ST - The principal issue between the department and the respondent-manufacturer is with respect to assessee's claim of Cenvat credit of service tax paid on sales commission - Such an issue was decided by Division Bench of Court in case of Cadila Healthcare Ltd 2013-TIOL-12-HC-AHM-ST in favour of department - This view was reiterated in Astik Dyestuff Pvt. Ltd 2014-TIOL-237-HC-AHM-ST following the judgement in case of Cadila Healthcare - The legislature subsequently added an explanation to the definition of term “input service” defined under Cenvat Rules - Ahmedabad Bench of Tribunal in case of Essar Steel India Ltd 2016-TIOL-520-CESTAT-AHM held that such amendment is clarificatory in nature and would therefore, with retrospective effect - In essence, it would cover a period prior to the date of amendment i.e. 03.02.2016 also - Such judgement has been challenged by department before the High Court - Department's appeal is pending - In view of such facts, the options before the Tribunal were either to await the outcome of department's appeal in case of Essar Steel India Ltd if the decision in such appeal was likely to be rendered in near foreseeable future which would in addition to reducing the effort of both sides would also in many cases eliminate one stage of litigation - However, if Tribunal was of the opinion that judgement of High Court may not be available in near future or for any such other good reason, it would not possible or advisable to await the outcome, the option with the Tribunal was to decide the appeals on merits after hearing both sides.

Dispensation of justice is not number games and should not be brought down to mere statistics - Through the mode adopted by the Tribunal all that has been achieved is to show disposal of large number of appeals and crossobjections without resolution of the disputes between the parties - This disposal is also not final and is open to reopening of all the issues - This would lead to multiplicity of proceedings - Court wonder what would happen if no appeal is filed as per the liberty granted by Tribunal - Whether the decision against the losing party would achieve finality; in which case what would happen to the tax or the refund is not clear - At which point of time such finality would be presumed is not specified - All in all, this is the most unsatisfactory manner in which, such large number of proceedings should have been eliminated from the record of Tribunal which can achieve only statistical purpose - The order passed by Tribunal serves no other purpose - Section 35C(1) of the the Central Excise Act, mandates the Tribunal to dispose of the appeals on merits - It was simply not open for the Tribunal to jettison the litigation in this manner: HC

- Appeal allowed : GUJARAT HIGH COURT

CENTRAL EXCISE

2018-TIOL-1751-HC-AHM-CX

Commissioner, GST and Central Excise Vs Shree Shakambari Silk Mills

2018-TIOL-2659-CESTAT-DEL

Mahindra and MahindraVs CCE & ST

CX - Assessee is engaged in manufacturing of tractors - During audit, it was observed that the assessee was availing credit of Education Cess and Secondary Higher Education Cess paid on inputs and is utilising the same towards payment of Education Cess and Secondary Higher Education Cess payable on Tractor Cess on the Tractors although the same is not admissible in terms of Rule 6(1) of CCR, 2002 since the final product i.e. 'Tractors' are wholly empted from payment of Excise duty - The issue whether tractors on which Automobiles Cess and Education Cess is payable can be considered as exempted from the whole of duty of excise thereon or chargeable to nil rate of duty as required under Rule 2(d) of Cenvat Credit Rules came up before Tribunal in Mahindra & Mahindra 2007-TIOL-534-CESTAT-MUM - Since tractors are exempted goods therefore credit of inputs is not admissible in terms of Rule 6(1) of CCR, 2002/2004 for the reason that the final product i.e. tractor are wholly exempted from payment of duties of excise - Mere filing of appeal before the High Court against the Tribunal's orders does not entitle the assessee to avail and utilized cenvat credit, since no stay has been granted by High Court - The conduct of assessee by availing and utilizing the cenvat credit despite the order passed by this Tribunal in the matter of Mahindra & Mahindra establishes that they have contravened the provisions of Central Excise Act and Rules made therein with intention to avail in-admissible credit and utilizing the same for discharging the education cess and secondary higher education cess - The impugned order is upheld and the matter is remanded to Commissioner (A) for the limited purpose of verifying whether the Cenvat credit amount of Rs.9.20,492/- which according to the assessee they have already reversed, has been taken care of while raising the demand from the assessee and also for passing appropriate order on this issue only: CESTAT

- Matter remanded: DELHI CESTAT

Raiganj Plywood Products Vs CCE

CX - The assessee is a SSI unit, engaged in the manufacture & trading of commercial plywood out of veneer purchased from the market – The assessee were availing benefit of notification available to small scale unit for the threshold limit and later were paying duty at concessional rate - Duty demand was raised- The matter went through three stages of litigation wherein, the order-in-original was modified imposing penalties on the proprietor – Hence, the present appeal.

Held: The Commr. (A) confirmed the demand and imposed penalty on the manager of the assessee-firm – Subsequently, in the second order the Tribunal remanded the matter with a direction to supply the Jabeda Khata and to discuss as to how the invoices and challans were relatable to the entries made in the Jabeda Khata and how the same was corroborated - The Commissioner in the de novo order after allowing abatement of duty from cum duty price, confirmed the demand along-with interest and imposed penalty of equal amount of duty as well as penalty on the proprietor – However, there has been slackness on part of the Revenue as it did not bring on record any evidence with regard to purchase of raw-materials to substantiate the allegation of clandestine manufacture and removal of finished goods – Further, the assessee did not make any enquiry with the Sales Tax Authority or Income Tax Authority to find out whether the sales returned to them deviated materially, if so to what extent and reasons – Following the principle laid down by the SC in the case of Oudh Sugar Mills Ltd vs. UOI wherein it was held that the demand of duty cannot be raised on the strength of assumptions and presumptions, there should be sufficient evidence of the removal of the goods alleged to be manufactured and cleared without payment of duty – Hence, the demand confirmed and penalties imposed in the third adjudication order is set aside : CESTAT(para 1, 7, 8, 9, 10)

- Appeal Allowed: KOLKATA CESTAT

Tata Steel Ltd Vs CCE

CX - Assessee, a manufacturer of steel products, had in accordance with practice prevailing then, been privileged to discharge duties of central excise by consolidated debit on clearances at the end of the day instead of debiting the duty liability for each consignment subject to maintenance of reconcilation statements of such debits - On audit, discrepancies were noticed for the period from January 1994 to February 1998 and duty computed on short-levied was deposited under protest on 17th December, 1997 - The adjudicating authority has failed to discharge its responsibility of ascertaining the tax liability, the special privilege of daily discharge of tax liability arising out of the specific peculiarities in the manufacturing process and sanctified by instructions/circulars of CBEC, indicates the intention to deviate from normal practice of duty liability - It is in this context that the decisions cited must be seen and the principles laid down therein should have been complied with by the adjudicating authority - The principles laid down in re Thumbay Holdings Pvt Ltd. was not available to the adjudicating authority thus depriving him of judicial decorum - The failure to afford adjustments of excess against short fall is attributable to insufficient assistance in adjudication proceedings - Therefore, the adjudicating authority must be given an opportunity to conform to judicial decisions - To enable such rectification, adjudicating authority is directed to evaluate the submissions made by assessee and the applicability of judicial pronouncement to determine the liability, if any, afresh: CESTAT

- Matter remanded: KOLKATA CESTAT