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2023-TIOL-435-CESTAT-MUM
Saavn Media Pvt Ltd Vs CCGST
ST - Appellants are engaged in export of service and they availed CENVAT Credit of Service Tax paid on input Services - They filed two separate refund applications for refund of unutilized accumulated CENVAT Credit under provisions of Notfn. 27/2012-CE issued under Rule 5 of CCR, 2004 - Certain amounts were allowed and certain amounts were rejected - Unless CENVAT Credit availed by appellant has not been recovered by way of issue of SCN invoking Rule 14 of CCR, 2004, CENVAT Credit available on books of account cannot be rejected when it is accumulated on account of export of Service - Stated amounts of CENVAT Credit was not disallowed by way of invoking Rule 14 of Rules, 2004 and therefore, said amounts are available in account of appellant - Since CENVAT Credit is available on accounts of appellant, refund of the same could not be rejected - Impugned order is set aside to the extent of rejection of refund of CENVAT Credit respectively to the tune of Rs. 5,97,465/- and Rs. 6,17,759/- and original authority is directed to allow the refund of same: CESTAT
- Appeals allowed: MUMBAI CESTAT
2023-TIOL-434-CESTAT-MUM
Bharat Heavy Electricals Ltd Vs CCE & ST
ST - The appellant is engaged, inter-alia, in providing erection and commissioning services, works contract and repair/maintenance services of power plants - For carrying out such activities, the appellant procures the material as well as services from the contractors/ suppliers - For the said purpose, the appellant entered into various contracts, which provide for liquidated damages/ penalty at the prescribed rate both in respect of supply of goods as well as for completion of the assigned work - The clause in the contracts stipulates that if the contractor/job worker fails to maintain the required progress of work, which results in delay in the completion of the project work, the appellant shall impose the above charges or penalties on them - On scrutiny of the entries made in the Trial Balance under the accounting head no. 5380/81, with the narration "Recovery from suppliers/contractors towards penalty damages", the Service Tax Department had entertained the belief that the amount recovered by the appellant from the contractors and suppliers of goods and services should be considered as "Consideration" for the provision of declared service and as such, should appropriately be classifiable under Section 65E(e) of the Finance Act, 1994 for the purpose of levy of service tax thereon - On the basis of such interpretation, the Department has proceeded against the appellant, seeking for recovery of the service tax, which culminated into the adjudication order dated 24.12.2018, wherein the Commissioner, CGST & CX., Nagpur has confirmed service tax demand of Rs. 6,52,76,360/- along with interest and also imposed penalties under Section 77 and 78 of the Finance Act, 1994.
- Appeal allowed: MUMBAI CESTAT
2023-TIOL-433-CESTAT-MUM
Jai Bharat Steel Rolling Mills Vs CCE & C
CX - Appeal filed against impugned order for recovery of Rs. 1,51,13,883/- under section 11A of Central Excise Act, 1944 as undischarged duty liability on unrecorded production alleged to have been clandestinely cleared between March 2005 and December 2005, liability of Rs. 78,99,000 owing to actual clearance between 2005-06 and 2008-09 disentitling them to concessional rate afforded to 'small scale industry (SSI)' units by notfn. 8/2003-CE and demand of Rs. 23,645 on shortages ascertained by physical inspection, along with interest thereon under section 11AB of Central Excise Act, 1944, besides imposition of penalty of like amount under section 11AC of Central Excise Act, 1944 - The issue of clandestine clearances allegedly prevalent in steel sector had been in controversy for long and the Tribunal in several decisions, has held that the deriving of presumed production with reference to electricity consumption is not sufficient for recovery by recourse to section 11A of Central Excise Act, 1944 - It is clear that law does not permit detriment of duty liability and other consequences, solely on the ground that energy consumption is not reflective of actual production - The lack of legal sanction for determination of clandestine removal merely from unexplained energy consumption is now too well settled to be disturbed - As no evidence, other than the outcome of the test of 2008 and that too for two hours, been employed for determination of production for a five year period commencing in 2004, the conclusion of goods having been clandestinely produced and cleared is clearly unacceptable - As it is by addition of allegedly clandestinely removed production that exemption extended to 'small scale industry (SSI)' has been denied, recovery of Rs. 78,99,000/- is also without legal sanction - As far as determination of duty liability on shortage of stock is concerned, reliance placed on decision of Tribunal in Chandpur Enterprises Ltd 2014-TIOL-1699-CESTAT-DEL and in Vehalana Steel & Alloys Pvt Ltd holding that estimate of shortages does not suffice for recovery of duties clearly comes to their assistance - It is seen from the records that alleged shortages are outcome of estimate without proper weighment - Accordingly, demand of Rs. 23,645/- on shortage of 7.546 metric tons valued at Rs. 2,29,557 also fails - Impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2023-TIOL-432-CESTAT-DEL
S K Enterprises Vs CC
Cus - The discrepancies in refund claim were noticed by Deficiency Memo dated 09.04.2018 itself - The said Memo has been mentioned in O-I-O which got merged with O-I-A as have been challenged before Tribunal - It is the same Deficiency Memo which has been mentioned in Final Order dated 21.08.2021 - Hence, there was no need of serving another notice to appellants prior rejecting their appeals for want of removal of those deficiencies - Since at the stage of fresh hearing also nothing new has been brought to Tribunal, there is no reason to differ from findings in aforesaid Final Order - The findings therein are therefore maintained - Three of the appeals against orders of Commissioner (A) as filed by importer, appellant stands rejected: CESTAT
- Appeals rejected: DELHI CESTAT
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