2022-TIOL-1100-CESTAT-MUM
Sai Charan Tours And Travels Vs CC
Cus - This appeal of assessee seeks intervention in terms and conditions for provisional release of seized goods which were upheld in impugned order - The only issue is the mandate to produce certificate insisted upon as condition for provisional release from among the prescriptions in licencing notes pertaining to imported vehicles - The Tribunal in Excellent Betelnut Products Pvt Ltd has held that powers of Commissioner of Customs under section 110A of Customs Act, 1962 cannot be interfered with by any circular or instructions - In impugned order, it has been admitted that provisional release has been subject to conditions stipulated in Circular No. 35/2017-Cus which traverse beyond the empowerment in section 110A of Customs Act, 1962 - It is for the owner of vehicle to be compliant with law upon provisional release - Provisions under Foreign Trade Policy including licensing norms relevant to chapter 87 in ITC (HS) classification are intended to ensure that import of any goods, post-clearance, would not be in breach of essential requirements of law subject to which motor vehicles may be registered for operation on roads - The policy condition is not one incorporated merely for the sake of regulating imports and exports of the country but to ensure that imported goods are compliant with regulatory measures other than that relating to imports and exports, under municipal laws of country - As impugned vehicle has already been registered with authorities concerned, it would appear that vehicle complies with all the stipulations for operation and running on Indian roads - Accordingly, inclusion of this condition as necessary for provisional release is redundant and superfluous and this appeal is allowed by expunging said condition as requirement of provisional release: CESTAT
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-1099-CESTAT-DEL
Premium Real Estate Developers Vs CCGST
ST - Issue relates to grant of proper interest under Section 35FF of Central Excise Act, 1944 - The order of Court below is contrary to provisions of Section 35FF ibid - Said Section provides for grant of interest from the date of deposit till the date of grant of refund - Accordingly, impugned order-in-appeal is set aside - Further, this Tribunal allowed the interest @ 12% per annum, following the ruling of Division Bench in case of Parle Agro Ltd. - Adjudicating Authority is directed to grant differential interest from the date of deposit till the date of refund within a period of 60 days: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-1098-CESTAT-AHM
M R Patel And Sons Vs CST
ST - Appellant is engaged in providing Business Auxiliary Service and Renting of Immovable Property Service - During audit, it was observed that appellant is providing services to Gujarat State Electricity Corporation in nature of clearing and forwarding agent service and cannot be classified under category of Business Auxiliary Service - The appellants were paying service tax from 10.09.2004 on Loading Supervision Charges and from 16.06.2005 on Commission received for pre-payment of Railway Freight under category of Business Auxiliary Service - A SCN was issued to appellant which was adjudicated vide O-I-O whereby after adjusting the service tax paid on Business Auxiliary Service remaining amount was confirmed - Commissioner (A) decided the matter relying on Tribunal's decision in case of Coal Handlers 2004-TIOL-579-CESTAT-KOL wherein it was held that identical services are classifiable under clearing and forwarding agent service - Since this very judgement which is sole basis of Commissioner (A) order which has been set aside and party's appeal was allowed by Supreme Court, since the identical facts and law point is involved, Commissioner (A) has to reconsider the matter in light of change of legal position between Tribunal's decision in Coal Handlers and Apex Court decision in the same case - Since the facts are also need to be compared and verified between this case and the case of Coal Handlers, matter should be remanded back to Commissioner (A) to decide afresh in the light of Supreme Court judgement in case of Coal Handlers 2015-TIOL-101-SC-ST - Accordingly, matter remanded to Commissioner (A) for passing a fresh order: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2022-TIOL-1097-CESTAT-AHM
CCE & ST Vs Alstom India Ltd
CX - The first issue arises is, whether appellants are liable to reverse the credit availed on common input services used for rendering services in Jammu & Kashmir - It is the case of Department that as appellant availed credit on common input services for providing services to State of Jammu & Kashmir and rest of the country, appellant ought to have maintained separate accounts as services provided in Jammu & Kashmir is exempted and services provided to rest of the country is taxable services - On failure to maintain separate accounts, appellant is liable to pay amount @ 5% / 6% under provisions of Cenvat Credit Rules, 2004 - Appellant already reversed the proportionate Cenvat Credit attributable to said disputed service - Therefore, appellant have complied with condition prescribed under Rule 6(3)(ii) read with sub-rule (3A) of Rule 6 of Cenvat Credit Rules, therefore demand @ 5% / 6%/ 7% cannot be demanded - The main objective of Rule 6 ibid is to ensure that appellant should not avail Cenvat Credit in respect of input or input services which are used in or in relation to manufacture of exempted goods or for exempted services - On this objective at the most amount which is to be recovered shall not be in any case more than Cenvat Credit attributed to input or input services used in exempted goods or exempted services - In either of three options given in sub-rule (3) of Rule 6 ibid, there is no provisions that if appellant does not opt any of the option at a particular time, then option of payment of 5%/ 6% will automatically be applied - Therefore, Commissioner had rightly dropped the demand and granted relief to assessee - Hence, Revenue has not made out any grounds to interfere with impugned order: CESTAT
- Appeal dismissed: AHMEDABAD CESTAT
2022-TIOL-1096-CESTAT-AHM
Sunrise Containers Ltd Vs CCE & ST
CX - Appellant is engaged in manufacture of Pet preforms and have purchased the input on payment of central excise duty from M/s. Reliance Industries Ltd. against invalidation of advance authorization under various advance licenses - Against such payment of duty by M/s. Reliance Industries Ltd., appellant has availed cenvat credit - Case of department is that purchase against advance authorization are exempted under para 4.1 of FTP 2009-14 which enables duty free import of inputs required for production of goods to be exported - Therefore, duty paid by M/s. Reliance Industries Ltd. is incorrect consequently, appellant are not entitled for cenvat credit - There is no dispute on the fact that supplier M/s. Reliance Industries Ltd. has discharged duty as per law - The inputs were received by appellant for use in manufacture of final product therefore, sufficient compliance of provision of Cenvat Credit Rules, 2004 stood made - It is settled law that at the end of service recipient of input, cenvat credit cannot be disputed on the ground that whether the said input is liable to duty or otherwise at the end of supplier - Issue is settled that once the duty was paid by supplier even though the same was payable or otherwise the same cannot be disputed at the end of recipient of input accordingly, cenvat credit cannot be disputed - Duty was paid by M/s. Reliance Industries Ltd. against invalidation of advance authorisation, cenvat credit to appellant is admissible - Accordingly, impugned order is set aside - As regard the appeal against personal penalty filed by Shri Ramesh Pawle, since the demand itself is not sustainable, penalty being consequential will also not sustain - Accordingly, penalty is set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
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