| SERVICE TAX 2020-TIOL-430-CESTAT-ALL
Advance Steel Tubes Ltd Vs CCE
ST - The assessee-company is primarily engaged in manufacturing GI Pipes and part of transmission towers - It also undertook job work for the manufacture of hand pumps - The assessee received semi-finished hand pumps for galvanization, which were then returned to the principal manufacturer after completing the process - As the assessee was availing Cenvat credit of duty on various inputs used for their own manufacture as also for galvanization on job-work basis, it also reversed the credit in respect of the goods so used for galvanization - Such reversal of credit was being duly reflected by them in their RG-12 returns - It may not be out of place to mention here that hand-pumps (whether galvanized or ungalvanized) are unconditionally exempt in terms of Notfn No.10/2006-CE - The Revenue opined that galvanization undertaken by the assessee is not manufacture and the same is tantamount to BAS provided to principal manufacturer as as such the assessee should have paid tax on them - SCN was issued proposing to raise duty demand and the same was confirmed upon adjudication - Such findings were sustained by the Commr.(A).
Held: The appeal can be disposed off on grounds of limitation alone - The entire demand is beyond the regular period of limitation - Admittedly, the assessee disclosed reversal of cenvat credit in respect of the items used in the job work activity, in its monthly returns - This sufficiently establishes the assessee's bona fide belief the galvanization amounts to manufacture and since hand-pumps were exempted, there is no requirement to pay any duty of Excise also - As there is no mala fide intent attributed to the assessee, the extended period of limitation cannot be invoked: CESTAT - Assessee's appeal allowed: ALLAHABAD CESTAT
CENTRAL EXCISE
2020-TIOL-431-CESTAT-MUM
JK Prints Vs Commissioner of CGST
CX - Refund - Commissioner (Appeals) had rejected the order of refund passed by the Deputy Commissioner on the ground that instead of verifying the fact of not passing of incidence of duty on the customers itself he got it verified by the Range Superintendent and believed the report submitted by him; that the said amount was shown in the book of accounts as expenditure and not receivable from Government; that, therefore, the burden of establishing that incidence of duty had not been passed on to the customers was on the appellant which it failed to discharge - appeal to CESTAT.
Held: There is no rule prescribed that in adjudication proceedings, documentary evidence that too of a public nature, was not to be accepted without examining the source, on the basis of which such documents has been prepared - Apparently, amount of duty paid can also not be shown in the book of accounts as receivable because the duty was demanded way back in 1999 and the show-cause notice of such duty demand was dropped on 30.09.2003 - it is acknowledged that there was no change in the price structure of the product immediately after payment of duty under protest - impugned order is set aside and appeal is allowed - appellant is entitled to get refund of Rs.10,17,419/- alongwith interest as per Section 11BB of CEA, 1944 - respondent-department is directed to pay the same within three months: CESTAT [para 5 to 8] - Appeal allowed: BANGALORE CESTAT
2020-TIOL-429-CESTAT-BANG
Bagalkot Cement And Industries Ltd Vs CCT & CE
CX - The assessee-company manufactures Cement & Clinker falling under Chapter 25 of the CETA - The assessee is also registered with the Service Tax Department for providing various services under the Finance Act & is availing cenvat credit of duty paid on inputs goods & services and capital goods - During the relevant period, the assessee received Manpower Recruitment and Supply Agency and Security Agency service - The assessee paid service tax in respect of 75% of the value under RCM and availed cenvat credit of the same - It also filed documents evidencing payment of duty - Statements of the Accounts Officer in the assessee-company were recorded - Thereafter, SCN was issued proposing to recover duty demand in respect of the services provided to the assessee - Demands for interest were also raised and penalties were imposed on the assessee - On adjudication, the dropped part of the proposals in the SCN and disallowed part of the credit availed by the assessee in respect of service tax paid under RCM - The remaining proposals were upheld - Such findings were upheld by the Commr.(A) - Hence the present appeal.
Held: The assessee availed services of Manpower Recruitment Supply Agent and Security Agency during the relevant period - The Revenue called for various documents, whereupon the assessee realised its mistake of wrong availment of credit - Hence the same was reversed with interest - The Revenue then issued SCN claiming that the assessee is not entitled to credit as per Rule 9(1)(bb) of the CCR 2004 - It is seen that the provisions of Rule 9(1)(bb) are inapplicable to the facts of the case as the assessee has not availed credit on supplementary invoices but on the basis of delayed payment of service tax and the same cannot be basis to deny credit by invoking the provisions of Rule 9(1)(bb) - It is also observed that delay in voluntary payment of service tax is not tantamount to suppression of facts with intent to evade payment of tax - Denial of credit by invoking provisions of Rule 9(1)(bb) are not tenable - Further the entire exercise of payment of service tax and availment of credit has resulted into revenue neutral situation, in which case, the exceptions created u/r 9(1)(bb) are again inapplicable - In such circumstances, the subject order merits being set aside - In respect of the other orders, it is seen that one of them was passed without issuing SCN, which is in blatant violation of the principles of natural justice - Hence the appeals are allowed: CESTAT
- Assessee's appeals allowed: BANGALORE CESTAT
CUSTOMS
2020-TIOL-428-CESTAT-DEL
AV Agro Products Ltd Vs CC
Cus - Where the act of Noticees is separately and distinctly liable for penal consequences, the co-Noticee are not entitled to automatically get penalty set aside on the ground that the case of main Noticee has been settled by the Settlement Commission - As far as the plea of denial for cross examining the witnesses is concerned, there was non-cooperation on part of the appellant - Irrespective of the fact that cross examination is the key for fair trial so as to dig out the actual truth but the same cannot be claimed as a matter of right or as a statutory mandate specifically when appellant were not even keen to submit their defence - when imported goods are not used as per the Certificate of Registration given under Rule 3(2) of Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules 1996, Assistant Commissioner having jurisdiction over the factory shall have jurisdiction to issue notice for recovery of differential duty under Rule 8 ibid and not the Assistant Commissioner of Customs at the port of importers under Rule 5 ibid - statements on record are in due corroboration of the documents which sufficiently establishes that appellants were knowingly dealing with Crude Palm Oil (CPO) imported by M/s. Pioneer Soap and Chemicals in a clandestine and illegal manner, thereby making the said imported CPO liable for confiscation - There is no infirmity in the order under challenge where penalty has been imposed upon three of the appellants u/s 112 B of the Customs Act - The order under challenge is, therefore, upheld and appeals are dismissed: CESTAT [para 5, 6]
- Appeals dismissed: DELHI CESTAT
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