2022-TIOL-759-CESTAT-MUM
United Traders Vs CC
Cus - Two demand drafts were deposited by appellant - In O-I-O, fine and penalty was imposed on appellant in lieu of confiscation under Section 125 of Customs Act, 1962 and it was appropriated - Appellant sought for refund of the balance amount including Bank guarantee - Same was partly rejected on the ground that the same was not deposited in name of appellant - Proof of email reply fully acknowledged that demand draft was drawn with money transferred from bank account of appellant, it can be said without the slightest hesitation that the submission made by appellant before Commissioner (A) that has been recorded in O-I-A are true - The obvious reason for such wrong noting of draft in someone else's name could be a clerical error and could be remanded at Department's ends to facilitate refund of disputed amount to appellant in compliance to provision of refund available in Customs Act, 1962 concerning refund - Matter remanded back to Original Authority for a fresh decision upon verification of bank documents produced by appellant before them and received by Department directly from bank: CESTAT
- Matter remanded: MUMBAI CESTAT
2022-TIOL-758-CESTAT-AHM
Larsen And Toubro Ltd Vs CC
Cus - Issue involved is that whether appellant's goods imported and supplied as a B&D spares of Interceptor Boats to Cost Guard, Government of India is eligible for exemption Notfn 12/2012-Cus (Sr. No. 460 or 469A) - Adjudicating authority has denied exemption only on the ground that interceptor boats manufactured and supplied by appellant is not a warship - From the letter issued by Government of India, Ministry of Defence, it is clear that interceptor boat supplied by appellant is indeed a warship - Moreover, it is undisputed that they intercepted boats used by Coast Guard, Ministry of Defence, Government of India is only for security of costal border of country and the boats are not used for any other purpose - It is also undisputed that said interceptor boat are equipped with arms and ammunition, therefore, it is absolutely without any doubt that interceptor boat is a warship - Spare parts supplied for warship is clearly exempted under Notfn 12/2012-Cus - Accordingly, appellant is clearly eligible for said exemption Notfn - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-757-CESTAT-ALL
LG Electronics India Pvt Ltd Vs CCE
CX - During period in question, appellant cleared sub-assemblies/parts of CTVS to various manufacturers on payment of duty - Said manufacturers, with help of parts/sub-assemblies received from appellant and also after procuring some of components/parts from other manufacturers, manufactured complete CTVS and cleared them on payment of duty on basis of MRP declared on package - The Commissioner, however, entertained a view that components/sub-assemblies being cleared by appellant to these manufacturers should be classified under Heading 85.28 as complete CTVS and they should be charged to excise duty in terms of Serial No. 229 (ii) of Notfn dated 02.06.1998 - A SCN was, therefore, issued to appellant demanding duty for period from December 1998 to September 2002 by relying upon Interpretative Rules 2(a) of Tariff and by invoking extended period of limitation under proviso to section 11A of Excise Act - Not even a single consignment was cleared or removed from factory of appellant to manufacturers containing all parts of CTVS at the same point of time - All consignment of sub-assemblies/parts (except for 21" Flatron) the colour picture tubes were not supplied and the colour picture tubes were always purchased by manufacturers from picture tubes manufacturers directly - In case of parts meant for 21" Flatron, appellant did not supply populated colour picture tubes, which were purchased by manufacturers from other manufactures - Thus, when consignments cleared by appellant did not contain all parts at the same point of time, Interpretative Rule (a) cannot be pressed into service - Once the goods are classifiable under a particular Heading by application of Headings and relevant section and chapter notes, classification cannot be altered by taking recourse to the Interpretative Rules - Thus, Commissioner was not justified in taking recourse to Interpretative Rules 2(a) of Central Excise Tariff - Once it is held that duty demanded in SCN cannot be confirmed, penalties cannot be imposed upon S.N. Rai and Atul Tandon: CESTAT
- Appeals allowed: ALLAHABAD CESTAT
2022-TIOL-756-CESTAT-KOL
Usha Martin Ltd Vs CCE & ST
CX - Issue to be decided is, whether appellant is legally entitled to avail credit on capital goods - The Commissioner made a fundamental error while observing that payments have not been made to original supplier (OEMs) but to Contractor against separate set of commercial invoices - There is no condition in Credit Rules with regard to payment of value of capital goods in order to avail Cenvat Credit, unlike in case of availment of credit on input service which is not the subject matter for consideration - In any case, whether or not the payment has been made against excise invoices issued by OEM or commercial invoice issued by Contractor who has procured goods on behalf of appellant for use in power plant is completely irrelevant - The Commissioner has thus made a fundamental error while taking into consideration the payment related aspect while deciding eligibility to avail credit on capital goods - Tribunal have perused, on sample representative basis, the excise invoice issued by M/s. Triveni Engineering & Industries Limited which clearly records 'Usha Martin Limited' as 'consignee' through the buyer 'Cethar Vessel Ltd' - Further, GRN and consignments notes are also appearing evidencing the receipt of goods at appellant's factory which documents duly formed part of Reply dated 04.03.2016 to impugned SCN - Tribunal also perused the description of goods on which credit has been taken, as appearing in Annexure A to SCN - Same includes boiler components, electrical facts, and other machinery parts falling under chapter 84, 85 and 90 - Goods in question are for use in setting up of power plant and hence capital goods in hands of appellant - Impugned adjudication order disallowing Cenvat Credit on capital goods thus cannot be legally sustained - In so far as the issue with regard to extended period of limitation is concerned, no positive evidence found to show that there was any fraud or willful suppression inasmuch as availment of credit has been duly shown in monthly returns and credit entries have been duly recorded in Credit Register which form part of Annexure to SCN - Thus, no ingredient found to justify invocation of extended period of limitation and therefore, impugned proceedings are also barred by limitation - Penalty imposed on Shri M. L. Rathi is also set aside: CESTAT
- Appeals allowed: KOLKATA CESTAT
2022-TIOL-755-CESTAT-ALL
Avissoft Technologies Vs CCE
ST - Appeal is directed against impugned order by which commissioner(A) upheld the order of Original Authority denying the refund claim filed by appellant - Appellants have filed impugned refund claim on 19.06.2017 much after presidential assent to amendment has been accorded - It is not a case of appellant that they were not aware of legal provisions in this regard - It is on record that a similar claim has been made by appellant on 08.11.2016 - It is not possible to accept the contention that if a refund filed first is within time, the subsequent refunds should also be treated to have been filed in time - Each claim of refund is a separate application and needs to be treated separate; has to be sanctioned separately - Proposition of applicant leads to absurd conclusions as sanctity of limitation is lost - Therefore, appellant's claim that subsequent refund filed on 19.06.2017 be treated as part of refund claim filed on 08.11.2016 cannot be accepted - The authorities and for that matter this Tribunal, being creatures of statute cannot extend period of limitation or pass an order to effect that delayed submission of refund would not disentitled to refund, even if it pertains to refund of duty paid, which is subsequently, held to be non-payable - No merit found in submissions of appellant: CESTAT
- Appeal rejected: ALLAHABAD CESTAT
2022-TIOL-754-CESTAT-KOL
SPML Infra Ltd Vs CCGST & CE
ST - The appellant, a construction company is engaged in providing various taxable services - Construction contracts are the contracts which run over period of time and are not limited strictly by Financial Year - For the purpose of accounting and monitoring of projects undertaken in terms of such contractual agreement Accounting Standard AS-7 has been developed - Entire demand has been made against issues referred in SCN as issue is based on entries recorded in book of accounts toward expected revenue and expense recognition and not on the basis of actual amounts realized against contracts undertaken by appellant - Service tax is paid on the basis of revenue realized towards provision of taxable services and not on the basis of revenue recognition - Impugned order do not point out a single case whereby amounts realized by appellant against any of project undertaken by appellant were not reflected in their ST-3 return - Entire demand is for period of running contracts during the period 2008 to 2012 and would have been completed by now - Revenue should reconcile the revenue realized contract wise, with the service tax return, and if there all the revenues realized either as advance or on completion of contract can be reconciled with ST-3 returns then demands need to be set aside or restricted to unexplained amounts realized and not reflected in ST-3 return - Matter remanded to original authority for reconciliation - Imposition of penalty under Section 78 cannot be sustained, same is set aside: CESTAT
- Appeal partly allowed: KOLKATA CESTAT
