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2023-TIOL-367-CESTAT-KOL
Beekay Steel Industries Ltd Vs CCGST & CE
CX - During the course of audit of the records of the Appellant, it appeared that they availed irregular CENVAT Credit on the basis of invoices/debit notes issued by TSL - It was alleged that such credit was taken without having actually received the goods - It is the case of the Department that such supplementary invoice/debit notes issued by TSL appeared to be not a vlaid document for the purpose of availing CENVAT Credit - For this it was stated that the goods were not received along with these documents and the documents did not contain all the information required under Rule 11 of the Central Excise Rules, 2002 - Such as the number of original invoices and Sl.No. of PLA or GAR -7 challan No. and date by which the duty have been paid. Since the differential duty paid by TSL were not their monthly duty liability - It was further alleged that no evidence that billets received from TSL were under provisional assessment since 'under provisional assessment' had not been mentioned in any invoice issued by TSL - Prior to issuance of the SCN the Appellant have been asked to reverse the credit irregularly availed along with interest - It is the case of the Appellant that TSL dispatched the goods to the Appellant on payment of duty on cost + 10% as per Rule 8 of Central Excise (Valuation of Determination of Price of Excisable Goods) Rules, 2000. Since actual cost of goods were not known to TSL at the time of dispatch and it was known only in the subsequent month of dispatch, TSL dispatched the goods to the Appellant on estimated cost and subsequently when final cost was known to TSL, they paid the differential excise duty and raised debit notes for the differential duty - On receipt of this debit notes/supplementary invoices, the Appellant availed CENVAT Credit of excise duty, which is under dispute in this Appeal - The Adjudicating authority vide Order-in-Original dated 08.04.2015 confirmed the recovery of irregularly availed CENVAT Credit amounting to Rs.4,93,53,416/- and ordered for payment of interest and also a penalty of equal amount under Rule 15(2) of the CENVAT Credit Rules, 2002 read with Section 11AC of the Central Excise Act, 1944 - The assessee filed appeal before the Tribuanal and the Tribunal vide its order remanded the matter to the original adthority to examine the certificate issued by the Senior manager Accounts (Indirect taxation) on behalf of TSL and allow the credit as may be applicable as per law - The Adjudicating authority vide de novo order. Held - Commissioner has re-adjudicated the dispute which is already settled by the earlier order of this Tribunal in the first round of litigation - Thus, under the Doctrine of Merger, the Commissioner was not correct in re-visiting the issue which was already concluded in the remanded matter by the Tribunal, wherein directions were very specific and the Adjudicating authority was only required to examine the Certificate issued by the Senior Manager Accounts (Indirect Taxation) on behalf of TSL since it was not submitted before the Adjudicating authority during adjudication. In this view of the matter we find that the denovo order passed by the Adjudicating authority is hit by Doctrine of Merger as he has gone beyond the directions or findings of this Tribunal in the earlier round of litigation - Hence, the impugned order cannot be sustained and is therefore set aside - The appeal is allowed: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-366-CESTAT-AHM
Unique Health Care Products Vs CCE & ST
CX - Assessee is in appeal against demand of reversal of Cenvat Credit on removal of capital goods - The capital goods on which credit was availed, has been removed after some use - It is noticed that Rule 3(5) and Rule 3(5A) of Cenvat Credit Rules, 2004 deal with obligation of a personal availing credit when that person removes capital goods on which credit has been availed - There was no Rule for reversal of Cenvat Credit on capital goods cleared after some use - It is noticed that appellant has reverse the Cenvat Credit equivalent to duty on transaction value of capital goods cleared - Since, such reversal has been accepted by Tribunal and High Court in ROGINI MILLS LTD. 2011-TIOL-05-HC-MAD-CX and RAGHAV ALLOYS (P) LTD 2009-TIOL-2478-CESTAT-DEL the reversal sought by revenue at a different rate cannot be accepted: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2023-TIOL-365-CESTAT-HYD
GDC Creative Advertising Pvt Ltd Vs CC, CE & ST
ST - The Appellant is providing advertising services wherein they get the advertising matter from the client which are forwarded to various channels like TV, Print media, etc - On the gross amount charged for such advertising, the Appellant gets 15% commission on which they are discharging the Service Tax - Apart from this, the Print media or TV media also gives certain incentives based on the turnover generated by them from the Appellant - The Department has taken the view that Service Tax is required to be paid even on such incentives received by the Appellant from the media - The demand of Rs.16,93,034/- was confirmed at the lower levels. Held - The very issue as to whether the incentives received by the Advertising Agency from a third party i.e., Media as incentive is liable for Service Tax payment or not has been gone into in a considerable detail by the Tribunal in the case of Grey Worldwide (I) Pvt Ltd wherein it was held that the Tribunal has been consistently taking the stand that incentives received by an advertising agency from the media without any contractual obligation to render any service cannot be levied to service tax under the category of BAS - Hence it was held that the demands on the amounts received from the media cannot be levied to service tax under BAS - With regard to the amount of write backs, it was held that there were amounts which were yet to be claimed & hence also could not be construed as consideration received towards services rendered - Following such findings, the demands raised in the present case merit being set aside: CESTAT
- Appeal allowed: HYDERABAD CESTAT
2023-TIOL-364-CESTAT-DEL
Sr Commandant Central Industrial Security Force Vs CC & CE
ST - Appeal filed against impugned order passed by Commissioner (A) to the extent it holds that appellant would be liable to pay service tax with interest - The allegations against appellant was that it was discharging service tax liability on consideration received towards salary and allowance, but it did not discharge service tax on non-monetary consideration such as free accommodation, medical facilities, vehicle and telephone insurance and stationery and other expenses for period April 2009 to March 2012 - For the reasons stated in decision of Tribunal in Bharat Coking Coal Ltd. 2021-TIOL-551-CESTAT-KOL , with which Tribunal have no reason to differ, impugned order deserves to be set aside - It would, therefore, not be necessary to examine the issue relating to limitation - Thus, impugned order to the extent it has confirmed demand of service tax with interest is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-363-CESTAT-DEL
Tradewell Vs CCE, C & CGST
Cus - Issue involved in appeal is rejection of refund of "SAD" (Special Additional Duty) in part - The part of refund claim of Rs. 1,45,754.45 have been rejected on surmises relying on communication of DRI - This document is not made RUD in SCN - Thus, said communication has got no evidentiary value - Further, appellant have led sufficient evidence that they have sold machines imported under eight bills of entry, in respect of which, refund claim was filed, totalling Rs. 14,35,763.80 - None of the evidence led by appellant before court below, have been found to be incorrect - Accordingly, rejection of the part refund claim of Rs. 1,45,754.45 is set aside - Adjudicating Authority is directed to grant refund of this amount within a period of 45 days alongwith interest: CESTAT
- Appeal allowed: DELHI CESTAT |
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