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2022-TIOL-23-CESTAT-DEL
Capital Hi Tech Engineering Pvt Ltd Vs CCE, C & CGST
CX - The assessee is engaged in manufacture of Steel Fabrication - A SCN was issued to assessee alleging that they defaulted in payment of duty beyond 30 days, for the month of August, 2013 to October, 2013 & April, 2014 and also failed to pay interest on defaulted amount of duty and that they had utilized Cenvat credit, which otherwise, was required to be paid in cash or through account current, on consignment basis, as per Rule 8(3A) of Central Excise Rules, 2002; that assessee had cleared goods contravening the provisions of Rule 8(3A) ibid - Revenue itself amended and substituted Rule 8(3A) ibid vide Notification No. 19/2014-C.E. (N.T.) w.e.f. 11/7/2014 - Evidently, as per Rules of interpretation, where a provision is inserted by way of substitution, it is deemed to have been inserted w.e.f. the date of original statute, unless otherwise provided - The Gujarat High Court in case of Indsur Global Ltd. 2014-TIOL-2115-HC-AHM-CX have been pleased to quash/read down the provision of erstwhile Rule 8(3A) ibid to the extent it disabled an assessee from utilising Cenvat credit lying to its credit, in utilising during the period of default - Accordingly, in view of substituted provision w.e.f 11/07/2014, SCN is bad in law, in view of ruling of Gujarat High Court and various other High Courts and also in view of the amendment in Rule 8(3A) of Central Excise Rules, 2002 w.e.f. 11/7/2014 - Accordingly, the impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-22-CESTAT-MAD
CC Vs Tarajyot Polymers Ltd
Cus - The assessee had filed refund claim of SAD in terms of Notification No. 102/2007-Cus as amended by Notification No. 93/2008-Cus. - Same was allowed by original authority - On appeals, Commissioner (Appeals) observed that the appeals filed by department are time-barred for the reason that the review order has been passed beyond the time-limit of three months as stipulated under sec. 129(D)(3) of Customs Act, 1962 - Commissioner (Appeals) ordered for return of appeals to the department to resubmit the same with documentary evidence to establish the date on which the review authority has received the order passed by adjudicating authority and actual date of passing the review order - From the discussions made by Commissioner (Appeals), it is explicit that the department has not been able to furnish any details as to the date of receipt of order by reviewing authority - This Tribunal had also granted several adjournments to department to obtain these details but department has not been able to place any such details - Appeals filed before Commissioner (Appeals) are time-barred - Appeals are dismissed as being without any merits: CESTAT
- Appeals dismissed: CHENNAI CESTAT
2022-TIOL-21-CESTAT-DEL
Adwyn Chemical Pvt Ltd Vs CC
Cus - The appellant has filed refund claim after more than one year or may be by few days more from the date of payment of SAD - Following the decision of High Court of Delhi in case of Sony India Pvt. Ltd. 2014-TIOL-532-HC-DEL-CUS , it is held that the appellant is entitled to refund, as their right to claim refund of duty (SAD) in terms of Notification No. 102/2007-Cus has accrued only when the sale took place post import - The findings of High Court clearly show understanding of department with regard to clause of limitation, provided in Notfn - The condition of limitation was not a part of original notification - It was only with introduction of Circular No. 6/2008-Cus. and subsequent amending Notification No. 93/2008, department started insisting on limitation period (of one year) as prescribed, w.e.f. 1.8.2008, became applicable - Merely because Section 27 of Customs Act, 1962 provides for a period of limitation for filing refund claim, it cannot be held that even for purposes of claiming refund in terms of Notfn, same limitation has to be applied - The Delhi High Court has also held that in the matters which deal with substantive rights, such as imposition of penalties and other provisions, that adversely affect statutory rights, the parent enactment must clearly impose such obligations; subordinate legislation or Rules cannot prevail, or be made in such case - Therefore, by following the said judgement of Delhi High Court in Sony India , impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-20-CESTAT-AHM
Pramukh Copper Pvt Ltd Vs CCE & ST
CX - The assessee is in appeal against imposition of penalty in terms of Rule 26 of Central Excise Rules, 2002, which was imposed consequent to fraudulent availment of cenvat credit without receipt of inputs by M/s Pramukh Copper (P) Ltd. - Against confirmation of demand, in respect of M/s Pramukh Copper (P) Ltd., assessee has availed SVLDR Scheme, 2019 - As regard the offence against company M/s Pramukh Copper (P) Ltd., it attained finality as company has admittedly got the demand case settled before SVLDRS, 2019 - The only issue is that whether assessee being a Director of Company was rightly imposed penalty under Rule 26 ibid - Since the appellant company has fraudulently availed credit without receipt of goods, it is not possible without knowledge of Director, therefore, Director Shri Ronak Chaudhari is directly involved in fraudulent availment of credit by his company - Therefore, he is correctly liable for penalty under Rule 26 ibid - However, looking to the quantum of evasion and overall facts, assessee deserves some leniency - Accordingly, penalty reduced to to Rupees One Lakh: CESTAT
- Appeal partly allowed: AHMEDABAD CESTAT
2022-TIOL-19-CESTAT-AHM
CCE & ST Vs Reliance Industries Ltd
ST - The assessee being a SEZ Unit had filed refund claims under Notification No. 12/2013-S.T. claiming refund of service tax paid to service providers of taxable services received by them for carrying out authorized operations in their SEZ unit, service tax paid under reverse charge mechanism for taxable services received for carrying out authorized operations in SEZ and also refund of service tax distributed to SEZ Unit under ISD Invoices under Rule 7 of Cenvat Credit Rules, 2004 - As regard the issue that assessee is required to file only one refund claim for each quarter in terms of Clause (f) of Para 3 (III) of notification, firstly, assessee have admittedly filed only one refund claim for each quarter therefore, it cannot be said that they have filed more than one claim in each quarter - Merely because refund claim in respect of invoices of earlier quarter filed in the subsequent quarter, refund claim on this ground alone cannot be denied therefore, this ground of revenue's appeal is not sustainable - As regard the ground of appeal that the reason assigned for condoning delay beyond one year as required by Para 3(III)(e) are not cogent and valid, the Deputy Commissioner has extended the time period by exercising his discretion and considering the reasons therefore, same cannot be interfered - As regards grounds of appeal that Deputy Commissioner has not done the verification of distribution of credit between DTA Unit and SEZ Unit, in assessee's own case, refund cannot be questioned on the ground that the verification of document was not done by Deputy Commissioner hence this ground is also rejected - As regard to delay in issuing ISD Invoices firstly, there is no time limit prescribed under Rule 7 of Cenvat Credit Rules, 2004 for distributing credit under ISD Invoices nor any dispute was raised as regard the time and manner of issue of ISD Invoices at the end of ISD Registrant therefore, there is no illegality in issuance of ISD Invoice belatedly - Clause 3(III)(e) of Notification No. 12/2013-S.T. is not applicable in respect of refund claim made on the basis of ISD Invoice in Table-II of Form A-4 appended to said notfn - As regard the heavy reliance made by revenue in judgment of Supreme Court in case of DILIP KUMAR 2018-TIOL-302-SC-CUS-CB, ratio of Apex Court in this case cannot be applied - Even if it is assumed that clause (e) of Para 3 (III) of Notification is applicable and there is a delay in filing the refund, the lapse is only of procedural - For that matter substantial benefit of refund cannot be denied and a liberal approach for condonation of delay needs to be taken as held by Apex Court in case of MST. KATIJI 2002-TIOL-444-SC-LMT - It is settled that in case of violation of condition of notification which is in the nature of procedural lapse, the substantial benefit of the exemption notification cannot be denied - No infirmity found in the impugned order: CESTAT
- Appeal dismissed: AHMEDABAD CESTAT
2022-TIOL-18-CESTAT-MUM
Videocon D2H Ltd Vs CCGST & CE
ST - The appellant is a provider of 'broadcasting service' and enters into agreement with their service recipients who are provided with 'consumer premise equipment', for receiving the services - After receiving the services for sometime, certain customers disconnected the service despite which equipment was allowed to remain at their premises - As appellant have written off these "consumer premises equipment" in their books of account, revenue was of the view that appellants were required to reverse CENVAT credit taken by them in respect of those equipment which have been written off - Appellant was providing the services, by supplying CPE to their customers and were allowing him the option to procure them, either on the "purchase basis", "hire purchase basis" or "rental basis" - To verify the claim of appellant that the entire set of CPE's in respect of which this demand is made is only in respect of those CPE, which were provided on the "rental basis", bench had directed the appellant to file an affidavit explaining the situation - On the basis of said affidavit duly supported by chartered accountant certificate, it is found that appellant has during the period of dispute supplied some "CPE" on purchase basis and majority of CPE were provided on rental basis - It is their submission on affidavit that they had reversed the credit taken by them in respect of CPE sold by them to their Customers, a fact which has not been disputed by revenue while issuing the SCN or subsequently - The issue in respect of CPE, provided by appellant on rental basis, which upon deactivation of service have not been returned back by customer to the appellants have been dealt by Tribunal in various decisions - No merits found in impugned order, same is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT |
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