2018-TIOL-380-HC-RAJ-CX + Story
Welcuredrugs And Pharmaceuticals Ltd Vs CCE
CX - Rule 5 of CCR, 2004 - Inverted duty structure - Refund of unutilized credit upon closure of company - Judicial discipline is required to be maintained - Tribunal cannot distinguish the High Court judgments - principle of estoppel applies as once the department has accepted the view taken by the Tribunal it will not be appropriate to challenge the same by choosing the present assessee - decision of Karnataka High Court in Slovak Trading Co. Pvt. Ltd. 2006-TIOL-469-HC-KAR-CX approved - appeal allowed: High Court [para 12 to 14] - Appeal allowed : RAJASTHAN HIGH COURT
2018-TIOL-728-CESTAT-DEL
Rastogi Furnishers and Decorators Pvt Ltd Vs CCE
CX - Appellants engaged in the manufacture of steel and wooden furniture which is being sold without bearing any brand name - case of the Department is that, the assessee-Appellants manufacture furniture and sold the same under the brand name "Rastogi" and, therefore, not entitled for SSI exemption under notification 8/2003-CE – appeal before CESTAT – appellant inter alia submitting that "Rastogi" brand name is not registered with anyone, except that it is used by the family members.
Held: Affixing the family name or brand name on the letter head does not amount to the use of brand name of third parties - In the instant case, there is no third party who owns the brand name of "Rastogi" - The Department has neither issued any notice nor examined the firms of family members who are also engaged in the similar line of business and only the assessee-Appellants have been made target which is not desirable - At the time of search on 09.10.2013, no furniture or sticker was found with the name of "Rastogi", buyers have denied that the furniture was bearing any logo or brand name - Department has made out a poor case – no merit in impugned order, hence same is set aside and appeals are allowed: CESTAT [para 6, 7, 8] - Appeal Allowed : DELHI CESTAT
2018-TIOL-727-CESTAT-DEL
Ultratech Cement Ltd Vs CCE
CX - Valuation - Section 4 of the CEA, 1944 - Transaction Value - Appellant's factory is located in the State of Rajasthan where the appellant was availing the interest on subsidy granted under "The Rajasthan Investment Promotion Scheme, 2003" notified by the State of Rajasthan with a view to promote investment - The appellant holds a valid entitlement certificate under the scheme and availed the wage subsidy @ 25% of the wage payment to the workers; and interest subsidy @ 5% of interest paid on term loan, restricted to the maximum of 75% of VAT/CST paid - Department is of the view that the amount of interest received from State Government Scheme, 2003 is includible in the assessable of the goods cleared during the period in dispute - appeal to CESTAT.
Held: Identical issue had come up before the Bench in the case of Shree Cement Ltd. [ Final Order No. 50189-50191/2018 ] where it is held that under the subsidy scheme, for the initialperiod, the assessees are required to remit the VAT recovered by them at the time of sale of the goods manufactured and later a part of such VAT is given back to them in the form of subsidy in Challan 37B which Challans are as good as cash but can be used only for payment of VAT in the subsequent period - In terms of the scheme, payment of VAT using such Challans are considered legal payments of tax, therefore, there is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT 37B Challans - following the earlier order, impugned order is set aside and appeal is allowed: CESTAT [para 4, 5] - Appeal Allowed : DELHI CESTAT
2018-TIOL-726-CESTAT-DEL
WWS Sky Shop Pvt Ltd Vs CCE
CX – Appellants engaged in trading and tele-marketing of various goods and also selling the medicines manufactured by M/s Davo Laboratories and M/s Balchem Laboratories through VPP (Value Payable Post) - They were also giving advertisement on television and other media - Appellants received the medicines, duly duty paid, from the manufacturer in the packed form mentioning therein the retail price and after receiving the bottles of the medicines in the packets, they affixed the hologram & bar code to avoid duplicity and put it in an outer cover box to ensure safe transportation - Department of the view that the activity of the Appellants amounts to manufacture and demanded and confirmed CE duty along with the penalty – appeal to CESTAT.
Held: Board vide its Circular F.No. 354/285/2011-TRU dated 8th December, 2011 has clarified the position that activity undertaken merely consists of transferring pre-packed duty paid retail goods into another packing and does not attract CE duty since not ‘deemed manufacture' – in view thereof, no need to sustain the impugned order – same is set aside and appeals are allowed: CESTAT [para 4, 5] - Appeal Allowed : DELHI CESTAT
2018-TIOL-725-CESTAT-DEL
Pioneer Engg Industries Vs CCE
CX - Valuation - Section 4 of the CEA, 1944 - Transaction Value - Appellant cleared the final products after paying Central Excise duty and also discharged VAT/CST on the direct sales - department of the view that the amount of the subsidy received from the M.P. Government is includible in the assessable value of the goods cleared during the period of dispute viz. 2009 to 2012 - appeal to CESTAT.
Held: Identical issue had come up before the Bench in the case of Shree Cement Ltd. [ Final Order No. 50189-50191/2018 ] where it is held that under the subsidy scheme, for the initial period, the assessees are required to remit the VAT recovered by them at the time of sale of the goods manufactured and later a part of such VAT is given back to them in the form of subsidy in Challan 37B which Challans are as good as cash but can be used only for payment of VAT in the subsequent period - In terms of the scheme, payment of VAT using such Challans are considered legal payments of tax, therefore, there is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT 37B Challans - following the earlier order, impugned order is set aside and appeal is allowed: CESTAT [para 4, 5] - Appeal Allowed : DELHI CESTAT
CUSTOMS SECTION
2018-TIOL-382-HC-DEL-CUS
Lee Pharma Ltd Vs UoI
DGFT - the assessee-company claimed drawback for a particular period, which was denied on grounds of limitation - The same was upheld by the Policy Relaxation Committee (PRC) - Thereupon, the assessee filed an application addressed to the Appellate Committee of the DGFT - Subsequently, the Deputy Director of the DGFT passed an order against which the present writ was filed - The assessee claimed that the application was erroneously addressed to the Appellate Committee and was in fact, addressed to the Appellate Authority u/s 15 of the Foreign Trade (Development and Regulation) Act, 1992.
Held - Since the assessee seeks to withdraw the present writ and approach the Appellate Authority u/s 15 of the Foreign Trade (Development and Regulation) Act, 1992, the same is permitted - The delay in filing such appeal be condoned: High Court (Para 2,5,6,9) - Writ Petition Disposed Of
: DELHI HIGH COURT
2018-TIOL-375-HC-MUM-CUS + Story
Pr.CC Vs Bombino Express Pvt Ltd
Customs – Maintainability – Jurisdiction - Courier Import and Export (Clearance) Regulations, 1998 are traceable to the power conferred in the authorities vide the Customs Act, 1962 and several notifications issued thereunder - Merely because a representation or a remedy of making a representation is provided by the Regulations, that does not displace the appellate authority of the tribunal – Revenue appeal dismissed: High Court [para 12, 13] - Appeal dismissed : BOMBAY HIGH COURT
2018-TIOL-374-HC-DEL-CUS
Bliss Trading Company Vs Additional Director General Directorate of Revenue Intelligence
Cus - the assessee-company had imported a consignment of mobile accessories - The Department alleged that the goods had been undervalued and also that the bills of entry had been presented after a 7-month delay - It is also alleged that the imported goods in question would violate Intellectual Property Rights as well as the parameters of the Bureau of Indian Standards - Howver, the DRI admitted to not have examined the goods in question - The DRI alleged procedural lapses on part of the Customs Department
Held - Considering such facts, the DRI & the Customs department directed to submit a report explaining the default in implementing the directions for inspecting the goods - The DRI & the Chief Commissioner of Customs also directed to examine as to should bear the demurrage charges till the date of inspection - The assessee cannot be burdened with the same till inspection is actually carried out - Upon inspection, the Department may pass appropriate orders: High Court (Para 1,4,5) - Case Remanded : DELHI HIGH COURT
2018-TIOL-373-HC-AHM-CUS
Shiva Pharmachem Ltd Vs UoI
Cus - the assessee supplied some goods to SEZ units - However, on such goods, the assessee was not granted export benefits - Thus the assessee was unable to fulfil its export obligations - Thereafter the assessee approached the Policy Relaxation Committee & sought personal hearing - However on the date of hearing the assessee was not present due to which the case was deferred.
Held - The Committee had accepted the assessee's request for personal hearing - Since such hearing could not be materialised the Committee did not reject the assessee's case but only deferred the request - Hence the Committee to hear the assessee on the next date of hearing: High Court (Para 1,2,5,6) - Writ Petition Disposed of : GUJARAT HIGH COURT
