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2022-TIOL-119-CESTAT-DEL
Agrawal Metal Works Pvt Ltd Vs CCGST
CX - The main appellant M/s. Agrawal Metals are engaged in manufacture of non-ferrous flat roll products - A SCN was served upon appellants proposing demand from main noticee M/s. Agrawal Metals alongwith interest and also proposing penalties against remaining appellants - Revenue had made out a case that Shri Amit Gupta has admitted about creating fictitious firms to issue Cenvatable invoices without accompanying the goods - Hence, no question arises for M/s. Agrawal Metal Works to have receive goods mentioned in three invoices - Hence, the Agrawal Metals, recipient of invoices being manufacturers are alleged to be not entitled to take Cenvat Credit - The findings in the order under challenge are held to be nothing but presumptive - There is observed absolute ignorance of statement in cross-examination of alleged kin-pin Shri Amit Gupta and the transporter Shri Sanjeev Maggu - There is no other relevant evidence to prove the Departments case - Rather there is statement of Shri D.P. Sharma, Senior Manager of M/s. Aggarwal Metals Pvt. Ltd. as was recorded on 24.05.2017 which is relevant w.r.t. impugned three invoices of M/s. V.K. Enterprises - Law has been settled that mere statements are not sufficient to prove clandestine removal - Admittedly, there is no other evidence on record so as to relate to clandestine activities of appellant - The order under challenge is accordingly, held to be not sustainable, same is set aside: CESTAT
- Appeals allowed: DELHI CESTAT
2022-TIOL-118-CESTAT-MUM
Media Edge Cia India Pvt Ltd Vs CST
ST - B y invoking extended period of limitation, appellant has been issued SCN as to why the amount including Education Cess and Higher & Secondary Education Cess wrongly availed as Cenvat Credit should not be disallowed and recovered under Rule 14 of CCR, 2004 r/w proviso to sub-section (1) of Section 73 of said Act by invoking extended period of limitation - The issue is squarely covered by decision of Tribunal in the case of Kinetic Advertising (I) Pvt. Ltd. , wherein the Tribunal relying on the decision in Manipal Advertising Services Pvt. Ltd. 2011-TIOL-273-CESTAT-BANG held that demand to this extent cannot be sustained - Appellant has disputed the demand to the extent of Rs.88,00,000/- and has submitted summary of credit utilization - However, on perusal of ST-3 Returns enclosed, appellant has in column of 'Cenvat Credit Taken' indicated the credit taken 'nil' throughout - Although in column of 'Credit utilised', they have indicated utilization of credit in each of the Return for every month - Undisputedly, SCN has been issued to them for denial of credit taken, whereas the appellant has summarized the utilization of the credit as not the credit taken - They have not substantiated their claim by ST-3 Returns to the effect that they have not taken credit by producing the relevant cenvat credit register - Impugned order cannot be faulted with as appellant has failed to produce the cenvat credit register before concerned adjudicating authority - However, issue becomes irrelevant because the entire demand which has been made is based on what has been already stated - As the demand of service tax is being set aside, so is the demand of interest and penalty imposed on appellant - Impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-117-CESTAT-MUM
Vinay Agarwal Vs CC
Cus - The issue that arises for consideration is, whether the Additional Director General, DRI had jurisdiction to issue the notice - This precise issue was examined by Supreme Court in Canon India 2021-TIOL-123-SC-CUS-LB - The Supreme Court observed that the nature of power to recover duty, not paid or short paid after the goods have been assessed and cleared for import is a power that has been conferred to review the earlier decision for assessment - This power which has been conferred under section 28 of Customs Act on the proper officer, must necessarily mean the proper officer who, in the first instance, assessed and cleared the goods - Thus, the Additional Director General, DRI did not have the jurisdiction to issue the SCN - Appellant, however placed reliance upon decision of Tribunal in Bakeman's Home Products Pvt. Ltd. and contended that the proposal for confiscation of goods and imposition of penalty cannot be segregated from the duty demand and therefore, if the duty demand fails as the SCN was not issued by proper officer, the proceedings for confiscation and penalty cannot survive - This submission advanced by appellant deserves acceptance - Thus, the impugned order cannot be sustained and is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
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