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2022-TIOL-1008-CESTAT-KOL
Beterman Engineering Pvt Ltd Vs CCGST & CE
ST - Appellant is engaged in manufacture of Pollution Control Equipment and other fabricated structure of iron and steel - They purchased goods from M/s. Jindal Steel & Power Limited, , M/s. M.Rajkrishna & Company, M/s. Shree Ganesh Trading Company and M/s. Nizone Tubes - During audit, it was observed that it had paid Rs.4,31,426/- as freight charges and had paid Service Tax on an amount of Rs.1,51,847/- only, and it was alleged that they had not paid Service Tax on balance transport charges amounting to Rs,2,79,579/- involving Service Tax amounting to Rs.34,556/- - A SCN was issued to demand and recover Rs.34,556/- along with applicable interest and for imposition of penalty under Section 76, 77 & 78 - Appellant has all along taken the view that service is not taxable service as it was not provided by goods transport agency, but by goods transport operator and/or individual truck owners namely an individual either owning or operating - This plea has been taken in all proceedings at the initial stage as well as at appellate stage and also before Tribunal - Therefore appellant's submission that service received from goods transport operators/individual truck owners is acceptable - This being so, decision of Tribunal in case of Kanaka Durga Agro Oil Products Pvt.Ltd. 2009-TIOL-1123-CESTAT-BANG and 2009-TIOL-1122-CESTAT-BANG holding that there is no liability on recipient of service in case of transportation by individual truck owners and/or individual truck operators and not by goods transport agency to pay Service Tax is squarely attracted - Following the ratio of said decision, demand in respect of other three suppliers is set aside - Impugned orders are set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-1007-CESTAT-MUM
CCE Vs Mahindra Lifespace Developers Ltd
ST - Revenue in grounds of appeal does not dispute the fact that assessee has reversed inadmissible Cenvat credit - Since the basic fact is that assessee has reversed entire Cenvat credit taken by them even prior to issuance of notice without utilizing the same, no merit found in appeal filed by Revenue - This appeal basically does not challenge the dropping of demand by disallowing abatement claimed, but seeks to ask for interest on Cenvat credit wrongly taken by assessee and for imposition of penalty - The Principal Commissioner has in impugned order very categorically discussed the issue and has recorded his finding that not a single penny of Cenvat credit taken was utilized before its reversal - Accordingly, he has held that no interest was to be demanded - Just by taking Cenvat credit in its book of account without utilizing the same, assessee has not caused prejudice to the Revenue - Taking note of Supreme Court decision in case of Ind-Swift Laboratories Ltd. 2011-TIOL-21-SC-CX and Rule 14 of Cenvat Credit Rules, provisions of which were amended to change the words "taken or utilized", there cannot be any demand for interest - As entire amount of Cenvat credit was reversed prior to issuance of SCN, penalty under Section 73(3) of Finance Act, 1994 is waived off - No merits found in the appeal: CESTAT
- Appeal dismissed: MUMBAI CESTAT
2022-TIOL-1006-CESTAT-AHM
Metal Gems Vs CCE & ST
CX - Appellant is engaged in manufacture of Copper and Copper Alloy articles - SCN was issued to appellant - Appellant have been requesting adjudicating authority to provide copy of relied upon and non- relied upon documents, same was not considered and impugned order was passed confiscating goods, confirming duty demand and imposition of penalty - Lower Adjudicating Authority had failed to follow requirement of Section 9D of the Act regarding examination in chief of witness - Charges of clandestine removal of goods cannot be upheld merely on assumptions and presumptions, but has to be proved with positive evidence such as purchase of excess raw materials, consumption of excess electricity, seizure of cash and transportation of clandestinely removed goods - Onus of proof of bringing clinching evidence is on Revenue - Clandestine manufacturing and removal of excisable goods is to be proved by tangible, direct affirmative and incontrovertible evidence relating to receipts of raw materials inside the factory premises, and non-accountal thereof in statutory records, utilization of such raw materials for clandestinely manufacture of finished goods, manufacture of finished goods with reference to installed capacity, consumption of electricity, amount received by the consignees, statement of the consignees, receipts of sale proceeds by the consignor and its disposal - All these material evidences are missing and the evidences brought into the record by department are incomplete, inconsistent and not a reliable piece of evidence to prove charges of clandestine removal - On this account also, no force found in department's finding - Accordingly, Tribunal do not hold the seizure/confiscation and set aside the redemption fine imposed on appellant: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-1005-CESTAT-AHM
Reliance Industries Ltd Vs CCE & ST
CX - The limited issue to be decided is that when appellant was granted refund of excess reversal of cenvat credit whether they are entitled for interest for delayed sanction of refund in terms of Section 11 BB of CEA, 1944 - There is no dispute regarding sanction of refund as appellant has been granted refund of excess reversal of cenvat credit - Commissioner has denied the claim of interest on the ground that since appellant was entitled to take suo moto credit refund is not governed by section 11 B - On one hand, department has undisputedly sanctioned the refund in cash obviously under section 11B then why the different treatment should be given for grant of interest which is consequential to refund under section 11 B - There is a delay in sanctioning refund against application of refund filed by appellant on 24.05.2016 and 21.07.2016 whereas the refund was granted on 05.11.2018 - Issue has been considered by Supreme Court in case of Ranbaxy Laboratories Ltd 2011-TIOL-105-SC-CX wherein it was held that appellant is entitled for interest if the refund is not sanctioned within the stipulated time period of 3 Months from the date of refund application - Accordingly, appellants are entitled for interest in refund claim sanctioned from the date after 3 months of filing application for refund claim till the date of sanction - Impugned orders are set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT |
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