Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta
1. Heard both sides and perused record. The stay application is directed against demand of service tax as well as penalty.2. The service tax was demanded in regard to cargo handling service rendered by the appellant.3. The contention of the appellant all along has been that it is not rendering cargo handling service; instead it is leasing out pay loaders. It is also the contention that cargo handling relates only to handling of international cargo. A further contention is about jurisdiction of the adjudicating authority.4. Perusal of the agreement dated 14th December 2002 between the MCL Complex and the appellant makes it clear that this is not an agreement for hiring of pay loaders. It includes all aspects of handling coal.Therefore, we are not able to accept the contention that the appellant is only leasing out pay loaders. We are also not able to find any restriction in the statute, limiting the levy to international cargo handling. The jurisdiction dispute is also not of much rele...
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta
1. The duty-demand is upon a finding that the deduction claimed towards Sales Tax is not on 'actual' basis, but on payable basis. There is also demand on the ground that freight charged is more than the actual freight incurred.2. Prima facie, there is no merit in the demand, because the deduction permissible is of taxes payable. Further, it is well-settled that in regard to freight, differences arising between actual and charged cannot form part of the assessable value, since excise is a levy on manufacture and cannot take in any payments towards unconnected items like freight.3. The Stay Petition is allowed and recovery stayed till disposal of the appeal....
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta
2. The dispute is about the classification of motor vehicle items supplied by the applicant/appellant company to M/s. Vehicle Factory, Jabalpur. The duty-demand has been made by classifying the goods under heading 87.06, while the assessee had paid duty after classifying the items under 87.08.3. A perusal of the relevant records shows that various motor vehicle parts like Engine Frame, Cabs, Gear Boxes, Axles etc. were supplied separately and not after assemblying. Heading 87.06 is specific for "chassis fitted with engines". Since the parts in question are not assembled in the assessee's factory and cleared as assembled units they cannot come under 87.06.4. In view of the above, the demand is prima facie not sustainable.Stay Petition is allowed and recovery stayed till disposal of the appeal 5. Since the dispute is recurring in nature, there shall be a direction to post this appeal for early hearing on 12-3-2007....
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Reported in : (2007)(213)ELT581Tri(Kol.)kata
1. Learned D.R. appearing for the Revenue has submitted that there was no self-speaking terms in the Appellate Order as to whether the other two stock registers maintained by the assessee/respondent company, can be considered to be reliable statutory records or not. He did not dispute the maintenance of the RG-12 register for recording the stock.But he contended that the other two stock registers, which are neither statutory nor relatable to the Excise Law, should not have been the basis to grant relief by the learned First Appellate Authority to the respondent company. If such practice of maintenance of the so-called registers is admitted, that will gradually gain recognition and there shall be abuse of the process of law, which should be brought to an end. If such type of registers, which is not prescribed by law, is maintained by the assessee, that might give shelter for clandestine removal to explain shortage or excess of goods in the factory. Such oblique purpose cannot be well s...
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta
1. Being aggrieved by the Order-in-Appeal Nos. 278-79/BBSR-1/2003 dated 30-10-2003 passed by the learned Commissioner (Appeals), Bhubaneswar-I, Revenue came in appeal for resolution of the dispute as to whether the goods in question (computer and its allied equipments) were manufactured by Respondent or assembling done to manufacture such goods while such question was answered negatively by the learned first Appellate Authority in terms of aforesaid order. The matter in controversy arising out of common cause relating to the assessee as well as its owner, ended with two different proceedings against them before the learned adjudicating authority who passed a common order for both the cases and such common order was subject-matter of first appeal. The learned first appellate authority had also disposed both the appeals by aforesaid common order. Accordingly the cause being same, both appeals of Revenue is also dealt by this common order having been heard analogous.2. The Id. DR at the ...
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta
1. The learned Authorised Representative for the applicant/appellant company submitted that delay in deposit of the duty directed to be made in terms of the Stay Order No. 23/KOL-III/06 dated 21-4-06 followed by Variation Stay Order No. 35/KOL-III/06 date 31-5-06 - passed by the learned Commissioner of Central Excise, Appeal-I, Kolkata, did not call for dismissal of the appeal before him in terms of the impugned Order dated 31-8-06. Accordingly the demand in question may not be realised till hearing of the appeal on merit. There was admittedly delay in deposit of the ordered amount. Also he submitted that there is no provision in law either in Section 35A or in Section 35F, which permits the learned first Appellate Authority to dismiss the appeal for delay in deposit of the duty ordered in terms of the Stay Order. Such a dismissal would amount to denial of justice and the learned Commissioner (Appeals) in exercise of ancillary and incidental power of waiver of pre-deposit could have h...
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta
1. Ld. DR appearing for the Revenue has submitted that reimbursement expenses whether shall forms part of the gross value of the taxable service is subject matter of decision in this appeal. According to Revenue, misconstruing Board Circular, ld. First Appellate Authority granted relief to the Respondent.2. While hearing appeal, tenability of such relief can be gone through on the touch stone of law.3. On the other hand, ld. Representative for the Respondent, has submitted that the ld. Commissioner (Appeals) having discussed the matter in detail came to the conclusion that reimbursement of expenses were legitimately admissible for deduction from the gross value. In such circumstances, there is no necessity for stay of operation of the first appellate order as well as recover demand from the Respondent.4. Ld. Commissioner (Appeals) having passed an elaborate order, relying on Board's Circular, has concluded that the statute being in infancy stage at the relevant time, no penalty was le...
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