2022-TIOL-1152-CESTAT-MUM
Virgo Suitings Pvt Ltd Vs CC
Cus - The issue involved is, whether appellant is entitled for refund of additional duty of Customs (SAD) paid through DEPB scrip/license - The Notfn dated 14/09/2007 as amended by Notfn dated 01/08/2008 nowhere denied the refund when same was paid by debiting DEPB scripts - Said notification laid down certain conditions and exemption under Notfns has to be upon fulfilment of those conditions only and nothing else - Appellant have fulfilled the conditions therein and that is why the refund has been sanctioned of that part of duty which has been paid in cash - In a series of decisions, it is held that debit of any amount under DEPB scheme, is a mode of payment of duty of exported goods and it cannot be treated as exempted goods - An identical issue came up for consideration before High Court in Allen Diesels India Pvt. Ltd. 2016-TIOL-968-HC-DEL-CUS wherein importers were paying duty of Custom including SAD by using DEPB scrips but department was not refunding SAD on the ground that SAD had not been paid in cash but by utilizing DEPB scrips and High Court allowed the petitions filed by importers and held that since the petitioner therein have fulfilled the conditions set out in Notfn 10/2007-CUS for availing refund, department is directed to issue orders granting refund to petitioner therein - Undisputedly, Revenue has failed to establish through any kind of documents or case laws that debit of any amount under DEPB scheme is not a mode of payment of duty, therefore benefit cannot be denied to appellant - No justification found for rejecting refund claim in respect of duty which was paid through DEPB scrip and therefore impugned order cannot sustain: CESTAT
- Appeals allowed: MUMBAI CESTAT
2022-TIOL-1151-CESTAT-AHM
Mohit Industries Ltd Vs CCE & ST
CX - Issue involved is that whether the assessee is entitled for exemption Notfn 30/2004-CE in the fact that they are manufacturing dutiable as well as exempted goods by using cenvated inputs and assessee have reversed 6% of value of exempted goods in terms of Rule 6(3) of Cenvat Credit Rules, 2004 - From the sub-rule (3D), it is clear that even though assessee availed Cenvat credit but in compliance of Rule 6(3), they reversed the credit which will amount to non-availment of credit - With this statutory provision, once the assessee complied with provision of Rule 6(3) by reversing credit, the condition of notification automatically stand met - Therefore, it cannot be said that assessee have violated condition of notification - From the decision of Tribunal in case of Vineet Polyfab Pvt. Limited , it can be seen that identical and legal issue involved in present case, therefore, following said decision, demand in present case is not sustainable - As regards revenue's appeal, since the penalty is consequential to demand and said demand is not sustainable, the penalty on assessee is also not sustainable - Hence, there is no merit in Revenue's appeal - Accordingly, impugned orders are set-aside: CESTAT
- Assessee's appeal allowed: AHMEDABAD CESTAT
2022-TIOL-1150-CESTAT-DEL
Pankaj Ispat Ltd Vs CCE & ST
CX - The appellants are engaged in manufacture of Iron & Steel products and also availing the facility of Cenvat credit of duty paid on inputs and capital goods under Cenvat Credit Rules, 2004 - Some incriminating documents/note pads were recovered from premises during said search as are detailed in Panchnama of even date - The investigating team recorded the statements of all concerned including appellant - As far as proof of allegations of clandestine removal is concerned, it has been a settled law that such grave allegations cannot be confirmed merely on third party evidence - There otherwise should be clinching evidence about nature of purchase of raw materials, use of electricity, sale of final products, clandestine removals, the mode and flow back of funds, demands cannot be confirmed solely on basis of presumptions and assumptions - Clandestine removal is a serious charge against manufacturer, which is required to be discharged by Revenue by production of sufficient and tangible evidence - Allegations as grave as that of clandestine removal of finished products have wrongly been confirmed by Commissioner (A) - Confirmation of imposition of penalty upon Shri Narendra Agrawal is also wrong due to the lack of cogent evidence about him in facilitating alleged clandestine removal of finished goods of manufacturers of TMT Bars and MS Ingots - Departmental authorities are directed to take cogent steps to formulate certain guidelines for their investigating teams with respect to compliance of mandatory provisions as that of Section 9D of Central Excise Act, 1944 and Section 138 B of Customs Act, 1962 - The order under challenge is hereby set aside: CESTAT
- Appeals allowed: DELHI CESTAT
2022-TIOL-1149-CESTAT-DEL
Seher Vs CST
ST - The appellant is engaged in providing Event Management Services - SCNs were issued to appellant proposing to recover short paid service tax and also proposing to impose penalties under Sections 76, 77(2) and 78 of Finance Act, 1994 - The Commissioner has recorded that the appellant was claiming reimbursement - It is not the case of Revenue that the appellant entered into a turnkey contract for entire service and was hiring sub-contractors for various purposes - However, Revenue accepts that the appellant was receiving two types of payment - one for its services and another towards reimbursement of expenses which it incurred in hiring other service providers - Estimates of expenses to be incurred on other service providers are approved by client and the actual amounts incurred by appellant are claimed by it as reimbursements from the client after submitting appropriate utilization certificates - The only reason the Revenue sought service tax on amounts reimbursed to appellant by client is that the appellant did not fulfill the conditions laid down in Rule 5 to qualify as a pure agent - However, Rule 5 itself has been held to be ultra vires of Section 67 by Supreme Court in case of Intercontinental Consultants and Technocrats Pvt. Ltd. 2018-TIOL-76-SC-ST - Consequently, demands confirmed against appellant do not survive - The penalty imposed upon appellant also set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-1148-CESTAT-AHM
Marwadi Shares And Finance Ltd Vs CCE & ST
ST - The issue involved is, whether appellant is liable to pay Service Tax on deposit taken by appellant from their customers as security deposit against towards trading of shares which is subsequently refunded without utilizing the same - Revenue has demanded Service Tax on security deposit taken by appellant from their customer towards operating of trading account of shares - Issue in appellant's own case only for a different period has been decided vide order 2022-TIOL-477-CESTAT-AHM , wherein it is held that department could not bring on record any clinching evidence that the deposit has influenced the service charges, demand is not sustainable - Issue is no longer res integra and following the same, impugned order is not sustainable, same is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
