2020-TIOL-443-CESTAT-MUM

BNP Paribas India Solutions Pvt Ltd Vs Commissioner of CGST

ST - As clarified by TRU letter 334/1/2012-TRU dated 16/03/2012, amended rule 5 of CCR w.e.f. 01.04.2012 does not provide for establishment of nexus between the input and the output services and the benefit of refund is to be extended only on compliance of the formula prescribed therein, therefore, denial of refund benefit on the ground of non-establishment of nexus cannot be sustained: CESTAT [para 6, 7]

ST - Refund - CENVAT - the other ground assigned for rejection of refund benefit i.e., taking of credit twice on the same invoice, Bench is of the view that such aspect cannot be verified at this juncture, for the reason that the original records are not available - Matter is, therefore, remanded to the said extent: CESTAT [para 8]

- Appeals disposed of: MUMBAI CESTAT

2020-TIOL-442-CESTAT-MUM

GR Engineering Pvt Ltd Vs CCGST

ST - Penalty - Admitted fact is that appellants discharged the service tax in full before the issuance of show cause notice, however, there has been a delay in payment for which interest also has been discharged - 2nd proviso to Section 78 ibid mentioned that if the assessee pays the service tax within thirty days of the receipt of order of the Central Excise Officer determining the amount of service tax u/s 73(2), the penalty shall be twenty five percent of the service tax so demanded - Although in the Adjudication order dated 15.7.2016, the said option was given but later when the corrigendum was issued it got diluted - In view of the Corrigendum issued by the Adjudicating Authority, failure of Appellant to pay penalty amount within 30 days of adjudication order cannot be held against the Appellant - The Delhi High Court in K.P. Pouches Pvt. Ltd. - 2008-TIOL-240-HC-DEL-CX has held that such option can be given by higher authorities if not given in the adjudication order, therefore, such option can be given now also - in order to meet the ends of justice, the impugned order needs to be modified and it will be proper to give option to the Appellant to deposit the remaining amount of penalty in order to make it twenty five percent of the service tax amount within thirty days of the communication of this order - If the Appellant deposits the remaining amount of penalty within the period of thirty days as per Section 78, then the proceedings in respect of service tax, interest and penalty against the Appellant shall be deemed to be concluded - appeal disposed of: CESTAT [para 5, 6]

- Appeal disposed of: MUMBAI CESTAT

CENTRAL EXCISE

2020-TIOL-441-CESTAT-MAD

Hindustan Unilever Ltd Vs Commissioner of GST & CEE

CX - The assessee-company was issued SCN alleging that shampoo sold by it in sachets is to be assessed u/s 4A of the CEA 1944 and not u/s 4 of the Act as done by the assessee - On adjudication, it was held that the assessee has to apply Section 4A for valuation of the goods and confirmed the demand raised in the SCN along with interest and imposed penalty - Hence the present appeal.

Held: It is found that the goods in question are not required to affix MRP as per Rule 34(b) of Legal Metrology Act/Rules - Considering the decision in Sarvotham Care Ltd. Vs. Commissioner of Central Excise, Hyderabad and in the assessee's own case, the valuation done by the assessee under section 4 of the Central Excise Act, 1944 is correct - Hence demand raised u/s 4A of the CEA is not tenable: CESTAT

- Assessee's appeal allowed: CHENNAI CESTAT

2020-TIOL-440-CESTAT-DEL

Balkrishna Industries Ltd Vs Commissioner of CGST, C & CE

CX - Department, during the course of audit, observed that the appellant, in addition to clearing the tyres/tubes (excisable goods) were also clearing various kinds of non-excisable goods such as plastic scrap, used empty jumbo bags, sweeping garbage, MS Iron, empty drums, MS scrap, etc. - alleging that the assessee had not followed rule 6 of CCR, 2004, demand notice seeking recovery of Rs. 5,68,876/- being payable under Rule 6(3)(1) of CCR 2004 alongwith the interest and penalty was issued along with demand of an amount of Rs. 3,722/- availed on common input services - demand confirmed by the original authority and upheld by Commissioner(A), hence assessee is before the CESTAT.

Held: Moot question to be adjudicated is as to whether the leftover of the packing material which was used by the Appellant to pack the Tyres and Tubes manufactured by them is to be treated as exempted/non-excisable goods due to which Rule 6 CCR,2004 is applicable - Word manufacture acquires the utmost importance for the applicability of Rule 6 and the Rule is applicable if and only if the Appellant is manufacturing exempted as well as excisable goods and the input/input services are commonly used for both kind of manufacture - Explanation 1 to rule 6 of CCR, 2004 does not deem 'non-manufactured goods' as 'exempted goods' under Rule 2(d) of the CCR - said explanation came to be interpreted by the Tribunal in the case of Kichha Sugar Company Limited - 2019-TIOL-1436-CESTAT-DEL and it was held that even after insertion of the aforesaid Explanation, such goods cannot be treated as manufactured exempted goods - confirmation of demand of Rs. 5,68,876/- on the left over/scrap of the input used by the Appellant, since Rule 6 is not applicable, the demand is not sustainable; however, demand of Rs.3722/- is upheld - Appeal partly allowed: CESTAT [para 6, 7, 11, 12, 13]

- Appeal partly allowed: DELHI CESTAT