2021-TIOL-1133-HC-KAR-CX
CCGST & CE Vs Adhikari Engineering
CX - Present appeal has been filed by the Revenue against the order passed by the CESTAT - Respondent assessee has argued that the monetary limit involved is less than Rs.1 crore and in the light of the circular issued by the CBIC dated 22.08.2019, the appeal itself is not maintainable; that in the present appeal that the monetary limit is approximately Rs.26 lakh and the constitutional validity of any provisions of the Act or the Rule is not under challenge, therefore, the appeal be dismissed accordingly.
Held: Court is of the opinion that in the present appeal there is no challenge to the constitutional validity of any provision of the Act or the Rule and, therefore, as the monetary limit involved is less than Rs.1 crore, the appeal is not maintainable - Appeal dismissed: High Court [para 6, 8]
- Appeal dismissed: KARNATAKA HIGH COURT
2021-TIOL-1131-HC-AHM-CUS
Modern Communication And Broad Case Systems Pvt Ltd Vs UoI
Cus - It is the case of the petitioner that the classification of goods under the CTH 8517 had been correctly done whereas, according to the respondents, the same were classifiable under the CTH 8528 - The adjudicating authority held that the imported goods were not reception apparatus and were, therefore, classifiable under the CTH 8528 - Tribunal allowed the appeal filed by the petitioner by Final Order dated 03.12.2018 = 2019-TIOL-148-CESTAT-AHM - Tribunal set aside the Order-in-Original dated 25.04.2018 passed by the adjudicating authority and held that since the goods were having the function of transmitting data along with other functions, they would merit classification under the CTH 8517 and not under the CTH 8528 - Petitioner has approached Court, after waiting for a reasonable period, as the request made by it to the Department to refund the amount of Pre-deposit as also the amount of Additional Duty had not been acceded to - Yet another grievance on the part of the petitioner is that the respondent Department has continued the Provisional Assessment at the higher rate despite the specific direction on the part of the Tribunal to classify the goods under CTH 8517.
Held:
+ Counsel respondents has submitted that there is no dispute as regards the refund of the amount of Pre-deposit of Rs.71.65 Lacs is concerned, however, insofar as the amount of additional duty of Rs.77.54 Lacs is concerned, the same may be directed subject to the outcome of the matter, which is pending before the Apex Court. However, the Counsel has shown his inability to explain as to why Provisional Assessment is being made by the respondent authority under the CTH 8528. [para 9]
+ Bench directs the respondents to refund the said amount of Pre-deposit [of Rs.71.65 Lacs] within a period of Two Weeks. [para 10]
+ Insofar as the amount of Rs.77.54 Lacs is concerned, respondent Department cannot be a Judge in its own cause, more particularly, when no stay was sought for by the Department against the operation of the order passed by the Tribunal. Thus, subject to the petitioner, through its Managing Director filing an Undertaking before this Court within a week that it would abide by the decision of the Apex Court eventually, the said amount of additional Duty of Rs.77.54 Lacs shall be refunded to the petitioner within a period of Four Weeks. [para 10.1]
+ In the matter of provisional assessment being continued, specific instructions be obtained by the Revenue Counsel before the next date of hearing in that regard; matter listed on 22.03.2021. [para 11]
- Matter listed: GUJARAT HIGH COURT
2021-TIOL-1130-HC-AHM-CUS
Ronak Kumar Vs DCC
Cus - Petitioner is praying for release of three gold bars seized by the Custom Authority under panchnama on 15.12.2020 on his arrival from Dubai to Ahmedabad - Petitioner had approached the Authority with a representation and the documentary evidences to release the gold bars, as he had duly purchased the same - further submitted that it was only on account of his lack of legal knowledge, which have led him not pay the custom duty on such gold bars and which he is ready to pay.
Held : Bench is of the view that discharge of the burden u/s 123 of the Customs Act, 1962 and the appreciation of such evidence is function of the Quasi-Judicial Authority and in the instant case, Bench has no doubt that the same shall be done, as required under law, by discharging all obligations as contemplated under the Act and other laws in existence - Petition being premature, the Court has chosen not to enter into the same and is being disposed of, without entering into the merits of the matter - Petition disposed of: High Court [para 6, 7]
- Petition disposed of: GUJARAT HIGH COURT
2021-TIOL-280-CESTAT-KOL
Price Waterhousecoopers Service Vs CCGST & CE
ST - The appellant is a provider of service to its overseas clients and availing various input services which is claimed as Cenvat credit under provisions of Cenvat Credit Rules, 2004 - Service tax on said input service used for export of service is being claimed as refund under Rule 5 of said Rules - There is no dispute with regard to the nature of services rendered by appellant which qualify as export of service - As regards to the admissibility of credit on 'renting of immovable property services' and general insurance service, the certificate issued by landlord clearly mentions that they have rendered renting of immovable property services to the appellant in respect of rented premises, i.e., South City Pinnacle - There is no reason to dispute the receipt of services by appellant in the absence of any contrary finding - There is also no reason to deny credit on general insurance services availed by appellant at their premises i.e. South City Pinnacle - Accordingly, credit allowed on both the said services - As regards to the manner of computation of eligible refund, it is noted that as per the formula prescribed in Rule 5 of Cenvat Credit Rules, 'refund amount' need to be ascertained by applying the ratio of value of export turnover to the total turnover on "net CENVAT Credit amount" - The said "net CENVT credit amount" is the total of credit availed on inputs and inputs services as reduced by amount in terms of Rule 3(5C) - The said Rule 3(5C) has no relevance in given case of appellant who is a service provider and not the manufacturer - Therefore, there cannot be any question of making any deduction of amount of credit utilised for payment of output service tax on domestic services in order to arrive at "net CENVAT credit" since not prescribed in the Rules - Even otherwise also, when the ratio of "value of export turnover to the total turnover" is applied on the net CENVAT Credit amount, the resultant amount is the proportionate amount relating to export of services which stands refundable to the exporter of services - The Department therefore made a fundamental error in so far as computation of refundable amount is concerned - Therefore, the claim of appellant in this regard is allowed - As regards to the Entitlement of interest under Section 11BB of Central Excise Act is concerned, the law is amply clear that when there has been a delay in payment of refund amount, appellant is entitled for interest under Section 11BB - The original authority has not dealt with the entitlement of interest - Further, in appeal also, the Commissioner has not given any finding despite that the appellant has taken the same in their grounds of appeal - Since there has been a delay in sanctioning refund, the appellant's entitlement to interest is upheld - Matter remanded to the original authority who would quantify and grant refund and applicable interest thereon as per law: CESTAT
- Matter remanded: KOLKATA CESTAT
2021-TIOL-279-CESTAT-KOL
Landis + Gyr Ltd Vs CCE
CX - The appellant is engaged in manufacture of electric meter and also providing taxable services - For the purposes of clearing excisable goods from the factory of appellants, services of goods transport operators were availed - The appellant was discharging service tax under Reverse Charge Mechanism on the freight amount reimbursed to goods transport operators - The appellant was availing cenvat credit of service tax paid to the Government since the services of goods transport operators were in the nature of input services - SCNs were issued for the period from May, 2005 to March, 2006 & April, 2006 to March, 2007 alleging that since the appellant had cleared its finished goods directly from factory to their buyers, they are not eligible to avail service tax paid on outward freight, of which, cenvat credit has been availed - SCN further mentions that the credit of service tax paid on services used in relation to the outward transportation is available up to the place of removal whereas the appellant have availed cenvat credit of service tax paid on outward transportation beyond the place of removal - The adjudicating authority confirmed the demand along with interest and imposed penalty of equal amount under Rule 15(2) of Cenvat Credit Rules, 2004 r/w Section 11AC of Central Excise Act, 1944 - The issue is no more res-integra in view of the decision of Supreme Court in case of Vasavadatta Cements Ltd., 2018-TIOL-90-SC-CX - By following the same, the impugned orders are set aside: CESTAT
- Appeals allowed: KOLKATA CESTAT |
