2022-TIOL-1003-CESTAT-AHM
Ruchi Soya Industries Ltd Vs CCE
Cus/CX/ST - The present Miscellaneous Applications filed in view of NCLT order - The appellant-company claimed that as per the resolution plan approved by NCLT, no dues exists against the applicant therefore, the demand involved in the order is not recoverable by the Department consequently, the appeal becomes infructuous.
Held - The NCLT has passed an order by approving resolution plan of the company M/s. Ruchi Soya Industries Ltd in favor of Patanjali Ayurved Limited, Divya Yog Mandir Trust, Patanjali Parivahan Pvt. Ltd. and Patanjali Gramudhyog Nyas, who are the resolution applicant - From the above terms of the resolution plan approved by the NCLT, it prima facie appears that the appellant is not liable to pay any dues. However, this tribunal is not competent to decide regarding the recovery of any dues - It is the Department who has to decide whether any dues is recoverable or otherwise, in the light of the resolution plan approved by the NCLT: CESTAT
+ as per the resolution plan approved by the NCLT and in the light of Hon'ble Supreme Court judgment in the case of Ghanashyam Mishra & Sons Pvt. Ltd.-2021 SCC Online SC 313 , it prima facie appears that the adjudged dues cannot be recovered by the department however, this issue has to be decided by the department and not by this tribunal. For this reason, that firstly, there is no provision made in the Customs and Central Excise Act to give effect of NCLT proceedings. This tribunal being creature under the Customs Act, even though the Insolvency and Bankruptcy Code have over riding effect over all the other acts, in absence of any explicit provision under the Customs/Central Excise Act, this tribunal cannot decide finally whether the adjudged amount can be recovered by the department or otherwise. This issue has to be resolved by the respondent with the appellant/resolution applicant/NCLT/Resolution professional. (Para 4.2)
+ we note that IBC proceedings are being initiated against many companies who are either appellant or respondent in the appeals pending before this tribunal. We observed that the revenue-department has no proper guideline as to what stand is to be taken in a case where the IBC proceedings is in progress before NCLT/NCLAT or at higher forum. The assessee against whom the IBC proceedings are initiated invariably approach this tribunal through miscellaneous application for disposing of the appeals in the light of the NCLT's orders. However, in the absence of any guideline by the CBIC, the departmental representative are unaware as to what stand is to be taken in such cases. Therefore, we are of the view that the Central Board of Indirect Taxes & Customs may consider issuing guideline/procedure for dealing with the case before this tribunal wherein, against the assesse's company IBC proceeding has been initiated. Copy of this order be sent to the Chairman-CBIC by speed post. (Para 5)
- Applications disposed of: AHMEDABAD CESTAT
2022-TIOL-1002-CESTAT-KOL
Macneill Engineering Ltd Vs CCGST & CE
CX - Appellant is a manufacturer of Battery and Diesel Operated Fork-Lift Trucks, Platform Trucks, Hand-Pallet Stackers and spares parts - It clears the goods for home consumption on payment of appropriate Central Excise duty leviable thereon and during material time also cleared to SEZ Units without payment of Central Excise duty - SCN was issued for period July, 2009 to June 2010 demanding duty along with interest and proposing imposition of penalty under Rule 25 of Central Excise Rules, 2002 - Similar issue came up for consideration in cases of Dashion Ltd. 2016-TIOL-111-HC-AHM-ST and National Engg. Ind. Ltd. 2016-TIOL-922-HC-RAJ-CX and it was decided that substantial benefit cannot be denied because of procedural irregularity - Central Board of Excise & Customs has also accepted the said judgments and issued Circular F.No.1063/02/2018-CX and instructed to decide similar issues in same way - Circulars are binding on Department as has been held in case of Dhiren Chemical Industries 2002-TIOL-83-SC-CX-CB - Matter remanded to Adjudicating Authority to verify relevant documents and pass a speaking and reasoned denovo order in accordance with law and in view of principles of natural justice - A reasonable opportunity of hearing be granted to appellant to present their case: CESTAT
- Matter remanded: KOLKATA CESTAT
2022-TIOL-1001-CESTAT-KOL
Larsen And Toubro Ltd Vs CCGST & CE
CX - Appellant had provided taxable services under category of 'Consulting Engineering Services" and "Supply of Tangible Goods Services" and discharged Service Tax by utilizing CENVAT Credit on inputs, capital goods and input services, which was available to them as a manufacturer of those goods under Central Excise Act, 1944 - SCN was issued alleging wrong utilization of CENVAT Credit towards payment of Service Tax on output services - A manufacturer of excisable goods can take credit of CENVAT paid on input services and there is no such requirement for one to one co-relation and there is no bar on utilization of CENVAT credit availed on input services for payment of tax on excisable goods so manufactured and cleared - C.B.E. & C. vide Letter F. No. 381/23/2010/862 clarified that Cenvat credit on inputs, capital goods and input services which are used for manufacture of goods or for provision of services is available in a common pool and can be used for payment of Excise duty and/or Service Tax - Credit accumulated by service provider or manufacturer on input services availed as well as inputs is available for payment of Excise duty or Service Tax - Any contra view taken would defeat the very scheme of credit - As far as inputs or input services are availed on payment of duty and as long as they are capable of being used in provision of Service Tax and manufacture of excisable goods, credit cannot be denied and that there is no requirement of one-to-one correlation - I mpugned orders cannot be sustained and are therefore set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-1000-CESTAT-AHM
Alok Industries Ltd Vs CCE & ST
CX - Applicant filed miscellaneous application in view of NCLT order - The NCLT has passed an order by approving resolution plan of appellant company in favor of JM Financial Asset Reconstruction Company Limited and Reliance Industries Limited, who are the resolution applicant - As per resolution plan approved by NCLT and in light of Supreme Court judgment in case of Ghanashyam Mishra & Sons Pvt. Ltd. , it prima facie appears that adjudged dues cannot be recovered by department however, this issue has to be decided by department and not by Tribunal - For this reason, that firstly, there is no provision made in Customs and Central Excise Act to give effect of NCLT proceedings - This Tribunal being creature under Customs Act, even though the Insolvency and Bankruptcy Code have over riding effect over all the other acts, in absence of any explicit provision under Customs/Central Excise Act, Tribunal cannot decide finally whether adjudged amount can be recovered by department - Appeals became infructuous - Central Board of Indirect Taxes & Customs may consider issuing guideline/procedure for dealing with case before tribunal wherein, against applicant's company, Insolvency and Bankruptcy Code (IBC) proceeding has been initiated: CESTAT
- Appeals dismissed: AHMEDABAD CESTAT
2022-TIOL-999-CESTAT-MAD
Sakthi Sugars Ltd Vs CGST & CE
CX - Challenge in appeal is only with regard to equal penalty imposed under Section 11AC of Central Excise Act, 1944 - Though audit was conducted in August 2008 SCN has been issued much later after a delay of 4 years on 17.07.2012 - It is stated in SCN that appellant has suppressed facts with intention to evade payment of duty - Apart from this allegation there is no positive act of suppression brought out by Department - It is argued that the issue whether credit can be availed of service tax paid on inputs services used in regard to generation of electricity wheeled out to T.N.E.B was under litigation before various forums - Apex Court in case of Maruti Suzuki Ltd. 2009-TIOL-94-SC-CX settled the issue by saying that credit is eligible only when electricity is used for manufacture of final products - Taking note of this aspect into consideration that there were conflicting views as to whether credit is eligible on input services used for generation of electricity that is sold outside, appellant cannot be burdened with guilt of suppression of facts with intent to evade payment of duty - The issue being interpretational in nature and as department had collected all details of availment of credit from accounts maintained by appellant, penalty imposed in this regard is unwarranted - Penalty imposed with regard to duty liability of input tax credit availed in respect of electricity (Co-generation plant) requires to be set aside - However, with regard to cenvat credit of input service availed for manufacture of exempted goods, namely, Ethyl Alcohol, only argument put forward by appellant is that they had availed credit by inadvertent mistake - Said mistake would not have come to light but for audit conducted by Department - Sufficient grounds not found for setting aside penalty on input service tax credit in respect of Ethyl Alcohol, same is upheld : CESTAT
- Appeal partly allowed: CHENNAI CESTAT
