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2023-TIOL-116-CESTAT-DEL
JMK Energy Vs CC
Cus - The issues to be decided is, about the nature of imported goods and are they classifiable under CTH 85131010 as torch as claimed by appellant in bills of entry or under CTH 85076000 as accumulator as held in impugned order or under 85013120 as now claimed by appellant - The goods in question are called "HANS power pack 300" and "HANS power pack 150" depending upon capacity - They have inbuilt solar panels which can charge them - There are LED lights in them and in addition to light they can be used to run small electric devices such as computers and televisions - They have long lasting lithium-ion batteries - The imported goods in question are designed for purpose of performing several complementary or alternative functions - The question which arises is which of these is principal function - Evidently, their heart is storage which can be done by five different means, one of which is charging using in-built solar panel - The power so generated can be used for several purposes and not only for using LED lamps built into it the goods - Thus, they have multiple inputs and multiple output options - Imported goods can be used regardless of which input source is used or what the output purposes are but they cannot be used without the accumulator - Therefore, they deserve to be classified as accumulators under CTH 8507 - The next question is whether classification of imported goods under IGST. S. No. 234 of Schedule I of IGST Notification No. 1/2017 covers solar power based devices is correct - Notification does not place any restriction of Customs Tariff Heading and it applies so long as such devices fall under Chapter 84 or 85 of Customs Tariff - Evidently, the goods falling under 8507 would also be entitled to classification under Schedule I at S. No. 234 if they are solar power based - The reason this classification was not accepted by adjudicating authority is that they are not SOLELY based on solar power and other power can also be used charged the devices - Adjudicating authority has erred in coming to this conclusion because the Notification does not say "devices based solely on solar power" but says "solar based devices" - Simply because there are four other alternative means through which they can be charged, it does not mean that the imported goods are not solar power based devices - Therefore, imported goods merit classification under 234 of Schedule I of Notification 1/2017 - Consequently, demand for IGST differential duty along with interest cannot be sustained - As essential nature of imported goods to be that of accumulators, appellant's contention that they should be classified under CTH 85013120 as DC generators cannot be accepted and consequently no refund of customs duty is admissible to appellant - Since demand for differential IGST itself is not sustainable, question of interest or imposition of penalty under Section 112 or 117 also do not arise: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-115-CESTAT-AHM
Gujarat JHM Hotels Ltd Vs CCE & ST
ST - The cenvat credit was denied in respect of service received by appellant from M/s. Indian Hotels Co. Ltd. on the pretext that same is classifiable under Business Auxiliary Service which is not specified under Rule 6(5) of CCR, 2004 - Contention of appellant is that service provider M/s. Indian Hotels Co. Ltd. has provided services under head of Management or Business Consultancy Services, accordingly, classification of service cannot be challenged at service recipient end - From the decision of Tribunal in Piem Hotels Ltd. 2016-TIOL-788-CESTAT-MUM , it can be seen that same services provided by IHCL to M/s. Piem Hotels Ltd. was held classifiable under Management or Business Consultancy Services and not under Business Auxiliary Service accordingly, Management or Business Consultancy Services clearly specified under Rule 6(5) of Cenvat Credit Rules, 2004 therefore, appellant have correctly taken 100% credit in respect of such input service - As per this judgment, entire foundation of revenue's case gets demolished therefore, demand cannot be sustained on merit - Since the appeal is decided on merit of case, Tribunal is not inclined to deal with other issues such as time bar - Impugned order is set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2023-TIOL-114-CESTAT-AHM
USV Pvt Ltd Vs CCE & ST
CX - The issue involved is, whether appellant is entitled for cash refund against accumulated and unutilized Cenvat credit of Education Cess and Secondary and Higher Education Cess - As regards admissibility of Cenvat credit of Education Cess and Secondary and Higher Education Cess, Rule 3 of Cenvat Credit Rules, 2004 clearly provides that Cenvat credit to be allowed in respect of Education Cess and Secondary and Higher Education Cess - From the said Rule, under clause (vi) and (via), credit of Education Cess and Secondary and Higher Education Cess is clearly allowed - Therefore, appellant is legally entitled for Cenvat of Education Cess and Secondary and Higher Education Cess - Hence, on this count refund cannot be denied - As regards limitation, in case of refund of accumulated unutilized credit, limitation shall not apply - Accordingly, appellant is entitled for cash refund of accumulated and unutilized Cenvat credit of Education Cess and Secondary and Higher Education Cess - Impugned order is set-aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
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