2022-TIOL-818-CESTAT-ALL
Om Security & Cleaning Services Vs CCGST
ST - Appellant is a proprietor of Om Security and Cleaning Services, which was engaged in providing man power supply agency service and security agency service - Audit was conducted during period from 01.10.2013 to 04.10.2013 and a SCN alleging short payment of service tax was issued to appellant for services provided during period 2010-2011 to 2014-2015 on account of differential taxable value in balance sheet and ST-3 returns - Period covered from April 2011 to September 2014 is beyond the normal period of limitation and it has to be seen whether for this period Department was justified in invoking extended period of limitation contemplated under proviso to section 73 (1) of Finance Act - To examine this it would be necessary to ascertain what was allegation regarding this aspect made in SCN and how it has been dealt with by impugned order - Commissioner (A) has not dealt with this issue at all even though it was specifically raised by appellant - It would, therefore, be necessary to remit the matter to Commissioner (A) to examine this issue - In regard to overlapping of period from October 2014 to March 2015, it is noticed that a portion of it is covered by earlier SCN - This mater would also, therefore, have to be remitted to Commissioner to examine this aspect afresh - Matter is, accordingly, remitted to Commissioner (A) to examine both issues relating to applicability of extended period of limitation as also overlapping of period: CESTAT
- Matter remanded: ALLAHABAD CESTAT
2022-TIOL-817-CESTAT-KOL
Scan Sponge Iron Ltd Vs CCE
CX - search and seizure operation was conducted by a team of Central Excise Officers at the Company's factory premises at Kumjharia, Bijabahal, District – Sundergarh, Odisha - During the course of the said search proceeding which continued uptil November 5, 2008, the records pertaining to the Company's production and clearances were examined, joint stock verification was conducted under Panchnamaand the statements of various personnel of the Company were also recorded - The Central Excise Officers detected huge shortage in stock of finished goods as compared to the stock recorded in the Company's Daily Stock Account register, which had purportedly been removed in a clandestine manner without payment of duty - Subsequently, amounts totalling to Rs.30,00,000/- were recovered from the Company towards its purported Central Excise liabilities - After conclusion of investigations, a show cause notice dated October 8, 2009 was issued, alleging that the Company had clandestinely removed finished goods being 7541.420 MTs of MS Rods and 508.900 MTs of MS Angles in contravention of several provisions of the Act and the Rules and whereon Central Excise duty totalling to Rs.2,72,39,036/- together with interest and equivalent penalty was payable - By relying on certain incriminating statements of Sri Sanjay Gadodia, Sri Sanjib Mahapatra and Sri Praharaj Swain aforesaid, the said show cause notice alleged, inter alia, that clandestine removal of short-found goods, as detected through joint stock taking, had been admitted - The said show cause notice also proposed imposition of personal penalties against the Company's personnel, namely, Sri Sanjay Gadodia, Sri Sanjib Mahapatra and Sri Praharaj Swain - The Company as well as the aforesaid Sri Sanjay Gadodia, Sri Sanjib Mahapatra and Sri Praharaj Swain filed their respective replies and contested the aforesaid show cause proceedings - Vide the order in challenge, the Commissioner of Central Excise and Customs, Bhubaneshwar-II Commissionerate adjudicated the matter and confirmed all the proposed demands against the Company as well as the individual noticees - Aggrieved by the impugned adjudication order dated March 26, 2010, the Company as well as Sri Sanjay Gadodia, Sri Sanjib Mahapatra and Sri Praharaj Swain filed their respective appeals together with stay applications before this Tribuna - The Revenue also filed cross objections - By an order dated November 1, 2012 the aforesaid stay applications were disposed of by this Tribunal by directing the Company to deposit 25% of the duty in dispute minus Rs.30 Lakhs already deposited earlier. The Company duly complied with the said stay order dated November 1, 2012 by paying additional amounts totalling to Rs.38,09,760/-, which is already on record. Held - Considering the facts and circumstances, the appeals are allowed - As the principal demands against the Company have failed, the imposition of personal penalties against Sri Sanjay Gadodia, Sri Sanjib Mahapatra and Sri Prahraj Swain aforesaid cannot be sustained: CESTAT + We find that, as a preliminary point, the Company has made exhaustive submissions relating to the invalidity and/or inadmissibility of the Panchnama proceeding. However, we are not inclined to declare that the Panchnama dated November 5, 2008 was altogether inadmissible due to non-compliance with the provisions of Sections 12F and 18 of the Act read with Section 100 of the Code of Criminal Procedure, 1973. In our opinion, the decisions of Yaqub Abdul Razak Memon, supra and Raghuveer Ispat Pvt. Ltd., supra cannot be read as direct authorities for the proposition that a Panchnama prepared in contravention of the Code of Criminal Procedure, 1973 is non-est in the eyes of law. Nevertheless, we are mindful of the fact that there is a rather glaring and incurable defect in the Panchnama, which ought to have been considered and discussed by the adjudicating authority – the Panchnama is indeed silent about the weighment of three of the four items in question i.e. M. S. Angles, M. S. Ingots and M. S. Scrap. The Advocate had taken this Bench through each and every statement contained in the Panchnama, wherefrom it is evident that the Panchnama had recorded only weighment of "few M. S. Rods". The argument elaborated in page No.4 of the Authorized Representative's written submission that reference to "the weighment was started from 1730 hrs. on 03.11.2008 in the weighbridge of the factory by putting few MS rods batch by batch and weighment slips issued by the weighbridge were kept" should be understood as reference to the initiation of weighment procedure, does not appeal us; + The absence of detailed description as regards the weighment of M. S. Angles, M. S. Ingots and M. S. Scrap in the Panchnama, although mentioned in the joint stock verification reports, does cast serious doubt upon the reliability and correctness of an otherwise valid Panchnama. It appears that the Commissioner had mistakenly proceeded on the assumption that "A Panchnama has been drawn enumerating the entire event…." Having gone through the show cause notice dated October 8, 2009 and the impugned adjudication order, we also find that the records of stock taking, weighment slips etc. have been treated as non-relied upon documents by the revenue, which is rather astonishing. In several decisions rendered by the Tribunal, as discussed in detailed in the subsequent paragraphs, it has been consistently held that stock taking has to be conducted in a proper manner, duly supported by materials such as weighment slips, counting slips etc., in the absence of which physical shortage of stock cannot be taken to have been established; + Another issue which requires consideration is the failure on part of the adjudicating authority to adhere to prescriptions of Section 9D of the Act. Section 9D(1) of the Act sets out the circumstances in which a statement made and signed before a Gazetted Central Excise officer shall be relevant for the purpose of proving the truth of the facts contained therein. If these circumstances are absent, the truth of the facts contained in the statement made during the course of enquiry/investigations before a Gazetted Central Excise officer, has to be proved by evidence other than the statement itself. Consequently, any reliance on the statement recorded during investigations would stand vitiated in law, in absence of the circumstances specified in Section 9D(1) of the Act. A statement which does not suffer from the handicaps contemplated by clause (a) of the aforesaid Section 9D(1), must be admitted in evidence only in accordance with the procedure prescribed under clause (b) of Section 9D(1) of the Act. The said propositions are duly supported by the decision of the Punjab and Haryana High Court in the case of Jindal Drugs Pvt. Ltd., supra, cited by the appellants. To the same effect is the decision of the Chhattisgarh High Court in the case of Hi Tech Abrasives Ltd., supra, cited by the appellants. Accordingly, we hold that the adjudicating authority could not have straightaway relied on the purported incriminating statements of Sri Sanjib Mahapatra, Sri Prahraj Swain and Sri Sanjay Gadodia aforesaid (assuming that the subsequent retractions were invalid) without legitimately invoking Section 9D(1)(a) of the Act. All the said purported statements, thus, have to be eschewed from consideration.
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-816-CESTAT-MUM
Shree Chamunda Enterprises Vs CC
Cus - Appellant is in appeal against impugned order rejecting the provisional release of goods imported by appellant and seized by Department - Impugned goods are manufactured by some other manufacturer and supplied by someone else - As per BIS standard and control order, it is goods that should be as per BIS specifications and manufacturer should be licensed or registered by BIS - The rules do not specified that supplier should be registered - It is submitted that Panchnama clearly indicates that goods are ISI marked - Once the goods are BIS compliance; manufacturer is registered/licensed by BIS and goods have ISI markings, goods are free from taint as far as provisional release of goods is concerned - Department should not have any objection in releasing goods provisionally - At the same time interest of Revenue is to be safeguarded - Appellant submits that they have already deposited about Rs 1.53 Cr which is very huge compare to value of seized goods - Revenue submits that deposit made by appellants was towards duty liability in respect of past imports and not for impugned goods - Importer has been suffering for last 3 years - There is no reason as to why appellant should suffer as the goods are tested to be BIS compliant and manufacturer of goods is claimed to be registered with BIS - Appellant has complied with conditions of Import of impugned CRGO sheets - Therefore, department is not correct in rejecting request for provisional release of goods - It's the department that has seized goods and at their behest goods have been placed in warehouse for such a long period - They were not kept in warehouse at the sweet will of importer - Therefore, interest of justice would be met if department issues a detention certificate, as applicable, for waiver of demurrage charges - Impugned seized goods shall be provisionally released subject to conditions: CESTAT
- Appeal allowed: MUMBAI CESTAT
