2018-TIOL-NEWS-084 Part 2, Dated: Wednesday, April 11, 2018

ST - Assessee engaged in trading and transportation of natural gas and entered into contracts for sale of natural gas with various clients - They have transported the gas for sale up to the point of delivery - In terms of agreement, assessee indicated three charges in the invoices; the price of gas, marketing margin and transportation cost - The dispute in the present appeals relates to the includability of marketing margin charged by assessee in taxable value for services of transportation of gas through pipeline in terms of Section 65(105) (zzz) - An identical issue has come up before Tribunal in assessee's own case in Gail India Ltd. 2017-TIOL-2877-CESTAT-DEL - By following said earlier order, no merit found in impugned orders and the same are hereby set aside: CESTAT - Appeals allowed : DELHI CESTAT

CX - M/s Mahabir Steel Tubes set up a unit at Roorkee in year 2008 and were availing the benefit of Notfn 50/2003 CE - On 5/01/2016, assessee took over the unit and relocated the factory to the premises in Salempur Industrial Area, Roorkee - The assessee also claimed benefit of Notfn 50/2003 but the same was denied by both the authorities below - The Revenue had taken the view that the entire premises occupied by M/s Mahabir Steel Tubes was leased to M/s Wonder Fibromat Pvt. Ltd and the original unit was not functioning on the date when the same was taken over by assessee - From the record available, it is noticed that certain portion of original factory continued to exist in the name of M/s Mahabir Steel Tubes on the date on which the unit was taken over and subsequently shifted - Assessee has also asserted that the same machinery was shifted to the new premises and to this extent the Chartered Engineer certificate was produced before the Revenue Authorities but the same has not been considered and discussed by both the authorities below - It is necessary that the said Chartered Engineer's Certificate is to be considered and the fact verified and established that the same unit has been physically shifted to a new premises - For this purpose, matter remanded to the Original Authority to pass de novo orders on the subject: CESTAT - Matter remanded : DELHI CESTAT

CX - Main assessee is a partnership firm of Shri Rakesh Bhargava and Smt. Lata Bhargava, who are engaged in manufacture P&P Medicines and other pharmaceutical goods - The goods manufactured were cleared on payment of duty and they were maintaining records like RG-1 register issuing invoices under Rule 11 and records of Central Excise - During course of search, various documents were recovered and thereby seized - Charge of clandestine removal of goods has been made against assessee on the basis of chemist diaries recovered from Chief Chemist, the main evidence and on the basis of statements recorded thereof - Evidence of manufacturing of goods has not been coming out from diaries maintained by Shri Y.K. Bhargava - Moreover, Shri Y.K. Bhargava joined the assessee's firm in June, 2005 and prior to that one Shri Duggal was Chief Chemist and the diaries were maintained by him, without examination of statement of Shri Duggal, said diaries cannot be relied upon as piece of evidence - During the adjudication, the statement of Shri Y.K. Bhargava was not examined in chief and thereafter no opportunity of cross examination of Shri Y.K. Bhargava is afforded to assessee, therefore, there is gross violation of principle of natural justice - In terms of Section 9D of CEA, 1944 as held by Punjab & Haryana High Court in case of Jindal Drugs Pvt.Ltd. 2016-TIOL-1230-HC-P&H-CX , the diaries recovered from Chief Chemist and their statement cannot be relied upon to alleged clandestine removal of goods - Moreover, in the case of Arya Fibres Pvt.Ltd. (supra), this Tribunal has laid down the guidelines for alleging clandestine removal - In view of the guidelines given by Tribunal for alleging clandestine removal in case of Arya Fibres Pvt. Ltd. 2014-TIOL-15-CESTAT-AHM same has not been followed to allege clandestine removal of the goods, therefore, the demands on the basis of diaries recovered and other documents recovered from assessee cannot be the basis to allege clandestine manufacture of the goods - All the demands are on the basis of assumptions and presumptions - Therefore, the impugned demands are not sustainable against assessee in absence of any concrete proof against them: CESTAT - Appeals allowed : DELHI CESTAT

CUSTOMS SECTION

TRADE NOTICE

dgft_trade_notice_02_2018

Launch of facility to check status of Importer Exporter Code (IEC) application made to DGFT

CASE LAW

2018-TIOL-1146-CESTAT-AHM

Deepak Hiralal Parekh Vs CC

Cus - Assessee filed refund claims of 4% SAD paid on imported goods on sale of said goods "as such" following of procedure prescribed under Notfn 102/2007-Cus - Same was sanctioned to them - Later on investigation, discrepancy between the invoices submitted before customs authorities in claiming the refund claim and sales invoices issued to customers has been noticed and accordingly SCN was issued to assessee for recovery of refund amount paid and proposal for penalty and personal penalty on co-noticees - In explaining the reason for such discrepancy it is stated by assessee that imported timber logs are sold as it is and some times it were cut/sawn to smaller sizes/shpaes and sold by them - Therefore, it becomes difficult to reconcile the invoices issued with Bills of Entry wise - But, there is no variation in total quantity imported and sold by assessee on which refund of 4% SAD claimed - Tribunal find nowhere it has been brought in impugned Order that assessee has not sold the goods that were imported by them 'as such' in local market, nor payment of said 4% SAD is in dispute - Considering that sawing of timber log into small sizes does not change character of said goods and continue to remain clearances as such, as held by Judgement of Gujarat High Court in case of Variety Lumbers Pvt Ltd. 2012-TIOL-821-HC-AHM-CUS - There is no merit in impugned order, confirming denial of refund of 4% SAD under said Notfn only on the ground of mis-match between invoices, when all other conditions of said notification is complied with and refund of the said amount has earlier been sanctioned by adjudicating authority to them after due verification of records: CESTAT - Appeals allowed : AHMEDABAD CESTAT