CX - Against the outstanding demand of Rs.51,86,838/- confirmed as interest liability, refund amount sanctioned by Department was appropriated against such liability - Interest demands has already been settled under SVLDRS-4, 2019 and consequent upon settlement of dispute, appeal filed by appellant before Tribunal was also dismissed as deemed withdrawal - Since there is no liability of making any payments towards adjudged Government dues as on date, there is no question of any appropriation of sanctioned refund amount against any liability as mentioned in adjudication order - Appellant should be entitled for grant of refund: CESTAT
- Appeal allowed: MUMBAI CESTAT
CX - The assessee is engaged in the manufacture of parts of IC engines, parts of air compressors and circuits - They are also registered with the Central Excise Department - They availed the facility of CENVAT credit of duty paid on inputs, capital goods and input services - On verification of CENVAT account, it was noticed that the respondent has availed CENVAT credit of lease rentals paid to M/s. Ashok Leyland Wind Energy Ltd - They had taken lease of 27 windmills from M/s. Ashok Leyland Wind Energy Ltd. located in Udumalpet, Coimbatore District - The said company was responsible for development, maintenance and operation of the windmills and for effective functioning of the same - The energy generated by these windmills was surrendered to the power grid at Udumalpet and in turn the same quantum of electricity was supplied to the respondent at Chennai - On perusal of the lease agreement, it was seen that the lease rental is computed on the actual power consumed by assessee on agreed rates. The respondent availed credit of the service tax paid on the lease rental charges - Show Cause Notice dated 25.1.2008 was issued proposing to disallow the credit and also recover the same along with interest and for imposing penalty - After due process of law, the original authority confirmed the demand along with interest and imposed penalty of Rs.2,000/- in terms of Rule 15 of CENVAT Credit Rules, 2004 - Against such order, the respondent filed appeal before the Commissioner (Appeals) who vide the order impugned herein set aside the order passed by the lower authority and held that the respondent is eligible for credit. Held - The issue is whether the credit availed on the service tax paid on lease rental charges paid to the Ashok Leyland Wind Energy Ltd. for the power that has been drawn by the assessee at Chennai is admissible - On perusal of the Show Cause Notice, it is seen that the electricity generated by the windmills is transmitted to the Udumalpet TNEB Grid and the assessee draws the same quantity of electricity at Chennai - There is no allegation in the Show Cause Notice that any excess electricity has been sold to any other party - The assessee has availed credit on the lease rental which is calculated on the basis of the electricity consumed by them - Electricity being in a nature which cannot be transported in an ordinary manner, the assessee has made the facility of transmitting it through TNEB grid and drawing it at Chennai - It is not in dispute that the said electricity is supplied to the factory of the assessee and the same is used for manufacturing activity. Merely because the wind generation plant is situated far away from the manufacturing activity, credit cannot be denied - order does not call for any interference: CESTAT
- Revenue's appeal dismissed: CHENNAI CESTAT
ST - The issue is with regard to rejection of refund claims filed under Rule 5 of CENVAT Credit Rules, 2004 r/w Notfn 27/2012 - It is seen from O-I-O that appellant has been granted refund and issue with regard to remittances in different names has been discussed in detail - Appellant has made a request that they may be given a chance to furnish documents to explain how the remittances have been made - Matter remanded to original authority who is directed to look into orders passed by authorities in appellant's own case for refund claims and consider the same as expeditiously as possible: CESTAT
- Matter remanded: CHENNAI CESTAT
ST - The grievance of appellant is that the amount of Rs.2,93,427/- was not sanctioned to them in cash and instead was directed to take re-credit of said amount - Whatever the reasons may be for rejection of cash refund, it has to be seen that after introduction of G.S.T., said direction to take re-credit has become impractical for appellant - The Tribunal in case of M/s. Veer-o Metals Pvt. Ltd. 2021-TIOL-210-CESTAT-BANG had considered a situation as to whether refund in cash can be allowed when credit cannot be availed by appellant - As appellant has been allowed to take re-credit and is not able to do the same due to introduction of G.S.T., he has to be given refund of said amount in cash - Following the said decision, appellant is eligible for refund of the amount of Rs.2,93,427/-: CESTAT
- Appeal allowed: CHENNAI CESTAT
Cus - The only issue to be decided is as to when the appellant has paid entire duty amount alongwith interest and penalty, whether proceedings would have been concluded and as to whether Adjudicating Authority have been right while not concluding the proceedings in that scenario - Appellant has made duty payment alongwith interest and penalty - Said acknowledgment is very much recorded in impugned order itself - Adjudicating Authority has committed error for not concluding the proceedings - No doubt provision of sub-section (2) of Section 28 of Customs Act, 1962 are applicable without prejudice to provisions of Sections 135, 135A and 140 of Customs Act but perusal of SCNs makes it clear that none of these provisions hav e been invoked at the time of issuing SCNs - Hence, case of appellant is very much covered under deemed conclusion scheme of legislature under Section 28 of Customs Act - Circular as relied upon by Adjudicating authority is not applicable at least on main importer/Noticee - It is settled provision that Circulars being mere clarificatory in nature cannot supersede the legislature - It is also settled principle of law as was held by Apex Court in Babu that if the manner of doing a particular act is prescribed under any statute, act must be done in that manner or not at all - In another case of Aphali Pharmaceuticals Ltd. 2002-TIOL-397-SC-MISC , Apex Court has observed that a taxing statute must be interpreted in light of what is clearly expressed therein and nothing can be implied nor can the provisions be imported into it so as to supply an assumed deficiency - Impugned order under challenge is set aside extending the benefit of deemed conclusion of proceedings in view of Section 28 of Customs Act to appellants for the reason that they have complied with conditions mentioned in provision: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
