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2023-TIOL-849-CESTAT-DEL
Orion International Vs Addl.CC
Cus - The appeals are pending consideration since February 2018 - Appellants had not appeared on most of occasions or had requested adjournment in case the representative was present - On 17.01.2019 when application seeking Condonation of Delay was listed for hearing, it was observed that appeal was filed after delay of 1225 days - Certain clarifications and proper applications were directed to be filed - Since then, appellant had not appeared on most of occasions or had requested adjournment if representative/authorised counsel had appeared - After continuous absence that on 06.09.2022, department was required to make an attempt to serve the appellant and to verify whether appellant has availed benefit under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - The appellant, however, continued the practice of either not appearing or of seeking adjournment on one pretext or other - Appellant had been highly negligent while pursuing the same - Further opportunity is held unwarranted in such circumstances - Appeal accordingly, is ordered to be dismissed for want of prosecution on the part of appellants: CESTAT
- Appeals dismissed: DELHI CESTAT
2023-TIOL-848-CESTAT-MAD
Alfred Berg And Company India Pvt Ltd Vs CGST & CE
CX - The issue arises is, whether appellant is eligible for refund of unutilised credit lying in their CENVAT account at the time of closing the factory - The High Court of Bombay in case of Gauri Plasticulture Pvt. Ltd. = 2019-TIOL-1248-HC-MUM-CX-LB had occasion to consider the very same issue - The decision of High Court of Karnataka in case of Slovak India Trading Co. Pvt. Ltd. was referred to by High Court - It was observed that Division Bench of High Court of Karnataka in said case took a view that there is no express prohibition in Rule 5 to refund the unutilised CENVAT credit - Revenue filed an appeal against such decision before Apex court, and on the basis of representation made by ASG who appeared on behalf of Union of India that in similar decisions passed by Tribunal, revenue had not filed any appeal, Apex Court had dismissed the appeal filed by revenue - Thus, there was no declaration of law under Article 141 of Constitution of India in said case - After adverting to various decisions on the point the High Court of Bombay held that refund cannot be granted - The refund can not be allowed: CESTAT
- Appeal dismissed: CHENNAI CESTAT
2023-TIOL-847-CESTAT-KOL
Bharat Petroleum Corporation Ltd Vs CCE
CX - The appellant exported lubricant oil to Nepal - They exported their own manufactured goods as well as traded goods procured from other manufacturers on payment of duty - So far as manufactured goods exported to Nepal was concerned, appellant paid duty by raising debit in PLA or Cenvat Account whereas in respect of traded goods exported to Nepal, appellant debited the duty as well as quantity in RG-23D - Duty demanded has been confirmed on allegation that duty paid nature of traded goods has not been established - In respect of traded goods exported, appellant has prepared corresponding dealers invoices under Rule 11, which were also signed by Superindent, before export - The Dealers Invoice provided details of manufacturer's Invoice No. and date and the total quantity covered in such Invoice and proportional duty paid on quantity exported to Nepal - An account in RG23-D was maintained for duty paid goods - Thus, appellant was following the procedures and formalities required to be followed by a registered dealer for storing of duty paid goods - The appellant issued cenvatable invoices with cross reference of invoices of manufacturers of subject goods and filed quarterly returns under the Rule 9(8) of said Rules - These documents clearly establish the duty paid nature of traded goods which were exported to Nepal - Thus, department cannot again demand duty from appellant for traded goods exported, as duty has already been paid by concerned manufacturers at the time of clearance of those goods - Hence, demands of duty, interest and imposition of penalty on appellant in impugned order is not sustainable: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-846-CESTAT-AHM
G S Dodia Vs CCE & ST
ST - Based on information that the Assessee was not paying tax on taxable services being provided by the Assessee, an investigation was commenced against the Assessee in summons proceedings - Records such as written contracts / works orders, service tax return filed, ledger accounts, invoices pertaining to the last five years, were called for - Statements of the proprietor were recorded - In course of investigation and on scrutiny of the Bid documents/ work orders, the authorities were of the view that the appellant have provided services of Management, Maintenance or Repairs - Accordingly, SCN, invoking extended period of limitation, was issued to Assessee directing to show cause as to why the Service Tax demand of Rs. 2,00,06,391/- be not raised on them along with interest and also for imposition of penalty - Subsequently, O-i-O was passed confirming these demands and the O-i-O was later upheld by the Commissioner (Appeals).
Held - The issue of classification of the activities in the nature of Repair, alteration, renovation or restoration of, or similar service in relation to, building or civil structure, pipeline or conduit has been settled by the Larger Bench of Tribunal in the case of Lanco Infratech Limited vs. CCE & ST., Hyderabad = 2015-TIOL-768-CESTAT-BANG-LB - The Larger Bench decision of the Tribunal in the matter of M/s Lanco Infratech was not available at the time of passing of the order and as such Adjudicating Authority did not have the benefit of examination and applicability of the same to the facts of the present case - Therefore we are of the view that adjudicating authority must reconsider the entire matter based on the Judgments which were passed much after the impugned order passed: CESTAT
- Case remanded: AHMEDABAD CESTAT |
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