2021-TIOL-1451-HC-MAD-ST
N Sundararajan Vs UoI
ST - SVLDRS, 2019 - COVID-19 Pandemic - Delay in payment beyond the notified date of 30.06.2020 - Petitioner had sought a mandamus directing the first respondent to accept the payment towards full and final settlement of tax dues and issue certificate of settlement in form SVLDRS-4.
Held : Bench sees no reason to keep this writ petition pending any more in the light of the position that the petitioner has, according to it, remitted the balance of the amount under its declaration - The petitioner is permitted to make a representation for acceptance of its application under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 within a period of one week from today, accompanied by a copy of this order to the Board and the Board is directed to consider the same and pass appropriate orders within a period of four (4) weeks from receipt thereafter - Proceedings in order 2021-TIOL-1433-HC-MAD-ST - referred - Writ petition is disposed of: High Court
- Petition disposed of: MADRAS HIGH COURT 2021-TIOL-375-CESTAT-DEL
Mammon Concast Pvt Ltd Vs CCGST, C & CE
ST - The appellant is a manufacturer of M. S. Billets and availing cenvat credit facility of input and input services for the manufacture of their final product - It appeared to Revenue that the appellant have wrongly taken cenvat credit on the strength of improper document of input service, mainly for the reason that some of the invoices are not issued in their name but are issued in the name of high sea seller who sold the goods to the appellant on high sea sale basis - Admittedly, the melting scrap purchased by appellant on high sea sale is their input for manufacture of M.S. billets - Rule 9(1) of Cenvat Credit Rules provides that cenvat credit shall be taken by manufacturer on the basis of invoice issued by a manufacturer for clearance of inputs from his factory or depot or from the premises of consignment agent of said manufacturer or from any other premises from where the goods are sold by or on behalf of the said manufacturer - Similarly, an importer is entitled to avail cenvat credit on inputs if the importer is registered in terms of the provisions of CER, 2002 - Further, Rule 9(2) provides that no cenvat credit under sub-rule (1) shall be taken unless all the particulars as prescribed under CER, 2002 or the STR, 1994 are contained in the said documents - No specific documents have been mentioned considering the transaction of subsequent sale on high sea sale basis, in the Rules - Thus, the scheme of the Act read with the Rules has to be read harmoniously - If for something missing in the rules, the cenvat credit is available under the scheme of the Act, r/w Rule 3 r/w Rule 2(l) and (k) of Cenvat Credit Rules, service tax credit cannot be denied for some gap left in the statute - Such interpretation will defeat the scheme of cenvat credit, leading to anomalous situation - Accordingly, appellant has rightly taken cenvat credit under dispute - The penalty imposed is also set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2021-TIOL-374-CESTAT-MAD
Chemplast Sanmar Ltd Vs CC
Cus - The only issue that arises for consideration is, whether the Revenue is justified in ordering the refund amount to be deposited in Consumer Welfare Fund - A perusal of adjudication order reveals that the Adjudicating Authority has mainly verified the usage of raw materials in the production of final product between 17.10.2017 and 04.11.2017 in respect of first BOE/Order and between 27.10.2017 and 04.11.2017 in respect of second BOE/Order - However, there is no finding at all as regards the primary contention of appellant that the Basic Customs Duty itself was not legally payable, but was paid in excess - Further, stock movement is traced from the date of its import to its usage, but a finding is given to the effect that the same was sufficient to hold the passing on of duty element - However, there is no finding at all as to what was actually passed on - The Adjudicating Authority has very comfortably adopted the amount of refund claimed as the amount of duty passed on without demonstrating the specific amount from the books or the Balance sheet - Moreover, the stock of materials for a very short period, i.e., 19 days and 9 days respectively as regards each Bill-of-Entry, alone are considered - What then happens to the opening stock as at the beginning of the year, whether it remained a part of the closing stock in balance sheet at the end of the year, was it never utilized - A clear finding on all these aspects is very much necessary, besides a positive finding on the exact amount of duty that is passed on, which are not there - Matter remanded to the file of Adjudicating Authority to determine the factual matrix after giving sufficient and reasonable opportunities to the appellant and then pass a speaking order as per law: CESTAT
- Matter remanded: CHENNAI CESTAT
2021-TIOL-373-CESTAT-MAD
Deputy General Manager (Finance) Vs CGST & CE
ST - The appellant had filed rebate claim for Service Tax paid on Airport Services utilized towards export of goods - The first claim for the refund was made on 30.03.2017 and thereafter, a revised claim for refund based on subsequent payment made to the service provider was made on 21.08.2017 - Same was partly rejected - The denial of refund by First Appellate Authority pertains to the period from 01.04.2016 to 22.08.2016 and it is the case of Revenue that the refund claim for this period was clearly made after a lapse of ONE year and hence hit by limitation in terms of paragraph 3(g) of the Notification No. 41/2012-S.T. - The Tribunal in the case of M/s. Ashok Granites Ltd. 2016-TIOL-2167-CESTAT-MAD under almost similar facts has held that the appellant is correctly and legally entitled for the refund claim - Denial of refund on the ground of time-limit is not in order and therefore, the impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2021-TIOL-372-CESTAT-MAD
Wabco India Ltd Vs CGST & CE
ST - Refund - Limitation - The Notification No. 12/2013-S.T. states that the refund has to be filed within period of one year - In terms of section 26(1)(e) of SEZ Act, an assessee is eligible for exemption on taxes and duties - Such exemption can be availed ab initio, while procuring the input services or after the services are procured on payment of service tax by availing refund as per the Notification No. 12/2013-S.T. - The assessee has opted for applying for refund as per the notification - The department has rejected the refund claim stating that it is barred by limitation - The question as to whether the time-limit prescribed in the notification would prevail over sections 51 and 26(1)(e) of the SEZ Act was considered in the case of M/s. GMR Aerospace Engineering Ltd. - The Tribunal in the case of M/s. ATC Tyres Pvt. Ltd. 2021-TIOL-190-CESTAT-MAD had considered the very same issue of limitation mentioned in the Notification No. 12/2013-S.T. - It was held that section 51 of SEZ Act has an overriding effect and therefore, the conditions mentioned in the notification cannot be applied so as to deny the refund when substantial conditions prescribed in the SEZ Act have been fulfilled - The rejection of refund on the ground of limitation cannot sustain: CESTAT
- Appeals allowed: CHENNAI CESTAT
2021-TIOL-371-CESTAT-DEL
Unnati Alloys Pvt Ltd Vs CCGST
CX - The impugned order has been practically passed ex-parte as the notice of personal hearing was not served upon them - It is admitted that the O-I-O was despatched to their Jaipur address which could not be delivered, and returned to the Department with the remark by the Post Office 'premises vacated four years back' - Thereafter, the appellant come to know about passing of O-I-O from other co-noticees sometime in June, 2018 and thereafter they applied for a copy of order before Assistant Commissioner and the same was issued to them - Admittedly, appellant filed their appeal before the Commissioner (Appeals) who held that he has no power to condone the delay and dismissed their appeal - The presumption of service in normal course is not available as the Commissioner (Appeals) has erred in drawing such presumption and ignoring the fact that the O-I-O was returned with postal remark - The appeal was filed before Commissioner (Appeals) in time from the date of knowledge - Accordingly, matter remanded to the Commissioner (Appeals) with the direction to hear the appellant and pass order on merits in accordance with law: CESTAT
- Matter remanded: DELHI CESTAT |
