2022-TIOL-809-CESTAT-KOL
CCE & ST Vs Bharat Coking Coal Ltd
ST - Issue relates to demand of Service Tax proposed under category of 'Transportation of Goods by Road (GTA) Services' for period from January 2005-March 2009 - Issue is no longer res-integra inasmuch as same has been decided by Tribunal in case of South Eastern Coalfields Limited 2016-TIOL-2773-CESTAT-DEL , wherein it has been held that transportation services cannot be classified under GTA services where consignment notes are not issued by transporters - Findings made by Commissioner cannot be interfered with and hence, demand has been rightly dropped in impugned adjudication orders: CESTAT
- Revenue's appeals rejected: KOLKATA CESTAT
2022-TIOL-808-CESTAT-DEL
Agrawal Metal Works Pvt Ltd Vs CCGST
ST - Appellant has been manufacturing goods on job work basis and has been clearing them without paying duty as per Notification No. 214/86-CE - If activity amounted to manufacture which has not been disputed by Revenue at all in the past, it cannot also simultaneously become a service - Revenue should have informed appellant that it was not liable to pay any central excise duty at all and there was no need to claim benefit of exemption Notification No. 214/86-CE - Having accepted the excise returns claiming process to be manufacture and knowing that appellant was claiming exemption notification from Excise duty, Revenue cannot at the same time take a stand that processes amount to rendering a service and that such service was an exempted service - If Revenue was of opinion that it's original position was not correct and no manufacture was involved at all in process undertaken by appellant it should have brought out cogent reasons for holding so - Therefore, there is no basis for allegation in SCN that appellant was rendering an exemption service when it was manufacturing dutiable goods - Demand has been made under Rule 6(3) of CCR, 2004 - It has been held by High Court in case of Tiara Advertising that the various options under Rule 6 ibid are given to assessee and Revenue cannot choose one of the options and force it upon assessee - Even if assessee is rendering exempted services or manufacturing exempted goods and using common input services no demand can be sustained under Rule 6(3) ibid as this is only one of its options available to assessee to fulfill its objection - Thus, demand of an amount under Rule 6(3) of CCR cannot be sustained even if appellant was rendering exempted services and had taken CENVAT credit on common inputs/input services - Impugned order, therefore, cannot be sustained and is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-807-CESTAT-ALL
Raghuveer Rolling Mills Vs CCE
CX - Case of Department is that appellants have indulged in clandestine removal - Department came to this conclusion on the basis of entries made in a certain note book recovered from appellant's premises - Writing in notebook and entries thereof was not subjected to examination by a handwriting expert; author of notebook has been neither identified nor his statement/explanation was taken, more so, when department relies only on entries in notebook and statement of proprietor of appellant - Other than the entries in notebook and statement of appellants no other evidence has been put forth by Department - Statement of appellant has no validity as evidence - The person writing the diary was not identified and evidence was not established as to truthfulness of contents - Clandestine removal is a serious charge and requires to be substantiated by evidence encompassing various activities in chain of events - Department has not adduced any additional evidence, even on a sample basis to substantiate allegation of clandestine removal - In the absence of evidence, allegations raised by department are not substantiated - Impugned order cannot be sustained: CESTAT
- Appeal allowed: ALLAHABAD CESTAT
2022-TIOL-806-CESTAT-MUM
International Research Park Laboratories Ltd Vs CCE
Cus - Appellant entered into an agreement which recorded, inter alia , that appellant had been permitted to import capital goods and that during gestation period of one year, unit had been permitted to import finished goods and re-export the same after repacking and labelling - It was alleged that appellant failed to achieve 20% minimum value addition in activity of import of finished goods and re-export of same after repacking and labelling - Demand confirmed against appellant - So far the 1st demand of Rs. 33 crores approx is concerned, same have been imposed on allegation of non-fulfilment of export obligation–achievement of min. 20% value addition - This demand is bad and illegal in view of admitted facts on record, particularly, communication of Commissioner to Member CBEC, wherein, it has been admitted that there have been error in calculation and appellant have achieved min. value addition of 20%, and therefore have complied with condition - Accordingly, said demand along with penalty imposed is set aside - So for the 2nd demand of Rs. 64 lakhs approx is concerned, appellant pursuant to import have brought capital goods to factory - Such goods have admittedly, not been removed by appellant and are still lying under bond, under control of Customs Department - In spite of several requests by appellant for de-bonding, Customs Department have not cared to allow de-bonding, which is wholly arbitrary - It is established law that duty can be demanded on capital goods from an EOU on event of de-bonding - Accordingly, demand with penalty is set aside - Revenue is directed to allow de-bonding of capital goods and appellant shall be liable to pay duty on depreciated value, as per applicable rate on date of de-bonding - There being no liability to pay duty on import of goods (for re-export) under provisions of Central Excise Act r/w Customs Tariff Act, penalty imposed under Rule 173Q(1) of erstwhile Central Excise Rules, 1944 is bad and accordingly same is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
