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2023-TIOL-540-CESTAT-KOL
Dabur India Ltd Vs CCE
CX - The issue arises is, whether deduction on account of cost of transportation on equalized basis, is admissible - Appellant has stock transferred their final products to various depots from where they sold the goods to their ultimate customers - After amendment of section 4 and 'depot' has been added as a 'place of removel'' freight is includable in asseable value only upto the place of removal i.e. depot in this case - Appellant has been delivering goods from their depot to dealer's premises - Appellant has produced CA certificate and explained how they arrived at equalised freight - If there is any doubt on validity of CA certificate, then department should have brought in evidence to substantiate that - In absence of any evidence to doubt the veracity of CA certificate, deduction of equalised cost of transportation as claimed by appellant is admissible - In impugned order, Commissioner (A) opined that decision of Supreme Court in VIP Industries case is not applicable, as they have not stated that they sell their products at a uniform price all over the country - In their submissions, appellant stated they have been maintaining a constant price of products throughout the country and this practice is very much in knowledge of department - They stated that this is evident from letter issued by superintendent - There is no finding available on record contrary to the claim made by appellant - Hence, the decision of Supreme Court in VIP Industries case is applicable to them: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-539-CESTAT-KOL
Balasore Alloys Ltd Vs CCE
CX - Issue required to be decided is, whether CENVAT credit on services availed at the mines and capital goods installed at Chrome Ore Beneficiation Plant (COB Plant) would be an eligible credit in hands of factory - The mines and COB Plant at Sukinda and factory at Balgopalpur are integral part of same captive arrangement which is evident from Government of Odisha Order, whereby mining lease was granted with a condition that it shall be exclusively used for captive purpose to ensure steady supply of Chrome Ore to Ferro Chrome Plant - COB Plant is an integral part of factory and it has no separate legal identity - Invoices were issued in name of appellant and credit was availed only once after payment of duty by factory - Further, department has not disputed the nature of goods being capital goods, its use in manufacture of concentrated Ores which are ultimately used in manufacture of dutiable final products i.e. HCFC - No justification found to disallow the credit on capital goods availed by appellant - CENVAT credit on capital goods would be admissible in the hands of factory - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-538-CESTAT-KOL
CC Vs Mahavir Enterprises
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. Held - As in the case of Bhawani Enterprises reported in 2017 (353) ELT 234 (Tri.- Kolkata) 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 - In view of this, as the issue is no more res integra, therefore, we do not find any infirmity in the impugned order, accordingly, the same is upheld: CESTAT
- Appeal dismissed: KOLKATA CESTAT
2023-TIOL-537-CESTAT-KOL
Atul Kishor Guglani Vs CC
Cus - An intelligence was gathered by the Kolkata Zonal Unit of DRI to the effect that some unscrupulous operators are engaged in importing consignments from Hongkong and China grossly mis-declaring the description and value of the consignments using the IEC registered in the name of other person and shell companies - After preliminary investigation, it was found that one M/s A.S.S.Tradcom imported six consignments at Kolkata Port from Hongkong/China, out of which, two were already cleared, for another three consignments, Bills of Entry were filed and the Bill of Entry was yet to be filed for the six consignments - It was found that IEC holders are not the actual importers of these consignments - The copy of IEC has been obtained from DGFT - It was further found that M/s A.S.S.Tradcom is a partnership Company having partners, Shri Sailendra Singh and Shr Rajesh Roy, residents of Kolkata and Howrah respectively - It was seen that the Customs Broker for the Bills of Entry filed by the above said imports, is one M/s Modern Agency and two consignments were already cleared - Remaining four consignments were examined and found that the goods have been mis-declared and undervalued - It was found that these are branded goods, which amounting the case of suppression and smuggling - All the consignments were seized on the reasonable believe that the said consignments were imported with intention to evade payment of Customs duty misdeclaring those to a different materials of low value - No request for provisional release from the importer was made - It was further revealed that the office premises of the importer was found closed and unoccupied - Shri Sailendra Singh was not found at his residential address, which is occupied by him having 4/5 members - Residence of Shri Rajesh Roy was also searched and no incriminating things could be recovered - He was not present at that time - Statements of the Customs Borker of M/s Modern Agency was also recorded - Statements of Shri Sailendra Singh was also recorded wherein it has been revealed that he was a partner of the importer's firm and further investigation revealed that one Shri Sanjay Agarwal, who was involved in the import of the said consignment, stated that one Shri Monoj Singhal wanted to import the above consignments from Hongkong and it was in search of a person, who could give IEC to him on rent and for that he will pay some money - At this juncture, the Deputy Director advised the appellant not to interfere with the matter - The appellant did not disclose the identity of Shri Sameer Sharma - Later on, the the appellant had given the address of Shri Sameer Sharma and his phone number - The appellant stated that he knew Shri Sameer Sharma when the appellant was posted at ICD, Tuklakabad where, Shri Sameer Sharma used to handle the import consignment of garments in the name of the importers - On the request of Shri Sameer Sharma, the appellant came to the DRI Office to facilitate the clearance of the said goods - The appellant did not know how Shri Sameer Sharma was connected with the said consignments - Another statement of the appellant was recorded and show-cause notice was issued to the appellant to impose penalty under Section 112 (a) & 112 (b) of the Customs Act, 1962 alleging that the appellant has intended to abet the import of mis-declared and under-valued import in the name of M/s A.S.S.Tradcom. Held - From going through the said statement, it is clear that the importer could not have contacted to seek help of the appellant for clearance of the said consignment and the appellant also visited to Kolkata - Therefore, after meeting with the concerned person and knowing that there is a DRI alert, the appellant informed the importer that he could not do anything and further told that if it was known to him that there is a DRI alert, the appellant could not have come to Kolkata also - This part of the statement has not been denied by the Revenue and no other statement or evidence has come on record that the appellant was involved in the clearance of the above said consignments which were mis-declared and under-valued - The act of action of the appellant is only under bonafide belief - Hence no penalty is imposable on the Appellant: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-536-CESTAT-KOL
Lalit Kumar Arya Vs CCE & ST
ST - M/s. Lalit Kumar Arya was providing taxable service (Intellectual Property Rights Service) - The appellants assessee has filed a refund claim for Rs. 1,49,412/- on account of excess deposit of Service Tax on account of unutilized Cenvat Credit as per last return for the period October 2015 to March 2016 - It is stated in the Order-in-Original that the assessee is engaged in providing taxable service under the category of "Intellectual Property Rights Service" other than Copyright (Section (65)(55a) of the Finance Act, 1994) - The amount of Rs. 1,49,412/- was deposited on 05/5/2015 through epayment Challan No. 0005347-05052015-500965 as excess deposit of Service Tax and refund claimed on the ground of unutilized Cenvat Credit - The Assistant Commissioner of Central Excise rejected the refund claim filed on the plea that of the ST-3 Return for the period October 2015 to March 2016, in column 13.1/13.1.4, no opening and closing balance of Cenvat Credit was available with the assessee, as was sought to be claimed by way of refund - In appeal against the order of the Adjudicating Authority filed by the appellants, the Commissioner (Appeals) however, dismissed the said plea of non-reporting of the amount as found to be not correct - He observed that the ST-3 Return (October 2015 to March 2016) clearly showed the opening and closing balance of Cenvat Credit - However, the Commissioner (Appeals) rejected the said refund claim on the ground that the appellants were not eligible for refund under Rule 5B read with Notification 12/2014 - dated 3rd March, 2014 of the cenvat credit Rules, 2004, the Commissioner (Appeals) held the view that the said refund can only be claimed in respect of Cenvat Credit taken on input and input services during the half year for which the refund is claimed for providing output services. Held - In view of the fact that right to availment of Cenvat Credit is a vested right (Eicher Tractors V. UOI - 1999(106) E.L.T.-3SC, Samtel India Ltd. V. Commissioner -2003-TIOL-40-SC-CX which accrues to a manufacturer, the fact of closure of business leading to non-utilization thereof, cannot deprive the deceased of their accrued interests in law and following judicial discipline and precedent decisions - Appeal allowed with consequential relief, if any, to the appellant's legal heir as per law: CESTAT + This Tribunal had an occasion to consider the two contrary viewpoints in the case of CCE, Hyderabad Vs. Apex Drugs & Intermediates Ltd. 2014(314) E.L.T.729 T., after debating the same, it came to the conclusion that Rule 5 of the Cenvat Credit Rules did not prohibit the grant of such credit refund when for any reason accumulated credit was not utilizable - The assessee in the present case has ceased to be a manufacturer upon surrender of the licence and so the credit available remains unutilizable. Following the judgement of the Karnataka High Court in Slovak India Trading Pvt. Ltd., the Tribunal had dismissed the appeal filed by the department and allowed the refund. + A similar situation of accumulation of credit, however was considered by this Tribunal in the case of Nu Vista Ltd. V. Commissioner (Appeals), CGST, CEX. Raipur - 2022-TIOL-365-CESTAT-DEL. The credit remained unutilized as cesses viz. Education cess & Secondary Higher Education cess were phased out w.e.f. 01.03.2015. It was held therein that the appellants were clearly entitled to the refund of the balance amount of credit and any decision to the contrary was unsustainable. In arriving at the said ratio in law it followed the decisions of the Hon'ble Punjab and Haryana High Court in the case of Commissioner Shree Krishna Paper Mills & Industries Ltd. - C.E.A. No.36 of 2019 (OPM) decided on 11.12.2019 wherein refund of credit on account of closure of unit and surrender of licence was allowed to be paid in cash. Hon'ble Rajasthan High Court in the following cases also allowed refund of unutilized Cenvat Credit in cash + To similar effect is the Tribunal's decision in the case of Commr. of C.Ex. & Commr.(Appeals),Tirupati V. Kores (India) Ltd-2008-TIOL-2412-CESTAT-BANG allowing refund of Cenvat Credit lying with the assessee upon closure of the factory.
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-535-CESTAT-DEL
Anand And Anand Vs CST
ST - The Appellant, a Law firm, has filed this appeal to challenge the order dated December 22, 2017 passed by the Commissioner (Appeals-I), Central Tax/CGST, Delhi the Commissioner, by which the order dated May 19, 2017 passed by the Assistant Commissioner rejecting the refund claims filed by the appellant under rule 5 of the CENVAT Credit Rules, 2004 2004 Rules for the period from April 2015 to December 2015 has been upheld and the appeal has been rejected. Held - The issue involved in this appeal is covered by a judgment of the Delhi High Court rendered on August 01, 2022 in SERTA 9/2022 (Commissioner of CGST, Delhi East vs. Anand and Anand) in the appellant's own case - It was held therein that "... A plain reading of Rule 5 of the 2004 Rules would show that as long as the service provider provides an output service which is exported without payment of service tax, such service provider will be eligible for refund of CENVAT credit..." - In view of the decision of the Delhi High Court, it has to be held that the appellant was entitled for refund of the claims made under rule 5 of the 2004 Rules: CESTAT
- Appeal allowed: DELHI CESTAT |
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