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Showing 461 to 480 of 1742 Records

• 2017 (8) TMI 1284
  

  Club or Association Services - service charges collected by assessee under the head subscription, affiliation fees, young leader forum - Held that: - Section 96J was introduced inserted in the Finance Act, 2011 w.e.f. 08.04.2011 where the services were services were brought under clutches of the Service Tax. Prior to which the Service Tax was not applicable - In the instant case, the period in dispute (16.06.2005 to 31.03.2008) is prior to the introduction of Section 96J. When it is so, then the Service Tax is not applicable in the instant case - appeal allowed.

  Renting of immovable property services for the period 01.06.2007 to 31.12.2007 - penalty - Held that: - an identical issue has come up before the Tribunal in the case of Arora Products vs Addl. Commissioner of Central Excise, [2008 (3) TMI 343 - HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR], wherein it was observed that on combined reading of provisions of Sections 11A(2B) and 2(C) of the Central Excise Act, 1944 and in view of the fact that duty leviable has already been deposited prior to the show cause notice, no penalty could be imposed under Section 11AC - appeal allowed.

  Convention/sponsorship charges for the period 18.04.2006 to 31.12.2007 - reverse charge mechanism - Held that: - in the impugned order no discussion has been made regarding the nature of the charges. When it is so, then we set aside the impugned order in this regard and remand the matter to the adjudicating authority to decide the issue de novo - matter on remand.

  Mandap Keeper's Services for the period 01.10.2002 to 31.12.2007 - penalty - Held that: - the demand was paid before the issuance of the show cause notice - penalty set aside - appeal allowed.

  Appeal allowed in part and part matter on remand.

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• 2017 (8) TMI 1283
  

  Maintenance or Repair Services - the immovable property belonging to the appellants are leased/rented to various IT companies - The department was of the view that prior to 01.06.2007, the appellants are liable to pay service tax under the category of Maintenance or Repair Services - Held that: - Taking into consideration the concession made by the appellants that they are liable to pay service tax for the said services for the disputed period, we consider that the matter can be remanded to the adjudicating authority for the limited purpose of recalculation of net tax liability after giving the benefit of Cenvat credit that the appellant would have been eligible to avail during the impugned period.

  Penalty u/s 78 - Held that: - the appellants are a State Government Undertaking primarily set up for promoting the housing and promoting IT and IT enabled services. This being so, nefarious intent of evading service tax cannot be expected of them - appellants were under a reasonable cause for non-discharging the tax liability and accordingly, we find it proper to set aside the penalty - penalty set aside.

  Appeal allowed by way of remand.

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• 2017 (8) TMI 1282
  

  SEZ unit - Refund of service tax - N/N. 09/2009-S.T., dated 3-3-2009 as amended by No. 15/2009-S.T., dated 20-5-2009 - denial on the ground that the requirements of notification dated 3-3-2009 have not been complied with by the appellant - Held that: - the disputed service were duly approved by the Development Commissioner in terms of notification dated 3-3-2009. Thus, the services consumed within the SEZ area should qualify for refund benefit under the Notification dated 3-3-2009, upto 19-5-2009, for the reason that notification dated 20-5-2009 will not have any retrospective application and the same will apply prospectively - rejection of refund not sustainable.

  Since, the service tax refund for the period upto 20-5-2009 has not been quantified, the matter should go back to the original authority for quantification of the refund amount.

  Appeal allowed by way of remand.

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• 2017 (8) TMI 1281
  

  Levy of service tax - container detention charges - whether the “container detention charges” is subject to service tax or not? - Circular No. 121/2/2010-S.T., dated 26-4-2010 - Held that: - Circular No. 121/2/2010-S.T., dated 26-4-2010 states that To retain the container beyond the pre-holding period is neither a service provided on behalf of the client (Business Auxiliary Service) nor is it an infrastructural support in the business of either the shipping lines or the customer (Business Support Service). Such charges can at best be called as ‘penal rent’ for retaining the containers beyond the pre-determined period - the amount collected as ‘detention charges’ is not chargeable to service tax - appeal allowed - decided in favor of appellant.

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• 2017 (8) TMI 1280
  

  Taxability - promotion of business of ICD - services by CHA to clients - appellant got ex gratia payment from the ICD through which cargo were shipped - Held that: - when the incentives for promotion of the business of the ICD is paid and it was pre-decided then the same is chargeable to service tax - appeal dismissed - decided against appellant.

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• 2017 (8) TMI 1279
  

  Recall of the order - maxim vigilantibus et non dormientibus jura subveniunt - Held that: - the appeal was dismissed on 2-5-2014 and after a gap of two years, the appellant has made the deposit in the month of April, 2016 but under the pressure of the department when notice under Section 87B of the Finance Act was issued - as per the maxim viailatibus et non dormientibus jura sub veniunt, law helps those who are vigilant and not those who go to sleep - application to recall the order rejected - decided against applicant.

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• 2017 (8) TMI 1278
  

  Gross receipts – Demand – the decision in the case of SCOTT WILSON KIRKPATRICK (I) PVT. LTD. Versus COMMR. OF ST, BANGALORE [2006 (10) TMI 4 - CESTAT, BANGALORE] contested, where it was held that Gross receipts cannot be subject to service tax as part of the amount is on account of reimbursable expenses - condonation of delay - Held that: - Delay in filing the appeal is condoned as the appellant had been pursuing the appeal before the High Court under the provisions of Section 35G of the Central Excise Act, 1944 - however, the decision in the above case upheld, and the present appeal dismissed, as there is no merit in the appeal - decided against appellant.

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• 2017 (8) TMI 1277
  

  Refund of service tax paid - subsequent exemption - recovery of tax so paid from the Municipal corporation / service recipient - As per the condition in the contract (E-tender), the amount to be offered was to include all taxes and levies - the decision in the case of Malwa Engineering Works Versus The Union of India And Others [2016 (10) TMI 801 - PUNJAB & HARYANA HIGH COURT] contested, where it was held that Once the amount offered by the petitioner included all taxes and levies and subsequently, the levy of service tax was withdrawn by the Government, that amount being one of the component in the price offered by the petitioner, he is not entitled to claim that from the Municipal Corporation, as that amount was to be received and paid to the department concerned - Held that: - the decision in the above case upheld - SLP dismissed.

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• 2017 (8) TMI 1276
  

  Deemed credit - assessee being SSI, availed Modvat Credit facility, as envisaged in N/N. 1/93 - Held that: - the facts of this case are also identical to facts in First Appeal No. 95 of 2005 and, thus, the said judgment that would be delivered by us in the said First Appeal, would apply to the facts of this case also. We are, thus, not rendering separate reasons for allowing this appeal - appeal allowed - decided in favor of assessee.

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• 2017 (8) TMI 1275
  

  Area Based Exemption - N/N. 32/99-CE dated 08.07.1999 - assessee-Appellants have undertaken 25% expansion which was denied by the adjudicating authority - Held that: - an identical issue has come up before this Tribunal in assessee-Appellants own case Commissioner of Central Excise & Service Tax, Dibrugarh Versus M/s. Greenply Industries Ltd. [2016 (8) TMI 841 - CESTAT KOLKATA], where it was held that in view of the clarification dated 15.10.2009 discussed by the Adjudicating authority it cannot be said that no expansion in the installed capacity could be enhanced by the Respondent. There could be various stages by which installed capacities could be enhanced by the appellant so long as it remains within the licenced capacity decided by State Forest department in the light of Supreme Court s judgement dated 15.01.1998. There is also no requirement under Notification No.32/99-CE dated 08.07.1999 that licensed capacity fixed by State forest department has to be taken into consideration while allowing expansion and that appellant should in one go install all machinery required to cater to the licensed capacity sanctioned - benefit of notification allowed - appeal dismissed - decided against Revenue.

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• 2017 (8) TMI 1274
  

  Valuation - production of various counts of yarn, and cleared to sister units - Section 4 (1) (b) read with Central Excise (Valuation) Rules, 2000 - Time limitation - revenue neutrality - Held that: - the appellant was following the cost of production as certified by a Cost Accountant. The department arrives at a different value of cost of production. Thus, the value adopted by the appellant is not baseless and on this score also, no mens rea can be attributed to the appellant.

  Time limitation - Held that: - Against the audit objection raised, which was conducted in May, 2005, the appellant had replied with reasons / details. In spite of this, the SCN is seen issued in March 2007 on the very same ground invoking extended period alleging suppression of facts, which in our view, is not acceptable - there cannot be any intention to evade payment of duty.

  Appeal allowed - decided in favor of appellant.

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• 2017 (8) TMI 1273
  

  Refund of excess paid duty - The ld. Commissioner (Appeals) has found that the amount recovered was not adjudged through any proceedings - Section 11 of the Central Excise Act, 1944 - Held that: - Section 11 of the Central Excise Act, 1944 did not authorize recovery of any sums which have not been adjudged and confirmed by the Competent Authority and that the said amount was not confirmed by any Adjudicating Authority. Therefore, the Original Authority had no power to recover the same under said Section 11 of the Central Excise Act, 1944 - appeal dismissed - decided against Revenue.

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• 2017 (8) TMI 1272
  

  CENVAT credit - iron & steel items such as Chequered Plate, G.P. Sheet, H.R. Plate, G.P. Coil cut into sheet, H.R. Sheet, Cobble Plate etc. and on welding electrodes, used for manufacturing of Sponge Iron - Held that: - whether iron and steel item is to be considered as part or component or accessory of capital goods can be decided by applying user test as decided in Jawahar Mills Ltd. [2001 (7) TMI 118 - SUPREME COURT OF INDIA] and elaborated in CCE Vs.Rajasthan Spinning & Weaving Mills Ltd. [2010 (7) TMI 12 - SUPREME COURT OF INDIA], where it was held that Applying the "user test" on the facts in hand, we have no hesitation in holding that the steel plates and M.S. Channels, used in the fabrication of chimney would fall within the ambit of "capital goods" as contemplated in Rule 57Q - credit allowed.

  Penalty - Held that: - Reliance placed in the decision of Hon’ble Madras High Court in CCE, Salem Vs. Madras Aluminium Co. Ltd. [2016 (12) TMI 1374 - MADRAS HIGH COURT] which also deals with the scope of credit on similar items and also application of the concept of support structure while deciding the dispute, where it was held that there is no willful intent to evade duty and hence the question of invoking the penalty under section 11AC would not arise - penalty set aside.

  Credit allowed - penalty set aside - appeal dismissed - decided against Revenue.

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• 2017 (8) TMI 1271
  

  Valuation of imported goods - dry Ginger of Chinese origin - valid basis for enhancement of value - Held that: - reliance placed in the case of Vijaya International Impex Versus Commissioner of Customs (Seaport-Import) [2017 (6) TMI 991 - CESTAT CHENNAI], where it was unequivocally held that the transaction value is required to be accepted unless there are valid reasons for rejection of the said value as provided in the Customs Valuation Rules. Neither the market enquiry nor NIDB data will be a valid ground to disregard the transaction value.

  The DRI alert prices, or the appellant's own statement or public ledger information or email retrieved in respect of another importer or for that matter, price trend analysis made by a website of Samex Agency, cannot, by any stretch of imagination, be considered as valid basis for enhancement of the transaction value - when such contemporaneous imported goods have assessable value determined at US$ 800 /MT by the Commissioner (Appeals), which order has not been appealed against, the department cannot then assail the declared transaction value of US$ 800 /MT of identical goods imported by the appellants and instead enhance the same on basis of information from websites and so on.

  Appeal allowed - decided in favor of appellant.

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• 2017 (8) TMI 1270
  

  Reversal of CENVAT credit - destruction of semi finished goods in fire - whether assessee is required to reverse the Cenvat credit attributed to input destroyed as such or contained in the semi finished goods? - Held that: - there is no provision in law to recover the cenvat credit in respect input contained in semi finished goods destroyed in fire. The only rule which restrict availment of Cenvat credit is provided under Rule 6 of Cenvat Credit Rules. Accordingly to the said provisions when input is used in manufacture of exempted goods Cenvat credit is not available - In fact of the present case there is no dispute that input contained in semi finished goods was meant for use in the manufacture of dutiable goods and the same was used in the exempted goods, therefore provisions of Rule 6(1) is not applicable.

  As regard the specific provision for reversal of Cenvat credit on input contained in the goods which destroyed in the fire was brought w.e.f. 7-1-2007 under Rule 3(5)(c) of Cenvat Credit Rules whereas present case is pertaining to the period 9-6-2006 therefore this provision of Rule 3(5)(c) of Cenvat Credit rules is also not applicable - the Cenvat credit in respect of input either as such or in the form of semi finished goods lost in fire, cannot be denied - appeal allowed - decided in favor of appellant.

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• 2017 (8) TMI 1269
  

  Valuation - extended period of limitation - It appeared to the Department that the appellant was clearing Methylene Chloride with Chloroform for various industrial consumers at different rates - Held that: - What is not disputed is that the entire proceedings have emanated subsequent to internal audit conducted by the department of the appellant - We find that while many of these contention of the appellant with regard to limitation have been taken note of by the adjudicating authority, however, they have been summarily brushed aside without any justifiable explanation. Surprisingly, the adjudicating authority has made an observation that visit of officers for routine checkup and audit does not debar the invocation of larger period if new ground comes to law, which was not revealed by the assessee to the department. However, the adjudicating authority has not substantiated as to what new ground had come to light pursuant to audit.

  Higher appellate forums have consistently held that to invoke extended period, the elements of suppression of facts have to be proved and that too with intent to evade payment of duty. This is certainly not the case here.

  The entire proceedings are hit by limitation - appeal allowed on the ground of limitation.

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• 2017 (8) TMI 1268
  

  Benefit of N/N. 70/92-CE - Job-work - denial on the ground that the packing material was not covered under the said notification and their principal manufacturer had not filed the prescribed undertaking under the said notification - Held that: - Since the supplier of raw material (Indian Ordnance Factories) has submitted an undertaking and the notification does not expressly prescribe that the undertaking should be furnished before or at the time of clearance of goods, we feel that there is substantial compliance of the condition of the notification - appeal allowed - decided in favor of appellant.

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• 2017 (8) TMI 1267
  

  Classification of goods - multi media speakers with FM radio - SSI exemption - use of brand name of others by GE in the manufacture of multi media speakers - whether the goods are classified under CETH 85184000 or under CETH 85279990? - Held that: - the product basically contains two speakers and a woofer. FM radio is built in, in the woofer. The whole set is a multi media speaker system generally connected to other devices like computers or audio players for sound output. A comparison of the above goods with multi media speakers + sub-woofer, without FM radio, indicates that both the products are almost identical except for the fact that in one, there is a an additional built in FM radio, in the sub-woofer - As clearly shown in the sales brochure, the main function of the product is being provided by speaker system with sub-woofer - similar issue of classification of multi media speakers having additional function of USB port and FM radio came up for consideration by the Tribunal in Logic India Trading Company [2016 (3) TMI 5 - CESTAT BANGALORE]. The Tribunal held that the impugned goods are speakers with added function and the main role of the item, in question, remains amplifying the sound received from outside source or from inbuilt feature. Applying the interpretative rules and section note 3 of Section XVI, the Tribunal held that the product should be classified as speakers only - The product should continue to be classified as speakers.

  SSI exemption - use of brand name - manufacture - Held that: - mere printing of brand name or packing will not amount to manufacture in case where there is no legal concept of “deemed manufacture”, specifically provided by any provisions applicable to the said product - The applicability of SSI exemption for the products manufactured by GE has to be re-verified with the details submitted by the GE to arrive at duty liability, if any. They have claimed that the turnover during the impugned periods is well below the threshold limit of ₹ 1.5 crores. This needs reverification and confirmation by the Jurisdictional officer.

  Penalty - Held that: - the appeal against penalty under Rule 26, filed by M/s Kaizen Computech Ltd. is also to be allowed.

  Appeal allowed in part and [part matter on remand.

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• 2017 (8) TMI 1266
  

  Compounded Levy Scheme - Pan Masala packed manually in tins - CBEC (Tax Research Unit) vide circular dated 04.08.2008 - Held that: - the circular clarifies that the Compounded Levy Scheme notified under Section 3A will not be applicable to Pan Masala packed in tin containers manually. Such scheme is specifically notified only for pan Masala packed in FFS machines - the demand of duty on Pan Masala packed in tin containers cannot be sustained and is set aside.

  Demand of duty made on the basis of pouch packing machines installed in the factory on 01.07.2008 - Held that: - From a perusal of Section 3A ibid, along with the relevant N/N. 29 and 30/2008 CE NT dated 01.07.2008, it is evident that the Compounded Levy Scheme notified mandatorily required the manufacturer to pay duty as per the number of FFS machines installed in the factory. The manufacturer has the option of getting his machines sealed to avoid demand of duty under the above scheme - it is not disputed that the machines were installed in the factory and not sealed on 01.07.2008 i.e. available for manufacture of Pan Masala on 01.07.2008. Consequently, in terms of the scheme notified under Section 3A, the appellant is liable to pay duty for one day on 01.07.2008 for the machines which were installed in the factory and are sealed.

  Appeal allowed - decided partly in favor of appellant.

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• 2017 (8) TMI 1265
  

  CENVAT credit - input - erection, commission and installation services received for the purpose of making a temporary shed for the storage of goods - denial of credit on the ground that the service of erection, commission and installation is not used in or in relation to the manufacture of final product - Held that: - the services of setting up, modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, are in the inclusion category of definition of “input service” - setting up of the factory also includes the storage place in the factory premises - in the present case the service received for setting up of storage is admissible input service. Even the independent storage is also included in the definition of input service - appeal allowed - decided in favor of appellant.

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