2020-TIOL-170-CESTAT-AHM

Mahavir Rolling Mills Ltd Vs CST

ST - The assessee-company manufactures excisable goods and is registered with the Central Excise Department as well as the Service Tax department as a recipient of GTA service, for payment of service tax on reverse charge basis - During the relevant period, the assessee discharged service tax liability on availing abatement benefit as per Notfn No 32/04-ST - The exemption was conditional and required to be fulfilled as per clarification furnished under CBIC Circular No. B1/6/2005-TRU dated 27.07.2005 - As the assessee did not comply with the requirement of the notification, the Revenue issued SCN for recovery of the short paid amount - On adjudication, the demands were confirmed and then sustained by the Commr.(A) - Hence the present appeal.

Held: The transporters engaged by the assessee were mere goods transport owners and were not registered with the service tax Department - Since the transport operators were not goods transport agents, there was no requirement for issuing any consignment note as mandated in the Finance Act 1994 - Besides, since the operators were not registered with the service tax department, there was no question of availment of cenvat benefit in respect of duty/tax paid on the inputs or taxable services - Thus, the conditions of Notification dated 03.12.2004 have been duly complied with by the appellant for the purpose of exemption benefit by way of abatement for payment of service tax - Hence the O-i-A merits being set aside: CESTAT

- Assessee's appeal allowed: AHMEDABAD CESTAT

2020-TIOL-173-CESTAT-KOL

Indian Farmers Fertilizer Cooperative Ltd Vs CC

Cus - Inordinate delay in filing the appeals is condoned - Assessments were done provisionally and subsequently they were finalized by the Assistant Commissioner of Customs, thereafter, the appellant filed a refund claim which was rejected by the original authority and such rejection was upheld by the first appellate authority by the impugned orders on the ground that the assessments which were done by the adjudicating authority were not challenged by the assessee - appeal to CESTAT - AR points out that the issue is now settled by the larger of the Supreme Court in the case of ITC Ltd. \n - 2019-TIOL-418-SC-CUS-LB and wherein it is settled that no refund claim arising out of an assessment can be allowed unless the assessment itself has been challenged.

Held: Appeal is not with respect to finalization of provisional assessment but with respect to refund - As the issue has now been settled by the larger Bench of the Apex Court in the cited case, Bench holds that the appellant was not entitled to the refund without having first challenged the assessment order itself and, therefore, the impugned order denying such refund is correct - impugned orders are upheld and the appeals are rejected: CESTAT [para 11, 12]

- Appeals rejected: KOLKATA CESTAT

2020-TIOL-172-CESTAT-MUM

Canpex Chemicals Pvt Ltd Vs CC

Cus - Vide impugned order, the communication of Deputy Commissioner of Customs, acknowledging relinquishment of title to the goods lying un-cleared had been accepted, was directed to be withdrawn while dismissing their pleas for further relief – appeal to CESTAT. Held: The issue before the first appellate authority in the appeal of the importer was limited to the non-disposal of the claim of appellant, in relation to the goods already cleared, for relinquishment, and refund, under section 26A of Customs Act, 1962 [Act] -in such a situation, it was not open to the first appellate authority to revisit a decision taken in favour of appellant save on appeal authorised by Commissioner of Customs -that apparently has not occurred yet – the extent of enhancement or reduction was limited to such as were proposed in the original notice; there is no empowerment in section 128 of the Act for a new proceedings or cause of action - such would also not constitute an enhancement and, therefore, the issue of SCN leading to the specific direction in the impugned order is beyond the pale of law -the claim of the appellant is that the two containers cleared by them should also be entitled to benefit of refund of duty -however, there is no evidence on record to show that the goods that were taken into their possession was the same as that which was cleared -further, these have neither been re-exported nor destroyed in compliance with section 26A of the Act -relinquishment of title to the goods is not permissible to goods that have already been cleared -consequently, the claim for refund of section 26A is limited only to such as those which were un-cleared and acknowledged as relinquished -accordingly, the appeal is allowed to the extent of setting aside the direction to the Additional Commissioner for further disposition of goods that remain un-cleared -there is no flaw in non-consideration of the claim in relation to the goods cleared by appellant -appeal is accordingly disposed of : CESTAT [para 5, 6, 7]

- Appeal disposed of: MUMBAI CESTAT