2022-TIOL-1080-CESTAT-MAD
Ponni Sugars Erode Ltd Vs CGST & CE
CX - The issue arises is, whether refund claim filed by appellant is hit by limitation as envisaged under section 11B of Central Excise Act, 1944 - Appellant has reversed the credit for period 1.4.2010 to 1.5.2013 and refund claim has also been filed for this period - Department has calculated the period of one year from date of reversal and taken the view that refund claim is barred by limitation - The appellant had reversed the credit and intimated the department by issuing letters on various dates - The demand raised in SCN was higher than the amount reversed by appellant; but included the amount reversed - Said demand was dropped by department vide O-I-O - The demand in SCN was over and above the credit that has already been reversed by appellant - Demand having been dropped by department, the consequence would be that appellant would be eligible for refund of credit that has already been reversed - It clearly shows that the issue was under litigation which is indication of protest / disagreement - Appellant was disputing the amount alleged to be payable by them - The letters issued by appellant every month intimating the reversal as well as reserving their right for litigation would show that the credit has been reversed under protest - The allegation that refund claim is hit by time-bar cannot sustain, same is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2022-TIOL-1079-CESTAT-MUM
Vidushi Wires Pvt Ltd Vs CCGST
CX - In this second round of litigation, appellant has assailed the order passed by Commissioner (A) confirming refusal of refund that was earlier allowed at Commissioner (A) level in first round of litigation but said order was set aside by Tribunal with a remand order for de novo adjudication - The operating portion of order passed by Tribunal on earlier occasion clearly reveals that entire order passed by Commissioner (A) was set aside and matter was remanded back to original adjudicating authority to adjudicate on point of limitation as well as availability of credit for period prior to 01.04.2011 apart from examination of documents like filing of return, verification of entries in CENVAT Credit accounts - This being facts on record observation of Commissioner (A), while confirming the rejection of refund order passed by adjudicating authority, to the extent that appellant had sought for refund by filing refund application on the basis of O-I-A that was set aside by Tribunal is not maintainable, appears to be rational and proper - Therefore, it is found that no irregularity or illegality is committed by Commissioner (A) that would call for any interference by appellate authority: CESTAT - Appeal dismissed: MUMBAI CESTAT
2022-TIOL-1078-CESTAT-MUM
JSW Steel Coated Products Ltd Vs CCE
ST - Issue involved is, whether Works Contract service received by appellant pertains to original work in terms of Rule 2A(ii)(A) of Service Tax Rules, 2006 or is it classifiable under clause B(ii) of Rule 2A ibid as claimed by Revenue - Regarding the works contract service, Adjudicating authority without discussing each and every service, merely mentions that nature of work done are electric work, misc. civil work and paneling/painting inside/outside and upheld the demand qua the Bills/Work orders in issue and same was endorsed by Commissioner (A) without discussing each bills/work orders in issue - Although it was the specific case of appellant before Commissioner that Adjudicating Authority has not discussed in detail as to how these works contracts are not covered under definition of original work and by merely reproducing the bill number and name of service provider it has been held by said authority that demand raised is correct but the commissioner without going into details and without addressing that argument merely endorses the view of adjudicating authority - Justice should not only be done but seen to have been done - It is nowhere discussed in detail as to how each work can be said to be or not to be falling under Rule 2A(ii) ibid. - Tribunal have gone through the service order and its annexure of each and every item involved in Appeal - Although a bare reading of work order and scope of work annexed with work order made it clear that it is nothing but new construction but despite that it has been denied by terming it as misc. work or otherwise - Had the authorities below gone through each and every work order and the annexure mentioning the scope of work of that work order then perhaps they might have also come to the same conclusion that more or less the entire works in issue falls under Rule 2A(ii)A ibid which require service tax @ 40% - If majority of work falls under Rule 2A(ii)A and a fraction of it falls otherwise then better classification of work would be under Rule 2A(ii)A ibid - Therefore, appellants have rightly placed the work contract services under Rule 2A (ii)A: CESTAT
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-1077-CESTAT-AHM
ABB Ltd Vs CCE & ST
ST - Issue involved is denial of refund claim on the ground of unjust enrichment - Even though Service Tax was paid during investigation of case, there is no escape from provision of Section 11B of Central Excise Act, 1944 wherein the test of unjust-enrichment is necessary before sanction of refund - As regards the fact whether incidence of refund amount has been passed on or otherwise, Commissioner (A) only based on contract clause and statement of Shri Milind Belsare concluded that appellant have passed on the burden of service tax to customers - However, appellant submitted the copy of balance sheet, details of amount shown as receivable in Balance Sheet, break-up of receivable amount, details of contract, copy of invoices and copy of CA certificate in support of their claim that no service tax was charged from customers - Said details were not produced by appellant before adjudicating authority - Therefore, matter remanded to adjudicating authority only for limited purpose to verify the factual aspect as per books of account of appellant that whether the incidence of service tax has not been passed on to any other person or otherwise - Adjudicating authority after affording sufficient opportunity of personal hearing shall pass de novo adjudication order within a period of three months: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2022-TIOL-1076-CESTAT-AHM
Amar Cold Storage Vs CC
Cus - An i ntelligence was received by the Department that the appellant are engaged in the manufacturing of 'Surimi' and exporting the same in the name of processed, preserved and frozen surimi under the DEPB credit declaring the product under Sr. No.2 of the group code no. 66 of Fish & Fish Products of the DEPB Schedule - A case was made out by the department on the ground that the product manufactured and exported by the appellant falls under Sr. No. 1 of group code no.66 under the description of Fish & Fish Products including frozen meat and thus the appellant have wrongly taken benefit by availing DEPB - A show cause notice was adjudicated by the adjudicating authority whereby, it was ordered for recovery of Rs. 79,78,420/- under proviso to section 28(1) of the Customs Act, 1962 along with interest under Section 28AB and also imposed penalty of Rs.50 lakhs under Section 114(ii) of the Customs Act, 1962. Held - it is clear that DGFT has taken a decision that the appellant's export product namely "Surimi" is classifiable under DEPB entry Sr. No. 2/66 even for the period prior to 01.04.2002 - We find that on the basis of the above clarification, the DGFT withdrawn the show cause notice dated 03.04.2007 issued to the appellant - In view of the change of circumstances by way of clarification issued by the DGFT and withdrawal of the show cause notice, there was no scope for adjudicating authority to deviate from the decision taken by the DGFT to classify the goods under DEPB Entry at Sr.No.2/66 therefore, the adjudicating authority has no authority to sit over the policy decision taken by the DGFT - We are therefore of the view that the clarification given by the DGFT will prevail over the allegation made by the Customs Department therefore, the entire adjudication order passed discarding the decision taken by the DGFT cannot be sustained: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
