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2023-TIOL-656-CESTAT-CHD
Vanick Oils And Fats Pvt Ltd Vs CCE
Cus - the importer has also imported 323.55 MTs of Bakery Shortening and filed bill of entry no. 1201 dated 11.07.2007 and 1210 dated 12.07.2007 - On the basis of test conducted by the Central Food Laboratory was found to be not conforming to the standards laid down under PFA Act, 1954 - In this instance also the show cause notice was waived and an Order-In-Original again 03/Cus/JM/07 dated 14.12.2007 was passed confiscating 323.55 MTs of bakery Shortening; allowing it to be re-exported on payment of redemption fine of Rs. 10,00,000/- and imposing a penalty of Rs. 5,00,000/- under section 112(a)(i) of Customs Act, 1962. On an appeal filed by the appellant, the CESTAT vide order dated 27.03.2012 reduced the redemption fine to Rs. 3.5 lakhs and set aside the penalty of Rs. 5,00,000/- - On an appeal filed by the Revenue Punjab and Haryana High Court vide order dated 21.03.2013 remanded the matter to CESTAT to examine the question as to whether the consignment in question was stray import warranting concession in redemption fine and penalty or not? CESTAT vide order dated 05.02.2014 rejected the appeal and upheld the order dated 12.12.2007 - ROA application was dismissed vide order dated 14.07.2014 - On an appeal filed by the importer Punjab and Haryana High Court vide order dated 05.09.2014 remanded the matter back to CESTAT to decide the same afresh in accordance with law and after affording an opportunity to the concerned parties - CESTAT vide final order dated 01.04.2015 restored appeal.
Held - the appellant importer have imported above 150 consignments, among which in about 2-3 consignments some lots were found non conforming to the standards under PFA Act - The fact that these consignments were inspected before shipment from the foreign country and respective authorities have issued certificates of analysis, which prove bona fides of the appellant importer - It is not the case of the department that the appellant importer was aware of the fact that the impugned goods were not conforming to the standards - Therefore, it cannot be held at least that the appellants had mens rea - We find that in terms of Notification No. 3(RE-2001) 1997-2002 dated 31.03.2001 that the products will have to comply with the quality and packaging requirements as laid down under PFA Act and that compliance of these conditions is to be ensured before allowing customs clearance of the consignments - We understand that customs authorities have detained these consignments for this reason and have imposed penalties and fine after following due process of law as contained in board circular No. 58/2001-CUS dated 25.10.2001 vide which it is directed that if the products fails the test, the customs authorities will ensure that the goods are re-exported out of the country by following the usual adjudication procedure or destroyed as required under the relevant rules: CESTAT
- Case remanded: CHANDIGARH CESTAT
2023-TIOL-655-CESTAT-MAD
Wipro Ltd Vs CGST & CE
CX - The allegation of department is that only if there is a transfer of ownership on account of sale, merger, amalgamation and there is transfer of ownership of capital goods, inputs as per sub-rule (3) of Rule 10 of CCR, 2004, the CENVAT credit can be transferred - It is thus alleged that as there is no transfer of capital goods / inputs as required under sub-rule (3) of Rule 10 and CENVAT credit lying unutilized in accounts of earlier EOU cannot be transferred to merged DTA Unit - Nothing found in Rule 10 which disallows transfer of CENVAT credit in the manner alleged by department - So also there is no dispute that credit availed by EOU which has been transferred is ineligible - The very same issue was considered by Tribunal in case of Technocraft Industries 2018-TIOL-3645-CESTAT-MUM - Following the ratio laid down by said judgment which is squarely applicable to the facts of case, it is held that the demand cannot sustain - Impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-654-CESTAT-MUM
Pepsico India Holding Pvt Ltd Vs CCE
CX - Issue involved is, whether the appellant is liable to pay excise duty on scrap of glass bottles cleared by them during period December, 2013 to May, 2014 - Commissioner (A) in impugned order has specifically observed after reproducing CBEC Circular 930/20/2010- CX , that the remission application filed by appellant as per Rule 21 of Central Excise Rules, 2002 has already been rejected and same has been elaborately discussed in O-I-O - Whereas in O-I-O, there is no such discussion on remission application and appellant also in their appeal have specifically mentioned that no such formal order has been passed as yet and that the said presumption of commissioner is without any basis - Tribunal is also unable to find any such discussion in O-I-O as stated by Commissioner in impugned order - Therefore, impugned order has been passed by commissioner without properly looking into the facts and adjudicating order - Even the date of O-I-O which is of June, 2015 has been wrongly mentioned as 20.10.2015 which also supported that it has not been properly looked into by Commissioner (A) - Therefore, without going into the merits of matter, matter remanded to 1st Appellate authority with a direction to decide the same afresh, within a period of three months : CESTAT
- Appeal allowed: MUMBAI CESTAT
2023-TIOL-653-CESTAT-DEL
Synergy Steels Ltd Vs CC
Cus - The issue arises is as to whether refund claim of appellant is barred by limitation under Section 27 of Customs Act, 1962 - The letter whereby the prayer for reassessment and refund of excess duty paid was made has to be treated as the date on which refund claim has been made and therefore same is within the period of limitation of one year as prescribed under Section 27 of Customs Act - After amendment in 2011, it is no longer necessary for an assessment or reassessment order to be made and the refund can be considered under provisions of Section 27 of the Act - Appellant has paid excess amount because of an error in EDI system whereby the benefit of Notfn 50/2017-Cus., was not appended and same was brought to the notice of authorities concerned vide letter alongwith the claim for refund of amount wrongly paid - Authority is duty bound to refund such amount as was ascertained by virtue of reassessment - Reference is invited to decision of Apex court in ITC Limited, wherein it has been observed "just as an assessee cannot be permitted to evade payment of rightful tax, the authority which recovers tax without any authority of law cannot be permitted to retain the amount merely because the tax payer was not aware at that time" - Therefore, it is concluded that authorities below have wrongly arrived at the decision that refund claim was made by appellant on 29.04.2019 and same was barred by time, being beyond the period of one year from the date of reassessment on 24.02.2018 - Impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-652-CESTAT-KOL
Mungipa Tradelinks Pvt Ltd Vs CCGST & CE
ST - Appellant has paid entire Service Tax along with interest and same has been appropriated by Adjudicating authority in impugned order - Appellant is before Tribunal mainly for penalties imposed - Appellant stated that they have paid the tax before issue of notice and hence as per section 73(3) of Finance Act, 1994, notice should not have been issued - Appellant has not paid service tax on their own - The tax was paid only after initiation of investigation by department - Findings of Adjudicating authority indicate that appellant tried to mislead the investigation - Appellant has been receiving money from their client for services rendered, but failed to pay service tax - From the statements recorded, it is evident that appellant was aware of service tax liability on services rendered by them - Thus, there was an intention to evade payment of service tax on the part of appellant - Accordingly, penalty has been rightly imposed by adjudicating authority under Section 78 of Finance Act - Since the entire tax confirmed in impugned order has already been paid, Adjudicating authority has given the option of payment of 25% of tax amount as penalty - Appellant had already paid 25% of duty as penalty, albeit 'under protest' - Thus, they have complied with payment of duty and penalty as determined in impugned order - Impugned order passed by Adjudicating authority is upheld: CESTAT
- Appeal dismissed: KOLKATA CESTAT |
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