2021-TIOL-1729-HC-MAD-CUS

CC Vs Vijayraj Surana

Cus - Single Judge by order dated 11.06.2019 had disposed of the writ petition with an observation that the respondent-writ petitioner can be granted an opportunity to cross examine three witnesses whose statements were relied upon in the SCN dated 09.04.2015, within a stipulated time and consequently, set aside the order dt. 29.09.2016 passed by the Commissioner(A) - Correctness of such order and direction issued in the writ petition is challenged by Revenue.

Held:

+ The contention of the respondent that the appeal before the Tribunal is illusory and not efficacious is an argument, which has to be rejected. The Tribunal among the hierarchy of authorities, is the last authority, which can give a conclusive finding on facts. [para 19]

+ None of those three persons have retracted their voluntary statements given under Section 108 of the 1962 Act to the authorities. Furthermore, all those three persons were the co- noticees along with the respondent in the show cause notice, which ultimately led to the passing of the penalty order dated 29.04.2016. Those three persons have not questioned the order passed by the second appellant dated 29.04.2016 and all the findings of guilt recorded by the second appellant against those three persons stand concluded. In such circumstances, the plea raised by the respondent to cross examine those three persons is obviously a plea to protract and delay the proceedings. [para 20]

+ The appellant-Revenue is right in contending that the Custom Officers are not police officers and the confession, though retracted, would bind the persons, who had given the statements. The second appellant is also right in concluding that the request made by the respondent for cross examination is to delay the proceedings, as the respondent has not specified as to why his request for cross examination is justifiable. That apart, law does not always mandate cross examination more particularly, when the statements given by the said three persons are voluntary statements under Section 108 of the Act, which bind those persons and more importantly, none of the three persons have retracted the statements and allowed the statements to remain as such, the matter had went through the adjudication process and penalty/confiscation order has been passed on 29.04.2016, which has attained finality, insofar as those three persons are concerned. [para 21]

+ Further, none of the staff of M/s. SCL of which, the respondent is the Managing Director, who were holding the positions of Vice President, General Manager and Manager have never retracted the statement under Section 108 of the Act. Further, the staff in-charge of purchase, accounts and supervision have admitted that they regularly used to purchase smuggled gold in the form of bars with foreign markings brought in by smugglers, who would come to their shop and sell the same. [para 21]

+ Process of adjudication is over and the order dated 29.04.2016 has been passed by the second appellant and it has become final as against nine others, as it is the respondent alone, who had filed an appeal under Section 129(A) of the 1962 Act before the first appellant. The said appeal has also been dismissed on merits and on doing so, the first appellant has also confirmed the order passed by the second appellant upholding the decision to deny cross examination. [para 22]

+ Question of maintainability of the writ petition, though specifically raised by the appellant-Revenue before the learned Writ Court, has not been considered. If it appears that the respondent having lost out on time to avail the statutory remedy, seeks to bypass the same and file a writ petition, the Courts would not entertain such a petition and will come to the conclusion that the reason for bypassing the statutory appellate remedy is because the appeal cannot be maintained at that point of time. [para 23, 24]

+ Remedy before the Tribunal is not only effective but efficacious. The Tribunal will be able to re-appreciate the facts and take a decision both on facts as well as on law. Therefore, there is absolutely no justification on the part of the respondent to bypass the appeal remedy available to him. Decision of the Supreme Court in Assistant Collector of Central Excise vs. Dunlop India Ltd. = 2002-TIOL-156-SC-CX-LB can be applied to the facts and circumstances of the case and the writ petition was liable to be dismissed on the ground of availability of alternate remedy. [para 25, 26]

+ Writ Court had set aside the order passed by the first appellant dated 29.09.2016, without taking note of the fact that it is a common order not only for the respondent, but for nine others, who have not preferred any appeal against the said order. The order passed in the writ petition does not specifically state that the order dated 29.09.2016 is set aside as against the respondent alone, which obviously cannot be done, because it is a common order and the culpability of 10 of them including the respondent has been brought out in the Order-in-Original as well as in the Order-in-Appeal. Therefore, the case cannot be dissected, insofar as the respondent alone is concerned and tried and tested for its correctness. Therefore, we find that the learned Writ Court has not assigned any reason as to why the Order-in-Appeal is required to be set aside in its entirety, when the Writ Court has specifically recorded that it has not expressed any opinion on the merits of the matter. [para 27]

+ In the result, the writ appeal is allowed, the order passed in W.P.No.5790 of 2017 dated 11.06.2019 is set aside and the findings of the first and the second appellants, insofar as they relate to the denial of the right of cross examination of the three named persons, are confirmed.

+ It is left open to the respondent to prefer an appeal to the Tribunal, if so advised on the other issues. In the event, the respondent prefers an appeal to the Tribunal, the Tribunal, while computing the period of limitation, may exclude the period from 27.02.2017 till the receipt of the certified copy of this judgment. [para 29]

- Writ appeal allowed: MADRAS HIGH COURT

2021-TIOL-494-CESTAT-MUM

JSW Steel Ltd Vs CCE

CX - CENVAT - Place of removal in case of the exports would be upto the point when goods are loaded on the ship or the depot from where the goods are finally sold, and all the services that are received for exporting the goods till that point shall be covered by the definition of "input services" as per Rule 2(l) of the CENVAT Credit Rules, 2004 - Hence the services of Custom House Agent (Clearing Charges), Material Handling Charges, Terminal Handling Charges are Input services - Service Tax paid of Rs.1,27,96,055/-, Rs.30,85,317/- & Rs.1,66,98,877/- respectively is admissible to the Appellant: CESTAT

CX - CENVAT - Commission paid on export sales is nothing but for sale promotions and is covered by the definition of input services under Rule 2(l) of the CENVAT Credit Rules, 2004 - Credit of Rs.2,10,21,179/- is admissible: CESTAT

CX - CENVAT - Service Tax paid on Bank Commission Charges shall be admissible as CENVAT Credit to the Appellant- Credit of Rs.1,94,86,244/- admissible: CESTAT

CX - CENVAT - Courier services are input services for appellant for conducting their business - Hence CENVAT Credit of tax paid of Rs.15,947/- will be admissible on these services: CESTAT

CX - CENVAT - For qualifying as input service, the use of the service has to be in manufacture of the finished products - Services in respect of which the CENVAT Credit is claimed by putting them under the category of Aviation Services, do not qualify the test laid down as per the Rule 2(l), hence CENVAT Credit of Rs.66,290/- in respect of these services shall not be admissible: CESTAT [para 4.4 to 4.8]

CX - Limitation - There is merit in the submissions of the Appellant that there was no suppression etc, in the case for invoking extended period of limitation - Bench also notes that except for the demand in respect of Appeal No E/1937/2010, all other demands have been made in normal period of time without invoking extended period - However, since the Bench has held in favour of the Appellants on merit in respect of all the disputed services except for those under category of "Aviation Services" the issue of limitation becomes infructuous in respect of these services: CESTAT [para 4.9]

CX - Penalty - Since it is held that there was no case for invoking extended period of limitation as there was no suppression, the penalties imposed on the Appellant equivalent to the demand confirmed cannot be upheld: CESTAT [para 4.9]

- Appeals partly allowed: MUMBAI CESTAT

2021-TIOL-493-CESTAT-DEL

RSWM Ltd Vs CCE & CGST

CX - The issue arises is, whether the court below has rightly allowed the refund of cenvat credit of AED (T&TA) under Rule 5 of CCR, in proportion of export turnover, thereby allowing refund of Rs.13,17,148/- instead of claimed amount of Rs.22,54,910/- - There is no restrictions of amount of refund of unutilised credit under Rule 5 of CCR - In view of clear mandate of law, providing for refund - where for any reason, such adjustment is not possible - CBEC vide Instructions No.267/11/2003-CX, clarified that unutilised intermediate credit of AED (T& TA) can be claimed as refund under Rule 5 of CCR - Further, Board's Circular No.701/17/2003-CX clarifies that refund of AED (GSI) shall be allowed under Rule 5 of CCR, 2002 regardless of the fact that the said duty is not leviable on the finished products, has been made applicable to the AED (T&TA) - Neither Rule 5 of CCR nor the aforesaid circulars provides for proportionate calculation of refundable amount, being proportionate export turnover to the total turnover - The impugned O-I-A is bad as the issue has attained finality vide the Final Order of Tribunal dated 2.6.2016 and the matter was remanded to Adjudicating Authority for the only purpose of arithmetic calculation - There being no appeal filed by Revenue against the final order of Tribunal, Revenue could not have filed further appeal before Commissioner (A) - Thus, the impugned order is fit to be set aside on this score - Accordingly, appellant is entitled to refund: CESTAT

- Appeal allowed: DELHI CESTAT

2021-TIOL-492-CESTAT-BANG

ABM Civil Ventures Pvt Ltd Vs Pr.CCT & CE

ST - The appeal is directed against impugned order passed on the direction of Tribunal dated 25.02.2019 - In impugned order, Commissioner has confirmed the demand of interest of Rs.8,94,092/- under Section 75 of Finance Act and on re-quantification, Department itself has come to the amount of Rs.7,22,523/- which is also incorrect as per the appellant because the interest has been calculated on a wrong amount as stated by appellant - Hence, there is a divergence of opinion between the appellant and Department regarding quantification of interest - Therefore, interest needs to be re-quantified again by Department as per the statements made by appellant - Matter is remanded back again to the Assistant Commissioner for re-quantification of interest payable under Section 75 - As far as penalty amount under Section 78 is concerned, no justification found to interfere because the same has been calculated on the basis of directions issued by Tribunal: CESTAT

- Matter remanded: BANGALORE CESTAT

2021-TIOL-491-CESTAT-BANG

Western Plastics Vs CCT & CE

ST - The appellant filed refund claim which arose as a consequence of introduction of Section 104 of Finance Act w.e.f. 31.03.2017 - Appellant filed the refund claim within time and the only ground for which the refund was rejected by Original Authority and upheld by the Appellate Authority is that the appellant did not produce sufficient documents in the form of invoices/bills showing that they have paid the service tax to KINFRA - During pendency of appeal, appellant filed various invoices/bills issued by KINFRA showing the payment of service tax by appellant for which refund claim has been filed by them - KINFRA has also issued a certificate certifying that they have not availed any CENVAT credit on service tax paid by appellant - These bills/invoices issued by KINFRA clearly show the payment of service tax by appellant to KINFRA and KINFRA in turn has paid the same to the Government - Though these invoices/bills were not produced before Original Authority but various Challans issued by KINFRA were produced along with worksheets showing the payment of service tax to KINFRA by appellant - Tribunal in identical case of M/s Phoenix Rubbers 2021-TIOL-409-CESTAT-BANG and in M/s Process Instrumentation and Engineers 2021-TIOL-460-CESTAT-BANG has allowed the appeals of appellant - The appellant have produced sufficient documents to prove the payment of service tax, no justification found for rejection of refund claim and hence, the impugned order is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT

2021-TIOL-490-CESTAT-BANG

Access World Wide Cargo Vs CC

Cus - Penalty - The appellant, a Customs Broker has only filed shipping bills pertaining to exports made by ADPL - Customs Intelligence Unit conducted the investigation and prima facie found that the mobile phones exported were not manufactured in India and have been manufactured in China and the exporter ADPL was not entitled to drawback under Section 75 of the Act - A SCN was issued demanding drawback along with interest but the Additional Commissioner only confirmed the demand of drawback to the tune of Rs.50,48,749/- as per Rule 16 of Customs, Central Excise & Service Tax Drawback Rules, 1995 - Rejection of this amount is under challenge before Revisionary Authority - This, itself, shows that the exporter ADPL is contesting the denial of drawback which is subjudice - Penalty has only been imposed on CHA under Section 114AA of the Act and no penalty has been imposed on exporter - The ingredients of Section 114AA of the Act is not applicable to CHA and is meant against fraudulent exporter as is made out from 27th Report of Standing Committee on Finance - Department has failed to prove that there was mala fide and wilful mis-representation by Customs Broker - The Commissioner (A) has totally misunderstood the facts and has wrongly observed that the appellant and the exporter have been operating from same premises and have an identical IEC Code which leads one to suspect the bona fides of appellant - The Commissioner on the basis of these facts has wrongly come to the conclusion that the appellant is involved in the illegal export whereas the appellant is only a Customs Broker who has filed the shipping bills on the basis of the documents furnished by the exporter - Therefore, imposition of penalty itself is not sustainable in law and therefore same is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT