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2023-TIOL-955-CESTAT-MAD
CC Vs Vriksh Transworld Holding Ltd
Cus - The Respondent-company filed five refund claims, being amount paid towards Special Additional Duty against import of furniture vide 8 Bills of Entry under Notification No. 102/2007-Cus as amended by Notification No. 93/2008 - All the five refund claims came to be sanctioned, vide two different Orders-in-Original - The jurisdictional Commissioner reviewed both orders sanctioning the refund claim, on ground that the copy of two invoices received from buyers obtained through random verification, did not contain the declaration to the effect that "no credit of the additional duty of Customs levied under sub-section (5) of section 3 of the Customs Tariff Act, 1975 shall be admissible" as stipulated under condition 2(b) of Notification No. 102/2007-Cus - Another reason was that the Orders-in-Original did not contain any findings to the effect that the goods imported tallied with the goods sold - Hence the Commissioner directed the Department to review the issue on grounds that the Reviewing Authority should have resorted to verification of all the invoices at the buyer's end before coming to a conclusion and held that the finding by the Reviewing Authority that there is no finding in the Order-in-Original to the effect that ‘the imported goods tally with the goods sold', is a general observation and no specific discrepancy has been pointed out - The present appeals seek to assail the order so passed by the Commissioner. Held - A question of the power to remand lies at the heart of the appeal - Delay in a decision on this issue does not help even the Respondent in settling his claims - The matter can move forward on merits only when placed before the proper authority for consideration - Adjournments will only delay statutory relief - Hence the matter is decided based on the legal position that has evolved and the issues available on record, as applicable - The Revenue has assailed the Commissioner (Appeals) order as there is no provision for the Commissioner (Appeals) to remand a matter under consideration to be reviewed once again and to file a fresh appeal within one month from the date of receipt of the order as per the Customs Act, 1962 - The direction of the Commissioner (Appeals) in the order are averred by Revenue to be also contrary to the observations of the Apex Court against the powers of Commissioner (Appeals) to remand a matter, in the case of MIL India v. Commissioner of C.Ex., Noida - The implications of the said Apex Court's judgment has been examined in Instructions F.No. 275/34/2006- CX.8A dated 18-2-2010 issued by CBIC - The legal position has been brought out in the Boards circular - As clarified by the Apex Court the Commissioner (Appeals) continues to exercise the power of adjudicating authority in the matter of assessment. Hence having original powers in matters related to assessment as per the statute, it was expected of the lower authority to examine and dispose of the matter on merits - The Commissioner (Appeals) was not vested with any powers to remand a matter under consideration with a direction for the issue to be reviewed once again and if necessary to file a fresh appeal under the Customs Act, 1962 - The amendment brought out in the sections pertaining to the powers of the Commissioner (Appeals) vide Finance Act, 2001 w.e.f. 11.5.2001, is a part of a beneficial legislation to ensure that matters are disposed of quickly and must be respected - Considering the judgment of the Supreme Court in Vijay Prakash D Mehta Vs Collector of Customs it emerges that the powers of the Commissioner (Appeals) being statutory ones, the Commissioner (Appeals) cannot act in breach of the provisions under which he functions - Also, the powers of the Commissioner (Appeals) are circumscribed by the conditions of the Customs Act 1962 - Therefore, the orders in challenge are set aside and the issues restored back to the Commissioner (Appeals) for a de novo decision in terms of law as discussed above - The lower authority shall follow the principles of natural justice and afford a reasonable and time bound opportunity to the appellant-department and the respondent to state their case on merits both orally and in writing if they so wish, before issuing a speaking order in the matter: CESTAT
- Matter remanded: CHENNAI CESTAT
2023-TIOL-954-CESTAT-KOL
Ferro Scrap Nigam Ltd Vs CCE & ST
ST - Appellant being a Public Sector Undertaking, entered into a long term contract with various customers, for recovering, handling, transporting and processing of slag scrap mixture generated at customers' steel plant as result of manufacturing processes at various stages like, blast furnace, SMS and raw material handling plant - The processing of slag scrap mixture was undertaken for purposes of obtaining iron and steel scrap from said mixture by way of screening and magnetic separation - Such activities do not amount to manufacture - Said iron and scrap so obtained was to be handed over to customers for further use in manufacture of dutiable goods - The obligations being discharged by appellants under contracts, consideration charged for performing such obligations and allegations made by Department against appellant for raising demand of service tax is that under category of Business Auxiliary Services upto 16.06.2005, appellants were engaged in activity of production and thereafter, it was alleged that activity of appellant amounts to processing, which is taxable under Business Auxiliary Service and not entitled for benefit of exemption Notfn 8/2005 - Various SCNs were issued to appellants to demand service tax - Appellant submits that the issue is no longer res integra as the same has been decided in their favour of in their own case 2014-TIOL-418-CESTAT-DEL for the period prior to 16.06.2005 and for the period after 16.06.2005 - Therefore, following the precedent decision in appellants' own case, it is held that the activity undertaken by appellants is not a taxable service - Accordingly, impugned orders are set aside: CESTAT
- Appeals allowed: KOLKATA CESTAT
2023-TIOL-953-CESTAT-AHM
Bayer Vapi Pvt Ltd Vs CCE & ST
CX - The appellant initially paid duty on export twice, one at the time of clearance of goods and second on closure of month along with monthly payment of duty - There is no dispute that on one clearance duty was paid twice, therefore duty paid second time needs to be restored to appellant as credit, appellant had taken suo-moto credit - If no discrepancy is found as regard the second time payment of duty and suo-moto re-credit thereof then no objection could have been raised by department - Appellant being law abiding assessee even though suo-moto credit was available to them, they had reversed the same on pointing out by audit officers - Thereafter, department could have regularized by allowing the re-credit but instead the appellant were issued SCN for demand of re-credit made by appellant suo-moto despite the fact that they had already reversed the same - Therefore, SCN itself ab initio, void and illegal - Hence, the suo-moto credit taken by appellant was correct and legal - Therefore, on that issue no SCN could have been issued - Since, appellant had already reversed the credit and no discrepancy found with regard to double payment on duty and suo- moto re-credit - Even, same was not disputed by department either in SCN or in order - Appellant is correctly entitled for re-credit therefore appellant has legal right to re-credit the amount of Rs. 1crore, in their Cenvat Account: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
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