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2022-TIOL-351-CESTAT-AHM
Neelkanth Pulp And Paper Boards Vs CC
Cus - The issue involved is, whether freely importable Waste Paper of CTH 47079000, imported by appellants are liable to confiscation and whether consequential penalty on appellants are imposable - Appellants have submitted all relevant required documents in support of their contentions that the goods in question are waste papers - It is found from the pre-shipment inspection certificates that the goods in question in consignment are; actually waste paper as per internationally acceptable parameters for such material, there is no putrefiable organic matter in this consignment, that the approximate content of non-recyclable material is not more than 0.5%/1% and no municipal solid waste or medical waste or hazardous waste is part of this consignment - It is a settled law that such Technical opinion given in pre-shipment inspection certificates cannot be disregarded or brushed aside when such certificates are issued by approved certification agency by DGFT authority, without having any other contrary independent evidence - Having not disputed this factual position by Revenue, seizure/confiscation of consignment is not justified - It is also settled law that entire consignment cannot be seized/confiscated on unjustified assumptions and presumption and in absence of evidences - The goods in question are not "Municipal Waste" and hence provisions of Hazardous and Other Wastes (Management and Trans boundary Movement) Rules, 2016 are not applicable in absence of sufficient and clear evidences - Thus, no cogent reasons with clear evidences are adduced on record by Revenue for discarding pre-shipment inspection certificate in toto - In absence of any inculpatory statements and there being no deliberate misdeclaration on the part of Appellants, confiscation of goods, and penalty are not sustainable - Order for re-export of goods and imposition of penalty on all the appellants are set aside - The goods in question are allowed to be cleared for home consumption, in accordance with the law: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2022-TIOL-350-CESTAT-MUM
Maharashtra Ex-Servicemen Coporation Ltd Vs CCT
ST - Issue relates to upholding of order of original authority rejecting claim for refund of amount paid as service tax despite liability on the same transaction under Central Goods and Service Tax, 2017 having been also discharged as insisted upon by their customers in view of changed circumstances of phasing out of service tax w.e.f. 1st July 2017 - Obligation to discharge tax under Finance Act, 1994 crystallized on 5th July 2017 in relation to services provided between 6th June 2017 and 30th June 2017 as determined under Rule 3 of Point of Taxation Rules, 2011 to be the date in invoices pertaining to taxable transaction or, in case of continuous supply of service, to be the date of each episode envisaged in contract - As the impugned services were taxable under Finance Act, 1994 in accordance with statutory powers, tax was rightly discharged - It was the difficulties faced by their customers in availment of credit of such tax in July 2017 that prompted them to cancel these invoices and issue fresh invoices after discharging tax under the new statute - While it is appreciated that tax has been paid twice on the very same transaction, discharge of liability in accordance with Finance Act, 1994 which was the prevailing statue precludes entitlement for refund - The ground of equity pleaded on behalf of appellant does not advance their case for refund of tax paid in accordance with a constitutionally valid levy - Accordingly, no reason found to interfere with impugned order: CESTAT
- Appeal dismissed: MUMBAI CESTAT
2022-TIOL-349-CESTAT-KOL
S K Saragwagi And Company Pvt Ltd Vs CCGST & CE
ST - Appellant is in appeal on the ground that all conditions are satisfied under Notfn 41/2012-ST and also the clarification issued by CBEC, vide Circular 104/4/2008 - The export was made through M/s MMTC Ltd. which was statutory provision in Trade Policy and money be realized after export of goods - Service tax paid in terms of services utilized in export of goods to be claimed as Refund - Appellant submitted invoices on which certification has been done in terms of para 3(k) of said notification regarding co-relation and nexus between input services and exports made for said period of claim for refund as well as payment of Service Tax made by them - It is apparent that M/s MMTC Ltd. stands indemnified that export to be made through them and appellant, is the owner of goods, is not allowed to export directly under Section 2 (20) of Customs Act, 1962 as well as under definition of 'exporter' in FTP, 2009-14 under Chapter 9.26 - Role of M/s MMTC Ltd. in export of Manganese Ore, is a compulsion to be observed by appellant and it is not by choice which has led to the present dispute - Appellant declared that no CENVAT Credit of service tax paid on specified service used for export of said goods has been taken under CCR, 2004 - That the appellant have submitted invoices issued in the name of exporter duly certified as prescribed in Para 3 (j) & (k) of the said Notification - Impugned order is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-348-CESTAT-KOL
S Gopal And Company Vs CCE & ST
CX - Assessee is in appeal against impugned order, wherein Commissioner (A) denied the interest under Section 11BB on the refund - Principal amount was sanctioned to assessee by Assistant Commissioner - Interest claimed by them under Section 11BB was rejected on the ground that the provisions of Section 11BB shall not apply in case where the Exemption Notfn 32/99-CE is being claimed - The Assistant Commissioner contended that the Exemption Notification is a self contained law wherein detailed conditions, safeguard and limitation has been provided for giving the effect to said Exemption Notification - The said Notification does not have any provisions for grant of any interest and therefore, in absence of legal provisions in said Notification, he rejected the refund of interest under Section 11BB - In case of M/s. Dharampal Satyapal Ltd. , the High Court passed a similar order and allowed the interest on account of delayed payment of refund under Section 11BB - The SLP filed against said Order by Revenue is pending before Supreme Court and the notice was issued - No stay from the operation of order of High Court was granted by Supreme Court - Following the judicial discipline, assessee is entitled for interest under Section 11BB immediately after three months from the date of filing of application: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-347-CESTAT-KOL
Varun Beverages Ltd Vs CCGST & CE
CX - Appellant is engaged in manufacture of water, aerated water, fruit pulp based drinks and Beverages in Bag - They had entered into an agreement with M/s Nicco Parks and Resorts Ltd. for sale of their products from latter's premises - Scrutiny revealed that the appellant availed cenvat credit of service tax paid on invoices raised by M/s Nicco Park and Resorts Ltd. towards sales commission, which according to SCN, did not qualify as eligible input service - Sales commission is directly attributable to sales of products - Any activity which amounts to sale of products is deemed to be sales promotion activity in normal trade parlance - The commission paid on sales of products/services with an intention to boost of Company - Sales commission has a direct nexus with sales, which in turn is related to manufacture of products - If there is no sale, there would not be any need to manufacture the products - High Court of Punjab & Haryana in Ambika Overseas 2011-TIOL-951-HC-P&H-ST , had clearly held that the sale and manufacture are directed inter-related and commission paid on sales needs to be accounted for as services related to sales promotion - Following the ratio of decision of Tribunal in case of Essar Steel India Ltd. 2016-TIOL-520-CESTAT-AHM , wherein the Tribunal have held that the "Explanation" inserted in Rule 2 (l) of CCR, 2004 vide Notfn 2/2016-CE (N.T.) is declaratory in nature and is applicable retrospectively - Impugned order cannot be sustained and is, therefore, set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT |
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