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2021-TIOL-850-CESTAT-DEL
Lightspeed India Partners Advisors LLP Vs CCT
ST - The appellant had accumulated Cenvat Credit with respect to Management and Business Consulting services being exported by him - However, during the period prior CGST Act, 2017 came into effect, said credit has apparently not been debited by appellant, but has been reversed in Books of accounts of appellant - Formost, it is to be checked as to whether the Books of accounts of appellants/private record can be considered as record admissible into evidence or as to whether it is statutory document - Madras High Court in case of BNP Paribas Global Securities Operations Pvt Ltd. 2021-TIOL-908-HC-MAD-ST has held that for the transaction pertaining to period prior to 30.6.2017, appellant since could not file ST-3 return post July, 2017, any reversal/ credit shown in his private accounts/ the Books of accounts become the statutory documents as admissible in evidence - Commissioner (A) has denied the refund of such incentive laying emphasis not merely upon Notification No. 27/2012 but also on the non-compliance thereof also in terms of Section 142 of CGST Act - The perusal of this provisions makes it abundantly clear that refund of any duty or tax which was paid for period prior to coming into force of GST law can be claimed even after the appointed date of 01.07.2017 - The provision itself makes it clear that such claim is to be dealt with in terms of earlier existing law - Apparently and admittedly, there is no reason showing that the refund was otherwise not available to appellant - These observations about section 142 of GST Act, are sufficient to hold that Commissioner (Appeals) has failed to appreciate provisions as a whole and has wrongly held that in terms of section 142, impugned refund was not allowed. Coming to the Rule 15 of Cenvat Credit Rules which has also been emphasised as a ground for rejecting claim, no doubt this Rule mandates the transfer of entire Cenvat Credit available under CCR, 2004 relating to period ending the date immediately preceding the date of 01.07.2017 in the electronic credit ledger but Rule itself talks about compliance of Chapter XX of GST Act, 2017 for making such transfer - The said chapter and the transition provision includes section 142 CGST - Once that is so, no illegality found in the act of appellant who has reversed the Cenvat Credit of period pertaining to existing law to his Books of Accounts instead of transferring the same to electronic credit ledger. The Commissioner (A) has miserably failed to observe that with the introduction of GST Act, filing of ST-3 return was absolutely done away due to which there was no other possible way with the appellant to debit and to reflect the existing credit in its ST-3 return - The Notification No. 27/2012 with its condition No 2(h) was applicable only during the period prior to GST regime - Since the GST regime has done away with ST 3 return, there remain no provision in GST system to reflect the refund claim in CENVAT credit balance - The only option was to show its reversal in Books of accounts - Such reversal still amounts to non availment of Credit and refund whereof remains eligible - Support drawn from decision in case of M/s. Kiwi Technologies India Pvt Ltd. In case of Inguest Technologies Software (P) Ltd. Tribunal has allowed the refund clam of such transitional period when the reversal from Books of accounts was shown even after filing of refund - The rejection of two refund claims for the period January, 2017 to March 2017 and April, 2017 are held to have wrongly been rejected: CESTAT
- Appeal allowed: DELHI CESTAT
2021-TIOL-849-CESTAT-DEL
Garg Ispat Udyog Ltd Vs CCE & CGST
CX - Appellant is engaged in manufacture of MS Tubes (galvanized) from HR coils - A SCN was issued to appellant alleging evasion of duty on availment of Cenvat Credit on the ground that the inputs were neither actually received in factory nor were used in manufacture of final product - It has been explained by appellant that RG-23A Part-I register is record maintained for quantity of inputs received - The said detail is very much available in RG-23A Part-II register as well as in form IV register which records the movement of received inputs, opening balance, quantity received, total quantity, opening and received quantity issued to production section, issued to job workers issued to such clearance and closing balance - Specific invoices are already mentioned in given columns of these registers - It is otherwise apparent from copies of documents as annexed along with written synopsis - Adjudicating Authority has to give a clear finding to the effect what precisely is still missing for want of RG-23A Part-I register - In absence thereof, Rs. 27,99,593/- as has been confirmed against appellant lacks reasonable justification - Matter remanded to Adjudicating Authority directing them to consider all the 65 invoices and to appreciate simultaneously the RG-23A Part-II register and form IV register: CESTAT
- Matter remanded: DELHI CESTAT
2021-TIOL-848-CESTAT-MAD
Bata India Ltd Vs CGST & CE
CX - The only grievance of appellant is denial of CENVAT Credit on transportation of footwear from its Regional Distribution Centres ('RDCs')/Corporate Office to their retail outlets - In absence of specific examination of facts, Tribunal is unable to endorse the demand being re-confirmed in impugned orders - When High Court required re-examination into facts first, the priority of Adjudicating Authority should have been to ascertain the facts along with supporting documents, hear the appellant and then arrive at a proper conclusion upon such examination - Further, though there is an observation in impugned orders that manufacturing activities would cease as soon as the goods were transported to RDCs/Corporate Office after manufacturing, but however, there is no supporting evidence placed on this to establish that it is at these RDCs/Corporate Office that the clearance of goods in form of sale took place - Rather, there is nothing placed on record to indicate the basis for such a conclusion - Matter is remanded back to the file of Adjudicating Authority, who shall examine the issue afresh and then pass a fresh speaking order in accordance with law: CESTAT
- Matter remanded: CHENNAI CESTAT
2021-TIOL-847-CESTAT-MUM
Reliance Industries Ltd Vs Addl. Director General
Cus - The first issue that arises for consideration is as to whether the product Reformate merits classification under four digit Heading 2707 of Customs Tariff Act, 1975 - The reason assigned in SCN for not classifying it under aforesaid four digits CTH is that Reformate is not a distillate of coal tar or mineral tar - The Adjudicating Authority dealt with this issue and accepted the contention of appellant that the term "similar products" used in chapter Heading 2707 ibid also includes products obtained by processing of petroleum as said Explanatory Notes explain classification of "similar products" obtained from distillation of coal tar and includes processing of petroleum - This part of finding recorded by Adjudicating Authority has not been assailed by Department - Thus, if the product Reformate is classifiable under the four digit Heading Heading 2707 ibid, it would not be really material to determine as to under which eight digit Sub-Heading it can be classified because the duty rate structure is the same for all the Sub-Heads - The Adjudicating Authority, therefore, committed an error in thereafter holding that the product Reformate would be classifiable under Tariff Item 2710 12 19 of Customs Tariff Act, 1975. The second issue that arises for consideration is whether the product Reformate merits classification under Tariff Item 2707 50 00 ibid - The reason assigned by Adjudicating Authority for not classifying it under this eight digit classification is that the Sub-Heading requires 65% or more by volume of product to distill at 250ºC, but in the present case 65% of product by volume distills at around 142.5ºC - Appellant submitted that the distillation of a product is not a flash reaction, but is a process where the inputs start distilling slowly as the temperature rises - Thus, if requirement stipulated is that a certain percentage of product (by volume) must distill "at" a certain temperature, it should actually mean that as product is heated, distillation to required extent must happen "by" that temperature - The submission advanced, therefore, is that the expression "at 250ºC" should be read as "by 250ºC" - This submission advanced by appellant deserves to be accepted - The product would, therefore, merit classification under Tariff Item 2707 50 00 ibid. The third issue that arises for consideration is as to whether the product Reformate would merit classification under Heading 2710 ibid - It needs to be remembered that Reformate is a highly rich aromatic product containing 80% or more aromatic content - It cannot, therefore, be covered under category (C) and accordingly from the purview of Heading 2710 ibid as well - This is for the reason that all the products covered by category (C) must contain in addition to substances added, at least 70% of petroleum oils covered by categories (A) and (B) - Thus, even if substances added for making the preparations are considered to be all aromatic in nature, preparations, by virtue of at least having 70% of categories (A) and (B) oils therein must have 35% non-aromatic constituents (70% of 50%) - Thus, aromatic content at best would be 65% in preparation of the kind covered under category (C) - Reformate, however has 80% aromatic contents and therefore, cannot be considered under category (C). The fourth issue that arises for consideration is whether Reformate can be classified under Tariff Item 2710 12 19 ibid as "other motor spirit" - The parameters alone are not relevant for purpose of determining classification of a product under 'motor spirit' because they can be fulfilled by a large number of other hydrocarbons which may be used as a blend stock but are not recognized as 'motor spirit' - The Department has also not substantiated that Reformate conforms to all the twenty one parameters of 'motor spirit' contemplated under IS 2796 - The appellant has in fact pointed out four parameters namely density, E70 (Evaporation at 70 degrees), E100 (Evaporation at 100 Degrees) and aromatic content out of these twenty one parameters prescribed by IS 2796, which are not satisfied by Reformate - Thus, as Reformate does not conform to all the specification of IS 2796, it cannot be said to be usable as a 'motor spirit'. The Department contended that appellant has not adduced any evidence to prove that the flash point of Reformate is not below 25ºC - This contention is also not only beyond the scope of impugned order, but even otherwise, it was for Revenue to substantiate that the flash point of Reformate was below 25ºC - Thus, Reformate would merit classification under Tariff Item 2707 50 00 and not under Tariff Item 2710 12 19 - The impugned order therefore, cannot not be sustained and is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT |
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