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2014-VIL-325-ALH|VAT |High Court Cases | 01.11.2014

THE COMMISSIONER, COMMERCIAL TAX Vs S/s SHIV LOGISTIC COMPANY: 15.10.2014 - Uttar Pradesh Value Added Tax Act, 2008 – Whether under the facts and in the circumstances of the case the Tribunal was legally justified in setting aside the penalty order passed under Section 54(1)(14) of the Act, where the goods in question were not in conformity with the document as well as Transit Declaration Form produced by the dealer/opposite party before the seizing authority and the transaction in question was totally in contravention with the provision of the Act with an intention to evade tax – HELD - The Tribunal has completely overlooked all the documentary evidences as well as the findings recorded by ... [Read more]

THE COMMISSIONER, COMMERCIAL TAX Vs S/s SHIV LOGISTIC COMPANY: 15.10.2014 - Uttar Pradesh Value Added Tax Act, 2008 – Whether under the facts and in the circumstances of the case the Tribunal was legally justified in setting aside the penalty order passed under Section 54(1)(14) of the Act, where the goods in question were not in conformity with the document as well as Transit Declaration Form produced by the dealer/opposite party before the seizing authority and the transaction in question was totally in contravention with the provision of the Act with an intention to evade tax – HELD - The Tribunal has completely overlooked all the documentary evidences as well as the findings recorded by the assessing authority and the first appellate authority. Tribunal has merely relied upon the information uploaded on the Uttarakhand website in Form-16, to come to the conclusion that the goods have reached outside the State of U.P. - The Tribunal allowed the second appeals merely on the ground that the respondent is merely a transporter and has discharges the burden. This finding of the Tribunal appears to be perverse - Tribunal should have considered each and every evidence which are on record and thereafter should have recorded its findings. The failure of the Tribunal to do so renders the impugned order to be unsustainable – Revenue appeal allowed – Matter remanded

2014-VIL-263-CESTAT-BLR-ST|SERVICE TAX |CESTAT Cases | 01.11.2014

CANARA BANK Vs CCE&C & ST, BANGALORE – LTU: 27.05.2014 - Cenvat Credit - Banking and Other Financial Services - Irregular availment of CENVAT credit - Restriction on utilization of 20% of service tax – Showcause notice based on audit - Excess utilization of CENVAT credit – HELD - As regards demand on the ground that the appellants had utilized more than 20% of the service tax payable from CENVAT Credit account, the appellants have produced a Chartered Accountant certificate which shows the details of payments, credit, etc. It is the submission of the learned CA that in the case of Idea Cellular Ltd. the Tribunal had taken a view that the restriction of 20% limit has to be calculated excludin... [Read more]

CANARA BANK Vs CCE&C & ST, BANGALORE – LTU: 27.05.2014 - Cenvat Credit - Banking and Other Financial Services - Irregular availment of CENVAT credit - Restriction on utilization of 20% of service tax – Showcause notice based on audit - Excess utilization of CENVAT credit – HELD - As regards demand on the ground that the appellants had utilized more than 20% of the service tax payable from CENVAT Credit account, the appellants have produced a Chartered Accountant certificate which shows the details of payments, credit, etc. It is the submission of the learned CA that in the case of Idea Cellular Ltd. the Tribunal had taken a view that the restriction of 20% limit has to be calculated excluding the services which are specified in Rule 6(5) of CCR, 2004 - However while calculating, the calculation was made in a different manner which resulted in the conclusion that appellants had utilized more than 20% of CENVAT credit. Two periods were examined by us and in both the cases, we found that the amount of credit utilized by the appellants come to exactly 20%, if the claim of the appellant for method of calculation is accepted - The above observations would show that it is a question of interpretation and the appellants have followed the law as they have understood and therefore in respect of this amount, the appellants have made out a case complete in their favour - Invoices related to common input services – Demand - Because the appellants have a centralized registration and they always make provisional payment and always make excess provisional payment. In view of the above, we accept their submission that the interest liability also can be calculated only for one month. We also agree that the sentiment expressed in the letter even though they do not agree with the contention of the Department, in order to cooperate with the Department and buy peace and to bring an end to the litigation which involves very small amount, the appellant has chosen to pay the same – We reject the appeal as regards the normal period in respect of the second issue alone and confirm the service tax demand - Appeal partly allowed

2014-VIL-262-CESTAT-MUM-CE|CENTRAL EXCISE |CESTAT Cases | 01.11.2014

RAKHOH ENTERPRISES & GEMINI INSTRATECH PVT LTD Vs CCE, PUNE-I: 25.09.2014 - Central Excise – Benefit of Notification No. 06/2006 dt. 1.3.2006 as amended by Notification No. 12/2012 dt. 17.3.2012 - Whether the LSP and anchor rings, and tower doors can be considered to be covered under ‘wind operated electricity generator, its components and parts' which are exempted under Notification No. 6/2006 - Benefit and exemption from central Excise duty on ‘wind mill doors' under Notification No. 6/2006 dt. 1.3.2006 which grants exemption to ‘wind operated electricity generator, its components and parts thereof including rotor wind turbine controller’ – HELD - In case the intention of Govt. was to exem... [Read more]

RAKHOH ENTERPRISES & GEMINI INSTRATECH PVT LTD Vs CCE, PUNE-I: 25.09.2014 - Central Excise – Benefit of Notification No. 06/2006 dt. 1.3.2006 as amended by Notification No. 12/2012 dt. 17.3.2012 - Whether the LSP and anchor rings, and tower doors can be considered to be covered under ‘wind operated electricity generator, its components and parts' which are exempted under Notification No. 6/2006 - Benefit and exemption from central Excise duty on ‘wind mill doors' under Notification No. 6/2006 dt. 1.3.2006 which grants exemption to ‘wind operated electricity generator, its components and parts thereof including rotor wind turbine controller’ – HELD - In case the intention of Govt. was to exempt towers and foundation and its parts, then the notification would have specifically exempted non-conventional energy systems/devices as a whole. Rather, the notification exempts only those non-conventional energy devices/systems which are specified in List-5. And list-5 mentions only wind operated electricity generator, its components and parts. A notification has to be construed by the language its uses. And the language of the present notification is clear. It does not require an extrapolated interpretation - Assessee not been able to satisfy us that the terms wind mill (which includes tower and foundation) and wind operator electricity generator are synonymous or used interchangeably. The guidelines and the forms filed as per requirement of Ministry of New and Renewable Energy nowhere equate the two terms; in fact the Application form at Serial No. 1(f) of the Ministry's format referred to by Ld. Counsel only refers to ‘Forged Steel Rings for manufacture of special bearings for use in wind operated electricity generators'. It does not refer to tower doors or foundation rings which are completely different items. It is our considered view that the doors, anchor rings and LSP do not fall under the phrase ‘wind operated electricity generator' - Though we could have decided this case finally on the basis of our findings recorded above, as a matter of judicial discipline the matter may be placed before the Hon'ble President for constitution of a Larger Bench because our view is contrary to the view taken by a Co-ordinate Bench in the matter of the same assessee for a different period - Matter referred to larger bench

2014-VIL-324-UTR-CE|CENTRAL EXCISE |High Court Cases | 01.11.2014

BAJAJ AUTO LTD Vs UNION OF INDIA: 09.10.2014 - Central Excise - Area based exemption – Notification no. 50 of 2003 CE dated 10th June, 2003 - Denial of exemption from levy of National Calamity Contingent Duty (NCCD) - Concept of liberal interpretation – HELD - Main submission of the petitioner is that implementing notification has to be interpreted liberally and general principle of strict interpretation of an exemption notification in taxation, is not applicable. In addition, it submits that in interpretation of an implementing notification, the industrial policy would prevail. This submission for the petitioner is not acceptable to this Court, as exemption from paying NCCD cannot be read i... [Read more]

BAJAJ AUTO LTD Vs UNION OF INDIA: 09.10.2014 - Central Excise - Area based exemption – Notification no. 50 of 2003 CE dated 10th June, 2003 - Denial of exemption from levy of National Calamity Contingent Duty (NCCD) - Concept of liberal interpretation – HELD - Main submission of the petitioner is that implementing notification has to be interpreted liberally and general principle of strict interpretation of an exemption notification in taxation, is not applicable. In addition, it submits that in interpretation of an implementing notification, the industrial policy would prevail. This submission for the petitioner is not acceptable to this Court, as exemption from paying NCCD cannot be read into the notification no. 50 of 2003 by simply applying the principles of liberal interpretation. Notification is to be read in plain and simple manner - This Court is in agreement with the submission of Revenue that it is not possible for the High Court to construe or read into exemption notification 50/2003, provision of Finance Act. The Hon’ble Supreme Court has also held that such notification has to be interpreted in the light of the words employed by it and not on any other basis - Exemption granted by a notification must be read limited to the duty of excise as mentioned in the notification, and by simple interpretation it cannot be extended to cover any other kind of excise duty – Assessee appeal dismissed

2014-VIL-261-CESTAT-AHM-CE|CENTRAL EXCISE |CESTAT Cases | 31.10.2014

M/s PARLE AGRO PVT LTD Vs CCE, VAPI: 28.10.2014 - Central Excise - CENVAT Credit – Input Service - Service availed by Head office - Advertisement services with respect to exempted products - ISD invoices for the services tax paid on the finished products - Non-alcoholic beverages base – Admissibility of Cenvat credit on exempted finished goods – HELD - Appellants will not be entitled to avail CENVAT Credit of Advertisement services availed with respect to exempted finished products - Simply including the cost of advertisement expenses in the assessable value of NABB concentrate will not make all the CENVAT Credit admissible if the end products for which services are availed were fully exempt... [Read more]

M/s PARLE AGRO PVT LTD Vs CCE, VAPI: 28.10.2014 - Central Excise - CENVAT Credit – Input Service - Service availed by Head office - Advertisement services with respect to exempted products - ISD invoices for the services tax paid on the finished products - Non-alcoholic beverages base – Admissibility of Cenvat credit on exempted finished goods – HELD - Appellants will not be entitled to avail CENVAT Credit of Advertisement services availed with respect to exempted finished products - Simply including the cost of advertisement expenses in the assessable value of NABB concentrate will not make all the CENVAT Credit admissible if the end products for which services are availed were fully exempted - Extended period - Revenue will not come to know from a CENVAT document issued by the ISD appellant whether the credit passed under an ISD document is pertaining to services availed for an exempted final product or not. The same fact was brought to light only on information followed by detailed investigation. Therefore, extended period will be applicable - Appellant also never approached the Revenue at any stage to seek clarification whether such a credit of Advertisement services availed with respect to exempted final products will be admissible or not. In view of these observations extended period is correctly invoked and penalties have been correctly imposed upon the appellants – Appeal dismissed

2014-VIL-322-GUJ|VAT |High Court Cases | 31.10.2014

VISHNUBHAI A PATEL Vs STATE OF GUJARAT: 13.10.2014 - Gujarat Value Added Tax Act – Section 75, Section 27 & Section 100 - Power of the Commissioner to cancel Registration of dealer – Natural justice – HELD - Merely because the petitioner enjoyed registration granted under GST Act initially, would not limit the power of the Commissioner to cancel the same under Section 27(5) of the VAT Act - Power of the Commissioner to cancel Registration of dealer – Relevant section - From the beginning i.e. from issuance of the show cause notice till the final order of adjudication, the Deputy Commissioner referred to and relied upon only Section 75 read with Section 100 of the VAT Act - There is a vast di... [Read more]

VISHNUBHAI A PATEL Vs STATE OF GUJARAT: 13.10.2014 - Gujarat Value Added Tax Act – Section 75, Section 27 & Section 100 - Power of the Commissioner to cancel Registration of dealer – Natural justice – HELD - Merely because the petitioner enjoyed registration granted under GST Act initially, would not limit the power of the Commissioner to cancel the same under Section 27(5) of the VAT Act - Power of the Commissioner to cancel Registration of dealer – Relevant section - From the beginning i.e. from issuance of the show cause notice till the final order of adjudication, the Deputy Commissioner referred to and relied upon only Section 75 read with Section 100 of the VAT Act - There is a vast difference of nature of powers enjoyed by the Deputy Commissioner and the jurisdiction he exercised under Section 75 of the VAT Act as against that under Section 27 of the said Act. Both statutory powers have different purview, are enacted with different purpose and would operate in different fields - In view of such vast difference in the nature of the powers, this would not be a case of mere wrong reference to the statutory provision. This would be a case where the very foundation of the powers exercised was wrong. We are not unmindful of the line of the judicial pronouncements that an order passed by an authority would not be vitiated on mere reference to a wrong statutory provision. If the power can be traced to a provision under the statute, mere wrong reference of a section would not be fatal. However, in the present case, the Deputy Commissioner exercised powers under a provision which was simply not available to him. He put the petitioner to notice why the order of registration not be cancelled under the revisional powers. He turned down the petitioner's opposition and proceeded to cancel the registration by exercising revisional powers – The order of registration could not have been revised for subsequent misconduct of the dealer and, if at all it could be cancelled. The Deputy Commissioner thus put the petitioner to notice on completely wrong track. He, thereafter, passed the order also exercising the power which was not available to him. He now cannot defend the action by arguing that he was mistaken about the source of the powers but the powers, in fact, exist and that therefore, his order be left intact. As noted, the nature of powers enjoyed by the Deputy Commissioner under Section 75 was of a revisional nature whereas under Section 27 for passing original order ordering cancelling of registration already granted for subsequent action of the registered dealer - Before passing any order under Section 27 of the VAT Act as provided under Rule 10(3) of the Gujarat Value Added Rules notice in the form 104 was required to be issued. We are prepared to proceed on the basis that issuance of the notice in the prescribed pro forma was directory and not mandatory. In other words, if the dealer had sufficient notice of the ground on which his registration was required to be cancelled alongwith the proposal to cancel such registration under Section 27 of the VAT Act, the same may be taken as substantial compliance of the rule and mere omission to adhere to the printed format of the form may not be fatal. However, before any action could be taken under Section 27(5), the dealer was entitled to a notice detailing reasons why the registration would be liable to be cancelled and that the same would be as provided under Section 27 of the VAT Act - Order of the Deputy Commissioner cannot be viewed as mere reference to a wrong statutory provision tracing the power of cancellation. It was rather a situation where the authority passed an order assuming jurisdiction under a wrong provision exercising powers of entirely different nature which powers were not available to him for revising the order of registration. Such order cannot be saved or cured by an affidavit suggesting that he intended to pass the order under Section 27(5) and there was a mere wrong reference to Section 75 read with Section 100 of the VAT Act - We strike down the order of the Deputy Commissioner as partially confirmed by the Tribunal on the ground of exercise of jurisdiction not permissible to him which also resulted into violation of principle of natural justice - We clarify that quashing of the order by the Deputy Commissioner is not on merits and, therefore, would not prevent him for initiating fresh or independent action for cancellation of registration of the petitioners or any of them if otherwise grounds are available and such action is permissible in law – Appeal allowed

2014-VIL-323-KAR|VAT |High Court Cases | 31.10.2014

STATE OF KARNATAKA Vs M/s MAINTEC TECHNOLOGIES PVT LTD: 12.06.2014 - Central Sales Tax Act - Inter-State Trade or Commerce – Declaration Forms – Failure to produce C-Form - When 'C' form is not at all furnished and the assessee admits the liability to pay tax, from what date the interest on the delay in payment of tax has to be levied – Provision to levy of interest under CST Act – Defective C Form - HELD - In the instant case on the date the assessee filed the return he knew what is the tax payable under the State Act as well as under the Central Act. In order to get concessional rate of tax payable under the Central Act he knew he has to furnish a declaration in Form-C. He also knew that i... [Read more]

STATE OF KARNATAKA Vs M/s MAINTEC TECHNOLOGIES PVT LTD: 12.06.2014 - Central Sales Tax Act - Inter-State Trade or Commerce – Declaration Forms – Failure to produce C-Form - When 'C' form is not at all furnished and the assessee admits the liability to pay tax, from what date the interest on the delay in payment of tax has to be levied – Provision to levy of interest under CST Act – Defective C Form - HELD - In the instant case on the date the assessee filed the return he knew what is the tax payable under the State Act as well as under the Central Act. In order to get concessional rate of tax payable under the Central Act he knew he has to furnish a declaration in Form-C. He also knew that if he fails to furnish a declaration in Form-C, he is liable to pay tax under the said Act. Therefore, it is not a case where the assessee was not aware of his liability to pay tax. He was conscious of the tax liability. He sought for concessional payment of tax on the assumption that he would be able to produce the declaration in Form-C and avail the said benefit. He also knew that if he fails to produce the said declaration in Form-C, he has to pay the tax. That is why after the assessment order, on his default in producing the declaration in Form-C, when he was called upon to pay the tax under the VAT Act, he has paid the tax. He has accepted the said order. The payment of interest being compensative in nature, the tax which he paid in pursuance of the assessment order in respect of which there was no dispute, should have been paid along with the return as prescribed under law. He failed to pay the tax along with the return. He had the benefit of that amount and it deprived the State of the benefit of that amount and therefore, when the liability to pay tax is not disputed, not only he is liable to pay tax, he is liable to pay interest from the date he was liable to pay tax to compensate the delay in payment of tax - Provision to levy of interest - Section 9(2B) which was inserted by the Act 10 of 2000 expressly states if the tax payable by any dealer under the CST Act is not paid in time, the dealer shall be liable to pay interest for delayed payment of such tax. Therefore, the CST Act provides for payment of interest on delayed payment of such tax under the VAT Act – Levy of interest due to furnishing of defective C Form - In cases where declaration in Form-C is furnished, the Assessing Authority at the time of assessment determines after hearing the assessee that they cannot be acted upon, they are defective and the assessee is not entitled to the benefit of such declaration and then holds the assessee as liable to pay tax. Then the liability to pay interest on that tax would flow after determination of the said disputed fact and not from the date on which the return was filed either enclosing those defective forms or the date those defective forms are furnished in support of the claim made in the said returns – Furnishing of C-Form at the appellate stage - Assessee cannot produce these forms as a matter of right but if sufficient cause is shown for not producing them within the stipulated time, the Appellate Authority has the jurisdiction if it is satisfied by the cause shown to entertain the said declaration in Form-C and either grant the relief in the appeal itself or remand the matter back to the Assessing Authority to consider those declarations and pass appropriate orders – Revenue appeal partly allowed

2014-VIL-259-CESTAT-DEL-ST|SERVICE TAX |CESTAT Cases | 31.10.2014

M/s PALMTECH INSTITUTIONS INDIA PVT LTD Vs CCE & ST, JAIPUR: 03.09.2014 - Service Tax – Input Service - Appellants are engaged in providing commercial training and coaching - Input service credit availed on outdoor catering and mandap keeper services - Demand with interest and penalty under Rule 15 of Cenvat Credit Rules read with Rule 78 of Finance Act, 1994 - Revenue has alleged that input services were used for organizing a function to facilitate the students did not fall within eligible input service – HELD – There is nothing on record to show whether any expenses were recovered by the appellants from the students. Further there is no allegation has been made in the show cause notice by ... [Read more]

M/s PALMTECH INSTITUTIONS INDIA PVT LTD Vs CCE & ST, JAIPUR: 03.09.2014 - Service Tax – Input Service - Appellants are engaged in providing commercial training and coaching - Input service credit availed on outdoor catering and mandap keeper services - Demand with interest and penalty under Rule 15 of Cenvat Credit Rules read with Rule 78 of Finance Act, 1994 - Revenue has alleged that input services were used for organizing a function to facilitate the students did not fall within eligible input service – HELD – There is nothing on record to show whether any expenses were recovered by the appellants from the students. Further there is no allegation has been made in the show cause notice by the revenue. Considering the submission of ld. Counsel and case of Toyota Kirloskar Motors wherein these type of activities have been given a broad interpretation and input service credit has been allowed, I find force in the contention of the appellants - Input service credit has rightly been availed at that relevant time – Assessee appeal allowed

2014-VIL-263-CESTAT-AHM-ST|SERVICE TAX |CESTAT Cases | 31.10.2014

M/s NEWLIGHT HOTELS & RESORTS LTD Vs CCE & ST, VADODARA: 28.10.2014 - Service Tax – Variation in credit of input services due to change in classification of the services – Whether duty determined and classification of services made at the service provider’s end can be charged by the authorities having jurisdiction over the service recipient’s end – HELD - Classification/ assessments made at the end of service provider cannot be changed at the recipient’s end - No option is left with the Revenue to change the classification/ assessments of the services at the service recipient’s end - Credit of service tax paid on the invoices cannot be denied or utilisation reduced on the grounds that classi... [Read more]

M/s NEWLIGHT HOTELS & RESORTS LTD Vs CCE & ST, VADODARA: 28.10.2014 - Service Tax – Variation in credit of input services due to change in classification of the services – Whether duty determined and classification of services made at the service provider’s end can be charged by the authorities having jurisdiction over the service recipient’s end – HELD - Classification/ assessments made at the end of service provider cannot be changed at the recipient’s end - No option is left with the Revenue to change the classification/ assessments of the services at the service recipient’s end - Credit of service tax paid on the invoices cannot be denied or utilisation reduced on the grounds that classification of the services was wrongly done at the service provider’s end - There was no conscious withholding of any information by the appellant from the department hence extended period is not invokable – Appeal allowed

2014-VIL-260-CESTAT-DEL-CE|CENTRAL EXCISE |CESTAT Cases | 31.10.2014

M/s MAGNUM VENTURES LTD Vs CCE, GHAZIABAD: 01.09.2014 - Central Excise: Duty demand on ‘sludge’ and ‘pulper waste and refuge’ generated during the manufacture of writing and printing paper – HELD – As per appellant own case Sludge and pulper waste are not excisable, having not arisen as a result of manufacturing activity, as the same are exempted from payment duty under Notification No. 76/86-CE, dated 10.02.1986

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-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-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