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2021-TIOL-2333-HC-RAJ-CUS
MK Exim India Ltd Vs UoI
Cus - The petitioner has prayed for a direction to remove their name from Denied Entity List (DEL) forthwith and accepting the online application for availing benefit of Merchandise Export from India Scheme (MEIS) for which the last date for making application for receiving benefits prescribed is 31.12.2021 as per notification dated 16.09.2021 - Nothing has been brought to notice from MEIS scheme suggesting that for any past unrelated events of dispute between department and petitioner, export incentive in presentie would be denied to exporter - The contention that without challenging the condition contained in trade notice, petitioner cannot finally succeed is too technical and in any case is not a valid one - The trade notice pertains to facility for applying benefit under MEIS under system driven approval mechanism - This part is totally procedural and trade notice cannot decide the rights of petitioner under the scheme - It may be that for those who are placed in denied list or suspended list, fast tracked procedure of system driven approval mechanism may not be made available - This is not the same thing as to suggest that such entities for unrelated events could be denied the benefit of export incentives under scheme if all conditions are satisfied - The contention that unless and until the petitioner pays up entire duty and penalty imposed under orders passed by DGFT and custom authorities, petitioner cannot claim any export incentive under the new scheme is completely unacceptable - Both the orders are under challenge before first appellate authorities - Respective statutes require pre-deposit of certain amounts upon which rest of the recoveries would be suspended - If petitioner has no such protection under law, department can recover amounts through coercive means and perhaps even from petitioner's entitlement of intensives under export promotion scheme in quest - But once this mechanism is statutorily put in place and followed by petitioner, Government of India cannot seek coercive recovery of remaining amounts in indirect manner by blocking export incentives under unrelated schemes and future consignments - Since petitioner has challenged the order by filing appeal and in any case such order is not available on record, court do not go into petitioner's first prayer for deleting the name from denied entity list and leave it to the petitioner to pursue the appeal: HC
- Petition disposed of: RAJASTHAN HIGH COURT
2021-TIOL-833-CESTAT-KOL
Jai Balaji Industries Ltd Vs CCE
CX - The assessee is a mini integrated steel plant, engaged in manufacture of Sponge Iron, Pig Iron, Iron Billets, Silica Manganese and Ferro-Manganese - The assessee was registered with the Excise Department during the relevant period - The assessee also manufactures M S Rounds/TMT bars classifiable under Tariff item 7213 10 90 of the erstwhile Central Excise Tariff - The present dispute is in respect of TMT Bars - The Department opined that in respect of goods transferred to consignment agents, the assessee had not determined the assessable value correctly in terms of Rule 7 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 (hereafter, the Valuation Rules, 2000) and, accordingly, Show Cause Notice No. 42/Commr/BOL/09 dated 16.10.2009 was issued to the appellants demanding differential duty along with interest for the period 01.04.2005 - 31.12.2008 - Penalty was also imposed u/s 11AC of the Central Excise Act, 1944.
Held - Instead of getting into the pleadings of the appellant on the quantification part, we agree with the submission of the counsel that Rule 7 of the Valuation Rules, 2000, will apply only where an assessee does not sell any goods to unrelated buyers at the factory gate but transfers all their goods to their consignment agents - In this regard it will be useful to examine the provisions of Rules 7 and 8 of the Valuation Rules, 2000, during the relevant period, as they use the same starting expression - Bench is in agreement with counsel of the assessee that the expression "Where the excisable goods are not sold by the assessee" appearing in both Rule 7 and Rule 8 of the Valuation Rules, 2000, will have the same meaning and the ratio of the decision of the Larger Bench in the case of Ispat Industries in the context of Rule 8, will also apply to Rule 7 of the Valuation Rules, 2000 - The decision rendered in Spice Systems Ltd.Vs Commissioner of Cus. & C. Ex., Noida is distinguishable from the facts of the present case and is not applicable - Hence the order in question merits being set aside: CESTAT
- Assessee's appeal allowed: KOLKATA CESTAT
2021-TIOL-832-CESTAT-DEL
Hindustan Zinc Ltd Vs CCE & CGST
CX - The Appellant is engaged in manufacture of lead and zinc concentrates - It appeared to Revenue that appellant have taken excess credit of Rs. 2,83,137/- which is not matched by invoices, as required under Rule 9 of Cenvat Credit Rules, 2004 - There is no discrepancy and the whole confusion has occurred on account of clerical error in the account/store section of appellant who initially submitted the figures to audit, wherein this amount of Rs. 2,83,137/- was left out erroneously - Thus, SCN is misconceived and there is no merit in allegation of Revenue: CESTAT
- Appeal allowed: DELHI CESTAT
2021-TIOL-831-CESTAT-MUM
BNP Paribas India Solution Pvt Ltd Vs CCGST
ST - Issue arises for consideration is as to whether the department can deny refund of Cenvat Credit under Rule 5 of Cenvat Credit Rules, 2004 alleging that there was no nexus between output and input services - It is well settled that denial of Cenvat Credit can be done only by issuing notice under Rule 14 ibid - Having allowed the Cenvat Credit or by not denying the same, department cannot reject refund of Cenvat Credit under Rule 5 ibid - Availment of Cenvat Credit, its utilisation and refund are different aspects dealt with under CCR, 2004 - Since availment of credit has not been questioned by department in terms of Rule 14 ibid, the refund benefit cannot be denied on the ground of non-establishment of nexus between input and the output services - This Tribunal in appellant's own case on an identical issue, for the period April, 2012 to March, 2013 and April, 2016 to September, 2016 in 2020-TIOL-443-CESTAT-MUM set aside the denial of refund by department to appellant on the ground of non-establishment of nexus between input and output services, after discussing Rule 5 ibid in detail - If the quantum of Cenvat Credit is to be varied or to be denied on the ground that certain services do not qualify as input services or on the ground of 'no nexus', then the same could have been done only by taking recourse to Rule 14 ibid - Since the provisions of Rule 14 ibid have not been invoked, refund of Cenvat Credit as claimed by appellant under Rule 5 ibid cannot be denied to them and the same is admissible: CESTAT
- Appeals allowed: MUMBAI CESTAT
2021-TIOL-830-CESTAT-MAD
Contemporary Leather Pvt Ltd Vs CC
Cus - The assessee is engaged in the business of manufacture and export of leather products and accessories - It exported goods to M/s Aspinal of London since 2013 - These exports were handled by a merchandiser specifically recruited for handling these exports - The merchandiser was not aware of the eligibility of drawback for the said exports and thus the shipping bills filed were not declared for availing drawback benefits. Later, on realizing the mistake, the assessee vide letter dated 23.11.2017 requested for conversion of the free shipping bills to drawback shipping bills - The exporter was given an opportunity of personal hearing where the CEO of the company Shri R. Sriram submitted a letter dated 18.01.2018 stating that he had assumed charge as CEO of the company and noticed that drawback benefits were not claimed for the exports by the earlier merchandiser who was handling the exports made to M/s. Aspinal of London - He took corrective measures and has filed the request for conversion of the free shipping bills to drawback shipping bills - During the course of personal hearing, samples of the items exported were produced before the Adjudicating Authority - A committee was constituted for looking into the samples as well as related documents of exports made during the disputed period - The committee reported that on visual examination of old and new items, the goods appeared to be made of 60% or more of visible outer/inner surface leather That the description of old and new items are the same - Further that the product code as mentioned in the export invoices tallied with the stock code mentioned in the purchase orders - However, the Adjudicating Authority rejected the request for conversion of the shipping bills on the ground that the assessee had not put forward plausible explanation for not filing the drawback shipping bills at the time of exports itself.
Held - The Board Circular No. 36/2010-Cus, dated 23.09.2010 also allows conversion of free shipping bills into drawback shipping bills - The Circular states that if the Commissioner is satisfied that the exporter failed to comply with the provisions of Rule 13 of the Drawback Rules, 2017 (filing drawback shipping bill) for reasons beyond his control, the amendment can be allowed - It is clear from the provisions of Section 149 of Customs Act, 1962 as well as the Circular that the amendment of free shipping bills to drawback shipping bills can be allowed - The assessee has been able to sufficiently establish that they did not file the drawback shipping bill at the time of export for the reason that the merchandiser who was handling the exports did not have knowledge about the benefit that could be claimed - Hence the request for conversion of free shipping bills to drawback shipping bills has to be allowed - However, since the application for conversion is filed on 23.11.2017 in regard to the shipping bills for the period 2013-14 to 2016-17, the period of limitation as set out in the decision of the Tribunal in M/s. Autotech Industries (India) Pvt. Ltd. will apply - Hence, the shipping bills beyond the period of three years will not be eligible for conversion - For the limited purpose of looking into the shipping bills which are beyond the limitation period of three years, when computed from the date of application, i.e., 23.11.2017, the matter is remanded to the Adjudicating Authority: CESTAT
- Matter remanded: CHENNAI CESTAT |
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