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2023-TIOL-452-CESTAT-MUM
CC & CE Vs Cipla Ltd
CX - During the course of audit conducted by the Central Excise Audit in the month of March, 2008, it has come to their notice that out of the total Cenvat Credit availed by the assessee during the period September, 2005 to September, 2008 they have wrongly availed Input Service Credit of Rs.24,45,094/- towards Service Tax paid on input services which were used in the manufacture of non-excisable goods and no separate accounts were maintained for input service credit availed on input services used for the manufacture of non-excisable goods - The fact that separate accounts were not maintained in respect of Cenvat Credit of input service availed on input services used in the manufacture of excisable goods and non-excisable goods was not brought to the notice of Central Excise Department till the date of Central Excise Audit - On being pointed out by the audit team, the assessee accepted the discrepancy and reversed the amount of 24,45,094/- through their Cenvat credit account on 31.3.2008 but they failed to pay any interest on the wrongly availed input service credit - Accordingly a show cause cum demand notice dated 4.7.2011 was issued to them for appropriation of the amount of Rs.24,45,094/- reversed by them and also claiming interest to the tune of Rs.3,49,000/- on the said amount alongwith penalty u/r.15 ibid r/w. Section 11AC - The Adjudicating Authority vide Order-in-Original dated 24.1.2012 by a detailed Adjudication Order, confirmed the demand raised in the show cause notice alongwith interest and penalty - On appeal filed by the assessee, the Commissioner vide impugned order dated 22.6.2012 set aside the Order-in-Original with consequential relief.
Held - There is a basic principle that justice need not only be done but also seen to be done - There is neither any reasoning nor any finding that too while setting aside the reasoned order passed by the adjudicating authority - Assessee's appeal was allowed by way of non-speaking order and entire adjudication order was set aside after citing one decision of Karnataka High Court which seems to be limited to the issue of interest liability - Commissioner ought to have, after referring the contentions of the appellant, dealt with the same on merits and also ought to have dealt with each finding/reasoning recorded by the adjudicating authority in its Order-in-Original before setting aside the said order - Therefore we are left with no other option but to set aside the impugned order and remand the matter back to the Commissioner (Appeals) for fresh disposal on its own merits in accordance with law after giving reasonable opportunity of hearing to both the side and also by giving reasoning/findings while arriving at any conclusion in the appeal filed by the assessee - We are making it clear that we have not gone into merits of the appeal - Since the appeal is quiet old therefore we hope and trust that the Commissioner (Appeal) will decide the appeal at the earliest preferably within a period of two month from the date of production of certified copy of this order: CESTAT
- Case remanded: MUMBAI CESTAT
2023-TIOL-451-CESTAT-AHM
M K Wood India Pvt Ltd Vs CC
Cus - The Counsel for the assessee pointed out that they had failed to claim benefit of Notification No. 21/2012-Cus dated 17.03.2012at the time of filing the Bill of Entry under the self-assessment procedure - On realizing their mistake, they file the appeal before the Commissioner (Appeals) seeking the challenge the self-assessment made by them - It was pointed out that the Commissioner (Appeals) has rejected their appeals solely on the ground that the self assessment is not a appealable order and therefore, no appeal can be filed against such order - It was pointed out that the observation of Commissioner (Appeals) is contrary to the observations of Apex Court in the case of ITC LTD Vs. CCE, Kolkata-IV-2019 wherein it is specifically held that of self assessment orders are also assessment orders and are appealable just like other orders, like re-assessment orders.
Held - Commissioner (Appeals) has rejected the appeal solely on the ground that no appeal can be filed against the self assessment order - It is seen that the orders passed by the Commr.(A) did not have the benefit of the decision of the Apex Court in the case of ITC LTD - Hence the order merits being set aside and the matter be remanded for re-consideration: CESTAT
- Case remanded: AHMEDABAD CESTAT
2023-TIOL-450-CESTAT-AHM
Aarvee Denims And Exports Ltd Vs CST
ST - Appellant are engaged in the business of manufacturing and export of garments - The Department initiated an inquiry and came to know that the appellant had appointed some agents in foreign countries for promotion, marketing and sale of their goods in foreign countries on payment of brokerage /commission - The Department formed a view that the appellant have been receiving service of foreign agents for which they have not discharged the service tax liability as per the provision of the Finance Act, 1994 - It has been the contention of the Department that as per the provisions of section 66 A of the Finance Act, 1994 read with Section 65 (19) of the Finance Act, 1994 and Section 65 (105) (zzb) of the said act with regard to the Business Auxiliary Service, the appellant should have paid service tax on the services received by him from the persons based outside India - Two SCNs were issued to the assessee raising two separate tax demands - On adjudication, these demands came to be confirmed.
Held - So far as the confirmation of service tax demand under the first show cause notice dated 17.03.2008 , I follow the decision of this Tribunal in the case of M/s. Marck Bioscience Ltd where under it has been held that in case of sales commission to overseas commission agent under reverse charge mechanism, the extended time proviso is not invokable - With regard to the second show cause notice dated 20.03.2009 where under the adjudicating authority has confirmed the demand of Rs. 10,96,848/- also invoking relevant penal provision - In this regard, I find that show cause notice has been issued on 20.03.2009 demanding the duty for the period April, 2007 to March, 2008 by invoking larger period of limitation under Section 73 (1) of the Finance Act, 1994 - I am of view that since the first show cause notice has already been issued on 17.03.2008 invoking a period of five years and therefore, the second show cause notice should have been for normal period of demand and department should not have invoked the extended time period for demanding service tax - I find that the second show cause notice dated 20.03.2009 is beyond normal period of limitation and therefore, the matter is remanded back to the original adjudicating authority to re-adjudicate the matter in view of the above observation and confirm the service tax for the normal period of demand as provided under Section 73 (1) of the Finance Act, 1994 - The appeal is partly allowed with regard to demand of Rs. 21,57,937/- and is being remanded back for de novo adjudication only with regard to the second show cause notice dated 20.03.2009: CESTAT
- Appeal partly allowed: AHMEDABAD CESTAT |
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