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2022-TIOL-488-HC-GUW-CUS
Century Plyboards India Ltd Vs UoI
Cus - Review petition is instituted in respect of the discussions and conclusions arrived at in the judgment and order dated 26.08.2019 in paragraphs 149 to 163 of the judgment as regards the concept 'domestic industry' as defined in Rule 2(b) of the Anti-Dumping Rules, 1995 (ADR 1995), and the discussions and conclusions in paragraphs 164 and 165 of the judgment as regards as to whether the evaluation of the non-injurious price in terms of the United States Dollar (USD) at the exchange rate as it prevailed in the year 2012 would be acceptable in law or it should be determined in terms of Indian Rupees (INR). Held: + Amendment brought in to the definition of 'domestic industry' by the notification dated 01.12.2011 in Rule 2(b) of the ADR, 1995 does bring in a discretion upon the authorities to include the producers related to the exporters or importers of the dumped article or the importers themselves in the concept of 'domestic industry'. But again because of the nature and implications of the successive amendments, such discretion may not be an absolute discretion but would be a circumstantial discretion to be determined on case to case basis. [para 54] + As the non-injurious price would be directly relatable to the ADD that may be levied and the ADD not to exceed the margin of dumping where margin of dumping is the difference between export price and its normal price and where both export price and normal value are ordinarily in terms of USD, therefore, it cannot be but accepted that for the purpose for which the non-injurious price is determined, the same would have to be in terms of USD. [para 59] + An ADD if levied and not revoked earlier would have its effect for a period of five years. In other words, there may not be any change in the determination of the ADD to be levied for a period of five years and in such event it is immaterial that the non-injurious price had been determined in terms of USD, inasmuch as, there would be no requirement for any successive determination of the ADD which may require the non-injurious price to be as per the rate of exchange that may prevail as on such successive determinations. [para 60] + If the Central Government considers it necessary to ascertain and determine the margin of dumping from time to time, and the levy of ADD is relatable to such determination of the margin of dumping, any such succeeding levy of the ADD pursuant to such ascertaining and determination of the margin of dumping by the Central Government from time to time, would have to be examined from the point of view as to whether the non-injurious price once determined in terms of USD would be continued to be relied upon even for such succeeding levy of ADD. [para 61] + Once the non-injurious price upon undertaking the aforesaid exercise is arrived at, and the same is in INR, whenever the authorities are required to utilize the non-injurious price arrived at for the purpose of determining the margin of dumping as well as to arrive at the ADD to be levied, the same can always be done by converting the determination made in INR to USD or the basis of the prevailing rate of exchange. Such methods would take care of the apprehension of the respondents that as all other parameters required to be taken into consideration for arriving at the ADD are in terms of USD, therefore, the non-injurious price to be determined would also have to be determined in terms of USD. [para 63] + If the non-injurious price is determined in terms of USD and is used as a parameter for determining the ADD at any time during the next five years, the variations in the exchange rate that may take place during the intervening five years may bring about a change in the non-injurious price in its absolute value in terms of INR. [para 64] + It would be more appropriate to have the non-injurious price determined in terms of INR by following the procedure and principles for determination provided in Annexure-III to the ADR, 1995 and thereupon convert it to USD by applying the rate of exchange prevailing on the date when the non-injurious price so determined is required to be acted upon by the authorities for arriving at the ADD that may be levied. Such a procedure adopted would also be consistent with the provisions of Article 2.4.1 of the GATT-ADA. [para 66]
- Petition disposed of: GAUHATI HIGH COURT
2022-TIOL-487-HC-ALL-CUS
Sultan Tanneries And Leather Products Vs UoI
Cus - Challenge raised is to the jurisdiction of the Commissioner, CGST and Central Excise, Kanpur, the Respondent No. 4 to adjudicate the show cause notice dated 22.06.2011 issued by the Commissioner of Customs (Export) Jawahar Lal Nehru, Customs House, Nhava Sheva, Tal Uran, District Raigarh, Maharashtra, Respondent No. 2, under the Customs Act, 1962 - The challenge is based on the premise that the Respondent No. 4 is neither a proper officer nor is competent to pass any order under the Customs Act, 1962 inasmuch as the Respondent No. 4 was merely assigned the jurisdiction by the order of the Board dated 20.11.2012 and cannot, therefore, be an officer appointed under Section 4(1) of the Customs Act, 1962. Held : Notification for the purpose of Section 2(34) of the Customs Act assigns functions of the proper officer to the various officers including those under the Directorate of Revenue Intelligence, such as Additional Director, Joint Director, Deputy Director and Assistant Directors for the purposes of Sections 17 and 28 of the Customs Act - From the perusal of the notifications [dated 07.07.1997, dated 07.03.2002, dated 06.07.2011, dated 02.05.2012], circulars [dated 23.09.2011, 18/2015 dated 09.06.2015, dated 17.10.2018] [order dated 20.11.2012 issued in terms of Notification No. 15/2002-Customs (N.T.) dated 07.03.2002] and clarifications issued from time to time it is more than apparent that the Respondent No. 2 had the jurisdiction to issue impugned show cause notice and the Respondent No. 4 has the jurisdiction to adjudicate the same - The show cause notice under Section 28(1) could be issued by the "Proper Officer" and A "Proper Officer" is one, who is defined in Section 2(34) as the officer of Customs, either by the Board or by the Commissioner of Customs, who is assigned specific functions - Respondent No. 2 had the jurisdiction to issue impugned show cause notice and at the same time the Respondent No. 4 has the jurisdiction to adjudicate the show cause notices - Insofar as the alternative relief claimed by the petitioner for issuance of mandamus directing the Respondent No. 4 to proceed with the adjudication of the show cause notice only after making available the documents/evidence etc. and also affording an opportunity to cross examine the witnesses is concerned, similar relief was considered and repealed by this Court in the case of Commissioner of Central Excise, Meerut-I and another Vs. M/s Parmarth Iron Pvt. Ltd., Bijnor (Special Appeal No. 741 (D) of 2010 decided on 29.11.2010 - Petitioner is not entitled to any of the reliefs claimed in the writ petition - Writ petition being devoid of merit is dismissed: High Court [para 31, 32, 33, 34, 36]
- Petitions dismissed: ALLAHABAD HIGH COURT
2022-TIOL-290-CESTAT-MAD
MTL Instruments Pvt Ltd Vs CGST & CE
CX - Appellants are engaged in manufacture of various types of industrial safety devices such as isolating interface unit and intrinsic safety barriers - Major part of demand is for the period prior to 01.04.2011 - Appellant has adverted to definition of input service as it stood prior to 01.04.2011, in which the phrase "activities relating to business" is included - For this reason, impugned services are eligible for credit for period prior to 01.04.2011 - The definition contains an exclusion clause wherein the credit availed on Rent-a-Cab Services as well as Outdoor Catering Services has been specifically excluded - There was no allegation in SCN issued to appellants denying this claim raised by them - Appellant is not eligible for credit on Rent-a-Cab Services after 01.04.2011 - As regards to the issue with supply of Manpower for Outdoor Catering Services, Supreme Court in case of M/s. Toyota Kirloskar Motor Pvt. Ltd. has held that the said credit is not eligible post 01.04.2011 - Following the same, credit availed on Supply of Manpower for Outdoor Catering Services for the period after 01.04.2011 has been rightly disallowed - The other issue is with regard to Supply of Manpower for Gardening Services after 01.04.2011, appellant has availed said services to comply with requirements of Pollution Control Board - The credit availed on Manpower Supply for Gardening Services to maintain a garden/green belt within the factory premises is eligible for credit - Coming to the issue of limitation, extended period has been invoked only for the period involved in first SCN - The said period being prior to 01.04.2011, argument of appellant is irrelevant for consideration - Credit availed on Supply of Manpower for Gardening Services for the period after 01.04.2011, if any, would be eligible: CESTAT
- Appeal partly allowed: CHENNAI CESTAT
2022-TIOL-289-CESTAT-BANG
Metrolite Roofing Pvt Ltd Vs CCT & CE
ST - The appellant had taken industrial lands on long term lease from Kerala Industrial Infrastructure Development Corporation (KINFRA for short) by paying an upfront amount on long term lease, along with service tax. Thereafter, with the insertion of Section 104 into Chapter V of the Finance Act, 1994 with retrospective effect, the appellants requested for refund of the service tax paid by them on the upfront amount on long term lease of industrial lands.
the issue involved has been answered in favour of the taxpayer by this Bench in the case of Comfort Night Linen Products vide Final Order Nos. 20652-20653/2021 dated 03/08/2021 = 2021-TIOL-460-CESTAT-BANG . the impugned orders cannot be sustained and hence, the same are set aside: CESTAT
- Appeals allowed: BANGALORE CESTAT
2022-TIOL-288-CESTAT-DEL
V E Commercial Vehicles Ltd Vs CCE
CX - The appellants were engaged in manufacturing of motor vehicles parts - During audit, certain discrepancies were observed and a SCN was served upon appellants proposing recovery of service tax as was wrongly availed as CENVAT credit - Central Excise duty being the short payment of duty on scrap sales was also proposed to be recovered along with interest and proportionate penalties - There is no dispute that on the maximum part of scrap sold by appellants, the Excise duty has duly been paid by appellants - It is apparent that no raw material has been used for those scrap to be generated nor the said scrap is outcome of any process or any kind of deliberation or manipulation being done by appellant to their raw material - Those are not even the by-products emerging unintentionally in process of manufacturing as is the case of bagasse in manufacture of sugar from sugarcane as raw material - The scrap in question is purely the leftovers of packing material or the worn out parts of consumables used by appellant in their premises for various activities as different from manufacture - This particular observation is sufficient to hold that even Rule 6 of Cenvat Credit Rules, 2004 will not be applicable to scrap in question even the Explanation to Rule 6 of Cenvat Credit Rules, 2004 does not deem "non-manufactured goods" as "exempted goods" as have been defined under Rule 2(d) of Cenvat Credit Rules, 2004 - The scrap in question is non-excisable being non-manufactured product of appellant - The demand of duty for the said reason itself is highly improper and illegal - Hence, findings of Commissioner (Appeals) about the limited issue of differential duty upon certain kind of scrap being sold by appellant without payment of duty are also not sustainable - Resultantly, the order in challenge is hereby set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-287-CESTAT-ALL
Sedna Impex India Pvt Ltd Vs Pr.CC
Cus - The appellant is in appeal against impugned order wherein value has been loaded on declared value of goods - Adjudicating Authority sought to load the value on the basis of assessed value available of similar goods - The value is to be adopted for contemprous goods of assessed value and not declared value - As issue has already been settled in favour of appellant in their own case, therefore, assessed value of bill of entry of similar goods cannot be the basis of enhancement of declared value by appellant - In fact it should be transaction value - No merit found in impugned orders, same are set aside: CESTAT
- Appeals allowed: ALLAHABAD CESTAT |
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