CX - Input Service - Rule 2(l) of CCR, 2004 – Period prior to 01.04.2008 - Once it is accepted that place of removal is the factory premises of the assessee, outward transportation 'from the said place' would clearly amount to input service - Revenue appeals dismissed: Supreme Court [para 7 to 9] - Appeals dismissed : SUPREME COURT OF INDIA

CX - Assessee was granted MODVAT credit, which order was appealed by Department as per the provisions of CEA, 1944, in which Commissioner (A) had reversed the credit granted - Consequently, an appea was filed by assessee before Tribunal in which Annexure-A stay order was passed restricting the pre-deposit to Rs.60,000/- - Subsequently, provisions for granting MODVAT credit as available in Central Excise Rules was deleted and a separate rules with a different terminology was provided, i.e., CENVAT Credit Rules - There was no saving clause with respect to continuance of proceedings as per the earlier Rules - Hence, Tribunal by Annexure-B order dated 08.03.2001, rejected a umber of appeals filed under MODVAT Credit Rules for reason of there being no saving clause enabling the continuance of such proceedings - Saving clause came into force two months after the appeal was rejected - The amendment was brought into Section 35C(2) in 2002 w.e.f. 11.05.2002, i.e., more than one year after the appeal was rejected - Assessee even then waited for another two years before an application was filed - It is also pertinent that there were three appeals dismissed by Tribunal as per Annexure-B, as seen from the cause titles of a number of appeals extracted in order - Assessee diligently filed two appeals and left out the appeal in present proceedings - Assessee is found to have not diligently prosecuted the appeal in present proceedings - Thus, Court does not find any reason to interfere with Annexure-D order: HC - Appeal dismissed : KERALA HIGH COURT

CX - Assessee, a registered 100% EOU under the Software Technology Park Scheme, availed benefit of notifications 52/2003- Cus. dated 31-3-2003 and 153/93- Cus. dated 13-8-1993 - they applied for de-bonding of the capital goods procured and paid duty on the depreciated value - SCN was issued proposing recoveryof the entire excise duty foregone - that was adjudicated and the order under challenge before the Tribunal was passed - revenue arguing that there are no notifications or scheme allowing payment of duty at the stage of de-bonding at the depreciated value - further, the notifications in question did not provide for any such scheme - Tribunal, in para 5.3, invited the attention of the revenue to certain notifications, CBEC Circulars right from 1994, which, in the opinion of the Tribunal, allow depreciation of capital goods at the time of de-bonding - it is in these circumstances that the Tribunal directed a remand on the second occasion -this Court does not see how such an order, by which the Tribunal did not allow the appeal of the assessee but remanded the matter to the adjudicating authority, results in a substantial question and arising for this Court's consideration -once this Court has clarified that no definite opinion other than inviting the attention of the revenue to its own scheme was rendered by the Tribunal, then, all the more this Court is disinclined to entertain this appeal -it is dismissed: High Court [para 7, 8] - Appeal of Revenue dismissed: BOMBAY HIGH COURT

2018-TIOL-449-CESTAT-DEL

CCE Vs Man Serve Pharma

CX - Assessee engaged in manufacture and clearance of medicines and availed benefit of SSI exemption for goods manufactured by them in their own name and paying duty on goods manufactured by them on behalf of others - Case of Revenue is based on rough register maintained by Chemist Shri R A Singh - Demand has been confirmed against assessee based on Annexure D to SCN which shows that entries made in register as well as entries made in RG 1 register and difference thereof is demanded - With regard to discrepancies, Revenue has failed to explain why there are double entries and why they have taken the quantity as cleared clandestinely and how the quantity was arrived - No corroborative evidence has been produced by Revenue - Therefore, said register maintained by Chemist is a rough register and same cannot be a piece of evidence to allege clandestine clearance of goods and in absence of corroborative evidence, as held by Tribunal in case of Tulsi Polymers Pvt. Ltd. - Certain statements have been relied upon to allege clandestine clearance of goods by assessee - Said statements cannot be relied upon in absence of any corroborative evidence as held by Tribunal in case of Davinder Sandhu Impex Ltd . 2016-TIOL-06-CESTAT-DEL - Therefore, demand against assessee is not sustainable, as clearance made as per statutory records remain within exemption limit of SSI exemption as per Notfn 8/2003 CE, therefore, assessee is entitled to benefit of SSI exemption: CESTAT - Revenue's appeal dismissed: DELHI CESTAT

2018-TIOL-448-CESTAT-MAD

Maruthi Bio Tech Vs CCE

CX - the assessee company manufactures food supplements & cleared the said products without payment of duty after affixing the brand names of their customers - For this reason, the revenue denied SSI exemption to the assessee - The revenue further claimed that the assessee raised parallel invoices, wherein the invoices bore the same number but covered different goods cleared to different customers - Duty demand along with interest & penalty was imposed on clearance of goods bearing brand name of others and on the value of goods cleared through such invoices - The Commr.(A) upheld such demand -

Held - the brand names in question were coined by the assessee and its marketing agencies - It is clear that the brand name was coined jointly by the assessee & the customers, the revenue was duty bound to conclusively establish that the assessee used the brand name of others - Since the marketing agencies did not claim ownership of the brand names, the assessee cannot be said to be cleairng goods with the brand name belonging to another person - Further, w.r.t. the issue of parallel invoices, given the paltry amount of clearances involved, the assessee would come within the SSI exemption limit - Moreover, duty demand imposed for alleged misuse of another person's brand name, is unsustainable & warrants being set aside: CESTAT (Para 1,2,6,8,9)

2018-TIOL-447-CESTAT-ALL

Controls And Switchgears Electric Ltd Vs CCE

CX - Assessee was a Unit engaged in manufacture of Electronic Parts - Second assessee also manufactured the same goods but was having a 100% EOU status - Main assessee supplied inputs procured by them to second assessee on receipt of CT-3 Certificate from them for the period from 14/12/2005 to 24/08/2006 - Whether the inputs on which Cenvat credit has been availed can be cleared without payment of duty against CT-3 Certificate under exemption under Notfn 22/2003-CE - The contention of Revenue is that the wording of said notfn enables only a manufacturer to clear the goods without payment of duty to 100% EOU against the said notfn - Tribunal in Matrix Laboratories Ltd. has very clearly observed that inputs can be considered as excisable goods and clearance of the same can be placed on par with clearance of excisable goods and also held that clearance of said goods under Rule 19(2) of Central Excise Rules provided for clearance of goods without payment of duty irrespective of the fact that they were manufactured by assessee or otherwise and such finding was affirmed by Andhra Pradesh & Telangana High Court - Therefore, inputs received in factory on which Cenvat credit has been availed can be cleared without payment of duty against CT-3 Certificate under the benefit of Notfn 22/2003-CE - Therefore, impugned order set aside: CESTAT - Appeals allowed: ALLAHABAD CESTAT

2018-TIOL-446-CESTAT-CHD

CCE Vs Steel Services

CX - Assessee had availed Cenvat credit on basis of invoices issued by M/s. Haryana Steel and Alloys Limited (HSAL) - On the basis of investigation it was concluded that M/s.HSAL had only supplied invoices to various parties without supplying the goods - One of the alleged recipient of invoices issued by M/s.HSAL was assessee - It is alleged that during 1.9.2003 to 20.8.2005, assessee took Cenvat credit on the basis of 33 invoices issued by M/s.HSAL - Demand confirmed along with interest and penalty under section 11AC and penalty of Rs.19,40,840/- under Rule 15 of CCR, 2004 - A penalty of Rs.10 lakh was also imposed on Shri R.S.Narang, partner of assessee - On appeal, the demand was dropped and penalties were also set aside by Commissioner (A) - Aggrieved from the same, Revenue has filed these appeals.

Findings of fictitious nature of transfer taken of inputs recorded by Commissioner (A), is completely contradictory to his conclusion at the end of order "that the inputs were actually received by the appellant and the department did not prove that inputs were not received in the factory, categorically" - Order passed by Commissioner (A) is perverse in nature and is therefore set aside - Provisions of Section 9D of CEA, 1944 have not been followed by adjudicating authority, which were required to be followed as per law at that time - It is well settled principle that the adjudicating authority cannot straightaway rely on the statement recoRded during investigation unless the conditions set out in Section 9D are fulfilled - In that circumstance, matter requires to be adjudicated afresh by the adjudicating authority after following the procedure laid down under Section 9D of the Act and by following the principles of nature justice: CESTAT - Matter remanded: CHANDIGARH CESTAT

2018-TIOL-445-CESTAT-CHD

Action Construction Equipment Ltd Vs CCE

CX - Assessee engaged in manufacture of hydraulic mobile crane and tower crane and cleared the same claiming benefit of exemption Notfn 108/95 for the projects financed by Asian Development Bank - Case of Revenue is that the goods manufactured by assessee have not been supplied to the project but to the contractors, therefore they are not entitled for the benefit of said exemption Notfn - SCN was issued to assessee by invoking extended period of limitation to deny the benefit of exemption Notfn - The matter was adjudicated, demand of duty for extended period of limitation was dropped but the demand within the period of limitation was confirmed along with interest and equivalent penalty was imposed - Tribunal in case of JCB India Limited 2017-TIOL-1225-CESTAT-CHD has observed that the goods which have been cleared to contractors who are executing the work for projects Financed by the Asian Development Bank, the assessee is entitled for the benefit of said exemption Notfn - Therefore, no demand is sustainable against assessee: CESTAT - Appeal allowed: CHANDIGARH CESTAT

Cus - Petitioner is not the only noticee, but there are several other noticees as could be seen from SCN dated 19.12.2005 - So far the petitioner is concerned, the SCN proposed to levy penalty under Section 112(a) of Customs Act, 1962 - The allegation pertains to the genuinity and legality of DEPB licence - The DRI officers are the officers who are investigating the cases and based on investigation report, DRI issues the SCN which is answerable to jurisdictional Commissioner - DRI officers exercise all india jurisdiction and they investigate the matter which may ultimately fructify into a SCN - Thus, officers of DRI cannot be subjected to cross examination in present proceedings and therefore, second respondent was fully justified in negativing the petitioner's request for cross examination: HC -Writ petition dismissed : MADRAS HIGH COURT

Cus - Writ Petition No.765 of 2018, has been filed, seeking to quash the drawal of Mahazar, dated 18.12.2017 and detention of the goods imported, vide Bill of Entry No.4146612 dated 25.11.2017, as being contrary to the Advance Ruling, dated 31.3.2017 - W.P.No.1114 of 2018 has been filed, seeking to quash the order passed by the second respondent, which is a seizure memorandum, dated 11.1.2018, where, the goods imported by the petitioner have been seized on the alleged grounds of misdeclaration, resulting in a wrong classification of the goods, under the Customs Tariff Act, 1975

HELD - The Supreme Court, in the case of Columbia Sportweare Co. - 2012-TIOL-134-SC-IT-LB , has held that, the determination of the Advance Ruling Authority is not just advisory, but binding - the contention that, the Department is in the process of challenging the same, is not borne out by any records, and even assuming that, there is a proposed challenge, unless, there is stay/injunction granted by the Competent forum, before which, the Advance Ruling passed by the Authority for Advance Ruling is challenged, the same continues to bind the applicant (petitioner in this case) as well as Officers functioning under the respondents - the primordial requirement before an order of seizure is passed is that, the proper Officer has to have reason to believe that the goods are liable to confiscation - no such reasons are explicit in the impugned seizure memorandum, dated 11.1.2018, which only refers to the test report of the Private Organisation and not a Central Laboratory to state that the correct classification of goods is CTH No.08028090 - thus, the finding of the second respondent, though prima facie in nature, is clearly contrary to the order/Ruling passed by the Advance Ruling Authority, dated 31.3.2017 as well as the stand by the Commissioner of Customs, in his reply to the Advance Ruing Authority, dated 25.10.2016 - thus, the impugned seizure memorandum and the detention of the cargo by the respondents is wholly unjustified - for the above reasons, the impugned seizure memorandum, dated 11.1.2018 is quashed and the respondents are directed to release the cargo in question, forthwith - considering the facts of the present case, the respondents 2 to 4 are directed to issue Demurrage and Detention Certificate for Waiver of Warehousing, Demurrage and Container Charges and ensure that such order is complied with by the Steamer Agent and Container Terminal, as it was held by the High Court of Delhi, in the case of Worldline Tradex Pvt. Ltd. - 2016-TIOL-1550-HC-DEL-CUS that, detention having occurred due to illegal action of DRI, they have to bear responsibility in that regard - In the result, W.P.No.765 of 2018 is disposed of and W.P. No.1114 of 2018 is allowed on the aforesaid terms : HIGH COURT [para 10, 11, 13, 14, 17, 18] - W.P.No.765 of 2018 disposed of/ W.P.No.1114 of 2018 allowed: MADRAS HIGH COURT

Customs Brokers Licensing Regulations, 2013 [CBLR] - Petitioner before High Court, inter alia, assailing an order dated 18.3.2015 confirming the suspension of the petitioner's CHA Licence under Regulation 19(2) of the CBLR- petitioner claims that although its License has been suspended, the respondent has not initiated further proceedings for its revocation :

HELD - The order of suspension by its very nature is an interim order -there is no dispute that such order cannot be continued indefinitely - though the expression "offence report” has not been defined, it is apparent that the same must mean a report indicating that an offence has been committed by the Customs Broker - the letter dated 16.2.2015 received by the respondent from ADG(HQ), DRI, New Delhi, indicating the detection of an offence must necessarily be considered as an offence report since that has triggered the action against the petitioner - the respondent was required to issue a notice under Regulation 20(1) of CBLR within a period of ninety days from the receipt of such report; that is, within the period of ninety days from the receipt of letter dated 16.2.2015 - concededly, no notice under Regulation 20(1) of the CBLR has been issued as yet - further, within a period of 270 days from the receipt of the offence report, the Commissioner of Customs has to pass an order either revoking the order of suspension or to revoke the License of the Customs Broker and/or impose a penalty as specified under Regulation 20(2) of the CBLR - given the serious nature of such action, strict timelines have been specified under Regulations 19 and 20 of the CBLR and the same must be adhered to - the rationale of providing strict timelines is to ensure that the work of the Customs Broker is not suspended indefinitely and any action against him is concluded in a time bound manner - the interpretation that the License of a Custom Broker can be suspended without immediately following the proceedings under Regulation 20(1) of the CBLR would defeat the very objective for which such strict timelines have been provided - in view of the above, the petition is allowed and the impugned order is terminated : HIGH COURT [para 14, 15, 17, 21, 22, 23, 24] - Writ Petition allowed: DELHI HIGH COURT

2018-TIOL-444-CESTAT-BANG

Organica Aromatics Pvt Ltd Vs CC & ST

Cus - Issue involved is regarding confirmation of demand of customs duty foregone by Revenue when assessee sought advance license but did not produce Export Obligation Discharge Certificate (EODC) - Both the lower authorities have held that in absence of any EODC, demand is liable to be confirmed along with interest and penalties needs to be imposed - Assessee had entered into numerous correspondences with DGFT for issuing EODC certificate but the same is not attended to - In an identical set of facts, Division Bench of Tribunal in case of GLS Film Industries Pvt. Ltd. has held that matter needs to be remanded awaiting the decision of DGFT and produce the copy of the same - Following the said decision, impugned orders set aside and matter remanded to adjudicating authority to await decision of DGFT authorities and decide the matter thereof: CESTAT - Matter remanded: BANGALORE CESTAT

2018-TIOL-443-CESTAT-ALL

Vardhaman Sales Agency Vs CC & CE

Cus - the assessee filed Bill of Entry for import of Aluminium Scrap - Examination of goods revealed that the consignment consisted of Zinc scrap & no Aluminium scrap - The goods were confiscated for violation of Sections 111(f), 111(l) and 111(m) of the Act, with option of redemption fine - Personal penalty was imposed on the importer - The same was upheld by the Commr.(A) -

Held - The assessee claimed that goods were mistakenly loaded by the supplier located in the foreign country - The assessee filed Bill of Entry on the basis of documents available such as contract, invoice, Bill of Lading and Pre-shipment inspection certificate In all documents, the goods were described as Aluminium Scrap - Hence no mala fide can be alleged with intention to misdeclare the goods - Hence penalty set aside - However, since the goods violate provisions of Section 111(l) and 111(m) - Nonetheless, amount of redemption fine reduced - O-i-A in question so modified: CESTAT (Para 2,5) - Appeal Partly Allowed: ALLAHABAD CESTAT