|
2023-TIOL-1082-CESTAT-AHM
Honey Ship Breking Pvt Ltd Vs CC
Cus - The present appeal pertains to the rejection of refund claim filed under Notification No. 102/2007- Cus dated 14.09.2007, in respect of lubricating oil imported by the Assessee - The refund claim was rejected on grounds of limitation. Held - The matter has been decided earlier in the case of M/s. Bharat Ship Breaker Corporation wherein it was held that "...8. The applicability of Section 27 ibid to determine time period in the case of provisional assessment has been clarified and upheld by the Hon'ble Delhi High Court in the case of Pioneer India Electronics (P) Ltd. (supra). However, we note that the appellant filed the refund claim even before finalization of assessment, guided by CBEC Circular dated 29-7-2010 as a precautionary measure. We also note that the said circular was partly held to be not sustainable by the Hon'ble Delhi High Court in the said case, insofar as it stipulates that the provisions of Section 27 ibid do not apply to this Notification. Considering the above factual position and noting that appellant did file the refund application, though before finalization of assessment, we are of the view that the claim cannot be rejected as time-barred..." - Relying on the decision in M/s. Bharat Ship Breaker Corporation the present appeals are allowed: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2023-TIOL-1081-CESTAT-CHD
Max India Ltd Vs CST
ST - Appeal filed against impugned order whereby Commissioner (A) has rejected the refund of service tax in respect of port services in respect of C & F Agency - Appellant is engaged in manufacture of BOPP Film in their plant - They are also exporting BOPP Film by utilizing of services of various agencies involved in facilitating the export sale such as transport of goods from factory to ICD, from ICD to the port of export and services rendered inside port of export until the goods are loaded on Board the cargo ship - Appellant was availing exemption in form of refund of service tax paid by these agencies in terms of Notfn 17/09-ST - In terms of said notification, appellant filed claim of refund of service tax paid on input services - Issue is no more res integra and has been settled in favour of appellant in their own case - Even department in appellant's own case for subsequent period has allowed the claim on impugned services - Impugned order is not sustainable in law and same is set aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
2023-TIOL-1080-CESTAT-KOL
AI Champdany Industries Ltd Vs CST
ST - The Appellant is engaged in manufacture of jute products - They have been exporting Hessian Cloth to importers from various countries - For such export transections, the Appellant was paying commission to various agents - The Central Excise Audit conducted took the view that the Appellant is required to pay the Service Tax on Reverse Charge basis for such commission paid - Further, the Appellant has provided residential accommodation to their staff and officers - For such accommodation, rent has been recovered from the salaries paid to the employees - The Appellants have also given certain commercial properties on rent - The Audit took the view that the Appellant is required to pay Service Tax on "Renting of Immovable Property" - The Appellant was issued Show Cause Notice demanding Rs.25,49,689/- on account of "Renting of Immovable Property Service" - They were issued Show Cause Notice demanding Rs.56,52,175/- on "Business Auxiliary Service" to be paid on RCM for the commission paid by them - After due process, the demands were confirmed. Held - The Jute per se is being traded in the Commodity Exchange for being bought or sold - On the other hand, the Hessian Cloth manufactured by the Appellant by using this jute is a separate independent commodity which is being bought and sold for different purposes - The Hessian Cloth does not fall under the category of "Agricultural Produce" as per the definition given in the Explanation given in the Notification No. 13/2003-ST dated 20/06/2003 - The reliance placed by the Appellant in the case of M/s. Glenworth Estate Limited Vs. Commissioner of Central Excise & Service Tax, Salem, is distinguishable and cannot be applied to the facts of the present case - Therefore, we hold that on merits, the demand on account of Business Auxiliary Services is required to be confirmed on merits - The demand in respect of Business Auxiliary services confirmed by the O-I-O is being upheld - Therefore, we reject the Appeal on merits in respect of Business Auxiliary Services - However, it is seen that the Appellant has been showing all the details of commission paid in their P & L Account and Balance Sheet and also regularly filing their ST-3 Returns - Therefore, no case has been made out towards suppression of facts - Accordingly, the demand in respect of the extended period is liable to be set aside on account of limitation: CESTAT Held - In respect of the confirmed demand of Rs. 25,49,689/- on Renting of Immovable Property, since the amendment has been brought in with effect from 20.06.2010, the Service Tax is not leviable for the period prior to this date - The demand for the extended period is also legally not sustainable - Moreover, the Appellant claims that they can produce evidence with regard to the receipt of amounts on account of renting of immovable property for residential purposes and for commercial purposes separately, which was not clearly brought out before the Adjudicating Authority - Demand on account of Service Tax component of the rent received by them towards Renting of Immovable Property for residential purposes is fully set aside - The Adjudicating Authority should get these facts verified and quantify the demand only on account of the renting of immovable property for commercial purposes, for the normal period - We remand the matter to the Adjudicating Authority for the limited purposes and for quantifying the demand for the normal period in respect of the Business Auxiliary Services and for quantifying the demand for the normal period in respect of the Renting of Immovable Property services in respect of the rent received on account of commercial properties - On both the above the re-quantified amount, the Appellant is required to pay the interest - The penalties are set aside and no fresh penalties are to be imposed on the re-quantified demands: CESTAT
- Appeals partly allowed: KOLKATA CESTAT
2023-TIOL-1079-CESTAT-BANG
L And T Construction Equipment Ltd Vs Pr.CCT
CX - The Appellant-company cleared hydraulic excavators to contractors/construction companies claiming exemption under Notification No.108/95 CE dated 28.08.1995 amended vide Notification No.13/2008 CE dated 01.03.2008 - Alleging violation of the condition of the said notification, proceedings were initiated and during investigation, examination in respect of contractors/ construction companies were conducted by various jurisdictional preventive units across the country - Based on the said allegation, it is found that few of the hydraulic excavators procured from Appellant have been withdrawn from the project, few are in the process of being withdrawn and others to be withdrawn once the project is completed - Based on the said Show Cause Notice was issued on 08.05.2009 alleging that appellant have evaded Central Excise duty to the extent of Rs.11,70,90,398/-, education cess of Rs.23,41,808/- and secondary education cess of Rs.3,29,585/- - Appellant denied the allegations and specifically submitted that the procedure of supplying the goods to the contract or to the subcontractors for use in the execution of the projects is as per the certificate issued by the project implementing authority in the name of the manufacturers and mentioning the contractors or subcontractors has been in practice right from the year 1995 i.e. ever since the said notification came into existence from 28.08.1995 and the Department is well aware of the same - Further it is submitted there is no evidence to allege that the goods were diverted or being diverted - In the absence of any evidence to the core condition of the notification, demand is unsustainable - However Adjudication Authority vide order dated 30.12.2009 confirmed the demand of Central Excise duty of Rs.11,97,61,791/- with education CESS and Secondary Education CESS for the period 2004-05 upto December 2008 - Thereafter aggrieved by the said order, the Appellant approached this Tribunal and this Tribunal held that the original Notification No.108/95 CE dated 28.08.1995 amended by the Notification No.13/2008-CE dated 01.03.2008 will have prospective operation and the demand against the Appellant can be sustained only for one year period which is within the period of limitation and penalty imposed by the impugned order deserves to be set aside - Though the Appellant submitted that they have not diverted the goods as alleged in the Show Cause Notice, this Tribunal has only recorded said submission and no finding given on said ground - Aggrieved by the Final order of this Tribunal, an appeal was filed by the respondent before the Karnataka High Court which was dismissed as not maintainable - Thereafter, the Department filed an appeal before the Supreme Court and the Supreme Court also dismissed the appeal vide order dated 22.02.2021 in Civil Appeal No. 27808/2020 - Only thereafter, matter was considered for de novo adjudication and the appellant submitted that even for one year, the exemption can be denied only if goods are removed outside the projects and not based on a probability that goods can be removed out of the project. However without giving any specific finding on said issue, adjudication authority vide impugned order confirmed the demand for one year. Held - There is strong force in the submissions made by the Appellant that the goods supplied during the relevant period by availing the exemption notification whether withdrawn from the project has to be examined and only if it is removed before completion of the project, the benefit of notification can be denied - Merely based on presumption that few of the hydraulic excavators procured from appellant have been withdrawn from the project, few are in the process of being withdrawn and others to be withdrawn once the project is completed, no finding can be made to deny the benefit of ibid notification - The Appellant from the very beginning of the investigation were submitting that they have not diverted the goods as alleged - There is no averment in SCN or impugned order regarding date of sale, date of removal of the goods and date of completion of the project to ascertain whether the goods were removed from the project prior to completion of the project for one year where duty confirmed - Further the issue regarding eligibility of the exemption notification on those cases where goods withdrawn after completion of the project was considered by the Tribunal in the matter of M/s Tata Motors Ltd. versus Commissioner of Central Excise & Service Tax, Jamshedpur - Hence in the absence of any evidence regarding removal of the goods before completion of the project, the benefit of the notification cannot be denied and the demand against the appellant is unsustainable: CESTAT
- Appeal allowed: BANGALORE CESTAT
2023-TIOL-1078-CESTAT-DEL
Godawari Power And Ispat Ltd Vs CC, CE & ST
CX - The Appellant is a holder of Central Excise Registration and is engaged in the manufacture of various iron and steel products, such as Sponge Iron, M.S Ingots, H.B Wire - The Appellant claims that it has been paying duty regularly and filing the returns - The present dispute relates to input service credit availed by the Appellant on the services availed by the Appellant with respect to renovation, repairs and modernizations of its plant and machinery - The case of the Department is that the said services relate to industrial and commercial construction services/work contract services pertaining to civil works and would not be 'input services' as defined under Rule 2(1) of the CENVAT Credit Rules, 2004 - Various audit objections had been raised to which the Appellant pointed out how the credit did not pertain to civil work but was in relation to renovations/repairs of the plant and machinery - The Appellant also segregated and reversed the service tax credit apportionable to civil work to the extent of Rs. 9,95,156/- on 23.06.2014 with interest of Rs. 3,03,786/- - However, two show cause notices were issued to the appellant proposing denial of input service credit on the premise that the service that was rendered by the appellant was in connection with civil work - The Appellant contested the show cause notices, but the entire demand of Rs. 83,78,858/- was confirmed with interest and penalties by an order dated 28.02.2018 - The Appellant filed an appeal before the Commissioner (Appeals) - The order was set aside and the matter was remanded for fresh adjudication by order dated 17.08.2018 - The appellant, on remand, supplemented the earlier submissions and submitted work-wise-invoice-wise chart duly certified by a Chartered Engineer - Specific details of input services, credit reversals were also provided - The Appellant also demonstrated how the input services were not civil works, but were used for renovation/repair/modernization of the plant and machinery - The adjudicating authority examined the input service transactions covered by the two Show Cause Notices and dropped a substantial portion of the demand, while confirming a smaller portion by order dated 25.03.2019 - The Department filed an appeal against that part of the order that dropped the demand and the Commissioner (Appeals) confirmed the demand of Rs. 64,04,899/- with interest and penalty. Held - What transpires from the aforesaid order passed by the Commissioner (Appeals) is that though the Commissioner also concluded that the input services related to modernization, renovation or repairs of factory premises and would be part of the input services but went on to hold that the Department would not be eligible to avail credit of these services because of the specific exclusion of construction/works contract service from the definition of input service w.e.f. 01.04.2011 - It is not possible to accept the reasoning given by the Commissioner (Appeals) - When input service under Rule 2(l) includes any service used in relation to modernization, renovation or repairs of factory either prior to 01.04.2011 or from 01.04.2011 upto 30.06.2012 or w.e.f 01.07.2012, the Appellant would be entitled to avail CENVAT credit of the input service received in relation to renovation or repairs of factory and merely because w.e.f. 01.04.2011 the construction of a building or a civil structure or a part thereof has been excluded from the definition of input service would not mean that any service used in relation to renovation or repairs of factory would stand excluded from the definition of input service - The exclusion part would cover constructions at the time of setting up of the plant and would not include the repairs or renovation works - The issue at hand stands settled in favor of the Assessee by the CESTAT vide order passed in the case of M/s. Jai Balaji Industries Ltd. vs. Commissioner of Central Excise, Customs & Service Tax, Durgapur Excise Appeal No. 76215 of 2016 decided on 04.08.2022 - In view of the this decision of the Tribunal, the order passed by the Commissioner (Appeals) denying the CENVAT credit to the Appellant merely for the reason that though the services that had been rendered were renovation or repair services which the appellant had received would be covered by the 'includes' part of the definition but the appellant cannot avail CENVAT credit because of the exclusion clause cannot be sustained - Hence the order passed by the Commr.(A) is set aside and the appeal is allowed: CESTAT
- Appeal allowed: DELHI CESTAT |
|
