|
2022-TIOL-523-CESTAT-DEL
Climax Overseas Pvt Ltd Vs CC, CE & ST
Cus - Redemption fine and penalty - Appellant signed a contract with a supplier in Vietnam for import of natural rubber RSS3 - Thereafter, on 20.01.2016, DGFT issued a Notification No. 32/2015-2020 revising the policy condition for import of natural rubber - Appellant filed bill of entry at ICD Garhi, Harsaru to clear the consignment - It was pointed out by officers to the appellant that in terms of EXIM policy as notified by DGFT notification, the consignment of rubber could only be imported through Chennai or Nhava Sheva ports and not through ICD Garhi, Harsaru, India - Not only the goods have reached ICD Garhi, Harsaru after the issue of DGFT notification restricting the import of natural rubber through Nhava Sheva and Chennai only on 20.01.2016, but the goods were also dispatched after this date on 03.02.2016 by the overseas supplier - After the notification was issued on 20.01.2016, appellant could have negotiated changes to contract and got an invoice issued and delivery modified to bring it in conformity with new legal notification - Appellant did nothing but went ahead with inflicting the goods under a bill of lading with the port of discharge as Nhava Sheva and final destination as ICD Garhi, Harsaru - This only establishes that either the appellant was negligent or otherwise decided to import the goods in violation of law - As regards to question, whether the Nhava Sheva can be considered the port of import or the ICD Garhi, Harsaru, it is a well settled matter that until the goods cross the customs frontiers they are supposed to be in course of international trade - The port of import is ICD Garhi, Harsaru, through which the impugned goods could not have been imported in terms of DGFT notification - The appellant imported in violation of notification - Appellant has been clearly in violation of importing goods contrary to import policy as notified by DGFT notification - Goods so imported were therefore, liable for confiscation, and have been correctly confiscated under section 111(d) of Customs Act, 1962 - Consequently, appellant was liable for penalty under section 112(a) ibid - Impugned order is correct and proper and calls for no interference: CESTAT
- Appeal rejected : DELHI CESTAT
2022-TIOL-522-CESTAT-DEL
Aadhar Stumbh Township Pvt Ltd Vs CCE & CGST
ST - Appellant had dispatched refund applications by speed post on 8.11.2016, which were returned by Department by refusing to accept - Further, refusing of refund by Department is evident from the facts on record, as the Service Tax Division has been shifted from CGO Complex, New Delhi to Ambedkar Bhawan, Rohini, New Delhi - Thus, appellant had dispatched refund application well within the period of limitation - Such dispatch is also proved by fact that the appellant has soon thereafter receipt back of mail with remark "refused to accept", has again filed the application by hand on 5.12.2011 - Refund application has been filed within limitation as prescribed under Section 102(3) of Finance Act - In view of Section 102(1) and (2) of Finance Act, service tax deposited by appellant has taken the changed character of revenue deposit, by operation of law as the Government of India extended exemption with retrospective effect vide Notification No. 9/2016-S..T read with Section 102 introduced by FA, 2016 - Thus, rejection of refund by Revenue is also hit by Article 265 of Constitution of India - No limitation is applicable for refund, due to the amount lying with the Revenue having the nature of revenue deposit - The Adjudicating Authority is directed to grant refund within a period of 45 days along with interest under Section 11 BB: CESTAT
- Appeal allowed : DELHI CESTAT
2022-TIOL-521-CESTAT-DEL
Rambagh Golf Club Vs CCE
ST - Assessee is in appeal against impugned order vide which though the entire demand as was initially proposed by SCN has been set aside but still the demand of Cenvat Credit alongwith interest and penalty has been confirmed - The demand confirmed is out of scope of SCN - Law is settled that SCN is the basis of litigation arising with respect to proposal contained therein and the adjudicating authorities have to remain within the four bounds of said SCN - The perusal of orders of adjudicating authorities shows clear acknowledgement that the appellant has reversed entire Cenvat Credit alongwith with interest - The findings confirming demand of said amount are contrary to their own observations and thus are liable to set aside - These finding are sufficient in addition to hold that the confirmation of demand of Cenvat Credit of is not only beyond the scope of SCN but is also contrary to the findings of adjudicating authorities - The order under challenge is accordingly set aside: CESTAT
- Appeal allowed : DELHI CESTAT
2022-TIOL-520-CESTAT-DEL
Vandana Global Ltd Vs CCE & ST
CX - Issue arises for consideration is as to whether for electricity generated by assessee for captive consumption, some part whereof has been sold to state electricity body, the assessee is not liable to take credit on such amount of electricity as has been sold out - Cenvat credit has been taken on inputs used, however, suo motu proportionately reversed for electricity which has been sold out - Rule 6 of Cenvat Credit Rules, 2004 gives three separate options to assessee as mentioned under sub rule (1), (2) and (3) thereof and to exercise any one of these options is prerogative of assessee - The department cannot compel the assessee to opt for a particular option - Further, w.e.f. 01.04.2008 Rule 6(3A) has been introduced, according to which assessee is eligible to reverse proportionate credit on inputs and input services used in manufacture of exempted goods - Instead of reversal at the rate of 10%/5% as prescribed by Rule 6 (3) of Cenvat Credit Rules, 2004 apparently and admittedly said reversal has already been made - The excess amount of duty over and above the amount of Rs.10,19,252/-, department has confirmed the duty while adding value of electricity as was generated from scrap as that of Windmill, Fly Ash - Case of Gularia Chini Mills 2013-TIOL-568-HC-ALL-CX has already settled that if electricity generated out of waste, provisions of Rule 6 (3) of Cenvat Credit Rules, 2004 are not applicable - Said decision has been followed by Tribunal in DSM Sugar Mills Limited 2014-TIOL-3001-CESTAT-DEL - No reason found to differ from these decisions - Accordingly, Commissioner (Appeals) has laid wrong emphasis on decisions as mentioned in order under challenge - Similar SCNs have already been served upon assessee for previous years - Suppression of facts in those circumstances cannot be alleged - The decision of Apex Court in Nizam Sugar Factory 2006-TIOL-56-SC-CX is absolutely clear that when all relevant facts were in knowledge of authorities at the time of first SCN, while issuing subsequent SCNs on same/similar facts, suppression of facts on part of assessee cannot at all be alleged - Invocation of extended period of limitation has also been wrongly confirmed - Once there was no suppression question of imposition of penalty does not at all arise - Findings of Commissioner (Appeals) in order under challenge are held beyond the decision of Apex Court - The order under challenge is set aside: CESTAT
- Appeal allowed : DELHI CESTAT
2022-TIOL-519-CESTAT-AHM
UPL Ltd Vs CCE & ST
CX - The issue involved is that whether the appellant is entitled for Cenvat Credit in respect of service tax paid on Supply of Tangible Goods services, i.e., Hiring forklifts for use of handling material within the factory - The contention of revenue is not correct in as much as it contends that Supply of Tangible Goods service is not falling under definition of Input service in terms of Rule 2(l) of Cenvat Credit Rules, 2004 - Though, it does not appear in inclusion clause of definition however, main clause of definition is very wide - There is no dispute that Forklift which is taken on hire under Supply of Tangible Goods service are indeed used for handling all material which is the part and parcel of process of manufacturing final product within the factory - Therefore, forklift which is taken on hire is directly used for the activity of manufacturing of final product - Identical issue has been considered by Tribunal in case of LARSEN & TOURBO LTD 2018-TIOL-597-CESTAT-MUM wherein the Cenvat Credit in respect of supply for tangible goods service has been allowed - Therefore, appellant is entitled for Cenvat Credit in respect of Supply of Tangible Goods services: CESTAT
- Appeal allowed : AHMEDABAD CESTAT |
|
