2022-TIOL-1139-CESTAT-DEL
Ayyan Energy Resources Pvt Ltd Vs CC
Cus - The appellant imported good described as "Low Sulphur Waxy Residue (fuel oil)" which, on examination and testing was found to be 'waste oil' which - Import of this good was prohibited under Rule 13(4) of Hazardous Waste (Management, Handling and Trans-boundary Movement) Rules, 2008 - Accordingly, a SCN was issued alleging that appellant had knowingly and willfully misdeclared the imported good and imported it in violation of Foreign Trade Policy 2009-2014 read with Rule 13(4) - Appellant had no licence or permission to import and process 'waste oil' - Therefore, confiscation of goods under sections 111(d) and 111(m) of Customs Act, 1962 must be upheld as there was not only misdeclaration of goods but the import itself was in violation of prohibition under the Rules - Since import of disputed good was prohibited, Adjudicating Authority had discretion to either allow redemption or not - Adjudicating Authority has correctly exercised its discretion not to allow redemption of hazardous waste to appellant and Commissioner (A) has, in impugned order, correctly upheld it - Section 112(a) of Customs Act provides for penalty for acts or omissions which render goods liable to confiscation under Section 111 ibid - Amount of penalty imposed is Rs. 1,00,000/- which is fair and proper: CESTAT
- Appeal rejected: DELHI CESTAT
2022-TIOL-1138-CESTAT-KOL
Vishal Metallics Pvt Ltd Vs CCE & ST
CX - The SCN was issued inter alia alleging that assessee had availed irregular and inadmissible CENVAT Credit during period April, 2008 to March, 2009 on Iron and Steel materials which are purportedly utilized for manufacture of 'supporting structures' - Dispute relates to period from April, 2008 to March, 2009 whereas SCN is issued on dated 25.07.2012, i.e., beyond normal period of limitation of one year - Therefore, as per Section 11A of CEA, 1944 entire demand is barred by normal period of limitation - Hence, extended period of limitation cannot be invoked in as much as none of ingredients necessary for invoking extended period under proviso to Section 11A(1) ibid exists - There is no warrant in levying any penalty upon assessee - The principle of "user test" also need to be considered while deciding the entitlement of assessee to avail CENVAT Credit as laid down by Supreme Court in case of Rajasthan Spinning & Weaving Mills Limited 2010-TIOL-51-SC-CX - Following the said decision, Madras High Court in case of Thiru Arooran Sugars 2017-TIOL-1357-HC-MAD-CX , has held that iron and steel items and cement used for erection of foundation and support structures would also come within the ambit of definition of "input" so long as it satisfies the "user test" - It is not in dispute that various steel items have been used for purpose of setting up of Sponge Iron Plant for manufacture of final products - Therefore, by applying "user test" principle, assessee is entitled to avail credit on the steel items - Assessee is entitled to avail credit: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-1137-CESTAT-AHM
Balaji Logistics Vs CCE & ST
CX - Penalty under Rule 26(2)(i) of Central Excise Rules, 2002 was imposed on all the appellants for charge of facilitating on the process of fraudulent passing of credit to M./s Archon - It is clear that as regard Balaji Logistics they have issued blank LRs, which were used for issuing cenvatable invoices without supply of goods - On the identical facts on two parties against the same impugned order in the case of M/s Samir Transport Company and S. B Roadlines, on the identical offence this Tribunal upheld the penalty - Therefore, in present case also appellant was rightly imposed the penalty under Rule, 26(2)(i) ibid - As regard Topline Switchgear P Ltd and Riddhi Steel & Tube Ltd., as per the facts discussed by Adjudicating Authority, it was found that only invoices were issued and no goods were supplied - Therefore, it is established that all the three appellants have helped M./s Archon for availing fraudulent Cenvat credit - Accordingly, no infirmity found in impugned order imposing penalty under Rule, 26(2)(i) of CER, 2002 - Hence, the penalties are upheld: CESTAT
- Appeals dismissed: AHMEDABAD CESTAT
2022-TIOL-1136-CESTAT-AHM
Smita Engineers Vs CCE & ST
ST - SCN was issued to assessee for including value of pipes supplied free of cost by recipient of service in taxable value and demanding service tax thereon - After going through Adjudication order and SCN along with Annexure, it is found that assessee had taken a definite stand before Original Adjudicating Authority that they are not required to discharge service tax on pipe which are supplied by service recipient during providing of services - Since the original adjudicating authority decided the matter on limitation and dropped the quantum of demand, assessee not challenged the said finding before Commissioner (A) - First issue is non-inclusion of cost of material received from service receivers in gross value of services provided - Issue is no more res integra in view of decision of Larger Bench decision of Tribunal in case of M/s. Bhayana Builders Pvt. Ltd. 2013-TIOL-1331-CESTAT-DEL-LB - Hence, demand of Service Tax on this issue cannot be sustained - However, Adjudicating Authority had not given any finding on these issues that whether the value of pipes supplied by recipient of service is to be included in value of calculation of service tax or not - Adjudicating Authority is required to examine the claim of appellant on limitation also - Appeal filed by assessee is disposed of by way of remand to Adjudicating Authority: CESTAT
- Matter remanded: AHMEDABAD CESTAT |
