Recent Case Laws - May 21, 2009

Customs - 2009 - TMI - 33508 - Tri
Commissioner (Appeals) rejected appellant’s plea of exemption on the ground that the same were not raised before the adjudicating authority or even in the first round of litigation - it is seen that the original assessment order was kept alive by filing an appeal there against – held that claim of the appellant as regards benefit of notification is a question of law and can be raised at any point of time – appellant submit that findings of the appellate authority that the notifications in question were not valid, are factually incorrect – appeal is allowed by way of remand

Central Excise - 2009 - TMI - 33507 - Tri
Service tax credit paid on erection and commissioning of Wind Mills for generation of electricity situated away from the appellant’s factory - It is admitted position that the electricity generated at the wind mill firm unit is not being supplied directly to the appellant, but is transferred to PGVCL, who are further supplying the same to the appellant - It cannot be said that the said wind mill firm unit is a part of the appellant’s factory premises so as to allow credit of service tax paid in respect of services utilized at the wind mill firm house – appeal rejected

Customs - 2009 - TMI - 33506 - Tri
Appellant has not disputed the classification of the goods and the description before the original adjudicating authority and have conceded that the goods were secondary/defective MS coils and imported in violation of the Import Licensing Note (4) to Chapter 72 -Therefore, once the classification etc. has not been challenged at the original stage, the same cannot be done at the appeal stage - further, once the appellants have themselves declared the goods as defective sheets, he cannot claim it as scrap now – confiscation justified - there has been no mis-declaration of description and value, redemption fine and penalty reduced

Customs - 2009 - TMI - 33505 - Tri
Equal penalty u/s 114A - Imported raw material was cleared duty-free in terms of Customs Notification No, 80/95 – breach of conditions of notifications ibid - neither alleged nor shown that there was short payment of duty by reason of collusion or wilful misstatement or suppression of facts, necessary ingredients of Section 114A did not exist - so penalty u/s 114A not imposable – regarding penalty on Managing Director, held that person, who, by his commissions or omissions, renders any imported goods liable to confiscation u/s 111, is liable to be penalized u/s 112 (a) of Custom Act

Customs - 2009 - TMI - 33504 - Tri
Demand of Anti-Dumping Duty (ADD) on the ground that, on test of a sample drawn from one of the two lots comprising the consignment of Mulberry Raw Silk of Chinese origin was found to be 2A grade as against the declared 5A grade - original authority chose to follow the first test result in respect of the first lot to assess the goods contained in that lot. Hence, the impugned demand - On the request of the appellants, samples were drawn from the first lot afresh and the second lot. On test it was found that both of them were 3A grade. Mulberry Raw Silk of 3A grade does not attract ADD – assessee’s appeal allowed

Central Excise - 2009 - TMI - 33503 - Tri
Assessee is contesting special excise duty on the grounds that the goods manufactured and cleared are in fact the parts of the air-conditioning machines (not air-conditioning machines as alleged) because it is not equipped with the motor driven fans and blowers to change temperature and humidity therefore the goods cannot be subjected to special excise duty in view of Notification No. 22/2000 - revenue’s contention is that condensing units should be considered as air-conditioners is not appropriate – assessee’s contention is accepted

Service Tax - 2009 - TMI - 33502 - Tri
Appellant is doing research in ADVANCE COMPUTING is a society registered and also registered as Public Trust – appellant is exempt from payment of Income Tax - appellant is also recognized as a Scientific Society under the Department of Information Technology, Ministry of Communication and Information Technology and Scientific & Industrial Research Organization by the Ministry of Science and Technology – appellant is also engaged in imparting training/education in Information Technology and related fields - By no stretch of imagination the training conducted by the appellant institute can be called as either as ‘commercial training or coaching’ – larger period not invocable

Service Tax - 2009 - TMI - 33501 - Tri
Refund of unutilized input service credit on export of final product - with effect from 10.09.2004, Rule 5 of Cenvat Credit Rules, provided refund of Cenvat Credit on input or input service - Even though the rule allows it, Notification no. 11/2002 dated 01.03.2002 did not provide the refund - But, that notification was superseded by another Notification 5/2006 dated 14.03.2006 providing refund of input credit also, which has been not utilized - there is indeed a provision u/r 5 for such refund w.e.f. 10.9.04, just because the notification has not been issued at that time, we cannot deny the benefit provided in the Rule – Not. no. 5/06 to be taken as effective from 10.9.04 - refunds pertain prior to 14.03.2006 so this is admissible

Service Tax - 2009 - TMI - 33500 - Tri
Appellant is agent of GMC, USA and they procured orders/contracts from Indian Railways for GMC - GMC, USA have no any office of commercial or industrial establishment in India - held that just because commission was received by the Appellant through Indian Railways in Indian Rupees as Indian Railways made payment to GMC in foreign currency after deducting the commission payable to GMC, it cannot be said that the service provided by the Appellant to GMC, USA is not “export of service” u/r 3(3) of the Export of Service Rules – as per Rule 5 ibid, the Appellants were eligible for refund of the service tax paid on such service exported to GMC, USA

Service Tax - 2009 - TMI - 33499 - Tri
Business auxiliary service - appellants are servicing motor vehicles of M/s. Tata Motors in respect of ‘passenger cars’ as well as the ‘light commercial vehicles’-Service Tax liability in this appeal is restricted to the cost of free services in respect of ‘light commercial vehicles’ - case is regarding the applicability of Service Tax on the activity of servicing/repairing of the commercial vehicles - amount received by the appellant is in respect of servicing of ‘light commercial vehicles’, the Circular No. 87/05/2006-ST would directly apply and appellant is not liable to pay any Service Tax on such amount received by him

Service Tax - 2009 - TMI - 33498 - Tri
COD application by revenue for condoning the delay of 78 days - second review by the Committee of Commissioners - In the second review, there was difference of opinion between the Commissioners. Thereafter, the Chief Commissioner decided to file an appeal before the Tribunal - once the Review Committee has taken a decision not to file an appeal before CESTAT, then the said Committee becomes functus officio - once the Committee decided to accept the OIA, the matter ends then and there. There is no legal provision for sitting in judgments over the decision of the Review Committee – delay in filing appeal is not condoned

Service Tax - 2009 - TMI - 33497 - Tri
Refund of excess tax paid on self assessment - amount of Service Tax payable was self assessed and paid by the assessee in accordance with provision of Section 70 – revenue contend that self assessment made by the assessee was not appealed against – neither notice u/s 73 issued nor order of assessment issued by officer- Admittedly, when no order capable of being appealed against, had ever been passed, it cannot be said that the assessee could file appeal against the assessment order, and not having so filed appeal he cannot lay the claim of refund – refund entitled