CESTAT Weekely Round-up

This weekly round-up analytically summarises the key stories of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) reported at taxscan. in, from July 22 to July 29, 2023.

CESTAT Upholds Reduction of Demand of Customs Duty for Utilisation of Platinum Sponge as Active Catalyst on ground of Proper Calculation of Duty The Commissioner of Customs vs M/s. Tamilnadu Petroproducts Ltd. 2023 TAXSCAN (CESTAT) 841

The Chennai bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) upheld the reduction of demand of customs duty for utilization of platinum sponge as an active catalyst on the ground of proper calculation of duty by the Commissioner

The two-member bench comprising Sulekha Beevi C.S (Judicial) and Vasa Seshagiri Rao (Technical) upheld the decision of the Commissioner for proper calculation of duty while dismissing the appeal filed by the department.

Earphones Other than the parts of Cellular Mobile Phones Attracts only Basic Custom Duty of 10% under Exemption Notification: CESTAT SENNHEISER ELECTRONICS INDIA PVT LTD vs PRINCIPAL Commissioner 2023 TAXSCAN (CESTAT) 840

The New Delhi bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that the earphones other than the parts of the cellular mobile phones attract only basic customs duty of 10% under the exemption notification.

The two-member bench comprising Rachna Gupta (Judicial) and P.V Subba Rao (Technical) quashed the demand of duty confirmed and the penalty imposed while allowing the appeal filed by the assessee.

Modular Employment Scheme is a “Vocational Training Activity” & Not a “Business Auxiliary Service”; No Service Tax Applies: CESTAT M/s Confederation Of Indian Industry vs Commissioner of Central Excise & Service Tax 2023 TAXSCAN (CESTAT) 842

The Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Chandigarh has held that the Modular Employment Scheme conducted by the Confederation of Indian Industry (CII) is a “Vocational Training Activity” and not a “Business Auxiliary Service”, and hence the same shall be exempted from Service Tax.

The two-member bench consisting of Mr. S. S. Garg (Judicial Member) and Mr. P. Anjani Kumar (Technical Member) affirmed the status of Modular Employment Scheme as a vocational training activity, making it exempt from Service Tax. Hence, the order passed by the Commissioner of Central Excise & Service Tax was set aside and the appeal was allowed.

SCN Deemed Invalid Without Mentioning Specific Category under which Demand is Made: CESTAT M/s Confederation Of Indian Industry vs Commissioner of Central Excise & Service Tax, Chandigarh-I 2023 TAXSCAN (CESTAT) 842

The Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Chandigarh has held that the Show Cause Notice (SCN) issued by the Commissioner of Central Excise & Service Tax without mentioning the specific category under which the demand was made is deemed invalid.

In result, the two-member bench consisting of Mr. S. S. Garg (Judicial Member) and Mr. P. Anjani Kumar (Technical Member) invalidated the penalties imposed on the appellant and allowed the appeal setting aside the order passed by the Commissioner of Central Excise & Service Tax, Chandigarh. This judgement by CESTAT highlights the importance of clear and specific details to be mentioned in the SCN with respect to the category under which the demand was made thus enabling the taxpayers to provide a fruitful and effective reply/response to the allegations and thus ensure a fair opportunity of being heard.

No Service Tax applicable to AGM conducted under Convention Centre, No Element of Commerciality: CESTAT M/s Confederation Of Indian Industry vs Commissioner of Central Excise & Service Tax CITATION:   2023 TAXSCAN (CESTAT) 842

The Customs, Excise, and Service Tax Appellate Tribunal (CESTAT), Chandigarh has held that service tax is not applicable to Annual General Meeting (AGM) conducted under a convention centre, as there is no element of commerciality involved.

In conclusion, the two-member bench consisting of Mr. S.S. Garg (Judicial Member) and Mr. P. Anjani Kumar (Technical Member) established that no service tax is applicable to AGMs conducted under convention centres, as there is no element of commerciality involved. The doctrine of mutuality applies, ensuring that transactions within an organisation involving its members are not subject to taxation.

Conventions Open to General Public Not a “Convention Service” under Service Tax, No Service Tax Applies: CESTAT M/s Confederation Of Indian Industry vs Commissioner of Central Excise & Service Tax, Chandigarh-I 2023 TAXSCAN (CESTAT) 842

The Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Chandigarh has held that conventions open to the general public cannot be classified as “Convention Service” under Service Tax laws and as a result, service tax is not applicable to such conventions.

In conclusion, the two-member bench consisting of Mr. S. S. Garg (Judicial Member) and Mr. P. Anjani Kumar (Technical Member) allowed the appeal, setting aside the order and ruled that conventions open to the general public are not subject to “Convention Service” under Service Tax laws and hence service tax does not apply to such conventions organised by the appellant.

Natural Rock Phosphate’ Imported Goods are Not considered as ‘Fertilizers’ under FCO and Ineligible to Claim Exemption of SAD under Exemption Notification : CESTAT M/s Sterlite Industries (I) Ltd vs The Commissioner of Customs 2023 TAXSCAN (CESTAT) 843

The Chennai bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that the natural rock phosphate of imported goods is not considered fertilizers under Food Control Order (FCO) and ineligible to claim exemption of Special Additional Duty (SAD) under exemption notification.

The two-member bench comprising Sulekha Beevi (Judicial) and Vasa Seshagiri Rao (Technical) held that the goods imported are not eligible for the exemption of Special Additional Duty as per the notification while dismissing the appeal filed by the assessee.

Manufacture or Import of Any Insecticides Without Registration Certificate can be Treated as Misbranded Goods u/s 3(k) (vi) of Insecticide Act : CESTAT M/s. SDS Ramcides Crop Science Pvt. Ltd vs Commissioner of Customs  2023 TAXSCAN (CESTAT) 844

The Chennai bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that the manufacture or import of any insecticides without a registration certificate can be treated as misbranded goods under section 3(k) (vi) of the Insecticide Act,1968.

The two-member bench comprising Sulekha Beevi (Judicial) and Vasa Seshagiri Rao (Technical) quashed the redemption fine and penalties imposed without disturbing the order of confiscation and partly allowed the appeal filed by the assessee.

Import of Spares and Other Specific items for Repair of Vessel by Ocean-Going Vessel is Eligible for Exemption from Customs Duty under Exemption Notification: CESTAT Centre for Marine Living Resources & Ecology vs The Commissioner of Customs 2023 TAXSCAN (CESTAT) 845

The Bangalore bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that the import of spares and other specific items for repair of the vessel by the Ocean-Going Vessel was eligible for exemption from customs duty under exemption notification.

A single-member bench comprising P. A Augustian (Judicial) quashed the demand of the Customs duty made by the department while allowing the appeal filed by the assessee.

CESTAT Upholds Deletion of Penalty Imposed for Non-payment of Service Tax for Installation Commissioning Services on ground of Limitation Commissioner of Central Excise And Service Tax vs Himachal Futuristic Communication Limited 2023 TAXSCAN (CESTAT) 846

The Chandigarh bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) upheld the deletion of the penalty imposed for non-payment of the service tax for installation commissioning services on the ground of Limitation.

The Bench observed that there was no wilful suppression on the part of the assessee and the decision made by the adjudicating authority was as per the law and liable to be sustained.  The two-member bench comprising S.S Garg (Judicial) and Anjani Kumar (Technical) held that the impugned order was legally correct and tenable and that the revenue’s appeal was not maintainable while dismissing the appeal filed by the revenue.

Delay in Refund of CENVAT Credit of Customs Duty: CESTAT Orders Refund Along with 12% Interest from date of deposit till Realization Shree Rajasthan Syntex Limited vs Commissioner, Central Goods and Service Tax 2023 TAXSCAN (CESTAT) 847

The New Delhi bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) allowed the refund claim along with the interest for delay in refund with 12% interest from the date of deposit till its realization.

A single-member bench comprising Ashok Jindal (Judicial) held that the assessee was entitled to get the interest on delay refund while allowing the appeal filed by the assessee.

Appliance Calibration Test & Customised Upgradation/Configuration Service  of Appliances Not a “Manufacture”& No Central Excise Duty Applicable as No New Product is Created with a Different Name, Character or Use: CESTAT M.B.Control & Systems Private Limited vs Commissioner of Central Excise 2023 TAXSCAN (CESTAT) 848

The Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Kolkata has held that the Appliance Calibration Test and Customised Upgradation/ Configuration Service of appliances does not amount to “manufacture” under the Central Excise Act, 1944 and hence Central Excise duty is not applicable on the said activity as it does not involve the creation of a new product with a different name, character, or use.

In result, the two-member bench consisting of Mr. Ashok Jindal (Judicial Member) and Mr. K. Anpazhakan (Technical Member) set aside the order and allowed the appeal with consequential relief for the appellant.

Matter Heard by One Commissioner & Order Passed by Another Commissioner Without Considering Assessee’s Submissions: CESTAT Quashes Order on Natural Justice Violation M.B.Control & Systems Private Limited vs Commissioner of Central Excise 2023 TAXSCAN (CESTAT) 848

The Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Kolkata has set aside the order passed by the Commissioner of Central Excise citing a grave violation of the principles of natural justice since the order was passed by a different commissioner from the one who heard the matter and the order was passed without considering the submissions of the assessee.

In conclusion, the two-member bench consisting of Mr. Ashok Jindal (Judicial Member) and Mr. K. Anpazhakan (Technical Member) allowed the appeal filed by the assessee along with consequential relief, setting aside the order passed by Commissioner Mr. Prashant Kumar.

CESTAT Quashes SCN for Imposing Penalty for Non-payment of Customs Duty on Clearance of Goods on ground of Limitation M/s Punj Brothers Limited vs The Commissioner of Central Excise 2023 TAXSCAN (CESTAT) 850

The Chandigarh bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) quashed the show cause notice (SCN) for imposing a penalty for non-payment of Customs Duty on the clearness of goods on the ground of Limitation.

The two-member bench comprising S.S Garg (Judicial) and Anjani Kumar (Technical) quashed the penalty imposed on the assessee while allowing the appeal filed by the assessee.

CESTAT Allows Refund Claim of Paid Service Tax on Ground of Service Rendered and Received Outside India M/s Sharda Cropchem Ltd. Vs Commissioner of CGST & CE 2023 TAXSCAN (CESTAT) 851

The Mumbai bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) allowed the claim of refund of the paid service tax by the assessee on the ground of service rendered and received outside India.

The two-member bench comprising Suvendu Kumar Pati (Judicial) and Anil Shakkarwar (Technical) quashed the order passed by the Commissioner (Appeals) and allowed the refund while confirming the order of the Refund Sanctioning Authority.

No service Tax Leviable on Services Provided and Consumed in Foreign Country u/s 64 of Finance Act: CESTAT M/s. Sharda Cropchem Ltd. Vs Commissioner of CGST & CE 2023 TAXSCAN (CESTAT) 851

The Mumbai bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) held that no service tax is chargeable on services provided and consumed in foreign countries under section 64 of the Finance Act,1994.

The two-member bench comprising Suvendu Kumar Pati (Judicial) and Anil. G Shakkarwar (Technical) quashed the order passed by the Commissioner (Appeals) and held that the assessee was not liable to pay service tax while allowing the appeal filed by the assessee.

Relief to BSNL: CESTAT Quashes Demand of Service Tax on Telecom Services on Ground of Non-Inclusion of Explanation u/r 5(1) of Service Tax Rules M/s.Bharat Sanchar Nigam Limited vs The Commissioner of GST & Central Excise 2023 TAXSCAN (CESTAT) 852

The Chennai bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) quashed the demand for service tax on telecom services on the ground of non-inclusion of explanation under rule 5(1) of the Service Tax Rules, 2006.

The two-member bench comprising Sulekha Beevi C.S (Judicial) and Vasa Seshagiri Rao (Technical) held that the demand cannot sustain and quashed the demand for service tax while allowing the appeal filed by the assessee.

CESTAT Reduces Penalty Imposed for Attempt to Export Red Sander Wood in Form of Pillar Tops on ground of Contravention of provisions of Customs Act and Foreign Trade Act M/s. Artisan’s Welfare Society vs The Commissioner of Customs 2023 TAXSCAN (CESTAT) 853

The Chennai bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) reduced the penalty imposed for the attempt to export red sander wood in the form of pillar tops on the ground of contravention of provisions of the Customs Act,1962, and Foreign Trade (Development and Regulation) Act, 1992.

The two-member bench comprising Sulekha Beevi (Judicial) and Vasa Seshagiri Rao (Technical) held that the penalty imposed was disproportionate and excessive as the confiscated goods were valued less than that and reduced the penalty imposed under section 114(i) of the Customs Act.

DFIA License purchased by Bonafide Importer from Fraudulent License Holder is Voidable at the option of Issuing Authority: CESTAT quashes order of Confiscation and Demand of Customs Duty M/s Wadhwani Commodities Trading Mr. Chandra Prakash Wadhwani vs Commissioner of Customs (Port) 2023 TAXSCAN (CESTAT) 849

The Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Kolkata has held that the Duty-Free Import Authorization (DFIA) License purchased by the Bonafide Importer from Fraudulent License Holder which is not cancelled at the time of Import is Voidable at the option of the Issuing Authority.

The two-member bench consisting of Mr. Ashok Jindal (Judicial Member) and Mr. K. Anpazhakan (Technical Member) concluded that the licenses were only voidable and not void, meaning they could be used until cancelled by the issuing authority. The CESTAT also highlighted that the licenses were revoked long after the imports had been made by the appellants. The bench clarified that the licenses obtained are voidable, allowing them to be utilised until formally invalidated by the concerned authorities. However, the bench made it clear that the licenses in question shall not be forged. In result, the confiscation order and the demand of customs duty along with interest and penalty imposed on the appellants were deemed invalid, as the licenses used for import were confirmed to be valid and properly made transferable by the DGFT. Consequently, all penalties imposed on the appellants were also set aside.

This bench clarified the validity and applicability of licenses acquired from fraudulent license holders by bonafide importers. It reinforced that the importers acting in good faith are not liable to pay penalties and duty in cases where the elements of fraud, forgery or misrepresentation are not present.

Demand of Excess Refund Amount of Custom Duty on Inputs Lost in Fire based on Mere presumption: CESTAT quashes Order M/s Comfort Polymers Pvt. Ltd vs CCE- Jammu 2023 TAXSCAN (CESTAT) 854

The Chandigarh bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) quashed the demand for an excess refund amount of customs duty on inputs lost in fire based on mere presumption.

The two-member bench comprising S.S Garg (Judicial) and Anjani Kumar (Technical) quashed the demand for excess refund amount while allowing the appeal filed by the assessee

CESTAT Quashes Demand of Service Tax on Supply Agency Service on ground of Proper Discharge of Tax Liability by Service Provider and Recipient M/s. Aadarsh Sri Sai Manpower Solution (p) Ltd. Vs Commissioner, Customs, Central Excise & Service Tax 2023 TAXSCAN (CESTAT) 855

The New Delhi bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) quashed the demand for service tax on supply agency service on the ground of proper discharge of tax liability by the service provider and service recipient.

The two-member bench comprises Dilip Gupta (President) and Hemambika. Priya (Technical) quashed the order of demand of service tax while allowing the appeal filed by the assessee.

Self-Assessment of Payment of Excise Duty on Capital Goods is Eligible for Availment of CENVAT Credit by Recipient of Goods: CESTAT C.C.E. & S.T.-Vapi vs Kris Flexipacks Pvt Ltd 2023 TAXSCAN (CESTAT) 856

The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that the self-assessment of Payment of excise duty on capital goods was eligible for availing of CENVAT Credit by the recipient of goods.

The two-member bench comprising Ramesh Nair (Judicial) and C.L Mahar (Technical) held that the Commissioner (Appeals) rightly allowed the CENVAT credit on capital goods to the assessee while dismissing the appeal filed by the revenue.

CESTAT Upholds Quashing of Customs Duty Liability on Import of Barge on ground of Irregular Addition of Value of equipment on Board Commissioner of Customs (Export) vs Lift & Shift India Pvt Ltd 2023 TAXSCAN (CESTAT) 857

The Mumbai bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) upheld the quashing of Customs duty liability on the import of barge on the ground of irregular addition of the value of equipment on board.

The two-member bench comprising Ajay Sharma (Judicial) and C.J Mathew (Technical) upheld the decision made by the Commissioner of Customs while dismissing the appeal filed by the revenue.

External Hard Disc Drives’ Classified as per Central Excise Tariff Act is eligible for Benefit of Exemption from Customs Duty under Exemption Notification: CESTAT Commissioner of Customs vs M/s. Neotric Informatique Ltd 2023 TAXSCAN (CESTAT) 858

The Chennai bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that the external hard disc drives classified as per the Central Excise Tariff Act,1985 were eligible for the benefit of exemption from customs duty under exemption notification.

The two-member bench comprising Sulekha Beevi (Judicial) and Vasa Seshagiri (Technical) upheld the decision made by the Commissioner (Appeals) while dismissing the appeal filed by the revenue.

No Service Tax on Construction of Residential Complex for State Police Housing Corporation: CESTAT Ample Construction Company vs Commissioner of Central Excise & ST, RAJKOT 2023 TAXSCAN (CESTAT) 859

The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) no service tax is leviable on the construction of a residential complex for a state police housing corporation.

The two-member bench comprising Mr Ramesh Nair, Member (Judicial) and Mr C L Mahar, Member (Technical) held that the construction of the residential complex for State Police Housing Corporation was held to be non-taxable.  Considering the above decision, demand in the present case is not sustainable.  Accordingly, the impugned order is set aside and the appeal is allowed.

No Service Tax Leviable for providing ‘BAS’ by Cable TV Operator when Main Operator discharges Entire Service Tax Liability: CESTAT M/s Prime Cyber vs The Commissioner of Central Excise- Chandigarh 2023 TAXSCAN (CESTAT) 860

The Chandigarh bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that no service tax was leviable for providing Business Auxiliary Service (BAS) by the cable tv operator when the main cable operator discharged all the service tax liability.

The two-member bench comprising S.S Garg (Judicial) and Anjani Kumar (Technical) held that the penalties imposed are not sustainable while allowing the appeal filed by the assessee.

CESTAT quashes Demand of Service Tax on Payment of Insurance premium on Marine Cargo Policy on ground of Lack of Clarity in SCN EID Parry (India) Ltd vs Commissioner of Central Tax 2023 TAXSCAN (CESTAT) 861

The Hyderabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) quashed the demand for service tax on the payment of insurance premiums on marine cargo policy on the ground of the lack of clarity in show cause notice.

A single-member bench comprising A.K Jyotishi (Technical) quashed the order passed by the Commissioner (Appeals) while allowing the appeal filed by the assessee.

Conversion of Shipping Bills Allowable even if Goods are not Examined at Time of Export u/s 149 of Customs Act: CESTAT M/s.Regin Exports vs Commissioner of Customs 2023 TAXSCAN (CESTAT) 864

The Chennai bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that the amendment or conversion of shipping bills under section 149 of the Customs Act,1962 allowable even if the goods are not examined at the time of export.

The two-member bench comprising Sulekha Beevi (Judicial) and Vasa Seshagiri Rao (Technical) held that the request for conversion of shipping bills cannot be denied while allowing the appeal filed by the assessee.

CESTAT Upholds Penalty imposed u/s 114AA of Customs Act on Import of LED lights on ground of Mis-declared Quantity of Goods in Bill of Entry M/s SURENDRA ELECTRICALS vs PRINCIPAL COMMISSIONER, CUSTOMS (EXPORT)-NEW DELHI(ICD TKD  2023 TAXSCAN (CESTAT) 862

The New-Delhi bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) upheld the penalties imposed under section 114AA of the Customs Act,1962 on the import of Light Emitting Diode (LED) lights on the ground of mis-declared quantity of the goods in the bill of entry.

The two-member bench comprising Rachna Gupta (Judicial) and P.V Subba Rao (Technical) upheld the decision made by the Commissioner while dismissing the appeal filed by the assessee.

SCN for Revocation of License must be Issued within 90 Days from Date of Offence Report as Per Regulation 20 of CBLR: CESTAT M/s. Trade Wings Logistics India Pvt. Ltd vs Commissioner of Customs (Chennai-VIII)  2023 TAXSCAN (CESTAT) 863

The Chennai bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that the show cause notice for revocation of license must be issued within 90 days from the date of offense report as per the regulations 20 of the Customs Brokers Licensing Regulations, 2013.

The two-member bench comprising Sulekha Beevi C.S (Judicial) and Vasa Seshagiri Rao (Technical) quashed the order passed by the Commissioner while allowing the appeal filed by the assessee.

Service Tax Demand cannot be Confirmed without Mentioning in SCN: CESTAT Quashes Demand on Commercial or Industrial Construction Service Goyal & Co Construction Pvt Ltd vs C.S.T.-Service Tax 2023 TAXSCAN (CESTAT) 865

The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that service tax demand cannot be confirmed without mentioning in show cause notice (SCN) and quashed the demand on commercial or industrial construction service.

The two-member bench comprising Mr Ramesh Nair, Member (Judicial) and Mr C L Mahar, Member (Technical) viewed that the show cause notice cannot be rectified by way of Adjudication Order passed in such show cause notice, therefore, on this ground alone demand is not sustainable. “Moreover, the period involved is 2005-06, even if it is assumed that the appellant had provided commercial or industrial construction service but undisputedly the service was provided along with material, therefore, it is falling under works contract Service. “, the bench held.

Penalty u/s 112 and 114AA not Leviable when Assessee had no Knowledge of Prohibited Goods Concealed in Subject Imports of A4 Paper Reams: CESTAT Sarvesh Sharma Sales Executive vs Commissioner of Customs 2023 TAXSCAN (CESTAT) 874

The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that penalty under sections 112 and 114AA of the Customs Act, 1961 is not leviable when the assessee did not know prohibited goods concealed in subject imports of A4 paper reams.

A single-member bench comprising Rajeev Tandon, Member (Technical)  observed that the existence of conscious knowledge on the part of the accused on whom such penalty is levied is therefore essential to be demonstrated. Unfortunately, there is nothing in the adjudication order to even remotely suggest that the appellant had prior knowledge of the confusability of the import goods while undertaking the exercise of change in the consignee name at the behest of the original importer. In the case of Parag Domestic Appliances vs. Commissioner of Customs, it was held that “for subjecting one to penalty under Section 114AA, the existence of knowledge or intention on the part of such person while carrying out any or all of the necessary actions stated therein is a must. Without demonstrating such an existence of knowledge no such penalty is leviable.” While allowing the appeal, the CESTAT set aside the penalty and the order.

Exemption on Customs Duty  allowable to HDPE as it won’t change  Character of the Product Even after Modified: CESTAT Vikram Plasticizers vs Commissioner of Central Excise & ST, Ahmedabad 2023 TAXSCAN (CESTAT) 873

The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that exemption on Customs Duty is allowable to high-density polyethene (HDPE) as it won’t change the character of the product even after modification.

The two-member bench comprising Mr Ramesh Nair, Member (Judicial) and Mr C L Mahar, Member (Technical) held that “even though the minuscule percentage of different chemicals including additive mixed with HDPE, the goods remain as high-density polyethene and therefore clearly covered under the exempted entry in Notification No. 12/2012-Cus dated 17.03.2012.” Further held that the appellant is entitled to exemption under Notification No. 12/2012-Cus in respect of their imported goods i.e. High-density polyethene.  Hence the impugned order is set aside and the appeal is allowed.

Clearance of Ferrous (iron &Steel) Scrap from Imported Brass After Soring and Melting Process Cannot be Treated as Removal of Inputs under Rule 3(5) of Cenvat Credit Rules: CESTAT Senor Metals Pvt Ltd vs C.C.E. & S.T 2023 TAXSCAN (CESTAT) 869

The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that clearance of ferrous (iron &steel) scrap from imported brass after soring and melting process cannot be treated as removal of inputs under Rule 3(5) of the Cenvat Credit Rules, 2004.

The two-member bench comprising Mr Ramesh Nair, Member (Judicial) and Mr C L Mahar, Member (Technical) held that the impugned order is not sustainable and set aside the same.

Minor Increase or Decrease in Weight than Import Invoice Calculated Based Theoretical Weight is Allowable, No Modification Necessitated on Import Documents: CESTAT Welspun Corp Ltd vs C.C.-Mundra 2023 TAXSCAN (CESTAT) 872

The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that no modification is necessitated on import documents for minor increase or decrease in weight than import invoice calculated based on theoretical weight is allowable.    

The two-member bench comprising Mr Ramesh Nair, Member (Judicial) and Mr C L Mahar, Member (Technical) held that “no value can be enhanced based on the weight variation since it was obvious that when a theoretical weight is taken by adopting a formula the same will never be matching exactly with the physical weight of the goods. Therefore, due to this minor increase or decrease in the weight valuation cannot be varied.” While allowing the appeal, the CESTAT set aside the impugned demand.

Relief to Savita Oil Technologies, Refund Allowable on Excess Duty Paid Due to Extending Quantity Discount to Customers: CESTAT Savita Oil Technologies Limited vs Commissioner of Central Excise & ST 2023 TAXSCAN (CESTAT) 871

 As a relief to Savita Oil Technologies Limited, the Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) refund is allowable on excess duty paid due to extending quantity discounts to customers. The issue was whether the appellant is liable to pay duty on the quantity discount claimed by Them and whether the excess duty paid due to extending the quantity discount, the same is refundable even if the appellant has not opted for provisional assessment.

The two-member bench comprising Mr Ramesh Nair, Member (Judicial) and Mr C L Mahar, Member (Technical) held that “the appellant is entitled to a refund of excess duty paid due to extending the quantity discount to the customers.  However, the factual aspect of correct quantification can be verified by the adjudicating authority, if required.  Accordingly, we set aside the impugned order and allow the appeal in the above terms. “

Retired Partner Not Liable for Excise Duty Dues of Partnership Firm Jawahar K Vakharia vs C.C.E. & S.T 2023 TAXSCAN (CESTAT) 870

The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that the retired partner is not liable for excise duty dues of the partnership firm.

The two-member bench comprising Mr Ramesh Nair, Member (Judicial) and Mr C L Mahar, Member (Technical) held that “since the appellant had resigned as a partner from the partnership firm in August 1993, the demand Is not valid.” Further set aside the impugned order and remanded the matter to the commissioner appeal for reconsidering the appeal before him by following the principle of natural justice.

Effluent Neither  Sold Not Saleable not Qualify as Goods under GTA Service, not liable to Service Tax Panoli Enviro Technology Limited vs Commissioner of Central Excise & ST 2023 TAXSCAN (CESTAT) 868

The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that the effluent is neither sold nor saleable nor qualifies as goods under  Goods Transport Agency Service (GTA) and is not liable to service tax.

The two-member bench comprising Mr Ramesh Nair, Member (Judicial) and Mr C L Mahar, Member (Technical) held that “the goods being effluent which is neither sold nor saleable, does not qualify in terms “goods”.  Therefore, transportation of the same does not fall under the four corners of Goods Transport Agency service, hence the same is not liable to service tax.” The CESTAT set aside the impugned order and allowed the appeal.

Order under Customs Act is void Ab initio when the Same issue was already Adjudicated Neeraj Sharma vs Commissioner of Customs 2023 TAXSCAN (CESTAT) 866

The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) Adjudication order on the Customs Act is void Ab initio when the Same issue was already Adjudicated

The two-member bench comprising Mr Ramesh Nair, Member (Judicial) and Mr C L Mahar, Member (Technical) held that the present impugned order is ab-initio void and illegal. 

Extended period of Limitation not Invokable in Absence of Wilful Suppression to Evade Service Tax: CESTAT Goyal & Co Construction Pvt Ltd vs C.S.T.-Service Tax 2023 TAXSCAN (CESTAT) 865

The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) extended the period of limitation not invokable in the absence of wilful suppression to evade service tax.

The two-member bench comprising Mr Ramesh Nair, Member (Judicial) and Mr C L Mahar, Member (Technical) viewed that the show cause notice cannot be rectified by way of an Adjudication Order passed in such show cause notice. As regard the demand of Rs 57,068/- under the head of renting of immovable property, the Tribunal found that the levy of service Tax on renting of immovable property was not free from doubt. Moreover, the demand was raised based on scrutiny of the documents of the appellant during the audit. This also shows that the appellant has no intention to hide their transaction with the intent to evade payment of Service Tax, therefore, in the absence of any suppression of fact, fraud or collusion etc. the demand for the extended period cannot be sustained. Therefore, this demand for renting immovable property services is set aside on the ground of limitation.

Service Tax not Leviable on Construction of Residential Complex for the Use of Staff of Gujarat State Police Housing Corporation: CESTAT Shanti Construction vs Commissioner of Central Excise & ST 2023 TAXSCAN (CESTAT)

The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that service tax is not leviable on the construction of a residential complex for the use of staff of Gujarat State Police Housing Corporation.

 The two-member bench comprising Mr Ramesh Nair, Member (Judicial) and Mr C L Mahar, Member (Technical) held that the demand for service tax in the present case is also not sustainable.

CESTAT Reduces Bank Guarantee to Rs.18 lakhs for Provisional Release of Imported Dry Dates on ground of Proportionate Amount of Value of Goods M/s. K.L. International vs Commissioner of Customs 2023 TAXSCAN (CESTAT) 876

The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) reduced the bank guarantee or cash security to Rs.18 lakhs for provisional release of imported dry dates on the ground of proportionate amount of value of goods.

The two-member bench comprising Ramesh Nair (Judicial) and C.L Mahar (Technical) reduced the bank guarantee amount while allowing the appeal filed by the assessee.

Relief to BSNL: CESTAT Allows Refund Claim of Approx. Rs 2 Crores of Deposited Service Tax on Telecom Services on ground of Absence of Principle of Unjust Enrichment C.S.T.-Service Tax vs Bharat Sanchar Nigam Ltd 2023 TAXSCAN (CESTAT) 878

The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) allowed a refund claim of approximately Rs 2 crores of deposited service tax by Bharat Sanchar Nigam Ltd (BSNL) on telecom services on the ground of the absence of the principle of unjust enrichment.

The two-member bench comprising Ramesh Nair (Judicial) and C.L Mahar (Technical) upheld the sanctioning of the refund claim while dismissing the appeal filed by the department.

Services providing to Shipping Lines Falls Under Category of Steamer Agent u/s 65 (100) of Finance Act: CESTAT Upholds Service Tax Addition Intermark Shipping Agencies Pvt Limited vs Commissioner of Central Excise & ST 2023 TAXSCAN (CESTAT) 879

The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) upheld that the service tax addition on services provided to shipping lines falls under the category of steamer agent under section 65(100) of the Finance Act,1994.

The two-member bench comprising Ramesh Nair (Judicial) and C.L Mahar (Technical) upheld the demand for service tax while dismissing the appeal filed by the assessee.

Sanctioned Refund Claim can be Adjusted to Any Dues of Excise Duty as per Section 11 of Central Excise Act: CESTAT Astral Pharmaceuticals Industries vs Commissioner of Central Excise & ST 2023 TAXSCAN (CESTAT) 880

The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that the sanctioned refund claim can be adjusted to any dues of excise duty as per section 11 of the Central Excise Act,1944.

The two-member bench comprising Mr Ramesh Nair (Judicial) and C.L Mahar (Technical) upheld the decision of the Assistant Commissioner while dismissing the appeal filed by the assessee.

Excess Freight Collected From Customers, not Includable in Transaction Value for Charging Excise Duty: CESTAT Kashyap Sweetners Limited vs Commissioner of Central Excise & ST, Vapi 2023 TAXSCAN (CESTAT) 867

The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that excess freight collected from customers is not includable in transaction value for charging excise duty.

The two-member bench comprising Mr Ramesh Nair, Member (Judicial) and Mr C L Mahar, Member (Technical) held that “excess freight collected by the appellant from the customers shall not be included in the transaction value for charging excise duty.”  The CESTAT set aside the impugned orders and allowed the appeals.

CESTAT upholds Sanctioning of Refund Claim of Customs Duty on ground of Proper Verification of Entire Documents and Bill of Entry The Commissioner of Customs vs M/s. K.I. International Ltd. CITATION:   2023 TAXSCAN (CESTAT) 877

The Chennai bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) upheld sanctioning of refund The two-member bench comprising Sulekha Beevi (Judicial) and Vasa Seshagiri Rao (Technical) upheld the sanctioning of the refund claim by the Commissioner (Appeals) while dismissing the appeal filed by the revenue. The two-member bench comprising Sulekha Beevi (Judicial) and Vasa Seshagiri Rao (Technical) upheld the sanctioning of the refund claim by the Commissioner (Appeals) while dismissing the appeal filed by the revenue

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