NOTIFICATIONS
cnt75_2017
CBEC notifies new Customs exchange rates effective from August 04
dgft17pn015
Export policy of Muli-bamboo and bamboo products - Proforma for issue of Certificate of Origin (COO) regarding
OFFICE ORDER
CBEC amends Chain of Nomination for certain Pr Chief Commissioners & Chief Commissioners
Charter of Functions assigned to Directorate General of Goods and Service Tax on introduction of Goods and Services Tax
CASE LAWS
2017-TIOL-2783-CESTAT-DEL
MITHAILAL GUPTA Vs CCE: DELHI CESTAT (Dated: July 3, 2017)
CX-Refund of pre-deposit - Even though the Vasiyatnama mentions that the appellant will inherit the tobacco business of Shri Ram Das Gupta, Proprietor after his death, the appellant has failed to produce the probate certificate issued by the appropriate court in his favour confirming the fact that he is the legitimate successor of Shri Ram Das Gupta for the purpose of claiming the refund amount - in the absence of such a probate certificate issued by the appropriate court, no reason found to interfere with the impugned order rejecting the refund claim- appeal is dismissed: CESTAT [para 8, 9]
Appeal dismissed
2017-TIOL-2782-CESTAT-DEL
MANGALAM CEMENT LTD Vs CCE & ST: DELHI CESTAT (Dated: July 3, 2017)
CX - Dispute is with reference to the eligibility of cenvat credit ofST paid on freight charges from the depot to the customer's premises– department of the view that the credit for the input services will be allowable only upto the place of removal –appeal to CESTAT.
HELD - Cement is cleared on payment of duty from the appellant's factory to the depot from where it is sold to various customers – perusal of the purchase orders reveal that the goods are delivered on FOR basis by the appellant - adjudicating authority in his O-i-O has also recorded the finding in para 5.3.3 that delivery of goods is on FOR basis -the amended definition of input services w.e.f. 1.4.2008 allows cenvat credit on input services only upto the place of removal -in the present case, since the delivery is on FOR basis, the place of removal is to be considered as the customer's premises -consequently, the ST paid on freight will be available - impugned order set and appeal allowed : CESTAT [para 5, 7]
Appeal allowed
2017-TIOL-2781-CESTAT-DEL
HINDUSTAN ZINC LTD Vs CCE: DELHI CESTAT (Dated: July 4, 2017)
CX–Appellants are engaged in manufacture of zinc and lead concentrates and have a concentration facility at Dariba where they are mining ores and concentrating the same, before sending them to their captive smelters for use in mines -they are drawing water from various dams in the vicinity of factory and pipelines have been laid from the tanks to the mines -cenvat credit of duty paid on such pipes was availed by the appellant -revenue of the view that such cenvat credit are not allowable since the pipes were not used in the factory of the appellant;that invoices were in the name of contractor who executed the work of laying the pipeline for the appellant, hence credit inadmissible – appeal to CESTAT.
HELD - Definition of ‘capital goods' as per rule 2(a) of CCR, 2004 clearly includes the pipes and fittings thereof used in the factory of the manufacturer - the mines were for mining of ore and are captive mines attached to the appellants factory - the pipelines from the dams, are for taking water to be used in mines - it is fairly well settled that captive mines attached to the factory can be considered as a part of the factory premises - since the pipe line is necessary for manufacturing process, such pipes will have to be considered as having been used in the factory premises - cenvat credit allowable –invoices clearly indicate the appellantas consignee - no reason to deny such credit – appeals allowed : CESTAT [para 5, 6, 7]
Appeals allowed
2017-TIOL-2780-CESTAT-BANG
FORBES GOKAK LTD Vs CCE, C & ST: BANGALORE CESTAT (Dated: May 3, 2017)
CX – Appellant, a 100% EOU, had manufactured and cleared cotton yarn out of indigenous raw material to DTA on payment of duty at the rate of 8% BED by availing notification no.55/91 instead of following the procedure laid down in notification no.8/97-CE dated 1.3.1997 as amended wherein the duty payable is the aggregate of the duties of excise liable under section 3 of CEA – SCN issued demanding differential duty of Rs.3.57 lakh– duty confirmed, penalty of Rs.20,000/- imposed u/r 173Q of the CER, 1944 –Commissioner (Appeals) confirmed the demand but dropped the penalty – appeal to CESTAT.
HELD - Circular dated 19.10.2000, clarifying that AED would be on yarn manufactured by a 100% EOU from indigenous raw materials and cleared into DTA, has been quashed by the Tribunal in the case of Indocount Choongnam Textiles Ltd. by relying upon the decision of the Supreme Court in Nahar Industrial Enterprises Ltd. [2004-TIOL-68-SC-CX] - further, the Board had issued a circular no.384/17/98 dated 20.3.1998 wherein it has clarified that an assessee would be eligible to claim exemption either under notification no.8/97-CE dated 1.3.1997 or notification no.55/1991-CE and the impugned order has failed to follow the directions of the Board as well as the decision of the Tribunal cited above –It is settled law that when there are two notifications available, it is the option of the assessee to follow any one of them which is more beneficial to him - impugned order is not sustainable in law and, therefore, set aside – appeal allowed : CESTAT [para 6]
Appeal allowed
2017-TIOL-1473-HC-MUM-ST
BPL BBC JOINT VENTURE Vs CST: BOMBAY HIGH COURT (Dated: July 3, 2017)
ST –CESTAT finding reasons given for condonation of delay to be sufficient and condoned the delay, however, directed the applicant to deposit the ST as demanded in the SCN – Later, CESTAT dismissing appeal for non-compliance –present appeal was filed against the order passed by the Tribunal directing pre-deposit – the appeal was filed against the O-i-O on contentious issues – main contention of the appellant is that even the service of Show Cause Notice was not made; that the order in original is an ex-parte order - considering the bona fides shown, the Court is inclined to exercise discretion in favour of the appellant –appellant directed to deposit within a period of six weeks – on deposit of the amount, the order dismissing the appeal shall stand quashed and set aside and the appeal shall be restored to its original position – appeal allowed in view of the above terms: High Court [para 5, 7, 8]
Appeal disposed of
2017-TIOL-1472-HC-MAD-CX
TABLETS INDIA LTD Vs CESTAT: MADRAS HIGH COURT (Dated: June 22, 2017)
CX- Refund - Valuation of Physician Samples - T he assessable value of the physician's sample can only be based on the actual cost of production to the assessee - the assessable value, as indicated in the 2002 circular, is 115% of the cost of production - the Tribunal having come to this conclusion, ought not to have taken recourse to the 2003 circular - revenue's argument that, because the assessee was not able to furnish the break-up of factory overheads that the Tribunal was compelled to take recourse to the 2003 circular, does not seem to emerge upon reading of the judgment of the Tribunal - as a matter of fact, the Tribunal quite clearly, seeks to apply the 2003 circular which adverts to the CAS-4 methodology -furthermore, it appears, the Tribunal only to obtain more clarity qua the ascertainment of cost of production has remanded the matter to the adjudicating authority - the impugned order deserves to be set aside and is ordered accordingly -the matter is, however, remanded to the adjudicating authority for processing the assessee's refund claim in accordance with the principles reflected in the 2002 circular which sets the assessable value at 115% of the cost of production -therefore, the questions of law as framed are answered in favour of the assessee and against the revenue: HIGH COURT [para 14, 15, 16]
Appeal disposed of
