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2022-TIOL-82-HC-MUM-CX Hindustan Petroleum Corporation Ltd Vs UoI
CX - SVLDRS, 2019 - Application for settlement under the Scheme rejected on the ground that "the application belongs to goods of Fourth Schedule" [s.125(1)(h) of Finance Act, 2019 - persons seeking to make declarations with respect to excisable goods set forth in the Fourth Schedule to the Central Excise Act, 1944. (1 of 1944.) ] - Petitioner submits that the impugned goods is “Superior Kerosene Oil” and is not an "excisable goods" under Fourth Schedule to Central Excise Act, therefore, SVLDRS-1 declaration filed by the Petitioner be restored and the same be considered on merit, as if the said scheme is still in existence, and regularize the same by issuing necessary discharge certificate in Form SVLDRS-4 - Counsel for Respondent Revenue submits that the Petitioner did not bring to notice of the Commissioner, the communication dated 26/11/2019 from Shri Navraj Goel, OSD (CX) addressed to the Petitioner and wherein it is clarified that only products such as petroleum crude, high speed diesel, motor spirit, natural gas, aviation turbine fuel and tobacco and tobacco products were outside the purview of SVLDR Scheme; that had the said communication been brought to the notice of the Respondents, the office of the Commissioner could have confirmed the same with CBIC and taken a considered view accordingly. Held : Application was rejected without rendering a personal hearing to the Petitioner and only rejected with remarks on the ground of ineligibility i.e. "the application belongs to goods of Fourth Schedule" - Summary rejection of an application without affording any opportunity of hearing to the declarant would be in violation of the principles of natural justice - If the Respondents would have given an opportunity to the Petitioner to produce the said communication dated 26/11/2019 and to explain as to how the Superior Kerosene Oil is not an excisable goods and as to why the Superior Kerosene Oil would not fall under the Fourth schedule, then the scenario would have been different - Impugned order is in violation of principal of natural justice and thus, it deserves to be quashed and set aside - Respondents shall pass a fresh Order within eight weeks from the date of granting personal hearing - No coercive steps shall be taken against the Petitioner by the Respondents upto two weeks from the date of the communication of the said Order - Petition allowed in aforesaid terms: High Court [para 18, 20, 23, 25, 26, 27]
- Matter remanded: BOMBAY HIGH COURT
2022-TIOL-81-HC-MAD-CUS
Makwuds India Pvt Ltd Vs Pr.CC
Cus - Petitioner had imported goods in June 2019 and the period of warehousing expired in June 2020 when the country was under lockdown due to Covid pandemic - It is submitted that the respondent had issued notice to the petitioner under Section 72(1) of the Customs Act, 1962 during January 2021 and the petitioner in his representation dated 22.09.2021 requested the first respondent to extend the period of warehousing in terms of proviso to Section 61 of the Customs Act, 1962 - Petitioner submits that the Taken Over notice be quashed and the respondent be directed to hear and dispose of their application dated 22.09.2021 - Respondent submits that the representation has been made long after the notice was issued (in January 2021), therefore, the petition has no merits. Held: Petitioner may have a genuine case for extension of time on account of contributing factors of two lockdowns imposed in Tamil Nadu due to outbreak of Covid 19 Pandemic - Petition disposed of without expressing any opinion on merits by directing the first respondent to pass appropriate orders on the representation dated 22.09.2021 within a fortnight - Pending such exercise, the proposed action under the impugned notice shall be kept in abeyance: High Court [para 5, 6]
- Petition disposed of: MADRAS HIGH COURT
2022-TIOL-79-CESTAT-DEL
Instrument Transformers Vs Commissioner
CX - Appellants had filed a refund claim on the basis of Final Order of Tribunal dated 10.11.2017 - The said claim was proposed to be rejected vide SCN as being filed beyond the period of one year as mentioned in Section 11B of Central Excise Act, 1944 - There is no denial for the fact that Rs. 10,30,000/- was deposited by appellant at the stage of investigation itself - Any deposit made at the time of investigation is settled to be an amount to be called as pre-deposit under protest - This statutory provision is sufficient to hold that the adjudicating authority below has wrongly invoked Section 11B of Central Excise Act, 1944 to hold the impugned refund as barred by time - Entitlement of appellant to claim this refund got finalized after the order of Tribunal on 10 November, 2017 - The relevant date in terms of Section 11B(ec) ibid shall be the date of the final order which is 10 November, 2017 - The application for refund in question has been filed on 9 July, 2018 - Accordingly, the document submitted by appellant which apparently bears the acknowledgment of receipt by Department as well has to be considered as the date of application of refund which is 9 July, 2018 - Application is held within one year from the date of final decision in favour of appellant - Section 11B ibid has wrongly been invoked by adjudicating authority - Otherwise also the refund claim has been made well within the reasonable period - The order is accordingly, hereby set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-78-CESTAT-DEL
Ajmer Food Products Pvt Ltd Vs CCGST & CE
CX - The assessee is engaged in manufacture of biscuits - Department has alleged that assessee has contravened the provisions of Rule 7 and 9 of Cenvat Credit Rules, 2004 - Issue arises is, whether issuance of Input Service Distributors invoice by principal manufacturer, i.e., Parle Biscuits Pvt. Ltd. to its contract manufacturing unit is legal and correct when the contract manufacturing is carried out in terms of Notification No. 36/2011-C.E. (NT) - The Larger Bench of Tribunal in 2021-TIOL-294-CESTAT-DEL-LB has decided the said question in conformity in favour of assessee by holding that the Parle Biscuit Products Ltd. was justified in distributing the credit on input services attributable to excisable products on pro rata basis proportionate to the turnover of each unit between manufacturing plant of Parle Biscuits and its other manufacturing units - No reason found to differ with findings - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-77-CESTAT-DEL
Tirupati Balaji Furnaces Pvt Ltd Vs CCGST
ST - The moot issue to be adjudicated is as to whether the appellant is providing 'declared service' as defined under section 66E(e) of Finance Act, 1994- The said service became taxable w.e.f. July 01, 2012 - The period involved is from 2014 to 2015 - Some amounts have been alleged as consideration for "agreeing to obligation to refrain from an act, or to tolerate an act or a situation, or to do an act" - The perusal of nature of amount is clear to hold that these amounts are not received by appellant in lieu of rendering any service - Neither the appellant is carrying on any activity to receive compensation nor can there be any presumption for intention of other party to breach or violate the contract and suffer the losses - The only purpose is for minium compensation and of forfeiting earnest money is to ensure that the default act is not undertaken again or repeated - However, from any stretch of imagination, retention of such amount cannot be said to be an act of receiving consideration that too towards toleration of defaulting act of the other parties - Hence question of tolerating the act of default as alleged by Department, does not at all arises - Similar issue stand already decided by Tribunal itself in cases of South Eastern Coalfields Ltd. 2020-TIOL-1711-CESTAT-DEL and Steel Authority of India Ltd. 2021-TIOL-485-CESTAT-MAD , no reason found to differ from those findings - Commissioner (Appeals) has miserably failed to provide any justification to hold that impugned amounts are received as a consideration for rendering the services as that of tolerating the act of defaulting parties - Impugned order is not sustainable in eyes of law: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-76-CESTAT-MAD
Eshakti.Com Pvt Ltd Vs CGST & CE
ST - The issue relates to refund of Service Tax paid on input services - Most of the services which are held to be not eligible for refund for the reason of them being not used after production stage were such that, as explained by appellant, used in places located beyond the factory or place of manufacture, like tailoring units, corporate office, clearing and forwarding services, advertisement, legal and accounting services which were obviously not located within factory premises - Thus, the reasons attributed by Adjudicating Authority cannot be sustained since there is no doubt that these services were not used in factory of production but in any other place or premises of production or manufacture of said goods for their export - Appellant satisfies the conditions of Notification No. 41/2012-S.T., as substituted vide Notification No. 01/2016-S.T. and therefore, the denial cannot be sustained. The another reason attributed for rejection of refund from impugned order in respect of courier bills, is for want of corelation of such bills with the exports/shipping bills - Appellant had submitted the Chartered Accountant Certificate which had specifically corelated the bills with relevant exports/shipping bills, which aspect has not at all been considered by lower authorities - Matter is restored to the file of Adjudicating Authority, who shall cross-verify with the help of appellant as regards corelation is concerned and then pass an appropriate order in accordance with law - The last disallowance is rejection of claim of refund of Swachh Bharat Cess and Krishi Kalyan Cess - It is the settled position of law that these cesses form part of Service Tax paid on various input services used in or in relation to the export of goods - This issue is also sent back to the file of Adjudicating Authority: CESTAT
- Appeals partly allowed: CHENNAI CESTAT
2022-TIOL-75-CESTAT-KOL
Subir Modak Vs CC
Cus - The goods were seized within India at Assam-Mizoram border - The ground for seizure and subsequent confiscation is that the owners/occupants were not able to prove the licit import of Betel nuts which DRI suspected to be of foreign origin - The GST invoices and E-way bills produced by appellants were found to be not satisfactory - There is nothing on record to show that the betel nuts were notified under Section 123 of Customs Act, 1962 - Therefore, the appellants had no responsibility whatsoever to prove that the seized betel nuts were not smuggled even if they were of foreign origin - It is for the Revenue to establish that the goods, in question, were smuggled - From the definitions, it is clear that even if the goods are of foreign origin, if they have been imported and cleared for home consumption, they cease to be imported goods thereafter and the importer ceases to be the importer - Therefore, no duty can be assessed on such goods under Section 17 of Customs Act, 1962 - The burden of proof shifts to the importer or the owner of goods only when such goods are notified under Section 123 ibid and betel nuts were not notified - Unless Revenue can establish that the betel nuts have been imported illegally into India, they cannot be confiscated - Therefore, the impugned order cannot be sustained - The impugned order is set aside: CESTAT
- Appeals allowed: KOLKATA CESTAT |
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