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2023-TIOL-731-CESTAT-MAD
United India Shipping Services Vs CGST & CE
ST - Appellant is engaged in providing services in nature of Custom House Agent Services - From SCN itself, it is seen that the demand has been made on reimbursable expenses incurred by appellant - Further, the allegation as per SCN is that appellant has not included the charges in the nature of deconsolidation charges, transportation charges, DO charges incurred by them for providing CHA services - It is understandable that such charges are collected by appellant from their clients and paid to concerned service provider - It is settled position that reimbursable expenses is not subject to levy of service tax as per decision of Apex Court in case of Intercontinental Consultants and Technocrats Ltd. 2018-TIOL-76-SC-ST - Following the same, it is held that the demand cannot sustain - The impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-730-CESTAT-MAD
Shanti Builders Vs CST
ST - Revenue had entertained a doubt that appellant, who was a builder, had undertaken construction of various residential projects and rendered construction of complex services and therefore, they were liable to pay Service Tax, and consequently, issued a SCN proposing to demand Service Tax under construction of complex services from 16.06.2005 to March 2010 - Tribunal have gone through the orders of various CESTAT Benches which have been considered by Hyderabad Bench of CESTAT in M/s. Pragati Edifice Pvt. Ltd. = 2019-TIOL-3095-CESTAT-HYD - It has been categorically held that no Service Tax could be levied on construction of residential complexes prior to 01.07.2010 even when the service is rendered either as service simpliciter or as a works contract - Admittedly, period of dispute, is from 16.06.2005 to March 2010 and hence, said ruling is squarely applicable to present case - In view of the fact that no distinguishing/contrary order is placed on record, demand raised in impugned order cannot sustain, same is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-729-CESTAT-AHM
Indian Oil Corporation Ltd Vs CCE & ST
CX - Appellant filed refund claim of duty paid under protest - The department by SCN proposed to appropriate an amount deposited against aforesaid demand - There was also a proposal for charging interest and imposition of penalty - Lower authority rejected the refund claim based on the ground that claim was barred by limitation - It is not the appellant who at their own sou-moto paid the excise duty on other charges - Said duty was deposited on behest of department - The matter was further agitated by appellant of their other unit on merit hence the issue on merit attained finality in favour of appellant - Firstly, duty was deposited on behest of department and it is in the nature of payment of duty under protest for this reason, time limit of one year prescribed under Section 11B is not applicable - Secondly, the issue on merit whether the other charges are liable for duty has been decided by Tribunal vide its order dated 29.09.2011 - Accordingly, on both the counts appellant's refund claim is well within the time and not hit by limitation as prescribed under Section 11B - Appellant's refund rejected by lower authorities on the ground of limitation is not sustainable - The sanctioning authority is at liberty to ascertain other aspects of unjust-enrichment, duty payment aspect while sanctioning the refund: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2023-TIOL-728-CESTAT-AHM
Baroda Rayon Corporation Ltd Vs CCE & ST
CX - Appellant defaulted in making fortnightly payment hence the facility of paying duty fortnightly under provisions of Rule 173G(1) was withdrawn from appellant and they were directed to discharge duty liability consignment wise through current account (PLA), without utilizing Cenvat Credit - However, on scrutiny of ER-1 return, it was noticed by department that appellant during disputed period had started paying duty consignment wise from Cenvat credit account and account current and hence has not paid duty in terms of Rule 8 of CER, 2002 and all those clearances made by appellant from Cenvat account shall be deemed to have been cleared without payment of duty - Appellant was issued SCNs for recovery of duty in cash against the payment made through Cenvat Credit - Same were adjudicated vide two separate impugned orders wherein demand was confirmed against appellant - Appellant submits that Rule 8(3A) of CER, 2002 has been declared ultra vires in Judgment of Gujarat High Court in case of Indsur Global Limited = 2014-TIOL-2115-HC-AHM-CX and therefore, utilization of Cenvat Credit cannot be considered an irregularity - That being so, there does not remain any question of recovery of short payment - He also submits that Cenvat credit accrued after defaulted period is permissible to be utilized for payment of defaulted duty - Impugned orders were passed by Adjudicating authority on 28.02.2013, whereas the Gujarat High Court decision in matter of Indsur Global Limited was decided on 26/27.11.2014 - Therefore, matter is remanded to adjudicating authority to decide the case afresh in view of said decision: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2023-TIOL-727-CESTAT-AHM
Jindal Fibres Vs CC
Cus - Appellant, a SEZ Unit at KASEZ filed Home Consumption Bills of Entry for clearance of goods in DTA declaring as "Mix mutilated rags" & "Old and Used mutilated rags" falling under CTH 6310 (BCD 5%) - Officers of SIIB carried out examination and found 64.280 MTs of old and used clothes classifiable under CTH 6309 (BCD 10%) and held a view that said goods have been misdeclared and are liable for confiscation under provisions of section 111(d) & (m) of the Act and importer is liable for penalty under section 112(a) of the Act - The officers placed the goods and five trucks carrying the goods under seizure - The goods i.e. "Old and used clothes" cleared by misdeclaring the same as Mix Mutilated Rags appeared due to mistake of employee is untenable as clearing in DTA at the relevant time would have normally brought a good profit to appellant as Foreign Trade Policy at relevant time had made Old and Used clothes as the restricted item and working in SEZ environment where checks and examination are kept at minimum, greater care on the part of appellant was warranted - Therefore, Commissioner (A) has rightly, relying upon decision of Apex Court in 2002-TIOL-855-SC-CUS held that the goods are misdeclared, Section 112 gets attracted - This is specially so, when violation are accepted by concerned party - Accordingly, penalty under Section 112 (a) is sustainable, however, same is reduced to Rs. 1,00,000/-, as the Apex Court has also held that only quantum of penalty remains justiciable - Similarly, redemption fine of Rs. 35,000/- each on five truck clearing carrying goods when intercepted is also reduced to Rs. 10,000/- as the truck were not offending goods, per se - It is made clear that apart from above, other elements of duty and penalty were not contested before this court: CESTAT
- Appeal partly allowed: AHMEDABAD CESTAT
2023-TIOL-726-CESTAT-AHM
Tejinder Singh Makkar Vs CCE & ST
Cus - Appeal filed against O-I-O whereby the Commissioner has imposed penalty under section 112 (b) of Customs Act, 1962 and Rule 209 A of Central Excise Rules, 1944 - The penalties were imposed on appellant being mediator acting as a broker in dealing with all trading of advance licence which was forged or obtained fraudulently - There were many cases made out - In one of the case decided by Tribunal's majority decision, appellant having the same alleged role, penalty was set aside - In this case of appellant himself, in the said decision there were difference of opinion between Member (J) and Member (T) thereafter on the basis of third Member's view, the matter was finally decided by majority order - From the said decision, it can be seen that appellant involved in above case was similarly placed broker for advance licence and by majority decision, penalties were set aside - Since same facts and issue were involved, following the aforesaid decision also, the penalties are not sustainable - Accordingly, same are set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
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