2023-TIOL-286-CESTAT-DEL
Vijay Anand And Associates Pvt Ltd Vs CCE & CGST
CX - Issue arises for consideration is, w hether the assessee is entitled to interest on the amount of Rs 10,00,000/-, as was deposited by them during investigation at the instance of visiting officers of Central Excise from date of deposit till the date of disbursement of said amount - Apex Court has settled this issue in case of Sandvik Asia Ltd. 2006-TIOL-07-SC-IT holding the assessee entitled for interest on refund of amount which he was not liable to pay to Department from that date of deposit itself - Section 11B of CEA is not applicable to such revenue deposits - It is further observed, as has been brought to notice, that Department since the time of issue of SCN have been acknowledging that amount in question is neither the amount of duty nor the amount of pre-deposit, said acknowledgement is sufficient to hold that appellant was definitely entitled for interest on said amount but not in accordance with section 11B/11BB of Central Excise Act, 1944 - Accordingly, it is held that Commissioner (A) has wrongly involved the said provision while restricting entitlement of appellant for claim of interest - Appellant is entitled for interest @ 12% per annum from the date it was deposited i.e. w.e.f. 31.08.2009/ date of clearance of cheque for said amount of Rs 10 lakh - The amount in question was not a duty deposit but was Revenue deposit, Government has retained said amount over long years, as such assessee is held entitled for interest as compensation on the amount of interest already awarded however, @6% from the date of impugned O-I-A till its disbursement - Order under challenge is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-285-CESTAT-MAD
CC Vs Mehra Eyetech Pvt Ltd
Cus - The assessee filed claim for refund of 4% CVD in respect of various Bills of Entry, as per Notfn No 102/2007-Cus as amended - The Original Authority sanctioned the refund - On appeal, the Commr.(A) dismissed the Department's appeal on grounds of time bar - Hence the present appeal - The main argument put forward by the Department is that when the period of three months is computed from the date of receiving the Order-in-Original by the reviewing authority, the review orders passed are well within time. As per Sub Section (2) of Section 129 D of Customs Act, 1962, the review authority has to examine the decision or order passed by adjudicating authority so as to satisfy the legality or propriety of such decision or order and has to pass a review order directing the department to prefer an appeal before the Commissioner (Appeals). Held - Tribunal not able to understand why the Department failed to point out the date seal of the Reviewing Authority before the Commissioner (Appeals) - The very same facts and issue came up for consideration before the Tribunal in other appeals filed by the Department - Hence the O-i-A is sustained: CESTAT
- Appeal dismissed: CHENNAI CESTAT
2023-TIOL-284-CESTAT-AHM
Ishwar Construction Company Vs CCE
ST - The limited issue is that in case of deposit made by appellant during investigation for refund of the same whether appellant is entitled for interest - Adjudicating Authority allowed the interest @ 6% on 7.5% of total service tax amount, relying upon CBEC Circular 984/8/2014- CX - Appellant have paid Rs. 25 Lacs Suo moto during investigation of case way back in January and February, 2007 - Therefore, amended provision of Section 35F /35FF prevailing in 2014 is not applicable in the case of any deposit made prior to enactment of Finance Act, 2014 - The Circular was also issued with reference to new provision of Section 35F/35FF therefore Adjudicating Authority has gravely erred on applying said Circular - Commissioner (A) has decided the appeal against an appealable order passed by Adjudicating Authority, non issuance of protective SCN does not create any estoppels to Commissioner (A) for passing the O-I-A - Recovery of erroneous refund is separate proceeding which is not the subject matter in present appeal - Therefore, same cannot be dealt with in this case - This is not the case of recovery of erroneous refund whereas Revenue before Commissioner (A) had challenged sanction of interest - Commissioner has correctly held that appellant is not liable for interest in terms of Section 35F - Accordingly, no infirmity found in impugned order, hence same is upheld: CESTAT
- Appeal dismissed: AHMEDABAD CESTAT
2023-TIOL-283-CESTAT-AHM
CCE & ST Vs Charotar Gas Sahakari Mandali Ltd
ST - Revenue is in appeal against dropping of demand of cenvat credit availed by assessee on transportation charges paid to GSPL - Assessee is purchasing gas from GSPC and receiving the same through network of pipeline of GSPL - Assessee is paying service tax on services of transportation of gas from GSPC to their premises - Said gas is sold by assessee to various customers and supplied through network of pipelines - It is quite clear that assessee is engaged in trading activity i.e. buying and selling of gas - Network of supply from assessee to customer is an independent network which is not owned by GSPL - They are also engaged in promoting sales of CNG pumps and paying service tax on service charges received for said sale promotion from CNG pumps - The Commissioner has relied on decision of Tribunal in case of Convergys India Pvt. Ltd 2009-TIOL-888-CESTAT-DEL and observed that value of transportation is recovered from customers - It is apparent that value of transportation is recovered from customers who buy the gas from assessee - The value of transportation of gas is included in cost of gas sold by assessee - No service tax or excise duty is levied on the cost of gas sold and therefore there is no cascading effect of service tax if the credit of service tax is denied to assessee - Impugned order has not examined the issue of limitation and second demand relating to utilization of said credit for payment of service tax - Consequently, impugned order is set aside and matter is remanded to Commissioner for fresh adjudication: CESTAT
- Matter remanded: AHMEDABAD CESTAT |
