2022-TIOL-743-CESTAT-AHM
Oil Energy Vs CC
Cus - The goods imported by appellant have been absolutely confiscated on the ground that same is Superior Kerosene Oil and not Low Aromatic White Spirit as declared by appellant - Chemical examiner instead of answering the query that whether sample confirmed description of goods as Low Aromatic White Spirit reported that parameter meets the requirement of Kerosene as per IS-1459:2016 - From the specification it can be seen that to arrive at conclusion that product is Superior Kerosene Oil there are 8 Parameters which needs to be tested but as per test report only 3 Parameters were tested - For this reason, test report of chemical examiner reporting the product as Kerosene cannot be taken as conclusive - Moreover, appellant have rightly pointed out that Adjudicating Authority has based this finding only on 1 parameter i.e. "Distillation" out of 8 Parameters for holding that goods are SKO - It is undisputed that kerosene is used as illuminant and fuel - To arrive at conclusion that goods are kerosene which is used for illuminant and fuel said parameters have to be tested - Department could not establish that goods in question is SKO therefore, classification claimed by appellant needs to be maintained - Accordingly, impugned order is set aside and giving effect of this order the department shall vacate the absolute confiscation and penalty imposed is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-742-CESTAT-AHM
Diamond Industries (SBD) Vs CC
Cus - The controversy narrows down to question whether transaction value of vessel is to be price mentioned in original MOA or reduced price indicated in addendum - In light of statutory provisions, factum of actual payment of price in terms of addendum cannot be ignored while determining value of vessel under Section 14 of Customs Act, 1962 - Tribunal may, however, hasten to add that in such a situation genuineness and necessity of reduction in price are required to be scrutinised very carefully - Commissioner (Appeals) has not examined genuineness of addendum and has proceeded to reject the appeal of appellant - He also did not examine the cogency of reasons for price reduction - For all these reasons, Commissioner (Appeals) needs to examine the matter afresh - Accordingly, matter is remitted back for fresh consideration, particularly in relation to genuineness of addendum entered into between appellant and supplier: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2022-TIOL-741-CESTAT-AHM
Amod Stamping Pvt Ltd Vs CCE & ST
CX - Issue relates to the fact that Daman unit of appellant Company had imported CRGO sheets and availed Cenvat Credit thereof - They had sent such sheets to their own Vadodara factory as also one M/s. Amod Steel Processors to carry out job work under Rule 4(5)(a) of CCR, 2004 - The processed goods though shown to have been returned back to Daman, were not in fact returned back, but instead, cleared directly to customers from Vadodara itself, however, shown to have been cleared to customers from Daman by managing transport documents to this effect - It is on this basis that Cenvat Credit stands denied to Daman unit, since it is alleged that they did not use the goods at their end - At the same time, duty demand on Vadodara unit has been raised on grounds that since the transportation proof for return of processed goods (core/stampings) back to Daman is questionable, and since the transport documents for clearance of finished goods from Daman to customers too is also doubtful, the finished goods must have been cleared from Vadodara to the customers directly, and since Vadodara unit is the manufacturer, the duty demand stands raised on them - Since the inputs were originally sent under Rule 4(5)(a) procedure to job workers, and since finally duty stands discharged by Principal at Daman on finished goods, evenif it is cleared directly from job workers to eventual customers, neither Cenvat Credit requires to be denied to appellant at Daman nor duty demand can be raised on job worker at Vadodara, even though they are the actual manufacturers, since the duty admittedly stands paid at Daman, and even collected by revenue authorities as such - Not seeking formal permission under Rule 4(6) of CCR, 2004 is merely a procedural lapse and so long as duty is paid by Principal, neither credit can be denied on inputs sent under Rule 4(5)(a) to the job worker, nor duty demand can be once again raised on job worker on finished goods - Accordingly, demand of Cenvat Credit on Daman unit as well as duty demand on Vadodara unit is clearly not sustainable - Since the demands are not sustainable, all penal action also must be dropped: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2022-TIOL-740-CESTAT-KOL
Maa Vaishnavi Sponge Ltd Vs CCE & ST
CX - Appellant is engaged in manufacture of steel and related items - During investigation, it was alleged that appellant has availed certain Cenvat credit as input involving an amount on structural items such as MS Angle, Plates, HR Sheets, CR Sheet, CR coil, Beam, MS Rod, Joist, MS Channel, and other Steel products used for manufacture of capital goods - Adjudicating authority had confirmed demand of recovery of Cenvat credit on items such as Cement, TMT Bar, Beam, Angle, Channels & Joist by relying on judgement of Larger Bench of Tribunal in Vandana Global Ltd. 2010-TIOL-624-CESTAT-DEL-LB - However, said judgement, as rightly pointed by appellant has been quashed by High Court of Chhattisgarh 2017-TIOL-2853-HC-CHATTISGARH-CX - Also, Calcutta High Court in case of Surya Alloy Industries Ltd. had disapproved the judgement of Larger Bench - Thus, Tribunal is inclined to state that Cenvat credit of items mentioned is an eligible Cenvat credit upto 06/07/2009 and hence appeal to this extent ought to be allowed - As regards the period post 07/07/2009, it has been stated by appellant, that they are not pressing for same and only have requested for waiver of penalty as issue involved interpretation of law - We find force in such argument as the issue is related to interpretation of law. Hence the imposition of penalty cannot be sustained in the instant case - Thus, appeal filed by appellant company is disposed of: CESTAT
- Appeal disposed of: KOLKATA CESTAT
2022-TIOL-739-CESTAT-KOL
Carrycon Services Pvt Ltd Vs CCGST & CE
ST - Issue to be decided is, whether activities carried upon by appellant viz. work of segregation of cylinders, sealing of filled cylinders, de-shaping of cylinders by hydraulic pressure, spray of pesticides, disposing of collected muck/sludge, dirt, and bottling of LPG into cylinders to be sold by IOCL for purpose of domestic use is a process amounting to manufacture or not - On perusal of definitions of packaging service as existed up to 30/06/2012 and negative list entry post 30/06/2012, both entries provide an exemption from service tax if process amounts to manufacture - On a combined reading of Rule 2(xxxii) of Gas Cylinder Rules, 2004, it can be clearly inferred that activity of filling LPG into cylinder tantamounts to process of manufacturing - Revenue has not disputed the fact that excise duty is being paid by IOCL on clearances of gas cylinders and that said expenditure is also a part of valuation adopted for such purposes - Since these facts are not being disputed by Revenue, therefore activities undertaken by appellant would squarely be covered under definition of manufacture under Section 2(f) of CEA, 1944 and thus said demand under packaging service cannot sustain - Argument of Revenue that such explanation only is applicable for natural gas and that LPG is not a form of natural gas cannot be sustained and hence demand on packaging services has to be set aside - As regards demand of works contract services, appellant has not disputed demand on merits but only on limitation - Demand was raised based on audit of IOCL records - Service tax is a self assessment regime and one cannot take plea of being not paid/received service tax by recipient - However, it would be in interest of justice to waive penalty by invoking provisions under Section 80 of Finance Act, 1994: CESTAT
- Appeal partly allowed: KOLKATA CESTAT
2022-TIOL-738-CESTAT-DEL
Rajasthan Co-Operative Dairy Federation Ltd Vs CCE
ST - The appellant is registered as a cooperative society under Rajasthan State Cooperative Act, 2001 and the district cooperatives and milk unions are its members - As an apex cooperative society, appellant is a legal entity by itself - The milk unions are engaged in purchasing milk, processing it and selling milk and milk products - Appellant is providing various services to support milk unions in this endeavour and is charging a fee which is called RCDF cess at the rate of 1.25% on turnover of milk unions - The question falls for consideration is, whether the services provided by appellant to its own members can be considered as service provided by one entity to another - The law laid down in Calcutta Club 2019-TIOL-449-SC-ST-LB is that a club and its members are one and the same and the club is formed for purpose for mutual benefit of its members - Therefore, any amount paid by members to club and the services rendered by club to its members are self service and cannot be taxed - The fact that the club is incorporated as a separate legal entity makes no difference - No good reason found not to apply the same principle to appellant, which is also a cooperative federation of milk unions who are its members - No service tax is payable on services rendered by appellant to milk unions - Thus, it has to be held that no service tax was payable by appellant for the services rendered to its members - Accordingly, demand confirmed by impugned order cannot be sustained - The interest on demand and the penalties imposed are set aside: CESTAT
- Appeal allowed: DELHI CESTAT
