2022-TIOL-687-CESTAT-DEL
CCE, C & CGST Vs Shree Cement Ltd
CX - The issue involved is, whether Cenvat credit of 2% CVD paid on import of steam coal is admissible to assessee in accordance with Notification No. 12/2012-Cus. as amended, in terms of embargo contained under Rule 3 of CCR, 2004 - The assessee have availed Cenvat credit in respect of 1%/2% CVD paid as per Notification No. 12/2012-Cus. - The specific bar on which Revenue is harping upon is provided under Rule 3(1)(i)(a)(b) ibid for availing Cenvat credit in respect of goods exempted from payment of excise duty under Notification Nos. 1/2011-CE and 12/2012-CE but there is no such bar in respect of CVD paid under Notification No. 12/2012-Cus, therefore assessee is eligible for Cenvat credit in respect of 1% or 2% CVD paid under Notification No. 12/2012-Cus - Otherwise also, issue involved is no more res integra and is covered in favour of assessee in view of various decisions of Tribunal - Recently in M/s Hindustan Zing Ltd 2020-TIOL-1545-CESTAT-DEL it is held that manufacturing company was justified in taking Cenvat credit - Said decision of Tribunal was followed by Tribunal in Shri Arihant Tradlinks India Pvt Ltd and it is held that assessee therein are eligible for Cenvat credit in respect of 2% CVD paid under Notfn 12/2012-Cus - Since a consistent view has been taken by Tribunal in favour of assessee on this issue from time to time, no reason found to take a contrary view and therefore no merits found in appeals filed by Revenue: CESTAT
- Appeals dismissed: DELHI CESTAT
2022-TIOL-686-CESTAT-DEL
Neel Metal Products Ltd Vs CCGST
CX - The issue arises is, whether the refund claim filed by appellant for excess duty paid due to price revision with retrospective effect have been rightly rejected on the ground of unjust enrichment - It has been erroneously observed that debit note amount does not match with the amount of refund claim - Appellant have reconciled the said debit note and its breakup with the invoices, as well as detailed chart annexed to appeal paper book - It is further noticed that Hero Motor Corp Ltd, to which the goods have been supplied is operating under 'Area Based exemption' during relevant period - Thus, there is no chance of Hero Motor Corp having taken Cenvat credit and utilised the same - There is no doubt as to genuineness of transaction as well as debit note in question issued by Hero Motor Corp Ltd. and accepted by appellant - Adequate entries have been made by appellant in Books of Accounts and they have credited the account of Hero Motor Corp - Further, the amount of refund claim have been shown as duty recoverable from revenue in Books of Accounts and the financial statements of appellant being balance-sheet - Impugned orde is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-685-CESTAT-DEL
Anurag Enterprises Vs CCGST
ST - Issue relates to rejection of refund claim filed by appellant - After the exemption notification was withdrawn on 01.04.2015, NBCC had paid its share of service tax and deducted it while making payments to appellant - Subsequently on 01.03.2016, government restored the exemption where contracts were entered prior to 01.04.2015 as a result of which the tax deposited by NBCC, which had been deducted from payments made to appellant, became refundable - Initially, claim filed by NBCC was rejected for the reason that it had not borne the burden and claim filed by appellant has been rejected for the reason that only NBCC could have claimed refund and also on an account of unjust enrichment - Appellant had produced certificates of chartered accountant certifying the fact that it was claiming said amount in their balance sheet as receivable - This apart, departments at Greater Noida and Delhi have sanctioned refund observing that appellant had borne the incidence of tax as NBCC had deducted it from payments made to appellant - The alleged ground of unjust enrichment is, therefore, misconceived - There is no factual distinction between refund claimed at Jaipur Commissionerate and between Greater Noida and Delhi Commissionerates when refund claims have been allowed - The finding recorded in impugned order while rejecting refund claim filed by appellant that only NBCC could have claimed refund is also erroneous for the reason that earlier the claim filed by NBCC had been rejected for reason that it had not borne the incidence of tax - Appellant is therefore, clearly entitled to refund of service tax which was deducted from payments made by NBCC to the appellant - Impugned order is, accordingly, set aside with a direction to authority to refund the amount claimed by appellant with interest at the applicable rate: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-684-CESTAT-KOL
Rathi Steel And Power Ltd Vs CCGST & CE
ST - Appeals have been filed by assessee against order of Commissioner (Appeals), who has upheld the orders of Adjudicating authority confirming demand on account of service tax on GTA services and Manpower Services in respective orders - In both appeals, demand relates to liability of service received under reverse charge mechanism ('RCM') - Both sides agree that assessee was otherwise liable to pay tax under RCM and therefore, Tribunal is not going into this aspect - As regards invocation of extended period, assessee had made categorical submissions in this regard which finds mention in O-I-A but there is no finding on the same - In any case, when issue is no more res integra that where the assessee is entitled to claim cenvat credit of tax paid under RCM, there cannot be any question of invocation of extended period - It is also a settled legal position that where there were divergent views on the issue and even if it is ultimately settled against assessee, extended period cannot be invoked - Entire case was made out on the basis of information available in statutory books of account - Very basis of SCN is audit objection meaning thereby that entire demand was raised on the basis of information found available in statutory books of assessee and hence even otherwise, there cannot be any scope for invocation of extended period - Hence both the appeals succeed on the ground of limitation - Accordingly, demands for the period beyond the normal period of limitation as applicable during the relevant period are set aside: CESTAT
- Appeals allowed: KOLKATA CESTAT
2022-TIOL-683-CESTAT-MAD
SK Enterprises Vs CC
Cus - Appellant have imported a consignment of Kids Shoes, Plastic Goggles, Hot Fix Stone, Modeling Color Clay, Sandle, PU belt and Party Fun items and filed a Bill of Entry - There are three issues involved; valuation of goods which are not requiring BIS certifications and confiscation of same and allowing to be redeemed; confiscation and allowing of redemption of goods to which BIS specifications are applicable, for the purposes of export and imposition of penalty - Valuation of goods was made in arbitrary manner without giving any cogent reasons whatsoever - The revaluation of goods was done at the back of importer - The reason for rejection of declared value is also not brought out clearly - The value adopted was arbitrary on the basis of report claimed to have been submitted by SIIB - Thus, revaluation of goods by lower authorities do not show any application of own mind - For the reason of non-adherence to principles of natural justice, impugned order to the extent of revaluation of goods which are not subjected to BIS specifications cannot be sustained - Therefore, the goods which are not liable for BIS specifications shall be valued at the value declared by appellants and the rate of duty in respect of shoes and sandals shall be 2.5% as per the notifications issued from time to time - Appellants vehemently requested for issuance of a detention certificate - In absence of any order either permitting or rejecting the issuance of detention certificate, Tribunal cannot entertain the request of appellants - However, it is evident that the detention of goods was because at the instance of Department and subsequent proceedings initiated by Department - Therefore, appellants are within their right to seek detention certificate from Department - However, Tribunal not be a writ court cannot suo motu direct the authorities to issue a detention certificate in respect of impugned goods - Appellants are well advised to approach the concerned authority for issuance of the same: CESTAT
- Appeal partly allowed: CHENNAI CESTAT
