2022-TIOL-609-CESTAT-KOL
Lee And Muirhead Pvt Ltd Vs CST
ST - The appellant is engaged in providing 'Customs House Agent' services and is accordingly depositing the applicable service tax - They have also filed periodical returns as required in Service Tax Rules - The demand of Service Tax has been raised on amount of reimbursement claimed by appellant from clients during course of providing aforesaid services by invoking Rule 5 of Service Tax Rules, 1994 - The issue is no longer res integra inasmuch as very Rule on the basis of which impugned demand has been raised has been held to be ultra vires the provisions of Finance Act, 1994 - Following the law laid down by Supreme Court in Intercontinental Consultants & Technocrats Pvt Ltd 2018-TIOL-76-SC-ST , impugned demand raised by Commissioner cannot be sustained, except for the short payment of service tax which has already been deposited by appellant - Penalty imposed is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-608-CESTAT-AHM
Rubamin Pvt Ltd Vs CCE & ST
ST - Issue involved is, whether the appellant is entitled for refund of service tax paid on ocean freight on the ground that appellant is entitled for Cenvat credit of service tax paid on ocean freight and accordingly, they are entitled cash refund under Section 142(3) of Central Goods and Services Tax Act, 2017 read with Section 11B of Central Excise Act, 1944 - Following the order in Galaxy Poly Plast Industries , matter is remanded to original authority: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2022-TIOL-607-CESTAT-AHM
Savita Oil Technologies Ltd Vs CCE & ST
CX - The appellants were recovering transportation/freight from their buyers and mentioning the same separately on correspondence invoices/bills - The agreement entered by appellant with buyers prescribed the terms as FOR destination - However, in all documents, value of goods and the amount of freight was separately indicated - Revenue was of the view that the amount of freight collected from buyers should be included in assessable value of goods as the delivery was at the premises of buyer and hence the place of removal would be the premises of buyer - While SCN alleged that the amount of freight recovered in invoices is additional consideration, the Commissioner in impugned order has held that when the freight is collected in invoices for delivery upto buyer's premises, buyer's premises become the 'place of removal' - The decision of Apex Court in M/s Ispat Industries Limited 2015-TIOL-238-SC-CX covers all the aspects of this issue and holds that the buyer's premises cannot, in law, be a "place of removal" under Section 4 of Central Excise Act, 1944 - The decision of Commissioner holding buyer's premises as "place of removal" cannot be upheld - Impugned order upholding the demand of duty is therefore set aside - Since the demand of duty is set aside, demand of interest as well as penalty cannot be sustained: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-606-CESTAT-AHM
Drrk Foods Pvt Ltd Vs CC
Cus - Appellant had exported Rice under disputed Shipping Bills which were originally booked for Iran, but investigation revealed that the consignments were delivered to UAE and hence violated the provisions of para 2.40 and 2.53 of Foreign Trade Policy - Accordingly, SCN was issued to appellant - The whole case revolves around irregularities in respect of receipt of currency with regard to exported goods - These violations relate to post export conditions - There is no doubt that any violation relating to foreign exchange are covered under FEMA, 1999 and not under Customs Act, 1962 - Though the SCN invoked Section 113(d) and 113(i) of Customs Act, 1962 but these provisions were invoked by only alleging violation of para 2.53 of FTP and Section 8 of FEMA, 1999 - There was no violation of Customs Act in any manner - There is no dispute about description of goods, its quantity and value - The export of rice was neither prohibited nor restricted - It is a well settled law that in respect of alleged violation of foreign exchange, it is the erstwhile FERA authorities or FEMA authorities who are competent to initiate the proceedings against party - With regard to violations of Exim policy, adjudication can be done only by authorities notified under Section 13 of Foreign Trade (Development & Regulation Act), 1992 - Hence, since it was only a case of alleged violation of provisions of Foreign Trade (Development & Regulation Act) and rules made there under as well as that of Foreign Exchange Management Act, the Customs authorities did not have jurisdiction to issue the SCN for said violation.
In respect of appeal filed by M/s. V. Arjoon, CHA, it is found that the CHA had filed shipping bills as per documents provided to him by exporter - Therefore, bona fide act of appellants cannot be doubted - Further, since it is held that the goods were ultimately delivered to buyers at Iran, there is no justification for imposing penalty upon appellants, therefore, penalty imposed on all the co-appellants is set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2022-TIOL-605-CESTAT-MUM
Yara Fertilizers India Pvt Ltd Vs CC
Cus - The dispute pertains to composition of imported 'yaravita zintrac (zinc oxide suspension concentrate)' declared in bill of entry as 'other fertilizer' for being subjected to rate of duty applicable for Tariff Item 3105 90 90 of First Schedule to Customs Tariff Act, 1975 which, upon ascertainment at the behest of assessing officer, was reported to contain 09.9% nitrogen as fertilizing agent and 39.5% zinc as micronutrient and, thereby, necessitating classification elsewhere - Appellant had imported impugned goods with necessary permissions under Fertilizer (Control) Order, 1985; goods are, in essence, fertilizers and there is no reason, except in extraordinary circumstances of non-fitment within any of headings therein, to seek an alternative classification - The schema of chapter 31 is critical to this; there are two principal types: fertilizers of animal or plant origin and mineral and chemical fertilizers - Products in packed form are assigned special enumeration within Heading 3105 of First Schedule to Customs Tariff Act, 1975 besides 'other fertilizers' as a residuary enumeration and it is on the appropriateness of this tariff item that the dispute revolves - The nomenclatures of 'macronutrient' and 'micronutrient' has nothing to do with the overwhelming presence of these in samples - The three macronutrients - nitrogen, phosphorus and potassium - are critical for agriculture and are found in abundance in soil; it is the relative deficiency of any one or more of these that are remedied by addition of fertilizer of appropriate type or combination thereof - The jettisoning of permission for import by competent authority makes that deficiency in order of original authority obvious - With the impugned order departing from framework of appellate resolution, merging of order of original authority within it is not a proposition that is tenable; setting aside the order of first appellate authority may not, of itself, impact the order of original authority - Our appellate competence is limited to propriety and legality of order impugned which, in peculiar circumstance of decision of first appellate authority, does not encompass the order of original authority within it - As the two appeals, thus far, have been of appellant herein, it would hardly do for the appellant to be placed in this tenuous position - A finality to dispute is called for - Impugned order is set aside for having exceeded jurisdiction - The appeal of the importer before first appellate authority is restored for a fresh decision on correctness of order of original authority: CESTAT
- Matter remanded: MUMBAI CESTAT
