|
2023-TIOL-37-CESTAT-AHM
CCE Vs Leamak Healthcare Pvt Ltd
CX - Appellants are engaged in the manufacture of confectionary items on behalf of M/s. ITC Ltd. on job work basis; packing material supplied by ITC and goods manufactured by the appellant were handed over to ITC at factory gate - Valuation arrived at on the basis of raw material cost plus packing material cost plus conversion cost - Revenue alleged that the appellant and ITC are related persons and hence valuation should be arrived at in terms of rule 9 of the Valuation Rules, 2000 - Demand was issued and confirmed by the Commissioner but the matter was remanded by Tribunal directing the adjudicating authority to determine the value of the goods as per the provisions of Rule 11 of the Valuation Rules, 2000 - Commissioner, in the remand proceedings, again confirmed the demand of central excise duty amounting to Rs.2,48,06,064/- and imposed penalties, hence the present appeals - Incidentally, revenue has filed appeal seeking assessment under Rule 7 of the CV Rules. Held: No one has challenged the earlier order of the tribunal and, therefore, the directions given in the earlier order of the tribunal become final and binding on both the parties - Following issues are, therefore, treated as settled viz. LHL (appellant) and ITC are not related parties; assessment has to be done in terms of Rule 11; apex court decision in the case of M/s Ujagar Prints cannot be applied to the instant case as not only certain inputs but also machinery and funds to some extent were supplied by the principal manufacturer namely ITC - Goods are handed over by appellant (LHL) to the transporter designated by ITC at the factory gate - In these circumstances any expenses incurred after clearance from the factory cannot form part of the assessable value in terms of Section 4(1)(a) - Costs incurred by the buyer after clearance from factory, the same cannot be included in the assessable value - The fixed cost of ITC, in general, cannot be added to the assessable value for the reason that these costs are incurred beyond the place of removal namely the factory gate - Advances received much prior to the disputed period could not have possibly influenced the price, not only for the reason of the period of receipt of these advances but also the quantum of advances which appear to be in the ordinary course of trade considering the level of transactions between LHL & ITC - Staff deputed not for the purpose of manufacturing the goods but only for the purpose of inspection and supervision and quality control cannot be part of the assessable value of the goods - No excise duty needs to be paid on the outward freight from Leamak to ITC, Marketing spends by ITC and fixed costs of ITC relating to activities of ITC other than provision of moulds at concessional cost - Impugned order is set aside insofar as it seeks to include outward freight from Leamak to ITC godown and marketing spends for charging excise duty - The impugned order is also set aside insofar as it seeks to include the fixed cost of ITC in total to the assessable value - The cost of ITC insofar as it relates to provision of mould on discounted rate to the appellant needs to be apportioned to the value of goods depending on the actual period of use of the said mould and the total production - The fact regarding payment of duty under the head "Cost of production not included by Leamak" in the table appearing in para 5.3 needs to be ascertained - If duty has already been paid, duty may not be demanded again - Merit in the argument of M/s. ITC Ltd. that when the impugned order imposed penalty on the appellant, they should have been granted an opportunity of defend themselves - Impugned order set aside and Matter remanded: CESTAT [para 5.7, 5.8, 5.9, 5.12, 7, 7.1, 8,9] Revenue appeal: It is seen that the order of tribunal dated 01.01.2014 has clearly laid down that assessment has to be done in terms of Rule 11 of the CV Rules - The revenue has not challenged the said order and, therefore, the said order has become final - In this background, the assertion of the revenue that assessment needs to be done in terms of Rule 7 of the CV Rules cannot be accepted - The appeal of revenue is, therefore, dismissed: CESTAT [para 6]
- Matter remanded/Appeal dismissed: AHMEDABAD CESTAT
2023-TIOL-36-CESTAT-AHM
Sagardeep Alloys Ltd Vs CCE & ST
CX - The main appellant were manufacturer of stainless steel Pipes and Tubes and were availing Cenvat Credit on inputs, input services and capital goods - It has been alleged in SCN that M/s Suraj Ltd. had availed Cenvat Credit on the strength of purchase invoices without receipts of inputs in their factory premises - Said modus came to knowledge of department on the basis of certain incriminating documents recovered during investigations and search operation at the various premises of appellants - Tribunal has passed the orders and same are relied by appellant wherein common investigations are involved - Therefore, matter remanded to adjudicating authority to pass a de novo order after considering said judgments and appellant should be given sufficient opportunity to make their submission and documents, if any required, and also be granted the personal hearing before de novo adjudication: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2023-TIOL-35-CESTAT-DEL
CST Vs Simplex Infrastructures Ltd
ST - Department has filed this appeal to assail that portion of order passed by Commissioner that drops the demand proposed in SCN on services rendered by Simplex Infrastructures Limited the sub-contractor to main contractor WPIL Limited and DC Industrial Plant Services Pvt. Ltd. - Commissioner has dropped the demand for work undertaken prior to 23.08.2007, on which date the Master Circular was issued that a sub-contractor would also be liable to pay service tax even if main contractor had paid service tax - It is noticed that dispute relates to period from 2006-07 to 2008-09; SCN was issued on 22.10.2010; the Commissioner decided the matter on 27.11.2013; and the appeal was filed before Tribunal in 2014 - In such circumstances, it is appropriate to examine this issue instead of remitting the matter to Commissioner for taking a decision - It cannot be disputed that prior to issuance of SCN and Master Circular dated 23.08.2007, sub-contractors were not discharging their service tax liability because of decisions of Tribunal and this fact has also been noticed by Larger Bench while referring to decision of Tribunal in Urvi Construction 2009-TIOL-1890-CESTAT-AHM - The Larger Bench also referred to a number of decisions which had taken view that a sub-contractor was not required to discharge service tax liability if main contractor had discharged the liability - Such being the position, it is clearly a case where sub-contractor was under a bona fide belief that he was not required to discharge service tax liability - In such a situation, extended period of limitation could not have been invoked - Service tax demand for aforesaid work performed by sub-contractor, could not have been confirmed for extended period of limitation - Appeal filed by Department, therefore, deserves to be dismissed: CESTAT
- Appeal dismissed: DELHI CESTAT
2023-TIOL-34-CESTAT-DEL
Fedex Express Transportation And Supply Vs CC
Cus - Appeal filed against impugned order whereby Commissioner has ordered for forfeiture of security deposit and further imposed penalty of Rs. 50,000/- under Regulation 14 of Courier Imports and Exports (Electronic Declaration & Processing) Regulations, 2010 by relying upon 'enquiry report' and thus have held that identity proof of consignee was required to be collected at the time of delivery at all different locations - Appellant authorised courier under Courier Regulation have duly obtained proof of identity cum proof of address by collecting Aadhar and PAN as well as verification report of both the cards - Further, admittedly appellant have recorded the place/address of delivery each time they have delivered the goods to consignee (S. Mondal) - Further, there is no violation of provisions of Regulation 12(i), (iv) and (v) ibid as appellant has obtained prescribed documents for identity and have maintained proper records - Further, there is no case of lack of due diligence made out, as appellant has kept a proper record of address of delivery as same was different from address contained in Aadhar Card - Thus, appellant have not violated any of provisions of Courier Regulations read with provisions of Customs Act read with Explanatory Circular - Impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT |
|
