2022-TIOL-842-CESTAT-MAD
Oceanic Enterprises India Pvt Ltd Vs CC
Cus - The appellant, a Customs Broker filed Bill of Entry on behalf of importer for clearance of imported goods declared as "metal Frame, building material accessories, building material gutter, screw etc." in 717 carton - Though the importer had declared 717 cartons, there were 775 cartons and also undeclared goods such as mobile batteries, spectacles, frames, USB cable, mobile charters, earphones, LED bulb, batter stickers, T-shirts, briefs, swimming costumes and paper material - A SCN was issued to importer as well as proposing inter alia to redetermine value of goods, confiscate the goods under Sections 111(d), 111(i) and 111(m) of Customs Act, 1962 r/w allied Acts and also for imposing penalties under Sections 112(a) and 114AA ibid - Only 25 cartons out of 717 cartons contained the goods described in Bill of Entry - The total number of cartons also exceeded the declared number of cartons and were found to be 775 cartons - There is misdeclaration and undeclaration of goods - Further, most of undeclared goods bear the brand of reputed companies and they were found to be counterfeit products - Thus, there is infringement of IPR laws also - Importer is not traceable as company's address and GST registration shown in documents are fake - The importer did not care to appear or attend the proceedings - The Regulations ensure that Customs Broker discharges his duties in such a way that he safeguards interest of customs by not importing prohibited goods - It is unbelievable to assume that the Customs Broker had no knowledge that the address of importer or his company's address and GST registration were fake - He ought to have verified all these before filing Bill of Entry - Though there are duties stated in CBLR, said Regulation has to be read along with provisions of Customs Act, 1962 - The trust embedded in Customs Broker who has been issued a licence cannot be used in a negligent manner so as to permit undeclared / prohibited goods in large quantities - There are no grounds to set aside the penalty imposed under Section 112(a) of Customs Act, 1962 on appellant - Penalty of Rs. 5,00,000/- imposed under Section 112(a) of Customs Act, 1962 is high and same is reduced to Rs. 1,50,000/-: CESTAT
- Appeal partly allowed: CHENNAI CESTAT
2022-TIOL-841-CESTAT-DEL
Reliance Commercial Dealers Ltd Vs CC
Cus - The issue involved is, whether use of aircraft imported by appellant with benefit of exemption from customs duty under serial 347B of Notification No. 21/2002-Cus, as amended by Notification 61/2017-Cus., exemption notification, for providing passenger air transport service to its group company by carrying personnel of group company for remuneration would amount to violation of Condition 104 of said exemption notification and whether it is open to Customs to contend that such use in not in accordance with permit for non-scheduled (passenger) services granted by DGCA when the DGCA has not found such use to be in violation of such permit and had renewed the permit from time to time - It is not in dispute that appellant had submitted an application for permission to import aircraft for operating non-scheduled (passenger) services and a permit had been granted by DGCA to import aircraft for non-scheduled (passenger) services - Appellant imported the aircraft and claimed exemption from customs duty under exemption notification - Said exemption is subject to Condition No.104 contained in said notification which is to the effect that the aircraft should be imported by an operator who has been granted approval for providing non-scheduled (passenger) services or non-scheduled (charter) services and importer should furnish an undertaking that aircraft shall be used only for providing said services - DGCA has not found the use of aircraft by appellant to be in violation of permit for non-scheduled (passenger) service and in fact has renewed the permit year after year - There is no violation of undertaking and, therefore, Customs cannot demand duty in terms of undertaking - Larger Bench of Tribunal specifically held that the decision of Tribunal in East India Hotels 2020-TIOL-335-CESTAT-DEL which holds that it is the Customs department that has to ensure compliance of the undertaking is not correct - Use of aircraft has, therefore, been in accordance with scope of non-scheduled (passenger) services and there is no violation of undertaking to use the aircraft for non-scheduled (passenger) services - Impugned order can not be sustained - Penalty imposed upon Sudhir Nayak cannot also be sustained: CESTAT
- Appeals allowed: DELHI CESTAT
2022-TIOL-840-CESTAT-KOL
Visa Resources India Ltd Vs CCGST & CE
ST - Issue to be decided is, whether Cenvat credit of Service Tax can be availed on debit notes under scheme of CCR, 2004 - From Rule 9 of Cenvat Credit Rules, 2004 it is seen that as per clause (f), an invoice issued by a provider of input service is a valid document for availment of Cenvat credit - Heading of document as seen from sample copies attached with the appeal paper book though are nomenclated as debit notes but they contain all disclosures as required in a tax invoice as per Rule 4A of Service Tax Rules, 1994 - Services have not been consumed/utilised by appellant and no such allegation had been made out in SCN issued - Thus, Cenvat credit cannot be denied to appellants and thus appeal succeeds to that extent and demand is quashed - As regards service tax liability under RCM, since the amount has been paid with interest before issuance of SCN itself, no penalty under section 78 can be imposed, being a settled jurisprudence: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-839-CESTAT-AHM
SMP Constructions Pvt Ltd Vs CCE & ST
ST - Appellant is engaged in providing service of Commercial Construction Services - In some contracts they paid Service Tax on 100% of gross value without availing abetment in terms of Notification No. 1/2006-S.T. and availed Cenvat credit - In some of contracts they paid Service Tax on 33% of gross value after abetment of 67% in terms of Notification No. 1/2006-ST and only in respect of this service contract they not availed Cenvat credit - Case of Department is that since appellant in respect of some contracts availed Cenvat credit and discharged Service Tax on 100% gross value of service - They cannot opt for Notification No. 1/2006-S.T. for remaining contracts - Accordingly, denying the exemption or Notification No. 1/2006-S.T. demand of service tax was raised - Issue in appellant's own case has been settled by Tribunal vide 2018-TIOL-2937-CESTAT-AHM - From the decision of Tribunal, it can be seen that legal issue and the facts are identical to present case, only difference is period of dispute, which is prior to said decision - Accordingly, since the issue is already settled in said decision of appellant itself, impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-838-CESTAT-MAD
Karaikal Chlorates Vs CGST & CE
CX - Appellants are engaged in manufacture of Potassium Chlorate - It was seen that appellant have availed credit on bills/invoices raised by M/s.KJF Logistics under various categories - Department was of the view that credit availed by appellant on such invoices raised by M/s. KJF Logistics, as if they were the direct service provider, is not eligible for credit for appellant - SCN was issued to appellant proposing to disallow the credit of an amount for the period from March 2012 to March 2015 - Department has taken the view that since the services were outsourced, M/s. KJF Logistics is the service recipient and therefore credit is not eligible to appellant - On perusal of invoices, it can be seen that appellant has paid the service tax on such charges as collected by M/s.KJF Logistics - It is also established by letter issued by KJF Logistics that they have not availed credit on service tax mentioned in invoices issued by third parties - Department cannot deny credit alleging that invoices were raised in name of CHA, M/s.KJF Logistics and that services were not provided to appellant - It is clear that goods were imported (purchased in high Sea Sales) by appellant and not KJF Logistics - So the services for clearances of goods are also provided to appellant and not to KJF Logistics - When there is no dispute with regard to service availed by appellant and service tax paid by them, credit cannot be denied at service recipient's end - The credit availed on 19 invoices has been denied alleging that name in invoices show the name of M/s. Mitsubishi Corporation India Pvt. Ltd. and not that of appellant - The original importer had engaged various service providers for import and clearance of goods - After purchase of goods by appellant, these services providers had provided services to appellant for clearances of goods - However, invoices were issued in name of original importer - It is clear from records that appellant had paid service tax for services availed - Denial of credit alleging that invoices mention the name of original importer is too technical and cannot be accepted - Department was given intimation with regard to import of goods and they have also filed ER-1 returns disclosing credit availed by them - On such score, a very vague allegation that appellant has suppressed facts with intention to evade payment of duty cannot be the basis for invoking extended period - Appellant succeeds both on merits as well as on limitation: CESTAT
- Appeal allowed: CHENNAI CESTAT
2022-TIOL-837-CESTAT-AHM
Adama India Pvt Ltd Vs CCE & ST
CX - Appellant have mistakenly paid excise duty for which they sought refund from sanctioning authority - Same was rejected and was upheld on the ground that the documents were not submitted - Appellant invited attention to adjudication order wherein it was clearly recorded that all the documents sought for by department has been submitted which is clearly mentioned in reply to SCN and the same has also been mentioned in OIO - Therefore, main ground of rejection that document has not been submitted is of no basis as surprisingly after recording the details of documents submitted by appellant - When there is no dispute that there is excess payment of duty due to bona fide mistakes, refund must be granted to appellant after verifying the facts as regard unjust enrichment - Therefore, matter is remanded to Adjudicating Authority for passing a fresh order: CESTAT
- Matter remanded: AHMEDABAD CESTAT
