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2023-TIOL-764-CESTAT-MUM
Vistex Asia Pacific Pvt Ltd Vs CCGST
ST - Assessee have filed refund claim for unutilized Cenvat credit accumulated in their Cenvat Account due to exports in terms of Notfn 5/2006-CE(NT) as amended by Notfn 27/2012- CE(NT) r/w Rule 5 ibid - Adjudicating Authority vide O-I-O sanctioned the partly refund and rejected the balance amount and same was upheld by Commissioner (A) - Identical issue of assessee for immediate prior period i.e. April, 2016 to June, 2016 came up for consideration before very same adjudicating authority 3-4 months prior to the passing of O-I-O, in which said authority vide O-I-O dated 15.2.2017 granted refund to assessee as per calculation they are claiming under rule 5 ibid - The said O-I-O has also been placed on record by Chartered Accountant during course of hearing - Time and again, it has been held by Tribunal that revenue is not permitted to take contrary view on identical issue because if they are permitted to do so then the law will be in a state of confusion and will place the authorities as well as assessees in a quandary - This contrary view of the very same adjudicating authority strengthens the submission of assessee that they were not heard by said authority before rejecting refund partly - Had the said authority heard them properly then O-I-O would have been passed in conformity with earlier order of same authority in assessee's own case - Therein the assessee was permitted to deduct the utilized credit out of the total/net Cenvat credit and balance unutilized Cenvat credit was refunded to them, which is the correct view - Applying the same on the facts of instant matter, total/net Cenvat credit is Rs. 11,97,619/- whereas the credit utilized by is Rs. 4,88,130/- and if deduct the credit utilized from total Cenvat credit then balance would be [Rs. 11,97,619 – Rs. 4,88,130] Rs. 7,09,489/-, which has been claimed by assessee but rejected by both the authorities below - The lower authority has totally erred in deducting utilized Cenvat credit i.e. Rs. 4,88,130/- after getting the total refund amount i.e. Rs. 8,63,743/- as per formula prescribed u/r.5 ibid - The first appellate authority also seems to have decided the appeal mechanically without properly looking into the issue and also the submission of assessee that they were not heard by lower authority - I mpugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2023-TIOL-763-CESTAT-AHM
PGP Glass Pvt Ltd Vs CCE & ST
CX - The SCN was issued on the ground that appellant have recovered VAT/CST amounting to Rs. 8,25,09,886/- and only 3% of it has been paid to state government against "Gokul Gram Yojana" for period from December, 2006 to April, 2010 - The remaining amount of VAT/CST has been retained by them - Accordingly, demand of Central Excise Duty was proposed in SCN - The fact is not under dispute that nonpayment of sales tax /VAT is not on account of exemption but on account of remission granted by State Government - Adjudicating Authority has confirmed the demand relying on Supreme Court Judgment in case of Super Synotex (India) Ltd = 2014-TIOL-19-SC-CX whereas said judgment was distinguished by Tribunal in case of Welspun Corporation Ltd on the ground that in Super Synotex (India) Ltd the sales tax/ VAT was not paid by assessee on the ground that same was exempted at the time of removal of goods whereas in present case VAT/Sales tax was very much payable while clearing the goods and subsequently the same was remitted by State Government - This fact is appearing in VAT returns submitted by appellant - This Tribunal considering the identical facts of remission of VAT/Sales tax in case of Welspun Corporation Ltd held that the sales tax/VAT /CST actual payable but since the same was remitted it cannot be said that the sales tax/ VAT/CST was not payable - Therefore in terms of Section 4 (4) (d) (ii) of the Central Excise Act, 1944, same is deducted from assessable value - Facts of said case is identical to case of present matter - Therefore, ratio of decision of Welspun Corporation Ltd is clearly applicable in present case - Accordingly, demand is not sustainable - Hence, impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2023-TIOL-762-CESTAT-AHM
Asion Solvochem Pvt Ltd Vs CC
Cus - Appellant entered into a Contract with foreign supplier for purchase and import of of Methyl Iso Butyl Ketone - Upon discharge of goods in Shore Tank after their arrival at Port of Kandla, it was ascertained that quantity actually received in Shore Tank was in excess of Invoice and Bill of Lading quantity by by 1.66% - By O-I-O as upheld by O-I-A, extra duty was charged on said marginal excess quantity and same was held liable to confiscation under Section 111(m) of Customs Act, 1962 and fine and penalty were imposed - Appellant places reliance on decision of M/s. Welspun Corporation Ltd = 2019-TIOL-675-CESTAT-AHM and M/s. Payal Polypast Pvt Ltd to make a submission that for Bulk Liquid Cargo condonation of weight upto 3% has been permitted ignoring the public notice providing for 1% - They also drew attention on to Board Circular 6/2006-Cus. as well as Circular 34/2016-Cus amending the earlier circular in view of decision of Supreme Court in case of M/s. Manglore Refinery and Petrochemicals Ltd = 2015-TIOL-199-SC-CUS - His point of emphasis was that in case of Bulk Liquid Cargo imports, the basis of levy of customs duty when duty is ad valorem is transaction value till the time invoice price has been paid by the importer in India - The Lower Authorities have relied upon public notice, which does not indicate the basis on which percentage has been fixed in such general terms for all commodities - The decisions have been correctly relied upon by appellant and are applicable in present case - The tolerance limit of upto 3 or even 5 % has been approved in decisions and therefore percentage of 1.66 is within the limit of indicated tolerance limit of case law - Again the public notice does not bring out commodity wise tolerance limits citing any technical literature for the same and therefore same cannot be preferred over criteria indicated by CBEC in circulars - It, therefore, follows that for Bulk Cargo at relevant time, not the weight but value paid was the criteria of duty and transaction value or invoice price and not the quantity, in any case, was to be the basis of assessment - Order of Lower Authority is not in consonance with board's circulars: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
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