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2022-TIOL-351-HC-MAD-CUS
Harrow Exports Vs CGST
Cus - The petitioner availed duty drawback under the relevant Rules and as per the conditions imposed - According to Revenue, petitioner has not filed the proof for realisation of sale proceeds in foreign exchange - Therefore, there has been an order passed by original authority recovering duty drawback availed by petitioner - Original authority itself, having accepted the case of petitioner, had directed refund of amount paid by way of duty drawback, which was recovered from petitioner - However, there was no interest paid for the amount refunded to petitioner - Merely because it takes some time by revisional authority to decide the revision to be filed in this regard under Section 35EE of Central Excise Act, 1944, it cannot be stated that it would not be an efficacious alternative remedy - If at all the issue relates only to interest, whether that should be paid to petitioner or not, since it is a simple issue, it can be decided easily at the earliest by authority concerned before whom if such revision is filed by petitioner - Therefore, within a time frame such revision to be filed by petitioner can be disposed of: HC
- Writ petition disposed of: MADRAS HIGH COURT
2022-TIOL-211-CESTAT-KOL
Numaligarh Refinery Ltd Vs CCE
CX - The only question arises is, whether the petroleum products cleared by appellant to other OMCs are to be valued at Import Parity Price, which should be taken as transaction value or same should be valued at the price at which such goods cleared to BPCL have been valued - Appellant and the other OMCs are independent parties and are not related to each other - Though the SCN alleged mutuality of interest on the ground that the MoU entered into between the parties benefitted each of them mutually, however, the said ground was relinquished by adjudicating authority itself, while passing the impugned order - Further, merely entering into a mutually beneficial arrangement like MoU, cannot make the parties related for the purposes of Section 4(3)(b)(iv) of Central Excise Act, 1944 - For this, Tribunal relies on the decision in case of Hindustan Petroleum Corporation Ltd. 2005-TIOL-405-CESTAT-BANG - Having gone through the MoU, it is observed that the transaction between Appellant and other OMCs is in the nature of sale, for which appropriate consideration has been provided - Further, MoU provides for actual payment of price by other OMCs to Appellant on the basis of joint certificates and claim sheets, with a credit period of 15 days - Once the adjudicating authority found that mutuality of interest is not relevant to instant case, the only conclusion ought to be dropping SCNs - However, adjudicating authority went beyond the scope of SCN and made observations which were never alleged in SCN and have been proved to be incorrect by appellant - Such approach of adjudicating authority of travelling beyond the scope of SCN is legally untenable - Appellant has correctly valued the goods supplied to other OMCs at transaction value, viz. the Import Parity Price under the MoU - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-210-CESTAT-AHM
Aaryavart Infrastructure Pvt Ltd Vs CST
ST - T he issue arises is, whether the appellant has provided services of Site Formation and clearance, excavation and earth moving and demolition services before levy of service tax on such services w.e.f. 16.06.2005 or thereafter - Adjudicating Authority concluded that the services were provided after 16.06.2005 on the basis of RA-Bills - Appellant vehemently submitted that the date of actual service provided can be ascertained from Measurement Sheet of work executed by Sub- Contractors - The appellant in this regard also filed an affidavit but the same was filed after the O-I-O was passed - Adjudicating Authority has not considered the Measurement Sheet as well as the affidavit which of course is not available before the Adjudicating Authority - Therefore, matter needs to be re-considered as regard the actual date of service provided - Accordingly, impugned order is set aside: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2022-TIOL-209-CESTAT-MAD
Perfect Trading Company Vs CC
Cus - The appellant imported certain goods which were declared as "mini tower computer case with power supply accessories" - The adjudicating authority after considering the facts of case and representation given by appellant that the goods were intended to be supplied to another customer of another country has accepted the request for re-export put forward by appellant - Department has not filed any appeal against said order - Appellant has filed appeal before Commissioner (Appeals) challenging only the imposition of redemption fine and penalty - The contention raised by appellant was that when adjudicating authority allowed the re-export of goods, there was no requirement to impose any redemption fine - It was also contended that the department has failed to bring out any mens rea against importer, for which reason, penalty cannot sustain - Even though there was no appeal filed by department, Commissioner (Appeals) has set aside the order passed by adjudicating authority allowing the appellant to re-export the goods - This conclusion arrived at by Commissioner is highly erroneous in absence of an appeal filed by department - The said order passed by Commissioner (Appeals) to confiscate the goods without option to redeem the goods for re-export requires to be set aside - On such score, when goods have not been intended to be imported by appellant, no penalty can be imposed - Impugned order cannot sustain, same is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT |
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