2023-TIOL-425-CESTAT-DEL
Samyak Metals Pvt Ltd Vs CCE & CGST
Cus - Issue relates to jurisdiction of Deputy Commissioner to reopen the assessment order and review its own order - Secondly, the admissibility of refund claims on the basis of said order - Commissioner (A) had rightly observed that Deputy Commissioner had no jurisdiction to review its own order and reassess the bill of entry once again after the goods were cleared on payment of duty and same was bad in view of decision of Apex Court in Priya Blue 2004-TIOL-78-SC-CUS and in ITC 2019-TIOL-418-SC-CUS-LB - No justification found to interfere with said order and accordingly, Tribunal affirm the view taken by Commissioner - Once an order permitting clearance of imported goods for home consumption is issued, they cease to be imported goods and dutiable goods - Since they are no longer dutiable goods, question of determining the dutiability or amount of duty under section 17, i.e., assessment or re-assessment, ends - Since the appeals are being dismissed on the ground of jurisdiction, no need to dwell on merits of matter or the issue of unjust enrichment which is otherwise covered by decision of Apex Court in Solar Pesticides Pvt. Ltd. 2002-TIOL-57-SC-CX-LB - Thus, all the appeals stand dismissed: CESTAT
- Appeals dismissed: DELHI CESTAT
2023-TIOL-424-CESTAT-DEL
Shrinathji Chemicals Vs Pr. CCGST & CE
CX - The issue which needs to be considered is, whether appellant was entitled to benefit of exemption under Notfn 8/2003-CE - Goods were being sold under brand name "MosGuard" on the basis of technology provided by DRDO/DRDE - As required under MOU, it was indicated on product that they were manufactured with technology of DRDO/DRDE - The name MosGuard is brand name of appellant and not of DRDO/DRDE - Case of Revenue is that since the name and logo of DRDO/DRDE is on products and this name and logo do not belong to appellant, it should be treated as if the goods are being sold under trade mark of DRDO/DRDE - It is not correct to say that goods were being sold under brand name of DRDO - 'MosGuard' is brand name of appellant and not that of DRDO/DRDE - However, goods were manufactured with help of technology transferred by DRDO under MOU and this fact is mentioned on products along with logo of DRDO - This cannot be considered as trade mark in any sense of the term - While explanation paragraph 5 of notification expands the scope of word "brand name" or "trade name" in notification it does specify that the mark, symbol, monograph, lable and signature should be used in relation to specified goods for the purpose of indicating or so as to indicate connection in course of trade between such specified goods and some person using such name or mark with or without any indication of identity of that person - Indication of logo with respect to trade is MosGuard which is owned by appellant itself - The logo and name of DRDO on product indicate relationship between DRDO and technology of product - They do not indicate a relationship between DRDO and trade of the product - The trade of product is indicated by word MosGuard which is not owned by DRDO - Appellant was entitled to benefit of exemption under Notfn 8/2003-CE - Original authority was correct in dropping proceedings in pursuance of SCN and Commissioner (A) was not correct in confirming demand along with interest and imposing penalties - Impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-423-CESTAT-DEL
Quality Builders And Contractor Vs CCE
ST - The appellant applied for refund of service tax of Rs. 1,88,463/- on 02.06.2014 paid on services provided by them on the grounds that excess tax was deposited by them - The appellant was issued on show cause notice dated 20.08.2014 for rejecting the refund on merits - The adjudicating authority has vide order-in-original No. 18/2014-R (ST) dated 01.09.2014 rejected the refund claim for Rs. 1,88,463/- - Being aggrieved with above order in original, the appellant filed an appeal before the Commissioner (Appeals), Customs and Central Excise, Jaipur who vide his order in appeal No. 291-293/AK/ST/JPR/2016 dated 28.07.2016 rejected the appeal.
Held - The appellant applied for refund of Rs. 5,46,865/- on 29.05.2014 and submitted copy of work order, TDS certificate, VAT-41, certificate of deduction of service tax by RHB, and the copy of challan evidencing deposit of above tax - Having considered the facts of the present case, this is a case of refund of excess duty paid by the appellant while providing works contract services to the Rajasthan Housing Board at various locations - We note that in the subject order, the Commissioner (Appeals) has upheld the rejection of the refund claim by the original adjudicating authority on the ground that the amount claimed as refund is not substantiated - Further, he also held that the said refund claim was hit by the clause of unjust enrichment - As regards the contention that the refund is hit by unjust enrichment, we find that Rajasthan Housing Board has also deducted the service tax payable by them by reverse charge mechanism in the bills raised by the appellant - Therefore, it is the appellant who has borne the incidence of tax and refund cannot be denied to any person who has borne the incidence of tax - Therefore, there is no unjust enrichment in this case - Hence the order in question merits being set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-422-CESTAT-DEL
Lan Professional Appliances Pvt Ltd Vs Commissioner (Appeal - II), CGST
ST - The issue involved is, whether SCN has been rightly issued invoking extended period of limitation - The period of dispute is October 2014 to June 2017 - For the period ended 30 June 2017 appellant have filed their return on 23 August 2017 - Issue involved in SCN are wholly interpretation in nature - Out of demands raised of tax, major part of demand in respect of GTA service, the situation is revenue neutral as appellant is entitled to Cenvat credit on payment of service tax in cash - Further, the only allegation in SCN for invocation of extended period of limitation is that the omissions came to light in the course of audit, but for which tax would have escaped - Such allegations do not stand, as admittedly appellant have deposited the tax and accepted audit objection, prior to issue of SCN - Accordingly, extended period of limitation is not available to Revenue for issue of SCN on 30.04.2020 - Impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-421-CESTAT-DEL
Team Hr Services Pvt Ltd Vs CCGST
ST - The appellant is engaged in providing Human Resource services - An SCN was issued to the appellant for the period April, 2005 to March, 2007 demanding service tax under the category of 'business auxiliary service' BAS which becomes taxable from 01.07.2003 - The SCN also invoked the extended period of limitation contemplated under section 73(1) of the Finance Act, 1994 of The Finance Act - The Commissioner has held that the extended period of limitation was correctly invoked in the facts and circumstances of the case - Hence the present appeal.
Held - The Chartered Accountant for the appellant has pointed out that the aforesaid decision of the Tribunal was confirmed by the Delhi High Court in the appeal filed by the Department in Commissioner of Central Tax, GST, Delhi East vs. Team HR Services Ltd. - The observations made by the Delhi High Court dismissing the appeal filed by the Department against that part of the order of the Tribunal holding that the extended period of limitation could not have been invoked - In view of the decision of the Tribunal and the judgment of the Delhi High Court, the Chartered Accountant for the appellant submitted that since the Tribunal held that the extended period of limitation could not be invoked and this decision of the Tribunal was upheld by the Delhi High Court, the demand for extended period of limitation deserves to be set aside - There is substance in the submission advanced by the chartered accountant of the appellant - In view of the decision of the Tribunal and the Delhi High Court, it has to be held that extended period of limitation could not have been invoked. As the entire demand is for the extended period of limitation, the order passed by the Commissioner holding that the extended period of limitation was correctly invoked deserves to be set aside and is set aside - The imposition of penalty also deserves to be set aside and is set aside - The amount already appropriated is not set aside: CESTAT
- Appeal partly allowed: DELHI CESTAT |
