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2023-TIOL-1208-HC-DEL-MISC
UoI Vs Vansh Sharad Gupta
Whether since assessee has complied with directions contained in order, cost imposed by CIC is waived - YES : HC
- Assessee's writ petition allowed: DELHI HIGH COURT
2023-TIOL-876-CESTAT-KOL
Gillooram Gaurishankar Vs CCE & ST
CX - Initially both the appellants were availing SSI exemption under Notfn 175/86-CE and clearances of appellants were well below the threshold limit as per SSI exemption under Notfn 71/1978 - Revenue views that both the units can be clubbed together and if they are clubbed together, then their clearances are beyond the threshold limit as per SSI exemption under Notfn 71/1978 - Various SCNs were issued to appellants for denying benefit of exemption Notfn dated 01.03.1978 and thereafter, to raise the demand of duty against appellants - Appellants filed various refund claims on various occasions in years 1986 and 1989 - Thereafter, various SCNs were issued to appellants to deny said refund claim on the ground that said refund claims are barred by limitation and the provisions laid down under Rule 233B of CEA, 1944 for payment of duty under protest have not been observed by appellants - The refund claims were rejected but on appeal, Commissioner (A) held that duty was paid under protest after following procedure of Rule 233B and hence refund claim cannot be treated as time barred and remanded back to Assistant Commissioner for entertaining the refund claim, but same were rejected on ground of unjust enrichment - The appellant preferred the appeal before Commissioner and Commissioner (A) passed the impugned order only on 17.10.2014, which was issued to appellant on 20th October, 2014, which shows that impugned order has been passed after almost 22 years, which shows, how the lower authorities are serious about their working and duties by keeping the refund claim pending for more than 22 years - Adjudicating authority has rejected refund claim holding that appellants have failed to pass the bar of unjust enrichment - Appellants have produced copies of invoices to Bihar State Electricity Board and of payments issued by Project Authority - On going through said invoice and certificate issued by recipient of goods, it is clear that duty component has been borne by appellants themselves - Moreover, appellants have cleared good to Bihar State Electricity Board under IBRD Financed Project and for said clearance, appellant is not liable to pay duty at all on their clearance, but the fact that appellants were denied the benefit of SSI exemption, therefore, appellants paid duty under protest and cleared their goods - Moreover, while rejecting refund claims on bar of unjust enrichment, adjudicating authority was required to issue SCN to appellant in terms of CBEC Circular 19/93-CX.6 - As per said Circular, Adjudicating Authority was required to issue SCN on issue of unjust enrichment - Admittedly, no SCN has been issued to appellants on issue of bar of unjust enrichment - Therefore, adjudicating authority has gone beyond the scope of SCN for entertaining refund claim - Appellants were not required to pay any duty on goods cleared to BSED and not collected any duty from BSED - Moreover, duty has been paid by appellants themselves and have passed the bar of unjust enrichment - No merits found in impugned order and accordingly, same are set aside - Appellants are entitled to claim interest after three months from filing of refund claim till realization and same shall be paid at the rate of 12% : CESTAT
- Appeals allowed: KOLKATA CESTAT
2023-TIOL-875-CESTAT-CHD
GKN Driveline India Ltd Vs CCE
CX - The appellant as per normal commercial practice in automobile industry has made a provision for writing off cenvat credit on inputs as per Rule 3(5B) of CCR, 2004 - During audit, department was of the view that appellant is required to reverse Cenvat Credit availed on inputs which were written off as per Rule 3(5B) - During relevant period, there was no recovery mechanism under Rule 3(5B) and the explanation which was introduced vide Notfn 3/2013 was from 01.03.2013 vide which it was provided that if manufacturer of goods or provider of output service fails to pay the amount payable under sub-rules (5), (5A), and (5B), it shall be recovered, in manner as provided in rule 14, for recovery of CENVAT credit wrongly taken - This recovery mechanism introduced from 01.03.2013 cannot be made applicable from retrospective date and it can be only prospective and this issue was considered in various decisions cited by Tribunal wherein it was held that when there was no recovery mechanism before 01.03.2013, therefore, no recovery can be affected and accordingly the present proceedings initiated under Rule 14 of Cenvat Credit Rules read with Rule 3(5B) of Cenvat Credit Rules is liable to be dropped - In terms of proviso to Rule 3(5B) itself if said goods are used subsequently, appellant was entitled to take credit of the amount equivalent to cenvat credit paid earlier - Further, entire demand is based on entries reflected in financial books of accounts and balance sheet of appellant and there has not been any suppression and malafide on the part of appellant, and therefore, demand pertaining to extended period of limitation is not sustainable and demand pertaining to normal period of limitation comes to only Rs. 2,17,251/- - When during relevant period, there was no recovery mechanism provided in Cenvat Credit Rules, therefore, entire demand is liable to set-aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
2023-TIOL-874-CESTAT-MAD
Honda Siel Power Products Ltd Vs CC
Cus - The appellants appear to have filed a Bill- of -Entry for clearance of "lawn mowers" - The said item was declared under CTH 8433 1110 - Adjudicating authority entertained a doubt that impugned goods under challenge were required to be re-classified under different heading namely, CTH 8467 9900 - The very heading of both Chapters in question sufficiently helps in deciding the classification - Heading 84.33 refers to harvesting or threshing machinery, including, inter-alia, grass or hay mowers - Heading 84.67 refers to tools for working in hand, pneumatic, hydraulic or with self-contained electric or non-electric motor - This gives a prima facie indication that tools referred to are invariably portable, designed to be held in hand during use, which can be lifted and moved by hand by user during the work - It is interesting to see the conclusion of HSN Explanatory Notes to this Heading, wherein a reference is made to exclusion category and it has specifically referred to electric lawn mowers - Hence, when lawn mower in question is specifically included under heading 8433.11, Tribunal do not have to consider the applicability or otherwise of other HSN - The product under consideration is classifiable under CTH 8433 1110 as declared by appellant and hence, impugned order deserves to be set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-873-CESTAT-MAD
Intimate Fashions Pvt Ltd Vs CGST & CE
ST - The main issue to be decided is, whether appellant has received 'Computer Network Services' / 'Online Information and Database Access or Retrieval Service' as per relevant periods, claimed by Revenue or 'Information Technology Service' service, provided from a remote location outside taxable territory, as claimed by appellant - It is clear that the activity rendered by appellant is basically related to manipulation of data and not merely the inter connection of one or more computers or access or retrieval of data - The SAP software is used for accounting and other purposes, which needs data to be entered and permits manipulation and retrieval of data - The appellant agreed that leased line services used by them which provided for a computer network, are classifiable under 'Computer Network Services' from 2006 onwards and have paid service tax thereon, as noted earlier - This being so, the classification of service under dispute as a computer network service is not correct - The services are correctly classifiable under 'Information Technology Software services' which have been introduced only with effect from 16.5.2008 - The nature of services are such that it can be provided online from a remote location outside the taxable territory also - The service provided from a remote location outside the taxable territory, to recipients in India would be taxable under reverse charge mechanism - The services rendered to appellant, sourced from abroad on which duty is payable under reverse charge mechanism by them, is correctly covered by definition of "information technology software" service under Section 65(53a) and as a taxable service under Section 65(105)(zzzze) of Finance Act, 1994 which is only liable to discharge duty from 16.5.2008 - It has been recorded in OIO that appellant has paid service tax due under service category 'Information Technology Service' - Appellant has agreed that leased line services are classifiable under 'Computer Network Services' from 2006 onwards and has paid service tax thereon - Since the issue has been decided on merit and appellant having paid the dues under the correct service classifications, the question of extended time limit does not arise nor are any penalties imposable - Disputed service to be defined under Section 65(53a), being a taxable service under Section 65(105)(zzzze) of the Finance Act, 1994 as 'Information Technology Software' service from 16.5.2008 - Impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT |
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