2022-TIOL-896-CESTAT-MAD
CC Vs Kutty Impex
Cus - Revenue is in appeal against impugned order, whereby First Appellate Authority has allowed the appeal filed by assessee by also ordering provisional release of impugned goods - Apex Court in case of M/s. Delhi Photocopiers , while staying confiscation of goods in view of fact that Notification dated 01.04.2020 was subject matter of controversy before Apex Court, had allowed the provisional release of goods involved - Further, this Bench has also held that valuation which was not disputed by either of parties did not call for any interference - With regard to goods in question being hazardous in nature within meaning of provisions of Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2008, Bench has observed that the goods in question were useful goods with residual life and therefore, cannot be called as 'hazardous waste' - The facts being identical, no reasons found to deviate from findings arrived at by this Bench in case of M/s. S.P. Associates 2021-TIOL-632-CESTAT-MAD and hence, First Appellate Authority has correctly ordered provisional release of impugned goods - When goods are held not confiscatable under Section 111(d) ibid, then it can be reasonably held that the import was not prohibited - Appeal filed by Revenue, being devoid of merits, is dismissed: CESTAT
- Appeal dismissed: CHENNAI CESTAT
2022-TIOL-895-CESTAT-AHM
JK Paper Ltd Vs CCE & ST
ST - Appeal has been filed by M/s. JK PAPER LTD against denial of Cenvat Credit availed by them on GTA Service - Appellant and JK Environ-tech LTD (JKETL) have merged w.e.f 01.04.2013 is not in dispute - The two entities namely JK Environ-tech LTD (JKETL) and appellants are to be treated as one w.e.f 01.04.2013 - It is not in dispute that appellant themselves were manufacturer of excisable goods at the material time and therefore would have been entitled to availed Cenvat Credit of GTA services - In this background the services received by JK Environ-tech LTD (JKETL) after appointed date i.e. 01.04.2013, are to be treated as services received by appellants - Impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-894-CESTAT-MUM
ICICI Prudential Life Insurance Company Ltd Vs CCE
ST - Dispute is about applicability of 'management of investment under unit linked insurance policy', impugned 'taxable service', to 'surrender charge', 'foreclosure charge' and 'reinstatement charge' recovered by appellant from their customers during period of dispute - The taxability of 'surrender charge' has already been determined by Tribunal in re Bharti AXA Life Insurance Co Ltd - It has been pointed out by appellant that 'foreclosure charge' is also no different from 'surrender charge' except that former is consequence of a positive decision to discontinue the policy while latter stems from non-payment of 'premium' that has effect of terminating the policy issued by appellant - Consequence of such termination is identical to that of a voluntary closure of policy beyond the threshold permissible in insurance contract - The termination of contract of insurance, whether within the agreed upon terms and conditions or from a breach of conditions, closes the relationship between provider and recipient - Such closure erases the provider-recipient framework which is essential for levy of service tax under Finance Act, 1994 - Accordingly, 'foreclosure charge' retained by appellant is in accord with decision of Tribunal in re Bharti AXA Life Insurance Co Ltd, not liable to tax under Finance Act, 1994 - As well as 'reinstatement charge' is concerned, termination leading to 'foreclosure charge' is pre-empted by such payment upon issue of mandatory notice prior to erasure of relationship between insurance company and policyholder - Consequence of such notice and response on the part of policyholder, restores the relationship to that of provider and recipient - The charge cannot, therefore, be considered to be a preliminary before relationship commences but is intended to facilitate the continuance of relationship which was in jeopardy by non-compliance with conditions of contract - The restoration of relationship of provider-recipient is contingent upon such additional fee which cannot, in circumstances of such restoration, be anything other than consideration for continuance of 'taxable service' and, therefore, liable to service tax - Case of appellant against levy of tax on 'reinstatement charge' does not fit in with the matrix that excludes 'surrender charge' and 'foreclosure charge' from ambit of tax - Impugned order cannot be faulted to that extent - Demand of tax on 'foreclosure charge' and 'surrender charge' is set aside while upholding the tax liability of 'reinstatement charge' in impugned order - The provisions of Sections 65 and 65B of Finance Act, 1994 have no scope for doubt on taxability and failure to discharge tax on 'reinstatement charge' cannot be considered as deliberate evasion on their part - The justification offered for absence of intent to evade does not appear convincing - Therefore, penalties arising from, and limited to, 'reinstatement charge' is upheld: CESTAT
- Appeal partly allowed: MUMBAI CESTAT
2022-TIOL-893-CESTAT-MAD
Arthanari Loom Centre (Textiles) Pvt Ltd Vs CGST & CE
CX - Allegation of department is that credit availed on capital goods is not eligible prior to 10.6.2010 for the reason that appellant has been clearing goods both for home consumption as well as for export without payment of duty in terms of Notification No. 30/2004-C.E. - Rule 6(4) of Cenvat Credit Rules, 2004 prohibits availment of credit on capital goods which are exclusively used for manufacture of exempted goods - The question then arises whether availment of benefit of Notfn 30/2004 would give rise to a situation that capital goods are used exclusively for manufacture of exempted goods - Goods cleared under Notification No. 30/2004-C.E. without payment of duty is optional payment without duty and it cannot be said that these fall within definition of 'exempted goods' - Denial of CENVAT credit alleging that goods cleared prior to 10.6.2010 are exempted goods and therefore hit by Rule 6(4) is without any basis - Later, appellant had availed benefit of Notification No. 29/2004-C.E. - Department has denied credit availed on capital goods for period after 10.6.2010 alleging that though the appellant has paid duty on domestic clearance but capital goods have also been used for manufacture of exported goods - Thus, they have considered the 'exported goods' as 'exempted goods' - This is legally wrong - The issue as to whether benefit of both the notfns can be availed and credit on capital goods is eligible was considered by Tribunal in case of S.T. Cottex Exports Pvt. Ltd. - Said decision was upheld by High Court of Punjab and Haryana 2011-TIOL-19-HC-P&H-CX whereby the appeal filed by Revenue was rejected - Disallowance of CENVAT credit on capital goods is without legal or factual basis - Impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2022-TIOL-892-CESTAT-MUM
Ramani Hotels Ltd Vs CCE
CX - Appellants are engaged in manufacturing cakes and pastries - Intelligence was gathered to the effect that appellants were manufacturing cakes and pastries by using brand name "Ramee Guestline Hotel" on the packing material for packing cakes which belonged to another company - Appellant have restaurant where food is served to customers staying in hotel and that the kitchen is located on ground floor of hotel - On the carton boxes used for packing cakes they used name and logo of Ramee Guestline Hotels - It was alleged that appellants have short paid central excise duty leviable on cakes and pastries by mis-utilizing exemption provided under Notification No. 8/2001-C.E. - SCN is based on investigation made for earlier SCN for the period April 2000 to March 2005 issued to appellant - There is no change in products manufactured and cleared and their manufacturing and clearing procedures - This clearly shows that present SCN which has been issued is just in continuation of earlier SCN without any new facts being brought on record - The SCN of 2005 was finally concluded by O-I-A dated 21.07.2009 - SCN itself makes an averment that appellant operate under name and style of Ramee Guestline Hotel and have cleared the goods with brand name and logo - If that is the case, then appellants were clearing the goods under brand name and logo held by them - They cannot be hit by clause 3(b) of Notification No. 8/2003-C.E. - Accordingly, no merits found in impugned order: CESTAT
- Appeal allowed: MUMBAI CESTAT
