CENTRAL EXCISE SECTION
Gujarat Boron Derivatives Pvt Ltd Vs CCE & ST
CX - Assessee engaged in manufacture of Boric Acid, Borax and Sodium Nitrate - Alleging that they have wrongly availed CENVAT credit of 4% SAD in respect of goods which were traded during period 2006-07 to 2009-10, a demand notice was issued to them for recovery of inadmissible credit with interest and penalty; also personal penalty proposed on Director - Assessee even though not disputed the fact that CENVAT credit on 4% SAD was inadmissible to them, but vehemently argued that the demand is barred by limitation - Tribunal do not find merit in contention of assessee that inasmuch as even though they have sold the goods on its import from place import itself, by raising commercial invoice, but they have intentionally and knowingly manipulated the records making false entry in RG 23A part I and Part II showing its receipt and also prepared issue slips, allotting chit numbers so as to indicate that the same had been used in factory - Such manipulations of record, cannot in any circumstances be considered as an intention not to avail CENVAT credit, which is inadmissible to them, but an innocent belief of Budget speech of Finance Minister - Also, eligibility of refund of 4% SAD paid on selling of imported goods as such after 14.9.2007, subject to fulfillment of condition laid down in said Notification would not come to the rescue to assessee - Besides, plea of assessee that their records were periodically audited by department cannot come to their rescue inasmuch as the documents/records itself were manipulated showing receipt and disposal of imported goods only with an intention to escape from scrutiny by the audit party - In the result, the impugned order is upheld: CESTAT - Appeals dismissed: AHMEDABAD CESTAT
Kangaro Industries Ltd Vs CCE
CX - Assessee engaged in manufacture of staple strips and applied for fixing of special rate under Notfn 1/2010-CE - During examination of claim of assessee for fixing the special rate, dispute arose on two issues viz. (i) whether net excise duty paid and not the total amount of duty paid is required to be deducted from the sale value of goods and (ii) whether freight outward is not to be deducted from the sale Value since as per explanation given in Para 6 (5) of Notification, only excise duty, value Added Tax and other indirect taxes are required to be excluded - Notfn 1/2010-CE provides for partial exemption - It is also evident from Boards Circular 682/73/2002-CX which was issued when Notfn 56/2002-CE, for area based notification in J&K was initially issued - S imilar view has been taken by Tribunal in case of Meera & Co. - Tribunal in case of Dharampal Satyapal Ltd. 2016-TIOL-1527-CESTAT-KOL took the view that portion of excise duty which is refunded to assessee under Notfn 32/95-CE is duty which is considered as exempt - While examining inclusion of VAT in transaction value of goods Supreme Court in case of Super Syncotex (India) Ltd. 2014-TIOL-19-SC-CX held that when the tax is actually paid to Sales Tax Department, no benefit regarding excise duty can be given under concept of transaction value - If it was not payable or to be paid as Sales Tax/Vat cannot be charged from the buyers and if charged but not paid or payable become parts and parcel of transaction value - In view of foregoing, on the same analogy, it is held that when an amount of duty is refunded to assessee under Notfn 1/2002-CE, same has to be deducted from excise duty paid by assessee while arriving at actual value addition.
On the issue of freight outward, Commissioner has held that as per Accounting Standard-9, transaction relating to sale of goods is complete when seller of goods transferred to buyer the property in goods for price - He has concluded that point of sale is factory gate as assessee is not stock transferring the goods to customers premises - Hence, freight and insurance is not be included in sale value - On the basis of Section 4 of Central Excise Act, Commissioner has held that duty of excise is charged on transaction price at place of removal and such place of removal is place of sale - Hence, outward freight will not form part of sale value - Sales made by assessee are on FOR destination basis - Invoices placed on record show that freight on these goods has been paid by assessee - Besides this, marine transit insurance policy placed on record also shows that insurance of goods is to be done by assessee - It is settled law that in context of Section 4(3)(C) when the goods are on FOR destination sales and freight is paid by seller and goods are to be insured by seller, then seller cannot claim deduction of freight and insurance from sale price - In this regard, reference is invited to Hard Castle Petrofer Pvt. Ltd. - In balance sheet for 2011-2012, freight outward is shown under selling and distribution expenses - Hence, freight outward is includible in sale value - Impugned order set aside: CESTAT - Appeal allowed: CHANDIGARH CESTAT
Bajaj Hindusthan Limited Vs CCE & ST
CX - Assessee is manufacturer of sugar and molasses and they have procured items like MS sheets, plates, joist, angles and channels which were used for manufacture/installation of molasses tanks/boilers - Adjudicating Authority denied the Cenvat Credit to assessee on the premise that Cenvat Credit is not admissible on these items as these are neither capital goods nor inputs - It is found that these items are used for fabrication of capital goods, namely, shape and sections, plates, hot strips, HR Plates, Angles, and Channels, Hot Strip, Joints - Therefore, assessee is entitled to take Cenvat Credit on these inputs used in fabrication of capital goods - Similar view have been taken in CBEC Circular No. 964/07/2012 CX - Consequently, assessee is not required to reverse the Cenvat Credit: CESTAT - Appeal allowed: ALLAHABAD CESTAT
CCE Vs Sabharwals Medicals Pvt Ltd
CX - Assessee had filed two refund claims in respect of inputs used in manufacture of their final products exported under bond on the ground that they were not in a position to utilize Cenvat credit of the duty paid on inputs under Rule 5 of CCR, 2004 - Commissioner (A) has held that there is no restriction on refund of Cenvat credit under Rule 5 in respect of Cenvat credit of Central Excise duty paid on inputs and service tax paid on the input services, even if the Customs component of drawback is paid on the goods exported - On plain reading of Rule-3 of Customs, Central Excise Duties and Service Tax Drawback Rules, 1995, it is clear that the availment of Cenvat credit will prevail over disbursement of drawback - Therefore, on the ground that drawback of Customs duty has been paid to assessee, refund of Cenvat credit of Central Excise duty paid on inputs and service tax paid on input service under said Rule-5 cannot be denied - Therefore, no merits found in the appeal filed by Revenue and same is dismissed: CESTAT - Appeal dismissed: ALLAHABAD CESTAT
CUSTOMS SECTION
NOTIFICATION
dgft17not048
Export Policy of Onions- Removal of Minimum Export Price (MEP)
CASE LAW
CC Vs General Nice Minerals Resources India Pvt Ltd
Cus - Issue that falls for consideration in this appeal is regarding the refund that arises due to erroneous assessment of goods exported - The adjudicating authority has rejected the contentions of the assessee and disallowed the claim for refund while the first Appellate Authority has set aside the O-I-O - It is the case of Revenue that first Appellate Authority has applied the Board Circular which was dated 10.11.2008 for the clearances made prior to that date for setting aside the O-I-O which is incorrect - It is noticed that first Appellate Authority has relied upon the decision of Tribunal to come to a conclusion which is the correct proposition of the law - Impugned order is correct and legal and does not require any interference: CESTAT - Appeal rejected: HYDERABAD CESTAT
