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2023-TIOL-894-HC-KERALA-VAT
Pragati Gold Pvt Ltd Vs State Of Kerala
Whether it is fit case for remand where assessee's eligibility for refund has to be considered in light of the assessee's claims of having deposited certain amount of tax - YES: HC
- Case remanded: KERALA HIGH COURT
2023-TIOL-694-CESTAT-KOL
Visa Resources India Ltd Vs CC
Cus - A SCN was issued to appellant under Customs (Provisional Duty Assessment) Regulations, 2011 seeking as to why penalty should not be imposed on them for non finalization of provisionally assessed Bills of Entry - Adjudicating Authority imposed a penalty of Rs.10,000/- under Regulation 5 of Regulations, 2011 by taking a lenient view - Revenue filed an before Commissioner (A) seeking to enhance the penalty of Rs. 2,00,000/- on the ground that in respect of 4 Bills of Entry yet to be finally assessed, Adjudicating Authority should have imposed penalty @ of 50,000/- for each Bill of Entry - Appellant submits that in respect of all the 16 Bills of Entry, they have filed all necessary documents with Department for finalization of the same - In respect of 12 Bills of Entry, assessments were finalized - In respect of balance 4 Bills of Entry, same was not finalized, nor any defect was pointed out by Department for documents submitted by them - Therefore, he pleads that Adjudicating Authority has correctly taken a lenient view and imposed penalty of Rs. 10,000/- - In case of Jai Balaji Industries Ltd., on similar issue, Tribunal has held that lenient view taken by Adjudicating Authority is proper - In view of foregoing, it is held that Adjudicating Authority was correct in taking a lenient view imposing penalty of Rs.10,000/-: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-693-CESTAT-KOL
Titagarh Industries Ltd Vs CCE
CX - In SCNs, it has been alleged that appellant and M/s Titagarh Wagon Ltd. (TWL) are "related persons" and hence valuation of goods sold to TWL by appellant should be made in accordance with Rule 9 read with Rule 11 of Central Excise (Determination of Value) Rules, 2000 for purpose of discharging Central Excuse duty and not under Section 4 of CEA, 1944 - Issue to be decided is, whether 110% of cost of production can be adopted to determine differential value, when same goods are sold to TWL and independent buyers at the same rate - Impugned order has cited Board Circular 643/34/2002-CX., and concluded that When the goods are sold partly to related person and partly to independent buyers, there is no specific rule covering such a contingency - The adjudicating authority observed that in such cases, transaction value in respect of sales to unrelated buyers cannot be adopted for sales to related buyers since as per Section 4(1) transaction value is to be determined for each removal - For sales to unrelated buyers valuation will be done as per Section 4(1)(a) and for sale of same goods to related buyers recourse will have to be taken to residuary Rule 11 read with Rule 9 (or 10) - Rule 9 cannot be applied in such cases directly since it covers only those cases where all the sales are made to related persons - Accordingly, citing the Board Circular, he adopted 110% of cost of production to arrive at differential duty - Adjudicating authority has wrongly interpreted Board Circular - As per said Circular, when there is independent sale along with sale to 'related persons', Rule 9 is not applicable and recourse will have to be taken to residuary Rule 11 - As per best judgment method under Rule 11, the value of goods sold to independent buyer should be the value for sale to 'related persons' also - This view has been taken by Apex Court in case of Merino Panel Products Ltd. 2022-TIOL-103-SC-CX - Demands confirmed in impugned order are not sustainable and same are set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-692-CESTAT-KOL
Jain Brothers Vs CCGST & CE
CX - The issue to be decided is, whether the process adopted by appellant amounts to 'manufacture' as per definition of manufacture in section 2(f) of Central Excise Act, 1944 read with Section and Chapter Notes of First Schedule to Central Excise Tariff Act, 1985 - Appellant purchased 'Jumbo Paper Rolls' from traders as well as from manufacturers - The raw material, i.e. 'Jumbo Paper Rolls' cannot be used in same roll form for use as "Writing Paper' - It needs to be cut into smaller size, may be ruled or not, depending upon its end use, and organized into 'set of papers' for selling in retail market - The Appellant with the aid of machines cut those rolls into different sizes - Activities undertaken by appellant does not change the nature of paper - It does not bring a new commodity with a distinct name, character and use - The writing paper remains as writing paper only, even after cutting - The decision in case of S.R Tissues squarely covers the issue wherein Supreme Court held that cutting/slitting of Jumbo Roll of Plain Tissue Paper into smaller size will not amount to manufacture - Following the said decision of Supreme Court, it is held that activity of converting jumbo rolls into 'writing and paper sheets' undertaken by appellant does not amount to 'manufacture' - Accordingly, clearance of such goods will be considered as 'Trading' and value of traded goods will not includable in assessable value for the purpose of computing value of clearances to determine the eligibility of benefit of notification 8/2003 - After excluding the value of traded goods, value of clearances of appellant was within the limits prescribed for availing benefit of exemption under said Notfn in respective Financial Years during period under dispute - Hence, demands confirmed in impugned orders are not sustainable: CESTAT
- Appeals allowed: KOLKATA CESTAT
2023-TIOL-691-CESTAT-MAD
Nadippisai Pulavar K R Ramasamy Cooperative Sugar Mill Vs CCE & ST
ST - Appellant is a manufacturer of Sugar and Molasses and are also holding Service Tax Registration for payment of Service Tax on GTA Services - Main allegation against appellant is that it was engaged in supplying man-power required by farmers viz. Agriculturists registered with them - Kankhanis/Gang Leaders who supervise the work of cane harvesting labourers are registered with appellant and it is seen that as per requirements of farmers, the services were made available for cane harvesting - However, utilisation of these services of Kankhanis/Gang Leaders is optional as all the sugar cane farmers though registered with factory for supply of sugar cane, have not utilized services of Kankhanis/Gang Leaders for cane harvesting - Even the service charges that are payable to these cane harvesting labourers is determined by farmers in negotiation with Kankhanis/Gang Leaders - By registering these Kankhanis/Gang Leaders and giving advance to them and making available the services of these cane harvesting labourers and recovering cane cutting charges from dues payable to farmers for supply of sugar cane, would not make the appellant a manpower supplier - Cane cutting charges are decided by farmers in consultation with Kankhanis/Gang Leaders and are generally paid on per tonne basis - There is nothing on record to suggest that cane cutting labourers are the employees of appellant - No employer and employee relationship exists between appellants and Kankhanis/Gang Leaders - The labourers are not supplied on per hour or per day basis - Cane harvesting charges are reportedly negotiated with Kankhanis/Gang Leaders by farmers themselves - Reportedly, some farmers are not utilizing the services of appellant for obtaining the labourers - As such, demand raised on appellant under manpower supply is not maintainable - The services of appellant would not be classifiable under 'manpower recruitment or supply agency' service - Consequently, demand raised cannot sustain: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-690-CESTAT-MAD
CGST & CE Vs Vedanta Ltd
ST - Department has demanded service tax under category of "Banking & Other Financial Services" on the fees paid by assessee to foreign banks and financial institutions on External Commercial borrowings - In SCN, it is alleged that such banks and financial institutions do not have an office or permanent establishment in India - The assessee has given detailed break up of demand raised in SCN as well as table in grounds of appeal - The table will demonstrate that such financial institutions have a permanent establishment in India - Some amounts relate to period prior to 18.04.2006 which is before the introduction of Section 66A of Finance Act, 1994 and therefore not taxable under reverse charge mechanism - From the details furnished by assessee in the synopsis, it is found that department has failed to adduce any evidence that the figures of Rs.51,75, 733/- is subject to service tax and these banks and financial institutions do not have permanent establishment in India - No grounds found to interfere with impugned order passed by original authority - Impugned order is sustained: CESTAT
- Appeal dismissed: CHENNAI CESTAT |
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