2022-TIOL-706-CESTAT-KOL
Champion Hosiery Pvt Ltd Vs CCE, C & ST
ST - Matter has been adjourned more than three times - In interest of justice, appellants were allowed to appear and present this case before Tribunal - It shows that appellants are not interested in pursuing their appeal before this Forum - In view of decision of Apex Court in Ishwarlal Mali Rathod and also taking note of Rule 20 of CESTAT Procedure Rule, 1982, appeal dismissed for non-prosecution: CESTAT
- Appeal dismissed: KOLKATA CESTAT
2022-TIOL-705-CESTAT-DEL
Ahlcon Parenterals India Ltd Vs CC, CE & CGST
ST - During examination of appellants' record, it is observed that appellant has entered into contracts with manpower recruitment and supply agencies for providing contract labour to them with one of conditions that appellant shall reimburse the Service Tax at applicable rates to both the service providers - Proceedings were initiated against both said service providers alleging wilful short-payment of service tax by them, that too, by suppressing the material facts - Neither the SCN nor impugned order alleges that invoices were not genuine, services were not received or same were not utilized in manufacture of dutiable final product - Mere fact that the differential amount of service tax was paid by service provider on being pointed out by central excise officers doesn't establish that service tax was short paid or was not paid by reason of fraud, suppression, misstatement with an intent to evade payment of service tax - Otherwise also CBEC vide Master Circular 1053/02/2017-CX has clarified circumstances where extended period can be invoked - Since the Commissioner (A) himself has not imposed any penalty under section 78 upon appellants, allegation of malafide intent of service provider or even of appellant is not sustainable - Also it is apparent that Department was fully aware of fact of availment of Cenvat Credit on the basis of supplementary invoices as Department had conducted inquiry in this respect against service provider of appellants in year 2012 and in year 2013 even against the appellants - Even the statements of supply chain manager of appellant, was got recorded in 2013 itself - The issuance of SCN in year 2017 is apparently beyond reasonable time for issuing the same - Department is not entitled to invoke extended period of limitation - The grounds based whereupon, entitlement of appellant to avail Cenvat credit has been denied are hereby set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-704-CESTAT-DEL
Jindal Tubular India Ltd Vs Pr.CCGST & CE
CX - Pursuant to an audit, a SCN was issued to appellant whereby an amount was demanded under Section 11D of Central Excise Act which the appellant collected from its customer - Second item of demand is for Rs. 4,13,596/-, being the Cenvat credit of rent-a-cab services used by employees and customers of appellant for business purposes on the ground that it is not an "input service" for appellant - Third item of demand was an amount towards central excise duty on freight charges paid for transport of goods from appellant's premises to customer's premises when goods were sold on FOR basis to customers by appellant - Buyer was fully aware that goods were fully exempted and no excise duty was liable to be paid - In fact, buyer was required to provide an excise duty exemption certificate to appellant to avail benefit of exemption notification - However, buyer also agreed to pay to appellant an amount equal to 7% which it paid under Rule 6(3)(1) - Both the agreements and invoices inaccurately mentioned this as "excise duty reversal" - Invoices also indicate that excise duty is exempted under Notfn 3/2004 - Further, below the "excise duty reversal @ 6%" in invoice, it is mentioned in "amount paid under Rule 6(3)(i) of CCR" - Needless to say, since this is not an amount of excise paid by appellant and buyer will not be entitled to Cenvat credit of the amount so paid - However, that matter is beyond the scope of this appeal - What is important is whether appellant has collected the amount as representing Excise duty from its customers which does not appear to be the case from agreement and from invoices - Issue is covered by Larger Bench decision of Tribunal in M/s Unison Metals Ltd. 2006-TIOL-1337-CESTAT-DEL-LB , which has also been accepted by Revenue by CBEC Circular dated 16.5.2008 - Therefore, this part of demand cannot be sustained - In respect of rent-a-cab services, appellant claims that cabs were used by its employees and customers for business travel only and therefore, it is entitled to benefit of Cenvat credit as held by High Court in case of Transpek Industry Ltd. 2017-TIOL-2106-HC-AHM-CX - Appellant submits that regardless of fact that sale of goods is on FOR basis, central excise duty cannot be charged on cost of freight from their premises to premises of buyer - Issue is now settled by Supreme Court in case of Ispat Industries 2015-TIOL-238-SC-CX that place of removal in every case has to be only the place relatable to seller and it cannot be the buyer's premises even though the sale may be completed at buyer's premises when goods are sold on FOR destination basis - The "place of removal" continues to be seller's premises whether it be the factory gate or depot or any other place relatable to seller - In terms of Section 4 of Central Excise Act, value of goods is transaction value of goods for delivery at the time and place of removal - The freight incurred from place of removal to buyer's premises cannot, therefore be includible in assessable value - Consequently, demand on this count also needs to be set aside - All the three demands are not sustainable on merits, penalty also needs to be set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-703-CESTAT-DEL
CCE & CGST Vs Prem Jain Ispat Udyog Pvt Ltd
CX - The assessee was engaged in manufacture of M.S. Ingot and Bars and availed CENVAT credit claiming that the inputs were used for manufacture of final products - A SCN was issued to assessee mentioning that the credit had been used fraudulently on fake invoices received without receiving goods from so-called manufacturers and dealers abetted with manufacturing units for facilitation of undue CENVAT credit to appellant by issuing fake bills without supplying the goods - The Director in his statement stated that he had no information as to from where suppliers purchased the goods - Since the bills and bilties were received later, he did not know whether the said goods were manufactured/produced in their factories and central excise duty payment thereon had been made or not - When pointed out that the goods were received without invoice and bills/bilties had been arranged later, CENVAT credit in respect of those invoices/bills were inadmissible, he accepted the fact and reversed the CENVAT Credit - Investigation carried out with Transporters also revealed that they never transported any goods to assessee and they had issued bilties on the basis of details provided by M/s Tirupati Associates to them without ensuring whether goods were transported or not - Thus, same were not genuine and were prepared only to help in availing CENVAT credit - No vehicle mentioned in invoices was used for transportation of goods from the premises of supplier to premises of assessee located in Kota - Further, the consignments shown to have been transported in trucks were actually never transported and records establish that only paper transactions were made with commission amount exchanging hands - Thus, it is established that manufacturer/dealers issued only the invoices and no goods were dispatched by manufacturer/dealers with the invoices - Assessee failed to comply with provisions of Credit Rules - It was, therefore, not entitled to take CENVAT credit on the strength of invoices which were not genuine - The impugned order therefore, cannot be sustained and is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-702-CESTAT-DEL
Leather Sellers Vs CC & CE
Cus - Appellant is before Tribunal for a direction on respondent for disbursement of interest as per rules - It is also urged that from the date of encashment of Bank Guarantee till the date of refund, interest should be allowed, as on encashment of Bank Guarantee, the amount has been lying with revenue in nature of pre-deposit - The amount was lying in nature of pre-deposit with department from the date of encashment of Bank Guarantee - Accordingly, appellant is entitled to interest from date of encashment of Bank Guarantee, i.e. 21/07/2006 to 22/07/2019 under Section 129EE of Customs Act @ of 12% p.a., as held by Division Bench of Tribunal in case of Parle Agro Ltd. - Such interest should be disbursed within a period of 45 days: CESTAT
- Miscellaneous application allowed: DELHI CESTAT
