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2021-TIOL-804-CESTAT-MUM
Tarz Distribution India Pvt Ltd Vs CCGST
CX - Assessee is in appeal against impugned order whereby, Commissioner confirmed the redemption fine in lieu of confiscation of seized goods under Section 34 of Central Excise Act, 1944, while dropping demand on already cleared imported goods made during the period 01/01/2009 to 09/07/2009 - Not only the appellant's staff during investigation but appellant through its synopsis admitted that in few cases where there was upward revision in MRP, appellant on their own paid the differential CVD - This admission is sufficient to establish that there was manufacturing activity undertaken by appellant like upward revision of MRP and its affixture on repacked goods - It is a settled rule that CVD is paid to counter balance the central excise component, so as to protect the indigenous manufacturer and it is refunded after the imported goods are sold in local market upon payment of VAT/GST - Therefore, it is mainly a level playing event and not a tax collection activity - Appellant being not a registered concern is liable for penal action only on this count - In view of admission of appellant itself which needs no further proof in view of Section 56 of Indian Evidence Act, that in some cases the MRP has been charged with upward revision - Interference in impugned order imposing redemption fine would not be in conformity to the law: CESTAT
- Appeal dismissed: MUMBAI CESTAT
2021-TIOL-803-CESTAT-DEL
Seville Products Ltd Vs CC
Cus - The issue arises is, whether the penalty under Section 112(a) of Customs Act, 1962 have been rightly imposed on exporter company (appellant), registered in Dubai, for their mal-practices in India through their Agent located in India and working for them in India - Several importers located in India were importing confectionary items from appellant and M/s Kelsen Group A/S, Denmark, were resorting to large scale under invoicing and mis-declaration of transaction value, as well as Retail Sale Price (RSP) of goods to evade customs duty - SCN was issued proposing to reject transaction value and re-valuing the same as per actual value - Further, demand of differential duty alongwith interest and also proposal for confiscation raised - Penalty was also proposed under Section 112(a) and (b), Section 114A, 114AA of the Act, on appellant and others - The appellant among other grounds urged that no penalty was imposable on them as Customs Act, 1962 does not have extra territorial jurisdiction/application - The charge of aiding and abetting have been established against appellant - The appellant company, though it was registered having Head Office in Dubai, but it was very much present in India through its Indian Representative - Through its Indian Representative, appellant company have actively colluded and abetted with Indian importers by various acts of commission and accordingly penalty has been rightly imposed under Section 112(a) of the Act - There is admitted case of collusion and forgery plus concoction of documents, including presenting and filing of false and incorrect documents (invoice), to evade Customs duty by importer and the appellant company - The present proceedings are for imposition of penalty and not for demand of duty under Section 28(4) - The SCN on this appellant is not under Section 28(4) of Customs Act - Fraud vitiates everything - Accordingly, the impugned orders are upheld: CESTAT
- Appeals dismissed: DELHI CESTAT
2021-TIOL-802-CESTAT-CHD
Prakash Webtech Pvt Ltd Vs CCGST
CX - The assessee is in appeal against impugned order wherein Commissioner (Appeals) has dismissed the appeal as time barred - To file appeal before Commissioner (Appeals), adjudication order is required to be delivered to assessee and on receipt of adjudication order, assessee has to file appeal within 60 days of receipt of said order, said period can be extended for another 30 days if reasons explained by assessee are found satisfactory - Admittedly, there is no proof of service of adjudication order on assessee - In that circumstance, the date on which assessee has received adjudication order is the date of receipt of adjudication order i.e. 10.12.2020 and thereafter they filed appeal before Commissioner (Appeals) on 15.2.2021 - Assessee has filed appeal before Commissioner (Appeals) in time, impugned order deserves no merit and accordingly same is set aside - Since Commissioner (Appeals) has not dealt with merits of case, therefore, matter is remanded back to decide the issue on merits within 60 days: CESTAT
- Matter remanded: CHANDIGARH CESTAT
2021-TIOL-801-CESTAT-BANG
CCT Vs Lenovo India Pvt Ltd
ST - The assessee is providing both taxable and exempted services (trading) and are availing Cenvat credit on input services common to both services - During audit, it was observed that there was short payment, in terms of Rule 6(3A) of Cenvat Credit Rules, 2004 - The issue arises is to decide whether the turnover of a particular unit should be taken into consideration for arriving at the amount of tax credit to be reversed in terms of Rule 6(3A) of Cenvat Credit Rules, 2004 - For the period prior to 01.04.2011, issue stands decided in case of Mercedes Benz India Pvt. Ltd. 2014-TIOL-476-CESTAT-MUM wherein it was held that trading is not an exempted service prior to 01.04.2011; provisions of Rule 6 requiring reversal of 6% of trading turnover is not applicable - Matter prescribed under Rule 6 of CCR, 2004, can be applied for the period before 01.04.2011 also as held by Tribunal in case of M/s TFL Quinn India Pvt. Ltd. 2016-TIOL-856-CESTAT-HYD - While holding that the Department is not precluded from issuing SCN to the head office of Respondents as res judicata would not apply to taxation matters, there is a dichotomy in the approach of appellant department - Benefit of doubt should go appellants - Coming to the period subsequent to 01.04.2011 when trading came to be considered as an exempted service, appellants have reversed credit for the period 2011-12 to 2014-15, in terms of Rule 6(3A) of Cenvat Credit Rules, 2004, on proportionate basis - While after 01.04.2012, there is a clear provision that credit of service tax distributed should be pro rata to the basis of turnover of unit concerned - Before 01.04.2012, the only restriction was that credit is not distributable to a unit wholly engaged in provision of exempted service or production of exempted goods - The Karnataka High Court has dealt with the very same issue in case of ITC Ltd. and the High Court has held relying on the Division Bench decision in case of Ecof Industries Pvt. Ltd. 2011-TIOL-770-HC-KAR-ST that there are only two limitations imposed under Rule 7 of Rules, for distribution of credit by an Input Service Distributor - Firstly, it cannot exceed the amount of service tax paid and secondly, credit of service tax attributable to service used shall not be distributed in a unit exclusively engaged in manufacture of exempted goods or providing of exempted services - The manufacturer is therefore, requires registering himself as Input Service Distributor and thereafter is entitled to distribution of credit of such input in manner prescribed under the law - The impugned order is legal and proper and as such does not require any interference - Therefore, appeal preferred by Department does not require any intervention: CESTAT
- Appeal dismissed: BANGALORE CESTAT |
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