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SERVICE TAX 2019-TIOL-2777-CESTAT-MUM
Siddharth Earthmovers Vs CCE
ST - Whether the credit of duty paid on the capital goods is admissible to the appellants and whether the ST to the extent of utilisation of said credit is recoverable from the appellants?
Held: None of the submissions made before the Bench have been recorded in the impugned order and it is not clear whether any such submissions have been made by the appellant during the course of hearing - even if it is assumed that these submissions were not raised earlier, then also the Appellant is entitled to raise them at this stage since these are legal submissions - in any case, these submissions were not discussed in the impugned order, therefore, interest of justice demands that the matter should be remanded back to the Commissioner to decide it afresh after taking into consideration the submissions raised by the appellant and also after following the principle of natural justice and after giving a reasonable opportunity of hearing to the appellants - additional submissions, if any, are also permitted to be made by the appellants during the course of such hearing - the appeal is, therefore, allowed by way of remand : CESTAT [para 4]
- Appeal allowed by way of remand: MUMBAI CESTAT
2019-TIOL-2776-CESTAT-MUM
RKHS Food And Allied Service Pvt Ltd Vs CCGST & CE
ST – Appellant had transferred all the business of management of food service and vending service of the company to one M/s Sodexo Facilities Management Services India Pvt. Ltd. and since the management of food was sold/transferred by the appellant, consequently as a consequence to such transfer, they have transferred all assets and liabilities including CENVAT Credit balance of Rs.40,60,683/- as on 30.6.2011 to M/s Sodexo after reversing the said credit in the their Books of Accounts - since there was no column assigned in the ST-3 Return for reversal of credit on 'input services' on transfer of business in consonance with Rule 10(2) of CENVAT Credit Rules, 2004, the reversed amount was shown against the clearance of input and capital goods as such – such reversal was reflected in their ST-3 returns filed in the month of June, 2011 - Whether interest is payable on reversal of input service credit of Rs.40.60 lakhs – lower authorities confirmed the demand of interest, therefore, appellant is before CESTAT. Held: On transfer of business by the appellant to M/s.Sodexo Facilities Management Services India Pvt. Ltd., the input service credit lying in the balance as on 30.6.2011 have been transferred following the mandatory provisions prescribed under rule 10(2) of the Cenvat Credit Rules, 2004 [CCR] –Appellant has categorically made a statement that there was no credit balance against inputs and capital goods as on that date– therefore, insisting to follow the procedure of transfer of credit laid down under rule 10(3) of the CCR which is applicable to input and capital goods, is unwarranted and incorrect - consequently, the impugned order is set aside and the appeal is allowed : CESTAT [para 6, 7]
- Appeal allowed: MUMBAI CESTAT
CENTRAL EXCISE
2019-TIOL-2775-CESTAT-AHM Gayatri Fillers Pvt Ltd Vs CCE & ST
CX - The assessee is engaged in manufacture of "Coated Calcium Carbonate" as well as "Calcium Carbonate" - The coated calcium carbonate is liable for duty whereas the uncoated calcium carbonate is exempt - During investing at one of the buyer's premises, it was found that the Calcium Carbonate cleared by assessee as 'uncoated Calcium Carbonate' was found to be 'coated Calcium Carbonate' - On the basis of said evidence, the revenue has sought the demand of duty on all their clearances treating them as clearances of 'coated Calcium Carbonate' - The allegation is that the assessee have cleared coated calcium carbonate in the garb of uncoated calcium carbonate - It not disputed that the assessee manufacture both kind of calcium carbonate - The sample tested at the premises to M/s hexon, one of the buyers, show that the product cleared by assessee as 'uncoated calcium carbonate' was 'coated calcium carbonate' - Thereafter statement of various buyers was recorded and most of them have admitted that they have received 'coated calcium carbonate' - In view of hard evidence like test report, the statement and cross examination become secondary evidence - It is seen that the assessee have described each product by difference name - The material cleared to M/s Hexon, where the sample was tested, also would have contained specific name of the product which were cleared to them - The said test report can only be applied to the items described identically or cleared under the same description to all other buyers - The evidence in the shape of test report can be applied only to the specific grade on which the testing was done - In respect of such product, the statements contradictory to the test report do not have any value - Further in respect of other item which were not tested, the statements becomes sole evidence - In such case the cross examination need to be granted before the same are relied in terms of Section 9D of CEA, 1944 - Merely because some processes are carried out and the name of the product changes, it cannot be said that the manufacture has taken place - The impugned order is set aside and matter remand to the original adjudicating authority for a fresh adjudication: CESTAT
- Matter remanded: AHMEDABAD CESTAT
CUSTOMS 2019-TIOL-2774-CESTAT-KOL
Moly Exports Vs CC
Cus - The assessee have imported two consignments of ready-made garments and filed Bills of Entry - The consignments were intercepted and it was found that there was mis-declaration, in the consignments consisting 229 bales, to the extent of 81 bales; 81 bales were found to contain full pants and trousers in place of declared payjamas - Accordingly, the Department has seized the materials and issued a SCN to the assessee proposing confiscation and imposition of penalties - The assessee has submitted a letter purported to have been sent by Fax from M/s Chandra Export - The said letter mentions that due to electricity shut off, the goods were loaded under candle light and by mistake, some old and used garments have loaded - The reason put forth by assessee for importing full pants in place of indented pajamas, is not at all forthcoming from the said letter - It is difficult to believe the submissions of assessee that they had no Knowledge of misdeclaration of the cargo - Mens rea is not an essential ingredient either for the purposes of confiscation under Section 111 or for levy of penalty under 112(a) of Customs Act, 1962 - Therefore, the fact of assessee having intention or knowledge has no bearing on confiscation of the goods - To that extent, the impugned order is acceptable - However, the valuation adopted in impugned order is arbitrary - The Commissioner has not recorded any reason for rejecting the declared value in respect of 148 bales - He proceeded to redetermine the value of all the goods when the misdeclaration was only in respect of 81 bales - It is difficult to sustain such un-reasoned order to the extent of value of 148 bales declared by assessee - The valuation declared by assessee is to be accepted - However, it is required to redetermine the value of 81 bales in dispute, which were misdeclared - Matter is remanded back to the adjudicating authority with a direction to accept the declared value in respect of 148 bales and re-determine the value of 81 bales in accordance with law - The penalty imposable on assessee will be equal to the duty that may be applicable on 81 bales of garments misdeclared, subject to condition laid down in Section 112 (b) of the Customs Act, 1962 - Looking in to the fact that the goods were lying with customs for a long time and have lost substantial value, the fine is restricted , in lieu of confiscation, to Rs.10, 000: CESTAT
- Appeal partly allowed: KOLKATA CESTAT
2019-TIOL-2773-CESTAT-BANG
Babu John Vs CC
Cus - The assessee was in abroad for 28 years and for his final settlement in India brought house hold items and a used Honda motor cycle (bike) under Transfer of residence (TR) - The issue arises is, whether second adjudication proceedings initiated vide impugned order related to house hold items brought by assessee is sustainable since it was released at the time of import by paying additional duty, fine and penalty - In the case of house hold items they were subject to adjudication and released on payment of fine and penalty then the second adjudication proceedings initiated by impugned order related to house hold items are not sustainable in law in view of the judgment of Apex Court in case Mohan Meakin Ltd 2002-TIOL-448-SC-CUS-LB - The assessee has proved that he is staying abroad for the last many years - The finding of adjudicating authority that the assessee also brought one motor vehicle in 2009 and therefore he is not entitled to bring one more motor vehicle in 2018 is correct as per the Import Policy - Further, assessee has proved on record by various documents issued by the sovereign authority in Dubai that he purchased the said vehicle from M/s Al Zulal General Land Transport on 07.03.2017 and transfer certificate was issued in the name of assessee on 08.03.2017 and he has imported the said vehicle vide Bill of Entry dated 31.07.2018 which clearly shows that he was in possession of the vehicle for more than a year and therefore he is eligible to claim TR - The vehicle is manufactured by Honda and it is freely importable and the price is available on internet also and the assessee has also produced Customs Data wherein the import price of same GL 1800 bike in 2012 was 19,000 USD only and if the benefit of depreciation is given, the assessable value in 2018 will Rs.5,99,127/- which is very close to the declared value Rs.4,79,408/- whereas the Customs had adopted an imaginary value of Rs.19,67,895/- based on some insurance documents filed in abroad by mistake by assessee - The Department has failed to prove the charge of under valuation whereas the assessee by producing documents on record has proved that he has purchased the said vehicle in 2017 and that sale letter is also on record and as per the sale letter, the assessee has rightly declared the value of bike as AED 24,500/- - Further, the Department has not brought any material on record to show that the documents produced by them are not genuine document and that there was some transfer of illegal considerations from the assessee to the seller in Dubai - The Customs authority is directed to release the said vehicle on payment of Customs duty as per the declared value of the bike: CESTAT
- Appeal allowed: BANGALORE CESTAT |
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