2022-TIOL-988-CESTAT-MUM
CC Vs Pidilite Industries Ltd
CX - Interest on delayed refund - Assessee pointed out that refund was not released suo motu but only on application of theirs preferred immediately after Tribunal had approved legality of assessment of additional duties of customs on 'transaction value' and elapse of time brings the claim within ambit of section 27A of Customs Act, 1962 - It is his contention that internal procedure for assessment/re-assessment are not envisaged in statute as permissible for waiver of obligation to pay interest - First appellate authority has interpreted the time limit in section 27A of Customs Act, 1962 according to letter of law which mandates liability of interest for any delay in sanction of refund beyond three months from date of claim - There has been delay beyond stipulated period of three months - Accordingly, there is no reason for interfering with impugned order: CESTAT
- Appeal dismissed: MUMBAI CESTAT
2022-TIOL-987-CESTAT-DEL
Mahavir Transmission Ltd Vs CCGST
CX - The appellant is a manufacturer of AC Conductors, which are used in transmission of electricity - As on 28.02.2015, the appellant had a credit balance in the Cenvat Register of Education Cess and Secondary & Higher Education Cess of Rs. 3,27,325/- - Under the provisions of Cenvat Credit Rules, Rule 3(7)(b), the appellant/assessee was entitled to use the credit in respect of Education Cess and Secondary & Higher Education Cess for payment of Education Cess on duty or taxable services and similarly, credit of Secondary and Higher Education Cess could used for payment of such similar cess on excise duty on output service tax - The issue involved in this appeal is whether the show cause notice has been issued rightly by invoking the extended period of limitation. And secondly, if demand of Rs. 3,27,325/- is rightly made for use of E. Cess & SHE Cess for payment of duty in December 2016 - The filed ER-I Return for the month of February on 11.03.2015, wherein they had shown the unutilized portion of Education Cess /S. Higher Education Cess at Rs. 3,27,325/-. The appellant kept carrying forward the said balance and thereafter, utilized the same for payment of excise duty in the month of December, 2016. The appellant have filed return for the month of December on 05.01.2017. Subsequently, there was audit of the appellant by the Department in the month of December, 2017 for the period from April to June, 2016, wherein objection was raised for other matters but no objection was raised for erroneous utilization of the amount of cess in December, 2016. Such audit objections were recorded to be satisfied in the 'Monthly Committee Meeting' held on 17.01.2017 - Thereafter, there was subsequent audit of the appellant by Revenue, that was in the year June-July, 2018, and in this audit, Revenue pointed out that the appellant have wrongly utilized the cenvat credit of Education Cess and SHE Cess of Rs. 3,27,325/- , which was not available to them under the amended provisions of Cenvat Credit Rules, read with notification - The appellant contested the show cause notice on the ground of invocation of extended period of limitation - However, the Adjudicating Authority confirmed the demand along with interest and equal amount of penalty under Section 11AC of CEA, 1944 read with Rule 15 of CCR, 2004 - Penalty was also imposed of Rs. 5,000/- under Rule 15 A of CCR. Held - the Division Bench of this Tribunal have held in the case of Bharat Heavy Electricals Ltd. Vs. Commissioner, CGST that an assessee is entitled to refund of unutilized cess under the existing law, lying in credit as on 30/06/2017 - Following the ruling of the Division Bench of the Tribunal, Single Member Bench (Tri-Blr) in Kirloskar Toyota Textile Machinery Pvt. Ltd. Vide Final Order No. 20697/2021 dated 19/08/2021 , considered refund of unutilized credit of EC. & SHEC on 30/06/2017, it was held that such refund be granted to the assessee as it neither lapses, nor the same was time barred - Presently, it is seen that the appellant had not utilized the Cenvat credit of EC & SHEC for payment of output tax/duty in December 2016, the same would have become refundable as on 30/06/2017. If the appellant is required to deposit the said amount of Rs. 3,27,325/- in cash, it will become entitled to refund of the duty earlier paid by utilization of credit of EC & SHEC, thus the situation is wholly revenue neutral - Hence the order is quashed although the issue of limitation is left open: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-986-CESTAT-AHM
Metadin Mali Vs CST
ST - M/s. Pino has entered into agreement with appellant for packing and salvaging activities - Appellant was paid for carrying out such activities on per Kgs/Per Metric Ton basis - The workmen deployed by appellant for carrying out such activities were under supervision and control of appellant - M/s Pino, who entrusted the job contract to appellant was no way concerned with workmen deployed by appellant - Over and above paying the amount for activities undertaken by appellant on job contract basis, said service receiver had not paid any specific price to workmen deployed by appellant - Since there is no specific mention about deployment of labour/work force, services provided by appellant should not fall under taxable category of manpower recruitment or supply agency service - Further, rate contract provided in work order clearly indicates that amount shall be paid at a fixed basis, i.e., on per kgs /per metric ton basis - Since there is no specific mention about payment of reimbursement of wages and salaries to workman, services provided shall not fall under such taxable category of service - Thus, it cannot be said that appellant had provided Manpower Recruitment and Supply Agency Service - Hence, service tax demands confirmed on appellant cannot be sustained - Therefore, no merits found in impugned order - Accordingly impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-985-CESTAT-CHD
Devinder Singh Narang Vs CC
Cus - Apellant is in appeal against impugned order imposing a penalty of Rs. 3.5 crores - Said impugned order was challenged by appellant before this Tribunal and vide its order, appellant was directed to deposit Rs. 50 Lacs within a period of 12 weeks as a condition for hearing appeal in terms of provisions of Section 35F of Central Excise Act, 1944 out of penalty of Rs. 3.5 crores - Appellant is deliberately not depositing the amount of Rs. 50 lacs despite getting extension of time to deposit from Supreme Court - Initially, Tribunal while ordering for pre-deposit in year 2011 had specifically observed that nondeposit of amount would result in automatic dismissal of appeals without any further notice to appellants but still so many opportunities were granted to appellant to deposit the amount but of no avail - Such a contumacious conduct of appellant cannot be tolerated - Therefore, Tribunal have left with no other option but to dismiss the appeal filed by appellant for non-compliance of order of Tribunal as affirmed by Supreme Court: CESTAT
- Appeal dismissed: CHANDIGARH CESTAT
