CENTRAL EXCISE SECTION

2018-TIOL-176-HC-MUM-CX + Story

M K Trading Co Vs UoI

CX - Section 35B of the CEA, 1944 - Appeal dismissed by CESTAT on ground of maintainability; that amount involved in dispute does not exceed Rs.50,000/-, ROM also dismissed, hence appeal before High Court.

Held: Discretion vesting in the tribunal must be exercised judiciously and not capriciously - It is improper to throw out a litigant on such a technical ground after the appeal is entertained and kept pending. Once the appeal was admitted in this case and kept pending, then, no useful purpose is served by dismissing it at the final hearing on the ground of maintainability - refusal to decide the appeal on merits was vitiated by an error of law apparent on the face of the record - appeal restored to the tribunal's file for adjudication on merits in accordance with law - appeal filed before High Court disposed of: HC [para 7, 8] - Appeal disposed of : BOMBAY HIGH COURT

2018-TIOL-175-HC-MUM-CX

Wipro Enterprises Pvt Ltd Vs CCE

CX - Penalty - Assessee contested the penalty on the ground that even prior to the SCN could be issued the credit wrongly availed of was reversed and the duty as also interest was paid - Tribunal in maintaining concurrent orders, namely, that of Adjudicating Authority and Commissioner (A) held that assessee is very well conversant with the process and that is clear from memo of appeal - Every time the inputs are cleared as such the assessee is required to make invoice and invoice contains the column where the duty reversed is to be mentioned - It is not something which can slip out of mind inadvertently - Once the finding was that the short payment was for reasons of fraud, collusion or any mis-statement or suppression of facts particularly suppression then the Tribunal did not allow assessee to canvass an argument that Rule 15(2) of CCR, 2004 is inapplicable - No perversity or error of law apparent on the face of record in the reasoning of Tribunal: HC - Appeal dismissed : BOMBAY HIGH COURT

2018-TIOL-174-HC-KOL-CX

Shree Uma Iron Foundry Vs CCE

CX - Limitation - Assessee is in appeal against order of Tribunal for not considering the point of limitation taken in the ground of appeal before it - If a point is taken in grounds of appeal and that point goes to the root of controversy, then the adjudicating or the appellate forum has to spell out clearly its finding on that factor - Any inference on the part of the quasi judicial forum as regards consideration of that factor would be an exercise in speculation, which court decline to undertake - Assessee submits that the part of order by which Tribunal set aside imposition of penalty ought to be retained as in this appeal, that part of the order is not under challenge - Considering the ground on which the decision of Tribunal found to be flawed, such truncated relief cannot be granted - Impugned order set aside and matter remanded to Tribunal for consideration afresh: HC - Appeal allowed : KOLKATA HIGH COURT

2018-TIOL-171-HC- AHM-CX

Meena Krishna Agarwal Vs Assistant Commissioner

CX - Petitioner has challenged the action of respondents in attaching her immovable properties and creating charge on such properties for recovery of dues of her husband - Against the two proprietary concerns of deceased husband of petitioner, substantial central excise dues have been confirmed by judgment of Tribunal which have remained unpaid - The husband of petitioner having expired, department seeks recovery of dues from her immovable properties - The issue in short is that if any of the four immovable properties of petitioner can trace their acquisition to the source provided by late husband of petitioner, same can be made answerable for the recoveries of unpaid dues of department but not otherwise - If the petitioner is correct in contending that all the four immovable properties were purchased by her from her own source of income, department cannot carry out coercive recovery against such properties merely because her husband died leaving behind sizable departmental dues - It is not clear in what manner the petitioner has placed certificate of CA before the departmental authorities - To avoid any confusion, petitioner allowed to place the same before Commissioner of Central Excise, Vadodara, alongwith representation pointing out the source of acquisition of such properties and same shall be done latest by 31.01.2018: HC - Petition disposed of : GUJARAT HIGH COURT

2018-TIOL-368-CESTAT-MUM

Reaselack Polymers Pvt Ltd Vs CCE

CX *- Capital goods removed as scrap after use of more than 10 years *- Department demanding duty in terms of rule 3(5A) of CCR, 2004 *- Appellant submitting that factory along with plant and machinery was purchased on “as is where is basis” from SICOM, a Govt. of Maharashtra Undertaking and no CENVAT was availed on the capital goods *- view taken by Commissioner(A) that although the appellant had not taken any CENVAT credit, since the appellant had not produced any documentary evidence of non-availment of CENVAT credit on capital goods when they were initially purchased by the earlier owner, the earlier owner “might have” availed credit on these capital goods is without any evidence *- moreover, these findings are not flowing from the allegation leveled in the show-cause notice *- being beyond the scope of SCN, findings cannot be sustained *- as appellant had not availed CENVAT credit on such capital goods, demand under rule 3(5A) not sustainable - impugned order is unsustainable, hence set aside *- appeal allowed with consequential relief, if any: CESTAT [para 4] - Appeal allowed : MUMBAI CESTAT

2018-TIOL-367-CESTAT-MUM

CCE Vs Varroc Polymers Pvt Ltd

CX - Commissioner (Appeals) has allowed CENVAT credit to the appellant on account of demerger of appellant Company wherein CENVAT credit was lying unutilized - Revenue in appeal - Contention of Revenue is that as M/s Varroc Engineering Pvt. Ltd. has not been entirely owned by respondent, therefore, they are not entitled for CENVAT credit; that no intimation was given to the department about the demerger and no permission was taken.

Held: As per Rule 10 of Cenvat Credit Rules, 2004, there is no such requirement to obtain prior permission for demerger of the Company - respondent has correctly availed CENVAT credit and there is no infirmity in the order impugned - Revenue Appeal dismissed: CESTAT [para4, 4.2] - Appeal dismissed : MUMBAI CESTAT

2018-TIOL-366-CESTAT-MUM

Tesa Tapes (India) Pvt Ltd Vs CCE

CX - Manufacture - Section 2(f) of the CEA, 1944 - Whether the activity of cutting and slitting of jumbo rolls and log rolls falling under Chapter 4811 and 8546 amounts to manufacture or otherwise.

Held: Issue is no longer res integra - On identical facts in the appellant's own case, Tribunal has passed the judgment - 2014-TIOL-842-CESTAT-MUM dated 17.04.2014 dismissing the Revenue appeal and concluding that the impugned activity does not amount to ‘manufacture' so as to be charged to CE duty - following the same, impugned order is set aside and appeal is allowed: CESTAT [para 4] - Appeal allowed : MUMBAI CESTAT

2018-TIOL-365-CESTAT-MUM

UNI Deritend Ltd Vs CCE

CX - Input Service - Rule 2(l) of CCR, 2004 - CENVATcredit has been denied on Marine Insurance Serviceto them on the premise that as the said service has been received by appellant beyond the territory of India therefore they do not qualify for the benefit under Rule 2(l) of CCR, 2004 - appeal to CESTAT.

Held: In this case, CENVAT credit for Marine Insurance Service has been availed by the appellant for safe transportation of imported goods up to their factory - If the said inputs were not received in their factory, manufacturing of final product would have stopped and no manufacturing activity could have been taken up by the appellant - service used for inputs is directly related to the manufacturing activity, hence credit is admissible - also, nowhere it is mentioned in the CCR that ‘any service availed outside territory of India' is not eligible for CENVAT credit - impugned order set aside and appeal allowed with consequential relief: CESTAT [para 3, 3.1] - Appeal allowed : MUMBAI CESTAT

2018-TIOL-364-CESTAT-MUM

SM Kagal Tal Ssk Ltd Vs CCE

CX - Appeal dismissed as time barred by Commissioner(A) - appeal to CESTAT.

Held: Appellant has shown the acknowledgement receipt of the appeal filed by them in the office of the Range Inspector - If the documents filed by appellant are not related to the Range Inspector's office, it is the duty of the Range Inspector's Office not to accept those documents and they should have guided the appellant's to file in proper office - That has not been done and the appeal has been accepted by the Range Inspector's office - If the said appeal had been received by the Range Inspector's office mistakenly, their duty is to transfer the documents to the relevant department but thatis also missing in this case - appellant has also filed an affidavit giving all the above details - in the circumstances, appeal filed by the appellant is in time prescribed - impugned order set aside - matter remanded to Commissioner(A) for deciding matter on merits: CESTAT [para 6, 6.1] - Matter remanded : MUMBAI CESTAT

2018-TIOL-363-CESTAT-MUM

Meyer Organics Pvt Ltd Vs CCE

CX - CENVAT - Garlic Powder procured from M/s Bayer Chemicals - credit denied to assessee on the ground that the classification of the goods received is incorrect - appeal to CESTAT.

Held: There is no dispute that the goods were cleared by the supplier on payment of duty in accordance with a classification determined by themselves - It is also not in doubt that the appellant had paid the excise duty along with the consideration for the goods - Denial of CENVAT credit owes its genesis to re-classification in the hands of the recipient by a show cause notice intended for denial of credit - This, undoubtedly, is beyond the scope of empowerment vested in the adjudicating authority - The first appellate authority has, therefore, erred in approving the re-classification - recovery of CENVAT credit of Rs.1,00,657/- is without authority of law and is set aside - Equal penalty imposed under Section 11AC of CEA, 1944 is also not warranted - Appeal allowed: CESTAT [para 3]

CX - CENVAT - Excess CENVAT credit availed of Rs.10,11,742 on supplies effected by 100% export-oriented unit - appellant had promptly repaid the same along with interest - payments are effected well ahead of the issue of the SCN - There is no evidence of willful attempt to evade duty and, consequently, the imposition of penalty under Section 11AC of CEA, 1944 is not warranted - Appeal allowed: CESTAT [para 4, 5] - Appeal allowed : MUMBAI CESTAT

2018-TIOL-362-CESTAT-MUM

Menon Pistons Ltd Vs CCE

CX -CENVAT - Input Service - Rule 2(l) of CCR, 2004 - CENVAT credit on C&F service availed at depot - Revenue has denied the credit on the ground that the said services are used beyond the place of removal treating the depot as outside the place of removal; that the depot is not owned by the appellants - appeal to CESTAT.

Held: It is not in dispute that goods are not sold from the factory but are sold from the premises of the C&F agent - Since the goods are sold from the premises of C&F agent, it is apparent the said place is the place of removal - There is no requirement in law which necessitates that the depot should be owned by the manufacturer - goods in the instant case are assessed on the basis of MRP and thus the issue relating to inclusion of cost up to the place of removal becomes irrelevant - credit cannot be denied - appeals are consequently allowed: CESTAT [para 5] - Appeal allowed : MUMBAI CESTAT

 

 

CUSTOMS SECTION

2018-TIOL-173-HC-MUM-CUS

Hindustan Platinum Pvt Ltd Vs UoI

Cus - The petitioner challenges the impugned order of Tribunal wherein miscellaneous application of petitioner is dismissed holding that there is no provision in the statute for staying the redemption fine imposed - Order passed by Division Bench of this court in the matter of Mydream Properties Private Limited 2018-TIOL-74-HC-MUM-CUS concludes the issue in favour of petitioner and against the Revenue - Therefore, impugned order set aside and restore the miscellaneous application to the tribunal's file for being decided afresh and in accordance with law - The Tribunal should not now dismiss it on the ground of maintainability: HC - Matter remanded : BOMBAY HIGH COURT

2018-TIOL-170-HC- AHM-CUS