SERVICE TAX
2019-TIOL-510-CESTAT-DEL
Ram Sahay Daderwal Vs CCE & ST
ST - The appeal was filed on 15.03.2013 which is apparently delayed by more than 2 years - Except their own letter of 2012 and a subsequent letter of 2013, there is nothing on part of the assessee as a reasonable justification for this delay - All those letters cannot be denied as an afterthought strategy to overcome the issue of limitation - Otherwise also, as per Section 37C, it being a statutory provision, Commissioner (A) has no authority to go beyond the provision - The word "shall" used therein makes a mandate for Commissioner (A) to not condone the delay of even one day beyond the period of 60 days + 30 days - His discretion being available for the said 30 days only, as a result, there is no apparent infirmity in the Order - Finally, Tribunal rely upon the case of Singh Enterprises - 2007-TIOL-231-SC-CX - As a result, no merit found in the appeal, same is accordingly dismissed: CESTAT
- Appeal dismissed: DELHI CESTAT
CENTRAL EXCISE
2019-TIOL-512-CESTAT-MAD
Agni Steels Pvt Ltd Vs CGST & CE
CX - The Department alleged that the assessee indulged in clandestine removal during the relevant AY - Duty demand was raised with interest u/s 11AB and imposition of penalties - On adjudication, the quantum of the demands was reduced - Hence the present cross appeals by the assessee as well as the Revenue.
Held: It is seen that the adjudicating authority referred to procurement of raw materials such as MS Scrap, Ingots, Sponge Iron, Coal and Furnace Oil, allegedly by unaccounted means to prove suppression of production - Regarding production of bars and by-products, reference is made to the statement of two employees of the assessee-company - However, it is seen that there is no reference is made to mode of transportation of raw materials to the assessee's factory - The drivers of such transport vehicles were not examined - Further, the Commr. considered weighment slips, internal corroborating documents, documents seized from the dealers & chits - Now though the Commr. records the assessee's objection regarding non-enquiry regarding lorry drivers, the same was not deliberated upon - There is no discussion on gate passes issued either for delivery of raw materials or for transporting finished products - Besides, the Commr. also considered the Iron content in the raw material for the entire period & that too the highest Iron content rather than the average Iron content of the raw material - Clandestine removal is a grave misconduct & so the burden lies upon the Revenue to establish the same, beyond reasonable doubt, if not with mathematical precision - In this case, the statements relied upon by the adjudicating authority were subsequently retracted - Regarding documentary records & other evidence taken from seized pen drives, it is seen that the Department is obliged to fulfil requirements of Section 36B of CEA 1944 when utilizing such evidence - Computer print-outs were produced in the DGCEI office behind the assessee's back - Moreover, the assessee was absent when the deleted data was retrieved from pen drives - The situation here is worth appreciating, in the sense that the print outs were taken from standalone pen drives fed into computers in the DGCEI office and so such documents are susceptible to innumerable doubts - Thus in light of so many inconsistencies, the Revenue failed to conclusively prove clandestine removal - Hence the demands raised are not sustainable: CESTAT (Para 1,8.1-9,12.3,13,14.3,15)
- Assessees' appeals allowed: CHENNAI CESTAT
2019-TIOL-511-CESTAT-BANG
Minera Steel And Power Pvt Ltd Vs CCT & CE
CX - The assessee-company manufactures Sponge iron and MS Billets - The heat generated in the rotary kiln during manufacture process is recovered & then used for generation of electricity - Such power is captively consumed & surplus power is sold to the State DISCOM as required by law - The heat generated through burniong of Coke/Coal is residual waste in the rotary kiln - The Coke/Coal was thus used in or in relation to the manufacture of dutiable final products & hence the condition for availing credit was fulfilled - Upon audit, the Department alleged that the assessee did not pay 5/6% of the value of electricity sold - It was also alleged that the provisions of Rule 6 of CCR 2004 were attracted & since the manufacturer did not maintain separate accounts for the receipt, consumption & inventory of the input services and took CENVAT credit only on the services used for manufacture of dutiable goods, the assessee was required to pay an amount equal to 5% of the value of electricity sold - Subsequently, the Department raised demand of 6% of value of electricity sold to the State DISCOM, as per Rule 6(3)(i) of the CCR 2004 - Demand for interest was raised too - Such levies were sustained by the Commr.(A).
Held: It is seen that electricity is not goods attracting Excise duty, even if it is mentioned in the Tariff - Besides, electricity is not exempted goods & there is no manufacture of exempted goods - Thus the demands raised u/r 6(1), 6(2) & 6(3) of CCR are not tenable - Such a view is fortified by a Board Circular dated 23.12.2013 which states that Rule 6 of CCR would not apply upon manufacture of non-Excisable goods - Besides, on an identical issue in Vijayanagar Sugar (P) Ltd. it was held that Rule 6 of CCR is inapplicable - Thus in view of the settled legal position, the adjudication order is unsustainable and merits being quashed: CESTAT (Para 2,6)
- Assessee's appeals allowed: BANGALORE CESTAT
CUSTOMS
2019-TIOL-379-HC-AHM-CUS
Ratnamani Metals And Tubes Ltd Vs UoI
Cus - What is essentially under challenge is the illegal denial of the duty drawback on untenable objections, resulting into violation of petitioner's fundamental rights under Article 14 of the Constitution of India.
Held : Respondent department could not have resurrected the ground of incorrect mentioning of scheme code in the shipping bills for denying the drawback claim when the orders at page nos. 56 to 62 (of the petition) were passed after due verification of all the documents by the Competent Authority pursuant to order of this Court and adjudication of the matter in the form of order dated 6.5.2016, rendered by this Court in Special Civil Application No.8025 of 2015 - 2016-TIOL-1425-HC-AHM-CUS - the respondents were left with no option but to release the Drawback -in light thereof, the respondents' action for seeking amendment and holding out the provisions of section 149 of the Customs Act, was nothing but uncanny attempt to avoid the eventualities, which unfortunately compelled the petitioners to approach this Court for no reason, as had the authorities acted in accordance with law and processed the Drawback claim after the order at page nos. 56 to 62 was passed, the petitioner's consternation could have been avoided -therefore, this petition is required to be allowed and respondents are, therefore, directed to process the Drawback claim based upon the orders at page nos. 56 to 62 without any further delay and insistence upon rectifying the entry, as it hardly matters, so far as clearance of Drawback claim is concerned - in the result, the petition is allowed to the aforesaid extent : HIGH COURT [para10, 11, 12]
- Petition allowed : GUJARAT HIGH COURT
2019-TIOL-378-HC-DEL-CUS
Rama Krishna Sales Pvt Ltd Vs UoI
Cus - Whether the Customs Authorities are justified in withholding the consignment of parts of E-Rickshaws on account of non-production of a Type Certificate as required under rule 126 of the Central Motor Vehicles Rules, 1989 [CMV Rules]
Held :A motor vehicle is a contraption that can be used on roads - E-Rickshaw is clearly a motor vehicle; but the three parts in question (rear axle, motor and controller) imported by the petitioner, even though being substantial components of an E-Rickshaw, cannot be termed as motor vehicle within the meaning of section 2 (28) of the Motor Vehicles Act, 1988 -while rule 2(a) of the Interpretative Rules can be applied for treating the import of goods as an import of a complete E-Rickshaw for the purposes of the Customs Tariff Act, 1975, that is, for determining the applicable duties and tariffs, the said rule will have no application for treating the said goods as a complete E-Rickshaw under any other statute including the Motor Vehicles Act, 1988 and the CMV Rules -clearly, there is no scope for the specified organizations to grant a type approval only on the essential parts of an E-Rickshaw -if the contention as advanced by the respondents is accepted, it would mean that no person other than a manufacturer of an E-Rickshaw can import the essential components/assemblies of an E-Rickshaw -this is unpersuasive and cannot be accepted -the petitioner is bound down to the statement made by him that the goods would be sold to only registered manufacturers of E-Rickshaw and no other person and he would also submit an undertaking to the aforesaid effect - the Custom Authorities may forward the same to the concerned authorities under the Motor Vehicles Act, 1988 -the respondents are directed to clear the goods in question on payment of the duties as applicable to import of an E-Rickshaw -however, the respondents cannot withhold the goods for want of a type approval under rule 126 of the CMV Rules - the petition is disposed of in the aforesaid terms : HIGH COURT [para9, 26, 27, 28, 29, 30]
- Writ Petition disposed of : DELHI HIGH COURT
2019-TIOL-358-HC-P&H-CUS
CC Vs Hlg Trading
Cus - The assessee-company claimed interest on delayed refunds, during the relevant AY - The adjudicating authority partly allowed such interest claimed - Such findings were reversed by the Tribunal - Hence the present appeal by the Revenue.
Held: It is seen that the tax value involved in the present appeal is very low - Considering the decision rendered by the Apex Court in Commissioner of Income Tax Vs. Dhanalekshmi Bank Ltd. - 2015-TIOL-342-SC-IT, wherein appeals involving low tax effect were dismissed, the present appeal is similarly dismissed - Question of law is left open: HC
- Revenue's appeal dismissed: PUNJAB AND HARYANA HIGH COURT
2019-TIOL-509-CESTAT-DEL
Dex Logistics Pvt Ltd Vs CC
Cus - The entire case of Revenue is based on O-I-O - The findings recorded by Commissioner General are more or less the reiteration of allegations, without any specific bills of entry handled by assessee-CHA - Assessee have obtained and maintained sufficient documents as regards the importers who approached them for clearance of their goods - The allegations of Revenue are based on investigation and statements of Mr. B.K. Goyal - Although Director of assessee have also stated that said importer were introduced to him through Shri B.K. Goyal, but it is not established that assessee handled the work of clearance with any malafide motive or any motive to abnormal gain - There is no allegation of assessee having made any abnormal profits in connivance with said Mr. B.K. Goyal - The impugned order is bad in absence of any offence report - The proceedings have been initiated much later in the day after passing of O-I-O, which have already set aside by this Tribunal as regards this assessee and its Director - The charges levelled against assessee are not maintainable - The Commissioner General is directed to restore the licence of assessee CHA within the period of three weeks of receipt of copy of this order: CESTAT
- Appeal allowed: DELHI CESTAT
