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2022-TIOL-548-CESTAT-DEL
Ram Sewak Tiwari Vs CC
ST - The issue is about classification as to whether the services rendered by appellant are that of Erection, Commissioning and Installation or are of nature of Works Contract Services - The services provided by appellant since involve the goods also which are leviable to sales tax/VAT, the contracts in question are definitely in nature of works contract - Even if those being the contracts for Erection, Commissioning and Installation service - Since, the property in goods is also involved in rendering said services, appellant was entitled for benefit of abetment of 67% under notfn no. 19 of 2013 - The appellant was entitled for exemption of 67% or gross amount charged as the same was including value of pumps, plants and other equipments - There appears no liability of appellant as was proposed vide impugned SCN and as has been confirmed by Commissioner (A) who no doubt has been given the benefit of 67% abetment - The findings of Commissioner (A) therefore are opined to rather be contradictory in nature - The question of invoking extended period of limitation also does not arise as appellant is a registered service provider and was regularly submitting ST-3 returns with no objection by Department except for impugned SCN - No suppression of facts or malafide intent to evade duty can be attributed to appellant - Hence, no occasion for Department to invoke the proviso of Section 73 of Finance Act - Impugned order is hereby set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-547-CESTAT-DEL
Design Dialogues India Pvt Ltd Vs CCT & GST
CX - Issue involved is, whether the appellant is entitled to interest on amount collected from them during investigation, admittedly paid under protest, under provisions of Section 35FF of CEA, 1944 - The grievance of appellant is that although refund of principal amount has been given, however, interest has not been granted as per law, as applicable under Section 35FF and as laid down by Division Bench of Tribunal in case of Parle Agro Limited 2021-TIOL-306-CESTAT-ALL - Adjudicating Authority have granted interest on refund for a truncated period i.e. from date of filing of appeal before Tribunal and further have calculated eligible amount pre-deposit @ 7.5% of demand as eligible for calculation of interest - Appellant is entitled to interest from date of deposit or date of encashment of cheque, till the date of grant of refund @ 12% p.a., as held by Tribunal in case of Parle Agro(P) Ltd. 2021-TIOL-306-CESTAT-ALL following the ruling of Apex Court in case of Sandvik Asia Ltd. 2006-TIOL-07-SC-IT - Adjudicating Authority is directed to grant balance amount of interest @ 12% per annum within a period of 45 days: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-546-CESTAT-AHM
Ambica Engineering Works Vs CCE & ST
CX - The appellant commenced manufacturing of textile machineries namely "Relax Drum washer Machine" and cleared the same availing exemption under notfn 06/2002 describing the same as "Relax Drum for Relaxation of Fabric" in their sale invoices - In SCN, it was proposed to deny exemption notfn 06/2002- CE - As regard the merit of case that whether the appellant is eligible for exemption Notfn 06/2006-CE, the issue attained finality as per Tribunal's order in case of Bhagyarekha Engineers Pvt Ltd 2014-TIOL-2117-CESTAT-AHM against the appellant - The limited issue is that whether the invocation of longer period in terms of proviso to section 11A is correct - It is not only the appellant but there are other manufacturers also who were under bona fide belief that the goods in question is covered under exemption Notfn 06/2006-CE - All the information regarding nature of goods claimed for exemption notification was within the knowledge of department - Once an assessee claim exemption notification and the same is in the knowledge of department, the department firstly to do the proper verification to ascertain whether the goods on which exemption is claimed is covered under it or otherwise - The belief of an assessee may be right or wrong but it is incumbent on department to ascertain the correctness of eligibility of exemption notification - Therefore, by declaring the goods under exemption there cannot be a charge of suppression of fact on the part of appellant - Demand for the period 15.04.2004 to February 2008 was raised by SCN dated 06.04.2009 hence the entire demand is prior to normal period of one year, therefore same is hit by limitation - Accordingly, demand raised in SCN and confirmed by Adjudicating Authority is not sustainable being time barred: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-545-CESTAT-MUM
Sunil Subramanian Vs CC
Cus - During search, 38 boxes containing a total 1895 sleeves of various brands of imported cigarettes and some documents were found - The appellant was present in said premises and claimed ownership of goods found during such operation - Customs officers seized the imported cigarettes under reasonable belief that same were brought into India in contravention of provisions contained in Customs Act, 1962 - Both the authorities below in their respective orders have held that the goods in question are not notified under Section 123 ibid and accordingly, discharging the burden of proof regarding licit acquisition of cigarettes were entirely lies with appellants and since, no credible evidences were produced, confirmation of adjudged demands are in conformity with the statutory provisions - However, Central Government vide Notfn 204/84-Customs had specified 'cigarettes' as notified goods for the purpose of sub-section (2) of Section 123 ibid - It is an admitted fact that the adjudication as well as the impugned orders have not considered the notification dated 20.07.1984 - Therefore, matter remanded to original authority for consideration of notification, proper application of the same and thereafter, to decide the cases afresh - Since this is an open remand, original authority should examine the evidence and considering the submissions of appellants, matter should be adjudicated afresh: CESTAT
- Matter remanded: MUMBAI CESTAT |
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