CENTRAL EXCISE SECTION
2018-TIOL-330-HC-MAD-CX
Tube Investment Of India Ltd Vs UoI
CX – CENVAT – Audit slip forwarded by Supdt. CE to assessee on 10.08.2016 and in response thereto reply filed by petitioner on 16.12.2016, later SCN issued – Petitioner before High Court challenging the SCN on the ground that in view of the Master Circular No. 1053/02/2017 -CX dated 10.03.2017, consultation of noticee ought to have been made before issuing of show cause notice.
Held: Concern of the CBEC appears to have been that when large taxpayers are visited with show cause notices, there should be a consultation process and the monetary limit has been fixed where duty demands are above Rs.50 lakhs, except for preventive/offence related show cause notices - The Circular mandates that such consultation should be made by the Principal Commissioner / Commissioner prior to the issuance of show cause notice – This Circular reiterates the procedure stipulated in the Circular dated 21.12.2015 and similar directives are also given in Circular dated 08.07.2016 – Above referred procedure, which has been held to be a mandatory by CBEC, has not been adhered to in the instant case - That apart, when the petitioner had submitted a reply dated 16.12.2016, the same ought to have been considered by the respondent prior to issuance of the show cause notice - If, for some reasons, the respondent was of the opinion that the reply given by the petitioner to the Audit Slip is not satisfactory, then at least the same should have been dealt with in the impugned show cause notice, which has not been considered - Writ Petition is allowed, the impugned notice is set aside and the matter is remanded to the fourth respondent, for fresh consideration: High Court [para 7, 8] - Petition allowed : MADRAS HIGH COURT
2018-TIOL-69-SC-CX
Chenab Textile Mills Vs CC & CE
CX - Assessee had cleared cotton yarn/non-cellulosic/cellulosic/acrylic/acrylone yarn and paid central excise duty on the value determined on the basis of cost of single yarn at the spindle stage – SCNs were issued demanding duty on the assessable value as determined at the time of removal of goods from the factory premises after carrying out various processes - duty demands were dropped by the adjudicating authority and the said orders were upheld by Tribunal – Revenue filed appeal before High Court on the following question of law viz. whether Tribunal has erred in holding that non-invocation of a proviso appended to Notification in the show cause notice issued by the department, which was otherwise covered by Rule 9 and 49 of the Central Excise Rules, 1944 invoked in the show cause notice, can be a ground for dismissal of the said show cause notice – High Court allowed Revenue appeal by holding that assessee could not raise a new plea for the first time in appeal – appeal by assessee to Supreme Court. Held: Delay condoned and notice issued limited to the issue of penalty: Supreme Court [para 2, 3] - Notice issued : SUPREME COURT OF INDIA
2018-TIOL-633-CESTAT-CHD
Bharti Teletech Ltd Vs CCE
CX - Assessee is manufacturer of telephone instruments and filed refund claim under Rule 57 F (13) of Central Excise Rule, 1944 and the said Rule is not applicable in assessee's case as exports were not under bond but under VBAL Licensing scheme and under Notification No. 203/92-Cus. - Assessee had sought intervention of Tribunal relying on the decision of Apex Court in case of M.V. Elisabeth and Ors. - Tribunal is a creature of statute and having limited power under the Central Excise Act, wherein the Apex Court is having vast powers to deal the issue - The request for restoration/refund claim has been filed after 8 years - Tribunal being a creature of the statute can not go beyond the provisions contained in statute - Hence, Tribunal agrees with the view taken by Commissioner (A) that restoration of credit is ruled out in absence of any provisions in statute - There is no merit in appeal of assessee and the order passed by Commissioner (A) suffers from no infirmity - As regards to limitation, assessee contested the matter up to Apex Court and failed to get remedy from there - In that circumstance, the limitation under Section 11B of the Act shall be applicable from the date of the order of Apex Court: CESTAT - Appeal dismissed : CHANDIGARH CESTAT
2018-TIOL-632-CESTAT-MUM
Radiant Engineers Vs CCE
CX - Appellant were doing job work for M/s. Kirloskar McQuay Ltd. and were receiving copper tubes as free supply from them - Appellant argued that the impugned proceedings seek to include in the assessable value the expenses incurred on Inward Transport charges, insurance charges, overheads etc. incurred by supplier and which is not permissible in view of Board Circular 619/10/2002-CX as well as rule 6 of the Valuation Rules, 2000. Held: From the Larger Bench decision in Eicher Motors - 2008-TIOL-977-CESTAT-DEL-LB it is apparent that what is relevant for the purpose of determining Assessable value is the value and not the cost - apparently in view of the apex court decision in Ujagar Prints - 2002-TIOL-03-SC-CX what needs to the included in the AV is the value at the hands of the job worker and that obviously would include the expenses incurred for bringing the goods to the job worker, therefore, there is no merit in the appeal and hence dismissed - claim of bonafide belief cannot be sustained as issue regarding valuation was clarified by Supreme Court in the case of Ujagar Prints (supra) which settled all the controversy, therefore, ground of limitation is also dismissed: CESTAT [para 4, 5] - Appeal dismissed : MUMBAI CESTAT
2018-TIOL-631-CESTAT-DEL
Ganpati Rolling Mills Pvt Ltd Vs CCE
CX - Assessee engaged in manufacture of copper wires - During audit, it revealed that finished goods/raw materials were found in excess, as against the stock particulars available in statutory records - Based on audit in factory of assessee from 20.8.2008 to 22.8.2008, the SCN was issued by department on 19.8.2011 - It is an admitted fact on record that SCN has not been issued within the normal period of one year provided under Section 11A of CEA, 1944 - Since, between the period of conducting such audit in August, 2008 and issuance of SCN in August, 2011, the department has not gathered any additional information for initiation of show cause proceedings, it cannot be said that SCN issued in August 2011, is sustainable on the ground of limitation - In context with limitation aspect, Allahabad High Court in case of Triveni Engineering & Industries Ltd. held that SCN issued after a gap of 22 months after an audit was conducted, is clearly barred by limitation of time - No merits found in impugned order so far as it adjudicated the matter, beyond the normal period of limitation: CESTAT - Appeal allowed : DELHI CESTAT
2018-TIOL-630-CESTAT-DEL
Shree Cement Ltd Vs CCE & ST
CX - Assessee engaged in manufacture of clinker and cement and availing credit of inputs and input services in terms of CCR, 2004 - Dispute relates to their eligibility to take credit based on documents, which the Revenue contents are not as per provisions of Rule 9 - Contesting the same, assessee submitted that documents are clear and specific and service provider has given both individual documents as well as comprehensive consolidated certificates of discharging service tax on these input services - Assessee is strongly contending that without recourse to newly inserted clause (fa) they do have all required documents to substantiate their claim for credit on the said input service - Original authority did give a specific and clear finding on the documents mentioned at clause (e) and (f) of Rule 9 (1) - Further, available documents as submitted by assessee are to be examined in terms of provisions of Rule 9 and more specifically Rule 9 (2) read with proviso thereto - In case, all the essential details required for availing credit, as per the said rule are available in documents submitted by assessee, there can be no reason for denial of credit on any other minor procedural lapse, if any - Discretion provided in proviso to Rule 9 (2) has also to be examined: CESTAT - Matter remanded : DELHI CESTAT
CUSTOMS SECTION
2018-TIOL-629-CESTAT-DEL
Vijender Singh Vs CC
Cus - M/s Vision Minerals and Energy had exported 'OWC' (Drilling Chemical Additive) through CHA, the assessee - On examination, it was found that the goods in question were Muriate of Potash (MOP) of fertilizer - Said Murite of Potash of fertilizer is restricted by the DHFT vide Notfn 03/2009-2014 - Thus it was found that the exported goods were misdeclared by CHA sales by exporter - Time limit prescribed in regulation is applicable regarding the suspension/ revocation of the license while in instant case, neither the license was suspended nor revoked - So, the time limit is not applicable - Only security deposit was forfeited for offence on the part of assessee - Department has taken lenient view merely by forfeiting security deposit - It is evident that assessee was well aware that in plastic bags of 50 Kg, there was prohibited item which was exported by M/s Vision Minerals & Energy without correctly declared and without having any report prior to export of goods - Thus assessee has violated his pious duties prescribed in the manual - So, the security deposit amount has rightly been confiscated by authority - Hence, impugned order upheld: CESTAT- Appeal dismissed : DELHI CESTAT
