2021-TIOL-443-HC-KAR-CX

Karnataka Pressure Vessels Ltd Vs CCE

CX - Appellant is engaged in the business of manufacture and sale of LPG cylinders - The period of dispute is 01.07.1999 to 26.10.2000 - The goods manufactured were mainly supplied to Indian Oil Corporation Limited, Hindustan Petroleum Corporation Limited and Bharat Petroleum Corporation Limited and who were raising purchase orders fixing the rate of cylinders on provisional basis - Based on such provisional prices, the appellant was clearing the cylinders on payment of duty - Oil companies finalized the prices vide circulars dated 31.10.2000 and 03.11.2000 and these prices were lesser than the ones which was adopted by the assessee - Since the oil companies did not reimburse, the appellant filed an application for refund of Rs. 31,91,496/- on 24.08.2006 before the Assistant Commissioner of Central Excise, Bengaluru, who rejected the claim - Aggrieved by the order of Commissioner(A) order dated 24.12.2007 allowing the refund, Revenue filed an appeal and the Tribunal, by common order dated 26.10.2016, allowed the appeal preferred by the revenue and the appeal preferred by the appellant (seeking interest) was dismissed - Assessee is, therefore, in appeal before the High Court.

Held : It is not in dispute that the Commissioner of Central Excise (Appeals), by an order dated 24.12.2007, set aside the order passed by the Assistant Commissioner and allowed the appeal preferred by the appellant - Therefore, under the order dated 24.12.2007 passed by the Commissioner of Central Excise (Appeals), the appellant became entitled to the amount of refund - Thereafter, a fresh application was filed by the appellant on 11.02.2008 - It is evident from a reading of s.11B [Explanation B Clause ( ec )] that where a duty becomes refundable as a consequence of judgment, decree, order or direction of Appellate Authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction would be relevant date for the purposes of Section 11B of the Act - Thus, the appellant was required to make an application for refund within a period of one year from the date of the order directing refund in favour of the appellant i.e. 24.12.2007 - The appellant admittedly has made an application on 11.02.2008 and thus the application filed by the appellant was made within the period of limitation i.e. within a period of one year - However, the aforesaid aspect of the matter has not been considered by the Tribunal and the Tribunal has proceeded to examine the validity of the order in relation to the first application which has been made by the appellant - It is also pertinent to mention here that even before an appeal was filed before the Tribunal, an order sanctioning the refund was already passed on 04.04.2008 and thereafter, an appeal was filed on 25.04.2008 - In the result, the impugned order dated 26.10.2016 passed by the Tribunal is hereby quashed - Appeal is allowed: High Court [para 7, 8]

- Appeal allowed: KARNATAKA HIGH COURT

2021-TIOL-103-CESTAT-DEL

KEC International Ltd Vs Commissioner Appeals

CX - This appeal has been filed for setting aside the impugned order by which the order passed by Joint Commissioner dropping the proceedings has been set aside - The appellant submitted that the order passed by Commissioner (A) has been passed ex-parte - Initially a letter dated December 13, 2017 was sent to the appellant for appearance on January 8, 2018 but since the appellant did not appear nor any adjournment was sought, another letter dated January 10, 2018 was sent to the appellant by speed post for appearance on January 23, 2018 - However, on that date, a letter dated January 23, 2018 was received by Commissioner (A) from the appellant seeking adjournment for the reason that the aforesaid letter dated January 10, 2018 was received by appellant only on January 23, 2018 - The Commissioner (A) did not grant an adjournment as he did not believe that the letter dated January 10, 2018 that was sent by speed post was received by appellant on January 23, 2018 - The Commissioner (A) did not have any proof of postal department regarding service of letter dated January 10, 2018 and only a presumption has been drawn by Commissioner (A) that since the letter dated January 10, 2018 was sent by speed post, it must have been delivered prior to January 23, 2018 - In the absence of any documentary proof regarding service of the letter dated January 10, 2018 upon the appellant, Commissioner (A) was not justified in forming such an opinion and refusing adjournment to the appellant - In all fairness, Commissioner (A) should have accepted the request made by appellant for adjourning the hearing to third or fourth week of February 2018, as was requested by appellant - The order passed by Commissioner (A), therefore, deserves to be set aside on this ground alone: CESTAT

- Appeal allowed: DELHI CESTAT

2021-TIOL-102-CESTAT-DEL

ST - The appellant is engaged in providing mining services to M/s HCL - The agreements provided that HCL shall provide certain items on free of cost basis to the appellant - Issue involved is as to whether the value of items supplied free of cost by service recipient to the appellant have to be included in value of mining services provided by the appellant - This precise issue came up for consideration before Supreme Court in Bhayana Builders 2018-TIOL-66-SC-ST wherein the Supreme Court observed that a plain reading of expression 'the gross amount charged by the service provider for such service provided or to be provided by him' would lead to the conclusion that the value of goods/material that is provided by the service recipient free of charge is not to be included while arriving at the 'gross amount' for the reason that no price is charged by the appellant/ service provider from the service recipient in respect of such goods/materials - The appellant had also placed the decision of larger bench of Tribunal in Bhayana Builders 2013-TIOL-1331-CESTAT-DEL-LB before the Commissioner, which decision was affirmed by Supreme Court - The larger bench of Tribunal had concluded that the value of goods and materials supplied free of cost by a service recipient to the provider of the taxable construction service, being neither monetary or non-monetary consideration, would be outside the taxable value of the 'gross amount charged' within the meaning of section 67 of Finance Act, 1994 - In view of the decision of larger bench of Tribunal in Bhayana Builders and of the Supreme Court, it is not possible to sustain the demand of service tax that has been confirmed by the Commissioner - The impugned order is, accordingly, set aside: CESTAT

- Appeal allowed: DELHI CESTAT