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2021-TIOL-800-CESTAT-AHM
Voltamp Transformers Ltd Vs CCE & ST
CX - Assessee is in appeal against demand of Central Excise duty, interest and imposition of penalty - The appellants are engaged in manufacture of transformers and sending their inputs namely copper strips and rods on which they had availed Cenvat Credit of duty paid for further process on job work basis to various job workers - The job workers carried out the process of drawing and paper insulation/covering - Thereafter, the goods were returned to appellant on a "weight to weight basis" - It was alleged that during the process of job work involving drawing there may be some loss of weight but there will be gain of weight in the product to be returned due to weight of paper insulation/ covering - The SCN alleged that on an average approximately 2 % of copper was scraped during various processes such as drawing, paper insulation/covering - Consequently, demand of Central Excise Duty was raised on estimate quantity of copper which was not returned/ explained by appellant - Three SCNs were issued demanding duty, interest and seeking to impose penalty on the appellant - Identical issue has been decided earlier by the Tribunal in appellant's own case - Relying on said decision, impugned order cannot be sustained, same is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2021-TIOL-799-CESTAT-CHD
Modern Papers Vs Commissioner of CGST
CX - The assessee is located in the State of Jammu & Kashmir and availing the benefit of exemption Notfn 01/10-CE - They procured certain inputs and availed credit of duty paid on these inputs - The case of Revenue is that during the relevant period, an assessee is not entitled to avail credit against the inputs issued by units, who are availing exemption under Notfn 01/10-CE and after introduction of Notfn 02/14-CE (N.T.) , the notfn 01/10-CE was amended thereafter the credit was available to assessee - Without going into the merits of case, similarly placed assessee was allowed the credit although against those orders, the appeals have been filed by Revenue before Commissioner (A), in that circumstance, when Revenue is having divergent views on the issue, extended period of limitation is not applicable - Admittedly, SCN has been issued by invoking extended period of limitation, therefore, denial of credit is barred by limitation - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
2021-TIOL-798-CESTAT-KOL
Harisons Industries Vs CST
ST - Assessee is in appeal against impugned order whereby the demand of service tax along with interest has been confirmed and penalties have been imposed against appellant in relation to period from 2007-08 to 2011-12 under various provisions of FA, 1994 - The SCN only raised a classification dispute alleging that appellant's activities relating to Horizontal Directional Drilling (HDD) works were appropriately classifiable under 'Site Preparation & Clearance Service' and not 'Works Contract Service' - The facts of the instant case are similar to the case in Harsh Constructions Pvt. Ltd. 2019-TIOL-3549-CESTAT-MUM and Tribunal is inclined to follow the said decision - On the perusal of CA certificate and affidavit submitted by appellant, it is observed that the appellant has not availed CENVAT credit on inputs during relevant period in relation to Work Contract Services - Thus, demand pertaining to Site Preparation & Clearance Service cannot be sustained and is set aside - On the second issue relating to pipeline construction charges, on which appropriate tax was duly computed, same had been reflected in relevant service tax returns for FY 2007-08 under the category of 'Site Preparation & Clearance Services' - There cannot arise any question of further including the said amount and paying service tax under category of 'Commercial & Industrial Construction Service' - Demand in relation to pipeline construction charges cannot be sustained - On the third issue relating to demand towards 'Supply of Tangible Goods Service', department has adduced no evidence to show how the subject service falls under head 'Supply of Tangible Goods Service' within the meaning of Section 65 (105) (zzzzj) of Finance Act - The said demand is based on presumptions and assumptions and is unsustainable in law - On the issue of limitation, issues relate to pure questions of law and classification - The Commissioner has also held in favour of appellant on the said classification issue and also on another issue relating to CENVAT credit - Allegation of suppression of facts with intention to evade payment of tax cannot be upheld and as such extended period of limitation cannot be invoked - The penalties imposed are also set aside - Appellant is entitled to consequential refund of duties and interest deposited during the course of instant proceeding: CESTAT
- Appeal allowed: KOLKATA CESTAT
2021-TIOL-797-CESTAT-DEL
Schweitzer Engineering Laboratories Pvt Ltd Vs CC
Cus - The issue that arises for consideration is, whether the Additional Director General, DRI had jurisdiction to issue notice - This precise issue was examined by Supreme Court in Canon India 2021-TIOL-123-SC-CUS-LB wherein it is observed that the nature of power to recover 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 first instance, assessed and cleared the goods - Thus, the DRI did not have jurisdiction to issue SCN - The aforesaid decision of Supreme Court in Canon India was subsequently followed by Supreme Court in Agarwal Metals and Alloys 2021-TIOL-233-SC-CUS-LB - Various Benches of Tribunal have also set aside the orders for the reason that the SCNs were not issued by proper officer, since they were issued by DRI - The SCN issued by 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, therefore, without jurisdiction - The order therefore, cannot be sustained - In Bakeman's Home Products , Tribunal held that the proposal for confiscation and penalty cannot be segregated from duty demand and therefore, the proceedings for confiscation and imposition of penalty cannot be sustained: CESTAT
- Appeals allowed: DELHI CESTAT |
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