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2021-TIOL-750-CESTAT-DEL
IDP Education India Pvt Ltd Vs Additional Director General Of Central Excise Intelligence
ST - Assessee is in appeal against impugned order demanding service tax for the period 1.4.2014 to 30.9.2015 - The SCN which led to the issue of impugned order was dated 16.11.2015 covering the extended period of 1.7.2012 to 13.9.2015 - In impugned order, demand for extended period has been dropped and therefore, same is not in dispute - Appellant has an agreement only with IDP Australia - They recruits or facilitates students in India, but does not get any remuneration from Australian universities - For the students who are recruited or admitted by university in Foreign Country, recommended by appellant in India, IDP Australia gets paid by Australian/Foreign universities - A share of that commission is given to the appellant by IDP Australia - This scheme of arrangement clearly shows that the IDP Australia is providing services to foreign universities and is receiving consideration for the same - Insofar as recruitment of students in India is concerned, IDP Australia has created the appellant as a fully owned subsidiary, and has sub- contracted this work to the appellant - There is nothing on record to show that the appellant is liasioning or acting as intermediary between the foreign universities and IDP Australia - All that is evident from records is that the appellant is providing the services which have been sub-contracted to it by M/s IDP Australia - Revenue has not established that the appellant is acting as an intermediary between M/s IDP Australia and the foreign universities, as alleged or held in the impugned order and the SCN - On the exact same services, a SCN was issued earlier covering the period 1.4.2012 to 31.3.2013 - All that has changed is that DGCEI has picked up an issue which has already been settled and took a different view and issued the subsequent SCN and confirmed the demand - If DGCEI was aggrieved by earlier order which was passed, the right course could have been for it to appeal to a higher judicial forum - A SCN issued on the same issue which has already been settled, simply because DGCEI holds a different view, is not sustainable - On this ground also, impugned order is set aside: CESTAT
2021-TIOL-749-CESTAT-CHD
Insecticides India Ltd Vs CCGST
CX - This is second round of litigation - In earlier round of litigation, Tribunal has passed orders sanctioning the refund claim of appellants - Instead of implementing the orders of Tribunal, authorities below passed the impugned orders rejecting the refund claim of appellant - Earlier orders of Tribunal have been accepted by Revenue and no appeal has been filed against those orders - In absence of any challenge to the orders of Tribunal, adjudicating authority was duty bound to implement the orders of Tribunal which they failed to do so - Further, in earlier round of litigation, orders of Tribunal were final - The Commissioner (A) has exercised the power without any authority of law, the act of Commissioner (A) is bad in law - The adjudicating authority is directed to implement the orders passed by Tribunal in earlier round of litigation: CESTAT
2021-TIOL-748-CESTAT-MUM
Appex International Vs CC
Cus - The issue that arises for consideration is, whether the Additional Director General, DRI had jurisdiction to issue SCN - This precise issue was examined by Supreme Court in Canon India Pvt. Ltd. 2021-TIOL-123-SC-CUS-LB wherein it is observed that the nature of power to recover the duty, not paid or short paid after the goods have been assessed and cleared for import is a power that has been conferred to review the earlier decision for assessment - This power which has been conferred under section 28 of Customs Act on the proper officer, must necessarily mean the proper officer who, in the first instance, assessed and cleared the goods - Thus, the SCN issued by Additional Director General, DRI is, therefore, without jurisdiction as the said officer was not the proper officer and therefore all proceedings undertaken by Department on this SCN is without jurisdiction - The order passed by Commissioner (Adjudication) cannot be sustained - The Department, however submitted that the notice was also issued under section 124 of Customs Act for confiscation of goods under section 111 and imposition of penalty under section 112 of Customs Act - Appellant, however placed reliance upon a decision of Tribunal in Bakeman's Home Products Pvt. Ltd. and contended that the proposal for confiscation of goods and imposition of penalty cannot be segregated from the duty demand and, therefore, if the duty demand fails as the SCN was not issued by proper officer, the proceedings for confiscation and penalty cannot survive - Thus, the impugned order cannot be sustained and is set aside: CESTAT |
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