2021-TIOL-1025-HC-MAD-ST
TV Sundram Iyengar And Sons Pvt Ltd Vs CCGST & CE
ST - Petitioner has entered into dealership agreements with various manufacturing entities -Respondent issued show cause notice dated 28.08.2018 proposing to levy service tax with interest and penalty on the trade discount received from the manufacturers by way of credit notes – Impugned order dated 17.12.2020 came to be passed confirming the demand of Service Tax together with interest and penalty - Questioning the same, this writ petition came to be filed.
Held: [para 15, 16, 18]
++ Applying the ratio [in SUPER POLY FABRICKS LTD., V. COMMISSIONER OF C. EX., PUNJAB = 2008-TIOL-82-SC-ST ] to the facts on hand, even though the document may be styled as a dealership agreement and the petitioner may have to be conform to certain business standards, if read as a whole, one can come to the safe conclusion that the relationship between the parties was one of seller and buyer on principal to principal basis.
++ The adjudicating authority has not read the document as a whole but instead gave undue emphasis to certain individual clauses occurring in the agreement. Therefore, I come to the conclusion that the finding of the authority that the relationship between the parties is not on principal to principal basis is clearly unreasonable.
++ Various decisions were brought to the notice of the adjudicating authority. The adjudicating authority has chosen to disregard them on the ground that the revenue has filed appeal before the Supreme Court questioning some of the decisions. It is admitted that no interim order has been granted by the Supreme Court.
++ It is well settled that merely because a matter is pending before the higher forum, such pendency will not take away the precedential value of the appealed decision. The adjudicating authority ought to have followed the Tribunal decisions which clearly support the stand of the petitioner. The aforesaid Tribunal decisions were binding on the authority.
++ By deciding the issue involved in the present proceedings in defiance of the binding decisions, the impugned order has been rendered invalid and without jurisdiction. As held in East India Commercial Co.Ltd ., Calcutta Vs. Collector of Customs, Calcutta [1983 (13) E.L.T 1342 (S.C)] , if the proceedings are without jurisdiction, the question of applying the rule with regard to exhaustion of alternative remedy will not arise.
++ The order impugned is quashed. Writ petition is allowed.
- Petition allowed :MADRAS HIGH COURT
2021-TIOL-261-CESTAT-CHD
Asian Paints Ltd Vs CCE & ST
CX - The appellant is in appeal against impugned order wherein cenvat credit on input services namely 'Air Travel Agent Service /Rail Travel Agent Service' and 'Real Estate Agent Service' has been denied to the appellant on the ground that these services have no direct or indirect relation to the manufacturing activity of appellant - It is not a case where the appellant has not provided the sample invoices of the services on which they have taken cenvat credit - In these circumstances, the services in question are having direct relation with manufacturing activity of appellant - Therefore, the cenvat credit in question is allowed to the appellant by setting aside the impugned order: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
2021-TIOL-260-CESTAT-AHM
Inox India Pvt Ltd Vs CCE ST
CX - The issue arises is, whether the appellant is entitled to Cenvat credit of Service Tax paid on Outward Transportation Service for clearance of Excisable Goods - From the contract, it is clear that the freight is not included in assessable value however, the same was separately charged to the customers - This is a very important aspect to decide the admissibility of credit - From the perusal of CA Certificate, it is clear that though the freight was included in the total invoice value however the same was not included in the assessable value of the excisable goods sold by the appellant - As per the settled position, the appellant on merit is not entitled for the Cenvat Credit - As regard the limitation, there is no dispute that the appellant is availing Cenvat credit and declaring in their monthly returns - The issue involved is also of interpretation of Cenvat Credit Rules and on this issue number of cases were made out by the department - In these circumstances, it cannot be said that the appellant had a mala fide intention to evade the excise duty by taking the wrong credit - No suppression of fact or misstatement found on the part of the appellant - Therefore, the demand for the extended period, if any, case will not sustain - Accordingly, the demand for the extended period is set aside remaining demand may be re-quantified by the adjudicating authority and recovered the same from the appellant in accordance with law - The appellant is also not liable for penalty under Rule 15(2) of Cenvat Credit Rules, 2004 r/w Section 11AC of Central Excise Act, 1944 - Accordingly, the entire penalty is set aside: CESTAT
- Appeal partly allowed: AHMEDABAD CESTAT
2021-TIOL-259-CESTAT-BANG
Baby Marine Seafood Retail Pvt Ltd Vs CC
Cus - The appellant is engaged in business of import of seafood for the purpose of export and trade - They filed Bill of Entry for the clearance of 1000 packages of "Frozen Pangasius Fillet Untrimmed 100% Non IQF" - Since the imported products were not certified by FSSAI, the appellant requested for permission to re-export the imported goods to the country of export - Thereafter, the original authority confiscated the goods and imposed redemption fine under Section 125 and penalty under Section 112(a) of the Customs Act, 1962 on the appellant - The appellant while placing purchase order clarified to the vendor that the goods in question should be in compliance with the Indian Standards - Food safety Standards Regulation, 2011 and Indian Food Safety and Standards Authority of India Regulation for microbiological requirements for fish and fishery products and also to meet other safety standards - In order to meet these standards, the vendor supplied the test certificate which certified that the goods imported was in compliance with FSSAI - Further, on subsequent laboratory analysis, the said product failed in two out of eighteen quality and safety parameters and as a result of which NOC was not issued by FSSAI - Appellant has taken reasonable care and attention to ensure that the goods are imported in compliance with the Safety Standard Act - Since the sample was drawn after about two weeks from the arrival of goods, it is possible that the contamination had occurred during the transit of the import of the goods or subsequently, for which appellant cannot be blamed and it cannot be said that the import is contrary to the prohibition imposed under the Act or any other applicable law being in force - The perusal of Section 125 clearly shows that the import by appellant is not contrary to any prohibition imposed under the Act or any other law for the time being in force - Hence, the confiscation under Section 111(d) of the Act is unwarranted and therefore the imposition and redemption fine is also unwarranted - Further, imposition of penalty under Section 112(a) of the Act is also not warranted because the penalty under 112(a) of the Act is imposable only in case of goods liable for confiscation under Section 111 of the Act: CESTAT
- Appeal allowed: BANGALORE CESTAT
2021-TIOL-258-CESTAT-BANG
Lakshmi Dhall Mill Vs CC
Cus - The only issue involved is, whether the imposition of redemption fine of Rs. 7,00,000/- under Section 125 and penalty of Rs. 3,00,000/- under Section 112 of Customs Act, 1962 is excessive - Undisputedly, the import of goods i.e. 'Black matpe FAQ crop 2019' classifiable under 0713 3110 of is not free in terms of Foreign Trade Policy, 2015-20 - Vide FTP 2015-20, Chapter 7 of Schedule 1 of import policy, in respect of RITC 0713 3110, the goods are restricted and subjected to the conditions of annual quota of 1.5 lakh MTs as per procedure notified by DGFT - Further, the importer had admitted that he does not have a license from DGFT in respect of restricted goods which means that the said goods have been imported by appellant in contravention of Section 111(d) of Customs Act, 1962 and hence liable for confiscation - The Commissioner has rightly allowed the redemption subject to payment of fine of Rs. 7,00,000/- under Section 125 and penalty of Rs. 3,00,000/- under Section 112 of the Customs Act, 1962 - Since the declared value of the goods was Rs. 62,87,885.75 and hence the imposition of fine and penalty is not on the higher side and therefore, no reasons found to interfere in the impugned order which is hereby upheld: CESTAT
- Appeal dismssed: BANGALORE CESTAT |
