2022-TIOL-25-HC-MUM-CUS
Alphard Maitime Pvt Ltd Vs UoI
Cus - Petitioner has impugned the notices dated 18th August, 2021 and 30th August, 2021 as without jurisdiction and in violation of principles of natural justice.
Held: Bench is inclined to pass the order identical to the order passed by the Division Bench of this Court on 21st December, 2021 in case of Fahim Ibrahim Waghoo v/s. Union of India and Ors – Bench is of the prima facie view that the issue involved in this writ petition is no longer res integra in view of the decision of the Hon'ble Supreme Court in case of M/s. Canon India Pvt. Ltd. [ 2021-TIOL-123-SC-CUS-LB ] - Respondent nos. 4 and 5 and their subordinate Officers are directed not to proceed with the impugned demand notices and not to proceed with the investigation proposed by them pursuant to the impugned demand notices against the petitioner in respect of 13 vessels which are already assessed by the respondent no. 3 at Mumbai till 31st March, 2022 - Matter to be placed on board for directions on 28th March, 2022: High Court [para 7 to 9]
- Matter posted: BOMBAY HIGH COURT
2022-TIOL-24-HC-MEGHALAYA-CUS
CC Vs Manik Ranjan Paul
Cus - Department questions the propriety of order of CESTAT = 2020-TIOL-1145-CESTAT-KOL - Revenue submits that Tribunal has merely gone on the basis of the observations of the High Court in the order of May 6, 2019 without appreciating that the High Court had left the entire matter for a de novo consideration to be undertaken by the Tribunal.
Held: Consideration of the matter appears only over a page and a quarter without reference in any great detail to the order-in-original against which the appeal before the Tribunal had been carried by the respondent herein - In the order impugned, the Tribunal has also observed that no mens rea was involved since the goods would attract 5% duty - That appears to be a matter of conjecture and merely because the goods would have attracted a nominal duty cannot be a brush to sweep aside the cogent findings contained in the order-in-original of the Commissioner - Both the original order rendered by the Tribunal on March 23, 2018 and the present order of December 23, 2019 leave a lot to be desired - The Tribunal is tasked with the duty of assessing the grounds made out in support of an order - Tribunal appears to have abdicated its authority to decide and dealt with the matter at a superficial level without referring to either the grounds indicated in the order-in-original or the grounds of challenge fashioned by the respondent herein - Order impugned dated December 23, 2019 is found to be exceptionable and same is set aside with a request to the Tribunal to consider the matter afresh uninfluenced by any observations contained in the previous order of this Court or in the present order - Customs Appeal is allowed: High Court [para 3, 12, 13, 14]
- Matter remanded: MEGHALAYA HIGH COURT
2022-TIOL-29-CESTAT-AHM
Adroit Pharmachem Pvt Ltd Vs CCE & ST
CX - The issue involved is that whether construction services used by appellant for setting up of Effluent Treatment Plant is eligible for Cenvat credit - Appellant has already existing factory and in said factory, Effluent Treatment Plant was installed for which they have availed construction service from contractor - Any activity of construction in the running existing factory shall be treated as modernization, renovation or repair and maintenance of existing factory - From the judgment of Tribunal in lon Exchange (I) Limited 2018-TIOL-752-CESTAT-AHM , it can be seen that the amended definition of 'Input Service' from 01.04.2011 was considered and it was viewed that though the construction service/works contract service were excluded but it was interpreted that the said service related to only new construction or setting up of a new factory - But since modernization, renovation or repair and maintenance, even after exclusion category, continue to remain in inclusion clause of definition, credit cannot be denied - Moreover, SCN has not made any charge related to exclusion category of 'Input Service', it only deals with main clause and inclusion clause of definition - Therefore, adjudication order deciding the matter on the basis of exclusion category is beyond the scope of SCN - Appellant is entitled for Cenvat credit - Accordingly, the impugned order is set-aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-28-CESTAT-KOL
Carbon Resources Pvt Ltd Vs CCGST & Excise
CX - Appellant is engaged in manufacture of Calcined Petroleum Coke (CPC) - During audit, some discrepancy in 3CD Return filed by appellant with IT Department and ER 1/ER 4 return filed for year 2013-14 was noticed, i.e; excess production in respect of CPC over and above the ER 1/ER 4 return and hence it was alleged that the appellant has clandestinely removed such goods without payment of excise duty - Appellant has produced their Tax Auditor's certificates certifying the reconciliation which was also produced by appellant before Adjudicating Authority and the said certificate clearly puts up the reconciliation between figures of clearance as per 3CD and ER-1 - Further, Patna High Court in case of Universal Polythelene Industries, had clearly held that in case of difference in figures between balance sheet and returns, it is not a rule that balance sheet figures are to be taken as correct - Appellant has been able to produce relevant reconciliations to explain the differences in clearance figures as per ER-1 and as per form 3CD which was on account of inclusion of 7031.42 MT twice by considering the conversion from CPC ROK to CPC Screen and CPC fines in captive consumption details and yield of finished products both in annexure to the Tax Audit report - Adjudicating Authority has not given any cognizance to submission of appellants as regards allegation of clandestine removal and the burden to prove the same - Thus, going by judgment of Tribunal in case of Sri Durga Cables Pvt. Ltd., no investigation has been conducted by department to prove allegation of clandestine removal in the case and thus the recovery of excise duty merely based on differences in figures of consumption cannot be made by department - Demand has been raised for the period 2013-14 in 2018 onwards whereas the spot memo was issued by Department in 2016 itself - No explanation has been furthered by Department in respect of such gross delay in proceeding with the matter - Therefore, invocation of extended period of limitation is not justified - Demand of excise duty only on assumptions and presumptions in quantity of clearance of finished goods figures of Tax Audit form 3CD and ER-1 cannot be sustained both on merits and on limitation and is accordingly set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-27-CESTAT-DEL
NV Distilleries And Breweries Pvt Ltd Vs Pr.CC
Cus - The issue that arises for consideration is, whether the DRI had jurisdiction to issue notice - This precise issue was examined by Supreme Court in Canon India 2021-TIOL-123-SC-CUS-LB wherein it is observed that the nature of power to recover duty, not paid or short paid after the goods have been assessed and cleared for import is a power that has been conferred to review the earlier decision for assessment - This power which has been conferred under section 28 of Customs Act, 1962 on the proper officer, must necessarily mean the proper officer who, in the first instance, assessed and cleared the goods - Thus, DRI did not have the jurisdiction to issue SCN - The SCN issued by DRI is therefore, without jurisdiction as said officer was not the proper officer and, therefore all proceedings undertaken by Department on this SCN is without jurisdiction - The impugned order cannot be sustained: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-26-CESTAT-DEL
Himachal Joint Venture Vs CC
Cus - The EPCG authorization was issued in favour of appellant way back in year 2004 - Under said authorization, appellant imported a machine by saving a custom duty - However, it is apparent that the completion of export obligation was never brought to the notice of concerned Department during the time stipulated in Notification No. 97/2004-Cus, as is apparent from letter as produced by appellant - Perusal of letter clarifies the acknowledgment of appellant about receiving SCN on 30.03.2015 - Hence appellant's own document is sufficient to falsify their submission that SCN was never received by them - By the time of reply, even the O-I-O was passed - No doubt the onus was of Department to prove the service of O-I-O upon the appellant - There is no cogent evidence about the proof of service, nor there is cogent explanation as to why the O-I-O was served upon Delhi address despite that the address mentioned by appellant for its registered office was that of Bangalore - There is no denial about date of receipt of recovery proceedings and receipt of O-I-O by appellant on 6th January, 2017 - Commissioner (Appeals) is observed to have been silent about any cogent reason for not considering 6.01.2017 as the date of receipt - Accordingly, matter is remanded back to Commissioner (Appeals): CESTAT
- Matter remanded: DELHI CESTAT
2022-TIOL-25-CESTAT-DEL
Rajasthan Urban Infrastructure Finance And Development Corporation Ltd Vs CCE & ST
ST - Appellant is a State Government Undertaking of Government of Rajasthan - The cenvat credit of Rs. 3,780/- is allowed with respect to input service already received from D.P. Khandelwal & Co. - So far the credit for service tax of Rs. 55,282/- received from N.K. Buildcon is concerned, matter remanded to Original Adjudicating Authority with directions - if assessee produces a certificate from N.K. Buildcon in support of this amount along with reference to Bill and Invoice No., Adjudicating Authority shall accordingly allow this credit - As regards to allegation of suppression of turnover/non-disclosure of true turnovers in Service Tax Return, there is no discrepancy in turnover disclosed to Department and the allegation in SCN is bad, as Revenue has failed to refer to Return filed by appellant, which are borne on the record of Department - Appellant has successfully reconciled their turnover figure as per Profit & Loss Account and as per taxable turnover in Service Tax Return - Accordingly, this ground is allowed and the demand of Rs. 5,50,450/- is set aside.
The appellant maintains proper books of accounts, which are subjected to audit - There may be some clerical error in maintaining their records, or as stated, the documents got misplaced due to shifting of office - Appellant is working as a nodal agency for Government Project(s) and are not a Commercial Organisation in true sense - Further, there is no allegation of suppression or any falsification of accounts - These are attributable to clerical error and lack of proper reconciliation at the time of audit, and before the court below - Extended period of limitation is not invokable - Accordingly, penalty under Section 78 of Finance Act, 1994 is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-24-CESTAT-DEL
Hetram Sharma Vs CCGST & CE
ST - The appellant is a service provider under head 'Cargo Handling Service' being output service - It appeared to Revenue that cenvat credit on vehicles or capital goods availed, has neither been received from manufacturer nor from the registered dealer - As manufacturer's invoices issued against clearance of said goods from factory, did not show the name of appellant as consignee, it appeared that the documents are not proper in terms of Rule 9 of Cenvat Credit Rules, 2004 - The SCN proposed to disallow the cenvat credit and further proposal to impose penalty - Admittedly, M/s Shivam Motors is an Authorised dealer of M/s Tata Motors Limited and thus a representative of manufacturer of motor vehicle - Appellant have produced the invoices of dealer alongwith invoice-cum-challan issued by M/s Tata Motors Limited, when they initially cleared the goods to their specific counterpart mentioning on invoice – 'internal customer' - The details of excise duty and cess as per invoice of M/s Shivam Motors is not in dispute, as have been taken notice of in SCN and also in O-I-O - Thus, there is an error on the part of Revenue in appreciating the documents, where a provider of service has received capital goods manufactured by M/s Tata Motors Limited through its authorised dealer - Accordingly, SCN is mis-conceived and no case of wrong cenvat credit taken as alleged, is made - The impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT |
