2022-TIOL-1201-HC-MUM-CUS
CC Vs Dinesh Bhabootmal Salecha
Whether mere fact that a show cause notice has been issued in the name of assessee does not necessarily imply that he is to be treated as owner of the goods seized, which are sought to be confiscated - YES: HC Whether confiscated goods can be released provisionally u/s 110A, only in favour of owner of such goods - YES: HC
- Revenue's appeal allowed: BOMBAY HIGH COURT
2022-TIOL-869-CESTAT-AHM
Indian Institute Of Management Vs CST
ST - Appellants, a premier institution engaged in providing education in field of management and business - For the purpose of admission into IIMs, IIM Ahmedabad conducted CAT (common admission test) of candidates in year 2009 - A large number of candidates who took CAT exam also applied to various other institutes and those institutes sought to use CAT's scores for the purpose of admission into their schools - To access the CAT scores for themselves, said Non-IIM Institutes entered into a Memorandum of Understanding (MOU) with appellant - The MOU clearly prescribed the eligibility of people who could take CAT exam - From MOU, it is seen that the activity of appellant is nowhere related to mailing list compilation and mailing service - It is seen that appellants are not compiling any list or providing list of names addresses - Appellants are merely providing scores in respect of names of candidates supplied by clients (Non-IIM Institutes) - Moreover, activity of 'Mailing list compilation and mailing' is done for or on behalf of client - In this case, appellants are only dealing with clients and not with any third party - Moreover, activity envisage to be taxed under head of 'Mailing list compilation and Mailing services' is totally different from activity being undertaken by appellant as is apparent from Circular dated 27.07.2005 - No reason found to hold that activity done by appellant is covered under head of 'Mailing list compilation and Mailing service': CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-868-CESTAT-DEL
Shade Capital Pvt Ltd Vs CCE & CGST
ST - Appeal has been filed against impugned order vide which the order of rejection of refund claim filed by appellant on the ground of limitation has been upheld - There is no denial on part of Department about claim of appellant that the amount of Rs. 2,83,505/- is an excess payment than amount of tax to be deposited by appellant - Consequently, it becomes clear that the aforesaid amount is not the amount as would have been authorized by law - The adjudicating authority while denying refund of said excess amount has invoked section 11B of CEA, 1944 - The bare perusal makes it clear that Section applies for the refund of such amount which is an amount of duty or tax - The issue is no more res-integra as has already been decided by Tribunal in case of R.S. Chemicals - Even the decision of Apex Court in Mafatlal Industries Ltd. 2002-TIOL-54-SC-CX-CB , as has been relied upon by Commissioner (A) has, while distinguishing the cases of refund into three broad categories, has clarified that in cases where the levy of a tax has been held to be unconstitutional; or void for want of inherent jurisdiction, it is open for appellant to take advantage of declaration of law so made and claim refunds on the ground that they paid the tax under a mistake of law - This is because such claims are outside the ambit of Excise Act - The limitation of section will not be applicable - Commissioner (A) has wrongly applied the obiter-dicta of Mafatlal Industries case - Refund accordingly is held to have been wrongly rejected: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-867-CESTAT-MUM
JSW Cement Ltd Vs CCE & ST
CX - Availment of cenvat credit was disputed by department - Accordingly, show cause proceedings were initiated against appellants for availment of irregular cenvat credit - The disputed debit notes were issued by debiting books of account of appellant with narration "being re-imbursement of expenses incurred for procurement of Clinker" - It is evident from such debit notes that when expenses were incurred for procurement of inputs by M/s. JSW Steel Ltd., such company was not merged or taken over by appellant - Further, there is also no mention about the specific services, which were procured by transferor company - Rule 3(1) of CCR, 2004 permits a manufacturer of final product to take cenvat credit of various duties paid on inputs or capital goods received in factory of manufacture of final products and input services by such manufacturer - Since appellant took over the business of JSW Steel Ltd. at a much later date from the date of procurement of inputs, benefit of cenvat credit of service tax on reimbursable expenses shall not be available to appellant - Thus, no infirmity found in impugned order in denying cenvat benefit to appellants - As regards to limitation of time, it is an admitted fact on record that SCN was issued by department on 21.06.2017, which is much beyond the normal period prescribed under Section 11A of CEA, 1944 r/w Rule 14 ibid - Hence, appeal filed by appellants should succeed on the ground of limitation - Impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-866-CESTAT-MUM
Thyssenkrupp Industries Pvt Ltd Vs CCGST & CE
CX - Appellants are manufacturing various excisable goods viz. Machinery/parts/equipments of sugar plant, cement plant, boilers and bulk material handling systems - They are availing benefit of cenvat credit scheme as provided for under CCR, 2004 - They are also providing taxable services - The issue in respect of admissibility of cenvat credit in respect of group mediclaim policy and personal accident policy is no longer res integra for period prior to amendments made in April 2011 to Cenvat Credit Rules - Admittedly, entire period of dispute is prior to April 2011 - Commissioner (A) should not have denied Cenvat Credit in respect of group mediclaim policy and personal accident policy to the extent it pertains to employee only - However, the case law cited although say that benefit should not be admissible to that part of service which is in respect of family members of employees, as Tribunal do not have breakup of part which is in respect of employees and that in respect of family members of employee, matter needs to be remanded back to original authority for determination of credit amount which is in respect of family members of employee - On issue of limitation, the facts in respect of availment of Cenvat Credit in respect of these services was in knowledge of Revenue, neither the SCN nor O-I-O have given any reason for invoking extended period of limitation - The order to this extent is set aside and also the order to the extent it pertains to imposition of penalty under Rule 15(1) of Cenvat Credit Rules, 2004 - Matter is remanded back to original authority for redetermination of inadmissible cenvat credit i.e. in respect of insurance services pertaining to family members of employee of appellant: CESTAT
- Matter remanded: MUMBAI CESTAT
2022-TIOL-859-CESTAT-MUM
Crompton Greaves Consumer Electricals Ltd Vs CC
Cus - Reclassification - The proximate provocation for re-classification are two fold: that importer had resorted to heading in Chapter 94 of First Schedule to Customs Tariff Act, 1975 in past and that 'circuit boards' were intended for use in manufacture of lamps - As far as first is concerned, adoption of classification which may be more beneficial and which, is only a claim, is not forbidden by law; indeed, the test of appropriateness is responsibility of assessing authority - The description upon which lower authorities have relied should be read in design of First Schedule to Customs Tariff Act, 1975 as a specific entry for specific purpose of levy of IGST on inter-state supply made applicable to import - It cannot supplant the responsibility thrust upon assessing authority in Section 12 of Customs Act, 1962 - Moreover, the tariff that emerges from recommendations of GST Council cannot in any way be deemed to interpret classification to be adopted for assessment under Customs Act, 1962 - The lower authorities have taken two rival entries and applied Rule 3(c) of The General Rules for Interpretation of Import Tariff which is relevant at the heading and not to descriptions at the tariff item level - The provisions for interpretation required identification of heading at the four digit level for the purposes of comparison between two rival claims - The onus devolving on assessing authorities has not been discharged in accordance with law - The classification adopted by assessing authorities fails in face of specific entry which the respondent herein has not been able to demonstrate as having been excluded from claimed description - Consequently, impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
