| 2020-TIOL-1996-HC-KERALA-ST
Uniroyal Marine Exports Ltd Vs CCE
ST - The appellant is a processor and exporter of seafood - The controversy is with respect to the refund of service tax paid by the appellant for services rendered prior to 18.04.2006 when service tax on foreign agency commission was not leviable - The appellant had paid tax without demur - However, pursuant to the decision of the Supreme Court dated 14.12.2009 - 2009-TIOL-129-SC-ST which upheld the Bombay High Court decision in Indian National Ship Owners Association - 2008-TIOL-633-HC-MUM-ST holding that service tax is liable for payments in lieu of service received from abroad only w.e.f 18.04.2006, appellant filed a refund claim within eight months of the decision of the Apex court - original authority allowed the claim but the refund was set aside pursuant to review filed by department but by that time refund had been made - A further appeal by assessee before CESTAT also resulted in rejection, therefore, the present appeal before High Court.
Held: Court in Southern Surface Finishers considered the Constitution Bench decision in Mafatlal Industries Ltd. - 2002-TIOL-54-SC-CX-CB and found that the mistake, if committed by the assessee, whether it be on law or facts, the remedy would be only under the statute and if that be so, the questions of law put before the High Court would have to be answered in favour of the Revenue and against the assessee - However, the Bench observes that the amounts have been refunded to the Assessee as per the order of the original authority and in such circumstances, if Revenue is required to recover the amounts from the assessee, it would amount to Bench ordering recovery of an amount which cannot be treated as tax due under Article 265 of the Constitution of India - Therefore, although Bench answers the question of law in favour of Revenue, it finds that the Revenue is incapable of recovery of the amounts refunded as tax due - appeal is disposed of by answering the questions of law in favour of Revenue but restraining the respondent-Revenue from recovering the amounts refunded since as of now the levy of service tax on the payment in lieu of foreign agency commission will not be leviable as BAS prior to 18.04.2006: High Court
- Appeal disposed of: KERALA HIGH COURT
2020-TIOL-1995-HC-MAD-ST
S Shanmuga Sundaram Vs UoI
ST - Single Judge had dismissed the appeal filed only on the ground of there being an alternative remedy available to the petitioner of filing appeal before the Commissioner(A) against the assessment order passed by the Assistant Commissioner confirming the demand of Rs.3,06,606/- - Only point raised in the intra-court Appeal is that the Assessee could not file the Appeal within the prescribed time limit of 4 weeks as granted by the Single Judge due to overriding reasons and indulgence is now sought to file the said Appeal before the Commissioner within 4 weeks from now.
Held: Bench is of the opinion that the time limit given by the Single Judge does not deserve to be extended except subject to the condition of deposit of 50% of the demand under the impugned order dated 27.9.2010 - Subject to deposit of Rs.1,50,000/- by the Petitioner/Assessee within 4 weeks and filing of the Appeal within 4 weeks, the Appeal may be heard and decided on merits in accordance with law by the Commissioner of Service Tax (Appeals) - Writ appeal is disposed of: High Court [para 5, 6]
- Appeal disposed of: MADRAS HIGH COURT
2020-TIOL-1993-HC-MAD-CUS
Patwari Clothing Pvt Ltd Vs CC
Cus - Petition is filed challenging the order dated 22.01.2019 issued by respondents rejecting the request of the petitioner to permit cross examination of the witnesses - Rejection is on the ground that the entire case is based on documentary evidence and there is no necessity for cross examination of witnesses.
Held: Court is of the considered view that the petitioner has approached this Court prematurely without allowing the respondents to pass final orders in the matter of the show cause notice dated 17.10.2018 issued to them - Respondents have rejected the request of the petitioner, but till date, final order has not been passed - If the respondents have not followed the statutory provisions as mandated under the Customs Act, 1962, by not allowing the petitioner to cross examine the witnesses, the petitioner is always at liberty to challenge the final order as and when passed by the respondents either before this Court or before the Appellate Authority, as the case may be - If there is any legal right available to the petitioner, as contended by them in this writ petition to cross examine the witnesses, they are always at liberty to raise the same as and when any adverse order is passed against them by the respondents through its final orders pursuant to the show cause notice dated 17.10.2018 issued under Section 28 of the Customs Act, 1962 - As on date, there is no merit in this writ petition as it has been filed prematurely, therefore, the writ petition stands dismissed: High Court [para 7, 16, 17]
- Petition dismissed: MADRAS HIGH COURT
2020-TIOL-1992-HC-GUW-CX
Calcom Cement India Ltd Vs UoI
CX - SVLDRS, 2019 - In order to avail the benefit of the SVLDRS, Petitioner had submitted their particulars in form SVLDRS-1 but inadvertently the penalty imposed remained to be mentioned therein - Their claim for benefit was rejected by order dated 18.02.2020 - It was stated that the reason for rejection is that the amount of penalty had not been stated in the form and which makes it an incorrect declaration - petition filed.
Held: Issue as to whether an inadvertent mistake as regards the penalty imposed being not correctly stated in the SVLDRS-1 form could lead to rejection of the benefit under the Scheme has been settled by the Bench in the case of WP(C) no. 2149/2020 - Assam Cricket Association - 2020-TIOL-985-HC-GUW-ST - Petition is, therefore, disposed of by requiring the petitioner to submit an application before the respondent authorities for correction to be made in the information provided in the form SVLDRS-1 as regards the penalty imposed and upon such application being made, the respondent authorities would pass a reasoned speaking order - requirement of submitting application be made within fifteen days and respondent to pass order within a period of two months - Petition is disposed of: High Court [para 4, 6]
- Petition disposed of: GAUHATI HIGH COURT
2020-TIOL-1638-CESTAT-DEL
Prakash Switchgear Vs CCE, C & GST
CX - The first appellant-company manufactures Miniature Circuit Breaker and other electrical accessories, which are dutiable goods falling under CETH 85362030 - The assessee availed SSI exemption in respect of goods manufactued on their own account or brand and at the same time, paid duty on goods bearing brand name of ther persons - The second appellant is the proprietor of a company which purchased goods manufactured by the first appellant - Based on an intelligence input that the first appellant had evaded payment of duty, the premises of the first appellant were searched - The residence of the proprietor of the first appellant as well as the premises of the second appellant were searched - In course of search, certain documents were recovered and statements of various individuals were recorded - Based on such data, SCN was issued, proposing to raise duty demand - Such demand was raised on the basis of a rough register recovered from the factory, alleged to be reflecting movement of finished goods and receipt of raw/packing material - Such data was not found to tally with the rg-1 register - Such SCN was issued about 20 days before the lapse of 5 years from date of search - Initially, the appellant approached the SETCOM, admitting duty liability - Before the SETCOM, the Revenue revised the duty demand to a figure higher than that declared by the appellant - The SETCOM remanded the matter to the Adjudicating Authority for want of evidence leading to a logical conclusion - The Adjudicating Authority confirmed duty demand, at a slightly lower figure - On appeal, the Commr.(A) further reduced the duty demand, on account of errors in calculation - Penalty was also imposed on the appellant u/s 11AC of the CEA 1944 r/w Rule 25 of the CER - Personal penalties were also imposed on some persons involved in the case.
Held - It is evidence on face of the record that the SCN was issued by way of wide guess work - Before the SETCOM, the Revenue revised the duty demand raised - Later on adjudication the demand was reduced - On appeal, it was further reduced by the Commr.(A) - The fact that the installed capacity (30,000 switches per month) as certified by the Chartered Engineer has not been found to be untrue or wrong, and the same was not considered without assigning any reason by the court below - It is also evident from the overall state of affairs that the appellant have not maintained proper records of the transactions - I further find that the Rough register (RUD-26) on the basis of which the quantum of clandestine removal has been estimated, is not reliable, as the author of the same has not been examined by the Revenue, neither the proprietor have been interrogated about the entry and interpretation in the said rough register - From the statement of the appellant's proprietor, there is no categorical admission of clandestine removal - Further, no adverse quantitative ratio has been found out nor any adverse ratio with respect to consumption of electricity is found - Also the total electricity bill for the period in dispute is considerably low, and with such meagre power consumption, and taking in view the installed capacity, as well as the idle time due to power failure or break down of machine from time to time, the estimated production and confirming of duty by Revenue is found to be erroneous and high pitched - Hence the duty demand is restriced to the figure which is the duty accepted by the appellant - Such amount would be adjustable from duty liability disclosed in returns for the relevant period - Penalty is quashed as the Revenue's case is not proven - The appeals are disposed off on these terms: CESTAT
- Appeals partly allowed : DELHI CESTAT
2020-TIOL-1637-CESTAT-AHM
Power Build Pvt Ltd Vs CCE & ST
CX - Issue relates to denial of Cenvat credit on services used for Repair and Maintenance Service of wind mills located far away from the factory - The explanation inserted to Notfn 6/2015- CE (NT) come in to play if assessee sold the electricity generated - The assessee has confirmed that they never sold electricity generated from the wind mill - In this circumstance, the facts of the case do not change and the order in assessee's own case becomes the valid precedent - Relying on the said order, the impugned order is set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2020-TIOL-1636-CESTAT-AHM
JMC Projects India Ltd Vs CST
ST - The assessee-company filed the present appeal against an order passed by the adjudicating authority, wherein the assessee's request for granting cross examination of witnesses was denied during the proceedings.
Held - There is no dispute that the witnesses of which cross-examination has been sought for by the assessee have given their statements during investigation and such statements were relied upon in the SCN - Some of the statements given by the third parties - The assessee, for making their effective defence wish to cross-examine the witnesses -The assessee should be given all the opportunity for making their defence including the cross- examination - Denial of cross- examination will amount to unfair justice in the case and also violation of principles of natural justice - When the noticee seeks for cross examination of witnesses, in the interest of justice and as mandated in section 9D of Central Excise Act, 1944, the Adjudicating Authority is under legal obligation to grant cross-examination of witnesses to the noticee - Therefore, the assessee's prayer for seeking cross-examination of witness is just and proper and the same is allowed: CESTAT
- Assessee's appeal allowed: AHMEDABAD CESTAT | 
