2022-TIOL-581-CESTAT-MUM
Aban Offshore Ltd Vs CST
ST - There are two issues; first pertains to taxability of Rs. 60,57,49,157/- for drilling for oil exploration in offshore locations between July 2009 and February 2010 in demand of Rs. 60,57,49,157/- confirmed under section 73 of Finance Act, 1994, along with interest, and imposition of penalty of like amount under section 78 of Finance Act, 1994 - The second, for period from October 2008 to February 2010, arises from recovery of CENVAT credit of Rs. 90,02,889/- on 'input' and 'input service' representing duty/tax paid on goods and services used in relation to activities that were non-taxable under rule 14 of CCR, 2004, along with appropriate interest, and penalty of like amount under rule 15 of CCR, 2004 - In view of the settled finding of the High Court of Bombay of non-taxability between July 2009 and February 2010, insofar as the drilling undertaken by appellant for oil exploration, the impugned order is set aside - Turning to the other dispute in their appeal for the period from October 2008 to February 2010, it is the contention of appellant that with CENVAT credit having been reversed, interest liability will not arise in view of decision of High Court of Karnataka in Bill Forge Pvt Ltd 2011-TIOL-799-HC-KAR-CX - It is on record that the appellant had voluntarily reversed CENVAT credit alleged to have been taken without authority of law - Liability for interest does not merit approval and, consequently, the penalty too is unwarranted - Accordingly, the impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-580-CESTAT-KOL
Sriram Insight Share Brokers Ltd Vs CST
ST - Appellant is engaged in business of Stock broking and is paying applicable service tax and filing returns - SCN was issued to propose demand alongwith applicable interest and penalty - Appellant submitted a reconciliation statement which shows the brokerage income as per the ledger and disputed adjusted amount which was added to said ledger amount to submit that service tax has been deposited in Financial Year 2012-13 - They also submitted a Chartered Accountant's Certificate to justify said computation - Adjudicating authority never requisitioned the ledger copies before adjudicating the case inasmuch as the entire proceedings were initiated consequent to audit undertaken by authorities where the authorities have examined the entire Books of Accounts and service tax returns filed by appellant - Appellant has enclosed ledger copies - Even though the said ledger copies would have been submitted by appellant in course of adjudication, same would not have served any purpose in as much as reconciliation statement together with CA certificate were already available with Commissioner - Having not disputed the same, Commissioner could not have confirmed the demand - No reason found to sustain the service tax demand and interest thereon and equivalent penalty imposed on appellant: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-579-CESTAT-AHM
Johnson Controls Hitachi Air Conditioning India Ltd Vs CCE & ST
CX - The issue involved is that whether the appellant is entitled for Cenvat credit of services provided by them to the third party on free of cost basis - Same issue in appellant's own case has been decided by Tribunal in their favour which is for the earlier period and it is held that the credit on warranty service provided free of cost during the warranty period through third parties cannot be denied - In view of the said decision, the issue is finally setttled - Accordingly, the impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-578-CESTAT-AHM
Sun Pharmaceutical Industries Ltd Vs CCE & ST
CX - Issue involved is, whether the appellant is entitled for refund of unspent balance of Personal Ledger Account (PLA) due to change in taxation regime from central excise to GST with effect from 01.07.2017 and whether the limitation as provided under Section 11B of Central Excise Act, 1944 is applicable in the case of refund of unspent PLA Balance - Commissioner (Appeals) rejected the refund claim on the ground that the limitation under Section 11B ibid is applicable according to which the claimant should have filed the refund within one year from date of payment - In case of PLA balance, it is not deposited as a duty but it is deposited as advance towards duty - The PLA Amount takes the color of excise duty only when it is utilized for payment of duty on clearance of excisable goods - The unspent balance of PLA is only advance not duty therefore, Section 11B ibid is not applicable - Appellant is entitled for refund of PLA balance and limitation provided under Section 11B ibid is not applicable - Impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-577-CESTAT-AHM
Diamond Creations Vs CC
Cus - The issue involved is that goods imported by appellants declaring the same as Polyester Bed Cover are Polyester Bed Cover or Polyester Fabric and whether the same is classifiable under Tariff Item 6304 19 30 of Customs Tariff Act, 1975 as declared by appellant or under Tariff Item 5407 54 90 ibid as claimed by revenue - Since the revenue has not been able to discharge their burden of proof hence the classification of goods declared by appellants cannot be disturbed - As regards to contention of revenue regarding forgery of textile committee report, no reason found to go into the detail as the fact that reports were forged does not impact classification assuming the reports relied upon by department are the original one as was held in Sunrise Trader case - Lastly personal penalty on charge of forgery of Textile Committee report, Mumbai on Bajrang Sharma, Amit Momamya and Mahesh Bhanushali, have been imposed mainly on the basis of confessional statements of all three persons involved - Forgery is a very serious charge which should be proved by clear and cogent evidence which seems to be missing as two of them have retracted their statement and the statement of Mahesh Bhansuhali is the one left for which both the appellants have asked for cross examination which was denied by lower authorities, which should have been given since other confessional statements were retracted - Imposition of penalty only on the basis of Mahesh Bhanushali is not tenable, hence set aside - When department's claim of change of classification failed, personal penalties being consequential to main case of classification would also not sustain - Impugned orders are set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
