2021-TIOL-1899-HC-MUM-CX
CCE Vs Usha Fashions Pvt Ltd
CX - Revenue is in appeal against the order of CESTAT inter alia setting aside the demand of central excise duties of Rs.4,16,73,971/- and Rs.2,17,005/- allegedly evaded on account of clandestine removal of processed fabrics - Revenue is also aggrieved with the setting aside of penalties as well as reduction of penalty on the confirmed demand amount.
Held: The entire basis for making this demand on respondent no.1 and for imposing penalty on respondent no.3 is the statement of Thakkar - Before the adjudicating authority, counsel for respondent nos. 1 and 2 had sought leave to cross examine Thakkar which was denied by the Commissioner on the ground that the same amounts to delaying tactics - The majority view has concluded that as the entire case of the Revenue is based upon the statement of Thakkar, refusal of his cross examination was detrimental to the case of respondent nos. 1 and 2 and, therefore, Thakkar's statement cannot be taken into consideration - Bench also notes that if the statement of Thakkar is taken out of records, there is no other evidence - The statement of Thakkar being in the nature of statement of co-accused cannot be made a sole basis for confirming the charge of clandestine removal against respondent no.2 and its director in the absence of any other corroborative evidence - Though statements of the other directors have been recorded, all those persons have retracted their statements - Apex Court in Andaman Timber Industries = 2015-TIOL-255-SC-CX held that not allowing a party to cross examine witnesses of the Adjudicating Authority whose statement was the basis of the show cause notice to demand duty is a serious flaw inasmuch as it amounted to violation of principles of natural justice - Bench notes that the Commissioner refused permission to cross examine Thakkar notwithstanding the request made by respondent nos.1 and 2 - In the view of the Bench, permission to cross examine Thakker should have been granted mainly in view of the fact that appellant was relying on the statement of Thakkar and documents which were seized from Thakkar - Bench agrees with the majority view that rejection of the request for cross examination of Thakkar would mean that Thakkar's statement cannot be relied upon - All the questions of law framed are answered in the affirmative - Appeal dismissed: High Court [para 11, 13, 15, 17]
- Appeal dismissed: BOMBAY HIGH COURT
2021-TIOL-1898-HC-MUM-CX
CCE Vs Sushil Raika
CX - Revenue is in appeal against order of CESTAT setting aside the penalty of Rs.65 lakhs imposed on Director under the provisions of rule 26 of CER r/w 209A of the Rules.
Held: In view of conclusions arrived at in the connected Appeal the answer to the question of law also is answered in affirmative - Revenue appeal dismissed: High Court [para 2, 3]
- Appeal dismissed: BOMBAY HIGH COURT
2021-TIOL-611-CESTAT-DEL
Flexi Caps And Polymers Pvt Ltd Vs CCGST & CE
CX - Entire customs duty with respect to inputs imported by assessee stands fully deposited by them not only alongwith interest but also with the penalty as was directed to be paid while seeking redemption - These admitted facts are sufficient to hold that the assessee became entitled to avail Cenvat Credit of CVD/SAD paid by him on the imported inputs in terms of Rule 3 of CCR, 2004 - Apparently, the said Cenvat Credit could not be availed any more due to the erstwhile law i.e. CEA, 1944 being taken over by New GST Act, 2017 - Perusal thereof shows that the Act contains a provision to take care of such unutilized credits of assessee to be refunded to them in cash - The relevant provision is Section 142 of GST Act - Denying the said entitlement, that too, on the ground that the letter of DGFT cannot be considered as the assessment order is not appropriate because the fact still remains is that the requisite duty stands paid in full by assessee which entitles them to have credit thereof though in the form of cash in terms of provisions of new Act - Hence, the view formed by Commissioner (A) while rejecting the refund is not appropriate - Rather it is beyond the intention of Legislature - Further, appeal before Commissioner (A) was filed by Department not under the erstwhile law but under the GST Act, 2017 - The appeal before Commissioner (A) was not maintainable under GST Act for a refund application which was filed under the erstwhile law - The appeal as such was not maintainable - The order under challenge cannot sustain for the said reason as well - Seen either from the point of view of preliminary objection as has come in rebuttal from the appellant and keeping in view the entire observation as far as the merits of case are concerned, it is held that the order under challenge has wrongly rejected the refund despite an unambiguous provision not only giving entitlement of refund to assessee but also recognizing for the refund eligible under erstwhile law to have been given in cash under new law - Order accordingly, is set aside: CESTAT
- Appeal allowed: DELHI CESTAT |
