M/s. Nirulas Corner House Pvt. Ltd. („the Appellants?) were engaged in the food and confectionary business. They had entered into an agreement with M/s. Sagar to permit them to run restaurants in the name of “Nirulas” as per the specified plans with regard to the location of the restaurant, area, interiors and other details. As per the terms of the agreement, it is the Appellants who decide the items that are to be sold by the restaurant, the method of preparation of the items, the quality and the prices of the items. The Appellants have even placed their employees in the restaurants to supervise the operations.
The appellant appears to have performed service in India for ultimate consumption thereof in India by its clients/customers in India. The service is destined to exhaust in India and extinct soon after performance thereof. Post performance liability only remains to be discharged by foreign principal through the appellant in India. Thus the beneficiaries of services were located in India for ultimate consumption of the service provided in India.
6. We have thoroughly gone through the averments of both the sides. To appreciate the case of the Revenue, Revenue should have brought to record that Nyco is a consulting engineering firm providing engineering service commercially having been manned by professional qualified engineers. But primary object appears to be sharing of know how to participate in a joint venture to enjoy fruit
In the present case, the only ground on which it was proposed to deny Cenvat Credit on Service Tax is the non-installation of mobile phones in the appellant’s premises. Neither is there any ground in the notice nor any finding that the calls made from the mobile were not relatable to the business of the assessee. In this view of the matter, the judgment of the Hon’ble Gujarat High Court squarely covers the issue in favour of the appellant. Following the same, I set aside the impugned order and allow the appeal.
Normally vehicles changed hands from the manufacturer to the customers through the authorized dealers and the customers can arrange finance independently through any other person; if the third party has arranged the finance to the buyer of the vehicle, the services of the said third party would undoubtedly come under the business auxiliary services.
Lafarge India Pvt. Ltd. V. CCE (CESTAT Delhi) – Merely credit was taken by the assessee and not utilized and not taken any advantage of such credit, payment of interest is not sustainable. There is no allegation that the appellant utilized or taken any advantage of the credit and therefore recovery of interest is set aside.
Whether the assessee is entitled to take cenvat credit on the basis of supplementary invoice of the manufacturer in case additional duty of excise is paid suo motu on receipt of the show cause notice alleging wilful mis-statement or suppression of facts or contravention of the provisions of the Central Excise Act or the Rules with intent to evade duty invoking proviso to Sub-Section (1) of Section 11A of the Act?
CC&CE Vs. Beekay Enterprises (CESTAT Delhi) – Penalty can be imposed within the framework of Section 11AC of the Act. Rule 25 of the Central Excise Rules which deals with penalty also can be applied subject to provisions of Section 11AC. As indicated above, penalty can be imposed when non payment or short payment of duty etc. was actuated by fraud, collusion, wilful mis-statement or suppression of facts or contravention of any of the provisions of the Act or rules made thereunder “with intent to evade payment of duty”. Even if a case of suppression of facts or contravention of any provision were made out, it is clear that suppression or contravention per se would not justify imposition of penalty unless it was made intentionally in order to evade payment of duty.
Even where a minimum penalty is prescribed, the authority has discretion to impose a lesser penalty depending on the facts and circumstances of the case. The amount mentioned in Rule 173Q(1) of the 1944 Rules or Rule 25(1) of the 2002 Rules is the maximum, and not the minimum. The amount shall not exceed the duty determined; if it is more than rupees five thousand, or rupees five thousand if the duty determined is less than rupees five thousand.
The assessment under the Central Excise law in the name of partnership firm will virtually, for all purposes, be assessment of the partners of such firm who will be jointly and severally liable for the duty liability that was incurred during the currency of their partnership venture of manufacturing excisable goods. The decisions of this Tribunal taking a contrary view are no longer good law and will stand overruled.
