GST - Grievance of the petitioner is that he had applied manually before the respondents for processing of GST TRAN-1 form but his application has been rejected due to which he is likely to suffer loss of the credit - Considering the facts and circumstances, respondents are directed to allow petitioner to make fresh application and if the same is made within 15 days, application to be considered and proceeded by respondents in accordance with lw - Petition disposed of: High Court

- Petition disposed of: ALLAHABAD HIGH COURT

GST - Refund of unutilized Input Tax credit - Petitioner seeks a declaration that Rule 89(5) of the CGST Rules as amended is ultra vires the Constitution of India and provisions of CGST Act - To be heard along with Special Civil Application No. 14155/2018: High Court

- Notice issued: GUJARAT HIGH COURT

Neelkamal Realtors Power Pvt Ltd Vs UoI

ST - Petitioner has challenged the action of the Respondents in compelling them to pay (by reversing the Cenvat Credit available) an amount of Rs.11.25 crores to the Revenue before the issue of any show cause notice under the Finance Act, 1994.

Held: Courts have repeatedly held that rule of law has to be followed and no officer of the respondent can take law in his own hands or take extralegal steps or manoeuvre so as to collect amounts which have not yet been held by judicial and/or quasi judicial order as payable by the petitioners to the respondent - The affidavit in reply merely states that if the Respondents had given such threats to the Petitioners, then the Petitioners should have approached the proper forum for their redressal - This does not meet the allegations made by the Petitioners on oath that the Petitioners were threatened with possible arrest if they do not reverse a Cenvat Credit of Rs.11.25 crores - It is pertinent to note that there is no contemporaneous evidence inasmuch as there is no reply by the Respondents to the Petitioners' letter dated 7 May 2018 that clearly speaks about the threat of arrest - This serious allegation was not responded to by any denial on the part of the Respondents at that time - The events as well as the material placed on record by the Petitioners, after considering the affidavits filed by the Respondents, lead Bench to conclude that the Respondents have acted in a high handed manner and forced the Petitioners under the threat of arrest to reverse the Cenvat Credit of Rs.11.25 crores before the show cause notice was issued or before any adjudication order thereon was passed - In these circumstances, Respondents are directed to allow the Petitioners to recredit the amount of Rs.11.25 crores in their Cenvat Credit account - However, the Petitioners are prohibited from utilising the same till the adjudication of the show cause notice dated 28 September 2018 by the Commissioner, GST & CX - Counsel for Revenue submits that show cause notice would be adjudicated, as expeditiously as possible, and latest within a period of five weeks with the co-operation of the petitioner - Petition allowed in above terms: High Court [para 7, 8]

- Petition allowed: BOMBAY HIGH COURT

2019-TIOL-2238-CESTAT-CHD

MJ Biopharm Pvt Ltd Vs CCE & C

CX - The assessee have raised two issues viz. confirmation of demand on the ground of non-payment of duty on goods cleared against ARE-1 claiming rebate of duty paid on its export and admissibility of CENVAT Credit on rejected re-imported goods subjected to the process of re-packing - As far as the demand of Rs.16,67,564/- is concerned, the Commissioner, in the order, had observed that the assessee though claimed that they have paid duty against respective ARE-1, but in their reply, they have mentioned about only 10 ARE-1s, involving total duty of Rs.1,62,612/-, but in fact, around 5 more ARE-1s involving a major portion of duty of Rs.13,23,123/- were not mentioned - After analysis of the evidence on record, the Commissioner came to a categorical finding that the assessee have failed to discharge Central Excise duty of Rs.16,28,202/- payable on export clearance made under the claim of rebate during the said period - No contrary evidence has been produced to rebut the said claim - Therefore, mere claim of assessee that during the relevant period, excess duty was paid, cannot hold good, without any evidence in this regard - As far as the CENVAT Credit of Rs.9,24,126/- is concerned, assessee had availed the credit of CVD paid on re-import of rejected goods, initially cleared from their factory - The Commissioner denied the credit, observing that the procedure under Rule 16 of CER, 2002 has not been followed, whereas the assessee's claim is that since the process of repacking of pharmaceutical products has been considered as manufacture under Chapter Note 6 of Chapter 30 of CETA, 1985, therefore, the rejected materials were considered as ‘inputs' and after repacking, appropriate duty was paid on the finished goods - Since the process of repacking has been considered as ‘manufacture' under Chapter Note 6 of Chapter 30 of CETA, 1985 and there is no dispute of its receipt and utilisation in the factory premises of assessee - Consequently, CENVAT Credit availed on rejected goods subjected later to process of repacking is in order - Consequently, the credit is admissible to assessee - While confirming the demand of Rs.16,28,202/-, the Commissioner has directed payment of interest and imposed penalty equivalent to duty under Section 11AC of CEA, 1944 and also personal penalty under Rule 25 of CER, 2002 - The Commissioner has not extended the benefit to discharge 25% of penalty subject to fulfilment of condition laid down under Section 11AC - Assessee be given an opportunity to avail statutory benefit of discharging 25% of penalty subject to fulfilment of the condition laid down there under - Since the penalty has already been imposed under Section 11AC, no justification found to impose further penalty under Rule 25 of CER, 2002 - Accordingly, such penalty is set aside - Assessee is eligible to CENVAT Credit of Rs.9,24,126/- and allow to discharge 25% of the penalty equivalent to Rs.16,28,202/- imposed under Section 11AC subject to fulfilment of condition laid down there under, penalty under Rule 25 of CER, 2002 is set aside - No evidence found indicating personal involvement of other assessees in relation to non-payment of Central Excise duty relating to the goods cleared against ARE-1s - Thus, imposition of personal penalty under Rule 26 of CER, 2002 on the said assessees are unwarranted, accordingly set aside: CESTAT

-Appeals allowed : MUMBAI CESTAT

Neptune Industries Vs CCE

CX - The assessee is a manufacturer of excisable goods viz., Cement and Concrete Blocks - They are a SSI unit availing benefit of full exemption under Notfn 8/2003-CE - During audit, it was observed that the assessee have availed and utilized CENVAT credit of input service i.e. GTA for the period 04/2005 to 07/2007 during which they were simultaneously claiming the full exemption from duty under Notfn 8/2003-CE - As per Notfn 8/2003-CE, there is no bar for taking credit of Service Tax paid on input services - Further, there is a bar for taking credit of input used in manufacture of final product - Further, as per Rule 3 of CCR, 2004 r/w definition of "Provider of Taxable Service", there is no bar to take CENVAT credit of service Tax during the period assessee is availing small-scale exemption under Central Excise Act - Further, there is no bar under the Rules as well as under the Notfn to take CENVAT credit on input Service Tax - Further, in the Notification, it is provided that the manufacturer shall not avail the credit of duty under Rule 3 or Rule 11 of CCR, 2002 on inputs used in the manufacture of specified goods - No reference found to input services in the Notfn and that being the case, the CENVAT could not have been denied to the assessee - Consequently, the impugned order is set aside: CESTAT

-Appeal allowed : BANGALORE CESTAT

Sudhakar Plastic Ltd Vs CCE, C & ST

CX - When appellants clear LDPE pipes for agricultural and horticultural applications, as a part of drip irrigation system, they classify the said LDPE pipes under chapter heading 8424 9000 as "Parts of mechanical appliances of a kind used in agriculture or horticulture" and claim exemption from payment of duty of excise under S.No. 70 of notification No. 3/2005-CE, dt. 24.02.2005 – appellant also observes the provisions of rule 6(3) of CCR, 2004 - case of Revenue is that since LDPE pipes according to appellant are classifiable under 8424 9000 and are unconditionally exempted, the appellant assesse's option of paying central excise duty on LDPE pipes cleared to dealers is in violation of provisions of Section (1A) of Section 5(A) of Central Excise Act and CENVAT credit availed on capital goods, inputs and input services which are exclusively used in the manufacture of exempted goods needs to be reversed – demand confirmed and, therefore, appeal before CESTAT.

Held: While the goods are cleared on payment of central excise duty is undisputed and the duty has been accepted by revenue, it seems that adjudicating authority as well as first appellate authority have overlooked this fact that the product LDPE pipes are classifiable under chapter heading 39 but if they are cleared for special purposes like agricultural and horticultural purposes along with various mechanical appliances which are attached during the process of manufacturing, the said items get classified under chapter heading 84 for which there is an for exemption notification - When LDPE pipes are not cleared for agricultural and horticultural purposes, appellant's claim that these products are liable to Central Excise Duty as being classifiable under chapter 39 seems to be correct proposition of the law - impugned order to the extent it is challenged by the appellant assessee is set aside and Revenue's appeal stands rejected: CESTAT [para 6, 7]

-Assessee appeal allowed/Revenue appeal rejected : HYDERABAD CESTAT