2022-TIOL-612-CESTAT-MAD
Sri Karpaga Leathers Vs CC
Cus - These appeals are filed by exporters of leather goods to whom SCNs were issued alleging, inter alia, that there was switching of samples sent/taken to Central Leather Research Institute (CLRI) for getting favourable certification for goods as 'Finished Leather' and thereby facilitating fraudulent export of 'Semi-finished Leather', to evade payment of export duty and to avail duty drawback, apart from other incentives - There is a difference inasmuch as the first report issued by CLRI mentions the colour of goods as "WHITE" as against "OFF-WHITE" in the second report - From perusal of first Mahazar dated 14.10.2016, Tribunal do not find any mention as to the same witnessing the drawing of samples, as contended by appellants, and hence, the Revenue has to explain as to what was sent for examination since the same is not forthcoming even from the orders of authorities below - Revenue has only alleged about switching of samples, but has nowhere established how and where the switching had taken place since, admittedly, right from day one, goods were at the godown of CFS, the accessibility of which may not be that easy - Revenue has not satisfactorily and effectively shook the first report of CLRI dated 07.10.2016 and hence, it has to be held that the norms and conditions laid down under Public Notice 21/2009-14 are satisfied, as opined by expert - Hence, the demand of confiscation apart from demand of duty liability and the various penalties levied on appellants cannot sustain, since the very basis on which the case of Revenue rests is not well-founded - Impugned orders are set aside: CESTAT
- Appeals allowed: CHENNAI CESTAT
2022-TIOL-611-CESTAT-AHM
JMC Projects India Ltd Vs CST
ST - T he case of department is that appellant was paying service tax under Commercial or Industrial Construction Service / Construction of Complex Service for period prior to 01.06.2007 - However, after introduction of work contract service w.e.f. 01.06.2007, appellant switched over to payment of Service tax to Works Contract Service Composition Scheme for ongoing projects - From Circular No. 128/10/2010-S.T. , it is clear that for ongoing contracts which were classified where service tax has been paid in respective specified services before being classifiable under 'works contract service', benefit of composition scheme would not be applicable - Appellant has paid service tax on ongoing projects under Commercial or Industrial Construction Services and Construction of complex service - Therefore, on these ongoing projects option to pay service tax under Works Contract Rule, 2007 is not available to appellant - In appellant's own case, Gujarat High Court which was reported as JMC PROJECTS (INDIA) LTD 2014-TIOL-579-HC-AHM-ST categorically held that in respect of ongoing projects as on 01.06.2007 if any payment of service tax was made under respective taxable service head before the said date, qua such contract, composition scheme was not available - Following the said decision, for the ongoing projects as on 1-6-2007, if any payment of service tax was made under the respective taxable services, composition scheme would not be available for the same - As regard simultaneous penalties under section 76 and 78, as per settled legal position penalty under section 76 is not tenable when penalty under section 78 is imposed - This issue no longer res integra - Appellant is not liable for penalty under section 76 - Accordingly, simultaneous penalty imposed under section 76 is set aside: CESTAT
- Appeals partly allowed: AHMEDABAD CESTAT
2022-TIOL-610-CESTAT-KOL
MSP Sponge Iron Ltd Vs CCGST & CE
CX - The SCN demands major part of Central Excise duty liability for period beyond five years from the date of SCN and Adjudicating authority has also confirmed the same, which has been further upheld by Commissioner (A) - SCN is issued on 31.10.2011 while the demands have been confirmed for period from 01.04.2004 to 31.10.2006 - Provisions of Section 11A of CEA, 1944 mandates recovery of tax not paid/short paid for a period of up to five years by invoking extended period - The SCN definitely cannot demand Central Excise duty liability for period prior to October 2006 - To that extent, demand of Central Excise duty liability which is confirmed for period from 01.04.2004 to 31.09.2006 is set aside - As far as for remaining demand for period i.e. October 2006 falling under five years of limitation and beyond one year of limitation, apart from general aversion, there is no evidence to show that duty has not been paid by way of fraud or suppression of facts with intention to evade payment of duty - Case has been booked on the basis of audit objection by scrutinizing financial records of appellant - It is well settled law and as held by Tribunal in case of Aditya College of Competitive Exam. 2009-TIOL-2216-CESTAT-BANG and Mega Trends Advertising Ltd. 2019-TIOL-2945-CESTAT-ALL that extended period of five years cannot be invoked in case of audit objection - Since entire demand is time barred, therefore, Tribunal refrain from going into the merits of case - The impugned order is not sustainable and the same is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
