2022-TIOL-925-CESTAT-DEL
Anjani Technoplast Ltd Vs CC
Cus - s.129E of the Customs Act, 1962 - What was sought to be contended by the appellant before the Tribunal when the matter came up before it on 07.07.2015 was that the provision of section 129E of the Customs Act, as it stood prior to 06.08.2014, would be applicable and so the Tribunal would have the power to waive the requirement of pre-deposit subject to such conditions as it thought fit - Inasmuch as though the order was passed by the adjudicating authority on 10.10.2014, but the show cause notice was issued prior to 06.08.2014 on 10.06.2014 - Tribunal did not accept this submission citing the decision of the Allahabad High Court in Ganesh Yadav = 2015-TIOL-1490-HC-ALL-ST and accordingly dismissed the appeal - Therefore, the appellant has filed an application on 31.05.2022 under rule 20 of the Customs, Excise and Service Tax Appellate Tribunal Rules, 1982 [The 1982 Rules] for restoration of the appeal.
Held : It is true that no time limit is prescribed for filing an application for restoration of appeal, but nevertheless the applicant has to be the vigilant and the application should be filed at the earliest opportunity after explaining the cause for non-appearance of the applicant on the date when the matter was called out - In the present case, appellant had appeared on the date fixed and made submissions - It is on a consideration of the submission advanced that that the appeal was dismissed for non-compliance of the statutory requirement - Rule 20 of the 1982 Rules, in such circumstances, would not be applicable - Moreover, Application was filed by the appellant for recall of the order dated 07.07.2015 only on 31.05.2022 - The appellant had throughout contested before the Delhi High Court and the Supreme Court that it should not be required to deposit the amount because the un-amended provisions of Section 35 of the Customs Act would be applicable - Even after the dismissal of the Civil Appeal by the Supreme Court on 23.01.2017, the appellant took more than five years to file the application for recall of the order - No satisfactory explanation has been given by the applicant for this enormous delay - In fact, only a casual statement has been made that earlier the financial capacity of the appellant was bad and it took some time to recover, whereafter the amount was deposited in September 2020 - This application was filed after two years of the deposit, therefore, it deserves to be rejected for this reason also - Application rejected: CESTAT [para 13, 21, 22]
- Application rejected: DELHI CESTAT
2022-TIOL-924-CESTAT-AHM
Jain Products Vs CCE & ST
ST - The Adjudicating Authority confirmed the demand under head of GTA Service in respect of freight amount exceeds to Rs. 750/- and Rs. 1500/- - Appellant's challenge is limited to penalty of 75% - Appellant, complying with option given by Adjudicating Authority, though paid 25% of penalty but after stipulated time of one month - Though appellant have made ground against confirmation of demand also but it was conceded that appellant is contesting only for 75% penalty imposed under Section 78 of Finance Act, 1994 - Though appellant have paid 25% penalty but same was paid after stipulated time period of 30 days - Since said period is statutory, same cannot be relaxed - However, appellant otherwise paying service tax as per the belief that service tax is payable only in cases where freight amount is exceeding Rs. 750/- - There is only a misunderstanding about calculation of limit of Rs. 750/- - Moreover, appellant have paid entire service tax, interest and 25% penalty - A lenient view can be taken particularly for waiver of penalty of 75% - Accordingly, penalty of 75% under Section 78 of FA, 1994 invoking Section 80 ibid is set aside - Demand of service tax, interest and 25% penalty under Section 78 ibid is upheld: CESTAT
- Appeal partly allowed: AHMEDABAD CESTAT
2022-TIOL-923-CESTAT-HYD
Bharathi Cement Corporation Pvt Ltd Vs CCT
CX - Appeal is filed against demand of reversal of cenvat credit availed by appellant on inputs and input services during period from July 2009 to February 2010 under Rule 14 of Cenvat Credit Rules r/w Section 11A of CEA, 1944 and imposition of penalty equal to duty demanded under Rule 15 of Cenvat Credit Rules, 2004 vide SCN - So far the first issue is concerned regarding availment of input services for setting up of factory, issue is already settled in favour of appellant vide Final Order dated 20 June 2017 , in appellant's own case by a co-ordinate bench of this Tribunal - So far the cenvat credit on dumpers is concerned, these are part of material handling system, as such dumpers are used by appellant for transfering raw material (limestone) from pit head to crusher - Issue stands covered in favour of appellant by Precedent order of Tribunal in Aditya Cement 2016-TIOL-2582-CESTAT-DEL - So far the third issue is concerned regarding availment of cenvat credit on welding electrodes, welding machine and MS rolla dalk profile sheet as capital goods, cenvat credit on these items is allowable as inputs under Rule 2(k) ibid as without the use of welding electrodes and welding machine no fabrication and repair and maintenance of plant and machinery is possible - In absence of such inputs, production of dutiable output is not possible - Thus, there is indirect use of these items in manufacture of dutiable output - Similarly, profile sheets are also required for use in fabrication of plant and machinery, for setting up of factory - Thus, credit is available - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: HYDERABAD CESTAT
