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2023-TIOL-194-CESTAT-MAD
Abisha Leathers Vs CC
Cus - Appellant filed a Shipping Bill for export of 37 cartons of "Goat Shoe Suede Upper Leather" of four different colours - A sample was drawn and sent to Central Leather Research Institute (CLRI) for their expert opinion - On the basis of CLRI report that exported leather was not conforming to definition of finished leather, after due process of adjudication, consignment was confiscated - As the consignment was allowed for export on the basis of an undertaking bond, exporter was allowed redemption on payment of fine of Rs. 50,000/- - Further, export duty of Rs. 3,65,149/- was demanded and a penalty of Rs. 10,000/- was imposed on exporter - A perusal of DGFT's Public Notice indicates that shaving and snuffing operations are the last in the manufacture of Suede Leather - Shaving is a mechanical operation of reducing the substance of leather to uniform thickness - Moreover, snuffing is the process of buffing for removal of visible grains - Thus, these are different processes to be carried out in manufacture of finished leather - It is noteworthy to mention that shaving and /or snuffing are mentioned at Sl. No. 13 which are not prescribed as one of the minimum operations to be carried out in manufacture of suede leather - Shaving/snuffing as used in DGFT's Public Notice to mean shaving or snuffing - As all the major manufacturing operations are carried out on impugned goods, same could not be termed as unfinished goods - The fact of buyer accepting the goods and making payment, ordering further quantities and terming only 13 cartons of suede leather of grey colour as unfinished leather when 24 cartons of other colours of the same consignment as finished leather have weighed in mind - Tribunal have also considered the decision rendered in case of M. Aslam Aejaz & Co. to the effect that minor deficiency in processing may not ipso facto make the leather as not fully finished as appellant's have carried out all the major operations - Impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-193-CESTAT-MAD
Mak Controls And Systems Pvt Ltd Vs CCE & ST
CX - Appellant filed claim for refund of central excise duty in regard to "Service Air Trolley" (SAT 300) supplied to Indian Air Force - It is the case of appellant that though the invoices mentioned central excise duty on goods supplied, they have not collected duty from buyer as goods are exempted from central excise duty - It is contended that duty incidence has not been passed on to buyer - A SCN was issued to appellant proposing to reject the refund claim mainly on ground of unjust enrichment - Undisputedly, appellants have mentioned excise duty in invoices - Then presumption envisaged in Section 12B of Central Excise Act, 1944 is attracted - However, this presumption is a rebuttable one - It is for appellant to establish that they have not collected duty from the buyer - Appellant has furnished a certificate from buyer to show that price in supply order is without including excise duty - Appellant has now produced Certificate issued by Chartered Accountant along with relevant Financial Statement, to establish that incidence of duty has not been passed on to buyer - However, these documents require verification as these were not presented before authorities below - Matter remanded to original authority, who shall consider the issue of refund afresh on the basis of documents including CA certificate and audited financial statement produced by appellant - Appellant shall be given an opportunity of personal hearing: CESTAT
- Matter remanded: CHENNAI CESTAT
2023-TIOL-192-CESTAT-MUM
CEAT Ltd Vs CCE
CX - Appellants used capital goods such as MS Angles, Beams, Plates and channels - It appeared to Revenue that CENVAT Credit on same was not admissible to appellant - It is found from SCN that wordings "M/s CEAT Ltd. are using such capital goods i.e. MS Angles, Beams, Plates, Channels" indicates that said goods were treated as capital goods by Revenue while issuing SCN - High Court of Gujarat in case of Mundra Port 2015-TIOL-1288-HC-AHM-CX has held that judgment of Larger Bench of Tribunal in case of Vandana Global 2010-TIOL-624-CESTAT-DEL-LB was not a good law - Therefore, by following the observation of High Court, appellant is allowed to avail CENVAT Credit in respect of the goods stated above: CESTAT
- Appeals allowed: MUMBAI CESTAT
2023-TIOL-191-CESTAT-MUM
Quantum Advisors Pvt Ltd Vs CCGST & CE
ST - Appellant is a Portfolio Manager and having Service Tax registration under category of Banking and Financial Services - For four quarters, they filed four applications for refund of unutilized CENVAT Credit under Notification No. 27/2012-C.E. (N.T.) issued under Rule 5 of CCR, 2004 since they were not in a position to utilize left over CENVAT Credit for discharge of duty - Part of their refund claims were allowed and part of the refund claims were rejected stating that CENVAT Credit in respect of such rejected amounts are not admissible to appellants - Issue is covered by decision of Tribunal in case of M/s M & G Global Services Pvt. Ltd. wherein it is held that when CENVAT Credit is availed by assessee so long as the same has not been recovered by proceedings initiated by invocation of Rule 14 of CCR, 2004, such credit remains on books of accounts of assessee and he can utilize the same in manner provided by law - There was no initiation of proceedings to recover alleged inadmissible CENVAT Credit by invocation of provisions of Rule 14 of CENVAT Credit Rules, 2004 - Therefore, by following said decision, it is held that the appellants were entitled for refund of CENVAT Credit which was rejected to them: CESTAT
- Appeals allowed: MUMBAI CESTAT
2023-TIOL-190-CESTAT-AHM
Gujarat Insecticides Ltd Vs CCE & ST
ST - Demand was confirmed under head of Management, Maintenance & Repair Service as per section 65(105)(zzg) of Finance Act, 1994 - The principal manufacturer M/s GCL has supplied input and packing material to appellant under Rule 4(5)(a) of Cenvat Credit Rules, 2004 - Activities carried out by appellant is of manufacture of excisable goods on job work basis - The principle manufacturer is under legal obligation to discharge excise duty on job work goods received by them from appellant - Activities at the most can be classified under sub clause of production or processing on behalf of client under business auxiliary service - Firstly, when the principle manufacturer and appellant as job worker complied with conditions prescribed under Notification No. 08/2005-S.T. even if it is treated as business auxiliary service same is exempted under said notification - Secondly, when demand was raised under Management, Maintenance & Repair Service and it is not the correct classification, demand is not sustainable on this ground itself - Since the plant machinery equipment used for purpose of production belongs to appellant, service is not classified under Management, Maintenance & Repair Service - Further, activities carried out by appellant are undoubtedly production of goods on job work basis on behalf of GCL - This position will not alter irrespective of fact that whether the plant, machinery & equipment are used exclusively for GCL or partly for GCL or partly for others, therefore, on this basis the activity cannot be classified as Management, Maintenance & Repair Service - Activity of appellant is indeed manufacture of excisable goods in terms of section 2(f) of CEA, 1944 - Impugned order as a whole is not sustainable, hence same is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
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