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SERVICE TAX
2020-TIOL-816-CESTAT-DEL
Ronak Steel Industries Vs Assistant CCE & ST
ST - The assessee is the service recipient of GTA Services who has to discharge the Service Tax liability as contrary to the general notion of said liability to be discharged by provider - Admittedly, assessee has availed the benefit of exemption provided with respect to GTA Service to the extent of 75% of gross amount charged by G.T.A for providing the said service in furtherance of notfn 13/2008-ST - The sole ground for denial of the benefit of said notfn by the department is that the requisite declaration acknowledging that no Cenvat credit has been availed by assessee with respect to the exempted amount of service tax has not been filed - Thus, the narrow compass of present adjudication is as to whether such declaration is mandatory for seeking the benefit of the exemption notification - As pointed out by revenue that Commissioner (A) has relied upon the notfn 13/2006 which requires that the exemption of service tax with respect to GTA Service is subject to two conditions one being the impugned declaration - However, as pointed out by assessee and acknowledged by the department, the said notification of 2006 notified in March, 2007 stands amended by virtue of notfn 13/2008 - The GTA Services stands excluded from the definition of output service w.e.f 01.07.2012 - No question of availability of Cenvat credit is any more available to the recipient of GTA Services - The demand of declaration about not availing the Cenvat credit stands redundant in view of the said amendment - Above all, the notifications are extending substantial benefit to the assessee - The same cannot be denied for want of meagre procedural lapse - Denying the benefit of the impugned notification for alleging the payment by assessee as short is, therefore, opined to be a wrong finding - Adjudicating authority below are required to be updated with respect to the latest laws and the respective amendments while adjudicating the respective issues - Coming to the aspect of the limitations, it is held that the discussion clarifies about the entitlement of assessee for exemption to the extent of 75% of the gross value of GTA Services with no condition to be applicable for availing the said exemption - Department could not have proved the mandate of any such declaration - Accordingly, no question of suppression of facts on part of assessee at all arises as is otherwise alleged by the department - The order under challenge is hereby set aside: CESTAT
- Appeal allowed: DELHI CESTAT
CENTRAL EXCISE
2020-TIOL-819-CESTAT-DEL
Jagdish Ispat Pvt Ltd Vs Commissioner CGST, CE & Customs GST
CX - Commissioner(A) dismissed the appeal on the ground of limitation - in appeal before CESTAT, Appellant submits that they were quite vigilant about the limitations to file the appeal before Commissioner Appeals and the mandatory payment @ of 7.5% of the demand confirmed was also made by the Appellant that too within 60 days of receiving the order in original; that the payment proof along with requisite documents was given to the Counsel and the subsequent delay has occurred at Counsel's end for which the Appellant is prayed to not to be burdened with.
Held: It is observed that the order-in-original dated 02.03.2107 was received by the appellant on 15.03.2017 and the appeal thereof before Commissioner (Appeals) could have been filed within 60 days thereof i.e. upto 14.05.2017 - To comply with the said time limit, the appellant had made the mandatory pre-deposit of 7.5% of the duty confirmed on 29.04.2017 itself - The challan of the said date as is annexed on the record supports the said contention proving the deposit of Rs. 39,551/- by the appellant that too within 60 days of receiving the order of original adjudicating authority to be challenged before Commissioner (Appeals) - It is further seen that despite the said deposit, the delay of 215 days has occurred because the copy of the said challan and all requisite documents were kept pending with the Counsel for the appellant - Counsel has placed on record the affidavit and has acknowledged the delay on his part by submitting that his Clerk who received the papers of the appellant had left his job without informing about the impugned appeal to have been filed - These facts are sufficient to hold that the delay in this case is not attributable to the appellant herein but to his Counsel - Apex Court in the case of Bansidhar and Company has held that appellant should never be penalised for the default of the Counsel - Tribunal in the case of Jamuna Industry has held that when it is apparent on record that the appellant had taken steps for filing appeal in time, but the delay has occurred due to other reasons as that of attributable to his Counsel, the same is the sufficient cause due to which the impugned delay has to be condoned - Otherwise also it has been the intention of legislature that, it is the substantial justice which has to be preferred over the technical considerations - Apex Court in the case Collector Land Acquisition, Anantnag - 2002-TIOL-444-SC-LMT has held that the liberal approach is adaptable for condonation of delay as a litigant does not stand to benefit by lodging an appeal late and refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold and the cause of justice being defeated - it is, therefore, held that Commissioner (Appeals) had no option but to dismiss the appeal being time barred as the delay was more than 30 days, but keeping in view, the power of this Tribunal and that the delay is attributable to the Counsel of the appellant, the said delay is hereby condoned - Since the decision of Commissioner (Appeals) is not on the merits, the matter is remanded back: CESTAT [para 10 to 12]
- Matter remanded: DELHI CESTAT
2020-TIOL-818-CESTAT-DEL
Manmeet Ispat Pvt Ltd Vs CCE, C & ST
CX - Allegations of clandestine removal of goods without payment of Central Excise duty - Issue is is whether or not the demand of Central Excise Duty amounting to Rs. 2,79,285/- along with interest and penalty is sustainable merely on the basis of third party records.
Held: Allegations are based on record maintained by a third party - The said record did not bear full name of the Appellant, however, the authorities assumed that the short name mentioned in the documents was that of the Appellant - demand was made against the Appellant solely on presumption and assumption, without any corroborative evidence placed on record - Merely because the investigating authorities found certain private records maintained by M/s. Pankaj Ispat Ltd. (PIL) and tacit admission of M/s. PIL regarding receipt of goods without cover of Invoice and without payment of Duty, from a party having similar name to that of the Appellant, cannot conclusively prove that the Appellant has indeed cleared finished products clandestinely, without payment of Duty, to M/s. PIL - No demand can be sustained solely on the basis of privately maintained, third party records - Revenue has clearly failed to corroborate with reasonable accuracy the aspect of production and clandestine removal by the Appellant - demand is not sustainable: CESTAT [para 3, 4, 6, 7, 8]
CX - Limitation - matter was in the knowledge of the Revenue right from 19.09.2012, therefore, the Show Cause Notice dated 03.02.2016 issued after four years is hopelessly barred by limitation: CESTAT [para 9]
- Appeal allowed: DELHI CESTAT
CUSTOMS
2020-TIOL-817-CESTAT-MAD
Rose Mary International Vs CC
Cus - The assessee imported 10,000 kgs of Cloves of Indonesian origin - The department after inspection of the goods ordered for testing by FSSAI and as it did not conform to the said Act and directed for re-export of the goods on payment of redemption fine - Penalty under section 112(a) of Customs Act, 1962 was also imposed - The Tribunal in the case of M/s. Arihant Groups 2019-TIOL-2786-CESTAT-MAD had considered the very same issue with regard to redemption fine imposed for direction of re-export of goods - In said order, the Tribunal relied upon the decision of jurisdictional High Court in M/s. Sankar Pandi which was upheld by Supreme Court - Following the said decision, the redemption fine imposed for re-export of the goods cannot sustain and is set aside - The assessee has also contested the penalty of Rs.2,00,000/- imposed - Taking into consideration that the goods have been re-exported, the penalty imposed is on the higher side, same is reduced to Rs.50,000/- - The impugned order is modified to the above extent of setting aside the redemption fine and reducing the penalty: CESTAT
- Appeal partly allowed: CHENNAI CESTAT |
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