This weekly round-up analytically summarizes the key stories of the Customs, Excise, and Service Tax Appellate Tribunal ( CESTAT ) reported at taxscan.in, from January 20, 2024 to January 26, 2024.
The Ahmedabad bench of the Customs, Excise & Service Tax Appellate Tribunal ( CESTAT ) classification of goods under CTH based on CRCL test report is not valid as there is no facility to test calcite powder.
The two member bench comprising Mr Ramesh Nair, Member ( Judicial ) and Mr Raju, Member ( Technical ) has held that when a particular laboratory does not have the testing facilities, the test report of the said laboratory without having facilities of testing the goods cannot be relied upon to decide the classification of the goods. In this regard the relevant judgment in the case of Gaurav Lubricants Industries Pvt. Ltd
The Ahmedabad bench of the Customs, Excise & Service Tax Appellate Tribunal ( CESTAT ) has held that mere assumptions that entering into two separate contracts was intentionally to evade service tax is not tenable unless it is proved.
The two-member bench comprising Mr Ramesh Nair, Member ( Judicial ) and Mr Raju, Member ( Technical ) observed that the finding of the adjudicating authority in this regard is not correct. For levy of service tax individual contracts have to be taken into account. Accordingly, the service tax demand can be determined.
The Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ) dismissed the plea for extended period of limitation as the value for purpose of Countervailing Duty ( CVD ) available in the bill of entries.
A Two-Member Bench comprising Ramesh Nair, Judicial Member and Raju, Technical Member observed that “We find that an extended period of limitation has been involved to raise this demand. The show cause notice has been issued on 13.04.2018 whereas, the bill of entries is dated 26.07.2016 to 13.08.2016. It is seen that all the data required for the notice except the MRP was available in the bill of entry filed by the appellant. In these circumstances, we do not find any reason to hold that anything was suppressed by the appellant for the purpose of evasion.”
The Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ) ruled that the amount of refund when shown as service tax receivable under the asset side of the trial balance sheet is not hit by unjust enrichment.
A Two-Member Bench comprising Ramesh Nair, Judicial Member and Raju, Technical Member observed that “It is also fact on record that as per books of account for the year 2013-2014, the amount of refund shown as service tax receivable under asset side of trial balance sheet, this also proves that the amount of service tax has not been passed on to any other person. Accordingly, we are of the clear view that the amount of refund has not been passed on to any other person. Hence, the same is not hit by unjust enrichment.”
The Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) granted benefit of import as there was compliance with Transitional Arrangement prior to when the watermelon seeds were placed under the restricted category from free category.
A Two-Member Bench comprising Ramesh Nair, Judicial Member and Raju, Technical Member observed that “The aforesaid documents were admittedly submitted before restriction imposed in import of “watermelon seeds” brought vide DGFT Notification No. 3/2015-20dated 26.04.2021. From the above documents it is undisputed that the appellant had complied with the stipulation of Transitional Arrangement as per Foreign Trade Policy as the appellant had paid the entire amount of the consignment in question much prior to watermelon seeds being placed under restricted category from free category. Therefore, in our considered view the appellant is eligible for consequential benefit of import qua FTP provisions.
The Delhi bench of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that denatured alcohol and CO2 manufactured by distillery are duty exempted and Cenvat credit is not available on the same.
A two-member bench comprising Justice Dilip Gupta, President And P V Subba Rao, Member ( Technical ) that all assessees are required to self-assess and pay duty. If duty is paid more than what is due or paid when it is not due, the assessee can claim the refund. There is no mechanism to refund suo moto the duty paid under the Central Excise law. There is also a mechanism of issuing a Show Cause Notice under section 11A to recover duty not levied, not paid, short levied, short paid or erroneously refunded
The Ahmedabad bench of Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ) quashed customs duty demand on printing papers and noted that the statements cannot be relied without cross-examination of witness
A Two-Member Bench comprising Ramesh Nair, Judicial Member and Raju, Technical Member observed that “It is seen that prima facie no significant evidence has been gathered from the searches made in premises of the appellants. From the above said all evidence, it is apparent that the SCN is largely based on the statements recorded during investigations. It is apparent that the statements cannot be relied upon without cross-examination of the witnesses.”
The Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ) Ahmedabad Bench directed re-adjudication as there was non-compliance with cost accounting standards as per CAS-4.
A Two-Member Bench comprising Ramesh Nair, Judicial Member and Raju, Technical Member observed that “We also find that the appellant has vehemently argued about the demand being time barred on the basis that the appellant has not suppressed any fact from the department mainly for the reason that the goods manufactured by the appellant was not cleared from the factory but was available in the factory. This aspect also needs to be reconsidered in detail.”
The Mumbai bench of the Customs, Excise & Service Tax Appellate Tribunal ( CESTAT ) has held that confiscation of goods cannot be made when the assessee submits e-BRC certifying repartition of foreign exchange for FOB Value.
A two-member bench of Mr S K Mohanty, Member ( Judicial ) and Mr M M Parthiban, Member ( Technical ) observed that the impugned order upholding the order of original authority in confirmation of adjudged demands, confiscation of goods and imposition of penalty on appellants, is not legally sustainable and hence the same is set aside.
The Mumbai bench of Customs, Excise And Service Tax Appellate Tribunal ( CESTAT ) viewed that evidence from panch witnesses without allowing cross examination is not valid and set aside the penalty under the Excise Act, 1944.
A two-member bench comprising Mr C J Mathew, Member ( Technical ) and Mr Ajay Sharma, Member ( Judicial ) viewed that the seizure had not been affected by the central excise officers. Further, other than the statements of the appellant herein and few others, no effort had been made by the central excise authorities to link procurement of raw materials and channelizing of the finished product with the appellant herein. In the absence of such corroborative evidence, statements that may have, otherwise, supported circumstantial evidence are of no relevance
The Mumbai bench of the Customs, Excise & Service Tax Appellate Tribunal ( CESTAT ) remanded the matter for adjudication on the determination of the eligible amount of drawback on change in rate while exporting.
for the limited extent of determination of eligible amount of drawback, arising on account of change in drawback rate alone and not on account of redetermination of the FOB value, the two-member bench of Mr S K Mohanty, Member ( Judicial ) and Mr M M Parthiban, Member ( Technical ) remanded the case back to the original authority. The Tribunal allowed the appeals filed by the appellants by setting aside the impugned order.
A Two-Member Bench of the Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ) observed that residential complexes are built for self-use and remain outside service tax net.
The Bench of Ramesh Nair, ( Judicial Member ) and Raju, ( Technical Member ) observed that “In light of above, it is apparent that when the residential complex is built for self-use then it remains outside the service tax net. In light of above decisions, the demand on the construction of road and residential premises cannot be sustained and the same is set aside.”
The Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ) observed that the Construction of School Rooms not classifiable under Commerce or Industrial Construction Service and held that unjust enrichment is applicable in the present case.
A Two-Member Bench comprising Ramesh Nair, Judicial Member and Raju, Technical Member observed that “In the instant case, there is no dispute that the said rooms were not used for commerce/ industry and therefore, the appellant’s service could not be classified under the head of Commerce or Industrial Construction Service. In view of above, it is clear that the tax has been paid wrongly.”
The Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ), Ahmedabad Bench quashed service tax demand as the difference in receipts towards exempted services was shown in ST-3 return.
Read More: A Two-Member Bench comprising Ramesh Nair, Judicial Member and Raju, Technical Member observed that “The appellant has given detailed reconciliation of the difference in the figures in ST-3 vis-a-vis actual receipt. The appellant has claimed that the variation is on account of inclusion of amount in service tax gross value/ VAT amount/booking of TDS/ declaration of receipt entry. We do not find any mention of these facts in the impugned order nor does the impugned order contain any examination of this data.”
The Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ) ruled that the activity of construction of roads is beyond service tax net.
A Two-Member Bench comprising Ramesh Nair, Judicial Member and Raju, Technical Member observed that “It is apparent from the above Circular that construction of road is excluded from service tax net. In light of the above Circulars, it is apparent that the activity of construction of roads is beyond the service tax net and therefore, demand of service tax on construction of road cannot be sustained. The same is set aside and appeal to that extent is allowed.”
The Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ) quashed the excise duty demand and observed that the allegation that notice is not aware cannot be decided in adjudication order.
A Two-Member Bench comprising Ramesh Nair, Judicial Member and Raju, Technical Member observed that “In the adjudication order the demand of Rs, 1,20,80,589/- was confirmed on the ground that the said amount was lying in the balance as on 07.12.2008 when the appellant have opted for the exemption and according to Rule 11 (3) of Cenvat Credit Rules, 2004, as the said amount has lapsed. Thus the adjudication order has clearly travelled beyond the scope of show cause notice. It is a settled law in various judgments that when with regard to any charge/allegation the noticee is not put to notice that issue cannot be decided in the adjudication order.”
The Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ), Ahmedabad Bench quashed the demand of 10% of value of exempted goods on the reversal of entire cenvat credit attributed to input and input services used in exempted goods.
A Two-Member Bench of the Tribunal comprising Ramesh Nair, Judicial Member and Raju, Technical Member observed that “We find that the demand of 10% of value of exempted goods wherein the common cenvatable input services were used in the exempted as well as dutiable goods. In the present case, earlier a show cause notice dated 29.08.2013 was issued wherein the cenvat credit of Rs. 35,82,694 attributed to input and input services used in the exempted product was proposed.”
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