2022-TIOL-NEWS-228 Dated : Wednesday, September 28, 2022

2022-TIOL-885-CESTAT-AHM

Mother Dairy Vs CCE

CX - Appellant is a unit of M/s. Gujarat Co-operative Milk Marketing Federation Ltd. (GCMMF) and engaged in manufacture of Co-Extruded Multi Layer Printed Plastic Film (PPF) - The PPF manufactured by appellant is cleared to various District Co-operative Milk Producers Union (DCMPUs) and also to associated members (Dairies) affiliated to GCMMF - Revenue alleged that price is not sole consideration for sale - It is alleged that appellant and DCMPUs/associate members are related persons in terms of Central Excise Act - Arguments of Commissioner are misplaced in so far as in entire discussion, she has focused on control that GCMMF has over the appellant and dairies - All the bylaws cited by Commissioner shows some kind of control of GCMMF over the member unions/dairies and on appellant however, there is not an iota of evidence to suggest that appellant had any control over the dairies or vice-versa - Furthermore, it can be seen that the question of law is identical and question of fact is not relevant - Perusal of the order of Apex Court in M/s. Kaira District Co-Operative Milk Producers Union Ltd 2002-TIOL-525-SC-CX , clearly shows that the order is based on bylaws and the relationship between the two entities - It is not based on nature of transaction between M/s. Kaira District Co-Operative Milk Producers Union Ltd and GCMMF but on the basis of constitution of two entities and share holding of two entities - Appellant does not hold any shares, dairies and vice-versa - The ratio of law laid down by Apex Court is squarely applicable to instant case - No evidence found to hold that appellant and dairies are related in terms of Section 4(3)(b) of Central Excise Act: CESTAT

- Appeals allowed: AHMEDABAD CESTAT

2022-TIOL-884-CESTAT-HYD

CC, CE & ST Vs Dalmia Cement Bharat Ltd

CX - The issue involved is, whether the Cenvat credit has been rightly denied on MS Plates used in fabrication of Plant and Machinery/ capital goods during period October, 2009 to March, 2010 - Whole case of Revenue starting from show cause notice is based on the Larger Bench ruling of this Tribunal in case of Vandana Global Ltd wherein this Tribunal had held that Cenvat credit is not available for inputs used in fabrication of support structures and foundation of capital goods, these being immovable structures which cannot be called goods - Larger Bench ruling of this Tribunal has been set aside and reversed by Chhattisgarh High Court in appeal by Vandana Global Ltd. 2017-TIOL-2853-HC-CHATTISGARH-CX , wherein, it has been held that Cenvat credit of service tax on inputs like MS Angles/ beams/ bars/ plates which go into fabrication of structures embedded to earth are to be treated as inputs used in relation to final products, as inputs or capital goods - The Chhattisgarh High Court relied on ruling of Gujarat High Court in case of Mundra Ports & Special Economic Zone Ltd 2015-TIOL-1288-HC-AHM-CX and also on the ruling of Madras High Court in case of Thiruarooran Sugars 2017-TIOL-1357-HC-MAD-CX - In view of aforementioned clarifications by judgment of Chhattisgarh High Court, following the same it is held that the appellant have rightly taken Cenvat credit on inputs, capital goods and input services in question - Accordingly, no merits found in the appeal filed by Revenue: CESTAT

- Appeal dismissed: HYDERABAD CESTAT

2022-TIOL-883-CESTAT-KOL

Numal Saikia Vs Pr.CCGST & CC

ST - Issue that requires to be considered is as to whether department was right in demanding service tax from appellants on the basis of 26 AS statements and as to whether impugned SCN is issued in violation of instruction issued by Board - Appellant submits that they have undertaken various works as per work orders given by PWD authorities, Air Port Authority of India, Indian Railways and Oil India Ltd. which are exempt under entry no.13 (a)/12/12A/14 of exemption Notfn 25/2012-S.T. - Commissioner has confirmed demands as per receipts by appellants as indicated in 26 AS statements, copies of work orders wherever submitted by appellant - The manner in which allegation were raised in SCN and confirmed by impugned order is not legally correct - As department is alleging that appellants have evaded payment of service tax, it is incumbent upon department to prove same with reliable evidence - Details of payment received by appellant were gleaned from 26 AS statements and other document, like ledger, profit and loss account, balance sheet - Thereafter, appellant was asked to submit necessary details like work orders, invoices - Department has not even bothered to collect necessary documents from respective government authorities at whose behest, appellant is alleged to have undertaken work orders - Nature of such works alleged to have been under taken by appellants, taxability thereof under Finance Act, 1994 and exemption if any available was not discussed at all in impugned order - Department has not discharged its onus to prove that appellant is liable to pay service tax - It is settled principle of law that unless and until the clear analysis of activity done by assessee is carried out, demand of service tax cannot be confirmed - Therefore, impugned order is not legally sustainable - SCN was issued in violation of instruction issued by CBIC as observed by various High Courts - Departmental instructions are binding on departmental officers - Therefore, any action taken in violation of instructions is to be treated as nonest - Therefore, impugned SCN and the order do not survive: CESTAT

- Appeal allowed: KOLKATA CESTAT

2022-TIOL-881-CESTAT-DEL

Pappu Construction Vs CC & CE

ST - Duty demand alongwith interest and penalty has been confirmed against appellant, pursuant to final order of Tribunal but for normal period of demand and remaining demand for extended period was set aside - Irrespective of said partial confirmation, issue in present adjudication is only with respect to entitlement of appellant to get refund of amount of pre-deposit as was made by him while filing said appeal before Tribunal - There is no denial about entitlement of appellant to have refund of amount as was deposited by him under section 35 F of CEA, 1944 - Perusal of Departmental clarifications and directions, are sufficient to hold that it was a mandate upon Department to sanction refund of amount as was deposited under Section 35F of Central Excise Act - Adjudicating authorities are held to have committed an error while adjusting said amount to a confirmed duty demand - Even Circular 984/08/2014 does not speak about setting off amount of pre-deposit as made under section 35 F against any partial confirmation of demand - Refund claim irrespective of a confirmation of duty liability has wrongly been rejected - Appellant is entitled for refund of amount of pre-deposit thereof alongwith interest at applicable rate from date of deposit till date of realisation - Department is at liberty to recover the amount of demand as partially confirmed from appellant: CESTAT

- Appeal allowed: DELHI CESTAT

2022-TIOL-880-CESTAT-MAD

Thaya Tanning Company Vs CC

Cus - Assesee was issued SCN alleging switching of samples sent to Central Leather Research Institute (CLRI) for getting ‘Finished Leather' certification for goods which were ‘Semi Finished Leather' to evade payment of export duty and avail duty drawback - Assessee approached High Court and was allowed to export consignments subject to conditions - Thereafter, revenue proposed confiscation of goods u/s 113(1) Customs Act, along with demand duty, redemption fine, penalty and withdrawal of duty drawback - Joint Commissioner confirmed the demands and the same was upheld by Commissioner (appeals) in the impugned order. Held : Issue in the case already decided in M/s. Karpaga Leathers vs. Commissioner of Customs - There was no mention of witnessing of drawing of initial samples - Revenue did not bring on record how and where the samples were preserved since preservation is important for leather quality - Revenue did not establish how and where the switching of samples occurred - Since there is no change in facts in the two cases, impugned order set aside - Appeal allowed: CESTAT

- Appeal allowed: CHENNAI CESTAT