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2023-TIOL-41-CESTAT-DEL
Ashok Malhotra Vs CC
Cus - Appeal filed against order suspending Customs broker licence - Application also filed for early hearing of the appeal - Early hearing application was listed on 11th August 2022 and again on 11 October 2022 but on both the occasions none appeared from the appellant's side - Observing that the applicant is no longer interested in pressing the early hearing application, the same was rejected on 11.10.2022 and it was ordered that the appeal is to be listed in due course - An application came to be filed on 4 November 2022 with a prayer to allow the application for ‘restoration of early hearing application and fix an early date of hearing' - It is contended by the applicant that non-appearance before Tribunal on the said date(s) of hearing was beyond control of appellant as he had no prior knowledge of hearing inasmuch as notices had not been sent by Tribunal to the applicant or to the counsel appearing for the applicant. Held: W.e.f. February 2019 all orders, including miscellaneous and daily orders, are uploaded on the website of the Tribunal so as to enable all the interested parties to not only know the actual contents of the order, but also to know the next date fixed in the matter - To give effect to this system, a Public Notice dated 18.02.2019 was also issued by the Tribunal to bring to the notice of all that adjournment notices will not be sent as daily orders were being uploaded on the website and the status of the case could be found out from the website of the Tribunal i.e. www.cestatnew.gov.in by using the hyperlink "Daily Orders" or "Court Proceedings" - Public Notice also specifically mentions that in case the Bench does not sit for any reason, the adjourned dates of the listed matters will be uploaded in the "Court Proceedings" - Thus, if the Bench did not sit on August 2, 2022, the next date could be ascertained by the counsel for the applicant from the hyperlink "Court Proceedings" - It is the appellant who had filed the early hearing application and, therefore, it was the duty of the applicant to follow the dates on which the application was listed on the website of the Tribunal, if the appellant was interested in pursuing the application instead of making a complaint that a notice had not been sent by the Tribunal to the appellant regarding the next date fixed - Applicant has failed out to make out any case for recall of the order dated October 11, 2022 - This application is, accordingly, rejected: CESTAT [para 5, 6, 12, 13]
- Application rejected: DELHI CESTAT
2023-TIOL-40-CESTAT-AHM
Sanstar Bio Polymers Ltd Vs CC
Cus - The issue relates to correctness of classification of 'Maize (corn) Starch' declared by appellant to customs for claiming export benefit under DFIA scheme - Export item namely "liquid glucose concentrate (food grade)" was manufactured from using "starch slurry" which is essentially a "starch" albeit in slurry form - However, case of revenue is that since 'Starch' is manufactured out of "Maize" which is base input, correct SION for export item-liquid glucose is 'Maize' specified under SION Entry E76 and not 'Starch' specified under SION Entry E22 and that appellant has mis-classified its product in order to claim undue benefit of DFIA Scheme - There is no dispute to classification of export item - Dispute relates to import item-input - One of the specified import items under E22 is "Starch" whereas "Maize" is the specified import item under SION E76 - Since undisputedly 'Starch slurry' is used as immediate input by appellant in manufacturing of its export item-liquid glucose concentrate, it cannot be said that starch was not appellant's input for export item - It is settled law that when a claim of an applicant under a beneficial scheme or exemption notification, qualifies under two conflicting entries, for having opted for one which is more beneficial to him would not amount to mis-declaration - The immediate parent material was starch slurry i.e. 'starch' and 'not maize' and therefore case of department that SION E76 was correct norm cannot be sustained - Since the immediate parent material for manufacturing exported goods was starch falling under SION E22, it is clear that 'Starch' was correctly applicable SION - Denying the benefit under DFIA on the ground that 'Starch' is not original input and that 'Maize' is original input which alone is eligible for benefit of DFIA is bereft of any legal basis - As regards, jurisdiction of customs to demand duty from appellant invoking section 28AAA of the Act, it is undisputed fact that all the 7 DFIA licences were granted by DGFT are valid and subsisting and further no proceedings for cancellation or suspension of any of these authorizations have been initiated by DGFT - It thus follows that DGFT which is proper authority to determine classification of goods under DFIA claim has not disputed and has accepted the classification of import item under E22 of SION - Further, appellant has correctly classified its product under SION E22 - Finding of commissioner that appellant resorted to mis-declaration and suppressed facts cannot be sustained - Customs would have no jurisdiction to invoke section 28AAA of the Act or to deny exemption from customs duties or any other benefit flowing from such subsisting license - Impugned order cannot be sustained and is set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2023-TIOL-39-CESTAT-AHM
Hng Float Glass Ltd Vs CCE & ST
CX - Issue involved is that whether appellant is entitled for cenvat credit in respect of Cement, TMT bars, MS angles, channels, beams, racks and plates used for making foundation of machineries installed in factory premises and for making structure for support of plant and machinery qualified as capital goods as defined in Rule 2(a) of Cenvat Credit Rules, 2004 for period April 2008 to April, 2010 - The credit was denied mainly on the ground that amendment in Rule 2(a) brought by notfn 16/2009-CE (N.T.) barred the availment of cenvat credit on goods in question from retrospective effect - This finding of adjudicating authority is based on larger bench judgment of Tribunal in case of VANDANA GLOBAL LTD . - In this regard, much water was flown on this issue and not only the VANDANA GLOBAL LTD. larger bench judgment was upset by Chhattisgarh High Court in case of VANDANA GLOBAL LTD. 2017-TIOL-2853-HC-CHATTISGARH-CX but also by various subsequent judgment mainly by jurisdictional high court in case of MUNDRA PORTS & SPECIAL ECONOMIC ZONE LTD. 2015-TIOL-1288-HC-AHM-CX - Amendment of notfn 16/2009-CE (N.T.) was held to be inapplicable for period prior to date of notification i.e. 07.07.2009 - On this ground, denial of cenvat credit by adjudicating authority is not legal and correct - As regard the period post 07.07.2009, credit was already accrued before amendment of Rule 2(a) of CCR, 2004 therefore, amendment of notfn 16/2009-CE (N.T.) shall not apply on such credit which was accrued prior to 07.07.2009 - Moreover, appellant have claimed credit under capital goods - Such capital goods were as parts and components used as support structure for plant and machinery erected and installed in factory of appellant - On this ground also, credit is admissible to appellant accordingly, appellant is entitled for cenvat on goods in question as per settled legal position in various judgments cited by them particularly in case of Chhattisgarh High Court judgment in VANDANA GLOBAL LTD. and Gujarat High Court in case of MUNDRA PORTS & SPECIAL ECONOMIC ZONE LTD. - Accordingly, impugned order is not sustainable hence, same is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2023-TIOL-38-CESTAT-KOL
Devansh Exports Vs CCGST & CE
ST - The issue involved is, whether appellant is eligible to refund of services availed in relation to export of goods under Notfn 41/2007-S.T. - As per said Notfn, certain co-relations are required to be made before sanctioning refund claims - It is observed from C.B.E. & C. Circular 120/01/2010-S.T . that exporters were facing certain difficulties in relation to one to one co-relation between input services and exports made - Appellant brings to the notice of Bench the C.B.E. & C. Circular dated 19-1-2010 to argue that self certification of exporter or a Chartered Accountant if given is sufficient to sanction refund - In para 6.2 of this Circular, C.B.E. & C. has clarified that only a broad co-relation of input services and Service Tax paid is required to be made with respect to exports - So far as admissibility of Service tax paid on GTA Services is concerned, it is observed that similar refunds were allowed by Tribunal in case of Jumbo Mining Ltd. 2012-TIOL-510-CESTAT-BANG - Though the clarification was with respect to Notfn 5/2006-C.E. (N.T.) but it clearly conveys that in Budget 2009 the scheme under Notfn 41/2007-S.T. was simplified in Notfn 17/2009-S.T. by providing self certification or Chartered Accountant's certification about co-relation and nexus between input Services and the exports - That above logic can be followed for said Notfn 5/2006-C.E. (N.T.) where such simplification of Notfn 17/2009-S.T. may not be available - Impugned order cannot be sustained and is accordingly set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT |
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