|
2023-TIOL-1024-CESTAT-MUM
Hindustan Coca-Cola Beverages Pvt Ltd Vs CCE
CX - This appeal of M/s Hindustan Coca-Cola Beverages Pvt Ltd, arising from Order-in-Original, in which recovery of Rs 1,75,49,220/- has been confirmed under section 11A of Central Excise Act, 1944, along with interest as applicable under section 11AB of Central Excise Act, 1944, besides imposing penalty of like amount under section 11AC of Central Excise Act, 1944 for the period from April 2006 to March 2011, seeks restoration of credit availed under CENVAT Credit Rules, 2004 that had been disallowed as ineligible - Proceedings were initiated against the appellant in relation to certain taxable services, procured in pursuit of their business of manufacturing 'aerated water', and the tax so discharged were claimed as eligible credit which was sought to be denied for reasons peculiar to each - Accordingly, credit attributable to 'goods transport agency service' for outward transportation up to the place of buyer, amounting to Rs 1,25,79,059/- was disallowed as also Rs 6,428/- on such service for transport of inputs cleared as such, to 'outdoor catering service' to the extent of Rs 19,95,382, to 'manpower recruitment and supply agency service' to the extent of Rs 25,932/- and for services rendered by Mumbai International Airport Authority amounting to Rs 29,42,220/- were enumerated as ineligible - Hence the present appeal.
Held - Considering the lack of detailed examination of the submissions of the appellant herein in relation to the several heads on which CENVAT credit was directed to be recovered, it would be appropriate for the matter to be decided afresh - Case remanded to such end: CESTAT
+ the issue of eligibility prior to 1st March 2008 stands settled thus enabling availment of credit on 'outward transportation' in view of the order of Hon'ble Supreme Court in re Vasavadatta Cements Ltd. Demand for the period will not sustain. For the period thereafter, on examination of the several decisions cited by Learned Counsel, we find that show cause notices dropping the demand at the original stage or at the first appellate stage, had been issued long after the order now impugned before us. It would appear that the contrary stand taken by the adjudicating/appellate authorities, since the passing of the impugned order, is at variance with stand of Revenue in order before us. Besides, it is on record the original authority had failed to scrutinize the documents with due diligence. It would, therefore, be appropriate that this be undertaken for which purpose the demand pertaining to recovery of credit of tax paid on 'goods transport agency service' for the period from 1st March 2008 is set aside for a fresh determination;
+ Insofar as the eligibility of credit on 'outdoor catering service' is concerned, it would appear that one of the issues in dispute is the extent to which such cost has been recovered from employees. Though the Learned Counsel argued that this had not been a ground raised in the show cause notice, we, nonetheless, are of the opinion that applicability of the law as settled by judicial decisions needs ascertainment and, therefore, the facts must be subjected to evaluation;
+ Insofar as the other portion of the demand is concerned which is availment of credit of tax paid on charges levied by Mumbai International Airport Ltd in connection with the vending machines and kiosks installed in the airport premises being denied on the ground that the goods themselves are exempt from duty of central excise, it would appear that the activity towards which the availment was claimed, pertains to trading which, being an exempt service, would not be entitled to the benefit of CENVAT credit of any input service. It is the contention of the Learned Counsel that the authorization for operation of these counters/kiosks issued by Mumbai International Airport Ltd contains details of the responsibilities of the appellant. It was submitted that the availment had been permitted in decisions of the Tribunal elsewhere in relation to their activities within those jurisdictions. It would appear that the impugned order has not examined the context in which the activities were undertaken by the appellant and had not examined the scope of availability of credit in accordance with CENVAT Credit Rules, 2004.
- Case remanded: MUMBAI CESTAT
2023-TIOL-1023-CESTAT-MAD
CC Vs HCL Info Systems
Cus - The Order in Original sanctioning refund to assessee was signed on 26.2.2010 - Same was issued only on 4.3.2010 - Commissioner (A) computed the period of passing of review order from date of issue of order (4.3.2010) and held that there is a delay of 8 days in passing the review order - Commissioner (A) has thus erroneously dismissed the appeal filed by department - The very same issue of delay in passing review order had come up before Tribunal in several other matters - Even after much efforts, Commissioner (A) could not get details from department as to the date of receipt of O-I-O by Review Cell - If Department had knowledge about date of receipt of O-I-O by Review Cell as being 11.3.2010, they ought to have furnished such evidence before Commissioner (A) itself - Appeal filed by department is without merits - Impugned order sustained: CESTAT
- Appeal dismissed: CHENNAI CESTAT
2023-TIOL-1022-CESTAT-MAD
Varma Constructions Pvt Ltd Vs CCE
ST - The present appeal was filed to challenge the vires of an Order-in-Original, which sought to levy service tax under construction of residential complex services - The Revenue opined that the assessee had provided services of construction of residential complex without obtaining registration under the said service, had thus failed to pay Service Tax under the said category and that they also had not filed their ST-3 returns - A Show Cause Notice was issued proposing the demand of Service Tax under the above category, covering the period from 16.06.2005 to 31.03.2009, along with applicable interest and penalty - The demand having been confirmed under construction of complex services for the said period in the impugned Order-in-Original, the same have been assailed in this appeal by the Assessee - The Commissioner has also observed that the Service Tax on construction of residential complex service was brought into Service Tax net with effect from 16.06.2005, the assessee was providing the above service even prior to that date, they also had not obtained Service Tax registration under the above head and hence, has held that the same was a justifiable reason to invoke the extended period of limitation under the proviso to section 73 (1) of the Finance Act.
Held - It is necessary to examine the preliminary contention of the Assessee that it's activities are not taxable under construction of complex service as per the ratio of the Apex Court in the case of Commissioner of Central Excise and Customs, Kerala v. M/s. Larsen & Toubro Ltd - The Revenue has not disputed the provision of construction service in terms of contract between the parties and the said activity was carried out in a composite manner and hence, there is no possibility to sustain demand up to 01.06.2007 on the above contract - For the subsequent period i.e., post 01.06.2007, in view of the very fact that the demand has been worked out after allowing abatement, no Service Tax could be demanded under construction of complex services simpliciter - Hence, in the light of the decision of Supreme Court in the case of Commissioner of Central Excise and Customs, Kerala v. M/s. Larsen & Toubro Ltd. which has followed by the co-ordinate Hyderabad Bench of the CESTAT in the case of Commissioner of Customs, Central Excise and Service Tax, VisakhapatnamI v. M/s. Pragati Edifice Pvt. Ltd. and by this Bench in the case of M/s. Jain Housing & Construction Ltd. v. Commissioner of Service Tax, Chennai and various other Benches of the CESTAT, no Service Tax as confirmed in the impugned order is justified - Hence the order stands quashed: CESTAT
- Appeal allowed: CHENNAI CESTAT |
|
