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2022-TIOL-13-CESTAT-DEL
Umalaxmi Organics Pvt Ltd Vs CC
Cus - The issue arises is, whether the appellant is entitled to benefit of Notification No. 94/96-Cus. - It is relevant to mention that appellant have also repaid the amount of duty drawback by challan with interest and also repaid the benefit under MEIS by separate challan with interest, which is not disputed - Appellant prayed that Notification No. 94/96-Cus., wherein it is provided that in case of re-import by an exporter, which was made under duty drawback rebate of duty or under bond/ DEEC/EPCG, custom duty payable on re-import shall be limited to so much of duty of customs leviable thereon, which is specified in schedule to Customs Tariff Act, amount in excess of amount as indicated in Column 3 of Notfn, shall be exempted - Admittedly, appellant had availed duty drawback as well as MEIS - Duty drawback is specified in Column 2 of table in Notification No. 94/96-Cus. - Accordingly, appellant is entitled to benefit of Notfn - Thus, impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-12-CESTAT-AHM
Nayara Energy Ltd Vs CC
Cus - The issue arises is, whether appellant's refund claim is hit by limitation and whether in absence of any specific letter for payment of duty under protest, payment of duty for which refund sought for can be treated under protest - Both the lower authorities have held the refund as time barred on the ground that the appellant have not paid duty "under protest" by submitting a letter of protest - It is the submission of appellant that even though the letter of protest was not given but since the duty was paid during investigation and no SCN was issued in respect of such duty payment, duty so paid should be deemed to be under protest - The expression of protest itself is payment under protest - However, on the basis of correspondence made between appellant and department, it is to be ascertained that the appellant have protested payment of duty on demand of duty by department at any point of time and on that basis the issue to be decided afresh - The impugned order is set aside and matter is remanded to adjudicating authority for passing a fresh de novo order - Since the matter is of October, 2013 adjudicating authority should pass the de novo order within a period of three months: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2022-TIOL-11-CESTAT-MUM
Responsibility India Business Advisors Pvt Ltd Vs CGST & CE
ST - The assessee, providing 'business consultancy service' outside the country, had taken credit of taxes paid on several 'input services' procured by them during relevant period which was sought for reimbursement as refund under rule 5 of Cenvat Credit Rules, 2004 - The challenge is to the disallowance of refund of tax paid on rents charged on space which remained unregistered as premises from which 'output service' was rendered - The scheme of Rules envisages that credit taken by an assessee is governed by threshold eligibility under rule 3 with continued entitlement to the extent of non-application of rule 6 of Cenvat Credit Rules, 2004 - Any ineligible credit that has been availed is liable for recovery under rule 14 of said Rules - The scheme of rule 5 of Cenvat Credit Rules, 2004 is abundantly clear - To the extent of eligibility, assessee cannot be denied refund and disallowed portion, if any, remains in credit of assessee for debit of future tax/duty liability - Therefore, denial of refund does not extinguish the credit but restores it in the account - In impugned order, there is no finding of disallowance and on contrary, denial has been on the ground of ineligibility for CENVAT credit which is permissible to be ordered only in proceedings initiated under rule 14 of Cenvat Credit Rules, 2004 after issuing notice to assessee - Neither of the two is evident in records - Accordingly, denial of refund of CENVAT credit is incorrect in law in the absence of recovery of credit for ineligibility - The impugned order is set aside: CESTAT
- Appeals allowed: MUMBAI CESTAT
2022-TIOL-10-CESTAT-DEL
Benu Prabhakar Vs CCE & CGST
ST - On the basis of third party information received from the Income Tax Department, it was noticed that the assessee had not paid service tax for the relevant FY - Hence SCN was issued for recovery of service tax with interest and penalty - Such demands were sustained vide O-i-O - Hence the present appeal. Held - The non-service of SCN during the period of 5 years, as pleaded by the assessee, is very much apparent from the documents - The assessee had specifically prayed for setting aside the demand on grounds of non service of SCN within the statutory period - Similar prayer was made before the Commissioner Appeals and the same is corroborated from the O-i-A - The Commr. (A) has miserably been silent upon the aspect of the non-service of the SCN within the maximum period provided to the Department for the purpose - It is also apparent from the record that appellant was not registered prior the year 2014. The impugned SCN has raised the demand for the year 2012-13 - The Department has not produced any document on record to show as to how the demand was proposed for two more financial years 2013-14 and 2014-15 - Nor there is any evidence to show that prior to 2014 also the appellant was rendering the impugned service for such quantum so as to bring him under the tax net - On the contrary, the assessee has sufficiently proved that the SCN nor the notices of appearance before the original Adjudicating Authority was ever got served upon the correct address of the assessee - The Certificate of Registration of assessee was very much available with the Department - The non-service of SCN and even processes or Summons upon the address not mentioned in the said certificate is highly unreasonable - No explanation is provided by the Department for such omission - Moreover, as SCN was never served upon the assessee, the question of the assessee receiving it does not arise - Non-service of SCN violates statutory mandate - Since there was no valid service of SCN same cannot sustain and accordingly is to be set aside - Hence, the order under challenge irrespective of remand, is not sustainable: CESTAT
- Assessee's appeal allowed: DELHI CESTAT
2022-TIOL-09-CESTAT-DEL
Amzole India Pvt Ltd Vs CCGST
CX - The issue involved is, whether appellant a manufacturer of chemical products, imported raw material and paid the price for the same by way of Cost + Insurance + Freight (CIF) - Appellant received the goods and has shown receipt in their books of accounts and also other records when goods are received during the period - Neither there is any case of issue of supplementary invoices nor there is any case of fraud, collusion or mis-statement - Appellant is entitled to cenvat credit of service tax paid under reverse charge mechanism in October, 2018 - Further, appellant is entitled to refund of this amount in terms of Section 142(6) r/w 143(3) of CGST Act - Accordingly, Adjudicating Authority is directed to pay the refund within a period of 45 days alongwith interest as per Section 11BB of Central Excise Act, 1944: CESTAT
- Appeal allowed: DELHI CESTAT |
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