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Showing 201 to 220 of 1905 Records
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2019 (8) TMI 1706 - CESTAT NEW DELHI
Interest from delayed refund - relevant date for calculation of interest - Section 11 BB of the Central Excise Act - HELD THAT:- The refund should have been granted by the Revenue within a period of three months. Further, allowing one month for the purpose of communication of the order, it is held that the appellant is entitled to interest under Sections 35 F read with Section 35 FF and 11 BB from 10.02.2004 till the date of grant of refund being on 19.12.2016. Also, the amounts deposited even prior to adjudication / finalisation also ipso facto becomes pre-deposit under Section 35 F on filing appeal.
The Adjudicating Authority is directed to grant interest at the rate applicable from time to time within a period of two months from the date of receipt of the copy of this order - Appeal allowed - decided in favor of appellant.
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2019 (8) TMI 1705 - CESTAT HYDERABAD
Seeking restoration of appeal - short payment of excise duty - duty not paid at the time of clearance of goods and was paid after finalisation of the CAS-4 certificate - intent to evade or not - penalty - HELD THAT:- It is an admitted fact on record that during initial clearance of excisable goods to the sister unit, the appellant had paid lesser amount of central excise duty due to non-preparation of CAS-4 statement and finalisation of the cost data and that the differential amount was paid subsequently by raising supplementary invoice. The incidence of levy of central excise duty is the production or manufacture of excisable goods. The Central Excise statute mandates that on clearance of the excisable goods from the factory, the assessee was required to discharge the duty liability within the period prescribed under the statute. In this case, admittedly a part of duty liability was discharged by the appellant at the time of clearance of the goods and the remaining amount was paid after finalisation of the CAS-4 certificate.
Penalty u/r 25 of CER, 2002 - HELD THAT:- The said provisions cannot be invoked against the appellant, in the absence of elements of fraud, collision, wilful misstatement, etc., with intent to evade payment of duty.
The impugned order to the extent it confirmed the interest demand on the appellant sustains and the penalty confirmed therein is set aside - Appeal allowed in part.
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2019 (8) TMI 1704 - CESTAT HYDERABAD
Levy/non-levy of Service Tax - activities of repair and maintenance of buildings/ civil structures, belonging to the Ministry of Defense - period from July’ 2003 to March’ 2008 - HELD THAT:- It is an admitted fact on record that during the disputed period from July’ 2003 to March’ 2008, the appellant had undertaken the activities of repair and maintenance of buildings/ civil structures, belonging to the Ministry of Defense. Such activities cannot be termed as commercial in nature, in order to be categorized as taxable service under MMRS. Further, Section 98 ibid mandates that no service tax shall be levied or collected in respect of MMRS provided for non-commercial buildings during the period from 16.06.2005 till the date, on which Section 66B was inserted in the service tax statute - Admittedly, in this case, the period of dispute is covered within the period prescribed under Section 98 ibid. Thus, the appellant should be entitled for the special provisions contained in Section 98 ibid for non levy of service tax on the services provided by it for the building/ civil structure of Ministry of Defense.
The provisions of Section 98 ibid and their application to the facts of the present case have not been discussed by the learned Commissioner (Appeals) in the impugned order dated 17.08.2010, may be owing to the reason that the said provisions were incorporated in the statute book before passing of the impugned order - the matter must be remanded to the learned Commissioner (Appeals) to examine the said statutory provisions and thereafter to decide the appeal, with proper findings whether, the appellant should be entitled for the benefit contained in the said statutory provision - appeal allowed by way of remand.
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2019 (8) TMI 1703 - ITAT CHENNAI
Bogus LTCG - Denial of claim u/s.10(38) - HELD THAT:- As noticed that the evidences clearly shows that the transactions of purchase and sale of shares by the assessee herein are through the BSE as also it is noticed that the assessee’s name is not coming out of the Investigation Report, which has been received by the AO from the Directorate of Investigation, Kolkatta, we are of the view that the disallowance made by the AO and as confirmed by the CIT(A) merely on presumptions is unsustainable.
Following the decision of the decision of the co-ordinate Bench of this Tribunal in the case of Shri Ashwin Kumar Davey [2018 (12) TMI 1880 - ITAT CHENNAI] AO is directed to grant the assessee the benefit of deduction u/s.10(38) of the Act as claimed. Appeal filed by the assessee is allowed.
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2019 (8) TMI 1702 - CESTAT NEW DELHI
Condonation of delay in filing appeal - appeal was not accompanied by any application for condoning the delay in filing the appeal - HELD THAT:- It has been stated in the application that since the last date for filing the appeal before the Tribunal was 25 April, 2018, the appeal was filed with a delay of 211 days.
It is true that this Tribunal in Panasonic Energy India Company Limited [2017 (9) TMI 63 - CESTAT NEW DELHI] held that an appeal cannot be filed before the Tribunal against a negative determination by the Designated Authority, but in such a situation when the view of the Tribunal was very clear, nothing prevented the Appellant from filing a Writ Petition before the High Court to challenge the determination by the Designated Authority, if it felt aggrieved. However, the Appellant neither availed the remedy of filing a Writ Petition in the High Court nor did it file an appeal before this Tribunal within the stipulated time. According to the Appellant, it waited for a decision to be given by the Delhi High Court in a Writ Petition filed by Jindal Polyfilm Ltd. [2018 (9) TMI 1294 - DELHI HIGH COURT] to challenge the negative determination by the Designated Authority - There was no reason for the Appellant to await the decision of a Writ Petition filed by some other party and that too not against the determination made by the Designated Authority on 25 January, 2018. If the Appellant was really aggrieved by the negative determination by the Designated Authority, it could have also filed a Writ petition before appropriate High Court.
The explanation offered by the Appellant for condoning the delay is not satisfying - application dismissed.
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2019 (8) TMI 1701 - ITAT MUMBAI
Monetary limits for filing of appeals by the Department before the Tribunal - HELD THAT:- As the tax effect in dispute in the captioned appeal is stated to be below the enhanced monetary limit of ₹ 50 lakhs specified in the CBDT Circular dated 08.08.2019 (supra) read with circular 11.07.2018 (supra).
D.R. appearing for the Revenue was required to state his position; he has not referred to any material which would show that the captioned appeal is protected by any of the exceptions provided in para 10 of the CBDT circular dated 11.07.2018 (supra) and its amendment dated 20th August, 2018.
Without going into the merit of the issues raised, the captioned appeal is deemed to be withdrawn/not pressed as it’s filing is not in consonance with the CBDT circular dated 08.08.2019 (supra) read with circular 11.07.2018.
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2019 (8) TMI 1700 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of insolvency application can be entertained in a case where financial fraud exists - Section 7 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Adjudicating Authority has allowed intervention applications filed by different creditors, which is not the requirement of the ‘I&B Code’/ law - In Innoventive Industries Ltd. v. ICICI Bank & Anr. [2017 (6) TMI 959 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, MUMBAI], this Appellate Tribunal held that before admitting an application under Sections 7 or 9, a limited notice is required to be given to the ‘Corporate Debtor’ by the Adjudicating Authority - the matter subsequently fell for consideration before the Hon’ble Supreme Court in Innoventive Industries Ltd. v. ICICI Bank and Anr. [2017 (9) TMI 58 - SUPREME COURT] wherein dealing with the provisions of Sections 7 or 9, the Hon’ble Apex Court observed and held that the ‘debt’ means a liability of obligation in respect of a ‘claim’ and a ‘claim’ means a right to payment even if it is disputed. The Code gets triggered the moment default is of rupees one lakh or more.
The Hon’ble Supreme Court specifically held that when it comes to a ‘Financial Creditor’ triggering the process, Section 7 becomes relevant. The application is made by a ‘Financial Creditor’ in Form 1 accompanied by documents and records required therein. Form 1 is a detailed form in 5 parts, which requires particulars of the applicant in Part I, particulars of the ‘Corporate Debtor’ in Part II, particulars of the proposed ‘Interim Resolution Professional’ in Part III, particulars of the ‘Financial Debt’ in Part IV and documents, records and evidence of default in Part V - Thus, it is clear that once the record is complete, Code is to be triggered if there is a default of more than ₹ 1 lakh. The ‘Corporate Debtor’ can only point out that the debt may not be due in a sense it is not payable in law or in fact.
It is a settled law that the Adjudicating Authority is only required to ensure whether there is a debt and default on the basis of record (Form 1). It cannot take into consideration any other facts which are irrelevant. The ‘Corporate Insolvency Resolution Process’ not being a litigation much less adversarial litigation or a recovery proceeding or a money suit - the Adjudicating Authority cannot notice to hold that owing to the financial fraud the amount was not paid by the ‘Corporate Debtor’.
In the present case, the Adjudicating Authority has failed to show that the present proceeding under Section 7 was filed by the Appellant fraudulently or with malicious intention for initiation of the ‘Corporate Insolvency Resolution Process’ against the ‘Corporate Debtor’. Whatever the grounds shown for not entertaining the application are not related and beyond Form 1 and were not to be pleaded. In fact, nothing on the record to suggest that the Appellant filed application fraudulently with malicious intention for initiation of the ‘Corporate Insolvency Resolution Process’ against the ‘Corporate Debtor’.
The case is remitted back to the Adjudicating Authority to admit the application after notice to the ‘Corporate Debtor’ so as to enable the ‘Corporate Debtor’ to settle the claim - appeal allowed.
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2019 (8) TMI 1699 - MADRAS HIGH COURT
Concessional Rate of Tax - inter-state sales - C-Declaration Form - claim of input tax credit - amendment in Section 19(2)(v) of TNVAT Act - HELD THAT:- Section 8(1) of the CST Act provides the benefit of concessional rate of tax, upon production of a statutory Declaration form, to an interstate transaction with a registered dealer, and relating to specified goods. Section 8(2) stipulates that an interstate transaction with an unregistered dealer shall be visited with the same rate of tax as applicable to a domestic transaction involving identical goods. While Section 19(2)(v) extended input tax credit in respect of the transaction under Section 8(1), the same benefit was unavailable to the identical transaction with an unregistered dealer, taxable in terms of Section 8(2) of the CST Act.
Though the benefit of ITC was initially restricted as an inducement to dealers to transact with registered dealers alone, Legislature has broadened, in its wisdom, the grant of benefit of ITC to transactions with unregistered dealers as well, albeit in 2015. Having taken such a decision in principle, there is no rhyme or reason to restrict the benefit only from the date of substitution. Such restriction would discriminate against transactions under Section 8(2) for the prior period, apart from leading to a dichotomy in the manner in which transactions in terms of Section 8(2) pre and post 01.04.2015 are assessed to tax.
Since the substitution in the present case only seeks to set right an anomaly it necessarily has to be effective from the date of inception of the Act itself, retrospectively - Petition allowed - decided in favor of petitioners.
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2019 (8) TMI 1698 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor will make payment of dues or not - Operational Creditors - service of demand notice - Jurisdiction of NCLT Mumbai - HELD THAT:- Pursuant to Section 408 of the Companies Act, 2013, the National Company Law Tribunal has been constituted in different States. In terms of the said provision, the Central Government has notified and vested the power on respective National Company Law Tribunals to deal with the matter within its territory, where the registered Offices of the Companies are situated. As per Section 60(1) of the I&B Code - the National Company Law Tribunal, Mumbai Bench has the jurisdiction to entertain an application under Section 9 of the I&B Code and the Appellant cannot derive advantage of the terms of the Agreement reached between the parties.
Service of Demand Notice - HELD THAT:- ‘Corporate Debtor’ was not served with the Demand Notice in terms of Section 8(1) of the I&B Code. However, from the record it is found that Demand Notice under Section 8(1) of the I&B Code was issued by the Respondent - ‘Operational Creditor’ on 6th March, 2018 demanding the repayment of US $971,412.98 plus ancillary obligations @ 15 % p.a. amounting to US $286.804.44 and despite receiving of the said Demand Notice, the ‘Corporate Debtor’ had not replied, nor repaid the outstanding dues. The Adjudicating Authority has as such not accepted such plea based on record.
Also, option was given to the Appellant to suggest whether the Appellant or the ‘Corporate Debtor’ would agree to repay the debt as payable to the ‘Operational Creditor’, but it is informed that the ‘Corporate Debtor’ or the Appellant is not in a position to do so.
Appeal dismissed.
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2019 (8) TMI 1697 - CESTAT MUMBAI
Classification of imported Software - customized software or not - Benefit of N/N.06/2006Central Excise (Entry No 27) dated 01.03.2006 - reassessment of software “Bones Application TE Ver 2” and software “Da Vinci 2K” - under Rule 5(1)(b) of the Customs Valuation rules, 1988 - determination of assessable value - Confiscation - redemption fine - penalty - HELD THAT:- Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification - When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue.
Valuation of imported software - HELD THAT:- Commissioner has determined the value of the goods on the basis of contemporaneous imports made by similarly placed importer namely M/s Shemaroo from the same suppliers at about the same time i.e. March April 2006. The on the basis of value of the contemporaneous imports Commissioner has determined that undervaluation in respect of Bones Software was o the extent of 38.98% and for Da Vinci software 48%. It is settled law that the value of contemporaneous imports can be a good reason for rejection of transaction value - thus, the value determine by the Commissioner on the basis of contemporaneous imports rejecting the transaction value cannot b faulted with.
Penalty - HELD THAT:- Since appellants have suppressed the value and have misdeclared the description by using the phrase “Customized” to avail the benefit of exemption from payment of CVD, in terms of Notification No 6/2006CE, the penalty imposed under Section 114A of Custom Act, 1962 cannot be faulted with - while imposing the penalty under Section 114A, Commissioner has imposed penalty equivalent to duty plus interest, which is contrary to provision of the section itself wherein section prescribes that the penalty impossible to be equal to Duty or Penalty.
Confiscation - Redemption fine - HELD THAT:- The goods were not seized and provisionally released to the appellants against any bond and bank guarantee. Since the goods were never seized or released against the bond and bank guarantee, we are not in position to uphold the order of confiscation of goods and imposition of redemption fine, in view of the decision of larger bench of Tribunal in case of M/S. BHAGYANAGAR METALS LTD, SHRI NARENDERSURANA, MD, SHRI BALASUBRAMANIAN, VP, M/S. SURANA TELECOM LTD, SHRI BALASUBRAMANIAN, VP, M/S LG ELECTRONICS, M/S. HUAWAI TECHNOLOGIES CO LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, HYDERABAD-II, CCE, GOA [2016 (2) TMI 614 - CESTAT HYDERABAD].
Appeal allowed in part.
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2019 (8) TMI 1696 - CESTAT MUMBAI
Reverse charge mechanism - Site formation and clearance, excavation and earthmoving and demolition service - denial of the existence of recipient of service and of consideration having been received from such recipient - HELD THAT:- The appellant had commenced the generation and removal of scrap in June 2008 after the possession was handed over to M/s Goldbrick Infrastructure Pvt Ltd by the vendor in February 2008 and in pursuance of ‘memorandum of understanding (MoU)’ dated 20th July 2007, well before the tender process was completed, between themselves and M/s Goldbrick Infrastructure Pvt Ltd. It is now well settled law that, for a service to be taxable prior to 1st July 2012, conformity with the enumerations in section 65 (105) of Finance Act, 1994, comprising description of activity, identified recipient and consideration for such service, is unavoidable.
The assigning of land to M/s Goldbrick Infrastructure Pvt Ltd was contingent upon the vendor being paid the value bid by the appellant in which there seemed to be no further role for the appellant. M/s Goldbrick Pvt Ltd did not have to bear the cost of tendering met by the appellant but, owing to the circumstances of the interlinked transactions, that was merely considered to be payment made by the appellant to the vendor for rights over the structures and machinery on the land. Acknowledgement of that as a separate transaction in which M/s Goldbrick Infrastructure Pvt Ltd had no participation was not difficult as they appeared to have interest only on the land. Consequently, the acknowledgement of the appellant having paid the cost of participation does not, of itself, lead to the conclusion that this was a payment effected to the appellant - It would, therefore, appear that the conformity of demolition and removal with the description of the taxable service along with the fortuitous possession of all the structures and machinery on the property by participation, and bearing of cost, in the tender process has prompted the confirmation of the tax liability by the adjudicating authority without ascertaining the existence of an agreement, oral or otherwise, for rendering of any service that is exclusively to benefit M/s Goldbrick Infrastructure Pvt Ltd by the appellant.
The computation of value of taxable service as the sale value of scrap, adjusted for tax under Finance Act, 1994, appears to be erroneous inasmuch as that was consideration for a transaction not contemplated in Finance Act, 1994. It has been recorded in the impugned order that cost of participation in the tender which benefited M/s Goldbrick Infrastructure Pvt Ltd was consideration for the removal of structures, machinery and buildings on the property. If at all, there was consideration only this could have been it and not the sale value. There is nothing on record to establish that the costs incurred approximated the sale value. Consequently, the receipt from sales is consideration for the sales and not for service. The existence of consideration for service is not on record.
There being neither recipient of a service nor any consideration for a service, the impugned order lacks authority of law and a set aside - Appeal allowed - decided in favor of appellant.
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2019 (8) TMI 1695 - ITAT MUMBAI
Addition made unexplained cash credit u/s. 68 - assessee has failed to prove the identity, genuineness and credit worthiness of lender parties, invested as share application money in the assessee company - HELD THAT:- We are of the considered view that the Ld.AO was erred making additions towards share capital received from three companies, even though the assessee has discharged, its onus cast upon u/s 68 of the Act, on the basis of third party information without providing such information to the assessee and also to provide cross-examination of the person, who gave statement. Further, as regards, the additions towards share capital, once the assessee has discharged its onus by filing various documents, then the onus shifts to the AO to prove otherwise. Unless, the AO has discharges its onus, by conducting necessary enquiries, he cannot proceed to make additions only on the basis of information received from third party.
Hon’ble Bombay High Court in the case of CIT vs. Gagandeep Infrastructure Pvt.Ltd. [2017 (3) TMI 1263 - BOMBAY HIGH COURT] had considered an identical issue and held that proviso to section 68 inserted by the Finance Act, 2012 with effect from 01/04/2013 is applicable from AY 2013-14 onwards, as per which before insertion of provision to 68 of the Act, the assessee need not to prove source of source of an investment. Once, he proved credit worthiness of the parties, it is sufficient enough to come out of provision of section 68.
We are of the considered view that the Ld. CIT(A) has rightly deleted additions made by the AO towards share capital received from three companies, on the basis of various evidences filed by the assessee, including confirmation letter from the shareholders. We do not find any error or informative in the findings of Ld. CIT(A) and hence, we are inclined to uphold order of the Ld.CIT(A) and dismissed appeal filed by the revenue.
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2019 (8) TMI 1694 - ITAT MUMBAI
Disallowance u/s.14A r.w.r. 8D under normal provisions of the Act as well as in computation of book profits u/s.115JB - HELD THAT:- We find from perusal of the balance sheet as on 31/03/2010, total own funds available with the assessee is ₹ 295,23,58,270/-, whereas the investments made were only ₹ 131,21,08,283/-. Hence, the presumption that own funds is available with the assessee for making investments would apply even for the year under consideration we direct the ld. AO to delete the disallowance of interest made under second limb and rule 8D(2) of the rules.
Disallowance of administrative expenses made under third limb of rule 8D(2) of the rules is concerned, we direct the ld. AO to make disallowance by considering only those investments that had yielded exempt income to the assessee. This direction is given in the light of decision in the case of Vireet Investment (P) Ltd. [2017 (6) TMI 1124 - ITAT DELHI]. Accordingly, the altered ground raised by the assessee with regard to disallowance u/s.14A of the Act r.w.r. 8D(2) of the rules under normal provisions of the Act is partly allowed.
Disallowance made u/s. 14A of the Act, while computing book profits u/s.115JB of the Act, we find that the computation mechanism provided in rule 8D(2) of the rules cannot be imputed into Clause (f) to Explanation 1 to Section 115JB (2) of the Act as held by the Special Bench of Delhi Tribunal in the case of Vireet Investment (P) Ltd. [2017 (6) TMI 1124 - ITAT DELHI]. However, the ld. AO is directed to consider the disallowance of expenses incurred for the purpose of earning exempt income based on actual amounts debited to profit and loss account. This direction is also given in the light of the decision of Special Bench of Delhi Tribunal supra. Accordingly, the additional ground raised by the assessee is allowed for statistical purposes.
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2019 (8) TMI 1693 - CESTAT MUMBAI
Taxability - support services of business or commerce or not - players in the Indian Premier League (IPL) - HELD THAT:- The decisions of Hon’ble High Court of Calcutta in SOURAV GANGULY VERSUS UNION OF INDIA & OTHERS [2016 (7) TMI 237 - CALCUTTA HIGH COURT] which, inter alia, challenged the instruction in circular no. 42/Comm (ST)/2008 dated 26th July 2010 of Central Board of Excise & Customs (CBEC) directing issue of notice on fees, either fully or partly, paid to players for participation in the Indian Premier League (IPL). Therein, it was held that The remuneration received by the petitioner from the IPL franchisee could not be taxed under business support service.
Thus, the players, such as the appellant herein, do not render ‘support services of business or commerce’ - appeal allowed - decided in favor of appellant.
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2019 (8) TMI 1692 - CESTAT NEW DELHI
Exemption from tax or not - services of foreign commission agent - eligibility of N/N. 18/2009-ST dated 07.07.2009 - HELD THAT:- The Notification exempts the services provided by the commission agent located outside India and engaged under contract or agreement or any document by the exporter to act on their behalf for sale of the exported goods. The conditions for availment of the Notification are prescribed in the Notification itself. It is on record that the appellant has complied with all the conditions, as prescribed in the Notification and also filed EXP-1 declaration and EXP-2 Returns appropriately. Learned Commissioner (Appeal) has rejected the appeal on the ground that the conditions No. 4 of the Notification has not been fulfilled by the appellant - It is also evident from the record of the case that the appellant has submitted the required information as per the Notification to the Jurisdictional Deputy/Assistant Commissioner, who is the competent authority to monitor the claim of exemption under the Notification. The Assistant Commissioner/Deputy Commissioner has not objected the appellant’s claim regarding the exemption Notification. Therefore, finding of the Commissioner (Appeal) that the shipping bills/bill of export has not been produced is an incorrect appreciation of the conditions of the said Notification.
The payment made by the appellant towards the service tax, in duress, will not be sufficient to deny exemption to the appellant - reliance can be placed in the case of M/S PRAJ INDUSTRIES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-III [2017 (4) TMI 1286 - CESTAT, MUMBAI] where it was held that Reading of the notification shows that the conditions are regulatory in nature and not mandatory to avail the exemption. If the procedure prescribed is not fulfilled there would be no consequence of denial of the benefit of the notification.
Appeal allowed - decided in favor of appellant.
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2019 (8) TMI 1691 - CESTAT NEW DELHI
Classification of goods - Ayurveda Power Prash and Ayurveda Advanced Herbal Body Growth - to be valued under MRP basis or not - SSI exemption limit crossed or not - period 1 April, 2011 to 24 November, 2011 which is prior to 1 March, 2013 - HELD THAT:- In Devendra Arora, Prop. [2018 (5) TMI 1190 - CESTAT NEW DELHI], this very issue was examined and the Bench observed that it was with effect from 1 March, 2013 that not only the classical Ayurvedic medicines but also Ayurvedic Power Prash and Ayurvedic Advance Herbal Body Growth would be included in the notification for charging duty under Section 4A of the Excise Act.
There are no justification for the adjudicating authority to assess the goods under Section 4A of the Excise Act. Therefore, the seizure made by the Department is not sustainable and is liable to be set aside - appeal allowed - decided in favor of appellant.
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2019 (8) TMI 1690 - CESTAT NEW DELHI
Valuation - activity in relation to laying of cable for transmission and distribution of electricity - inclusion in the assessable value - Supply and erection of 4 Pole structure with 8.5 m long Steel Tubular Poles (410-SP-23) for three phase four wire line - Supply and erection of three phase 25 KVA, 11KV/0.433 KV Distribution Transformer substation mounted on DP Structure - Supply and erection of single phase 16 KVA 6.3KV/ 250V Distribution Transformer - Guarding - HELD THAT:- The issue is no more res-integra in view of the decision in M/S UP RAJKIYA NIRMAN NIGAM LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, MEERUT-I [2015 (8) TMI 66 - CESTAT NEW DELHI] where it was held that the service rendered by the appellant is squarely relating to transmission and distribution of electricity and therefore in the light of the Notification No.45/2010-ST, dated 20.07.2010 no service tax is recoverable in respect thereof - the decision is squarely applicable to the facts of the present appeal.
Appeal allowed - decided in favor of appellant.
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2019 (8) TMI 1689 - CESTAT NEW DELHI
Application for condoning the delay in filing the appeal - time limitation as per Section 9C of the Customs Tariff Act, 1975 - HELD THAT:- It is true that this Tribunal in M/S PANASONIC ENERGY INDIA CO. LTD., M/S ASSOCIATION OF INDIAN DRY CELL MANUFACTURERS, M/S EVEREADY INDUSTRIES LIMITED AND M/S INDO NATIONAL LTD. VERSUS UNION OF INDIA/DA [2017 (9) TMI 63 - CESTAT NEW DELHI] held that an appeal cannot be filed before the Tribunal against a negative determination by the Designated Authority, but in such a situation when the view of the Tribunal was very clear, nothing prevented the Appellant from filing a Writ Petition before the High Court to challenge the determination by the Designated Authority, if it felt aggrieved. However, the Appellant neither availed the remedy of filing a Writ Petition in the High Court nor did it file an appeal before this Tribunal within the stipulated time - Mere filing of a Writ Petition by another party or its pendency, cannot be said to be a good reason for the Appellant to not to file a Writ Petition before the appropriate High Court or an Appeal before the Tribunal within the time provided for. The Appellant had to itself avail the remedy. There was no reason for the Appellant to await the decision of a Writ Petition filed by some other party and that too not against the determination made by the Designated Authority on 25 January, 2018. If the Appellant was really aggrieved by the negative determination by the Designated Authority, it could have also filed a Writ petition before appropriate High Court.
The present appeal was filed beyond 12 days from the time granted by the Bombay High Court in Writ Petition filed by another Domestic Industry - the explanation offered by the Appellant for condoning the delay is not satisfying - application dismissed.
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2019 (8) TMI 1688 - CESTAT NEW DELHI
Non-payment of service tax - Business Support Services or not - Broadcasting Services - fixed satellite - HELD THAT:- It is seen that Business Support Service (BSS) covers in its ambit various activities including infrastructural support services. A perusal of the definition would show that it does not cover the activities undertaken by the Appellant since it only uplinks and downlinks satellite beams at agreed and desired bandwidth provided by Intelsat and hence such an activity cannot be Infrastructural Support Services. It is also evident from the CBEC Circular dated 28.02.2006 that the Infrastructural Support Service covered under BSS is with reference to only those services which has been outsourced. The Department has presumed that the Appellant has outsourced their activity of uplinking and downlinking signal beams at agreed and desired bandwidth. The said view is not correct since the Appellant has not outsourced their activity of uplinking and downlinking contents to be received and broadcasted but has purchased the desired bandwidth as they do not possess a satellite of their own to beam such signals - It is, therefore, clear that the fixed satellite is for broadcasting or beaming of contents and is beyond the scope of Infrastructural Support Service - the demand made in the impugned order is, therefore, not sustainable.
Management, maintenance or repair service or not - Maintenance of software as per agreement with M/s Aveco and M/s Octopus in respect of ‘Maintenance of Software and Upkeep of Hardware’ services obtained by the Appellant from the overseas entities - scope of SCN - HELD THAT:- The show cause notice proposed demand of service tax under the category of Management, Maintenance or Repair Service, and therefore, the confirmation of service tax under the category of ‘ITSS’ is beyond the scope of show cause notice. The impugned order, thus, has travelled beyond the show cause notice, and therefore, is not sustainable.
The Commissioner has rightly dropped the demand pertaining to Maintenance, Management and Repair service pertaining to period prior to 16.05.2008, which is any case would not have come within the sweep of Management, Maintenance or Repair Service. Therefore, the appeal filed by the Department is not sustainable.
Appeal allowed - decided in favor of assessee.
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2019 (8) TMI 1687 - CESTAT NEW DELHI
Classification of services - Goods Transport Agency Service or cargo handling services - activity of transportation of coal from pitheads/coal face to railway siding - first SCN for period March, 2008 to January, 2012 - second SCN for the period February, 2012 to March, 2013 - third SCN for the period April, 2013 to March, 2014 - HELD THAT:- The activity of movement of coal within the mining area from pitheads to railway siding from trucks/motor vehicles is taxable under the “Goods Transport Agency” services as was observed by the Supreme Court in COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, RAIPUR VERSUS SINGH TRANSPORTERS [2017 (7) TMI 494 - SUPREME COURT].
Period 1 July, 2012 onwards - HELD THAT:- Even for the period 1 July, 2012 onwards the activity undertaken by the appellant would be taxable under the “Transportation of Goods” service in view of the decision of this Tribunal in M/s H.N. Coal Transport Private Limited versus Commissioner of Central Excise and Service Tax, Raipur [2018 (8) TMI 173 - CESTAT NEW DELHI] where it was held that for the period w.e.f. 01/07/2012, the activity of transportation of coal from the coal face to the railway siding will continue to enjoy the benefit available to goods transport agency and cannot be bundled into a single service under Section 66F alongwith lifting of coal at the coal face into the activity of mining.
The impugned order passed by the Commissioner classifying the said service as “Cargo Handling” service cannot be sustained and is set aside - Appeal allowed - decided in favor of appellant.
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