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2022-TIOL-559-HC-KOL-CX
CCE Vs Tata Steel Ltd
CX - Appeal is filed by the revenue against the order dated 13.01.2020 of the CESTAT. Held: Show cause notice dated 30.04.2007 is an exact replica of the show cause notice dated 31.03.2004 except for the period and the amount which was proposed to be demanded as Excise duty - The then Commissioner could not have proceeded to issue such a show cause notice except under certain circumstances, namely upon discovery of fresh material which was not subject matter of any earlier adjudication process and such material came to light upon discovery by the department or upon intelligence and were not culled out from the books of the assessee - This is so because the Commissioner sought to invoke the extended period of limitation by invoking Section 11A of the Act - On a reading of show cause notice dated 30.04.2007, it is clear that the show cause notice is based upon the facts which are already on record - What is more important and disturbing is the fact that the Commissioner who issued the show cause notice dated 30.04.2007 was aware of the order-in-original dated 25.05.2004 by which his predecessor who had issued the first show cause notice dated 31.03.2004, after adjudication, had dropped the proceedings - Thus, unless the new incumbent Commissioner had fresh materials on hand, he could not have proceeded to issue the show cause notice that too with part of the period overlap with the period covered in the earlier show cause notice and without dealing with or mentioning the order-in-original dated 25.05.2004 - Thus, it is a clear case of abdication of the statutory responsibility cast upon officer - Therefore, applying the principles of consistency, the order binds the department as the transaction is identical and there is no fresh material available with the Commissioner justifying the issuance of the show cause notice dated 30.04.2007 - Therefore, the department was wholly unjustified in not only issuing the show cause notice dated 30.04.2007 but also by preferring this appeal - Bench is of the opinion that this is a fit case where exemplary cost has to be imposed on the official concerned of the department for attempting to resurrect a settled issue - Mere use of the words or expression "wilfully suppressed" with intend to avoid duty cannot hold the assessee guilty of wilful suppression, therefore, the initiation of the proceedings itself is bad in law - no grounds to interfere with the order passed by the Tribunal - Appeal dismissed: High Court [para 4, 10, 13]
- Appeal dismissed: CALCUTTA HIGH COURT
2022-TIOL-326-CESTAT-MUM
GKB Vision Ltd Vs CC
Cus - The twin issues that required consideration are that as to whether the appellants would be eligible for higher norms fixed by Ministry in respect of wastage/loss/ breakage of raw materials and as to whether the demand is premature - Appellants have represented to Ministry to revise the SION norms in blanks imported by them - Ministry after considering the request of appellants have communicated to development commissioner that a wastage of 15 per cent has been fixed and development commissioner may take necessary action under para 6.7(e) of Hand Book of Procedures, Volume-I - Thus, in view of the decisions of Commerce Ministry, in appellant's case the wastage norms were fixed at 15 percent as against the earlier norms of 9.09 percent - Revenue is bound by the norms fixed by SION norms fixed by Ministry of Commerce and therefore the benefit of the same has to accrue to appellants - To that extent, impugned orders are not sustainable and as per the directions of High Court of Goa, the order passed by this bench needs to be amended/ rectified to that extent - Coming to the other submission of appellants that demand of duty, if any, from the EOU can only be made at the closure of bonding period are at the time of debonding, said submissions are legally correct and acceptable - Same has not been considered by this bench - Therefore, demand of duty was premature: CESTAT
- Appeals allowed: MUMBAI CESTAT
2022-TIOL-325-CESTAT-AHM
Dishman Pharmaceutical And Chemicals Ltd Vs CST
ST - The appellant is engaged in manufacturing of Bulk Drugs - As regard the "Acquisition Expense", Commissioner has confirmed demand on the ground that these are not in the nature of Legal Consultancy Service as appellant could not produce any documentary evidence and therefore the service tax was confirmed under "Business Support Services" - In respect of services availed for which demand was confirmed, appellant have not produced the documents which support their stand that the service is of Legal Consultancy service - Therefore, this issue needs to be re-considered - As regard the demand on administration service, though the appellant claimed that these expenses are reimbursement but no details were brought on record to ascertain whether these expenses are on account the activity amount to services to the appellant by their group company or by any other service provider - Therefore, to finally come to the conclusion whether any service is involved and same is liable to service tax, details of this administrative service needs to be verified on the basis of source documents - As regard the service tax demand on stock exchange fees, no documentary evidence was produced to show that this is a statutory levy and the appellant have paid as reimbursement - It appears that the Stock Exchange has charged fees to the appellant against the stock exchange service, therefore, the stock exchange- Singapore has provided the service to the appellant against stock exchange service - This clearly covers under taxable service and appellant is liable to pay tax under Reverse Charge Mechanism in terms of Section 66A read with Rule 2(1)(d)(iv) of Service Tax Rules, 1994 - Accordingly, demand of service tax on stock exchange service is upheld - As regard the demand of service tax on acquisition expense and administrative service, the matter is remanded to the adjudicating authority to re-consider afresh: CESTAT
- Appeal partly allowed: AHMEDABAD CESTAT
2022-TIOL-324-CESTAT-MUM
Credit Suisse Services India Pvt Ltd Vs CCE & ST
ST - Issue relates to r ejection of refund claim filed under Notification No. 12/2013-S.T. by appellant, a SEZ Unit seeking refund of service tax as exemption benefit by Adjudicating Authority that had been confirmed by Commissioner (Appeals) on the sole ground of limitation - Admittedly as has been held in O-I-O and O-I-A in terms of said Notfn, last date for filing of such refund application is before 30.04.2018 or to say in specific terms on or before 29.04.2018, though the same is not absolute but qualified being discretionary at the level of refund sectioning authority - However, on examination of English calendar of year 2018 in open Court vis-a-vis Annexure-I, it could be noticed that 28th & 29th April, 2018 were weekends and 30.04.2018 was a Government holiday on account of Buddha Purnima - The appeal is allowed with consequential relief of sanctioned refund with applicable interest to be paid to appellant within 3 months and the order passed by Commissioner (Appeals) to the extent of rejecting the said refund, is hereby set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-323-CESTAT-KOL
Carbon Resources Pvt Ltd Vs CCGST & Excise
CX - Assessee is in appeal against impugned order, whereby the demand of excise duty has been confirmed for period Financial Year-2011-12, along with interest and penalty imposed as proposed in SCN - Adjudicating Authority has confirmed the demand of Cenvat credit only on the ground that the document issued by customers for return of excise paid goods was addressed to the Giridih unit of assessee and thus it is not possible for assessee to avail Cenvat credit of duty paid goods under Rule 16(1) of Central Excise Rules, 2002 in Barauni unit from which goods were actually sold - Both the lower authorities have ignored submissions of assessee with respect to verification of returned goods by Superintendent regarding identification of goods being returned at Barauni unit of assessee - Since the assessee has been able to substantiate that said goods were indeed received at selling unit only by way of intimation letter, being Exhibit M of the appeal paper book, duly supported by Chartered Accountant's Certificate in this regard, orders of lower authorities are set aside as there is no contrary evidence brought on record: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-322-CESTAT-AHM
Matrix Comsee Pvt Ltd Vs CCE & ST
CX - The limited issue to be decided is, whether appellant is entitled for cenvat credit on Courier Service - Appellant claimed that Courier Service was used for delivery of their export goods from their factory premises to premises of customers abroad - Appellant is entitled to avail Cenvat credit on input service namely Courier Services which have been availed in the course of their business to export of goods - No merit found in impugned order, consequently same is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
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