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2022-TIOL-1116-CESTAT-AHM
CC Vs Shantilal Multiport Infrastructure Pvt Ltd
Cus - The limited issue to be decided is, whether assessees are required to pay establishment charges - Tribunal have gone through regulation of HCCAR, 2009 and find that from said regulations, it comes out that Customs Cargo Service providers, which were hitherto termed and notified as 'custodians' before issuing of Notification No. 26/2009-Cus. (N.T.) for notifying HCCAR, 2009, were required to pay the cost of officers posted there by Commissioner 'on cost recovery charges' unless specifically exempted by an order of Ministry of Finance, Government of India - Circular No. 13/2009-Cus. in clear terms clarifies that payment of cost recovery charges in respect of ports and airport has been exempted for three categories of custodians specified in Circular No. 27/2004-Cus - Tribunal also perused the individual Notifications under which all four assessees were appointed as 'custodians' and all the four were notified as 'Custodians' well before 26.06.2002 - In view of Board circular, government has exempted Custodians notified before 26.06.2002 from the payment of 'cost recovery charges' - Therefore, Commissioner (A) is legally correct in extending the benefit of waiver of establishment charges in this matter - There is dispute that all the four assessees have been appointed/ notified as 'Custodians' well before the 26.06.2002 and as per Circular Nos. 27/2004-Cus and 13/2009-Cus. , recovery of establishment charges/cost recovery charges stands exempted/waived - Revenue's appeals are not sustainable: CESTAT
- Appeals dismissed: AHMEDABAD CESTAT
2022-TIOL-1115-CESTAT-AHM
Org Informatics Ltd Vs CCE & ST
ST - Appellant availed services of foreign based companies for raising/ collecting financial funds through External Commercial Borrowings (ECB) and Foreign Currency Convertible Bonds (FCCB) - In the course of raising funds i.e. foreign borrowings, appellant had received services from service providers based outside India - Revenue is of the view that amount paid by appellant to said foreign service providers is liable to be taxed under reverse charge mechanism for service tax under 'banking and other financial services' - Out of total service tax demand of Rs. 54,48,437/- they disputed only service tax demand of Rs. 2,26,213/- and penalties in this matter - Appellant only disputed the service tax demand of Rs. 2,26,213/- on the ground that amount was refunded by Foreign Financial Institution to Appellant and they have not received the services to that extent - They also submitted the documents in support of their claim - Accordingly, service tax demand of Rs. 2,26,213./- is not sustainable - As regard the penalty imposed, submission of appellant is that penalty is not imposable as Service Tax demand along with interest was paid before issue of SCN - Appellant discharged service tax liability along with interest thereon as soon as they came to know about liability of service tax in this matter and they also paid the same much before the SCN - They have not disputed to service tax liability on merits and disputed transactions were reflected in balance sheets of appellant for the relevant years - Further, whatever Service Tax was required to be paid by appellant, was available to them as Cenvat credit and there was no need for them to evade any payment of tax - As such, entire situation is revenue neutral, in which case, no mala fide can be attributable to appellant - Penalty is not imposable on appellant under provisions of Sections 77 & 78 of Finance Act, 1994, in view of Section 80 of Finance Act, 1994 - Simultaneous penalty under Section 76 and 78 cannot be imposed as held by Gujarat High Court in case of Rawal Trading Company 2016-TIOL-112-HC-AHM-ST , therefore, penalty imposed under Section 76 is also not sustainable: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-1114-CESTAT-MUM
Manikgarh Cement Vs CCE
CX - The issue in this appeal of M/s Manikgarh Cement, against Order-in-Original No. 24/CEX/2018/C/NGP-I, dated 26th November 2018 of Commissioner of CGST & Central Excise, Nagpur-I, is the availment of MODVAT credit, under rule 57Q of erstwhile Central Excise Rules, 1944, of duty of Rs. 15,97,047/- charged on procurement of 'welding electrode' by them - Proceedings for recovery of the said credit was premised on the definition therein having excluded 'consumables', which the impugned goods were held to be, from the enumeration therein. Held - MODVAT credit is available on procurement of goods that are 'inputs' with 'capital goods' being entitled to the extent of conformity with Explanation of that expression in rule 57Q of Central Excise Rules, 1944 - Doubtlessly, there is no mention of 'consumables' in the said Explanation but neither is it certain that that 'consumables' has little to do with manufacturing process for depriving eligibility for MODVAT credit - It is not anybody's case that 'consumables' cease to exist over period of usage; it is merely that replenishment is required owing to the nature of the product - The common understanding of 'consumables' is that of depletion without transfer to the goods deployed for manufacture but there are a few, such as 'welding electrodes', which, upon such consumption, enhances the capital goods which are, undoubtedly, eligible for credit - Absence of 'welding electrodes' for deployment on 'liners', which are 'capital goods', impedes production and, therefore, its use is essential for production - Proceedings of the original authority, based on the finding that the impugned goods are 'consumables' for the reasons stated therein, have ignored that the characteristics of 'consumables' does not attach to 'welding electrodes', and, therefore, the consequential recovery of MODVAT credit in the impugned order is incorrect - Hence the order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-1113-CESTAT-MUM
GP Petroleums Ltd Vs CCGST & CE
CX - The issue involved is about availment of Service Tax credit by appellant against invoices issued by Input Service Distributor ("ISD") - Appellant drew attention towards Final Order in appellant's own case in which Tribunal allowed the appeal filed by appellant for earlier period, i.e., March, 2013 to April, 2015 - Since the basis of initiation of current proceedings by department for period in issue itself has gone, the current proceedings can't survive - Therefore, following the said decision of Tribunal, impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
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