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2023-TIOL-60-CESTAT-MUM
H H Patel And Company Vs CCE & Customs
CX - The dispute, arising from challenge of assessee to order confirming recovery under section 11A of Central Excise Act, 1944 along with applicable interest is before Tribunal for the second time though, on this occasion, limited only to recovery ordered under section 11AB of Central Excise Act, 1944 on the plea that there is a clear finding of adjudicating authority that demand for extended period did not lie - Decision in re SKF India Ltd has firmly established the principle that arising from liability for duties of central excise devolving on assessee at the price existing at time of clearance, notwithstanding subsequent receipt of differential, interest under section 11AB of Central Excise Act, 1944 would have to be discharged for termination of proceedings under section 11A ibid - On the other hand, in re Bharat Heavy Electricals Ltd , the principle established was that section 11AB of Central Excise Act, 1944 could not be invoked independently of section 11A rendered superfluous owing to prompt discharge of tax liability on escalation of price - In impugned proceedings, with confirmation of duty liability under section 11A, claim of factual matrix identical with that in re Bharat Heavy Electricals Ltd does not find favour - Therefore, liability to pay interest on duties short-paid at the time of clearance of goods for captive consumption does not get erased - The interest liability had not been discharged at the time of payment of differential duty and, hence, essential precondition for dropping of further proceedings had not been complied with - Inevitably, confirmation of differential duty necessarily has interest liability appended to it - Therefore, no reason found to interfere with order of original authority: CESTAT
- Appeal dismissed: MUMBAI CESTAT
2023-TIOL-59-CESTAT-AHM
Sun Pharmaceuticals Industries Ltd Vs CCE & ST
CX - Appellant, a 100% EOU cleared their excisable goods to their sister concern units on payment of duty as DTA sale - As per department, value of DTA clearances was lower than the value of identical goods cleared to other related units as compared to clearances of same products made to other unrelated buyers - Accordingly, SCNs were issued to appellant and Commissioner vide impugned order confirmed the demand for central excise duty along with interest - Penalty of an equal amount was also imposed - Commissioner has gone only on the basis that buyer and seller are related in terms of Rule 2(2) of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007, and proceeded to judge transactions in terms of valuation rule ibid - However, in terms of Rule 3(3)(a) ibid, where the buyer and seller are related, transaction value shall be accepted provided that examination of circumstances of sale of goods indicate that relationship did not influence the price - Neither the SCN issuing authority nor the adjudicating authority have given reasons to hold that how the relation has indeed affected the price - The declared prices cannot be reviewed without any evidence to the effect that relation between appellant and related buyer which has influenced the declared price or to the effect that there was a flow back of money between appellant and related buyers - The grievance of appellants is also that difference in commercial levels, quantity levels was totally ignored by Commissioner - Case needs to go back to adjudicating authority for a proper examination of all the facts of case, submissions of appellants including case laws in this regard - Adjudicating authority is directed to consider the issue afresh: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2023-TIOL-58-CESTAT-AHM
Sumeru Builders Vs CCE & ST
ST - Assessee is in appeal against confirmation of demand of service tax and imposition of penalty - Assessee had discharged liability to service tax soon after the same was pointed out by revenue - It has been argued by assessee that there was some doubt regarding their liability to service tax in terms of CBEC Circular No. 108/02/2009-S.T . therefore, there was some confusion in their mind - He argued that they did not have any intention to evade payment of tax as they had taken registration immediately after amendment clause (zzq) and (zzzh) of sub-section (105) of Section 65 of Finance Act, 1994 - Section 67(2) ibid clearly provided for treating the amount charged by service provider as inclusive of service tax payable unless it is specifically mentioned in documents - No evidence has been produced by revenue to hold that the amount collected by assessee is exclusive of service tax or it has been separately collected by assessee - No merit found in department's stand that benefit of Section 67(2) ibid could not be extended - Assessee discharged the entire service tax along with interest soon after the same was pointed out and in this circumstances the benefit of Section 73(3) ibid should not have been denied - Penalty imposed on assessee are set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2023-TIOL-57-CESTAT-DEL
Balaji Ceramic Products Vs CC
Cus - The issue involved is, whether re-imported petroleum coke have been confiscated alongwith imposition of penalty under Section 112(b) of Customs Act, 1962 - Commissioner (A) have recorded the findings that appellant had purchased goods for export and on being rejected by buyer in Saudi Arabia, goods have been re-imported and admittedly, appellant have not availed any export benefit on impugned goods - Thus, both the identity of goods is also established and also that appellant had genuinely exported goods to the user buyer in Saudi Arabia - Further, on rejection by buyer, appellant was obligated to re-import the goods to mitigate his loss - Admittedly, re-imported goods have been found to be calcined Petroleum Coke - The minor variation in weight is normal, due to normal loss in transit - As per para 1.05 (Clause B) of Chapter 1 of FTP 2015-2020, provides that in case of change of policy from free to restricted/prohibited the imports or export already made before date of such regulation/restrictions will not be effected - Admittedly, export in this case was made through shipping bill which is before the date of restriction imposed vide aforementioned Notifications - Thus, calcined Petroleum Coke was free for export-import on day of export, re-import by appellant of rejected goods has to be treated as freely importable under Foreign Trade Policy - Impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT |
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