2021-TIOL-561-CESTAT-DEL

Kuldeep Thapar Vs CC

Cus - The appellant is a co-noticee in a case of alleged export of wooden cases containing rusted, old, used and damaged Ball Bearing, Roller bearings and taper Bearings by M/s Bhagwati International, a 100% EOU - The appellant was accused of conniving in disposal of imported Ball bearings through a shop situated in Kashmiri Gate and a penalty was imposed on them - The appellant has also submitted that the proceedings against the main accused in case of M/s Bhagwati International were set aside as far as the confiscation of goods alleged to have been sold through different shops located in New Delhi - The seizure having been vacated, imposition of penalty would not survive as held by Tribunal in Munilal Mehra 2008-TIOL-2312-CESTAT-MUM - In view of same, impugned order is set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2021-TIOL-560-CESTAT-MAD

K Balakrishnan Vs CGST & CE

ST - The appellants were issued SCN demanding service tax under category of 'Manpower Supply Service' provided to M/s. Tractors and Farm Equipments Ltd. (TAFE) as per the agreement entered into by them with TAFE - After due process of law, demand confirmed along with interest and imposition of penalty - For the period prior to 2012, the issue stands covered in favour of appellant wherein the Tribunal has held that as per definition of Manpower Supply Services, the demand cannot sustain for the job works/contract works done by appellant for TAFE - Following the same, demand prior to 2012 cannot sustain and same is set aside - The appellant is not contesting the liability after 2012 - The matter with regard to the period after 2012 is remanded to adjudicating authority who shall determine afresh the duty demand for the period after 1.7.2012 and examine whether service tax on these services has been discharged - The cum-tax benefit contention shall also be looked into - With regard to the penalty imposed after the period 2012, being an interpretational issue, appellant cannot be saddled with guilt of intention to evade tax - Further, there is no allegation or finding of any positive act on the part of appellant of willful suppression to evade service tax - Imposition of penalty is unwarranted, same is set aside: CESTAT

- Appeals partly allowed: CHENNAI CESTAT

2021-TIOL-559-CESTAT-KOL

Bengal Beverages Pvt Ltd Vs CCGST & Excise

CX - Appellant is engaged in manufacture of aerated water and fruit-based beverages - The Adjudicating Authority has confirmed the demand of excise duty only on the ground that there are differences in quantity of clearance of goods as per ER-1 return and form 3CD as filed by appellant, even after accepting that differences are on account of trading of goods which does not form part of clearance as per ER-1 return of appellant in O-I-O - It is the case of Revenue that appellant has manufactured and cleared the goods to the extent of excess reported in form 3CD of Tax Audit Report as filed with Income tax authorities - However it is seen that such allegation is only on the basis of figure work of department without production of any other evidence for alleged clandestine removal of manufactured goods - The appellant has produced their tax auditors certificate certifying the reconciliation which was also produced by appellant before adjudicating authority and the said reconciliation clearly establishes the reconciliation between figures of clearance as per 3CD and ER-1 - The Patna High Court in the case of UNIVERSAL POLYTHELENE INDUSTRIES , have held that in case of difference in figures between balance sheet and returns, it is not a rule that balance sheet figures are to be taken as correct - Said judgment was also confirmed by Supreme Court - The appellant has been able to produce the relevant reconciliations to show the reasons of differences in clearance figures as per ER-1 and as per form 3CD which was on account of trading turnover of appellants - Alternatively, it is also on record that the adjudicating authority has not given any cognizance to the submission of appellants as regards allegation of clandestine removal and the burden to prove the same - No investigation has been conducted by department to prove the allegation of clandestine removal in the case and thus the demand of excise duty merely based on differences in figures of consumption cannot be sustained - Demand of excise duty only on assumption and presumptions in quantity of clearance of finished goods figures of tax audit form 3CD and ER-1 cannot be sustained on merits and is accordingly set aside - Since demand of excise duty is set aside, penalty and interest are also not sustainable: CESTAT

- Appeal allowed: KOLKATA CESTAT