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2023-TIOL-705-CESTAT-DEL
Dunnrite Groupage Services Pvt Ltd Vs CCGST & CE
ST - The appellant provides cargo space to customers who are importers/exporters of goods - They pays charges for space booking to different Shipping Lines/Airlines and later on sells such space to exporters/importers at a slightly higher amount - The difference between the amount paid by appellant to Shipping Lines/Airlines and amount recovered by appellant from customers (exporter/importers) is called the 'mark-up' - Department was of the view that this 'mark-up' was for services provided by appellant to customers and was therefore, liable to service tax under category 'support services of business or commerce' covered under section 65(104) of Finance Act, 1994 - In Marinetrans India 2019-TIOL-1260-CESTAT-HYD , the Division Bench held after considering the Circular issued by Central Board of Excise and Customs that buying and selling space on ships does not amount to rendering a service and any profit or income earned through such transactions would not be leviable to service tax - It follows from the aforesaid decision of Tribunal that when appellant merely trades in space on ships, it would not be providing any service and so no service tax can levied upon the appellant - It has, therefore, to be held that Commissioner was not justified in confirming the demand - Impugned order therefore, cannot be sustained and is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-704-CESTAT-MUM
Thyssenkrupp Industrial Solutions India Pvt Ltd Vs CCGST
ST - Appellant had deposited duty immediately after being pointed out by audit which strengthens the stand of appellant that there was no willful or deliberate suppression on their part - So far as the period 2013-14 is concerned, duty is demanded after invoking extended period of limitation by attributing willful suppression on the part of appellant - Suppression cannot be imputed against appellant merely because they failed to pay the tax on time - Similarly in matter of Pahwa Chemicals 2005-TIOL-144-SC-CX , it has been laid down by Supreme Court that mere failure to disclose does not amount to misdeclaration or wilful suppression - Therefore, immediately after being pointed out by audit, appellant paid the amount vide challan coupled with the fact that during the period in issue, appellant had paid Service tax in cash which is far more than the amount demanded and had the appellant known about tax liability they would have paid the tax during that period itself and the credit would have been adjusted against tax payable, no suppression can be attributed to appellant - Admittedly, appellant was under obligation to discharge service tax under reverse charge mechanism on commission paid for corporate guarantee provided by its parent company and if any service was taxed under reverse charge mechanism, they will be entitled to benefit of Cenvat credit of service tax paid - Therefore, entire exercise is revenue neutral - Tribunal in the matter of Jet Airways (I) Ltd. 2016-TIOL-2072-CESTAT-MUM has held that in view of the fact that demand is completely revenue neutral, extended period of limitation cannot be invoked and therefore demand for the period 2013-14 is hit by limitation and accordingly same is set aside - So far as period 2014-15 is concerned, certainly the demand is within normal period - No penalty can be imposed - If there is some delay in depositing tax then certainly interest is chargeable which the lower authority can calculate and therefore it is appropriate to remand the matter back to adjudicating authority for calculating the amount of tax alongwith interest, for the period 2014-15 and to adjust the same from tax already deposited by appellant vide challan - Appeal is partially allowed so far as the period 2013-14 is concerned and for the period 2014-15 same is remanded for the purpose of calculation of duty for normal period alongwith interest: CESTAT
- Appeals partly allowed: MUMBAI CESTAT
2023-TIOL-703-CESTAT-BANG
Volvo India Pvt Ltd Vs CCE & ST
CX - The issue involved for determination is, whether appellants are entitled to benefit of Notfn 108/95-CE - In accordance with said Notification, on the basis of project certificate issued mentioning the name of contractor M/s Ketan Constructions Ltd., undisputedly 9 Nos. of tippers were cleared by appellant to said contractor to be used in a project funded by World Bank - After completion of said project, on enquiry from contractor about the use of said Tippers in other such eligible project, when denied, demand notice was issued to appellant on the basis of insertion of Explanation-2 to Notfn 13/2008-CE - The said Explanation-2 was inserted w.e.f. 1.3.2008 - Revenue sought to apply said Notification retrospectively and demanded duty from appellants alleging that after completion of project, if 9 nos. tippers which were used in completion of project, later if withdrawn, even after completion of the project, they would not be eligible to benefit of said Notfn - On the issue of limitation, appellant availed exemption under Notfn 108/95-CE on the basis of Certificates issued by Project Authority from time to time and clearance of tippers by availing benefit of Notfn declared in their monthly ER-1 returns, hence no fact was suppressed from knowledge of department - It is held by Supreme Court in J.K. SPINNING AND WEAVING MILLS LTD. AND ANOTHER 2002-TIOL-559-SC-CX-LB that extended period of limitation cannot be invoked in demanding duty on the basis of applying an amendment retrospectively - Impugned order is not sustainable, consequently, same is set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT
2023-TIOL-702-CESTAT-MAD
Vignesh Match Works Pvt Ltd Vs CCE
CX - A SCN was issued for wrong availment of input tax credit of amount paid on fully exempted goods as per Sl. No. 90 of Notfn 04/2006-C.E. as amended - In case of M/s. Kovai Maruthi Paper and Boards & ors. , the Tribunal had examined whether principal manufacturers should compulsorily avail the exemption under Sl. No. 90 of said Notification which prescribes 'nil' rate of duty - The Tribunal had followed the decision in case of M/s. Balakrishna Paper Mills and ors. 2015-TIOL-1100-CESTAT-MUM wherein it was held that an assessee cannot be forced to avail the 'nil' rate of duty provided under Sl. No. 90 of the Notification - Tribunal in case of M/s. Sripathi Paper & Boards 2018-TIOL-3085-CESTAT-MAD had occasion to analyse a similar issue - In view of said judicial precedents, impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-701-CESTAT-MAD
R K Industries Vs CC
Cus - The appellant had exported 100% Cotton Woven / Knitted T-Shirts under duty drawback scheme - The issue that arises for consideration is, whether the valuation re-fixed by Valuation Committee is sustainable in eye of law - When, admittedly, the transaction value is not rejected specifically, then it is for Revenue to justify for not accepting transaction value which is declared and secondly, what prompted the Revenue to refer to Valuation Committee to refix the transaction value is also not forthcoming from orders of lower authorities - Without following the mandate of Rule 8, the officer has referred to Valuation Committee and it is not the case of Revenue that Valuation Committee comprised experts in the field, but the said committee comprised only the departmental officers who are naturally interested - There is also no finding by lower authority that the parties are related in any way and hence, adjudicating authority should have looked into Section 14 ibid., which is also not done - Further, Tribunal do not see anywhere in either of orders of lower authorities that on what basis did they arrive at conclusion that transaction value declared was abnormal or very much high - Mere allegation would not suffice the requirement of law, what is essential is some semblance of evidence to justify such allegation - The action of authorities in referring to Valuation Committee for re-fixing of transaction value is without basis and denial of appropriate duty drawback to the appellant was also not in accordance with principles of law: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-700-CESTAT-AHM
Fiberweb India Ltd Vs CCE & ST
Cus - The appellant, a 100% EOU is engaged in manufacture of Polypropylene Spun Bond Non-Woven Fabrics - They imported raw-material "Polypropylene" from Singapore for use in manufacture for final product - A SCN was issued to them demanding Anti Dumping Duty on imported "Polypropylene" used for manufacture of finished goods and same was demanded by invoking provision of Notfn 5/94-CUS r/w Notfn 52/2003-CUS read with Section 9A (2A) (ii) of Customs Tariff Act, 1975 - In view of specific amendment brought in 2008 in statutory provisions, Anti Dumping Duty was clearly chargeable even if impugned raw-material was contained in finished goods cleared in DTA - Notwithstanding the decisions of prior period, Anti Dumping Duty was required to be paid by appellant - Though SCN has not demanded duty under provision of Central Excise Act particularly under section 3 and Notfn 23/2003-CE, but has still demanded the same as per calculations of aggregate Customs Duty which are borrowed machinery provisions under section 3 of CEA, 1944 - The lapse on the part of department is not such which has denied any natural justice to appellant - As they were aware of nature of duty sought to be charged being under Section 3 of CEA, 1944 as is clear from their submissions made before adjudicating authority, same therefore on merits is sustainable - However, on the point of limitation, appellants had reflected all their transactions in their books of account only - Same could be detected on the basis of record by visiting audit party - Rejection of plea relating to earlier periodic audits of appellants by adjudicating authority is not sustainable - Simply stating that audit does not check thoroughly but only on selected basis is nothing but exercise of undermining the purpose of departmental audit - It also does not bring on record as to what records were checked/not checked by audit, while giving such findings - Department while demanding duty was not sure of provision of law under which the same had to be demanded and even penalty has been imposed under Section 112 of Customs Act, 1962, whereas duty should have been demanded under Central Excise Act and penalty imposed under Central Excise Act/ Rules only - Demand can be sustained only for normal period of limitation and that penalty under section 112 of Customs Act, 1962 does not sustain: CESTAT
- Appeal partly allowed: AHMEDABAD CESTAT |
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