Mahaveer Prasad Vs State Of Jharkhand

GST - Jharkhand Goods and Services Tax Act, 2017 [Act] -Availment of input tax credit on the basis of forged invoices - Apprehending his arrest, the petitioner has moved the High Court for grant of privilege of anticipatory bail in connection with a case registered under sections 120(B)/415/420/425/464/468/471 of the Indian Penal Code read with sections 132(1)(b)/132(1)(c)/132(1)(e) and 132(1)(1) of the Act - the counsel for the petitioner relied upon the judgment of the Madras High Court in the case of Jayachandran Alloys (P) Ltd. - 2019-TIOL-1021-HC-MAD-GST  and submitted that the power to punish and set out offence under section 132 of the Act can only be set in motion after it is established that an assessee has committed an offence which can be arrived at only after determination of the demand due from the assessee - the counsel for the petitioner next relied upon the order of the Division Bench of Gujarat High Court in the case of Vimal Yashwantgiri Goswami - 2019-TIOL-1746-HC-AHM-GST wherein the Gujarat High Court has observed that prosecution under section 132 of the Act should normally be launched only after the adjudication is completed in terms of 73 and 74 of the Act - the counsel further submitted that the petitioner in the meanwhile has voluntarily reversed Rs.8.57 crores from his electronic ledger to set right the alleged illegal and fraudulent Input Tax Credit of Rs.8.57 crores for which this F.I.R. has been lodged - it is next submitted that the petitioner is ready and willing to furnish sufficient security including cash security and undertakes to cooperate with the investigation of the case

- Anticipatory Bail Application disposed of: JHARKHAND HIGH COURT

SERVICE TAX

2020-TIOL-256-CESTAT-DEL

Ahlcon Parenterals India Ltd Vs CCGST, C & CE

ST - The assessee is company - A show cause notice was issued to to demand service tax & the assessee paid the same during the cource of litigation to file appeal before the Tribunal -The relevent order was challenged by the Revenue before the High court - The High court dissmissed the appeal filed by the revenue-The refund claim filed by the appellant on ground u/s 11B-The refund was confirmed upon adjudication-The revenue challanged the order of adjudication was upheld by the Commr.(A) - Hence the present appeal.

Held: The appellant had filed refund claim in time in terms of section 11B of the Act - The appellant had filed refund claim within one year from the high court order-the appeal filed by the revenue had been dissmissed-The appelant had become entittled to claim refund of the amount paid by them during the course of litigation - The Commr.(A) order to reject the refund claimed as time barred - Hence the order is set aside & the appeal is allowed: CESTAT

- Assessee's appeal allowed: DELHI CESTAT

2020-TIOL-255-CESTAT-HYD

Bharat Heavy Electricals Ltd Vs CCT

ST - The assessee is a public sector company engaged in manufacturing various products and which avails benefit of cenvat credit - Upon introduction of GST, the assessee migrated to the new regime from the erstwhile service tax and central excise regime - As per the new provisions, cenvat credit lying in balance in its accounts at the time of transiton could be taken as input service credit and utilised accordingly - As on June 2017, some amount of credit remained unutilised - Such credit pertained to EC, SHEC and KKC - The assessee filed application for refund of such credit along with refund of Excise duty u/r 173S of the CER 2002 - Such application was rejected by the original authority on grounds that there was no legal provision under which refund could have been sanctioned - Such findings in the O-i-O were sustained by the Commr.(A) - Hence the present appeal.

Held: The judgment of the Larger Bench of the Bombay High Court in Gauri Plasticulture Pvt Ltd is precisely on the point whether the assessee can get cash refund of cenvat credit which it is not able to utilize & such question was answered in the negative - The High Court of Madras in Sutherland Global Services Pvt Ltd touched upon a different issue - The latter decision did not deal with the issue of cash refund of unutilized cenvat credit, which is in dispute in the present case - Hence there is no legal provision under which the assessee's appeal can be entertained: CESTAT

- Assessee's appeal dismissed: HYDERABAD CESTAT

CENTRAL EXCISE

CCGST & CE Vs Natwar Lal Sharda

CX- Issues are (i) Whether in the facts and circumstances of the matter, the CESTAT has rightly analyzed the effect of the order of the High Court and the Supreme Court of India wherein the earlier order of adjudication was affirmed(ii) Whether in the facts and circumstances of the matter, the CESTAT has rightly appreciated the effect of evidence and the degree of proof required to establish a case against the respondent(iii) That, other questions of law may be framed by this Court looking to the pleadings raised by the appellants and facts and evidence on record(iv) Whether in the facts and circumstances of the case, the CESTAT has committed a gross legal error in ignoring the earlier Final order No.A/257/2012-EX(BR) dated 6.3.2012 which has stated that, "We find that the evidence showing unaccounted receipt of scented tobacco as evidence by the records recovered from M/s.Sarita Roadways in maintainable" -and later on, High Court vide their Judgment dated 8.2.2017 in CEA No.24/2012 had also stated that 'there was sufficient evidence about the manufacture and removal of goods and the Department has rightly drawn inference about clandestine manufacture and removal and whether a res judicata operated between the parties

Held: While passing the impugned order, the CESTAT has observed that all the companies mentioned in the recovered Lorry Receipts are different entities, therefore, the respondents cannot be held liable for any Lorry Receipts, which is not related to it - para nos.9 to 13 of the impugned judgment are relevant - while deciding the dispute between the parties, CESTAT has not opined or held that the Lorry Receipts recovered during the search are not admissible, therefore, the argument advanced by the counsel for the appellant that the order of CESTAT is incorrect or illegal is not tenable -the CESTAT has clearly held in para no.9 of the impugned order that "It appears that all business entities mentioned in the Lorry Receipts are independent business entities as their assessment, registration etc. were separate - in the eyes of law, each firm/business entity is a separate business entity as its assessment was separate" - there is nothing on record to rebut or contradict this finding of the CESTAT - when all the business entities are independent business entities, then there is nothing wrong in holding that a business entity cannot be held responsible for any Lorry Receipts, which is not related to it - the dispute between the parties as well as order of the Tribunal is purely based upon appreciation of facts and keeping in view the nature of dispute, no question of law arises -therefore, the CESTAT has not committed any error - there is no question of law involved in the matter - the appeals preferred by the Revenue have no merits, therefore, the admission is declined and resultantly, the appeals stand dismissed and disposed of : HIGH COURT [para 16, 17, 18, 19]

- Appeals of Revenue dismissed: MADHYA PRADESHHIGH COURT

2020-TIOL-279-HC-MUM-CX

CCE & C Vs Encore Healthcare Pvt Ltd

CX- Issues are -(1) Whether the respondent assessee had contravened the provisions of rule 57CC of the Central Excise Rules, 1944 [Rules]? (2) Whether, the respondent assessee having availed the Modvat Credit under rule 57-A on common inputs but having failed to pay @ 8% on the exempted product nor having maintained the separate inventory for the inputs used for the manufacture and exempted product amounts to contravention of rule 57CC of the Rules? (3) Whether the respondent assessee is required to pay @8% of price of exempted goods in terms of rule 57CC?

Held - This Court holds that at this stage, it is not possible to consider the matter in detail as from the nature of order made by CESTAT, it can be said that necessary material is not considered by the CESTAT and there was non application of mind -in the result, the appeal is allowed - the judgment and order of CESTAT is hereby set aside - the matter is remanded back for fresh decision which needs to be given after considering the relevant material and CESTAT is expected to give reasoned order in respect of the material available against the assessee: High Court [para10, 11]

- Matter remanded: BOMBAY HIGH COURT

2020-TIOL-278-HC-MP-CX

Magnum Steels Ltd Vs UoI

CX - (1) Whether Rule 25(1)(b) of the Central Excise Rules, 2002 [Rules] can be read in isolation without reading rule 25(1)(d) of the Rules?(2) Whether the iron bars weighing into tons could it be judged only with the estimation without actually weighing the same? (3) Whether in the facts and circumstances of the case, defence of the appellant stood jeopardised for the non-supply of weighment sheets?(4) Whether while issuing the show cause notice it was not necessary for the respondent/Revenue to supply the weighment sheets and counting sheets, and could the Revenue deny the supply of those documents on the basis that they are the documents not relied upon by the Department, as mere estimation of weighment is not enough to burden the appellant to fasten with the penal liability?

- Appeal dismissed: MADHYA PRADESH HIGH COURT

2020-TIOL-254-CESTAT-MUM

Manikgarh Cement Vs CCE

CX - Application filed for alleged rectification in the final order dated 22.02.2018 - 2018-TIOL-1580-CESTAT-MUM - applicant submits that primary ground taken by them of limitation has been ignored by the Tribunal and without giving any findings thereon.

Held: There is no denial of the fact that the points raised concerning non-application of extended period of limitation have not been specifically dealt with and findings have not been placed on record on the same - Perusal of SCN would reveal that for contravention of provision of Rule 2 & 3 of CCR and Rule 4, 6, 8 & 11 of CER, 2002, the demand was raised and it was confirmed in the OIO and OIA on the ground that appellant had suppressed the fact that they were availing Cenvat Credit of service tax on such service which was not rendered by them - The order passed by this Tribunal also confirmed the same reasoning that appellant was not the recipient of service for which the Tribunal found no infirmity in the impugned order - This being to the findings of the Tribunal, allowing rectification of mistake application so as to bring debatable points of law and fact for re-appreciation and analysis would defeat the purpose of the provision contained in the CEA, 1944 for rectification of mistake and defeat the appeal procedure prescribed in the Statute too - Application, being devoid of merit, is rejected: CESTAT [para 4]

- Application rejected: MUMBAI CESTAT

2020-TIOL-253-CESTAT-MUM

MK Trading Company Vs CCE

CX - Cenvat Credit denied to the appellant on the ground that supplier of the Appellant had availed Cenvat Credit on fake invoices without actual movement/supply of goods - demand confirmed along with interest and penalty - appeal to CESTAT.

Held: Original supplier of appellant has been prosecuted for non-payment of duty and availment of Cenvat Credit which was subsequently passed on to the appellant by the supplier - This being the factual scenario, it is on the supplier of appellant on whom duty liability is to be determined since the credit has been passed on to the appellant by supplier after all payments had been made by the appellant - Further, in the event of such liability of duty being determined against the supplier of appellant i.e. M/s. Accelerate Synthetics Pvt. Ltd., imposition of same duty on the appellant would amount to double taxation, which no law of the land would approve it - Therefore, direction for reversal of Cenvat Credit by the appellant in the instant case and imposition of penalty etc. are not in conformity to the rules and procedure - appeal allowed: CESTAT [para 7, 9]

- Appeal allowed: MUMBAI CESTAT