2022-TIOL-66-HC-MUM-CX
CCE Vs Larsen And Toubro Ltd
CX - Revenue is in appeal against the order of CESTAT allowing the respondent to avail the credit on goods used in erection of Captive Power Plant at two other Divisions of respondent No.1's group; allowing Modvat Credit on duty paid inputs or any goods used in the manufacture of Captive Power Plant without filing the declaration under Rule 57G and without following the procedures required under rule 57(T)(7) and without obtaining registration certificate as required under Rule 174 (4) of the CER, 1944.
Held: The registered ground plan of the respondent No.1's factory covers the area where the captive power plant has been erected - It is undisputed that the power plant is within the approved ground plan of the factory - It is further pertinent to note that the entire electricity generated is used captively within the factory for the manufacture of dutiable cement - The Commissioner (Appeals) and the CESTAT have accepted the case of the respondent No.1 Perusal of record would show that the Divisions of the respondent No.1 namely Group-II and LTCG have no independent existence and are not separate legal entity - These Divisions are functioning as a part of respondent No.1 itself - It is further pertinent to note that there is hardly any dispute by the appellants that the goods are not falling under Rule 57-Q of the Rules 1944, being capital goods - Question No.2, in view of answer to question No.1 has become purely academic - Besides, the Commissioner (Appeals) has recorded a concrete finding that the procedural lapse on the part of the respondent No.1 would not be a ground to deny the Modvat credit, which the respondent No.1 is otherwise entitled and this finding has been upheld by the CESTAT - There is no substance in the appeal filed by the Revenue, hence appeal is dismissed: High Court [para 10, 14, 15]
- Appeal dismissed: BOMBAY HIGH COURT
2022-TIOL-65-HC-KAR-CX
Simplex Infrastructures Ltd Vs JCCT
CX - Intra Court appeal is filed assailing the order of the Single Judge dated 24.5.2021 = 2021-TIOL-1273-HC-KAR-CX, whereby the writ petition filed by the petitioners/appellants has been dismissed - It was held therein that the first respondent has rightly classified the concrete mix manufactured by the petitioners at the project site as RMC and the Order-in-original does not suffer from lack of jurisdiction .
Held: Writ Court did not merely dismiss the writ petition as not maintainable but further proceeded to decide the matter on the merits of the case - Finding given by the Writ Court on the merits would warrant interference since factual aspects which are required to be analysed by the first appellate authority and the CESTAT - the statutory authorities, cannot be adjudicated under the Writ jurisdiction - It would be appropriate in the interest of justice and equity to permit the appellants to prefer an appeal before the first appellate authority i.e., Commissioner of Central Excise (Appeals) to consider the matter on merits without going into the issue of limitation subject to imposing costs and the petitioner depositing the amount as required, for preferring an appeal - There is no cavil on the proposition that RMC and concrete mix are two different commodities involving distinct process of manufacturing and that only concrete mix is eligible for the benefit of exemption notification - However, what is the distinct process of manufacture has to be clearly discussed and reasons are to be assigned for such distinct process - The adjudicating authority [Joint Commissioner] appears to have proceeded to analyse on the plant and machinery set up for its manufacture in detail, but not in the light of the notification 12/2012-CX dt. 17.03.2012 issued by the CBIC/Union Government vis-à-vis the dictum laid down by the Apex Court in Larsen and Toubro [ 2015-TIOL-236-SC-CX ] in its entirety - Having regard to the peculiar facts and circumstances of the case when the appellants have approached the Writ Court with an alternative relief of seeking permission to file an appeal before the appellate authority, any finding recorded on the merits of the case which indeed relates to facts warrants interference - In the absence of power vested with the appellate authority to condone the delay, in the peculiar facts and circumstances of the case, the ends of the justice would be met in permitting the appellants to file an appeal instead of adjudicating the matter on merits subject to conditions as aforesaid - Writ appeal is allowed in part subject to payment of costs of Rs.1,00,000/- payable by the appellants to the Chief Minister's Covid-19 Relief Fund - Order of Single Judge is set aside - Appeal to be filed before the Commissioner(A) within a period of four weeks - Appellate authority shall consider the matter on merits without raising objections on the issue of limitation - [para 14, 16 to 19]
- Appeal allowed: KARNATAKA HIGH COURT
2022-TIOL-64-HC-AHM-CUS
Green Gold Timbers Pvt Ltd Vs CC
Cus - Short point that falls for consideration is whether the customs cargo service provider (respondent No. 3) is entitled to charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive Officer or Examining Officer, as the case may be.
Held: Observations made by the Bombay High Court in paragraph-19 [ Sahaj Impex vs. Balmer Lawrie & Co. Ltd - 2021-TIOL-258-HC-MUM-CUS ] clinches the issue - The respondent No. 3, as the customs cargo service provider as defined in regulation No. 2(1)(b) of the Regulations, is not entitled in law to charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or any other authority - On account of the contractual relationship if the respondent No. 3 wants to recover any other dues from the writ-applicant, it is open for the respondent No. 3 to approach the appropriate forum for obtaining appropriate relief - Amount recovered by the respondent No. 3 towards the demurrage of the goods of the writ-applicant shall be refunded within a period of four weeks - Application allowed: High Court [para 5, 7, 9]
- Application allowed: GUJARAT HIGH COURT
2022-TIOL-63-HC-AHM-CUS
Hangzhou Huawang New Material Technology Company Ltd Vs UoI
Cus - Anti-dumping duty - Petitioner challenges the Final Findings issued by the Designated Authority respondent No. 3, vide Notification dated 28.09.2021 in respect of anti-dumping investigation concerning imports of "Décor Paper" originating in or exported from China PR - Principal ground of challenge raised is that the writ applicant has been treated as a non-cooperative exporter - That non-consideration of the data submitted by the applicant resulted in a situation whereby the Designated Authority, respondent No. 3 imposed Anti-Dumping Duty of an amount of USD 116 per metric tonne and USD 110 per metric tonne in respect of similar situated producers, while the products of the writ applicant were subjected to Anti-Dumping Duty of USD 542 per metric tonne since its case was considered similar to that of other non-cooperative exporters - It is contended that at this stage, without prejudice to its rights and contentions, the applicant would deposit Anti-Dumping Duty of USD 110 per metric tonne on consignments brought into India after the date of the above Notification and would furnish a bank guarantee of the differential amount, i.e. USD 432 per metric tonne at the time of clearing the same.
Held: Pending hearing and final disposal of the writ petition, the writ applicant shall be permitted to clear the subject products exported to India on payment of USD 110 per metric tonne and upon furnishing a bank guarantee for the differential amount of USD 432 per metric tonne - Writ applicant will make a representation along with all supporting documents/ details and thereafter, the respondent-authorities shall take a decision in relation to the Anti-Dumping Duty to be imposed in respect of the applicant's products and place the same for consideration of this Court - Application disposed of - Matter listed on 07.02.2022: High Court [para 9, 13]
- Matter listed: GUJARAT HIGH COURT
2022-TIOL-67-CESTAT-KOL
Ambica Iron And Steel Pvt Ltd Vs CCE, C & ST
CX - The assessee is in appeal against impugned order confirming demand of duty along with interest and imposition of equal amount of penalty under Section 11AC of CEA, 1944 r/w Rule 24 of CER, 2002 - Issue of 'question of fact' to be decided is whether assessee has clandestinely removed the goods on which duty demand has been made - In entire proceedings, no evidence, much less corroborative evidence, has been adduced to show that input goods has been procured to manufacture goods for clandestine clearance - No efforts have been made by investigating agencies to establish existence of any unaccounted manufacturing activity in any form or any incriminating record/document to suggest any flow back of cash - Revenue authorities have failed to discharge the burden of proving serious charge of clandestine clearance or undervaluation with cogent and clinching evidence - It has been consistently held that no demand of clandestine manufacture and clearance can be confirmed purely on assumptions and presumptions and same is required to be proved by Revenue by direct, affirmative and incontrovertible evidence - The contention of Commissioner in impugned order that it is neither feasible nor desirable to cause enquiry at all possible points concerning clearances in impugned order itself clarifies that the demand has been raised solely on the basis of assumptions and presumption and no corroborative evidence was brought out by Revenue except the so called Kacha Chithas and statement of Director - The Commissioner made a fundamental error by making assumptions only just to confirm demand on the allegation of clandestine clearance - It is a well settled position of law that serious allegation cannot be made merely on assumptions and presumptions and in the absence of detailed supporting evidence, the charge of clandestine removal cannot be upheld: CESTAT
- Appeal allowed: KOLKATA CESTAT 2022-TIOL-66-CESTAT-DEL
Jagannath Polymers Pvt Ltd Vs CCGST
ST - The issue arises is, whether the appellant is entitled to Cenvat credit and consequential refund of Service Tax paid on 27th December 2018 (during GST regime) pursuant to audit objection, under reverse charge mechanism - There is no mala fide on the part of appellant in not depositing the service tax on ocean freight under reverse charge mechanism - Even otherwise, leviability of service tax on ocean freight has been highly debatable issue, and the same travelled to Tribunal earlier also in different appeals as well as before the higher courts - Accordingly, appellant is entitled to Cenvat credit of said amount deposited under erstwhile service tax law - As Cenvat credit is not available, due to implementation of GST w.e.f. 1st July 2017, appellant is entitled to claim refund under transitional provision of Section 142(3) of CGST Act - Accordingly, adjudicating authority is directed to disburse the refund to appellant within a period of 30 days alongwith interest as per Rules: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-65-CESTAT-DEL
Venus Industries Vs Pr.CC
Cus - SCN was issued by Additional Director General of DRI, demanding duty under Section 28(4) of Customs Act, 1962 along with interest - Penalties were imposed under sections 114, 114A and 114 AA ibid in impugned order and SCN for confiscation of goods or imposition of penalties is issued under section 124 and not under Section 28 ibid - The SCN under Section 124 ibid need not be issued by 'the proper officer' - However, the basis for proposed confiscation of goods and imposition of penalties in SCN has been re-assessment of goods and demand of duty under Section 28(4) ibid - The basis for re-assessment being unsustainable in view of Canon India 2021-TIOL-123-SC-CUS-LB , proposals for confiscation of goods and imposition of penalties cannot survive either - Therefore, impugned order cannot be sustained, same is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-64-CESTAT-DEL
Ajay Agarwal And Company Vs CC
Cus - The appeal has been filed against impugned Order, i.e., confirmation of suspension of CB/CHA License in continuation of suspension order under CBLR, 2018 - The Customs Broker License of appellant has been suspended vide impugned Order under regulations 16(1) and 16(2) of CBLR, 2018 on allegation of forgery and manipulation of documents committed by appellant - Appellant was also arrested in view of allegation - Revenue has relied heavily on the content or information available on website of shipping lines, which may be erroneous and needs investigation - However, documents like proforma invoice, bill of lading and the documents like certificates of origin., fact of payment before shipment indicates that the submissions of appellant cannot be brushed aside - It's not proved that such documents are fabricated or manipulated - It is very difficult to deny the authenticity of certificates issued by a sovereign Government in absence of evidence - No allegation of fabrication of such documents is made - Revenue avers that the investigation is still on - The action initiated against appellant CHA cannot be said to be on a solid foundation - The fact that investigation is pending is enough reason to conclude that the Revenue has acted in haste - Therefore, such an action cannot be sustained under Law - Revenue could not bring in any evidence to show that the appellant Custom Broker had any fiduciary interest in alleged malpractice if any on the part of appellant - As per the averment of Revenue, further investigations are in progress - While refraining from offering any finding on the role by importer in said activity, no case has been prima facie, made against appellant so as to warrant the suspension of Licence - Respondents are directed to restore the CB licence of appellant within 10 days: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-63-CESTAT-ALL
Tehri Pulp And Paper Ltd Vs CCGST
CX - Interest on refund - In the case of Tribunal in Parle Agro (P) Ltd. 2021-TIOL-306-CESTAT-ALL , interest on pre-deposit (made during investigation) have been enhanced from 6% to 12% following the ruling of Apex Court in Sandvik Asia Ltd. 2006-TIOL-07-SC-IT - Thus, following same, impugned order is set aside - Adjudicating Authority is directed to grant interest @ 12% per annum from the date of deposit till the date of refund - Such interest should be granted within a period of two months: CESTAT
- Appeal allowed: ALLAHABAD CESTAT |
