2022-TIOL-1060-HC-AHM-CUS
Saint Gobian India Pvt Ltd Vs UoI
Cus - Appeals were preferred by one M/s. Jajoo Architechtural Glass Private Limited - Said Company had imported from China the Extra Clear Float Glass - Case of appellant Company was that the said goods namely Extra Clear Float Glass would not attract payment of Anti-Dumping Duty - The company had paid such duty under protest - Tribunal in its order held that Extra Clear Float Glass imported by company were not liable to Anti-Dumping Duty - Tribunal refused to treat Clear Float Glass and Extra Clear Float Glass to be the similar product for purpose of Anti-Dumping Duty - Petitioner is making prayer to set aside the order of Tribunal - By referring to Notification MTR Case No. 1 of 2020, petitioner wanted this Court to hold that decision of Tribunal was erroneous and may not be allowed to be sustained - Though subsequently developed, it was submission that it had its own repercussions in issue involved - As regards the interpretation of exigibility of product in question for the purpose of levying Anti-Dumping Duty, Court is afraid to go into it in present proceedings - Tribunal will also not have the jurisdiction to go into such question of interpretation in respect of exigibility of product - At the same time, since the submissions has been coming forth that order of Tribunal holding the product Extra Clear Float Glass to be not liable to be dumping duty as an impact and its own repercussions on the economics of the units of industry, court deem it proper to solicit a response on an affidavit from Department exercising its powers under Article 226 of Constitution asking the Department to make its stand clear on said aspect - Department shall file an affidavit relating to merits as well as regarding the course of action Department wants to pursue in set of facts obtained in the case: HC
- Matter listed: GUJARAT HIGH COURT
2022-TIOL-698-CESTAT-MAD
Thirumalai Thiyagarajan Vs CC
Cus - The only issue to be decided is, whether the levy of penalties under Section 112(a) and Section 114AA of Customs Act, 1962 on appellant as upheld by First Appellate Authority, is justified - Adjudicating Authority did not give any personal hearing after recording that the notice issued to appellant had returned unserved - The O-I-O suffers from infirmity of not following the procedure laid down under statute and hence, same is held to be unsustainable - Consequently, impugned O-I-A which has upheld the above O-I-O cannot also be sustained for the very same reason - Hence, impugned order is set aside and the matter is restored to the file of the Adjudicating Authority for passing a de novo adjudication order in accordance with law and it goes without saying that sufficient and reasonable opportunities shall be provided to appellant, as prescribed under the statute - No order is being passed on merits since the same may prejudice the mind of Adjudicating Authority: CESTAT
- Matter remanded: CHENNAI CESTAT
2022-TIOL-697-CESTAT-AHM
China Steel Corporation India Pvt Ltd Vs CC
Cus - Assessee is in appeal against denial of refund of Extra Duty Deposit paid by them in terms of CBEC Circular 11/2001 relating to cases handled by Special Valuation Branch of customs house - In terms of decision of High Court of Madras, assessee would be entitled to automatic refund of EDD without filing of application for refund under Section 27 of Customs Act, 1962 - The High Court held that there is no need to file any refund application and the order for refund can be made suo moto - High Court also held that issue is in conformity with decision of Apex Court in case of Mafatlal Industries 2002-TIOL-54-SC-CX-CB - Assessee was not even required to file refund claim and EDD should have been refunded without filing of refund claim - If and when refund claim was filed by appellant, same cannot be treated as barred by limitation - Relying on aforesaid decision of High Court of Madras in SAYONARA EXPORTS 2015-TIOL-740-HC-MAD-CUS , appeal is allowed: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-696-CESTAT-AHM
Gunjan Travels Vs CST
ST - Appellant from adjudication stage till this appellate stage claimed that demand is not sustainable on the ground that vehicle which was used for "Rent a Cab Operator" is of 12 seater, therefore, same is not covered under the "Rent a Cab Operator" service - They also submitted that in some cases they have provided their service as sub- contractor and for that reason also the Service Tax on service of subcontractor is not taxable - They have provided services to UNICEF - Claim of appellant legally appears to be correct - However, appellant has not submitted any documentary evidence in support of their claim either before lower authority or before Tribunal - Even department also not adduced any evidence in support of SCN for demand of service tax about nature of service - Without having documents on record, claim of appellant cannot be established regarding non taxability of service - One opportunity can be given to appellant to present their case before adjudicating authority and to submit all the documents whereby claim of appellant can be established - Accordingly, matter remanded to adjudicating authority for re-consideration of entire case a fresh - However, it is observed that adjudicating authority has imposed penalty under Section 76 and 78 simultaneously - As of now it is a settled law that both the penalties simultaneously cannot be imposed, so penalty imposed under Section 76 is set aside: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2022-TIOL-695-CESTAT-DEL
BCC Contractors And Promoters Pvt Ltd Vs Pr.CST
ST - Assessee is in appeal against order confirming demand of service tax, interest and penalty - Assessee had obtained centralised registration on 18.07.2008 and had included their office of Rajasthan and Chandigarh in said centralised registration as well - They had approached Revenue for deletion of Rajasthan and Chandigarh address from centralised registration and same was allowed on 12.06.2013 - All along assessee were also filing their ST-3 returns separately for Rajasthan and Chandigarh and for centralised registration in Delhi - Principal Commissioner, New Delhi had no jurisdiction over appellant and, therefore, the notice issued to them in respect of assessee's operations in Rajasthan, where they were separately registered and filling returns, is without jurisdiction - Consequently, demand on this issue cannot be upheld - Since the demand itself has been set aside, issue of admissibility of input CENVAT credit on strength of challans becomes irrelevant - As regards second issue, assessee had not provided any evidence of VAT payment and consequently valuation was done by impugned order in terms of Clause 2 (ii) of Rule 2 A of Determination of Value Rules, 2006 - Assessee has claimed that they had sold materials and goods of value exceeding 67% of gross amount charged and, therefore, they should have been allowed an abatement to extent of 67 % in terms of Clause (i) of Rule 2A of Determination of Value Rules - They had, however, paid service tax by claiming Notfn 01/2006 which allows similar abatement - The assertion of assessee is that it had sold goods and material amounting to more than 67% of value of gross amount charged and paid VAT on same and, therefore, there will be no duty liability even if assessment is made as works contract - Matter remanded to original adjudicating authority to decide afresh after obtaining evidence of value of goods sold by assessee in execution of contract with GAIL and VB Builders - Thereafter, assessment can be done under Rule 2 (A) of Service Tax Rules, 2006 - If assertion of appellant is true that it had already paid tax on a value higher than that demanded by revenue, no demand would survive: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-694-CESTAT-DEL
New Age Laminators Pvt Ltd Vs CCGST
CX - The issue arises for consideration is, whether refund has been rightly rejected on CVD + SAD paid for regularisation of advance licence (import licence), which have been deposited on after 01.07.2017 - Payment of CVD and SAD subsequently during GST regime, for the imports made prior to 30.06.2017 is not disputed under advance authorisation scheme - It is also not disputed that the appellant have paid the CVD and SAD in May, 2018 & May, 2019, by way of regularisation on being so pointed out by Revenue Authority - Further, the Court below have erred in observing that without producing proper records of duty paid invoices in manufacture of dutiable final product, refund cannot be given - Refund of CVD and SAD in question is allowable, as credit is no longer available under GST regime, which was however available under erstwhile regime of Central Excise prior to 30.06.2017 - Accordingly, appellant is entitled to refund under provisions of Section 142(3) and (6) of CGST Act - Accordingly, revenue is directed to grant refunds to appellants of the amount of SAD & CVD as reflected in SCNs and also in O-I-A - Such refund shall be granted within a period of 45 days from the date of receipt of this order alongwith interest under Section 11BB of Central Excise Act - The impugned orders are set aside: CESTAT
- Appeals allowed: DELHI CESTAT
2022-TIOL-693-CESTAT-MAD
Hitech Mineral Industries (Covai) Pvt Ltd Vs CCE
CX - Appeal filed against impugned order, whereby penalty imposed under Rule 26 of CER, 2002 has been upheld - When Revenue entertained a genuine doubt as to wrongful availment of CENVAT Credit after verifying documents and since there were discrepancies, a SCN was issued - When a statutory notice was issued, it was incumbent upon appellant to at least offer an explanation to clear doubts - Appellant, however, without bothering to do so, has only contended that documents / evidences relied upon by Revenue were vague, despite the fact that Revenue had also relied on his statement recorded, which is not rebutted - There is no supporting material placed on record by appellant - In grounds of appeal, though assessee has contended that he had filed reply before Adjudicating Authority, no attempt is made by them to place the same before Tribunal - The fact remains that M/s. Hitech Mineral Industries (Covai) Pvt. Ltd. had wrongfully availed CENVAT Credit and appellant being "any person" who has abetted in making such documents that helped M/s. Hitech Mineral Industries (Covai) Pvt. Ltd. in availing such wrongful CENVAT Credit, cannot escape from rigours of Rule 26 of CER, 2002 - Appeal was filed in year 2013 and appellant had sufficient time to place all such relevant documents on record, but no such attempt is made - The appellant has only relied upon those very same invoices, Daily Sheets, material inward notes of M/s. Hitech Mineral Industries, which form the very foundation for issuing SCN - Appellant has nowhere answered the various doubts and also those extracted hereinabove of this Order - No reasons found to interfere with well-founded O-I-O, which has been upheld in impugned order of Commissioner (A), for which reason the appeal is dismissed: CESTAT
- Appeal dismissed: CHENNAI CESTAT
