CESTAT Annual Digest 2023 (Part-11)

Top Stories CESTAT Annual Digest 2023 (Part-11) By Aiswarya Krishnadas – On January 7, 2024 9:56 am – 19 mins read This yearly digest analyzes all the CESTAT stories published in the year 2023 at taxscan.in Availment of Cenvat Credit of Service Tax paid on Charges of Freight for transportation on Gas: CESTAT orders Fresh Adjudication Gujarat Gas Ltd vs C.C.E. & S.T.-Ahmedabad-iii 2023 TAXSCAN (CESTAT) 1600 The Ahmedabad Bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) directed a new adjudication concerning the utilization of cenvat credit for service tax paid on transportation charges for gas.The issue involved in the present case is that whether the appellant is eligible to avail the Cenvat Credit of Service Tax paid on the charges of Freight for transportation on Gas from their mother station to daughter station from where the sale takes place.

The appellant at the outset pointed out that the Tribunal had remanded the matter to the Adjudicating Authority to re-examine the matter in the light of the Board Circular No. F/116/23/2018-CX-3 dated 08.06.2018. Ashok Thanvi, Assistant Commissioner (AR) who appeared on behalf of the Revenue reiterated the findings of the impugned order.A Two-Member Bench of the Authority comprising Ramesh Nair, Judicial Member and Raju, Technical Member set aside the impugned order. Software Supplied as Loa ded on Medium is to be Treated as Sale Not Service: CESTAT Edukite Software Pvt Ltd VS C.C.E. & S.T.-Vadodara-I 2023 TAXSCAN (CESTAT) 1601  The Ahmedabad bench of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has determined that software provided in a loaded state on a medium should be considered a sale, not a service. Legal proceedings were instigated against Edukite Software Pvt Ltd, the appellant, for the omission to remit Service Tax categorized as “Information Technology Software Service.” The revenue department issued a notice, contending that the appellant fulfilled their Service Tax obligations in certain instances but failed to do so in others. The notice specifically highlighted the appellant’s non-compliance with Service Tax payments related to services provided to M/s. Attano Media and Education.

The content delivered by the appellant comprised a software product named ‘Edukite Interactive Curriculum Software,’ featuring educational content in Science and Mathematics tailored for students in Classes 10, 11, and 12 following the Central Board of Secondary Education (CBSE) curriculum. Although the original adjudicating authority had initially granted the Small Scale Exemption, both the original adjudicating authority and the first appellate authority later confirmed the remaining demand. The appellant argued that the software sold by them qualifies as goods and is, therefore, not subject to Service Tax. They highlighted that the agreement with M/s. HCL Info Systems Limited pertains to the permanent transfer of intellectual property rights, falling outside the purview of Service Tax liability. Moreover, the appellant emphasized that the entire software is encoded on a CD, categorizing it as goods and thereby exempt from Service Tax.A two-member bench of Mr Ramesh Nair, Member (Judicial) and Mr Raju, Member (Technical) held that if the software is supplied loaded on a medium then the same is to be treated as sale and not a service. Mineral/Dressing of ore not Important to Formation of Concentrate: CESTAT upholds Taxability of Ore under Excise Tariff Act Commissioner of Customs (Port), Kolkata vs M/s. BDG Metal & Power Ltd  The Customs, Excise & Service Tax Appellate Tribunal (CESTAT) in Kolkata has affirmed that the significance of ore dressing in the formation of concentrate is not crucial. It has upheld the taxation of ore under the Excise Act of 1985.M/s.

BDG Metal & Power Ltd, the assessee in question, imported manganese ore lumps, which were subsequently crushed, screened, and washed, possessing an approximate manganese content of 43%/45%. This import took place through seven and three Bills of Entry from July to October 2011. The relevant authorities conclusively assessed these Bills of Entry at a Nil rate of Countervailing Duty (CVD) under Notification No.4/2006–CE dated 01.03.2006, and subsequently, the imported goods were cleared for home consumption. The department argued that, as per the Harmonised System of Nomenclature (HSN), processes for ore concentration under chapter headings 2601 to 2617 should involve physical and physio-chemical operations normal to ore preparation for metal extraction. These operations must not alter the chemical composition of the basic compound. The Commissioner (Appeals) determined that the appellant qualified for the benefits of Notification No. 4/2006- CE dated 01.03.2006, specifically under serial number 4. Consequently, the Commissioner directed the lower authority to reassess the contested goods, allowing the duty exemption under the notification. The respondent, M/s BDG Metal & Power Ltd, contended that the imported goods were concentrates rather than ore, as they had undergone processes to make them marketable. These processes amounted to manufacturing, transforming the ore into concentrate, as per explanatory notes and Board’s Circular No. 9/2012 dated 23 March 2012.

A two-member bench, comprising Mr. Ashok Jindal, Member (Judicial), and Mr. Rajeev Tandon, Member (Technical), found no fault in the Commissioner (Appeals)’s order. In dismissing the appeal, the CESTAT upheld the Commissioner (Appeals)’s decision. Duty u/s 11A(2) of Central Excise Act Not Imposable as Duty has Paid before Issuance of SCN: CESTAT M/s. BPL Limited vs The Commissioner of Central Excise 2023 TAXSCAN (CESTAT) 1604 The Customs, Excise & Service Tax Appellate Tribunal (CESTAT) in Bangalore has ruled that the duty under section 11A(2) of the Central Excise Act, 1944, cannot be imposed since the duty was paid before the issuance of the Show Cause Notice (SCN). The appellant, M/s. BPL Ltd., is involved in the manufacturing of color TV sets and molded components for TV sets. During the audit, it was noted that the assessee did not include the amortization cost of molds provided by M/s. Sanyo BPL for manufacturing TV parts. In response to audit objections, the appellant voluntarily paid duty amounting to Rs.30,72,696/- along with interest of Rs.3,43,918/-.

The appellant informed the department and requested the waiver of a show-cause notice under Section 11A (2B) of the Central Excise Act, 1944. Subsequently, a show-cause notice was issued proposing a penalty under Section 11AC of the Central Excise Act, 1944, and Rule 25 of the Central Excise Rules, 2002. The Original Authority adjudicated the show-cause notice, rejecting the request for the waiver of a show-cause notice under Section 11A(2B). The explanation stated that the waiver of a show-cause notice is not applicable in cases where short levy is due to fraud, collusion, willful misstatement, suppression, or any contravention of the act and rules made thereunder to evade payment of duty. The Commissioner (A) upheld the same in the impugned order. A single-member bench of R Bhagya Devi, Member (Technical) held that penalty is not imposable as the duty has been paid before the issuance of show-cause notice and there is no determination of duty thereafter. Sub-Contract Service is Taxable: CESTAT upholds Service Tax on sub-contract work for Map Making undertaken for the Main contractor between Period October 2007 to March 2008M/s. C. E. Testing Company Pvt. Ltd vs Commr. of Service Tax, Kolkata 2023 TAXSCAN (CESTAT) 1605 M/s C E Testing Company Pvt. Ltd, the Assessee, has been registered with Service Tax since October 2003.

They provided various services under the category of ‘Technical Testing and Analysis Service’, ‘Survey and Map Making Service,’ etc. A Show Cause Notice demanding service tax was issued because the turnover shown by them in the ST-3 Returns was lower than the turnover shown in their Income Tax and Balance Sheet. The Adjudicating Authority dropped the demand to the extent of Rs. 73,07,023/-. He confirmed the demand of Rs. 25,70,758. The Appellant, aggrieved by the confirmed demand, is before the Tribunal. Simultaneously, the Revenue, aggrieved by the dropped demand of Rs. 73,07,023/-, has approached the Tribunal with their appeal.M/s C E Testing Company Pvt. Ltd, the Appellant, argued that they had provided all the documentary evidence, such as their P & L Account, Balance Sheet, ST Returns, CA Certificate, etc., along with a complete Reconciliation Statement to the Adjudicating Authority. The Kolkata bench of the Customs, Excise & Service Tax Appellate Tribunal(CESTAT) upheld the Service Tax on sub-contract work for Map Making undertaken for the main contractor between the Period October 2007 to March 2008 only.A two-member bench of Mr R Muralidhar, Member (Judicial) and Mr K Anpazhakan, Member (Technical) held that the Appellant is required to pay the Service Tax on sub-contract work (map making) undertaken by them for the main contractor between the period October 2007 to March 2008 only. Duty Exemption is Allowable u/s 5(1A) of Excise Act for First Clearance of 3500 MTs: CESTAT Cella Space Limited vs The Commissioner of Central Tax & Central Excise 2023 TAXSCAN (CESTAT) 1606

The Customs, Excise & Service Tax Appellate Tribunal (CESTAT) in Bangalore has affirmed that duty exemption is permissible for the initial clearance of 3500 metric tons under section 5(1A) of the Excise Act, 1944. M/s. Cella Space Limited, the appellants, are involved in the manufacture and clearance of paper and paperboards falling under Chapter Subheading 4804 of the Central Excise Tariff Act, 1985. The appellant had availed exemption under Notification No.4/2006-CE dated 1.3.2006 as amended by Notification No.4/2008-CE dated 1.3.2008, effective from 1.4.2008, for clearances made for home consumption from 1.4.2008 to 7.8.2008. Following scrutiny of ER1 returns, a show-cause notice dated 26.03.2009 was issued, alleging that the appellant had availed the benefit of exemption Notification No.4/2006-CE dated 1.3.2006 during the said period, and also cleared the same goods on payment of duty. Hence, they were not eligible for the benefit of the said exemption Notification. Accordingly, it was proposed to recover duty of Rs.47,76,725/- with interest and penalty, and to appropriate Rs.7,12,642/- paid by them.

Upon adjudication, the demand was confirmed with interest, and a penalty of Rs.5,00,000/- was imposed under Rule 25 of the Central Excise Rules, 2002. The appellant argued that during the disputed period, they had cleared paper and paperboards for home consumption as well as for exports. They submitted that 3499.971 MTs were cleared for home consumption and 3464.222 MTs were cleared for exports. The appellant was eligible for the benefit of the exemption on the clearances for home consumption, up to the limit of 3500 MTs as prescribed under the said Notification No.4/2006-CE dated 1.3.2006 as amended. It was stated that the maximum quantity allowed in a financial year for the first clearance is 3500 MTs. In the appellant’s case, including clearances on payment of duty during the said period, they did not exceed the maximum permissible limit of 3500 MTs. Furthermore, they claimed that as of the date of opting for the exemption with effect from 1.4.2008, the balance CENVAT credit available on the books of accounts had been reversed by the appellant.

It was argued that Rule 11(2) of the CENVAT Credit Rules, 2004 prescribed the reversal of CENVAT credit on inputs lying in stock as of the date of exercising the option for value-based or quantity-based exemption. The said Rule does not include credit on input services. The Revenue denied the benefit of the said Notification on the ground that even though the appellant’s total first clearances remained within the exemption limit of 3500 MTs, they had paid duty on the clearance of 441.478 MTs, which is contrary to the provisions contained in Section 5A(1A) of the Central Excise Act, 1944. A Single bench of Dr D M Misra, Member (Judicial) viewed that Section 5A(1A) is neither applicable to the present scenario since Notification No.4/2006-CE dated 1.3.2006 is a conditional, quantity-based exemption; and admissibility to ‘Nil’ rate of duty is only to the first clearances of 3500 MTs; there is no other condition stipulated in the said Notification. Allegation of Failure to Follow Examination of Norms Prescribed under CBEC Circular While Allowing Conversion of Shipping Bill: CESTAT Dismisses Appeal The Principal Commissioner of Customs vs M/s.Contemporary Leather Pvt. Ltd. 2023 TAXSCAN (CESTAT) 1607 The Customs, Excise & Service Tax Appellate Tribunal (CESTAT) in Chennai rejected the appeal brought forth by the revenue department, contending that the commissioner did not adhere to the examination norms outlined in the CBEC circular for approving the conversion of the shipping bill.

M/s. Contemporary Leather Private Limited, the respondent, had sought the conversion of Free Shipping Bills to Drawback Shipping Bills for their exports from the fiscal years 2013-14 to 2016-17. The initial request for conversion was denied, prompting the respondent to file an appeal before the Tribunal. In the Final Order, the Tribunal granted the appeal, noting that the request for converting the shipping bills within a three-year period, calculated from the application date (i.e., 23.11.2021), should be allowed. The adjudicating authority was instructed to verify whether any shipping bill had been filed beyond the three-year limitation, as stipulated in the Tribunal’s decision in the case of M/s. Autotech Industries (India) Pvt. Ltd. The Principal Commissioner of Customs addressed the matter, leading to the current challenged order, where the conversion of 342 free shipping bills to drawback shipping bills within three years from the application date was permitted. The Tribunal, in allowing the appeal and issuing directions for verification, failed to consider that, in accordance with Section 149 of the Customs Act, 1962, read with CBEC Circular No.36/2010 dated 23.09.2010, the conversion of shipping bills from schemes involving more rigorous examination or within schemes involving the same level of examination is not permissible.

The respondent contended that the Principal Commissioner issued the order in compliance with the Tribunal’s Final Order dated 30.09.2021, and the Department did not file any appeal against the said Final Order. A single bench of Ms Sulekha Beevi C S, Member (Judicial) observed that the Review Committee has put forward grounds challenging the Final order passed by the Tribunal dt. 30.09.2021 directing the adjudicating authority to verify and allow the conversion of shipping bills. Claim of Excise Duty Exemption; No demand Valid on Turnover of Direct Exports and Export Through Merchant: CESTAT directs Denova Adjudication Dragon Star Leather Co. (P) Ltd vs Commr. of Central Excise, Kolkata-VII 2023 TAXSCAN (CESTAT) 1602 The Customs, Excise & Service Tax Appellate Tribunal (CESTAT),

Kolkata has ordered a fresh adjudication on the claim for excise duty exemption. This directive is based on the finding that the demand is not valid concerning the turnover related to direct exports and exports through merchants. M/s Dragon Star Leather Co (P) Ltd, the appellant, involved in the production and export of leather goods, faced a Show Cause Notice issued on 22/3/2000. Following due process, the Adjudicating Authority confirmed the demand. The appellant filed an appeal before the Tribunal, which, in turn, remanded the matter to the Adjudicating Authority. Dissatisfied with the Denovo Adjudication, the appellant once again appealed to the Tribunal, but the Tribunal dismissed the appeal. The Kolkata High Court directed the Tribunal to review the case on its merits. Subsequently, the Tribunal remanded the matter once again to the Adjudicating Authority. Upon resuming the denovo proceedings, the Adjudicating Authority issued the impugned Order-in-Original (OIO) No. 08 dated 16/12/2008, confirming the entire demand as originally made under the Show Cause Notice.

The appellant contended that, after receiving the Final Order, the Adjudicating Authority sought various documents to complete the adjudication proceedings. The appellant submitted detailed documentary evidence demonstrating that the turnovers resulted from direct exports, exports through merchant exporters, and local sales of both manufactured and traded goods. A two-member bench of Mr R Muralidhar, Member (Judicial) And Mr K Anpazhakan, Member (Technical) observed that the matter pertains to 1996-97 and 1997-98 and denovo adjudication was to be taken up in 2008, much better and larger efforts should have been made by the Adjudicating Authority to follow the principles of natural justice and to get proper verification done, which has not been done in this case CESTAT Quashes Penalty u/s 112 and 114 of Customs Act on Illegal Import of Goods on ground of Absence of Admissible Evidence Rafeek K.T vs Commissioner of Customs, Cochin CITATION: 2023 TAXSCAN (CESTAT) 1428 The Ahmedabad bench of the Customs, Excise and Service

Tax Appellate Tribunal (CESTAT) quashed the penalty imposed under sections 112 and 114 of the Customs Act,1962 on illegal import of hoods on the grounds of absence of admissible evidence. Corpn, the court held that there was no evidence to allege that the assessee was actively involved in the illegal import of goods by communicating with overseas agencies or by transferring any amount though illegal channel. A single-member bench comprising P A Augustian (Judicial) quashed the penalty imposed under sections 112 and 114 of the Customs Act against the assessee. Excise Duty Demand on Clearance of Manufactured Casting on Job work basis without analysing SSI Exemption: CESTAT Directs Re- Adjudication Paras Founders & Engineers vs C.C.E.-Ahmedabad CITATION: 2023 TAXSCAN (CESTAT) 1429 The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) directed re- adjudication on excise duty demand on clearance of manufactured casting job work basis without analyzing Small Scale Industry (SSI) exemption. The Bench observed that as regards the goods which were other than job work and cleared by the assessee on their own without issuing invoices, there was a force in the argument of the assessee that after deducting the value of job work goods if the value remains within the threshold limit of the SSI exemption under Notification No 08/2003 then the same will not liable to duty and all these aspects are not verified by the department. The two- member bench comprising Ramesh Nair (Judicial) and Raju (Technical) remanded the matter back to the adjudicating authority for re-adjudication on the excise duty demand raised against the assessee.

CENVAT Credit of 2% CVD paid on imported steam coal can be Availed under Customs Notification: CESTAT rules in favour of Chettinad Cements M/s. Chettinad Cement Corporation Private Ltd. vs Commissioner of GST & Central Excise CITATION:  2023 TAXSCAN (CESTAT) 1430 In the case of Chettinad Cements, the Chennai Bench of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that CENVAT Credit of 2% CVD paid on imported steam coal can be avail under customs notification. A two-member bench of Ms Sulekha Beevi C S, Member (Judicial) and Mr Vasa Seshagiri Rao, Member (Technical) observed that “The bar to take cenvat credit is only when the benefit of exemption specified at Sl. No.67 and 128 under Notification No.12/2012-CE dt. 17.3.2012 is availed. The CCR 2004 does not impose any bar or restriction in availing credit when the benefit of exemption is availed under Notification No.12/2012-Cus. dt.17.3.2012.”

Further relying on judicial precedents, the Tribunal viewed that Customs notification applies to the imported coal whereas the Excise Notification applies to the domestically manufactured goods. Condition No. 25 of Excise notification which denies availment of Cenvat credit on imports of coal manufactured by the supplier of coal, as has been taken the basis in the order-in-original, shall therefore be applicable for domestically manufactured goods only and not on the imported coal. The CESTAT set aside the demand and allowed the appeal. No Service Tax Liability arises When Amount Already Paid By Principal in Lieu of Services Rendered by Cable Fees Collection Agent: CESTAT M/s Channel Management and Marketing vs The Commissioner of Central Excise CITATION: 2023 TAXSCAN (CESTAT) 1431 The Chandigarh Bench of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that service tax is not leviable when service tax is paid by the principal and the question of who has paid is a procedural issue. A two-member bench of Mr S S Garg, Member (Judicial) and Mr P Anjani Kumar, Member (Technical) observed that “the appellants have kept the Department informed of the fact that applicable service tax is being paid or has been paid by their principals i.e., M/s SETD. Therefore, there are cogent reasons for the appellant to believe that they are not obliged to pay service tax again; therefore, the ambiguity in the minds of the appellant is a bona fide one. Therefore, the extended period cannot be invoked.”

Since no case has been made for the invocation of the extended period, the CESTAT allowed the appeal. Customs Duty Exemption Available on Imported WAP as they do not support LTE Standard: CESTAT Commissioner of Customs vs Beetal Teletech Limited CITATION: 2023 TAXSCAN (CESTAT) 1432 The Delhi Bench of the Customs, Excise & Service Tax Appellate Tribunal(CESTAT) held that customs duty exemption is available on imported Wireless Application Protocol (WAP) as they do not support Long Term Evolution(LTE) standard… While dismissing the appeal, the coram comprising Justice Dilip Gupta, President and Mr  Rajeev Tandon, Member (Technical) observed that “WAP imported by the appellant works on technology and does not support LTE standard. Ingram Micro was, therefore, justified in claiming exemption from the whole of the customs duty under Serial No. 13 (iv) of the notification. There is, therefore, no infirmity in the order dated 28.11.2019 passed by the Additional Director.” Statements Collected without Following Rule 9D of CCR are Irrelevant: CESTAT COMMISSIONER, CGST & CENTRAL EXCISEJAIPUR I vs M/S BONAFIDE ARTS PVT LTD CITATION:  2023 TAXSCAN (CESTAT) 1433

The Delhi Bench of the Customs, Excise & Service Tax Appellate Tribunal(CESTAT) held that statements collected without following rule 9D of the Cenvat Credit Rule (CCR) are irrelevant. A two-member bench of Justice Dilip Gupta, President and Mr P V Subba Rao, Member ( Technical ) observed that in the absence of the circumstances specified in Section 9D(1), the statement cannot be true. Further held that “Examining the records of each of the individual companies/ firms and recording their statements can only reveal the complete truth. If such an investigation requires statements to be recorded and if revenue proposes to use such statements in the proceedings against the assessee the procedure prescribed under the section 9D has to be followed. Otherwise, such statements are not only NOT admissible but are not even relevant to the proceedings. In this case, all the statements are rendered irrelevant as the Adjudicating Authority had not followed the procedure prescribed under section 9D.” Relief to Adani Enterprises: CESTAT sets aside demand on Extended Period under

“Renting of Immovable Property” ADANI ENTERPRISES LTD vs C.S.T. Service Tax-Ahmedabad CITATION: 2023 TAXSCAN (CESTAT) 1434 As a relief to Adani Enterprises, the Ahmedabad Bench of the Customs, Excise & Service Tax Appellate Tribunal(CESTAT) set aside demand for an extended period under “Renting of Immovable Property”. It was observed that the impugned order confirming the differential service tax demand in respect of “Management Consultancy Service” is not sustainable. A two-member bench comprising Mr Ramesh Nair, Member (Judicial) and Mr C L Mahar Member (Technical) observed that the ingredients for invoking demand for an extended period are not present in the present case. Accordingly, the demand raised on “Renting of Immovable Property” shall be restricted to the normal period only.

The CESTAT set aside the impugned order and allowed the appeal. Relief to Gillette India: CESTAT Quashes Rejection of Excise Duty Refund claim of Approx. 1.4 crores on Clearance of Shaving Razor on ground of Non-verification of Cost Accountant Certificate M/s Gillette India Ltd. vs The Commissioner of Central Excise CITATION: 2023 TAXSCAN (CESTAT) 1435 The Chandigarh bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) granted relief to Gillette India by quashing the rejection of a refund claim or approximately 1.4 crores on clearance of shaving razor on the ground of non-verification of cost accountant certificate. The two-member bench comprising S S Garg (Judicial) and Anjani Kumar (Technical) held that the revenue had not even considered the Cost Accountant certificate alone countering the same with valid reasons and the Cost Accountant had issued the certificate after going through the accounts of the assessee and after satisfying himself about the truthfulness of the same and quashed the rejection of refund claim while allowing the appeal. IGST Leviable only  on Inter-state ‘Supply’ of Goods or Services or both u/s 5(1) of IGST Act: CESTAT M/s.HEERALAL CHHAGANLAL TANK vs COMMISSIONER OF CUSTOMS CITATION: 2023 TAXSCAN (CESTAT) 1436

The New Delhi bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that the Integrated Goods and Service Tax (IGST) can be levied only on the inter-state supply of goods or services or both which is defined under section 5(1) of the Integrated Goods and Service Tax Act (IGST), 2017. The Bench observed that as per Section 5(1) of the IGST Act levy of the integrated tax was on inter-state supply of goods or services or both. Thus, for the levy of integrated tax, there must be a ‘supply’ of goods or services or both. The two-member bench comprising Rachana Gupta (Judicial) and Hemambika Priya (Technical) held that the assessee was not liable to pay the demand raised by the department. CENVAT Credit of Excise Duty allowable on ‘Transformer oil’ which used for manufacture of transformer: CESTAT quashes reversal of CENVAT The Commissioner of GST & Central Excise vs M/s.Indo Tech Transformers Ltd. CITATION:  2023 TAXSCAN (CESTAT) 1437

The Chennai bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that the CENVAT credit of excise duty is allowable on transformer oil which was used for the manufacture of the transformer. The Bench observed that the transformer oil purchased by the assessee was used inside the factory in the process of manufacture and only for convenience had been transported in barrels along with the finished product and the transformer oil was not cleared ‘as such’. The two-member bench comprising Sulekha Beevi (Judicial) and Vasa Seshagiri Rao (Technical) quashed the reversal of CENVAT credit availed by the assessee. Huge Difference in Actual Value of Identical Goods imported and Chinese Customs Declaration value: CESTAT upholds Penalty u/s 114 AA of Customs Act M/s. Decor Rubber Industries vs Commissioner of Customs CITATION: 2023 TAXSCAN (CESTAT) 1438 The Delhi Bench of the Customs, Excise & Service

Tax Appellate Tribunal(CESTAT) upheld the Penalty under section 114 AA of the Customs Act, 1962 as there was a huge difference in the actual value of identical goods imported and Chinese customs declaration value. “Since there was a mis-declaration of the goods both in terms of value and quantity the confiscation under section 111(m) must be upheld. The redemption fine of Rs. 5,00,000/- imposed under section 125 on the goods valued at Rs.64, 86,108/- is very fair and reasonable and calls for no interference.”, the two-member bench of Dr Rachna Gupta, Member (Judicial) And Mr P V Subba Rao, Member (Technical) held. The Tribunal held that the appellant was liable to penalty under section 114AA of the Customs Act and dismissed the appeal of the assessee. No Service Tax on Lump  Sum Fees And Royalty Paid to the Foreign Service provider under Intellectual Property Right: CESTAT Crest Speciality Resins Pvt Ltd vs C.C.E. & C.-Anand CITATION: 2023 TAXSCAN (CESTAT) 1439 The Ahmedabad bench of the Customs, Excise & Service Tax Appellate Tribunal(CESTAT) has held that no service tax on lump sum fees and royalties is paid to the foreign service provider under intellectual property rights. A two-member bench of Ramesh Nair (Judicial Member) and Raju (Technical member) observed that fees and Royalties paid by the appellant are towards Intellectual Property

Right which is owned by a company in Italy and the same is not registered under any law in India in terms of the definition of Intellectual Property Right is given in Section 65(55a) of Finance Act 1994. Since the Intellectual Property Right which is used by the appellant belongs to the overseas supplier and that Intellectual Property Right is not governed by any law in India, levy is not covered under the definition of Intellectual Property Right. Accordingly, the same is not taxable. Further held that the service of Intellectual Property Rights is not covered for levy under the definition of Intellectual Property Rights service given in the Finance Act, 1994. Therefore, the transactions of payment of Fees and Royalties are not taxable. The CESTAT set aside the impugned order confirming the demand of Service Tax with interest and Penalty and allowed the appeal Demand of Cenvat Credit on Capital Goods invoking Extended Period not valid in absence of Suppression of Fact: CESTAT C.C.E. AHMEDABAD- vs CHIRIPAL INDUSTRIES LIMITED CITATION:  2023 TAXSCAN (CESTAT) 1440

The Ahmedabad Bench of the Customs, Excise & Service Tax Appellate Tribunal(CESTAT) held that the demand of Cenvat Credit on capital goods invoking an extended period was not valid in the absence of suppression of fact. A two-member bench of Ramesh Nair (Judicial Member) and Raju (Technical member) observed that the demand was wrongly made under the extended period in the show cause notice. Further held that “Since the demand even on limitation alone is not sustainable, the Revenue’s appeal has no legs to stand. Accordingly, we uphold the impugned order and dismiss the Revenue’s appeal.” Assessable Value of Excise Duty of Final products Leaving Factory of Job Worker would be the Cost of Raw Materials and ProcessingCharges on Manufacture of Insulated Copper conductors : CESTAT Cosmos Conductors Pvt Ltd vs Commissioner of C.E CITATION: 2023 TAXSCAN (CESTAT) 1441 The Bangalore bench of the Customs,

Excise and Service Tax Appellate Tribunal (CESTAT) held that the assessable value of excise duty of final products leaving the factory of job workers would be the cost of raw material and processing charges on the manufacture of insulated copper conductors. The two-member bench comprising D M Misra (Judicial) and Pullela Nageswara Rao (Technical) quashed the excise duty demand against the assessee while allowing the appeal filed by the assessee. Export of Educational Books are Classifiable under ‘clearing and forwarding agent service’ and Not under ‘BAS’: CESTAT Quashes Service Tax Demand Enbee Education Centre Pvt Limited vs Commissioner of Central Excise & ST, Vadodara-i CITATION:  2023 TAXSCAN (CESTAT) 1442 The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) quashed the service tax demand on the export of educational books and classified the service under the category of ‘clearing and Forwarding agent services’.

The two-member bench comprising Ramesh Nair (Judicial) and C L Mahar (Technical) held that the assessee is liable to pay service tax under the taxable service ‘Business Auxiliary Services’ cannot be sustained and liable to be quashed while allowing the appeal filed by the assessee. Valuation of Excise Duty on Clearance of Physical Samples of Medicine Must be done in Accordance with Rule 4 of Central Excise (Valuation)Rules: CESTAT Elvina Pharmaceuticals Ltd vs The Commissioner of Central Excise CITATION: 2023 TAXSCAN (CESTAT) 1443 The Bangalore bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that the valuation of excise duty on the clearance of physical samples of medicines should be done under Rule 4 of the Central Excise (Valuation) Rules,2000.

The Bench observed that in the case of in the case of Amazon Drugs Pvt. Ltd, the court held that the valuation of the physician sample is under Rule 8 of the Central Excise (Valuation) Rules. The two-member bench comprising D M Misra (Judicial) and Bhagya Devi (Technical) upheld the differential duty demand while dismissing the appeal filed by the assessee. CESTAT Upholds Rejection of Recovery of Availed CENVAT Credit of Excise Duty on Waste and Scrap of Iron and steel on ground of Absence of Corroborative Evidence C.C.E. & S.T.-BHAVNAGAR vs ARSH ALLOYS CITATION: 2023 TAXSCAN (CESTAT) 1444 The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) upheld the rejection of recovery of availed CENVAT credit of excise duty on the waste and scrap of iron and steel on the ground of absence of corroborative evidence. The Bench observed that in the case of

Commissioner Versus Motabhai Iron Steel Industries, the court held that where there is tangible documentary evidence in favor of the assessee and even if there are overall statements of a third party contradicting the documentary evidence, such tangible documentary evidence must be given primacy over the overall statements. The two-member bench comprising Ramesh Nair (Judicial) and C L Mahar (Technical) upheld the decision of the Commissioner (Appeals) while dismissing the appeal filed by the revenue. Excavation of Lignite and overburden Removal of Materials are Classifiable under ‘Mining Service’ and Not in ‘Site Formation Service’: CESTAT Quashes Service Tax Demand Dholu KCL JPF Joint Venture Company vs Commissioner of Central Excise & ST CITATION: 2023 TAXSCAN (CESTAT) 1445 The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) quashed the service tax demand on excavation of lignite and overburden removal of materials and classified the service under the category of ‘Mining Service’. The two-member bench comprising Ramesh Nair (Judicial) and C L Mahar

(Technical) held that as per the nature of the service in the present case, the removal of overburden which was exclusively meant for mining of lignite shall fall under the category of mining service and quashed the service tax demand while allowing the appeal filed by the assessee. Quantity of Bulk Liquid Cargo received in Shore Tank should be considered for Determination of Assessable Value of Customs Duty: CESTAT M/s. Chemplast Sanmar Ltd. vs The Commissioner of Customs CITATION: 2023 TAXSCAN (CESTAT) 1446 The Bangalore bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that in the case of bulk liquid cargo, the quantity received in the shore tank be considered for determination of assessable value and not the value shown in the Bill of Entry. The Bench observed that in the case of Mangalore Refinery and Petrochemicals Ltd. vs. CC, the court held that the actual quantity received in the Shore Tank after import, be the basis for the determination of value as well as Customs duty demand against the assessee while allowing the appeal filed by the assessee.

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