2023-TIOL-952-CESTAT-MUM
Indian Oil Corporation Ltd Vs CCE
CX - The Assessee had been availing MODVAT credit on 'tin cans' used for packing and sale of 'lubricants' manufactured by them and proceedings were initiated for denial of the credit as the inputs had not been deployed at the factory of manufacture but in their filling facility - The confirmation of recovery of Rs. 2,46,84,459, contested by them before the Tribunal, was set aside following which application for refund of the amount deposited in the run up to adjudication was filed and sanctioned - However, the Commissioner (Appeals) observed that the refund claim was hit by bar of unjust enrichment.
Held - In re Solar Pesticides Pvt Ltd , it was held that evidence of duty incidence not having been passed on cannot be claimed to be unavailable and, therefore, entitling claimant to exclusion from the onus of section 11B of Central Excise Act, 1944 does not bar the test of unjust enrichment - The Assessee has furnished certification from Chartered Accountant that amount was not debited against any particular clearance - Without evaluation of the pricing practice of the Assessee for 'lubricant', discard of the certification on supposition of it having been treated as 'expense' and, therefore, built into the manufacturing cost of products cleared after 2000 is neither logical nor consistent with obligation of appellate authorities to restrict fact finding only upon evidence. In a departmental appeal, that should have been preferred as a ground of appeal on the basis of computation; a finding without such factual evaluation, in circumstances of that onus resting on the reviewing authority, cannot sustain - The certification by Chartered Accountant, considering the contents therein, suffice for discharging obligation to demonstrate that incidence of such duty has not been passed on - Accordingly, the order in question stands quashed: CESTAT
- Appeal allowed: MUMBAI CESTAT
2023-TIOL-951-CESTAT-BANG
Karnataka Golf Association Vs CST
ST - Common issue involved for determination in these two appeals is: leviability of Service Tax on advance entrance/admission fee collected by the appellant from the applicants for the period from April 2012 to June 2012 and under the amended scheme of Service Tax from July 2012 to March 2014.
Held: Tribunal vide Final Order No. 20198-20199/2020 dated 17.2.2020 reported in 2020-TIOL-500-CESTAT-BANG and vide Final Order No. 21108-21111/2023 dated 28.6.2023 [ 2023-TIOL-CESTAT-BANG ] in their own case held that the amount collected as advance fee from the applicants for membership of the club cannot be subjected to Service Tax levy under the category of 'Club or Membership Association Service' - Hence, the demand for the period April 2012 to June 2012 is squarely covered by the said decisions of this Tribunal and accordingly not sustainable - Supreme Court in State of West Bengal & Ors. Vs. Calcutta Club Association's case ( 2019-TIOL-449-SC-ST-LB ) observed that 'Doctrine of Mutuality of Interest' is also applicable for the period after 01.7.2012; while interpreting newly introduced definition of 'person' under Section 65B(37) and explanation 3(a) to Section 65B(44) of Finance Act,1994 observed that the Legislature has continued with the pre-2012 scheme of not taxing members' clubs when they are in the incorporated form; that Explanation 3(a) to Section 65B(44) does not apply to members' clubs which are incorporated - Appeals allowed with consequential relief : CESTAT [para 7, 11, 12]
- Appeals allowed: BANGALORE CESTAT
2023-TIOL-950-CESTAT-BANG
Apotex Research Pvt Ltd Vs CCT
ST - The Assessee-company has two EOU units registered and have obtained service tax registration - One unit of the Assessee is engaged in manufacture and export of pharmaceutical products and the other unit is engaged in rendering Research and Development services - The Revenue opined that the two services rendered by the Assessee i.e., stability studies and technical testing and analysis of new drugs were classifiable under the taxable category of "Scientific and Technical Consultant Service" and "Technical Testing and Analysis Service" - The Revenue also opined that various services like procurement of raw materials and packaging materials; development of analytical method; innovator/ competitor sample analysis; prototype formulation development; product specification development; exhibit batch manufacturing; stability study and data generation; bio equivalence study and data generation; compilation of data and dossier preparation and submission to various regulatory agencies to obtain approval; commercial batch manufacturing, analysis and packing and export of finished goods; rendered by the Assessee are in the nature of Bundled Services as defined in Explanation to Section 66F of the Finance Act, 1994 - The Department has issued two show-cause notices dated 12.4.2016 and 26.4.2018 covering period April 2014 – September 2015 and October 2015 – June 2017 respectively, inter alia, demanding service tax on "Scientific and Technical Consultancy Service" and "Technical Testing and Analysis Service". Show-cause notices came to be confirmed by the Order-in-Original dated 14/10/2021 which are assailed vide the present appeals.
Held - This Bench, in the case of the appellants themselves have decided the very same issue in favour of the appellants vide Final Order No. A/20003/2022 dated 04/01/2022 - The issue stands settled in favour of the appellants by this Bench vide Final Order cited above. In view of the same, we find that the order is not sustainable and thus, liable to be set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT
2023-TIOL-949-CESTAT-DEL
Globe Impex Vs CC
Cus - The main issue for consideration is, whether goods "Scented Sweet Supari "is classifible under CTH 2106 9030 as claimed by importer or under CTH 08028090, as per Department and, therefore, would be entitle to exemption of 100% BCD by virtue of Notfn 96 of 2008 or is entitle to exemption to only 60% BCD by virtue of classification by Revenue - The goods imported by appellant are neither product of betel nut nor preparation containing betel nut but are only betel nuts in cut pieces and are excluded from Chapter Heading 2106 and same are classifiable under chapter Heading 0802 - Consequently, benefit of Notfn 96/2008 of 100% exemption from BCD is not available to appellant - Similarly, in terms of Notfn 20/2015-2020, import of areca nuts at less than the minimum price of Rs.251/- per kg. are prohibited goods - Moreover, in view of test reports, the areca nuts imported are unsafe according to Section 3 (1)(zz)(x) of FSS Act, 2006 and as they do not conform to the standards prescribed under Food Safety and Standard Regulations, 2011, the same are liable for absolute confiscation under Section 111(d), 111(m) and 111(o) of the Act - Consequently, appellant is liable to pay differential duty of Rs.46,95,133/- alongwith interest - Appellant had attempted to import areca nuts in guise of betel nut products by mis-declaring and mis-classifying under Chapter 21 so as to avail the benefit of 100% exemption of BCD and thereby evade payment of legitimate customs duty - In view thereof, M/s. Globe Impex and also Shri Gagan Uppal are liable to penalty under Section 112(a)(i) of the Act - No reason found to interfere with decision arrived at by authorities below and the same deserves to be affirmed - Accordingly, the appeals stand dismissed: CESTAT
- Appeals dismissed: DELHI CESTAT |
