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SERVICE TAX
2019-TIOL-1243-CESTAT-MAD
AV Dhanasekaran Vs CGST & CE
ST - Since no evidences are brought out on record to justify the allegation of suppression, Revenue could not have invoked the extended period of limitation – on merits, the issue is decided against the appellant by the Principal Bench of the Tribunal at Delhi in the case of Charanjeet Singh Kanuja Vs. C.S.T. – 2015-TIOL-1205-CESTAT-DEL - Appeal partly allowed: CESTAT [para 7]
- Appeal partly allowed: CHENNAI CESTAT
2019-TIOL-1225-CESTAT-HYD
Broadridge Financial Solutions India Pvt Ltd Vs CCT
ST - The appellant-company exports software services - It availed Cenvat credit on inputs & input services under CCR 2004 - During the relevant period, the appellant claimed refund of credit availed on inputs & input services consumed in export of services - On adjudication, such refund claims were partly allowed - On appeal, the Commr.(A) partly allowed the refund claims - Hence the present appeals.
Held: The denial of refund is primarily on grounds that the appellants failed to produce necessary documentary evidence showing the nexus between the input services consumed and the provision of output services which were exported - The appellant undertakes to produce such documents - The same merit being considered by the adjudicating authority so as to determine the admissibility of the refund claimed - If Cenvat credit is wrongly availed, it must be recovered from the appellant by issuing an SCN - In cases where credit was taken when the specific service clearly excluded from Rule 2(l) of CCR is concerned, in such case the credit must first be denied - But if the appellant is not entitled for credit at all, then no question of refunding it arises - As far as the cases where the invoices were not in the name of the appellant are concerned, what is relevant is whether the appellant had received those services in production of their output services, even if there is some error or omission in the name and address in the invoices - Where the input services/inputs were actually used in production of their output services, credit cannot be denied merely on the ground that invoice was not in the appellant's name - Hence the matter warrants remand to ascertain such factual position: CESTAT (Para 2,6)
- Case remanded : HYDERABAD CESTAT
CENTRAL EXCISE
2019-TIOL-1245-CESTAT-DEL
AM Products Vs CCE & ST
CX - Products being manufactured by the appellants fall under CETH 2403 9910 as chewing tobacco and not jarda scented tobacco falling under 2403 9930 of CETA, 1985 - finding of the lower adjudicating authority that it might contain the scent in the product is merely on the basis of presumption and surmise without any facts therein - CRCL report confirms that the product is chewing tobacco composed of tobacco and lime - Appeal allowed with consequential benefit: CESTAT [para 7, 8]
- Appeals allowed: DELHI CESTAT
2019-TIOL-1244-CESTAT-CHD
AK Singh Vs CCE
CX - Cigarettes - Factory of the appellants was under physical control - When the department itself is controlling manufacturing process of the appellant, in that circumstance, without hand in gloves with the Central Excise officers, the clandestine removal cannot take place - Moreover, no incriminating documents were recovered from the possession of the appellants; no extra amount has been received from the custody of the appellants which can be presumed to be the sale of clandestinely removed goods - Whole case of Revenue is based on the third party document and the statements of various persons whose cross examination has not been granted in terms of Section 9D of the Central Excise Act, 1944 - allegation based on the third party document without any corroborative evidence cannot be the basis to allege clandestine removal of the goods - statements of witnesses on the basis of which it has been alleged that the appellants are engaged in the activity of clandestine removal without payment of duty are not admissible - impugned order imposing penalty on both the appellants is set aside and appeals are allowed: CESTAT [para 17, 19, 20]
- Appeals allowed: CHANDIGARH CESTAT
2019-TIOL-1222-CESTAT-ALL
Abhishek Jain Vs CCE
CX - The issue in this appeal is whether the assessee have been rightly imposed with Central Excise duty of Rs.2,51,94,517/- for the period from 01.04.2011 to 06.09.2012 under the provisions of Pan Masala Packing Machines Rules, 2008 read with Section 11 A(4) of the Act along with equal amount of penalty as well as order of confiscation of excisable goods valued at Rs. 53,100/- in terms of Rule 17(1) and Rule 18 of PMPM Rules, 2008 read with Rule 25 of CER, 2002 with option to redeem on payment of fine of Rs.15,000/- - There is no abnormal delay in retracting the statement by the assessee - Such retraction was done in about 10 days time from the date of search - The contention of assessee that the officers used duress and pressure upon the assessee in writing the statement during panchnama proceedings have also been supported by the affidavit of the panch witness and Shri Leelu who had witnessed the panchnama proceedings - They also supported the fact that the assessee was pressurized to write, as per the dictation of officers, as well as made to deliver two blank signed cheques to the officers - They further stated that the officers seized the original registration certificate of the car of assessee as well as Driving License and had refused to return the same inspite of repeated plea of assessee - Thus, the statement of assessee is not a valid piece of evidence and also hold that the same is bad under Section 9D of Central Excise Act - The assessee have led cogent evidence that he had acquired the packaging machine- FFS only on 20th of August, 2012 and the same was transported to the factory premises on 21.08.2012 and further the said machine was repaired and/or put in working order on 01.09.2012 when the new-single phase motor was purchased for the said machine - Such evidence have not been found to be untrue and the Commissioner have erred in rejecting the evidence without any proper enquiry and oppertunity of hearing - The assessee have led sufficient evidence that he had purchased the inputs or ingredients for manufacture of Gutkha on or about 01.09.2012 and thereafter, started production with effect from 02.09.2012 - Thus, assessee is liable to Central Excise duty under Section 3A of the Act read with the PMPM Rules for period 02.09.2012 to 06.09.2012 - The assessee is liable to penalty equal to the amount of duty - So far the personal penalty of Rs.5,000/- imposed on Shri Abhishek Jain is concerned, same is set aside, as separate penalty is not impossible on the proprietorship firm and its proprietor - The confiscation of seized goods set aside, being not dutiable, and not removed from the factory of manufacturer - If the assessee have not taken release of the said goods, the value of the same shall be adjustable from the amount of duty and penalty: CESTAT
- Appeal partly allowed : ALLAHABAD CESTAT
2019-TIOL-1221-CESTAT-BANG
Sainath Steels Vs CCE
CX - The assessee is manufacturer of hot rerolled products of steel and working under the provision of Section 3A of CEA, 1944 - Whether the assessee is entitled for abatement of duty as provided sub-section (4) of Section 3A of CEA, 1944 - Tribunal do not find that assessee have opted for operation under Rule 96ZP - The Revenue did not produce any evidence to contradict the same - There is a provision under Section 3A(4) for redetermination of amount of duty where the assessee claims that actual production of notified goods in his factory is lower than the production determined under sub-section (2) - The Supreme Court in Bhuwalka Steel Industries Ltd. - 2017-TIOL-134-SC-CX has laid emphasis on the fact that the conditions of Rule 96ZP are not eternal - If the assessee has to pay duty even when there was no production in factory, it leads to illogical conclusions - The provisions of Rule 96ZP do not take away the right of assessee from exercising a facility given under Section 3A - However, in case the assessee have not opted for Rule 96ZP, they are governed by Section 3A(4) and the authorities are bound to examine their claim of closure of factory and to give abatement of the duty - There is nothing shown on record that the assessee's request was considered by Revenue and an order has been passed after giving a due opportunity to assessee - Therefore, no merit found in order passed by Commissioner (A) and the same is set aside - Assessee is liable to pay duty for the period of 58 days - The penalty imposed under Rule 96ZP(3) is set aside: CESTAT
- Appeal disposed of : BANGALORE CESTAT
CUSTOMS
2019-TIOL-1228-CESTAT-KOL
CC Vs Manisha Devi Jain
Cus - The respondent was travelling to Kolkata from Imphal Airport on 25/08/2016 and was carrying 3 yellow metals (moulded in rod form) suspected to be Gold of foreign origin which was recovered from her registered baggage and was handed over to the Superintendent and was subsequently handed over to the Superintendent, DPF for further seizure formalities - The respondent pleads that the said gold in the form of rods were not of foreign origin and was actually gold ornaments received by her on her wedding - The ones received from her parents are reflected in her IT Return and the ones received from her-in-Laws are reflected in the IT Return of her husband Shri Suresh Kumar Jain - These ornaments being old enough, had deshaped and were out of fashion to be worn in today's fashion centric time - The Indian Origin remolten gold/gold ornaments could not be legally confiscated as the possession of the same is not prohibited under any provision of law - The seized gold do not bear foreign markings and do not have uniform weight/purity - It is observed that the respondent belongs to a respectable and a well to do family - She is also a regular Income Tax assessee - The seized gold rods were made from the gold ornaments belonging to her - Every piece of gold possessed by a person in India cannot be considered to be of smuggled nature and that the possessor of such gold cannot be made to discharge the onus u/s 123 of the Customs Act, 1962 - The appeal filed by the Revenue is dismissed: CESTAT
- Appeal dismissed: KOLKATA CESTAT
2019-TIOL-1224-CESTAT-MUM
Geeta Clearing and Forwarding Agencies Pvt Ltd Vs CC
Cus -CBLR licence of the appellant was revoked and security was forfeited by the competent authorty alleging breach of regulations 11(d), 11(n) and 17(5) of the CBLR, 2013 on the ground that the appellant had attempted to export articles allegedly manufactured out of prohibited ‘red sanders' - appeal to CESTAT.
Held: Under regulation 11(d), a customs broker is required to advise the client to act in compliance with the Customs Act, 1962 - No evidence is available of any act on the part of the appellant to suggest that any advice to the contrary has been offered - description of the goods in the shipping bill is not in dispute and neither is the value - entire case appears to hinge on the interpretation of whether the botanical description in the shipping bills is the very same ‘red sanders' that is admittedly banned for export - signature of the 'G' card delegate was affixed only on the checklist generated upon filing of details of shipment that was readied for export - checklist cannot be said to constitute the shipping bill or the annexure referred to in regulation 17 of the said regulations so as to warrant imposition of penalty on appellant - in view of lack of evidence to sustain the charges of complicity, impugned order is set aside and appeal is allowed: CESTAT [para 8]
- Appeal allowed : MUMBAI CESTAT
2019-TIOL-1223-CESTAT-MUM
CC Vs GSP International
Cus - In terms of FTP policy, restriction was in respect of "all second hand goods, except second hand capital goods…" - adjudicating authority has held that the restriction is in respect of second hand goods; that as per the letter of the supplier, the goods had remained unused after manufacturing; that the pipes had failed to pass hydrostatic test and thus could not be used for the application they were meant for and hence they were termed as ‘secondary second choice carbon steel' - reasoning adopted by the AA is acceptable - second grade pipes cannot be termed as second hand as the pipes had remained unused - no infirmity in the order of the adjudicating authority -imposition of redemption fine and penalty is ruled out as the goods were never seized/confiscated - no penalty u/s can be imposed on Vice President, Rajesh Bohra as it was never proposed in the SCN nor there is any malafide intention mentioned in the Revenue appeal - impugned order upheld and appeal of revenue rejected: CESTAT [para 4]
- Appeal rejected : MUMBAI CESTAT |
