2023-TIOL-869-HC-MUM-MISC
Mayur Enterprises Vs UoI
Whether cash credit account being in nature of overdraft facility, should not be freezed - YES: HC Whether premises which were earlier sealed in relation to search and seizure operations, merits to be unsealed by concerned officer, so as to proceed with inspection - YES: HC
- Case deferred: BOMBAY HIGH COURT
2023-TIOL-669-CESTAT-MUM
Dinal Diam Vs CC
Cus - The appellant filed Shipping Bill for export of cut & polished diamonds duly supported by Export Invoice - 'Let Export Order' for goods covered under said shipping bill was granted, however after the export was completed it was noticed by exporter i.e. appellant that while preparing checklist inadvertently they entered the name of exporter as Dinal Diamonds instead of correct name i.e. name of appellant and accordingly they requested for amendment in aforesaid shipping bill alongwith supporting documents - If request of amendment is on the basis of documentary evidence, which was in existence at the time the goods were exported then amendment can be allowed by proper officer - Although the export has been made by appellant but inadvertently the name of M/s. Dinal Diamonds was mentioned and when the mistake has been realized, exporter/CHA immediately took step and filed the amendment application alongwith supporting documentary evidence existing at the time of export viz. Export Invoice and Airway Bill and all these documents contain the name of appellant only and there is no mention of M/s. Dinal Diamond in those documents - The shipping bill which inadvertently contained the name of Dinal Diamonds has been prepared on the basis of airway bill and the invoice which strengthen the claim of appellant that they are actual exporter and have been rightly granted amendment by adjudicating authority u/s. 149 of Customs Act, 1962 - The invoice also contains IEC Code and GST of appellant only - The observation of Commissioner that appellants are not actual exporter and hence section 149 ibid has no application is without any basis - Therefore, impugned order is set aside: CESTAT -
Appeal allowed: MUMBAI CESTAT
2023-TIOL-668-CESTAT-KOL
Praveen Kumar Gupta Vs CC
Cus - The SCN states that on the basis of recorded information, the officers of Customs, CCP, West Bengal, on 10 June 2009, intercepted a carrier vehicle bearing registration number WB 19 D2303 - Upon examination, the vehicle was found to contain shoes and cigarettes of foreign origin camouflaged with nearly 420 kgs of Ginger - The driver of the vehicle Mukesh Rahman was taken into custody and his statement recorded under section 108 of the Customs Act - In his statement the driver of the vehicle stated that he was actually contracted by a person named Mohammed Fayaz to carry Ginger from the airport to Pusta Kolkata, that on three occasions in the past, he had indulged in this type of contract to carry the goods from the airport and unloaded them at different places for which he received Rs. 1000 per trip - The notice further states that around 20:00 hours on the day of seizure one Shri Praveen Kumar Gupta appeared before the authorities seeking release of the vehicle purported to be of his friend - However, upon instant identification of Shri Praveen Kumar Gupta, as the owner of the contraband goods and the notified nature of cigarettes of foreign origin, Shri Praveen Kumar Gupta was arrested under section 104 of the Customs Act, 1962 - In his reply to the SCN, Shri Praveen Gupta denied the ownership of the said goods of foreign origin and stated that he had gone to the Custom House at the behest of his friend, to enquire about the seized vehicle and its release - The adjudication proceedings culminated in absolute confiscation of the foreign origin goods., confiscation of the seized vehicle and its release under section 125 of the Customs Act, imposition of penalty of Rs. 1,00,00 on Shri Praveen Kumar Gupta under section 112 of the Customs Act, a penalty of Rs. 20,000 under section 112(b) of the Customs Act on Shri Mukesh Rahman(who did not participate in the adjudication proceedings) and the confiscation of Indian origin, ginger used for concealment of the foreign origin goods.
- Appeal dismissed: KOLKATA CESTAT
2023-TIOL-667-CESTAT-KOL
Bagjan Tea Estate Of Mcleod Russel India Ltd Vs CCE
CX - Demands have arisen due to retrospective amendment of Notfn 33/99-CE through section 153 of Finance Act, 2003 - The said retrospective amendment was upheld by Guwahati High Court vide its Order dated 21/09/2006 - Said amendment envisaged that CENVAT Credit availed shall be payable retrospectively within a period of 30 days from the day the Finance Bill received the assent of president and in the event of non payment of duty, 15% interest shall be payable from the date immediately after expiry of period of 30 days - Accordingly, impugned orders confirmed the demands, being the CENVAT credit lying unutilized - It is the case of appellant that this demand has gone beyond what is envisaged in retrospective amendment - Appellants stated that the retrospective amendment only validates recovery of CENVAT Credit availed between 08/07/199 to 22/12/2002 - Demands in these three cases have gone beyond 22/12/2002 and sought recovery of CENVAT Credit lying unutilzed as on 28/02/2003 - Decision of Tribunal in case of Hunwal Tea Estate is squarely applicable in this case - The retrospective amendment has validated recovery of Cenvat credit availed for period from 08/07/99 to 22/12/2002 only - Whereas, the demand in these cases have gone beyond 22/12/2002 and demanded recovery of CENVAT credit availed upto 28/02/2003 - Accordingly, demands in impugned orders are not sustainable: CESTAT
-Appeals allowed: KOLKATA CESTAT
2023-TIOL-666-CESTAT-KOL
Ultratech Cement Ltd Vs CCGST & CE
CX - A ppellant is engaged in manufacture of cement and clinker - During impugned order, they supplied cement to builders, hotels, Hospitals and Government manufacturing industries for use in manufacturing activity i.e. construction - On all the bags of cement cleared to such customers, it is mentioned that same is not for sale and meant for industrial or institutional customers - Said cement was cleared by appellants at concessional rate of duty at Sl.No.1C of Rate Notfn 4/2006-CE till 16.03.2012 and from 17.03.2012, they cleared the same at the rate prescribed at Sl.No.52 of Notfn 12/2012-CE - The benefit of said Notfn was denied to appellant on the clearances of said buyers as such buyers cannot be recognised as industrial or institutional customers - The issue is no more res integra in view of decision in appellant's own case, therefore, demand of duty is not sustainable against appellant as cement in 50 kgs bags sold to buyers qualifies as sale to institutional/industrial customers to avail benefit of said Notfn - No demand is sustainable against appellant - Accordingly, impugned orders are set aside: CESTAT
- Appeals allowed: KOLKATA CESTAT
2023-TIOL-665-CESTAT-KOL
Singhania And Sons Pvt Ltd Vs CCGST & CE
ST - The issue relates to alleged non-payment of service tax on a reverse charge basis under business auxiliary services in respect of export orders procured from foreign agents and technical inspection and certification services provided at discharge Port by non-resident service provider - Tax demand under both taxable categories have been confirmed by invoking extended period of limitation - Burden of proving malafide i.e. an intent to evade is upon revenue - Appellant had specifically averred before adjudicating as well as first appellate authority that they acted upon a legal opinion wherein they were advised about non-taxability of said services, which aspect has neither been dealt with nor controverted by revenue - Therefore, the plea of bonafide belief appears to be available to appellant in light of decision of Tribunal in Delhi International Airport = 2019-TIOL-685-CESTAT-DEL - Both these services were used for export and therefore, exempted vide Notfn 41/2007- ST albeit by way of refund - In an identical fact situation, Tribunal had dropped tax demand raised with respect to foreign commission agency services as well as technical inspection and certification services in Wanbury Limited = 2018-TIOL-1759-CESTAT-MUM - In light of said decision also, demand beyond normal period cannot sustain - Even on merits, technical inspection and certification services were rendered at discharge Port outside India and therefore could not be said to have been imported under Rule 3(ii) of Taxation of Services Rules, 2006 being covered by Section 65 (105) (zzi) of Finance Act, 1994 and there was no scope to invoke Rule 3(iii) of said Rules - Entire demand with respect to Foreign Commission Agent for period October 2007 to March 2011 is hit by limitation and demand under Technical Inspection and Certification for period October 2007 to March 2012 is not sustainable on merits and limitation - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-664-CESTAT-MAD
Toshiba Jsw Power Systems Pvt Ltd Vs CGST & CE
ST - Appellant is engaged in trading of spares and accessories of "Turbines" - The issue is with regard to formula that has to be adopted for reversing credit as required under Rule 6 (3) of CCR 2004 - The only dispute is whether the total cenvat credit on input services availed by appellant has to be taken for computation of amount that has to be reversed or whether the total cenvat credit availed on common input services has to be applied - Issue is no longer res integra and has been decided by Tribunal in case of Chennai Petroleum Corporation Ltd. wherein it was observed that if the whole Rule 6(1)(2)(3) is read harmoniously and conjointly, it is clear that "Total Cenvat Credit" for purpose of formula under Rule 6(3A) is only total Cenvat credit of common input service and will not include Cenvat credit on input/input service exclusively used for manufacture of dutiable goods - The demand confirmed alleging that appellant has adopted incorrect formula is set aside - The second issue is with regard to demand of service tax under BAS - Appellant is not contesting the liability to pay service tax or interest thereon - It is submitted that penalty imposed in this regard under Section 76 may be set aside - On perusal of impugned order, it is seen that original authority has imposed an amount of Rs. 42,989/- only as penalty - Further option to pay reduced penalty @ 25% of service tax demand has also been given - No grounds found to set aside the penalty and same is upheld: CESTAT
- Appeals partly allowed: CHENNAI CESTAT |
