2022-TIOL-998-CESTAT-MAD
Caravel Logistics Pvt Ltd Vs CC
Cus - The only issue to be decided is about justifiability of penalty imposed under Section 112(a) of Customs Act, 1962 on appellant - Pre-shipment inspection certificate, as required, is to be furnished at the time of clearance of goods by an importer and hence, any other person including a Steamer Agent has no locus to meet the requirement - The responsibility was that of importer, as prescribed, and in any case, non-fulfilment of requirement would not ipso facto tantamount to declaring the goods as 'prohibited' under Section 111(d) ibid - This is because Section 111(d) could be invoked only when any goods are imported or attempted to be imported contrary to any prohibition imposed and in any case, it is not the case of Revenue that import of Aluminium Scrap was never prohibited under any law for time being in force - Moreover, Revenue has not whispered anywhere if it was duty of Steamer Agent to seek clearance of any goods since it is the importer who is required to fulfill any obligations 'at the time of clearance of goods' - First Appellate Authority has also referred to a Memorandum whereby responsibility to ensure furnishing of pre-shipment inspection certificate was fastened on all Shipping Lines - Here, the Bill-of-Entry is dated 24.05.2011 and hence, said Memorandum cannot be made applicable just because the Revenue woke up after more than 8 years to issue SCN - Penalty under Section 112(a) of Customs Act, 1962, as levied and confirmed on appellant is not sustainable, for which reason the impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2022-TIOL-997-CESTAT-AHM
Sahitya Mudranalaya Pvt Ltd Vs CCE
CX - Assessee is in appeal against demand of duty of goods manufactured by them - It is the claim of appellants that products manufactured by them are classifiable under chapter 49 whereas Revenue sought to classify the same under Chapter 48 - Two items, namely, Folders for inserting certificates and waste paper are being contested on merit by assessee - In respect of other items, namely, letter head/ pages, invitation cards and envelopes, assessees are contesting solely on limitation - Dispute essentially relates to interpretation of Chapter Note 12 and 14 of Chapter 48 which lays down the criteria for classification of goods in Chapter 48 and 49 - A perusal of Circular 1052/1/2017 shows that it specifically holds that inland letter cards which are printed would be classifiable under Chapter 49 whereas plain letter cards are classifiable under Chapter 48 - Moreover, it is seen that note 12 and 14 of Chapter 48 clearly lay down that unless there is further printing or writing needed, products where the printing is not merely incidental the said products would be classifiable under Chapter 49 - Relying on said Circular and Chapter Note 12, it is apparent that said product needs to be classifiable under Chapter 49 and not under Chapter 48 - Second issue relates to classification of waste paper - Assessee have sought to classify the same under Chapter 49, however Revenue sought to classify the same under Chapter 48 - Impugned order does not give any finding whatsoever on this issue - Next issue relates to Notification of extended period of limitation - CBIC has issued a Circular to clarify the classification of goods and interpretation of Chapter Note 12 & 14 of Chapter 48 - The CBEC has issued a clarification relied on decision of Apex Court in case of Holostick India Ltd. 2015-TIOL-60-SC-CX - From nature of dispute, it is apparent that it was possible that appellants to hold a bonafide belief in respect of item No. 1,2,4 & 5 and therefore, in such circumstances, extended period of limitation in respect of these items cannot be invoked - Appeal in respect of item No. 1,2,4 & 5 is allowed - With reference to item No. 3, matter is remanded to original adjudicating authority for fresh decision: CESTAT
- Appeal partly allowed: AHMEDABAD CESTAT
2022-TIOL-996-CESTAT-AHM
Bajaj Herbals Pvt Ltd Vs CCE
CX - A fire has taken place in factory of appellant due to short circuit and finished goods were destroyed along with other material like packing materials and consumables - Immediately when fire took place the management of appellant company has intimated to concerned local authorities and these agencies have started their respective procedure immediately - Thereafter, jurisdictional superintendent has visited appellant's factory and recorded the punchnama - However, in said punchnama, there is no mention about allegation that appellant have not taken any precaution to avoid fire incident - The most important agency in such accident is insurance company, who is major sufferer by insurance claim as same is much more than the excise duty involved, same has sanctioned insurance claim without raising any objection about any misdeed on the part of appellant, as regard to fire incident, therefore, it cannot be said that appellant have any involvement or they have not taken any precaution to avoid fire incident - Short circuit is a usual cause of fire in majority of cases, therefore, fire due to short circuit cannot be attributed to any malafide on the part of appellant or it cannot be said that appellant have not taken abundant precaution to avoid fire incident - Therefore, rejection of remission claim is unsustainable - As regard, the reversal of cenvat credit, there is no dispute that appellant is duty bound to reverse the cenvat credit on inputs contained in finished goods which were destroyed in fire incident - Appellant's case is clearly covered under four corners of Rule 21 of Central Excise Rules, 2002 and appellant is clearly eligible for remission of duty on finished goods destroyed in fire incident - As regard the other appeal wherein demand of duty on goods lost in fire was confirmed, this duty confirmation is consequent to rejection of remission application of appellant - Since, rejection of remission is not sustainable, consequently, demand is also not sustainable: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2022-TIOL-995-CESTAT-DEL
Mahindra And Mahindra Ltd Vs CCE & CGST
CX - The assessee-company is a major manufacturer of motor vehicles and tractors falling under Chapter 87 of the First Schedule to the Central Excise Tariff Act, 1985 - It also availed Cenvat Credit on various eligible inputs, capital goods and input services in accordance with the provisions of the Cenvat Credit Rules, 2004 - Further, the assessee has been filing the monthly ER-1 Return without any default - The assessee has more than 80 spare divisions located across India to cater to the requirement of customers - The present dispute relates to spare division located in Jaipur - After verification of the records, an SCN was issued to the assessee proposing to demand (i) Cenvat credit availed on – (a) paints /chemicals and (b) capital goods alleged as ineligible; (ii) duty on account of difference in the assessable value figure recorded in the ER-1 return (for May, 2016 and January 2017) vis-à-vis the sales register of the assessee.
Held - The items Floor Top Hardener/Paint has been used for repair & maintenance of the floor of the factory for filling in the gaps between the floor tiles - Hence it is an item eligible for Cenvat credit under Rule 2(k) of the CCR & accordingly, credit is allowed thereon - So far credit of capital goods viz. Induction lamps, Lift table are concerned, I find that these are essential for use in the factory, without which taxable finished goods cannot be manufactured - Besides, the assessee's contention of having used these goods inside the factory has not found to be untrue - Moreover, the items used inside the factory are inputs as defined in Rule 2(k) - Hence Cenvat credit on the materials used in the assessee's factory is allowable - So far the demand of Rs.90,665/- is concerned, it is alleged in the show cause notice that during re-conciliation of the assessable value shown in ER-1 Returns vis-à-vis Sales Register, there was some apparent difference, on which duty has been demanded - The appellant have explained that this relates to the period May, 2016 and Jan. 2017 - In order to arrive at the correct excise duty liability, they receive reports from the SAP Programmes, which were duly verified from the Accounts for discharging the excise duty liability - It is explained that there is some difference in the assessable value as per data submitted to the Audit and as per ER-I Return, as the assessee is working under MRP basis, under which duty was paid on the MRP subject to abatement - The appellant has turnover of approximately Rs.30 plus crores p.m. and hence for such accounting difference, no adverse inference can be called for - Appreciating the minor difference, in reconciliation, I hold that no duty can be demanded as there is no case made out of any clandestine removal on the part of the appellant: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-994-CESTAT-DEL
Universal Cylinders Ltd Vs CCE
CX - Issue arises is, whether the SCN demanding differential excise duty for supplies made during September 2016 to November 2016, alongwith interest and penalty under Section 11A(4) is validly issued - Appellant is a manufacturer of LPG cylinders and mainly supplying them to oil marketing companies including IOCL - It is urged that evidently the invoice raised by appellant in April 2018, is in nature of supplementary invoice/debit note issued for balance price of goods as settled by purchaser under terms of contract - The situation is wholly covered by Section 142(2)(a) of CGST Act, 2017, which specifically provides that for purpose of GST, such supplementary invoice or debit note shall be deemed to have been issued in respect of an outward supply under CGST Act - Admittedly, appellant have raised supplementary invoice and paid applicable IGST @ 18% - SCN is bad as it has been issued ignoring the provisions of Section 142 (2) (a) of CGST Act, which is a provision to remove such difficulties for transitional period - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
