Bajaj Hindusthan Limited Vs CCE

CX - Assessee engaged in manufacture of sugar and molasses and was issued with a SCN wherein it was alleged that assessee had availed Cenvat Credit on input services in relation to civil construction of work, construction of office buildings, godowns, draining system and residential complex - It was alleged that services utilized for said purposes had no nexus with manufacture of final product - Admissibility of Cenvat Credit of service tax paid on construction of compound wall, construction of rest rooms and construction of dormitory for staff are settled issues, therefore, appeal allowed in respect of said three issues covered by commercial or industrial construction service - Insofar as the credit distributed by ISD is concerned, submissions by assessee established that services for which credit was distributed were eligible as per the definition of input service under Rule 2 (l) of CCR, 2004 - Penalty imposed by Original Authority is set aside: CESTAT - Appeal allowed: ALLAHABAD CESTAT

2018-TIOL-264-CESTAT-MAD

Arul Murughan Spinning Mills Pvt Ltd Vs CCE

CX - Assessee company is engaged in manufacture of cotton yarn - The revenue officials searched the assessee's premises, based on an intelligence tip that the assesse was clearing cotton yarn under the guise of hank yarn, the latter being exempted - Several other entities were searched as well, and cotton yarn was seized under the belief that they had been cleared by the assessee without payment of duty - From the assessee's premises, several documents were seized evidencing the maintenance of different sets of invoices for clearing cotton yarn in the guise of hank yarn, and thus evading payment of excise duty - Duty demand was raised with interest & penalty under Rule 25 of CER - Penalties were imposed on the other appellants under Rule 26 of the CER - The revenue alleged that the assessee manipulated its production registers, showing hike in production, when in fact it did not have the corresponding manpower to achieve such production levels - The revenue also alleged that the assessee could not have achieved such production levels, as it had only one 3 HP motor to run 20 reeling machines, whereas the 3 HP motor could run amaximum of 4 double sided reeling machines - Hence, a further duty demand with interest was raised for a different period, along with imposition of penalties u/s 11AC and 38A of the Act, and Rule 25 of CER, 2001 & Rule 173Q of CER, 1944 - Such deands were upheld by the Commr.(A) - Assessee showed clearances of cone yarn as hank yarn - Both the cone yarn invoice and hank yarn invoice have same serial numbers - The time of removal and vehicle number mentioned in both the sets of invoices tallied with each other - Thus, in the second SCN, a detail nature of the allegations were raised which is entirely different from the first SCN - Thus the basis for demand of duty in the first SCN and the second SCN is entirely different - The department relied upon 59 documents for issuance of the second SCN, whereas in the first SCN they have relied upon 25 documents - Henc, both SCNs are entirely different - Therefore the judgment in Nizam Sugar Factory Vs. Collector of Central Excise, Andhra Pradesh, relied by the assessee is inapplicable to the present case - Besides, u/s 110 of Customs Act, 1962 there is a time limit for issuance of SCN proposing for confiscation of the goods when the goods have been seized - Thus, the first SCN appears to have been issued by the department to comply with this statutory time limit and confining the proposal for confiscation, imposition of fine, penalty and duty demand to such allegation only - Though the date of recording of statements may be before issuance of first show cause notice (6.6.2002), the department would require more time for investigation, follow-up action, formulation of allegations based on such statements and invoices for issuing of the second SCN, raising the allegation of clandestine removal of goods and duty demand on this count - Hence, the second SCN is legal and proper and not hit by limitation - Hence, the impugned O-i-A merits no interference: CESTAT - Appeal dismissed: CHENNAI CESTAT

Archean Marbles And Tiles Pvt Ltd Vs CC

Cus - Assessee sought clearances of imported consignment of polished marbles under six bills of entry and discharged duty as indicated on EDI system - Noticing they are eligible for benefit of exemption under notfn 12/2015 and paid excess duty, they filed a letter for grant of excess amount paid as refund which was rejected by both the lower authorities - It is found that both the lower authorities have not considered the law as settled by High Court of Delhi in case of Micromax Informatics Ltd 2016-TIOL-978-HC-DEL-CUS - The law decided by High Court of Delhi is applicable in the case in hand - Revenue tried to distinguish said decision of High Court stating that Tribunal in case of CEAT Limited had distinguished the judgment which was relied upon by the Lordships - It is found that in the case in hand, bills of entry filed were after April 2011 and the said law has been considered by High Court of Delhi in case of Micromax Informatics Ltd. - Even the CBEC circular presented by revenue No. 17/2011-Customs , may not carry Revenue's case any further as said circular explains the factual position as to assessment prior to 4/2011 and the law on this has already been settled by High Court of Delhi in the case of Micromax Informatics Ltd: CESTAT - Appeal allowed: HYDERABAD CESTAT

2018-TIOL-260-CESTAT-DEL

Anil Kumar Vs CC

Cus - Main appellant filed a bill of entry for clearance of electric decorative lightings - The goods were examined and it was found that import consignments were consisting of goods with brand name "Diyas" and "mAntra" - On completion of enquiry, proceedings were initiated to re-value the current import consignments as well as past consignments of similar goods imported by the main appellant - Proposals for confiscation of goods as well as imposition of penalties under various provision of Customs Act, 1962 were also made.

Appellants have mainly contested the methodology adopted for arriving at the value by lower authority - Regarding the rejection of transaction value though they protested that all the imports are not from related parties there is no strong plea against the finding of relationship between M/s Inspired Lighting Pvt. Ltd., U.K. and the appellant - It is clear that brands of the goods were not declared in bill of entry - It is necessary for importer to declare the brand name of the product in customs document (bill of entry) so that the officer will have full details to examine the correctness of assessment - Shri Anil Kumar Anand is 100% owner of M/s Inspired Lighting Pvt. Ltd., U.K. who held the ownership of brand name Diyas - He is also Managing Director of the main appellant with 50% share holding - Even the other 50% is owned by close relatives - There were financial dealings like unsecured loans and flow of monetary benefit which was examined by the Original Authority in order to arrive at conclusion with the transaction is between the related parties having mutual interest in each other business and profit - It is submitted that the import is from three companies of which only one can be considered as related persons - This aspects requires re-verification and a clear finding by the Original Authority.

Regarding the contention of appellant that there were similar goods imported though with different brand names, for consideration of comparable value, they pleaded that Original Authority should have examined such value to arrive at assessable value for appellants also - It is apparent that different brand names carry different values - It is not practicable to have a comparison of one brand with another for Customs duty purpose - Such determination will be highly subjective - As such, the Original Authority is left with only option of arriving at the correct assessable value by backward calculation, which he did - Original Authority considered 15% on account of profit margin, 5% on account of post importation charges - He had also considered and allowed deductions on tax elements attributable to impugned goods - On overall analysis of evidences and discussion of Original Authority, no serious infirmity found in action of Original Authority in both rejecting the declared value and also re-fixing the value for Customs Duties as well as imposing penalties: CESTAT - Appeals dismissed: DELHI CESTAT