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2021-TIOL-2086-HC-MUM-CX
JSW Steel Ltd Vs UoI
CX - SVLDRS, 2019 - Issue that arises for consideration is whether the e-mail dated March 22, 2018, further correspondence of the respondents vide communication dated April 4, 2018, letter dated September 4, 2018 and the e-mail dated October 31, 2018 is an 'intimation' or 'written communication' for quantification to be eligible for the benefit of the Scheme - It is the case of the respondents that these letters/communications are only seeking clarification in respect of the availment of the said CENVAT Credit by the petitioner which the petitioner is misconstruing to be 'quantification' in order to claim the benefit under the Scheme - Factually, according to the respondents, the quantification was finalised by the Audit Raigad Commissionerate only vide letter dated August 29, 2019 - As the declarations filed by the petitioner for settlement of their case under SVLDRS, 2019 were rejected by the respondent Revenue, against the aforementioned backdrop, on the ground that the tax dues were not quantified as on June 30, 2019, the assessee has filed petitions before the High Court.
Held : Upon going through the written communications addressed by the respondents to the petitioner and the Reply thereto, Bench opines that there is nothing reflected from the communications to indicate that duty demand was quantified - Bench finds force in the submission of respondents that the correspondence/mails referred to by the petitioner prior to the cut-off date are meant only to obtain additional required information by the audit officers during the course of the audit and cannot be termed as 'quantification' of the duty - There is nothing on record to indicate that quantification of duty was done prior to June 30, 2019 - Bench finds that the demand of the duty quantified/finalised by the Audit Raigad was only under letter dated August 29, 2019 - In paragraph 8 of the letter dated August 29, 2019, the petitioner is intimated about the inadmissibility of an amount of Rs.4,44,64,068/- and a request is made to pay amount with interest and penalty - Bench, therefore, finds substance in the contention of the respondents that the final quantification in terms of the scheme was done only on August 29, 2019 and not prior to the cut-off date viz. June 30, 2019 - Though a liberal approach has to be adopted to confer the benefit, however, the term ‘quantification' (as defined in s.121(r) of the Finance Act, 2019) has to be given a definite meaning - It cannot be read to mean 'a quantification' as the petitioner wants Bench to infer which at best can be said to be petitioner's ipse dixit on the basis of the invoices submitted for scrutiny - The petitioner has not placed on record any document to demonstrate that the duty liability is admitted prior to the cut-off date - Merely because the calculations made by the petitioner on the basis of the invoices matches with the quantification made by the department on August 29, 2019 will not stand to benefit the petitioner as what is contemplated is a quantification by the department in view of Section 121 (r) of the Finance Act, 2019 - Petitions dismissed: High Court [para 18, 20, 22, 25]
- Petitions dismissed: BOMBAY HIGH COURT
2021-TIOL-2084-HC-KAR-ST
Kountheya Hotels Pvt Ltd Vs UoI
ST - SVLDRS, 2019 - As per Section 123(c) of the Finance Act, 2019, tax dues would be the amount of duty payable under any of the indirect tax enactment which has been quantified on or before 30.06.2019 - Since the Audit report is dated 04.06.2019 and not 04.12.2019 (as wrongly indicated in the information furnished by petitioner), in view of Section 125(1)(e), the petitioner's case prima facie falls within the requirement of quantification before 30.06.2019 - Order of the Designated Committee dated 05.05.2020 rejecting the application of the petitioner in Form SVLDRS-1 is set aside – Respondent to consider the application afresh – Petition is disposed of: High Court [para 7, 8]
- Petition disposed of: KARNATAKA HIGH COURT
2021-TIOL-2083-HC-MAD-CX
Titan Company Ltd Vs CCE
CX - Show Cause Notices (SCN) have been issued to 457 Titan Eye+ Stores as well as the showrooms of Premier Optical Pvt. Ltd. that sells spectacles under the brand name 'Lawrence and Mayo' - Issue is whether the petitioners are liable to remit excise duty on the activity of fixing of prescription lenses in spectacle frames.
Held : Bench [in the case of Mehta Opticians, Bholanath Sreemany (1978 42 STC 248) ] was of the view that a manufacturer of spectacle, by assembling the lenses and the frames, does not create anything new so as to bring such activity within the purview of manufacture - No doubt, the minute break-down of the machinery and the processes as described in the SCN indicate a chain of events requiring skill and sophistication, that appear very significant in magnitude and impact, however, the end result of all the processes only results in assembly of the lens with the frame - This does not amount to manufacture - The process of assembly is bound to involve some amount of refining and fine-tuning of the individual components and this, by itself, will not tantamount to manufacture - In fact, most establishments engaged in selling eye-wear provide a gamut of services in this area including, having an optician in their employ or on call, and infrastructure for the testing of vision - Thus, notwithstanding that a distinct commercial product is obtained upon assembly of a lens with a spectacle frame, this would not result in such assembly being equated to manufacture - Judgments in the cases of Mehta Opticians, Bholanath Sreemany and Amazon [ 2016-TIOL-06-ARA-CX ] decide and reiterate the issue of whether the activity of assembly simpliciter including fitting and minor adjustments that are part and parcel of the process of assembly, constitute 'manufacture' for the purposes of the Act, in favour of the assessee - The show cause notices insofar as they purport to equate the process of assembly to manufacture, are quashed - Writ Petitions are allowed [para 11, 23, 24]
- Petitions allowed: MADRAS HIGH COURT
2021-TIOL-674-CESTAT-MAD
Endeka Ceramics India Pvt Ltd Vs CC
Cus - Issue pertains to the benefit of exemption of CVD/Additional Duty of Customs in terms of Notfn 12/2012-C.Ex. - In the Notfn, benefit is extended only to 'ores' and not 'concentrates' - The question is whether the imported goods would have the character of 'concentrates' so as to deny the benefit of exemption of Notfn 12/2012-C.Ex. - For previous import, Department had sent samples for analysis and expert opinion to ascertain whether the imported goods are Zirconium ore or Zirconium concentrate - The percentage of Zirconium Oxide contained in the goods would help to ascertain the nature of the goods - However, in present case, Department has failed to draw samples and send for analysis - In the absence of such opinion by an expert, it is not possible to ascertain the nature of goods as to whether they are ores or concentrates - Even in the Tariff, 'ores' and 'concentrates' fall under the same Chapter Heading - Similarly, the Customs Notfn 12/2012-Cus. grants exemption from Basic Customs Duty of all goods under Chapter 26 i.e., to both ores and concentrates, in terms of Sl. No. 117 - The Department cannot decide that the nature of goods to be 'concentrate' merely by stating that certain processes were undertaken by appellant - In the absence of any evidence to show that the subject goods have undergone some special treatment process and also in the absence of any analysis report, there is no other option but to rely on chemical analysis report of overseas supplier filed by appellant along with the Bills-of-Entry - In these certificates of analysis, the content of Zirconium Oxide is shown to be around 65% only - On the basis of analysis report of the overseas supplier as well as the clarification issued by Board vide Circular 332/1/2012-TRU that when ores are only subjected to processes like crushing, sizing, screening and washing, the resultant product cannot be considered as 'concentrate', it is held that the imported goods are 'ore' and not 'concentrate' - Thus, the imported goods are Zirconium ore and not concentrates - The demand of Duty (CVD) by denying the benefit of exemption Notfn 12/2012-C.Ex. is not legal and proper, same is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT 2021-TIOL-673-CESTAT-KOL
Jai Balaji Industries Ltd Vs CCGST & Excise
ST - The appellant is engaged in manufacture of sponge iron and allied products and availing the benefit of Cenvat Credit as per provisions of Cenvat Credit Rules, 2004 - SCN was issued to deny the credit availed by appellant on the strength of invoices issued by its Head Office as 'ISD' on the ground that the said input service credit was availed on the basis of photocopy of certificate issued by Banks in favour of Head Office (ISD) - It was also alleged in SCN that the processing and upfront fee are generally charged by Banks during processing of loan application and the said service is in no way used directly or indirectly in or in relation to manufacture of final products of appellant - The order passed by authorities below have travelled beyond the allegations made in SCN - When no dispute was made by adjudicating authority with regard to the photocopies of documents, the objection raised by Commissioner (Appeals) is not justified when, in-principle, he has agreed with the service eligibility under Rule 2(l) of Cenvat Credit Rules, 2004 and the fact that receipt of Banking service is not in dispute - Hence, no reason found to deny the credit and hence, appeal is liable to succeed - With regard to limitation, SCN has been issued in June 2014 by invoking extended period of limitation - Apart from the general aversion, there is no evidence to show that credit has been wrongly availed by way of fraud or suppression when the credit amount availed by appellant has been duly disclosed in periodical returns filed with the Department - Hence, the impugned demand is also barred by limitation and not sustainable on that count also: CESTAT
- Appeal allowed: KOLKATA CESTAT
2021-TIOL-672-CESTAT-HYD
Aradhana Foods And Juices Pvt Ltd Vs CC, CE & ST
CX - The issue involved is regarding classification of 'Nimbooz' - According to appellant, it merits classification under Tariff Item 2202 10 20 of First Schedule to Central Excise Tariff, but according to Department it deserves classification under Tariff Item 2202 90 20 ibid under the category of 'fruit pulp or fruit juice based drinks' - A Larger Bench of Tribunal in M/s. Brindavan Beverages Private Limited examined this issue and answered the reference - In view of the said order of Larger Bench of Tribunal, 'Nimbooz' would be classifiable under Tariff Item 2202 10 20 of First Schedule to Central Excise Tariff - The issue as to whether the Department was justified in invoking the extended period of limitation does not arise - The impugned order confirming the demand of differential duty for normal period of limitation with interest and penalty, therefore, cannot be sustained and is set aside : CESTAT
- Revenue's appeal dismissed: HYDERABAD CESTAT |
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