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2023-TIOL-443-CESTAT-AHM
CC Vs Indian Iron And Metals Pvt Ltd
Cus - The appellant had filed BOE No. 2026416/03.05.2013 for clearance of 288.300 MTS of Heavy Melting Scrap (CTH 72044900) declaring assessable value of Rs. 64,51,916/- - During first-check examination, it was revealed that the cargo contained 87.350 MTs of Rail Material Scrap (CTH 73021090) with only the remaining 200.950 MTs of HMS - Consequent to admission of mistake and waiver of their right to SCN and PH by the appellants, adjudicating authority passed impugned order under which he: (i) rejected the declared value in respect of the 87.350 MTS of Rail Material Scrap and re-determined the same as Rs. 31,36,067/- under rule 5 of CVR. 2007; (ii) ordered confiscation of the said goods under section 111(d) and 111(m) with redemption fine of Rs. 6 lakhs; (iii) imposed penalty of Rs. 2 lakhs under section 112(a); and (iv) ordered payment of duty and penalty under section 125(2) - On appeal, the Commr.(A) set aside the Order-In-Original - Hence the appeal by the Department seeking restoration of the Order-in-Original. Held - Subsequent to Circular no. 08/2006-Cus. dated 17.01.2006 was quashed by both Madras High Court and Punjab and Haryana High Court - On challenge before the Supreme Court matters were remanded as noted in M/s. FLTURISTICS METAL TRADING PVT LTD Vs. COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH-I- - The Counsel also fairly brought to notice that the decision of the Supreme Court in the matter of COMMISSIONER OF CUSTOMS (SEA PORT-IMPORT),CHENNAI Vs. INDO DEUTSCHE TRADE LINKS holding that classification under 7204 for "used rails" declared as Heavy Melting Scrap on importation was improper and product was correctly classifiable under Heading 7302, when assessee itself in a letter to Department admitted misdeclaring imported cut Rails as heavy melting scrap and requested for condonation of misdeclaration and admitted value declared to be under lower side and accepted its value for rectification - There are factual similarities between the present case and the matter in INDO DEUTSCHE TRADE LINKS case - Moreover, assessee's letter admitting misdeclaring imported cut Rails as heavy melting scrap and requested for condonation of misdeclaration and admitted value declared to be under lower side, was not considered by the Commr.(A) - Hence the Order-in-Appeal merits being set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2023-TIOL-442-CESTAT-DEL
Sharma Decorators Vs CST
ST - Appellant is engaged in providing Construction Services and registered with department of Service Tax under Construction Services - They worked as sub-contractor under three contractors - A SCN was served on them demanding service tax alongwith interest and penalty - Period of dispute is from year 2007-08 to 2011-12 - Issue is no longer res integra as same has been decided by Larger Bench in case of Melange Developers Private Limited 2019-TIOL-1684-CESTAT-DEL-LB - Appellant has argued on the ground of limitation also - During relevant period, the issue as to whether a sub-contractor has to pay service tax separately even when the main contractor had discharged service tax on the very same services was subject matter of litigation before several appellate fora - The extended period of limitation could not, therefore, have been invoked - While holding that the appellants are liable to service tax for services rendered by them as sub contractors, it is held that the same can be confirmed only within the normal period of limitation: CESTAT
- Appeal disposed of: DELHI CESTAT
2023-TIOL-441-CESTAT-HYD
A P Coal Washeries Pvt Ltd Vs CCE & C
ST - The present appeal was filed w.r.t. duty demand confirmed vide the Order-In-Original, w.r.t. Business Support Services, Non-payment of service tax on additional amount received towards excess yield, Non-payment of service tax on transportation charges, Short payment of service tax on business auxiliary services & Irregular availment of cenvat credit on debit notes - The counsel for the assessee put forth different grounds to contest the vires of the demands so raised. Held - There are no reasons to fasten allegations of suppression of facts, on the appellant - Hence, w.r.t. the duty demands raised, the appeals are allowed on limitation alone, without considering the merits of the case - As the appellant is not contesting the matter on merits, the Department can work out the balance amount if any to be paid under the relevant heads: CESTAT + In respect of CENVAT credit of Rs. 1,23,90,055/-, it is seen that the appellants have produced copies of the Debit Notes and Invoices issued by their service provider - These Debit Notes as well as Invoices contain all the details required to enable them to take the credit - Therefore we hold that there is no error in the appellant taking the CENVAT credit of Rs. 1,23,90,055/- - The appeal to this extent is allowed on merits; + In respect of demand of Rs. 50,06,523/-, the appellant has submitted that as the matter pertains to the year 2005 and the appellant's company is non-functional now, they will not be in a position to provide a copy of the earlier CTA Agreements entered into between KPCL and the then CTA. In the absence of this important document, it may not be possible for the Tribunal to come to a conclusion on this issue on merits; + It is on record that the appellant is a Pvt Limited Company and they have been maintaining proper records and filing Statutory Documents before various Authorities - There is no allegation that they have failed to file any returns with the Department - Apart from this, it is on record that Audit was taken up in 2007, wherein the CTA and other charges being collected and Excess Yield consideration were also noted and were allowed to be deducted from the total consideration value from the Service Tax to be paid by the appellant - This shows that even the Audit Team was carrying the same view till the audit was conducted in 2007.
- Appeal allowed: HYDERABAD CESTAT
2023-TIOL-440-CESTAT-CHD
Rico Auto Industries Ltd Vs CCE
CX - The appellant is engaged in the manufacture of excisable goods falling under Chapter 87 of the Central Excise Tariff Act, 1985 and are availing facility of Cenvat Credit of the duty paid on inputs, input services and capital goods as envisaged under Rule 3 of Cenvat Credit Rules, 2004 - Two show cause notices were issued to the appellant alleging that during the course of audit, it was found by the Audit party that the appellant have taken Cenvat Credit of service tax paid on civil construction and maintenance services of items other than plant and machinery which are not covered under the definition of 'input service' under Rule 2(l) of Cenvat Credit Rules, 2004 for the purpose of availment of Cenvat Credit. Held - During the relevant period, the definition of 'input service' was very wide and it include any service received in or in relation to setting up, moderanisation, renovation or repair of the factory premises. Further, this input services involved in the present appeals have been held to be input services in the decisions relied upon by the appellant cited - The High Court of Punjab and Haryana in the case of Commissioner of Central Excise, Delhi-III vs. Bellsonica Auto Components India P. Ltd. cited has considered this issue and has held that the construction services and other services which are necessary for the renting of the business falls in the definition of 'input service' as provided under Rule 2(l) of Cenvat Credit Rules, 2004 - Hence the order in question is not sustainable and merits being set aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT |
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