2022-TIOL-51-CESTAT-KOL
Shree Creations Pvt Ltd Vs CC
Cus - Both the assessee and Revenue are in appeal against same impugned order whereby bills of entry filed by assessee which were provisionally assessed under Section 18 (2) of Customs Act, 1962 were ordered to be finalized at the value declared in Bills of Entry but the goods were confiscated under Section 111 (m) and were allowed redemption under Section 125 on payment of redemption fine of Rs. 90 lakhs - Penalties were also imposed under Section 112 (a) and 114AA upon the importer - As regards to valuation and assessment of duty, valuation has to be done as per Section 14 of Customs Act, 1962, i.e. as per the transaction value and if there is reason to doubt the truth and accuracy of transaction value the reason has to be recorded and after rejecting the transaction value, correct value should be determined as per Customs Valuation Rules - There is not even a suggestion in SCN that transaction value of imported consignment was not correct or there was relationship between buyer and seller or that there was any additional consideration for sale or value was manipulated in any other manner - Therefore, Commissioner was correct in accepting the value declared by importer and ordering finalization of provisional assessment accordingly.
As regards to confiscation of goods under Section 111 (m) of Customs Act, 1962 and imposition of redemption fine, since there was no mis-declaration of value as has been correctly found by Commissioner, confiscation of goods cannot be sustained on another ground that the description of goods did not match with that in the test report - The description of goods in test report was only an elaboration of description already given in bills of entry and nothing else - This cannot be called a mis-declaration of description of goods - Therefore, confiscation of goods under Section 111 (m) and imposition of penalty under Section 125 cannot be sustained.
As regards to imposition of penalty under Section 112(a), since confiscation cannot be sustained neither can be the penalty under Section 112 (a) - With regard to penalty under Section 114AA of Customs Act, no misdeclaration of goods or value has been established and for this reason penalty under Section 114AA cannot be sustained - The impugned order is set aside: CESTAT
- Assessee's appeal allowed: KOLKATA CESTAT
2022-TIOL-50-CESTAT-BANG
Cisco Systems Pvt Ltd Vs CC
Cus - The appellant is engaged in import of goods from their related entities and sale thereof - The imports effected by appellants were subjected to provisional assessment and were referred to Special Valuation Branch (SVB) - The SVB held that the appellant and Cisco Systems Management, Netherland are related in terms of Rule 2(2) of Customs Valuation (Determination of Prices of the Imported Goods) Rules, 1988 - On a request, Assistant Commissioner has finalised the assessment as per SVB order - It was directed that the appellants pay differential duty in respect of certain Bills of Entry along with interest under Section 18(3) of Customs Act, 1962 and that duty wherever paid in excess was held to be refundable - Original authority appropriated the demand of interest in respect of refund consequential to order impugned - Revenue has also filed an appeal on the ground that interest was not charged or confirmed in impugned order - As far as demand of interest is concerned, Tribunal do not entertain any doubt whatsoever on non-applicability of interest for provisional assessments undertaken before amendment in Section 18 in 2006 - Therefore, impugned orders do not survive and are liable to be set aside - Moreover, approach of Commissioner (Appeals) is in violation of principle of judicial discipline - As no stay was granted as on that date against the order of Tribunal, Commissioner (A) was bound by decision of the Tribunal - Coming to the issue of applicability of bar of unjust enrichment in respect of provisional assessments before 2006, Karnataka High Court in Mangalore Refinery & Petrochemicals Ltd. 2015-TIOL-675-HC-KAR-CUS have set the matter to rest holding that bar of unjust enrichment is not applicable to the cases of provisional assessments before the amendment in 2006 - In respect of averments on the issue of refund of duty paid on import of spare parts before 2003, appellant has categorically submitted that there was no case where they have imported at a price higher than the price at which the independent /unrelated entities have imported the spare parts - Therefore, no basis found in conclusions arrived at in O-I-O and O-I-A - No interest can be charged on finalisation of provisional assessments initiated before 2006 for the reason that there was no charging Section during relevant period notwithstanding the fact that such assessments are finalised after amendment - Impugned orders do not survive on merits and thus are set aside: CESTAT
- Assessee's appeals allowed/Revenue's appeal dismissed: BANGALORE CESTAT
2022-TIOL-49-CESTAT-AHM
CCE & ST Vs Essar Bulk Terminal Ltd
ST - The issue arises is that when GUJARAT MARITIME BOARD (GMB) charged wharfage charges at the rate of 20% of notified rate to assessee (EBTL) and the same was charged on actual by M/s. EBTL to M/S. ESSAR STEEL INDIA LTD. (ESTL), the EBTL on the transaction between EBTL and ESTL required to charge service tax on 100% of notified rate including 80% rebate given by GMB to EBTL or on the 20% of notified rate on which the service tax was discharged - The service transaction is between EBTL & ESTL whereas, revenue has heavily relied on agreement between GMB and EBTL - Since there is no such conditions, which exists between GMB and EBTL, exists in transaction between EBTL & ESTL, case of assessee is on a better footing as compared to the judgment given in GUJARAT MARITME BOARD 2013-TIOL-2171-CESTAT-AHM - Appellant has discharged service tax correctly on 20% of wharfage charges charged to M/s. ESTL - As regard the demand being barred by limitation, as per submission made by assessee which is not under dispute that they have been regularly filing ST-3 returns wherein, payment of service tax on discounted amount was always reflected - The only ground for alleging suppression as reflected in notice is that the assessee had not furnished copy of agreement and entered into agreement with GMB allowing discounted rates to them with an intent to evade service tax - Copy of agreement entered into by assessee with GMB along with all its enclosures was submitted to department and clause 22 which is subject matter of dispute was very much in the knowledge of department as similarly short levy in GMB was pointed out earlier - Invocation of longer period for demand is absolutely incorrect and not sustainable - Demand for extended period is not sustainable on time bar also - Since the matter is decided on merit as well as on limitation, Tribunal is not going into other issues raised by assessee - Impugned order does not suffer from any infirmity and therefore, is sustained: CESTAT
- Appeal dismissed: AHMEDABAD CESTAT
2022-TIOL-48-CESTAT-MUM
HDFC Life Standard Life Insurance Company Ltd Vs CST
ST - The appellants are engaged in providing services of life insurance - The demand of service tax is on account of recovery of 3 amounts; recovery of agency processing charges, Back dating charges and Look-in charges - The demand in respect of same charges for earlier period which was confirmed by adjudicating authority was considered and has been remanded back, by Tribunal as per order in 2013-TIOL-1296-CESTAT-MUM - From the analysis of definitions of Life Insurance Services as per Section 65 (105) (zx) and various clarifications issued by Board, it is quite evident that the charges which are towards risk cover and managing investment for policy holders are part of value of such taxable services provided by appellant - From the nature of charges, Tribunal is not in position to find any nexus between these charges and life insurance services provided by appellant to policy holders or to any other person as reinsurer - In absence of any such nexus, such charges cannot be added to value of taxable services provided by appellant under category of life insurance services - The argument advanced by revenue to effect that Section 67 provides for determining taxable value on the basis of gross amount received for providing taxable service, for inclusion of these charges in taxable value cannot be acceded to, in view of Supreme Court decision in case of Bhayana Builders 2018-TIOL-66-SC-ST - Impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-47-CESTAT-AHM
Amit Industries Vs CCE & ST
CX - The excess stock found during the physical stock taking - No objection was raised at the time of drawing panchnama by Shri D K Shrivastava however, in the panchnama he submitted that the excess stock accumulated over a period of time therefore, there is no dispute about the excess stock found - It is admitted fact that the excess stock was not accounted for by appellant therefore, goods are liable for confiscation - However, since there is no attempt to clear the goods clandestinely and the offence at the most is only of non accounting of finished goods, the lenient view can be taken - Accordingly, redemption fine is reduced to Rs.1 Lacs - However, penalty imposed on appellant factory i.e. Rs.10,000/- is reasonable hence the same is upheld - As there is no mala fide intention or there is no attempt to clear excess stock clandestinely, co-appellant Shri D K Shrivastava cannot be imposed with any penalty accordingly, penalty imposed on Shri D K Shrivastava is set aside: CESTAT
- Appeals partly allowed: AHMEDABAD CESTAT |
