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2022-TIOL-106-CESTAT-MUM
Worldwide Oilfield Machines Pvt Ltd Vs CCT
CX - COD - Admittedly, it is a refund application that has been rejected and by delaying the process appellant could not have gained much - However, having regard to the content of affidavit that said security guard had not attached any importance to a letter delivered to him by Speed-post, left it unattended and forgot to hand it over to concern official would itself speak volumes about negligent approach of appellant company in authorising security guard as Dak receiving staff and not becoming vigilant in cross checking whether inward entry of correspondences were effected properly - Further, a period of 359 days which is nearing a year is not a small period that requires liberal approach for condoning the delay - As has been accepted as a settled position of law, period of delay being a significant factor to weigh the same with sufficient cause is held to be a question of fact and the assessment of same is discretionary in nature - In view of the fact that negligent act of company in not assigning the responsibility of receiving at least important dak to a responsible person and leaving the same at the disposal of security guard for which 359 days delay had occurred cannot be treated as a reasonable ground to condone the delay in filing appeal - The COD application seeking condonation of delay of 359 days in filing the appeal is rejected: CESTAT
- Application rejected: MUMBAI CESTAT
2022-TIOL-105-CESTAT-MUM
Tetra Pak India Pvt Ltd Vs CCE
CX - The issue arises is, whether interest is payable on excess credit availed during relevant period and whether penalty of equal amount is imposable on appellant - Admittedly there was mistake on the part of appellant in carrying forward in their Books of Accounts the closing balance of CENVAT credit for the month of August, 2008, while switching from ERP to SAP system w.e.f 01/09/2008, in opening balance for the month of Sep., 2008 - On being pointed out, appellant immediately reversed the entire credit accepting the lapse on their part but failed to pay applicable interest on excess credit availed - Consequently, a notice was issued for recovery of interest with proposal for imposition of penalty - It is the plea of appellant that the recovery of interest from appellant is barred by limitation - Appellant reversed the credit in September, 2009 but since failed to discharge interest of same, consequently, within a period of one year, interest was demanded from appellant by issuing a notice to them - Hence, demand for interest is not barred by limitation - There is no other allegation or evidence brought on record by revenue that intentionally and purposefully the appellant had shown wrong opening balance thereby continued to enjoy excess credit for a period of time till it is pointed out by audit - Therefore, imposition of equivalent penalty under Rule 15(2) of Cenvat Credit Rules, 2004 cannot be sustained - Appellant is required to pay interest only which they have already reversed: CESTAT
- Appeal partly allowed: MUMBAI CESTAT
2022-TIOL-104-CESTAT-DEL
Synergy Steels Ltd Vs CC
Cus - The issue involved is about refund of excess basic customs duty as was deposited by him, accordingly, has good merits for this claim to have been allowed in favour of appellant - However, claim has been rejected by Original Adjudicating Authority without appreciation of relevant facts and the Appellate Authority has rejected the same on the ground of limitation - The Commissioner (Appeals) has specifically recorded that the appellant has mentioned certain unavoidable reasons which restrained him from filing the appeal in time - However, it is observed that no circumstance which prevented the timely filing of appeal was given - Commissioner (Appeals) has taken a hyper-technical approach as far as plea of limitation are concerned - He has failed to exercise the discretion provided to him under statute - Mentioning of unavoidable circumstance is opined to be a sufficient reason for not meeting the time limit in filing the appeal which is otherwise within the scope of condonable limit - Law has been settled that adjudication on merits has to be preferred instead of rejecting on technical issues as that of time, unless and until there is an apparent delay that too either with mala fide intent or negligence or lack of due diligence - None of the circumstances are apparent - Appellant has in addition impressed upon having a good case on merits - The Commissioner (Appeals) could have exercised the discretion provided to him under the statute - Matter is remanded back with the directions to Commissioner (Appeals) to adjudicate the same on merits: CESTAT
- Matter remanded: DELHI CESTAT
2022-TIOL-103-CESTAT-DEL
Ozone Plant Design Service Pvt Ltd Vs CST
ST - The appellant exported consultancy engineering services to various overseas clients including M/s. Wasco Engineering Technology for whom the services were provided to M/s. Cairn India Limited situated at Barmer in Rajasthan for and on behalf of Wasco Engineering - They had claimed refund in terms of Rule 5 of Cenvat Credit Rules, 2004 on services which the appellant claimed it had exported to overseas clients - The issue arises is with regard to rejection of refund claim on the services said to have been exported by appellant to Wasco Engineering - A perusal of agreement clearly reveals that it has been executed between appellant and Wasco Engineering and that Wasco Engineering had entered into a contract with Cairn India for the inland transportation, installation and commissioning of electrical power house in Rajasthan - If appellant failed to complete the services by stipulated date, then it would be liable to Wasco Engineering for liquidated damages - Appellant was required to perform the services for which Wasco Engineering was to make the payment to the appellant - There is no flow of consideration from Cairn India to appellant - It cannot, therefore, be doubted that the consultancy engineering services provided by appellant to Wasco Engineering would qualify as export of service and the findings to contrary recorded by Commissioner (Appeals) cannot be sustained - It was obligatory on Department to have issued a SCN to appellant before rejecting the claim, since seeking information on certain matters would not suffice - It has also been contended by appellant that it would be entitled to interest if balance amount of refund claimed by appellant is allowed - Section 83 of Finance Act makes applicable the provisions of Sections 11B and 11BB of Central Excise Act, 1944 in relation to service tax as they apply in relation to duty of excise - Thus, provisions of Sections 11B and 11BB of Central Excise Act, 1944 would also be applicable and so would the decision of Supreme Court in Ranbaxy Laboratories 2011-TIOL-105-SC-CX - The impugned order of Commissioner (Appeals) to the extent it rejects the refund of Rs. 68,02,513/- is set aside - Appellant would be entitled to refund of this amount with interest in terms of section 11BB of CEA, 1944: CESTAT
- Appeal allowed: DELHI CESTAT |
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