2022-TIOL-77-SC-CX
Steel Authority of India Ltd Vs CCE & C
CX - Dispute is with respect to Modvat credit on 'Guide Car' claimed by the appellant - As per the show cause notice, the Modvat credit on 'Guide Car' was not available since it was classifiable under Chapter subheading 8603.00 of the Central Excise Tariff Act, 1985 - According to the appellant - assessee, 'Guide Car' is classifiable under Chapter sub-heading 8428.90, - Adjudicating Authority disallowed the total credit amounting to Rs. 1,71,60,376/- wrongly availed and also imposed penalty of Rs.5 lakhs under rule 173Q of CER, 1944 - Tribunal upheld the demand of Rs. 45,86,664/- being the Modvat credit availed by the appellant on 'Guide Car' and penalty to the extent of Rs. 1,00,000/- - Appeal filed before the Supreme Court.
Held: As per the settled position of law, classification of a product done at the consignor's end shall be final and that cannot be changed/questioned at the consignee's end - Therefore, 'Guide Car' shall be treated and/or considered as classifiable under Chapter sub-heading 8603.00 of the tariff - The 'Guide Car' is being used for the purpose of transporting the hot coke after it is processed in the Coke Oven Battery - Therefore, 'Guide Car' can be said to be a different equipment distinct from the Coke Oven Battery and cannot be considered to be a part of the Coke Oven Battery - In that view of the matter, the appellant shall not be entitled to the Modvat credit on 'Guide Car' as 'component' and/or part of Coke Oven Battery as claimed by the appellant - The Adjudicating Authority as well as the Tribunal have rightly confirmed the demand of Modvat credit availed by the appellant on 'Guide Cars' - Bench is in complete agreement with the view taken by the Adjudicating Authority - Since t he appellant bonafidely believed that the goods would fall under Chapter sub-heading 8428.90 and/or that the 'Guide Car' can be said to be a 'component' of the Coke Oven Battery, therefore, the order of penalty of Rs.1,00,000/- imposed by the Tribunal is required to be quashed and set aside - Appeal partly allowed: Supreme Court [para 6, 9, 10]
- Appeal partly allowed: SUPREME COURT OF INDIA
2022-TIOL-845-CESTAT-HYD
Andhra Sugars Ltd Vs CC
Cus - Appellant filed appeals assailing impugned order whereby Commissioner (A) upheld the order of lower authority rejecting the refund claims by appellant - It is the case of appellant that amount of duty payable in its case depended on quantity of goods imported and it had paid duty on a larger quantity when, in fact, a smaller quantity was imported - If that be the case, determination of quantity of goods imported is a part of assessment itself - Once self-assessment has been made by appellant, unless self-assessment is modified through an appeal, assessment is final - Refund under section 27 of Customs Act is a mechanical process of refunding any amount of duty paid in excess of what was assessed - The officer sanctioning refund cannot re-open an assessment - This is not a case for remission of duty but is a case of application for refund on the ground that duty was paid in excess reckoning the total quantity of goods as mentioned in Bill of Lading while lesser quantity was actually imported/landed by vessel - The Bill of Entry, therefore, needs to be re-assessed - Once the duty is assessed and paid and proper officer makes an order permitting clearance of goods for home consumption under section 47, assessment is completed, goods cease to be 'imported goods' as per section 2(25), goods cease to be 'dutiable goods' as per section 2(14) and the process of assessment or re-assessment under section 17 comes to an end - Even on facts, documents relied upon by appellant are inconclusive - In respect of MV Vinayak, for instance, the joint draught survey report is signed by Master of Vessel and representatives of two receivers- the appellant represented by Sravan Shipping Services Pvt. Ltd. and M/s. KPR Fertilisers Ltd. represented by M/s. Coromandel Shipping Agency (P) Ltd. - The Master of Vessel's remarks in report is that entire cargo of 16,500 MT was discharged - M/s. KPR Fertilisers also confirmed that it has received its fertilizer as per Bill of Lading - M/s. Andhra Sugars Ltd. added remarks that it had received 147 MT short - At the request of Sravan Shipping Services, M/s. Pinnacle Marine Services Pvt Ltd. also provided a certificate that 121.670 MT was short received - Thus, there is no agreement between person who was to hand over the goods viz., master of vessel and persons who were to receive them viz., appellant that there was shortage - The Master says that he delivered the entire quantity and appellant or his agents or surveyors appointed by it say that sulphur was short landed - Similarly, in case of MV Nirman PRITI, it is indicated at the top that of the 13,200 MT BL quantity of Sulphur, only 13011.771 MT was discharged - The Master of Vessel's remarks were that the entire quantity was discharged - So, it is a case of word of one versus the word of another - The reports are inconclusive - Therefore, even for this reason, appellant is not entitled to a refund: CESTAT
- Appeal dismissed: HYDERABAD CESTAT
2022-TIOL-844-CESTAT-AHM
Himanshubhai Nandlal Jagani Vs CCE & ST
CX - Most of the investigation are not only identical but common to case of Shri Hari Steel Industries - It is a fact that in case of Shri Hari Steel Industries also, no shortage or excess were found in factory premises, no investigation at the buyer's end was conducted and no investigation in respect of Electricity, raw material was conducted - In case of Shri Hari Steel Industries, no examination in chief or cross examination was done - The decision of Shri Hari Steel Industries would be squarely applicable in respect of demand raised on basis of diaries recovered from brokers - Penalties imposed on basis of broker's diaries cannot be sustained and are set aside - Now coming to evidence collected from residence of Juvansinh Jeshabhai Solanki, it is seen that said slip are reproduced in impugned order - It is seen from said slips that there is no mention of manufacturer's name and therefore there is no direct correlation with main noticee in this case, namely Pure Alloys Limited - Moreover, there was no examination in chief or cross examination done and therefore, only link between these weighment slips and alleged manufacturer namely Pure Alloys, is statements of Juvansinh Jeshabhai Solanki and Nareshbhai Ramsang Rana which cannot be admitted as evidence in absence of Examination under Section 9D of Central Excise Act - No penalties in respect of these weighment slips also can be imposed - Penalties imposed against various appellants are set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2022-TIOL-843-CESTAT-AHM
P C Snehal Construction Company Vs CST
ST - Appellant is engaged in providing construction service to M/s. Torrent power Ltd - The first issue to be decided is, whether the services provided by appellant are of Works contract service or Commercial or Industrial Construction Service - No doubt that appellant had provided services along with material therefore, services are clearly falling under WCS - As regard the issue that whether free supply material needs to be included in services of Commercial or Industrial Construction Service, issue is no longer res- integra as held by Supreme court in case of Bhayana Builder Pvt Ltd 2018-TIOL-66-SC-ST that the value of free supply material need not to be included in gross value service in order to avail benefit of abatement - Appellant subsequently started paying service tax on works contract service which is not disputed by department - The Works contract service was not taxable prior to 01.06.2007 in the light of judgment in case of L&T Ltd 2015-TIOL-187-SC-ST therefore, demand prior to 01.06.2007 is clearly unsustainable - As regard the demand under Commercial or Industrial Construction Service post 01.06.2007, SCN as well as adjudication order was passed classifying the service under Commercial or Industrial Construction Service whereas the service of appellant is classified under works contract service - On this fact, demand raised under Commercial or Industrial Construction Service will not sustain being proposed and confirmed under wrong classification whereas the services are correctly classifiable under works contract service - When no demand was raised under Works Contract Service post 01.06.2007, demand raised under CICS/CCS will not be sustained - Impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
