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2023-TIOL-768-HC-P&H-VAT
Escorts Ltd Vs State of Haryana
Whether Revenue has rightly imposed penalty as there is lack of bona fides on part of assessee as he did not file revised returns u/s 25(4) of 1973 Act and waited till filing of fourth return - YES : HC Whether assessee has deliberately filed incorrect return and omitted to pay amount of tax due - YES : HC Whether mens rea and deliberate attempt to conceal and suppress taxable turnover by fabricating or maintaining false returns with a motive to evade payment of tax due are essential u/s 48 of HGST Act - YES : HC
- Assessee's appeal dismissed: PUNJAB AND HARYANA HIGH COURT
2023-TIOL-578-CESTAT-HYD
Blaze Colour Laboratories Vs CC
ST - The issue as to whether cost of consumables is includible in assessable value or not was under dispute and was being litigated in various coordinate Benches of Tribunal, who have taken varying stands and decisions - Matter had also gone up to Supreme Court and was resolved by way of Larger Bench which shows that even coordinate Benches were not on the same page on this issue - It is seen from the record that even in appellant's own case, Commissioner (A) has agreed with submissions of appellant that they are eligible to get abatement towards the cost of consumables used by them - This would mean that within the same Department the Adjudicating Authority has taken stand that the value of consumables is to be added and Commissioner (A) has taken stand that the same is not required to be added - Such being the case, it is clear that the issue is of interpretation - Appeal allowed to the extent that confirmed demand for extended period along with the interest is set aside - Appellant is required to calculate and pay Service Tax for normal period along with interest - Since the entire issue is on account of interpretational difficulties, all the penalties are set aside: CESTAT
- Appeals partly allowed: HYDERABAD CESTAT
2023-TIOL-577-CESTAT-DEL
R K Singh And Company Vs CC & CE
ST - A show cause notice dated April 02, 20213 was issued to the appellant proposing a demand of Rs. 54,49,215/- - The period of dispute in the present appeal is from April 01, 2007 to March 31, 2012 - It transpires from the SCN that the Department came to know that M/s BALCO, Korba had taken credit of the service tax paid and, therefore, investigation was initiated against the appellant to ascertain whether it had actually paid the service tax - The appellant filed a reply to the SCN contending that not only was the demand not justified, but even otherwise the extended period of limitation could not have been invoked - The Commissioner confirmed the demand vide the order-in-original. Held - It is necessary to examine the show cause notice dated April 02, 2013 - The SCN mentions that the ST-3 returns and the balance sheet of the appellant had been perused and since the balance sheet shows Rs. 15,03,87,703/- and ST-3 returns show a taxable value as Rs. 10,34,19,681/-, the appellant would have to pay service tax of Rs. 54,49,215/- on the taxable value of Rs. 4,69,68,022/- - It is, therefore, clear that the SCN which was issued for the period April 01, 2007 to March 31, 2012 does not give any reason as to why the amount would be taxable and, if so, then under which category - What transpires from the SCN is that the difference between the amount shown in the balance sheet and the ST-3 returns has been construed to be a taxable amount - The demand has been proposed in the SCN only because of the difference between the figures shown in the balance sheet of the appellant and the ST-3 returns - The SCN, therefore, is vague - The order passed by the Commissioner confirming the demand on this show cause notice, therefore, deserves to be set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-576-CESTAT-BANG
Ashok Iron Works Pvt Ltd Vs CCE, C & ST
CX - Assessee is in appeal against denial of cenvat credit of outward transportation charges - It is noticed from O-I-O that essentially credit has been denied on the grounds that sale contract and invoices do have the words "Door Delivery" or "FOR" mentioned on said documents - It is seen that the only sample documents have been seen by lower authorities and only sample documents have been produced before Tribunal - From the CBIC Circular No. 1065/4/2018-CX, dated 08-06-2018 , it is apparent that essential criteria for allowing or disallowing the credit is if Central Excise duty has been paid after including freight element or otherwise - In case Central Excise duty has been paid after including freight element in assessable value then cenvat credit of service tax paid on freight element has to be allowed - Prima facie from the perusal of sample documents produced by appellant, it is noticed that central excise duty has been paid after including the freight element - However, since only sample documents have been produced, it is necessary that a detailed verification may be conducted by lower authorities to ascertain if Central Excise duty on all the documents have been paid after inclusion of freight element in assessable value - In case Central Excise duty have been paid after inclusion of freight element in assessable value then cenvat credit of GTA paid on said freight element cannot be denied in terms of aforesaid Circular - Impugned order is set aside and matter is remanded to original adjudicating authority for fresh adjudication after following aforesaid Circular issued by CBIC: CESTAT
- Appeal partly allowed: BANGALORE CESTAT
2023-TIOL-575-CESTAT-AHM
Extrusion Ltd Vs CCE & ST
CX - Assessee is in appeal against denial of cenvat credit of outward transportation charges - It is noticed from O-I-O that essentially credit has been denied on the grounds that sale contract and invoices do have the words "Door Delivery" or "FOR" mentioned on said documents - It is seen that the only sample documents have been seen by lower authorities and only sample documents have been produced before Tribunal - From the CBIC Circular No. 1065/4/2018-CX, dated 08-06-2018 , it is apparent that essential criteria for allowing or disallowing the credit is if Central Excise duty has been paid after including freight element or otherwise - In case Central Excise duty has been paid after including freight element in assessable value then cenvat credit of service tax paid on freight element has to be allowed - Prima facie from the perusal of sample documents produced by appellant, it is noticed that central excise duty has been paid after including the freight element - However, since only sample documents have been produced, it is necessary that a detailed verification may be conducted by lower authorities to ascertain if Central Excise duty on all the documents have been paid after inclusion of freight element in assessable value - In case Central Excise duty have been paid after inclusion of freight element in assessable value then cenvat credit of GTA paid on said freight element cannot be denied in terms of aforesaid Circular - Impugned order is set aside and matter is remanded to original adjudicating authority for fresh adjudication after following aforesaid Circular issued by CBIC: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2023-TIOL-574-CESTAT-KOL
CC Vs R D Impex
Cus - Assessee imported old and used worn clothing, completely fumigated which were assessed after value enhancement, confiscation and imposition of redemption fine and penalty - Adjudicating Authority has imposed redemption fine and penalty at the rate of 30% & 7.8% of assessed value respectively - In some of the cases where goods are not available, no redemption fine is imposed - Revenue is before Tribunal for enhancement of redemption fine and penalty - Following the decision of Tribunal in Venus Traders , it is held that redemption fine and penalty imposed on assessee by Adjudicating authority is sufficient to meet the end of justice - Therefore, redemption fine and penalty confirmed by Adjudicating authority is upheld - Consequently, no infirmity found in impugned order and same are upheld: CESTAT
- Appeals dismissed: KOLKATA CESTAT
2023-TIOL-573-CESTAT-MUM
ASB International Pvt Ltd Vs CCE
Cus - The issue for determination is eligibility of 'polyethylene (PET) granules' used in testing of 'moulds' manufactured and acknowledged as goods eligible to qualify towards fulfilment of 'export obligation', by appellant as intended to be covered by Notification No. 52/2003-Cus - Said exemption operationalizes the intent of Government of India in formulation of design of 'export oriented scheme (EOU)' of Foreign Trade Policy (FTP) - The policy does not distinguish any category of goods in the conceptual framework but allows 'all types of goods' in paragraph 6.2(b) and even the Handbook of Procedures (HoP), in paragraph 6.5.1, has clubbed 'raw materials, components, consumables, intermediates, spares and packing materials' as one distinct category for purposes of exemption implying, thereby, that these are all inputs in manufacturing process - The clubbing of all of these as 'inputs' for purpose of accountal of eligible quantities of each does not exclude any type of goods used in production and jurisdictional authorities have not been able to show that 'standard input output norms (SION)' have not been conformed to - That 'polyethylene (PET) granules' deployed in production of goods in trial run of moulds manufactured by appellant have been considered as 'inputs' for manufacture between March 2010 and March 2013 for the purposes of CENVAT Credit Rules, 2004 - These are, thereby, procured for manufacture of output and it is not open for Revenue to adopt a contrary stand merely for denial of exemption on procurement under a scheme of Foreign Trade Policy (FTP) - Considering that 'polyethylene (PET) granules' are used during manufacture of 'moulds' that are the acknowledged export product of appellant and which, even if not deployed in manufacture of mould, renders acceptability of goods for customer in the absence of which export obligation would remain unfulfilled, it is nothing but 'consumables' which are covered by omnibus enumeration of eligible requirements other than capital goods, impugned order has erred in denying benefit of exemption - Accordingly, impugned order is set aside: CESTAT
- Appeals allowed: MUMBAI CESTAT |
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