2022-TIOL-587-CESTAT-HYD
Bharat Sanchar Nigam Ltd (BSNL) Vs CCT
ST - Appellant is in appeal against impugned order wherein demand of Cenvat credit has been confirmed by Adjudicating authority along with imposition of penalty - As regards the first issue regarding availment of ISD credit by Tirupati unit for materials used in other units, issue in this regard is settled by judgment of Karnataka High Court in case of ECOF INDUSTRIES PVT. LTD. 2011-TIOL-770-HC-KAR-ST - There is no dispute as to availment of Cenvat credit by appellant and distribution by ISD - Since the issue is already settled by said judgment, demand is set aside - As regards the next issue of utilisation of excess Cenvat credit by ignoring provisions of Rule 6(3)(c) of CCR, 2004, appellant has produced certain reconciliations by way of additional submissions which were not produced before lower authorities - Since the entire issue in this regard revolves around calculations, matter remanded to Adjudicating authority to verify the correctness of calculations of appellant after providing an opportunity of being heard and thereon pass a reasoned and speaking order for the same - As regards the last issue of payment of interest on excess Cenvat credit availed by appellant on capital goods in first year of purchase and also penalty being in violation of Rule 4(2)(a) of Cenvat Credit Rules, 2004, matter is squarely covered by judgment in case of BILL FORGE PVT. LTD. 2011-TIOL-799-HC-KAR-CX - Said amounts has been utilised by appellant also, hence interest is payable by appellant for the amounts utilised towards payment of service tax from the date of availment till the due date of availment - As regards penalty, since the demand of Cenvat credit itself has been dropped in adjudication proceedings, question of imposition of penalty under Rule 14 ibid does not arise: CESTAT
- Appeal partly allowed: HYDERABAD CESTAT
2022-TIOL-586-CESTAT-MUM
Anglo Eastern Maritime Services Pvt Ltd Vs CCGST
ST - Issue relates to rejection of refund claim made as per provisions of Notification No. 27/2012-C.E. (N.T.) of CENVAT credit by exporter of service on the ground that exporter is an intermediary and place of provision of service is India - Agreement copy clearly reveals that appellant selects and trains crew members as an independent agency and provides the trained personnel to its overseas client namely M/s. Anglo-Eastern Tanker Management (Hong Kong) Ltd. - The said service recipient provides entire ship management service to ship owners and in the process it recruits the crew members selected and trained by appellant - In the process, appellant gets 15% as its remuneration over and above the amount spent in completing the recruitment process, training and making provision for Visas and travels for crew members - Agreement copy clearly contains provision that it is an agreement on principal to principal basis and during subsistence of agreement, it is the appellant who shall indemnify overseas client against any claim or demand, cost, action that may be incurred or suffered by Manager mainly the overseas clients - It is erroneous to hold that AETM (Hang Kong) Ltd. had outsourced crew management service to appellant whereas in its actuality it picked up trained crew members from appellant selected at its instance and recruited them in its own company for providing crew management service to ship owners - Appellant is entitled to get the refund of CENVAT credit claimed by it from the period from October, 2016 to June, 2017 amounting to Rs. 12,01,918/- alongwith applicable interest and the Department is directed to pay the same within two months: CESTAT
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-585-CESTAT-MUM
Gajanan Paper Mills Pvt Ltd Vs CCE & ST
CX - Appellant made clearances of finished products on payment of duty at the rates prescribed under various notfns issued by Central Government - They also availed cenvat credit of Central Excise duty paid on inputs and capital goods received in factory - Payment of Central Excise duty on final product by appellant during the disputed period was objected to by Department on the ground that the appellant should have self assessed at 'NIL" rate of duty under Sl. No.90 of Notification No. 4/2006-C.E. as amended - The exemption entry at Sl. no. 90 was attached with two conditions for availing of benefit of duty exemption and therefore, it was a conditional exemption and not an absolute exemption, as contemplated by Section 5A(1A) of Central Excise Act, 1944 - Since, appellant had opted for payment of duty on clearance of finished products and availed cenvat credit of Central Excise duty, such option exercised by appellant cannot be questioned by department inasmuch as there was no stipulation contained in subject notification that only condition No. 90 appended thereto had to be followed and not otherwise - Thus, appellant had correctly assessed the duty liability as provided under Sl. No. 93 contained in notfn dated 01.03.1998, as amended - Thus, there was no contravention of Cenvat statute in availment and utilization of Cenvat credit - Further, it is not the case of Revenue that the duty amount collected by appellant was not deposited with Government Exchequer - Hence, provisions of Section 11D ibid cannot be invoked for recovery of duty amount in question - Issue is no more res integra , in view of the order in case of Balkrishna Paper Mills Ltd. & Ors. 2015-TIOL-1100-CESTAT-MUM - No merits found in impugned order, insofar as it has confirmed adjudged demands on appellant - Therefore, impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-584-CESTAT-AHM
DKNV Engineering Pvt Ltd Vs CCE & ST
CX - The limited issue involved is that Revenue denied Cenvat credit availed on strength of Xerox copies of purchase invoices - The credit was denied only on the basis that appellant failed to produce original copy of invoices - However, there is no dispute as regards the purchase of goods and use thereof in manufacture of final product - The goods are entered in purchase accounts and therefore, purchase of goods, receipt and use thereof in manufacture of final products is not disputed - Merely because the original copy of invoice is not available, it cannot alter the important criteria of availing the credit when it is satisfies other criteria - It is settled that availment of credit on the strength of photo copies of the invoices is just a procedural lapse and cannot be made the basis to disallow the credit - In the absence of any evidence that appellant had not received the goods, credit cannot be denied - Therefore, reasons for denial of credit is not sustainable - Accordingly, impugned order is set-aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-583-CESTAT-MUM
Hind Offshore Pvt Ltd Vs CC
Cus - Appeal filed against impugned order refusing relief to appellant on the ground that the same is hit by period of limitation prescribed under Section 128 of Customs Act, 1962 - Communication of decision/order was made on 12.01.2018 and the date of uploading in link provided by Department, cannot be taken as date of communication of order besides the fact that dispute concerning non-availability of order in said link is also noticeable in RTI order - Moreover, no Court would presume such a document uploaded in website as genuine unless it is a public document containing seal and signature of public authority or its certified copy that would meet the requirement of Section 79 of Indian Evidence Act - Matter is remanded back to Commissioner (Appeals) to pass an order in conformity to dictate of Section 128A(4) of Customs Act, 1962 - Impugned order is set aside, as the same is within the condonable period of limitation prescribed under Section 128 of Customs Act, 1962 - Matter is remanded back to Commissioner (Appeals) for re-hearing in terms of the observation made above: CESTAT
- Matter remanded: MUMBAI CESTAT
2022-TIOL-582-CESTAT-AHM
Suzuki Morots Gujarat Pvt Ltd Vs CC
Cus - This appeal is directed against impugned order holding that goods imported by appellant are appropriately classifiable under Heading 8708 of Customs Tariff Act, 1975 and have been correctly assessed at BCD @ 15% and IGST 28% - The Commissioner (Appeals) while deciding the classification of disputed goods, in question, under heading 8708, has not given any finding as to whether all the conditions which are very important for deciding the classification of goods, satisfy/comply in respect of disputed goods - The Commissioner (Appeals) findings are silent on this vital aspect of provisions - Further, Commissioner (Appeals) in impugned order not given his finding related to classification of goods individually item wise - Whereas appellant produced the list of 14 items imported vide Bills of Entry - The lower authorities have not examined the legal aspects properly to come to conclusion for correct classification of goods in question - Hence, matter remitted back to Commissioner (Appeals): CESTAT
- Matter remanded: AHMEDABAD CESTAT
