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2023-TIOL-302-CESTAT-AHM
Bikes Auto Vs CST
ST - Assessee is engaged in trading of automobile vehicle as dealers of vehicle manufacturer - In addition to said trading activity they also carry out activity of helping purchaser of vehicle for arranging loan from financial institution and also arrange for sitting of representatives of financial institution in their premises for purpose of sanction of loan to customers - Case of department is that the service charges received towards said activity of promotion of loan of financial institution is liable to Service Tax under Business Auxiliary Service - The issue on merit is not under dispute as Larger Bench in case of Pagaria Auto Center 2013-TIOL-892-CESTAT-MUM clearly held that the Commission received from financial institution towards sale of their loan product is liable to Service Tax - Accordingly, activity of assessee for sale of loan product of financial institution is taxable - However, appellant have strongly submitted that the demand is time barred - There were contrary judgments on the issue of taxability - Therefore, legal position was not clear, hence it can be convenient view that being complex issue involved interpretation on legal issue, assessee had entertained bona fide belief that their activity is not liable to Service Tax - Due to contrary decisions on issue, Larger Bench has finally resolved the issue in Pagaria Pagariya Auto Center 2014-TIOL-141-CESTAT-DEL-LB - It is a settled law that when there are a contrary views on some legal issue and matter is finally resolved by Larger Bench, no doubt can be raised on the bona fide belief of assesse for nonpayment of Service Tax - Period of demand involved is 2003-04 to 2005-06, however SCN was issued on 23.10.2008 i.e. after almost 2 years - Accordingly, demand is not sustainable on time bar itself - Hence, the demand is set aside only on the ground of time bar: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2023-TIOL-301-CESTAT-AHM
B B Agro Chem Industries Vs CCE & ST
CX - Allegation against appellant is that they have clandestinely removed the goods - Except for theoretical calculation which is not based on any facts, clandestine removal was confirmed - To arrive at conclusion of clandestine removal there should be much more evidences such as physical manufacture of goods, removal of goods from the factory, transportation of goods and sale of goods - Not a single such evidence is adduced by department - Merely hypothetical calculations of quantity for clandestine removal cannot be accepted - Demand merely on the basis of arithmetical calculations cannot be sustained - Appellant have raised serious objection that witnesses' statement were not cross-examined - It is settled law that without conducting cross-examination as provided under Section 9D, no statement can be admitted as evidence - Hence, without cross-examination, statement recorded being not admissible evidence are discarded - Therefore demand of excise duty on alleged clandestine removal is not sustainable - As regards the duty of customs on raw material, in various judgments, a view has been taken that once the duty was demanded on manufactured finished good, s on raw material used therein, customs duty cannot be demanded - As regards the submissions of appellant that demand cannot be sustained on delayed adjudication of SCN, there is inordinate delay of six years in passing adjudication order - Therefore, prima-facie on this issue also appellant has made out a strong case - However, since the entire case is decided on its merit and facts, no order passed on the issue of delay in adjudication - As regards to penalty on partner, once penalty on partnership firm is imposed no separate penalty can be imposed on partners - However, since the demands against partnership firm itself are set-aside, no penalty on partners can be imposed - Impugned orders are not sustainable hence same are set-aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2023-TIOL-300-CESTAT-KOL
CC Vs Ojas International
Cus - Assessee imported old and used worn clothing and two bills of entry were filed covering two consignments of importer - At the time of original assessment, declared value of imported goods was enhanced - Original adjudicating authority ordered confiscation of imported goods for violation of Import Trade Control restrictions and goods were confiscated under Section 111(d) of Customs Act, 1962 - He also imposed redemption fine under Section 125 of the Act @ 30% and personal penalty under section 112 (a) of the Act @ 10.3% - Enhancement of value has been ordered by First Appellate Authority on the basis of concurrence given by importer for such enhancement - There is no challenge to the order of confiscation, but Revenue is challenging quantum of redemption fine and penalty, which stands reduced by Commissioner (A) - Commissioner (A) has ordered reduction of redemption fine and personal penalty on the basis of ratio laid down by Tribunal in case of Omex International 2015-TIOL-582-CESTAT-DEL - The Tribunal has taken the view that redemption fine of 10% and penalty of 5% of value of imported goods, would be appropriate in case of imports violating Exim Policy Provisions - No reason found to interfere with findings of Commissioner (A) on the basis of such decision - Impugned order is upheld: CESTAT
- Appeals rejected: KOLKATA CESTAT |
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