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2023-TIOL-855-CESTAT-AHM
Crystal Ceramics Industries Pvt Ltd Vs CCE & ST
CX - Issue involved is that whether the appellant is entitled for cenavt credit in respect of goods such as CR, SS Sheet, HR, SS Coil, old and used Aluminum structure parts, Aluminum coil when used in machinery and kiln in factory of appellant - Though appellant is prima facie entitled for cenvat credit in light of various judgments cited by appellant on merit, however, matter can be disposed of on limitation - Appellant have availed cenvat credit recorded in their records and declared regularly in their ER-1 returns - Moreover, on legal issue of availability of cenvat credit on said goods there were various judgments of division bench of Tribunal, Larger Bench of Tribunal and also various High Courts, therefore, the issue was purely interpretation of cenvat credit rules - For this reason also, no mala fide intention can be attributed to appellant - For the period of demand i.e. 19.10.2006 to 14.08.2007 SCN was issued much beyond the normal period of one year i.e. on 25.06.2010 - The appellant also cited various judgments on the identical facts and the issue involved that the demand is time bar - Demand is clearly time bar, hence, not sustainable on limitation itself - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2023-TIOL-854-CESTAT-KOL
Diamond Beverages Pvt Ltd Vs CCGST & CE
CX - Cenvat Credit of Service Tax availed by Appellant on Employees Health Insurance and Group Accidental Insurance Policy and 'rent a cab', Motor Vehicles Insurance have been disallowed by original authority for availment of inadmissible credit covering the period 01.05.2011 to 31.03.2012 and penalty being 50% of amount of duty confirmed has been imposed in terms of Rule 15(2) of CCR, 2004 read with Section 11AC (1) (e) of CEA, 1944 - It is the case of Appellant that their manufacturing unit is manned by a number of workers/employees, who are either discharging their duties inside or outside the factory premises in relation to manufacture and clearance of their dutiable final products - Amongst them some are covered under Employees State Insurance Schemes as per norms laid down in scheme - Rest remain uncovered from any insurance scheme though they are engaged in various jobs as assigned to them - The company as employer cannot shirk their responsibilities so far the safety and security of employees is concerned specially if any untoward happening occurs - As an employer the Appellant cannot ignore welfare of their employees - Accordingly, employees who are not covered under ESI Scheme are well covered under insurance policy for any untoward eventuality, therefore, it is also a moral obligation on the part of employer to look after the welfare of employees who are working inside or outside of the premises - Moreover, insurance coverage to the employees is mandatorily required as per Factories Act - Rule 2(l)(ii)(BA) & (C) of Cenvat Credit Rules, inter alia excludes life insurance and health insurance from the purview/ambit of the definition of input service when such service is used primarily for personal use and consumption - Demand is barred by limitation of time - Appellant regularly submitted ER-1 Returns incorporating therein the relevant information in prescribed format - The said returns were subjected to scrutiny by the departmental officers as per norms fixed by Board - Therefore, Department was at liberty to call for any information, put in query, undertook any verification, if felt necessary - All the factors taken together nullified Department's allegation of willful suppression of facts with intent to evade payment of duty - Accordingly, impugned order cannot be sustained and is accordingly set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-853-CESTAT-MAD
Asus India Pvt Ltd Vs CC
Cus - The only issue that is required to be decided is, whether imported goods are classifiable under Chapter Heading 8471 3090 as 'automatic data processing machines' or under Chapter Heading 9504 5000 as 'video game consoles' - Appellant has filed four Bills of Entry describing the imported products as "Computer System Desktop" classifying them under CTH 8471 3090 whereas Department re-assessed these Bills of Entry classifying the imported products under CTH 9504 5000 as "Electronic Games (Console)" as the product catalogue indicated that imported goods are categorized as 'Republic of Gamers' (ROG) series - The impugned products are automatic data processing machines, but objective and characteristics indicate that they are intended for entertainment purposes (game-playing) - According to importer's website and also the product literature, it is seen that impugned goods are designed for purpose of playing games and reportedly, even has gaming software Aegis III pertaining to ROG series - It is amply clear that such 'video game consoles' and 'video game machines' alone fall under purview of HSN Explanatory Note (2), whether or not they satisfy the conditions of Note 5(A) to Chapter 84 - Thus, primarily, to fall within ambit of above Note, the goods necessarily have to be such video game consoles/machines as defined above - Further, finding of lower authority that term 'machines' in Note means "machines besides video games which could be data processing machine too" appears to be misconstrued, in light of explicit definition provided under Subheading Note 1 to Chapter 95 - Therefore, reliance on HSN Explanatory Note (2) to Heading 95.04 by lower appellate authority is misplaced - Tribunal is persuaded more to agree with contentions of appellant that video game consoles are typically powered by operating systems and CPUs that differ from desktop computers and consoles are under the control of their respective manufacturers and software is geared to machine's capabilities, with the games not being interchangeable with other game consoles or desktop computers - Computer Systems with modifications for enhancement of gaming, by inclusion of additional audio/video devices, are being classified under CTH 8471 as ADPs - These are imported from China and at the time of export, these are classified as computers being classified under Chapter Heading 8471 - Considering the differences that exist between video game console, video game machine and imported product, it is held that imported 'Computer System Desktops' are classifiable under CTH 8471 as 'automatic data processing machines' - Consequently, impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-852-CESTAT-ALL
Exl Services Sez Bpo Solutions Pvt Ltd Vs CC & CE
ST - The only issue arises for consideration is, whether the claim for refund made in terms of notfn 9/2009-ST can be denied just for the reason that the taxable services in respect of which claim has been made, are not mentioned in the list of specified services approved by SEZ authorities - The scheme of SEZ Act, provides for exemption from payment of all taxes to developer of SEZ or the Units operating in SEZ - Notfn 9/20009-ST does not provide for any further exemption but provides a mechanism for operation of said scheme, where a service provider has provided taxable services to the Unit located in SEZ, on payment of service tax - The conditions specified in said notification need to be read accordingly - When the developer of SEZ and units located in SEZ have been given exemption from payment of all the taxes then any levy and collection of taxes from such units is without any authority in law and thus contravenes the Article 265 - In such a scenario, the amount so collected needs to be refunded to person from whom such tax has been collected - The condition specified in proviso (a) to notification only provides a manner for verification that services in respect of which refund claim has been made were received by SEZ developer or SEZ Unit - There can be many other ways by which said claim with regards to receipt of these services by SEZ unit can be verified - Revenue has not disputed receipt of these services by SEZ Unit, hence denial of refund claim in respect of these services for the reason that they did not find mention in list of specified services approved by SEZ authority cannot be upheld - No merits found in impugned order, same is set aside: CESTAT
- Appeal allowed: ALLAHABAD CESTAT |
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