2022-TIOL-766-CESTAT-MUM
Kohinoor Healthcare Pvt Ltd Vs CC
Cus - Appeal is directed against impugned order wherein Commissioner (A) has dismissed the appeal filed by appellant on the ground of delay in filing appeal beyond the period that could have been condoned by Commissioner (A) in terms of Section 128 of Customs Act - From declaration made by appellant of C.A.-1 Form, it is quite evident that appellant had received the order in end of May 2017 - Accordingly, appeal should have been filed within 90 days of date of receipt of O-I-O - Commissioner (A) could have at the most condoned a delay of 30 days in filing appeal - Appeal has been filed by appellant on 14.08.2019 before Commissioner (A) - Thus, appeal has been filed approximately 866 days from date of O-I-O i.e. 31.03.2017 - As per Section 128, Commissioner (A) could have condoned the delay of 30 days beyond the 90 days allowed for filing the appeal - Accordingly, no merit found in the appeal and same is dismissed: CESTAT
- Appeal dismissed: MUMBAI CESTAT
2022-TIOL-765-CESTAT-ALL
Ingersoll-Rand Technologies And Services Pvt Ltd Vs CCE
ST - Appellant is engaged in manufacturing and trading of pneumatic tools, material handling equipment and other related goods - He is also engaged in providing taxable services of 'management consultants', 'consulting engineering', 'management, maintenance & repair' - A SCN was issued to appellant proposing demand under rule 6(3)(c), being amount paid in excess of 20% of service tax payable from credit account and another demand under rule 6(3)(1), being 6%/8% of value of exempted services - Issue that arises for consideration is whether Explanation to rule 2(e) is prospective in nature as submitted by appellant or it merely clarifies that trading activities were always an 'exempted service', as is contended by department - Tribunal in Trent Hypermarket 2019-TIOL-2677-CESTAT-MUM , while dealing with definition of 'exempted service' under rule 2(e) of Credit Rules, held that trading cannot be treated as an 'exempted service' for the period prior to 01.04.2011 and Explanation added on 01.04.2011 was prospective and not retrospective - It is, therefore, clear that trading was not an 'exempted service' prior to 01.04.2011 - Demand confirmed in impugned order cannot, therefore, be sustained - Even otherwise, demand for period 2006 to 2008 would not survive as there was no restriction on availment of credit as restriction was in respect of utilization - Reliance can be placed on decision of Tribunal in M/s. Idea Cellular Ltd. 2019-TIOL-3299-CESTAT-MUM - Thus, demand confirmed against appellant is not sustainable - For not exercising option under rule 6 of Credit Rules, option of payment of 6/8 percent of trading of goods ('exempted service') cannot be thrust upon appellant - This view finds support from decision of Telangana High Court in Tiara Advertising and Agrawal Metal Works - Thus, demand for period from April 2008 to March 2011 cannot also be sustained - Thus, impugned order cannot be sustained and is set aside: CESTAT
- Appeal allowed: ALLAHABAD CESTAT
2022-TIOL-764-CESTAT-AHM
Nemlaxmi Books India Pvt Ltd Vs CCE & ST
CX - The only issue to be decided is that conversion of jumbo paper rolls into smaller sheet by activity of slitting, cutting would amount to manufacture of distinct product - Adjudicating authority has contended that use of paper sheet converted from jumbo rolls is different from paper in paper jumbo rolls - Further, his finding is based on that chapter heading of jumbo paper rolls and smaller sheet are different - Irrespective of activity of slitting, cutting of jumbo paper rolls to smaller sheets, paper remains the same product as there is no change in product - It is only size of paper which changes - Moreover, there is no chapter note in chapter 48 that such activity amount to manufacture - Therefore, in absence of similar chapter note the slitting, cutting and conversion from bulk jumbo roll to sheet form of paper cannot be termed as manufacturing activity in terms of section 2(f) of CEA, 1944 - Slitting, cutting of jumbo paper rolls to smaller sheet of already manufactured goods does not amount to manufacture - As regard to limitation, appellant have been categorically declaring their activity in each and every invoices as "Jumbo Rolls converted into small rolls and small Rolls to Sheet, does not amount to Manufacture as per Section 2(f) of Central Excise Act, 1944 hence, no duty is leviable" - Appellant had a bonafide belief that activity of conversion from jumbo paper rolls to paper sheet is not amount to manufacture, therefore, they have not suppressed the fact or misdeclared with intend to evade payment of duty - Entire demand which is raised beyond normal period is also hit by limitation - Since demand itself is not sustainable, personal penalty imposed upon director shall also not sustain - Accordingly, impugned order is set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
