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2023-TIOL-169-CESTAT-MUM
Konkan Railway Corporation Ltd Vs CCGST & CE
ST - The demand was raised in relation to payment received in advance by appellant from M/s. National Thermal Power Corporation Limited in accordance with contract for 'construction and commissioning of railway sliding and signaling telecommunication systems including associated electrical and mechanical instruments' for facilitating handling of coal at Kudgi and Gadarwara super thermal power projects - Entitlement of every sort of railways to exemption provided, either by exclusion from definition of 'taxable service' in 'pre-negative list' regime or by specific exemption in 'negative list' regime has been dealt with in several decisions of Tribunal - The exemption from tax is available to 'railways', excluding mono rail or metro, by Notification No. 25/2012-S.T. after 1st July 2012 and as conceded by adjudicating authority, there being no definition of 'railway', either therein or in Finance Act, 1994, distinction between railway for private purpose and railway for public service cannot be artificially contrived to suit tax administration; neither can the definition in another statute be drawn upon for purported purpose of illumination - The 'taxable service' in Finance Act, 1994 excluding 'railways' from ambit of service did not place any restriction on benefit going to private railways - The statute, too, did not consider it necessary to fall back on definition of 'railways' in another statute for determination of taxability and it is not open to adjudicating authority to arrogate that privilege in an executive capacity - The intent of exclusion prior to 1st July 2012, and exemption for period, thereafter, is abundantly clear - Impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2023-TIOL-168-CESTAT-MUM
Accelya Solutions India Ltd Vs CCGST
ST - The basic issue is that Revenue seeks to modify refund claims filed by appellant without initiating any proceedings by way of issuance of SCN under Rule 14 of Cenvat Credit Rules, 2004 - In case of appellant itself, issue has been settled by orders in 2018-TIOL-2451-CESTAT-MUM and 2018-TIOL-2452-CESTAT-MUM wherein it is observed that under the substituted Rule 5 of the rules, there is no requirement of showing nexus between input service and the output service provided by assessee - In view of said decisions, no merits found in impugned order: CESTAT
- Appeals allowed: MUMBAI CESTAT
2023-TIOL-167-CESTAT-KOL
Nakshatra Impex Vs CC
Cus - The importers, imported Mosquito swatter/bat stuffed in three containers at a declared unit price of USD 0.34 per piece which works out to Rs. 25.41 per piece - Goods were shipped on 26.04.2021 against three different Bills of Lading from China - Three Bills of Entry were filed for clearance of mosquito swatter/bat UTH (HS code) 85167920 claiming clearance under Open General License (OGL) since mosquito swatter/bat was freely importable as per Foreign Trade Policy in force - Director General of Foreign Trade (DGFT) issued vide Notification No. 02/2015-20, amended import policy and incorporated a policy condition under HS code 85167920 and 85167990 of chapter-85 of ITC (HS) 2017, schedule-I (Import Policy) - Effect of notification was, mosquito killer racket in import policy was revised from free to prohibited, if CIF value is below Rs. 121/- per racket - Both the Adjudicating authority and Commissioner (A) are of opinion that, prohibited goods cannot be redeemed which is contrary to decision of Supreme Court, wherein it was held that absolute confiscation should be an exception rather than a Rule - Without exploring any other alternative, it has been held that goods are liable for confiscation - So far as items peas and pulses are concerned, order of Supreme Court is a Landmark decision of judicial pronouncements - But nowhere the Supreme Court observed in that order that prohibited goods cannot be redeemed - In case of Har Govind Das K. Joshi, Supreme Court held that absolute confiscation of goods by Collector without question of redemption on payment of fine although having discretion but omitted to consider such a discretion available with him and remanded the matter to Collector for consideration of an exercise of discretion for imposition of Redemption fine - Besides, since the policy was amended when shipment was in process their mala fide intention cannot be proved without any additional evidence to invoke penal clause under section 112 of Customs Act, 1962 - Appellant produced documents and photographs stating that goods are suffering huge demurrage and partly some imported items stuffed in container are damaged which were required to be verified maintaining principles of natural justice - Impugned orders cannot be sustained and are accordingly set aside: CESTAT
- Matter remanded: KOLKATA CESTAT
2023-TIOL-166-CESTAT-KOL
Landis + Gyr Ltd Vs CCGST & CE
CX - Appellant is engaged in manufacture of Electric Meters falling under sub-heading 9028 00 of Central Excise Tariff and availing Cenvat Credit for inputs used in manufacture of finished goods - During period January 2005 to December 2006, they have written off value of some of Cenvat Credit availed on raw materials declaring them as obsolete - The Department relying on CBEC Circular No. 645/36/2002-CX issued SCN demanding reversal of Rs. 21,86,901/- - Gujarat High Court in case of Ingersoll Rand (India) 2012-TIOL-1107-HC-AHM-CX had occasions to go deeply into the issue of Rule 3 (5B) and also had dealt with said CBEC Circular and held that in absence of statutory provisions, merely on the strength of Board's circulars, it would not be open for Department to enforce reversal of Cenvat credit - Respectfully following the judgment of Gujarat High Court, it is held that confirmed demand is not sustainable on merits - It is seen that SCN has not elaborated in any way whatsoever as to how the writing off of raw materials in Books of Account would amount to suppression/misstatement so as to invoke extended period - Appellant is a Public Limited Company, filing all their Returns including P & L Account and Balance Sheet in public domain - Since, the fact of writing off of raw materials has been shown in Balance Sheet, it would clarify that there is no suppression on their part - Moreover since there was no provision under Cenvat Credit Rules, 2004 requiring them to reverse the Cenvat Credit towards such written off raw materials, they can said to carry bona fide belief that they are not required to reverse the Cenvat Credit - Therefore, confirmed demand is also hit by limitation: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-165-CESTAT-AHM
Narendra C Solanki Vs CCE & ST
CX - The appellants were imposed penalty under Rule 26 for the charge of abatement in evasion of duty by company - All appellants are Managing Director/ Director of company - The fact of clandestine removal done by company M/s Shree Sardar Co-operative Sugar Industries Limited is not under dispute as company has issued parallel invoices on which no duty was paid - Transactions were also not booked properly in books of accounts - Against said parallel invoices, company also received payment which intentionally not shown in sales account but shown as deposit against respective customers, therefore, it clearly transpires that company and its board under systematic modus operandi, carried out clandestine removal of excisable goods - Entire modus operandi can only be done by board of company which includes all directors, it is beyond imagination that such a systematic act of clandestine removal and in proper accounting of payment in books as deposit can be done without the knowledge of Directors of company - Such type of act cannot be accepted from employee of company - Accordingly, no infirmity found in impugned order imposing penalty on appellants - Hence, the penalties are sustained: CESTAT
- Appeals dismissed: AHMEDABAD CESTAT |
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