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2022-TIOL-90-CESTAT-DEL Hans Travels Vs CC, CGST & CE
ST - Appellant is a tour operator agency - A SCN was served upon him proposing recovery of service tax for the amount received on account of ticket booking, bus contract booking and luggage booking - The Tribunal dropped the demand with respect to amount of luggage booking - Demand pertaining to ticket booking and bus contract booking, as was raised vide impugned SCN was directed to be reworked based upon the benefit of Notification No. 6/2005-S.T. - Grievance of appellant that the demand which can be confirmed after giving the benefit of Notification remains only of Rs. 59,044/- - Also that the adjudicating authority though has reduced the earlier demand confirmed but has not expressly given the reason to how the amount of Rs. 3,62,293/- is still the liability of appellant even after giving the benefit of said Notfn - These observations are sufficient to hold that it is difficult to still appreciate as to whether the proper benefit of exemption notfn has been extended in favour of appellant - It is submitted to be calculated in terms of benefit of Notfn with respect to demand on bus contract booking amount and amount of booking commission, but the reasoning and basis thereof is observed to be absolutely missing - Accordingly, matter is remanded again with the specific directions to adjudicating authority to give specific reason for arriving at the calculation about the demand confirmed against appellant - Adjudicating authority will decide the matter within 2 months of receiving the present order of remand: CESTAT
- Matter remanded: DELHI CESTAT
2022-TIOL-89-CESTAT-BANG
Tyre Mark Vs CC
Cus - The appellant had imported "Hankook off the road mining tyres 31 x 10.5 R 15" and classified the same under Tariff Item 4011 80 80 of Customs Tariff Act, 1975 whereas the Department seeks to classify the same under Tariff Item 4011 10 10 ibid - The crux of Department's argument is that the impugned tyres are not a kind used in mining and are usable in on-road conditions - From the clarification issued by technical service team of M/s Hankook, it appears that the impugned tyres are not normal tyres - This fact is also not disputed by Department - It is the contention of Department that the tyres are claimed to be used in in vehicles like Gorkha Force Thar which are vehicles for on-road use only and moreover vehicles used for racing are also classified under motor vehicles and therefore, the impugned tyres are rightly classifiable under Tariff Item 4011 10 10 ibid - Only because the tyres can be fitted in to the vehicles like Force Gorkha or Thar, they cannot be classified as tyres for normal vehicles for on-road use - Department's reliance on a clarification given by a competitor and that too on an e-mail cannot be considered as clinching evidence to rely upon - It is not the case of Department that normal on-road vehicles are supplied with impugned tyres by original equipment manufacturers - Appellant submits that though the vehicles can also be used for roading purposes it would be very bad fuel efficient while creating higher noise levels - Therefore, nobody uses them normally for roading - Department opines that the impugned tyres are not of a kind used in vehicles which are used for mining - The alternate claim made by appellants could hold good - The impugned tyres are required to be considered as special purpose tyres for off-road purposes - For this reason, impugned order is not maintainable, same is set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT
2022-TIOL-88-CESTAT-AHM
Lanxess India Pvt Ltd Vs CCE & ST
CX - Appellant clear inputs to the job worker and Duty was paid on this entire quantity although the same contained water base also - The pure material of chemical in such a total quantity was approximately 47% only - As per agreement, 86.28% of input quantities sent was returned within 180 days to appellant - The remaining quantity was waste material which mainly consists of contaminated water - The CERA audit conducted by Department raised an objection regarding receipt of such quantities of input from job workers after expiry of 180 days - As per audit report, it was observed that the appellant has failed to reverse the amount for inputs which were not received within 180 days - Thereafter, SCN was issued to appellant proposing to deny and recover Cenvat credit along with interest and penalty - Admittedly, appellant has sent the inputs chemicals for job work in water base - The entire processed goods have been returned within 180 days - The remaining quantity was subsequently returned back though after 180 days but the same was in form of wastage - In fact, job worker is not required to return the wastage material which is predominantly the contaminated water therefore, it cannot be said that the appellant has not received back processed goods within 180 days - Therefore, demand on this ground is not sustainable - Moreover, even if it is assumed that subsequently received material after 180 days is part of processed goods even then only due to delay in receipt Cenvat credit cannot be denied as the appellant was entitled for Cenvat credit as and when the input / processed goods received after 180 days therefore on both the count the cenvat credit could not have been denied or demanded by Revenue - There is a short receipt of 2% material - Since the appellant has sent their chemicals in water base during the process it is obvious that a certain quantity of contaminated water shall be wasted therefore, same is not capable of being returned by job worker - It is settled that any wastage arising during the course of manufacture, cenvat credit attributed to said wastage cannot be denied - On limitation, since the appellant has followed the procedure as prescribed in Rule 4(5)(a) for movement of goods for job work, no suppression of fact can be attributed to appellant - Therefore, demand is not sustainable on limitation also: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-87-CESTAT-AHM
KEC International Ltd Vs CCE & ST
CX - Demand involved is for year 2008 whereas SCN has been issued in June 2013 therefore, entire demand is under extended period - The SCN as well as O-I-O alleged that the appellant has not disclosed facts to the department that they have procured duty free material from M/s Sterlite Industries against invalidation of advance licence - On this basis the larger period was invoked - The observation made by Adjudicating Authority is absolutely wrong on the basis of records - Appellant has intimated to department vide letter for procurement of material from M/s Sterlite Industries against invalidation of advance authorization - Along with letter, appellant had also submitted an application under Central Excise Rules, 2001 - The copy of advance licence as well as general bond was submitted - It is crystal clear that appellant had declared that they are going to procure raw material under advance authorization from M/s Sterlite Industries - The letter has been acknowledged by department on 24.11.2008 - Further, appellant vide letter 19.01.2010 also clarifies that there is no violation of Para 4.16 of handbook procedure - Appellant have disclosed all information as regard procurement of material under advance authorization from M/s Sterlite Industries - Therefore, there is no suppression of facts or Misdeclaration on the part of appellant - Accordingly, demand is clearly hit by limitations - Since the entire demand is under extended period, same is not sustainable on limitation: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
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