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2023-TIOL-905-CESTAT-AHM
Shree Developers Vs CCGST & CE
ST - Appeal filed against impugned order whereby Commissioner (A) has rejected the appeal as time-barred on the ground that O-I-O was received by authorised representative of appellant on 02.11.2018 and appeal was required to be filed within two months from 02.11.2018 i.e. by 01.01.2019 but the appeal was filed on 19.09.2022 - It is the contention of Commissioner (A) that the service of order to authorised representative of appellant is in consonance with Section 37C of Central Excise Act, 1944 - Firstly, the authorised representative is authorised only to deal with cases pending for adjudication before Adjudicating Authority - After adjudication, order must be served to the person for whom it is intended for - Adjudication order was not served to the appellant however same was served to authorised representative - The Commissioner (A) construed that authorised representative who received the order is authorised agent in terms of clause 3 of authorization letter - From the reading of said clause, it is found that the clause 3 is related to acts prescribed in serial No. 1 and 2 and according to which authority is not given to authorised representative for receiving the order - Moreover, as per Section 37C, the order can be served only either to the person for whom it is intended or his authorised agent - Authorised legal representative cannot be equated with an authorised agent of appellant - For this reason also service of order to authorised representative i.e. Chartered Accountant dealing with the matter before Adjudicating Authority is not legal and proper - Subsequent service of order copy to appellant on 22.07.2022 is the date of communication of O-I-O to appellant - Accordingly, appeal filed on 19.09.2022 is well within the prescribed time limit of two months (60days), therefore, there is no delay in filing the appeal - Accordingly, impugned order is set-aside and matter remanded to Commissioner (Ap) for passing a fresh order on merits of the case: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2023-TIOL-904-CESTAT-DEL
Bhagwati Power And Steels Ltd Vs CCGST, C & CE
CX - The issue involved for determination is whether the appellants are eligible to credit of service tax paid on construction and erection services in their factory - It is the contention of Department that after amendment to definition of input service, all construction services undertaken within factory premises fall outside the scope of said definition - A plain reading of definition of input service prior and post amendment makes it clear that service utilized in relation to modernization, renovation and repair of factory will fall within scope of meaning of 'input service' even though; construction of a building or civil structure or part thereof has been placed under exclusion clause of said definition of 'input service' - Post the amendment to definition of 'input service', a clarification issued by Board vide Circular 943/4/2011-CX, whereunder in response to issue raised on eligibility of credit of service tax paid on construction service as an 'input service' used in modernization, renovation or repair, the Board has clarified that said services being provided in inclusive part of definition of 'input service' are definitely eligible to credit - Therefore, a harmonious reading of inclusive part of definition and exclusion clause mentioned at clause (a) relating to construction service of definition of 'input service', it is apparent that construction service relating to modernization, renovation and repair of the factory continued to be within meaning of 'input service' and accordingly, Service Tax paid on such service is eligible to credit - It is a fact that appellant took credit on services used in construction of civil structure for newly setup of Steel Melting of Continuous Castings Machine (SMS), and for provision of fabrication and erection service for installation of SMS plant, which is covered under definition 'modernization, renovation or repair' - Tribunal has consistently held that credit on such services is available to taxpayer, which have been quoted by appellant while making his arguments - Impugned order is set-aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-903-CESTAT-MUM
Sonia Fisheries Vs CC
Cus - Appellant is engaged in business of processing and exporting different varieties of fishes and other sea foods to various overseas buyers - They had claimed that it is eligible for benefit provided under Merchandise Export from India Scheme (MEIS) on exportation of goods as per provisions under FTP 2015-2020 - At the time of filing shipping bills in dispute, appellant had declared its intention to claim MEIS reward, which is reflected under head "A-STATUS" sub-head "5. MEIS-Y" - However, due to inadvertence, while filing details of goods exported, appellant had marked/ticked "N" (indicating 'No') instead of "Y" (indicating 'yes') under head "28. REWARD BENEFIT" in said shipping bills - Subsequently, realizing the mistake that shipping bill has not been properly filled up, appellant had filed an application before jurisdictional Customs authorities for post export amendment to shipping bill in terms of Section 149 of Customs Act, 1962 - The application filed by appellant was not favourably considered by Department and Assistant Commissioner has communicated the view of jurisdictional Commissioner of Customs that such application cannot be entertained in view of time limit prescribed by CBIC vide Circular 36/2010 - Application for amendment to shipping bills was submitted to Customs Commissionerate on 04.02.2022, prior to introduction of these regulations - Thus, there was no specific time limit prescribed for submissions of application for amendment under Section 149 ibid. - Issue arising out of present dispute is no more res integra in view of judgment by Gujarat High Court in case of Lykis Ltd. 2021-TIOL-327-HC-AHM-CUS wherein it has been held that time limit cannot be prescribed for conversion from Drawback scheme to DFIA scheme - No merits found in impugned communication, wherein the request of appellant for conversion of shipping bill was denied by Department - Accordingly, by setting aside the communication, Department is directed to consider the application dated 04.02.2022 for necessary amendment in shipping bills: CESTAT
- Appeal allowed: MUMBAI CESTAT |
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