CESTAT, New Delhi - Telecom operators discharging service tax on the whole MRP value of SIM cards an...d recharge cards there could be no further service tax liability on the persons who are dealing/selling the said SIM cards or recharge cards to the public. When the appellants have received incentives and discounts in the course of their trading activity, they are not liable to pay service tax. Department was fully aware of the activities of the appellant and had issued a show cause notice so  Department cannot allege that it was not aware of the activities of the appellant and that the appellant had suppressed any information. show more

CESTAT, New Delhi - The buyer of the appellant who himself has undertaken the responsibility of segr...egating such defective pieces where defect was not arising out of mis-handling and has charged the compensation in form of penalty from the appellant for undertaking such an activity and this particular fact is sufficient to hold that the activity was performed by the buyer for himself, as such cannot be called as eligible input service in terms of section 2(l). The activity in question is the activity undertaken by the buyer of the manufacturer that too to ensure his right as he got reserved between the contracting parties for not receiving the damaged goods. show more

CESTAT, Chennai - The authorities have found that the violation, if any, has not resulted in any spe...cified categories of items being imported or that there was any reason to hold that there has been an improper importation of the goods in question, resulting in confiscation of the same. The goods have not been imported contrary to any prohibition imposed by or under the Act or contrary to any prohibition imposed by any other law for the time being in force. Authorities below are not justified in demanding redemption fine and penalty under Section 112(a). show more

CESTAT, Kolkata - Cenvat credit used on inputs/capital goods used in power plant set up by the manuf...acturer is admissible if the final product is dutiable. Removal of coal Fly Ash is one of the necessity for running of the captive power plant and without such removal of the coal fly ash from the captive power plant, the same cannot operate and run, in which case, the power won’t be generated and the appellant would not be in a position to manufacture their final product. Appellants are entitled to service tax paid on the services used by them for removal of coal fly ash from the captive power plant. show more

CESTAT, New Delhi - Appellant have produced documents of transport before the Tribunal as well as th...e bilties that the goods were being transported from Delhi to Ahmedabad. Appellant had appeared before the Customs Department and had claimed the goods and no other person has claimed the goods in question. In view of admitted town seizure, it was the onus on the Customs Department to lead evidence in support of allegation as to the smuggled nature of goods. Sale-purchase of goods in India is supported by the levy of Sales Tax by the Sales Tax Department of Rajasthan. show more

CESTAT, New Delhi - Interest is payable for default in depositing the tax by the due date voluntaril...y or after determination of the amount of duty under Section 11A. Here both the conditions are not available to Revenue as admittedly neither there is any determination of duty liability of NCCD under Section 11A, nor there is voluntary default in deposit of the amount of NCCD. In absence of condition precedent in Section 11AA, no interest can be demanded from the appellant –assesse. The appellant was prevented from deposit of dues, due to glitch on the portal, which is wholly attributable to inaction on the part of Revenue and Revenue cannot take advantage of its wrong doing, by levy of interest.   show more

CESTAT, New Delhi - Appellant have done execution of new work after removing the existing structure ...and railing etc. The short payment of interest amounts were admittedly deposited but nowhere have not been given credit either for tax or interest, resulting into erroneous calculation. Interest under Section 75 is payable for delayed payment of service tax, as such tax has not been paid by the due date or within the prescribed period, thus, this ground is allowed by way of remand directing the Adjudicating Authority to recalculate the interest for delayed payment of tax after giving credit, on verification of the challans. show more

CESTAT, Ahmedabad - It cannot be considered that the said entry in column (4) of the table which is ...related to the “condition” is applicable only on the supply of plant, machinery or equipment or structures besides, it is also applicable on any other material. In clause (a) thermal insulation also mentioned and in the present matter appellant had also paid VAT/ sales tax on goods which is used in installation of thermal insulation and this activity of the assessee was nothing but “works contract service”. show more

CESTAT, Ahmedabad - There is no restriction in the Policy against State Trading Enterprise making Hi...gh Seas Sale of Urea which during the relevant period was permitted to be imported through State Trading Enterprise. Since the import was made through MMTC/Indian Potash Ltd and was in accordance with Heading No.3102 1000 of the ITC (HS) Policy and the letters of the Government of India, Ministry of Chemical and Fertilizers, the import was in accordance with law and therefore the goods cannot be held to be liable to confiscation under Section 111(d). show more

CESTAT, Ahmedabad - In case the adjudicating authority had any doubt regarding the CA certificate he... could have asked for the supporting document or any other explanation. The show cause notice does not mention the nature of the commission received by the appellant. The appellant has also not produced any documents to show the exact nature of the services provided by them. The report has been obtained after adjudication of the case by the adjudicating authority and the same was not available at the time of adjudication. Since this report was not available with the adjudicating authority the decision could not have been taken after examining complete facts. The matter is remanded back to the Original Adjudicating Authority to decide a fresh after examining the actual contract under which such payment has been received and specifically examine the nature of services provided an its taxability show more

CESTAT, Ahmedabad - In terms of Rule 3 (3)(a) where the buyer and seller are related, the transactio...n value shall be accepted provided that the examination of the circumstances of the sale of the goods indicate that the relationship did not influence the price. Neither the show cause notice issuing authority nor the adjudicating authority have given reasons to hold that how the relation has indeed affected the price. The declared prices cannot be reviewed without any evidence to the effect that the relation between the appellant and the related buyer which has influenced the declared price or to the effect that there was a flow back of money between the appellant and related buyers. Adjudicating authority is directed to consider the issue afresh, and to pass an order after giving an opportunity to the appellants. show more

CESTAT, New Delhi - After adjudication, if the goods are held liable for confiscation, they may be r...eleased on payment of redemption fine. If the goods are confiscated and allowed redemption on payment of fine such fine has to be recovered from the appellant and some security is necessary to cover it if the goods are to be released provisionally before adjudication itself. Impugned order is modified by reducing the amount of bank guarantee to 5% of the value of the goods. show more

CESTAT, Ahmedabad - If the fact of export has been established, refund is not to be denied on merely... technical interpretation of procedure. Since there is no dispute with regard to the export made or the service tax paid, the non-fulfilment of the conditions is condonable. Due to statutory requirement of rule 4A, the Invoice/ bill/ challans, on which the refund is sought, has to be mandatorily signed by the person providing taxable service or by a person authorized by him in respect of such taxable service. All the business of the appellant was export of goods, therefore, no corelation was necessary, since this fact has not been examined by the lower authority the order of this account is set aside, the matter remanded to the Adjudicating authority. show more

  CESTAT, New Delhi - ISD registration is only to facilitate the distribution of credit and ...failure to obtain ISD registration is merely a procedural lapse and due to such failure substantial benefit cannot be denied to the assesse. Details of the category of input services availed by them have also been provided to the department. The appellant has successfully established that these three zonal offices are integral part and parcel of the appellant only and the fact that they are located separately hardly makes any difference and the appellant is justified in availing Cenvat Credit in respect of input services availed by its Zonal Training Centre, Zonal Office and Zonal Audit Office (ZAO) in terms of Rule 2(l) and the services received by these zonal offices fall under the definition of ‘input service’ as provided by Rule 2(l)   show more

CESTAT, New Delhi - As the Commissioner (Appeals) have dismissed the appeal for want of compliance o...f Section 35F, this ground could not be decided so, this appeal is allowed by way of remand. The matter is remanded to the file of the Original Adjudicating Authority to pass a reasoned order, in accordance with law, after hearing the appellant-assessee. The Adjudicating Authority shall also record the fact of service of show cause notice, which is the condition precedent before passing the adjudication order. show more