This weekly round-up analytically summarizes the key stories of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) reported at taxscan.in, from June 30, 2024 to July 6, 2024.
The Kolkata bench of the Customs Excise and Service Tax Appellate Tribunal ( CESTAT ) has set aside the excise demand, citing that issuing the SCN after a gap of approximately two years and four months from the date of inspection was inappropriate.
The two member bench of the tribunal comprising R.Muralidhar ( Judicial member) and Rajeev Tandon ( Technical member ) hope that the department shall initiate some action against the erring officer/official for issuing show cause notice to the assessee after a gap of approximately two years and four months from the date of inspection at the factory of the assessee. Accordingly, the tribunal held that the confirmed demand is not sustainable even on the point of limitation. Accordingly, CESTAT allowed the Appeals both on merits as well as on limitation. The Appellants would be eligible for consequential relief.
The Mumbai bench of the Customs Excise and Service Tax Appellate Tribunal ( CESTAT ), citing the absence of a speaking order under Section 17(5) of the Customs Act, 1962 has remanded the case of reassessment back to the original authority.
Therefore, the two member bench of the tribunal comprising S.K. Mohanty (Judicial member) and M.M. Parthiban ( Technical member ) observed that the impugned order was set aside and the appeals were allowed in favour of the appellants by remanding the matter for a fresh decision by Original Authority after duly taking into consideration the various submissions to be made by the appellants. Accordingly, the appeals were allowed by way of remand for fresh de novo proceedings.
The Kolkata bench of the Customs Excise and Service Tax Appellate Tribunal (CESTAT) upheld the imposition of a 7.5% interest on the deposited demand, even though the taxpayer made a pre-deposit of the entire service tax demand.
The two member bench of the tribunal comprising Ashok Jindal ( Judicial member) and K.Anpazhakan ( Technical member) observed that appellant was entitled to claim the interest on 7.5% of the demand of service tax deposited (Rs.7,90,08,905/-) on 28.12.2018 till its realization i.e. 01.09.2022. In terms of the decision of the Tribunal in the case of Parle Agro Private Limited (supra), the appellant was entitled for interest at the rate of 12% per annum. In conclusion, CESTAT held that the appellant was entitled to interest on 7.5% of Rs.7, 90, 08,905/- from 28.12.2018 till 01.09.2022 at the rate of 12% per annum, accordingly, the appeal was disposed of.
The Mumbai bench of the Customs Excise and Service Tax Appellate Tribunal ( CESTAT ) ruled that Small Form-Factor Pluggable ( SFP ) optical transceivers of various models should be classified under Customs Tariff Item ( CTI ) 8517 7090, making them eligible for exemption or duty concession.
The two member bench of the tribunal comprising S.K. Mohanty (Judicial member) and M.M. Parthiban (Technical member) observed that the small form-factor pluggable optical transceivers of various models are classifiable under Customs Tariff Item ( CTI ) 8517 7090, and not under CTH 8517 62 90, as claimed by Revenue. Accordingly, the impugned goods are eligible for exemption/duty concession under Serial No. 5(a) of Notification No. 57/2017-Customs dated 30.06.2017, as amended. Therefore, we are of the considered view that the impugned order passed by the learned Commissioner (Appeals) in confirmation of the adjudged demands in the original order cannot be sustained on merits. Accordingly, the appeal was allowed in favour of the appellants, by setting aside the impugned order.
The Chandigarh bench of the Customs, Excise, and Service Tax Appellate Tribunal ( CESTAT ) has held that the department cannot challenge the commissioner’s order if customs duty demand is below the threshold limit prescribed by the Central Board of Indirect Taxes and Customs ( CBIC ).
The two member bench of S. S. Garg (Judicial Member) and P. Anjani Kumar (Technical Member) has observed that the amount of duty involved in the appeal is below the threshold limit prescribed in the circular dated November 2, 2023, issued by the CBIC. The circular provides that if the duty amount involved is less than Rs. 50 lakhs, then no appeal shall be filed before the CESTAT, and if already filed, it will be withdrawn by the department. While dismissing the appeal, the tribunal held that the appeal filed by the department is not maintainable as per the instructions dated November 2, 2023, issued by the Board.
The Hyderabad bench of the Customs Excise and Service Tax Appellate Tribunal ( CESTAT ) ruled that externally funded research projects not attract service tax The issue to be decided was whether externally funded research projects attract service tax
The two member bench of the tribunal comprising Anil Chodhary ( Judicial member) and A.K Jyotishi ( Technical member) held that “service” in terms of section 65B(44) of the Finance Act 1994 was not provided by the appellant to its funders for research projects, further observe that there was no “suppression” of facts. The ratio of the case law cited by the appellant squarely applies to the case. Hence neither extended period of limitation nor penalties under section 78 were justifiable. All penalties were set aside, Appeals were allowed
The Kolkata bench of the Customs Excise and Service Tax Appellate Tribunal ( CESTAT ) has remanded the matter to the Adjudicating Authority, stating that the service should not be classified as construction services or renting of immovable property.
The single member bench of the tribunal comprising R Muralisdhar ( Judicial member ) does not see any statutory provisions allowing the service recipient to dispute the classification of the service provider and take up the issue with the jurisdictional authorities of the service provider to re-classify the service or verify the already finalized ST-3 Returns. No third party can make such a request except for the concerned assessee himself. Accordingly, reject the request for remanding the matter to the Adjudicating Authority and dismiss the Appeal.
The Hyderabad bench of the Customs Excise and Service Tax Appellate Tribunal ( CESTAT ) has set aside the order, ruling that the Extended Period of Limitation cannot be invoked to raise a demand for the Integrated Goods and Service Tax ( IGST ) portion of Customs Duty, as it is available as Input Tax Credit (ITC).
The two member bench of the tribunal comprising Anil Choudhary (Judicial member) and A.K Jyotishi (Technical member) found that it was a case of contributory negligence on the part of Revenue also, as in spite of having registered the Advance Authorisation and the entitlement of the appellant to exemption under Notification No. 21/2015–CUS, have allowed the exemption of IGST also as applicable under Notification No. 18/2015– CUS. Further held that the demand was not invokable by invocation to extended period of limitation. Accordingly, CESTAT allowed appeal and set aside the impugned order. The appellant shall be entitled to consequential benefits in accordance with law.
The Hyderabad bench of the Customs Excise and Service Tax Appellate Tribunal (CESTAT) has set aside the demand, ruling that Hyderabad Municipal Corporation (GHMC) was not liable to pay Service Tax on Manpower Supply Services and Cab Rent Services under the Reverse Charge Mechanism (RCM).
Accordingly, the two member bench of the tribunal comprising Anil Choudhary ( Judicial member) and A.K Jyotishi ( Technical member) allowed this ground in favour of the appellant and set aside the demand of Rs.15,18,18,931/-8. Consequently, CESTAT held that appropriation of Rs.7, 98, 52,484/- paid by the appellant during investigation was not legally sustainable and accordingly set aside the same.
The Kolkata bench of the Customs Excise and Service Tax Appellate Tribunal ( CESTAT ) set aside the penalty under Section 114 AA, ruling that there was no violation of statutory provisions regarding pollution and hazardous materials in the imported consignment of waste paper.
The two member bench of the tribunal comprising R. Muralidhar ( Judicial member) and Rajeev Tandon ( Technical member) holding that there was no violation of statutory provision of Pollution and Hazardous materials in the imported consignment, the confiscation ordered in the impugned Order-in-Appeal, would be treated as set aside. Accordingly, the appeal was disposed of.
The Allahabad bench of the Customs Excise and Service Tax Appellate Tribunal ( CESTAT ) ruled that Central Value Added Tax ( CENVAT ) credit should be allowed in respect of Goods Transport Agency ( GTA ) services used for outward transportation.
Thus the single member bench of the tribunal comprising Sanjiv Srivastava (Technical member) observed that if the clearance of the goods was on for basis, the Board has clarified that CENVAT credit should have been allowed in respect of GTA services used for outward transportation.
The Mumbai bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) ruled that there will be no confiscation or fine for the storage of non-bonded goods in a bonded warehouse with the Customs Department’s permission.
The two member bench of the tribunal comprising S.K. Mohanty ( Judicial member) and M.M. Parthiban ( Technical member) does not find any merits in the impugned order dated 08.01.2024, insofar as it has ordered for confiscation of goods, imposed redemption fine and penalties on the appellants. Since CESTAT did not find any substance in confirmation of the adjudged demands towards fine and penalties, the impugned order passed for revocation of suspension of warehousing operation shall also not be sustained. Therefore, the impugned order dated 08.01.2024 was set aside in its entirety and the appeal is allowed in favour of the appellants.
The Mumbai bench of the Customs Excise and Service Tax Appellate Tribunal ( CESTAT ) ruled that intellectual property, specifically copyrights, was intangible and does not fall under the definition of services under section 65B (44).
The two member bench of the tribunal comprising Dr. Suvendu Kumar Pati (Judicial member) and Anil G. Shakkarwar (Technical member) observed that the Clause 29A of Article 366 of Constitution of India defines all services associated with sale of goods or lease of the kind as deemed sale and as because Intellectual Property, which in the present case is copyright and other related rights in the nature of performance, play etc. that is not in tangible form, the same may not be included under the definition of services under Section 65B (44 read with Section 66E) but the very fact that Section 65 (55b) that defines “Intellectual Property Services” expressly excludes copyright from the category of Intellectual Property services and there is also no demand against such license fee/ royalty collected by the appellant from the customers/ users, the order of the Commissioner is unsustainable in both law and facts. Further demand being confirmed against administrative expenditure that was deducted from the membership fee and royalty/ licence fee by a non-profit organization namely assesse, consideration should also be treated as ‘Nil’ for the purpose of taxation. Accordingly, the appeal was allowed and the order passed by the Commissioner of Service.
The Kolkata bench of the Customs Excise and Service Tax Appellate Tribunal ( CESTAT ) ruled that royalty and license fees are not addable to the transaction value of imported parts and components.
The two member bench of the tribunal comprising Ashok Jindal (Judicial member) and K. Anpazhakan (Technical member) observed that when the imported goods are mixed with domestic ingredients and are no longer separately identifiable, or when the Royalty cannot be distinguished from special financial arrangements between the buyer and the seller, in those circumstances, Royalty is not addable to the Transaction value of the imported parts and components. CESTAT hold that Royalty and License Fees were not includable in the transaction value of the imported parts and components and uphold the impugned order and reject the appeal filed by the revenue.
The Mumbai Bench of Customs, Excise, and Service Tax Appellate Tribunal ( CESTAT ) has allowed the CENVAT credit taken by the appellant, HDFC ERGO, against duty paid on re-insuring motor vehicles while providing general insurance service for the period from April 2011 to March 2012.
The two-member bench of Suvendu Kumar Pati (Judicial Member) and Anil G. Shakkarwar (Technical Member) has observed that the Commissioner committed a blunder in reproducing the section wrongly in his order and replacing “provider of output service” with “provider of input service” to reach his findings that credit is not admissible. While allowing the appeal, the Tribunal held that the appellant is entitled to avail CENVAT Credit on reinsurance of motor vehicles and the credit availed by it during the relevant period from April 2011 to March 2012.
While Quashing Customs Duty against Vodafone idea, the Delhi Bench of Customs, Excise, and Service Tax Appellate Tribunal ( CESTAT ) has held that Hybrid/Pure Matrix Cards for PTN Equipment would be classifiable under CTI 8517 70 10 as “parts of goods, and Small Form Factor Pluggable for Packet Transport Network ( PTN ) Equipment would be classifiable under CTI 8517 70 90.
The two-member bench of Justice Dilip Gupta (President) and P.V. Subba Rao ( Technical Member ) has observed that NIC is effectively a translator, which allows a computer to communicate with a network by translating the output of the computer into a format understandable by the network and vice versa. The Tribunal while allowing the appeal set aside the order challenged by the assessee.
In the matter of PVS Multiplex India, the Allahabad Bench of Customs, Excise, and Service Tax Appellate Tribunal ( CESTAT ) held that the screening of films cannot be categorised under business support service and quashed the demand.
The two member bench of P.K. Choudhary (Judicial Member) and Sanjiv Srivastava (Technical Member) observed that the theatre owner screens or exhibits a movie that has been provided by the distributor. Such an exhibition is not a support or assistance activity but is an activity of its own accord. That being the case, such an activity cannot fall under ‘Business Support Service’.
In a recent case, the Delhi Bench of Customs, Excise, and Service Tax Appellate Tribunal ( CESTAT ) has held that service tax is not payable on an amount received by an automobile dealer from the manufacturer as a trade discount.
The two-member bench of Binu Tamta (Judicial Member) and P. V. Subba Rao (Technical Member) has observed that any amount received by an automobile dealer from the manufacturer as a trade discount, including a quantity discount (which is a trade discount given based on volume of purchase), are not amounts received for providing any taxable service but purely discounts received on account of the trade and meeting certain sales targets. While allowing the appeal, the CESTAT Tribunal held that the amounts cannot be charged to service tax and set aside the demand.
The Mumbai bench of the Customs, Excise, and Service Tax Appellate Tribunal ( CESTAT ) ruled that failure to meet obligations under regulation 10 (e) of Customs Broker License Management ( CBLR ) results in partial forfeiture of the Security Deposit.
The two member bench of the tribunal comprising S.K. Mohanty ( Judicial member ) and M.M. Parthiban ( Technical member ) do not find any merits in the impugned order passed by the Commissioner of Customs (General), Mumbai in forfeiture of security deposit of Rs.15, 000/- for violations under Regulations 13(d), 13(e) and 13(n) of CHALR, 2004 corresponding to 10(d), 10(e) and 10(m) of CBLR, 2018. However, in view of the failure of the part of assessee in not having acted in a proactive manner in fulfillment of the obligation under Regulation 10(e) ibid, corresponding to 13(e) of CHALR, 2004 particularly when they had received the documents indicating the correct HS code for the imported goods, further find that it was justifiable to partially forfeit the security deposit to the extent of Rs.5,000/-, which would be reasonable, commensurate with the violation and would be in line with the judgment of the Supreme Court in the case of K.M. Ganatra ( supra ), in bringing out the importance of the crucial role played by a Customs Broker, Accordingly, CESTAT allow the appeal in favor of the assessee.
The Kolkata bench of the Customs, Excise, and Service Tax Appellate Tribunal ( CESTAT) has provided relief to Hindustan Aeronautics by setting aside the service tax on license fees and other incidental expenses paid to a foreign company.
Therefore, the two member bench of the tribunal comprising Ashok Jindal ( Judicial member) and Rajeev Tandon ( Technical member) does not agree with the findings of the Commissioner that the assessee had deliberately suppressed material information by wrongly classifying the service as ‘Export of Service’ with the intent to evade duty. On the contrary, the assessee has pointed out that it was inappropriately shown as ‘Export of Service,’ but nothing was concealed in the statutory records and returns filed.. Thus, the demand for the extended period cannot be sustained as there is nothing on record to establish mala-fides on the part of the appellant. Further hold that the extended period of limitation is not invokable in the circumstances. CESTAT set aside the impugned order and allow the appeal of the assessee.
The Mumbai bench of the Customs Excise and Service Tax Appellate Tribunal ( CESTAT ) quashed the limitation-barred order, citing unsatisfied conditions under Section 28 of the Customs Act.
The two member bench of the tribunal comprising S.K. Mohanty ( Judicial member ) and M Parthiban ( Technical member ) does not find any merits in the impugned order, insofar as it has upheld confirmation of the adjudged demands made beyond the normal period of limitation. Therefore, the appeal was allowed in favour of appellant only on the ground of limitation.
In a recent case, the Chennai Bench of Custom, Excise, and Service Tax Appellate Tribunal ( CESTAT ) has held that no service tax payable on Tax Deducted at Source ( TDS ) is paid on behalf of a foreign service provider.
The two-member bench of P. Dinesha (Judicial Member) and M. Ajit Kumar (Technical Member) has observed that TDS deposited to the Income Tax Department in relation to the payment made to the foreign service provider over and above the invoice value of the services is not liable to service tax.
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