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2023-TIOL-113-CESTAT-CHD
Munjal Kiriu Industries Pvt Ltd Vs CCE & ST
CX - Appellant is engaged in manufacture of automobile parts and availing facility of cenvat credit as per Cenvat Credit Rules, 2004 - A SCN was issued to appellant alleging that DGCEI booked a case against various Central Excise registered units, managed by one person namely, Shri Amit Gupta - Appellant has produced sufficient records in form of invoices alongwith transport documents and other records showing the receipt of raw-material/input register, RG23A Part-I and also the proof of payment through banking channel - Both the authorities below have not considered documentary evidence produced by appellant to prove his case - Further, in case of Hind Alloys , it was held that if assessee proves that he has procured inputs from registered dealer under proper invoice - Even if, registered dealer had not obtained goods from manufacturer, in that case, assessee is eligible for cenvat credit so long as he has indeed procured inputs and proper invoice is available as is the position in this case - Similarly in Luxmi Metal Industries , it was held that once goods are supplied against proper cenvatable invoice, buyer cannot go beyond that and verify whether registered dealer had purchased the goods legally - Further, Tribunal in identical matter vide Order in case of M/s Haryana Industries and ors. 2019-TIOL-1516-CESTAT-CHD has also set-aside the impugned order and allowed cenvat credit to the appellant therein and penalty was also dropped - Impugned order is not sustainable in law and hence, same is set-aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
2023-TIOL-112-CESTAT-MAD
Covestro India Pvt Ltd Vs CGST & CE
CX - Assessee is in appeal against impugned order of Commissioner (A), whereby inter alia , disallowance of input credit and recovery of same came to be upheld - There is also nothing brought out on record if appellant, being a recipient unit, had any role or influence in manner of distribution so that a case of wilful suppression with an intention to evade payment of duty could be justified - There is no denial by lower authorities that amount of tax paid in cash by Head Office unit was much more than the amount of credit that should have been distributed to Head Office unit, which fact stood duly verified even during audit - This is, therefore, clearly a revenue neutral situation since there is no Revenue loss at all to Government and hence, question of wilful suppression, that too with an intent to evade payment of tax would never arise - It is settled position of law that SCN in case on hand has been served beyond normal period, for which only allegation levelled is wilful suppression with an intent to evade tax, but however, no supporting document/evidence is placed on record to justify suppression by appellant, who is only a recipient, and consequently, demand also cannot sustain being hit by time-bar - A mere allegation has been made as to wilful suppression with an intent to evade tax which, if considered for sake of arguments, may at most justify invoking extended period of limitation - But in any case that alone is not sufficient since Department has to prove that there is a revenue loss to exchequer - This means that they are aware of distribution of input credit in particular manner - When this is the situation, then there is no question of suppression, much less of any receipt of input credit by appellant - Disallowance of CENVAT Credit in hands of appellant, as confirmed in impugned order is incorrect and not sustainable in eye of law, for which reason impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-111-CESTAT-MUM
Coface India Credit Management Services Pvt Ltd Vs CCGST & CE
ST - Appeal filed against impugned order whereby Commissioner (A) has rejected refund application filed by appellant under Rule 5 of CENVAT Credit Rules, 2004 on the ground that opening balance in CENVAT register should not be taken into consideration for purpose of grant of refund benefit and that certain input services were not considered for refund inasmuch as those services have no nexus with output services provided by appellant - CBE&C vide Circular No. 120/01/2010 has clarified that closing balance of previous quarter can be considered for utilization towards export as opening balance for subsequent quarter - With regard to establishment of nexus between input services and export of services, Department has not initiated any proceedings for recovery of irregular credit of input services under Rule 14 of CENVAT Credit Rules, 2004 r/w Section 73 of Finance Act, 1994 - Since availment of CENVAT credit has not been questioned at material time, subsequent claim of refund under Rule 5 on fulfillment of conditions laid down therein cannot be questioned by Department at a later stage for denying refund benefit - The issue is no more res integra in view of decisions of Tribunal in case of Ness Technologies (I) Pvt. Ltd. and M. Net Partner Technologies Pvt. Ltd. 2019-TIOL-3657-CESTAT-MUM - Ratio laid down in said orders of Tribunal is to the effect that while granting refund benefit under Rule 5 ibid read with notification issued thereunder, Department cannot object to such claim of appellant on the ground that there was no nexus between input services and exportation of output service - No merits found in impugned order, insofar as Commissioner (A) has denied refund benefit to appellant - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2023-TIOL-110-CESTAT-AHM
Nexcel Infra Vs CCE & ST
ST - Appellant is undertaking construction activities mainly for various Government/Local authority related projects - Issue involved is, whether appellant is liable to pay Service Tax on differential value in comparing Form 26AS/ITR statement and taxable value declared in ST-3 returns for year 2016-17 - Appellant has mainly contended that they were under bona fide belief that no Service Tax was payable on work in question, being exclusively Governmental construction and when main contractor too had not paid any Service Tax thereon without any adverse view being taken by Service Tax department - The bona fide belief entertained by appellant cannot be questioned - Also if appellant was liable to pay Service Tax, back to back, even the main contractor would have also been liable to pay the same - Whatever Service Tax, if paid by appellant, would have been back to back availed as Cenvat Credit by main contractor anyway - Therefore, without going into any other issues, including whether exemption for construction of affordable housing under MGY scheme is available irrespective of small portion of commercial construction involved as part of MGY scheme under tender floated, issue on hand can otherwise be decided on account of demands being time-barred - Also, the work order placed by irrigation department upon main contractor and agreement made between such main contractor and appellant is already produced by them qua Bodki River irrigation work related issue and no purposeful meaning will be served by remanding the matter back for re-examination of this, especially in light of the fact that appeals are required to be allowed on account of demands being time-barred anyway - Therefore, impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
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