2018-TIOL-48-CESTAT-MUM

Spentex Industries Ltd Vs CCE  

CX - Refund of rebate - application filed on 12.11.2010 - While sanctioning Rebate to the appellant on 08.02.2011, the same was adjusted against an outstanding confirmed demand - in appeal, assessee contended that since the said demand has been stayed by Tribunal, such adjustment was devoid of merits - Commissioner(A) set aside the order of original authority and subsequently amount was actually refunded on 29.12.2011 - appellant claimed interest for the period from date of sanction on 08.02.2011 - Commissioner(A) observed that since refund was sanctioned within 3 months from date of filing the claim, though not actually given, interest liability would not arise - appeal to CESTAT.

Held: Interest liability of Revenue would start from the expiry of three months period from the date of filing of refund claim and would get over only with the actual claim having been given to the assessee - responsibility of the officers does not stand over by passing orders on the file itself - action of adjudicating authority is with an intention to delay handing over the refund to the assessee - order set aside and Assistant Commissioner directed to pass order afresh - Appeal disposed of: CESTAT [para 4] - Appeal disposed of: MUMBAI CESTAT

2018-TIOL-47-CESTAT-MUM

CCE Vs Varroc Polymers Pvt Ltd

CX - Commissioner(A) allowed the appeal held that the assessee is entitled to CENVAT Credit of service tax paid on outward transportation of their final product up to the customers premises - Revenue in appeal.

Held: Said issue has been the subject matter in various decisions of the Tribunal as well as High Courts wherein it is laid down that where the sale takes place at the buyers place, the service tax paid on GTA services availed for moving the goods from the factory premises to the buyers premises is cenvatable - Commissioner(A) has also relied on the Board Circular 988/12/2004-CX while allowing credit - by this appeal, Revenue is seeking to argue against the Circular issued by the Board and it is a settled law that the same is not permissible - Revenue appeal rejected: CESTAT [para 2, 3] - Appeal rejected: MUMBAI CESTAT

2018-TIOL-46-CESTAT-MUM

Vvf India Ltd Vs CCE  

CX - Appellant availing CENVAT credit of service tax paid on services like erection, commission, repair and maintenance services – Case of revenue is that the input service provider had also included the cost of the material supplied while providing services and paid service tax on the said value by mistake and, therefore, credit to the said extent of tax paid is inadmissible – appeal to CESTAT.

Held: Revenue did not raise any objection at the time of receipt of wrong service tax paid by the supplier - It is a settled law that assessments cannot be re-opened at the service recipients end and whatever has been paid by the service provider is available as a credit to the service recipient – impugned order set aside and appeal allowed with consequential relief: CESTAT [para 3] - Appeal allowed: MUMBAI CESTAT

 

CUSTOMS SECTION

DGFT PUBLIC NOTICE

dgft17pn049

Modification of SION existing at Sl. No K 36 for export product "Hulled Sesame Seeds"

CASE LAWS

2018-TIOL-52-CESTAT-DEL

Brigadier R Deshpande Vs CC

Cus - Assessee imported certain goods and filed Bill of Entry - They declared the goods as Multiplexor Satellite Receivers, test and measurement equipment and attached six invoices covering 19 items imported - There are two major issues to be decided namely the classification of the imported goods; whether 8543 as ordered by adjudicated authority or 8525 as claimed by assessee and secondly whether the value of software already embedded in equipment as well as service charges are required to be included in assessable value - As regards to classification, individual classification of these equipments were also indicated but during examination of goods, it was found that only 8 number of goods were found as several cards were already assembled and embedded into the main unit - The investigation by department revealed that the order placed by assessee on M/s. Tandbarg, UK supplier is for supply of a suite of equipments which will function together as 'Head end' for cable TV operations - After inter-connecting all the imported equipments these were to be used for transmission of cable TV under the Conditional Access System - The function performed by 'Head End' is that of transmission of TV channels over cable TV - Such a function will be clearly covered by heading 8525 - Similar equipments were held to be classified under 8525 in case of Set India Pvt. Ltd. - Similar views have also been held in case of Multi Screen Media Pvt. Ltd. 2015-TIOL-169-SC-CUS - By following the said decisions, imported goods are rightly classifiable under 8525 - The differential duty payable is required to be requantified and for this purpose the case is remanded

As regards to valuation, since the software is already incorporated in imported goods the value of same is required to be added to the transaction value - Likewise the purchase order also includes the process of installation of equipment after importation - In view of discussions, that addition of the above charges paid by assessee to supplier, to the declared value for purpose of charging duty is upheld.

In view of mis-declaration established in respect of valuation, the imported goods will be liable for confiscation under section 111 of Customs Act and the assessee will also be liable for penalty: CESTAT - Appeals partly allowedL DELHI CESTAT

2018-TIOL-51-CESTAT-DEL

Rama Kant Sahu Vs CC

Cus - A container had arrived at ICD, Tughlakabad, Delhi but the importer M/s. Shivani Industries had filed bill of entry after a delay of more than one month through their CHA M/s. Suman Kumar Jha - The importer had declared 13 types of 'Wanli' brand radial car tyres conforming to BIS standards and each bearing MRP, whereas, intelligence suggested that cargo contained branded tyres, without marking of MRP / BIS certification as required under law, for motor vehicles without declaring them with their correct value with intent to evade customs duty - Concealment of other contraband / high valued items in the said container was also suspected - On examination of said container, a huge quantity of cigarette and scotch whisky was found concealed behind the motor vehicle tyres - Further goods were found grossly mis-declared with intent to evade Customs duty, and hence seized under section 110 of the Customs Act, 1962 as they were liable for confiscation under section 111 of the Customs Act, 1962 - The CHA as well as G Card Holder have filed the bill of entry and carried out the customs formalities on the basis of documents handed over to them by Shri Malkit Singh, proprietor of the importer firm - The investigation has not unearthed any evidence to support the allegation that the CHA firm or the G card holder was in any way involved in the smuggling of goods - There is also nothing on record to show that they were aware of the fact that the containers were filled with contraband in addition to declared goods - It is also brought on record that proceedings initiated against CHA under CHALR has also been concluded in favour of CHA - There is no justification for imposition of penalty on M/s. Rama Kant Sahu, CHA and Shri Suman Kumar Jha G Card Holder and hence imposed on both these persons are set aside.

The investigation by Department has established that Shri H S Chadha was the mastermind behind the smuggling of goods - He was administratively and financially controlling and supervising the whole scheme of things right from obtaining the IEC in the name of Shivani Industries through Inderjeet Singh - He also mislead the department by providing false credentials of the supplier firm in Dubai From the fact that the details of all smuggled goods were found in Shri Chadha's computer seized by the officials and also the fact that photos of the smuggled goods were taken with his mobile phone clearly proves that he was actively involved in the outright smuggling of goods for which Shivani Industries was the front - No reason found to interfere with penalty imposed on Shri H S Chadha: CESTAT - Appeals partly allowed: DELHI CESTAT