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2022-TIOL-873-HC-MUM-ST
Anjali Services Pvt Ltd Vs UoI
ST - SVLDRS, 2019 - Declaration made by the petitioner was rejected - Committee noted the following - SCN amount was higher than the amount quantified before 30.06.2019 indicating that quantification in the matter was not final by 30.06.2019; also report of DGGI Mumbai in both applications was same, hence appeared to be duplicate applications - Aggrieved with this order, the present Petition is filed. Held: Eligibility shall be as it was on the relevant date, i.e. on 30th June, 2019 because as on 30th June, 2019, there was an inquiry/investigation pending against petitioner - The amount of duty payable has been quantified on 25th June, 2019 when in the statement of Madhukar Poojari , Director of petitioner it was recorded - In the show cause notice also the total tax liability of the petitioner as on 5th April, 2018 has been quantified as Rs.144,80,183/- - The fact that in the show cause notice which was issued subsequently, tax duties quantified by the Departmental Authorities was about Rs.19,348/- in excess would not be material at all to determine eligibility criteria in terms of the scheme - What is relevant is admission of tax dues or duty or liability of a declarant before the cut-off date - Certainly, quantum should have some resemblance to actual dues - Since respondent No.4 had issued Form-2 indicating certain amount as payable by petitioner and petitioner had accepted the same by submitting Form-2A on 25th December, 2019, respondent No.4 shall issue Form-3 (within 15 days), namely statement in electronic form indicating the amount payable by petitioner in accordance with sub-section 4 of Section 127 of the Finance Act, 2019 - Petition disposed of: High Court [para 14, 16]
- Petition disposed of: BOMBAY HIGH COURT
2022-TIOL-872-HC-KOL-CX
CCE Vs Hindustan Cables Ltd
CX - Allegation in the show cause notice is that during the period from November 1986 to March 1990, the assessee had removed a total quantity of 3587.207 M.T. of various copper scrap and a total quantity of 803.93 M.T. was short received after processing from their re-processors which was required to be returned to their factory - It was alleged that the assessee neither returned the waste and scrap to their factory nor the Central Excise duty at appropriate rate was paid and that such short received quantity has been shown as "process loss" in their Rule 57F(2) challans and registers for which there is no provision of in MODVAT rules and, therefore, the assessees are liable to pay duty on the short received quantity – Tribunal while allowing the appeal of the assessee against the confirmed demand observed that the assessee had opted for clearance of waste and scrap under the provisions of Rule 57F(2) with due permission of the jurisdictional Central Excise Authority and no duty can be levied on the same; that as regards duty directed to be paid on waste and scrap of PVC wire and cables, it was held that PVC waste and scrap was not excisable and hence, not liable for duty; that there was no allegation of suppression or mis-statement in the show-cause notice and therefore, the extended period of limitation under Section 11A of the Act could not have been invoked – Revenue is aggrieved with this order of CESTAT and is, therefore, in appeal before the High Court. Held: Order passed by the Tribunal was just and proper and does not call for any interference - A reading of the show-cause notice clearly shows that the information was gathered from the registers and challans maintained by the assessee and the show-cause notice is not on account of any discovery of new facts by the department either by conducting an inspection or based on intelligence, therefore, the Tribunal was right in holding that the extended period of limitation could not have been invoked by the authority - With regard to the allegation of non-payment of duty on waste and scrap, the decision of the Tribunal in Finolex Cables Ltd. (affirmed by Supreme Court) will clearly apply and support the assessee's case – inasmuch as waste and scrap obtained in the course of manufacture are not goods, and that there was no event of manufacture of waste or scrap; therefore, not dutiable - Tribunal took note of the important fact that the assessee has opted for clearance of waste and scrap under Rule 57F(2) of the rules by obtaining permission from the jurisdictional Central Excise Officer and if that be so, no duty could have been demanded from the assessee - The revenue was harping upon the fact that it is not plastics alone which are wastes and scraps but also copper - The test is as to whether the material which comes out as scrap, does possess the characteristics of a telecommunication cable or in other words, can it be used for the process of conducting electricity - If the answer to this query is in the negative, it will qualify as scrap - In the instant case, there is no intermediary product such as cable scrap as the essential character of the telecommunication cables is that it should be capable of conducting electricity - If it fails such a test then it qualifies to be termed as scrap - Order passed by the Tribunal does not call for interference – Revenue appeal dismissed: High Court [para 10, 11, 12]
- Appeal dismissed: CALCUTTA HIGH COURT
2022-TIOL-871-HC-MP-CX
Lupin Ltd Vs UoI
CX - Question is whether on the anvil of Section 6 of the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020, the claim for interest on delayed refund u/s. 11BB of the Central Excise Act, 1944 can be denied despite the refund having been made beyond the period of three months from the date of filing of application for refund. Held : From bare perusal of Section 6 of the 2020 Act, it is evident that the time limit as and where prescribed in the provisions of Central Excise Act, 1944 is deemed to be extended without any exception - Thus, the time limit prescribed in Section 11BB of the Central Excise Act is deemed to be extended by Section 6 of the 2020 Act - As such, in view of the overriding effect of Section 6 of the 2020 Act, the time limit of three months prescribed for grant of refund u/S. 11BB also stands extended till 30th September, 2020 - Consequently, the order of refund was passed within the extended time limit and, therefore, is saved by Section 6 of the 2020 Act from being subjected to the rigors of Section 11BB of Central Excise Act - What comes out loud and clear is that the refund was sanctioned within extended time period prescribed under the 2020 Act and, therefore, the claim for interest in that regard is untenable and thus is hereby rejected - Petition dismissed: High Court [para 5.1, 5.2, 7] CX - It is well settled that Tax Laws are to be interpreted strictly in terms of the terminology employed by legislature - Nothing can be inferred nor implied - Tax statute is to be plainly read without bringing the element of equity into play: High Court [para 6]
- Petition dismissed: MADHYA PRADESH HIGH COURT
2022-TIOL-529-CESTAT-AHM
Lonsen Kiri Chemical Industries Ltd Vs CCE & ST
CX - Appellant imported certain raw materials and warehoused the same in 100% EOU - Since the goods could not be used in manufacture, they cleared after four years - At the time of clearance, appellant had paid customs duty and also paid interest after period of three years of bonding - Case of department is that appellant is required to pay interest after expiry of 90 days in terms of Section 61(2)(ii) of Customs Act, 1962 - Appellant being 100% EOU, imported goods exempted under Notification No. 50/2003-Cus. - There is no dispute about intention of said goods to be used in manufacture of final product in 100% EOU unit of appellant - Section 61(1) ibid does not provide that goods should be used in manufacture but it only requires that goods imported with intention of use in 100% EOU - As regards intention for use, it is not disputed - Therefore, appellant's clearances falls under Section 61(1)(aa) ibid, according to which the interest provisions provided under sub-section (2)(i) of Section 61 ibid shall apply, which provides that interest to be charged only after expiry of three years till the date of payment of duty - Appellant have discharged customs duty along with interest beyond three years till the date of payment - Therefore, as per statutory provisions, demand of interest over and above the interest paid by appellant is not sustainable - Impugned order is set-aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-528-CESTAT-MUM
Raychem Rpg Pvt Ltd Vs CGST & CE
CX - The appeals of assessee arise from partial rejection of claim for refund preferred under Rule 5 of Cenvat Credit Rules, 2004 - An assessee, manufacturing primarily for international market, has little scope for utilization of CENVAT credit in normal course of discharge of duty liability - It is not the case of Revenue that the assessee had cleared goods domestically on payment of duty and was, through the refund route, attempting to recover the same; there is a certain lack of logic too in that - Any remnant by application of formula, and its precise intendment, can trace its origin to input lying unutilized or input service yet to be utilized for manufacture - Its utilization in some subsequent period can be reflected only by restoration of rejected portion of a claim for refund - The restoration is permitted by law and the availment suffices to entitle inclusion for apportionment towards export of a subsequent quarter - The claim of assessee has been wrongly discarded by lower authorities - Consequently, impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-527-CESTAT-DEL
ITC Ltd Vs CCGST
ST - The assessee filed an application seeking refund of amount of pre-deposit - The request of said application has been rejected - The amount in question is nothing but an amount of pre-deposit under Section 35F of Central Excise Act, 1944 - The said amount is required to be refunded consequent upon the order of Appellate Authority in terms of Section 35FF ibid - Irrespective the amount was deposited on behest of recovery notice of Department it ultimately was an amount under section 35 F which was to be refunded in terms of section 35 FF - Assessee was otherwise held not liable to reverse the credit it being rightly availed - No appeal was filed by Department against said order - The issue is otherwise no more res integra - Apex Court also in case of Sandvik Asia Ltd. 2006-TIOL-07-SC-IT has held that any amount deposited during investigation pending litigation is ipso facto an amount of pre-deposit and even interest is payable on such amount to assessee being successful in appeal from the date of deposit till the date of refund - Coming to another ground of rejection, i.e., case of unjust enrichment, once it has already been held that the amount in question was an amount of pre-deposit and the amount was not the liability in form of duty/tax to be paid by assessee, question of invoking presumption of section 12B ibid about passing of incidence of such amount does not at all arise - Section 12B ibid can be invoked if and only if the amount in question is an amount of duty - As already held by Tribunal during first round of litigation that assessee was not liable to pay the amount for which reversal was proposed vide earlier SCN - The amount was not the amount of duty - Section 12B ibid has wrongly been invoked by Commissioner (Appeals) - Commissioner (Appeals) has committed an error while invoking wrong provisions and while wrongly interpreting the decision of Apex Court - Assessee is held entitled for refund alongwith interest at the rate of 12% from the date of deposit till the date of realization: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-526-CESTAT-MAD
Indian Overseas Bank Vs CCE & ST
ST - The issue arises for consideration is, whether the credit availed by appellant-bank on the Service Tax paid on the basis of premium paid to Deposit Insurance and Credit Guarantee Corporation (DICGC) for insuring deposits is eligible for CENVAT Credit - Said issue was considered by Larger Bench of Tribunal in case of M/s. South Indian Bank 2020-TIOL-861-CESTAT-BANG-LB wherein it was held that insurance service provided by DICGC to the banks is an input service and credit of Service Tax is eligible - In appellant's own case 2021-TIOL-57-CESTAT-MAD , the Tribunal, for a different period, has followed the decision of Larger Bench and held that the credit is eligible - Following these decisions, Tribunal have no hesitation to hold that the credit of Service Tax paid on basis of premium paid to DICGC is eligible - The impugned order disallowing the credit and confirming the demand, interest and penalty is set aside: CESTAT
- Appeals allowed: CHENNAI CESTAT
2022-TIOL-525-CESTAT-MAD
Maruvur Arasi Logistics Pvt Ltd Vs CC
Cus - This appeal is filed by appellant, who is a Customs House Agent (CHA), against levy of penalty under Section 112(a) of Customs Act, 1962, levied by Adjudicating Authority - The allegation levelled against appellant in SCN is clearly the violation of Regulations 13(d) and (e) of CBLR, no specific act or omission is attributed to appellant - What is important is the act or omission that leads to confiscation of improperly imported goods - It becomes clear that both Section 111 and Section 112 ibid are attracted only when the goods are held to be liable for 'confiscation' when they are 'improperly imported goods' - Once the Revenue collects duty along with interest, then there remains nothing 'improper' about 'import' as the import itself becomes a proper import, in which event both these Sections will have no role, since when there is no improper import, then there remains nothing to confiscate - Though appellant urged various grounds, on this score alone, penalty levied here under Section 112 ibid on appellant, that too for violation under CBLR on the peculiar facts of the case, cannot be sustained - Accordingly, penalty levied is not in accordance with law - Impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT |
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