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2023-TIOL-1152-HC-DEL-VAT
Flipkart India Pvt Ltd Vs Value Added Tax Officer
Whether once a claim for refund stands embodied in the return itself, there is no additional obligation placed upon the assessee to file Form DVAT-21 - YES: HC
- Assessee's petition allowed: DELHI HIGH COURT
2023-TIOL-838-CESTAT-DEL
Bharti Realty Ltd Vs CST
ST - The Assessees, Messrs Nile and Bharti had constructed buildings which they rented for commercial purposes and paid service tax under the head of "renting of immovable property Service" - The Assessees had taken CENVAT credit of service tax paid on "input services" and excise duty paid on inputs and capital goods used for construction of the buildings and utilised the same for payment of service tax on "renting of immovable property service" - Show cause notices were issued to the Assessees seeking to deny and recover the CENVAT credit so availed on the ground that the inputs, input services and capital goods resulted in creation of immovable property which is neither goods nor services as clarified by the CBEC Circular No. 98/1/2008-ST dated 04.01.2008 and CBEC Instruction No. 267/11/2010-CX dated 08.07.2010 and, therefore, no CENVAT credit is available. Held - There is substance in the submission of the Assessees on merits as it is undisputed that the Assessees were engaged in providing renting of immovable property service and all the inputs, capital goods and input services which were in dispute were used for construction of buildings which were then rented out and service tax was paid on the renting of immovable property service - The only question which remains is whether, by virtue of the fact that the building which emerges is neither a good nor a service, the appellant can be denied CENVAT credit - The jurisdictional Delhi High Court in Vodafone Mobile Services Ltd. vs. Commissioner of Service Tax, Delhi has held in favour of the Assessees - Thus, the Assessees are entitled to the disputed CENVAT credit - Consequently, the orders seeking to deny and recover CENVAT credit along with interest and seeking to the impose penalties cannot be sustained - Consequently, both the appeals are allowed and orders are set aside with consequential relief, if any, to the Assessees: CESTAT
- Appeals allowed: DELHI CESTAT
2023-TIOL-837-CESTAT-DEL
Veera Fragrance Pvt Ltd Vs CC
Cus - Appellant is the manufacturer of Aromatic Compounds and was importing aromatic chemical for perfumery preparation - Demand was raised and confirmed by rejecting transaction value of import on the count that when Aroma Chemical is imported as "safranal" its value has reduced within a very short time alleging the same as an act of under-valuation - The same Aroma Chemical "safranal" has subsequently been imported as "Aroma Chemical K-100" and at still lower prices - The Adjudicating Authority below while confirming both these allegations has rejected the transaction value reassessed it and has confirmed the differential amount to be recovered from the appellants and has also ordered the confiscation of the recovered Aroma Chemical from four of the premises of the appellants - Coming to the allegations of misdeclaring "safranal" as "Aroma Chemical K-100", Tribunal take the judicial notice of the fact that "safranal" is an organic compound, derived from a component of Spices called Safran which is stigmas and styles of crocus flower - This chemical organic compound is responsible for Aroma - It is noticed that IUPSC name and the chemical composition for Aroma Chemical K-100 is also same - HSN Code for "Safranal" as well as Aroma Chemical K-100 for perfumery preparation is 29122990 - This is apparent from bills of entries placed on record - It is also apparent from those documents that rate of customs duty for "Safranal" as well as K-100 is also same - Thus, even if imported Aroma Chemical is named as K-100, which initially used to be imported as "Safranal", no benefit has accrued to appellant - Resultantly, there is no question of any mens rea with appellants with an intent to evade customs duty while declaring "safranal" as "Aroma Chemical K-100" - Another important aspect as observed is that the value was reduced while importing Aroma Chemical as "safranal" itself - There is no unreasonability in said reduction of value, hence, no question arises for rejection of transaction value when it reduced from USD 428 per Kg. to 408 USD per Kg. - Appellant has given explanation in defence that reduction in price was purely out of negotiations prior receiving the subsequent consignment - No evidence is produced on record to falsify the said defence nor the emails and certificate of importer as produced on record by appellant - Department also failed to produce any evidence to prove that 'safranal' and "Aroma Chemical K-100" are two different compounds - Both are observed to the one and the same chemical - When Aroma Chemical was imported as "Aroma Chemical K-100", several consignments were imported at same value of USD 408 per Kg. as was initially got negotiated for "safranal" - Said discussion is sufficient to hold that the change of name from "safranal" to K-100 does not amount to be an act of misdeclaration as there is no evidence of evasion of customs duty while mentioning "safranal" as D-100 on consignments as well as on the storage tins/containers - Entire case made out against appellant is therefore held to be an act of misunderstanding and findings are nothing but the result of presumptions and assumptions - Once there was no intent to evade customs duty and required duty has already been paid by appellant - Once, there is no evidence of alleged misdeclaration and undervaluation, there arises no question of imposition of penalty either on importing firm or on its director - Hence, the orders under challenge cannot be sustained, same is hereby set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-836-CESTAT-BANG
Mangalore Refinery And Petrochemicals Ltd Vs CCE & ST
CX - The appellant, an oil refinery, engaged in manufacture of various petroleum products falling under Chapter 27 of CETA, 1985 - A SCN for period April 2010 to June 2012 was issued to them alleging that they have wrongly availed and utilized cenvat credit on MS Plates, HR Plates and Steel Plates which are used for fabrication of huge storage tanks hence not admissible to credit - Accordingly, cenvat credit availed on inputs are irregular and in violation of Rule 3(1) of CCR - Consequently, the total cenvat credit of Rs. 2,83,73,710/- was demanded with interest and proposal for penalty invoking extended period of limitation - The short issue involved is, whether cenvat credit is admissible on inputs viz. MS Plates, HR Plates and Beams used in fabrication of storage tanks installed in manufacturing premises during period April 2010 to June 2012 - Issue is no more res integra and decided by jurisdictional High Court in case of ICL Sugars Ltd. - The said principle was later followed by High Court in case of SLR Steels Ltd. = 2011-TIOL-892-HC-KAR-CX and Hindalco Industries Ltd. - Following the ratio laid down in aforesaid cases and also by other High Courts, impugned order deserves to be set aside and accordingly, the order is set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT |
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