2022-TIOL-269-HC-MUM-CX
Bombay Dyeing And Manufacturing Company Ltd Vs DC of CGST & CX
CX - The SCN has not been adjudicated upon for about 16 years - In the affidavit-in-reply, Respondent does not allege that the Petitioner was informed about SCN having been kept in call book as sought to be alleged in affidavit-in-reply filed by Respondent - If Respondent would have informed the Petitioner about said SCN in year 2005 itself, having been kept in call book, Petitioner would have immediately applied for appropriate reliefs by filing appropriate proceedings - It is not expected from petitioner to preserve the evidence/record intact for such a long period to be produced at the time of hearing of SCN - The Respondent having issued SCN, it is their duty to take said SCN to its logical conclusion by adjudicating upon said SCN within a reasonable period of time - In view of gross delay on the part of Respondent, Petitioner cannot be made to suffer - The law laid down in case of Parle International Limited 2020-TIOL-2032-HC-MUM-CX applies to the facts of this case - Hearing of SCN belatedly is in violation of natural justice - The impugned SCN is quashed and set aside: HC
- Writ petition allowed: BOMBAY HIGH COURT
2022-TIOL-168-CESTAT-MAD
Carboline India Pvt Ltd Vs CC
Cus - The appellant is aggrieved by rejection of their request for conversion of free shipping bills to advance authorization shipping bills - The department has relied upon Board Circular No. 36/2010 - When the statute does not prescribe any time-limit for filing an application for conversion of a shipping bill, department cannot rely upon a circular to frustrate the provisions contained in statute - When there is a conflict, statute will definitely prevail over the Board circular - The issue whether the time limit prescribed as per the Board circular will apply was considered by Tribunal in case of Autotech Industries (India) Pvt. Ltd. 2021-TIOL-717-CESTAT-MAD and held that time-limit of three months prescribed in Board circular cannot be applied to reject the request of conversion/amendment of shipping bills - The High Court of Kerala in case of Parayil Food Products Pvt. Ltd. had considered the very same issue and held that when section 149 does not prescribe any time-limit, request for conversion cannot be denied by application of Board circular - The second ground for rejecting request for conversion of free shipping bills is that the goods exported have not been subjected to physical examination - Appellant have clearly stated in shipping bills that the goods are exported under advance authorization scheme - On one shipping bill, there is a mistake in noting the license number of advance authorization - In both the shipping bills, the scheme code was wrongly mentioned though they have stated that the goods are exported under advance authorization - Section 149 is a provision which permits the importer/exporter to request for amendment of documents for mistakes that may have happened while filing the documents - When an application for amendment is received, if it is very much clear from documents that the mistake was only an inadvertent mistake and there is no attempt of fraud or mis-statement to evade duty, request for conversion ought to be allowed - The rejection of request for conversion of free shipping bills to advance authorization scheme shipping bills are not justified - Impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2022-TIOL-167-CESTAT-AHM
Rishabh Plast Industries Vs CCE & ST
CX - Assessee is in appeal against denial of cenvat credit on certain services, demand of interest and imposition of penalty - It is pointed out that credit has been denied on Works Contract Service used for Repair of their factory premises - Assessee pointed out that the definition of input service specifically includes in inclusion part services used in relation to modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises - He pointed out that the services are specifically included in inclusive part in definition of Input services - From the definition of input services and sequence, it is clear that definition of Input service is first expanded by introducing inclusive part in definition and thereafter restriction is placed by exclusive part of definition - Tribunal agrees with argument made by Commissioner (Appeals) - The sequence of definition clearly suggest that the exclusive part supersedes or overrides the main definition and inclusive part - It is obvious that an exclusive part can only exclude what is otherwise included in the inclusive part, therefore if anything is covered in exclusive part it remains excluded irrespective of the fact that the same was specifically included in the main definition or the inclusive part - This is so because the exclusive part comes at the end of the definition and not before the inclusive part: CESTAT
- Appeal dismissed: AHMEDABAD CESTAT
2022-TIOL-166-CESTAT-DEL
Rambagh Palace Hotel Pvt Ltd Vs CCE & CGST
ST - The issue arises is as to w hether the present is case of unjust enrichment so as to decline the sanction of refund of duty paid by appellant under reverse charge mechanism in circumstances of subsequent amendment in law - Unless and until there is evidence produced by Department to prove that the burden of amount stands passed on by appellant to its customers, applicability of principle of unjust enrichment cannot be presumed - Otherwise also the amended clause 116 of Finance Act, 2019 allows refund of amount of service tax on liquor license fee paid during the period from 01.04.2016 to 30th June, 2017 without even whispering about applicability of principle of unjust enrichment - Since the refund has been filed only due to the introduction of said clause, said principle otherwise also cannot be implied that too, for the purpose of rejecting refund claim which is made permissible under said clause due to the element of retrospectivity therein - No infirmity found in aforesaid findings of original adjudicating authority - Commissioner (Appeals) has not given any finding which may falsify the findings of original adjudicating authority - Commissioner (Appeals) has been silent about CA certificate - Thus, Commissioner (Appeals) has committed an error by holding the refund to hit by unjust enrichment merely on presumptive basis - No relevant evidence at all been discussed by him while coming to the said conclusion - Rather, the relevant evidence as was considered by Original adjudicating authority has miserably been ignored by Appellate Authority - The question of adjudication as framed stands decided in favour of appellant - It is held that the refund in question does not get hit by principle of unjust enrichment - The order under challenge is hereby set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-165-CESTAT-AHM
Aquamarine Exports Vs CCE & ST
ST - Appellant is engaged in export of textiles goods such as fabrics, scarves, sarees and dress materials to various countries - During scrutiny of Shipping bills, it is revealed that appellant have shown the commission amount to the tune ranging from 11% to 12% paid to commission agent located outside the India - Revenue has confirmed demand of service tax on commission which was shown as deduction in export invoice - Further, revenue has treated this commission as a commission against foreign commission agent service - Firstly, there is no commission agent exists who provided the service for export trading of goods exported by appellant - When no service provider is in existence it cannot be said that the appellant have received commission agent service - Secondly, appellant have not paid the commission to any person in foreign country - Therefore, in absence of any consideration paid for alleged commission agent services, no service tax can be demanded - In export invoice, appellant have deducted an amount in nomenclature of commission from gross sale price thus, deduction was passed on to the buyer of export goods which is nothing but a discount given to Foreign Buyers of goods - Neither any service provider exist nor was any consideration paid to any service provider - On the identical issue, Tribunal has taken a consistent view that merely because in invoice commission is mentioned, that alone is not sufficient to treat it as a commission but the same should be treated as discount only - Consequently, no service exist hence no service tax can be demanded: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
