This weekly summary analyses the stories related to the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) that have been published at Taxscan.in. during the previous week from September 23 to September 29 2023.
In a ruling in favour of Dabur India Ltd, the Kolkata bench of Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that Rule 6 of the Cenvat Credit Rules, 2004 as Honey is not an Exempted Good.
In light of judgement of Supreme Court in the case of Union of India v. DSCL Sugar Ltd, the two member bench comprising Shri Ashok Jindal, Member(Judicial) and Shri K Anpazhakan, Member(Technical) held that the provisions of rule 6 are not applicable to the facts of this case as Honey is not an exempted goods. Further held that the proceedings against the appellant are not sustainable under Rule 6 of the Cenvat Credit Rules, 2004.
The Chennai bench of Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that appeal before the tribunal abates from the date of approval of the resolution plan by the National Company Law Tribunal (NCLT).
The Tribunal observed that the order of the NCLT, Chennai dated 26.3.2019 has approved the Resolution Plan of the Resolution Professional which is bound to the Corporate Debtors and other stakeholders involved. As per the non-obstante clause of Section 238 of the Code, the provisions of the Code will have an overriding effect if there are any inconsistencies with any of the provisions of the law for the time being in force. In light of Ghanashyam Mishra and Sons Pvt. Ltd. vs. Edelweiss Asset Reconstruction Company Ltd. & Ors. the two-member bench Shri P. Dinesha, Member (Judicial) and Shri M. Ajit Kumar, Member (Technical) that “the appeal filed before this Tribunal abates. The matter is disposed of accordingly.”
The Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), confirmed the service tax demand as refund claim not filed within one year from date of payment of service tax
A Single Bench of Anil G. Shakkarwar, Member (Technical) observed that “Under the provisions of Section 11B of Central Excise Act, 1944, the refund claim has to be filed within one year from the relevant date and in the present case, relevant date is date of payment of service tax. It is clear from the record that the present refund claim was not filed within one year from the date of payment of service tax. I, therefore, do not find any infirmity in the impugned order.”
The New Delhi Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed refund of the excise duty as the refund application was not filed within the time limit prescribed in the proviso to section 11C(2) of the Excise Act, 1944.
A Two-Member Bench comprising Justice Dilip Gupta, President and PV Subba Rao, Technical Member observed that “The refund applications filed by the respondent on 15.12.2017 pursuant to the issuance of the Notification dated 24.04.2017 was, therefore, liable to be rejected for the reason that it was not filed within the period of six months from the date of issue of the Notification as specified in the proviso to sub-section (2) of section 11C of the Excise Act.” The Bench concluded by noting that the respondent would not be entitled to refund of the excise duty as the refund application was not filed within the time limit prescribed in the proviso to section 11C(2) of the Excise Act.
The Kolkata Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), ruled that M/s. The Advertising Corporation of India Private Limited, the appellant is liable to pay service tax on advertising services to Government of India.
A Two-Member Bench comprising Ashok Jindal, Judicial Member and K Anpazhakan, Technical Member observed that “We hold that on the services provided by the appellant to the Government, the appellant is liable to pay service tax. The assessee is liable to pay service tax on the services provided to the Government of India and Rest of the demand against the assessee are set aside.”
The Chandigarh Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed excise duty demand on goods exported on Free of Charge (FOC) basis, thereby granting relief to M/s Hero Motocorp Limited, the appellant.
The Tribunal of SS Garg, Judicial Member observed that “I find that at the time of export no objection was raised by the department neither at the time of export nor at the time of submission of document with Central Excise department that receipt of sale proceedings in foreign currency is required for FOC exports.” The Bench further observed that “I find that the impugned order relying upon the RBI Master Circular No. 14/2012-13 dated. 02.07.2012 is not justified because there is no allegation regarding the same in the show cause notice which is the foundation upon which the department has to build its case. Therefore, in my view, the entire demand is bad in law.”
The Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), allowed refund when excise duty was paid under protest and thereby granting relief to Indian Oil Corporation Ltd, the appellant.
A Two-Member Bench comprising Ramesh Nair, Judicial Member and Raju, Technical Member observed that “We find that the appellant had paid the duty on the behest of the audit objection which itself is a payment of duty under protest. Moreover, the appellant has also clearly mentioned in their TR-6 challan that the payment of duty is under protest. The appellant has also submitted a letter declaring that such payment of duty is under protest. In this position limitation provided under section 11B is not applicable for refunding the Excise Duty.”
The Chennai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed service tax demand as repair service was done outside India and observed that levy of service tax on maintenance and repair services is on basis of the place of performance.
A Two-Member Bench comprising CS Sulekha Beevi, Judicial Member and Vasa Seshagiri Rao, Technical Member observed that “It is very much clear that the repair services were done outside India. The levy of Service Tax on Maintenance and Repair Services is on the basis of the place of performance and therefore the demand cannot be sustained as the services have been performed outside India and not received in India. For this reason, we hold that the demand under this category cannot sustain and requires to be set aside which we hereby do.”
The Chandigarh Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), observed that service tax is not leviable on the demand confirmed on the basis of difference between figures of ST-3 Returns and balance sheets.
A Two-Member Bench comprising SS Garg, Judicial Member and P Anjani Kumar, Technical Member observed that “We find that it is a settled principle of law that service tax can be levied only when there is a clear identification of service provider, service recipient and consideration paid for the same. In the absence of any such evidence of the service recipient and the service provided, service tax cannot be demanded and confirmed.”
The Mumbai bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that piecemeal adjudication was not permissible and remanded the matter to determine the MRP as per Rule 4 of the Central Excise (Determination of Retail Sale Price of Excise Goods) Rules, 2008.
The two-member bench consisting of C J Mathew (Technical Member) and Ajay Sharma (Judicial Member) after hearing both sides held that “Piecemeal adjudication is the least of the judicial virtues which we do not approve. The learned Commissioner has completed only a part while another part either has been left open or left to the department and by this approach he would be triggering another round of litigation”. They held that the denial of cross-examining the officers who investigated the case was not justified because justice should not only be done but must be seen to be done. The bench also approved the dropping demand of Rs.1,36,29,729/- as it was accepted by the department and no appeal was filed against it by the company, having attained finality. The appeals were allowed by way of remand.
The Kolkata Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), ruled that objection on eligibility of credit cannot be raised at time filing of refund claim, thereby granting relief to M/s Infosys Technologies Ltd, the respondent.
A Two-Member Bench comprising Ashok Jindal, Judicial Member and K Anpazhakan, Technical Member observed that “We observe that prior to 1.4.2011 the ‘input service’ definition in Rule 2(l) of the Cenvat Credit Rules, 2004 was very wide as it was an inclusive definition and covered the expression “activities relating to business”. This covers all such ‘input services’ used by the Respondent in providing their output services. Accordingly, we hold that there is no infirmity in the impugned order passed by the Commissioner (Appeals) allowing the refund.”
The Chandigarh Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed the allegation of clandestine removal of chemicals without payment of excise duty and observed that expert evidence cannot be brushed aside for non-technical reasons.
A Two-Member Bench comprising SS Garg, Judicial Member and P Anjani Kumar, Technical Member observed that “The certificates issued by other agencies and the Deputy Director of Horticulture, Government of Jammu & Kashmir speak of the possibility and feasibility of the use of the impugned chemicals in the post-harvest treatment of apples. As submitted by the learned Counsel for the respondents, we find that the expert evidence given cannot be brushed aside for non-technical reasons. If the Department did not want to rely upon the technical opinion, the same should have been done by countering technical opinion by expert opinion authoritatively countering the opinion given.”
In a major relief to M/s Kissan Fats Limited, the Chandigarh Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), ruled that waste, gums, fatty acids etc arising on manufacture of vegetable oils are eligible for excise duty exemption.
A Two-Member Bench comprising SS Garg, Judicial Member and P Anjani Kumar, Technical Member observed that “Coming to the Department’s contention that the decision in the case of A.G. Fats, which was affirmed by the Supreme Court, was not discussed by the Larger Bench will not be of any avail as the decision in the case of M/s Marico Limited is the latest one and requires to be followed, therefore, by following the principles of judicial discipline, we are of the considered opinion that waste, gums, fatty acids etc. arising during the course of manufacture of vegetable oils are eligible for the exemption Notification No.89/95.”
The Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Chennai bench has ruled that liquidated damages are not subject to Service Tax. This ruling came in response to the appeal filed by M/s. Bharat Heavy Electricals Limited (BHEL), Vellore, Tamil Nadu, against the Commissioner of Goods and Services Tax (GST) and Central Excise, Chennai.
The two-member bench comprising Mr. P. Dinesha (Judicial Member) and (Technical Member) Mr. M. Ajit Kumar ruled that the demand for Service Tax on liquidated damages was not justified. The decision was based on the consistent rulings in similar cases and the government’s decision not to contest them further. The bench concluded that liquidated damages should not be subjected to Service Tax. In result, the CESTAT allowed the appeal filed by BHEL and quashed the order that imposed Service Tax on liquidated damages.
The Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) directed to ascertain the veracity of data from balance sheet and observed that the findings of the Special Valuation Branch (SVB) are not binding on Commissioner of Customs.
A Two-Member Bench comprising CJ Mathew, Technical Member and Ajay Sharma, Judicial Member observed that “The findings of the Special Valuation Branch (SVB) are not binding on ‘proper officer’ exercising such statutory powers and no action, unless initiated under the cited provisions, can be detrimental to the appellant herein. We see no prejudice thereby as appellant has not brought on record that any particular import to be assessed, provisionally or finally, will be impacted by mere ascertainment of the details furnished by the importer and, that too, only by reference to their own record.”
The Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed confiscation under Section 111(d) of Customs Act, 1962and noted that ‘Plate leveler’ of ‘1942 vintage’ are capital goods and freely importable.
A Two-Member Bench comprising CJ Mathew, Technical Member and Ajay Sharma, Judicial Member observed that “The goods are admittedly of ‘1942 vintage’ and it is seen that paragraph 2.31 of the Foreign Trade Policy restricts ‘second hand goods other than capital goods’ and, as it is not the case of customs authorities that these are not ‘capital goods’, the impugned goods would be freely importable. Consequently, confiscation under section 111(d) of Customs Act, 1962 lacks authority of law.”
The New Delhi Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed service tax demand on tour operator as Cenvat Credit of service tax allowable on payment under reverse charge mechanism (RCM).
A Two-Member Bench comprising Justice Dilip Gupta, President and PV Subba Rao, Technical Member observed that “It is evident that the taxi operators were paying service tax on their services considering themselves liable to pay service tax and the appellant has been taking Cenvat credit of such service tax. To charge service tax again on reverse charge basis from the appellant (the service recipient) would result in double taxation on the same service.” “If the appellant had paid service tax under reverse charge mechanism, it would have been entitled to Cenvat credit on it immediately because it is its input service. Thus, the entire exercise is revenue neutral and in such a situation, the appellant cannot be alleged to have had an intent to evade payment of service tax” the Bench concluded.
The Chennai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), confirmed the service tax demand as reasonable cause for delayed payment not proved under Section 80 of Finance Act, 1944.
A Two-Member Bench comprising P. Dinesha, Member (Judicial) and M. Ajit Kumar, Member (Technical)observed that “As per the general rule of legal proceedings, he who asserts must prove. It was for the appellant to prove financial constraint before the original authority and thereby plead ‘reasonable cause’ for delayed payment. A bald statement of financial constraint will not be enough.” “We find that the appellant has not shown ‘reasonable cause’ within the meaning of Section 80 ibid for their failure to pay duty” the Bench concluded.
The Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), slammed the Customs Department as the confiscation of immovable property was made without valid notice under the Customs Act, 1962 and the Tribunal commented that such act an act compromises the integrity of adjudication process.
A Two-Member Bench comprising CJ Mathew, Technical Member and Ajay Sharma, Judicial Member observed that “Confiscation of sale proceeds of smuggled good is authorized by section 121 of Customs Act, 1962. Without going into the issue of intent of ‘sale’ therein, we find that the appellant was not placed on notice of proposal to confiscate his property.” The Tribunal further noted that notice is a pre-requisite and ‘constructive notice’ at that. Inclusion of such proposal in a notice issued to another is premised on conclusion that the property is owned by such notice. That, in itself, is premature and compromises the integrity of adjudication proceedings.
The Chennai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), ruled that the activity of collection, cleaning, segregation and stacking of blasted raw magnesite is ‘Mining Services’ under Finance Act, 1994.
A Two-Member Bench comprising P. Dinesha, Member (Judicial) and M. Ajit Kumar, Member (Technical) observed that “we hold that the activity of collection, cleaning, segregation and stacking of blasted raw magnesite is classifiable under the category ‘Mining Services’ classifiable under section 65(105)(zzzy) of the Finance Act, 1994 and the demand is restricted to the period from 01/06/2007 onwards. We order that duty and interest may be worked out accordingly.”
The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that no service tax on computer to computer linkage charges in absence of express provision while acting as a stock broking company.
A two-member bench comprising Mr Ramesh Nair, Member (Judicial) and Mr C L Mahar Member (Technical) held that “the demand in the present case is not sustainable. Hence impugned order is set aside. Appeals are allowed.”
The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that merely classifying services under an incorrect head does not amount to fraud or suppression of fact.
A two-member bench comprising Mr Ramesh Nair, Member (Judicial) and Mr C L Mahar Member (Technical) observed that “Mere omission or merely classifying its services under an incorrect head does not amount to fraud or collusion or willful misstatement or suppression of facts. The intention has to be proved to invoke extended period of limitation.” In the case of Larsen & Toubro dated 20 August, 2015, prior to which there was no clear ruling that services which involved supply or deemed supply of goods could only be classified under Works Contract Service. Therefore, demand is time barred and, therefore, cannot sustain. The CESTAT set aside the impugned order and allowed the appeal.
The New Delhi bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) set aside the Demand of Service Tax in absence of evidence to prove service of GTA (Goods Transport Agency Service) to National Thermal Power Corporation (NTPC).
A two member bench comprising Justice Dilip Gupta , President and Mr P V SubbaRao, Member (Technical) observed that there is nothing to establish that the appellant was providing Goods Transport Agency Service to the NTPC. It was only charging 2% towards the cost of transportation of goods. Even if the appellant had provided the Goods Transport Agency Service, it is the NTPC which would have been liable to pay service tax on such services and not the appellant. The appeal is allowed and the impugned order is set aside with consequential relief to the appellant.
The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that service tax not payable on material supplied free of cost by service recipient during construction. It was viewed that the consideration which is not received by the service provider shall not form part of taxable value under the term gross amount charged under Section 67 of the Finance Act, 1994 for levy of service tax.
A two-member bench comprising Mr Ramesh Nair, Member (Judicial) and Mr C L Mahar Member (Technical) observed that “no material is produced before us to justify that aforesaid basis of the formula was adopted while issuing the notification. In the absence of any such material, it would be anybody’s guess as to what went in the mind of the Central Government in issuing these notifications and prescribing the service tax to be calculated on a value which is equivalent to 33% of the gross amount.”
The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that activity of service providing only for a particular job cannot be classified under Man Power Recruitment Or Supply Service.
A two member bench comprising of Mr. Ramesh Nair, Member (Judicial) and Mr. Raju, Member (Technical) observed that there is no dispute that the appellant have provided particular job of wax repairing and assembly department work for M/s Intricast Private Limited.The CESTAT held that the demand in the present case is not sustainable and set aside the impugned order is set aside.
The Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed service tax demand and ruled that procuring sales orders for products manufactured by steel mills outside India for customers in India is export of service.
Quashing the service tax demand, a Two-Member Bench comprising Anil G. Shakkarwar, Member (Technical) and Dr. Suvendu Kumar Pati, Member (Judicial) observed that “The decision of the Larger Bench is reproduced in the foregoing paragraph. The Larger Bench in very clear terms has held that in the present proceedings, the activity of the appellant is export of service.”
The Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed service tax demand against IL & FS Transportation Networks Ltd, the appellant as the Revenue failed to establish violation of conditions under sub-rule (4B) of Rule 6 of Service Tax Rules, 1944.
A Two-Member Bench comprising Anil G. Shakkarwar, Member (Technical) and Dr. Suvendu Kumar Pati, Member (Judicial) observed that “The conditions stipulated in sub-rule (4B) of Rule 6 of Service Tax Rules, 1994 though invoked by Revenue, the same are unsubstantiated in the said show cause notice. Therefore, we hold that Revenue has failed to establish that the appellant has violated any conditions specified in the said sub-rule (4B) of Rule 6 of Service Tax Rules, 1994. We, therefore, hold that the appellant was eligible for utilization of excess paid service tax of Rs.60,17,195/- during the month of December 2012.” The Bench noted that the show cause notice and the provisions of sub-rule (4A) and sub-rule (4B) of Rule 6 of Service Tax Rules, 1994. The said sub-rule (4A) provides for adjustment of excess paid service tax during the succeeding month or quarter and the said subrule does not require the said adjustment to be made during the immediately succeeding month.
The Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Chennai has held that Capital Goods installed in the Marine Terminal Facility (MTF) area are an integral part of the Manufacturing process and thus eligible for CENVAT (Central Value Added Tax) Credit.
In result, the two-member bench comprising Ms. Sulekha Beevi C.S (Judicial Member) and Shri Vasa Seshagiri Rao Kumar (Technical Member) concluded that the denial of credit for capital goods in the MTF area was legally unsustainable and hence the orders were set aside and the appeals were allowed with consequential relief, if any, as per the law.
The Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Chennai bench has held that Chennai Metro Rail Ltd. (CMRL) is not liable to pay Service Tax on the damages received for tolerating the breach of contract by contractors and sub-contractors.
The two-member bench comprising Shri P. Dinesha (Judicial Member) and Shri M. Ajit Kumar (Technical Member) clarified that the damages received for tolerating breach of contract are not subject to service tax unless there is a specific agreement or contractual arrangement to provide a service in exchange for compensation. To Read the full text of the Order CLICK HERE
The New Delhi Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), observed that mere non-disclosure of receipts in service tax return does not mean intent to evade payment of service tax.
A Two-Member Bench comprising Justice Dilip Gupta, President and PV Subba Rao, Technical Member observed that “Mere suppression of facts is not enough and there must be a deliberate and wilful attempt on the part of the assessee to evade payment of duty. In the absence of any intention to evade payment of service tax, which intention should be evident from the materials on record or from the conduct of the assessee, the extended period of limitation cannot be invoked. Thus, mere non-disclosure of the receipts in the service tax return would not mean that there was an intent to evade payment of service tax.”
The Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed revocation of Customs Broker (CB) licence and observed that disciplining of ‘customs broker’ not be entered into lightly nor receded from hastily.
A Two-Member Bench comprising CJ Mathew, Technical Member and Ajay Sharma, Judicial Member observed that “A tendency to be less than meticulous in drafting of charges is evident here and proceedings do acquire the characteristic of trivializing the institution of ‘custom broker’; if they are to perform the vital role expected of them, resort to Custom Broker Licencing Regulations, 2018 has to be deliberated upon by licencing authorities in the context of each incident of breach of obligation. Disciplining of ‘customs broker’ is not be entered into lightly nor receded from hastily.”
The Chennai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), ordered payment of demand of interest under Section 75 of Finance Act, 1994 and ruled that interest liability payable for normal period alone can be adjusted.
A Two-Member Bench comprising M Ajit Kumar, Technical Member and P Dinehsa, Judicial Member observed that “With regard to the levy of interest, we note that the same is mandatory in nature, but however, the same has not been quantified by the adjudicating authority. In view of the facts and circumstances of the case, we hold that any interest liability payable for the normal period alone could be demanded / adjusted.” “The demand of interest under Section 75 of the Finance Act, 1994 is held to be payable for the normal period alone” the Bench noted. To Read the full text of the Order CLICK HERE
The Chandigarh Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed service tax demand on Construction Services and observed that calculation sheets are not proof to assume the collection of service tax.
A Two-Member Bench comprising SS Garg, Judicial Member and P Anjani Kumar, Technical Member observed that “It is not clear from the case records whether the Department has challenged the certificate issued by M/s PACL. The allegation is sought to be established on the basis of loose calculation sheets. During the hearing, Counsel for the appellants has demonstrated that the said sheets cannot be corroborated with the invoices issued. Moreover, the sheets are isolated and cannot be extrapolated to assume that service tax has been collected by the appellants.”
The Kolkata bench of Customs, Excise & Service Tax Appellate Tribunal (CESTAT) upheld the order to set aside the demand of service tax as the reimbursement for miscellaneous activities received on an actual basis.
A two-member bench comprising Mr Ashok Jindal, Member (Judicial) and Mr K.Anpazhakan observed that Service Tax (Determination of Value) Rules, 2006, has brought in the concept of ‘Pure Agent’ to address the taxability issues of reimbursements. As per the said Rules, expenditure incurred as a ‘Pure Agent’ was excluded from the assessable value. In the present matter under dispute, a perusal of the agreements entered with the different principals reveals that there were specific amounts for remuneration to be charged as a C&F Agent.
The Chennai bench of Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that Employee Cost, Rent, Repairs and Maintenance Expenses are not a post importation expenses and set aside denial of deduction under the Customs Act, 1962.
“Since the disputed expenses viz employee cost, rent, repairs and maintenance and office & miscellaneous expenses are part of ‘general expenses’ relating to the direct and indirect cost of marketing the goods in question the appeal must succeed.”, Shri P. Dinesha, Member (Judicial) and Shri M. Ajit Kumar, Member (Technical) held.
The Chennai bench of Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that no redemption fine when goods are allowed to be re-exported.
A two-member bench comprising Ms Sulekha Beevi C S, Member (Judicial) and Mr Vasa Seshagiri Rao, Member (Technical) observed that the confiscation of the goods is not warranted and justified. Accordingly, the redemption fine imposed is also to be set aside. The appellants have already incurred considerable financial loss on taking back the goods reprocessing and exporting goods. The CESTAT while allowing the appeal set aside the impugned order.
The Chennai bench of Customs, Excise & Service Tax Appellate Tribunal (CESTAT) directed re-adjudication on the dispute on eligibility for refund/rebate under excise notification.
The first appellant authority further held that though he agreed that the export incentives granted to the exporter should not be denied merely on procedural lapses, the same would not bestow upon the exporters to file claims under inappropriate notifications, wrong jurisdiction and without adhering to or complying with the substantial conditions prescribed under the notifications. The bench of P. Dinesha (Judicial Member) and M. Ajit Kumar (Technical Member) has observed that set aside the impugned order and remitted the matters back to the file of the Commissioner (Appeals).
The Chennai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed excise duty demand on ‘Tapioca Thippy’ on the ground of reversal of proportionate credit before the issuance of show cause notice (SCN).
A Two-Member Bench comprising CS Sulekha Beevi, Judicial Member and Vasa Seshagiri Rao, Technical Member observed that “In the present case the appellant has reversed the proportionate credit before the SCN. There is no evidence put forward by the department to establish that there was suppression of facts with intent to evade payment of duty. For this reason, we find that the appellant succeeds on the ground of limitation also.”
The Chandigarh Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), remanded matter to calculate admissible credit in the matter regarding the confirmation of cenvat credit on Customs Clearance Services and Tour & Travels Services.
A Two-Member comprising SS Garg, Judicial Member and P Anjani Kumar, Technical Member observed that “Regarding Customs Clearance Services and Tour & Travels Services, we find that the impugned order records that the appellants have not produced invoices etc. to prove that the credit is correctly availed by them. While holding in principle that credit on these two services is admissible to the appellants, we are of the considered opinion that the issue requires to go back to the Adjudicating Authority to calculate the admissible credit on the basis of the evidence that may be produced by the appellants.”
The Chennai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed penalty on the ground that the matter relating to constitutional validity of levy of “Taxes on lands and buildings” is pending before the Supreme Court of India.
The Tribunal of M Ajit Kumar, Technical Member observed that “. In a case where the constitutional validity of the levy is yet to be decided the dispute is interpretational in nature. Hence reasonable cause has been made out for delayed payment of duty. In fact, due to legal complexities, the appellants are in the second round of litigation before this Tribunal. I, therefore, agree with the appellant that invocation of penalty in such a situation is not justified as per section 80 of the Finance Act, 1994 due to the reasonable cause shown.”
The Kolkata Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed excise duty demand on non-maintenance of separate account for input services for final exempted service.
A Two-Member Bench comprising Ashok Jindal, Judicial Member and K Anpazhakan, Technical Member observed that “we hold that the demand on account of non-maintenance of separate account for input or input services for final exempted service does not arise and the reversal of cenvat credit on input and proportionate credit on input service is sufficient to meet the ends of justice.” The Bench also held that the appellant is required to reverse proportionate cenvat credit on inputs cleared as such and proportionate input services used for providing trading activities i.e. trading of coal, therefore, there is no requirement of payment of 6%/10% of the value of trading activity provided by the appellant.
The Chennai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), remanded matter in the matter of non-production of country-of-origin certificate from foreign supplier due to Covid-19 pandemic.
A Two-Member Bench comprising Vasa Seshagiri Rao, Technical Member and Sulekha Beevi CS, Judicial Member observed that “It is explained by the respondent that they could not obtain it from the foreign supplier due to Covid-19 pandemic. On this fact, we are of the opinion that a lenient view has to be taken and the delay in producing the certificate has to be condoned. Ordered accordingly. However, the eligibility of the concessional rate of duty on the basis of the COO certificate produced by the respondent has to be examined. We hold that the matter has to be remanded to the original authority to re-assess and reconsider the eligibility of the notification on the basis of the COO certificate.”
The Chennai bench of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT)held that hiring of space for advertisement on the buses by Tamil Nadu State Transport Corporation does not fall under definition of advertising agency and set aside the demand of Service tax.
A two-member bench comprising Shri P. Dinesha, Member (Judicial) and Shri M. Ajit Kumar, Member (Technical) held that hiring of space will not bring the appellant under the definition of ‘advertising agency’. “Since the issue has been decided on merits in favour of the appellant the question of interest, penalties or invoking the extended period does not arise. “, the bench held while allowing the appeal.
The Mumbai bench of Customs, Excise & Service Tax Appellate Tribunal (CESTAT) upheld the penalty under the Customs Act, 1962 in the case of illegal removal of seized red sanders by the Customs Cargo Service Provider (CCSP).
A two-member bench comprising Mr. S.K. Mohanty, Member (Judicial) and Mr. M. M Parthiban, Member (Technical) observed that “the appellants not only failed to fulfil the conditions and to abide by the responsibilities reposed on them as CCSP, but also failed to rectify the situation as one another attempt was made again for illegal removal of seized red sanders, which was identified by SIIB Customs on 14.08.2014. Hence, there are clear violations of the HCCAR and Section 141(2) of the Customs Act, 1962 by the appellant and thus we do not find any infirmity in the impugned order imposing penalty under Section 117 ibid on the appellants.”
The Chandigarh bench of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that Engineer’s services are Input Services under Rule 5 of Cenvat Credit Rules (CCR) and overruled the decision of Commissioner (Appeals) which upheld the order by the Commissioner of Service Tax (CST), Delhi (the Respondent) rejecting the refund of Cenvat Credit of Bechtel India Pvt Ltd (the Appellant).
The bench consisting of S.S. Garg (Judicial Member) and P. Anjani Kumar (Technical Member) after the hearing both sides held that the grounds for rejecting the refund claims by the company were not valid and the appeal by the company was allowed with consequential relief, if any, as per law.
The Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed confiscation of rough diamonds and observed that the verification to be initiated from issuing authority when certification suspected to be faulty.
A Two-Member Bench comprising CJ Mathew, Technical Member and Ajay Sharma, Judicial Member observed that “If the certification was suspected to be faulty or not pertinent to the impugned goods, necessary verification should have been initiated with issuing authorities and taken to its logical conclusion. No such exercise was undertaken and thus the denial is to be tested solely on conformity of the re-determination with law.”
The Hyderabad bench of Customs, Excise & Service Tax Appellate Tribunal (CESTAT) non-awareness of other contraband goods in consignment other than declared in the bill of entry is not an excuse to avoid the penalty under section 117 of the Customs Act, 1962. The bench reduced the penalty being observed that the contravention was of gross negligence.
A single member bench comprising Mr R. Muralidhar, Member(Judicial) held that “this is more like gross negligence rather than on account of any collusion in the contravention, I reduce the penalty of Rs 1,00,000/- to Rs 20,000/-. The appeal disposed of accordingly.”
The Chennai bench of Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that service tax is not leviable on renting of immovable property to or by religious body before 1.07.2012.
A two-member bench comprising Shri P. Dinesha, Member (Judicial) and Shri M. Ajit Kumar, Member (Technical) observed that revenue has failed to establish that the Diocese is not a religious body and will be covered by the definition under section 65(90a) of the Finance Act 1994. Further viewed that the appellant will be subject to levy under service tax for renting of immovable property only from 01/07/2012 and not before that date. The appellant also agrees that they are liable to pay service tax from 01/07/2012. The CESTAT set aside all penalties and allowed the appeal.
In a major relief to M/s. Intas Pharmaceuticals Limited, the Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), ruled that benefit of customs duty cannot be denied to loan licensee importer.
A Two-Member Bench comprising Somesh Arora, Member (Judicial) and C L Mahar, Member (Technical) relied on the judgment in FDC Limited vs. CCE, Belapur and wherein it was observed that “We are of the considered view that even though the factory is of the loan licensee but use is on behalf the appellant therefore there is no violation of condition of the Customs Rules, 1996. Since we are deciding the appeal on above discussion and merits of the case, we need not to address other issues raised by the Counsel.”
The Chandigarh Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), allowed service tax refund and observed that terminal handling services is specified service.
A Single Member Bench comprising SS Garg, Judicial Member observed that “I find that as far as the Terminal Handling Services are concerned, these services have been rendered for handling the export containers at the port of exports and they fall in the nature of port services. Further, I find that the Terminal Handling Services have been held to be specified services.”
The Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), upheld the service tax demand under Business Auxiliary Services (BAS) and observed that financial hardship is not reason to avoid payment of service tax. A Two-Member Bench comprising Ramesh Nair, Judicial Member and Raju, Technical Member observed that “It is noticed that the appellant had not declared the said income in their monthly returns. Even if the appellant believe that the said income was exempted from service tax, they should have declared the same as exempted income. It is noticed that in their pleadings, they have also argued that they have not paid the service tax due to financial Hardship.”
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