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2023-TIOL-642-CESTAT-DEL
Jain And Sons Vs CC
Cus - SCN has been issued with respect to import, for rejection of declared assessable value and for re-valuation of goods with proposal to demand differential duty and confiscation also with respect to three past bills of entries - Further, penalty has also been proposed under Section 114A and 114 AA of the Act - Admittedly, Shri Pankaj Jain has not admitted any under-valuation of imported goods - Shri Pankaj Jain has stated that such machinery is also manufactured in India and he has purchased one similar machine from M/s. Lami Coats Shivakashi (T.N.) - This machine was equivalent in efficiency with model imported by appellant viz. TW- D16 - This fact has not been found to be untrue by Revenue - So far the allegation of mis-declaration of brand is concerned, admittedly, there is no mis-match in data contained in bill of entry filed by appellant and import documents viz. bill of lading, invoice - Appellant have stated that he had ordered for TW-D16 machines whereas supplier has erroneously dispatched DEBAO D-16 model machines - This error has been admitted by shipper/exporter, which fact has not been found to be untrue - Submitting of Samsung 4 G LTE mobile phone by appellant is vague as no IMEI number of said phone has been mentioned in statement wherein said phone has been said to have been submitted by appellant to Revenue - Further, recovery of data has been done behind the back of appellant and such data is not supported by appropriate certificate as required under Section 138 C (4) of the Act - Accordingly, whatsapp data recovered by Revenue from Samsung 4 G LTE phone is not reliable - Similarly, printouts of email submitted by person concerned is also not reliable - Further, admittedly, such documents are not authenticated by Chinese Customs or any other competent authority - SCN is bad as same does not propose rejection of transaction value nor the demand of differential duty, thus, said SCN is both speculative and presumptive - Statements of other persons are not reliable as none of such persons has been examined by Revenue in adjudication proceedings nor were offered for cross-examination, which is in violation of conditions precedent in Section 138 B of the Act - It has been held by Supreme Court in Sanjivini Ferro Alloys, that Revenue cannot proceed to revalue the goods without first rejecting transaction value in accordance with law - It was incumbent upon court below to record reasons for rejection of declared value - Adoption of unit price of USD 12450 per machine is bad as said price is in respect of import of only one machine and appellant have imported a lot of 16 machines - Impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-641-CESTAT-MAD
Nitco Ltd Vs CC
Cus - Appeal filed against O-I-A since the first appellate authority had dismissed the appeal of assessee on limitation and without going into the merits of case - The only issue to be decided is whether the assessee is served with O-I-O in time as held in impugned O-I-A - The sanction of refund was granted as early as 11.03.2010 and receipt of refund has also been acknowledged by assessee in its various letters addressed to Revenue authorities including the Commissioner of Customs - Hence, to say that sanction was ordered as per O-I-O is not correct - Moreover, the printed O-I-O placed in appeal memorandum does not even have a number nor does it have the date on which said order was passed and the date on which same was dispatched - This is the usual practice by original authority wherein O-I-O itself contains the printed number of order as well as the date - There is some insertion by hand but unfortunately Tribunal do not find any initial for carrying out correction or insertion which is essential hence said insertions do not impress Tribunal - Assessee did not receive the O-I-O until 06.01.2011, when it had an occasion to meet the Commissioner of Customs - Impugned order insofar as it relates to issue on limitation deserves to be set aside as unsustainable - Further, first appellate authority has not given any findings on merits of case, though he has discussed about the same in impugned order - Matter remanded back to the file of first appellate authority for disposal of appeal on merit alone, since there is no delay in filing the appeal before first appellate authority - Matter pertains to the vintage 2007, when refund application was filed and hence, first appellate authority is directed to dispose of the appeal within a period of six months: CESTAT
- Matter remanded: CHENNAI CESTAT
2023-TIOL-640-CESTAT-MAD
Gail India Ltd Vs CGST & CE
ST - The only issue involved is, whether the data entered in ST-3 Returns will bind the appellant and the act of not correcting an error in time will close the avenues for a claim of refund, filed subsequently by appellant - Refund claim under section 11B was rejected by Original Authority on the ground that claim cannot be modified by appellant to include a totally new ground - While Commissioner (A) in impugned order felt that appellant was seeking a refund claim under section 11 B to derive a double benefit by also taking credit of same amount - As per the appellant, total excess service tax paid by appellant was Rs. 11,47,41,041/- during period April 2011 to July 2014 - However, they have claimed a refund of Rs. 10,54,78,124/- only - The balance of Rs. 92,62,917/- which was not claimed was due to the fact that Rs. 66,24,851/- was adjusted by appellant under Rule (3) in October 2014 to March 2015 ST 3 Returns and Rs. 26,38,066/- that was not claimed due to being able to produce 'certificates of non-availment of credit' from 3 customers - It is seen that as per the table the amount of Rs. 66,24,851/- was not included in refund claim of Rs. 10,54,78,124/- and no double benefit was claimed - In a subsequent development, Tribunal vide its order 2017-TIOL-2877-CESTAT-DEL has held that there can be no levy of service tax on the activity of transportation of gas up to delivery point at customers premises as it pertains to self-service - Hence on this ground too they would be eligible for a refund under section 11B of CEA, 1944 - While this is a fresh legal issue which has not been examined by Original Authority, it is no longer in dispute that claims for refund, even where tax has been paid under a mistake of service tax law are to be filed and decided upon under Section 11B of Central Excise Act, 1944, subject to claimant establishing that burden of duty has not been passed on to third parties - However, the only issue for rejecting refund claim is a data entry in ST-3 Return, which when claimed to be erroneous by appellant was not verified for its correctness just because the original authority mistakenly found himself 'bound by legal framework' - Appellant's claim was wrongly dismissed without examining the claim based on verifiable facts - Hence the impugned order merits to be set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-639-CESTAT-KOL
ODC Logistics Pvt Ltd Vs CST
ST - Assessee is in appeal against impugned order whereby SCN has been adjudicated - Demand of service tax has been confirmed on two issues i.e. GTA services and denial of Cenvat credit on input services which are the subject matter for consideration in this appeal - Penalty under Section 78 has also been imposed - On first issue, the Commissioner while adjudicating the matter has clearly travelled beyond allegations made in SCN - The only allegation that was made in SCN that assessee has not made payment of service tax on expenditure incurred by them on lorry hire charges/freight charges, which were booked under broad head 'operational expenses' - However, in impugned order, demand has been confirmed on a different basis altogether that assessee has earned freight income from its client and since the assessee has not issued consignment notes which they were statutorily required to do so, assessee cannot claim any relief by not paying service tax - Impugned order has travelled beyond the scope of SCN, which is the very foundation in matter of levy and recovery of duty and authorities are required to restrict to allegations what has been set out in the notice - Non-compliance with said principles vitiates the entire proceedings which is legally not permissible - In any case, even Commissioner has accepted in order that the lorry suppliers were not required to issue consignment notes - Once the same is duly accepted, it cannot be said that assessee has received any GTA services from lorry suppliers - In that case, Rule 2(1)(d)(v) prescribing liability under RCM cannot be invoked - Hence, demand under GTA services cannot be sustained - On the second issue regarding Cenvat credit matter, only basis to deny credit is that the service providers could not be traced during the visit by Department officers - It is not known when such visits were made, what steps have been taken to ascertain whether tax amount has been ultimately deposited by service providers - Both SCN and impugned order are completely silent on enquiry report has not been made available at any stage of proceedings - Moreover, no allegation in SCN has been made that there was any connivance between assessee and service providers so as to facilitate availment of irregular or wrong credit - Allegation to deny credit is based on assumptions and conjectures which cannot be the reason to deprive assessee from availing credit - Hence, the order for recovery of credit cannot be legally sustained - Impugned adjudication order is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-638-CESTAT-KOL
Diamond Beverages Pvt Ltd Vs CCGST & CE
CX - The only issue to be decided is, whether Appellate authority was correct in rejecting refund application of appellant by holding that earlier order of Tribunal has been appealed against by department and hence the same has not attained finality - Appellant has produced records to show that appeal filed by revenue against Tribunal's order is pending before High Court at Calcutta and there has been no orders passed by High Court granting stay of operation of said order of Tribunal - Revenue department has not been able to produce any document to show that the order has been stayed by any higher authority - Both the lower authorities were not correct in rejecting refund claim of appellant on the ground of pendency of proceedings when no stay has been given by any higher court in earlier order regarding eligibility of Cenvat credit - In this regard, Tribunal rely upon CBIC Circular 572/9/2001-CX - Commissioner (A) had also passed orders on various other grounds which was never alleged while issuance of SCN and thus appellate order to that extent goes beyond the allegations raised in SCN and cannot be sustained on this ground also: CESTAT
- Appeal allowed: KOLKATA CESTAT |
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