2023-TIOL-788-CESTAT-KOL
Visakha Engineers Vs CCE, C & ST
ST - Appellant is in appeal against impugned order wherein demand of Service Tax has been confirmed for the period 01.04.2003 to 31.03.2004 under category of 'Repair and Maintenance Services' - Appellant was awarded work order on annual rate contract for repair and maintenance for Crane Wheels & Stacker Wheels - Issue is scope of work assigned to appellant - The contract only provides what are the rates for providing services as per scope of work - The scope of work as stated in agreement does not involve any material to be supplied by appellant - The services provided by appellant duly qualify under 'Repair and Maintenance Service' during impugned period - Therefore, no merits found in appeal filed by appellant, same is dismissed: CESTAT
- Appeal dismissed: KOLKATA CESTAT
2023-TIOL-787-CESTAT-KOL
Satyam Steel (North East) Ltd Vs CCE
CX - Appellant contested the issue on merits as well as on the ground of limitation - Regarding limitation, appellant stated that dispute of non availment of Cenvat Credit on capital goods was for the month of April, 2007 - Had there been any dispute of wrong availment of Cenvat credit, department should have issued impugned SCN by 7th of May, 2008, whereas, same was issued on 17th November 2008 after a lapse of more than one year from the date of submission of first ER-I return and Refund claim under Notfn 32/99-CE - Hence, demand is not sustainable on the ground of limitation - Regarding merits of case, appellant stated that management decided to take credit and utilize Cenvat credit in subsequent years - A plain reading of provisions of Rule 4(2)(a) of CCR, 2004 makes it clear that a manufacturer can take credit in financial year in which the capital goods are received for an amount 'not exceeding 50% of specified duty paid on capital goods - The balance credit is permitted to be taken 'in any financial year' subsequent to financial year in which capital goods were received in factory of manufacture - There is neither restriction nor compulsion to avail and utilize Cenat credit on capital goods in initial year of receipt of capital goods - The Appellant at their discretion may or may not opt for avail and utilize the Cenvat credit on capital goods in initial year - The contention of department that Appellant contravened the provisions of Cenvat credit by not utilizing 50% of capital goods in first years of its receipt is misconceived and not tenable in eyes of law - Accordingly, appellant has not violated any provisions of Cenvat Credit Rules, 2004, by foregoing the credit in initial years of its receipt and availing the full credit in subsequent year - Accordingly, there was no violation in refund sanctioned to appellant - Hence, impugned order is set aside on merit also: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-786-CESTAT-KOL
Sahajahan Majumdar Vs CC
Cus - CVD - Goods were imported through different ports - That itself is a valid reason for the difference in price - Charge of undervaluation unproved: CESTAT
Cus - Appellant is engaged in import and export business through land borders in State of Tripura - Appellant imported OPC/PPC Cement in 50 Kg PP Woven bags through Srimantpur LCS from Bangladesh during March 2012 to October 2014 - As the product is subject to levy of CVD on MRP basis, the appellant asked the exporter from Bangladesh to print MRP - Appellant was issued with two Show Cause Notices dated 26.11.2014 and 22.01.2015 alleging that he has evaded Additional duty of customs (CVD) amounting to Rs. 8,51,776/- and Rs.65,521/- respectively, by way of undervaluation inasmuch as cement from the same manufacturer in Bangladesh imported through Agartala L.C.S. was having a higher MRP of Rs. 320/- per bag of 50 Kg - The demands were confirmed by the adjudicating authority along with imposition of penalty and interest; however, the goods were not confiscated as they were unavailable - As Commissioner(A), upheld this order, the present appeals - Appellant submitted that MRP printed on the goods imported through other ports can be different, as the Place of importation itself was different and hence difference in MRP is quite natural.
Held: Bench observes that MRP on the same item is decided by considering a number of factors besides landing cost and duty element - In the instant case, the goods were imported through different ports - That itself is a valid reason for the 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, the price difference cannot be attributed to suppression of the value by the Appellant - Accordingly, Bench holds that the demand is not sustainable - Bench further observes that the impugned order passed demanding differential duty without challenging the original assessment of the Bills of entry is not sustainable - Hence, the demand is not sustainable on this count also - Impugned order is set aside and appeals are allowed: CESTAT [para 9, 11]
- Appeals allowed: KOLKATA CESTAT
2023-TIOL-785-CESTAT-BANG
Sri Sai Graphics Vs CC
Cus - The issue relate to quantum of fine and penalty imposable on appellant who imported MFDs in violation of licensing conditions of DGFT - Tribunal in a series of judgments consistently held that when value has been enhanced on the basis of certificate by Chartered Engineer without market enquiry, imposition of fine and penalty @ 10% and 5% taking note of the enhanced value would meet the ends of justice - In Omex International's case , it was held that redemption fine and penalty in such cases be 10% and 5% of the value - Following the said decision, impugned order is modified and fine and penalty in each of the cases are reduced to 10% and 5% of enhanced value: CESTAT
- Appeals disposed of: BANGALORE CESTAT |
