2023-TIOL-80-CESTAT-DEL
Bharat Hotels Vs CC
Cus - Appeal filed against impugned order by which the aircraft imported by appellant against Bill of Entry on the basis of a non-scheduled operator permit (charter) issued by Directorate General of Civil Aviation (DGCA) has been confiscated under section 111(0) of Customs Act, 1962with an option to redeem the same - The order also seeks to confirm customs duty in terms of undertaking given by appellant at the time of importation and also imposes penalty under section 112 of Customs Act - The only issue that arises for consideration in the present appeal is whether there has been any violation of Condition no. 104 of exemption notfn. 20/2009 - The issue as to whether DGCA is final authority and customs authorities are bound by views expressed by DGCA has been considered by Larger Bench of Tribunal in VRL Logistics wherein it has been held that customs authority can take action on the basis of Undertaking submitted by importer only when authority under DGCA holds that the conditions have been violated - Thus, a demand can be made under Undertaking only when DGCA finds that use of aircraft is not in accordance with permit granted by DGCA - DGCA has not initiated any proceedings against the appellant and in fact has renewed the permit from time to time - Such being in position, it would not be necessary to examine other contentions raised by appellant for setting aside impugned order - Once it is held that the demand could not have been confirmed, penalties imposed upon Chairman/Managing Director and Vice President of appellant cannot also be sustained: CESTAT
- Appeals allowed: DELHI CESTAT
2023-TIOL-79-CESTAT-AHM
Ruia Rayon Pvt Ltd Vs CCE & ST
CX - The issue involved is, whether appellant is entitled to carry forward the Cenvat credit after date of availment of exemption Notfn 30/2004-CE in terms of Rule 11(3) of Cenvet Credit Rules, 2004 and whether said credit can be utilised for payment of duty - Entire case of department is that since the appellant have availed exemption Notfn, they are not entitled to carry forward the accumulated Cenvat credit as on date of exemption Notification and accordingly, same was not eligible for utilisation for payment of duty - In facts of present case, notfn is admittedly a conditional one - In terms of strict provision of Rule 11(3) of Cenvat Credit Rules, 2004, bar of lapsing of credit is applicable only when appellant avail the absolute exemption notification - Therefore, exemption notfn 30/2004-CE, being a conditional one, bar of lapsing of credit shall not apply - Issue is no longer res integra - Accordingly, following the judgments in Patodia Filaments Pvt Ltd. 2019-TIOL-2877-CESTAT-AHM and Jansons Textile Processors 2018-TIOL-3731-CESTAT-MAD impugned orders are not sustainable, hence the same are set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2023-TIOL-78-CESTAT-AHM
M S Khurana Engineering Ltd Vs CST
ST - The appellant during the period under consideration were engaged in business of construction of residential Complex services under Jawaharlal Nehru National Urban Renewal Mission (JnNURM) - All the project executed by appellant under JnNURM scheme pertained to construction of House for Economic Weaker Section (EWS) - As per department service tax on "Construction of Complex Service" was levied under Sub-Section (105)(zzzh) of Section 65 of Finance Act, 1994 w.e.f. 16.06.2005 - Appellant was issued SCN for demanding Service Tax alongwith interest and penalty - From the judgment in matter of Santosh Katiyar 2017-TIOL-1572-CESTAT-DEL it can be seen that identical fact is involved in said judgment and in case in hand in as much as in both the cases the construction service was provided to Jawaharlal Nehru National Urban Renewal Mission and Rajiv Awaas Yojana - On this common fact in said judgment, it was held that the service tax is not leviable to such project - Hence, the ratio of said judgment is directly applicable - Impugned order is clearly not sustainable, hence the same is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
