2023-TIOL-773-CESTAT-DEL
CCE & GST Vs Hindustan Zinc Ltd
CX - Assessee had availed credit on goods mentioned in invoices provided by contractor to them - The goods on which such credit was taken are components, spares and/or accessories of goods classifiable under chapter 84, 85 or 90 of First Schedule to Central Excise Tariff Act, 1985 - It is not disputed that the component/parts of TGT plant were received in factory premises of the assessee under duty paid invoices which was in the name of assessee - Admittedly, TGT plant was manufactured out of such parts/spares/components and such plant was used in manufacture of dutiable final product - There is no dispute that machineries/components received at the factory of assessee on which the credit has been availed are indeed capital goods in terms of Rule 2(a) of CENVAT Credit Rules as is evident from the fact that credit arrangement has been restricted in impugned SCN to 50% in each year - Tribunal in several earlier decisions has held that the prerequisite for availment of CENVAT credit in respect of capital goods in the factory of manufacturer is its receipt in factory and use in manufacture of dutiable final product - The order of High Court of Rajasthan is binding on this Tribunal - Impugned order is restored: CESTAT
- Appeal dismissed: DELHI CESTAT
2023-TIOL-772-CESTAT-AHM
J B Chemicals And Pharmaceuticals Ltd Vs CCE & ST
CX - A short issue involved is that whether the medicaments supplied to institutional buyers like Indian Railways, Government Hospitals, BHEL for their exclusive use is subjected to assessment under Section 4 or 4A of Central Excise Act, 1944 - Issue is not under dispute that whether the medicament supplied to institutional buyers i.e. Indian Railways, Government Hospitals, BHEL for their exclusive use should be valued under Section 4 and Section 4A of Central Excise Act, 1944 - Since the supplies are not for retails sale but for exclusive used by government institutes therefore, since the goods are not meant for retail sale nor it is sold to retail buyers, condition of Revenue that value under Section 4A of Central Excise Act, 1944 has no legs to stand - This issue, in appellant's own case has been considered by Tribunal - In view of said decision in appellant's own case the issue stand settled - Accordingly, impugned orders are set-aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2023-TIOL-771-CESTAT-CHD
Vinayak Textiles Mills Vs CCE & ST
ST - Appeal filed against impugned order wherein Commissioner (A) has rejected the refund claim of assessee - As far as first objection of department is concerned, same is not tenable in view of wordings mentioned in notification itself - Assessee has produced confirmation of contract which clearly shows the payment of commission at a fixed rate on FOB Value of export and this issue has been settled by Tribunal in case of Mittal International = 2017-TIOL-1598-CESTAT-CHD - As far as second objection for denying the refund claim is concerned, this issue has also been considered by Tribunal in case of CAP & SEAL (Indore) Pvt. Ltd. wherein Tribunal has specifically held that service tax paid on transportation of empty container from port to factory is admissible as refund - As far as third ground for denial of refund is that service providers are not registered for services such as CHA/Port Services, this issue has also been considered by Rajasthan High Court in case of Arihant Tiles and Marbles Pvt. Ltd. wherein it has been held that Registration under a particular service is not necessary for purpose of exemption under Notfn 41/2007 - Impugned order is not sustainable in law: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
2023-TIOL-770-CESTAT-AHM
Goyal And Company Construction Pvt Ltd Vs CST
ST - SCN has proposed the demand of Service Tax under construction of residential complex - However, in impugned order demand was confirmed under Commercial or Industrial Construction Service - Thus, impugned order has travelled beyond the scope of SCN - SCN cannot be rectified by way of Adjudication Order passed in such SCN, therefore, on this ground alone demand is not sustainable - Moreover, the period involved is 2005-06, even if it is assumed that appellant had provided commercial or industrial construction service but undisputedly the service was provided along with material, therefore, it is falling under works contract Service - The levy of Service Tax on Works Contract was brought under the statute only w.e.f. 01.06.2007 - The Supreme Court in case of L & T Ltd. = 2015-TIOL-187-SC-ST clearly held that if nature of services is of works contract, same is not levy to service tax prior to 01.06.2007 - As regard the demand under head of renting of immovable property, it is found that the levy of service Tax on renting of immovable property was not free from doubt, there were contrary judgments on this issue and finally the matter seized by Supreme Court - Therefore, issue involved is of interpretation of definition of renting of immovable property service - Moreover, demand was raised on the basis of scrutiny of documents of appellant during the audit - This also shows that appellant have no intention to hide their transaction with intent to evade payment of Service Tax, therefore, in absence of any suppression of fact, fraud or collusion, demand for extended period cannot be sustained - Therefore, this demand under renting of immovable property service is set aside on the ground of limitation - Impugned order stands modified to said extent: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2023-TIOL-769-CESTAT-KOL
CC Vs N N Traders
Cus - Assessee imported old and used worn clothing, completely fumigated which were assessed after value enhancement, confiscation and imposition of redemption fine and penalty - Adjudicating Authority has imposed redemption fine and penalty at the rate of 30% & 10% of assessed value respectively - The assessee filed an appeal before Commissioner, who reduced the redemption fine and penalty to 10% & 5% respectively - Revenue is before Tribunal for enhancement of redemption fine and penalty - Following the decision of Tribunal in Venus Traders, it is held that redemption fine and penalty to the tune of 10% & 5% is sufficient to meet the end of justice - Consequently, no infirmity found in impugned order and same are upheld: CESTAT
- Appeals dismissed: KOLKATA CESTAT |
