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2021-TIOL-819-CESTAT-DEL
Modi Agro Products Vs CCE & CGST
CX - Assessee is in appeal against impugned order vide which the rejection of refund claim of appellant for an amount of Rs. 21 Lakhs has been upheld - The Department while rejecting the refund of Rs. 15 Lakhs out of Rs. 21 Lakhs claimed has solely relied upon para 3 of Circular No. 984/08/2014 wherein it has been clarified by Board that amount deposited in excess of mandatory pre-deposit shall not be treated as deposit under section 35F of Central Excise Act, 1944 - Whenever any amount is paid during investigation it is "deposit made under protest" and cannot be called as "duty paid under protest" - The High Court in case of EBIZ. Com Pvt. Ltd. 2016-TIOL-3240-HC-ALL-ST had held that any money lying with the Department on account of a deposit being made by assessee during pendency of proceedings, same is in the nature of deposit or pre-deposit till it is not appropriated - Till this stage, Revenue can only be a custodian but once the demand stands set aside, Revenue cannot retain the amount of deposit made by assessee towards the proposal of said duty demand - Accordingly, amount of Rs.21 Lakhs is an amount of "deposit made under protest" it cannot be called as duty - Question of applicability of section 11B ibid does not at all arise - The findings of Commissioner (Appeals) to this effect are, therefore, held to be wrong - Coming to the rejection to the extent of Rs. 6 Lakhs on the ground of no proof for said amount to be debited from credit ledger, said amount of Rs. 6 Lakhs is depicted in ER-1 for the period June, 2017 as a closing balance - The GST regime was introduced w.e.f. July 1, 2017 - Said amount has not been claimed as credit under GST through form GST TRAN-1 - It was the amount which is standing as a closing balance in ER-1 as on June 30, 2017 which was not transferred to GST Regime - Hence, is as good as the cash lying with Department and has to be treated as equal to the debit of Cenvat account in terms of Section 142 of CGST Act, 2017 - The said amount has mandatorily to be refunded to assessee in cash - Accordingly, the refund claim of Rs. 21 Lakhs has wrongly been rejected by Adjudicating Authority - Order accordingly, is hereby set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2021-TIOL-818-CESTAT-KOL
Meghalaya Cast And Alloys Pvt Ltd Vs CCE & ST
CX - The limited issue to be decided is, whether the assessee is liable to penalty under Section 11AC of Central Excise Act, 1944 in the absence of entitlement of complete refund as has been observed by High Court - The portion of order passed by this Tribunal whereby duty demand has been confirmed has not been further challenged by assessee and therefore the same has attained finality - Assessee has not valued the goods in compliance with Valuation Rules - It is contended that they have cleared the goods on the basis of prevailing market prices - However, no evidence has been produced to substantiate their claim of having cleared the goods to related parties - Moreover, in adjudication proceedings, they have not disputed that manner of computation adopted by Central Excise Department to arrive at the value as per Rules, which forms part of the SCN - No effort was ever made to show that the prices charged to the related party were closely approximate to the prices charged to independent parties - Further, there is a charge against assessee that they deliberately over-valued the goods cleared to related parties in attempt to obtain higher refund which is the subject matter of recovery in impugned demand order - At the same time, they also indulged in undervaluation as per their convenience, to short pay the duty amount which has not been rebutted by submitting the prices charged to independent parties - The assessee was conscious of amending Notification No. 17/2008-C.E. restricting the cash refund which was never brought to the knowledge of Tribunal in the first round of appeal - All these clearly show that incorrect valuation is a deliberate attempt to defraud the revenue - Admittedly, when there is no blanket refund in view of the amending Notfn dated 27.03.2008, there is no case of complete revenue neutrality and hence, does not advance the case of assessee to plead for waiver of penalty - Tribunal is therefore unable to grant relief from the imposition of penalty: CESTAT
- Appeal rejected: KOLKATA CESTAT
2021-TIOL-817-CESTAT-MUM
Palacio Property Developers Pvt Ltd Vs CC
ST - Appellant is providing construction of residential complex and club & association service - They had availed cenvat credit of service tax paid on such input services and also utilized such credit for payment of service tax on output services provided by them - Availment/utilization of such credit was disputed by department on the ground that as a recipient of service, cenvat credit cannot be used for payment of service tax on output service - The period of dispute involved is from April 2015 to March 2017 - The manner of availment and utilization of cenvat credit is contained in sub-rule (1) and (4) of Rule 3 ibid respectively - Clause (e) in sub-rule (4) ibid provides for utilization of cenvat credit for payment of service tax on any output service - However, an explanation clause was appended in said sub-rule vide Notification No. 28/2012-C.E. (N.T.), w.e.f. 01.07.2012, providing the restrictions that cenvat credit cannot be used for payment of service tax in respect of services where the person liable to pay tax is the service recipient - On examination of explanation clause inserted in sub-rule (4) ibid, it transpires that there is no ambiguity in interpreting the wordings used therein - Since, the period of utilization of cenvat credit is after the amendment of sub-rule (4) ibid, case of appellant squarely falls under such amended provisions and the other provisions of statute cannot be relied upon or referred to for taking a contrary view in favour of appellant that as a recipient of taxable service, they were eligible to utilize cenvat credit for payment of service tax on output services - No infirmity found in impugned order, same is upheld: CESTAT
- Appeal dismissed: MUMBAI CESTAT
2021-TIOL-816-CESTAT-AHM
Bhavin Export Pvt Ltd Vs CC
Cus - Amendment in shipping bills - The Joint Commissioner though rejected the request for amendment in shipping bills sought by appellant but no reasoning was given - However, Commissioner (Appeals) has given detailed findings in impugned order and mainly the request was rejected by Commissioner (Appeals) on the ground that whatever amendment sought by appellant is not based on existing documents and the documents are not in possession of proper officer - These findings are apparently incorrect on the face of documents such as export invoices which clearly contained the correct HS Code 74199930 - However, inadvertently in shipping bills, incorrect drawback serial number 741802B was mentioned - It cannot be said that the amendment sought by appellant is not on the basis of documents existing at the time of export and not in the possession of proper officer - The invoices and the packing list is basic documents and these documents are very much in the possession of officer who is supposed to check at the time of filing shipping bills - Accordingly, amendment sought by appellant is strictly as per the documents existing at the time of export of goods and such documents are very much in possession of proper officer - The case of appellant is squarely covered by statutory provisions of Section 149 and proviso thereto - Accordingly, appellant is entitled for amendment in shipping bills and consequent differential drawback - Accordingly, impugned orders are set-aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT |
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