2022-TIOL-1031-CESTAT-AHM
Medley Pharmaceuticals Ltd Vs CCE & ST
CX - SCNs were issued for demand recovery of short payment of duty under Section 11A of Central Excise Act, 1944 along with interest under Section 11B ibid and also proposed imposition of penalty under Rule 25 of Central Excise Rules, 2002 r/w Section 11AC ibid - Appellant have supplied Medicament to Government Hospitals and Some Institutional Buyers - In case of such nature of transaction, medicaments are not sold in retail, therefore, retail sale price need not to be affixed - It is the submission of appellant that they have not affixed retail sale price on such medicament and it is also mentioned on package of Medicament that "it is not for a retail sale" and it is for use by Government Hospitals and Some Institutional Buyers - Consequently, valuation of said goods cannot be insisted upon under Section 4A of Central Excise Act, 1944 - From the decision in Zydus Healthcare Ltd 2019-TIOL-2954-CESTAT-AHM r/w decision of M/s. USV Ltd 2019-TIOL-2016-CESTAT-AHM , Tribunal has already taken a consistent view that Medicament Supplies to Government Hospitals and Institutional Buyers shall be valued in terms of Section 4 and not Section 4(A) ibid - Therefore, issue is no longer res integra - Following the aforesaid decisions of Tribunal, impugned orders are not sustainable, same are set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2022-TIOL-1030-CESTAT-AHM
Bilag Industries Pvt Ltd Vs CCE & ST
CX - Assessee is in appeal against denial of refund of excise duty - Revenue pointed out that decision of larger bench of Tribunal in case of INDIA CEMENTS LIMITED is clearly applicable to the facts of present case - He pointed out that duty was paid under protest in said case as well which is like in instant case - Assessee has sought to distinguish said decision on the ground that in said case no challenge was made by assessee on merits - This is not correct, it is apparent that assessee only had challenged the demand on merits as well - It is a fact that duty was paid under protest in case of INDIA CEMENTS LIMITED which is also true in instant case and therefore, arguments made by assessee to distinguish the decision of Tribunal in said case is not correct - Relying on the decision of larger bench in said case, assessee is not entitled to refund of duty paid: CESTAT
- Appeal dismissed: AHMEDABAD CESTAT
2022-TIOL-1029-CESTAT-AHM
Falcon Pumps Pvt Ltd Vs CCE & ST
ST - The issue at hand in the present case is whether the appellant-company is entitled for refund of pre-deposit made u/s 35F of the Central Excise Act, 1944, by way of reversal in GST-ITC credit. Held - there is no dispute that the appellant have made pre-deposit in terms of Section 35F ibid for entertaining the appeal by the Commissioner (Appeals) - The Commissioner (Appeals) also entertained the appeal on payment of 7.5% though the same was reversed in the GST-ITC account - This clearly shows that the Commissioner (Appeals) has accepted the 7.5% reversal in GST-ITC as per-deposit in terms of Section 35F - Despite the clear finding, the Commissioner (Appeals) upheld the order-in-original and rejected the appeal which is contrary to own findings - Since the Commissioner (Appeals) agreed that the appellant is eligible to avail the credit in their electronic credit ledger the appeal should not have been rejected, whereas the refund should have been allowed if not in cash, but atleast by way of credit in their electronic credit ledger - This is an apparent error in the order of the Commissioner which needs to be rectified - Accordingly, I set aside the impugned order and remand the matter to the Commissioner (Appeals) to give a clear order considering his own finding that the appellant is eligible to avail the credit in their electronic credit ledger: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2022-TIOL-1028-CESTAT-AHM
CCE & ST Vs Saurashtra Cricket Association
ST - The SCN was raised by revenue on the amount receive by assessee from BCCI as subsidy - Department has construed said receipt as service charges received from BCCI against services of event management - It is clear that assessee have received subsidy against expenses incurred for conducting Cricket Matches, therefore, by any stretch of imagination it cannot be said that assessee has provided any taxable service to BCCI - Issue has already been considered by Tribunal in case of VIDARBH CRICKET ASSOCIATION 2013-TIOL-1404-CESTAT-MUM - It is settled that in case of Cricket Association, similarly, placed as assessee, subsidy received from BCCI was held to be non-taxable - Following the decision in said case, demand in present case in SCN was rightly dropped by Adjudicating authority, therefore, no infirmity found in impugned order, hence, same is upheld: CESTAT
- Appeal dismissed: AHMEDABAD CESTAT
2022-TIOL-1027-CESTAT-DEL
Panacea Biotec Ltd Vs CC
Cus - The appellant manufactures vaccines and had imported Fermenters and Control Panel Assembly and also 'design engineering and site run' under the same airway bill number - It filed two bills of entry. Bill of entry No. 107278 dated 13.02.2001 was filed to clear the Fermenter and control panel assembly classifying it under Customs Tariff Heading 841989 and valued at DM 10,20,000/- (CIF) equivalent to Rs. 2,27,46,000/- and claimed the benefit of Notification No. 16/2000 dated 01.03.2000. Bill of entry No. 107394 dated 13.02.2001 was filed to clear the design engineering and site run valued at DM 3,30,000/- (equivalent to Rs. 73,59,000/-) (CIF),under Customs Tariff Heading 49191 at nil rate of duty - It needs to be pointed out that Customs Tariff Heading 491191 refers to printed material which was assessable to nil rate of duty during the relevant period - The bill of entry No. 107394 for 'design engineering and site run' was assessed by the Appraising Officer as per the claim of the appellant - Both bills of entry were presented in the Air Cargo for examination of the goods - On examination, the examining officer found that the design engineering and site run were not separate goods but pertain to the Fermenters and control panel assembly imported by the appellant.
Held - This matter was remanded by the Supreme Court to this Tribunal with a direction to re-decide the issue regarding includability of the charges paid for importation of design engineering and site run in the assessable value of the fermenters afresh because in the Final Order passed this Tribunal had not discussed Rule 9(1)(b) and 9(1) (e) read with Rule 4 and had also not examined the effect of the exigibility of the design engineering and site run which were assessed separately under Chapter 49 - The process of assessment, whether the assessment is done by the officer (as in this case) or it is a process of self-assessment is completed with the order permitting clearance of goods for home consumption except in cases of provisional assessment where the assessment is completed with the order finalizing the assessment - Assessment order is set aside insofar as valuation is concerned: CESTAT + Once an order permitting clearance of goods for home consumption is issued by the proper officer, they cease to be imported goods and the person who imported them ceases to be an importer. Since the duty, if applicable, has to be paid before the order for clearance of goods for home consumption can be issued, such goods also cease to be dutiable goods. No duty can be assessed under section 17 of the Act on such goods because duty can be charged on the goods imported into India as per Section 12 (the charging section) and once the goods are no longer imported goods, no duty can be charged; (P 20)
+ Thereafter, if aggrieved by the assessment, the remedy available to the aggrieved party (Revenue or the assessee) is an appeal to the Commissioner (Appeals) within sixty days under Section 128. Revenue has an additional remedy in the form of Show Cause Notice under section 28 but the scope of this notice is limited by WHO, WHEN and WHY. A notice under section 28 can be issued by 'the proper officer’, within the period of limitation (normal period or extended period of limitation of five years, as the case may be) to recover the duty not levied, not paid, short levied, short paid or erroneously refunded; (P 21)
+ Thus, when the officer issues an order permitting clearance of goods for home consumption under section 47, the assessment ends and the clock starts ticking for limitation under section 28. Similarly, when the importer receives the order of the officer permitting clearance of goods for home consumption, the clock starts ticking for filing the appeal. Before such an order is issued, the assessment is still open and the Bill of Entry can be re-assessed by the proper officer. (p 22)
+ Though not directly relevant for this case, we proceed to examine two other aspects of the assessment for the sake of completeness. In 2011, Section 17 has been amended replacing the 'assessment by the proper officer' with 'self assessment' by the importer giving powers to the proper officer to re-assess the duty so self assessed. Thus, both the self-assessment by the importer and the re-assessment by the proper officer are assessments. If the officer re-assesses the duty to a higher amount, then he shall, unless the importer accepts in writing such re-assessment, pass a speaking order. The Risk Management System (RMS) of the Customs Electronic Data Interchange System (EDI) selects some bills of entry for re-assessment by the officer and/or examination of goods by the officer and allows some to be cleared without such re-assessment/examination. At times, the importer, after self-assessing the goods in the system, finds that he has made a mistake in, say, not claiming an exemption notification. In such cases, the importer or his Customs broker requests the officer to recall the Bill of Entry from the system and re-assess by reckoning the exemption notification. Needless to say, once an order permitting clearance of goods for home consumption is issued either based on the self assessment by the importer or based on re-assessment by the officer, the process of assessment under section 17 comes to an end and the only remedies are an appeal before the Commissioner (Appeals) against the assessment or a notice under section 28. Before the order permitting clearance of goods for home consumption is given, the assessment is still open and changes can be made. (p 23) + Another type of cases are of provisional assessment of duty under section 18 which becomes necessary when final assessment is not possible because a test report or some other documents required to complete assessment are not available. Nevertheless, based on the available documents, the duty is assessed provisionally and the goods are cleared for home consumption under section 47. When the required documents become available, the assessment is finalized. In such cases, the clearance of goods for home consumption is done on the basis of provisional assessment but the assessment gets completed when it is finalized. Thus, unlike in other cases, where a provisional assessment is made, the order permitting clearance of goods for home consumption does not complete the assessment but it is the order finalizing the assessment which completes the process of assessment. Any changes required can be made during finalization of assessment. (p 24)
- Appeal allowed: DELHI CESTAT |
