CESTAT Annual Case Digest 2023 – [Part 4]

This yearly digest analyzes all the CESTAT stories published in the year 2023 at taxscan.in Iron Content in Iron Ore Fines to be Calculated on Wet Metric Ton Basis for assessments before May 1, 2022, All Impurities Including Moisture Deducted for Customs Duty Determination: CESTAT M/s Bagadiya Brothers Private Limited vs Commissioner of Customs 2023 TAXSCAN (CESTAT) 1227 The Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Kolkata bench has held that the calculation of iron (Fe) content in iron ore fines for customs duty determination must be done on a Wet Metric Ton (WMT) basis. The two-member bench comprising Mr. P. K. Choudhary (Judicial Member) and Mr. Rajeev Tandon (Technical Member) directed the assessing officers to determine iron content on a WMT basis by deducting the moisture specified in the test reports from NABL-accredited government-approved private laboratories. It further emphasised the application of the universally recognised formula for converting the percentage of iron content from DMT to WMT basis. Maximum Depreciation allowable on Imported Second-Hand Machines is 70%: CESTAT M/s. India Potteries Ltd. vs Commissioner of Customs (Port) 2023 TAXSCAN (CESTAT) 1238 The Kolkata bench of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that the maximum depreciation that was allowable on second-hand machines that are imported is 70% in the appeal by India Potteries Ltd (the Appellant) against the order for enhancement of the declared value, by the Commissioner of Customs (Port) (the Respondent) The two-member bench consisting of R.Murlidhar (Judicial Member) and Rajeev Tandoon (Technical Member) after hearing both sides held that “The Appellant in his submissions has not brought in any evidence to rebut the valuation certified by the Chartered Engineer.” And dismissed the appeal. Service Tax Demand cannot be raised beyond 5 year period of limitation: CESTAT Yash Corporation vs Commissioner of Central Excise & ST 2023 TAXSCAN (CESTAT) 1245 The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that Service Tax Demand cannot be raised beyond 5 5-year period of limitation. The tribunal set aside the order imposing penalty which was barred by limitation. A two-member bench comprising Mr Ramesh Nair, Member (Judicial) and Mr C L Mahar Member (Technical) observed that the show cause notice was issued on 19.10.2012 for the period covered 2007-08 to 2011-12, which is clearly beyond the normal period of limitation. Therefore, demand is time-barred and cannot be sustained. For the same reason, the penalties imposed upon the appellant also cannot be upheld. Customs Duty payable in Advance for days of New Retail Price or Closed Production, Claim to be filed later: CESTAT C.C.E.-Ahmedabad vs Zest Packers Pvt Ltd 2023 TAXSCAN (CESTAT) 1244 The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that customs duty payable in advance for days of new retail price. A two member bench comprising Mr. Ramesh Nair, Member (Judicial) and Mr. C L Mahar, Member (Technical) observed that the Tribunal dealing with the same issue even against the impugned order for the portion of demand confirmed, the Tribunal has set aside the demand and allowed the appeal of the respondent.Therefore, there is no substance in the revenue’s appeal. The CESTAT upheld the order to the extent of demand involved in the present revenue’s appeal. The revenue’s appeal is dismissed accordingly. Loading and Shifting of Materials from Private Railway Siding to Stacking Yard is Goods Transport Service: CESTAT quashes Service Tax Demand on Cargo Handling service M/s Usha Martin Limited vs Commissioner of Central Excise, Customs & Service Tax 2023 TAXSCAN (CESTAT) 1252 The Kolkata Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed service tax demand on cargo handling service and held that the loading and shifting of materials from private railway siding to stacking yard is goods transport service. A Two-Member Bench comprising Ashok Jindal, Member (Judicial) and K. Anpazhakan, Member (Technical) observed that “We hold that as the main activity of the appellants is transportation of goods, therefore, merits classification of the above said service in question is Goods Transport Service. Therefore, the demand under Cargo Handling Service is not sustainable, hence, whole of the demand confirmed against Appellant No 2 is set aside and consequently, the penalty imposed on the appellants are also set aside.” Honey is not an Exempted Good, Rule 6 of CCR Not Applicable: CESTAT rules in Favour of Dabur India Ltd M/s. Dabur India Limited vs Commissioner of Central Excise 2023 TAXSCAN (CESTAT) 1172 In a ruling in favour of Dabur India Ltd, the Kolkata bench of Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that Rule 6 of the Cenvat Credit Rules, 2004 as Honey is not an Exempted Good comprising Shri Ashok Jindal, Member(Judicial) and Shri K Anpazhakan, Member(Technical) held that the provisions of rule 6 are not applicable to the facts of this case as Honey is not an exempted goods. Further held In light of judgement of Supreme Court in the case of Union of India v. DSCL Sugar Ltd, the two member bench that the proceedings against the appellant are not sustainable under Rule 6 of the Cenvat Credit Rules, 2004. Appeal Before Tribunal Abates from Date of approval of Resolution Plan by NCLT: CESTATM/s. Dhanalakshmi Paper Mills Pvt. Ltd. vs Commissioner of GST & Central Excise 2023 TAXSCAN (CESTAT) 1175 The Chennai bench of Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that appeal before the tribunal abates from the date of approval of the resolution plan by the National Company Law Tribunal (NCLT). The Tribunal observed that the order of the NCLT, Chennai dated 26.3.2019 has approved the Resolution Plan of the Resolution Professional which is bound to the Corporate Debtors and other stakeholders involved. As per the non-obstante clause of Section 238 of the Code, the provisions of the Code will have an overriding effect if there are any inconsistencies with any of the provisions of the law for the time being in force. In light of Ghanashyam Mishra and Sons Pvt. Ltd. vs. Edelweiss Asset Reconstruction Company Ltd. & Ors. the two-member bench Shri P. Dinesha, Member (Judicial) and Shri M. Ajit Kumar, Member (Technical) that “the appeal filed before this Tribunal abates. The matter is disposed of accordingly.” CESTAT confirms Service Tax Demand as Refund Claim not filed within One Year from Date of Payment of Service Tax M/s. RJB Estate Pvt. Ltd. vs Commissioner of Central Tax 2023 TAXSCAN (CESTAT) 1177 The Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), confirmed the service tax demand as refund claim not filed within one year from date of payment of service tax A Single Bench of Anil G. Shakkarwar, Member (Technical) observed that “Under the provisions of Section 11B of Central Excise Act, 1944, the refund claim has to be filed within one year from the relevant date and in the present case, relevant date is date of payment of service tax. It is clear from the record that the present refund claim was not filed within one year from the date of payment of service tax. I, therefore, do not find any infirmity in the impugned order.” CESTAT quashes Refund of Excise Duty on Henna Powder and Henna Paste as Refund Application not filed within Time Limit under Proviso to Section 11C (2) of Excise Act Commissioner, CGST & Central Excise vs M/s. Prem Mehandi Center 2023 TAXSCAN (CESTAT) 1178 The New Delhi Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed refund of the excise duty as the refund application was not filed within the time limit prescribed in the proviso to section 11C(2) of the Excise Act, 1944. A Two-Member Bench comprising Justice Dilip Gupta, President and PV Subba Rao, Technical Member observed that “The refund applications filed by the respondent on 15.12.2017 pursuant to the issuance of the Notification dated 24.04.2017 was, therefore, liable to be rejected for the reason that it was not filed within the period of six months from the date of issue of the Notification as specified in the proviso to sub-section (2) of section 11C of the Excise Act.” The Bench concluded by noting that the respondent would not be entitled to refund of the excise duty as the refund application was not filed within the time limit prescribed in the proviso to section 11C(2) of the Excise Act. Advertising Corporation of India liable to pay Service Tax on AdvertisingServices to Government of India: CESTAT M/s. The Advertising Corporation of India Private Limited vs Commissioner of Service Tax 2023 TAXSCAN (CESTAT) 1179 The Kolkata Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), ruled that M/s. The Advertising Corporation of India Private Limited, the appellant is liable to pay service tax on advertising services to Government of India. A Two-Member Bench comprising Ashok Jindal, Judicial Member and K Anpazhakan, Technical Member observed that “We hold that on the services provided by the appellant to the Government, the appellant is liable to pay service tax. The assessee is liable to pay service tax on the services provided to the Government of India and Rest of the demand against the assessee are set aside.” Relief to Hero: CESTAT quashes Excise Duty Demand on Goods Exportedon FOC Basis M/s Hero Motocorp Limited vs CCE & ST Gurugram 2023 TAXSCAN (CESTAT) 1180 The Chandigarh Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed excise duty demand on goods exported on Free of Charge (FOC) basis, thereby granting relief to M/s Hero Motocorp Limited, the appellant. The Tribunal of SS Garg, Judicial Member observed that “I find that at the time of export no objection was raised by the department neither at the time of export nor at the time of submission of document with Central Excise department that receipt of sale proceedings in foreign currency is required for FOC exports.” The Bench further observed that “I find that the impugned order relying upon the RBI Master Circular No. 14/2012-13 dated. 02.07.2012 is not justified because there is no allegation regarding the same in the show cause notice which is the foundation upon which the department has to build its case. Therefore, in my view, the entire demand is bad in law.” Relief to IOC: CESTAT allows Refund when Excise Duty was paid underProtest Indian Oil Corporation Ltd vs C.C.E. & S.T.-Surat-ii 2023 TAXSCAN (CESTAT) 1183 The Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), allowed refund when excise duty was paid under protest and thereby granting relief to Indian Oil Corporation Ltd, the appellant. A Two-Member Bench comprising Ramesh Nair, Judicial Member and Raju, Technical Member observed that “We find that the appellant had paid the duty on the behest of the audit objection which itself is a payment of duty under protest. Moreover, the appellant has also clearly mentioned in their TR-6 challan that the payment of duty is under protest. The appellant has also submitted a letter declaring that such payment of duty is under protest. In this position limitation provided under section 11B is not applicable for refunding the Excise Duty.” Levy of Service Tax on Maintenance and Repair Services is on basis of Place of Performance: CESTAT quashes Service Tax Demand Services rendered Outside India M/s. International Seaport Dredging Limited vs Commissioner of GST and Central Excise 2023 TAXSCAN (CESTAT) 1182 The Chennai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed service tax demand as repair service was done outside India and observed that levy of service tax on maintenance and repair services is on basis of the place of performance. A Two-Member Bench comprising CS Sulekha Beevi, Judicial Member and Vasa Seshagiri Rao, Technical Member observed that “It is very much clear that the repair services were done outside India. The levy of Service Tax on Maintenance and Repair Services is on the basis of the place of performance and therefore the demand cannot be sustained as the services have been performed outside India and not received in India. For this reason, we hold that the demand under this category cannot sustain and requires to be set aside which we hereby do.” Service Tax not leviable on Demand confirmed on basis of Difference between Figures of ST-3 Returns and Balance Sheets: CESTAT M/s Indian Machine Tools Manufacturers Association vs The Commissioner of Central Excise2023 TAXSCAN (CESTAT) 1181 The Chandigarh Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), observed that service tax is not leviable on the demand confirmed on the basis of difference between figures of ST-3 Returns and balance sheets. A Two-Member Bench comprising SS Garg, Judicial Member and P Anjani Kumar, Technical Member observed that “We find that it is a settled principle of law that service tax can be levied only when there is a clear identification of service provider, service recipient and consideration paid for the same. In the absence of any such evidence of the service recipient and the service provided, service tax cannot be demanded and confirmed.” Piecemeal adjudication is not permissible: CESTAT remands matter to determine MRP under Rule 4 of (Determination of Retail Sale Price of Excise Goods) Rules M/s Sunder’s International vs Commissioner of Customs 2023 TAXSCAN (CESTAT) 1187 The Mumbai bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that piecemeal adjudication was not permissible and remanded the matter to determine the MRP as per Rule 4 of the Central Excise (Determination of Retail Sale Price of Excise Goods) Rules, 2008. The two-member bench consisting of C J Mathew (Technical Member) and Ajay Sharma (Judicial Member) after hearing both sides held that “Piecemeal adjudication is the least of the judicial virtues which we do not approve. The learned Commissioner has completed only a part while another part either has been left open or left to the department and by this approach he would be triggering another round of litigation”. They held that the denial of cross-examining the officers who investigated the case was not justified because justice should not only be done but must be seen to be done. The bench also approved the dropping demand of Rs.1,36,29,729/- as it was accepted by the department and no appeal was filed against it by the company, having attained finality. The appeals were allowed by way of remand. Relief to Infosys: CESTAT rules Objection on Eligibility of Credit cannot be raised at time Filing of Refund Claim Commissioner of Central Excise, Customs & Service Tax, BBSR vs M/s Infosys Technologies Ltd 2023 TAXSCAN (CESTAT) 1184 The Kolkata Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), ruled that objection on eligibility of credit cannot be raised at time filing of refund claim, thereby granting relief to M/s Infosys Technologies Ltd, the respondent. A Two-Member Bench comprising Ashok Jindal, Judicial Member and K Anpazhakan, Technical Member observed that “We observe that prior to 1.4.2011 the ‘input service’ definition in Rule 2(l) of the Cenvat Credit Rules, 2004 was very wide as it was an inclusive definition and covered the expression “activities relating to business”. This covers all such ‘input services’ used by the Respondent in providing their output services. Accordingly, we hold that there is no infirmity in the impugned order passed by the Commissioner (Appeals) allowing the refund.” Expert Evidence cannot be Brushed Aside for Non-Technical Reasons: CESTAT quashes Allegation of Clandestine Removal of Chemicals without Payment of Excise Duty The Commissioner of Central Excise, Jammu vs M/s FIL Industries Private Limited 2023 TAXSCAN (CESTAT) 1186 The Chandigarh Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed the allegation of clandestine removal of chemicals without payment of excise duty and observed that expert evidence cannot be brushed aside for non-technical reasons. A Two-Member Bench comprising SS Garg, Judicial Member and P Anjani Kumar, Technical Member observed that “The certificates issued by other agencies and the Deputy Director of Horticulture, Government of Jammu & Kashmir speak of the possibility and feasibility of the use of the impugned chemicals in the post-harvest treatment of apples. As submitted by the learned Counsel for the respondents, we find that the expert evidence given cannot be brushed aside for non-technical reasons. If the Department did not want to rely upon the technical opinion, the same should have been done by countering technical opinion by expert opinion authoritatively countering the opinion given.” Relief to Kissan Fats: CESTAT rules Waste, Gums, Fatty Acids etc arising on Manufacture of Vegetable Oils are Eligible for Excise Duty Exemption M/s Kissan Fats Limited vs The Commissioner of Central Excise, Chandigarh-II 2023 TAXSCAN (CESTAT) 1185 In a major relief to M/s Kissan Fats Limited, the Chandigarh Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), ruled that waste, gums, fatty acids etc arising on manufacture of vegetable oils are eligible for excise duty exemption. A Two-Member Bench comprising SS Garg, Judicial Member and P Anjani Kumar, Technical Member observed that “Coming to the Department’s contention that the decision in the case of A.G. Fats, which was affirmed by the Supreme Court, was not discussed by the Larger Bench will not be of any avail as the decision in the case of M/s Marico Limited is the latest one and requires to be followed, therefore, by following the principles of judicial discipline, we are of the considered opinion that waste, gums, fatty acids etc. arising during the course of manufacture of vegetable oils are eligible for the exemption Notification No.89/95.” Relief to BHEL: CESTAT Rules Liquidated Damages Not Liable to Service Tax M/s.Bharat Heavy Electricals Limited vs Commissioner of G.S.T. and Central Excise 2023 TAXSCAN (CESTAT) 1188 The Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Chennai bench has ruled that liquidated damages are not subject to Service Tax. This ruling came in response to the appeal filed by M/s. Bharat Heavy Electricals Limited (BHEL), Vellore, Tamil Nadu, against the Commissioner of Goods and Services Tax (GST) and Central Excise, Chennai. The two-member bench comprising Mr. P. Dinesha (Judicial Member) and (Technical Member) Mr. M. Ajit Kumar ruled that the demand for Service Tax on liquidated damages was not justified. The decision was based on the consistent rulings in similar cases and the government’s decision not to contest them further. The bench concluded that liquidated damages should not be subjected to Service Tax. In result, the CESTAT allowed the appeal filed by BHEL and quashed the order that imposed Service Tax on liquidated damages. Findings of SVB are not Binding on Commissioner of Customs: CESTAT directs to Ascertain Veracity of Data from Balance Sheet GlaxoSmithKline Asia Pvt Ltd vs Commissioner of Customs 2023 TAXSCAN (CESTAT) 1190 The Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) directed to ascertain the veracity of data from balance sheet and observed that the findings of the Special Valuation Branch (SVB) are not binding on Commissioner of Customs. A Two-Member Bench comprising CJ Mathew, Technical Member and Ajay Sharma, Judicial Member observed that “The findings of the Special Valuation Branch (SVB) are not binding on ‘proper officer’ exercising such statutory powers and no action, unless initiated under the cited provisions, can be detrimental to the appellant herein. We see no prejudice thereby as appellant has not brought on record that any particular import to be assessed, provisionally or finally, will be impacted by mere ascertainment of the details furnished by the importer and, that too, only by reference to their own record.” ‘Plate Leveler’ of ‘1942 Vintage’ are Capital Goods and Freely Importable: CESTAT quashes Confiscation Jindal Saw Limited vs Commissioner of Customs (Import) 2023 TAXSCAN (CESTAT) 1189 The Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed confiscation under Section 111(d) of Customs Act, 1962and noted that ‘Plate leveler’ of ‘1942 vintage’ are capital goods and freely importable. A Two-Member Bench comprising CJ Mathew, Technical Member and Ajay Sharma, Judicial Member observed that “The goods are admittedly of ‘1942 vintage’ and it is seen that paragraph 2.31 of the Foreign Trade Policy restricts ‘second hand goods other than capital goods’ and, as it is not the case of customs authorities that these are not ‘capital goods’, the impugned goods would be freely importable. Consequently, confiscation under section 111(d) of Customs Act, 1962 lacks authority of law. Cenvat Credit of Service Tax allowable on Payment under RCM: CESTAT quashes Service Tax demand on Tour Operator Incredible Indian Moments Pvt. Ltd. vs Commissioner (Appeals) and Additional Director General 2023 TAXSCAN (CESTAT) 1193 The New Delhi Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed service tax demand on tour operator as Cenvat Credit of service tax allowable on payment under reverse charge mechanism (RCM). A Two-Member Bench comprising Justice Dilip Gupta, President and PV Subba Rao, Technical Member observed that “It is evident that the taxi operators were paying service tax on their services considering themselves liable to pay service tax and the appellant has been taking Cenvat credit of such service tax. To charge service tax again on reverse charge basis from the appellant (the service recipient) would result in double taxation on the same service.” “If the appellant had paid service tax under reverse charge mechanism, it would have been entitled to Cenvat credit on it immediately because it is its input service. Thus, the entire exercise is revenue neutral and in such a situation, the appellant cannot be alleged to have had an intent to evade payment of service tax” the Bench concluded. CESTAT confirms Service Tax Demand as Reasonable Cause for Delayed Payment not Proved u/s 80 of Finance Act M/s. Kaveri Warehousing Pvt.Ltd. vs Commissioner of GST & Central Excise 2023 TAXSCAN (CESTAT) 1194 The Chennai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), confirmed the service tax demand as reasonable cause for delayed payment not proved under Section 80 of Finance Act, 1944. A Two-Member Bench comprising P. Dinesha, Member (Judicial) and M. Ajit Kumar, Member (Technical)observed that “As per the general rule of legal proceedings, he who asserts must prove. It was for the appellant to prove financial constraint before the original authority and thereby plead ‘reasonable cause’ for delayed payment. A bald statement of financial constraint will not be enough.” “We find that the appellant has not shown ‘reasonable cause’ within the meaning of Section 80 ibid for their failure to pay duty” the Bench concluded. Confiscation of Immovable Property without Notice Compromises Integrity of Adjudication Process: CESTAT slams Customs Dept Prakash Mistry vs Commissioner of Customs Air Special Cargo 2023 TAXSCAN (CESTAT) 1191 The Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), slammed the Customs Department as the confiscation of immovable property was made without valid notice under the Customs Act, 1962 and the Tribunal commented that such act an act compromises the integrity of adjudication process. A Two-Member Bench comprising CJ Mathew, Technical Member and Ajay Sharma, Judicial Member observed that “Confiscation of sale proceeds of smuggled good is authorized by section 121 of Customs Act, 1962. Without going into the issue of intent of ‘sale’ therein, we find that the appellant was not placed on notice of proposal to confiscate his property.” The Tribunal further noted that notice is a pre-requisite and ‘constructive notice’ at that. Inclusion of such proposal in a notice issued to another is premised on conclusion that the property is owned by such notice. That, in itself, is premature and compromises the integrity of adjudication proceedings. Activity of Collection, Cleaning, Segregation and Stacking of Blasted Raw Magnesite is ‘Mining Services’ under Finance Act: CESTAT M/s. KRSS Manpower Service vs Commissioner of GST & Central Excise 2023 TAXSCAN (CESTAT) 1192 The Chennai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), ruled that the activity of collection, cleaning, segregation and stacking of blasted raw magnesite is ‘Mining Services’ under Finance Act, 1994. A Two-Member Bench comprising P. Dinesha, Member (Judicial) and M. Ajit Kumar, Member (Technical) observed that “we hold that the activity of collection, cleaning, segregation and stacking of blasted raw magnesite is classifiable under the category ‘Mining Services’ classifiable under section 65(105)(zzzy) of the Finance Act, 1994 and the demand is restricted to the period from 01/06/2007 onwards. We order that duty and interest may be worked out accordingly.” No service Tax on computer to computer linkage charges, while Acting as a Stock Broking Company: CESTAT Edelweiss Financial Advisors Limited vs C.S.T.-Service Tax 2023 TAXSCAN (CESTAT) 1201 The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that no service tax on computer to computer linkage charges in absence of express provision while acting as a stock broking company. A two-member bench comprising Mr Ramesh Nair, Member (Judicial) and Mr C L Mahar Member (Technical) held that “the demand in the present case is not sustainable. Hence impugned order is set aside. Appeals are allowed.” Merely Classifying services under an incorrect head does not amount to Fraud or Suppression of fact: CESTAT Paresh H Thakkar vs Commissioner of Central Excise & ST, Ahmedabad 2023 TAXSCAN (CESTAT) 1200 The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that merely classifying services under an incorrect head does not amount to fraud or suppression of fact. A two-member bench comprising Mr Ramesh Nair, Member (Judicial) and Mr C L Mahar Member (Technical) observed that “Mere omission or merely classifying its services under an incorrect head does not amount to fraud or collusion or willful misstatement or suppression of facts. The intention has to be proved to invoke extended period of limitation.” In the case of Larsen & Toubro dated 20 August, 2015, prior to which there was no clear ruling that services which involved supply or deemed supply of goods could only be classified under Works Contract Service. Therefore, demand is time barred and, therefore, cannot sustain. The CESTAT set aside the impugned order and allowed the appeal. No evidence to prove service of GTA to NTPC: CESTAT set aside Demand of Service Tax M/s Power Machines India Ltd vs Commissioner Service Tax 2023 TAXSCAN (CESTAT) 1199 The New Delhi bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) set aside the Demand of Service Tax in absence of evidence to prove service of GTA (Goods Transport Agency Service) to National Thermal Power Corporation (NTPC). A two member bench comprising Justice Dilip Gupta , President and Mr P V SubbaRao, Member (Technical) observed that there is nothing to establish that the appellant was providing Goods Transport Agency Service to the NTPC. It was only charging 2% towards the cost of transportation of goods. Even if the appellant had provided the Goods Transport Agency Service, it is the NTPC which would have been liable to pay service tax on such services and not the appellant. The appeal is allowed and the impugned order is set aside with consequential relief to the appellant. Service tax not payable on material supplied free of cost by service recipient during construction: CESTAT Aneri Construction Pvt. Limited vs Commissioner of Central Excise & ST, Surat-i 2023 TAXSCAN (CESTAT) 1198 The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that service tax not payable on material supplied free of cost by service recipient during construction. It was viewed that the consideration which is not received by the service provider shall not form part of taxable value under the term gross amount charged under Section 67 of the Finance Act, 1994 for levy of service tax. A two-member bench comprising Mr Ramesh Nair, Member (Judicial) and Mr C L Mahar Member (Technical) observed that “no material is produced before us to justify that aforesaid basis of the formula was adopted while issuing the notification. In the absence of any such material, it would be anybody’s guess as to what went in the mind of the Central Government in issuing these notifications and prescribing the service tax to be calculated on a value which is equivalent to 33% of the gross amount.” Activity of Service providing only for a particular Job cannot be Classified under Man Power Recruitment or Supply Service: CESTAT NARESH K SOLNAKI vs C.C.E. & S.T 2023 TAXSCAN (CESTAT) 1197 The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that activity of service providing only for a particular job cannot be classified under Man Power Recruitment Or Supply Service. A two member bench comprising of Mr. Ramesh Nair, Member (Judicial) and Mr. Raju, Member (Technical) observed that there is no dispute that the appellant have provided particular job of wax repairing and assembly department work for M/s Intricast Private Limited.The CESTAT held that the demand in the present case is not sustainable and set aside the impugned order is set aside. Procuring Sales Orders for Products Manufactured by Steel Mills outside India for Customers in India is Export of Service: CESTAT quashes Service Tax Demand Arcelor Mittal Projects India Pvt Ltd vs Commissioner of Service Tax 2023 TAXSCAN (CESTAT) 1196 The Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed service tax demand and ruled that procuring sales orders for products manufactured by steel mills outside India for customers in India is export of service. Quashing the service tax demand, a Two-Member Bench comprising Anil G. Shakkarwar, Member (Technical) and Dr. Suvendu Kumar Pati, Member (Judicial) observed that “The decision of the Larger Bench is reproduced in the foregoing paragraph. The Larger Bench in very clear terms has held that in the present proceedings, the activity of the appellant is export of service.” Failure to Establish Violation of Conditions under Sub-Rule (4B) of Rule 6 of Service Tax Rules: CESTAT quashes Service Tax Demand against IL & FS Transportation M/s. IL & FS Transportation Networks Ltd vs Commissioner of Service Tax 2023 TAXSCAN (CESTAT) 1195 The Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed service tax demand against IL & FS Transportation Networks Ltd, the appellant as the Revenue failed to establish violation of conditions under sub-rule (4B) of Rule 6 of Service Tax Rules, 1944. A Two-Member Bench comprising Anil G. Shakkarwar, Member (Technical) and Dr. Suvendu Kumar Pati, Member (Judicial) observed that “The conditions stipulated in sub-rule (4B) of Rule 6 of Service Tax Rules, 1994 though invoked by Revenue, the same are unsubstantiated in the said show cause notice. Therefore, we hold that Revenue has failed to establish that the appellant has violated any conditions specified in the said sub-rule (4B) of Rule 6 of Service Tax Rules, 1994. We, therefore, hold that the appellant was eligible for utilization of excess paid service tax of Rs.60,17,195/- during the month of December 2012.” The Bench noted that the show cause notice and the provisions of sub-rule (4A) and sub-rule (4B) of Rule 6 of Service Tax Rules, 1994. The said sub-rule (4A) provides for adjustment of excess paid service tax during the succeeding month or quarter and the said subrule does not require the said adjustment to be made during the immediately succeeding month. Capital Goods Installed in Marine Terminal Facility Area Considered asIntegral Part of Manufacturing Process & Eligible for CENVAT Credit:CESTAT M/s. Chemplast Sanmar Ltd vs Commissioner of GST & Central Excise 2023 TAXSCAN (CESTAT) 1203 The Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Chennai has held that Capital Goods installed in the Marine Terminal Facility (MTF) area are an integral part of the Manufacturing process and thus eligible for CENVAT (Central Value Added Tax) Credit. In result, the two-member bench comprising Ms. Sulekha Beevi C.S (Judicial Member) and Shri Vasa Seshagiri Rao Kumar (Technical Member) concluded that the denial of credit for capital goods in the MTF area was legally unsustainable and hence the orders were set aside and the appeals were allowed with consequential relief, if any, as per the law. Chennai Metro Rail Ltd. Not Liable to Pay Service Tax on Damages Received for Tolerating Breach of Contract by Contractors & Sub- Contractors: CESTAT Chennai Metro Rail Ltd. vs Commissioner of GST & Central Excise 2023 TAXSCAN (CESTAT) 1202 The Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Chennai bench has held that Chennai Metro Rail Ltd. (CMRL) is not liable to pay Service Tax on the damages received for tolerating the breach of contract by contractors and sub-contractors. The two-member bench comprising Shri P. Dinesha (Judicial Member) and Shri M. Ajit Kumar (Technical Member) clarified that the damages received for tolerating breach of contract are not subject to service tax unless there is a specific agreement or contractual arrangement to provide a service in exchange for compensation. Mere Non-disclosure of Receipts in Service Tax Return does not mean Intent to Evade Payment of Service Tax: CESTAT M/s Rangoli Division vs Commissioner (Appeals) 2023 TAXSCAN (CESTAT) 1205 The New Delhi Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), observed that mere non-disclosure of receipts in service tax return does not mean intent to evade payment of service tax. A Two-Member Bench comprising Justice Dilip Gupta, President and PV Subba Rao, Technical Member observed that “Mere suppression of facts is not enough and there must be a deliberate and wilful attempt on the part of the assessee to evade payment of duty. In the absence of any intention to evade payment of service tax, which intention should be evident from the materials on record or from the conduct of the assessee, the extended period of limitation cannot be invoked. Thus, mere non-disclosure of the receipts in the service tax return would not mean that there was an intent to evade payment of service tax.” Yokogawa India Limited vs Commissioner of Central Excise & Service Tax, Bangalore 2023 TAXSCAN (CESTAT) 1228 The Bangalore Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed service tax demand and observed that the sale of customized software on CD as part of the Distributed Control Systems (DCS) is not service. Quashing the service tax demand a Division Bench comprising DM Misra, Judicial Member and R Bhagya Devi, Technical Member observed that “In the present case, the Purchase Orders placed by the customers on the appellant reveal that the transaction between the appellant and their customers are not for supply of software as that of a ‘service’, but it is sale of the customized software on a CD as part of the DCS; accordingly, the same should be considered as ‘excisable goods’ and not as ‘service’, precisely, ITSS.” Disciplining of ‘Customs Broker’ not be Entered into Lightly nor Receded from Hastily: CESTAT quashes Revocation of CB Licence Sainath Clearing Agency vs Principal Commissioner of Customs 2023 TAXSCAN (CESTAT) 1206 The Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed revocation of Customs Broker (CB) licence and observed that disciplining of ‘customs broker’ not be entered into lightly nor receded from hastily. A Two-Member Bench comprising CJ Mathew, Technical Member and Ajay Sharma, Judicial Member observed that “A tendency to be less than meticulous in drafting of charges is evident here and proceedings do acquire the characteristic of trivializing the institution of ‘custom broker’; if they are to perform the vital role expected of them, resort to Custom Broker Licencing Regulations, 2018 has to be deliberated upon by licencing authorities in the context of each incident of breach of obligation. Disciplining of ‘customs broker’ is not be entered into lightly nor receded from hastily.” Support our journalism by subscribing to Taxscan premium. Follow us on Telegram for quick updates

CESTAT Annual Case Digest 2023 – [Part 4]

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CESTAT Annual Case Digest 2023 – [Part 4]

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