2019-TIOL-245-CESTAT-MUM

Bridgestone India Pvt Ltd Vs CCE & ST

CX - CENVAT - Appellant had reversed Rs.8,68,069/- and the same was appropriated in the adjudication order - as per requirement of section 11A(6) of the CEA, 1944, the appellant also paid penalty @1% of the amount of CENVAT credit reversed by it - since appellant had already paid the penalty as per the mandate of the section, there was no requirement of issuance of any SCN with regard to the amount of CENVAT credit reversed by the appellant - impugned order insofar as it imposed equal amount of penalty of Rs.8,68,069/- is not sustainable and does not stand judicial scrutiny: CESTAT [para 8]

CX - CENVAT - Rule 2(l) of CCR, 2004 - Prevention of pollution within the factory premises is a statutory requirement and credit of service tax paid on such service should be available to the manufacturer in view of the decision in ESAB India Ltd. Final order no. 40005-40006/2016: CESTAT [para 9]

CX - CENVAT - Rule 2(l) of CCR, 2004 - Tour Operator service was availed by the appellant for sending its dealers to outside country on pleasure trip - since such service is not specifically finding place in the definition of ‘input service', denial of CENVAT credit is proper and justified: CESTAT [para 10]

CX - CENVAT -Rule 2(l) of CCR, 2004 - Architect/design/engineering service is a distinct service and is not specifically included in the exclusion part of the definition of ‘input service', therefore, denial of CENVAT credit is not legal and proper: CESTAT [para 11]

- Appeal disposed of: MUMBAI CESTAT

CCE Vs Indorama Synthetics (I) Ltd

CX - Notification 67/95-CE does not exempt National Calamity Contingent Duty - unless NCCD is mentioned in the notification, benefit cannot be extended - no ambiguity in the wordings of the notification so the same needs to be strictly construed - Revenue appeal allowed: CESTAT [para 6, 7]

- Appeal allowed: MUMBAI CESTAT

PLA Components Vs CCE

CX - Whether ‘Relays' cleared by the appellant are liable to be assessed u/s 4A of the CEA, 1944 as alleged by Revenue instead of under s.4 as claimed by assessee - Whether the extended period of limitation is invokable - Whether the brand name ‘PLA Relays' belongs to the assessee and whether the SSI exemption is available to the assessee - both assessee and Revenue are in appeal, assessee on the grounds above and Revenue in the matter of imposition of penalty u/s 11AC of the CEA, 1944.

Held: Manner of assessment of ‘Relays' sold in the manner as have been cleared by the appellant assessee is no longer res integra - Tribunal has in the case of Schneider Electric India (P) Ltd . - 2014-TIOL-337-CESTAT-MUM held that assessment of goods manufactured and cleared by appellants is required to be done in terms of s.4A of the CEA, 1944 - insofar as brand name issue is concerned, it is an admitted fact that the appellants were using the brand name on their goods which did not belong to them but was owned by someone else - in view of the apex court decisions in Kohinoor Elastics P Ltd . - 2005-TIOL-120-SC-CX , Parle Bisleri Ltd . - 2010-TIOL-115-SC-CX , Grasim Industries Ltd . - 2005-TIOL-69-SC-CX-LB , Ace Auto Comp. Ltd . - 2010-TIOL-112-SC-CX and the facts determined by the adjudicating authority in his order, the benefit of exemption under notifications 9/2002-CE, 8/2003-CE has been correctly denied to the appellants - in the matter of cross examination sought by appellant, the view of the Commissioner that because the depositions made by the sub-dealers is acceptable to him, there is no need for granting an opportunity of cross examination is contrary to the principles of natural justice and against the principles of fair administration of justice - on this count the matter needs to be remanded - in the matter of appeal no. E/89384/2013, as the Commissioner(A) while accepting the appeal filed by Revenue of confirmation of demand has not rendered any finding on limitation, the matter is required to be remanded moreso since the adjudicating authority had set aside the demand only on the merits of the case - as the matter of imposition of penalty u/s 11AC is directly linked to the decision in invocation of extended period of limitation as held by the apex court in the case of Rajasthan Spinning Mills - 2009-TIOL-63-SC-CX , the subject matter is also remanded to the adjudicating authority - Appeals disposed of accordingly[para 5.2, 5.3, 5.4, 5.5, 5.6, 6.1]

- Appeals disposed of: MUMBAI CESTAT

Cus - The petitioner is seeking direction to respondents to release the seized goods, which is a consignment of L.P.G. cylinders - The petitioner states that in the Truck, which was carrying consignment of empty L.P.G. cylinders, tortoise skin was found and proceedings were initiated against truck driver under Wild Life Protection Act - On an application of petitioner for release of cylinders filed before the Chief Judicial Magistrate, the Magistrate passed an order for release of L.P.G. cylinders in favour of petitioner on furnishing a personal bond of Rs. 12 lacs but the same has not yet been released - Respondent no.2 submits that the application for release of cylinders under Section 110 (A) of Customs Act, 1962 was filed before the respondent no.3 and therefore direction may be issued to the respondent no.3 - Writ petition is disposed of with a direction to respondent no.3 to consider and decide the petitioner's application sent through registered post in accordance with law preferably within a period of 15 days: HC

- Writ petition disposed of : ALLAHABAD HIGH COURT

2019-TIOL-175-HC-DEL-CUS + Case Story

International Lease Finance Corporation Vs UoI

Cus - Kingfisher woes - Import of aircraft engine for fitting in a cannibalized aircraft - there is no question of respondents/Customs Authorities insisting that the Guaranteed Remittance Declaration [GR] requirement under Foreign Exchange Management (Export of Goods and Services) Regulations, 2000 was mandatory or that, in its absence, exemption from RBI was necessary - in cases like the present one, if compelling circumstances lead the original owner to bring in goods to remedy an unforeseen eventuality, such as the need to fly back an aircraft, it is not to be subjected to such requirements - absurdity is writ large on the face of the record - Order-in-original quashed and set aside - drawback claim u/s 74 of the Customs Act, 1962 to be processed within four weeks and amounts to the extent permitted in law be released along with interest: High Court [para 13 to 16]

- Petition allowed: DELHI HIGH COURT

2019-TIOL-242-CESTAT-BANG

Sutures India Pvt Ltd Vs CC

Cus - The assessee, a 100% EOU is engaged in manufacture and export of 'Surgical Sutures and Needles' - They are holders of Customs Private Bonded Warehousing Licence and In-Bond Manufacturing Sanction for their EOU operations - A SCN was issued to assessee demanding foregone duty on the ground that the item in question did not find place in the list of items and EOU was entitled to procure without payment of duty as appearing in Notfn 22/03-CE and the said item was not used in connection with manufacture and packaging of articles of export goods - There is no dispute regarding the fact that goods were procured by assessee against valid CT-3 certificate issued by Range Officer under Notfn 22/2003-CE and the said goods were warehoused by Range Officer after necessary verification and after full satisfaction regarding the use of impugned items in manufacture of export goods - It has not been disputed by both the authorities below that the impugned goods have not been diverted by assessee and have been put to use in the EOU - Subsequently, the Development Commissioner has accorded approval for procurement of prefabricated RPUF Insulated Panels which is identical in nature with only difference in description - The duty can only be demanded at the time of debonding and demand prior to debonding would be premature - In the case of Kejriwal Bee Care (I) Ltd., Tribunal has held that there is no definition for capital goods in Notfn 22/2003-CE and the definition of capital goods under CCR, 2004 are not applicable to exemption notification EOU - The impugned order is not sustainable in law and therefore the same is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT

Trade Wings Logistics India Pvt Ltd Vs CC

Cus - The assessee is holding customs broker licence - As per impugned order, the licence of customs broker / assessee has been suspended indefinitely as it states that suspension order should continue until further orders - In the earlier order of suspension, it is brought out that statements of various persons including Shri M. Jayakumar who is alleged to have handed over the KYC documents to assessee were taken by department - The department has issued summons to Shri S.Sukumar of M/s.Easwar Logistics and he also appeared before department and gave his statement - The finding in impugned order is that the assessee did not directly collect authorization letter and KYC norms from importer but got the same through Mr. Jayakumar of Easwar Logistics which is clear violation of obligation under Regulation 11 (a) and (m) of CBLR, 2013 - The Regulation does not specifically mention that customs broker has to obtain KYC norms from importer directly - It only states that assessee has to comply with obtaining KYC documents - It is also not the case of department that assessee has played any active role in importation of misdeclared consignment - Further, even after 9 months of issuing SCN, so far there has been no proceedings for revocation of the licence - Department cannot issue orders of suspension indefinitely in the guise of revocation of licence so as to obstruct the customs broker from engaging in his activities of livelihood indefinitely - The provisions under Regulation 19 (2) for suspension of the licence cannot be used for issuing orders of suspension indefinitely so as to give the effect of revocation of licence - The impugned order for continuation of suspension of customs broker licence is unjustified and is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT