SERVICE TAX

2019-TIOL-104-CESTAT-DEL

Govind Prasad Gupta Vs CCE & ST

ST - The assessee is a provider of service for investment of money and getting commission on investment amount which fall under category of BAS - Alleging the same and that the tax liability has not been discharged by assessee, a SCN was served upon the assessee - The controversy herein is as to whether the order of Original Adjudicating authority was ever received by assessee - Sub-clause (a) of Section 37 C of CEA makes it clear that the service of the order by the registered post with acknowledgement due to the person for whom it is intended or his authorised agent is the sufficient service - From the order under challenge, it is apparent that there is a document of dispatch of the order i.e. vide dispatch No.2200 dated 3rd March, 2010 - In view thereof, the compliance of Rule (a) Section 37 C of CEA stands fulfilled - There was no need to the Department to adopt any other mode as prescribed under various other Sections - As regards to the plea of assessee that they have not received the order, there is a clear cut finding of Commissioner (A) about receiving the aforesaid dispatch order with an endorsement/remarks "lene se inkar" - The said finding makes it clear that the dispatched order was served upon the assessee - However was refused to be received by him - The law has been settled that refusal to receive any process amounts to a sufficient service - Otherwise also, as per Section 85 sub-clause (3) of the Finance Act, the appeal before Commissioner (A) could have been filed within 60 days of such receipt of order under challenge - The proviso to said Section empowers the Commissioner to condone the delay of subsequent 30 days - The Section makes it clear that legislature has fixed a statutory limit for the purpose of any appeal to be filed before Commissioner (A) - Resultantly, Commissioner (A) has no discretion to condone the delay beyond 90 days of the service of the order under challenge - The communication for inquiring status of appeal, as impressed upon by assessee are observed to have been given to the Department after a delay of more than 7 months of date of order under challenge - The perusal of record further shows that even before the adjudicating authority despite 5 different opportunities of personal hearing, assessee has not appeared - Moreover the Commissioner had no power to condone the delay of more than 3 years - Order is held to have no infirmity: CESTAT

- Appeal dismissed: DELHI CESTAT

 

 

CENTRAL EXCISE

2019-TIOL-107-CESTAT-BANG

CCE, C & ST Vs Binani Zinc Ltd

CX - Assessee is engaged in manufacture of Unwrought Zinc, Sulphuric Acid and Cadmium and are availing cenvat credit on inputs, capital goods and input services - On verification of records maintained by assessee, it was found that they had availed service tax credit during period from November 2007 to March 2008 being the service tax paid by them in respect of outward transportation of goods and utilized the same for payment of duties of excise on the goods cleared by them - On the allegations that assessee has availed wrong cenvat credit, a SCN was issued to assessee - The Commissioner (A) after discussing the provisions of CCR, 2004 regarding input service and the place of removal has come to the conclusion that transportation of goods from the factory to the consignment agent's premises fall in definition of 'input service' - There is no infirmity in impugned order which is upheld by dismissing the appeal of the Revenue: CESTAT

- Appeal dismissed: BANGALORE CESTAT

2019-TIOL-106-CESTAT-BANG

Fp Seating Systems Pvt Ltd Vs CCT

CX - The assessee is engaged in manufacture and clearance of ‘Flexible Polyurethane Cushion' and is also registered with Service Tax for rendering/receiving various services like ‘Goods Transport Agency Service and Security Services' - During audit, it was observed that assessee had availed cenvat credit on Education Cess and Secondary Higher Education Cess paid on imported goods on the basis of Dealer Invoices issued by M/s. Dow Chemicals International Pvt. Ltd. - A SCN was issued demanding irregular credit along with interest and penalties - The assessee have taken CENVAT credit on the basis of invoices issued by M/s. Dow Chemicals International Pvt. Ltd. - They have paid the education cess and secondary higher education cess even though as per Notfn 14/2012, they were not required to pay the same - Further, assessee have taken the credit on basis of valid invoices issued by dealer and Department cannot question the taking of credit at the receivers end even if some irregularities are there at the end of the dealer - Substantial demand is also barred by limitation as there is no suppression on the part of the assessee as assessee has been filing ER1 returns and showing the credit availed and there is no specific allegation of suppression of facts with intent to evade payment of duty in SCN - On merit, the impugned order is not sustainable and therefore without going into the question of limitation, impugned order is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT

2019-TIOL-105-CESTAT-MUM

Maneesh Exports Vs CCE

CX - Since raw materials/inputs were removed by the appellant for further manufacture of the finished goods, the case of the appellant falls under the purview of rule 4(5)(a) of the CCR and this rule does not provide for any permission to be obtained from the jurisdictional CE officer for removal of goods from the factory - therefore, permission letter for removal of material withdrawn subsequently by department w.e.f 29.01.2007 cannot be a ground to deny the CENVAT benefit inasmuch as availment of credit is permissible on the basis of receipt of inputs in the factory - rule 3(5) will not be applicable for payment of equal amount of CENVAT credit availed on such inputs - impugned order set aside and apeal allowed: CESTAT [para 6, 7]

- Appeal allowed: MUMBAI CESTAT

 

 

CUSTOMS

2019-TIOL-75-HC-DEL-NDPS

Harish Joshi Vs DRI

NDPS - Appellant has filed the present appeal impugning judgment whereby he has been held guilty of an offence under Section 21 (c) and 29 of NDPS Act, 1985 has been sentenced to undergo Rigorous Imprisonment for a period of 10 years and to pay a fine of Rs. One lakh for each of the offences and in default to further undergo Rigorous Imprisonment for a period of three months - As per prosecution, since the place where car was intercepted was not safe for conducting search and other proceedings, the Indica Car and the three persons were brought to DRI Office at CGO Complex Delhi - Search of Indica Car resulted into a recovery of one black colour zipper trolley suitcase and on removing the base fabric of the suitcase, a sun mica sheet was found affixed and in between the sun mica sheet, five packets wrapped in transparent tape were found - The packets were found to contain yellowish granules/ powder, on being tested, they tested positive for Opium Alkaloids - Appellant contended that the driver who was the most crucial witness of arrest, search and seizure has not been examined by prosecution, despite being cited as a witness - Further it is contended that the story of prosecution is completely implausible and does not seem to reason as to why the appellant who was not in TATA Indica Car when it was allegedly intercepted by DRI Officers would sit in the car so as to be apprehended later in the car - Appeal has already been admitted and there is no likelihood of the appeal being taken up for final disposal shortly - Without commenting on merits of the case, court is satisfied that the appellant has made out a case for grant of suspension of sentence pending consideration of the appeal - Accordingly, on appellant furnishing a bail bond in sum of Rs. 1,00,000/- with two sureties, each having immovable property in Delhi, of the like amount to the satisfaction of the trial court, the remaining sentence of appellant shall remain suspended during pendency of the present appeal: HC

- Application disposed of: DELHI HIGH COURT