| CASE
LAWS |
| -This section contains the Judgment on cases argued by the
team swamy associates and reported. |
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Reported Cases 2019
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S.No.
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Name of the party
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Citation
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Issue in brief
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| 1 |
Sulabh International |
2019-TIOL-60-CESTAT-HYD |
Once the Order-in-Appeal has been passed by the First Appellate Authority, the O-I-O
passed by lower authority has already merged with it and the Commissioner had no power to
revise it. Therefore the Order-in-Revision is passed without authority of law as the O-I-A
has already been passed against the impugned O-I-O passed by the lower authority. - Sulabh
International Social Service Organisation 2019-TIOL-60-CESTAT-HYD |
| 2 |
Texcel International Pvt Ltd |
2019-TIOL-168-CESTAT-MAD |
Advances received for Renting of immovable property services during the FY 2007 –
08. The Department has adjusted the advance received by assesse in 2007-08 in the said year
itself though the rent for entire period in 2007-08 was received by assesse without any
default – The intention of security deposit is to adjust the same when there is
default in payment of rent. Such default has happened only in the FY 2009 – 10.
Department cannot demand service tax on the advance received by assessee for the period
2007-08. Matter is remanded back to the adjudicating authority for the purpose of
re-quantification. - Texcel International Pvt Ltd 2019-TIOL-168-CESTAT-MAD |
| 3 |
Universal Aviation Services Pvt Ltd |
2019-TIOL-167-CESTAT-MAD. |
Assessee in their reply to SCN has stated that they were undergoing much financial crisis
due to non-receipt of amounts from airlines. The facts indicate strongly that the
non-payment was due to financial difficulties. They furnished documents to establish these
facts. Demand has been raised on the basis of figures furnished by assessee and department
has no allegation of any deliberate act done to evade payment of tax. For these reasons, the
ingredients for imposing penalty under section 78 are not attracted and is a fit case for
invoking provisions of section 80 of FA 1994. - Universal Aviation Services Pvt Ltd
2019-TIOL-167-CESTAT-MAD. |
| 4 |
Gayatri Projects Ltd |
2019-TIOL-159-CESTAT-KOL. |
Department demanding service tax under commercial or industrial construction service for
period from 10.9.2004 to 31.3.2008. In view of Supreme Court judgment in the case
of CCE Kerala Vs. Larsen & Toubro - 2015 (39) STR 913,it has been held that
provisions of Section 65(105)9g), 65(105(zzd), 65(105)(zzh), 65(105)(zzq) and 65(105(zzzh)
were not sufficient for levy of service tax on indivisible composite work contract prior to
1.6.2007. In view of Supreme Court judgment in the case of CCE Kerala Vs. Larsen &
Toubro - 2015 (39) STR 913 demand under CICS post 1.6.2017, in respect of composite contract
undertaken by the assessee is not at all sustainable.- Gayatri Projects Ltd
2019-TIOL-159-CESTAT-KOL. |
| 5 |
Irbaz Shoe |
2019 (365) ELT 263 HC MAD |
Removal of shoe uppers without payment of duty for manufacture of excisable goods to be
exported. Failure to follow procedure laid down in Notification No. 43/2001-C.E. (N.T.)
Failure to get registered under Rule 9 of Central Excise Rules, 2001 and inform Department
about clearance of the goods - Complete non-observance of procedure not mere a procedural
lapse. Invocation of Section 11A of Central Excise Act, 1944 for recovery of excise duty
justified -. The order of the CESTAT in confirming the levy of duty by invoking extended
period of limitation, does not requires any interference. Interpretation of statute -
Exemption notification - Stringency and mandatory nature of any notification to be decided
on basis of purpose it seeks to achieve. Appeal of the assesse against the order of the
CESTAT dismissed by the HC of MADRAS Irbaz Shoe - 2019 (365) ELT 263 HC MAD |
| 6 |
Ramoorthi Construction |
2019 (20) GSTL 297 Tri |
1. Abatement of
Service Tax - Denial of - Non-inclusion in gross value of services, the value of free
supplies. - Since value of free supplies not includible in gross value of services
provided, abatement of Service Tax under Notification No. 1/2006-S.T. cannot be denied .
The ratio of the Larger Bench’s decision in case of Bhayana Builders (P) Ltd. v.
Commissioner of Service Tax, Delhi - 2013 (32) S.T.R. 49 (Tri.-LB will be rightly
applicable to the present case also.) Appeal allowed.CESTAT. Ramoothi Construction- 2019
(20) GSTL 297 Tri |
| 7 |
M.Rajan |
2019-TIOL-283-CESTAT-MAD |
1. Assessee
provided training / coaching programme on personality development as well as English
speaking course. The Department classified the services provided under category of
'Commercial Training or Coaching Service'. The Tribunal has followed the decision
in Mariya Computer Systems (P) Ltd 2017-TIOL-864-CESTAT-DEL. And held that the demand
in respect of 'Commercial Training or Coaching Service' cannot sustain. - M.Rajan
2019-TIOL-283-CESTAT-MAD |
| 8 |
BSNL |
2019 (20) GSTL 596 Tri Ch |
1. Valuation of Telecommunication Services - PCO operator - Amount collected from PCO user
(customer) - Liability to Service Tax - Period involved prior to insertion of Explanation in
clause (1) of Rule 5 of Service Tax (Determination of Value) Rules, 2006 vide Notification
No. 2/2011-S.T., dated 1-3-2011 - Notification effective only from 1-3-2011 - Demand of
differential amount of Service Tax cannot sustain - Impugned orders confirming demand set
aside. Assessee’s appeal allowed/Department’s appeals dismissed. CESTAT. BSNL
2019 (20) GSTL 596 Tri Ch |
| 9 |
Rane Nsk Steering Systems Pvt Ltd |
2019-TIOL-326-HC-MAD-CX. |
Imposition of penalty u/r 15 of CCR, 2004. Adjudicating Authority assumed jurisdiction
which has been shown to be not in existence for the period upto 31.3.2010. Imposition of
equal penalty for the periods both from March 2008 to March 2010 and from 01.4.2010 to
31.1.2015 set aside. Issues raised by the assessee being issues touching upon the
jurisdiction of the Authority, writ petitions are allowed and matters are remanded to
adjudicating authority to consider the case afresh. - Rane Nsk Steering Systems Pvt Ltd
2019-TIOL-326-HC-MAD-CX. |
| 10 |
Pricol Ltd |
2019-TIOL-543-CESTAT-MAD. |
Demand of service tax on royalty charges paid to foreign collaborators of assessee for
transfer of technical know how under "Intellectual Property Service". Technical know-how
involved in both these cases are not covered under any Indian law. This being so, the ratio
consistently reiterated in Tata Teleservices Ltd 2016-TIOL-2619-CESTAT-MUM, Tata
Consultancy Services Ltd 2015-TIOL-2370-CESTAT-MUM and Catapro Technologies
2017-TIOL-2729-CESTAT-MUM will apply and therefore the impugned orders will not survive and
will require to be set aside. - Pricol Ltd 2019-TIOL-543-CESTAT-MAD. |
| 11 |
Variegate Projects Pvt Ltd |
2019-TIOL-529-CESTAT-HYD |
Notfn No 45/2010-ST grants retrospective exemption to all service providers for taxable
services relating to transmission and distribution of electricity bill.- Variegate Projects
Pvt Ltd 2019-TIOL-529-CESTAT-HYD. |
| 12 |
Raga Foundation |
2019-TIOL-493-CESTAT-MAD. |
The assessee was
involved in Construction business of independent houses and residential flats who entered
into a joint development agreement. The issue is settled in the case of M/s. Aswini
Apartments Vs. Commissioner of G.S.T. & Central Excise 2018-TIOL-3350-CESTAT-MAD
where it was held that the demand of service tax under commercial or industrial
construction service (residential complex) cannot sustain after the period 1.6.2007, the
levy of service tax prior to 1.6.2007 cannot also sustain by application of the decision
of the Supreme Court in the case of Larsen & Toubro Ltd. - Raga Foundation
2019-TIOL-493-CESTAT-MAD. |
| 13 |
Bay Forge Ltd |
2019-TIOL-488-CESTAT-MAD. |
Assessee confining their plea with regard to the waiver of penalties imposed. It is
brought out from the submissions as well as from the records that the appellant had enough
credit balance during the relevant period. They had reversed major part of the credit during
the investigation itself and as and when pointed out by the department and this was done
much before issuance of the show cause notice. We further, take note that all these issues
are in the nature of interpretation of law or have resulted from mistakes and inadvertent
errors on calculating the amounts to be reversed. Taking all these aspects into
consideration, we are of the view that the penalties imposed on all the issues cannot
sustain and require to be set aside. - Bay Forge Ltd 2019-TIOL-488-CESTAT-MAD. |
| 14 |
Sri Kumaran Trading Co. |
2019 (21) G.S.T.L. 512 (Tri. - Che). |
Commission received on account of hedging in business, i.e., arranging contracts with
third party and in execution thereof supplying goods on a fixed tender price. Amount
received as a profit on account of fluctuation in market price which sometimes may be lower
than the fixed tender price, cannot be termed as commission paid for promoting business of
client. Such amount/profit earned on hedging activity not leviable to Service Tax under BAS.
- Sri Kumaran Trading Co. 2019 (21) G.S.T.L. 512 (Tri. - Chennai). |
| 15 |
Jeyyam Global Foods Pvt Ltd |
2019-TIOL-432-HC-MAD-GST |
Detention of goods under GST by Assistant State Tax Officer. Classification of 'Dried
Chick Peas', whether under Chapter 0713 and exempted or under Chapter 2106 and taxable.
Squad officer can intercept the goods, detain them for the purpose of preparing the relevant
papers for effective transmission to the jurisdictional assessing officer However, it is not
open to the squad officer to detain the goods beyond a reasonable period. Final call will
have to be taken only by the jurisdictional assessing officer. Commissioner of Commercial
Taxes, Chennai directed to issue a circular to all the inspecting squad officers in Tamil
Nadu not to detain goods or vehicles where there is a bonafide dispute as regards the
exigibility of tax or rate of tax. - Jeyyam Global Foods Pvt Ltd 2019-TIOL-432-HC-MAD-GST
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| 16 |
Sify Technologies Ltd |
2019-TIOL-737-CESTAT-MAD |
Cenvat credit allowed on input services such as Errors and omission insurance
policies, Transit insurance policy and Umbrella fixed asset policy - Sify Technologies Ltd
2019-TIOL-737-CESTAT-MAD |
| 17 |
Hindustan Motor Finance |
2019-TIOL-706-CESTAT-MAD. |
Denial of credit availed on Travel Agency services. The dispute pertains to period prior
to 01.04.2011 when the definition of 'input service' had a wider scope, so as to include any
service used by a manufacturer directly or indirectly in relation to the manufacture or
clearance of final products from the place of removal. Further the onus rests with the
Revenue to prove that travel agency service were used for the personal consumption of
employees. As nothing is put forth to prove this demand raised on this count is quashed.
Hindustan Motor Finance Corporation Ltd 2019-TIOL-706-CESTAT-MAD. |
| 18 |
Madras Metals |
2019-TIOL-693-CESTAT-MAD. |
Importer is eligible for refund of SAD, despite the fact that its claim of refund
was belated (by 10 days) considering the decision of the CESTAT in the case of M/s.
Goyal Impex & Industries Ltd. Vs. Commissioner of Customs (Chennai-IV) – 2018 (9)
T.M.I. 95 – CESTAT Chennai. - Madras Metals 2019-TIOL-693-CESTAT-MAD. |
| 19 |
NAGARJUNA CONSTRUCTION COMPANY |
2019-TIOL-667-CESTAT-DEL |
Show cause notice in question, invoking the extended period of limitation has been issued
by way of change of opinion, there being no condition precedent available for invocation of
extended period of limitation. SCN not maintainable. NAGARJUNA CONSTRUCTION COMPANY LTD
2019-TIOL-667-CESTAT-DEL |
| 20 |
Rane Brake Lining Ltd |
2019-TIOL-656-CESTAT-MAD. |
Input service credit on outward transportation, car hiring, car repairing and outdoor
catering services. The only dispute in these appeals are pertaining to car repair and
canteen services - Assessee is correct in their assertion that there was no restriction or
bar in definition of 'input services' in Rule 2 (l) ibid prior to 1.4.2011 - Rane Brake
Lining Ltd 2019-TIOL-656-CESTAT-MAD. |
| 21 |
Ishwarya Publicities Pvt Ltd |
2019-TIOL-649-CESTAT-MAD. |
The appellants only dispute the tax demanded regarding the services provided to other
advertising agencies. Such agencies are the actual providers of the service providers to the
client. This issue is clarified by the CBIC Circular No 341/43/96-TRU dated 31.10.1996.
Hence no demand can be raised on value of services provided to other advertising agencies -
Ishwarya Publicities Pvt Ltd 2019-TIOL-649-CESTAT-MAD. |
| 22 |
Adecco Flexi One Work Force |
2019-TIOL-616-CESTAT-BANG. |
Delay in payment of Service Tax by itself would not reveal intent to evade payment
of duty and for the reason that there has been a delay in payment of Service Tax, fraud,
suppression and collusion cannot be alleged. There is a penalty under Section 76 for
delayed payment. Therefore, invoking of Section 78 for delayed payment in itself is not
acceptable. - Adecco Flexi One Work Force Solutions Ltd 2019-TIOL-616-CESTAT-BANG. |
| 23 |
Kaynes Technology India Pvt Ltd |
2019-TIOL-601-CESTAT-BANG |
Once the assessee has paid the amount as per Rule 6(3) of CCR, Revenue cannot
insist that assessee should reverse the entire credit. Further the appellant in order to buy
peace reverse the entire credit and also paid the interest on the remaining amount. In view
of these circumstances, it was not justified to impose penalty. - Kaynes Technology India
Pvt Ltd 2019-TIOL-601-CESTAT-BANG |
| 24 |
Parker Markwel Industries Pvt |
2019-TIOL-399-CESTAT-HYD |
Demand on the services which was received from abroad in respect of Management
Consultancy Services and also on the job work undertaken by them. It was held that the
demands raised against the assessee on this point are unsustainable upto 18.04.2006 on
merits itself. Demand of service tax liability under Management Consultancy Services, Export
Sales Commission and GTA services post 18.04.2006 is hit by limitation - Parker Markwel
Industries Pvt Ltd 2019-TIOL-399-CESTAT-HYD |
| 25 |
Rmkv Fabrics Pvt Ltd |
2019-TIOL-51-AAR-GST |
Salwar/Chudidar sets, both top and bottom not stitched consisting of three pieces of
fabrics (top/bottom/dupatta) is classifiable as fabrics under Chapter 50 to 55 of Customs
Tariff and applicable rate of tax would be 2.5% CGST. Salwar/Chudidar sets, top
semi-stitched, but bottom not stitched and dupatta fabrics cut from bales/thans is
classifiable as ‘made up articles' under tariff heading 6211 depending upon material
attracts tax CGST @2.5% if sale value does not exceed Rs.1000 per piece and CGST @6% if sale
value exceeds Rs.1000 per piece. Salwar/Chudidar sets, top fully stitched but bottom not
stitched and dupatta fabrics cut from bales/thans is classifiable as ‘made up
articles' under tariff heading 6211 depending upon material attracts tax CGST @2.5% if sale
value does not exceed Rs.1000 per piece and CGST @6% if sale value exceeds Rs.1000 per piece
and Salwar/Chudidar sets, top neck-worked, bottom not stitched and dupatta fabrics cut from
bales/thans is classifiable as ‘made up articles' under tariff heading 6211 depending
upon material attracts tax CGST @2.5% if sale value does not exceed Rs.1000 per piece and
CGST @6% if sale value exceeds Rs.1000 per piece. - Rmkv Fabrics Pvt Ltd
2019-TIOL-51-AAR-GST |
| 26 |
Maa Mahayamaya Industries |
2019-TIOL-196-CESTAT-HYD |
The assessee has availed CENVAT credit on various inputs like steel items, profile sheets,
electrodes and cement for fabrication and erection of plant and machinery. It was held that
the ratio of judgment of High Court was followed by this Bench in case of Sree
Jayajothi Cements Ltd 2017-TIOL-3950-CESTAT-HYD as also in case of Penna Cement
Industries Ltd 2018-TIOL-1610-CESTAT-HYD to hold that CENVAT credit availed on various
items in the period prior to 07.07.2009 needs to be allowed. - Maa Mahayamaya Industries Ltd
2019-TIOL-196-CESTAT-HYD. |
| 27 |
Azam Laminators |
2019-TIOL-763-CESTAT-MAD |
Betel nut powder known as 'supari' was manufactured by cracking of
dried betel nuts into small pieces and gently heating pulverised betel nut with vanaspati
and then coating the same with sweetening and flavouring agents and the resultant product is
then packed in small pouches and marketed as 'Nizam Pakku'. It was held that the product
satisfying the requirements of Chapter Note 3 (b) of Chapter 8 will, therefore, necessarily
fall under 0802 9019. Azam Laminators Pvt Ltd 2019-TIOL-763-CESTAT-MAD |
| 28 |
IVRCL Infrastructure and Projects Ltd |
2019-TIOL-1199-CESTAT-HYD |
Respondents had supplied pipes to various projects and claimed exemption from CE duty in
terms of notification 03/2004-CX. The initial certificates were cancelled on insistence of
dept and the respondent paid the Central Excise duty and pursued the matter before the CBEC.
Board clarified that the respondent is covered by the exemption notification, therefore,
fresh certificates were obtained from the District Collector and refund sought of the duty
already paid. It has been held that there is nothing in the notification which requires
nexus between the new certificate with the cancelled certificate deny the exemption on the
ground that the pipes were used for carrying treated water from the plant to the industrial
units. Such denial is clearly not covered by the notification which exempts both, pipes
needed for delivery of water from its source to the plant as well as from there to the
storage facility Respondent is not the manufacturer of pipes but has procured it from the
manufacture. It is not clear under what authority of law the Assistant Commissioner has
sought to recover the CENVAT credit due from the manufacturer, from the buyer, which is also
beyond the scope of the SCN and is completely untenable. – IVRCL Infrastructure and
Projects Ltd 2019-TIOL-1199-CESTAT-HYD |
| 29 |
Indroyal Furniture Company |
1. 2019-TIOL-1134-CESTAT-MAD |
1. Any statement / print out taken out of the computer would be admissible in evidence
only if it is supported by a certificate as required under sub-section (4) of Section 36B.
The condition in Section 36B have not been complied with respect to the data retrieved from
the computer. The statements cannot be considered as standalone documents to prove the
allegations in SCN. The main evidence relied for quantification of duty i.e. computer print
outs being not admissible in evidence, the demand could not have been confirmed Indroyal
Furniture Company Pvt Ltd 2019-TIOL-1134-CESTAT-MAD |
| 30 |
Pv Rama Rao And Company |
2019-TIOL-1088-CESTAT-HYD |
1. Respondent is a service provider to M/s ITC Limited who are the manufacturers of paper.
It appeared to the department that the respondent were providing BAS and were instead paying
service tax under Manpower Supply service. They had two kinds of agreements with M/s
ITC Limited for providing manpower. The holistic reading of the two contracts clearly
indicates that the nature of contract is provision of manpower including manpower to
supervise the labour and to ensure that they undertake the work of the requisite quality. It
can indeed fall under the category of manpower supply services and not under BAS. Pv Rama
Rao And Company 2019-TIOL-1088-CESTAT-HYD. |
| 31 |
Ambattur Developers Pvt Ltd |
2019 TIOL-1241-CESTAT-MAD |
The issue at hand stands settled in a number of cases - All these cases reiterate that
services used for constructing materials which were then rented out are very eligible input
services - Besides, the Tribunal in Rattha Holding Co.Pvt. Ltd. Vs CST relied upon
the decision of the Andhra Pradesh High Court in Sai Samhmita Storages (P)
Ltd. wherein it was held that disallowance of credit on input services used for
construction of buildings is justified - There are no grounds to deviate from the view taken
in these cases - In this case, the order in challenge merits being set aside. Ambattur
Developers Pvt Ltd 2019 TIOL-1241-CESTAT-MAD |
| 32 |
COTTON CITY DEVELOPERS |
2019-TIOL-1193-CESTAT |
The appellant-company is engaged in construction of residential complexes SCN was
initiated against the appellant, raising duty demand under Construction of Residential
Complex Service u/s 65(91a) of the Finance Act 1994, along with interest & imposition of
penalties -On appeal, the same was upheld by the Commr.(AThe reliance placed by the Revenue
upon the decision of the Apex Court in M/s. G.D. Builders Vs. Union of India is
erroneous - Besides, the Apex Court in Commissioner of C.Ex. & Cus. Vs. M/s. Larsen
& Toubro Ltd. clearly held that composite contracts cannot be vivisected - Besides,
in the Tribunal Larger Bench decision in M/s. Bhayana Builders Pvt. Ltd. Vs.
Commissioner it was clearly held that value of free supplies is not be included in
value of gross amount charged - Hence, the order in challenge cannot be sustained:
CESTAT . COTTON CITY DEVELOPERS. 2019-TIOL-1193-CESTAT |
| 33 |
Pricol Ltd |
2019-TIOL-1768-CESTAT-MAD |
The case is based on allegation that the Credit which was distributed by assessee (ISD),
was re-transferred to it and later distributed to the other units. There is no prohibition
in law for such reversal of Credit to the Input Service Distributor. The law does not
provide any procedure that can be applied to such situations. Such return/reversal has not
enlarged the quantum of Credit that has been availed nor has there been any financial injury
caused to the exchequer. This is only a revenue neutral situation and therefore the demand
or penalties cannot sustain. - Pricol Ltd 2019-TIOL-1768-CESTAT-MAD |
| 34 |
Bmm Ispat Ltd |
2019-TIOL-1584-CESTAT-BANG |
The input services were used for fabrication, erection and installation services of
equipment like Hoppers, Chutes, Ducts and Air Tubes and not used for setting up of a factory
or office building or for laying foundation - The scope of input service post amendment in
01.04.2011, includes any service used by manufacturers directly or indirectly or in relation
to manufacture of final product. Records show that all services were used for fabrication
and erection of various equipment and machinery and has not been used for setting up of the
plant or civil structure - In such circumstances, the O-i-A in challenge is unsustainable:
CESTAT Bmm Ispat Ltd 2019-TIOL-1584-CESTAT-BANG |
| 35 |
Bmm Ispat Ltd |
2019-TIOL-1541-CESTAT-BANG |
The assessee has wrongly availed CENVAT credit on structural steel items like HR
coil and SS Plates inasmuch as the said items do not fall within the ambit of neither input
nor capital goods definition of CCR, 2004.The only ground on which the original authority
has denied the CENVAT credit is that the assessee has not produced the documentary proof of
usage of impugned goods. Further, assessee had produced the documents before appellate
authority but the Commissioner (A) refused to consider those documentary evidence on the
ground that the same has not been produced before the original authority and the original
authority did not had an occasion to examine those documents. The matter is remanded back to
the original authority. - Bmm Ispat Ltd 2019-TIOL-1541-CESTAT-BANG |
| 36 |
Tamilnadu Spinning Mills Association |
2019-TIOL-1408-CESTAT-MAD |
Assessee had been collecting about Rs.10,000/- every year from every member mills
and not discharging service tax liability under "Club or Association Service". The matter is
no longer res integra and has been decided in favour of assessee by High Court of Jharkhand
in case of Ranchi Club Ltd 2012-TIOL-1031-HC-JHARKHAND-ST and Sports Club of
Gujarat 2013-TIOL-528-HC-AHM-ST wherein it had held that if a Club provides any service to
its members may be in any form, then it is not a service by one to another in the light of
decisions as foundational facts of existence of two legal entities in such transactions is
missing. The demand of service tax in respect of membership fee, admission fee,
establishment expenses, membership renewal fee as also amount retained in connection with
service provided by assessee to its members for earning 'carbon credits' will not be liable
to service tax. - Tamilnadu Spinning Mills Association 2019-TIOL-1408-CESTAT-MAD. |
| 37 |
PRINCE FOUNDATIONS LTD |
1. 2019-TIOL-1524-CESTAT-MAD |
Demands under the category of CICS/CCS in the impugned orders which relate to
composite contract will not be liable to service tax prior to 1.6.2007 by virtue of the Apex
Court judgement in L & T Ltd 2015-TIOL-187-SC-ST and even for the period post-1.6.2017
as held in Real Value Promoters 2018-TIOL-2867-CESTAT. Insofar as Management, Maintenance
and Repair Service, such amount received from buyers which would be passed on to the owner's
association formed, will not be a consideration for any service. In regard with expenses
towards electricity, diesel and water incurred by the appellants over and above the
maintenance charges received from their clients, it is evident that these amounts have been
reimbursed by the clients and hence the ratio of Supreme Court judgement in Intercontinental
Consultants and Technocrats 2018-TIOL-76-SC-ST would apply. - PRINCE FOUNDATIONS LTD
2019-TIOL-1524-CESTAT-MAD |
| 38 |
Senthilkumar Thilagavathy (M/s. JVS Tex) |
2019-TIOL-43-AAAR-GST |
Non-woven carry bags/shopping bags supplied by applicant are classifiable under CTH
4202 2210 and Cotton Carry bags under CTH 4202 2220; attract GST 18% and 12% respectively
w.e.f 15.11.2017. Since Chapter 42 is not restricted only to articles of leather and
Tariff Heading specifically covers ‘shopping bags' of cotton, with outer surface of
textile materials, no merit in the contention of the appellant that articles of leather or
characteristically of leather trade is alone classified under chapter 42.- Senthilkumar
Thilagavathy (M/s. JVS Tex) 2019-TIOL-43-AAAR-GST |
| 39 |
Nagpur Integrated Township Pvt Ltd |
2019-TIOL-194-AAR-GST |
Applicant is a SPV into development of land and construction of flats to be
given out on lease as per the agreement of lease entered by them with customers. Applicant
seeks to know as to whether the transaction is outside the purview of GST as a transaction
in immovable property and if not what is the appropriate classification and rate of GST.
Held - In the form of construction service a composite supply of works contract as defined
in s. 2(119) of the Act is provided to prospective lessee in compliance of an agreement and
the same is taxable under GST laws. Transaction between applicant and lessee is taxable
under GST. It is not a transaction in immovable property. Supply is a composite supply and
classifiable under CH 9954(ii) and will attract tax @18%. Nagpur Integrated Township Pvt Ltd
2019-TIOL-194-AAR-GST |
| 40 |
Hcl Infosystems Ltd |
2019-TIOL-1839-CESTAT-MAD |
Wrong availment of Cenvat credit - The assessee contends regarding Maintenance &
Repair that it was undertaking installation & repair of monitors manufactured by its
sister unit & also through sub-contractors. It was held that such disallowance of credit
was based on non-production of requisite supporting documents, hence the matter warrants
remand. However, the same is part of the inclusive definition of input service & so is
eligible for credit. Regarding Banking charges & insurance charges, the assessee claimed
that these were incurred for its manufacturing units. The Revenue too did not dispute the
assessee's claim on insurance taken on stocks and fixed assets on factory premises. Hence
denial of credit is unjustified. Invokation of extended period of limitation is justified
since the assessee voluntarily did not produce the requisite documents - Hcl Infosystems Ltd
2019-TIOL-1839-CESTAT-MAD |
| 41 |
Ucal Fuel (Sharda Motor Industries Ltd) |
2019-TIOL-1980-CESTAT-MAD |
Issue is whether credit is eligible on Outdoor Catering Services post
01.04.2011. The contention of the appellant is that the services provided by the contractors
to the appellant, by way of cooking and serving foods to the appellant's employees, on a
continuous basis is not ‘outdoor catering' as it is commonly understood but is in the
nature of ‘other contract food services' and hence the exclusion in the definition of
‘Input Service' (rule 2(l) of CCR, 2004 refers) for ‘Outdoor Catering' would not
apply to such services and consequently the appellants are entitled for tax credit. The LB
the case of Wipro Ltd. 2018-TIOL-3256-CESTAT-BANG-LB did not take note of the change in law
after 01.07.2012 and has confined to the exclusion contained in clause (C) of the
definition. It has been held that although this Single Member Bench is persuaded by the
arguments made by the appellant, it is bound by the Larger Bench decision in Wipro Ltd.
(supra) holding Outdoor Catering service is ineligible credit. However, the situation being
interpretational penalties imposed are unwarranted and hence set aside. Ucal Fuel (Sharda
Motor Industries Ltd) 2019-TIOL-1980-CESTAT-MAD |
| 42 |
RMKV |
2019-TIOL-51-AAAR |
Calssification of Churidar Sets |
| 43 |
Divi's lab |
2019-TIOL-2114-Cestat, Hyd |
The only question which remains is only whether they get excluded by exclusion
part of definition as materials which have no relationship whatsoever to the manufactured
final products - It is not in dispute that the materials in question were used for repair
and maintenance of machinery which were used for manufacture of final products - There is a
direct relationship between goods which were used and manufactured of final products and
therefore they were not excluded by clause (f) of the Rule 2(k) - In the case of CEAT
Ltd. - 2019-TIOL-906-HC-MUM-CX, Jindal Steel Ltd.
- 2015-TIOL-1032-CESTAT-BANG and HPCL, credit of cenvat as inputs was
allowed on the material used in maintenance and repair of the machinery |
| 44 |
Stanadyne and Avo Carbon |
2019-TIOL-1730-HC |
Cenvat Credit of duties paid by EOU upon debonding. |
| 45 |
Harekrishna Steel Indutries |
2019-TIOL-2351-CESTAT |
There is no proof brought forth in the SCN that Navneet Industries were
actually and still functioning from the very same premises which had been taken over by the
appellant - there is also no indication that investigations were extended by department to
Navneet Industries also, to bring out irrefutable evidences that the said entity had been
manufacturing in the same premises even after they handed over the premises to the
appellants -the contention of the revenue that the lease agreement is not valid since it has
not been signed by both the parties but only by the appellant and it has not been
registeredcannot be made at this stage since the agreement was brought to the notice of the
adjudicating authority at the stage of adjudication, and there has been no such discussion
or finding to this effect - even otherwise, just because the agreement was not signed by the
other partner or not registered, it cannot be concluded that it is an invalid one, unless it
is conclusively proved that the agreement is concocted or forged one -the argument that in
the present case, since clubbing is sought to be made of two units which are allegedly
manufacturing and clearing goods from the same premises, therefore SCN is not required to be
given to the other unit is a facile one -the allegations made by the department does not
have any legal legs - the impugned order confirming the allegations made in the SCN cannot
be sustained and is required to be set aside - accordingly, appeal is allowed |
| 46 |
Pricol |
2019-TIOL-1815-HC |
Bench is satisfied that the matter may go back to the Tribunal to look into
the factual aspects of the matter again with respect to the applicability of the above two
judgments of the Apex Court
viz. 2018-TIOL-90-SC-CX & 2018-TIOL-45-SC-CX in the case of assessee
- Revenue appeal disposed of and matter remitted to the Tribunal to decide the matter afresh
in accordance with law |
|
Reported Cases 2018
|
|
S.No.
|
Name of the party
|
Citation
|
Issue in brief
|
| 1 |
Sify Technologies |
2018-TIOL-459 (Tri). |
When activity of assessee is to identify the customer through their web
portal and receive the sale proceeds on behalf of merchant and pay the same to merchant, it
does have same bearing to the definition of commission agent. The assesse falling under the
definition of 'commission agent' is exempted from payment of service tax under BAS for
period prior to 9.7.2004. Issue being interpretational, the penalty imposed under section 78
is set aside. - Sify Technologies 2018-TIOL-459 (Tri).
|
| 2 |
Chennai Bottling |
2018-TIOL-115-(Tri) |
Machine Rental Charges are not includible in assessable value. The issue
whether the Machine Rental Charges are includible in assessable value is also settled by the
judgment in case of Pepsico India Holding Ltd. 2004-TIOL-01-CESTAT-DEL which was upheld by
Supreme Court vide judgment reported in 2009-TIOL-20-SC-CX wherein it has been categorically
held that the charges are not includible in assessable value. – Chennai Bottling
2018-TIOL-115-(Tri). |
| 3 |
Deepak Cables |
2018-TIOL-17(Tri). |
Demand on allegation that while clearing E.C. Grade Aluminium Wire Rod
to their sister units on stock transfer basis, assessee has not adopted the value based on
CAS-4 read with Rule 8 of CEVR, 2000. It is held that if the alleged duty is paid by
assesee, their sister unit will be able to take credit, which makes the situation revenue
neutral. Therefore the allegation that such clearances were made at a lesser value was not
relevant and is only of academic nature- Deepak Cables 2018-TIOL-17(Tri). |
| 4 |
Sheladia Associates Ltd |
2018-TIOL-184-CESTAT-MAD. |
Considered the decision of the Tribunal in Margarpatta Township Dev. &
Construction Co. Ltd. Vs. Commissioner of Central Excise, Pune wherein penalty imposed
in similar circumstances was set aside. Therefore, penalties imposed u/s 76 & 78 set
aside - Moreover, the equal amount of penalty imposed u/s 77 was beyond the provisions of
law - Hence penalties set aside in toto- Sheladia Associates Ltd
2018-TIOL-184-CESTAT-MAD. |
| 5 |
Malabar Management Service Pvt Ltd |
1. 2018-TIOL-19-SC-ST. |
1. Whether reimbursement of expenses is includible in gross value. Very
question arising in the present appeals is raised in the appeal filed against the CESTAT
order dated 08.08.2011 in the matter of Sri Bhagavathy Traders Versus Commissioner of
Central Excise, Cochin - 2011-TIOL-1155-CESTAT-BANG-LB. The Hon’ble Supreme Court
has therefore directed the Office to list all cases analogously for hearing before
appropriate bench: Supreme Court. - Malabar Management Service Pvt Ltd 2018-TIOL-19-SC-ST.
|
| 6 |
Harita Seating Systems Ltd |
2018-TIOL-490-CESTAT-MAD |
Shortage of inputs- The shortage is very miniscule and is attributed to accounting error.
It was held that the matter has been finally decided by the Hon'ble Apex Court in
Commissioner of Central Excise Vs Maruti Suzuki India Ltd 2015 (319) E.LT.549
(S.C.) wherein the Apex court has rejected the Revenue's appeal on the ground that such
shortages of inputs are due to accounting error and there being no physical shortage with
any allegation of clandestine removal, the credit cannot be disallowed. - Harita
Seating Systems Ltd 2018-TIOL-490-CESTAT-MAD. |
| 7 |
Bharat Heavy Electricals Ltd |
2018-TIOL-760-CESTAT-MAD. |
The dispute in the present appeals relates to the on-going contracts, at the time of
introduction of new tax entry as "Works Contract Service" w.e.f. 1.6.2007. It
has been held that in case, contracts under dispute are to be held as works contract, then
liability will arise only from 1.6.2007. The next point will be whether assessee shall be
eligible for composition scheme for such works contract. In case contracts are held to be
works contracts, then necessarily the application of composition scheme to such contracts
cannot be denied only on the ground that there was no option exercised during the material
time. Claim of assessee that they have discharged more than the required tax on these
services even if the claim of the department is taken into consideration for treating the
contracts as a whole, requires re-examination. Though the Revenue dealt with services under
erection, commissioning or installation, applicability of works contract service in line
with decision of Supreme Court requires examination - The question of availability of
composition will be consequent to such finding. - Bharat Heavy Electricals Ltd
2018-TIOL-760-CESTAT-MAD. |
| 8 |
Rane Trw Steering System Ltd |
2018-TIOL-414-HC-MAD-CX |
Input Service -
Rule 2(l) of CCR, 2004 - period covered is between February 2014 to January 2015 &
November 2014 and October 2015 respectively - Not agreeing with the assessee, CESTAT,
Madras in 2017-TIOL-2123-CESTAT-MAD, confirmed the decision of both the adjudicating
and appellate authorities, holding that garden maintenance service, will not fall within
the purview of Input Service, and thus, confirmed the tax liability, however, penalty set
aside. Assessee filed appeal before High Court and the Court held that the garden
maintenance service would fall within the definition of "input service", in terms of Rule
2 (l) of the Cenvat Credit Rules, 2004 and consequently Tribunal was not right in denying
input service credit availed on garden maintenance service. Substantial questions of law
are answered in favour of the assessee - Rane Trw Steering System Ltd
2018-TIOL-414-HC-MAD-CX. |
| 9 |
Airflow Equipments India Pvt Ltd |
2018-TIOL-806-CESTAT-MAD |
1. Assessee was issued with SCN on basis of intelligence that they are
evading payment of excise duty by clearing goods on invoices raised in name of dummy unit
M/s. Bala Enterprises. The SCN was issued proposing to club the clearances of assessee and
Bala and to demand duty along with interest and penalties on M/s. Bala and Shri D.
Venkatesan, MD of assessee and Shri Dakshinamurthy. Admittedly, M/s. Bala has a
separate sales tax registration and is a separate income tax assessee. Thus it is a separate
unit before all public authorities for compliance of various laws. Shri G. Dakshina Moorthy
the father of Sh. D. Ventakesh who is managing director of assessee, is the proprietor of
M/s. Bala. It is settled law that merely because the directors are related to the
proprietor/partners of the other unit, such unit cannot be said to be a dummy unit. Only
because Sh. D. Venkatesan was helping to manage the affairs of the proprietorship concern
run by his father, that will not by itself make the unit a dummy unit - In the result,
impugned order is set aside and the matter is remanded to the adjudicating authority for
denovo adjudication. - Airflow Equipments India Pvt Ltd 2018-TIOL-806-CESTAT-MAD. |
| 10 |
Bharat Heavy Electricals Ltd |
2018-TIOL-792-CESTAT-MAD. |
Assessee engaged in manufacture of boilers, steam generators and water tube
boilers and availed the services of consulting engineers for which they have discharged
service tax as a service recipient under section 68(2) of FA, 1994 read with Rule
2(1)(d)(iv) of STR, 1994. As per the contract, consideration was payable in four equal
instalments. While paying the first three instalments, assessee did not pay service tax on
TDS portion. Thus, a show cause notice was issued. It was held that there was much confusion
as to whether the service recipient who is bound to pay the service tax is liable to pay
service tax on the TDS portion. Further, since the assessee had discharged the service tax
along with interest before issuance of SCN, the penalties imposed are unwarranted. In case
of C. Ramachandran 2016-TIOL-2220-CESTAT-MAD the Tribunal has held that in such situation
penalties ought to be waived by invoking section 80 of Finance Act. Following the said
judgments, impugned order is modified to the extent of setting aside the penalties imposed
under sections 76 and 78 without interfering with the demand of service tax or interest and
penalty imposed under section 77.- Bharat Heavy Electricals Ltd 2018-TIOL-792-CESTAT-MAD.
|
| 11 |
Sify Technologies. |
2018-TIOL-954-CESTAT-MAD. |
Appellants entered into an agreement with M/s.Verisign (Symantac) USA
whereby appellant was authorized to use the software of digital signature and generate DSC
(Digital Signature Certificate) and SSLC (Secured Socket Layer Certification). The software
is owned by M/s.Verisign, USA and appellants have obtained only right to use the software.It
was held that activity does not involve any development of software. The department vide
letter dt.28.7.2008 has clarified that if the issuance of DSC does not involve development
of IT Software, adoption or adaptation service related to IT software or certification of IT
Software, the activity would not fall under Information Technology Services. When the
process of issue of both these certificates are akin to each other, merely because SSLC is
issued under voluntary requirement of the customer the same cannot be classified under
Information Technology Services.- Sify Technologies. 2018-TIOL-954-CESTAT-MAD. |
| 12 |
APSTRC |
2018 (10) G.S.T.L. 441 (Tri. - Hyd.) |
Demand under Tour Operator service. Vehicle having “stage carriage” permit
like buses owned by the appellants, to operate for private persons/marriage parties under a
contract, such basis will then necessarily be required to obtain a contract carriage permit
or a special permit as aforesaid. In our view, once such a contract carriage permit or a
special permit is obtained, the bus will then no longer has the character of a stage
carriage but will instead acquire the colour of a contract carriage/special permit garage
and hence cannot then claim to be recovered under the negative list of services by a stage
carriage or for that matter covered by the exemptions. – APSTRC 2018 (10) G.S.T.L. 441
(Tri. - Hyd.) |
| 13 |
APSTRC |
2018 (10) G.S.T.L. 504 (Tri. - Hyd.) |
Demand under Rent a Cab service. It was held that vehicle having “stage
carriage” permit like buses owned by the appellants, to operate for private
persons/marriage parties under a contract, such basis will then necessarily be required to
obtain a contract carriage permit or a special permit as aforesaid. In our view, once such a
contract carriage permit or a special permit is obtained, the bus will then no longer has
the character of a stage carriage but will instead acquire the colour of a contract
carriage/special permit garage and hence cannot then claim to be recovered under the
negative list of services by a stage carriage or for that matter covered by the exemptions.
– APSTRC 2018 (10) G.S.T.L. 504 (Tri. - Hyd.) |
| 14 |
Pricol Ltd |
2018 (360) E.L.T. 161 (Tri. - Chennai) |
A deliberate undervaluation with intention of evading full duty liability required to be
discharged under law. Conduct of appellants come within the ambit of fraud, with deliberate
intention to deceive and cause prejudice to interest of revenue. Conditionalities of Section
11AC ibid being satisfied, penalty equal to duty demand is imposable. - Pricol Ltd 2018
(360) E.L.T. 161 (Tri. - Chennai) |
| 15 |
BSNL |
2018-TIOL-1266-CESTAT-MAD. |
1. Notification No.02/2011 inserted an explanation to Rule 5 of Service
Tax (Determination of Value) Rules, 2006, in terms of which the value of taxable service
shall be the gross amount paid by the person / PCO user to whom the telecom service is
provided by the telegraph authority. The said Notification shall be effective only from
1.3.2011. The period involved in the present case being prior to 1.3.2011, the demand of
differential duty alleging that entire amount collected by the PCO operator is subject to
levy of service tax cannot sustain. – BSNL 2018-TIOL-1266-CESTAT-MAD. |
| 16 |
R Mineral Water Pvt Ltd |
2018-TIOL-1194-CESTAT-MAD. |
The main allegation is that for goods having same quality and quantity, assessee have
affixed different MRP for distribution / supply in same
area.
Explanation (c) of Section 4A provides that different sales price can be declared when goods
are sold in different areas. The assessee has affixed MRP and discharged the duty under
section 4A. No allegation made in SCN in this regard, requiring assessee to discharge duty
under Section 4 as per transaction value. Matter remanded as it requires verification as to
whether the assessee has been supplying goods to two distinct classes of consumers and
whether duty has been discharged for clearances- S R Mineral Water Pvt Ltd
2018-TIOL-1194-CESTAT-MAD. |
| 17 |
Hindustan Coca Cola Beverages Pvt Ltd |
2018-TIOL-1112-CESTAT-MAD. |
1. Rule 6 CCR, 2004 - Assessee used furnace oil as common input for
manufacture of both exempted as well as dutiable product. The assessee contend that they
have reversed proportionate credit and therefore may not be compelled to pay the 8%/10% of
value of clearances. This is opposed by department stating that the government had given a
concession to exercise option within a time frame. Assessee having not exercised the option
cannot now contend to have complied with requirement of provision of law. It was held
that the contention that appellant had not filed application to exercise option does not
find any favour as reversal of proportionate credit would suffice - Hindustan Coca Cola
Beverages Pvt Ltd 2018-TIOL-1112-CESTAT-MAD. |
| 18 |
Bee Path Castings Pvt Ltd |
2018-TIOL-1105-CESTAT-MAD. |
18. Assessee filed two Bills of Entry by declaring the description of imported
goods as 'Heavy Melting Scrap' and classified the product under CTH 7204490 - During
examination, it was found that goods were TMT rods of various lengths and thickness falling
under CTH 7214290. Assessee had ordered for scraps and the certificate of origin was also
issued for the same.It was held that taking into consideration the facts that assessee had
entered into an agreement with the supplier for supply of scrap only redemption fine and
penalty requires to be reduced. - Bee Path Castings Pvt Ltd 2018-TIOL-1105-CESTAT-MAD. |
| 19 |
Paragon Steels Pvt Ltd |
2018-TIOL-1093-CESTAT-BANG. |
1. It has been contended by assessee that out of 10 witnesses only one
witness was produced for cross-examination, even though they had requested for
cross-examination of all the 10 witnesses. This amounts to non-observance of provisions of
Section 9D of CEA, 1944. The Hon’ble Tribunal has held that the adjudicating authority
has justified the non-production of 9 witnesses for cross-examination, on the ground that
said witnesses were employees of company and since they are under the control of assessee,
the cross-examination will not serve any purpose as the assessee has hold over them and they
can be made to retract the facts contained in their statements. Stand taken by adjudicating
authority found to be reasonable under the circumstances of case. Only one of the
statements recorded from Shri Jawahar has been retracted subsequent to the date of
recording. However, Shri Jawahar has confirmed the facts in his subsequent statements
nullifying the retraction. In absence of retraction by any of other witnesses, denial of
cross-examination does not vitiate the proceedings. Further held that the Managing Director
has admitted the clearance of excisable goods without payment of duty and therefore no
reason found to interfere with penalty imposed under Rule 26 CCR, 2002. CESTAT.-
Paragon Steels Pvt Ltd 2018-TIOL-1093-CESTAT-BANG. |
| 20 |
Balaji Action Buildwell |
2018-TIOL-1328-CESTAT-DEL |
Assessee availed service of GTA. They had paid service tax under reverse charge for
such GTA services. Later they filed refund claim of such service tax paid contending that
such tax was paid erroneously by them and claiming exemption under S.No.21 of Notfn
25/12-ST, as amended for transportation of agricultural produce by road. The Hon’ble
Tribunal has held that exemption available to GTA service for transport of 'agricultural
produce' cannot cover the transport of cut wood of trees - Balaji Action Buildwell
2018-TIOL-1328-CESTAT-DEL. |
| 21 |
Gm Sugar And Energy Ltd |
2018-TIOL-1319-CESTAT-BANG. |
Penalty is not sustainable as the issue relates to interpretation of law and the assessee
has not suppressed any material fact from Department with intention to evade payment of duty
and has shown availment of credit in relevant returns and CENVAT records maintained by them
- Gm Sugar And Energy Ltd 2018-TIOL-1319-CESTAT-BANG. |
| 22 |
New Sun International Travel Agency |
2018-TIOL-1376-CESTAT-MAD |
A mere non-disclosure of fact cannot make a guilty mind of the assessees so as to
justifiably invoking the longer period. - New Sun International Travel Agency
2018-TIOL-1376-CESTAT-MAD. |
| 23 |
Six Sigma Soft Solutions Pvt Ltd |
2018-TIOL-1355-CESTAT-MAD |
Assessee were providing technically qualified employees / manpower to IT companies for
development of software projects. It was held that it is abundantly clear that assessee was
involved only in supply of manpower to TCS, Infosys etc. The facts are very much pari
materia with the facts of Future Focus Infotech India (P) Ltd
2010-TIOL-835-CESTAT-MAD wherein the Tribunal has clearly laid down that appellants
therein had undertaken only supply of skilled manpower services provided by the appellants
were supply of technically qualified man power to TCS, Infosys etc. For the period 1.4.2005
to 15.6.2005, the demand is erroneous since the impugned Manpower Recruitment of Supply
Agency Services was made taxable only w.e.f. 16.6.2005. - Six Sigma Soft Solutions Pvt Ltd
2018-TIOL-1355-CESTAT-MAD. |
| 24 |
Cs Natarajan |
2018-TIOL-1356-CESTAT-MAD. |
Assessee are engaged in running a Spoken English Language Coaching Center along with
personality development in the name of "ZEAL". Department was of the view that the said
activity would fall under 'Commercial Coaching or Training Service. It was held that such
course would fall under the category of 'vocational training' and would be eligible for
exemption in view of Mariya Computer System 2017-TIOL-864-CESTAT-DEL, as well as in
the case of Col's Calibre 2018-TIOL-1211-CESTAT-MAD. - Cs Natarajan
2018-TIOL-1356-CESTAT-MAD. |
| 25 |
Future Focus Infotech Pvt Ltd |
2018-TIOL-1375-CESTAT-MAD |
Assessee were providing technically qualified employees / manpower to IT companies for
development of software projects. It was held that it is abundantly clear that assessee was
involved only in supply of manpower to TCS, Infosys etc.- Future Focus Infotech Pvt Ltd
2018-TIOL-1375-CESTAT-MAD. |
| 26 |
Rane Brake Linings Ltd |
2018-TIOL-1058-CESTAT-MAD. |
The issue is that assessee after job work, while clearing the goods to their Principal did
not include the cost of free inputs / raw materials supplied. In Ghatge Patil Inds.
Ltd 2014-TIOL-1760-CESTAT-MUM the Tribunal has relied upon International Auto
Products 2005-TIOL-81-SC-CX-LB case to hold that such addition of free supplied
parts is not to be included in assessable value - Rane Brake Linings Ltd
2018-TIOL-1058-CESTAT-MAD. |
| 27 |
Rane Madras Ltd |
2018-TIOL-1035-CESTAT-MAD. |
Revenue proceeded to raise the demand in respect of finished goods found short as also
proposing denial of Cenvat credit availed on various inputs. Such shortages are only to the
tune of around 0.29%, in which case the value of the shortages of inputs, keeping in view
the voluminous operations of assesee, cannot be of much importance. The demand of duties
based upon such shortages, without any allegations or evidences of clandestine activities
cannot be upheld. - Rane Madras Ltd 2018-TIOL-1035-CESTAT-MAD. |
| 28 |
Hindustan Motor Finance Corporation |
2018-TIOL-1028-CESTAT-MAD. |
Event Management Services are eligible input services since they are utilized for
promoting sales of vehicles manufactured by assessee. - Hindustan Motor Finance Corporation
Ltd 2018-TIOL-1028-CESTAT-MAD. |
| 29 |
BHEL |
2018-TIOL-1279-CESTAT-MAD |
The Original Authority following the remand direction of Tribunal finalized the assessment
by including the value of ESP. Against this, department filed appeal before Commissioner
(A), contending that while quantifying differential duty, refund granted to M/s. Grasim
should be deducted. Commissioner (A) allowed the appeal filed by department, thus holding
that cost of ESP is not to be included in assessable value. Order passed by Tribunal
granting refund to M/s. Grasim Industries is sub-judice before the Hon'ble Apex Court in the
appeal filed by the department, matter requires to be remanded to the Commissioner (Appeals)
to await the judgement of the Hon'ble Apex Court and then to decide the issue thereupon on
merits, following the principles of natural justice. – BHEL
2018-TIOL-1279-CESTAT-MAD. |
| 30 |
Rane (Madras) Ltd |
2018-TIOL-1417-CESTAT-MAD |
Assessee is contesting the demand in respect of two services viz., Storage and Warehousing
service and Technical testing and analysis service. These services are wholly performed
outside India, Therefore the demand on the said charges cannot be subject to service
tax - Rane (Madras) Ltd 2018-TIOL-1417-CESTAT-MAD. |
| 31 |
Ivrcl Infrastructure And Projects Ltd |
2018-TIOL-1612-HYD |
Demand on allegation that value of free supply material goods were to be included in the
gross consideration. The issue at hand is no longer res integra and stands settled
by the Apex Court in its decision in Bhayana Builders (P) Ltd wherein it had held that
cost of free supply of the materials were not to be included when determining gross value
for calculation of service tax. - Ivrcl Infrastructure And Projects Ltd 2018-TIOL-1612-HYD.
|
| 32 |
Penna Cement Industries Ltd |
2018-TIOL-1610-CESTAT-HYD. |
Considering various precedents of the HC, input services like GTA services, cement, TOR
steel, structural steel is eligible for CENVAT credit, as they were used for setting up of a
new factory. Penna Cement Industries Ltd 2018-TIOL-1610-CESTAT-HYD. |
| 33 |
Kellogg And Andelson Management Service Pvt Ltd |
2018-TIOL-1775-CESTAT-MAD. |
A plain reading of Rule 5 of CCR, 2004 makes it clear that when it defines 'export
turnover of services’, the assessee needs to consider only the payments received
during the relevant period and certainly not the payments which are to be received for which
invoices are raised during that period - order of the adjudicating authority is restored -
Appeal allowed. Kellogg And Andelson Management Service Pvt Ltd 2018-TIOL-1775-CESTAT-MAD.
|
| 34 |
Kellogg And Andelson Management Service Pvt Ltd |
2018-TIOL-1774-CESTAT-MAD |
Refund of un-utilized CENVAT credit in terms of Rule 5 of CCR, 2004 and
Notification No. 27/2012-CE (NT)dated 18.06.2012. It has been held that requirement of
reversal of credit while filing the refund claims was only to avoid double benefit to a
claimant. Appellant had reversed the credit in ST-3 returns filed before the issuance of
SCN. However, a verification is required to be made to the satisfaction of Revenue - matter
remitted to the original authority for verification and grant refund with consequential
relief, if any, as per law. - Kellogg And Andelson Management Service Pvt Ltd
2018-TIOL-1774-CESTAT-MAD. |
| 35 |
Priya Hosieries |
2018-TIOL-1749-CESTAT-MAD. |
Supreme Court on detailed examination of legal provision to proviso clause of Notfn
67/1995 gave a finding that the said exemption to the intermediate products is available.
Decision of Tribunal in M/s.Kunnath Textiles 2008-TIOL-1325-CESTAT-BANG did
not deal with the proviso and legal implication of said proviso to the notification as
discussed in decision of the apex court in M/s. Ambuja Cements Ltd. Tribunal
decided the applicability to Notfn 67/1995-CE to the goods not covered under Notfn
8/2003-CE, being intermediate products.Though, the exemption was held not available, issue
regarding the proviso and more specifically the implication of clause (vi) of the provisio
under Notfn 67/1995 was not discussed to lay down any ratio. Exemption available to
intermediate products cannot be denied, following the ratio of the apex court. - Priya
Hosieries 2018-TIOL-1749-CESTAT-MAD. |
| 36 |
Thiraviam Engineering Works |
2018-TIOL-1930-CESTAT-MAD |
SCN was issued to assessee proposing to club the clearances of M/s. Quality Engineering
(dummy unit) with that of assessee and to deny the SSI exemption benefit. No separate show
cause notice has been issued to the alleged dummy unit. It has been held by Hon’ble
Tribunal that in case of Ambi Plywood, the Tribunal has analyzed the very same issue
and held that when no SCN has been issued to alleged dummy unit, same would vitiate the
proceedings. Following the said decision, demand cannot sustain as the department has not
issued SCN to the alleged dummy unit proposing to club the clearances of same with the
assessee. - Thiraviam Engineering Works 2018-TIOL-1930-CESTAT-MAD. |
| 37 |
Sindhu Cargo Services Ltd |
2018-TIOL-1864-CESTAT-MAD |
The assessee claimed amounts as reimbursement of certain expenditure incurred on behalf of
the clients. The point of consideration before the Tribunal was whether or not these
charges are to be added in the taxable value of service. The exclusion can be allowed on
satisfactory proof of documents to the effect that these are on actual basis as per the
arrangement between the client and the assessee. These documents require verification. Also,
various other receipts that were not liable to tax are to be scrutinized by the
Revenue.Therefore, the matter is remanded for fresh adjudication. - Sindhu Cargo Services
Ltd 2018-TIOL-1864-CESTAT-MAD. |
| 38 |
Shri Amman Steel And Allied Industries |
2018-TIOL-2012-CESTAT-MAD |
One of the points agitated before Tribunal during first round of litigation by assessee
was that the evidence recovered from computer floppies cannot be relied upon for the reason
that department had used unauthenticated software for opening the files.Thus, Tribunal had
clarified that Revenue has no right to use any files opened with unauthenticated software in
the remand proceedings. In denovo proceedings, Commissioner has therefore excluded the
evidence obtained from files opened with unauthenticated software. Therefore, no merit found
in the appeal filed by department. Commissioner has observed that there is no evidence that
co-noticees have directly indulged in clandestine production of clearance of excisable
goods. Further, when separate penalties have been imposed on assessee for very same offence,
there is no need to impose penalty for the same offence under Rule 26 of CER, 2002 - Appeal
filed by assessee is dismissed as withdrawn. - Shri Amman Steel And Allied Industries
2018-TIOL-2012-CESTAT-MAD. |
| 39 |
Ima Mental Arithmetic Academy Pvt Ltd |
2018-TIOL-2059-CESTAT-MAD |
Assessee is engaged in imparting training/coaching in mental arithmetic and
entered into Franchisee Agreement with IMA Mental Arithmetic Academy, Malaysia and with
various franchisees appointed by them in India. Department took the view that gross amounts
collected by assessee including admission fee, course instructor fee and tuition fee would
be eligible for service tax under category of Franchisee Service under section 65(47) of FA,
1994. As per the definition, payment to be made by franchisee to franchisor is only for the
'right' to sell or manufacture goods or to provide service or undertake any process
identified by franchisor. Tribunal do not find any other tax which are required to be paid
towards royalty or franchisee fee by any other name called. Impugned order is therefore
modified to the extent of holding that tax liability for assessee in respect of franchisee
appointed by them within India will not include the amounts relatable to admission fee,
tuition fee, competition fee and course instructor fee.- Ima Mental Arithmetic Academy Pvt
Ltd 2018-TIOL-2059-CESTAT-MAD |
| 40 |
Chettinad Cement Corporation Ltd |
2018-TIOL-2089-CESTAT-BANG. |
The services availed by the assessee have nexus with the manufacture of final product of
the assessee. All the services even after the amendment in the definition of input service
fall within the scope of input service because the same has not been specifically excluded.
The matter is remanded back to the original authority for the purpose of verification of the
usage of the various services availed by the assessee. - Chettinad Cement Corporation Ltd
2018-TIOL-2089-CESTAT-BANG. |
| 41 |
Aditya Birla Money Ltd |
2018-TIOL-1943-CESTAT-MAD |
Issue relates to the demand of service tax on "transaction charges" levied by stock
exchanges on each and every transaction carried out by assessee, which are claimed by
assessee as reimbursable from customers. The Bench, following the earlier decision of
Tribunal in case of First Securities Pvt.
Ltd. 2007-TIOL-2302-CESTAT-BANG and LSE Securities
Ltd. 2012-TIOL-593-CESTAT-DEL and in case of M/s. Shreyas Stocks Pvt.
Ltd. 2018-TIOL-1772-CESTAT-MAD held that merely because the assessee is collecting
said charges from their clients and remitting the same to concerned stock exchange cannot be
a reason for considering such amounts as received by them for "services rendered by them. -
Aditya Birla Money Ltd 2018-TIOL-1943-CESTAT-MAD |
| 42 |
Irbaz Shoe Company |
2018-TIOL-1328-HC-MAD |
Complete non-observance of procedure cannot be said to be a mere procedural
lapse. It is well settled that the stringency and the mandatory nature of any
notification is decided on the basis of the purpose it seeks to achieve. The purpose of
Notification No.43 of 2001 dated 26.06.2001 is to ensure that excise duty should not be
evaded under the garb of export sales. - Irbaz Shoe Company 2018-TIOL-1328-HC-MAD |
| 43 |
Cheran Spinners Ltd |
2018-TIOL-2034-CESTAT-MAD. |
The appellants had imported the impugned goods declaring them as bamboo fibre (1.2 DEN x
38 MM). The packing invoice and packing list also indicate the goods to be bamboo
fibre. Test report of Regional Laboratory, Textile Committee describes the product in
test report as 'Viscose (Rayon) Staple Fibre'. The classification of this product is in
entry ‘5504-Artificial staple fibres, not carded, “combed or otherwise processed
for spinning, namely 5504 10 00 - "of viscose rayon". Therefore the order of lower appellate
authority is upheld & assessee is liable to ADD as per Notification No. 76/2010-Cus. As
regards confiscation, redemption fine and imposition of penalty, the assessee bonafidely
mis-understood that the goods would fall under CTH 55 of the Schedule to the Customs Tariff
Act. Hence the confiscation of the goods, imposition of redemption fine and penalty is set
aside. - Cheran Spinners Ltd 2018-TIOL-2034-CESTAT-MAD. |
| 44 |
Amman Match Company |
2018-TIOL-1447-HC-MAD |
Provision of s.33A of CEA, 1944 shall not be read to give a meaning that it
excludes personal hearing to those who did not ask for it. Provision, if read as a whole and
cogently, compels the adjudicating authority to adhere to the principles of natural justice
by affording personal hearing. When an order is passed in violation of principles of natural
justice, a Writ Petition under Article 226 of the Constitution of India can be entertained;
the availability of alternative remedy is not a bar for entertaining the Writ Petition. Writ
Petition is maintainable. - Amman Match Company 2018-TIOL-1447-HC-MAD |
| 45 |
Supreme Petrochem Ltd |
2018-TIOL-2281-CESTAT-MAD. |
In the present case, the imports were made by the assessee from their related person
located in Korea. However, the value of goods was not reflected in the invoices. It was only
packing and logistics cost, which was raised in the invoices placed before the Customs for
the purpose of assessment and calculation of customs duty. These facts stand admitted by the
assessee in their own letter referred in the SCN. In that scenario, it has to be held that
the said modus operandi was adopted by the appellant with the malafide intention to evade
payment of customs duty in respect of the value of the second hand capital goods. If that be
so, their subsequent approaching the Settlement Commission is sprinkled with suppression,
mis-statement, fraud and collusion etc. In such a scenario, the provision of Rule 9 (1) (b)
of Cenvat Credit Rules debar taking of Cenvat credit of duty paid by supplementary invoices.
Therefore, the assessee is not eligible to avail credit. - Supreme Petrochem Ltd
2018-TIOL-2281-CESTAT-MAD. |
| 46 |
Aravind Ceramics Industries Ltd |
2018-TIOL-2269-CESTAT-MAD. |
On assessment, it was noticed that the amount declared by the assessee for value of goods
was minus the discount. It was held that the assessee could get the discount after
negotiation in the normal course of trade, which seems to be genuine and acceptable. In the
quotations the discount is figuring and it is only after that the sales contract was
finalized. Therefore, the transaction value is to be taken as the assessable value - Aravind
Ceramics Industries Ltd 2018-TIOL-2269-CESTAT-MAD. |
| 47 |
Hexaware Technologies Ltd |
2018-TIOL-2238-CESTAT-MAD. |
Assessee is engaged in export of services and filed refund claims of service tax paid on
various input services in terms of provisions of Rule 5 of CCR, 2004. Proceedings were
initiated against them for denial of cenvat credit on the ground that the services in
question cannot be held to be eligible input services for the purposes of cenvat credit.
Operative part of impugned order of Commissioner (A) is self-contradictory - In one para, he
is allowing the appeal by setting aside the impugned orders and in the very next paragraph,
he has remanded the matter to lower authority for verification of certificate of CA. All the
matters remanded to adjudicating authority to reconsider the refund claims after
verification of Chartered Accountant declaration. As regards eligibility of various input
services, Tribunal have not expressed any opinion on the same. - Hexaware Technologies Ltd
2018-TIOL-2238-CESTAT-MAD. |
| 48 |
Mahasemam Trust |
2018-TIOL-2383-CESTAT-MAD |
The basic allegation is that the assessee being a non-banking financial
institution is engaged in lending activity and, therefore, their services are classifiable
under bank and other financial services and liable to service tax with effect from
10.09.2004. There is no allegation in the Show Cause Notice that assessee is liable to pay
service tax as they are rendering 'Banking and Other Financial Services’ as they are
included in the category "any other person". The Commissioner has traversed beyond the scope
of Show Cause Notice to confirm the demand for the period 01.05.2006 to 30.04.2007 by
concluding that the appellant is covered under the category of 'any other person'. -
Mahasemam Trust 2018-TIOL-2383-CESTAT-MAD |
| 49 |
Bureau Of Indian Standards |
2018-TIOL-2397-CESTAT-MAD. |
Assessee is
registered with rendering of services under category of "Technical Testing and Analysis
Services". It emerged that assessee was having an amount in their suspense account. It
appeared to department that the amounts have been received by assessee from the customers
which are in the nature of advances and assessee is liable to pay service tax on the same.
The notice also proposed demand of service tax towards royalty charges collected from
assayers for Hallmarking. It has been held that there is no allegation that higher amount
than what is charged to customer in respect of marking charges has been
collected. This is only an accounting convenience that has been adopted by the
assessee and that raising of credit notes by the assessee on the customer who has made
excess payment will not have the effect of nullifying the service tax already paid by
them. It has to be kept in mind that BIS is set by the Government of India with the
Governing Council and Members consisting of Ministers and Members of Parliament and
Secretaries of concerned Departments. There is also no allegation that BIS have not
discharged tax liability on the initial amount received by the clients. Viewed in this
light, Tribunal has set aside the demand. The dispute in respect of royalty charges,
Tribunal has held that the matter has already been decided in respect of the very same
appellant in 2017-TIOL-4597-CESTAT-MAD. - Bureau Of Indian Standards
2018-TIOL-2397-CESTAT-MAD. |
| 50 |
Dong A India Automotive Pvt |
2018-TIOL-2368-CESTAT-MAD |
As the assessee contends that copy of the order in original was received by them only
after receiving the detention notice. This was due to the reason that address of the
appellant had changed as they shifted their office. During the proceedings, it was
established that the order-in-original was not served upon the assessee. Therefore,
calculating from the date of receiving of the order by appellant, the appeal has been filed
within the time. Hence, the case is remanded to the Commr. (A) to reconsider.- Dong A India
Automotive Pvt Ltd 2018-TIOL-2368-CESTAT-MAD. |
| 51 |
V CHINNASAMY |
2018-TIOL-2478-CESTAT-MAD. |
In the present case, the disputed period is October, 2004 till March, 2009. The
assessee's undertook various construction works. The department took a view that assessee
were liable to pay service tax under "Commercial or Industrial Construction Service" upto
the period 31.5.2007 and under Works Contract Services and cleaning services. It has
been held that, the contracts are composite in nature, therefore, in view of the ratio laid
down by Supreme Court in the case of Larsen & Toubro 2015 (39) STR 913
(S.C.) the demand of service tax prior to 1.06.2007 on construction works is not valid.
As regards demand under WCS, the assessee undertook construction works for PSU's and
Government agencies, also, it was under the impression that service tax is not payable by
such agencies. The Revenue has not been able to produce substantive evidence to prove that
assessee suppressed facts with intent to evade payment of tax. Therefore the demand after
1/6/2007 is set aside on limitation and penalty, demand for normal period & on cleaning
services is confirmed. - V CHINNASAMY 2018-TIOL-2478-CESTAT-MAD. |
| 52 |
RAJ TRADERS |
2018-TIOL-2458-CESTAT-AHM. |
The issue at hand was whether the television sets are liable to confiscation u/s 111 of
Customs Act, 1962 for non-compliance with the compulsory registration scheme of the Bureau
of Indian Standards. Held that confiscation of 'SONY' television sets and the direction of
re-export is not legitimate. However, with respect to 'SAMSUNG' sets there is no evidence of
registration. Thus, clearance into the domestic market on payment of redemption fine would
run counter to the objectives of the FTP in prescribing such registration as a pre-requisite
for import. The quality of the goods and safety to the consumer is assured only with such
registration. Therefore, the confiscation of 'SAMSUNG' sets is valid and upheld with the
redemption fine, subject to re-export. With respect to subject goods being violative of IPR,
implementation of the convention are not within the purview of the Commissioner, only the
law framed hereunder is. Likewise, Circular no. 41/2007-Customs envisages the same
principle. In the present case, counterfeits can be detected only through the prescribed
procedure which has not been followed herein. Therefore, the goods are not counterfeits.
Section 11 and, consequently section 111, is not liable to be invoked. Hence, the
confiscation of the 'SONY' TV sets and 'SONY' panels as well as the enhancement of
assessable value of both is set aside along with penalty in the absence of any evidence of
contemporaneous imports to support the enhancement.- RAJ TRADERS
2018-TIOL-2458-CESTAT-AHM. |
| 53 |
Liners India |
2018-TIOL-2347-CESTAT-MAD. |
Assessee is engaged in manufacture of cylinder liners which are in nature of parts /
components of automobiles. The assessee cleared said goods in bulk to State Transport
Undertakings for being used by them in maintenance of their fleet. The clearance to these
transport undertakings were subject to duty of excise based on their transaction value under
section 4 of CEA, 1944. Department views that the duty has to be on the basis of MRP. It has
been held that Chapter 2 of Standards of Weights and Measures Act and Rules 1977 provides
that said Rules do not apply when goods are not intended for retail sale. Demand confirmed
on the basis of Rule 34 which is not in existence is unsustainable and same is set aside.
Liners India Ltd 2018-TIOL-2347-CESTAT-MAD. |
| 54 |
Mitashi Edutainment Pvt Ltd |
2018-TIOL-2550-CESTAT-MUM. |
Import of electronic goods and payment of CVD based on MRP sticker affixed.
Allegation of goods being sold at higher MRP after clearance by altering retail sale price.
Whether differential CVD can be demanded or CE duty by treating activity as manufacture.
Difference in Opinion. Matter referred to Third Member. - Mitashi Edutainment Pvt Ltd
2018-TIOL-2550-CESTAT-MUM. |
| 55 |
AK Woods Industries |
2018 (8) TMI 319 - CESTAT BANGALORE.
|
The department has alleged undervaluation of excisable goods manufactured by
the appellants to the extent of 40% of the price declared on the invoices. Allegations
levelled by the department on the basis of few chits/slips/documents recovered during
searches. It was held that the statements recorded at different locations from different
persons on different dates giving the same conclusion is amply proof that the statements are
reliable documents. Further in this case, the cross examination was not denied and the case
was based on the statements of the persons corroborated by the evidence. Nothing has been
brought on record by the appellants that the statements have been recorded under
duress/coercion. Also held that once firm is penalized, separate penalty is not imposable
upon the partner of the firm because partner is not a separate legal entity and cannot be
equated with employee of the firm if no specific role is attributed to partner. - AK Woods
Industries 2018 (8) TMI 319 - CESTAT BANGALORE |
| 56 |
Balaji Action Buildwell |
2018-TIOL-2562-CESTAT-DEL |
The issue whether the goods imported and described as "Melamine" will be covered by the
description "SYNTAN" appearing in the DFIA licences was deliberated by Central Leather
Research Institute (CLRI). It was concluded that the benefit of DFIA licences for import of
"SYNTAN" cannot be extended to the goods imported. The assessee was denied benefit of DFIA
licence and duty demand was raised. The Tribunal has held that from the opinion of the CLRI,
it is evident that Melamine cannot be used as such, in leather processing as Syntan, leading
us to the inescapable conclusion that the benefit allowable under DFIA licence to Syntan
cannot be extended to Melamine.- Balaji Action Buildwell 2018-TIOL-2562-CESTAT-DEL. |
| 57 |
Rao And Khan Motors Pvt Ltd |
2018-TIOL-2686-CESTAT-MAD. |
The appeal ought to have been filed within three months from the date of
order-in-appeal. When computed from the date of despatch and receipt of the order-in-appeal,
there is a delay of more than two years in filing the appeal. Therefore, the assessee had
knowledge about the order under challenge and yet chose to delay the filing of appeal.
Hence, the applications seeking condonation of delay stand dismissed. - Rao And Khan Motors
Pvt Ltd 2018-TIOL-2686-CESTAT-MAD. |
| 58 |
Bharat Heavy Electricals Ltd |
2018-TIOL-2666-CESTAT-MAD. |
The assessee is engaged in manufacture of boilers. It was noticed that for the period
10/2007 to10/2009, the assessee had wrongly availed cenvat credit on various input services.
The period involved is prior to 1/4/2011 when definition of input services included the
words 'activities relating to business'. The definition thus had a wide ambit during the
disputed period. The services impugned are eligible for credit. - Bharat Heavy Electricals
Ltd 2018-TIOL-2666-CESTAT-MAD. |
| 59 |
Cassel Research Laboratories Pvt Ltd |
2018-TIOL-2579-CESTAT-MAD |
SCN was issued proposing to demand service tax under category of Technical
Inspection and Certification Service on income received by assessee from M/s LRL. There is
nothing in the SCN as to how the assessee would fit into the classification of Technical
Inspection and Certification Service. SCN is foundation of all charges and when nothing is
brought out in SCN as to how the assessee is liable to pay service tax under particular
category of service, demand proposed in said SCN cannot sustain. Merely because they
obtained registration and paid service tax for a short period, they cannot forced to pay
service tax under a category which is not applicable to the assessee or their activity
rendered by them. - Cassel Research Laboratories Pvt Ltd
2018-TIOL-2579-CESTAT-MAD. |
| 60 |
Sify Technologies Ltd |
2018-TIOL-2719-CESTAT-MAD. |
The main allegation was that service tax paid by tax payer as shown in ST-3 returns for
this period was less than the tax payable as calculated on the value shown in same ST-3
returns filed by them for the impugned period. It is clear that the adjudicating authority
has primarily focused on comparing the figures given by assessee in the first and second
round of adjudication. In the first round of litigation, CESTAT Chennai had clearly
indicated that the adjudicating authority came to pass the impugned demand as the proper
reconciliation exercise was avoided. These directions of CESTAT Chennai have evidently not
been followed in the de novo adjudication, Tribunal is left with no other alternative but to
once more send the matter back to the adjudicating authority to cause reconciliation as per
the directions already given by the Tribunal in their earlier order dt. 04.06.2009. It is
also held that the issue is on a matter of interpretation of the figure provided by
assessee. There is definitely a case for waiver of penalty imposed under Section 78 since
none of the ingredients which call for imposition of penalty under that section is present.
- Sify Technologies Ltd 2018-TIOL-2719-CESTAT-MAD. |
| 61 |
HCL Infosystems Ltd |
2018-TIOL-2810-CESTAT-MAD |
The
issue involved in both the appeals is whether the assessee is eligible to avail the Cenvat
Credit of service tax paid on the GTA service received by them for outward transportation
of final products from the factory gate up to the premises of the buyer when the sales are
on FOR basis. It has been held that the said issue has been decided in the case
of M/s. Ultratech Cement Ltd. 2018-TIOL-42 SC-CX, wherein it has been held that
credit is eligible up to 01.04.2008 and after such date, the assessee is not eligible for
credit. Further taking into consideration that the issue was under litigation and was in
favour of assessee at the Tribunal level as also decided by various High Courts and got
settled only by the decision of Apex Court, penalty imposed is unwarranted and same is set
aside. - HCL Infosystems Ltd 2018-TIOL-2810-CESTAT-MAD |
| 62 |
Hindustan Coca Cola Beverages Pvt Ltd |
2018-TIOL-2734-CESTAT-MAD |
Assessee is engaged in manufacture of dutiable goods namely aerated water and exempted
goods namely 'Maaza Mango'. The department was of the view that assessee did not maintain
separate accounts for the receipt of plastic crates used for both dutiable and exempted
final products. It has been held that the issue stands decided in assessee's own case
in 2007-TIOL-925-CESTAT-MAD wherein the Tribunal held non maintenance of accounts as
regards use of credit availed inputs which have already been used once in the packing of
final products does not invite the liability of 8% (later 10%) of the sale price of exempted
final products as provided in Rule 6 of the CCR. The said decision has been maintained by
High Court of Andhra Pradesh. Following the said decision, demand cannot sustain and same is
set aside. - Hindustan Coca Cola Beverages Pvt Ltd 2018-TIOL-2734-CESTAT-MAD. |
| 63 |
Real Value Promoters Pvt Ltd |
2018-TIOL-2867-CESTAT-MAD |
The services
provided by the appellant in respect of the projects executed by them for the period prior
to 1.6.2007 being in the nature of composite works contract cannot be brought within the
fold of commercial or industrial construction service or construction of complex service
in the light of the Hon'ble Supreme Court judgment in Larsen & Toubro
2015-TIOL-187-SC-ST. In respect of any contract which is a composite contract, service tax
cannot be demanded under CICS / CCS for the periods also after 1.6.2007. It was further
held that for sole reason of not filing the intimation for opting to pay service under
Works Contract Service, the demand cannot sustain. – Real Value Promoters Pvt
Ltd 2018-TIOL-2867-CESTAT-MAD. |
| 64 |
Deepak Cables India Ltd |
2018-TIOL-2902-CESTAT-BANG |
Whether there is
nexus between services rendered by assessee and transmission and distribution of
electricity so as to make them eligible for exemption under Notfn 45/2010 ST. This
exemption appears to be for all taxable services relating to transmission of electricity.
The Tribunal has held that to decide whether the activities performed by assessee are in
relation to the transmission of power, there are plethora of judgments, wherein it has
been held that erection commissioning and installation comes within the ambit of the
expression 'in relation to' , therefore, the activity undertaken by assessee falls in the
ambit of 'in relation to' transmission of electricity in terms of Notfn 45/2010. In regard
with contract given by Karnataka Power Transmission Ltd. to the assessee, it is observed
that the contracts are though composite are not indivisible. Hence, the ratio of Supreme
Court in respect of Larsen and Toubro Ltd. 2015-TIOL-187-SC-ST, is not squarely
applicable as pleaded by assessee. Deepak Cables India Ltd
2018-TIOL-2902-CESTAT-BANG. |
| 65 |
Shasun Pharmaceuticals Ltd |
2018-TIOL-2888-CESTAT-MAD. |
Section 3 (i) of
Customs Act, and Circular No.1/2004-Cus dated 05.01.2004 read together would make it
clear that the duty payable by an EOU on its DTA clearances is in the nature of excise
duty and is to be equivalent to aggregate of customs duties leviable on like goods when
imported. The impugned goods Gabapentine are dutiable and cannot be said to be
unconditionally exempted products. They are allowed to be cleared to DTA without payment
of duty only as per Notification No. 23/2003. The goods are leviable to nil rate of duty
on application of Notification No. 23/2003. - Shasun Pharmaceuticals Ltd
2018-TIOL-2888-CESTAT-MAD. |
| 66 |
L Harish Gandhi |
2018-TIOL-1951-HC-MAD |
Assessee seeks to place certain factual issues, which according to them were
placed before Tribunal, which were not dealt with and also the assessee seeks to rely upon a
Circular bearing No.11/2016, which is a clarification regarding "other persons"
(co-noticees) used in sub-Section (2) and sub-Section (6) of Section 28 of Customs Act, 1962
. The Hon’ble Court has observed that the assessee's specific case before them
is that benefit of such statutory provision was brought to the notice of Tribunal and the
matter was not examined by Tribunal. The court gave liberty to the assessee to file a
miscellaneous application before Tribunal raising appropriate contentions and if such
application is filed within a period of fifteen days', the Tribunal shall not reject the
application on the ground of limitation, but entertain the same and decide the application
on its own merits.- L Harish Gandhi 2018-TIOL-1951-HC-MAD |
| 67 |
Rane Nsk Steering Systems Pvt Ltd |
2018-TIOL-1834-HC-MAD |
On substantial question of law on whether the appeal of assessee can be
dismissed by Tribunal on the only ground that Commissioner (A) is correct in dismissing the
appeal of assessee on the ground that Commissioner (A) did not have the power to condone a
delay of more than thirty days, the Hon’ble High Court has held that a bare reading of
Section 35 of CEA, 1944, makes it clear that beyond 90 days, the Commissioner (A) has no bar
to condone the delay in filing an appeal to the Commissioner. Though reasons assigned, may
appear to be sufficient, statute does not provide condonation beyond the period provided
therefor - Rane Nsk Steering Systems Pvt Ltd 2018-TIOL-1834-HC-MAD |
| 68 |
Adecco Flexione Workforce Solutions Ltd |
2018-TIOL-3194-CESTAT-BANG. |
The assessee is not contesting the duty demand or the interest. Regarding
penalty imposed u/s 76, the assessee claimed to have deposited service tax late due to
pre-occupation with other business obligations & financial crunch. It has been held that
such explanation does not hold much water & does not warrant exercise of discretion u/s
80 of the Finance Act 1994. The assessee also admitted to have recovered service tax but did
not immediately deposit the same with the Government. Regarding the assessee's claim for
benefit of the 2011 amendment to Section 76, it is seen that the amendment has prospective
effect only and so will not benefit the assessee in the present case - Adecco Flexione
Workforce Solutions Ltd 2018-TIOL-3194-CESTAT-BANG |
| 69 |
Aswini Apartments |
2018-TIOL-3350-CESTAT-MAD. |
Demand has
been raised under construction of residential complex services. The contracts entered
between the appellant and the service recipient is a composite contract which involves
both supply of materials as well as rendering of service. Following the decision of
Tribunal in Real Value Promoters Ltd. - 2018-TIOL-2867-CESTAT-MAD, the demand of ST under
commercial or industrial construction service (residential complex) cannot sustain after
the period 1.6.2007. The levy of ST prior to 1.6.2007 cannot also sustain by application
of the decision of the Supreme Court in the case of Larsen & Toubro Ltd.
2015-TIOL-187-SC-ST. Aswini Apartments 2018-TIOL-3350-CESTAT-MAD. |
| 70 |
Vijaisuriya Constructions Pvt Ltd |
2018-TIOL-3349-CESTAT-MAD |
Appellant rendered construction of residential complex service during the
period August 2006 to September 2011. In the case of Real Value Promoters Ltd
2018-TIOL-2867-CESTAT-MAD the Tribunal held that prior to 1.6.2007, levy of ST
can be under the above categories only for contracts which are purely for services. The
demand of ST under commercial or industrial construction service (residential complex)
cannot sustain after the period 1.6.2007 - by application of the decision of the Supreme
Court in the case of Larsen & Toubro Ltd. -2015-TIOL-187-SC-ST where it was held
that composite contracts would fall under works contract service only. –
Vijaisuriya Constructions Pvt Ltd 2018-TIOL-3349-CESTAT-MAD |
| 71 |
Cotton City Developers Pvt Ltd |
2018-TIOL-3480-CESTAT-MAD |
The assessee is
providing construction service under CICS and residential complex service. Part of the
demand fall prior to 1.6.2007 and being works contract service is hit by the decision in
the case of Larsen & Toubro - 2015-TIOL-187-SC-ST. The circular dated
1.8.2006 issued by Board relied by assessee makes it clear that the developer / promoter
which builds the residential complex using the services of a contractor is not liable to
pay service tax and it is the contractor who is liable to pay. As the contractor who is
engaged in the construction of building/complex has discharged service tax the demand on
assessee cannot sustain - Cotton City Developers Pvt Ltd
2018-TIOL-3480-CESTAT-MAD. |
| 72 |
Trishul Arecanut Granules Pvt Ltd & Anr |
2018-TIOL-383-SC |
The Department claimed that the assessee company had purchased a vast quantity
of Cotton Canvas bags & alleged that the assessee had not paid duty on it. Thereafter
the High Court held that computing the quantum of evaded duty on the basis of production
capacity and unaccounted purchases of packing material is a mode of best judgment
assessment. Section 3A of CEA was brought on the Statute Book on 10.05.2008 just to
crystallize and fortify such assessment procedure, hence the Tribunal's order was upheld.
The assessee claimed that the certain aspects were not touched upon by the High Court. It
claimed that the Tribunal had directed that the matter be remanded to restrict the demand to
production based on production capacity. In light of the same, the assessee is given liberty
to seek review of the High Court's order - Trishul Arecanut Granules Pvt Ltd & Anr
2018-TIOL-383-SC |
| 73 |
Hindustan National Glass And Industries Ltd |
2018-TIOL-3840-CESTAT-MAD |
The only issue to be considered is denial of CENVAT Credit on Tour
Operator/Rent-a-Cab Service. It has been held that the issue relating to Rent-a-Cab Service
has already been addressed to and decided for the period prior to 01.04.2011 by the
jurisdictional High Court in case of M/s. Turbo Energy
Ltd. 2015-TIOL-629-HC-MAD-CX. For the subsequent period i.e. up to 30.11.2011, assessee
has taken a specific contention that there was no service availed post 01.04.2011 and that
only the invoice was raised and the credit was availed subsequently. The Tribunal has held
that this contention requires factual verification and therefore, issue is remitted back to
the file of adjudicating authority to ascertain the correctness of plea and allow the same
if found correct. -Hindustan National Glass And Industries Ltd 2018-TIOL-3840-CESTAT-MAD
|
| 74 |
Sify Technologies Ltd |
2018-TIOL-3738-CESTAT-MAD |
Assessee availed input service credit on insurance services for period from
April 2014 to March 2015. It appeared to the department that general insurance/insurance
auxiliary services are not covered within the definition of input service and therefore the
assessee is not eligible for the credit. It has been held that only those type of insurance
services which fall under the category of life insurance, health insurance which are availed
for personal consumption are excluded from the ambit of the definition. These policies which
are for covering the product liability in case of defect to the products supplied would
definitely come within the inclusive part of definition. Therefore, errors and omission
policy and transit insurance policy which is availed by assessee for moving the goods to the
site where the output services are to be provided, are eligible for credit. - Sify
Technologies Ltd 2018-TIOL-3738-CESTAT-MAD |
| 75 |
Thriveni Earthmovers Pvt Ltd |
2018-TIOL-3672-CESTAT-KOL. |
Demand of ST under BAS as well as Cargo Handling Service and Site Formation Service
on activity of crushing, transportation of finished product and mined products to the stock
yard, drilling, loosening, excavating etc. SCNs issued covering the period February 2005 to
June 2007. These activities are required to be carried out within the mine and in relation
to mining activities and are within the scope of a single contract, even though different
prices have been indicated in the contract itself for various activities. Mining services
are chargeable to ST only w.e.f. 1.6.2007 - Thriveni Earthmovers Pvt Ltd
2018-TIOL-3672-CESTAT-KOL. |
| 76 |
Indofab Engineers |
2018-TIOL-3655-CESTAT-HYD |
The Tribunal has held that due to various gaps in the impugned order, the issue cannot be
decided by the Tribunal with reference to the correct facts of the case. The First Appellate
Authority has not recorded to demolish the factual findings of Adjudicating Authority.
Accordingly, the impugned order is set aside and without expressing any opinion on the
merits of the case, leaving all the issues open, the matter is remitted back to the First
Appellate Authority to reconsider the issue afresh. - Indofab Engineers
2018-TIOL-3655-CESTAT-HYD. |
| 77 |
Samrajyaa And Company |
2018-TIOL-3640-CESTAT-MAD |
Assessee was doing job work of machining, drilling and milling on goods
received under cenvat challans from one M/s.Magna Electro Castings Ltd. It appeared to
department that assessee is involved in activity of production of goods on behalf of the
clients on which service tax is required to be paid as per Section 65 (19) (v) of FA, 1994
under category of BAS. The activities carried out by assessee will indeed amount to
‘manufacture’ for the purpose of Section 2(f) of CEA, 1994 and in consequence,
the same will not be a BAS under Section 65 (19) of FA, 1994 and therefore no service tax
liability will arise in consequence. - Samrajyaa And Company 2018-TIOL-3640-CESTAT-MAD |
| 78 |
Bay Forge Ltd |
2018-TIOL-3580-CESTAT-MAD |
Assessee is manufacturer of steel forgings, aluminium rings and end-cutting scraps and are
undertaking jobwork for BHEL and L&T Ltd. Proceedings against assessee have been
initiated predominantly for the reason that their suppliers of raw materials BHEL and
L&T Ltd. have not submitted undertaking as required under job work Notfn 24/86-CE. All
the conditionalities and requirements of Notfn 214/86-CE have been substantively complied
with both by the principal manufacturers as well as by assessee. Non-submission of
undertaking by principal manufacturers should then be considered as a curable defect. - Bay
Forge Ltd 2018-TIOL-3580-CESTAT-MAD. |
| 79 |
Thiagarajar Mills Ltd |
2018-TIOL-3546-CESTAT-MAD |
Assessee is engaged in manufacture and export of cotton yarn. They filed refund
claim under Rule 5 of CCR, 2004. The adjudicating authority and the Commissioner (Appeals)
deferred to another Notification No.41/2007-ST, dated 06.10.2007, which exempts the said
services by way of refund to an exporter but denied the benefit of the same also on the
ground that the refund claims were for the period beyond limitation. It was not open to the
adjudicating as also to appellate authority to go for the alternative availability of
Notification No.41/2007-ST, dated 06.10,2007 and decide the issue in terms of the said
notification, instead of deciding the refund claims in terms of Rule 5 under which the same
were filed.- Thiagarajar Mills Ltd 2018-TIOL-3546-CESTAT-MAD. |
| 80 |
Shri Nataraj Ceramics And Chemical Industries Ltd |
2018-TIOL-3853-CESTAT-MAD |
Assessee
clearing waste materials namely cinders to Dalmia Refractories without payment of duty who
in turn sold the same to various buyers on cost. Department took the view that clearances
of cinders are to be subjected to duty at tariff rate. It has been held that Supreme Court
in case of Ahmedabad Electricity Co. Ltd 2003-TIOL-17-SC-CX once for all settled the issue
that cinder is not an excisable product. Further the Board had accepted the said judgement
in their circular dt. 18.11.2005. - Shri Nataraj Ceramics And Chemical Industries Ltd
2018-TIOL-3853-CESTAT-MAD. |
| 81 |
The Tuticorin Gymkhana Club |
2018-TIOL-3700-CESTAT-MAD |
The issue of service tax on membership fees of Club and Association Services has
been considered in the judgments of the Hon’ble High Court of Jharkhand in the case of
Ranchi Club Ltd. Vs. Chief Commr. of C. Ex. & S.T., Ranchi Zone reported in
2012-TIOL-1031-HC-JHARKHAND-ST and Hon’ble High Court of Gujarat in the case of Sports
Club of Gujarat Ltd. Vs. U.O.I. reported in 2013-TIOL-528-HC-AHM-ST, wherein it was held
that there cannot be any demand in respect of Club and Association Service up to 30.06.2012.
With regard to demand under Renting of Immovable Property Services the same fell within the
taxable category and hence demand sustainable. – The Tuticorin Gymkhana Club
2018-TIOL-3700-CESTAT-MAD. |
|
Reported Cases 2017
|
|
S.No.
|
Name of the part
|
TIOL
|
Issue in brief
|
| 1 |
Hindustan Coca Cola |
2017-TIOL-670 Tri |
Held: When erection and commissioning of water treatment plant was essential,
there should not be denial of CENVAT credit of service tax paid in respect of such service
availed for recycling of the water for use in manufacture - When the authority did not rule
out use of the area for parking of the vehicles which are used in the manufacturing
activities of the appellant, there cannot be disintegration between the input service as
well as the purpose of the business and manufacture - Therefore, denial of CENVAT credit on
this count is inconceivable - Accordingly, appellant gets relief on this count also�� |
| 2 |
Sri Ram Engineers |
2017-TIOL--508TRI |
Due to practical difficulties, manufacturing unit was shifted from its
previous place of manufacture to a new place - None of excisable goods manufactured in new
location has gone without payment of duty - But without looking into such aspect, authority
not only has demanded duty from new location unit but also denied CENVAT credit in respect
of earlier location - Law does not require that the same assessee should suffer in both ways
|
| 3 |
Jayalakshmi Printing Mills |
2017-TIOL-827 |
The order of the Adjudicating Commissioner shows that he has not applied his
mind and that he had prejudged mind to reach to his decision without testing the evidence on
record � The SCN indicates that there were two distinct units carrying out their activities
and it also alleged that M/s.Jayalakshmi Printing Mills was the manufacturer and it was
liable to duty � Perusal of the order throws light that the order has been passed
superficially - it was the duty of the Adjudicating Authority to ascertain whether there
were two distinct and independent units existed and what was their liability on the basis of
investigation result and evidence on record � assessee should not be unjustly dealt under
law and there should be cogent and credible evidence - The manner in which the impugned
order has been passed, that calls for direction to the Adjudicating Authority to redo the
adjudication examining the controversy in the SCN and considering the material facts,
evidence, law and previous directions of Tribunal as well as the defence plea, granting fair
opportunity of hearing to the appellant � Hence, both the appeals are remanded to the
adjudicating authority |
| 4 |
Dredging Corporation |
2017-TIOL-1014 |
ST - Interest on delayed payment of ST - Penalty is also imposed for
non-payment of interest - Considering that assessee is a Government of India under taking,
the penalty imposed under Section 76 of FA, 1994 is unwarranted - Assessee have already
discharged ST liability and are not contesting liability to pay interest on delayed ST - No
reason found to interfere with penalty imposed under Section 77: CESTAT |
| 5 |
Anand Rishiji Hosp |
2017-TIOL-1006 |
ST � Renting of immovable property - Appellant seeks waiver of penalties
imposed u/s 70, 76, 77, 78 of FA, 1994 � section 80(2) was inserted in the FA, 1994
according to which penalty stands waived if the service tax is paid within six months from
the date of the enactment of the Finance Bill, 2010 � appellant submits that they tried to
comply with the condition mentioned by presenting cheque on 23.11.2012, however, due to
some discrepancy the cheque was not presented by the bank on the said date but later and
the cheque was cleared on 29.11.2012 i.e. a day later than the mandated date � appellant
submitting that even though immunity is not available u/s 80(2) of FA, 1994, considering
the bonafides of the appellant, penalties can be waived by invoking section 80(1) of FA,
1994. Held: Section 80(1) of FA, 1994 is a general provision for waiver of penalty if the
appellant is able to show reasonable cause for non-payment of service tax in time � in the
present case, taxability of renting of immovable property was indeed under various
litigation and finally settled by the Supreme Court in case of�Home Solutions Retail
-�2011-TIOL-103-SC-ST�, therefore, issue was not free from doubt and as it involves grave
interpretation of law, appellant is entitled for waiver of penalties in terms of s.80(1)
of FA, 1994 � penalties imposed u/ss 76, 77, 78 waived and consequently penalty u/s 70 is
also not sustainable � impugned order set aside and appeals are allowed: |
| 6 |
Karnataka Metal Co |
2017-TIOL-982 |
CX - Assessee allegedly issued cenvatable invoices without actual delivery of
goods which led to fraudulent availing of credit - Department's allegations based on records
seized from premises of an employee of the assessee - No raw material found to be supplied
by assessee and no discrepancy in records proves that no finished goods could have been
manufactured upon which credit could have been fraudulently claimed - Assessee's employee
not made party to the proceedings - Records of buyers and other evidence not submitted by
department - Department's evidence incomplete and lacking: CESTAT |
| 7 |
Scionspire |
2017-TIOL-798 Mad HC. 2017 (3) GSTL 45 Mad |
ST - Refund of unutilized CENVAT credit - Rule 5 of CCR 2004 does not
stipulate registration of premises as a necessary prerequisite for claiming a refund - A
perusal of the Sub Rules (2) and (3) of Rule 4 of the STR 1994, on which, reliance is placed
by Revenue does not bring to fore any limitation, with regard to grant of refund, for
unutilized cenvat credit, qua, export services, merely on the ground that the premises are
not registered - Revenue appeal dismissed: |
| 8 |
Cassel |
2017-TIOL-6762 Mad HC & 2017 (354) ELT 343 Mad |
CX - Assessee received capital goods & availed cenvat credit on them, partly
in that year & partly in the subsequent year - It is alleged that assessee inadvertently
capitalised duty paid & availed depreciation on it under the Income Tax Act, which was
reflected in the assessee's income tax returns - For this reason revenue sought to deny
cenvat credit - Assessee claimed that it had reversed the depreciation amount in subsequent
returns filed - Tribunal dismissed assessee's appeal for lack of evidence that assessee had
indeed reversed depreciation amount - Held - It is admitted that since the assessment was
done under the Income tax Act, the only evidence that can be adduced would be a copy of the
return - Thereby, Tribunal directed to hear matter on merits:�� |
| 9 |
APSRTC |
2017-TIOL-1247- Hyd |
ST - Assessee providing services categorized under "sale of
space or time for advertisement" & deposited service tax to the govt. for these services -
Subsequently assessee sought a refund of tax paid as the services were non-taxable under the
Negative list - Refund was rejected on ground of unjust enrichment - Held - Issue decided in
several judgments - Any amount deposited under mistake of fact or mistake of law is not
treated as tax paid because there is no tax liability - Thereby, such amount paid cannot be
retained by government: |
| 10 |
BHEL |
2017-TIOL-1223 |
Held: The issue in question is no longer res integra and has been settled by
a number of High Court decisions including that of Billforge Pvt. Ltd., subsequently
followed in several rulings - following the maxim of stare decisis and the ratio set down in
the Billforge decision, no interest liability will arise in the present case also and,
consequently, there cannot be any imposition of penalty � no interference in the denial /
reversal of credit |
| 11 |
Powerlink |
2017-TIOL-1148 / 2017 (50) STR 150 Tri Chennai |
Tribunal finds that the appellant was not in receipt of the
communication of the order-in-original sent by speed post and that, it was based on
certification issued by postal authorities, that the order was sent to appellant on 10 th
August 2013 - The appeal was filed immediately thereafter - Appellant was not heard by the
adjudicating authority and was informed of non-availability of adjudicating authority when
appeared for hearing - Non- availability of notice on date stipulated for personal hearing
is a possibility that cannot be ruled out - Adjournments are normally granted to enable
hearing which is a mandated ingredient of the principles of natural justice - The completion
of proceedings by the original authority without affording sufficient opportunity to notice
is unseemly - failure to serve the adjudication order in accordance with the legally
sanctified process - Hence, the order is set aside and the matter remanded back to the
original authorit |
| 12 |
KCF Chitfunds |
2017 (50) STR 161 Tri |
|
| 13 |
Ramky Infrastructure |
2017-TIOL-1782- Tri-Kol |
ST - Laying of pipelines for water supply, sewerage lines etc. for the Govt.
of West Bengal and its various agencies - Payment of tax mistakenly - Limitation u/s 11B of
CEA, 1944 is not applicable - Principle of unjust enrichment would not apply in the case of
composite contract price - Refund admissible - appeal allowed with consequential relief:
CESTA |
| 14 |
Analogic Technomatics |
2017 (350) ELT 270 Tri Hyd |
Wismo Modules Classification |
| 15 |
Microchem |
2017-TIOL-1274 Mad HC. 2017 (355) ELT 45 Mad |
CX - Limitation - s.11A of the CEA, 1944 - A mere non-disclosure of
information, when there is no obligation in law to furnish the same, will not amount to
fraud or collusion or even willful misstatement and, hence, trigger the extended period of
limitation � order of Tribunal set aside - Demand to be restricted to normal period of 6
months � no penalty u/s 11AC of CEA, 1944 : High Court [para 5, 11.2, 11.5, 13, 13.1, 14,
14.1, 14.2 |
| 16 |
Krebs Biochemicals |
2017 (352) ELT 261 Tri Hyd |
|
| 17 |
Divis Laboratories |
2017 (352) 211 Tri Hyd |
|
| 18 |
Madras Vanaspati |
2017 (3) GSTL 162 Tri-Mad |
|
| 19 |
Thiruaarooran Sugars |
2017 (3) GSTL 199 Tri-Mad |
|
| 20 |
Pioneer Builders |
2017-TIOL-3493-Tri-HYd |
Assessee engaged in construction of civil structures in relation to
construction of power projects falling under CICS - They also allegedly provided Cargo
Handling Services to Penna Cement Industries Ltd - Department demanded ST under CICS - It
appears that all taxable services relating to transmission of electricity during the period
upto 26.02.2010 and to distribution of electricity upto 21.06.2010 were exempted
retrospectively as per Notfn�45/2010-ST�- By following the ratio laid down by Tribunal in
case of�Shri Ganesh Enterprises�2014-TIOL-187-CESTAT-BANG,�ST is not leviable. |
| 21 |
APSRTC |
2017-TIOL-3865 Tri-Hyd |
�From the definition of �tour', �tourist vehicle', �tour operator' and
�contract carriage' as per the Act/Motor Vehicles Act, 1988 [MV Act], it emerges that for
the entire period of the dispute, viz.,1.4.2000 to 2007-08, irrespective of the amendments
to the definition of� "tour operator" �in the Act, the activities of the appellant would not
attract ST under the said service category -to be covered under the definition of� "tour
operator", the person should be engaged in operating tours in a tourist vehicle covered by a
permit -�tourist vehicle� has a meaning assigned to it in section 2 (43) of the MV Act which
states that a contact carriage constructed or adapted or equipped or maintained in
accordance with prescribed specifications -the specifications are provided in rule 128 of
the Motor Vehicle Rules -the department does not have a case that the buses of the assessee
used for carrying passengers as per contract to destinations conform to such specifications
so as to make them fall within the definition of contract carriages -it is not disputed that
the vehicles used by the assessee for the impugned services are "stage carriage" vehicles
and are carrying out the impugned activities only on the basis of temporary permits issued
by A.P. Transport Authorities -they do not at all become contract carriages as they do not
conform to the definition of �contract carriage� in section 2(7) of MV Act - the assessee
admittedly obtains special permit for meeting special situation under section 88(8) of the
Act which does not fall in the definition of �tourist vehicle' or �contract carriage' and
attract levy of ST -impugned activities carried out by the assessee will not attract the
definition of "tour operator" under section 65 (52) of the Act prior to 10.9.2004 and under
section 65 (115) for the remainder period covered in this case -this being so, the demands
involved in the appeals filed by the assessee cannot sustain and the related impugned orders
are set aside - in the result, appeals of the assessee are allowed and the appeal of revenue
is dismissed : CESTAT [para 7, 8, 9, 10, 11, 12] |
| 22 |
Sheladia Associates |
2017-TIOL-3812-Tri-Chennai |
ST - Assessee entered into contract with Tamilnadu Road Sector Project,
Highways Department of Government of Tamilnadu for Consulting Services on construction,
supervision of Nagapattinam-Kattumavadi, Kattumavadi-Ramanathapuram and
Ramanathapuram-Tuticorin road projects - It was noticed by department, that assessee had
not paid ST on the amount received from client as reimbursable expenses as well as on
withhold tax deducted by client towards TDS - SCN was issued alleging for short payment of
ST - Original authority confirmed the demand along with interest and imposed penalty under
Section 76, 77 & 78 of FA, 1994 - Assessee is not contesting the demand of ST or interest
thereon - In case of�C. Ramachandran�2016-TIOL-2220-CESTAT-MAD, the issue whether penalty
can be imposed for non-payment of service tax on TDS portion deducted by customers as well
as reimbursable expenses was under analysis - Following said judgment, penalties imposed
under Section 76 and 78 are unwarranted and same is set aside - In the result, appeal is
partly allowed without disturbing the demand of service tax or interest thereon as well as
penalty imposed under Section 77: CESTAT
|
| 23 |
D.R.S. Logistics |
2017-TIOL-3237 CESTAT Del |
ST - Section 65A of FA, 1994 - Composite services - Essential character -
Appellant providing services of loading, unloading, together with shifting/transportation of
household articles to various customers - Principal aim and objective is transportation of
goods and providing of other services are incidental and ancillary to the main purpose of
transportation - appellant issues various documents namely, consignment fixed up receipt,
collection advice, consignment note, invoice, money receipt etc. to its customers, showing
inter alia, the details with regard to the services provided and the charges levied thereon
- services are appropriately classifiable under GTA service instead of Cargo Handling
Service - Law is well settled that the circular issued by the Board, either in its
administrative or executive jurisdiction, are binding on the officers working under it,
unless and until it is proved that the clarifications furnished are contrary to the
statutory provisions or the law pronounced by the higher judicial forums - Impugned order
confirming Service Tax demand of Rs.21,97,73,596/- along with interest and penalties set
aside & Appeal allowed: |
| 24 |
Nagarjuna Fertilizers |
2017-TIOL-3877-CESTAT-Mad |
Cus -�Assessee imported consignments of Pyro Blocks / Catalysts meant for
maintenance of fertilizer plant in Kakinada - The goods were assessed to duty @ 12.5% BCD
for Bill of Entry 982913 and @ 7.5% for rest of Bills of Entry availing concessional rate
under�Notfn 21/2002�- After clearance, assessee claimed further concessional rate of duty in
terms of said�Notfn�in terms of Sl. No. 2726 by which applicable rate of customs duty is 5%
on condition that a certificate from Ministry of Chemicals and Fertilizers is produced -
Department contends to deny the benefit of Notfn on two grounds - Firstly, that assessee
have not complied condition of producing requisite certificate at the time of import - At
the appellate stage, requisite certificate was obtained from Ministry and produced by
assessee - Commissioner (A) has condoned the delay in producing certificate and allowed the
benefit of concessional duty -�The second ground is raised only in this appeal and not been
an issue before Commissioner (A) - It is contended that catalyst imported cannot be
considered as raw materials or consumables specified in said�Notfn -�Assessee have imported
catalyst and question whether such catalyst can be considered to be a raw material for
purpose of availing benefit of a notfn was analysed by Supreme Court in case of�Ballarpur
Industries -�2002-TIOL-42-SC-CX-LB�- In said judgment, question was whether sodium sulphate
used in manufacture of paper would be eligible for benefit of notfn, though said chemical
did not remain in finished product namely paper - Supreme Court observed that sodium
sulphate can be considered as a raw material - Similar view was taken in case of�Reliance
Industries Ltd - .�2013-TIOL-2326-CESTAT-MUM�-�In view thereof, ground of department that
assessee is not eligible for notification for the reason that catalyst imported by them
cannot be considered as raw material is not tenable and therefore rejected |
| 25 |
Dee Chem Plastics |
2017-TIOL_4217-CESTAT - Del |
Assessee is registered as manufacturer of formaldehyde and thinners - The raw
materials for manufacture of formaldehyde and thinners are Methanol, Organic Composite
Solvent (OCS) and stabilizers - During search, officers resumed various documents, including
certain invoices pertaining to RVS Petrochemicals Private Ltd, Bahadurgarh (RVS) and Amkap
Marketing Private Ltd. Raebareli (Amkap), who were the suppliers of OCS to assessee - After
investigation, SCN was issued alleging non-receipt of raw material, namely OCS, from RVS and
Amkap - Tribunal vide�Final Order dated 09 July, 2007�had remanded the case back to
Commissioner with a direction to consider the evidence relating to bank statement and/or
transactions showing payment for inputs and receipt of payment for sales through banking
channel - In said order, Tribunal had given clear finding that assessee had paid duty on
final product which is manufactured out of disputed inputs - This finding of Tribunal have
not been challenged by Revenue in further appeal - Thus it was not open for Commissioner in
remand proceedings to reconsider or redetermine the issue of manufacture out of disputed
inputs or payment of duty on final products - There is evidence on record that assessee have
deputed manpower for production and there has also been electricity consumption regularly -
Commissioner have selectively relied upon evidence on record by ignoring evidence of Sadhu
Ram Sharma, who is responsible person, being the plant incharge of RVS and rather have
relied upon statement of menial staff namely sleepers/watchmen - Reliance on such statements
by Commissioner is also hit by Section 9D of CEA, 1944 as such persons were neither
re-examined in adjudication proceedings nor the same were offered for cross-examination -
Further no expert report had been obtained by Revenue as regards manufacturing capacity of
assessee for thinner in view of observation of some rust in kettle at the time of inspection
- Further, contention of assessee that manufacture of thinner requires only a mechanical
agitation of OCS with addition of certain additives and stabilizers, same can also happen in
Storage tank itself, is also convincing and not found to be untenable by Revenue -
Accordingly, SCN is not sustainable, save and except the demand of Rs. 8,984/-, towards
shortage of inputs found at the time of inspection: CESTAT |
| 26 |
Thriveni Earthmovers |
2017-TIOL-4141- CESTAT, Chennai |
ST -�Assessee was awarded with Work Order from M/s.Larsen & Toubro Ltd., for
Drilling, Blasting and Transporting of yellow Bound-quarrying works - For said activities,
department issued SCN stating that activities undertaken by assesesee is in nature of CARGO
HANDLING SERVICES, hence, liable for payment of service tax -�Predominant nature of
activities undertaken by assessee under the contract is one of transportation of waste/ores
to specified location in the mines and in few cases upto factory and not beyond�-�Further,
in assessee's own case in�2009-TIOL-683-CESTAT-MAD,�it is held that movement of limestone
and rejects in mining area undertaken by assessee are covered by entry 'mining of mineral,
oil, gas' and said activity cannot be taxed under 'CARGO HANDLING SERVICE' for the period
prior to introduction of levy under category of 'MINING OF MINERAL, OIL, GAS' on 01.06.2007
- Further, in decision of�N.Rajasekhar & Co�2008-TIOL-1531-CESTAT-BANG�it was held that main
purpose of contract that of breaking and crushing of limestone boulders into jelly - Loading
and unloading of boulders are only incidental to mining activity -�The issue whether loading
/ unloading of limestone and rejects in mining area would fall under 'Cargo handling
services' is covered by judgements cited by assessee and also by judgement in assessee's own
case - Following the same, no grounds found to interfere with impugned orders: CESTAT |
| 27 |
Senthilkumar Spinners |
2017-TIOL-4100-CESTAT Chennai |
The Revenue's case was largely built upon the broker's diary and statements
of the transporters - The Revenue did not corroborate its findings by contacting the
consignee of the goods cleared by the assessee despite having details of the consignee -
Hence, the Revenue's allegations are based purely on third party records - There was no
other evidence establishing manufacture of such huge quantity of yarn, or their clearance
etc. - The Revenue neither took statements of employees in the assessee firm to establish
production nor did it establish procurement of raw materials - Considering the Tribunal
decision in�CCE & ST, Raipur Vs. P.D. Industries Pvt. Ltd., the onus was on the Revenue to
establish a case of clandestine removal beyond all doubt or to such a reasonable degree
lending credence to the allegations - Since the Revenue failed to discharge such onus and
given the lack of evidence, the duty demand based on third-party evidence, is unsustainable:
|
| 28 |
Tanfac Industries |
2017-TIOL-4077-CESTAT |
Assessee is a manufacturer of�"Flourine Chemicals"�and were availing
benefit of Cenvat credit of duty of excise paid on various iron and steel items used by
them either as supporting structurals or for manufacture of components for other capital
goods to be used in their chemical plant - They were being issued with periodical SCNs
proposing denial of Cenvat credit availed on such items on the ground that same cannot be
considered as capital goods for purpose of Cenvat credit - Appeal was filed before
Commissioner (A) against a communication of original adjudicating authority rejecting the
assessee's claim of availment of credit - Principle of natural justice was not followed
and ex parte decision was taken - However, Commissioner (A) has held in favour of assessee
in respect of availment of credit on various iron and steel products used for repair and
maintenance - Assessee's grievance is that they had sought Cenvat credit even in respect
of various items used for fabrication of capital goods, in which case, even Larger Bench
decision of Tribunal allows such credit, there are no findings by Commissioner (A) on said
issue - As regards the items used as structural, it is seen that Larger Bench decision of
Tribunal stands considered and not approved by Gujarat High Court in case of�Mundra Ports
& Special Economic Zone Ltd.,�2 |
| 29 |
Jayajothi Cements |
2017-TIOL-3950-CESTAT |
Assessee is manufacturer of cement products and availed Cenvat credit on
steel items such as M.S. Channels/ M.S. Plates/Joists/CTD bars/TMT bars and cement under
capital goods category which were used for construction of foundation and structures of
capital goods such as pre-heater towers, raw mill house, storage tanks, clinker silo,
factory buildings, roads/drains and non plant buildings - Department however took the view
that such foundations and structures are not capital goods - Denial of credit on impugned
items by adjudicating authority has been done primarily relying on ratio of�Vandana Global
Limited�2010-TIOL-624-CESTAT-DEL-LB�and�Board circular 276/110/96-3TRU -�Said legal position
by adjudicating authority has been over-taken by subsequent judgments of higher forums in
cases of�Mundra Ports & SEZ Ltd�2015-TIOL-1288-HC-AHM-ST�and�India Cements
Limited�2014-TIOL-1185-HC-MAD-CX. |
| 30 |
BMM Ispat |
2017-TIOL-3949-CESTAT |
"Distributed Control System (DCS) and Accessories", imported by assessee and
declared to be falling under tariff item 85423100, under claim of�Notfn 24/2005 -�However,
customs authorities views that said goods correctly fall under tariff item 90328990 and are
chargeable to duty -�Challenge is on imposition of penalty only - Admittedly, assessee made
the correct declaration as regards to description of goods - According to assessee,
classification under Chapter 85 was adopted by them by picking up classification given by
the foreign supplier - It is well settled law that claim of notfn benefit cannot be
considered to be malafide in as much as entire facts stand disclosed by importer - Supreme
Court in case of�Northern Plastic Ltd.�2002-TIOL-1889-SC-CUS�has observed that description
of goods given correctly and fully in bill of entry, claim to some exemption, whether
admissible or not, is a matter of belief of assessee and does not amount to mis-declaration
- Even the Tribunal in case of�Reliance Communications Ltd.�2012-TIOL-926-CESTAT-MUM,�has
held that classification sought by importer after complete and correct declaration, even if
not accepted by Department, cannot amount to deliberate avoidance of duty - If such
classification adopted by importer is not correct, it was duty of assessing officer to
examine goods and to classify the same correctly - As law on issue is well settled, no
reasons found to impose penalty on assessee, in as much as there is no challenge to
confirmation of duty and interest, same is upheld and penalty is set aside: CESTAT |
| 31 |
Jaibhavani Steel Enterprises |
2017-TIOL-3742-CESTAT |
Clandestine Demand upheld |
| 32 |
Thriveni Earthmovers |
2017-TIOL-3709-CESTAT |
ST - the assessee provides services of loading & unloading for trasportation
of lime stone, screen earth & rejected stones etc., at the mines owned by other entities,
and also at their own mines - The revenue sought to tax such service under the heading
'Cargo Handling Service' and imposed duty demand with interest & penalty - The Commr.(A) set
aside such demands and allowed the assessee's appeal - Held - Considering the judgments the
assessee's own case,�Commissioner Vs. Thriveni Earthmovers�and in�N.Rajasekhar & Co,�the
order of the Commr.(A) was upheld: CESTAT (Para 1,5,6) |
| 33 |
Arulagam Pharmaceuticals |
2017 (356) ELT 132 Tri |
SSI - Brand Name - Assignment |
| 34 |
Premium Poly Alloys |
2017-TIOL-4250 |
CX
-�Assessee engaged in manufacture of specific plastic compounds known as�"fillers"and
supplying their final product to various Units including one M/s. KPI - The said KPI was
engaged in manufacture of plastic sheets out of said�"fillers" -�Inasmuch as, entries made
in ledger recovered from KPI's premises did not match with entries made by assessee in
their statutory records showing clearance of "fillers", Revenue was of the view that said
goods stand cleared clandestinely by assessee -�Revenue's case is solely based upon ledger
recovered from KPI's premises - However, said ledger is captioned as�"Premium Poly Links",
whereas, assessee's name is�"Premium Poly Alloys"�- Not only that, entries in said ledger
describes the goods as C40, T10, C Bages or T Bags, whereas, the goods are being described
by assessee in various invoices as�"Premium Fab 715", "PF 705", "PS 503"�- Further, during
visit of officers in assessee's factory neither any unaccounted raw material nor final
product was found nor any incriminating documents recovered -�Revenue has not been able to
establish clandestine removal by making further investigation and producing evidences on
record as regards the purchase of raw material and actual manufacture and clearances of
their final product -�In case of�Charminar Bottling Co (P) Ltd.�2005-TIOL-1108-CESTAT-DEL,
Tribunal held that the allegation of clandestine removal based on third party documents
without corroborative evidences is not sustainable - The amount of raw material required
by assessee for manufacture of allegedly clandestinely removed�"fillers"�is to the extent
of 200 tonnes - There is nothing on record to show as to how such a huge quantity of raw
materials was received and used in the production of alleged clandestinely removed final
product - In view of the settled position of law as recorded in decisions mentioned,
confirmation of demand of duty on company cannot be upheld - For the same reasons, penalty
imposed upon assessee as well as upon the General Manager is required to be set aside:
CESTAT |
| 35 |
Thriven Steels |
2017-TIOL-4239-CESTA |
Cus -�Assessee engaged in manufacture of MS Ingots - They imported "Non Alloy
Steel melting scrap" under 66 Bills of entry & claimed Cenvat credit on additional customs
duty paid on such import - The imported goods were cleared upon availment of basic customs
duty concession under Notfns. 20/99, 16/2000 & 17/01, and were transported to the assessee's
factory - Before such transport, the goods were briefly stored in a godown owned by another
person - Such goods were then used for manufacture of final products, upon which end use
certificates were issued by the revenue - Such certificates enabled the assessee to avail
credit on the additional customs duty paid on import - The revenue alleged that no
transportation of goods happened and that the goods were not used in manufacture of final
products & were diverted elsewhere - The revenue sought to recover the Basic Customs Duty,
whose concession the assessee had availed under the aforementioned Notfns - Duty demand with
interest & penalty were imposed - Assessee relied on the end-use certificate issued by the
Deputy Commr. of Customs to claim that such certificate had been issued after proper
verification of documents and records, and that such certificate testified that the imported
goods were used in the manufacture of final products - In the Central Excise Act and Customs
Act, the adjudications are done under distinct provisions of different statutes under
different premises of law in order to effectuate provisions of that Act only - Besides, the
standard of burden of proof is different in the case of cenvat credit and in the case of
availing exemption Notfn. - It is settled law that the conditions for availing the exemption
Notfn. have to be strictly interpreted - Further, acceptance of certificate given by Deputy
Commissioner in the import of pipes cannot validate the end-use certificate for other
imports - The circumstances of the issuance of this certificate being abnormal and contrary
to established procedures, with no physical examination of goods, raises serious question
about its admissibility - Hence, the contention that the certificate should be accepted is
untenable, given the dubious methodology of issuance of certificate - Hence, the end-use
certificate issued by the Dy. Commr. is an inadmissible piece of evidence - Moreover, the
assessee claimed that the revenue presumed that the goods were not transported to the
factory of the assessee & instead were diverted elsewhere - The assessee claimed that the
goods were transported through alternate routes, which were economic for them - However, the
assessee failed to substantiate transport of the imported scrap from the godown - Transport
from those premises to the factory of the assessee was not proved or documented - Since it
was a question of availment of exemption Notfn., burden of proof was squarely on the
assessee, which was not discharged - Although the assessee pointed out alternate routes
where commercial tax may not be payable, the assessee failed to produce any document to show
as to how such a massive quantity of 15000 tons was transported from the godown to their
factory - Absence of corroborative evidence of transport of goods from the said godown to
the assessee's factory strongly goes against the truthfulness of their claim of transporting
the goods via alternate routes or in any manner - The order of the Original authority
warrants no interference: CESTAT |
| 36 |
BSNL |
2017(7) GSTL 129 Mad HC |
Capital goods used in other SSAs, credit allowed |
| 37 |
DRS Logistics |
2017 (7) GSTL 352 Del |
GTA Service |
| 38 |
Greaves Cotton |
2017 (7) GSTL 350 Chennai |
|
| 39 |
APSRTC |
2017-TIOL-4524 Tri Hyd |
ST -�Demand of differential tax has been made against assessee under�"Tour
Operator Services" -�Assessee engaged in providing various chartered/contract carriage/tour
services apart from operating stage carriage busses - It emerged that assessee had entered
into contract with M/s E.C.I.L for hiring busses from various depots of assessee on hire
charges - It also emerged that assessee have provided busses on hire to other State/Central
Public Sector units and private entities for transporting their employees from their work
place to specific destinations and vice versa on payment of hire charges -�Section 72 of
Motor Vehicles Act, 1988 covers the grant of stage carriage permits - Sections 73 & 74
govern the procedure for obtaining a contract carriage permit, section 88 (8) provisions for
grant of special permit to any public service vehicle including a stage carriage vehicle for
carrying passenger or passengers for hire or reward under a contract, express or implied,
for the use of the vehicle as a whole, without stopping to pick up or set down along the
line of route passengers not included in the contract -�Discernibly, for a vehicle
having�"stage carriage"�permit like busses owned by assessee, to operate for private
persons/marriage parties under a contract, such basis will then necessarily be required to
obtain a contract carriage permit or a special permit as aforesaid - Once such a contract
carriage permit or a special permit is obtained, the bus will then no longer has the
character of a stage carriage but will instead acquire colour of a contract carriage/special
permit garage - Busses of assessee having become "contract carriage or a special permit
garage' even if for temporary permit to provide them on hire for marriages/pilgrimage, this
cannot be considered as a stage carriage for that short period and hence cannot then claim
to be recovered under the negative list of services by a stage carriage or for that matter
covered by the exemptions, provided under section No. 23 of�notification 25/2012�since that
exemption will not cover contract carriage on hire - In the event, demand of service tax for
the period from 01.07.2012 onwards is stated by law and impugned orders are sustained to
that extent along with demand of interest liability thereon - In consequence, appeals will
also not succeed to the extent of tax liability demanded from 1.7.2012 onwards - However,
considering that the matter is one of the unproductive and that the question of taxability
on the services was mired in confusion and litigation, the penalties imposed in all these
cases are set aside |
| 40 |
Signsites |
2017-TIOL_4516 Tri Chen |
ST -�Assessee engaged in advertising agency business of designing and setting
up of advertisement hoardings - In year 2005, there was lot of restrictions as well as
erection of holders in public places which caused severe loss of business to assessee by
which they were not in a position to deposit ST collected from their customers within time -
Even without any departmental intervention, assessee was paying service tax, albeit
belatedly - However, a SCN was issued - Assessee is not contesting the liability to pay
service tax as well as interest thereon - However, assessee has adverted to SCN and
submitted that for some period, there is no proposal to impose penalty under section 78 but
authorities below have imposed the same - It is seen that assessee is making payment of
service tax intermittently and it is also pleaded that they were undergoing much financial
difficulties due to loss of business - Taking into consideration the submissions made on
behalf of assessee, there is no evidence to establish that there was any suppression of
facts and therefore penalties imposed under sections 76 and 78 are unwarranted and same is
set aside: CESTAT |
|
 |
Reported Cases 2016
|
|
S.No.
|
Name of the part
|
TIOL
|
Issue in brief
|
| 1 |
Deeksha Travels |
2016-TIOL-8 CESTAT |
Service Tax - Penalty - Appellant provides Tour Operators Services - On
audit, it was found that appellant has not paid their service tax liability for demand
period - Appellant admitted liability and paid a part of the duty demand along with interest
before issuance of SCN and the balance after issuing SCN - Penalties were imposed under
Section 76 and 77 - Appellant submits that the payments from their client were not regular
and the amounts received were used for their business purposes due to financial difficulties
but they had no malafide intention to evade tax as they were filing Returns duly reflecting
the service tax required to be deposited -Appellant provided services leviable to service
tax during the relevant period and also received the service tax amounts from service
receiver but the same was not deposited with Revenue - Facts came into light on conducting
audit of the records -Appellant's contention that interest should be treated as penal in
nature cannot be accepted, as the same would render provisions of Section 76 as futile and
otiose - In view of the clear contravention of law, no infirmity in imposition of penalty
and appeal is rejected - Finance Act, 1994. |
| 2 |
Piramal Enterprises |
2016-TIOL-215 |
Payment of Special Additional Duty by 100% EOU - Inter-unit stock transfers
of final product - Held, demand of SAD is unsustainable even though no VAT or Sales Tax was
paid on such transactions - Impugned demand set aside - Appeal allowed with consequential
relief |
| 3 |
Top Victory Investments Pvt Ltd |
2016-TIOL-215 |
Cus�-�Whether assessment of imported monitors LCD/LED is under Section 3(2)
(b) r/w Section 4A of CEA, 1944 under MRP basis or under normal transaction value for
purpose of CVD�-�Assessee imports LCD/LED Monitors and Television sets of various sizes
falling under CTH 85285100 of CTA, 1975 and claimed full exemption from BCD under Notfn
24/2004-Cus and indicated MRP/RSP on packages - Bill of Entries were assessed for CVD @ 12%
on MRP based assessment claiming 35% abatement in terms of Section 3(2) of CTA r/w Section
4A, and notfn issued there under - They have been regularly importing said items prior to
2003 and clearing goods on payment of CVD as per transaction value - From 24.12.2008 to
10.05.2012, department continued assessment and same was accepted under MRP and CVD was paid
and the goods were cleared without any dispute on MRP assessment - Customs raised the
objection on MRP assessment only from 10.05.2012, when abatement percentage was increased
from 20% to 35% on said goods -�Held:�Once the goods are covered under LMA, as a packaged
commodity, they are required to be cleared on retail sale price on packages as per
provisions of Section 4A, assessment shall be on MRP basis - Monitors with brand name meant
for sale to brand owners are eligible for assessment under Section 3 (2) (b) of Customs Act
r/w Section 4A and notfn issued there under MRP/RSP based assessment and eligible for
abatement as per notfn - Accordingly, impugned orders demanding differential duty is liable
to be set aside: CESTAT |
| 4 |
Magnum Clothing Pvt. Ltd |
2016-TIOL-345 |
Service Tax - Export - Refund Claim - Appellant paid service tax for services
availed from commission agents engaged abroad for marketing of their goods abroad -
Subsequently, after knowing that they had not availed exemption granted by Notification
No.18/2009, dt. 7.7.2009, considered the tax as paid erroneously and filed for refund under
Section 11B - Revenue rejected the claim as barred by law on the ground that appellant did
not follow the route of the notification - Basic principle of taxation is that taxes are not
exported but goods are exported - If taxes involved in export due to reverse charge
mechanism are not refunded, that shall form part of the cost of exported goods, which is
prohibited since taxes are not expected to be exported - Hence, appellant being an exporter,
it's claim of erroneous payment of tax made, needs to be considered under section 11B since
provisions of Central Excise law are adopted by section 83 of the Finance Act, 1944 to give
full effect and play to the scheme of taxation under Finance Act - Appellate authority
should have examined appellant's claim on the basis of their pleadings and law relating to
refund under Section 11B - Moreover, revenue's reliance on the precedent which held that
when the notification does not allow the benefit thereof to a claimant, no refund is
permissible is not relevant since in that case the claim relates to the period prior to the
notification whereas in the case, it is post the notification - Once the period of claim
relates to post the notification period, appellant deserves consideration - As appellant's
claim goes to the root of section 11B which deserves consideration, matter needs
re-examination - Matter remanded to adjudicating authority to re-examine the entire case in
the light of the precedent and appellant's pleadings for refund - Appeal disposed of -
Central Excise Act, 1944. (Para 4, 5, 6)� - Appeal disposed of : CHENNAI CESTAT |
| 5 |
Vishnu Paper Product |
2016-TIOL-273 |
Tribunal had decided the matter, exparte - although the order of the Tribunal
had been passed, on merits, Court is of the considered view that a reasonable opportunity
ought to have been given to the appellant assessee to put forth its contentions before the
Tribunal - Order set aside and matter remitted to the Tribunal for passing appropriate
order, on merits and in accordance with law, as expeditiously as possible, after permitting
the appellant assessee as well as the respondent department to raise all the grounds
available to them - Appeal disposed of: High Court |
| 6 |
Supreme Petrochem |
2016-TIOL-514 |
Central Excise - Amalgamation/Merger of companies into one unit - Transfer of
unutilized CENVAT credit post amalgamation - Admissible - Amalgamation is not mere transfer
of capital goods from one unit to another - Post amalgamation, new entity held is entitled
to Cenvat credit which was lying unutilized in the accounts of the amalgamating company - No
infirmity in the order of Appellate Commissioner allowing transfer of unutilized credit at
the time of amalgamation - Revenue appeal hence is without merit hence is rejected |
| 7 |
Classic Builders |
2016-TUOL-465 HC |
Under Rule 41, the CESTAT has wide powers to prevent abuse of its process and
to secure the ends of justice - Since right to appeal is a statutory right and pre-deposit
requirement under Section 129E of the said Act are only in nature of procedural
requirements, but for delay in meeting the pre-deposit requirement, the primary right of
appeal cannot be extinguished - Orders of Tribunal are set aside and the appeal is restored
on the file of Tribunal. |
| 8 |
Tab India Granites |
2016-TIOL-765 |
The period involved is January to March, 2010 and the appellants have filed
the refund claim on 07.01.2011, which was returned in order to comply with the statutory
requirement and the same was resubmitted on 02.05.2011 - finally on pointing out the
defects, the same was rectified and the original documents were submitted on 04.11.2011 -
The Tribunal in the case of Rubberwood India (P) Ltd. Vs. CC, Cochin has held that the date
of limitation should be taken from the original date of filing of refund claim - Also, there
has been an amendment under Section 11 B w.e.f. 26.05.1995, which stipulates that the date
of filing the refund claim is the date on which claim was filed initially - since the claim
has to be treated as having been filed on 07.01.2011 and, therefore, within time, the
impugned order is set aside, and the matter is remanded to the original authority to decide
the case on merits by giving opportunity of hearing to the appellants, within three months
from the date of receipt of this order |
| 9 |
Yazaki |
2016-TIOL-858 |
Following the judgment of the Madras High Court in the case
of Commissioner of Central Excise Chennai-III Vs Visteon Powertrain Control Systems (P)
Ltd., an obligation meant to be discharged under a central statute should not be defeated by
another statute when services is to be provided in accordance with the provisions of labour
welfare legislation - Therefore, the appellant should not be denied Cenvat credit of
catering services provided to workers - However, the recovery if any from the workers should
be considered for proportionate allowance of the credit. |
| 10 |
Zibal Exim |
2016-TIOL-904 |
COD |
| 11 |
Pawan Construction |
2016-TIOL-928 |
ST - Whether cost of free supply of materials is includible
in gross value while rendering 'Commercial or Industrial Construction Services'. Held:
Larger Bench of Tribunal in Bhayana Builders (P) Ltd. -�2013-TIOL-1331-CESTAT-DEL-LB�in
paragraph no. 8 considered the scope of pre and post amended provisions of Section 67 of the
Finance Act, 1994; and more specifically the substitution of section w.e.f. 18-04-2006 and
came to a conclusion that value of free supply need not be included for discharge of service
tax - in paragraph No. 10, the Larger Bench in sub-para no. (vi) considered the scope of
Notification No. 1/2006-ST also - above said ratio was followed by the Principal Bench in
the case of Hindustan Steel Works Construction Ltd. -�2014-TIOL-946-CESTAT-DEL�and held
value of supply of free material should not be included for arriving at gross value for
charging service tax liability - in view of authoritative judicial pronouncements, impugned
order is unsustainable and, therefore, set aside - Appeal allowed: CESTAT |
| 12 |
LCS (Bala Basker) |
2016-TIOL-824-Mad HC |
Maintainability - The writ petition is not maintainable, in as much as the
law makes the service provider liable to pay service tax. It is always open to the service
providers either to pass on the burden to the recipient of the services or not to pass it
on. Under Clause 23 of the agreement for development, the petitioner and his siblings, who
are the service recipients, agreed to take the burden to the extent they are liable.
Therefore, the circulars, cannot be challenged by the petitioner. (para 7)
Locus
standi - The contention that the person, to whom the burden of tax is ultimately passed on,
is entitled to challenge a levy, if accepted, would lead to disastrous consequences. Any
increase in the incidence of sales tax affects all consumers of all products. Millions of
consumers are entitled to come and challenge such levies, if such a contention is accepted.
Therefore, the petitioner has no locus standi to challenge the above circulars. (para
14)
Exchange of land with constructed area amounts to service by builder - It is not
an easy proposition that it was a transfer of immovable property by way of sale or exchange
- The agreement gave rise to a bouquet of rights for the builder. One was to put up a
construction of an area, a part of which could be sold by them to third parties. They could
be sold not only as such, but also along with the undivided share of land. Those parties had
certainly availed the services of the builder as a service provider. The petitioner did not
stand on a different footing than those persons. Therefore, the challenge of the petitioner
to the circular, apart from the question of locus standi, does not merit acceptance. (para
23 & 26) |
| 13 |
Lifecare Medical Systems |
2015-TIOL_1156 |
ST - Appellant is engaged in the business of promoting, marketing,
canvassing, Maharashtra, Madhya Pradesh and Goa for the medical equipment manufactured by
M/s Viasys International Corporation; and also carries out after sales services like
installation and commissioning, customer care services, warranty services during the
warranty period, to the customers located in India in relation the products of Viasys -
Commission received held liable to Service Tax under BAS on reverse charge basis by
adjudicating authority - appeal to CESTAT. Held: Issue is no more res integra - law is
settled by the Bombay High Court in the case of SGS India Ltd. -�2014-TIOL-580-HC-MUM-ST�and
identical view is taken in the majority decision in case of Microsoft Corporation (I) (P)
Ltd. -�2014-TIOL-1964-CESTAT-DELwhere it is held that such an activity is not taxable under
"Business Auxiliary Services" - there is also no dispute that the appellant has received
commission in convertible foreign exchange for the period of tax liability from 01.07.2003
to 31.03.2008 - services rendered by the appellant is to an overseas manufacturer on whom
Service Tax liability does not arise - impugned order is set aside and appeal is allowed:
CESTAT |
| 14 |
Binjusaria Ispat |
2016-TIOL-1058 |
Central Excise - CENVAT Credit - MS Items - Credit availed on MS items such
as plates, beams, channels, etc., as capital goods was denied, for the period June 2003 to
December 2006 - Appellant has produced Chartered Engineer's certificate, photographs and
other documents to show the use of MS items for installation and erection of plant and
machinery/spares and components of capital goods - Issue is settled by the p recedents which
held that the credit is admissible on MS items used for supporting structure of capital
goods/components/spares - High Court in the case of'Mundra Sports & SEZ Ltd.'�observed that
the 'Tribunal while deciding�'Vandana Global Ltd.'�case, has not mentioned in the judgment
as to what is the aid resorted to by the Tribunal to hold that the amendment to Rule 2(k) to
apply retrospectively' and observed that the amendment introduced w.e.f 7.7.2009 is to apply
prospectively only - In view of the precedents, denial of credit is not sustainable and is
set aside - Appeal allowed. |
| 15 |
Devasri Ispat |
2016-TIOL-1066 |
Central Excise - Refund Claim - CENVAT Credit - MS Items - Appellant was
issued letter from Range officer directing them to reverse the credit as it was wrongly
availed on MS items used in structural items as capital goods - Appellant reversed the
credit under protest and filed for refund of it which was rejected on the ground that the
credit was inadmissible - From the records, it is seen that the Department has not issued
any SCN proposing to deny the credit taken on MS items or alleging wrong availment of
credit, except the letter issued by Range Officer stating that the credit is not admissible
- Appellant reversed the credit pursuant to the letter, under protest and thereafter filed
refund claim - A SCN was then issued proposing to reject the refund - It is seen that
appellant did not file any reply to the SCN, explaining the use of the MS items -
Adjudicating authority is seen to have passed the impugned order that the credit is not
admissible, basing on the available records - In such a situation, it is a fit case for
remand to give a chance to appellant to file reply and substantiate their claim that the
credit was rightly availed on MS items - Hence, matter remanded to adjudication authority
for�de novo�adjudication in the light of the precedents and to decide the issue of
admissibility of credit on impugned MS items while considering the issue of refund - Appeal
disposed of. |
| 16 |
Sujana |
2016-TIOL-881 |
Central Excise - Penalty under Rule 209A of the Central Excise Rules, 1944 -
Sustainability - Appellant was found to be an importer and not engaged in manufacturing
activity and goods in question were not found to be excisable goods - Further, appellant was
not alleged to have defaulted in payment of customs duty or evaded payment of excise duty or
alleged to have cleared the goods out of the port clandestinely - Question of entertaining
belief that goods in hand are liable for confiscation does not arise - Mandatory
requirements to invoke penalty under Rule 209A not satisfied - Order imposing penalty being
unsustainable is hence set aside |
| 17 |
Icomm |
2016-TIOL-1103 |
Central Excise - Benefit of Exemption - Limitation - Appellant-manufacturer
of FHTDMA equipments cleared them to Bharat Electronics Ltd., without payment of duty under
the notification which grants exemption to all the goods supplied to 'SAMYUKTA' programme
under Defence Ministry - Exemption granted on 16.3.1995 continued upto 1.6.2006 by
periodical extensions and it was further extended on 21.8.2006 upto 1.12.2007 - During the
time gap between 2.6.2006 to 20.8.2006, there was no effective continuation of the exemption
- Hence, Revenue demanded duty on the clearances made during such period - Appellant
contends that the exemption to the ongoing programme should be available all along and also
the demand raised on 1.5.2009 for the period 2.6.2006 to 20.8.2006 is time barred -
Admittedly, there is a gap period during which there is no specific exemption for the
impugned goods - However, facts show that it is not a simple case of non-availability of any
exemption for the past clearance prior to the date of notification - Hence, from the facts
though it is seen that appellant has a strong case on merits as regards availability of
exemption without any interruption, case can be disposed of on the question of limitation
alone - Appellant entered all the clearances in their records and filed regular returns also
- Impugned order did not analyze the reason for sustaining the demand for extended period -
If at all there is a mistake on claiming exemption during gap period, it is on both the
sides, i.e., Revenue and appellant - There is no unearthing of suppressed facts by Revenue
or positive act with intent to evade tax by appellant - Given the factual matrix of the
case, there is no reason to justify invocation of extended period on the ground of
suppression or fraud - Hence, impugned order of duty demand is not sustainable and set aside
- Appeal allowed - Notification No. 64/95-CE dt. 16.3.1995 extended vide Notification No.
40/2006-CE dt. 21.8.2006. [paras 1, 2, 3, 5, 6, 7] |
| 18 |
VLC SKC JV |
2016-TIOL-1134 |
Service Tax - Ex-parte order - Appellant submits that the impugned order was
passed as they did not make any representation and failed to put up their case with
supporting documents at the time of original proceedings due to certain internal
administrative difficulties - It is seen that the impugned order was passed�ex parte�after
providing sufficient and adequate opportunities to appellant which they failed to avail -
However, considering documentary evidences and submissions on the issues of tax liability,
denial of credit and interest on delayed payments, due justice can be done only on proper
perusal of the issues after giving a fair chance for submission of the same - However, since
appellant have failed without adequate reasons to defend their case and as they have filed
appeal with all documents in their support for the first time before Tribunal , they should
be put to costs and are directed to pay Rs. 2 lakhs towards costs - Though appellant made
various submissions on their liabilities, interest liability as confirmed in impugned
order,�prima facie,�will stand - Hence, appellant is directed to pay the interest amount of
Rs. 16.52 lakhs along with the costs imposed and to submit the evidence before original
authority - Hence, impugned order set aside and matter remanded to original authority to
examine all the issues a fresh - Appeal disposed of |
| 19 |
Supreme Petrochem |
2016-TIOL-1243 |
It is elementary principle of jurisprudence that what that was entitlement
of the predecessor shall be entitlement of the successor once that is recognized by law and
succession is one such mode in law - Therefore, the merging concern's right became right of
the merged company - This principle having been recognized by Rule 10 (1) of Cenvat Credit
Rules, 2004, the appellant cannot be denied the accumulated credit of the predecessor
merging concern |
| 20 |
Celebrity Fashions |
2016-TIOL-1282 |
Central Excise - Refund - Public authority is duty bound to discharge public
duty without laxity and serve public interest causing enquiry from third party to validate
factual situation - Denial of refund sans causing enquiry and examination of material
evidence on record, wholly unjustified - Non examination of whether or not the Customs duty
part of the invoices should be granted as duty draw-back to the appellant, constitutes
non-application of mind - On facts, the Adjudicating Authority is directed to pass
appropriate order only upon causing enquiry in accordance with law |
| 21 |
Iswarya Publicities |
2016-TIOL-1409 |
Service Tax- appellant registered with ST department under the category of
"Advertisement Agency Service"- initiation of proceedings for non-payment of ST- appellant
claims to have paid the tax prior to issuance of SCN- which was verified and the liability
was discharged by the appellant-appeal against the imposition of penalty under section 78-
the proposed demands in the SCN were duly paid by the appellant and the same have been
appropriated by the department- revenue contended that under the self-assessment scheme, it
is the onus of the tax payer to discharge the liability- if the tax payable stands paid, no
notice shall be served in respect of the amount so paid- Section 78 can be imposed only when
there is fraud or collusion or willful misstatement or suppression of facts. - Appeal is
allowed by setting aside penalty under Sec 78 |
| 22 |
Powerlink Systems |
2016-TIOL-1515 CESTAT |
It is accepted by the lower authorities that the service in question perse is
eligible for credit - However, the refund claimed has been denied on certain procedural
lapses - The first objection is that the invoice submitted by the service provider does not
indicate all particulars; which could have been avoided if the lower authority had called
for the details of the purchase order and other correspondence and the terms of
understanding between the appellants and service providers - Appellants have consistently
taken a stand that the sub agents were engaged by them for procuring orders relating to
export of services provided by the appellants - Once the service in question had been held
to be eligible for the credit, the lower authorities should have verified the nature of
payment effected on such services and the appointment of said sub agents who had provided
such service - the rejection of invoices on the ground of lack of particulars is not correct
- the refund had been rejected on the ground that there was no agreement between the service
providers and the appellants for providing the service; that the copy of the agreement was
given only after issue of Show cause notice - This ground for rejection is also not tenable
as the genuineness of the documents has not been disputed - the claim is rejected for want
of methodology for the quantification of the commission paid - so long as the commission
paid is not disputed, which can even be verified from the bank statements or certificates
from the bank, the rejection of claim for want of quantification of the commission paid is
not legally tenable - the services exported are treated as 'exempted services' for which no
credit is admissible hence on this ground claim is rejected inasmuch as under Rule 6 (8) of
the Cenvat credit rules, services provided will not be an exempted service, if conditions
prescribed under Rule 8(a) and (b) are satisfied - The lower authority had not examined
whether these conditions are satisfied - one of the findings of the lower authority is that
bank realisation certificates has not been correlated with the export invoices - in the
event of non-realisation of remittances for export of services which is also governed under
FEMA Act, the lower authority should have examined whether any action was taken under the
FEMA - In absence of any such proceedings, it cannot be presumed that the remittances of
export of services are not correlatable - keeping the view that claiming of refund under
Cenvat Credit Rules is part of the export promotion scheme; without properly examining the
records, such benefits cannot be denied - since the records in question can be properly
verified by the Assistant commissioner, who had passed the order-in-original; the entire
matter is remanded to the original authority for examining the issue afresh after giving
sufficient opportunity for producing all required particulars - The appellants are also
directed to cooperate to produce all the corroborative and correlatable documents to the
original authority and prove their entitlement to the refund |
| 23 |
Soundarya Decorators |
2016-TIOL-1535 Tri |
The appellant assesse has availed Cenvat credit facility on outdoor catering
service provided in the factory premises to its employees and also provided rent a cab
service to its employees/officers of the Company for commuting to and from the factory
premises to attend to their business activities of the company - Revenue viewed that outdoor
catering service and rent a cab service were neither used in or in relation to the
manufacture and clearance of the final products or it could be said to be an activity
relating to the business - The issue has been elaborately considered by the Bombay High
Court in the case of CCE, Nagpur Vs. Ultratech Cement Ltd. and the High Court of Madras in
the case of CCE & ST, LTU, Chennai Vs. M/s. Turbo Energy Ltd. - following the ratio laid
down by the jurisdictional High Court that the cost of input services that forms part of
(finished goods), Cenvat credit availed in respect of outdoor catering service and rent a
cab service is eligible (to credit) as input services.� |
| 24 |
Adhikasri Electromech |
2016-TIOL-1611 |
The contention of the appellant that in various decisions of other
manufacturers to whom notices were issued pursuant to the same investigation, the demand has
been set aside, is material for consideration - penalty imposed against KMC in which, KMC
was a co-noticee, has also been set aside - There is no dispute that KMC was a supplier of
raw material to AEPL - question that remains unexplained by department is that, if such huge
quantity of raw material was not supplied to AEPL and only invoices were issued is to be
believed, then how AEPL was able to manufacture finished products during the relevant period
- revenue contends that AEPL procured the inputs form local market - there is no iota of
evidence to establish this - The whole case is founded on statements and private records of
third party, the manager of KMC, Shri. Prabhakar - The Tribunal in the case of�CCE, Jaipur
Vs Shiv Prasad Mills (P)�-�2015-TIOL-1907-CESTAT-DEL�held that the allegation of duty
evasion cannot be made basing upon private records and statement of a third party unless
cross examination of such person is allowed - It is settled law that confessional statements
have to be supported by independent evidence to establish the charge of clandestine
manufacturer and evasion of duty� |
| 25 |
Manishreni Ferro Alloys |
2016-TIOL-1640-CESTAT HYD |
The department has no case that the MS items/subject items received in the
factory were diverted in any manner - no merit in the contention of the revenue that though
the factum of availment of credit on steel items and welding electrodes was stated to be
reported to the department by way of submission of copies of the invoices along with
returns, the purpose/place of use of the said items was never intimated to the department -
no provision/column in the ER-1 return to mention the purpose/place of use of inputs/capital
goods - When returns are filed, it is for the proper officer to conduct scrutiny of the
returns and inform the assessee about defects - In the present case Revenue has not stated
what prevented the proper officer from conducting scrutiny of returns and issuing show cause
within normal period - The Commissioner (Appeals) has rightly applied the judgment rendered
by Hon'ble Apex Court in the case ofContinental Foundation Jt Venture Vs CCE,
Chandigarh-1�-�2007-TIOL-152-SC-CX�- The Hon'ble court in the said case held that mere
omission to give correct information is not suppression of facts - Revenue has miserably
failed to establish the allegation of suppression of facts - demand raised invoking extended
period is unsustainable. |
| 26 |
Kamini Metalics |
2016-TIOL-1638 CESTAT HYD |
�First issue that poses for consideration is the credit availed on MS items -
the appellant has not used the subject items on which credit was taken for construction of
shed or buildings - verification report establishes that the subject items were used for
manufacture of capital goods - no evidence to establish that appellants used it for civil
construction works - In�India cements Ltd Vs CESTAT, Chennai�2015
-�2015-TIOL-650-HC-MAD-CX�the Hon'ble High Court has categorically held that credit is
admissible on MS items used for fabrication of structural support which are integral part of
the machinery without which they can neither be erected nor be functioned - Hence, the
credit availed on MS items is admissible - with regard to 100% credit, appellant erroneously
availed the credit and on knowledge of the mistake reversed the credit even before
utilization - as the appellants are entitled to avail the credit next year, appropriation of
the 50% credit is not legal and proper - however, they are liable to pay interest until the
date of reversal as they contravened the provisions of Cenvat Credit Rules, 2004 - no ground
for penalty as they are eligible for the credit in subsequent year - the credit availed on
MS items is admissible - impugned order to the extent of disallowing credit on MS items and
ordering recovery of credit, interest and imposing penalty is set aside - appropriation of
excess credit availed on capital goods is set aside - penalty imposed under Rule 15(1) of
Cenvat Credit Rules, 2004 is also set aside - interest liability till the date of reversal
of credit is sustained |
| 27 |
Jeypore Sugar |
2015-TIOL-2723 |
Held - on perusal of records, it was noticed that the relationship between
buyer and seller doesn't appear to have influenced the price because goods were being sold
at the same price when the duty was chargeable at specific rate. - molasses under price and
distribution control with increase in price having been consequence of decontrol - price was
contracted for a longer period of time and hence acceptable in contradistinction with open
market sales - no reason to interfere with impugned order |
| 28 |
Shrinidhi Corporates |
2016-TIOL-1407 Mad HC |
Taking into consideration the fact that the departmental appeal against the
order of the Commissioner (Appeals) has been presented before the CESTAT within the period
of limitation and the appeal having been numbered, the respondents should be given a
reasonable time to move the Petition for Stay before the CESTAT, failing which the goods
should be released in terms of the order passed by the Commissioner (Appeals) - the
respondents are directed to release the goods in question by assessing the Bills of Entries
in terms of the order passed by the Commissioner (Appeals), after a period of thirty days
from the date of receipt of a copy of this order - This time is granted to the Department to
enable them to move the Petition for Stay before the CESTAT, if so advised in the
interregnum - If the respondents are unable to obtain any orders of stay from the CESTAT,
they shall, on expiry of the 30th day from the date of receipt of a copy of this order,
assess bills of entries in terms of the order passed by the Commissioner (Appeals) and
release the goods within a period of two days therefrom |
| 29 |
Jayajothi Cements |
2016-TIOL-1780-CESTAT |
Customs - Import of coal - Steam coal or Bituminous coal - Dispute related to
Bills of entry and not shipping bills - Re-assessment of Bills after lapse of one year - Bar
of limitation - Held, use of the expression shipping bills by the Commissioner cannot be
considered to be a typographical error and the same reflects upon non-application of mind by
the Commissioner - More so, Revenue and not the assessee initiated proceedings for
re-assessment of the Bills of Entry - Bills of Entry if, according to the Revenue, cannot be
re-assessed, then the original assessment which was in favour of the assessee has to be
adopted - Order of the Commissioner confirming for full period, unsustainable. |
| 30 |
Sree Royalaseems Green Energy |
2016-TIOL-1812-CESTAT |
Held - prices are finalized after clearance of transformers - appellant
receives bulk amounts in cheques, not invoice wise from DISCOMS - in case of negative
variation, only issue negative price variation approval letters - didn't examine the
documental evidence provided by the appellants - fit case to be remanded to reexamine if
refund claim is hit by unjust enrichment - appellant directed to produce Chartered
accountant certificate |
| 31 |
Komatsu India Pvt Ltd |
2016-TIOL-1844-CESTAT-Chennai |
Commissioner (Appeals) has clearly observed that demand of interest is
sustainable even though appellant did not utilize the credit and paid the same voluntarily -
This fact would go to show that the appellant has only availed the credit but not utilized
the same - In the ruling relied by the appellant in the case in�T.V.Sundram Iyengar & Sons
Ltd. Vs CCE Madurai�, the Tribunal has held that for non-utilization of cenvat credit there
shall not be levy of interest - In that case, there was a remand as verification with regard
to utilization or non-utilization was involved - However, in the present case, the
Commissioner (Appeals) has clearly held that non-utilization is not a criterion - the
interest is not payable as there has been only an availment and no utilization - It is well
settled that when there has been only availment and no utilization and when there is no loss
to the Revenue, the question of demand of interest does not arise� |
| 32 |
Navadurga Billets |
2016-TIOL-1945 |
Central Excise - CENVAT Credit - MS Items - Credit denied on MS items such as
plates, beams, channels, angles by holding that they do not qualify as capital goods -
Appellant produced Chartered Engineer's certificate in which the quantity wise use and
manner of use was reported and photographs to show the use of MS items in fabrication of
capital goods in plant and machinery and technical and support structures of machinery and
submits that except the one invoice dt. 19.12.2009, all other invoices are prior to 7.7.2009
- In '�India Cements Ltd.',case it was held that MS items used for fabrication of structural
to support various machines were necessary, as without such structural support the machinery
cannot be erected and could not function and that credit is admissible - In�' SLR Steels
Ltd.',�case it was held that credit is admissible on steel and cement items used in
manufacture of capital goods/storage tank - In�'Mundra Sports & SEZ Ltd.'�case it was
clarified that the amendment to Rule 2(k) of CCR 2004 introduced w.e.f 7.7.2009 could have
only prospective application and observed that 'the Tribunal while deciding'Vandana Global
Ltd.'�case, has not mentioned in the judgment as to what is the aid resorted to by the
Tribunal to hold that the amendment to Rule 2(k) has retrospective effect' - Decision relied
upon by Revenue in�' Saraswati Sugar Mills Ltd.'�, case was with regard to erstwhile MODVAT
Rules and is not applicable - Hence, Credit on MS items listed in SCN for the period 2007-08
and 2008-09 is allowed and credit on MS items listed in SCN for the period 2009-10 is
disallowed - Appeal disposed of |
| 33 |
Icomm Tele |
2016=TIOL-1921 |
Held: Excess amount paid is not in dispute - it is to be borne in mind that
the appellant is liable to pay service tax for the transactions on the basis of reverse
charge mechanism - no question of the incidence of duty/tax being passed on to another -
Without an iota of evidence the Commissioner (Appeals) has concluded that the refund is hit
by unjust enrichment merely because the amount was said to be shown as expenditure -
constraints faced in accounting cannot be a ground to assume that the duty has been passed
on to another - appellant also produced Chartered Accountant certificate - refund amount is
not hit by the doctrine of unjust enrichment - order directing to credit the sanctioned
amount to Consumer Welfare Fund is not sustainable - eligible to get the sanctioned amount
-Order set aside to the extent of ordering the sanctioned amount to be credited to Consumer
Welfare Fund� |
| 34 |
Suzlon |
2016-TIOL-2027-CESTAT Bang |
prayer for extension of time to claim refund can be made in refund
application- the notification should be liberally interpreted and condonation of delay
should be considered- as the scheme was new and led to confusion, it is held that the
impugned order is set aside and both appeals are remanded to the adjudicating authority to
decide it on merits- adjudicating authority was asked to decide the matter in 3 months� |
| 35 |
Sunbeam Generators Pvt Ltd |
2016-TIOL-2230-CESTAT |
Central Excise - Cenvat credit of tax paid on Courier services availed for
receiving and sending factory related business documents, amount paid towards Royalty
charges, and ISD invoices held admissible - Credit availed by appellant held is in order -
Consequently, the impugned order, penalty and interest set aside |
| 36 |
Spandana Spoorthy |
2016-TIOL-2284-Hyd |
Service Tax - Appellants are engaged in the Micro Finance Business, extend
loans to people below poverty line and also facilitate insurance to their members who borrow
money from them and acted as Money Remittance Sub-Agent with M/s Weizmann Forex Ltd till
June, 2009- On scrutiny it emerged that they had received income for rendering different
financial services, however, were not paying service tax thereon from the beginning - issued
notice proposing demand of service taxalong with interest and imposition of penalties under
various provisions - Adjudicating authority confirmed demand , equal penalty under Section
76 of the Finance Act, 1994 as also penalties under Sections 77and 78 imposed - amount
deposited before issue of the notice, was appropriated towards the service tax and interest
demands - Cenvat credit cannot be availed by the appellant based on documents prior to the
date of obtaining service tax registration, therefore the amount debited from such wrongly
availed Cenvat credit will have to be paid in cash by them - Hence, the present appeal. |
| 37 |
Komatsu |
2016-TIOL-2360 Mum |
CX - Importing parts of dumpers in bulk and subjecting the same to packing,
repacking in unit containers/packages marked with 'Komatsu' brand and affixed with MRP tags
- as goods are parts of 'automobiles', activity is manufacture u/s 2(f)(iii) of CEA, 1944
and chargeable to duty - cum-duty & CENVAT benefit to be extended; demand not hit by
limitation - matter remanded for re-working demand and consequent imposition of penalty and
interest - reasons given for imposing penalty u/r 26 of CER, 2002 on GM(Finance) are bland &
therefore penalty cannot sustain - Appeals disposed of: CESTAT [para 8, 9, 10, 12, 13] -
Appeals disposed of : MUMBAI CESTAT |
| 38 |
Aqua Designs |
2016-TIOL-2217-HC |
WP Against OIO- Appellate remedy |
| 39 |
Rayalaseem Green Steloy |
2016-TIOL-2532-Hyd |
Central Excise - Cenvat Credit on structural items as capital goods -
Admissibility - MS items like Angles, Channels, Beams, Joists, Flats, H.R. Coils etc used by
appellant in fabrication of structural supports, sheds to capital goods during the relevant
period between September, 2004 and May, 2006 - Whether amendment of Explanation to Rule 2(k)
of CCR 2004 is retrospective in nature - On facts held that appellant availed credit on
bonafide belief that credit is admissible during the period in question in view of the issue
being contentious and several rulings in favor of assessee - Penalty imposed in the
circumstances is unjustified as such is set aside while confirming the demand and interest -
Revenue appeal to the extent is rejected. |
| 40 |
Ranger 1 Security |
2016-TIOL-2503 HC |
Service Tax - Security services - Default in payment of service tax - Exparte
order confirming demand - Validity - Petitioner alleges non-service of show cause notice at
the registered address as such deprived of opportunity to defend - Held, considering the
quantum of demand involved, petitioner directed to pay Rs.5 Lakhs toward disputed tax
liability to treat the proceedings as show cause notice and to allow one more opportunity to
submit reply notice along with supporting documents - Respondent directed to acknowledge
reply and fix date of hearing and adjudicate afresh in accordance with law |
| 41 |
Rajsriya Automotiv Industries |
2016-TIOL-2503 HC |
Supply of drivers - Manpower supply service - Absent required proof that
hiring of drivers operating fork lift in production area has integral connection with the
manufacturing of final products as such qualify as an input, matter remanded as to the
adjudicating authority to determine the admissibility of credit on supply of Drivers Service
|
| 42 |
Rajsriya Automotiv Industries |
2016-TIOL-2503 HC |
Supply of drivers - Manpower supply service - Absent required proof that
hiring of drivers operating fork lift in production area has integral connection with the
manufacturing of final products as such qualify as an input, matter remanded as to the
adjudicating authority to determine the admissibility of credit on supply of Drivers Service
|
| 43 |
Megha Engineering |
2016-TIOL-2862-Hyd |
Central Excise - Cenvat Credit of excise duty paid on pipes used in pipeline
laying for public irrigation works, in view of binding precedent allowed - Impugned order
denying credit set aside. |
| 44 |
SKS Ispat |
2016-TIOL-3304-Del |
Cenvat Credit on outward Transportation |
|
|
Reported Cases 2015
|
|
S.No.
|
Name of the part
|
TIOL
|
Issue in brief
|
| 1 |
Win Enterprises |
2015-TIOL-117 |
Larger Bench of
the Tribunal vide Misc. Order No. 42711/2013 dated 18.11.2013
= 2013-TIOL-1777-CESTAT-MAD-LB held that the cutting of carpet rolls into
smaller sizes and subjecting such cut sizes to a process of stitching linings at the edges
would not amount to manufacture nor result in emergence of a distinct independent
commodity, exigible to duty under provisions of Section 2(f) of the Central Excise Act,
1944 � in view of this ruling, impugned order set aside. |
| 2 |
WTI Industries |
2015-TIOL-129 |
Held: adjudicating authority has partially dropped the demand in respect of
services provided to TCS and also allowed the cum-duty benefit and appropriated service tax
paid under IT services - applicant's main contention is demand made under the category of
(a) Manpower supply services (over Sep 2005-Jan 2010); and (b) Business Support Services
(over Jun 2006-Jul 2008) - applicants are contesting on the limitation issue in respect of
demand under BSS - Even after excluding the demand under extended period, Rs. 36,36,969/-
under BSS falls under normal period - applicant has not made out a strong prima facie case
for waiver of pre-deposit of entire amount of tax along with interest and penalty; and is
directed to pre-deposit a sum of Rs.20,00,000/-(Rupees Twenty lakhs) within a period of
eight weeks |
| 3 |
Pricol |
2015-TIOL-184 / 2015 (38) STR 668 |
No finding on the genuinity of credit availed and distributed by ISD -
substantial law in Rule 2(m) shows appellant eligible for credit on facts, disputed only on
procedural law - procedure is not tyrant of the law but is servant thereof and justice
cannot be denied for reasons attributable to the procedural law, as ruled by the Apex Court
in the Sambhaji Vs. Gangabai case - credit availed on basis of ISD allocation
allowed. |
| 4 |
BMM Ispat |
2015-TIOL-263 |
Cus � Appellant imported coal and classified it under CTH 2701 1920 as
"Steam Coal" while Revenue classified it as "Bituminous Coal" under CTH
2701 1200 - As per note 2 to Chapter 27, coal having a volatile matter exceeding 14% (on
dry, mineral-matter-free basis) and calorific value equal to or greater than 5833 Kcal/Kg
(on moist, mineral-matter-free basis) would qualify as "bituminous coal" - Coal
imported by appellant, prima facie, merits classification under CTH 2701.12 as
"bituminous coal" - Inasmuch as assessments are provisional, question of time bar
would not arise - Demand of duty confirmed in impugned order prima facie appears to be
sustainable - Appellant is directed to make a pre-deposit of Rs.8.5 crore: CESTAT [Para 2,
4.1] - Pre deposit ordered |
| 5 |
Supreme Petrochem |
2015-TIOL-282 |
Central Excise � Stay/Dispensation of pre deposit - CENVAT Credit of Service
Tax paid on outward transport � As seen from the purchase orders and the copies of the
invoices submitted by the appellant along with appeal papers and the contract, it is stated
that "door delivery" to the buyers premises - The appellants have discharged duty
on the total value of the goods inclusive of freight and insurance - Considering the
decisions of High Court and the Tribunal, prima facie the appellants have made out
a case for waiver of pre deposit and stay - Pre deposit waived and recovery is stayed till
the disposal of the appeals |
| 6 |
Bayforge |
2015-TIOL-301 |
Out of the total credit disallowed, major portion relates to insurance
service, which not only relates to the employees but also to the plant, machinery and stocks
- applicant has made out a prima facie case for waiver of pre deposit
except for corporate membership services and photocopier services; and is directed to pre
deposit a sum of Rs.30,000/- within a period of four weeks. |
| 7 |
Sify |
2015-TIOL-525 |
Well settled that amendment to law can be made retrospectively even bringing
an amendment to an Explanation appearing in the statute - However, the nature and character
of the amendment decides whether such amendment is declaratory or clarificatory and
accordingly whether retrospective or not - A declaratory law is always prospective while
clarificatory law is retrospective in nature - also well settled law that statute making
amendment to the effect of declaration of liability is not normally retrospective unless
otherwise such intention expressed by legislature - addition to the Explanation (C) to
sub-section (4) of Section 67 with the proposition "and" throws light on the
nature and character of both the clauses thereof; categorically bringing out that recording
of transactions in two different pattern was enacted from two different dates - Therefore,
the said addition is prospective in nature, applicable from the day that was enacted in the
statute book - Accordingly, there shall be no liability to levy of interest on the gross
value of taxable service relating to the period prior to that date. |
| 8 |
IJM |
2015-TIOL-578 |
Payments made to sub-contractor omitted initially by appellant on wrong
advise - Subsequently filed revised returns showing reversal of entire
Cenvat credit taken as well as including payment made to sub-contractor for the
purpose of service tax -Amount of service tax paid by appellant after abatement towards
liability fulfilled the requirement for payment of service tax |
| 9 |
Lanco Infratech & Others |
2015-TIOL-768 / 2015 (38) STR 709 |
EPC |
| 10 |
HCL |
2015-TIOL-1188 |
In respect of penalty under Section 11AC, issue is stands settled by the
Supreme Court in case of Dharamendra Textile Processors & Ors case and Rajasthan
Spinning & Weaving Mills case � Provisions of Section 11AC are mandatory and there is no
element of discretion � With regard to interest, the provisions of Section 11AB of the
Central Excise Act came into effect from 28.9.1996 by Finance Act, 1996 - There is
no escapement for the assessee from payment of interest under Section 11AB of the Act, even
though the assessee had paid the duty prior to issuance of show cause notice. Accordingly,
the order of the Tribunal deleting the interest levied under Section 11AB of the Central
Excise Act is also liable to be set aside � Revenue appeal is allowed |
| 11 |
S R Enterprises |
2015 (38) STR 835 |
|
| 12 |
Ajuba Solutions Pvt Ltd |
2015-TIOL-973 |
Record does not reveal connection of air travel to the service provided nor
the travel insurance; vehicle insurance does not exhibit whether that is in any way relate
to output service provided - Revenue succeeds on all these three counts - But mediclaim for
employees is integrally connected to secure their services to render provision of output
service; credit admissible - computers imported warranted availing of services of CHA;
computer so imported being used for provision of output service, there should not be denial
of Cenvat credit of service tax paid thereon and credit of service tax paid is allowed
|
| 13 |
Addeco Flexione |
2015-TIOL_1156 |
Service Tax - Tax liability and interest discharged - Delay in payment of
service tax sufficiently explained and nothing to indicate of suppression of facts or fraud
- Show cause notice ought not to have been issued - Appellant made out his case both under
sections 73(3) and 80 for waiver of penalty - Appeal allowed with consequential
relief. |
| 14 |
Sunbeam Generators |
2015-TIOL-1146 |
Central Excise - Exemption - appellants are engaged in the manufacture of
Diesel Generating Sets and removed 2 Nos. of Diesel Engine to HCIL
without payment of Central Excise duty by claiming exemption under Notification
No.108/95-CE dt. 18.8.1995 based on the certificate issued by Rail Vikas Nigam Ltd., Govt of
India - Exemption proposed to be denied in SCN, allowed by adjudicating authority, denied by
Commissioner (Appeals) on Revenue's appeal; and agitated herein. |
|
|
|
Held: Adjudicating authority in his OIO dropped proceedings by relying on
Tribunal's order in the case of Cater Pillar India Ltd. whereas the Commissioner (Appeals)
while allowing Revenue's appeal observed that Revenue has already filed appeal before the
Chennai High Court - Chennai High Court in turn dismissed the Revenue's appeal by upholding
Tribunal's order - Following the HC order, impugned order set aside. |
| 15 |
IMP Power |
2015 (37) STR 603 |
Works Contract Composition - Value of goods supplied under different
contract, not to be added prior to 07.07.09 - Stay granted |
| 16 |
BSES Kerala Power |
2015-TIOL-1523 |
Customs -
Appeal - Maintainability of appeal under Section 130 of the Customs Act, 1962 - The
issue pertains to rate of duty that is payable by the respondent - In view of the Section
130, which exempts appeal to be entertained by the High Court in relation to rate of duty,
the objection as raised by the respondent on maintainability of the appeal is liable to be
sustained in view of the decision of the Supreme Court Navin Chemicals case, which
decision has been followed in Commissioner of Central Excise - Vs - Vadapalani
Press - 2014-TIOL-2208-HC-MAD-CX. (para 6) |
| 17 |
Wisdom Steel |
2015-tiol-1347 |
Central Excise - Non-manufacturing activity - Cenvat Credit availed
on inputs in the process - Held, credit cannot be disallowed when assessee used the same for
payment of duty on its final product, when there was no requirement of payment of duty on
the final product - Question of reversal of Cenvat does not arise - Impugned order requiring
reverse of Cenvat set aside |
| 18 |
Linkwell |
2015-tiol-1373 |
Suo motu credit of CENVAT reversed earlier held does not require
filing of any refund claim - No dispute about the recredit of the said entry - Denial of the
same by the department on technical ground of non-filing of refund application is neither
proper nor justified more so when such recredit was made upon intimation to the
Revenue - It is nothing but correction of entries in the accounts maintained by the assessee
which does not involve any 'lis' and any legal issue requiring the department to interfere -
Impugned order set aside |
| 19 |
Anabond Ltd |
2015-TIOL-1502 |
Appellate order sent by speedpost, but no acknowledgement on record -
appellant acted immediately when recovery proceedings initiated; delay condoned - The
appellate order demonstrates piecemeal reading of the notification, which not
only grants exemption to the service provider providing service to a developer of
SEZ but also service provided to a unit of SEZ for consumption thereof within the said
location - the authorities erroneously constructed the purview of the notification - There
is no finding that the appellant is not a management consultancy service provider to a unit
in SEZ - Appellate authority did not doubt status of the appellant; therefore, denial of the
benefit of the notification to the appellant shall result in mockery when the appellant
satisfies condition of the notification |
| 20 |
A. Thankavel |
2015-TIOL-1440 |
Central Excise - Refund under Rule 5 of CCR 2004 - applicant is a
manufacturer of fabrics clearing goods to the garment manufacturers under Notification No.
43/2001-CE (NT) dated 26.06.2001 as amended - claim rejected in adjudication on the ground
that the appellant has not submitted the proof of documents of exports from the claimant's
premises and also they have not produced sufficient evidence for the same - same upheld by
Commissioner (Appeals) and agitated herein. Held: Both the authorities below have rejected
the refund claim on the grounds that they are not the actual exporters and also they failed
to produce the documents as per the notification No. 11/2002 - no dispute on the fact that
the garment exporters are duly registered with the department and executed necessary bond
and followed the procedure prescribed under the said notification; annexure-I issued by the
garment manufacturer is duly certified by the jurisdictional Asst. Commissioner for
procurement of fabrics from the appellant without payment of excise duty - goods were
supplied to the garment manufacturer under the above notification for use in the manufacture
and export of final products; clearance of the goods under the said notification by the
appellants is ultimately meant for export - for claiming refund under Rule 5 read with
Notification No.11/2002 in para-4 - Condition No.4 of the notification not applicable to the
appellant as they have not exported directly but cleared duty free to the garment
manufacturer by following the conditions under notification No. 43/2001 and also by
following Central Excise (Removal of goods at concessional rate of duty for manufacture of
excisable goods) Rules, 2001 and the garment exporter ultimately exported the goods [Para 5]
|
| Identical issue has been decided in the case of SVM Textile Mills, Jain
Textiles Industries and Pioneer Processing wherein refund was allowed - Tribunal
consistently held that that even though the appellant is not an exporter but the goods were
cleared under the notification No. 43/2001, which is intended for manufacture of garments
and for export out of India, they are eligible for refund under Rule 5 of CCR - Relying on
the same, held that the appellants are eligible for refund of unutilized cenvat credit under
Rule 5 of CCR; impugned order is set aside |
| 21 |
City Travels |
2015-TIOL-1619 |
Notification No. 20/2009-ST dated 07.07.2009 has been given a retrospective
effect from 01.04.2000, vide Sec 75 of the Finance Act, 2011 enacted on 08.04.2011
- appellants had operated contract carriage for carrying passengers from point to point as
is evident from the photocopies of tickets issued by the appellant to the individual
passengers; exemption available; impugned order set aside |
| 22 |
Vardariya Exports |
2015-TIOL-1613 |
It is established fact that self-same licence has been dealt by two
adjudication orders in respect of self-same cause, which is not permissible in law - Tax was
not being multiple taxation law, impugned order passed against first appellant is
unsustainable and set aside - All other appeals having emanated from the cause involved in
appeal nos.C/00211/2008 and that appeal having been decided with the result aforesaid, the
consequence of adjudication in these appeals are also set aside |
| 23 |
Godrej Salarlee |
2015-TIOL-1720 |
The adjudicating authority has denied the credit solely on the ground that
their registered office is not authorized to pay service tax on GTA after taking
centralized registration at Mumbai - he has discussed only on the provisions of centralized
registration and held that service tax paid by the corporate office is not
eligible as cenvat credit availed by the appellant - no dispute on the fact that appellant's
registered office at Mumbai obtained centralized registration for discharge of service tax
on various services including GTA services; and that the registered office is also
registered as ISD - Tribunal in the case of Rohit Surfactants, has discussed the identical
issue and held that the availment of cenvat credit by the respondent was allowed where even
the centralized registration was rejected by the department - Number of decisions pronounced
by judicial forums holding that admissibility of credit cannot be questioned at recipient
end - impugned order set aside |
| 24 |
ISS Catering |
2015-TIOL_1741 |
The adjudicating authority confirmed the service tax
and denied the exemption to supplies made to SEZ on the ground that contracts have not been
renewed for a particular period - Notification No.4/2004 dt. 31.3.2004 and 9/2009 dt.
3.3.2009 clearly exempts from payment of service tax on various services provided to SEZ;
agreements, bills, invoices indicate prima facie appellants are entitled for
exemption under above notification - sale of food in food courts is not covered under
catering services but falls under restaurant services - Regarding demand made on unbilled
revenue, though it was reflected in balance sheet as per accounting standard, the amount was
realised only in the next financial year and during the relevant period the service tax is
to be paid only on realisation of amount - in respect of demands on supplies to SEZ, food
courts and unbilled revenue, appellant prima facie has made out a case for waiver
of predeposit - However, as regards the bad debts, the dispute is for the year 2011-12 and
considering the amount involved, predeposit of Rs.5,00,000/- (Rupees five lakhs only) is
ordered to be paid within 4 weeks. |
| 25 |
Celebrity Fashions |
2015-TIOL_1732 |
Central Excise - Refund - Claim for Rs.42 lakh under Rule 5 of Cenvat Credit
Rules 2004 rejected by original authority - Commissioner (Appeals) held Rs.33 lakh
admissible subject to verification by original authority and Rs.9 lakh inadmissible -
Tribunal remanded the disputed 9 lakh to original authority - Meanwhile original authority
passed de novo order in respect of Rs.33 lakh, granting refund to the extent of Rs.28 lakh
and denying to the extent of Rs.5 lakh; same agitated by Revenue before Commissioner
(Appeals) who allowed the departmental appeal, now agitated herein. |
|
|
|
Held: It is ordered that the matter shall go back to Commissioner (Appeals)
who shall within a month of making the application by assessee fix the time of hearing and
expose the range report to assessee for rebuttal; consider entire facts evidence and law,
and pass appropriate order |
| 26 |
Nutrine Confectioneries |
2015(39) STR 866 |
|
| 27 |
Sundaram Auto Components |
2015-TIOL-2192 HC |
Credit availed on inputs. Cleared to job worker. Who paid duty by including
the value of inputs supplied. Such duty also availed as credit. No double benefit. |
| 28 |
Top Victory |
2015-TIOL-2723 |
Application for Release of goods & Early Hearing - Appellant-importer of
computer monitors prays for release of detained goods by invoking Rule 41 -Appellant duly
complied with amended provisions of Section 129E of the Customs Act concerning the two
appeals by paying statutory pre-deposit which is apparent from Customs receipt showing
pre-deposit for both the appeals - Hence, no valid reason for detaining live consignments of
monitors for realizing arrears of revenue pertaining to the two appeals - Detained goods are
to be released subject to payment of customs duty on them, if not paid already - Disputed
CVD amount involved in all the appeals is more than Rs.1 cr. and has recurring effect as
regular imports are being done, hence EH application is allowed. (paras 2, 4, 5) |
| 29 |
Megha |
2015-TIOL-2767 |
Credit availed on inputs for mfr of pipes and duty paid on pipes. Pipes used
in WCS for which ST paid under composition scheme. In order. |
| 30 |
Nebulae Healthcare |
2015-TIOL-261 SC |
Central Excise - SSI Exemption - Exemption for own goods and duty payment
with CENVAT Credit for branded goods - Permissible: It is not in dispute that the
respondents - assessees fulfill eligibility conditions for availing the benefit of SSI
exemption under the Notifications. However, in addition to manufacturing goods on their own
account, they are also doing job work of manufacturing goods of certain other parties on job
work basis. The goods manufactured for third parties bear the brand name of those third
parties and in respect of such goods manufactured for third parties, the assessees paid the
normal duty of excise but at the same time availed the benefit of MODVAT /CENVAT credit as
well. - para 2 |
|
|
2015 (325) ELT 431 SC |
So far as manufacture of branded goods of third party on job work basis by
the SSI Unit is concerned, they are to be dealt with differently in the sense that they do
not come within the ambit of exemption on which normally excise duty, as per the provisions
of the Act, is payable. As a sequitur, it also follows that once excise duty is paid by the
manufacturer on such branded goods manufactured, the brand name whereof belongs to another
person, on job work basis, the SSI Unit would be entitled to CENVAT/ MODVAT credit on the
inputs which were used for manufacture of such goods as on those inputs also excise duty was
paid. To put it otherwise, these branded goods manufactured by the SSI Units meant for third
parties are regulated by the normal provisions of excise law and will have no bearing or
relevance insofar as availing the benefit of those exemption notifications in respect of its
own products manufactured by the SSI Units is concerned . - para 17 |
|
|
Reported Cases 2014
|
|
S.No.
|
Name of the party
|
ELT
|
STR
|
TIOL
|
Issue in brief
|
| 1 |
Interplex Electronics |
|
2014 (33) STR 56 |
|
Electroplating amounts to mfr - NO ST under BAS; Alternatively
8/2005 exemption is available as goods cleared by EOU are not unconditionally exempt |
| 2 |
Agarvanshi aluminium |
2014 (299) ELT 83 |
|
|
Customs Valuation -Computer print outs - Sec. 138 C - LME Price
cannot be the sole basis. |
| 3 |
G. Ramamurthy Constructions |
|
|
2014-TIOL-6 |
Inclusion of free supply materials value, for the purpose of
abatement - partial pre deposit ordered in view of conflicting decisions |
| 4 |
Win Enterprises |
2014 (299) ELT 206 LB |
|
|
Cutting of carpet rolls into smaller sizes does not amount to
manufacture |
| 5 |
Megha Engineering |
|
|
2014-TIOL-134 |
Service Tax � Stay/Dispensation of pre-deposit � Laying of
pipelines including associated earth work, excavation, supply, laying, joining, testing and
commissioning of water pipelines of various diameters; civil works involving construction of
pumping stations for Government � Prior to 01.06.2007, prima facie, the demand under
Erection, Commissioning Installation is covered by the Tribunal decision in case
of Indian Hume Pipe Co Ltd . For the period subsequent to 01.06.2007, prima facie
case made out against demand under sub-clause (e) of definition of works contract under
Section 65(105)(zzzza) - P rima facie, the services not being commercial or
industrial purposes are excluded from exigibility to service tax under sub-clause (b) of
Section 65(105)(zzzza) of the Finance Act, 1994 � Waiver of pre-deposit granted and all
further proceedings stayed. |
| 6 |
ICMC Corporation Ltd |
|
|
2014-TIOL-121-HC |
CE - CENVAT Credit - Suo motu credit of wrongly
debited amount - No refund Claim required - Credit by assessee upheld: The objection of the
Revenue herein is that even for a reversal of an entry, the assessee should have followed
Section 11B of the Central Excise Act, 1944 lest there would be unjust enrichment.
Consequently, there could be no such thing as suo motu reversal, except through a petition
made under Section 11 B of the Central Excise Act, 1944. The contention of the Revenue that
even in reversal of the entry there is bound to be an unjust enrichment has no substance or
based on any legal principle, since, what is availed off by the assessee is only a credit on
the duty paid on the services rendered. No good ground to hold that it was a case of refund
of duty falling under Section 11B of the Central Excise Act, 1944 and that the assessee was
to comply with the provisions of Section 11B of the Act. The view of the Tribunal that the
assessee should seek reversal in the appropriate judicial forum, if the assessee was
aggrieved by the earlier order herein does not arise at all. Even a cursory reading of the
order of the Tribunal in the earlier round of litigation would show that it accepted the
assessee's case of suo motu reversal of the entry. That being the case, the subsequent
conduct of the assessee for a follow up action on an amount of Rs.3,21,308/-, which is only
an account entry adjustment, technically speaking cannot be taken exception to either by
Tribunal or for that matter by the Revenue. Plea of the assessee that on a technical
adjustment made, the question of unjust enrichment as a concept does not arise at all for
the assessee to go by Section 11B of the Central Excise Act, accepted. Tribunal Order Set
Aside. - Appeal Allowed : MADRAS HIGH COURT |
| 7 |
Sunil Hitech |
|
|
2014-TIOL-160 |
benefit of 12/2013; sub contractors liability to service tax;
issue referred to third member |
| 8 |
Pyro Electric |
2014 (300) ELT 528 |
|
|
|
| 9 |
Hindustan coca Cola |
|
|
2014-TIOL-349-CESTAT, Mad |
Central Excise � Cenvat Credit � credit on the bottles used for
marketing soft drinks which get destroyed in the manufacturing process or transport of the
goods - demands confirmed in adjudication, Commissioner (Appeals) dismissed appeal for
non-compliance with stay order, and agitated herein. Held: Commissioner (Appeals) has asked
for pre-deposit on an issue which is already decided in favour of the assessee. - discretion
vested upon him under section 35F of the Central Excise Act 1944 should have been exercised
more judiciously - there was no justification to call for any pre-deposit for hearing the
appeal before Commissioner (Appeals) - matter is remitted to the Commissioner (Appeals)
after setting aside the impugned order for deciding the matter on merits after complying
with principles of natural justice but without insisting of pre-deposit under section 35F.
|
| 10 |
MMS Steels |
|
|
2014-TIOL-343 |
Held: Based on the opinion of Government Examiner of
Questioned Document, Hyderabad, it can be concluded that the appellant firm received
unaccounted scrap (without documents) from scrap supplier - Chartered Engineer's opinion on
electricity consumption is additional evidence on clandestine manufacture / clearance -
Managing Director and Driver of lorry admitted clearances as noted in the chits - Mahazar
clearly recorded that the day's production was excluded from computation - offence
established - demand of duty along with interest upheld; penalty reduced to the extent of
25% of duty to be deposited within 30 days from the date of receipt of this order, if not so
deposited, penalty equal to duty will be payable - Confiscation of the goods is upheld and
imposition of redemption fine is reduced to Rs.30,000/- - The penalty imposed on the
Managing Director is also upheld - Accordingly, the appeal of Appellant No.1 is disposed of
in the above terms and the appeal of Appellant No.2 is rejected. |
| 11 |
SVM Textile Mills |
|
|
2014-TIOL-357 |
Central Excise - Refund - claims filed under the provisions of
Rule 5 of the Cenvat Credit Rules, 2002 of accumulated credit resulting from export
clearances effected directly / through merchant exporter / through other
manufacturer-exporter - proposals to reject the claims on grounds that appellant failed to
furnish evidence of non-availment of drawback; proof of export; inability to use the credit
for DTA clearances; and method of computation - claims rejected in adjudication primarily on
ground that proof of export not properly correlated; and partially upheld by Commissioner
(Appeals); agitated before Tribunal in the first round of litigation wherein appeal was
allowed - consequent refund claim partially rejected in adjudication and agitated before
Commissioner (Appeals) in the second round of litigation, who rejected the appeal on a fresh
ground that the appellant has claimed refund on excise duty paid in the capacity as a dealer
and not as a manufacturer - also held that Rule 5 inapplicable and hence the appellant was
not eligible for refund; culminating in the instant appeal. |
| 12 |
|
|
|
|
Held: in the first round of litigation, the Commissioner (A) had
allowed refund claims for all goods cleared from the factory for export and rejected the
refund claims only in respect of the goods which were cleared from the premises of the
merchant exporters or other manufacturers - Tribunal allowed appeal without any
qualification, implying that the entire refund which was originally sought merited sanction
- a second round of examination of eligibility for refunds was prima facie unwarranted;
also, the adjudicating authority as well as the first appellate authority have relied on new
grounds for rejecting the refund claims without even putting the appellant on notice - on
the basis of principles of natural justice, the orders in the second round of litigation are
not maintainable. |
|
|
|
|
|
Even on merits, Central Excise Rules, 2002 and Cenvat Credit
Rules, 2002 as amended by the Notification No. 34/03-CE gave an option to the dealer of
textile goods to pay excise duty as if he was a manufacturer and to comply with all the
rules and regulations - it is to be understood that the option is in respect of all matters
related to payment of duty as well as claims of refund consequent to exports - arguments
made by the Revenue inconsistent and not in conformity with the policy of the Government to
allow export of goods without incidence of taxes - appeal allowed with consequential benefit
subject to the condition that the impugned Cenvat credit has not been utilized by the
appellant for payment of duty during the period from date of filing of the claims to the
date of sanction of the refund. |
| 13 |
pricol |
|
2014 (33) STR 529 |
|
Business Exhibition service - Held outside India - stay granted
|
| 14 |
NCC |
|
|
2014-TIOL-498 |
Mobilisation Advance - ST liability - PD ordered |
| 15 |
IVRCL |
|
|
2014-TIOL-507 |
Service Tax - Examination of merits of the appeal not warranted
since appellant has already lost his appeal on the maintainability - Matter remanded back to
Commissioner (Appeals) with directions to dispense with pre-deposit and to hear the matter
on merits, so that appellant would not be deprived of process of justice. |
| 16 |
Indofab |
|
|
2104-TIOL-524 |
Central Excise - Stay/Dispensation of pre-deposit - CENVAT
Credit - Disallowing of Cenvat Credit - Prima facie, Revenue conclusion that the inputs have
not been received in the factory and Appellant have availed Cenvat credit wrongly, is not
acceptable - In absence of other evidences, evidences that non-passing of the vehicles
through the check-posts or the vehicle numbers mentioned in the invoices were incorrect or
appellant could not substantiate input receipts in the factory, cannot be ground to deny the
CENVAT credit, when the basis of sale is ex-delivery - Waiver of pre-deposit and stay of
recovery ordered. |
| 17 |
Sunil Hitech |
|
|
2014-TIOL-541 |
ST - Appellant is liable to pay service tax on the taxable
services rendered by him in the capacity of a sub-contractor - eligibility to the benefits
of Notification No. 12/2003-ST and 1/2006-ST to be examined by adjudicating authority -
Matter remanded: CESTAT by Majority |
|
|
|
|
|
Limitation - Extended period of time is invokable as the
appellant has suppressed facts - Consequently, appellant is also liable to penalties under
sections 76, 77 & 78 of the Finance Act, 1994 - quantum of penalties to be re-determined
after re-computing the service tax demand - Matter remanded back to the adjudicating
authority: CESTAT by Majority |
| 18 |
Cassel Research Laboratories |
|
|
2014-TIOL-544 |
Central Excise - Stay/Dispensation of pre-deposit - CENVAT
Credit - Applicant availed CENVAT Credit and depreciation on same amount - Whether
depreciation claimed wrongly during one year can be rectified after four years by writing
back depreciation claimed and its effect on CENVAT credit taken and utilized is debatable
issue - Applicant prima facie gained pecuniary advantage for some time against Rule 4(4) of
CENVAT Credit Rules - Pre-deposit of Rs.10,00,000/- ordered. |
| 19 |
Spandana Spoorthy |
|
|
2014-TIOL-558 |
Service Tax - Stay/Dispensation of pre-deposit - CENVAT Credit -
Business auxiliary service - Whether CENVAT credit could be availed on input services
received prior to Appellant's Service tax registration, is the issue to be decided in
hearing - Prima facie not persuaded with the petitioner's claim for immunity u/s. 73 (3) of
the Finance Act, 1994 - Pre-deposit of Rs. 2,20,00,000 ordered. |
| 20 |
Pos Hyundai |
|
|
2014-TIOL-484-HC |
Penalty - s.11AC of CEA, 1944 - There is no material placed by
the Department to establish that the conduct of the assessee in paying duty on the basis of
the transaction value of the rusted inputs, though the amendment requiring reversal of
credit came into effect from 01.03.2003, was with an intention to evade payment of duty -
Tribunal perfectly justified in deleting penalty - Revenue appeal dismissed: High Court
[para 10] - Civil Miscellaneous Appeal dismissed : MADRAS HIGH COURT |
| 21 |
CSC Computer Education |
|
|
2014-TIOL-569 |
In the matter of computer education, apparent from the tender
documents that the training is part of the Government's initiative to give computer training
to all school children; prima facie eligible for exemption under Notification No.10/2003-ST;
no pre deposit merited � Regarding Valuation, Tribunal has taken a decision that the
exemption under Notification No.12/03-ST cannot be restricted to sale of standard textbooks
while determining value of Commercial Coaching Services - Revenue has not made out
any case that the value of materials sold is far in excess of the cost of the materials and
the appellant has shifted the value of services to the value of materials - amount already
deposited in sufficient for admission of appeal and there shall be stay on collection of
balance dues arising from the impugned order during the pendency of the appeal. |
| 22 |
Ajuba Solutions Pvt. Ltd. |
|
|
2014-TIOL-835 |
Rule 4 of service tax Rules prescribing registration
inapplicable to person subject to service tax levy but applies to "person
liable for paying the service tax" - Appellant was not liable to pay tax and did not
take registration � No insistence for registration of units exporting their service fully -
prima facie it appears that units fully exporting their services do not take service tax
registration � Appellant's need to take registration arose only to claim refund - Karnataka
High Court and the Tribunal has already given two final orders to the effect that
refund under Rule of CENVAT Credit Rules cannot be denied for input services received prior
to the date of registration � No dispute on receipt of the service, tax payment on such
service and export of output services rendered using input service - No reason to depart
from settled decisions - stay application filed by the Department is rejected. |
| 23 |
IMP Power and Sunil Hitech |
|
|
2014-TIOL-1004 |
CENVAT � appellant manufacturing transformers and clearing the
same on payment of duty by availing CENVAT � prima facie denial of CENVAT credit
on inputs used in the manufacture of transformers on the ground that in respect of the
service provided of erection and commissioning of such transformers, appellant paying ST by
availing the Works Contract Composition Scheme cannot be upheld � Pre-deposit waived &
Stay granted: |
| 24 |
Techno Packers |
|
|
2004-TIOL-1006 |
Held: Question is whether the invoice stand covered under Rule
9(1)(b) - In the instant case, it is seen that Saint Gobain Glass issued the invoice
after initiation of the proceedings; thus applicant has failed to make out a prima facie
case for waiver of entire amount adjudicated - the applicant is directed to predeposit
Rs.2,00,000/-. |
| 25 |
Sonigara Promoters |
|
|
2014-TIOL-969 |
ST � Construction Service - Revenue demanding Service
tax in view of Explanation to sec. 65(105) dated 01.07.2010 � appellant contending that
before the explanation came into force, almost 75% of the construction was complete as per
books of accounts and, therefore, liability is approximately Rs.29 lakhs and they have paid
more than Rs.56 lakhs along with interest of Rs.11 lakhs - explanation is prospective in
nature � merit in contention of applicants hence pre-deposit of remaining dues waived and
stay granted: CESTAT |
| 26 |
SJLT Textiles |
|
|
2014-TIOL-1014 |
Central Excise � CENVAT Credit � Removal of capital goods �
Reversal of duty � Appellant removed capital goods and reversed the entire amount of credit
originally taken � Revenue rejected appellant's refund claim � Reversal of Cenvat credit of
2.5% for each quarter of an year from the date of taking of CENVAT credit on capital goods,
in view of the decisions of Tribunal and High Court � Matter remanded back to adjudicating
authority for fresh consideration � Appeal disposed of. |
27
|
Asia Gas Agencies
|
|
|
2014-TIOL-1031
|
Central Excise � SSI exemption - Respondent engaged in the
manufacture and clearance of Compressed Industrial Oxygen under brand name ‘INOX'
belonging to another person � SSI benefit denied on the ground that goods manufactured were
branded � Duty demands with interest and penalty confirmed in adjudication and agitated
before Commissioner (Appeals) both by Party and department � Commissioner (Appeals) granted
partial relief in Party appeal and dismissed departmental appeal on doctrine of merger �
Both orders agitated by Revenue herein. |
| 28 |
Thayar Tours and Travels |
|
|
2014-TIOL-1024 |
In the present case, Appellant's Advocate received the order
dated 1.8.2012 and also informed the applicant in the month of November, 2012, to file
appeal - In terms of the Nanumal Glass Works ruling, the date of communication of the order
on 01.08.2012 to the Advocate would be treated as the date of receipt of the Order by
Appellant, who failed to take any initiative despite Advocate's advise - gross negligence
and inaction on the part of the applicant for delay in filing the appeal. |
| 29 |
Ooms Polymer |
|
|
2014-TIOL-1310 |
CE - Classification - Polymer Modified Bitumen (PMB) and
Crumbled Rubber Modified Bitumen (CRMB) manufactured from Petroleum Bitumen are correctly
classifiable under CSH 2713 20 00 and not under CSH 2715 00 90 as alleged by Revenue -
Appeals allowed with consequential relief |
| 30 |
Ganges International |
|
|
2014-TIOL-1455 |
Central Excise � Exemption � appellant engaged in manufacture
and clearance of boiler components, free of duty under Notification No.6/2006-CE dated
01/03/06 and its successor Notification No.12/2012-CE dated 17/03/12 to various contractors
executing the power projects � benefit of exemption denied in adjudication on the ground
that in the projects, the requisite quantum of power has been tied up or that the projects
has been awarded through tariff based competitive bidding; that the goods supplied against
international competitive bidding are deemed export in terms of the foreign trade policy and
such deemed export are not eligible for Customs duty exemption under Notification No.
21/2002-CUS (Sl. No. 400); and in some cases, the impugned goods are deployed as structures
for support and not as component parts of capital goods � demands confirmed and agitated
herein. |
| 31 |
Prathiba Constructions |
|
|
2014-TIOL_1520 |
ST � Commercial & Industrial Construction Service � Period
October 2007 to March 2012 � Notfn. 1/2006-ST - Value of materials supplied by customers
does not become consideration in the hands of the appellant in view of LB decision in
Bhayana Builders (P) Ltd. � in this view of the matter demand is not sustainable at all:
CESTAT [para 7]. ST - Works Contract Service � Value of material supplied by customers � as
per notification 23/2009-ST dt. 07.07.2009, value of materials shall not be included where
works has commenced prior to issuance of the notification � out of 10 contracts, in 3
contracts work has commenced before 07.07.2009 where ST on free material supplied is not
leviable � since this matter needs examination/verification at the end of adjudicating
authority, matter remanded: CESTAT [para 8] |
| 32 |
S. Selvam |
|
|
2014-TIOL-1580 |
The service receiver engaged the applicant as sub-contractor
for shifting and staking the coal - In the present case, the applicant firm claimed that
even if it is taxable, it would come within ambit of GTA service, based on factual matrix -
Commissioner (Appeals) observed that demand under GTA service is not acceptable as no
consignment note was issued - Prime facie, the applicant hired JCB and tippers and provided
transport services for transporting the coal within the BHEL unit and there is no material
available that they have supplied manpower - applicant has made out a strong prima facie
case for waiver of pre deposit of entire dues and stay on recovery thereof.
|
|
|
Reported Cases 2013
|
|
S.No.
|
Name of the party
|
ELT
|
STR
|
TIOL
|
Issue in brief
|
| 1 |
Stovecraft |
|
|
2013-TIOL-1006 |
CENVAT Credit - Stay/Dispensation of pre-deposit - Cenvat credit of Service Tax
on amounts paid to oil companies and LPG Distributors for marketing of LPG stoves manufactured
by the appellant - Revenues contention that credit is not admissible to the appellant as it
relates to activities beyond the place of removal - No dispute that credit was taken of
service tax paid by BPCL and IOCL and their distributors on the amounts paid by the appellant
to them in relation to the business of the appellant - Prima facie, appellant was receiving
"commission agents' services" from BPCL and IOCL and their distributors - Board's
Circular No. 943/4/2011-CX dated 29/04/2011 in favour of assessee - Pre-deposit waived and
stay granted. |
| 2 |
Interplex |
|
|
2013-TIOL-683 |
CE - Cenvat Credit - Entitled for credit on services as Commission agent & GTA
services for the relevant period - Following the decision rendered in the case of Metro Shoes
Pvt. Ltd., the Tribunal, in the case of Lanco Industries Ltd. Vs. CCE, Tirupati
-(2009-TIOL-1999-CESTAT-BANG)�held that, as the sales commission had been paid by the assessee
to the commission agent only in respect of the sales made through the commission agent, the
services rendered by the commission agents to the assessee fell within the definition of
"input service" under Rule 2(l) of the CCR 2004. |
| 3 |
Pricol |
|
|
2013-TIOL-429 |
Central Excise - Stay/Dispensation of pre-deposit - CENVAT Credit taken on
“ Input Service Distributor's Invoices” - Credit denied on the ground that the
invoices did not contain requisite particulars such as the identity of the input services and
the identity of the input service providers - Complete waiver granted to the same assessee on
similar issue - As long as it is not the case of the department that the input services were
not used in the manufacture of excisable products by the said units, previous stay order can
be followed as a precedent - Complete waiver granted. |
| 4 |
LCS ROM |
|
|
2013-TIOL-282 |
Service Tax - ROM - ROM on findings on limitation with details of correspondence
made with the department to contend that there was no suppression of facts - They were
disclosing the minimum possible information in their letter and the fact that the applicant
has been replying to letters from the Department cannot be considered as sufficient disclosure
and hence amounts to suppression of material information because the onus for payment of tax
in time is on the applicant - No error in the CESTAT order upholding suppression - ROM
dismissed. |
| 5 |
Cotton City Developers |
|
|
2013-TIOL-427 |
Service Tax - Stay/Dispensation of pre-deposit - Construction of complex service
- Appellants engaged contractor to build complex who paid service tax - Such activity is only
an input service for providing services rendered by the appellants to the individual buyers of
undivided share in land, for constructing the flats - So prima facie liability arises in the
hands of the appellants - Pre-deposit of Rs 50 lakhs ordered. |
| 6 |
Peninsula Designs |
|
|
2013-TIOL-1143 |
Service Tax - Stay/Dispensation of pre-deposit - Commercial or Industrial
Construction service - Thermal and acoustic insulation - Denial of benefit of 67% abatement
under Notification No 1/2006 ST on the ground that it is finishing service - Prima facie case
for waiver of pre-deposit in view of the earlier stay order by the CESTAT in similar case -
Pre-deposit waived. |
| 7 |
Hindustan Coca Cola |
|
|
2013-TIOL-1140 |
Central Excise - Stay/Dispensation of Pre-deposit - Dutiable and Exempted goods
- Demand under Rule 6(2) - The Adjudicating Authority has not taken into consideration that
the appellant had not availed CENVAT credit on plastic crates used in the manufacture of
exempted goods, Maaza Mango - Prima facie case made out for waiver of pre-deposit. |
| 8 |
CWC |
|
|
2013-TIOL-1174 |
SERVICE TAX - Stay/Dispensation of Pre-deposit - Clearing and Forwarding Agent
Service - Inclusion of documentation, inspection and royalty charges in the assessable value -
Adjudicating authority confirmed demand - Appellate authority held that expenses are in nature
of reimbursable expenses and are to be included in taxable value w.e.f 19.04.2006 - Demand for
period prior to 19.0.2006 dropped - Prima-facie it appears that respondents admitted that the
expenses were charged from the customers which are not reimbursable expenses - Deposit made by
the respondent would be kept with the Revenue till disposal of the appeal. |
| 9 |
Cheran Spinners |
|
|
2013-TIOL-665 HC |
GTA can be paid thru credit |
| 10 |
Interplex Electronics |
|
|
2013-TIOL-1493 |
Service Tax - electroplating of connector components on job-work amounts
to manufacture – No Service Tax payable: the process undertaken by the
appellant amounts to manufacture and therefore they are not liable to pay service tax in view
of the specific exclusion in the definition of ‘business auxiliary service' which
provides that if the process amounts to manufacture, no service tax would be liable to be
paid.
___________________________________
Exemption under Notification No.8/2005-Service Tax : Since
exemption under Notification No.24/2003 is not an unconditional exemption, the appellant has a
case for eligibility for exemption under Notification No.8/2005 also even if it is assumed
that the process does not amount to manufacture . |
| 11 |
IVRCL-KBL_MEIL JV |
|
|
2013-TIOL-1488 |
Service Tax - Works Contract Service in relation to execution of a works
contract in respect of canals - Lift Irrigation covered by Exemption Notification
41/2009: |
| 12 |
TASMA |
|
|
2013-TIOL-1677 |
Service Tax - Stay/Dispensation of pre-deposit - Business Auxiliary Service - Demand of
service tax on 5% commission retained in respect of sale of Carbon Emission Reduction
Certificates - Prima facie, it cannot be held that it is a case of mere sale and purchase of
the certificate between the applicant-association and the Sweden Company - The state of
affairs would show that the applicant-association on behalf of their members sold their
certificates to the Sweden Company and earned 5% commission in the transaction - No prima
facie case for waiver of pre-deposit - Rs 15 lakhs ordered as pre-deposit. |
| 13 |
SRF Ltd |
|
|
2013-TIOL-1738 |
Central Excise - Cenvat Credit - Furnace Oil - Credit denied on the ground that details in
dealer invoices did not match those in the manufacturer's invoice - The appellant should be
given an opportunity to correlate dealer's invoice with the manufacturer's invoice - Case
remanded to original authority. |
| 14 |
Hindutan Aeronatutics Ltd |
|
|
2013-TIOL-1764-LB |
Service Tax - Whether cost of 'deemed sale' goods to be excluded from value for computing
Tax - Larger Bench declines to answer reference in view of High Court order - Matter remanded
to Division Bench |
| 15 |
Win Enterprises |
|
|
2013-TIOL-1777 LB |
Central Excise - Manufacture - cutting of carpet rolls into smaller sizes and subjecting
such cut sizes to a process of stitching linings at the edges would not amount to manufacture
|
| 16 |
Navodaya Plastics |
|
|
2013-TIOL-1773 LB |
Central Excise - CENVAT Credit - Capital Goods cleared as such: The use of capital goods is
to spread over many years. A decision to the effect that assessees can bring in capital goods,
use it for a few days and then remove it without reversal of any Cenvat credit taken is not
consistent with the overall scheme of Cenvat credit and can lead to abuse of the scheme. On a
conjoint reading of Rule 3(4) with the provision added to Rule 3(5) with effect from
13.11.2007, the Board's Circular dated 01.07.2002 along with Board's letter dated 26.05.1993,
it is quite clear that the inputs or capital goods when disposed of after putting it into some
use over a period of time, then the assessee would be entitled to reverse whatever Cenvat
credit availed on the value to be assessed on the date of such subsequent sale as capital
goods |
| 17 |
Chennai Citi Center |
|
|
2013-TIOL-1750 |
Service Tax-Stay/Dispensation of pre-deposit – Lease/Rental service - Valuation
deduction in respect of water and electricity charges and eligibility to cenvat credit pending
verification by jurisdictional authority are the two issues needing detailed examination -
Valuation contested on merit – Pre-deposit of 50% of tax demanded ordered. |
| 18 |
Shiva Automobiles |
|
|
2013-TIOL-1787 |
Service Tax - Stay/Dispensation of pre-deposit - Free service provided on behalf of the
vehicle manufacturer - Demand of service tax on the value of parts replaced during the service
by denying the exemption under Notification No 12/2003 ST dated 20.06.2003 - Prima facie case
for waiver of pre-deposit. |
|
|
Reported Cases 2012
|
|
S.No.
|
Name of the party
|
ELT
|
STR
|
TIOL
|
Issue in brief
|
| 1 |
Karmobiles |
|
|
2012-TIOL-8 Tri Bang |
Service Tax - Eligibility of CENVAT Credit of service tax paid on imported
technical know how - Technical knowhow imported under license agreement for use in manufacture
of automobile parts - Service tax paid on royalty paid for technical knowhow by reverse charge
mechanism and availment of CENVAT Credit thereof - Denial of CENVAT Credit on the ground that
importation of technical knowhow not covered by definition of input service and levy of
mandatory penalty invoking section 11AC - When assessee seeks to establish importation of
technical knowhow constituted input service viz., IPR service, it is incumbent on them to
produce copy of license agreement - Nexus between manufacture of automobile parts and import
of technical knowhow to be examined by original authority with reference to terms and
conditions of agreement - Matter remanded to original authority |
| 2 |
Hindustan Coca Cola Beverages |
|
|
2012-TIOL13 Tri Bang |
Service Tax - Eligibility of CENVAT Credit in r/o Group Insurance service no
longer res integra , dispute resolved in assessees own
case 2010-TIOL-160-CESTAT-BANG which was not appealed against by Revenue - Dispute
does not survive - Rule 2(l) of CENVAT Credit Rules, 2004 |
| 3 |
Sagar Enterprises |
|
|
2012-TIOL-61 |
Customs - Import of used photocopies without license under FTP - Original
authority enhanced values based on CE certificate and imposed redemption fine and penalty -
Duty paid on enhanced values without contest - Redemption fine and penalty reduced by
Appellate Commissioner - No infirmity in order of Appellate Commissioner to reduce fine and
penalty exercising his discretionary powers - In the facts and circumstances of case,
reduction of fine and penalty not unreasonable or arbitrary - No valid reason adduced to
interfere with order of Appellate Commissioner |
| 4 |
United Metal Industries |
2012 (275)� ELT 87 |
|
|
Mega Power Projects - 21/2002 - stay |
| 5 |
Bureau of Indian Standards |
|
2012 (25) STR 101 |
|
Hallmarking is not IPR Service� - Stay |
| 6 |
IVRCL |
|
2012 (25) STR 236 |
|
WCS - Stay granted |
| 7 |
S R Communication Systems |
|
|
2012-TIOL-301 |
Service Tax - Stay/Application for waiver of pre-deposit - Demand of service tax
with interest for the period from 6/05 to 3/09 and levy of penalties - Prima facie demand of
tax for the period upto March 2008 time barred and tax payable for the latter period -
Pre-deposit of Rs. 7 lakhs ordered and balance dues waived - Section 35F of Central Excise
Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994. |
| 8 |
Alliance Bio Sciences & Others |
|
|
2012-TIOL-570 |
Central Excise - Valuation - Physician Sample - Transaction Value for samples
manufactured on job work: when physician samples manufactured and cleared to brand owners/
buyers on principal to principal basis for a consideration, which are further distributed by
the buyer free of cost to physicians/doctors, the same is required to be assessed to duty on
the transaction values. - para 5 |
| 9 |
Aparna Paper Processing Industry |
|
|
2012-TIOL-610 |
Central Excise - Demand of reversal of CENVAT Credit on the cost of cylinder
charges and input poly film collected from the suppliers - In view of the fact that the
appellants have put the impugned cylinders and poly films and paper to use in the process of
manufacture and the scrap generated in respect of defective cylinders and poly films and paper
have been cleared as 'waste' paying appropriate duty, the condition for availing CENVAT
credit has been satisfied and hence there is warrant in law to reverse the credit in this
regard. |
| 10 |
Ramky & Maytas NCC JV |
|
|
2012-TIOL-613 |
Even Govt / Public utility EPC contracts are liable to ST under WCS |
| 11 |
LCS Citymakers� |
|
|
2012-TIOL-618 |
Construction under JV - ST payable. Personal use� - entire complex should be for
personal use - applicability of ST Valuation Rules, for the period prior to 19.04.2006 |
|
|
Reported Cases 2011
|
|
S.No.
|
Name of the party
|
ELT
|
STR
|
TIOL
|
Issue in brief
|
| 1 |
BSNL |
|
2011 (21) STR 586 |
2011-TIOL-1 |
Central Excise - Stay/Dispensation of pre-deposit - CENVAT Credit on capital goods installed
at Trichy, Coimbatore and Kumbakonam, availed centrally at Salem - Keeping in view that the
assessee, BSNL as a whole is a service tax assessee, prima facie case made out on merits for
waiver of pre-deposit. |
| 2 |
Neodam Rubber Products |
|
|
2011-TIOL-19 |
Service Tax - Taxability of activity of re-rubberizing of rollers/spindles for use in
printing - Prima facie no case for full waiver of pre-deposit - Pre-deposit of Rs. 1 lakh
ordered |
| 3 |
Global Absorbents |
2011 (263) ELT 637 |
|
2011-TIOL-53 |
Central Excise - Clearance of charcoal imported in bulk by repacking them into 50 kg bags -
When consignments are imported in 20 kg bags and cleared further in 50 kg bags after
repacking, it does not amount to manufacture in terms of Chapter Note 9 of Chapter 38 - Prima
facie case for full waiver of pre-deposit |
| 4 |
Godrej Hershey |
2011 (263) ELT 663 |
|
2011-TIOL-65 |
Central Excise - Short payment of Duty is Default - Penal provisions like consignment wise
payment and non-use of CENVAT Credit apply: |
| 5 |
Ooms Polymer |
|
|
2011-TIOL-97 |
Central Excise - Stay/Dispensation of Pre-deposit - Process of adding Polymers to Bitumen
and heating the mixture whether amounts to manufacture - Prima facie, the assessee has made
out a strong case for waiver of pre-deposit |
| 6 |
Sify Technologies Limited |
|
2011 (21) STR 252 |
2011-TIOL-123 |
Service Tax - Associated Enterprises - Due date for payment of service tax - Amendments to
Section 67 of the Finance Act, 1994 and Rule 6 of the Service Tax Rules have no retrospective
application - The Legislative intention behind the amendments was explained by the Board as
for plugging avoidance of tax on the ground of non-realization of money from associated
enterprises and the intention of the Legislature in bringing the amendments is to introduce a
new provision and not to remove any doubts in the existing provision - It is not, nor can it
be, anybody's case, that Explanation shall always take effect retrospectively - The appellants
are entitled for refund of excess interest paid for the service tax pertaining to the period
prior to the amendment. |
| 7 |
Bluebay Mineral Water Company |
2011 (264) ELT 249 |
|
2011-TIOL-212 |
SSI Exemption - Rural Area - Confirmation by district authorities to be accepted |
| 8 |
IVRCL |
|
|
2011-TIOL-365 |
Service Tax - Laying of pipelines for water supply project of GWSSB - Water supply project
is an infrastructure facility and a civic amenity provided by State to its public and not an
activity of industry - Prima facie case for full waiver of pre-deposit |
| 9 |
Kitti Steels |
|
|
2011-TIOL-405 |
Customs - Import of second hand machines under zero duty EPCG Scheme - Allegation of
mis-declaration of age and value (over-valuation) of machines resulting in denial of EPCG
benefit, confiscation of goods and imposition of penalties. |
| |
|
|
|
| 2011 (266) ELT 375 |
|
|
Cross examination - When department issued show cause notice raising allegations against
notice and proposing to demand duty, levy fine and penalty, noticee required to deny
allegations by pleading facts and circumstances in support of his defense - Cross examination
of any person whose statement was relied upon by Revenue to be claimed at the time of
adjudication of dispute by adjudicating authority - Cross-examination of witnesses not a
pre-requisite for replying to show cause notice - Claim of importer that adjudicating
authority had not observed principles of natural justice not sustainable |
| |
|
|
|
| |
|
|
Confiscation, redemption fine and penalty - Allegation that imported machines did not match
description of goods provided in imported documents i.e. age, value or residual life sustained
as conditions of EXIM Policy 1992-97 remain unfulfilled due to withdrawal of certificate by
Chartered Engineer - Goods to be regarded as imported without valid license, liable for
confiscation under section 111(d) - Since the description of goods are mis-declared, goods
liable for confiscation under section 111(m) - When certain goods in imported consignment were
neither covered by purchase order nor mentioned in import documents, liable for confiscation
under section 111(1) - When adjudicating authority did not give a finding on mis-declaration
of value and did not embark on determination of value under section 14, confiscation under
section 111(m) on the ground of mis-declaration of value not sustained - Redemption fine and
penalties imposed by adjudicating authority sustained |
| 10 |
Anil Kumar Yadhav |
|
2011 (22) STR 20 |
|
Once waiver is granted under Sec. 80 it applies for all penalties. |
| 11 |
Jaiprakash Gayatri Projects |
|
2011 (22) STR 64 |
|
Govt EPC Contractos - Not liable to ST under - stay granted |
| 12 |
Sri Bhagavathy Traders |
|
|
2011 - TIOL - 478 |
Service Tax - C&F Agents - Whether reimbursement charges are includible in the taxable
value - Matter referred to Larger Bench: Tribunal found that different benches are taking
different views on includibility or otherwise of the reimbursement charges received by a
provider of taxable service in the calculation of gross amount for discharge of service tax.
Since there are two views taken by the coordinate benches, Tribunal referred the matter to the
President to constitute a larger bench and settle the issue of "includibility or
otherwise of the reimbursement charges.:BANGALORE CESTAT; |
| 13 |
Vijay Leasing |
|
2011(22) STR 553 |
2011-TIOL-516 |
Service Tax - Activity of extraction of iron ore and related activities such as excavation,
processing i.e. grading, sorting etc are mining services, not liable to pay tax prior to June
1, 2007 - Findings of Appellate Commissioner in impugned order for allowing refund claim of
tax paid during prior period correct and legal and does not require any
interference: BANGALORE CESTAT |
| 14 |
Madhav Marbles |
|
|
2011-TIOL-535 |
Central Excise - Refund - Unjust enrichment - Uniformity in price does not lead to
inevitable conclusion that the bar of unjust enrichment is not attracted - Matter remanded to
give another opportunity to prove that the appellants have not passed on the incidence of duty
as prayed for :CHENNAI CESTAT |
| 15 |
Stanadyne Amalgamations |
|
2011 (22) STR 344 |
2011-TIOL-881 |
Garden Maintenance - Credit not allowed |
| 16 |
Nagarjuna Constructions |
|
2011 (22) STR 433 |
|
EPC Contracts - govt projects - Stay granted |
| 17 |
Anabond |
2011 (267) ELT 380 |
|
|
Classification of RTV Sealents |
| 18 |
Rane Brake Linings |
2011 (267) ELT 378 |
|
2011-TIOL-706 |
Parts of cold storage plant - credit admissible |
| 19 |
Sundaram Auto Components |
2011 (267) ELT 377 |
|
|
Credit taken on inputs sent to job worker - duty paid by job worker also taken as credit. No
infirmity |
| 20 |
Appallo Threads |
2011 (267) ELT 371 |
|
|
Previous factory in the same premises - value to be clubbed for SSI |
| 21 |
Havukkal |
2011 (267) ELT 162 |
|
|
Certificate by Govt authorities - NO suppression |
| 22 |
Saravana Spinning Mlls |
|
2011 (22) STR 568 |
|
ST - Penalties set aside |
| 23 |
Iswari Spinning Mills |
|
2011 (22) STR 549 |
2011-TIOL-767 |
GTA ST can be paid out of cenvat credit upto 18.4.2006 |
| 24 |
Soundaraja Mills |
|
2011 (22) STR 567 |
|
ST - Penalties - Remanded |
| 25 |
Komatsu India (P) Ltd |
|
|
2011-TIOL-695 |
Central Excise – CENVAT Credit on trolleys – The order Commissioner is silent on
the penalty imposed by the original authority - Matter remanded for fresh consideration of
admissibility of credit on trolleys, demand invoking extended period and other connected
issues like imposition of penalties. |
| 26 |
Kumarakom Lake Resorts |
2011 (268) ELT 153 |
|
|
EPCG - Cars imported - Alleged violation of condtions |
| 27 |
Sapna Packaging Industries |
2011 (26) ELY 257 |
|
|
Accountal of inputs - Demand confirmed - penalty set aside |
| 28 |
Vijay Electricals |
|
2011 (22) STR 643 |
|
ECI of Transmission lines - Credit for GTA Service - Stay granted |
| 29 |
United Spirits Ltd |
|
|
2011-TIOL-763 |
Service Tax – Assessee entered into licence agreements with CBUs for manufacturing
IMFL/packaged drinking water and temporarily lent brand name/logo/trade mark for usage on IMFL
manufactured by CBUs – Denial of CENVAT Credit on inputs/input services on the ground
that they do not have any nexus with output service viz., IPR service and restriction of
credit utilization to 20% under Rule 6(3)(c) of CCR – Alcoholic beverages not being
excisable goods do not fall under exempted goods as defined under Rule 2(d) of CCR –
Assessee can utilize CENVAT Credit A/c without limitation of 20% ceiling to discharge tax
liability for providing IPR service since provisions of Rule 6(3)(c) of CCR are not attracted
– Full waiver of pre-deposit ordered and stay granted |
| 30 |
Hindustan Coca Cola |
|
|
2011-Tiol-762 |
Service Tax – Eligibility of credit on cleaning service, security service, repair and
maintenance, manpower recruitment, BAS and event management service – Appellate
Commissioner's finding that input services are related to assessees business and admissible
input services consistent with legal provisions – Assessees counsel conceded that event
management not an input service |
| 31 |
ABB and Others |
|
|
2011-TIOL-395 |
Service
Tax – Outward transportation of finished goods from the place of removal covered by
definition of ‘input service' upto 31.03.2008, service tax paid thereon eligible as
CENVAT Credit – CESTAT Larger Bench decision in ABB Ltd & Ors
=2009-TIOL-830-CESTAT-BANG-LB to this extent legal and valid till 01.04.2008 – No
merit in Revenue Appeals |
| 32 |
Hira Entrprises |
|
|
2011-TIOL--825 |
Clandestine Removal - Not established |
| |
|
|
|
|
| 33 |
Sri Vasavi Financial Services |
|
|
2011-TIOL-854 |
Service tax - Stock Broker service - Plea that the main-broker has paid the service tax -
Matter remanded to the original authority to verify the claim with the jurisdictional
authority of the main-broker: CHENNAI CESTAT; |
| 34 |
Siera Trading (P) Limited |
2011 (269) ELT 246 |
|
|
|
| 35 |
Sunil Hi tech Engineers |
|
|
2011-TIOL-592 |
Service Tax – If main contractor pays Service Tax, should sub-contractor pay –
Matter remanded - "oppressive" circular should be given only prospective effect: The
learned Commissioner, without considering those circulars laid his hands on the circular dated
23.8.2007, which clarified that the sub-contractor was also liable to pay service tax
irrespective of any payment of such tax by the main contractor. It appears, the learned
Commissioner considered the circular dated 23.8.2007 to be of retrospective operation to cover
the period of dispute in this case. One of the contentions which apparently escaped the
attention of the learned Commissioner was that an "oppressive" circular should be
given only prospective effect and that the benefit of a previous beneficial circular must be
given to the assessee. |
| 36 |
Sagar Enterprises |
|
|
2011-TOL-888 |
Customs – Import of used photocopier machines restricted only on and after 19.10.1995
– Apex Court decision in Atul Commodities Pvt. Ltd followed –
Impugned order holding imported second hand photocopier machines as liable for confiscation,
fine and penalty set aside |
| 37 |
Interplex Electronics |
|
2011 (23) STR 189 |
|
Rent a cab for transporting employees - Activities relating to business - Stay granted |
| 38 |
IVRCL |
|
|
2011-TIOL-991 |
Service Tax - Commercial or Industrial Construction Service - Laying of pipelines for
drinking water supply projects,prima facie�not leviable to tax under Commercial or Industrial
Construction Service - Full waiver of pre-deposit and stay granted - Tribunal order
in�2010-TIOL-222-CESTAT-BANG�followed |
| 39 |
S I Minerals and Chemical Process Limtited |
|
|
2011-TIOL-1001 |
Customs - Stay/Dispensation of pre-deposit-Pet Plastic Scrap containing objectionable
materials confiscated as Hazardous Waste -�Prima facie, no evidence is on record to show that
applicant deliberately connived in importing hazardous material - Pre-deposit waived. |
| 40 |
Bhagavathy Traders |
|
2011 (24) STR 290 LB |
2011-TIOL-1155-LB |
ST - C & F A - Reimbursement of expenses |
| 41 |
Vijay Electricals |
|
|
2011-TIOL-1154 |
Service Tax - Activity of erection, commissioning and installation services of transmission
lines undertaken by appellant for Power Grid Corporation Ltd - Liability to pay tax on laying
of electrical cables between grids/sub-stations/transformer stations�en route�- Board's
Circular No. 123/5/2010-TRU dated 24.05.2010 clarifies that activity undertaken by appellant
not taxable service - When goods are transported to different sites from factory of
manufacture by utilizing GTA service for undertaking erection, commissioning and installation
services of transmission lines, credit of service tax paid on GTA service not deniable -
Amount of Rs. 25 lakhs already paid sufficient as pre-deposit for hearing appeals -
Pre-deposit of balance amounts waived and stay granted against recovery during pendency of
appea |
| 42 |
Stovecraft |
|
|
2011-TIOL-1150 |
Central Excise - Allegation of clandestine manufacture and clearance of final products and
irregular availment of CENVAT credit -Evidence recovered from appellant points to
manufacturing activity undertaken by a proprietary firm headed by managing director of
appellant - No conclusion can be reached as to whether appellant has manufactured the goods or
they were manufactured by proprietary firm as claimed by appellant - Findings recorded by
Adjudicating Authority�prima facie�leads to a conclusion that appellants have not made out a
case for complete waiver of pre-deposit - Statement of supplier of raw materials states that
they never supplied raw materials without duty paying documents - Allegation of ineligible
CENVAT credit,�prima facie�cannot be sustained in this case unless entire evidences are
perused and appreciated at the time of final disposal of appeals - Pre-deposit of Rs. 65 lakhs
ordered� |
| 43 |
Raibow Color Lab |
|
|
2011-TIOL01253 |
Service Tax - Photography service - Demand of service tax confirmed by original authority -
When appeal filed against order of original authority pending with Appellate Commissioner,
jurisdictional Commissioner reviewed order of original authority and denied benefit of
Notification No. 12/03-ST allowed by original authority - When appellant has not denied
service tax liability and offered to deposit Rs. 5 lakhs and the issue was only with regard to
denial of Notification No. 12/03-ST, pre-deposit of Rs. 7.5 lakhs ordered and stay granted
|
| 44 |
E-Seva |
|
|
2011-TIOL-1403 |
Service Tax- E-Seva - Collection of User Charges from public - Pre-deposit
ordered:�counsel has argued that the services were rendered for the sovereign and
that the beneficiaries were members of the public and, therefore, Service Tax was not leviable
on the user charges collected by the assessee. It has also been submitted that no service was
rendered to the government/private agencies for whom various fees and charges were collected
from members of the public. These arguments have been vehemently contested by JCDR. On a
perusal of Stay Order No. 1003/2009, similar arguments made before this Bench in the earlier
case did not impress the Bench and that a pre-deposit was ordered. In the present case,
however, over Rs.8.5 lakhs have been already paid by the assessee towards demand of Service
Tax of over Rs.47/- lakhs. This payment, would suffice the purpose of Section 35F of the
Central Excise Act. |
| 45 |
Chokkaiyan Karthikeyan & Co |
2011 (272) ELT 545 |
|
|
PSC Poles - Manufacture - Cenvat credit to be allowed |
| 46 |
K. Prabakar Reddy |
|
2011 (24) STR 330 |
|
|
| 47 |
IVRCL |
|
|
2011-TIOL-1542 |
Service Tax - Works Contract - Certain Works for Government - Stay granted on the basis of
Board Circular and pervious decisions:�The issues raised in this case are highly debatable and
that, for the present purpose, the precedent cited by the Counsel can be followed. stay were
granted on similar facts in favour of those parties. Prima facie , the Board's clarification
works in favour of the present appellants. In this view of the matter, waiver of predeposit
and stay of recovery are allowed in respect of the amounts adjudged against the appellants.
|
| 48 |
SRC Projects |
|
|
2011-TIOL-1557 |
Service Tax - GTA - Board's Circular clarifying that�'provision of ancillary/intermediate
services in relation to the transportation of goods, such service would form part of the 'GTA
service' and not 'Cargo Handling Service'�-�not placed before Adjudicating Authoritry - Case
remanded: |
| 49 |
Interplex Electronics |
|
2011 (23) STR 189 |
|
Rent a cab for transporting employees - Activities relating to business - Stay
granted |
| 50 |
Sindhu Cargo Services |
|
|
2011-TIOL-1598 |
Service Tax - Stay/Dispensation of pre-deposit - Business Auxiliary Service -
Promoting / Marketing the services provided by various Airlines/Steamer Agents - No prima
facie case made out for waiver of pre-deposit - Rs 25 lakhs ordered to be deposited. |
| 51 |
Bayforge |
|
|
2011-TIOL-1298-CESTAT-MAD |
Service Tax - Business Auxiliary Service - Certain grinding and annealing charges collected
from the supplier of the raw materials for making good the defects noticed - Demand of Service
Tax under Business Auxiliary Service is set aside as no service has been rendered to the raw
material supplier. Appeals allowed.� |
| 52 |
Bureau of Indian Standards |
|
|
2011-TIOL-1328-CESTAT-MAD |
Service Tax - Technical Testing and Inspection Services - Intellectual Property Service -
Hallmark - Stay / Dispensation of pre-deposit - Hallmark is not a brand name or trade name or
intellectual property of the assessee but a universally recognized quality mark to certify
purity of jewellery articles and prima facie it is only a symbol indicating the purity of
gold/silver jewellery, which has been implemented by the Government of India, in public
interest. Administering the Hallmarking scheme in India by the appellant cannot be considered
as intellectual property service. Stay granted.� |
| 53 |
Microchem |
|
|
2011-TIOL-1339-CESTAT-MAD |
Central Excise - Small scale exemption - Brand name of another person - Evidence on record
clearly brings out that the brand name "Micro", belonging to another person, was used by the
respondent, who was a newcomer in the market - Benefit of exemption is not admissible -
Extended period is also upheld as the respondent did not disclose the use of such brand name
in any intimation or declaration to the department. Department Appeal Allowed. |
| 54 |
Sri Sarbati Steel Tubes |
|
|
2011-TIOL-1380-CESTAT-MAD |
Central Excise - CENVAT Credit on outward transport from the place of removal is admissible
upto 31.3.2008 in view of the Karnataka High Court order in case of ABB Ltd.Appeal rejected
|
| 55 |
Soundaraja Mills |
|
|
2011-TIOL-1437-CESTAT-MAD |
Central Excise - CENVAT Credit - V-belts, motors etc removed as scrap - B eyond
an averment that capital goods cleared as 'scrap' without payment of duty were those on which
credit had been availed by the assessees, there is no evidence to show that CENVAT credit had
been availed on the capital goods - Penalty not attracted.� |
| 56 |
Nagarjuna Construction Co Vs. CCE, Hyd II |
|
|
2011-TIOL-1493-CESTAT-BANG |
Service Tax - Works relating to relates to water supply/lift irrigation/sewage
pumping - service in relation to infrastructure provided by different State Governments -
Prima facie not taxable - Stay granted. The applications pertaining to similar demands had
been considered by this Tribunal earlier. In Ramky Infrastructure Ltd. Vs, CCE, Hyderabad -
(2010-TIOL-699-CESTAT-BANG) and Lanco Infratech Ltd. Vs. CST, Hyderabad -
(2009-TIOL-2139-CESTAT-BANG), the activities involved related to services rendered by the
respective appellants to the Government of Andhra Pradesh in the form of turnkey projects
executed by them for the construction of dams, tunnels, distributory system to feed various
ayacut, land, etc. Consistent with earlier decisions, complete waiver of pre-deposit and stay
of recovery of the dues, ordered. |
|
|
Reported Cases 2010
|
|
S.No
|
Name of the party
|
ELT
|
STR
|
RLT
|
TIOL
|
Issue in brief
|
| 1 |
Sai Krishna Travels |
|
|
|
2010-TIOL- 7 |
Taxis - Charges on KM basis - Not rent a cab operator |
| 2 |
Karanjia |
|
|
|
2010-TIOL-100 |
Central Excise - Availment of exemption benefit in terms of S.No. 86 and 86A of Notification
6/2002-CE simultaneously - Condition No.14A thereof does not put any restriction on availment
of benefit under S. No. 86A if the assessee had already availed benefit under Sl. No.86 -
Impugned order set aside |
| 3 |
Sterling Biotech |
|
|
|
2010-TIOL-103 |
Payment of 10 % under Rule 6 not required for by product |
| 4 |
SafeTest |
|
|
|
2010_TIOL-355 |
Service Tax – Penalty under Section 76 and Section 78 are mutually exclusive
– penalty under Section 76 set aside and penalty under Section 78 reduced to 25% in
terms of Section 73(2) as the assessee has paid the service tax prior to the issue of show
cause notice. |
| 5 |
AP Trade Promotion Corporation |
|
2010 (17) STR 104 |
|
|
|
| 6 |
Gayathri Projects |
|
2010 (17) STR 24 |
|
|
|
| 7 |
Livewire Advertising |
|
2010 (17) STR 188 |
|
|
|
| 8 |
Parmar Exports |
|
|
|
2010-TIOL-93 HC |
Customs – Denial of Drawback on the ground that investigations are pending - when an
alternative remedy is effectively and efficaciously available, no writ is maintainable –
Petitioner directed to Appellate Authority: When an appeal remedy is statutorily provided, it
is the obligation on the part of the petitioner to prefer such an appeal, before approaching
this court. Though the respondent has indicated in his order itself that an appeal would lie
against the order impugned, without exhausting the appeal remedy, the petitioner has
challenged the impugned proceedings before this court. Therefore, when an alternative remedy
is effectively and efficaciously available to the petitioner, it is appropriate for them to
exhaust such remedy as provided under the Rules.Accordingly, the petitioner is directed to
prefer an appeal to the appellate authority against the order impugned in this petition,
within a period of four (4) weeks from the date of receipt of a copy of this order. |
| 9 |
Madras Vanaspati |
|
|
|
2010-TIOL-334 |
Central Excise – CENVAT Credit – manufacture of dutiable and exempted
goods - payment of 10% under Rule 6 of the CENVAT Credit Rules – in the case of
manufacture of a dutiable product and a by-product, the provisions of Rule 6 are not
attracted and there is no requirement of reversal of 10% amount. |
| 10 |
GTN Industries |
|
|
|
2010-TIOL-345 |
Central Excise – Refund – Clearance of yarn for export under bond as
well as domestic clearances by availing Notification 29/2004-CE – Reversal of credit
on inputs used in export goods and claim of refund filed subsequently without proper
supporting documents – No merit in Revenue's arguments that date of filing claim with
proper documents only to be considered as date of filing refund claim – Original date
of filing claim to be reckoned for the purpose of computing limitation period – No
infirmity in impugned order |
| 11 |
Rane TRW |
|
|
|
2010-TIOL-352 |
Central Excise – CENVAT Credit – catering service is eligible for credit in view
of the Larger Bench decision in case of M/s GTC Industries reported in
2008-TIOL-1634-CESTAT-MUM-LB |
| 12 |
Thriveni Earthmovers |
|
2010 (18) STR 630 |
|
2010-TIOL-433 |
Appellant entering into contract with Tata Iron & Steel for providing service relating
to excavation and transportation of Run of Nine (RON) - Transportation of goods is within the
mining area – Revenue raising and confirming a service tax demand of Rs.1.24 Crores on
the ground that appellant providing Business Auxiliary Service and Cargo Handling Service
– CESTAT in the case of CCE,vs. B.K.Thakkar (2008-TIOL-148-CESTAT-KOL) has held that
transportation within the mining area is part of mining activity and hence, the assessee is
not separately liable to pay Service Tax – Strong prima facie case in favour as the
Contract is for mining, and 'Mining Service' comes under the scope of Service Tax
w.e.f.01.06.2007 - present demand is prior to this period – Waiver of pre -deposit of
the amount of Service Tax, interest and penalty - Stay Petition allowed. |
| 13 |
Linkwell Telesystems |
2010 (249) ELT 419 |
|
|
|
|
| 14 |
Thirumala Impex |
2010 (251) ELT 240 |
|
|
|
|
| 15 |
Airtrade International |
2010 (251) ELT 471 |
|
|
|
|
| 16 |
Harika Resins |
2010 (253) ELT 108 |
|
|
|
|
| 17 |
Akash Aromatics |
2010 (253) ELT 127 |
|
|
|
|
| 18 |
Jaganath Textiles |
2010 (253) ELT 315 |
|
|
|
Commissioner Appeal entertained fresh evidence - Remanded |
| 19 |
Genus Electrotech |
2010 (253) ELT 619 |
|
|
|
|
| 20 |
Meghamani Organics |
2010 (254) elt 172 |
|
|
|
|
| 21 |
Jaihbavani Steel Enterprises |
2010 (254) ELT 382 |
|
|
|
Remelting scrap - exemption available- stayed |
| 22 |
IVRCL Infrastrucutre |
|
2010 (18) STR 501 |
|
2010-TIOL-222 |
Laying of pipelines is not commercial or industrial construction service - stay granted |
| 23 |
Addecco Flexione Workforce Solutions Limited |
|
2010 (18) STR 511 |
|
|
Penalty for delayed payment of service tax - stay granted |
| 24 |
Ramakrishna Reddy |
|
2010 (18) STR 522 |
|
|
Removal of overburden is not liable under site formation - stay granted |
| 25 |
Sheriff Motors |
|
2010 (18) STR 64 |
|
|
ST paid on GTA service to bring vehicles - credit allowed |
| 26 |
Hindustan Coca Cola |
|
2010 (18) STR 57 |
|
2010 - 48 |
Cenvat credit allowed on outddor catering |
| 27 |
Future Focus |
|
2010 (18) STR 308 |
|
2010-835 |
Man power supply Vs IT Services - Demand confirmed |
| 28 |
Hindustan Coca Cola |
|
2010 (18) STR 500 |
|
2010-TIOL -813 |
Credit allowed on security and pest control |
| 29 |
Pressure Vessels and Equipments Testing Enterprises |
|
2010 (18) STR 719 |
|
|
Violation of natural justice - remanded |
| 30 |
Jaishakthi Engineering |
|
2010 (18) STR 746 |
|
|
Inclusion of value of materials supplied by client for claiming abatement - Stay granted
|
| 31 |
Sri Kumara Trading |
|
2010 (19) STR 42 |
|
|
BAS - PD ordered |
| 32 |
A.Sekar |
|
2010 (19) STR 82 |
|
2010-TIOL-620 |
Laying of pipelines is not liable to service tax under ECI Service |
| 33 |
Nagarjuna Constrution Company Limited |
|
|
|
2010-TIOL-789 |
Service Tax – Laying of pipelines for drinking water supply projects run
by Gujarat Water Supply and Sewerage Board, not leviable to tax under either Commercial or
Industrial Construction Service or Works Contract Service – Impugned order set aside
|
| 34 |
Sprandrel, Delta and Premier |
|
|
|
2010-TIOL-830 |
| 35 |
Samruddhi Industries |
|
|
|
|
|
| 36 |
Saj Flight Services |
|
|
|
2010 - TIOL 141 |
Held: The activities of the appellant during relevant period will not be covered under
definition of ‘interior decorator services |
|
| |
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| More ›› |
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