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2014-VIL-257-CESTAT-DEL-ST|SERVICE TAX |CESTAT Cases | 30.10.2014

M/s COCA COLA INDIA PVT LTD Vs CST, DELHI – III: 16.10.2014 - Service Tax - Business auxiliary service - Sponsoring the cricket team – HELD - Sponsorship of cricket not covered by the sponsorship service, we also note that the service tax on the same transaction already stands deposited by M/s KPH, under the category of Business Auxiliary Services. Demand of service tax in respect of the same transaction on the ground that the deposit of service tax was under a different category whereas a different category of service has been provided cannot be held to be justifiable – Assessee appeal allowed

2014-VIL-258-CESTAT-DEL-ST|SERVICE TAX |CESTAT Cases | 30.10.2014

M/s SUNCITY ART EXPORTERS Vs CCE & ST, JAIPUR – II: 16.10.2014 - Service Tax – Refund claim - Appellants are exporters of mostly handicrafts and are entitled to the refund of service tax paid on the various specified input services in terms of Notification No. 17/09-CUS dated 7/7/09 – Rejection if refund claim - Non-submission of original invoices raised by the service providers – HELD - Appellant’s contention is that such invoices which are computerised invoices have been downloaded through the internet - Denial of refund of service tax on the said ground is not in consonance in terms of the Board Circular No. 112/6/2009-ST dated 12/03/2009 - Port Service - Claim stand denied on the ground ... [Read more]

M/s SUNCITY ART EXPORTERS Vs CCE & ST, JAIPUR – II: 16.10.2014 - Service Tax – Refund claim - Appellants are exporters of mostly handicrafts and are entitled to the refund of service tax paid on the various specified input services in terms of Notification No. 17/09-CUS dated 7/7/09 – Rejection if refund claim - Non-submission of original invoices raised by the service providers – HELD - Appellant’s contention is that such invoices which are computerised invoices have been downloaded through the internet - Denial of refund of service tax on the said ground is not in consonance in terms of the Board Circular No. 112/6/2009-ST dated 12/03/2009 - Port Service - Claim stand denied on the ground that the various services provided by the persons at the port like bill of loading charges, documentary charges, REPO charges etc – HELD - refund of service tax paid on THC charges, REPO charges, BL charges, DDC charges and haulage charges are admissible in as much as the same are port services – AC to examine the appellant’s refund claim and verify the same from the documents and decide the refund claim accordingly - The refund claim of service tax paid on CHA services/clearing and forwarding agent services stands denied on the ground that the invoices issued by the said persons do not mention the goods. The appellant’s contention is that admittedly the said invoices have cross reference to either invoice number or the shipping bill number and/or container number. From the said cross references the description of the goods can be found out and the denial of the claim on the said ground is not justified when admittedly the services have been used for the export of the goods - The said portion of the impugned order is also set aside with directions to the Adjudicating Authority to undertake the necessary exercises for cross reference of the invoices with the description of the goods - Part of the refund has been denied on the ground that CHA has charged other charges which do not fall under the CHA services and as such the service tax paid by the CHA cannot be allowed as refund – HELD - As and as long as the CHA paid the service tax on the entire consideration under the category of CHA services, the service recipient would be entitled to the benefit of the same - Impugned orders is set aside and remand the matter to AC for examining the appellant’s refund claim afresh – Assessee appeal allowed by remand

2014-VIL-255-CESTAT-DEL-CE|CENTRAL EXCISE |CESTAT Cases | 30.10.2014

M/s ULTRA TECH CEMENT LTD Vs CCE & ST, ROHTAK: 03.09.2014 - Central Excise - CENVAT Credit on Outward Transport – Place of Removal - Goods sold on FOR basis - Destination is the place of removal - credit entitled – HELD – As per High Court ruling there is no provision in the Central Excise Act, 1944 or its rules or in any Circular issued by the Board, that where Duty is charged on a specified rate, the place of removal would invariably be the factory gate. The place of removal would depend upon the specific transaction in issue and where the removal is pursuant to sales on FOR basis, with the risk in the goods manufactured being borne by the manufacturer till delivery to the customer at its ... [Read more]

M/s ULTRA TECH CEMENT LTD Vs CCE & ST, ROHTAK: 03.09.2014 - Central Excise - CENVAT Credit on Outward Transport – Place of Removal - Goods sold on FOR basis - Destination is the place of removal - credit entitled – HELD – As per High Court ruling there is no provision in the Central Excise Act, 1944 or its rules or in any Circular issued by the Board, that where Duty is charged on a specified rate, the place of removal would invariably be the factory gate. The place of removal would depend upon the specific transaction in issue and where the removal is pursuant to sales on FOR basis, with the risk in the goods manufactured being borne by the manufacturer till delivery to the customer at its premises and where the composite value of sales include the value of freight involved in delivery at the customer’s premises, the place of removal would not be at the factory gate, but at the customer’s premises - Drafting of adjudication orders - Incompetent departmental adjudication ill serves the interests of the State - Verbiage and prolixity is no substitute for quality - Strictures and Costs against Commissioner. The appropriate authorities may consider this pathology writ large in departmental adjudication. For this purpose, Tribunal directed that a copy of this judgment be marked to the Board of Central Excise and Customs and to the Secretary (Revenue), Ministry of Finance, Department of Revenue, for consideration - Since the impugned order records conclusions without any analysis of the pleadings and the evidence on record, Tribunal considered it appropriate to impose costs of Rs.2,500/- to be remitted by Revenue to the credit of the assessee – Assessee appeal allowed with cost

2014-VIL-256-CESTAT-MUM-CE|CENTRAL EXCISE |CESTAT Cases | 30.10.2014

THYSSENKRUPP INDUSTRIES (I) PVT LTD Vs COMMISSIONER OF CENTRAL EXCISE, PUNE: 18.07.2014 - Central Excise - CENVAT - Rule 6(3A) of CCR, 2004 - Factor "P" mentioned in sub-rule (3A) of Rule 6 – ‘P’ denotes the total CENVAT Credit taken on input services during the financial year and not the total of the CENVAT Credit taken on common input services - Should it be the value of common input services credit as contended by the appellant or should it be the value of total Cenvat credit taken on input services – HELD - Confirmation of demand applying the formula provided in sub-rule (3A) of the Rule 6 by the adjudicating authority cannot be faulted at all - If the formula leads to an anomalous situa... [Read more]

THYSSENKRUPP INDUSTRIES (I) PVT LTD Vs COMMISSIONER OF CENTRAL EXCISE, PUNE: 18.07.2014 - Central Excise - CENVAT - Rule 6(3A) of CCR, 2004 - Factor "P" mentioned in sub-rule (3A) of Rule 6 – ‘P’ denotes the total CENVAT Credit taken on input services during the financial year and not the total of the CENVAT Credit taken on common input services - Should it be the value of common input services credit as contended by the appellant or should it be the value of total Cenvat credit taken on input services – HELD - Confirmation of demand applying the formula provided in sub-rule (3A) of the Rule 6 by the adjudicating authority cannot be faulted at all - If the formula leads to an anomalous situation, the remedy lies in amending the provisions of the statute and the judiciary is helpless – Pre-deposit ordered

2014-VIL-321-P&H|VAT |High Court Cases | 30.10.2014

M/s MACHINO BASELL INDIA LTD Vs THE STATE OF HARYANA: 23.09.2014 - Haryana Value Added Tax Act – Plea for recalculation of notional tax liability for earlier period i.e. 1997-98, 1998-99 & 1999-2000 based on High Court judgement – HDPE and LDPE granules – Plastic goods – Rate of tax - HELD – Tribunal is correct in holding that plea of the appellant for recalculation of notional tax liability for the years 1997-98 and 1999 to 2000 which are not subject matter of the High Court case therefore plea of recalculation of notional tax cannot be accepted in such a situation – Assessee appeal dismissed

2014-VIL-253-CESTAT-AHM-ST|SERVICE TAX |CESTAT Cases | 28.10.2014

M/s RELIANCE INDUSTRIES LTD Vs THE COMMISSIONER, CE&ST, RAJKOT: 21.10.2014 - Service Tax - Refund of service tax paid on the services rendered to appellant in an SEZ unit - Interest on the refunds sanctioned belatedly - Refund claim filed as per Notification no. 15/2009-ST – HELD - The time limit which has been given out in place by the Board needs to have been followed failing which, the liability to pay interest arises. We also find that the circular dtd 20th May, 2009 has practically put the refund claims filed in terms of Notification of 9/2009 on a higher platform as compared to other types of refund claims filed under Section 11B for which 3 months period was prescribed for processing ... [Read more]

M/s RELIANCE INDUSTRIES LTD Vs THE COMMISSIONER, CE&ST, RAJKOT: 21.10.2014 - Service Tax - Refund of service tax paid on the services rendered to appellant in an SEZ unit - Interest on the refunds sanctioned belatedly - Refund claim filed as per Notification no. 15/2009-ST – HELD - The time limit which has been given out in place by the Board needs to have been followed failing which, the liability to pay interest arises. We also find that the circular dtd 20th May, 2009 has practically put the refund claims filed in terms of Notification of 9/2009 on a higher platform as compared to other types of refund claims filed under Section 11B for which 3 months period was prescribed for processing the claim from the date of filing of the refund claims - Expeditious sanction of refund claims was considered in true spirit of both the circular May 2009 which has been completely ignored by the lower authorities - Impugned orders rejecting the claim of interest of the appellant are incorrect and not in consonance with the law as settled various judicial fora – Assessee appeal allowed

2014-VIL-252-CESTAT-AHM-CE|CENTRAL EXCISE |CESTAT Cases | 28.10.2014

CCE, AHMEDABAD-II Vs M/s ANKIT TEXTILES: 24.10.2014 - Central Excise – Authorisation of Committee of Chief Commissioners – HELD - As per the constitution of committees under Notification No.24/2005-CE(NT) Chief Commissioner of Central Excise, Vadodara had no jurisdiction to sign review order as he is not a part of the notified Review Committee for Ahmedabad-II Commissionerate. When this preliminary objection was raised by the Advocate of the Respondents during hearing, ld. A.R. sought time to satisfy the preliminary objection but no evidence is produced by the Department that on the date of signing the Review authorization Chief Commissioner of Central Excise Vadodara was also holding additi... [Read more]

CCE, AHMEDABAD-II Vs M/s ANKIT TEXTILES: 24.10.2014 - Central Excise – Authorisation of Committee of Chief Commissioners – HELD - As per the constitution of committees under Notification No.24/2005-CE(NT) Chief Commissioner of Central Excise, Vadodara had no jurisdiction to sign review order as he is not a part of the notified Review Committee for Ahmedabad-II Commissionerate. When this preliminary objection was raised by the Advocate of the Respondents during hearing, ld. A.R. sought time to satisfy the preliminary objection but no evidence is produced by the Department that on the date of signing the Review authorization Chief Commissioner of Central Excise Vadodara was also holding additional charge of Chief Commissioner Central Excise Ahmedabad - Both the Chief Commissioners have signed the authorization on different dates, which means that committee as such has not met on a single day - Appeals filed by the Revenue filed on the basis of an invalid Review authorization deserve to be dismissed as not maintainable on this ground alone – Revenue appeal dismissed

2014-VIL-254-CESTAT-AHM-CE|CENTRAL EXCISE |CESTAT Cases | 28.10.2014

M/s BHILOSA INDUSTRIES PVT LTD Vs CCE, VAPI: 27.10.2014 - Central Excise - Partially Oriented Yarn – Exemption under Notification No.30/2004-CE, dt.09.07.2004 - The activities of manufacturing POY and its subsequent processing are done in different factories of the appellants. It is the case of Revenue in these proceedings that the appellants are not entitled to the benefit of exemption under Sr.No.6 of Notification No.30/2004-CE as all these appellants are having the facilities of manufacturing POY in factory/factories situated elsewhere – Interpretation of words ‘act of manufacture’ & ‘his factory’ in the notification - Whether the appellants are eligible to the benefit of exemption under ... [Read more]

M/s BHILOSA INDUSTRIES PVT LTD Vs CCE, VAPI: 27.10.2014 - Central Excise - Partially Oriented Yarn – Exemption under Notification No.30/2004-CE, dt.09.07.2004 - The activities of manufacturing POY and its subsequent processing are done in different factories of the appellants. It is the case of Revenue in these proceedings that the appellants are not entitled to the benefit of exemption under Sr.No.6 of Notification No.30/2004-CE as all these appellants are having the facilities of manufacturing POY in factory/factories situated elsewhere – Interpretation of words ‘act of manufacture’ & ‘his factory’ in the notification - Whether the appellants are eligible to the benefit of exemption under Sr.No.6 of the Notification No.30/2004-CE, dt.09.07.2004, as amended, when the appellants are having more than one factories and also have the facilities of manufacturing POY in a factory other than the factory of the appellants where the benefit of Notification No.30/2004-CE, dt.09.07.2004 is being availed – HELD - There is nothing in the definition of Section-2(f) to indicate that a ‘legal entity’ only has to be considered as a ‘manufacturer’. Rather each ‘assessee’ has to be treated as a manufacturer and not the entire group of companies as claimed by the Revenue. In the present proceedings also even the demands have been issued by the Revenue to the individual assessee carrying out the exempted processes and not to the head offices of the group companies as a legal entity. Therefore, we are of the considered view that the word ‘manufacturer’ used in Sr.No.6 of the Notification No.30/2004-CE has to be interpreted as a unit where the ‘act of manufacture’ is being undertaken which is the individual factory and not all the factories of a group of companies - From the above analysis when the definitions of ‘manufacture’, ‘manufacturer’ and ‘factory’; as given in Section 2(f) and Section 2(e) of the Central Excise Act 1944; are collectively read then our mind the expression ‘in his factory’ will mean the factory of the ‘manufacturer’ and that factory will mean ‘the same factory’ where manufacturing activity is being undertaken and the word ‘manufacturer’ will not mean a legal entity or all group companies taken together. If any contrary interpretation is made then demands under Section 11A of the Central Excise Act 1944 could be raised against any of the registered units of a group of companies undertaking manufacturing activities at different locations - The words ‘in his factory’ used in Sr.No.6 of Notification No.30/2004-CE will mean the ‘same factory’ and appellants will be entitled to the exemption under Notification No.30/2004-CE. Appeals filed by the appellants are required to be allowed, on this ground alone - Demands issued for the period beyond one year are also time barred - No justification in imposing any penalties upon the appellants as on merits and time bar the issue has been decided in favour of the appellants – Assessee appeal allowed

2014-VIL-319-UTR|VAT |High Court Cases | 28.10.2014

M/s DHARMPAL SATYAPAL LTD Vs STATE OF UTTARAKHAND: 05.09.2014 - Uttar Pradesh Trade Tax Act, 1948 as applied in the State of Uttarakhand – Tax on Pan masala containing tobacco - Goods included in Schedule to the Additional Duties of Excise (Goods of Special Importance) Act, 1957 – Power to impose sales tax/trade tax on such goods – HELD - It may be true that the product in question is subjected to duty under the Additional Duties of Excise Act, however there is no provision in the State Act which exempts the product on the basis of that it is subjected to tax under the Additional Duties of Excise Act – There in nothing in Additional Duties of Excise Act which would in any way foreclose the S... [Read more]

M/s DHARMPAL SATYAPAL LTD Vs STATE OF UTTARAKHAND: 05.09.2014 - Uttar Pradesh Trade Tax Act, 1948 as applied in the State of Uttarakhand – Tax on Pan masala containing tobacco - Goods included in Schedule to the Additional Duties of Excise (Goods of Special Importance) Act, 1957 – Power to impose sales tax/trade tax on such goods – HELD - It may be true that the product in question is subjected to duty under the Additional Duties of Excise Act, however there is no provision in the State Act which exempts the product on the basis of that it is subjected to tax under the Additional Duties of Excise Act – There in nothing in Additional Duties of Excise Act which would in any way foreclose the State to impose sales tax/VAT on those commodities which are subjected to duty under the Act - Therefore, even if the product is covered under sub-heading 2404.49 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957, it will not in any way deprive the State of power to levy tax under the U.P. Trade Tax Act as applicable to the State of Uttarakhand – This is unlike the position under the Andhra Pradesh Trade Tax Act, which was considered by the Supreme Court in a case favouring assessee - Assessee appeal dismissed

2014-VIL-320-MAD|VAT |High Court Cases | 28.10.2014

M/s ELGI EQUIPMENTS LTD Vs THE DEPUTY COMMISSIONER (CT): 15.10.2014 - Tamil Nadu Value Added Tax Act, 2006 – Sale of Air Compressors through distributors and supply chain – Capital goods - Eligibility of concessional rate of tax – Assessing Officer, while granting concessional rate of tax, denied the same in respect of the sale effected by the petitioner through distributors - HELD – Merely because items were supplied through their distributors or dealers for further distribution it would not alter the legal position and subject these goods for levy at the higher rate of tax - Impugned proceedings are quashed and the matter is remanded back to the respondent for fresh consideration

2014-VIL-251-CESTAT-BLR-ST|SERVICE TAX |CESTAT Cases | 26.10.2014

M/s RVR PROJECTS PVT LTD Vs CCE&ST, VISAKHAPATNAM-I: 23.09.2014 - Service Tax - Pile foundation work – Denial of abatement benefit under Notification No. 15/2004-S.T. dated 10.9.2004 – Credit on inputs or capital goods – HELD - In the absence of correct information, we would not like to make any clear observations. The most vital aspects and a demand of more than Rs. 1.58 crores was the subject matter but none of the officers of Revenue has taken care to consider the fact as to whether notification benefit can be denied when appellant has availed credit in respect of ‘inputs service’ only or not - ST-3 Return along with papers shows that credit is availed on ‘inputs services’ only. Again, we... [Read more]

M/s RVR PROJECTS PVT LTD Vs CCE&ST, VISAKHAPATNAM-I: 23.09.2014 - Service Tax - Pile foundation work – Denial of abatement benefit under Notification No. 15/2004-S.T. dated 10.9.2004 – Credit on inputs or capital goods – HELD - In the absence of correct information, we would not like to make any clear observations. The most vital aspects and a demand of more than Rs. 1.58 crores was the subject matter but none of the officers of Revenue has taken care to consider the fact as to whether notification benefit can be denied when appellant has availed credit in respect of ‘inputs service’ only or not - ST-3 Return along with papers shows that credit is availed on ‘inputs services’ only. Again, we were handicapped by the fact that date of amendment of notification was not known and no conclusion could be reached - Pile foundation work - Commissioner has arrived at the conclusion that the claim of the appellant that service tax has been demanded on ‘pile foundation work’ and this cannot be considered as ‘erection, commissioning or installation service’ has not been accepted. In the Order-in-Original, the Commissioner has clearly observed that ‘it is seen that the contract is only for pile foundation, which is a civil structure. Hence, it is not appropriate to classify the same under ‘Erection, Commissioning or installation service’ - Facts have not been reflected correctly in the show-cause notice and have not been appreciated properly while adjudicating the matter – Impugned order is set aside and matter remanded

2014-VIL-250-CESTAT-DEL-CE|CENTRAL EXCISE |CESTAT Cases | 26.10.2014

M/s MARUTI SUZUKI INDIA LTD Vs COMMISSIONER OF CENTRAL EXCISE: 15.10.2014 - Central Excise Act – Pre-deposit - Valuation – Transaction value - Discount - Promotional and incentive schemes – Whether part of the promotional discount paid from the dealer's margin is includible in the assessable value for the purpose of payment of central excise duty or not – HELD - The transaction value, is not confined to the amount actually paid and is not restricted to flow back of consideration or part thereof to the assessee directly but even for discharge of sales obligations both in present and future that gives monetary benefit to the appellant. All deferred and future considerations add to the assessab... [Read more]

M/s MARUTI SUZUKI INDIA LTD Vs COMMISSIONER OF CENTRAL EXCISE: 15.10.2014 - Central Excise Act – Pre-deposit - Valuation – Transaction value - Discount - Promotional and incentive schemes – Whether part of the promotional discount paid from the dealer's margin is includible in the assessable value for the purpose of payment of central excise duty or not – HELD - The transaction value, is not confined to the amount actually paid and is not restricted to flow back of consideration or part thereof to the assessee directly but even for discharge of sales obligations both in present and future that gives monetary benefit to the appellant. All deferred and future considerations add to the assessable value. The theory of "flow back of consideration or part thereof" is not confined to direct monetary benefit to the assessee in connection with the sale of vehicles at the time of removal but is expanded to include any indirect benefit received in the course of or on account of said in view of the meaning of transaction value as incorporated in to the provisions of Section 4(3)(d) of the Act w.e.f . 01.07.2000 - Definition clause of the expression "transaction value", refers to "any amount that buyer is liable to pay". Only restriction that has been imposed is that such payment should be "by reason of or in connection with the sale" of such goods. Thus reason of sale and inter connection thereto are essential elements to contribute for assessable value - Prima facie the adjudication has force and pre-deposit is required to be directed in this case to protect interest of Revenue – Pre-deposit of Rs 150 crores ordered – Limitation - Appellant raised an issue on limitation on the premise that whenever any promotional scheme was launched by them, such facts were in the knowledge of the department – HELD - Prima facie the provisions for extended period of limitation have rightly been invoked when discount is compensated through handling charges collected by the dealers indirectly benefiting the appellant to under value the excisable goods while delivering to their dealers – Pre-deposit ordered

2014-VIL-318-ORI|VAT |High Court Cases | 26.10.2014

M/s UNIT CONSTRUCTION COMPANY PVT LTD Vs THE COMMISSIONER OF COMMERCIAL TAXES: 26.09.2014 - Orissa Value Added Tax Act, 2004 – Section 60 – Withholding of refund amount – HELD - Commissioner must exercise the discretion on relevant grounds and for germane reasons. Language of Section 60 (1) of the OVAT Act does not reveal that the legislative intent is to withhold refund wherever an order giving rise to refund is the subject matter of an appeal or further proceeding or other proceedings pending under the OVAT Act. Had it been so, the provisions would have been clearly enjoined that no refund shall be granted till the conclusion of the appeal or further proceeding - Discretion vested with the... [Read more]

M/s UNIT CONSTRUCTION COMPANY PVT LTD Vs THE COMMISSIONER OF COMMERCIAL TAXES: 26.09.2014 - Orissa Value Added Tax Act, 2004 – Section 60 – Withholding of refund amount – HELD - Commissioner must exercise the discretion on relevant grounds and for germane reasons. Language of Section 60 (1) of the OVAT Act does not reveal that the legislative intent is to withhold refund wherever an order giving rise to refund is the subject matter of an appeal or further proceeding or other proceedings pending under the OVAT Act. Had it been so, the provisions would have been clearly enjoined that no refund shall be granted till the conclusion of the appeal or further proceeding - Discretion vested with the Commissioner to withhold refund due to the dealer arising out of an order passed by the quasi judicial authority must be exercised judicially as Article 265 of the Constitution enjoins that no tax shall be levied or collected except by authority of law – No opportunity of hearing was afforded to the petitioner before the impugned order was passed – Order withholding refund claims is quashed – Assessee appeal allowed