|
2022-TIOL-86-CESTAT-KOL MK Saha And Company Vs CC
Cus - The appellant is a Customs Broker - In the relevant period, the Appellant filed four BoE for export of goods by an exporter & the shipping bills were provisionally assessed by the Intelligence Officer - Later, the DRI sent a letter to the Commissioner of Customs (Port) Custom House, Kolkata, requesting to issue necessary instructions for 100% examination of the consignments in the presence of DRI - The DRI investigated the export consignment of the exporter M/s Skivvis Textiles which had been described as Vegan Leather Shoe Sole Components - The DRI found the goods were cut pieces of scrap leather of very low value - The goods which were already provisionally assessed after drawing samples for testing by the proper officer and which were allowed to be shipped were again stopped and examined by the officers of DRI without waiting for the outcome of the test reports or other enquiries and finalization of the Shipping Bills by the proper officer - After investigation, the DRI concluded that the goods were mis-declared and over-valued, with the Panchnama stating that the goods were very inferior in quality and over-valued - The Revenue opined that the clearance work of the goods and filing of shipping bills was handled by an employee of the another Customs broker firm, using the broker's license of the appellant-company - The employee in question also admitted to having clearing other consignments in a similar fashion - The proprietor of the appellant-company admitted that this employee had joined only one month prior to the incident and did not have a G Card in his name - It was claimed that this employee only worked to bring in business for the appellant-company and was paid a commission in return and that this employee had not processed the clearance of the goods through Customs - Subsequently, an SCN was issued to the assessee proposing to revoke its license and forfeit the security deposit - On adjudication, the proposals in the SCN were sustained.
Held - The allegations of the appellant having contravened the provisions of Regulations 10(b), 10(d), 10(e) and 10(n) of CBLR 2013 are unwarranted - Adjudication order revoking appellant's lince and forfeiting security deposit, stands quashed: CESTAT
+ There is no reason to doubt the cross-examination and hold that Shri Babul Dey did the export work of the disputed consignment with the Customs because if he was an employee of another Customs Broker, his G-card would say so - In this case, besides the paper work, samples have also been drawn at the time of provisional assessment - If Shri Dey was unauthorisedly representing the exporter in the Shipping Bills filed in the name of the appellant Customs Broker, the Customs officers would not have entertained him. It would not be unreasonable to assume that if the shipping bill is filed by Customs Broker X and the person representing the Custom Broker has a G-Card of Customs Broker Y, officers would not entertain or deal through him because he would have no locus standi - We, therefore, find that balancing the evidence available on both sides, we find in favour of the Customs Broker and hold that it has not been established that the Customs broker has violated Regulation 10(b) of CBLR, 2018: CESTAT
+ there is nothing on record to establish what the appellant has or has not advised its clients - Even if the goods were stuffed in the presence of the Customs Broker, the goods were examined and samples were also drawn by the Customs officers who, thereafter, allowed provisional export of the goods - Evidently, after whatever, enquiries, tests, etc. which may be necessary are conducted, the assessments will have to be finalized - After the provisional assessment was done which appears to have not been appealed against and hence still valid, DRI intervened and examined the same goods again and came to a different conclusion that the goods were heavily overvalued with a fraudulent intent to claim ineligible drawback. Simply because DRI came to a different conclusion in an export which was already provisionally assessed, it does not mean that the exporter had committed a fraud and that the appellant Customs Broker has colluded with the exporter in such a fraud. At any rate, valuation of the goods is to be done by the exporter (self assessment) or proper officer (re-assessment) - We do not find anything remotely in the Customs Act, Rules and Regulations which gives the Customs Broker any power with respect to valuation of imported or export goods - We, therefore, find that there is no evidence to establish that appellant has violated Regulation 10(d): CESTAT
+ it is seen that the identity and functioning of the exporter was not in doubt and in fact, the officers have recorded the statement of the exporter. It has also been alleged in the SCN and the impugned order that the Customs Broker was present at the time of stuffing of the container at the exporter's godown - The only allegation is that there is a discrepancy between the statement of the appellant Customs Broker (who said that the KYC and export documents were given to him by the exporter at his office) and the statement of the exporter (who said that the Customs Broker, i.e., the appellant, was arranged through some other persons) - We do not find anything in Regulation 10(n) that mandates how the documents should be handed over by the exporter/importer to the client. All that is required is that the KYC documents must be received and verified to ensure the identity of the client which is not in doubt even according to the SCN itself - Therefore, the charge of violation of Regulation 10(n) against the appellant Customs Broker cannot sustain: CESTAT
- Appeals allowed: KOLKATA CESTAT
2022-TIOL-85-CESTAT-CHD
SBI Cards And Payments Services Pvt Ltd Vs CST
ST - Assessee is in appeal against impugned order for period April 2009 to March 2012 confirming demand for reversal of cenvat credit on the amount written off as bad debts and on advertisement & sales promotion services - Admittedly, the services on which assessee has taken cenvat credit are 'input services' in terms of Rule 2(l) of CCR, 2004 and is a provider of output service - Therefore, in terms of Rule 3 of CCR, 2004, assessee is entitled to avail cenvat credit on input services in question - Further, there is no such provision in CCR, 2004 or in FA, 1994 for reversal of cenvat credit for services provided for which no consideration for service provided is received by an assessee - Therefore, assessee has correctly availed cenvat credit on input services although the amount of non-recoverable taxable service has been written off by assessee for the period prior to 01.04.2011 - The assessee has admitted at bar that they have paid service tax on all taxable services provided by them after 01.04.2011 at the time of provision of service - Therefore, if it is so, assessee cannot be liable for reversal of cenvat credit for services provided after 01.04.2011 on which they had paid service tax - With regard to denial of cenvat credit on invoices issued by IRCTC, description of service provided by IRCTC is SBI co-brand registered as "SBI" - The said invoice does not prescribe that IRCTC has provided any 'catering service' to assessee - In fact, lower authority has fell in error holding that IRCTC is providing only 'catering service' and denial of cenvat credit is only on the basis of assumption and presumption - Assessee is entitled for cenvat credit on services provided by IRCTC as advertisement services - No merit found in impugned order, therefore, same is set aside: CESTAT
- Appeals allowed: CHANDIGARH CESTAT
2022-TIOL-84-CESTAT-MUM
Zydus Takeda Healthcare Pvt Ltd Vs CCE
CX - The issue involved is, whether the appellant is entitled to cash refund of accumulated Cenvat Credit in relation to clearing and forwarding agent services for the period October, 2008 and December, 2008 - In their own case in similar circumstances, this Tribunal after analysis held that credit of service tax paid on clearing and forwarding agent service are admissible - Following the said precedent, Cenvat credit availed on clearing and forwarding agent service is admissible to appellant and consequently the refund of accumulated Cenvat credit on this service on export of finished goods is also admissible to appellant: CESTAT
- Appeals allowed: MUMBAI CESTAT
2022-TIOL-83-CESTAT-AHM
Hindalco Industries Ltd Vs CCE & ST
CX - The refund claim of pre-deposit made as per direction of Commissioner (A) in the appeal pending before him was rejected by department on the ground of time bar in as much as the appellant has filed the refund claim on 25.05.2018 after the final order was passed by Commissioner (A) on 24.04.2009 - Amount paid by appellant is clearly a pre-deposit as per the stay order passed by Commissioner (A) dated 20.06.2008 - From the Board Circulars 275/37/2K-CX.8A and 984/08/2014- CX which are binding on the departmental Officer, the time limit of one year prescribed under Section 11B particularly in respect of pre-deposit which is by an order of appellate forum, shall not apply - Moreover, there is a reason for filing appeal on 25.05.2018 by the appellant that the department's appeal before the CESTAT was pending and appellant had filed the refund claim immediately after the Tribunal's order dismissing the department's appeal on 26.04.2018 for this reason also the refund cannot be rejected on time bar - Accordingly, the impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
|
