CESTAT CHENNAI BENCH vide Final order No. 951/09 dt 11/08/09 in re: VISHNU PAPER PRODUCTS PVT. LTD vs CCE, PONDICHERRY held that on a careful reading of the relevant rule, Rule 4(2)(a) of the CENVAT Credit Rules, 2002, there is no bar for availment of 100% credit of duty paid on capital goods in the following financial year i.e. in the financial year following the year of the receipt of the capital goods. This view finds support from the Tribunal’s decision in M/s. KEIHIN FIE PVT LTD. vs CCE, PUNE.

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_szb_c_951]

CESTAT JUDGEMENTS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS capital goods, CENVAT, credit, financial year

CESTAT CHENNAI BENCH in the final order no.952 to 955/2009 dt 11/08/09 in re: AXLES INDIA LTD & TAFE LTD vs CCE, CHENNAI I & II held that the issue in dispute in the present appeals namely as to whethr interest is payable on differential duty arising as a result of issue of supplementary invoices stands settled against the assessees by a recent decision of the Apex Court in CCE, PUNE vs SKF INDIA LTD [2009-TIOL-82-SC]. On hearing both sides and perusing the records and the judgement of the Apex Court cited supra, the demand of interest was held as sustainable.

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_szb_c_052_955]

CESTAT JUDGEMENTS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS differential duty, interest, supplimentary invoices

CESTAT CHENNAI BENCH vide F.O. No. 845/09  dt 13/07/09 in re: CCEX CHENNAI vs PARACOAT PRODUCTS (P) LTD held as follows : -

QUOTE : The issue in dispute in this appeal is the eligibility to CENVAT / MODVAT credit on plastic crates and bins used as material handling equipment within the factory for internal transportation of goods.

I have heard both sides and find that the issue stands now settled in favour of the assessees by decision of the Larger Bench in BANCO PRODUCTS (India) LTD vs COMMISSIONER OF CENTRAL EXCISE, VADODARA-I [2009-235-ELT 636 (Trib-LB). The Tribunal has held that CENVAT / MODVAT credit is admissible on plastic crates as capital goods and the Larger Bench has also held that the plastic crates are inputs for the purpose of eligibility of MODVAT credit. Following the decision of the Larger Bench cited supra, I uphold the impugned order and reject the appeal. UNQUOTE

In the following Final Orders also, the same Chennai Bench took the same decision as mentioned above : -

F.O. No. 842/09 dt 14/07/09  in re: CCE CHENNAI vs FIEM INDUSTRIES LTD  & 836/09 dt 13/07/09 in re: CCEX PONDICHERRY vs LEO FASTENERS LTD. 

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citations taxind_2009_szb_c_845 , taxind_2009_szb_c_842 & taxind_2009_szb_c_836]

TRIBUNAL ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS bins capital goods, CENVAT, credit, input, MODVAT, plastic crates

CESTAT CHENNAI BENCH vide F.O.848-849/09 dt 15/07/09 in re: CCEX [ST] CHENNAI vs VISTEON POWERTRAIN CONTROL SYSTEMS LTD. & I.M. GEARS P. LTD held as follows : -

QUOTE : I have heard both sides and find that the issue is now no longer RES INTEGRA as it stands settled in favour of the assessee and against the Revenue by the decision of the Larger Bench of the Tribunal in the case of CCE MUMBAI vs GTC INDUSTRIES LTD [2008-12-STR-468 -Tri.-LB]. The Bench has held that outdoor catering service is input service and, therefore, CENVAT credit is admissible thereon. Following the ratio of the above decision, I uphold the impugned order and extend the credit, and dismiss the two appeals. UNQUOTE

[for full text of the judgement, please visit http://www.taxesinindia.com  and click on the citation taxind_2009_szb_c_848_849]

TRIBUNAL ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS catering, CENVAT, credit, outdoor, SERVICE TAX

CESTAT CHENNAI BENCH vide Final Order No. 850-851/09 dt 15/07/09 in re: LUCAS TVS LTD & INDIA JAPAN LIGHTING PVT. LTD vs CCEX CHENNAI held as follows : -

QUOTE : The issue in dispute in the present case, namely, as to whether interest is leviable on differential duty payable on the strength of supplimentary invoices stands settled against the assessee by a recent decision of the Apex Court in COMMISSIONER OF CENTRAL EXCISE PUNE vs SKF INDIA LTD. The Apex Court has held that interest is leviable on delayed or deferred payment of duty for whatever reasons and since differential duty was paid only later when the assessee issued supplimentary invoices to its customers, it was clearly a case of shrt payment of duty and thus the payment of differential duty clearly fell under sub-section (2B) of Section 11A and attracted levy of interest under Section 11AB of the Central Excise Act. Following the ratio of the decision cited supra, the impugned orders are upheld and the appeals are dismissed. UNQUOTE.

Same decision was taken by the same bench vide F.Os.  No. 843-844/09 dt 14.07.09 in re: AXLES INDIA LTD vs CCEX CHENNAI and 837/09 DT 13/07/09 in re : REDEEMA vs CCEX CHENNAI.

[for full text of the judgements please visit http://www.taxesinindia.com and click on the citations taxind_2009_szb_c_850_851 , taxind_2009_szb_c_843_844 &  taxind_2009_szb_c_837 ]

TRIBUNAL ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS differential duty, interest, supplimentary invoices

CESTAT PRINCIPAL BENCH AT N. DELHI while delivering the final order no. 665/2009-SM (BR) on 23/06/09 in re: CCEX ALLAHABAD vs MODERN LAMINATORS LTD, held as follows : -

QUOTE : The only issue involved in this case is as to whether the Respondent are eligible for Cenvat credit of Service Tax paid on the Outward transportation of the finished goods from the factory gate to the Customer’s premises. I find that this issue now stands settled in favour of the Respondent by the Larger Bench of the Tribunal in the case of ABB & Ors. Vs CCE & ST, BANGALORE [2009-15-STR-23-TRIB.LB]    wherein it has been held in clear terms that outward transportation of goods from the place of removal is an input service as it is covered by the expression “activities relating to business” used in the definition of “input service” and that the issue of valuation and issue of Cenvat are independent of each other and have no relevance to each other. In view of this, following the Larger Bench’s decision , I hold that there is no infirmity in the impugned order. The Revenue’s appeal is dismissed. The cross objection filed by the Respondents also stands disposed off.  UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_nb_sm_665]

CESTAT JUDGEMENTS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS ACTIVITIES, BUSINESS, CENVAT, INPUT SERVICE, OUTWARD, RELATING TO, SERVICE TAX, TRSPORTATION

CESTAT CHENNAI BENCH  vide Final Order No. 772/09 decided on 26.06.09 in re: CCEX CHENNAI vs HEMA ENGG. INDUSTRIES LTD observed as follows:-

QUOTE:

I have carefully considered the submissions and perused the case records In the instant case the Revenue seeks to vacate the orders of the lower authorities holding that plastic crates were eligible for CENVAT credit as inputs Vide the impugned order the Commissioner relied on an earlier order of his in the case of Leo Fasteners (Order- in-Appeal No. 106/2006 (P) dt 19.12.06) wherein he had allowed CENVAT credit on plastic trays as capital goods and sustained the order of the original authority in the instant case I find that in the decision of the Larger Bench of the Tribunal cited supra the tribunal had held as follows:-

“ We fully agree with the above judgment on the issue The Plastic crates are used for transporting storing of the goods in the factory of production proper storage of inputs is essential for efficient manufacturing process and in absence of proper facilities for storage and transportation the same will affect the manufacturing process further the hon ble supreme Court in the case of M/s Rajasthan State chemical works has observed of that the manufacturing process starts with the drawing of water from the reservoir By applying the same fact it can be safely concluded that the manufacturing process starts with the issuance of the inputs the from the stores and their further transportation to the production platform is only a part of the process of manufacturing integrally related to the final production in absence of the delivery of the raw material to the manufacturing platform the process cannot start Such delivery of the goods includes transportation of the goods by plastic crates Similarly finished products are required to be stored in a bonded store room the plastic crates are again used for such transportation. As such we are of the view that the plastic crates would also be eligible for Modvat credit as input.    UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com  and click on the citation taxind_2009_szb_c_772]

TRIBUNAL JUDGEMENTS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS capital goods, CENVAT, inputs, plastic crates

CESTAT CUSTOMS APPEALS BRANCH AT N. DELHI vide Final Order No.ST/191/2009 CU (DB) dt 21/05/09 in re: AMITDEEP MOTORS vs CCE ALLAHABAD held as follows: -
QUOTE : We have gone through the clearing and forwarding agency definition appearing under Section 65 (25) of the Finance Act, 1994. The nature of transaction between Maruti Udyog and the buyer were sales of goods upon the order procured by the Maruti dealer which is the appellant. The invoices shown to us as appearing at page 114 to 122 of the appeal folder were subject matter of taxation under Cental Sales Tax Act, 1956. The invoices clearly reflect that the buyer was the Commandant Central Ordinance Depot and movement of goods were from Gurgaon by Maruti to the buyer and that was at the risk of the buyer on delivery at Gurgaon itself. There is nothing available on the record to appreciate that the appellant acted as a consignee of the goods by the consignor Maruti Udyog Ltd. We are, therefore, compelled to hold that a sale transaction cannot be converted into a service provided under the category of clearing and forwarding service. All the elements of sale of goods being present in these transactions, the appellant should certainly be stated to be noservice provider of taxable service in this appeal. Also the appellant’s case gets supports from the Larger Bench decision cited by the Ld. Consultant as aforesaid. [2006(3) STR 321 (Tri-LB)--Revenue lost its appeal before the Hon'ble High Court of Punjab & Haryana in the case of CCEX  JALANDHAR vs UNITED PLASTOMARS  [2008(10)str 229 (P&H)].

[for full text of the judgement please visit http://www.taxesinindia.com  and click on the citation taxind_2009_pb_st_191]

CESTAT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS CLEARING AND FORWARDING AGENCY, ELEMENTS OF SALE OF GOODS, FINANCE ACT 1994

CONSIDERATION FOR PROVIDING TECHNICAL KNOW-HOW

CESTAT AHMEDABAD BENCH vide Final order No. A1192/WZB/AHD/09 decided on 21/04/09 in re : INDO NIPPON CHEMICALS CO. LTD vs CCEX VADODARA held as follows :-

QUOTE : The lower authorities have taken a stand that assessee did not produce any evidence to show that what was sold was techmical know how. However, there is no indication to show whether the officers of the department conducted proper investigation to bring out the truth. The department has not collected evidence to show that appellants are covered by the definition nor they have made efforts to show that the service provided was that of consulting engineer by conducting proper investigation. The law gives sufficient powers to officers to conduct enquiries and investigations to bring out the truth and without making any efforts, on the basis of non-production of documents, on the basis of assumptions and presumptions, a case cannot be made out against the appellants which the case here. In the absence of any evidence to show that either the appellants are covered by the definition or the service provided by them is that of consulting engineering, we do not find any reason to uphold the orders of the lower authorities and accordingly allow the appeal with consequential relief to the appellants. UNQUOTE

[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2009_wzb_ahd_A1192]

TRIBUNAL JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS CONSIDERATION, KNOW-HOWCONSULTING ENGINEER, TECHNICAL