2019-TIOL-2279-ITAT-MUM

Auto Finance Enterprises Vs ACIT

2019-TIOL-2278-ITAT-AHM

DCIT Vs Asian Grantio India Ltd

2019-TIOL-2277-ITAT-MAD

Karuppusamy Pandiarajan Vs DCIT

2019-TIOL-2276-ITAT-JAIPUR

Krishna Kant Bansal Vs DCIT

2019-TIOL-2275-ITAT-GUW

Tripura State Electricity Corporation Ltd Vs DCIT

2019-TIOL-3322-CESTAT-MUM

Fasttrack Packers Pvt Ltd Vs CCE & ST

CX - Appellant is engaged in the manufacture of tobacco products and was liable to discharge duty liability in terms of Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010 [Rules] -their factory remained closed from 18.04.2015 to 15.05.2015 for a period of 28 days after due intimation to the Revenue -the machines were, accordingly, sealed by the jurisdictional CE authorities -the appellant claimed abatement for the month of April 2015 inasmuch as the duty was deposited for the said period -however, for the next month i.e. May 2015 he did not deposit the duty for the period of closure till 15.5.2015 and claimed abatement himself -Assistant Commissioner held that the appellant was entitled to the abatement for the month of April 2015 and granted abatement for Rs.46.10 lakhs - on appeal by Revenue, the Commissioner (Appeals) set aside the order of Asstt. Commissioner and allowed the Revenue's appeal, hence assessee is before CESTAT.

Held: There is no dispute about the fact that the factory was continuously closed from 18.4.2015 to 15.5.2015 - in such a scenario, the assessee was entitled to the abatement of duty for the month of April 2015 as also May 2015 depending upon the closure period - the artificial bifurcation done by the Commissioner (Appeals) for April 2015 and May 2015 separately thus holding the period of closure in April was only 13 days, cannot be appreciated - no doubt, for May 2015, appellant was required to pay duty and then claim abatement but the said procedural lapse on the part of the assessee cannot lead to the denial of benefit otherwise available to the assessee - at the most, he would be liable to pay the interest from the date when he was required to deposit the dues in terms of the said Rules and till the date when he was entitled to the abatement -as such, the impugned order is set aside holding that the assessee was entitled to the abatement for both the months for the closure period, with directions to the original authority to quantify the interest liable to be paid by the assessee in terms of the observation made above - appeal is disposed of in above terms : CESTAT [para6, 7]

- Appeal disposed of: ALLAHABAD CESTAT

2019-TIOL-3321-CESTAT-AHM

Euro Auto Industries Vs CCE & ST

CX - M/s.Euro Auto Industries [Appellant] were issued SCN dated 22.1.2016 proposing demand of duty of Rs.19.66 lakhs on the ground that they have cleared "estore" brand battery used in invertor which belongs to M/s.Aarbee Power Engineering Pvt. Ltd. as per Trade Mark Licence Agreement dated 24.12.2012; they are not eligible for benefit of notification no.8/2013-CE dated 1.3.2003 as amended on batteries cleared under brand name of "estore" - the adjudicating authority, vide O-I-O, confirmed demand of Rs.18.68 lakhs and also imposed penalty of Rs.9.34 lakhs against the Appellant Unit - penalty upon co-appellants was also imposed - as Commissioner (Appeals) rejected their appeals, appellant is before CESTAT.

Held: It is found that the SSI exemption has been denied to the Appellant on the ground that the area falls under the jurisdiction of Jamnagar Development Authority (JADA) which is constituted for development of area falling outside the jurisdiction of Jamnagar Municipal Corporation -it is not in dispute that the area is falling under rural area of Jamnagar which is apparent from the certificate issued by the Revenue officer (Mamlatdar) who is having jurisdiction over the land - the section 22 relied upon by the lower authority is applicable for development of Urban Area under which an authority is constituted for development of Urban Area -obviously section 22 is applicable in an urban area and not to rural area -no evidence has been brought on record to show that the impugned area does not fall under rural area and, therefore, the denial of SSI exemption notification is not based upon any evidence -furthermore,the Appellant has submitted copy of notification no.4.10.2013 issued by the State Government issued after the impugned period under which the survey number 133 on which the factory is situated was included in Jamnagar Municipal Corporation -this abundantly makes it clear that at the material time, the unit was situated in rural area and hence there is no reason to deny exemption benefit to Appellant - this view is also based upon Tribunal Order in the case of Gujarat Engineering Works [2010 (249) ELT 86 (Tri.-Ahmd.) -further, the Tribunal's order in the case ofMacfield Beverages India Pvt. Ltd - 2007-TIOL-1966-CESTAT-BANG are also on same issue -thus, no reason found to deny the SSI Exemption benefit to the Appellant and there is no reason to demand duty and penalty from Appellant unit -in case of co-appellants, since the demand itself is not sustainable on merits, there is no reason to impose penalty upon them -further, there is no basis to impose penalty upon them when M/s.Arbee Power is only owner of brand and ShriKimjibhai is only raw material supplier -they do not have any involvement with the alleged duty demanded from Appellant -hence, there is no reason to impose penalty upon them, resultantly, the impugned order is set aside and the appeals are allowed : CESTAT [para4, 5, 6]

- Appeals allowed: AHMEDABAD CESTAT

2019-TIOL-3320-CESTAT-ALL

IMI Norgren Herion Pvt Ltd Vs Pr.CCE

CX - During the period April, 2008 to December, 2012, the appellant received various services from foreign associated company, which were taxable under the Management Consultancy Services -inasmuch as the foreign based company was not having any office in India, the tax liability fell upon the appellant, who were liable to pay the same on reverse charge basis -however, the tax liability was not discharged by the appellant during the relevant time - subsequently in terms of VCES Scheme, they filed a declaration in respect of the said tax liability to the tune of around Rs.72.16 lakhs - the said declarations were accepted by the proper officer and discharge certificate were issued by them in terms of the provisions of the said VCES Scheme - thereafter, the appellant claimed the credit of the said duty paid by them under VCES Scheme - SCN issued for denial of the said credit on the ground that the various services received by the appellant cannot be held to be cenvatable input services inasmuch as they have no nexus with the activity of manufacture - credit denied, penalty of Rs.10 lakhs imposed - appellant before CESTAT - appellant drawing attention of the Bench to Serial No.18 of CBEC Circular No. 170/5/2013-ST [F.No.B1/19/2013-TRU(PT)] dated 8.8.2013 clarifying that the tax amounts deposited in terms of VCES Schemes are available as cenvat credit to the assessee,

Held: While clarifying the doubt referred to in the column "issues" [Serial No.18 of CBEC Circular], it stands mentioned that all the issues relating to admissibility of cenvat credit are to be determined in terms of the Cenvat Credit Rules, 2004[CCR] with particular reference to the provisions of rule 9 - admittedly, in the present case, appellant is importer of services and was under legal obligation to pay ST on reverse charge basis -the said ST was not paid by the appellant in the ordinary course of the business by raising invoice thereto -the fact is that the said payment was made in terms of VCES Scheme which is a special piece of legislation allowing assessee's to pay tax or duty, which has not been paid by them at the requisite point of time -the fact that the duty was not paid at the time of import of service is indicative of a situation that the short levy or non levy has occurred on account of suppression of facts -the fact that the appellant got an opportunity in terms of the scheme floated by the Government to pay duty which were otherwise payable but not paid, will not convert the situation from suppression to non-suppression -it is beyond doubt that the payment of duty on the invoices raised under VCES Scheme has to be held as payment by way of raising supplementary invoices, which was on account of mis-statement or suppression with intent to evade payment of duty -in such a scenario, the cenvat credit of ST paid by the appellant would not be available to the appellant in terms of provisions of rule 9(1)(b)of CCR - accordingly, the demand against the appellant along with interest is confirmed - as regards penalty, the entire credit was availed by the appellant by reflecting the same in their cenvat credit account which were intimated to the Revenue and, otherwise also, the issue is a bona fide issue of interpretation of the provisions of law -as such, no justifiable reasons found to impose penalty upon the appellant -the same is, accordingly, set aside and appeal is disposed of in above terms: CESTAT [para 7, 8]

- Appeal disposed of: ALLAHABAD CESTAT

2019-TIOL-3319-CESTAT-ALL

CCE Vs Indosolar Ltd

CX - It was found that the respondent, a 100% EOU, was clearing their goods in DTA without payment of duty and as such in terms of the provisions of notification nos.52/2003- Cus and 22/2003-CE both dated 31.3.2003, they were required to pay back the duty forgone by them - accordingly, proceedings were initiated seeking denial of the benefit of the notifications and proposing confirmation of demand to the extent of Rs.2.99 crores (Approx.) for the period 1.6.2015 to 31.3.2016 - vide impugned order, the adjudicating authority, while holding in favour of the respondent, observed that the raw material in question was otherwise also liable to nil rate of duty in terms of notification no.24/2005-Cus and 12/2012-CE - as such he extended the benefit of the said notifications to the respondents - Revenue before CESTAT - the Revenue's grievance is that the fact of availability of Alternate Exemption Notification No.24/2005-Cus and 12/2012-CE is not being disputed but as the appellant had not initially claimed the benefit of the said notifications and the imports were not imported under the claim of exemption in terms of the said notifications, the subsequent claim is only an afterthought and misleading - the same is hypothetical to a state that they could have procured goods under general exemption notification whereas the fact remains that their procurement/import was specifically under notification no.52/2003-Cus which was available only to 100% EOU.

Held: No merits found in the above contention of the Revenue - the Revenue is not disputing the fact that the import of raw material could have taken place under the cover of other two notification nos.24/2005-Cus and 12/2012-CE - the Adjudicating Authority, before extending the benefit of the said two notifications to the respondents, have referred to and relied upon the various decisions of the higher courts to hold that alternative pleas raised by an assessee are required to be considered - it is well settled law that if the benefit of the notifications is otherwise available to an assessee, even though not claimed at the time of the import of the goods, the benefit cannot be denied - as such, no merits found in the Revenue's appeal, the same is accordingly rejected : CESTAT [para 8]

2019-TIOL-3318-CESTAT-HYD

Finechem Vs CCE C & ST

CX - The appellant is a co-noticee in the SCN issued alleging fraudulent availment of cenvat credit based on invoices issued without actual supply of material mentioned in the invoices - after due process of law, the original authority, vide impugned order, confirmed the demand against the noticees -a penalty of Rs.22 lakhs was imposed under rule 26(2) of Central Excise Rules, 2002 [CER] upon the appellant-appeal before CESTAT.

Held: As per sub rule (2) clause (i) of rule 26 of CER, if any person issues an excise duty invoice without delivery of the goods, the penalty under the sub-rule would apply-sub-rule (1) of rule 26 adds a condition that such person should have knowledge or reason to believe that the goods are liable for confiscation -such a qualification is absent in rule 26(2) - in the present case, the appellant is a partnership firm and has received the invoices from M/s.Pavan Drugs and M/s.Y.M.Drugs without receiving any goods -the invoices were again passed on to M/s.Reliance Cellulose Products Limited who availed the fraudulent credit -thus, without receiving goods or supply of goods, the appellant has received invoices and also issued cenvatable invoices, facilitating M/s.Reliance Cellulose Products Limited to avail fraudulent credit -the appellants having issued excise duty invoice without delivery of goods is, therefore, liable for penalty under sub Rule 2 of rule 26 of CER - therefore, no grounds found to interfere with the findings of the Commissioner that the appellant is liable for penalty under rule 26(2) -however, taking into consideration the entire facts and circumstances of the case, the Bench is of the opinion that the penalty of Rs.22 lakhs imposed on the appellant is on the higher side - the Bench holds that imposition of fine of Rs.5 lakhs would meet the ends of justice -the appeal is partly allowed: CESTAT [para 8, 9, 10]

- Appeal partly allowed: HYDERABAD CESTAT

2019-TIOL-3317-CESTAT-ALL

Hi Tech Medicare Devices Pvt Ltd Vs CCE & ST

CX - The issue in these appeals is whether the appellants are liable to pay Excise duty on certain items of traded goods.

Held: The dispute arose as the appellants have traded, but have used 'Common Invoice Book' for supply of traded goods as well as manufactured goods - the issue is no longer res integra -in the subsequent period vide  O-I-A No.330-336/CE/ALLD/2017 dated 7.11.2017 , the Commissioner (Appeals) after appreciating the facts and circumstances in the appellants' own case allowed the appeals of the appellant - the said O-I-A dated 7.11.2017 has been accepted by the Department -in this view of the matter, these appeals are allowed, setting aside the impugned order: CESTAT [para 3, 4]

- Appeals allowed: ALLAHABAD CESTAT

2019-TIOL-3303-CESTAT-KOL

Hindustan Coca Cola Beverages Pvt Ltd Vs Commissioner of CGST & CE

2019-TIOL-3302-CESTAT-MAD

CCE & ST Vs Hi Design Boutique