Bhilai Engineering Corp Ltd Vs CCE

CX - Assessee engaged in manufacture of fabricated items of steel and various parts of machinery - During period May 2012 to December 2012, assessee supplied various goods at NIL rate of duty under Notfn 12/2012-CE to various Mega Power Projects - It was alleged that the items which were supplied for Mega Power Projects were not covered within the description given in Sl. No. 338 of said notification - It is not disputed that goods have been cleared for use in Mega Power Projects - There is also no dispute on the fact that relevant certificates as required in condition 43 of has been produced - The particular Serial No. of Notification covers various types of goods which are in nature of machinery, instruments, apparatus and appliance - It also covers all components, raw materials required for manufacture of aforesaid items - Goods supplied for two Mega Power Projects can be considered as components which are used for manufacture of other goods used for power project - Under similar circumstances, Tribunal in case of GANGES INTERNATIONAL has extended the benefit of notfn 6/2006 as well as 12/2012.

Goods for supply to International Competitive Bidding also stands exempted in terms of Notification 21-2002-Cus - The adjudicating authority has denied the benefit by taking the view that Custom Duty exemption under notification will not be available to assessee for the reason that same is applicable only to goods covered under Project Imports under CTH 9801 - Since there is no corresponding entry in Excise Tariff, he denied the Central Excise exemption under Sl. No. 336 of notification 12/2012 - By following the decision of Tribunal in CORDS CABLE INDUSTRIES PVT. LTD, denial of benefit of notification for good supplied against International Competitive Bidding is not justifiable, same is set aside: CESTAT - Appeals allowed : DELHI CESTAT

2018-TIOL-735-CESTAT-DEL

Hindustan Sanitary And Industries Ltd Vs CCE

CX - M/s Jindal Sanitary Works (JSW) engaged in manufacture of PVC sanitary ware - DGCEI investigated the case and found that JSW had five other units wherein similar goods were being manufactured and all six units were availing SSI exemption - After completion of investigation SCN was issued proposing to club the value of other five group companies into the turnover of JSW which came to be decided vide impugned order - The investigation undertaken has clearly brought out that finished goods i.e. bath tub, PVC cistern and seat covers were being manufactured in SS and JSW whereas invoices were being issued from GP and payment was received as reflected in books of accounts - After appreciation of overall evidences, picture that emerges is that none of companies had the full infrastructure to manufacture the goods they were shown to make - The final assembly of goods said to be manufactured in different units - There is no clear evidence of flow back of funds among the units - All these evidences lead to an escapable conclusion that all the units were having separate existence in record by taking separate registrations under sales tax/ income tax - They were also filing separate declarations every year to Central Excise authorities claiming that their turnover was below the SSI limit - Finding of adjudicating authority that the turnover of all units was required to be clubbed for purposes of SSI exemption cannot be justified.

As regards to allegation of clearance of goods by JSW bearing the brand name belonging to HSW, such goods were cleared bearing only certain marks representing the different models and not with the brand names - These items were received by HSW in their trading godown where the recipient affixed their own brand names such as "Hindware" and "Rassi" and then cleared in their packing material - The supply was exclusively to HSW - No item was sold in open market - Assessee were doing job work.

Further, the allegation that the goods cleared to HSW were bearing the brand names of the later is not substantiated by corroborated evidence - In his statement, Sh. Ghosal, official of HSW, has confirmed the statement of assessee that they were not marking the finished goods supplied to HSW with brand names, "Hindware" or Rassi" - They were initially mentioning the model number of products manufactured for supply of HSW - Such marks cannot be considered as brand names in absence of any investigation to prove the name mentioned on such labels was brand name or name of another person as has been held by Tribunal in case of Sams Techno Mech 2015-TIOL-2765-CESTAT-MUM - There is no justification for denying SSI benefit to assessee - Also all the penalties imposed are not justified and set aside - The original adjudicating authority is directed to recalculate (re-quantify) the demand after allowing the SSI benefit for clearances to HSW - To this extent impugned order is modified: CESTAT - Appeals allowed : DELHI CESTAT

2018-TIOL-734-CESTAT-ALL

Bharat Traders Vs CCE

CX - M/s Surya engaged in manufacture of Biscuits and announced a sales promotion scheme called "Swarn Jayanti Dhamaka" for promotion of sale of goods manufactured by them - The Head Office of M/s Surya used to maintain card summary sheets which contained the information about purchases made by retailers and the gifts distributed to them - On the basis of gifts distributed, as recorded in card summary sheets and the sales target required to be eligible to get a particular gift were taken into consideration and a SCN was issued since it appeared to Revenue that on the basis of such calculation the sales reflected in record of card summary sheets was much beyond the clearances made by M/s Surya as reflected in records - SCN has not established that alleged quantity of clandestinely cleared goods valued at Rs.4.25 Crores was in addition to clearance of goods valued Rs.43,84,58,438.26/- as reflected in record - Further value of alleged clandestinely cleared goods was based on such records of third party which are not covered by any accounting standards - Revenue did not ascertain the value of clearance from statutory record and information in books of account maintained by M/s Surya in the normal course of business to establish that the statutory records and books of account are not reliable - Tribunal has recorded the finding in respect of M/s Varanasi Bottling Company Ltd. & Others 2017-TIOL-3719-CESTAT-ALL - In respect of inputs found short, no evidence has been produced to establish that they were used in manufacture of goods clandestinely manufactured goods and its clandestine clearance - SCN is presumptive in nature and therefore, impugned order set aside: CESTAT - Appeals allowed : ALLAHABAD CESTAT

2018-TIOL-733-CESTAT-CHD

CCE Vs E G Pharma Pvt Ltd

CX - Whether the physician samples cleared by assessee to brand owner are to be valued as per Section 4 of CEA, 1944 or as per section 4A of the Act - These physician samples cleared by assessee to the brand owner on some transaction value on which they have discharged the duty as per section 4 of the Act - In case of Cadila Pharmaceuticals 2008-TIOL-1668-CESTAT-AHM-LB , physician samples were cleared by the manufacturer free of cost to the retailers - Admittedly, these physician samples cleared by assessee to the brand owner/ on some transaction value, in that circumstance, decision of said case is not applicable to the facts of this case - Further, on the similar facts, Tribunal has examined the issue and held that the physician samples cannot be valued - There is no merit in Revenue's appeals and accordingly the same are dismissed: CESTAT - Appeals dismissed : CHANDIGARH CESTAT

 

 

 

CUSTOMS SECTION

2018-TIOL-389-HC-MAD-CUS

Media Graphics Vs CC

Cus - The challenge in Writ Petitions is to summon issued under Section 108 of Customs Act, 1962 - Petitioner does not dispute the authority or jurisdiction of DRI to summon the petitioner - Challenge to the impugned summons is on very limited ground stating that no useful purpose would be served by directing the petitioner to appear before second respondent, inasmuch as, already the petitioner has appeared and statement has been recorded - Much earlier, the third respondent inspected the business premises of petitioner and has also recorded statement and seized documents, mobile phones, computer hard disks etc., and once again to summon the petitioner for very same purpose is only with a view to harass the petitioner and some how make the petitioner accept that he/they has/have under valued the value of imported goods - According to petitioner, he has fully complied with requirement and furnished the necessary document - However, in the impugned summons, there is no direction to petitioner to produce any documents, which is under his control - Thus, if petitioner's presence is required for further questioning pertaining to certain information, which they have subsequently secured, the same should have been made known in impugned summons - However, this may not invalidate the summons by itself, but can be stated to be in violation of principles of natural justice - Summons cannot be quashed as no investigation can be interfered or thwarted at the very threshold - However, petitioner is entitled to protection of his life and liberty and he is entitled to know the purpose for which he is being summoned, which has not been mentioned in impugned summons - Thus, while declining to set aside the impugned summons, there will be a direction to respondents 2 and 3 to issue fresh summons clearly indicating as to what purpose, the petitioner is being summoned and what are the documents, which he is required to produce, while attending the hearing before the third respondent: HC - Writ petition dismissed: MADRAS HIGH COURT

2018-TIOL-730-CESTAT-ALL

Millard Logistic Pvt Ltd Vs CCE

Cus - the appellant is a Customs broker - It was found that the import of an assorted consignment of soft drinks, juice, Chocolate Baked Beans, Vinegar & Sauces was sought to be cleared on the basis of false and forged documents - The FSSAI certificate submitted was found to be fake - The appellant's license was suspended - When the matter initially came to the Tribunal, it was held that the charges against the appellant were not serious, there was no loss of revenue & no reasons requiring suspension of license - Subsequently, the Department dropped the proceedings but imposed an amount of penalty -

Held - From the facts, it emerged that an employee of the assessee had made genuine efforts to obtain an NOC from the FSSAI and that it was another agent who supplied the fake documents - The penalty had been imposed for the appellant's inability to control its employees - In light of the genuine efforts to procure an NOC & that the appellant was not involved in improper action, the penalty warrants being set aside: CESTAT (Para 2-6) - Appeal Allowed : ALLAHABAD CESTAT