(44) of the Finance Act and merely refer to the first SCN which, proposed demand of service tax under BAS - Apart from the fact that demand could not have been confirmed under section 65B(44) of the Finance Act for the reason that the activity cannot be considered as a declared service under section 66E(e) of the Finance Act, a demand cannot also be confirmed on an allegation other than an allegation contained in SCN - Thus, Commissioner was not justified in confirming demand for the period post 01.07.2012 - Impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
ST - The issue that requires to be decided is, whether appellants can be said to have rendered service under "Commercial or Industrial Construction Service" - The case of appellants is that they have merely supplied Ready-mix Concrete (RMC) to their customers and depending on request of customers, they have arranged for pumping of RMC to higher floors at construction sites and they have paid applicable VAT on the same - On going through various purchase orders, it is found that the only indication that is available in purchase orders is that the prices are inclusive of pumping charges - In some purchase orders, for example the supply order issued by Disney Farms Pvt. Limited indicates that rate per cum are inclusive of service tax at the rate of 12.36% - However, there is no proof to the effect that said service tax has been paid by customer and collected by appellant - However, this issue is not raised either in SCN or in OIO, which only proceed on assumption that appellants have rendered "Commercial or Industrial Construction Service" - Activity of appellants is akin to purchase of any white line goods by common people in market - The dealer while charging price of white line goods so purchased may also charge an extra amount for installation - Option for installation is optional for purchaser - For the reason that dealer is charging installation charges, the dealer cannot be held to be a service provider - Therefore, argument of Revenue that activity of appellant amounts to "Commercial or Industrial Construction Service" is incorrect - Revenue argues that for the period after 16.06.2008, appellants have their own classified the service under "Business Auxiliary Service" and same has been appropriated by Adjudicating Authority - This argument is not correct - Simply because the appellants categorized the service, which in fact is held to be a no service at all, under "Business Auxiliary Service", does not take away the right of appellant to classify the same under "Works Contract Service" - Moreover, Department having sought to classify the activity under "Commercial or Industrial Construction Service" cannot alter their argument to classification rendered by appellants after 16.06.2008 - In view of Apex Court judgment in case of L&T 2015-TIOL-187-SC-ST , appellant's activity of sale and pumping of RMC would necessarily fall under "Works Contract Service" - However, there is no service rendered by appellants in their business - Therefore, any argument on this count would be superfluous: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
CX - The Appellants are manufacturer of Asbestos Cement Roofing Sheets - As per the appellant the prices of these goods fluctuate in market on account of the fluctuation of the prices of raw materials Fly Ash, Cement, Asbestos Fibre) - Subsequent to the clearance of the said goods on payment of duty, they issue credit notes to their dealers/ customers to the extent of the price variation (rate difference) - To claim the refund of excess duty paid, they filed refund claims - The lower authorities rejected all the refund claims - Appeals filed by the appellant in respect of refund claims filed by the appellant were dismissed by the CESTAT - Subsequently the Bombay High Court has set aside the order of the tribunal and remanded the matter back to the CESTAT for reconsideration on the basis of Chartered Accountant Certificate.
Held - The assessee has challenged the appeals filed by the revenue on the ground that they are contrary to the litigation policy of the Government of India in terms of the amounts involved in the dispute - At the time when the said appeals were filed they were not barred as per the litigation policy - With the passage of the time the monetary limit, for filing the appeals have been enhanced. Revenue authorities were also directed to examine in respect of withdrawal of the appeals that are below the thresh hold level specified - In the present case revenue has not filed any application seeking withdrawal of these two appeals - In absence of any such application seeking withdrawal of the appeal the appeal will have to be considered and decided on the merits - Appellants have in their submissions admitted that certain refund claims filed by them are time barred as they were filed beyond the period of limitation as per Section 11B of the Central Excise Act, 1944 and they do not dispute the rejection of these refund claims on ground of limitation - As we do not find the refund claims even otherwise admissible to the appellant we take the note of the above submission and hold where the refund claims are filed beyond the prescribed period of limitation they are rejected on this ground also - We agree with the submission of the appellants that where so ever the refund is held admissible, but cannot be paid to them for the reason of unjust enrichment, the amount to be refunded needs to be credited to the Consumer Welfare Fund: CESTAT
+ Admittedly the application for the refunds have been filed by the appellant in respect of the goods which were cleared by them on payment of duty assessed by them on the value determined at the place and time of removal. It is settled law that the duty has to be determined and paid by the appellant assessee at the time of clearance of the goods on the invoice made by them. It is also settle principle of accounting that the accounts are maintained on the accrual basis and the appellant assessee recovers determined on the invoice from his customer the moment he clears the goods after assessing the duty on the invoice. Central Excise Duty, is indirect tax and is tax on the consumer of the goods. The assessee is only an intermediary in the entire chain, who collects the duty from his customer and deposits the same to exchequer. Thus the burden of the duty is always on the customer and that forms the basis of the principles of unjust enrichment enshrined in section 11B of the Central Excise Act, 1944. This principle of unjust enrichment has been held by the Apex Court, in case of Mafatlal Industries Ltd. 1997 (89) ELT 247 (SC)] as constitutional. This decision has been referred by the Hon'ble Apex Court in the case of Addisson & Co referred above;
+ Section 12D creates a statutory presumption to the effect that the burden of the duty reflected on the invoice has been passed on to the consumer of the goods. It is also interesting to note that "credit notes" which form the basis of the refund claim filed are the documents which have no statutory recognition under any of the provision of the Central Excise Act, 1944. These documents have been used widely, under the principles of accounting for adjustment of the books of account. However these documents are not recognized as a mean for the refund of Central Excise Duty by the seller to the buyer of the goods. Further the seller is not having any authority to refund any excise duty the burden of which has been passed on by him to the buyer of goods. In case of the Mafatlal Industries ltd & Addisson&Co referred above Supreme Court has after referring to the provisions of the Section 11 B, concluded that the purchaser/ buyer of the goods could have claimed the refund of any excess duty paid. It is settled law that when statute provides for a manner of doing a thing it should be done in the manner as provided or not at all. supreme Court in case of Mafatlal Industries Ltd.;
+ The basic crux of the above referred decision of the Apex Court is that the claim for the refund of any excess duty paid should be made in accordance with the provision of the Section 11 B of Central Excise Act, 1944 by the person who has borne the burden of duty and adjudicated accordingly. It can be the first purchaser or the second purchaser or so on of the goods cleared on payment of duty sought as refund. The credit note issued by the manufacturer to the dealer/ customer who has procured from the manufacturer, is evidently not the person who would have borne the burden of duty claimed as refund. He would have passed on the burden to his customers and so on. Thus mere issuance of credit note is not a proof of discharging the burden of showing that the duty claimed as refund has not been borne by some other person.
- Revenue's appeals allowed: MUMBAI CESTAT
CX - The issue arises is, whether oxygen captively consumed in manufacture of dutiable Copper Cathodes as well as exempted Sulphuric Acid can be denied the benefit of exemption Notfn 67/95- CE - Matter is no longer res- integra - Issue has already been settled by Supreme Court in case of Hindustan Zinc Ltd 2014-TIOL-55-SC-CX - Said decision has also been followed by this Tribunal in case of Sterlite Industries India Ltd 2015-TIOL-2696-CESTAT-MAD - Appellant did not use oxygen produced in manufacture of Sulphuric Acid - Accordingly, conditions of Notfn 67/95 are complied - Appellants are eligible for benefit of said Notfn and the duty demand on the quantity of oxygen so used in manufacture of sulphuric acid is liable to be set aside - Following the same, it is held that impugned order is without any merit and same is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
Cus - The appeal is regarding violation of Regulations of CBLR, 2018 - Though it is an admitted fact that someone had imported e-waste by mis-declaring the goods as Electric Arc Welding Machines, Department has not made any allegation that Customs Broker or any of their staff were aware about mis-declaration at any point of time till it was brought to their notice during investigation and due to that reason, no SCN was issued under Section 124 of Customs Act, 1962 - Regarding violation of Regulations 10(a) and (n) of CBLR, 2018, the regulation casts responsibility on Customs Broker to obtain authorization and they have obtained authorization and produced the same during investigation - The issue regarding revocation of Customs Broker license was considered by Principal Bench in matter of Perfect Cargo & Logistics 2021-TIOL-63-CESTAT-DEL and categorically held that there is no binding on Customs Broker to verify the address of importer/exporter by physically visiting the premises as per document furnished by importer and such verification can be done by verifying the details at declared address by using reliable, independent, authentic documents, data or information - Similarly Tribunal in the matter of Seaswan Shipping and Logistics 2021-TIOL-580-CESTAT-MAD considered the issue whether failure of CHA to obtain KYC from importer directly amount to violation of Regulation 11(a) of CBLR, 2013 and categorically held that in the absence of any finding regarding genuineness of documents produced by Customs Broker, proceedings under 10(a) and (n) cannot be taken against Customs Broker - Regarding violation of Regulation 10(d) and (e), though the actual goods imported by importer is e-waste and prohibited to import, appellant was not aware about import of such goods till it was disclosed by investigating agency - Thus, as a Customs Broker, appellants had no opportunity to advice the importer regarding violation of statutory requirements for importing such goods - There is no evidence to substantiate that appellant was aware about mis-declaration of goods by importer - The issue was considered by High Court of New Delhi in matter of Kunal Travels (Cargo) 2017-TIOL-894-HC-DEL-CUS - There is no involvement of appellant in alleged smuggling activities - The omissions alleged against Customs Broker are not sufficient enough to allege violation of provisions of CBLR, 2018 and to revoke Customs Broker License - Moreover, appellant's license has been suspended on 03.08.2020 and his livelihood has been affected for more than two years, this in itself amounts to severe punishment: CESTAT
- Appeal allowed: BANGALORE CESTAT |
