2023-TIOL-56-CESTAT-DEL
East India Udyog Ltd Vs CC
Cus - Appeal has been filed to assail impugned order vide which Commissioner (A) has dismissed the appeal before him on two technical grounds, one for non deposit of 7.5% of amount of duty as was confirmed by original adjudicating authority - Second, appeal was not filed within 60 days of date of receiving O-I-O rather it was filed after a delay of two years - From the O-I-O, it is observed that three notices of personal appearance were served upon appellant - No doubt, appellant through their previous counsel had responded to notice but it is simultaneously apparent on record that time requested by counsel to submit his defense was duly afforded by original adjudicating authority - Since the same counsel who was appearing before original adjudicating authority below has preferred appeal before Commissioner (A), it is difficult to accept that the counsel was not aware of applicable laws and that he has failed to advice the appellant in terms thereof properly - These observations are opined sufficient to falsify the allegations against previous counsel that he was negligent and that he was responsible for these delay, as substantial as that of more than two and a half years, for filing the appeal before Commissioner (A) - There is not even any affidavit of said previous counsel on record, acknowledging the alleged negligence on his part - At this stage the merits of appeal are observed, it is apparent that appellant had even failed to observe the timeline of EPCG License as was granted to him - Not even once he appeared before adjudicating authorities below - The grounds cited are not held to be the sufficient cause for reasonably explaining the substantial delay of more than two and half years - Hence, Tribunal do not find it to be a fit case to be where substantial delay in filing appeal should be condoned - No infirmity found in order of Commissioner (A) who is bound by statute to not to condone delay of more than one month beyond 60 days from the date of receipt of order by appellant - Order under challenge is upheld: CESTAT
- Appeal dismissed: DELHI CESTAT
2023-TIOL-55-CESTAT-AHM
CSCI Steel Corporation India Pvt Ltd Vs CCE
CX - The short issue involved is regarding availability of Cenvat Credit on various services viz. Management Consultancy services, Legal and Professional services and services used mainly in erection and commissioning, laying of foundation and making structure in support of capital goods/ machinery and also other services such as rent-a-cab, hotel services, insurance services and architectural services and whether they are valid input services within meaning of Rule 2(l) of CCR, 2004 during the period 2012-14 - Appellants were setting up their new plants and while setting up their new plant, they availed various services - Revenue has sought to deny input credit of various services used by appellant on the ground that definition of input service was amended w.e.f. 01.04.2011 to exclude services used for setting up of factory premises of output service provider or office relating to such factory or premises - Order of Commissioner examines the omission of words in initial "setting up" in inclusive part of definition of input service but fails to examine admissibility of input services credit of these services under main part of definition of input service - In terms of decision in case of Pepsico India Holdings (Pvt.) Ltd 2021-TIOL-448-CESTAT-HYD , it is apparent that if services provided in relation to setting up in unit would be covered under main part of definition - Unless specifically excluded by exclusion clause - Impugned order does not examine which service would fall under which exclusion clause - The order in this regard is vague and not a speaking order - Tribunal in case of Reliance Industries Ltd. 2022-TIOL-359-CESTAT-AHM examined the exclusion clause of definition of input services - Matter remanded back to original Adjudicating Authority to pass fresh order - Moreover, Commissioner has expected to identify the specific exclusion clause of definition of input service under which he seeks to deny credit of or of service listed - I mpugned order is therefore set aside and matter remanded to original Adjudicating Authority for fresh adjudication: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2023-TIOL-54-CESTAT-AHM
Krishak Bharti Cooperative Ltd Vs CCE & ST
ST - Appeals have been filed by appellant against confirmation of demand of service tax - CBIC has issued a Circular No. 178/10/2022-GST in which it has stated its stand on the issue of taxability of various transactions claimed to be "liquidated damages" - At the time of adjudication by commissioner and hearing before Tribunal, this circular was not available on record and therefore, Adjudicating authority could not take benefit of same - While the issue of levibility of service tax on liquidated damages is a debatable issue, CBIC has vide Circular No. 178/10/2022-GST clarified its stand on subject in respect of GST - Said circular also clarified the stand of CBIC on issue of forfeiture of salary or payment of bond made in event of employee leaving the employment before minimum agreed period - Prime facie Para 5(e) of Schedule-II of CGST Act, is identically worded as Section 66E(e) of Finance Act, 1994 - The circular was not available to Adjudicating authority when the matter was decided and he could not examine the issue in light of aforesaid circular - The issue in dispute can be decided in light of aforesaid circular - Consequently, impugned order is set aside and the matter is remanded to original adjudicating authority to decide the issue afresh: CESTAT
- Matter remanded: AHMEDABAD CESTAT |
