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2023-TIOL-514-CESTAT-AHM
Erweka India Vs CCE & ST
ST - The issue involved is, whether the appellant's refund filed after one year from relevant date is hit by limitation in terms of Section 11B of Central Excise Act, 1944 - Service tax was paid under protest therefore, limitation of one year is prima-facie not applicable - However, before Adjudicating Authority, appellant have not produced the letter under protest dated 25.06.2007, Commissioner (A) also rejected the submissions of appellant regarding this under process letter on the ground that it is an after-thought as the same was not produced before original authority - Tribunal completely disagree with contention of Commissioner (A) in this regard - This letter is of dated 25.06.2007 and it cannot be said that it is an after-thought - Commissioner (A) should have considered this letter and passed a reasoned order on this issue which he fails to do - Since the letter was produced before Adjudicating Authority, matter should be remanded to Adjudicating Authority to pass a fresh order after considering the under protest letter dated 25.06.2007: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2023-TIOL-513-CESTAT-MUM
AAP Solutions Vs CCGST
ST - Appeal is arising out of impugned order rejecting the appeal filed by appellant and upholding the order of Adjudicating Authority that refund claim is time barred in terms of Section 11B of Central Excise Act, 1944 - Appellant is providing taxable service in category of Consulting Engineering Service - During period July, 2016 to September, 2016 they provided taxable service upon which service tax was discharged - However, inadvertently under the impression of non-discharge of said liability, appellant again paid the service tax alongwith interest for the same period - On realizing their mistake, they filed refund claim for said amount - According to department, since the refund claim was made after period of one year from date of deposit, same is not eligible for refund - The High Court of Madras in 3E Infotech 2018-TIOL-1268-HC-MAD-ST has taken a similar view and held that when service tax is paid by mistake, a claim for refund cannot be barred by limitation merely because the period of limitation has expired - On similar lines, Tribunal also in matter of Javed Akhtar has held that retention of any amount by department which was paid by appellant therein without any liability or in excess of liability violates Article 265 of Constitution of India - Appellant is entitled for refund of amount of service tax paid by them as the same has been deposited without any liability as duty has already been discharged by appellant - So far as the application of Section 35B ibid is concerned as raised by Revenue, since the same is discretionary Tribunal is not inclined to exercise it on the facts of this case - Impugned order is accordingly set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2023-TIOL-512-CESTAT-MUM
Vithal Corporation Ltd Vs CC, CE & ST
CX - The appellants are engaged in manufacture and clearance of sugar and molasses and are paying duty on all these final products - They were availing Cenvat credit of excise duty paid on inputs and capital goods and also on service tax paid on input services used in the manufacture of final product - During the process of manufacturing sugar & molasses, by-products bagasse, etc. were generated which, as per the appellants, are nothing but waste/residue byproduct/refuse which were also being sold by the appellants - A show cause notice dated 4.5.2011 was issued to the appellants stating that they are availing the Cenvat credit on inputs, capital goods and input services under the Cenvat Credit Rules and utilizing the same for clearing the final product but neither they are maintaining separate records of inputs and input services used for manufacture of duty paid goods (sugar and molasses) and for exempted goods generated, i.e., bagasse as required u/r. 6(2) ibid nor they are paying an amount of 5% of value of exempted goods (bagasse) sold by them during the period 1.3.2010 to 30.9.2010 as required u/r. 6(3) ibid and accordingly a demand was raised for an amount equal to 5% of the value of bagasse sold i.e. Rs. 12,37,443/- alongwith interest and penalty - The said SCN was culminated into Adjudication Order dated 20.6.2012 by which the Adjudicating Authority confirmed the demand alongwith interest and equal penalty - On Appeal filed by the Appellant, the Commissioner (Appeals) vide impugned order dated 12.11.2012 although upheld the demand but reduced the same from Rs. 12,37,443/- to 11,79,703/- under Rule 14 of Cenvat Credit Rules, 2004 r/w. Section 11A(1) of Central Excise Act, 1944 alongwith interest and penalty on the reduced demand.
Held - The issue involved in the instant Appeal is not more res integra in view of the law laid down by the Supreme Court in the matter of Union of India vs. DSCL Sugar Ltd.; 2015(322) ELT 769 (SC) in which the Supreme Court has considered both the periods i.e. the periods before and after the insertion of explanation in Section 2(d) , which has been heavily relied upon by the authorities below in fastening the duty liability on the appellant herein - The Supreme Court has held that bagasse being an agricultural waste or residue, there could be no manufacturing activity - On the basis of the amendment to Section 2(d), the Department has taken out one circular No. 904/24/2009-CX, dated 28.10.2009 in line with the amendment in Section 2(d) ibid, which was also relied upon by the authorities below in confirming the demand - But after the judgment of the Supreme Court in the matter of DSCL Sugar Ltd. another circular No. 1027/15/2016-CX , dated 25.4.2016 has been issued by the Department stating that since the period covered in the aforesaid decision of the Supreme Court applies to both period i.e. before and after the insertion of explanation in section 2(d) ibid therefore the circular dated 28.10.2009 becomes non est and are rescinded - Since the law laid down by the Supreme Court constitutes declaration of the law within the meaning of Article 141 of the Constitution of India which would be binding on all Court and Tribunals, therefore following the aforesaid decision of the Supreme Court, the issue involved herin decided in favour of the Appellant and as a result the appeal filed by the appellant is allowed with consequential relief: CESTAT
- Appeal allowed: MUMBAI CESTAT
2023-TIOL-511-CESTAT-MAD
Star Boxes India Pvt Ltd Vs CGST & CE
CX - The issue that arises for consideration is, whether value adopted by appellant for clearances made to M/s. Mira Textiles & Industries (I) Ltd. and M/s. Mohan Breweries under instructions of M/s.Mira on the basis of transaction value as per Section 4(1)(a) of Central Excise Act, 1944 is correct or whether Rule 10A of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 has to be applied - Department alleges the appellant to be a job worker for the reason that kraft paper (raw material) is supplied by M/s. Mira Textiles - There is no free supply of raw materials to appellant by M/s.Mira Textiles and it is actually purchased by raising invoices and paying value of raw material along with duty and applicable Sales Tax / VAT - The ownership of raw material is therefore transferred from M/s.Mira Textiles to appellant - Such kraft paper is used for manufacture of carton boxes which are finished product and cleared to M/s.Mira Textiles and M/s.Mohan Breweries under the instructions of M/s. Mira Textiles - The department has relied upon a statement of Shri G. Hari Hara Subramanian, General Manager of appellant-company to allege that appellant is a job worker - The documentary evidence in nature of invoices for purchase of raw materials, invoices for clearances of finished products indicate that appellant is an independent manufacturer - Documentary evidence prevails over oral statement which is not put to the test of examination and cross-examination as required under Section 9D - There is no evidence to support the case of department - It clearly shows that appellant has purchased raw materials and used them for manufacture of carton boxes as an independent manufacturer - Similar issue was considered by Tribunal in case of Coromandel Paints Ltd. 2010-TIOL-1312-CESTAT-BANG - Following the said decision, demand cannot sustain - Impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-510-CESTAT-DEL
Pr.CC Vs Oriental Trimex Ltd
Cus - Revenue is in appeal against impugned order whereby Commissioner (A) partly allowed the appeal of assessee by setting aside the order for payment of redemption fine but upholding the imposition of penalty - On behalf of assessee, reliance was placed on decision of Tribunal in their own case in Oriental Trimex Ltd. , 2017-TIOL-1736-CESTAT-DEL to contend that once the goods were not available for redemption, the redemption fine cannot be deducted from sale proceeds - The Division Bench hearing the appeal, referred the matter to Larger Bench in view of the conflicting decisions - The Larger Bench of this Tribunal accepted the argument advanced on behalf of Revenue that order of confiscation was not set aside by Commissioner (A) and hence once the goods have been auctioned, the goods get replaced by sale proceeds and they can be redeemed only on payment of redemption fine - Against said order, assessee filed appeal in High Court which was decided in favour of assessee and setting aside the decision of Larger Bench - There is no further appeal pending before Supreme Court and the matter has attained finality - Revenue's appeal cannot be allowed as the question of law has been decided in favour of assessee by High Court and the decision has also attained finality - Impugned order is upheld: CESTAT
- Appeal rejected: DELHI CESTAT
2023-TIOL-509-CESTAT-DEL
MAJ Shipping Pvt Ltd Vs CC
Cus - Appellant is in appeal against impugned order by which their Customs Brokers License has been revoked - The order also seeks to revoke security deposit and imposes a penalty on appellant - The inquiry report mentions that appellant had not made an attempt to match addresses given on IEC and GSTIN and in fact IEC of exporter had a different address then the one mentioned in SCN or GSTIN - Inquiry report also mentions that appellant has not conducted verification of place of business of principal exporter - The Commissioner should have, therefore, confined himself to these two issues in impugned order, but it transpires that there is no discussion on these issues and the impugned order has been passed by Commissioner on an entirely different ground namely, that the appellant had furnished only one document as against the requirement of two documents in terms of Regulation 10(n) of Customs Brokers Licensing Regulations, 2018 - The order passed by Commissioner, therefore, can be set aside on this ground alone - Even otherwise, it is found as a fact that appellant had submitted a copy of PAN card and Aadhar Card - Though the Circular refers to 'voters identity card' but Aadhar Card can also be considered in view of Circular dated 12.02.2018 that adds Aadhar Card to list of documents, though in connection with courier companies - There is no reason as to why the Aadhar Card cannot also be considered as a document for purpose of verification - Regarding the allegation that different address was shown in IEC, appellant had explained in detail in reply filed to notice served with inquiry report why different addresses were shown in IEC and relevant portion of reply has been reproduced - Inquiry officer has not adverted at all to the reply and only a casual statement has been made in inquiry report that appellant did not furnish a plausible reply - It has also been stated in inquiry report that appellant had not physically verified the principal place of business of exporter - A bare perusal of Regulation 10(n) would show that Customs Broker is not required to physically verify the place of business of exporter and this is what was also held by Tribunal in M/s CRM Logistics Private Limited - The Division Bench examined the responsibility of a Customs Broker under Regulation 10(n) of 2018 Regulations and held that it is not the responsibility of a Customs Broker to physically go to the premises of each of exporters to find out whether they are functioning at premises and Customs Broker has to rely upon the documents that have been issued by Government - Thus, even the two reasons assigned in inquiry report could not have been made the basis for revoking Customs Broker License of appellant in terms of Regulation 10(n) of 2018 Regulations - It is therefore, not possible to sustain the impugned order, same is set aside: CESTAT
- Appeal allowed: DELHI CESTAT |
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