Director General Of Anti Profiteering Vs Elan Ltd

GST - Anti Profiteering - The DGAP had received a report from the State Screening Commitee, alleging that the respondent had profiteered in respect of a purchase of a certain shop by the Informant, in the project being developed by the respondent - It was alleged that the respondent had not passed on the benefit of ITC credit by way of commensurate reduction in the price of the shop - It was also alleged that the respondent charged 12% GST on the instalments paid to it.

Held - From perusal of facts, it is established that the respondent benefited from additional ITC to the extent of 5.91% of the turnover during the relevant period - It is clear that the provisions of Section 171 were violated, since the respondent did not pass on benefit of ITC to its buyers - The respondent realized additional amount of Rs 66463/- which includes the profiteered amount @ 5.91% of the taxable amount and 12% GST on the profiteered amount, from the applicant - The respondent also realized additional amounts of Rs 2.44 crores from 228 other shop buyers - Hence the respondent is directed to pass both amounts to the shop buyers, including the applicant, along with interest @ 18% per annum from the dates from which the amount was collected, till the date the payment is made - As the respondent has contravened the provisions of Section 171(1) buy not passing on benefit of ITC rate reduction, the respondent has committed an offence u/sd 171(3A) of the CGST Act - However the respondent cannot be penalized u/s 171(3A) as the penal provisions were not in effect when the profiteering took place in the relevant period - Hence penalty u/s 171(3A) cannot be imposed retrospectively: NAA

- Application disposed of: NAA

2020-TIOL-2210-HC-AHM-VAT

Neha Jignesh Mehta Vs State of Gujarat

Whether a challenge to a provisional order of attachment is warranted, where such order ceases to have effect after expiry of one year from date of it being passed & where final order has not been passed - NO: HC

-Writ petition allowed : GUJARAT HIGH COURT

2020-TIOL-2202-HC-DEL-VAT

Uno International Vs Commissioner of Vat

In writ, the High Court considers the findings rendered by the Supreme Court in Mafatlal Industries Ltd. vs. Union of India and directs the Revenue to process the assessee's refund claim as per provisions of the DVAT Act.

- Writ petition disposed of: DELHI HIGH COURT

2020-TIOL-1704-CESTAT-MUM

Syngenta Services Pvt Ltd Vs CCT

ST - Assessee is in appeal against impugned order rejecting their refund claim on the ground of limitation, as one year from the date of receipt of FIRC had expired - The only logic that can be put forth is that assessee had plenty of scope to seek refund of disputed amount before the quarter ending December, 2017 in order to cover its claim within the period of limitation - But the same logic would not sustain primarily on two grounds - First, there is no evidence on record that any refund claim was made for the previous quarter in which FIRC dated 17.01.2017 would have been included - Second and the most significant reason to negativate such logic is that the rule provided assessee to file refund claim within one year and going by the reason cited by department, the same would expire on 16.01.2017 but it is paradoxical to the provision contained in Clause 2 of Board's Notfn 27/2012-CE (NT) that authorised claimant to filed only one refund application in one quarter - This would extinguish the right of filing refund claim within one year by squeezing it further by atleast 16 days - The findings of Larger Bench of Tribunal in Span Infotech Pvt. Ltd. 2018-TIOL-516-CESTAT-BANG-LB that the limitation period would expire at the end of the quarter remains unaltered even after the amended Notfn 14/2016-CE (NT) has come in to force - The impugned order to the extent the rejection of assessee's claim for refund of Rs. Rs.32,37,701/- is hereby set aside - Assessee is entitled to get the said refund with applicable interest: CESTAT

- Appeal allowed: MUMBAI CESTAT

2020-TIOL-1703-CESTAT-DEL

Hi Tech Abrasive Ltd Vs CCE

CX - The assessee is engaged in manufacture of M.S. Ingots, Runners & Risers and Steel Shots and Grits, which are dutiable - They are availing facility of cenvat credit on inputs used in manufacture of aforementioned final products - They were having two induction furnace for manufacture of M.S. Ingots of capacity 3.0 M.T. each - The main raw materials /inputs are Sponge Iron, Iron Scrap and Pig Iron - The revenue is having intelligence that induction furnace units were engaged in clandestine manufacture and removal and were not disclosing their true production and clearance to the Revenue - Accordingly, a SCN was issued invoking extended period of limitation demanding duty including cess on alleged suppressed production and clearance of 19084.853 MTs of M.S. Ingots - Further, penalty was proposed under Section 11 AC, Rule 25 of CER, 2002 and the personal penalty was also proposed on Director, Shri Pankaj Tekriwal and also on Shri S. K. Pansari, Proprietor and Shri Kailash Traders under Rule 26 of CER, 2002 - The demand has been confirmed only on the basis of the unsubstantiated evidence being the private records of two brokers viz. M/s.Monu Steels and Kailash Traders and the statement of their proprietors - The author of private records of M/s. Monu Steels - Mr. Bal Mukund was never examined by Revenue - Further, M/s. S.K. Pansari during his cross examination has admitted that the said records were maintained under his instructions by Shri Bal Mukund Pansari - Further, Revenue have failed to find out any inconsistency in records of assessee, nor there is any seizure of any consignment of goods being raw materials or finished goods, being transported without documents or clandestinely - Although the third party records are good evidence of suspicion of clandestine activity, but the same cannot be adopted for concluding the charge of clandestine removal in absence of corroborative evidence - Further, in spite of names being found of parties, to whom the alleged clandestine removal has been despatched, there is no further inquiry made from alleged receivers of goods - Accordingly, the demand against assessee is not sustainable in absence of sufficient evidence of clandestine manufacture and removal of goods - The demand including penalty is set aside against both the assessees: CESTAT

- Appeals allowed: DELHI CESTAT

2020-TIOL-1702-CESTAT-DEL

Pr CC Vs Vivo Mobile India Pvt Ltd

Cus - The respondent had filed applications for refund of excess additional duty paid by it - An issue was raised by Department in deficiency memo that respondent had not filed any document showing re-assessment of bills of entry in respect of refund amount claimed by it - The respondent pointed out that in view of decision of Delhi High Court in Micromax Informatics Ltd. 2016-TIOL-978-HC-DEL-CUS , it was not necessary for it to seek re-assessment of bills of entry - The Deputy Commissioner, in view of said decision held that there was no necessity of seeking modification in bills of entry - Earlier, the Deputy Commissioner had examined and found that respondent was entitled to refund of excess additional duty paid by it in view of decision of Supreme Court in SRF Ltd. 2015-TIOL-74-SC-CUS - It is only on account of unjust enrichment that the Deputy Commissioner, even though he had sanctioned the refund claim filed by respondent, directed that it should be deposited in Consumer Welfare Fund under section 27(2) of Customs Act - The respondent then filed two appeals before Commissioner (A) to assail that part of order of Deputy Commissioner that directed that sanctioned amount of refund should be credited to Consumer Welfare Fund instead of being paid to respondent - The Commissioner (A) accepted the contentions raised on behalf of respondent that it was not a case of unjust enrichment and therefore, directed for refund of Additional Duty of customs to respondent instead of said amount being deposited in Consumer Welfare Fund - A bare reading of section 128 of Customs Act leaves no manner of doubt that whereas an appeal to Commissioner (A) can be filed by any person aggrieved by any decision or order passed under the Act by an officer of customs lower in rank than Principal Commissioner or a Commissioner of Customs, but no cross-objection can be filed against any part of order passed by officer of customs - On the other hand, section 129A(4) of Customs Act which deals with Appeal before Appellate Tribunal does provide for filing of cross-objections against any part of order - Section 128 of the Customs Act dealing with Appeal to Commissioner (A) provides that any person aggrieved by any decision or order may appeal to Commissioner (A) - The right to file cross-objection is a substantive right conferred by a statue and can be exercised only in accordance with provisions of statue - Thus, neither could the Department have filed any appeal against the order of the Deputy Commissioner as it could not have considered itself to be aggrieved by order since the Deputy Commissioner had not directed for amount to be paid to respondent but had directed to be credited in Consumer Welfare Fund nor was it permissible in law for the Department to have filed cross-objections in appeal filed by respondent before Commissioner (A) since cross-objections cannot be filed before Commissioner (A) - In Gannon Dunkerley , this Bench of Tribunal had examined at length the relevant statutory provisions to determine whether an additional ground can be taken up under Rule 10 of 1982 Rules in an appeal before the Tribunal - Though it is correct that the ground that is sought to be added is contrary to a ground already taken in appeal since initially a ground was taken in the appeal that the decision relied upon by Deputy Commissioner was in connection with re-assessment of bills of entry and not unjust enrichment, but still in view of decision of Supreme Court in ITC limited , it is considered appropriate to permit the appellant to raise an additional ground in two Appeals in view of the principles of law laid down by this Bench in Gannon Dunkerley - The judgment of the Delhi High Court in Micromax Informatics , that was relied upon by Deputy Commissioner, has been reversed by Supreme Court in ITC Ltd and it is in view of aforesaid judgment of Supreme Court that the additional ground is sought to be added - The leave sought by appellant to add an additional ground in the memo of two appeals is granted - However, this would not mean that the issue raised in the additional ground has been decided in favour of appellant - This issue would be decided on merits at the time of hearing of the appeal: CESTAT

- Appeals listed: DELHI CESTAT