2023-TIOL-226-CESTAT-AHM
Alleima India Pvt Ltd Vs CC
Cus - The issue arises is that whether goods imported by appellant i.e. nickel alloy billets are classifiable under CTH 75051220 or CTH 72189910 - It is observed from note 5 of Section XV that for any material to be classified as nickel alloy, nickel must pre dominate by weight over each of other elements - In instant case weight of nickel is an excess of 60% and therefore there is no doubt that this requirement of Section note 5 of Section XV is fulfilled - Now, issue needs to be decided is if requirement of sub heading 1 (b)(i), 1 (b) (ii) and 1 (b) (iii) have to be satisfied together or independently - There is no "and" appearing between sub heading note 1 (b) (i) and 1 (b) (ii) which itself indicates that it is not necessary to satisfy both the condition prescribed in sub heading note 1 (b) (i) and 1 (b) (ii) - It is also noticed that sub-heading note 1 (b) (i) requires the content weight of cobalt to exceed 1.5% - The sub heading note 1 (b) (iii) requires total content of nickel + cobalt to exceeds 1% - If subheading note 1 (b) (i) is held to be a necessary requirement then sub heading note 1(b) (iii) becomes otiose in so far as if alloy contains cobalt in excess of 1.5% then it will obviously satisfy the condition of Nickel + cobalt exceeding 1 % - In this background also it is seen that sub heading note 1(b) (i), 1(b) (ii), 1(b) (iii) need not to be simultaneously satisfied for purpose of classification of goods as nickel alloy - Nickel predominates in weight being 62.15 to 62.26 % in weight - Iron content ranges from 4.56% to 4.59 %, therefore, sub heading note 1 (b) (ii) stands satisfied - Consequently, goods qualify as nickel alloy in terms of Section note 5 of Section XV read with sub- heading note 1 (b)(ii) of chapter 75 - It is also not disputed by Revenue that said product is commercially also known as nickel alloy and not steel - Therefore goods qualify as nickel alloy under sub heading note 1 (b) (ii) - Consequently, impugned order classifying the goods as steel cannot be sustained and is therefore set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2023-TIOL-225-CESTAT-AHM
Growmore Ceramics Pvt Ltd Vs CCE & ST
CX - A case was booked against appellant for clandestine removal of goods based on certain documents recovered from them and certain statements recorded by Revenue - As regard the demand for year 2000-2001, Commissioner has relied on statements given by buyers to confirm charge of clandestine clearance - Appellants have heavily contested the fact that no cross-examination of buyers was allowed and therefore no reliance on statements can be made - Matter has travelled between commissioner and Tribunal number of times and on earlier occasion the directions of Tribunal were not followed - The direction of Tribunal made in its order dated 26.11.2007, has been followed and relief has been granted by Commissioner to that extent for period 1999-2000 - The order clearly lays down that the amount shown as outstanding recovery amount in one month stands carried forward in next month and actual recoveries made in that month are subtracted - Said order clearly holds that amount shown as a progressive total and has to be treated in that manner - Commissioner has clearly ignored this findings and come to a different conclusion - While doing so he has relied on confessional statements of buyers - No opportunity of cross-examination has been given and test of Section 9D of Central Excise Act has not been passed in respect of these statements - In absence of cross-examination no reliance can be placed on these statements - Impugned order is set aside and matter remanded to Commissioner for determination of duty liability for Financial year 2000-01 in terms of said Tribunal order - The quantum of Interest and penalty for entire period will be re-quantified by Commissioner in remand proceedings: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2023-TIOL-224-CESTAT-AHM
Linde Engineering India Pvt Ltd Vs CCE & ST
ST - Assessee is in appeal against confirmation of demand of service tax on amount claimed by them to the liquidated damages - CBIC has issued a circular 178/10/2022-GST in which it has stated its stand on the issue of taxability of various transactions claimed to be "liquidated damages" - At the time of adjudication by commissioner and hearing before tribunal, this circular was not available on record and therefore, the adjudicating authority could not take benefit of the same - The said circular also clarified the stand of CBIC on the issue of forfeiture of salary or payment of bond made in event of employee leaving the employment before minimum agreed period - Prime facie Para 5(e) of Schedule-II of CGST Act, is identically worded as Section 66E(e) of Finance Act, 1994 - The issue in dispute can be decided in light of said circular - Consequently, impugned order is set aside and matter is remanded to original adjudicating authority to decide the issue afresh: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2023-TIOL-223-CESTAT-AHM
Shanti Construction Company Vs CCE & ST
ST - During audit of records of appellant, it was found that appellant have provided services in respect of Civil Work for terminal of HPCL as a sub-contractor of M/s Bridge and Roof Co. (India) Ltd. - Revenue contended that Board vide Circular 96/7/2007-ST had clarified that sub-contractor is essentially a taxable service provider and they are liable to pay service tax - Accordingly, SCN was issued proposing Service tax demand along with interest and penalty - Issue can be decided on the point of classification alone - Since the works performed by appellant was along with material, demand of service tax should have been raised under taxable category of works contract services - Demand of service tax under head of Commercial or Industrial construction service is not sustainable - Appellant's activity of construction also involved supply of goods/ material - Appellant has acted as sub-contractor - Earlier, there were contrary clarifications by government that sub-contractor is not liable to pay service tax when the main contractor is discharging service tax - Subsequently vide circular 96/7/2007-ST , CBEC has taken a U-turn and withdrawn earlier stand and clarified that sub-contractor is liable to pay service tax - There were contrary judgments on the issue that whether sub-contractor is liable to service tax - Subsequently, matter was referred to Larger Bench - On the disputed issue, it is not only the larger bench decision which settled the law but there were contrary circular of Board on the issue of payment of service tax by sub-contractor - In view of this position, there is no suppression of facts or any mala fide intention to evade payment of service tax on the part of appellant - Further, ground of bona fide belief can be invoked as the main contractor who entered into agreement with ultimate client were charging such client along with service tax as claimed by appellant - There is a reason for bona fide belief in such arrangement regarding non-liability of sub-contractor when main contractor is liable to discharge full service tax - Though the said principle is not applicable against tax liability but the question of invoking extended period is to be answered in favour of appellant - Accordingly, there is no case of fraud, misstatement in non-payment of tax on this activity by appellant and extended period of limitation is not attracted - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
