I-T- There is no need to interfere with findings of CIT(A) as CIT(A) deleted additions on appreciation of evidences, considering remand report as well as rejoinder of assessee : ITAT

I-T - Following particular method of accounting in books of accounts with regard to expenditure, would not preclude assessee from claiming entire expenditure in current year itself : ITAT

I-T- Disallowance u/s. 14A read with rule 8D should not exceed the exempt income earned by the assessee: ITAT

Cus - CHALR, 2013 - Revocation of license - Department's case based on figment of imagination, presumption & attributing knowledge on part of CHA, without any material to support the same - proceedings rightly quashed: CESTAT

CX - Even if shortages are to be accepted, there is no iota of evidence either in SCNs or in impugned order to prove that these goods were clandestinely removed, demands and penalty are set aside: CESTAT

Cus - Appellant being an authorised manufacturer is entitled to exemption from Anti Dumping Duty on seamless tubes purchased from importer which have borne Anti Dumping Duty at the stage of import, appellant is entitled to refund: CESTAT

CX - Demanding duty only on short-payment ignoring excess payment is bad in law, duty paid by appellant would be available as credit to their sister unit, thus entire exercise is revenue neutral: CESTAT

ST - Delay of about 278 days, Commissioner (A) correctly dismisses the appeal for reasons that it was filed beyond the period prescribed under section 85(3A) of Finance Act, 1994 and statutory requirement of pre-deposit was not satisfied: CESTAT

Cus - Each case has to be looked at into its own facts & merits - Cancellation of licence of some other CHA placed in similar circumstances cannot be any justification to mete out a similar treatment to another CHA: CESTAT

ST - Not only training like carpentry, smithing, but also when Business Management coaching is given resulting in occupation or employment, it should also be considered as vocational training, demand for period July, 2003 to 27.02.2010 is set aside: CESTAT

2023-TIOL-507-CESTAT-KOL

CC Vs Gee Pee International

Cus - The DRI examined a consignment of "worn clothing" at various warehouses -It was alleged that the present appellant CHA, alongwith M/s Continental Clearing Agency and M/s Suman International appeared to be involved in delivering 30% bales of "worn clothing" consignments cleared over the last few years to M/s Ma Vabatarini Enterprises - The basis for DRI's asssumption is the statement of one Shri Dipak Das, partner M/s Ma Vabatarini Enterprises - Shri Dipak Das in his statements recorded by DRI under Section 108 of the Customs Act informed about certain "code words" appearing in their "Purchase Register" - On this basis it is presumed by the Revenue that the CHA dealing with the consignment was also aware of the contents of the bales of "worn clothing" the "code words/numbers" as also their wholesale price - It is further charged that the appellant was commonly concerned in suppression of actual identity of the goods as also their wholesale market price, leading to under valuation and warranting further course of action in law by the authorities - On the basis of same, it is charged that the appeallant CHA who ought to assist the Customs department appears to have just done the opposite, by resorting to suppression misdeclaration and therefore was liable for penal action under Section 112(a) of the Customs Act, as they failed to comply with the provisions of Regulations 13(d) and 13(n) of CHALR - The CHA is also therefore liable to penalty under Regulation 20 of CHALR, 2004. Held - The grounds of appeal on the part of the department-that out of 95 SCNs only two cases have been adjudicated so far and (by then) in both the cases Commissioner has upheld the charges made against the CHA in the SCN, can for certain be no ground, to so state in a different case - Also the other findings, like that of the Inquiry Officer clearly stating complete lack of knowledge on the part of the CHA about certain "code words" made use of, the failure of the department to lead positive evidence, clearly suggest that this is a completely unsubstantiated and fallacious appeal, filed by the Department - The entire case of the Department is no better than a figment of imagination, based on presumption and attributing knowledge on part of CHA, without any material to support the same - Each case has to be looked at into its own facts and merits and the fact of cancellation of licence of some other CHA placed in similar circumstances cannot be any justification to mete out a similar treatment to another CHA - The Department has not been able to demonstrate possession of knowledge of "code words" or that of the alleged misdeclaration of value on part of the appellant - There is nothing to establish that the CHA failed in suitably advising his clients or to report any non-compliance (of which obviously he ought to have knowledge) to the department's notice or that the appellant failed in discharge of his duties with efficiency and alacrity: CESTAT + it is observed from the order passed by the LD. Commissioner that as far as knowledge on the part of the CHA about the "code words" and access to purchase registrar of Ma Vabatarini Enterprises, was concerned, it does not come out that the CHA was well aware of and had prior knowledge of the code words/numbers and wholesale market price mentioned in the purchase register of Kolkata based trader. It is also noted that in appeal against the value loading (based on the Purchase Register) as proposed by DRI, the said loading of value was rejected by the Tribunal as well as the Hon'ble High Court. Moreover, the appellants had no access to the Purchase Register of M/s Ma Vabatarini Enterprises. It is seen from the records, that it is categorically stated in the concerned papers that CHA had no role to play in price negotiations between the importers and Shri Dipak Das. The CHA is stated to have a limited role that of arranging the delivery of goods from the Customs area (bonded warehouse) and make arrangements for physical delivery in the presence of the officer of the department. The CHA appellants, merely filed the various bales of entry on the basis of invoices received from the importers and that there is no finding that such invoices received from overseas supplier were fake or fabricated. In short, there is nothing to impute any suppression or mis-statement on the part of the CHA.

- Revenue's appeal dismissed: KOLKATA CESTAT

Steel Authority Of India Ltd Vs CCE

CX - Three SCNs which demanded duty were issued calculating differential quantity between RG1 stock and physical stock as reported by appellant in their own statements - The Commissioner in impugned order had demanded duty on differential quantity between ER1 returns and audited books of returns of appellant - First of all, the basis for demanding duty appears to be beyond the framework of SCNs - The parameters relied upon by authorities in SCN and parameters relied upon by Commissioner are at variance, which is legally not sustainable - Further, SCNs though demanded duty beyond normal period fail to invoke proviso to Section 11A but Commissioner in his impugned order invoked proviso to Section 11A and imposed penalty under Section 11AC which is beyond the scope of SCNs - Further, in appellant's own case , the Tribunal has held that discrepancy between RG1 stock and physical stock are based on estimated production and not on actual weighment - Comparison between two estimations is inherently inaccurate - Because of these shortages, if any, is inflated due to errors in taking opening balance and physical stock - Considering the practical difficulties in estimating actual stock and in view of submissions made by appellant, the Tribunal had set aside the impugned order - In case of Rourkela Steel Plant (SAIL), the Tribunal had held that even if there are differences in stock taking and shortages are found, duty can be demanded only when they are removed from factory - The findings on clandestine manufacture and removal cannot sustain against appellants as Revenue has not provide any proof of clandestine removal - Even if shortages are to be accepted, there is no iota of evidence either in SCNs or in impugned order to prove that these goods were clandestinely removed - By following the ratio of said judgments, the demands are set aside and accordingly, penalty is also set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT

Fjm Cylinders Pvt Ltd Vs CC

Cus - The issue arises is, whether the claim of refund of Anti Dumping Duty filed under Section 27(1)(b) of Customs Act, 1962 has been rightly rejected - The goods- seamless steel tubes were imported by Neel Metal Products Ltd who paid Anti Dumping Duty at the time of import, imported vide two separate bills of entry - Appellant purchase the said goods from Neel Metal - Admittedly, appellant is a manufacture of high pressure gas cylinders wherein, the seamless tubes are inputs and filed the refund claim within four months from the date of purchase - The refund was adjudicated vide OIO rejecting the claim on the finding that bill of entry was assessed on final basis - Rejection of refund is on the face of it illegal and against the provisions of law particularly, Section 27(1)(b) of the Act - Section 27(1)(b) provides for refund to a person, when such person has borne the duty or interest, which was not legally chargeable from him under the scheme of the Act r/w Rules and notification thereunder - Admittedly, appellant being an authorised manufacturer is entitled to exemption from Anti Dumping Duty on seamless tubes purchased from the importer (Neel Metal Products) which have borne Anti Dumping Duty at the stage of import - Accordingly, appellant is entitled to refund of amount of Anti Dumping Duty - Adjudicating authority is directed to disburse the said amount of Anti Dumping Duty within a period of 45 days alongwith interest @ 6% p.a. starting from the end of 3 months from the date of application, till the date of disbursement: CESTAT

- Appeal allowed: DELHI CESTAT

Apex Auto Ltd Vs CCE

CX - Appellants are engaged in manufacture of semi-finished excavator parts and cleared the same on payment of duty to their sister concern for further manufacture on their behalf - The period involved is 2005-06 to 2009-10 and dispute relating to determination of assessable value of stock transferred parts to their sister concern by appellant - The appellant determined their assessable value on stock-transferred goods under Rule 8 of Central Excise Valuation Rules by adopting 110% of cost of production - In determining the value, appellant adopted CAS-4 method - Later on, CERA audit took place and value was redetermined and accordingly, demand was raised - Appellant has paid excess duty which was required to be adjusted against short-payment - Moreover, it is a situation of revenue neutral as whatever duty they pay their sister unit get CENVAT Credit of the same - Demand of duty is not sustainable against appellant - Accordingly, impugned order is set aside: CESTAT

- Appeals allowed: KOLKATA CESTAT

Estate Officer, MP Housing And Infrastructure Development Board Vs Pr. CCT, C & CE

ST - Assessee is aggrieved by impugned order that dismisses the appeal for two reasons, namely, that it was filed beyond the period prescribed under section 85(3A) of Finance Act, 1994 and for the reason that statutory requirement of pre-deposit was not satisfied - It is clear from the order passed by Commissioner (A) that order dated March 28, 2017 passed by Additional Commissioner was received by assessee on April 03, 2017 - This finding has been recorded by Commissioner (A) on the basis of statement made by assessee in Service Tax Form-IV enclosed with memo of appeal - Thus, appeal could have been filed by June 02, 2017 and only one month further delay could have been condoned by Commissioner (A), provided a satisfactory explanation was offered by assessee for this period of one month - Appeal was filed on January 16, 2018 with a delay of about 278 days - The Supreme Court in Narayan Chandra Ghosh, examined the provisions contained in section 18 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 relating to pre-deposit in order to avail the remedy of appeal - The provisions are similar to provisions of Finance Act - The Supreme Court emphasised that when a Statue confers a right to appeal, conditions can be imposed for exercising of such a right and unless the condition precedent for filing appeal is fulfilled, appeal cannot be entertained - The Supreme Court, therefore, held that deposit under the second proviso to section 18(1) of the Act, being a condition precedent for preferring an appeal, Appellate Tribunal erred in law in entertaining the appeal - The Supreme Court also held that Appellate Tribunal could not have granted waiver of pre-deposit beyond the provisions of the Act - Commissioner (A), therefore, committed no illegality in dismissing the appeal: CESTAT

- Appeal dismissed: DELHI CESTAT

Badruka Institute Of Foreign Trade Vs CC

ST - Appellant is provider of coaching and training services in Foreign Trade and Business Management, wherein they conduct "Masters Programme in International Business" - Department issued one SCN for period July, 2003 to September, 2005 demanding Service Tax - Subsequently, five SCNs were issued for period October, 2005 to December, 2011 - It is alleged that coaching and training services provided by appellant did not fall under category of "Vocational Training" and accordingly, same cannot be classified as vocational training institute to qualify for exemption granted under Notification No. 09/2003-S.T. - The very issue as to whether any coaching and training given in respect of business management studies would call for Service Tax payment has been gone into by Tribunal in case of Ashu Export Promoters (P) Ltd - Confirmed demand for the period July, 2003 to 27.02.2010 is set aside - The confirmed demand of Rs. 43,01,656/- is being remanded to Adjudicating Authority to go through the details of demand and verify the submissions of appellant that the services pertain to coaching and training given by them to students leading to issuance of proper diplomas/ degrees by JNTU - Appellant is directed to provide all necessary data that would be sought by Adjudicating Authority while disposing of de novo proceedings - After due verification, for balance amount which is not falling within exemption under Notification No. 33/2011-S.T., appellant is required to pay the same along with interest and penalty will be imposable in terms of Section 76 of Finance Act, 1994 - Since the matter pertains to year 2010-2011, Adjudicating Authority is directed to complete the proceedings within four months: CESTAT

- Appeals partly allowed: HYDERABAD CESTAT