|
2023-TIOL-173-CESTAT-MAD
Aniksha Productions Pvt Ltd Vs CST
ST - Issue arises is as to whether Revenue is correct in demanding Service Tax from appellant on fixed cost component as well - From the allegations in SCN and discussions in O-I-O, Tribunal fails to understand that when Service Tax on service involved stands remitted by advertising agency, where is the question of fraud or collusion or even suppression - Therefore, invoking the provisions of Section 73(1), which is not automatic, needs to be justified in first place by Revenue - Tribunal do not find that the concerned authorities have justified the issuance of SCN by invoking extended period of limitation but for a mere allegation that there was suppression - It is very much settled position of law that allegations, howsoever strong, cannot take the place of proof - When, therefore, Government is not deprived of its dues, that is to say, when for a particular service on which Service Tax was liable to be paid, same has been paid, it makes no difference as to who has paid the tax - It is worthwhile to note the observations in O-I-O wherein Adjudicating Authority himself has acknowledged that Service Tax having been paid by advertising agency, appellant could enjoy the facility of CENVAT Credit - This clearly tantamounts to acceptance of fact of payment of tax and the fact that appellant is eligible to avail CENVAT Credit sufficiently establishes that it is a revenue neutral situation - Appellant has to succeed on both the legal grounds and Revenue has not justified the invoking of extended period of limitation and also not been able to dislodge that it is the case of revenue neutrality - Impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-172-CESTAT-DEL
Pelican Grani Marmo Pvt Ltd Vs Addl.Commissioner
Cus - Appeal filed against impugned order whereby Commissioner (A) partly allowed two appeals filed by appellant by setting aside the penalty imposed on it under Section 117 of Customs Act, 1962 and reducing the penalties imposed under section 112(a) and rejected the remaining part of appeal - The first question to be decided is as to whether appellant is liable to pay duty on steel grits and saw blades consumed in excess of SION - Undisputedly, exemption Notfn 52/2003-CUS, as applicable during the relevant period, was subject to various conditions including the condition that appellant shall use consumables as per SION norms - The first argument of appellant is that the grits and saw blades should be considered as capital goods or as parts of capital goods and not as consumables and therefore, SION should not apply - There is nothing on record to show that they are either spare parts or they were capital goods - Capital goods get used again and again over a long period of time and spares are some parts which require replacement in capital goods - The gang saw blades and steel grits are neither capital goods nor are they spare parts - These are used with capital goods in process of manufacture - However, they do not enter final product but do get consumed in process of manufacture either in one or a few cycles - Therefore, steel grits and gang of blades in dispute are consumables in this case and are neither capital goods nor inputs - In exemption Notfns there may be conditions which must be fulfilled prior to clearance of goods and conditions which must be fulfilled after their clearance - Standard input output norm (SION) have to be calculated as 5% of FOB value of exports - The fulfilment of this condition can, therefore, be ascertained only after exports have been made - Therefore, at the time of import, it is impossible for anyone to anticipate how much will be the value of exports and if this condition of Notification will be violated - When issuing SCN Department calculated the FOB value of export, value of steel grits imported and value of saw blades imported and calculated the excess value of imports - Duty has been demanded only on that amount - Therefore, no force found in submissions made by appellant that demand is time barred because course of action arose only after appellant completed its export and value of such exports was known - Appellant should have on its own, paid the duty in fulfilment of its obligation under the bond or under undertaking but has failed to do so and, therefore, SCN was issued in terms of section 28 read with bond and legal undertaking - Appellant is, therefore, liable to pay duty - Consequently, appellant is also liable to pay interest as applicable under section 28AB of the Act - In so far as imposition of penalty under section 112 is concerned, while SCN proposed that imported goods were liable for confiscation under section 111(o), O-I-O as well as impugned order have not held that imported goods were liable for confiscation - Confiscation or liability of confiscation of goods under section 111 is a necessary pre-condition for imposition of penalty under section 112(a) - Since there was no order of confiscation of goods in order, no penalty could have been imposed under section 112 - The penalty under section 112 is set aside - Insofar as appellant's contention that if it had paid customs duty it would have been entitled to CENVAT credit to the extent of additional duty of customs is concerned, availability of CENVAT Credit does not take away the taxability - Otherwise, no manufacturer ever has to pay additional duty of customs because he would eligible for CENVAT credit of the amount so paid but such is not the scheme of law - If appellant is entitled to take CENVAT credit as per CENVAT Credit Rules, it may take such credit - Insofar as appellant's claim that calculation of duty was done wrongly as it had to be done reckoning a three year period is concerned, matter remitted to original authority for limited purpose of calculating the amount of duty payable as per SION norms read with DGFT Circular No. 10-2009/14 : CESTAT
- Appeals disposed of: DELHI CESTAT
2023-TIOL-171-CESTAT-DEL
S R Ingots Pvt Ltd Vs CCE & Customs
CX - The appellant M/s S R Ingots Pvt Ltd. engaged in manufacture of iron and steel products - The other appellant Shri Sanjay kumar Goyal is Director of appellant company and responsible for all day to day activities and particularly looks after sale, purchase and liaisoning - During search in premises of another manufacturer, namely, Pankaj Ispat Limited, there appeared certain discrepancies like shortage MS ingots, bar and sponge iron - The search in said premises resulted in recovery of several incriminating documents showing unaccounted purchase and sale of finished goods - A SCN was issued on appellants, alleging clandestine removal by them to Pankaj Ispat - Further penalty was proposed on director of appellant company- Shri Sanjay Kumar Goyal under Rule 26 - The Tribunal in Ramniwas Ispat pvt Ltd. and ors. 2018-TIOL-2547-CESTAT-DEL under similar facts and circumstances of alleged clandestine clearance to Pankaj Ispat, have allowed the appeal holding that demand and penalty is not sustainable on the basis of third party evidence, in absence of any corroborative evidence/ admission on the part of assessee - There is lack of sufficient evidences or corroborative evidences in support of allegations of Revenue - Further, following the said precedent decision, impugned order is set aside: CESTAT
- Appeals allowed: DELHI CESTAT
2023-TIOL-170-CESTAT-AHM
Yug Marketing Pvt Ltd Vs CCE & ST
CX - Issue involved is that whether Poly Vinyl Acetate Emulsion cleared by appellant is of 1 kg each or 20 kg and whether same is classifiable under CETH 3905.10 or 35.06 and consequently liable to duty under Section 4A of Central Excise Act, 1944 - Considering the decision in appellant's own case, it is held that classification of product Poly Vinyl Acetate Emulsion weighing more than 1kg has to be done under Chapter 39 - In present case, there is a dispute about package that whether the same should be taken as one pack of 20kgs or twenty packs of 1kg. - Even in case of 1kg, as per Tribunal's order, the only package which is more than 1kg will fall under Chapter 39 - Due to lack of clarity on the issue of packages, matter remitted back to adjudicating authority for afresh order after sufficient opportunity to appellant to establish about actual weight of the package and then to decide the classification: CESTAT
- Matter remanded: AHMEDABAD CESTAT |
|
