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2023-TIOL-716-CESTAT-BANG
CC Vs Easun Reyrolle India Pvt Ltd
Cus - The common factual dispute in both the cases relates to finding on rating of imported "Relay" which is relevant in deciding the benefit of Notfn 21/2022-Cus - In one order, it is said that sometime, it is exceeding 7 amps and in another order passed on the basis of a certificate issued by Central Power Research Institute, the Commissioner(A) categorically observed that rating is always less than 7 amps - To resolve the issue, matter is remanded to adjudicating authority to examine the report along with technical literatures and catalogues claimed to have been submitted by assessee-appellant to arrive at the conclusion, whether the "Relays" are designed to exceed 7 amps or otherwise; consequently decide the admissibility of eligibility of Notfn 21/2002-Cus - Reasonable opportunity of hearing be given to assessee: CESTAT
- Matter remanded: BANGALORE CESTAT
2023-TIOL-715-CESTAT-KOL
Rumen Dey Vs CC
Cus - The issue involved is undervaluation of cement imported from Bangladesh - Department alleged that declared MRP of cement imported by appellant was much less as compared to MRP declared on cement imported from same manufacturer through other ports - Appellant stated that MRP printed on goods imported through other ports can be different as Place of importation itself was different and hence difference in MRP is quite natural - MRP on same item is decided in consideration of a number of factors besides landing cost and duty element - The goods were imported through different ports - That itself is a valid reason for difference in price - There is no evidence to suggest that the goods so imported through different ports under different MRP were being sold at same price - Hence, price difference cannot be attributed to suppression of value by appellant - Accordingly, demand is not sustainable - Self-assessment of Bills of Entry by importer was not challenged by department - Impugned order passed demanding differential duty without challenging the original assessment of Bills of entry is not sustainable - Hence, demand is not sustainable - Impugned order is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-714-CESTAT-MAD
Starpac India Ltd Vs CCE
CX - The only issue to be decided is, whether appellant is liable to pay duty equivalent to CENVAT Credit availed when goods were returned to factory or to pay applicable rate of duty for removal of any normal goods in terms of sub-section (2) to Section 3 or Section 4 or Section 4A of Central Excise Act, 1944 - At the time of first removal, invoice raised contains description as "Double Head Fully Automatic Linear Pick Fill & Seal Machine for pre-formed pouches" - In specification sheet attached to invoice, it is mentioned as "Filler: Piston Pump With Servo Driven" - In second invoice, though description remains the same, but it is mentioned as "Non-Servo Driven Filler" and customer is clearly identified - Thus, main difference between machine when it was returned from exhibition and that which was sold subsequently is on account of change in piston pump - The machine which was sent for exhibition was fitted with Servo Drive whereas it was changed to Pneumatic Drive when it was subsequently sold and cleared - Reportedly, there was a change in rate of duty applicable from time when machine was sent for exhibition to the time when it was actually sold, as apparent from table - Tribunal do not see any dispute by Revenue as to the fact or contention of appellant that upon receipt in factory from exhibition, the product had lost its originality or that same required reprocess to bring it back to original shape and only thereafter that machine in question could be sold or removed as such - That means the product was brought back into factory only to be re-processed and this claim of appellant was never disputed by Revenue - Appellant carried out required process of quality inspection and replaced the Servo Driven Filler with a Pneumatic Driven Filler - Further, original machine that was made, was sent to exhibition, which was brought back and after elapsing of some time, the machine was sold and cleared like any other excisable goods - That being the case, no contravention of Valuation Rules by the appellant found, as an important part of machine sold has been replaced with a less advanced component, slight reduction in value of machine sold is found to be normal - In impugned order, demanding differential duty is not sustainable and so, set aside - Accordingly, penalty imposed is also set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-713-CESTAT-DEL
CST Vs Spicejet Ltd
ST - The SCN was issued on 21.10.2014 - In regard to demand of CENVAT credit taken in excess of rule 6(3A) of 2004 Credit Rules, period of dispute is from July 2010 to March 2011 - In regard to demand of service tax short paid on excess baggage charges, period of dispute is from April 2009 to March 2012 - Entire demand is for the extended period of limitation - The Commissioner has recorded a categorical finding of fact that extended period of limitation could not have been invoked - This finding has not been assailed by department in this appeal and the challenge is only to the findings recorded by Commissioner for dropping the demand proposed in SCN - Thus, in the absence of any challenge to this finding, extended period of limitation could not have been invoked - When the entire demand proposed in SCN is for the extended period of limitation, demand proposed in SCN has to be set aside, irrespective of challenge by department to the issues on merit - The audit of statutory records of respondent was conducted from 02.05.2012 to 08.05.2012 - The same issues and demand were suggested in audit report - Respondent had also been filing ST-3 returns - However, SCN was only issued on 21.10.2014, i.e. after more than two years of facts coming to the knowledge of department - The department could have issued the SCN within normal period of limitation - Extended period of limitation could, therefore, not have been invoked by department - Thus, appeal filed by department deserves to be dismissed: CESTAT
- Appeal dismissed: DEHI CESTAT
2023-TIOL-712-CESTAT-DEL
Dharatal Infrastructures Vs CCE, C & ST
ST - The appellant was engaged in providing 'commercial or industrial construction' service and was discharging service tax liability on 33% of value declared under category of 'commercial or industrial construction' service while availing abatement of 67% under notification dated 1.3.2006 - A SCN was issued to appellant proposing to demand differential service tax on 67% value of 'commercial or industrial construction' service by denying the benefit of notification availed by appellant - Issue that arises for consideration is whether the value of free of cost items can be included in gross value for availing abatement - This issue has been settled by Supreme Court in Bhayana Builders 2018-TIOL-66-SC-ST , which decision affirmed the decision of Larger Bench of Tribunal in Bhayana Builders 2013-TIOL-1331-CESTAT-DEL-LB - Thus, value of materials provided free of cost by customers to appellant cannot form part of taxable services rendered by appellant as neither any price was charged by appellant for such items, nor any monetary benefit accrued to appellant from such supplies against provision of service - The free of cost material cannot, therefore, be included in gross value for claiming abatement - The denial of abatement under said notification cannot be sustained - Now the issue is, whether abatement under said notification is extendible on subsequent reversal of credit - Appellant had reversed CENVAT credit which was taken in ST-3 returns during relevant period - Such reversal of credit would be equivalent to non-availment of credit - Hence, abatement under notification could not have been denied to appellant and demand is set aside - It would not be necessary to examine the contention raised by appellant that extended period of limitation could not have been invoked - Impugned order cannot be sustained and is set aside: CESTAT
- Appeal allowed: DELHI CESTAT |
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