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2022-TIOL-763-HC-J&K-CX
CCGST & CCE Vs Narbada Industries
CX - 700 appeals have been filed by the Commissioner u/s 35 G of the Central Excise Act, 1944, against the orders of CESTAT, Chandigarh, setting aside the orders passed by the Commissioner (Appeals) and the Adjudicating Authority and directing for the refund of the Education Cess and Secondary & Higher Education Cess to the assessee in view of the decision of the Apex Court in M/s SRD Nutrients Pvt. Ltd. = 2017-TIOL-416-SC-CX - Common substantial question of law is sought to be raised namely - 'Whether the assessee is liable to return the Education Cess and Secondary & Higher Education Cess on the changed view of law as subsequently laid down by the Full Bench of the Supreme Court in Unicorn Industries = 2019-TIOL-528-SC-CX-LB , over ruling SRD Nutrients P Ltd = 2017-TIOL-416-SC-CX , on the basis of which the aforesaid Cess was refunded to the assessee.
Maintainability
First objection by respondent is whether the appellant can file and maintain the appeals as the tax incidence in each case is less than Rs. One Crore, whereas, under the Circular of the Ministry of Finance (Department of Revenue, Central Board of Indirect Taxes and Customs) New Delhi, dated 22.08.2019 , the Government of India has fixed the monetary limit of Rs. One Crore below which appeal cannot be filed in the High Court - The second preliminary objection is whether the appeal under Section 35G of the Act is maintainable before the High Court or it has to be filed directly in Supreme Court under Section 35L of the Act, as it pertains to question having relation to the rate of excise.
Held:
+ The appellant made no effort to challenge any of the above orders passed by the CESTAT which have been impugned in the various appeals in time and rather took a conscious decision not to file appeals and proceeded to refund the Education cess and Secondary & Higher Education Cess thus accepting the decision of the CESTAT. It was only after a judgment was rendered on 06.12.2019 by the Supreme Court in Unicorn Industries taking a contrary view on the subject that the appellant decided to file appeals that too in the first instance before the Supreme Court under Section 35L of the Act but subsequently before the High Court. [para 18]
+ The valuation of each of the appeal clearly reveals that none of the appeals involve tax incidence Rs. One Crore or above. All appeals relate to amounts which are less than Rs One Core. [para 22]
+ It is trite to mention here that the Circulars of the Government of India are binding upon its departments therefore when the above circular clearly provides that no appeal shall be filed before the High Court if the monetary limit is below Rs. One crore, the appellants cannot go against it and file an appeal. [para 26]
+ The appellants have not brought on record any material to show that any special permission was granted by the Government of India or the Ministry of Finance to file appeal ignoring the above Circular. [para 29]
+ In view of the above Bench is of the opinion that appellants were not justified in filing these appeals contrary to the mandate of the above circular which is binding upon them. Accordingly, these appeals are not maintainable. [para 31]
+ Since the appeals are directed against the order passed by CESTAT directing refund of cess and does not involve determination of any question in relation to rate of excise duty or value of goods for the assessment purposes, the appeals would lie to the High Court and have rightly been preferred - The appeals as such are maintainable. The preliminary objections to the above extent stand over ruled. [para 36]
Condonation of Delay
Respondents in each appeal have countered the above submission alleging that subsequent change of view by the Supreme Court will not give limitation for the filing of appeals.
Held:
+ There is no explanation as to why the appeals could not be filed within 180 days of the service of the orders (of CESTAT). The Act is a special and a self-contained code which provides for the time for filing the appeal and even for condoning the delay, if any, for sufficient cause. Therefore Section 17 of the Limitation Act would not be applicable. [para 40]
+ The appellant is calculating the limitation for filing of the appeals from the date of subsequent decision of the Supreme Court in the case of Unicorn Industries. This is simply misconceived for the reason that the statute does not provide for taking limitation for filing appeal from any other date except from the date of service/receipt of the copy of the impugned order. [para 59]
+ Explanation has to be furnished for not filing the appeal within said 180 days from the receipt of the copy of the impugned order. The said period had expired in each case much before the decision was rendered in Unicorn Industries. There is no explanation on record why the appellant could not file the appeal within the said 180 days. Therefore, in view of the language used in Section 35G (2)(a) in the absence of any sufficient cause for not filing the appeal within that period, it would not be prudent and justifiable to condone the delay by this Court. Any explanation for the period subsequent to it is of no consequence. [para 61]
+ There is no sufficient ground to condone the delay and, accordingly, delay condonation applications in all the appeals stand rejected. [para 66]
On Merits
+ One of the objects and purpose of laying down the limitation for initiating proceedings or appeal is to fix a life span for legal remedies so that the litigation may come to a rest. Thus, where the limitation for taking any remedy against any particular order has expired long back, ordinarily said case is not liable to be reopened merely for the reason that subsequently the view of the court on the aspect decided by it has changed or that a different opinion has been expressed by the court in some other case. If such an action is permitted, there would be no finality to any decision. [para 68]
+ Since the assessee has been held entitled to the refund of the Educational cess and Secondary & Higher Educational cess on the basis of a judgment and order of the Supreme Court in case SRD Nutrients which was in vogue at the relevant time, the appellants are not entitled to make recovery of the said refunded amount on the basis of the subsequent decision of the Supreme Court rendered in the case of Unicorn Industries. If such an action is permitted, it will open a Pandora box and the lis between the parties which had attained finality will never come to an end. This would be against the public policy which envisages providing quietus to litigation at some stage. [para 74]
Conclusion:
++ No merit in these appeals and the same are dismissed, first for the reason, they are barred by limitation, secondly, they are not maintainable and, lastly, the change of opinion of the court in a subsequent matter of another party would not give any leverage to the appellants to reopen the decisions which have attained finality. [para 75, 76]
- Appeals dismissed: JAMMU AND KASHMIR AND LADAKH HIGH COURT
2022-TIOL-459-CESTAT-HYD
TNS India Pvt Ltd Vs CC, CE & ST
ST - Assessee is in appeal against impugned order by which their rebate application for period from January 2010 to November 2010 has been rejected on the ground that same does not qualify as export of service as well as on the ground of unjust enrichment - On perusal of invoices issued by assessee to various overseas customers, it is clear that the benefit of these services are accruing to customer located outside India - Thus, following the ratio in MRAS services and BAYER BIO SCIENCE P. LTD. 2019-TIOL-1320-CESTAT-HYD , there is no doubt that services will qualify to be export of services under provisions of Export of Service Rules, 2005 - Once the services held to be export of services, then the issue of unjust enrichment does not require consideration as it is a settled issue that unjust enrichment principles are not applicable to export transactions as held by Tribunal in case of VODAFONE CELLULAR LTD. 2014-TIOL-319-CESTAT-MUM - Thus, impugned order is set aside: CESTAT
- Appeals allowed: HYDERABAD CESTAT
2022-TIOL-458-CESTAT-AHM
Intas Pharmaceuticals Ltd Vs CST
ST - Assessee is in appeal against partial rejection of refund claim and denial of interest thereon - In the appellant's own case vide order 2013-TIOL-1091-CESTAT-AHM , benefit of refund has been allowed in respect of services not listed as specified services approved by approval committee - The appellants are entitled to refund in respect of services received by them for authorized operations even if, such services are not listed as specified services in the list approved by Approval Committee - There is no specific mechanism provided for notfn 12/2013-ST - Consequently, all these refund would be governed by Section 11B and therefore, appellant would be entitled to interest in terms of Section 11BB in terms of decision of Apex Court in case of RANBAXY LABORATORIES LTD 2011-TIOL-105-SC-CX : CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2022-TIOL-457-CESTAT-AHM
Milestone Preservatives Pvt Ltd Vs CCE & ST
CX - The issue involved is whether the appellant is entitled for Cenvat credit in respect of Input Services namely construction services, fee for architectural structural works for factory plant building, group Medi-claim Insurance, Group personal accident insurance, insurance, motor car/vehicle insurance and labour charges for installation, testing & commissioning of components of VRV System (Centrally AC system) in office building - As regards Construction and Architectural services, the factory was already existing and this construction and architectural service were used for repair and renovation of existing factory plant - Construction or architectural service if used for initial set up of plant will only be ineligible for Cenvat credit - Whereas in present case, the services were used for repair and renovation hence, the credit in terms of inclusion clause of Input Service is admissible - As regards the other services such as group Medi-claim Insurance, Group personal accident insurance, insurance and motor car/vehicle insurance, these are the services as mandated as per the factory Act for safety of employees - This cannot be said that the services were used for personal use - Therefore, all these services are in or in relation to manufacture of final products and under the business activities of appellant - Appellant is entitled for Cenvat credit on such services - However, appellant have admittedly paid an amount of Rs. 2,29,752/- which stands upheld - They had only disputed the amount of Rs. 5,72,011/- - Therefore the same along with penalty and interest are set-aside - As regards the interest and penalty in respect of amount admittedly paid for Rs. 2,29,752/-, since the appellant has not utilized said amount, no interest and penalty corresponding to said amount is payable: CESTAT
- Appeal partly allowed: AHMEDABAD CESTAT
2022-TIOL-456-CESTAT-DEL
Rathi Special Steels Ltd Vs CCGST
CX - Assessee is in appeal against impugned order whereby Commissioner has confirmed the demand along with interest - Further, penalty was also imposed under Section 11 AC (1)(a) of Central Excise Act - Facts in this appeal are squarely covered in favour of assessee vide the precedent order of Tribunal passed in assessee's own case wherein the Tribunal was pleased to set aside the impugned order and allowed the appeal in favour of assessee - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-455-CESTAT-DEL
CC Vs Daya Enterprises
Cus - Assessee filed a refund claim seeking refund of special additional duty paid by it under Notfn 102/2007 - Although the question framed by Delhi High Court in Sony India 2014-TIOL-532-HC-DEL-CUS was in context of imports made prior to issue of Notfn 93/2008-CUS and sold after the issue of this Notification, operative part of judgment categorically holds that the amending Notfn 93/2008-Cus must be read down to the extent that it imposes a limitation period - Therefore, limitation in the Notification does not apply - Commissioner (A) has correctly followed the judgment of Jurisdictional High Court - Therefore, Commissioner (A) has committed no error in relying on Sony India and allowing refund: CESTAT
- Appeal dismissed: DELHI CESTAT |
