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2023-TIOL-321-CESTAT-DEL
Pr.CC Vs Harish Plastics
Cus - Demand in dispute is regarding past consignments which were already cleared as per declared values by assessee - The assessment, therefore, attained finality - Once the assessment attained finality, it can be either appealed against to Commissioner (A) by either side or a notice under section 28 can be issued by Revenue - While appeal to Commissioner (A) can be for any aspect of assessment, a notice under section 28 can be issued only to recover duty not paid, short paid or erroneously refunded or not levied and it can be issued only by "the proper officer" - SCN was issued invoking extended period of limitation and there is not even any allegation of collusion or suppression of facts and only allegation is of willful mis-statement of value by assessee, which was inferred from his statement - If SCN is issued alleging non-payment or short payment of duty, the basis of such an allegation must be on sound footing, backed by evidence - There is nothing in SCN and in grounds of appeal which shows that declared value was incorrect apart from statements - The statements only show that assessee was ignorant of many factors, but it does not establish that assessee had mis-declared the value - It is also evident that there was no chemical analysis report nor was any sample drawn to allege mis-declaration of nature of goods - Tribunal do not find even a shred of evidence in this case to confirm the demand as proposed in SCN - Therefore, Joint Commissioner was correct in dropping SCN and Commissioner (A) was correct in upholding decision in impugned order - As far as deposit of Rs. 10 lakhs by assessee during investigation is concerned, it can only be called as deposit - The mere fact that some amount has been deposited during investigation does not establish in any way the case of Department - Since the assessee has succeeded, amount so deposited should have been refunded to him, if it has not already been refunded - Impugned order is upheld: CESTAT
- Revenue's appeal dismissed: DELHI CESTAT
2023-TIOL-320-CESTAT-DEL
H C Buildcon Pvt Ltd Vs CCE & CGST
ST - The issue that arises for consideration is as to whether completion certificate for Mall had been issued before July 01, 2010 because in that case no service tax would be leviable - Appellant had received the amount after issue of completion certificate - Appellant laid emphasis on certificate issued by Architect certifying that building had been completed as per approved plans as also upon certificate issued by Regional Manager of RIICO stating therein that construction carried out by appellant was as per sanctioned plan and RIICO norms and building could be used for commercial activities as per terms and condition of allotment - In regard to certificate issued by Architect, Commissioner (A) rejected the plea of appellant for the reason that Removal of Difficulty Order 2010 would be prospective in nature and would not help the appellant because certificate was issued by Architect on August 12, 2009 - Since it is a Removal of Difficulty Order, Commissioner (A) was not justified in holding that it would be prospective in nature - Benefit of certificate issued by Architect would come to the aid of appellant - Appellant had stated that construction of shopping mall named "Capital Mall" was completed on allotted premises ad measuring 9996 sq. mtrs. and therefore, RIICO should issue letter of approval for using Capital Mall for business activities - Commissioner (A) was therefore, not justified in placing reliance upon subsequent statement made by an officer of RIICO that said letter should not be read as a completion certificate - Thus, in either view of matter, completion certificate has been issued to appellant before July 01, 2010 - The payments were received by appellant after completion certificate was issued to them - They could, therefore, not be subjected to levy of service tax - The impugned order passed by Commissioner (A), therefore, cannot be sustained and is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-319-CESTAT-DEL
Core Fab Projects Pvt Ltd Vs CCT, CE & C
CX - The issue involved is, whether the value of drawing/design provided to appellant for fabrication of steel structure by their customers, is required to be included in transaction value in terms of Rule 6 of CEVR, 2000 - Adoption of 10% towards value of design/drawing had already been rejected by Tribunal in its earlier final order - Secondly, Revenue itself had accepted 0.025% towards value of drawings and designs, under same facts and circumstances, for subsequent period vide O-I-O, which has attained finality - Accordingly, impugned order is modified to the effect that 0.025% shall be considered on the value of goods towards drawing and design charges for purpose of valuation in terms of Rule 6 of Valuation Rules - Appellant shall be liable to pay penalty under section 11 AC of amount of additional duty calculated as per this order - The impugned order stands modified: CESTAT
- Appeal allowed: DELHI CESTAT |
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