CESTAT Weekly 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 June 3 to June 9 2023. No evidence proves Unjust enrichment, Refund of Excess Paid Duty must be Credit to Consumer Welfare Fund: CESTAT Pr. Commissioner of Customs Central Tax vs Sachdev Overseas Fitness Pvt Ltd CITATION: 2023 TAXSCAN (CESTAT) 575 The Hyderabad bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT)has held that refund of excess paid duty must be credited to the consumer welfare fund in the absence of evidence to prove unjust enrichment. A single-member bench comprising Mr A K Jyotishi, Member (Technical) viewed that in the absence of any evidence, merely producing a CA certificate would not suffice to shift the burden of presumption for Section 27 read with Section 28C of the Customs Act. The bench set aside the Order of the Commissioner (Appeals) and restored the Order of the Original Authority. Claim for Refund of Special Additional Duty should be filed within one year from Payment of Duty: CESTAT M/s. Ingram Micro India Ltd. vs Commissioner of Customs (Imports – Air) CITATION: 2023 TAXSCAN (CESTAT) 578 The Chennai Bench of Customs, Excise Service Tax Appellate & Tribunal(CESTAT) held that the claim of refund of special additional duty(SAD) should be filed within one year from the payment of duty. The two-member bench comprising of Ms Sulekha Beevi C.S., Member (Judicial) and Shri M. Ajit Kumar, Member (Technical) held that any payment of duty made was entitled to a refund if filed within one year while dismissing the appeal filed by the assessee. Issuance of Show Cause Notice After the Expiry of Time Limit: CESTAT quashes Order M/s. Same Deutz – Fahr India (P) Ltd. vs Commissioner of GST & Central Excise CITATION: 2023 TAXSCAN (CESTAT) 579 The Chennai bench of Customs, Excise & Service Tax Appellate Tribunal(CESTAT) quashed the order passed by the Commissioner of Central Excise for the issuance of show cause notice after the expiry of time limit. The two-member bench comprising of Shri. Sulekha Beevi C.S., Member (Judicial) and Shri M. Ajit Kumar, Member (Technical) held that the department was not justified in invoking the larger time limit for the issuance of show cause notice while allowing the appeal filed by the assessee. Emails of Supplier not an Authentic Evidence to Prove the Contention of Wrong Supply by Importer: CESTAT The Commissioner of Customs vs M/s. Sree Nakoda Enterprises CITATION: 2023 TAXSCAN (CESTAT) 576 The Chennai bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) has held that the emails of the supplier not authentic evidence to prove the contention of wrong supply by the importer. “The Commissioner (Appeals) committed an error in allowing the appeal of the importer without there being any evidence in support of the importer’s claim and hence, the impugned order cannot sustain.”, the bench held. Unloading goods incidental to Transportation comes under ‘Cargo Handling Service’: CESTAT upholds Service Tax demand A. Vijayakumar vs Commissioner of Central Excise and Service Tax CITATION: 2023 TAXSCAN (CESTAT) 581 The Chennai bench of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) upheld the Service tax demand and observed that the activities of the appellant clearly fall under the definition of cargo handling service. The appellant did not even submit ST-3 results within the required timeframe, according to the bench of Vasa Seshagiri Rao and P. Dinesha. The tribunal is convinced that even the appellant’s claim that the extended period of limitation was invoked is incorrect. Refund of Service Tax paid Mistakenly on GTA service of Cylinder: CESTAT dismisses Petition on failure to Demarcate Service Period Bharat Cylinders vs Commissioner of GST & Central Excise CITATION: 2023 TAXSCAN (CESTAT) 577 The Chennai bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) in a recent case dismissed the appeal due to the failure by the appellant to demarcate the service period of Refund claimed on Service tax paid mistakenly on Goods and Transport Service (GTA) of the cylinder. A two-member bench comprising Ms Sulekha Beevi C.S., Member (Judicial) and Shri M. Ajit Kumar, Member (Technical) observed that the period involved in the present appeal overlaps with the period for which the demand has been confirmed. While dismissing the appeal, the CESTAT held that the appellant is not eligible for a refund and upheld the impugned order. Data already mentioned in ER-1 Returns and non-furnishing same is not Suppression of Facts: CESTAT sustains Interest Demand on Differential Duty only for normal Period Ashok Iron Works (P) Ltd vs Commissioner of Central Excise CITATION: 2023 TAXSCAN (CESTAT) 582 The Bangalore bench of Customs, Excise and Services Tax Appellate Tribunal (CESTAT) sustained the demand of interest on differential duty only for the normal period. The bench allowed the appeal partially and modified the impugned order to the extent of confirming recovery of interest for the normal period. The tribunal stated that as a result of a change in the law relating to the applicability of the statute of limitations for interest recovery that went into effect on April 8, 2011, the demand for interest can only be supported for the normal term. Additionally, since there is no suppression of fact, the bench refused to impose the penalty and it was warranted. H. Jayathirtha, Superintendent appeared as the Authorised Representative for the Respondent. Service Tax excess Paid can be adjusted against Succeeding month or Quarter: CESTAT sets aside Penalty Order M/s B.L. Kashyap & Sons Ltd vs Commissioner of Service Tax CITATION: 2023 TAXSCAN (CESTAT) 583 The Delhi Bench of Customs Excise and Services Tax Appellate Tribunal (CESTAT) has set aside the both service demand and penalty order imposed against the appellant by the department and observed that the service tax excess paid can be adjusted against the succeeding month or quarter. The appellant is qualified to take advantage of the provisions of Rule 6 (4A) of the STR, 1994, according to the two-bench of Justice Dilip Gupta (President) and P. Anjali Kumar (Technical Member). Furthermore stated that neither the SCN nor the contested order contests the fact that the appellant has made good on the service tax shortfall they paid, along with interest. No records to prove availment of Cenvat Credit while Rejecting Service Tax Refund Claim: CESTAT directs Re-Adjudication Fairy Food Products (Pvt.) Ltd. vs Commissioner of Central Excise(Appeals-I) CITATION: 2023 TAXSCAN (CESTAT) 584 The Bangalore Bench of Central Excise and Services Tax Appellate Tribunal (CESTAT) has set aside the service tax refund claim order and directed the adjudicating authority to re-adjudicate the case as there was no evidence or records were submitted to prove the availment of Cenvat Credit during Service Tax refund claim. Processing of Beach Sand Minerals results to form Processed Ilmenite, Attracts 5% FOB value: CESTAT Beach Minerals Company vs Commissioner of Customs CITATION: 2023 TAXSCAN (CESTAT) 585 The Chennai Bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) has held that processing of beach sand minerals results to form processed ilmenite and it attracts 5% on Free On Board(FOB) value as per Customs Notification. A two-member bench comprising Ms Sulekha Beevi C S, Member (Judicial) and Mr M Ajit Kumar, Member (Technical) held that “Ilmenite” exported by the appellant is rightly classifiable under CH 2614 00 20 of CTH as “Ilmenite upgraded (Beneficiated Ilmenite) and chargeable to appropriate export duty and not under 2614 00 10 of CTH. The authority allowed and set aside the impugned order. Top Stories Difference in Books of Account Reconciled with Corroborative Evidence: CESTAT sets aside Penalty under Excise Act M/s. Surya Metalloy Pvt Ltd vs Commissioner (Appeals) of Central Excise Respondent CITATION: 2023 TAXSCAN (CESTAT) 586 The Delhi Bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) set aside the penalty imposed under the Central Excise Act, 1944 as the difference in books of account was reconciled with corroborative evidence. Despite finding that the apparent difference is properly reconciled, still, the Commissioner (Appeals) has rejected the appeal by some irrelevant observations without there being any finding of fact against the pleadings of the appellant. While allowing the appeal, the Court set aside the impugned order. Rate Fixed as Measure of Value of Services: CESTAT upholds Service Tax Demand on Manpower Recruitment or Supply Agency Service M/s.Talking Technologies (P) Ltd vs Commissioner of GST & Central Excise CITATION: 2023 TAXSCAN (CESTAT) 588 The Chennai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), upheld service tax demand on manpower recruitment or supply agency service’ taking into consideration that the rate fixed is a measure of value of services. It was submitted by the Authorized Representative that the appeal filed by the party before the Apex Court against such a decision has been dismissed as withdrawn. A Two-Member Bench of the Tribunal comprising CS Sulekha Beevi and M Ajit Kumar, Technical Member upheld the service tax demand on the manpower recruitment or supply agency service. No Excise Duty on Surplus Freight Charges Collected from Customers since Excluded from Assessable Value: CESTAT M/s. Concrete Products and Construction Co vs Commissioner of GST & Central Excise CITATION: 2023 TAXSCAN (CESTAT) 591 The Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Chennai bench has held that no Excise Duty to be levied on the surplus freight charges collected by the assessee from the customers since the same is excluded from the determination of the Assessable Value for discharging the Central Excise Duty. The two-member bench consisting of Ms Sulekha Beevi C.S. (Judicial Member) and Mr M. Ajit Kumar (Technical Member) held that the demand for excise duty cannot be sustained. Therefore, the order demanding excise duty was set aside, and the appeal was allowed with consequential reliefs, if any, as per law. CESTAT allows Cenvat Credit on ‘inputs’ used in the Manufacture of Rerolled Products, Excise Duty not Leviable M/s Sarva Mangalam Gajanan Steel Pvt. Ltd. vs Commissioner of CGST & Central Excise CITATION: 2023 TAXSCAN (CESTAT) 590 Kolkata Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), allowed cenvat credit on ‘inputs’ used in the manufacture of Rerolled products and held that the excise duty was not leviable on the same. A Two-Member Bench consisting of P.K Choudhary, Judicial Member and K Anpazhakan Technical Member observed that “the appellant is eligible for the cenvat credit availed on the ‘inputs’ used in the manufacture of their final products namely, Rerolled products, etc and hence the demands made in the impugned order is not sustainable.” Relief to Wipro: CESTAT quashes Excise Duty Demand allowing Transfer of Credit to DTA Unit after Merger M/s. WIPRO Ltd vs Commissioner of GST & Central Excise CITATION: 2023 TAXSCAN (CESTAT) 587 The Chennai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashes excise duty demand allowing transfer of credit to Domestic Tariff Area (DTA) unit after merger, thereby granting relief to Wipro. A Two-Member Bench of the Tribunal comprising Sulekha Beevi C.S., Member (Judicial) and M. Ajit Kumar, Member (Technical) observed that “The denial of carry forward of accumulated Cenvat credit to assessee’s debonding from the ‘100% Exported Oriented Unit’ scheme to continue operations without the privileges is not correct in law and is set aside.” Determination on Portion of Coaching Services covered by Service Tax Demand: CESTAT Remands Back Matter M/s. SRM Institute of Hotel Management vs Commissioner of GST & Central Excise CITATION: 2023 TAXSCAN (CESTAT) 589 The Chennai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), remanded back matter to determine on what portion of coaching services is covered by service tax demand. Remanding the matter to the adjudicating authority for denovo consideration a Two-Member Bench of the Tribunal comprising M Ajit Kumar, Technical Member and CS Sulekha Beevi, Judicial Member observed that “We are not able to understand whether separate fees are collected from students for this course. The order is not clear as to the details of demand in regard to this course. The appellant has not been able to show as to what portion of the demand is covered by the fees collected for the course approved by the Industries Department.” Service Tax under BAS not Leviable Incentives from Manufacturer for Sale of Cars: CESTAT M/s. S.K. Cars India (P) Ltd. vs Commissioner of GST & Central Excise CITATION: 2023 TAXSCAN (CESTAT) 592 The Chennai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), observed that the Service tax under Business Auxiliary Services (BAS) is not leviable Incentives from manufacturers for the sale of cars. A Two-Member Bench of the Tribunal comprising CS Sulekha Beevi CS, Judicial Member and M Ajit Kumar, Technical Member observed that “We hold that the incentives received by the appellant cannot be subject to levy of service tax under the category of Business Auxiliary Services.” Merely Sending Order-in-Original by Registered Post would not Amount to Valid Communication: CESTAT Metro Fashions vs Commissioner of Customs CITATION: 2023 TAXSCAN (CESTAT) 593 The Mumbai bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) has held that merely sending an order-in-original by registered post would not amount to valid communication. The CESTAT bench comprising Mr Ajay Sharma, Member (Judicial) observed that the appellant received a copy of the Order-inOriginal on 13.9.2019 the appeal before the Commissioner (A) was filed on 24.10.2019 which is well within a period of three months from the date of receipt/communication of the Order-in-Original. The bench set aside the impugned order and remanded the matter back to the Commissioner (Appeals) to decide the same on merits after following the principle of natural justice within a period of three months. Entry u/s 65(105)(zzd) invokable only for Construction Simpliciter, Service tax under Category of Commercial or Industrial Construction Not demandable: CESTAT M/s. National Building Construction Corporation Limited vs Commissioner of Central Excise & Service Tax CITATION: 2023 TAXSCAN (CESTAT) 596 In a significant case, the Kolkata bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) has held that Entry under section 65(105)(zzd) the Finance Act, 1994 is invokable only for construction simpliciter and held that service tax under the category of commercial or industrial construction not demandable. A Coram comprising Shri P K Choudhary, Member(Judicial) and Shri K Anpazhakan, Member(Technical) observed that the entry under Section 65(105)(zzd) is liable to be invoked only for construction simpliciter. Therefore, there is no scope for vivisection to isolate the service component of the contract. It was held that entry under Section 65(105)(zzd) of the Finance Act, 1994 is liable to be invoked only for construction simpliciter and set aside the demand of service tax under the category of Commercial or Industrial Construction. No Bar of Unjust Enrichment Applicable When Payment made by Appellant: CESTAT allows Refund of Service Tax M/s Pecon Computech Pvt. Ltd vs Commissioner of CGST & Excise CITATION: 2023 TAXSCAN (CESTAT) 595 The Kolkata bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) has held that no bar of unjust enrichment is applicable when payment is made by the appellant and allowed the refund of Service Tax. A Single member bench comprising Mr Ashok Jindal, Member (Judicial) held that “no bar of unjust enrichment is applicable in the facts and circumstances of this case, as the appellant has also made the payment for the period from 10.09.2004 to 15.06.2005 on 26.02.2011.” While allowing the appeal, the CESTAT set aside the impugned order. Claim of Cenvat Credit cannot be rejected without considering Evidence: CESTAT M/s Astoria Agro & Allied Inds. Pvt. Ltd vs Commissioner of CGST & CEx CITATION: 2023 TAXSCAN (CESTAT) 594 The Mumbai bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) has held that claim of Cenvat Credit cannot be rejected without considering the evidence submitted by the appellant. To consider the claim made by the appellant, then it has to be looked into by the Commissioner and cannot be brushed aside merely being an afterthought. The bench comprising Mr Ajay Sharma, member (judicial) set aside the impugned orders and remanded the appeal to the Commissioner (Appeals) to be decided afresh within a period of three months, after giving reasonable opportunity of hearing to the appellants. Audit on Selected Basis Undermines Purpose of Departmental Audit: CESTAT quashes Customs Duty Demand Fiberweb India Ltd vs C.C.E. & S.T.-Daman CITATION: 2023 TAXSCAN (CESTAT) 598 The Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) quashed customs duty demand and observed that the audit on a selected basis undermines the purpose of departmental audit. Quashing the customs duty demand the Tribunal noted that the department while demanding duty was not sure of the provision of law under which the same had to be demanded and even the penalty has been imposed under Section 112 of the Customs Act, 1962, whereas the duty should have been demanded under Central Excise Act and penalty imposed under Central Excise Act/ Rules only. Support our journalism by subscribing to Taxscan premium. Follow us on Telegram for quick updates

CESTAT Weekly Round-Up

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