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SERVICE TAX
ST - The assessee-company is registered for providing services falling under BAS and WCS to various Government authorities - As per information received by the Revenue on scrutiny of balance sheet, P&L a/c, Form 26AS and work orders, the assessee was issued SCN proposing duty demand for the relevant period, on grounds that the services provided by the assessee fell under the category of Cleaning Service - On adjudication, it was held that the services provided by the assessee to the various authorities were exempted under Sr No 9 & 12 of Notfn No 25/2012-ST but also confirmed part of the duty demanded - On appeal, the Commr.(A) upheld the O-i-O on grounds that the authorities in question were specifically held to be governmental authorities as they had been set up by Acts of Parliament and the State Legislature - Hence the present appeal by the Revenue.
Held - Considering both orders, the adjudicating authority as well as the appellate authority recorded specific findings that the entities in question were Government Authorities as they had been set up pursuant to Acts of Parliament or of the State Legislature - Such finding was not challenged by the Revenue in appeal - The O-i-A includes detailed findings on all these aspects and the Revenue raised no ground to interfere with such orders - The Commr.(A) also relied on the decisions of the High Court in Shapoorji Paloonji & Company Pvt. Ltd. vs. CCE, Patna and Bharat Bhushan Gupta & Company vs. State of Haryana - Whilst the former judgment was challenged before the Apex Court, there is no stay on its operation and such judgment of the High Court still holds the fields - Hence both orders do not warrant any interference with: CESTAT
- Revenue's appeal dismissed: ALLAHABAD CESTAT
ST - The issue to be decided is, whether penalty under section 76 and 78 can be imposed simultaneously - This issue has been settled by High Court of Gujarat in case of Raval Trading Company - 2016-TIOL-112-HC-AHM-ST according to which when the penalty under section 78 was imposed, no penalty should be imposed under section 76 - Considering the aforesaid judgment, Adjudicating Authority has rightly not imposed penalty under section 76 - Accordingly, there is no infirmity in impugned order: CESTAT
- Appeal dismissed: AHMEDABAD CESTAT
CENTRAL EXCISE
CX - The assessee manufactures plastic bottles - During course of verification of Cenvat documents, purchase invoices of assessee were requisitioned by jurisdictional Range Officer - On scrutiny of these invoices, it was observed by Range Officer that the assessee had wrongly availed Cenvat credit on capital goods received from a 100% EOU - The only question to be decided is whether the assessee is liable to penalty under Rule 13(2) and Rule 15(2) of CCR, 2002/2004 respectively - There is a difference of opinion among Member (T) and Member (J) - The said difference of opinion is placed before President for reference to third Member for resolving the dispute i.e. whether the appeal has to be dismissed by upholding the penalty, as held by Member (T), or the same has to be allowed by setting aside the penalty, as held by Member (J) - The Third Member observed that on pointing out by the Department to the assessee vide letter dt.18.2.2005, the assessee has reversed Cenvat credit on their own which was wrongly taken by them along with interest by 31.3.2005 - Thereafter, a SCN has been issued to assessee on 29.5.2005 for appropriation of amount and to impose penalty under Rule 13 (2) and Rule 15 (2) of CCR, 2004 - It is fact on record that the assessee has availed excess credit in terms of formula given in Rule 3(7) (a) of CCR, 2004, therefore it is mistake of calculation of availment of Cenvat credit which the assessee has reversed on pointing out by Department - In that circumstance, the penalty is not imposable on assessee - Therefore, agrees with the view entertained by Member (J) - The reference is answered accordingly - In view of the majority order, the penalty is set aside and appeal is allowed to that extent: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
CX - The assessee was engaged in manufacture of Menthol Flakes, Menthol Crystals, Dementholized Oil and essential oils and flavouring agents derived from Dementholized Oil - The raw-material for said final products was duty paid crude menthol - They were availing benefit of Cenvat Credit of Central Excise duty paid on said crude menthol - Notfn 04/2008-CE was issued - As a result, Menthol Flakes & Menthol Crystals were exempted from the whole of the duty of Excise leviable thereon - The other final products manufactured by assessee continued to be dutiable - A SCN was issued to the assessee for recovery of Cenavt Credit under Rule 6 & Rule 11 of CCR, 2004 with a proposal for imposition of penalty - The said SCN was adjudicated through O-I-O which was challenged before Tribunal - The said appeal was decided through Final Order in - 2014-TIOL-2635-CESTAT-DEL - It is very clear that the Original Authority has not taken into consideration all the evidences placed before him for arriving at the decision - He has decided the issue of Cenvat Credit on the basis of said report dated 18.02.2016 submitted by Jurisdictional Assistant Commissioner without forwarding a copy of the same to the assessee and seeking their comments on the same - The impugned order is passed in violation of principles of natural justice - Further, the Original Authority also did not give an opportunity to the assessee to produce whatever documents and records it needs for passing the lawful order and only made an observation that RG-1 in Original was not produced and therefore verification of finished goods cleared for export could not be undertaken - The said observation is an admission of Original Authority for non-compliance of directions of this Tribunal passed through said Final Order - In respect of goods returned, the reasons stated for confirming the demand by Original Authority that the assessee had not intimated the Department when the goods were returned and not provided the process subjected to the duty paid final products received back is not sustainable since there was no such need for the assessee to inform the Department on receipt of such duty paid goods back into the factory - The Original Authority has denied said Cenvat Credit for assessee having not informed the Department about the receipt of duty paid final products back into the factory whereas there is no such requirement under said Rule 16 - The burden of proof is on Revenue to establish that the duty paid goods returned to the factory are subjected to such processes which did not amount to manufacture to deny the Cenvat Credit - The directions of this Tribunal were to disallow such Cenvat Credit which has gone into final product which has been cleared to home consumption without payment of duty in view of said Notfn 04/2008-CE - The Original Authority did not establish any quantity of final product to have been cleared for home consumption without payment of duty - Therefore, the impugned O-I-O is bad in law and therefore, the same is set aside and the appeal is allowed: CESTAT
- Appeal allowed: ALLAHABAD CESTAT
CUSTOMS
Cus - The appellant-company filed for clearance of goods imported by it - On examination, the goods were found to have been undervalued - The importer as well as the CHA were both unable to produce the BIS certificate in respect of such goods - Moreover, rather than producing the certificate, the appellants attempted to manipulate the certificate and produced some other documents so as to cover up the imports - Such irregularities in the import were acknowledged by the proprietor of the appellant-company - On adjudication, the goods were held liable for confiscation with option of redemption fine being given - Penalties were imposed u/s 112(a) & u/s 114AA - Personal penalties were also imposed on certain office-bearers in the appellant-company - Hence the present appeal.
Held - The appellant neither in appeal nor during arguments, contested in respect of the irregularities found in the imports - The appellant specifically stated to be not personally responsible for irregularities - The irregularities were caused and committed by a third person and the appellants were simply innocent victims of such person's misdeeds, on account of which the appellant suffered huge losses - Once it is established that goods imported were contrary to provisions of the Customs Act, they become liable for confiscation u/s 111 of the Act - The person importing such goods attract penalty u/s 112 of the Act - The appellant claimed to have made certain deposits during investigation, through this individual - They claimed that the Revenue should refund the amount so deposited - No order can be passed in respect of such request, as the issue sought to be raised by the appellant is not the issue decided upon in the O-i-O - Moreover, it is for the appellant to establish its claim to the money deposited and subsequent refunds if any - Hence the appeal lacks merit: CESTAT
- Appeal dismissed: MUMBAI CESTAT
Cus - The assessee filed BoE for import of (i) 100 nos of AG 401 Laser Level Transmitted with battery pack and charter, (ii) 10 nos of Single Grade Laser Package W/RC 602, Remote, HL 750 receiver, (iii) 100 nos of AG GCS 100 Rigid Mass Package for Agriculture & (iv) one Yuma 2CLX Tablet PC - The consignment of these goods was covered by the two invoices and imported from a Netherlands-based company - The assessee classified the goods between Sr No (i)-(iii) under CTH 84328090 and claimed benefit of Notfn No 12/2012-Cus and Sr No 399A whereunder the BCD leviable on the import consignment was 2.5% and CVD was nil rated - The Revenue opined that the consignment was rightly classifiable under CTH 90319000 and that the assessee was not entitled for benefit under Notfn No 12/2012-Cus - On appeal, the Commr.(A) held that the goods between Sr Nos (i) and (ii) were rightly classifiable under CTH 90314900 and those under Sr No (iii) were rightly classifiable under Heading 85299090 and that the assessee was not entitled for benefit under Notfn No 12/2012-Cus - Hence the present appeal.
Held - The Tribunal in the assessee's own case settled the issue vide final order No. C/A/50962/2019 – CU (DB) dated 01 August 2019 - Considering that the issue in the present case stands settled in favor of the assessee through this case, the appeal merits being allowed: CESTAT
- Assessee's appeal allowed: DELHI CESTAT | |
