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Case Laws
Showing 441 to 460 of 1831 Records
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2017 (5) TMI 1393
Business Auxiliary Services - commission received for marketing the goods of its foreign clients in India - demand - Held that: - The appellant submitted through the said letter dated 25.09.2009 that they were providing service to foreign clients and their activity amounted to export of service. Such aspect was not examined and the said SCN dated 20.10.2009 was issued wherein nowhere it was established that the commission received was in INR - SCN not sustainable - appeal allowed - decided in favor of appellant.
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2017 (5) TMI 1392
Whether service tax is payable on the spare parts/consumables used in the service of motor vehicles by the appellant, who is an authorized service station of the manufacturer-Maruti Udyog Ltd.? - Held that: - Service tax is not payable on Spares & Consumable shown separately in the invoice and on which admissible VAT/Sales tax is charged or paid - demand set aside.
Whether the appellant is required to pay service tax on the amount received from manufacturer for providing three free services to the customer, during the warranty period? - Held that: - Payment of bills, for free services, by manufacturer to servicing dealer is an internal arrangement and had nothing to do with the payment for services provided by the selling dealer to customers of car - service tax not payable.
Whether the appellant is required to pay service tax on the amount of rent receivable shown in the books of account, admittedly not received? - Held that: - service tax was not chargeable at that time on the basis of raising of bills but was leviable only on the receipt of consideration for the service. Accordingly, we hold that no service tax is payable on the rent receivable, but admittedly not received by the appellant. - demand set aside.
Appeal allowed - decided in favor of assessee.
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2017 (5) TMI 1391
Refund claim - N/N. 41/2007-ST read with N/N. 17/2009-ST - time limitation - Held that: - One of the conditions appearing in clause (f) para 2 of the N/N. 17/2009-ST, is that claim for refund shall be availed within one year from the date of export of the said goods. Doubts have been expressed whether the applicability of this notification would be only with respect to such exports which have taken place after the issuance of this notification or would apply also to export prior to 07th July, 2009 - refund claims are filed within the stipulated period of one year, hence allowed.
Refund claim - Terminal handling charges - Empty Container Offloading Charges - Transportation Charges (from ICD Delhi to ICD Dadri) - Documentation Charges - Held that: - CBEC had issued Circular No.354/256/2009-TRU dated 1st January 2010, vide which the issue no longer survives and the appellant is accordingly held entitled to refund on all the services including Custom House Agent Services.
Appeal allowed - decided in favor of appellant.
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2017 (5) TMI 1390
SSI exemption - clubbing of clearances - whether the Court below have rightly clubbed the turnover of these two appellants for the purpose of allowing the threshold exemption or SSI exemption? - whether for the purpose of calculating SSI Exemption under the classification of ‘Rent-a-Cab service’ operator where the gross receipts Form part of the aggregate value towards the taxable service, or the amount as reduced by the exemption allowed vide N/N. 1/2006-ST is to be considered?
Held that: - the 2nd clause states ‘such gross amount’ actually qualifies the words “gross amount” in the 1st clause. Accordingly, it is evident that the gross amount prescribed the amount, not including payments received towards such gross amount, which are exempt from whole of the service tax leviable thereon, under section 65 of the Finance Act under any other notification. Further on reading N/N. 1/2006-ST, it is evident that the said notification exempts 60% of the gross receipts towards the service ‘Renting-a-Cab’, as defined in sub-clause ‘o’ of clause 105 of Section 65 of the Finance Act read with Section 66 of the Finance Act. Accordingly, I hold for calculating that for the purpose of determining the aggregate value for exemption under N/N. 6/2005-ST, only the net value received i.e. after the abatement under N/N. 1/2006-ST is to be considered. Secondly, I find that there is no proposal in the SCN for clubbing the turnover of these two appellants for the purpose of threshold exemption. Accordingly, I hold that the said clubbing is bad and further direct that the appellants are entitled to threshold exemption separately.
The matter is remanded to the Adjudicating Authority for the limited purpose of calculating the net tax payable, if any, after implementing the orders and directions - appeal allowed by way of remand.
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2017 (5) TMI 1389
Liability of tax - construction activities mainly non commercial structures - Held that: - in respect of all the residential units constructed for Ghaziabad authority, for the Ministry of Defense, and under JNNURM, none of the constructed blocks have got 12 or more units, attracting levy of service tax under Section 65(105) (zzzh) - the whole SCN is unsustainable and the demand as raised is bad and against the provisions of law - appeal allowed - decided in favor of appellant.
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2017 (5) TMI 1388
Valuation - includibility - related party transaction - whether the allegation of dealers sharing portion of the advertisement expenses, will constitute a extraneous consideration, in addition to the price charged and hence, whether such consideration will require to be included in the assessable value?
Held that: - there is no evidence available to suggest that the appellants had made any additional charges for advertisement inextricably tied to the price to be paid for the goods cleared to the dealers. No corroboration is forthcoming or has been unearthed by Revenue to establish that the portion of advertisement charges paid by dealers was a subterfuge with the intent of dampening the assessable value and thereby evade dull duty liability.
The impugned advertisement expenses cannot be termed as extraneous consideration to the price charged by the appellants which would require inclusion in their assessable value for the purpose of Section 4 or after 1.7.2000 - these expenses are not in the nature of any amount that the dealer is liable to pay to, or on behalf of the manufacturer by reason or in connection with the sale of motor vehicles.
Appeal allowed in toto - decided in favor of appellant.
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2017 (5) TMI 1387
CENVAT credit - credit availed during setting up of the plant - denial of CENVAT credit on the ground that at the time of taking credit, no dutiable goods was being manufactured - N/N. 30/2004-CE dated 09/07/2004 - Held that: - the input service received for the plant was used in the manufacture of dutiable goods - It is obvious that when the project work of renovation and modernization of the plant is undertaken, it takes some time and after gestation period, the plant comes into operation and whatever goods manufactured out of that plant is cleared on payment of duty. Therefore, the credit in respect of the services, which is related to the said renovation and modernization is clearly admissible to the appellants - credit allowed - decided in favor of appellant.
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2017 (5) TMI 1386
Valuation - the appellant was clearing their final products on payment of duty to their depot at Navi Mumbai for onward sale to the wholesale dealers - Held that: - For determining assessable value in such cases, the CBEC has also issued a Circular No.251/85/96-CX dt. 14/10/1996 wherein it was clarified that the price prevailing at the depot on the day of clearance from the factory is to be taken as the assessable value and in such case, if the price is not available, then the price at the time nearest to the time of removal of the goods is to be taken as assessable value - demand attributable to those invoices whose date taken by the Department is subsequent to the date of clearance from the factory cannot be sustained. Consequently, we are constrained to set aside demand amounting to ₹ 14,61,527/-.
Extended period of limitation - Held that: - while submitting the details of depot invoices where refund was admissible, they have concealed the details of clearances in respect of which depot price sale was higher than the stock transfer value - also, appellant has failed to mention the fact that they were adopting the price listed in their website and the fact came to the notice only when the Departmental officers visited the factory and carried out investigations - the demand does not merit setting aside on the ground of time bar.
Penalty - Held that: - The controversy in the present case is pertaining to the period immediately after commencement of manufacture by the appellant in their Bangalore factory. Consequently, we are of the view that there is no justification for imposition of penalty on the appellant and hence the same is set aside.
The demand is upheld to the extent of ₹ 22,61,058/-. The balance of demand amounting to ₹ 14,61,527/- is set aside. The amount of demand already paid by the appellant is liable to be appropriated - Interest will be liable to be paid at the applicable rate - Penalty imposed is set aside - appeal allowed - decided partly in favor of assessee.
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2017 (5) TMI 1385
Petroleum products - deemed exports - supply to EOU - demand of duty on stock after withdrawing warehousing benefit - Held that: - it is the admitted position that the goods lying in stock at the installation are cleared only to KDPP and KPCL who are entitled to exemption based on end-use certificate and this fact is admitted in para 15 of the impugned order - the impugned goods are eligible for exemption at the time of removal thereof from the installation and no duty is payable on the quantity lying in stock at the installation consequent to withdrawal of warehousing facility - appeal allowed - decided in favor of assessee.
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2017 (5) TMI 1384
Imposition of penalty - case of appellant is that their case is covered by the provisions of Sub-section 2B of Section 11A of CEA, 1944 and as provided in said Sub-section, there was no need for issuance of present SCN and had there been no SCN, the question of imposition of penalties did not arise - Held that: - the said Sub-section (2B) of Section 11A of CEA, 1944 provides that ‘when an assessee on his own ascertainment pays the amount of duty and interest thereon before issue of SCN, then SCN demanding the said amount cannot be served on the assessee’ - the SCN has not at all dealt with the aspect as to why the assessee’s present case is not covered by the provisions of said Sub-section (2B) of Section 11A of CEA, 1944 and how the demand of ₹ 43,46,542/- is tenable in spite of provisions of Sub-section (2B) of Section 11A of CEA, 1944 - appeal allowed - decided in favor of appellant.
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2017 (5) TMI 1383
100% EOU - CENVAT Credit of the duty paid on export invoices without filing any rebate/refund claim - time limitation - Held that: - the appellant clearly intimated about their taking re-credit in their Cenvat Account - Despite the clear intimation given by the appellant to the department, the department took 3 years to issue the SCN, which was issued on 17.10.2011 - Since the appellant disclosed the fact about taking re-credit, there is absolutely no suppression of the fact on part of the appellant - SCN issued after 3 years is clearly time barred - appeal allowed on the ground of limitation - decided in favor of appellant.
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2017 (5) TMI 1382
CENVAT credit - duty paying invoices - whether the CENVAT Credit in respect of Service Tax paid on the rent of the premises is admissible on the debit note issued by the premises owner? - Held that: - the debit note on which the credit was availed has contained all the information which is required in terms of Rule 4 of the STR, 1994 - reliance was placed in the case of Vodafone Essar Spacetel Ltd. [2016 (1) TMI 24 - CESTAT KOLKATA], where it was held that any document which contains the details prescribed u/r 4A(1) of the STR, 1994, the same can be considered as the invoice or challan and will be a proper document for availing the CENVAT Credit - appeal allowed - decided in favor of appellant.
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2017 (5) TMI 1381
Valuation - includibility - whether the excise duty paid on inputs and notional profit is liable to be added in the assessable value of the final products manufactured and cleared by the appellant? - Held that: - regarding the issue of inclusion of notional profit, no amount on account of profit can be added - since this factual aspect which observed by the Commissioner (Appeals) was not raised right from the SCN stage, at this stage, it is impractical for the appellant to come out with the Cost Accountant’s certificate, therefore, even on the basis of cost certified by the appellant can be accepted subject to the correctness of the data on the basis of Books of Account - appeal allowed by way of remand.
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2017 (5) TMI 1380
Levy of duty - The respondent is engaged in the manufacture of various gases such as Oxygen, Nitrogen, Argon etc. - Due to technical reasons, some quantities of such gases sent through pipeline to the recipient was vented out into atmosphere. The Department wanted to levy duty of excise on such quantities of gases - Held that: - the same issue pertaining to the very same appellant for an earlier period [2012 (8) TMI 825 - CESTAT BANGALORE] had come up before this Tribunal wherein the issue was decided in favour of the respondent. It was held that gases which were vented out in the atmosphere are exempted from excise duty - duty not leviable - appeal dismissed - decided against Revenue.
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2017 (5) TMI 1379
100% EOU - CENVAT credit of education cess, as well as secondary and higher education cess paid on the basic excise duty - Rule 3 of CCR, 2004 - Held that: - Rule 3 of CCR, 2004 specifically lists the duties that can be availed as credit. Though the aggregate of duties of customs is collected as an amorphous duty of excise, the specific reference to the Central Excise Tariff Act, 1985 in the rule excludes the availment of the totality of excise duty paid by Export Oriented Units as credit - The availment of credit to the extent specified in the notice issued to the appellant is incorrect and the impugned order is correct in law.
Penalty - Held that: - the availment of ineligible credit had arisen from apparent confusion about the nature and composition of the levy - availment does not appear to have been motivated by intent to evade duties - penalty set aside.
Appeal allowed - decided partly in favor of appellant.
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2017 (5) TMI 1378
CENVAT credit - scope of input service - services related to handling of goods outside the factory, but up to and until export of goods - Held that: - the goods are permitted to be deposited without payment of duty at the port of export, it would appear that the ‘place of removal’ in relation to exported goods is not the factory but beyond. Any service used till the place of removal would qualify as an ‘input service.’ There can be no cavil about the availment of credit of any tax that has been paid in connection with such input services.
There can be no dispute that the services on which credit of tax paid was taken had been rendered to the respondent. It would also be natural for any assessee to take the credit of any tax that has already been paid in connection with their business activities. To the extent that this credit has been taken on services that are not ineligible for inclusion as ‘input services’, the availment of credit cannot be objected to.
Appeal dismissed - decided against Revenue.
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2017 (5) TMI 1377
Validity of ex-parte Final Order - natural justice - Held that: - in the interest of justice, we allow this miscellaneous application for recall of the Final Order dated 09th April, 2015 for this applicant/appellant M/s Chandravati Polymers Pvt. Ltd., subject to cost imposed of ₹ 50,000/- to be paid in ‘Prime Minister National Relief Fund’ - appeal restored.
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2017 (5) TMI 1376
Validity of SCN - Held that: - once a SCN is issued by invoking the provisions for extended period on the basis of suppression of facts then the same facts cannot be the grounds for issue of subsequent SCN invoking proviso for extended period - Since the entire records on the basis of which both the SCN were issued came within the knowledge of Revenue on 11/03/2003, the impugned SCN dated 30/12/2003 is not tenable - appeal dismissed - decided against Revenue.
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2017 (5) TMI 1375
Valuation - Applicability of Rule 7 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - The goods manufactured were both sold at the factory gate and were also transferred to consignment agent - case of appellant is that Rule 7 is applicable only when all the goods manufactured by a manufacturer are sold only through depots and since in the present case all the goods are not sold through depot, therefore, the order passed by ld. Commissioner (Appeals) may be set aside - Held that: - some of the goods were sold by the appellant at the factory gate - provisions of Rule 7, were not applicable in the present case - appeal allowed - decided in favor of assessee.
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2017 (5) TMI 1374
CENVAT credit - Rule 3 (5A) of the CCR, 2004 - removal of Brass Tubes - removal as such or as waste?
Held that: - the appellant have removed used Brass Tubes as ‘Brass Tubes’ and not as ‘waste and scrap’. In this view of the matter, the provisions of Rule 3 (5A) of the CCR, 2004, are not attracted - appeal allowed - decided in favor of appellant.
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