2021-TIOL-1862-HC-MAD-CX
Indian Japan Lighting Pvt Ltd Vs JCCE
CX - CENVAT - Rule 2(l) of CCR - Input Service - Service tax paid on the freight incurred for transportation of their final products from factory to customers premises was denied on the ground that the same did not come within the scope of ‘Input service' - Appeal filed to High Court - Appellant vide their letter dated 06.07.2020 has informed that they have opted for SVLDRS scheme and have paid the dues, therefore, withdrawal of the CMA may be allowed.
Held: Appellant is permitted to withdraw this Appeal, as they have availed the benefit of the Settlement Scheme - Accordingly, the Appeal stands dismissed as withdrawn and the substantial questions of law are left open: High Court [para 5]
- Appeal dismissed: MADRAS HIGH COURT
2021-TIOL-595-CESTAT-MAD
Sanmar Matrix Metals Ltd Vs CGST & CE
CX - The refund was claimed consequent to Final Order of CESTAT and hence, the claim is not a normal refund claim - The legislature in its wisdom has inserted sub-clause (ec) under Explanation (B) to Section 11B of Central Excise Act, 1944 w.e.f. 11.05.2007 with a purpose, thereby carving out an exception from a normal refund claim - This is in the nature of a special provision and hence, any claims made as a consequence of Appellate Order/(s) will have to pass through the rigours of sub-clause (ec) ibid - It is the settled position of law that a provision cannot be interpreted so as to reduce it to a nullity or rather make it otiose - The application for refund here is filed on 14.08.2020, which is clearly after the prescribed period of one year from the relevant date as prescribed under sub-clause (ec) of Explanation (B) to Section 11B of Central Excise Act, 1944 and hence, appellant does not pass through the rigours of specific provision under sub-clause (ec) - Hence, no justifiable reason found to interfere with findings of lower authorities: CESTAT
- Appeal rejected: CHENNAI CESTAT
2021-TIOL-594-CESTAT-AHM
Rajendra Industries Vs CCE & ST
CX - Appeal is directed against impugned order whereby demand on Cenvat credit availed on imported Box Strapping Machines was denied and also excise duty, invoking Section 11D of Central Excise Act, 1944 was confirmed and consequential interest and penalty was also demanded - Right upto the Commissioner (Appeals)' order, entire case was decided against assessee on the premise that they are not entitled for Cenvat credit on imported Box Strapping Machine as the same is falling under Chapter 39 - It is factually incorrect basis as the correct chapter heading of imported Box Strapping Machine is under Tariff Item 8422 90 90 - Since this is correct Chapter heading, imported Box Strapping Machine clearly fall under the definition of capital goods which covers the goods under chapter 84 as capital goods - Lower authorities contended that the capital goods should be used in manufacture of final product - There is no such condition in definition of capital goods - The goods whether used for the manufacture of final product or lying in the factory of the assessee, Cenvat credit on capital goods is admissible - Therefore, assessee is entitled for Cenvat credit - Moreover, assessee have cleared imported Box Strapping Machine as such on payment of excise duty which is equivalent to Cenvat credit availed thereon - For this reason also, no demand can be raised as assessee is eligible for Cenvat on capital goods cleared as such, in terms of Rule 5(3) of Cenvat Credit Rules, 2004 - Accordingly, there is no fault on the part of assessee either for availing Cenvat credit or for removal of same on payment of duty - The disallowance of Cenvat credit as well as demand under Section 11D ibid are set-aside, consequently interest and penalty are also set-aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2021-TIOL-593-CESTAT-BANG
24/7 Customer Pvt Ltd Vs CCT
ST - Issue relates to the rejection of refund claims of appellant on certain input services - The appellant has given detailed justification in their ground of appeals for each of the impugned services and the impugned services have been used by appellant for rendering output services - Reasoning given by Commissioner (Appeals) in impugned orders is not correct in law and the correct position in law is that to test for eligibility is whether input services are used by provider of taxable service for providing output service and the input services should not be covered by exclusion clause - All the services on which refund has been rejected consistently held to be input services in various decisions - Moreover, Department has not questioned input service at the time when the CENVAT credit was taken and in the decision of Tribunal in case of K Line Ship Management Pvt. Ltd. 2017-TIOL-2406- CESTAT-MUM it has been held that the department is not permitted to question the eligibility of CENVAT credit at the time of claiming refund - In view of clarification given by tax research unit of CBEC, amended Rule 5 of CENVAT Credit Rules, does not require correlation between output service exported and the input service used in such output service exported - This has also been held in various decisions - Therefore, appellant is entitled to refund of CENVAT credit along with interest in view of Apex court decision in case of Ranbaxy Laboratories Ltd. 2011-TIOL-105-SC-CX along with many other decisions rendered by Tribunal, except to the extent of amounts shown wherein appellant has not pressed for claim of refund on account of small amount involved - Therefore, except that amount, appellant is entitled to refund claimed by him - The original authority will requantify the amount of refund after deducting the amount not pressed for: CESTAT
- Appeals partly allowed: BANGALORE CESTAT
2021-TIOL-592-CESTAT-MAD
Anantara Solutions Pvt Ltd Vs CGST & CE
ST - Refund - The appellant submitted that no SCN was issued proposing to reject the refund and hence, they were deprived of any opportunity to offer its rebuttal; nor were they able to file any documentary evidences in support - The Commissioner (Appeals) having remanded the matter for fresh adjudication after expressing his satisfaction as to the non-following of principles of audi alteram partem by Adjudicating Authority, should not have expressed any findings on the issues - Matter remanded to the file of Adjudicating Authority, who shall pass a de novo order after affording reasonable opportunities to the appellant: CESTAT
- Matter remanded: CHENNAI CESTAT
2021-TIOL-591-CESTAT-MAD
Master Cargo Services Vs CC
Cus - The only issue to be decided is the levy of penalty under Section 114 of Customs Act, 1962 on the appellants - The SCN contains modus operandi as to how the appellants were involved and nowhere is it seen that the appellants have offered any rebuttal nor have they negatived such allegations - Further, it is well known that it is the CHA or its staff, who alone can enter into examination area, where the alleged overwriting on packages had occurred, which also has not been rebutted by CHA - The SCN also contains that the ultimate beneficiary would be the exporter and the correction/overwriting of bundle numbers could not have been done by CHA staff without any benefit/instruction, which throws sufficient suspicion as to the collusion of CHA with the exporter - There is also no denial by appellants that out of 31 bundles, only 5 bundles contained finished leather whereas the remaining 26 bundles contained semi-finished leather, which fact was also confirmed by CLRI upon testing - It is appellant's admission that their staff had overwritten the package numbers, who was thereafter terminated by them, which also points to a reasonable suspicion; otherwise there was no need for admitting about their staff involving in overwriting of the package numbers - Penalty under Section 114 of Customs Act is levied for attempt to export goods improperly by any person who, in relation to any goods, does or omits to do any act or abets the doing or omission of such an act - The appellants being CHA, had involved itself in trying to abet improper exportation of 26 bundles of semi-finished leather, with misleading declaration, which would have caused huge Revenue loss, which had rendered itself for confiscation - Hence, it is a case where the provision of Section 114(ii) ibid. is clearly attracted - The penalty has rightly been levied: CESTAT
- Appeals dismissed: CHENNAI CESTAT |
