|
2023-TIOL-397-CESTAT-MAD
Miramed Ajuba Solutions Pvt Ltd Vs CST
ST - The issue involved is, whether refund claims filed by appellants are time-barred in terms of provisions of Section 11B of CEA, 1944 r/w Notification No. 27/2012-CE (NT) - Issue of limitation/Time bar in impugned order stands settled in favour of appellants in view of Larger Bench decision in case of Span Infotech Pvt. Ltd. 2018-TIOL-516-CESTAT-BANG-LB - Lower adjudicating authority rejected a portion of refund claims for the reason that they are not eligible for availment of Cenvat credit under Cenvat Credit Rules, 2004, on account of missing invoices, excess credit wrongly taken, not being related to output service, non-mentioning of service provider's registration number on input/input service invoices - Appellant has submitted that these invoices are actually available but due to omission missed out to be attached at the time of filing refund claims and they had submitted all the copies of those invoices before lower adjudicating authority - But lower adjudicating authority have not taken them into consideration and proceeded to reject the refund claims - Appellant has also argued that proper way to recover ineligible credit is by resorting to Rule 14 of CCR read with Section 73 of Finance Act and not during the time of scrutiny of refund claims - In the grounds of appeal, appellant have admitted that certain excess credit was wrongly taken by them amounting to Rs. 7,819/- and a few invoices involving a credit of Rs. 1,91,935/- were not submitted which were categorized as missing - Appellant is required to reverse this input tax credit as admitted by them - Denial of refund claims filed is not in accordance with law and as such impugned order is set aside: CESTAT
- Appeals allowed: CHENNAI CESTAT
2023-TIOL-396-CESTAT-DEL
Anjana International Industries Vs Pr.CC
Cus - The appellant had imported Paddle of canoes - The goods are manufactured out of carbon fibres with wooden handle - The appellant sought to classify the goods under the heading 9506 29 00 - In one order the Revenue has classified the goods under the heading 89039910 and as parts of canoes and in the order order in second appeal the goods have been classified as paddles for canoes under the heading 6815 10 90.
Held - The appellant have imported paddles of canoes made of carbon fibres - Canoes are classifiable under heading 89039910 - It is seen that parts and accessories (except hulls) are not classifiable under Chapter 89 - In this background the classification of paddles, which are part of canoe and also its means of proposition, under Chapter 89 is ruled out - Revenue has classified the same under Chapter 89 in Customs Appeal No. 50179 of 2020 - The said order classifying the goods under Chapter Heading 89039990 cannot be sustained in view of aforesaid chapter note. Therefore, the order impugned in Customs Appeal No. 50179 of 2020 is set aside: CESTAT
Held - In Customs Appeal No. 51051 of 2020, the goods are sought to be classified under Chapter Heading 6815 1090 by the Revenue - In appeal the goods are sought to be classified under Chapter Heading 9506 2900 - Chapter note 1(p) of Chapter 95 excludes means of propulsion from Chapter 95 and puts it in chapter 44, if they are made of wood - Chapter Note 1(p) to Chapter 44 excludes 'toys, games, sports requisites' from chapter 44 and places them in chapter 95 - Combined reading of Chapter 1(p) of Chapter 95 and 1(p) of Chapter 44 clearly implies that "means of propulsions" of sports crafts such as "canoes and skiffs" would be excluded from Chapter 95 and would fall under the Chapter relevant to the material of which the same are made of - It also becomes apparent that the "paddles" (means of propulsion) do not get covered by the description "toys, games and sports requisites" appearing in above mentions Chapter Notes - In the above background we hold that the goods are correctly classifiable under Chapter Heading 68151090 - The Customs Appeal No. 51051 of 2020 is dismissed: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-395-CESTAT-KOL
Khaitan Electricals Ltd Vs CCE
CX - The Appellant were having three units at (1) Kolkata (2) Hyderabad & (3) Faridabad - It is engaged in the manufacture of electrical fans classifiable under subheading 8414 of Central Excise Tariff Act, 1985 - In the month of February 2010 they were required to make payment of Rs.58,40,599/- within 6th March 2010 - They made the payment, but inadvertently in the payment documents, the code number was not correctly written - By mistake code number of Hyderabad unit was written instead of Kolkata Unit in the GAR-7 Challan - This mistake was detected by the Appellant subsequently and then they themselves took up the matter with the Deputy Commissioner of Central Excise, Taratala Division - However, at the instance of the Department, the Appellants made payment again of the aforesaid amount of Rs. 58,40,599/- on 25.08.2010 and 26.08.2010 - Since the said payment was made again through PLA, the Department initiated the proceeding by issuing a Show Cause Notice dated 01.12.2010 for realization of the amount of Central Excise duty paid by utilizing the CENVAT Credit account during the period from 06.03.2010 to 26.08.2010 - The Appellants utilized the CENVAT Credit and Cess to the tune of Rs.4,50,39,736/- and an amount of Rs.89,35,000/- was paid from CENVAT and PLA account respectively - The SCN demanded the said amount paid from the CENVAT account along with interest for the account paid from PLA as well - Proposal for imposition of penalties were also made - The whole issue is whether the payment made mentioning the wrong assessee code number in the Central Excise account is not considered as any payment - Several submissions were made in the reply to the Show Cause Notice, but the Commissioner assuming the aforesaid payment as non-payment and proceeded on and passed the order confirming the demand.
Held - The whole issue involved in this case is whether the Appellant has defaulted in making monthly payment of duty and whether the provisions of Rule 8(3A) can be invoked in such a situation - We find from the records that the Commissioner failed to appreciate that the Appellants had three units at Kolakta, Hyderabad and Faridabad - For the month of February the appellants were required to make payment with 6th March 2010 and while making such payment for the March 2010 for an amount of Rs.58,40,599/- from their Kolkata unit from PLA code number of Hyderabad unit was wrongly mentioned in the GAR-7 Challan and as a result the amount though deposited, but under a wrong assessee code number - It is the submission of the Appellants in their grounds of appeal that mentioning of the wrong code number was through inadvertence by the person, who was handling the e-payment matters - On detection of the mistake the Appellants brought the matter to the notice of the Deputy Commissoiner of Central Excise, Taratala-II Division intimating that the total amount of Rs. 58,40,599/- was paid against the GAR-7 Challan dated 05.03.2010 and 06.03.2010 - It was categorically submitted that there was a mistake in mentioning the assessee code number in e-payment documents pertaining to the payment for the month of February 2010. This mistake was also subsequently intimated to the Commissioner. It is also the case of the Appellant that merely because payment was made putting wrong code number, it cannot be said that the payment was not made - Vide Board's Circular No. 58/7/2003-ST , dated 20.05.2003 it was clarified that even though payment is made by putting wrong code number, the assessee should not be asked to pay again and even if assessee has paid again, the earlier payment shall be refunded - We find that the Tribunal in the case of Gualala Closure (I) Pvt.Ltd. v. CCE Daman held that an amount deposited under different heads in TR-6 Challan of the cost accounting problem, but since admittedly the Appellants paid the duty under different code, will not be held liable for making the payment again and the entire exercise would be revenue-neutral and accordingly the demand of interest and imposition of penalty is uncalled for - The facts and circumstances of the case, the Board's Circular and the decision of the Tribunal show that making the payment of duty quoting wrong code number cannot be considered as non-payment and in such a situation, the proceeding initiated by the Commissioner is unwarranted - The demand in the instant case has been raised for contravention of Rule 8(3A) restricting utilization of Cenvat credit during the period of default which provision has been declared ultra vires by Court, hence the demand cannot be sustained and the Appeal, thus, succeed on this count: CESTAT
- Appeal allowed: KOLKATA CESTAT |
|
