2023-TIOL-1163-CESTAT-BANG
CC Vs Larsen And Toubro Ltd
Cus - The assessee imported G-24 PL 001 GSM Chipset Wavecom (modem) vide Bill of Entry, classifying them under chapter Heading 8517 6230 - The supplier invoices described the imported goods as " electronic components for metering production system ", and on examination, officers found that the goods imported were a chipset mounted on printed circuit board and as per Technical Write-up, the circuit boards were wireless CPU-a powerful programmable processor - There is no dispute that items imported are a programmable processor mounted on a printed circuit board - Commissioner (A)'s classification under Chapter Heading 8517 is misplaced in as much as this Chapter includes Telephone sets, smartphones and other telephones for cellular networks or for other wireless networks; other apparatus or for the transmission or reception of voice, Images or other data, including apparatus for communication in a wired or wireless network, other than transmission or reception apparatus of Heading 8443, 8525, 8527 or 8528 - It was observed that based on flowchart produced by assessee, the imported item is a component to be used in manufacturing of a modem and any part which goes into the manufacture of same, needs to be classified under Chapter Heading 8517 - It is a settled fact that principles of classification endorses that any classification should be based on description and function of an item as it is imported and not based on its end-use as held by Supreme Court in number of cases - It is also a fact that assessee are manufacturers of electric metre and their products are classifiable under chapter heading 90283010 and it is also an admitted fact that these impugned goods are used in automatic metering system - Therefore, Commissioner (A) justification for classification under Chapter Heading 8517 as part of modem is inappropriate - Since programmable controllers are specifically covered under Chapter Heading 8537, they are rightly classifiable under this Heading and not under Chapter Heading 8517 as part of modem - Imported item viz., G-24 PL 001 GSM Chipset Wavecom (modem) are rightly classifiable under Chapter Heading 8537 - Consequently, the impugned order is set aside: CESTAT
- Revenue is allowed: BANGALORE CESTAT
2023-TIOL-1162-CESTAT-MUM
Savita Oil Technologies Ltd Vs CCE
CX - The dispute relates to denial of access to eligible refund of duties of central excise, arising from finalization of provisional assessment for clearances effected from April 2011 to June 2011, by invoking bar of 'unjust enrichment' in section 11B of Central Excise Act, 1944 - The appellant is a manufacturer of 'lube oil' among several other products effecting sale through 'clearing & forwarding (C&F) agents' and their own depots at several places - As the price at which an independent sale takes place was not available at time of clearance, appellant had adopted practice of 'provisional assessment' at estimated price for payment of duty and subsequent to actual sale from downstream premises, the appropriate duty liability was discharged in full on finalization of assessment as provided for in rule 7 of Central Excise Valuation Rules, 2000 - Appellant submits that the issue had been festering for a time and that Tribunal in their own disputes for other periods, had held in their favour - Reliance was placed on decision in Savita Oil Technologies Pvt Ltd = 2017-TIOL-279-CESTAT-MUM pertaining to April 2010 to June 2010 and it was also submitted that similar denial for December 2011 to March 2013 was, after reversal by first appellate authority, not pursued for restoration by Revenue; the reference to acceptance thereof, by order on review by competent Committee of Commissioners, in order implementing the said appellate decision has been cited as precluding a contrary stand in present proceedings - Similar denial for 2010-11 by orde r was reversed by Tribunal in Savita Oil Technologies Pvt Ltd and for the period from October 2009 to March 2010 was resolved in favour of the appellant by final order 2019-TIOL-3246-CESTAT-MUM in Savita Oil Technologies - It is seen that several orders of Tribunal have held that such refunds cannot be withheld on ground of unjust enrichment - In view of settled law, no merit found in impugned order, same is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2023-TIOL-1161-CESTAT-AHM
Transformers And Rectifiers India Ltd Vs CCE
CX - The appellant had cleared transformers without any payment of central excise duty availing benefit of Notfn 15/2010 - CE pursuant to condition (i) of Notfn 15/2010- CE - Both the lower authorities have denied exemption on the ground that appellant have violated condition of Notfn 15/2010-CE in as much as the address of Superintendent/ Assistant Commissioner/ Deputy Commissioner was wrongly mentioned as Changodhar whereas the good were supplied from their Odhav unit - In this regard it is necessary to peruse the relevant certificate as well as invoices issued for supply of goods - In the annexure the name and address of project for which goods have been supplied to the project is also mentioned - The said annexure bears the seal and signature of project i.e. Waa Solar India Pvt Ltd as well as the appellant's Odhav Unit - These details clearly show that goods were supplied by appellant's Odhav Unit to concern project - From the invoices, it can be seen that the invoice was raised by appellant's Odhav unit and concerned project name was clearly given as Waa Solar India Pvt Ltd. - It is absolutely clear and beyond any doubt that the goods were supplied by appellant's Odhav unit to concerned project for which the certificate was issued - Therefore, the condition of notification is clearly fulfilled and address of Superintendent/ Assistant Commissioner/Deputy Commissioner given in the certificate was inadvertently mentioned - Only on that basis, the fact that the Certificate was indeed issued in favour of Appellant's Odhav unit for supply of goods by the Odhav unit to the Project Waa Solar India Pvt Ltd is not in dispute - Therefore, merely for the small error in certificate, the benefit of Notfn 15/210-CE cannot be denied - Impugned order is not sustainable, same is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2023-TIOL-1160-CESTAT-CHD
Krishnan And Company Vs CCE & ST
ST - The Appellant-company had provided services of Works Contracts as allotted to them from time to time by the M/s Nestle India Pvt. Ltd - On the basis of information provided by the Nestle India Pvt. Ltd., the Revenue authorities issued three show cause notices to the Appellant - Revenue on the basis of aforesaid show cause notices alleged that the appellant has provided 'Commercial Construction Services' as defined under clause (25b) of Section 65 & classified under sub-clause (zzq) of clause (105) of Section 65 of the Act, form September 2004 to September 2006 without taking any ST registration number, nor filed ST-3 returns as prescribed under the Finance Act, 2004 - After following due process, the adjudicating authority confirmed the demand of service tax alongwith interest and penalties - Thereafter, the Commissioner (Appeals) partially appreciating the submissions made by the appellant given the benefit of the 67% of the abatement, considering the activity as inclusive of value of construction material and also vacated the penalty under section 76 of the Act - However, commissioner (Appeals) kept the extended period of limitation and penalty under Section 78 of the Act intact vide the impugned order.
Held - This issue has been settled by the Apex Court in the case of Commissioner of Central Excise & Customs, Kerala Vs. M/s Larsen & Toubro Ltd. wherein it has been categorically held by the Apex Court that composite contract were not taxable under service tax prior to 01.06.2007 - By following the ratio of the above said decision, we hold that in the present case, it was a composite contract involving service and material and therefore, could not have been taxed before 01.06.2007 i.e. before enactment of works contracts service - Therefore, by following the ratio of the above said decision, the impugned order is not sustainable in law and therefore, we set-aside the same by allowing the appeals of the appellant with consequential relief, if any, as per law: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
2023-TIOL-1159-CESTAT-MAD
Bharat Heavy Electricals Ltd Vs CGST & CE
ST - Appellant is paying Service Tax under forward charge on various services as service recipient under reverse charge mechanism - The Revenue appears to have noticed that appellant was charging and recovering liquidated damages from outstanding payment due to suppliers / service providers for delay in supply contract and service contract, but had not paid Service Tax on same, whereafter an inquiry appears to have been initiated against appellant - The only issue to be decided by is, whether demand of Service Tax on liquidated damages is justified - Issue of demand of Service Tax on liquidated damages is no more res integra as the same has been settled in favour of taxpayer in various orders - Tribunal have also considered the Circular 214/1/2023-Service Tax wherein the Board has chosen not to pursue Civil Appeals filed by Department against some of Orders of Tribunal before Supreme Court - Impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT |
