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SERVICE TAX
2020-TIOL-838-CESTAT-HYD
Biological E Ltd Vs CCT
ST - GTA and manpower recruitment and supply agency services - Mismatch between the ST-3 returns figures and the amounts recorded in the accounts manual - audit department informed the assessee that there was a tax liability of Rs 4,99,377/- and accordingly, the appellant deposited the same on 29.02.2016 along with interest before issuance of SCN (dated 03.03.2017) which invoked the normal period of limitation of 30 months as per s.73(1) of FA, 1994 - provisions of Section 73(3) of the Finance Act, 1994 will directly apply and lower authorities should not have issued any show-cause notice for this amount, seeking to impose penalty – penalty imposed u/s 78 is, therefore, set aside – Appeal disposed of: CESTAT [para 6]
- Appeal disposed of: HYDERABAD CESTAT
2020-TIOL-837-CESTAT-CHD
CBSL Cable Network Ltd Vs CCE & ST
ST - Cenvat credit of Rs.1,58,07,543/- is sought to be denied on the ground that the appellant has failed to produce the documents on the strength of which they have availed cenvat credit – appeal to CESTAT.
Held: It shows that the appellant has been utilizing the cenvat credit since October 2010 itself and the show cause notice has been issued to the appellant on 21.04.2016 which is beyond the period of limitation, therefore, the proceedings against the appellant are not sustainable: CESTAT [para 6, 9]
ST - Issue of availment of cenvat credit of Rs. 7,41,600/- - Sole ground for denial of cenvat credit is that invoices were in the name of the appellant located at Ludhiana whereas the appellant was registered at Mohali Punjab in the jurisdiction of Mohali Range.
Held: It is not disputed that the CBSL Cable is the same which is registered with the department and the appellant has availed the services and paid service tax thereon - in that circumstances, the cenvat credit of Rs. 7,41,600/- cannot be denied to the appellant – impugned order is set aside and appeal is allowed with consequential relief: CESTAT [para 7, 9]
- Appeal allowed: CHANDIGARH CESTAT
CENTRAL EXCISE
2020-TIOL-836-CESTAT-DEL
Bhagwati Power And Steel Ltd Vs CCE & C
CX - During the relevant period, investigation was conducted at the premises of a company - Examination of its purchase register revealed the name of the assessee-company - Private records were also found, showing procurement of some raw material from the assessee without payment of duty - On the basis thereof, SCN was issued to the assessee, alleging that it cleared goods to the other company without issuing invoice and without payment of duty - On adjudication, the proceedings were dropped on grounds that no investigation had been conducted at the assessee's end that the case against the assessee was based on third party evidence, which is not admissible in law - On Revenue's appeal, the Commr.(A) held that the assessee was liable to pay duty and were also liable to be penalised - However, no findings were recorded in the O-i-A - Hence the present appeal.
Held - The facts are not disputed that the investigation was conducted at the premises of a third company - Moreover, SCN was isused after a gap of almost four years - Hence proceedings against the assessee are not sustainable on the basis of third party evidence which is highly time barred - Thus the O-i-A merits being set aside: CESTAT
- Assessee's appeal allowed: DELHI CESTAT
2020-TIOL-835-CESTAT-DEL
Prosafe International Ltd Vs CCE & GST
CX - The assessee is engaged in manufacture of safety shoes and hand gloves and work wears - They are also engaged in clearing the safety shoes on payment of duty and clearing hand gloves and work wear without payment of duty - The department observed that the assessee has availed and utilised cenvat credit of service tax paid on certain input services both in dutiable and exempted goods which amounts to contravention of provisions of Rule 6 of CCR, 2004 - Accordingly, vide SCN, an amount of Rs. 1,96,31,255/- on the value of exempted goods was proposed to be recovered from the assessee in terms of Rule 6 (3) of CCR, 2004 for the aforementioned goods manufactured and cleared by them during the year 2007-08 to 2011-12 - From perusal of the order under challenge which is passed in compliance of Final Order, it is observed that the adjudicating authority has clearly recorded, that it is not a case of reversal of entire cenvat credit availed by them, irrespective of the fact whether it pertains to input services used in exempted goods or dutiable goods - Their claim that credit of only Rs. 80,006/- pertained to exempted goods is not substantiate by any evidence - The language of Rule 6(1) of CCR, 2004 is not to grant credit to an assesse except in circumstances mentioned in sub-rule(2) & (3) thereof - No infirmity found in the order where adjudicating authority records that Rule 6(1) of CCR, 2004 is not to grant credit to assessee except in circumstances mentioned in sub Rule 3 thereof - In the absence of any evidence about separate records to be maintained by assessee during the period of dispute, it is absolutely clear that the assessee was not maintaining separate accounts of inputs/input services despite manufacturing dutiable as well as exempted goods, however, were availing the cenvat credit on the common inputs, which definitely amounts violation of Rule 6 of CCR, 2004 - Accordingly, no infirmity found in the order under challenge, same is hereby upheld - There remains no question for any error while imposing penalty on the assessee, when the demand otherwise sustains - Resultantly, the order is hereby upheld: CESTAT
- Appeal dismissed: DELHI CESTAT
CUSTOMS
2020-TIOL-1002-HC-KERALA-CUS
Cochin Air Cargo Clearing House Vs CC
Cus - CBLR, 2013 - In the matter of alleged overvaluation of goods by exporter for whom the petitioner had acted as a Customs broker, a SCN was issued to the petitioner and which was challenged before the Madras High Court - In the interregnum, Petitioner had submitted an application dated 11.10.2019 for renewal of licence expiring on 14.04.2020, however, the same was rejected by the authorities vide communication dated 21.04.2020 Ext.P9 - Petitioner had sought a review of the order but the same was also rejected by communication dated 19.05.2020 Ext.P11, hence the present petition informing that the Tribunals are not working and it is in these circumstances, the extra ordinary jurisdiction of this Court has been invoked as the petitioner is remediless.
Held: Bench is of the view that this Court cannot, while exercising power under Article 226, exercise judicial review in examining the veracity and genuinity of impugned documents Exts.P9 and P11 as they are subject to appeal in view of the provisions of the Regulations 2013, now amended 2018 and Section 129 of the Customs Act - Counsel for Revenue informs this court that he would be verifying regarding the working of the Tribunal but, there is no closure of the system in preventing the affected party in filing the appeal particularly when the limitation is not still expired - The petitioner is, therefore, relegated to avail the remedy of appeal, if so advised, and the appeal is directed to be disposed of by the Tribunal as expeditiously as possible within a period of two months as provided under the regulation - Petitioner is at liberty to seek the modification of this order on account of the non-functioning of the Tribunal so that an appropriate direction/order can be issued - Writ petition is disposed of: High Court [para 5]
-Petition disposed of: KERALA HIGH COURT
2020-TIOL-1001-HC-KAR-CUS
CC Vs Gimpex Ltd
Cus - Order passed by CESTAT dated 24.07.2017 allowing the appeal filed by the respondent by arriving at a conclusion that interest is to be paid by the department from 27.01.2010 namely from the date on which the interest claimed is to be paid, has been challenged by Revenue.
Held: As rightly held by the Tribunal, cause of action for claiming interest would arise after 3 months from the date of filing of said refund claim - If at all the application is defective, it would only be an irregularity, not illegality - On the other hand, if the application for refund had been rejected by the department on that score, the contours of refund claim would have changed, inasmuch as, on such rejection, applicant in the facts obtained in a given case may opt to file an application afresh for refund, which may be or may not be in consonance with the regulations made thereunder - However, if the department or revenue chooses for returning the application for compliance of deficiencies and on compliance of deficiencies pointed, such application is adjudicated by the authorities, they cannot be heard to contend that application which was defective would not enable the applicant to claim interest from the date of application - In fact, fresh application filed by the applicant on 16.10.2012 was adjudicated along with earlier application dated 26.10.2009 by treating it as having merged with fresh refund application - Hence, application for refund would not be contrary to Section 11B of the Central Excise Act, 1944/s.27 of the Customs Act, 1962 and as such Bench is not inclined to admit this appeal, since there is no substantial question of law involved in this appeal for being adjudicated – Revenue appeal stands dismissed: High Court [para 5]
-Appeal dismissed: KARNATAKA HIGH COURT
2020-TIOL-834-CESTAT-BANG
Shamsheena Mohammed Shihavudheen Vs CC
Cus - The assessee was wearing two numbers of small chain and 2 bangles of gold and one big chain valued at Rs.15,74,586/- of 24 carat purity gold which she did not declare on arrival at Mangalore Airport - In her statement, she has confessed that she was not aware that she was supposed to declare the gold and the ornaments - The original authority has discussed in detail the facts of the case and has arrived at a finding that the assessee has indulged in smuggling and has confiscated the unfinished gold, totally weighing 583.18 grams seized from the possession of the assessee under 111(d), 111(i), 111(l) and 111(m) of the Act and also imposed penalty on assessee under Section 112(a) of the Act for her omission and acts rendering the goods liable for confiscation under Section 111 of the Act and also imposed penalty of Rs.2 lakhs in terms of Section 114AA for having made false declaration under Section 77 of the Act - The Commissioner(A) has also discussed the defence of assessee and upheld the O-I-O - Imposition of penalty under Section 77 is not sustainable in law because Section 77 is applicable only when passenger fails to declare in his baggage any goods which is liable to confiscation whereas in the present case, it is on record that nothing objectionable was found in her baggage and it is only on a person gold ornaments were secreted - The penalty imposed under Section 114AA is set aside - Penalty under Section 112(a) of the Act is upheld but same is reduced to Rs.2,25,000/- - No infirmity found in the impugned order regarding the absolute confiscation of smuggled goods: CESTAT
- Appeal disposed of: BANGALORE CESTAT
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