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Important Links SC HC CESTAT ITAT AAR

CESTAT RULINGS 2011

AIT-2011-11-CESTAT
M/s. ABB Ltd. Vs. CST, Bangalore

The discharge of VAT and deduction of TDS by the DMRC by taking the amount from the Running Account Bills of the appellants would definitely indicate that the said contracts have been considered by both the parties as works contracts. It is also seen from the records produced before us that the deduction of VAT is termed as WCT 2% i.e. Works Contract Tax 2% which would indicate that the appellants as well as DMRC has acted on the contract as that being a Works contract. If that be so, the contention of the assessee that the leviability of service tax under the works contract would be effective only from 01/06/2007 is correct.

AIT-2011-25-CESTAT
M/s Ajanta India Ltd. Vs. Designated Authority/Ministry of Finance

Larger Bench: The question of condonation of delay can arise only when the party discloses the cause for delay. If the party has chosen not to disclose any cause for the delay, the question of condonation of delay cannot arise. The issue relating to the delay can never be a question of law, it is always a mixed question of law and facts. Therefore, to ascertain whether the party had sufficient cause for delay in filing of appeal, it is always necessary to place on record the fact and circumstances which resulted in causing delay in filing the appeal and the same should reveal sufficient cause for the delay. As the party has failed to disclose any cause for delay, question of condonation of delay cannot arise.

AIT-2011-44-CESTAT
M/s. Asia Impex Vs. CC, Amritsar

the value of the imported goods cannot be based on the value of the goods in the local market. In the present case, no valid reasons have been given by the commissioner to reject the valuation adopted by the overseas chartered engineer. Similarly, comparing the value of the imported goods which are old and used with the data available in DOV is also not appropriate as the said data do not disclose the age, residual life, physical condition of the goods sought to be compared. The decision in the case of Anish Kumar Spinning Mills cited supra is to the effect that the opinion of one expert cannot be rejected on the basis of that of another expert unless there is sufficient independent reason for such rejection

AIT-2011-102-CESTAT
M/s Kunnel Engineers and Contractors Pvt. Ltd. Vs. CCE, Cochin

assuming that even if the value of the steel and cement is included in the gross receipts, the service tax liability arose only after granting abatement of 67% on the gross value as per the notifications herein above referred to. Be that as it may, we find that the issue that the contracts are works contract service was argued before the Tribunal for the first time. From the documents produced before us, we find that the appellant is registered under Kerala Government Sales Tax (KGST) and Kerala State VAT. If the appellant has discharged the sales tax and VAT on the contracts entered into by him on which the service tax demanded, then the question of these contracts falling under the category of commercial or industrial construction service and construction of complex service would not arise as they may be covered under the works contract service.

AIT-2011-139-CESTAT
M/s Larsen & Toubro Ltd. Vs. CST, Ahmedabad

contract with M/s Gujarat Water Supply & Sewerage Board as per the works contract for the work of design, build, operate contract for distribution of water under Mehsana District Water Supply Scheme. - we fail to understand how we can consider GWSSB as a commercial organization or the purpose of pipeline laid for them by various contractors as one for commerce i.e. to say to buy and sell water. The name of the scheme for which pipeline was laid was also Mehsana District Water Supply Scheme.

AIT-2011-153-CESTAT
M/s. DHL Lemuir Logistics Private Limited Vs. Commissioner of Customs Bangalore

appeal filed M/s. DHL Lemuir Logistics Private Ltd. (DHL), a custom house agent (CHA) whose licence has been suspended under Regulation 20 (2) of Custom House Agents Licensing Regulations, 2004 - Suspension is not a punishment. The CHA gets adequate opportunity to present its case before the Commissioner at the post decisional hearing which the CHA is yet to attend pending these proceedings initiated by it. We have no doubt in our mind about the immediacy that necessitated the order. The order is competently and justifiably made.

AIT-2011-198-CESTAT
M/s. Automotive Tyre Importers Association Vs. DA/MOF, Delhi

Larger Bench: On a complaint filed by the Automotive Tyre Manufacturers Association (Domestic Industry), the DA initiated anti-dumping investigations - No arguments have been advanced before us to demonstrate that the finding of the DA in regard to determination of dumping, injury and causal relationship between the two are either malafide or perverse. The quantum of anti-dumping duty recommended by the DA and imposed by the Government has also not been assailed before us. Under these circumstances, we find that no reason to interfere with the impugned Final Findings or the customs notification imposing anti-dumping duty.

AIT-2011-214-CESTAT
M/s Printo India Graphics (P) Limited Vs. CCE, Delhi

Whether conversion of plain aluminium foil in jumbo rolls into blister roll for packing medicine and items by process of cutting, slitting and printing amounts to manufacture in terms of Section 2(f) of the Central Excise Act, 1944? - the issues having been clearly dealt with in S.R. Tissues, Paper Products and Tarpaulin International cases by the Apex Court and further in GTC Industries case by the Bombay High Court, it is no more open to the appellants to contend that the process in question still amounts to manufacture

AIT-2011-221-CESTAT
M/s. Sangam Spinners Vs. CCE, Jaipur

the assessee is eligible to avail the Cenvat credit for discharge of service tax liability on the Goods Transport Agency services

AIT-2011-222-CESTAT
National Engineering Industries Limited Vs. CCE, Jaipur

the appellant has exported the services despite receiving the amount in Indian rupees. We find it so. Since the Tribunal has held that in the assessees own case in the given circumstances that the services rendered by them has to be considered as export of services, the lower authorities findings that they are rendering the services are not export of services seems to be incorrect.

AIT-2011-223-CESTAT
Yamuna Gages & Chemicals Vs. CCE, Panchkula

Whether the Respondent have right to realise duty from buyers on CKJ when such goods were not manufactured and not dutiable as held by the Tribunal and affirmed by Apex Court? - (2) Whether the Respondent shall not be called upon to deposit the duty realised by them on CJK which is not dutiable, into the treasury following the ratio laid down by Apex Court in Sahakari Khand Udyog Mandal Ltd. Vs. CCE reported in 2005 (181) ELT 328 (SC)?

AIT-2011-225-CESTAT
Voltas Limited Vs. CCE, Mumbai

the chiller plant erected and commissioned at site is an immovable property. Only the various components which has gone into the manufacture, therefore, can be removed and transported. The plant as a whole cannot be transported from one place to another. From the above it is clearly seen that the product in question, chiller plant, erected and commissioned at site by M/s. Voltas Limited out of duty paid components and erected and commissioned at the site of the factory premises of M/s. Hindustan Lever Limited cannot be called as 'goods' and accordingly they are not liable to excise duty.

AIT-2011-258-CESTAT
Oil & Natural Gas Corporation Ltd. Vs. Commissioner of Service Tax, Mumbai

There is no provision in the Central Excise Act obligating the department to issue a show-cause notice proposing to reject a refund claim filed under Sec.11B of the Act.- As regards unjust enrichment, we find that ONGC did not furnish any documents to show that the burden of service tax had not been passed on to any other person. Therefore, justifiably, the Asstt.Commissioner held the refund claim to be barred by unjust enrichment.

AIT-2011-262-CESTAT
M/s. SAP India Pvt. Ltd. Vs. CC, Bangalore

The software in CD form during March to September 2006 was imported through courier and courier bills of entry were filed. The Customs duty was paid by the courier on the declared value. Subsequent to September 2006, the appellants imported CDs containing SAP ERP software and paid customs duty on the value of licence fee remitted to SAO-AG. During the course of investigations, authorities of DRI, Bangalore held the view that no duty has been paid for the period March to September 2006. The appellants thereafter paid duty to the extent of the 55% value sent to the principals. The DRI opined that the duty is payable for the entire value of the software. The appellants thereafter, paid a sum of Rs.5,21,98,021/- vide TR 6 challan dated 15.11.2008 relating to CDs imported by their customers. The appellants have alleged that the DRI authorities are independently investigating their customers also and demanding duty with interest from their customers, for the CDs which the appellants have already paid duty. The appellants contention is that the duty could not be recovered twice, once from them and also from their customers. Thus, the appellants filed a refund claim for refund of Rs.5,21,98,021/- paid by them.

AIT-2011-269-CESTAT
SBI Vs. CCE, Trichy

the Commissioner (Appeals) has reduced the penalty and hence the respondents cannot take advantage to the provision under the fourth proviso to Section 78. Having not paid the penalty amount within one month from the date of the Order-in-Original even though the legal provision was clearly brought to the notice of the respondents by the original authority in para 14 of his order, the respondents cannot be given the benefit of paying 25% of the reduced penalty

AIT-2011-272-CESTAT
Yeshwant Industries Vs. CCE, Aurangabad

the challans and invoices on which M/s.Bajaj Auto Ltd., had supplied the moulds and dies to the respondents in free of cost on loan basis was on record during the course of audit before the audit party and the audit party did not take any objection that the respondents have not amortized the cost of moulds and dies in the assessable value of the parts cleared to M/s.Bajaj Auto Ltd. It is also on record that the statements of the respondents have been recorded in January 1999 and a show-cause notice has been issued in November 2000. In that event, when the audit party has not taken any objection for non-inclusion of the amortized cost of moulds and dies in the assessable value by the respondents, allegation of suppression does not survive

AIT-2011-279-CESTAT
M/s. United Spirits Ltd. Vs. CST, Bangalore

alcoholic beverages not being excisable goods do not fall under exempted goods as defined under Rule 2(d) of CCR. Therefore, the provisions of Rule 6(3)(c) of CCR are not attracted in the instant case. The assessee can utilize the credit to discharge the tax liability for service provided without being limited by the ceiling of 20% of the tax due.

AIT-2011-283-CESTAT
Sujako Interiors Pvt. Ltd. Vs. CCE, Ahmedabad

the supplies made by the appellant to SEZ developers were to be treated as deemed exports. If that be so, the provisions of Rule 6(3) of the Cenvat Credit Rules, requiring the appellant to pay an amount of equal to 10% of the value of exempted final product are not applicable.

AIT-2011-301-CESTAT
M/s. Surya Roshni Ltd. Vs.CCE, Indore

Credit of service tax paid on insurance of vehicles is admissible

AIT-2011-335-CESTAT
M/s Oberoi Flight Services VS. CST, Delhi

the airlines were offering the services to their customers through the assessees. It can be construed that the services, if any, that are rendered by the assessee, were indicative of rendering of services under the category which may fall under the head Business Auxiliary Services and more specifically under category (iii) which reads as any customer service on behalf of the client. It is seen that the Show Cause Notice only charges for recovery of the amount under the head Airport service which in our considered opinion will not be applicable in the present case.

AIT-2011-337-CESTAT
M/s ABN AMRO Bank Vs. CCE, Noida

The proposal by Finance Act, 2006 was to bring comprehensively all types of card under one definition clause so that all services provided in relation to such credit cards shall be conveniently dealt by the tax administration following cannon of convenience which is one of the considerations of classification rule. Therefore at no point of time, credit card service cannot be presumed to be excluded from levy before enactment of Finance Act, 2006. It may be stated that what was expressively clear soon after enactment of Finance Act, 2001 bringing section 65(72)(zm) to statute book read with section 65(10) of the Act was to tax credit card service. Therefore, express statutory grant took within its fold all incidental and ancillary service using the term in relation to credit card through the charging provision of section 65(72)(zm) and subsequently section 65(105)(zzw) of the Act to make the grant effective.

AIT-2011-385-CESTAT
M/s. Sujana Metal Products Ltd. Vs. CCE,
Hyderabad

a. For the period upto 9/2/2006, the supplies made to SEZ units are to be treated as export both for extending export benefits and for levy of duty in terms of SEZ provisions contained in Chapter XA of the Customs Act. - b. For the period from 10/2/2006, the definition of the term export under the Customs Act is not consistent with the definition of the term export under the SEZ Act. However, the definition of the term export under the SEZ Act shall prevail over the definition of term export under the Customs Act. Therefore, supplies made to SEZ from DTA units shall be treated as export.

AIT-2011-394-CESTAT
M/s Flextronics Technologies (India) Pvt. Ltd. Vs. CCE, Bangalore

Reliance of respondents on Rule 14 of the Credit Rules that interest under Section 11AB of the Act is payable even if CENVAT credit has been taken. In our view, said clause has to be read down to mean that where CENVAT credit has been taken and utilized wrongly, interest should be payable on the Cenvat credit taken and utilized wrongly. Interest cannot be claimed simply for the reason that the CENVAT credit has been wrongly taken as such availment by itself does not create any liability of payment of excise duty. 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.

AIT-2011-431-CESTAT
M/s Sepco Electric Power Construction Corporation Vs. Cestat, Delhi

Larger Bench: If a decision is based solely on single consideration or only on one aspect of law, then possibly it could be said that there is a mistake apparent from the record. However if a decision is based on several considerations and different propositions of law, then merely because in the process of arriving at the final decision, reliance was placed on some Judgments or proposition it can never be said that in the decision there is a mistake apparent from the record

AIT-2011-438-CESTAT
Kinetic Engineering Ltd. Vs. CCE, Pune

a certain amount of sales tax was payable under the sales tax laws when the goods was cleared from the factory and the same was a permissible reduction under the excise law. Much after the clearance of the goods, the sales tax laws were amended to provide for payment of net present value of the sales tax deferred in complete discharge of the sales tax liability. Such changes in sales tax liability on account of changes in sales tax law cannot be a cause for re-determination of the assessable value determined in accordance with the law of central excise as it stood at the time of removal of the goods. the abatement towards sales tax has to be allowed in terms of the sales tax liability (as per law) at the time of clearance of the goods. Such abatement cannot be subsequently altered or restricted to the net present value of sales tax subsequently paid in complete discharge of such sales tax liability. In other words, there is no cause for re-determination of assessable value on account of changes which arose in the sales tax law much after the clearance of the goods

AIT-2011-455-CESTAT
M/s. Nikhil Refineries Ltd. Vs. CC & CE, Visakhapatnam

Larger Bench: Referral Bench took note of the decision of the Tribunal in the case of CC & CE, Visakhapatnam Vs. Ruchi Infrastructure Ltd. reported in 2008 (224) ELT 477 (Tri.-Bang.) which held that the assessment of bulk liquid cargo has to be done on the basis of shore tank quantity and not as per Ullage report and also the decision of the Tribunal in the case of Mangalore Refinery & Petrochem Ltd. Vs. CC, Mangalore reported in 2006 (205) ELT 753 which held that the duty liability would be for entire quantity as indicated in the Bill of Lading and loss, if any was not to be considered.

AIT-2011-456-CESTAT
M/s. B.P.L. Display Devices Ltd. Vs. CCE, Ghaziabad

GTA services received by the respondent cannot be treated as their output service and since in terms of the provisions of Rule 3(4) of Cenvat Credit Rules, the Cenvat Credit could be utilised only for payment of service tax on output services or payment of excise duty on final products, the respondents have wrongly paid the service tax on the GTA serviced received by them through Cenvat credit

AIT-2011-457-CESTAT
M/s Kumar Arch Tech Pvt. Ltd. Vs. CCE, Jaipur

Whether Education Cess and Secondary and Higher Education Cess are leviable on DTA clearances made by a 100% EOU, even if such cesses were added while calculating the aggregate of duties of customs payable under Customs Act or any other law in force at the time of import of like goods

AIT-2011-460-CESTAT
Paul Merchants
Vs. CCE, Chandigarh & Others

(i) Are the provisions of Export of Service Rules, 2005 and Circulars issued by CBEC clarifying the scope of the said Rules in conflict with the meaning of the term "export" given by Article 286 (1) (b) of the Constitution of India and the following decisions of the Apex Court, namely,-

AIT-2011-485-CESTAT
M/s. Microsoft Corporation (I) (P) Ltd. Vs. CST, New Delhi

(i). Whether the impugned Business Auxiliary Service of promotion of market in India for foreign principal made in terms of Article 2 and 3 of the Agreement dated 01/07/2005 amounts to export of service considering Article 286 (1) (b) of the Constitution of India read with Apex decisions in the case of State of Kerala and Others Vs. The Cochin Coal Company Ltd. - (1961) 12 STC 1 (SC), Burmah Shell Oil Storage and Distributing Co. of India Ltd. and Other Vs. Commercial Tax Officers and Others - (1960) 11 STC 764 (SC) and the provisions of Export Service Rules, 2005 as well as Circular No. 141/10/2011 - TRU dated 13.05.2011 issued by C B E & C issued by C B E & C?

AIT-2011-493-CESTAT
M/s. Andhra Sugars Ltd. Vs. CCE, Guntur

Larger Bench: Can cement be considered as capital goods for the purpose of Cenvat credit when it is used for foundation / supporting structure for machinery in the light of erstwhile Central Excise Rules, 1944 / Cenvat Credit Rules, 2002 / 2004 ?


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