the compound wall is an integral part of the factory. Hence, the credit taken over the input service by the respondent on the construction of the compound wall is eligible to the respondent, Accordingly, I do not find any merit in the appeal, the same is rejected.

Credit is admissible on washing equipment/machines under “capital goods”; which were used for washing of employees uniforms in the factory of manufacturer. 

Credit of service tax paid on outdoor catering service claiming the same to be input service used in or in relation to various manufactured excisable goods is not admissible.

The impugned order does not find that any inputs or capital goods had been rendered liable to confiscation by the assessee  on account of its taking cenvat credit wrongly on account of fraud, willful mis-statement etc. provisions invoked for imposing penalty are also not legally correct.  

refund claim was filed by the appellant as manufacturer of the goods.  Therefore, if the amount was shown as expenses in their Profit & Loss account for the relevant period, as certified by the C.A., it must have been factored into the price of the goods manufactured by them - which situation would fit well in the contention that the goods were sold at cum-duty prices by the assessee and their customers - and consequently the burden of duty would be deemed to have been passed on to the buyers of the goods.  the appellant has failed to rebut this presumption.

The appellant, 100% EOU, have cleared Polyester Texturised Yarn falling under CSH No.5402.32 in DTA on payment of Excise duty as per proviso to Section 3(1) of Central Excise Act, 1944 - AED (T&TA) is not part of Section 3 leviable mentioned in the schedule 1 & 2 and as such, cannot be taken into consideration 

Reversal of Credit on clearance to SEZ Developers-we direct the registry to place this matter before the President for constitution of the appropriate Larger Bench to decide the issue as to whether the amendment introduced to Rule 6(6)(i) of the Cenvat Credit Rules, 2004 under Notification No. 50/2008-CE (N.T.) dated 31.12.2008 is either c1arificatory in nature and is retrospective in operation or not.

the service provided and received appears to be of the nature of "Business Auxiliary" in absence of any cogent evidence to the contrary. - we direct the appellant to make pre-deposit of Rs. 100 crore (consisting of Rs. 64 crores towards service tax and Rs. 36 crores towards penalty and interest totalling Rupees one hundred crore only) within eight weeks of the date of receipt of this order and make compliance within one month of the deposit.

up to 18/4/2006, the service tax liability cannot be fastened upon the appellant as the recipient of the services as the law is settled.

On a conjoint reading of Section 11AB of the Act and that of Rules 3 and 4 of the Credit Rules, we hold that interest cannot be claimed from the date of wrong availment of CENVAT credit. The interest shall be payable from the date CENVAT credit is wrongly utilized - the appellants had not utilized the Cenvat credit taken by it erroneously.  When the Cenvat credit taken remained an entry in their account, the assessee did not incur any liability on account of such credit. Interest is compensatory in character and is imposed on an assessee when payment of any tax due and payable is withheld.

Larger Bench: the charges towards pre-delivery inspection and after-sale-service by dealers from buyers of the cars are to be included in the assessable value of cars in the light of the definition of “transaction value” given in Section 4(3) (d) of the Central Excise Act, 1944

Larger Bench: (1) Whether, inspite of transfer of assets by way of sale to the newly formed company the power plant which was earlier with the appellant can be treated as a captive power plant? - (2) Whether transfer of goods to the newly formed subsidiary company has to be treated as on sale or otherwise? Whether transfer of goods from subsidiary company to SAIL to be treated as on sale or otherwise? - (3) Whether the provisions of Rule 6 (3)(b) of the Cenvat Credit Rules, 2002 are applicable or not?

whether conversion of mattings into roll form to smaller size mattings amounts to manufcture-matter goes to Larger Bench.

Larger Bench: The Tribunal has ample power to condone the delay in filing the appeal including the one filed under section 35 E (4) of the said Act.  The period which can be condoned in relation to filing of the appeal under section 35 E (4) of the said Act would include the period availed by the review committee in terms of section 35 E (1 ) or 35 E (2) of the said Act.  As regards the appeals by the Department in terms of section 35 E (4), the same should be filed within one month from the date of communication of the order under sub-section (1) or sub-section (2) of the said section but not beyond four months from the date of communication of order of the adjudicating authority to the review committee. In case   there is any delay in this regard, the same can be condoned in exercise of powers under section 35 B (5), on being satisfied about sufficient cause for such delay and power to condone the delay would include the period availed under section 35E (1) or (2) by the reviewing committee to decide about filing of the appeal

AIT-2010-382-CESTAT
M/s Agauta Sugar & Chemicals Vs. CCE, Noida

Larger Bench: whether service tax in relation to goods transport service received by the appellants during the period 16.11.1997 to 1.6.1998 can be recovered by issue of show-cause notice in the year 2004 - (i) The decision in Mangalam Cement (supra) lays down the correct proposition in law holding that the relevant date has to be determined with reference to Section 71A of the Finance Act, 1994 read with Rule 7A and that the time period for issue of a valid demand has to be calculated with reference to such relevant date under the amended Section 73. - (ii) The appellants can not now take a stand that the tax was payable during November 16, 1997 to June 1, 1998 when in fact no tax could be successfully demanded and recovered from them earlier in view of Hon’ble Supreme Court’s decisions in the case of Laghu Udyog Bharati (supra) and L. H. Sugar (supra). Having laid a successful challenge against the demand during the earlier period, now they can not turn around and say that the department should have raised the demand during that period itself. Such arguments are in the nature of “Heads I win, tails you lose” logic designed to deprive the public revenue its legitimate dues even after the levy has been declared valid by the highest Court of the land.

“Pan masala containing tobacco" i.e. Gutka was correctly classifiable under Sub-heading 2106.00 of the Central Excise Tariff, not Sub-heading 2404.40 pertaining to “chewing tobacco and preparations of chewing tobacco”during the period from November 2000 to 28th February 2001 - Notification No. 9/2000-CE (NT) dated 1/3/2000, issued under Section 4A of the Act covered “Pan masala in retail packs containing 10 gms. or more per pack” falling under Sub-heading 2106.00, which by virtue of Chapter note 3 to Chapter, also covered Pan masala containing tobacco. Therefore, during the period of dispute, assessable value of Gutka was to be determined under Section 4 A, not under Section 4 (1).

Cenvat credit balance with DTA unit could be passed on when it is converted into an EOU. 

the credit could be availed on the tax paid on the input service, as long as the manufacturer could demonstrate that the advertisement services availed had an effect or impact on the manufacture of the final product and establish the relationship between the input service and the manufacture of the final product. Once the cost incurred by the service had to be added to the cost, and was so assessed, it was a recognition by Revenue of the advertisement services having a connection with the manufacture of the final product. This test would also apply in the case of sales promotion. all services which constitute activities related to business need not have a nexus with manufacture in a manner different from what was explained in the Coca Cola India case by the Hon’ble High Court

In view of the law laid down by the Apex Court, it has to be held that limitation period as prescribed under Section 11A for recovery of non-levied or short levied duty would also apply for recovery of interest on such duty under the provisions of Section l1AB. Since in this case admittedly interest demand pertains to the period from 16.9.2003 to 13.8.2004 and the show cause notice has been issued on 31.3.2006 and there is no allegation of mis-statement or suppression of facts, etc. the show cause notice dated 31.3.2006 is time barred.

The contention of the department that there is no provision for endorsement of the credit and therefore the appellants are not entitled to claim credit on the basis of the endorsement is devoid of substance for more than one reason.  Firstly, the credit is taken not because of endorsement but on the basis of bill of entry which also disclosed the name of the appellant, apart from the fact that the goods accompanying the Bill of entry were subjected to the payment of duty, and on clearance, were directly transported to the appellant’s factory premises and were utilized by the appellants for installation of their factory, and no credit in respect of duty paid on those goods was taken by the contractor. Secondly, the effect of endorsement is only to amend the name of consignee and nothing more.

Larger Bench: No reference can be made to Larger Bench against Stay Order while passing Stay Order.

The amendment to Section 67 is a substantive one and will be applicable only from the date of its introduction and not retrospectively, even though the Explanation uses the expression “for removal of doubts”. clarificatory amendments are retrospective only when they did not materially change the existing provisions, while in the instant case, there was no provision either in Section 67 of the Finance Act or Rule 6 of the Service Tax Rules to suggest that in the case of transactions between associated enterprises, service tax has to be paid immediately on entry of the transaction in the books of account.

There were goods with deceptively similar brand manufactured by NETCO and the same was marketed by GTC by declaring MRP on the packets much lower than the MRP of the regular brands. The MRP on the packets of “deceptively similar brand” was embossed instead of being printed as per the mandate of the law. The embossed MRP was barely visible. - In respect of the above-mentioned “deceptively similar brands”, there was realisation of sale price over and above the declared MRP, embossed on the packets. - There was flow back of the funds arising out of realisation of higher sale price from the distributors to GTC.

Whether in case of duty paid on capital goods, the principles of unjust enrichment would not be attracted while deciding the refund claim in relation to such duty amount? - (ii) Whether the price fixation in relation to different grades of coal under Notification dated 08.01.1986 discloses non-inclusion of duty element in such prices?