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2021-TIOL-779-CESTAT-KOL
Texmaco Rail And Engineering Ltd Vs CCGST & Excise
CX - The assessee is engaged in manufacture of excisable goods which are dutiable as well as exempted from payment of central excise duty during period in dispute - Assessee has also availed the benefit of CENVAT credit in terms of provisions of Cenvat Credit Rules, 2004 - The dispute pertains to availment of credit without maintenance of separate records for manufacture of dutiable as well as exempted goods - It is the case of Department that since the assessee has not opted for claiming credit on proportionate basis by filing the required declaration and that due to non-observance of procedure as prescribed in Rule 6 of Credit Rules, assessee is statutorily liable to pay/reverse credit of amount calculated @ 5% or 10% of value of exempted goods as per the extant provisions in Credit Rules during the relevant period: CESTAT
- Assessee's appeal allowed/Revenue's appeal rejected: KOLKATA CESTAT
2021-TIOL-778-CESTAT-MUM
Kellogg India Pvt Ltd Vs CCE & ST
CX - ROM - The application is not in the form of a rectification application but filed like an appeal memo supposed to be filed before appellate authority against order of Tribunal as there is allegations against the Bench like it "failed to give any finding", "failed to consider", etc. - W hile rejecting the application for rectification of mistake which is filed on frivolous ground there is a requirement of putting a restraint on such unethical practice of casting aspersions on findings of Tribunal without basis in terms of judgment of Tribunal in case of Melcon which is filed by revenue at Annexure-H of his additional submission and in imposing a cost on Commissioner Manpreet Arora for filing such frivolous application stating that the Commissioner (Appeals) had dismissed the appeal at the admission stage on limitation and maintainability and not on merits despite the fact that the merit of the case was heard during personal hearing and a finding to that effect was also given which was noted by Tribunal in its order - The rectification application is, therefore, dismissed with a cost of Rs. 10,000/- to be paid by applicant to the Government Treasury within a month: CESTAT
- ROM Application dismissed: MUMBAI CESTAT
2021-TIOL-777-CESTAT-MUM
Indian Oil Corporation Ltd Vs CCGST & CE
ST - The issue relates to admissibility of refund/rebate claim of Swachh Bharat Cess (SBC) and Krishi Kalyan Cess (KKC) paid on services used for supply of Aviation Turbine Fuel (ATF) to various foreign going vessel under Notification No. 41/2012-S.T. - The Tribunal is not empowered to entertain the appeal filed against grant of refund/rebate of cess amount - Therefore, the appeals filed by appellant are dismissed as not maintainable - However, liberty is granted to the appellant for filing of revision application before the competent authority vested with the power to decide the issue under statute: CESTAT
- Appeals dismissed: MUMBAI CESTAT
2021-TIOL-776-CESTAT-AHM
Wagad Infraprojects Pvt Ltd Vs CCE & ST
ST - The appellant is engaged in manufacture of Ready Mix Concrete (RMC) - While supplying their RMC, they are also undertaking the activity of laying of RMC using of concrete pumping at the site of buyer of RMC - On removal of RMC from the factory, appellant is paying Central Excise duty since March 2011 at the rate 1.03% and since 17 March 2012 at the rate of 2.06% - The case of department is that it is a composite contract for supply and laying of RMC which falls under works contract and liable to service tax - Accordingly, a SCN was issued to appellant - Appellant being manufacturer of RMC, paying excise duty not only on the value of goods but also on the value of service of pumping, laying of concrete and the same is included in sale value - Therefore, no value is escaped from payment of excise duty - Accordingly, the entire activity right from the manufacturing of RMC and delivery at the site of the customer is excisable activity - Merely because the contract says that it is works contract, actual nature of transaction cannot be over looked - Appellant is treating the transaction of Works Contract in terms of VAT Act only - However, there is a specific definition of Works Contract in Finance Act, 1994 - From the definition, it is clear that manufacturing activity of RMC cannot be covered under Works Contract by any stretch of imagination - The department has very much accepted the activity of appellant as manufacturing and collected the excise duty on the entire value of RMC which includes the pumping and laying of RMC at site - Therefore, department cannot take two stands, in one hand manufacturer for demanding excise duty and on the same activity, on the other hand demanding service tax under Works Contract - The activity of appellant is pre-dominantly of manufacture and sale of goods - Accordingly, same cannot be charged with service tax under Works Contract service - Appellant have made alternate submissions about quantification of demand inasmuch as impugned order confirmed the demand on 60% of value of contract whereas, as per rule 2A(i), the value of goods should be adopted and only service portion should be charged for service tax - There is clear identification of value of goods and charges for pumping and laying of RMC which is ranging from Rs. 200 to Rs. 300 - In this position, department should have taken the service portion for calculating service tax - Accordingly, the service tax was wrongly calculated to the above extent - The appellant also made submissions on time-bar - Appellant admittedly paid excise duty on entire transaction and same was charged and collected by Revenue - Therefore, the entire activity of manufacture, supply and manner of delivery of goods is very much on record - Accordingly, no suppression or mis-declaration can be attributed to appellant for invoking extended period of demand - Accordingly, demand for longer period in SCN is not sustainable on the ground of limitation - Impugned order is set-aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2021-TIOL-775-CESTAT-MAD
Jaison James Vs CC
Cus - A SCN was issued to appellants inter alia proposing confiscation of gold which was smuggled into India, apart from proposing to impose personal penalty on both appellants under 'Section 112' of Customs Act, 1962 -
The appellants have pleaded innocence and contended that they were not aware of contents of parcel but have never denied having known the person who sent those parcels, i.e., one Salman - Penalty under 'Section 112' of Customs Act, 1962 is attracted for improper importation of goods that ultimately makes the goods liable for confiscation under Section 111 ibid - It emerges that any person who does or omits to do any act which would render goods liable for confiscation or abets the doing or omission of such an act is held liable under 'Section 112' ibid and consequential penalty as well - The Revenue, having alleged one Salman as mastermind, has not bothered to place anything on record, which has left innumerable doubts and questions unanswered - Penalty, therefore, cannot be imposed on surmises, assumptions and presumptions and there is not even any circumstantial evidence brought on record against these appellants to justify penalty under 'Section 112' - The one and only allegation against these appellants is that they knew one Salman, the alleged mastermind - They have not even bothered to make proper investigation and not even of courier agency who is responsible for couriering the parcel without proper verification, at its end - The penalty levied under 'Section 112' of Customs Act, 1962 is arbitrary and unjustifiable and accordingly, the impugned order is set aside: CESTAT
- Appeals allowed: CHENNAI CESTAT |
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