2022-TIOL-668-CESTAT-MUM
Rosa Impex Pvt Ltd Vs CCGST
ST - Delay of 1354 days - Additional documentary proof in support of bonafide delay occasioned due to events beyond control of appellant and provision governing refund vis-a-vis rebate, Co-ordinate Benches having no weight being attached to a Division Bench in absence of letter patent appeal like that being available with High Courts, Trbunal refrain from analysing distinction made in judgment of Tribunal in M/s. Sai Shree Construction and M/s. Bilt Graphic Paper Products Ltd. except that judicial proprietary demands respect for order passed by Co-ordinate Benches has become an accepted legal principle by virtue of consistent decisions of High Courts and Supreme Court, one of which was reported in 2017-TIOL-167-SC-CUS - As has been held in Yapp India Automotive Systems Pvt. Ltd. 2019-TIOL-370-CESTAT-MUM , Tribunal has not been divested of its power to condone delay and remand the appeal for re-adjudication otherwise an express restriction would have been made in Customs Act itself under Section 129A or Section 86 of Finance Act, 1994 - Department has withdrawn the appeal filed against Yapp India Automotive Systems Pvt. Ltd. order from High Court of Bombay making its findings a binding precedent - Therefore, in acceptance of death of Managing Director and brain haemorrhage of Director of Appellant Company as legal disability due to mental insanity, delay in filing appeal before Commissioner (A) is condoned by invoking principle enumerated under Section 6 of Indian Limitation Act and matter is remanded back to Commissioner (A) for a de novo hearing on merit of appeal against order passed by refund sanctioning authority - Commissioner (A) is supposed to give his/her findings also on nature of refund claim if made as a claim on rebate or claim on deposit made under mistake of fact, which reference to judicial precedent - Delay of 1354 days in filing both appeals before Commissioner (A) is condoned: CESTAT
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-667-CESTAT-DEL
Umed Bhawan Palace Vs CCGST, Excise & Customs
ST - Appellant is rendering service of accommodation in hotel and restaurant service - Pursuant to audit, it appeared to revenue that appellant have not discharged service tax on three invoices of legal services/fee of advocate attracting service tax under RCM - SCN was issued proposing to demand tax and also proposing to impose penalty - Appellant admitted their liability and deposited the service tax - However, said amount was confirmed and appropriated and further equal amount of penalty was imposed under Section 78 of Finance Act, 1994 - There is no deliberate non-compliance and further the situation is wholly revenue neutral - Thus, there is no incentive for appellant to evade payment of service tax under RCM - Accordingly, penalty under Section 78 is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-666-CESTAT-DEL
Shivan Cables Vs CCE
CX - Appellant submits that a large number of documents were seized by Department of which only some were relied upon - The documents which were seized from appellant but which were not relied upon have not been returned - Secondly, he submits that statements of two persons were relied upon in SCN but those persons were neither examined under Section 9D nor were allowed to cross examination and the report of a hand writing expert was relied upon but his cross-examination was not allowed despite specifically asking for the same - There was indeed violation of principles of natural justice in the matter - Accordingly, matter is remanded back to the original authority: CESTAT
- Matter remanded: DELHI CESTAT
2022-TIOL-665-CESTAT-DEL
Hindustan Coca Cola Beverages Pvt Ltd Vs CCE & CGST
CX - The manufacturer buys capital goods in order to use it for the manufacture of final products - They availed the credit of excise duty on such inputs/capital goods which are utilised while making the final product as per Rule 4 of CCR, 2004 - In manufacturing industry, it is a common practice to remove the goods (inputs /capital goods) from the factory place either as such or after use - It is not the case of appellant because they had transferred capital goods/ generator set from one of its unit to its another unit - Apparently and admittedly appellant has put up a price in invoice while transferring the said generator set to its Dasna plant - Further, appearance of word 'sale' in Rules 9 ad 10 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 dealing with value of finished goods cleared to related units recognised the clearance to related unit as sale - The adjustment of accounts in respective unit becomes consideration received by recipient and accordingly the entire process of transfer of operation of goods is a transaction of sales and the values as mentioned in invoice becomes transaction value - Since the appellant has given the value in invoice while making said transfer, said value has to be considered for calculating the reversal amount - Coming to the plea of SCN being barred by time, appellant has tried to mislead on pretext of stock transfer - Such misleading has benefitted him evading the amount for which he would have been liable being the amount equal to the duty leviable on transaction value on clearance of capital goods - Tribunal relies upon the decision of Tribunal in case of Seven Star Steels Ltd. 2013-TIOL-65-CESTAT-KOL - No error has been committed by Department while invoking extended period of limitation - Penalty has also been rightly imposed - The order under challenge is hereby upheld: CESTAT
- Appeal dismissed: DELHI CESTAT
2022-TIOL-664-CESTAT-MAD
V K Industrial Corporation Vs CC
Cus - The issue is as to whether the goods are coated with zinc and is excluded from the levy of anti-dumping duty as per Notification No. 17/2017-Cus. (ADD) - During pendency of appeal, appellant had filed an application to send the sample of goods for chemical analysis - The test report issued by Metal Lab shows that the goods are plated with zinc - The case put forward by appellant succeeds - Demand of anti-dumping duty along with interest cannot sustain - The impugned order is set aside - Consequently, the appeals filed by department contending that penalty has to be imposed under sec. 114A of Customs Act, 1962 does not survive: CESTAT
- Assessee's appeal allowed/Department's appeals dismissed: CHENNAI CESTAT
2022-TIOL-663-CESTAT-MAD
Chaithanya Projects Pvt Ltd Vs CC
Cus - Appellant is challenging impugned order whereby the penalty imposed under Section 114A of Customs Act, 1962, as imposed by Original Authority came to be sustained - Initial dispute was with regard to classification which, as canvassed by appellant, was debatable, but however, having not disputed, they chose to accept classification adopted by Adjudicating Authority and also paid differential duty along with applicable interest even before completion of adjudication - It is precisely for this reason that in O-I-O there is an order appropriating these amounts towards differential duty and interest - Hence, declaring a wrong classification per se would not amount to collusion or any wilful mis-statement or suppression of facts and other than mere allegation, Revenue has not placed on record any supporting document/s nor has it established the existence of collusion - It is settled position of law that mere acceptance and payment of differential duty would not ipso facto attract any penalty under statute - Hence, fact of payment of differential duty along with interest by appellant and order of appropriation reflected in O-I-O is a sufficient ground to disbelieve " mala fides " on the part of appellant - The first test of collusion has to be established and only then could the penalty be imposed - Having not satisfactorily established collusion or any wilful mis-statement or suppression of facts, penalty under Section 114A of Customs Act, 1962 appears to have been imposed mechanically by Adjudicating Authority, which is not in accordance with statute - Impugned order is therefore set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
