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2023-TIOL-485-CESTAT-MAD
Glenworth Estate Ltd Vs CCE & ST
ST - Appeal filed against impugned order whereby demand of Service Tax has been upheld - Appellant is manufacturing 'Black Tea' - They had engaged foreign agents to help them in promoting / marketing / sale of such manufactured Black Tea in foreign countries for which they were paid commission - Notfn. 08/2004-S.T. came to be issued by amending various Notifications and one of such Notfns being Notfn. 13/2003-S.T., to which an amendment was brought in vide this Notfn - The impugned order has upheld the denial of benefit of Notfns on the ground that 'Black Tea' is manufactured by appellant after multiple processes wherein green tea leaf is converted into Black Tea, which would fall under Chapter 9 of CETA, 1985 and that the same would no longer remain an agricultural produce of green leaf tea - It has also been held that same is a commercially different product having distinct name, character and usage as well - The meaning of "agricultural produce", as per Notfn. 08/2004 ibid undoubtedly covers, inter alia, Tea, but, as specified therein, does not include manufactured products such as sugar, edible oils, processed food and processed tobacco - Therefore, activity of manufacture is limited to products such as sugar, edible oils, processed food and processed tobacco and nothing beyond that - Production of Black Tea involves processes for which there is no bar in said Notfn - Further, said Notfn does not distinguish between Tea or Green Tea or Black Tea, and it is also well understood that there is no alteration to essential characteristic other than, perhaps, making it marketable as either Green Tea or Black Tea - Even the processes involved in converting Green Tea into Black Tea does not alter the basic characteristic of Tea as such and same could not be considered as a non-agricultural product under any stretch of imagination - Therefore, demand raised against appellant is not sustainable, for which reason impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-484-CESTAT-CHD
Clix Capital Services Pvt Ltd Vs CST
ST - The first issue arises for consideration is, whether foreclosure charges charged by banks and non-banking financial companies on premature termination of loan is subject to levy of service tax under BOFS as defined under section 65 (12) of Finance Act, 1994 - The larger bench of Tribunal in case of Repco Home Finance Ltd. 2020-TIOL-1039-CESTAT-MAD-LB has considered the issue and has held that such charges are not liable to service tax - Hence by following the said decision, it is held that demand on foreclosure charges cannot sustain and set aside - As regards the demand of service tax on penal charges which are recovered from customers when customer defaults in making timely payment of sums as agreed in loan agreement and in case of dishonor of cheque by customer, Tribunal views that collection of penal charges arises on account of a separate cause of action which is independent of lending services rendered by appellant - In case of Rohan Motors Ltd. 2020-TIOL-1676-CESTAT-DEL it has been held that demand of service tax on the amount collected on account of bouncing of cheques is not sustainable as such amount is penal in nature and is not towards consideration for any service - Therefore, demand of service tax on penal charges is not sustainable in law - As regards to demand of service tax on insurance administration fees under category of business auxiliary service, borrowers are individuals who are availing personal loans and these loans have not been availed for any business or commercial purpose and hence service provided by appellant is not classifiable under business auxiliary service - Now, coming to invocation of extended period of limitation, since there were divergent views of Tribunal and issue was referred to larger bench for final disposal clearly shows that issue involves interpretation of law and hence extended period cannot be invoked - Besides this, department could not establish any fraud, collusion, willful misstatement or suppression of facts on the part of appellant to invoke extended period of limitation - Demand of interest is not maintainable since the demand of tax itself is not sustainable - Similarly, penalty is also not imposable when tax demand is not sustainable - Impugned order is set aside: CESTAT
- Appeals allowed: CHANDIGARH CESTAT
2023-TIOL-483-CESTAT-BANG
Fairy Food Products Pvt Ltd Vs CCE
CX - Appellants have filed three refund claims for quarter July 2008 to September 2008, October 2008 to December 2008 and January 2009 to March 2009 of service tax paid in terms of Notfn. 41/2007-ST as amended by Notfn. 17/2008-ST - After due verification of refund claims, Adjudicating authority allowed refund of service tax by passing separate orders - Since the refunds were sanctioned in contravention of conditions of Notfn 41/2007 as amended, Revenue preferred appeals before Commissioner(A), who in turn, set aside the refund orders - The adjudicating authority while scrutinizing refund claims examined various aspects, however, no specific finding has been recorded in line as recorded by Commissioner(A) in impugned order particularly the fact whether appellant has availed cenvat credit while claiming the refund - The objections recorded in impugned order need to be verified by adjudicating authority after affording an opportunity to appellant to respond to said objections - Impugned order is set aside and matter is remanded to adjudicating authority to verify the said facts: CESTAT
- Matter remanded: BANGALORE CESTAT
2023-TIOL-482-CESTAT-KOL
GPS Steel Trade Linkers Pvt Ltd Vs CCGST & CE
CX - Issue pertains to alleged clandestine removal of MS Items - Appellant submits that neither Adjudicating nor the Lower Appellate Authority gave them the opportunity of Personal Hearing wherein the facts and documentary evidences could have been produced before them - Revenue submits that enough opportunity has been given by both Authorities by granting PH on different dates which were not utilized by appellant - Admittedly, appellant's factory was undergoing labour unrest and because of closures of unit they could not have received PH Communications - Both the Lower Authorities have passed Orders ex-parte - As submitted by appellant, they have many documents in their defence which they have annexed to present appeal - As these documents are required to be verified, matter remanded to Adjudicating Authority - Both the appellant as well as Revenue also agree that matter has to be remanded to Adjudicating Authority for this purpose - Accordingly, matter is remanded to Adjudicating Authority who will follow the Principles of natural justice and give the opportunity to appellant to make all their oral and written submissions along with documentary evidence including SVLDRS Discharge granted in earlier case and pass a considered order within 4 months: CESTAT
- Matter remanded: KOLKATA CESTAT
2023-TIOL-481-CESTAT-KOL
CC Vs Asian Copiers
Cus - The assessee imported old and used Digital Multifunction Printer and filed various bills of entry - The goods of the assessee were examined in the presence of Customs Officials, Chartered Engineer and representative of the appellant and found to be old and used having residual life of more than six years and the said machines were found to be minor reconditioning and values were assessed on the enhanced value as compared to declared value - The said value was arrived by Chartered Engineer after inspection and production of market value recommendations based on several aspects like useful life of machines/Make & Model/technology/country of origin/physical condition/comparison with similar goods imported in past/internet information/reconditioning etc. - It was held that the said consignment being second hand was restricted item in terms of Para 2.17 of Foreign Trade Policy, 2009 - 2014 and Para 2.33 & 2.33A of HBP and could be imported against valid license. On appeal, the Commissioner (Appeals) held that for the impugned goods, no license is required in terms of restrictions made under Para 2.17 of the Foreign Trade Policy 2009-2014 and Para 2.33 and 2.33A of HB Procedure. It was also held that the value can not be enhanced based on Chartered Engineer's Valuation - Hence the present appeal. Held - As was held in the case of Bhawani Enterprises for earlier import of identical goods, it was held that there was no restriction of import of the subject goods, we hold that no specific license is required for import of the impugned goods - We further find that for enhancement of value, the Chartered Engineer's Certificate cannot be relied upon unless there is corroborative evidence, we hold so - Hence there is no infirmity in the O-i-A in question and the same is upheld: CESTAT
- Appeal dismissed: KOLKATA CESTAT
2023-TIOL-480-CESTAT-DEL
TRS Logistics Vs CC
Cus - The appellants are working as Customs Broker on being duly licensed by the Department - On the basis of a complaint dated 10.03.2021 filed by one Shri Mohinder Kumar Kakkar, Proprietor of M/s Soshine International, proceedings were initiated - Appellant customs broker's license was revoked vide order dated 08.11.2021 - On an appeal filed by the Custom Broker, this bench vide final order No. 50784 of 2022 dated 29.08.2022 remanded the matter to the Commissioner to pass a fresh order taking into consideration the submissions of the appellants - Vide the order dated 02.11.2022, Commissioner of Customs (Airport), New Delhi revoked the license of the appellant - Forfeited the security deposit and imposed a penalty of Rs. 50,000 - Hence the present appeal. Held - Though there is some procedural infirmity committed by the appellant customs broker and there is no serious violation of Regulation 10 (a) of CBLR, 2018 in spirit - But no case is made out by the Revenue for revocation of license in terms of Regulation 17 of CBLR, 2018 - We are in agreement with the submissions of the counsel of the appellant that the punishment awarded should be commensurate with the offence committed - For a mistake of this nature, revocation of license is harsh - We find that imposition of a token penalty would suffice, in the facts and circumstances of the case: CESTAT
- Appeal allowed: DELHI CESTAT |
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