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2022-TIOL-511-CESTAT-MUM
Acmechem Ltd Vs CC
Cus - This appeal of assessee arises from enhancement of assessable value on the import of 'DCBS N' or 'N Dicyclohexyl-2 Benzothiazole Sulfenamide', a rubber accelerator, against five bills of entry comprising five consignments of 12000 kgs each that was upheld by Commissioner (Appeals) - There is nothing on record to demonstrate that the necessary pre-requisite in Rule 12 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 had been set in motion; indeed, the entire process, commencing with failure to issue notice of intent and culminating in refusal to issue speaking order, appears to be devoid of any cognition of principles of natural justice - Furthermore, resort to rule 5 of Customs Valuation Rules, 2007 should have established that the similar goods contemporaneously imported had been priced so at the time of its import - There is a glaring lack of details that impacts credibility to adoption of assessable value in bill of entry even though description therein may correspond to that in bills of entry - That fulfillment of necessary, without fulfillment of satisfactory, condition mars the revision of assessable value - Even though the principles of natural justice stand breached by both the lower authorities, that need not concern the disposal of this dispute which, by the absence of evidence to displace the declared value, calls for the impugned order be set aside on merit: CESTAT
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-510-CESTAT-DEL
M P Audyogik Kendra Vikas Nigam (Indore) Ltd Vs CCGST & CE
ST - The issue involved is, whether the appellant is liable to service tax on amount of penalty collected from their contractor - There is no contract between appellant and their contractor to refrain from an act or to tolerate an act or a situation or to do an act in favour of their contractor or to tolerate any act or situation - Further, for such alleged act or tolerance, no remuneration is prescribed in contract - The amount of liquidated damages levied by appellant from their contractor is in nature of penalty, and not by way of any consideration for any service as defined under Section 66E(e) of Finance Act, 1994 - This Tribunal in case of Lemon Tree Hotel 2020-TIOL-1114-CESTAT-DEL under the fact that their customer used to book accommodation by making advance payment, and upon cancellation of the booking, the hotel was retaining or forfeiting some of the advance deposit in the nature of penalty, by way of cancellation charges, Tribunal held that the said amount collected by hotel is in nature of penalty and not consideration as defined under Section 66E(e) ibid - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-509-CESTAT-DEL
Jhanki Lal Babu Lal Vs CCE & CGST
CX - Issue relates to imposition of penalty under Rule 12 (6) of Central Excise Rules, for late filing of Returns (ER-1) for period July, 2017 to February, 2018 - Appellant have filed returns upto the period ended 30/06/2017 under the repealed Act - It is stated that as the appellant was filing their returns under GST provisions w.e.f. 01/07/2017, they were under bona fide belief that they are no longer required to file returns under erstwhile Central Excise Act - This cogent explanation was given before Commissioner (Appeals), but the Commissioner (Appeals) failed to record any findings on said contention - The Court below have passed the order with reference to Section 174 of CGST Act, which provides for repeal and savings - There is no saving Clause in said Section, for initiating and imposing penalty for none filing of returns (ER-1), once the provisions of GST have been imposed w.e.f. 1st July, 2017 - Accordingly, SCN is misconceived and the impugned order have been erroneously passed, having no sanctity in law - Imposition of penalty for non-filing of returns for period under dispute, July 2017 to February 2018, is bad and not called for - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-508-CESTAT-AHM
Sovereign Metals Ltd Vs CCE
CX - The issue arises is, whether the appellant is entitled for CENVAT credit of service tax paid on services when availed prior to obtaining Central Excise Registration - Secondly, whether the appellant is entitled for CENVAT credit on service tax paid on services availed during date of Central Excise Registration to date of plant ready for manufacturing process - As regard the CENVAT credit on goods described, the manufacturer is engaged in manufacture of gold for which the safety of gold is a vital part of overall manufacturing and trading thereof - All these goods even though are forming part of building but these are all specialized goods which are normally not installed in normal buildings - Accordingly, all these goods are specialized items which are installed for storage and safety of final product, i.e., Gold - The goods which is used even not in manufacture directly but used indirectly, said goods qualify as inputs - Therefore, all the goods which are specialized goods used for storage and safety of gold, these are inputs used in relation to manufacture of final product i.e. gold indirectly - Identical issue has been considered by Tribunal in various judgments wherein the goods was neither the capital goods nor these directly used in manufacture but since it is essential in relation to manufacture, CENVAT credit on those goods was allowed considering it as inputs - All these goods are inputs and CENVAT credit is admissible - Central Excise registration is not required for availing CENVAT credit - The CENVAT credit eligibility is on condition that the services were received by appellant, same was used in or in relation to manufacture of final product and the final product has been cleared on payment of duty - Therefore, eligibility of CENVAT credit cannot be related to Central Excise registration - The Tribunal even for services received prior to Central Excise registration allowed the CENVAT credit on input services - Therefore, issue is no longer under dispute - Appellant has also raised the issue of limitation - Though the appellant made out prima facie strong case on limitation but since the matter is decided on merit itself, Tribunal is not inclined to give any conclusive decision on limitation - Impugned order is not sustainable, hence, same is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
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