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2023-TIOL-119-CESTAT-MUM
Pr.CC Vs National Institute of Bank Management
ST - The short point in this appeal of Revenue against impugned order is impropriety of dropping proceedings initiated in SCN for period from 2008 to 2012 on the ground of being inconsistent with bar of limitation prescribed in section 73 of Finance Act, 1994 - While lack of knowledge could be a defence in such proceedings, it is not the knowledge or awareness that is on trial but suppression of fact/wilful misstatement/ fraud which must be evinced in the notice issued in pursuance of section 73 of Finance Act, 1994 - Mere nonpayment of tax or non-discharge of liability does not suffice to alienate the responsibility of 'proper officer' to offer convincing reasons for belief that ingredients for invoking extended period are evident - SCN for period from October 2003 to September 2008 on the same issue had been adjudicated and was carried to Tribunal who, while upholding the default, had held that the demand was liable to be restricted only to normal period in section 73 of Finance Act, 1994 - An appeal against this order of Tribunal, though admitted, is, as yet, pending before Supreme Court - Demand for October 2003 to September 2008 has been, thus, curtailed and present demand leading to impugned order relates to period thereafter till 2012 for which SCN was issued on 15th April 2014 - Considering the judgment of Supreme Court in Nizam Sugar Factory 2006-TIOL-56-SC-CX , this appeal of Revenue seeking recovery as proposed in demand by invoking of extended period for subsequent period of time is not correct in law: CESTAT
- Appeal dismissed: MUMBAI CESTAT
2023-TIOL-118-CESTAT-MAD
Puducherry Cooperative Sugar Mills Ltd Vs CGST & CE
CX - Appellant is a manufacturer of sugar and molasses - A SCN was issued inter alia alleging that appellant had wrongly availed CENVAT Credit and that the same was recoverable under Rule 14 of CENVAT Credit Rules, 2004 - Appellant had clearly mentioned that though the credit was taken by mistake belatedly, credit was not availed by Mill - This fact has been very conveniently ignored by Adjudicating Authority who has chosen to incorporate in O-I-O only the first portion as to availment by mistake of credit and non-reversal of the same - Thus, when credit itself was not taken/availed by appellant, there is no scope whatsoever to allege wilful or deliberate intention to evade duty - Unfortunately, First Appellate Authority has also ignored the plea of appellant, by upholding findings of Adjudicating Authority - Demand of duty by invoking extended period cannot sustain as Revenue has not been able to justify the same and therefore, demand, as confirmed in impugned order, cannot be sustained - When demand itself cannot be sustained, penalty imposed also cannot be sustained for the same reason and consequently, impugned order to this extent cannot be sustained - Accordingly, impugned order to this extent is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-117-CESTAT-BANG
Kerala Horticultural Vs CC
Cus - Issue involved is as to whether appellant could have claimed exemption from whole of duty of customs leviable under First Schedule to Customs Tariff Act, 1975 on imported plant and machinery from European Union for setting up a Fruit Processing Plant at Muvattupuzha in Kerala - The machinery and plant was a capital investment and so the cost was provided as a grant - A grant has been defined in Chambers Dictionary as something bestowed, an allowance; 'a gift' - It would be seen from Agreement that though initially the cost of Agro-Processing Component under clause 3 of Annexure-A (Technical and Administrative Provisions) was to be transferred to Project by Government of India as a loan of 4.108 million euro, but subsequently an amendment was incorporated on 08.03.2002 - Amended clause 3 provides that Agro-Processing Component was increased from 4.108 million euro to 7.196 million euro and out of this amount, capital investment cost (85%) was to be provided as a 'grant' and 'working capital' (15%) was to be provided as a loan to be repaid in a revolving fund - Thus, the plant and machinery, which would be included in capital investment cost, was provided as a 'grant' which means as a gift - Clause 8 of exemption notification would, therefore, be satisfied - This factual portion is also reflected from Certificate given by European Union which clearly mentions that plant and machinery was gifted free of cost to Programme under bilateral Agreement between Government of India and European Union - Commissioner (A) failed to notice the amendment made in clause 3(b) of Agreement while recording a finding that plant and machinery was provided on a loan which was to be repaid - Impugned order therefore is set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT |
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