2022-TIOL-671-CESTAT-DEL
Prem Kumar Ojha Vs CC
Cus - There is an application filed by appellant seeking waiver of pre-deposit - Section 129E does not empower the Tribunal or Commissioner (A) to waive pre-deposit or to reduce predeposit, Tribunal is not inclined to waive or reduce the pre-deposit and, therefore, no case for interference is made out in the matter - As the appellant failed to make pre-deposit, appeal would have to be dismissed: CESTAT
- Appeal dismissed: DELHI CESTAT
2022-TIOL-670-CESTAT-MAD
Dhyan Networks And Technologies Pvt Ltd Vs CGST & CE
ST - Appellant had filed refund claim under Rule 5 of CCR, 2004 r/w Notfn 27/2012-CE (NT) for refund of unutilized CENVAT credit - Same were rejected by lower authorities - The first issue is with regard to non-fulfillment of conditions as required under clause 2(g) and clause 2(h) of said Notfn - As per clause 2(h) of Notfn, appellant is required to debit the amount that is claimed as refund - Said issue as to whether refund claim can be rejected on the ground that the balance of credit at the end of quarter is 'nil' was discussed by Tribunal in case of Scribetech India Healthcare Pvt. Ltd. 2020-TIOL-1550-CESTAT-BANG - Following the said decision, rejection of refund claim on this ground is not justified - The other ground for rejection of refund is that the invoice with regard to maintenance of cafeteria has been issued on unregistered premises - As argued by appellant, said issue is no longer res integra - In case of ABM Knowledge Ltd. 2019-TIOL-914-CESTAT-MUM , Tribunal has held that there is no requirement in CCR, 2004 that the premises should be registered for availing credit - The invoice issued with regard to rent paid for office has been rejected stating that the rent for month of July 2016 has been paid in June 2016 - When the rent has been paid in advance, invoices will be issued in advance - This cannot be a reason for rejecting credit - The issue with regard to non-compliance of clause 2(g) of Notfn has been already held in favour of appellant - Rejection of refund is not justified: CESTAT
- Appeals allowed: CHENNAI CESTAT
2022-TIOL-669-CESTAT-MUM
Ally Pharma Options Pvt Ltd Vs CCE
CX - Appellant, an EOU exporting goods directly and also through merchant exporters - During audit, it was noticed that in respect of exports made through Merchant Exporters certain discrepancies such as on some of shipping bills in respect of these exported goods, status of appellant as EOU was not shown, in others, name of noticee and its status as an EOU was not mentioned - Annexure to each of SCN is an admission of fact that goods were cleared for export from premises of appellant - Also neither the SCN nor impugned order state that proof of export was not submitted by appellant/ merchant exporter/ third party exporter in any of cases - When goods were cleared for exports and proof of export submitted in each and every case, demand made treating these goods to be cleared in DTA, is contrary to provisions of Rule 18 of CER, 2002 - In case of any unit whether an EOU or any DTA unit exporting goods, proof of export once submitted establishes the factum of export - Impugned order could not have proceeded to demand Central Excise Duty contrary to provisions of Rule 18 - It could have been the case of revenue that in view of Circular of 1991 and of 2006, benefit of export for purpose of determining NFE, for purpose of evaluating performance of unit should have been denied - However, performance of EOU's is monitored by Development Commissioner to whom the return showing export turnover is furnished by unit in manner as prescribed - There is not even a whisper in SCN or in impugned order, that Development Commissioner has while evaluating export performance of unit has denied the benefit of export in respect of these consignments cleared by appellant in terms of Import Export Policy, 2009-14 read with para 6.18 of Handbook of Procedures, 2009-14 - If the benefit is provided in terms of statutory provision, same can be circumscribed/ denied by taking resort to a circular - Since no merits found in demand, Tribunal is not inclined to consider the issue on other aspect of limitation and demand for interest: CESTAT
- Appeal allowed: MUMBAI CESTAT
