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2023-TIOL-231-CESTAT-DEL
Warm Forgings Pvt Ltd Vs CCE & CGST
CX - The issue to be examined is, whether appellants have clandestinely manufactured and cleared excisable goods without payment of excise duty - Investigations were carried out by Department at the factory premises of appellant where documents such as challans and registers were recovered - On co-relating the goods cleared under various challans with invoices, it was gathered that no invoices were issued in respect to goods cleared under said challans - It also did not show that they have been used for sending material out of the factory for job work as they did not have any description of job worker or nature of job work - Appellant maintained two sets of outward registers, one with details of goods cleared under invoices and other under cover of challans - Director of unit in his voluntary statement under section 14 of CEA, 1944 admitted that challans were cleared without issuing invoices and CE duty was leviable on those goods - In view of specific admissions nothing further was required to be proved by Department and also recovery of challans during visit of factory clearly proves that goods so manufactured were clandestinely cleared from factory under guise of job work on which no Excise duty was paid - Invoking the extended period of limitation as appellant willfully and intentionally suppressed material facts of clandestinely manufacturing and clearing finished goods, without issuing proper invoices, without maintaining statutory records and without filing statutory returns so as to avoid imposition of excise duty, demand under SCN is well within the time limit of five years under proviso to then section 11A(1) now section 11A(4) of CE Act, 1944 - In view of contravention of provisions of CEA, 1944 and Rules made thereunder, penalty under section 11AC is confirmed - Similarly, personal penalty imposed upon Director of the unit under Rule 26(1) of Central Excise Rules, 2002 needs to be upheld as he was responsible for clandestine manufacture and removal of goods as is evident from documents recovered during search which stands corroborated with his statements - He admitted the duty liability on goods manufactured and cleared from his factory - Decision of adjudicating authority is confirmed: CESTAT
- Appeals dismissed: DELHI CESTAT
2023-TIOL-230-CESTAT-KOL
Oil India Ltd Vs CCE & ST
CX - Present case is one where service providers (i.e. NOMC and Haliburton) as also service recipient (appellant) have discharged Service Tax on same transaction and each party has deposited said tax with Department - Department has received amounts in question twice over and there is no inter-se reimbursement of said tax between the parties - Though contractually it was service providers who were to discharge tax, since they had establishments in India and then recover the same from appellant, appellant entertained a view that it was supposed to discharge Service Tax on reverse charge and directly paid the same to Department - The record also indicates that communications were exchanged between branch offices and appellant - Moreover, labour force to carry out concerned work was also sourced domestically - Tribunal in case of Nagarjuna Oil Corporation Ltd. 2016-TIOL-2301-CESTAT-MAD has held that when branch offices of foreign service providers obtained registration and discharged Service Tax in India on transaction in question, service recipient located in India was not required to discharge the same on reverse charge - Appellant was not required to discharge Service Tax on reverse charge on said transaction and it did so under a mistake of law - It is concluded that statutory limitation period prescribed under Section 11B is not applicable to refund claimed by appellant since the amount paid by them is not a tax - Appellant in its ledger accounts first discharged Service Tax and thereafter appended certain notings in front of said amounts stating "on hold" - It is also clear that the amounts have not been expensed out as appellant is awaiting the outcome of litigation - Hence, amount of Service Tax paid cannot be said to have been passed on to anyone - Moreover, Ministry of Petroleum vide clarifications dated 1.05.2009 and 25.03.2011 has held that refineries are only liable to discharge Sales Tax and Pipeline Transportation Charges - There is no mention of Service Tax in the same - Service Tax paid by the appellant never formed part of crude oil sold by appellant - Appellant shall be entitled to refund amount along with interest: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-229-CESTAT-HYD
Lupin Ltd Vs CCT & CC
ST - The issue relates to rejection of refund claims - Amount of refund for Krishi Kalyan Cess is rejected, following the ruling of larger bench in case of Gauri Plastic Culture Pvt Ltd. 2019-TIOL-1248-HC-MUM-CX-LB wherein it was held that a non-utilised portion of Cenvat credit cannot be claimed as refund in cash, distinguishing the ruling in Slovok India Trading Company , as not a declaration of law under Article 141 of Constitution - So far the amount of Rs. 4,15,012/- is concerned, rejection of same is upheld as admittedly credit was taken beyond a period of 12 months from date of invoice/bill of entry - So far the balance amount of refund is concerned, appellant have rightly taken credit in view of Rule 2(l) of CCR, 2004 which entitles a manufacturer to claim Cenvat credit on input services utilise in manufacture of dutiable taxable goods - There is no bar in cross utilisation of Cenvat credit once taken, either for payment of Central Excise duty or service tax, in view of the provisions of Rule 3 or 4 of CCR, 2004 - Accordingly, Adjudicating Authority is directed to grant refund of balance amount of Rs. 15,37,886/- within a period of 60 days alongwith interest as per rules: CESTAT
- Appeal partly allowed: HYDERABAD CESTAT
2023-TIOL-228-CESTAT-MAD
Sara Leather Industries Vs CCE & ST
ST - A SCN was issued to appellant demanding service tax on commission paid to foreign agents during period 09.07.2004 to 30.09.2007 - Appellant has argued on merits of case as well as on the ground of limitation - On perusal of records, it is found that in paragraph 10 & 11 of impugned order, it has been categorically held by Commissioner that there is no suppression of facts - The proposal to impose penalty has also been dropped holding that there was no suppression of facts and that non-payment of service tax was due to bonafide belief that the amount paid to commission agents is not subject to levy of service tax - Although the Commissioner had rendered a finding that there is no suppression of facts with intend to evade payment of tax, demand for the extended period has been confirmed - Such confirmation of demand is not legal and proper and requires to be set aside - Appellant succeeds on the ground of limitation - Impugned order is set aside on the ground of limitation: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-227-CESTAT-MAD
Chemplast Sanmar Ltd Vs CC
Cus - The appellant had contended before authorities below that as per Section 83 (3) of Chapter VII, Section 83 (5) of Chapter VII of Finance Act, 2010, Section 94 of Finance Act, 2004, Section 138 & Section 139 of the Finance Act, 2007 read with Notfn 28/2010-CE and No. 29/2011-CE, imported coal would not attract Customs Education Cess and Higher Education Cess; that the adjudicating authority had erred by including clean energy cess component with Basic Customs Duty for purpose of calculation of Customs Educational Cess and Higher Education Cess - Issue stands covered in appellant's own case 2018-TIOL-1754-CESTAT-MAD which was disposed with a batch of other cases by Tribunal - Following the same, no merit found in these appeals: CESTAT
- Appeals dismissed: CHENNAI CESTAT |
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