2022-TIOL-642-CESTAT-KOL
Eanam Ahmed Laskar Vs CC
Cus - The issue arises for consideration is, whether Revenue has established the allegation that seized betel nuts are of foreign origin and are smuggled - On going through the records, it is seen that Revenue has not adduced any evidence to prove the allegation - Betel nut is not notified under Section 123 of Customs Act, 1962 and therefore, the burden of proof lies with the department to prove the same - It is not just enough to prove by negative inference - Allegation requires to be proved by cogent and positive evidence - No such positive evidence has been put forth by department - There is not even a reference or narration as to how and where from impugned goods are smuggled - The Tribunal in case of Smt. Laltanpui and Dharmendra Kumar Jha held that betel nut being a non-notified commodity under Section 123 of Customs Act, 1962, the onus is on the department that seized goods were in fact smuggled into India, but the department has not discharged its burden - In view of same, betel nut being non-notified goods; burden to prove the fact of smuggling lies on the department and the same has not been discharged - Thus, seizure of impugned betel nut is not justified: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-641-CESTAT-DEL
CCGST Vs Halcrow Consulting India Pvt Ltd
ST - Where the subject matter of an appeal already filed before Tribunal is found to be less than Rs. 50.00 Lakhs, Department is supposed to seek withdrawal of said appeal - Without following monetary limits proper jurisdiction of Tribunal shall be affected, also keeping in view that appeal is filed by Department, first party of litigation who is the master of its litigation, request of withdrawal as made by Department is hereby accepted - However, keeping in view submissions of appellant and the fact that grievance of appellant with respect to order of Commissioner (Appeals) in impugned appeal is same as is grievance of Department in impugned appeal i.e. the Department has challenged the power of Commissioner (A) to remand - At this stage Section 35A of CEA, 1944 is perused - The provision do not extend power of remand to Commissioner (A) - Also from order of Commissioner (A) he has specifically acknowledged the entitlement of appellant to seek impugned refund - Order of Commissioner (A) has committed apparent non-compliance of statutory provisions [Section 35A of CEA] same amounts to be an error apparent on the face of said order - Hence, while accepting the request of Department for withdrawing impugned appeal but keeping in view that appellant was also to file an appeal seeking same prayer as Department has prayed and that the time of that appeal has already expired that liberty is given to appellant to seek appropriate remedy before commissioner (A) - Commissioner (A) is required to consider their prayer in case the assessee exercises said appropriate remedy, without applying bar of limitation - Impugned appeal of Department is allowed to be withdrawn: CESTAT
- Appeal dismissed: DELHI CESTAT
2022-TIOL-640-CESTAT-AHM
J P Biscuits Pvt Ltd Vs CCE & ST
ST - This appeal has been filed by appellant against denial of refund of certain amount deposited through GAR challan - Appellant deposited a certain amount through GAR challan - Thereafter, in three days they informed revenue that the said deposit is in nature of a deposit under Rule 6(1A) of Service Tax Rules, 1994 - Said deposit has never been adjusted against any tax liability in any subsequent return filed by appellant - Amount deposited has never attained character of tax or duty - Relying on decision of Tribunal in case of Cochin International Airport Ltd 2021-TIOL-168-CESTAT-BANG , refund is allowed: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-639-CESTAT-DEL
Kotdwar Steels Ltd Vs CC & CE
CX - This appeal was initially filed by appellant who is a former Director of M/s. Kotdwar Steals Limited the Company before Allahabad Bench of Tribunal to assail the order dated December 27, 2011 passed by Commissioner by which amongst others, a penalty of Rs. 5 Lakhs was also imposed upon appellant under Rule 26 of CER, 2002 - Appellant submitted that since penalty was imposed upon them merely for the reason that Company was not entitled to claim area based Exemption, the order deserves to be set aside in view of earlier decision - Impugned order in so far as seeks to impose a penalty of Rs. 5 lakhs on appellant, same is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-638-CESTAT-AHM
Zydus Healthcare Ltd Vs CCE & ST
CX - Assessee supplied medicaments to institutional buyers for their own use in hospitals with label 'Not for sale/Hospital supply not for sale' without any MRP - Revenue contended that assessee was required to affix MRP and assess the same u/s 4A Central Excise Act, 1944 - Adjudicating authority confirmed the demand and the same was upheld by Commissioner (Appeals) in the impugned order. Held : The tribunal had already set aside the demand on an identical issue and same set of facts in previous order with the reasoning that these products were brought within the assessment of section 4A by Notification No. 2/2005-C.E. (N.T.) - Issue is res-integra and demand is not sustainable - Impugned order set aside - Appeals allowed: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
