2022-TIOL-46-CESTAT-CHD
SS Constructions Vs CCE & ST
ST - The appellants are engaged in providing construction services - During audit, it was noticed that they had not discharged service tax on consideration received by them for construction services - SCN was issued to appellant proposing demand of Service Tax alongwith interest and also for imposing penalty - The main contention put forward by appellant is that the demand made under Commercial or Industrial Construction Services cannot sustain as the construction services rendered by appellant are involving both supply of material as well as rendering of service - Said issue was analysed by Tribunal in case of India Guniting Corporation 2021-TIOL-100-CESTAT-DEL - The demand of service tax under Commercial or Industrial Construction Services cannot sustain for contracts which are composite in nature and involve both supply of material and rendering of service - Accordingly, demand cannot sustain on merits - As regards to limitation, the question as to whether service tax is leviable on Work Contract Services was under litigation and travelled up to Supreme Court which was settled by decision rendered in Larsen & Toubro Ltd. 2015-TIOL-187-SC-ST - Appellant has made out a case on the ground of limitation also - Demand of service tax cannot sustain, impugned order is set aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
2022-TIOL-45-CESTAT-AHM
Nayara Energy Ltd Vs CCE & ST
CX - Appellant owns a refinery and engaged in manufacture of Motor Spirit (MS) and High Speed Diesel (HSD) - They supplied standard MS and HSD to various Oil Marketing Companies (OMCs) - A SCN was issued alleging that appellant was obligated to collect duty from OMCs on quantity cleared by OMCs as branded fuel but purchased as per the indent as intended for sale without brand name - It was also alleged that appellant continued to clear unbranded fuel to OMCs being fully aware that OMCs were converting unbranded fuel to branded fuel, solely with an intention to evade payment of duty and in contravention of Central Excise Rules - Appellant have vehemently argued that since the differential duty has been paid before issuance of SCN along with interest, case is required to be closed in terms of Section 11A(2B) of CEA, 1944 prevalent at the relevant time - Adjudicating Authority has quoted Section 11A(1)(2) of CEA, 1944 which is duly amended as per the amendment made by FA, 2011 - However, period involved is March 2008 to January 2010 therefore, un-amended provision shall be applicable - Unamended sub-Section 11(2B) shall apply for waiver of SCN - Therefore, there is fundamental error on the part of Adjudicating Authority for considering wrong provision i.e. amended provision, which is effective by enactment of FA, 2011 - Appellant have paid entire differential excise duty along with interest - There is only minor difference in interest amount as per Revenue even that is also in dispute as regard the correct calculation thereof - Therefore, matter is remanded to Adjudicating Authority for reconsideration and for passing de-novo order - As regards the appellants Shri R.K. Jain and Shri Nitin Angre, as regards the goods being sold as branded by OMCs, appellant had no knowledge - Moreover, there is no proposal of confiscation of goods therefore, penalties imposed under Rule 26 of CER, 2002 upon Shri R.K. Jain and Shri Nitin Angre are clearly not sustainable - Hence, penalties are set-aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2022-TIOL-44-CESTAT-KOL
Shyam Steel Industries Ltd Vs CCGST & CE
CX - The appellant is a manufacturer of Iron and Steel articles operating under Cenvat Credit Scheme using steam coal as an input - The crux of issue relates to admissibility of Cenvat credit of CVD on imported coal cleared at the rate of 1%/2% under Sl. No. 123 of Customs Notfn 12/2012-Cus as amended by Customs Notfn 12/2013-Cus - There is no restriction in these notifications unlike Sl. No. 67 of Central Excise Notfn 12/2012 in so far as availment of Cenvat credit on coal is concerned - The credit of CVD is available under Rule 3(1)(vii) of CCR and the proviso to Rule 3(1)(i) restricting credit in case of coal cleared under Excise Notfn 12/2012 cannot impliedly be read into when the rate of CVD has not been borrowed from excise notification but has generally applied rate on its own - There is no room for any intendment in taxing statutes which deserves a strict interpretation - Even otherwise generally applied rate of CVD and the concessional excise duty rate on domestically manufactured goods were not uniform and in any event, expression "equivalent" appearing in Rule 3(1)(vii) of CCR for quantification of CVD could not be restricted ignoring the tariff rate of excise duty of 6% on domestically manufactured coal - Said issue is squarely covered by decision of Tribunal in case of M/s. Jaypee Sidhi Cement Plant 2020-TIOL-875-CESTAT-DEL - Impugned order is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-43-CESTAT-DEL
Pushpak Lakhani Vs CC
Cus - Appellant is in appeal against impugned order, by which the request for provisional release of seized goods covered under SCN has been rejected - A search had been carried out at residential premises of employees of M/s. Johnson Watch Co. Pvt. Ltd. and also at its various showrooms and residence of its Directors - While 95 high-end wrist watches were recovered from appellant - About 6233 high-end wrist watches were recovered from M/s. Johnson Watch Co. Pvt. Ltd., which were released merely on the basis of an undertaking given by Directors even without any application having been moved by M/s. Johnson Watch Co. Pvt. Ltd. for provisional released of seized goods - It is only in the matter of appellant that relates to 95 high-end wrist watches and Rs. 61 Lakhs in cash that an order has that not been passed by department for release of watches - The Principal Commissioner also committed an error in rejecting application filed by appellant for provisional release of goods by holding that the seized goods were "prohibited goods" liable for confiscation under section 110(d) of Customs Act - Watches of all other co-noticee were released by Department and this issue has been raised by Department only in the case of appellant - Even while adjudicating the SCN issued to M/s. Johnson Watch Co. Pvt. Ltd., only a fine has been imposed under section 125(1) of Customs Act and the goods have not been confiscated - The Delhi High Court had also in Its My Name 2020-TIOL-991-HC-DEL-CUS held that both prohibited and non- prohibited goods can be released under section 110A of Customs Act - The view taken by Commissioner for rejecting application filed by appellant for provisional release of goods for the reason that a discretion is vested in authority and since the subsequent SCN was adjudicated upon and appellant was held liable to penalty, also suffers from an error - It is directed that subject to appellant depositing the remaining balance amount of duty proposed in SCN within a period of 30 days from the date of this order, goods and cash seized from appellant should be released within 30 days: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-42-CESTAT-DEL
Shailendra Kashyap Vs Air Customs Superintendent
Cus - Appeal has been filed before Tribunal under Section 129A of Customs Act, 1962 to assail impugned order, dismissing the appeal filed by appellant - During baggage search of appellant, some yellow material was found in baggage - A preliminary objection has been raised by Department that this appeal would not be maintainable before Tribunal in view of proviso contained to Section 129 A (1) of Customs Act - The proviso clearly stipulates that no appeal shall lie to Tribunal and Tribunal shall not have jurisdiction to decide any appeal in respect of an order referred to in Clause (b) of Section 129 A (1) if such order relates to goods imported or exported as baggage - In fact, a perusal of Section 129DD indicates that a revision may lie before Central Government - Thus, as Tribunal does not have jurisdiction to decide the appeal, it stands dismissed: CESTAT
- Appeal dismissed: DELHI CESTAT |
