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2023-TIOL-1490-HC-KERALA-VAT
State of Kerala Vs Sathyam Audios
Whether since there has been a transfer of the right to use goods, the activity is eligible to sales tax - YES: HC
- State's revision allowed: KERALA HIGH COURT
2023-TIOL-1489-HC-AHM-VAT
Swastik Trading Company Vs State of Gujarat
Whether order passed u/s 27(5) of Gujarat VAT Act cancelling registration and Notices under Form 503 and 104 and 401, ex-parte & without hearing assessee, merits to be quashed - YES: HC
- Case remanded: GUJARAT HIGH COURT
2023-TIOL-1488-HC-KOL-GST
Keysight Technologies India Pvt Ltd Vs Asstt Commissioner, CGST
Whether remand order passed by adjudicating authority by clearly defying and in violation of order of higher Appellate Authority, is highly deprecable - YES: HC
- Case disposed of: CALCUTTA HIGH COURT
2023-TIOL-994-CESTAT-AHM
Shreeji Shipping Vs CCE & ST
ST - The issue involved is that whether the appellant is entitled for Cenvat credit on various steel materials such as Steel Plates, HR Plates, Angles and Channels which were used in manufacture of barges and such barges were used for providing output services such as Port service, Cargo Handling Service and Supply of Tangible goods for use - The issue that any material used for making some equipment or building and in turn that equipment and barge is used for providing output service, material which were used shall be treated as input in terms of Rule 2(k) of CCR, 2004 - On this very issue, much water has flown and even in identical facts in case of M/s. Shreeji Shipping Services India Limited and M/s. Krishnaraj Shipping Company Limited, this Tribunal has held that steel material used for repair of barges are admissible for Cenvat credit - Issue is no longer res-integra, accordingly any material used for construction of building or fabrication of any equipment which is in turn used for providing output taxable service on the material so used, credit is correctly admissible - Therefore, considering the settled legal position on the issue in hand, impugned order is not sustainable, hence same is set-aside - As regards Revenue's appeal, since it is only for enhancement of penalty which is nothing but consequential to confirmation of demand and when demand itself is not sustained there is no question of penalty - Hence the Revenue's appeal has no substance accordingly the same is liable to be dismissed : CESTAT
- Assessee's appeal allowed: AHMEDABAD CESTAT
2023-TIOL-993-CESTAT-MAD
CC Vs International Flavours And Fragrances India Pvt Ltd
Cus - The respondent-importer, is engaged in manufacture of various flavours and fragrances which are used in the food and cosmetics industry - It imports various raw materials and semi-finished goods which are used in their factory in the manufacture of flavours and fragrances - During the relevant period, the respondent-importer filed Bills of Entry for clearance of goods declared as Cheese Polvaromas / Cheese Parmesan Polvaromas / Butter Cream Polvaromas which were self-assessed - These items were classified by the importer under CTH 33021090 - The Department rejected the classification as adopted by the imported and commenced an investigation - Samples were drawn and tested - Testing and subsequent investigating revealed that the goods were a preparation based on cheddar cheese product which is of animal origin and therefore would not be covered under the heading 3302 in view of the Chapter Notes 2 to Chapter 33 of Customs Tariff Act, 1975 - Consequently, Show Cause Notice came to be issued, proposing to reject classification of the goods under CTH 3302 based on the interpretation of the description of the entry in the Heading 3302 read with CTH 3301 on the Chapter Notes 2 to Chapter 33 - The Department proposed to classify the goods under CTH 2106 9060 on grounds that the imported goods were flavoring substances derived from Cheese and used as flavoring ingredients in food - The Department also invoked extended period of limitation, on grounds that the importer was aware of the composition of the goods and their origin and scope of usage and yet wilfully classified the goods under CTH 3302, by suppressing the nature of the goods - Duty demand was raised under Section 28(4) of the Customs Act, live consignments were sought to be confiscated under Section 111(m) of the Act - Goods covered in past consignments were also held liable for confiscation - Penalty under Section 112(a) and 114A of the Act were proposed - On adjudication, these proposals were dropped - Hence the present appeal by the Department. Held - A scrutiny of items covered under CTH 2106 and CTH 3302 and the HSN Notes under these headings, reveals that the imported items in question were not meant for direct consumption by humans and are in fact, said to be for industrial use - In the present case, these items are meant for manufacturing dry seasoning powder - The products that are classifiable under Chapter Heading 2106 mostly consist of food and edible preparations which are meant to be used either directly or after processing such as cooking, dissolving or boiling in milk or water or other liquids, for human consumption - As per the HSN Notes, the said heading i.e., 2106 excludes mixture of odoriferous substances, which can be either natural or synthetic or mixed or both, which are used as raw materials in the perfumery, food or drink industries - There is no dispute and it is also an admitted fact that the items in question cannot be used directly by the end users or consumers in any food/food prepararion and that these items are meant to be used as industrial raw materials and mixed with other ingredients to manufacture their final product 'Dry Mixed Seasoning' - Dry Mixed Seasoning is used by their customers as raw material in manufacture of the customers' finished products - These goods are not edible and are used for imparting flavor in the products in which they are mixed - To be classified under CTH 2106, the product should be used as food or beverages either as such or after a minimum processing such as dissolving, boiling in water / milk or other liquids for home consumption - What is imported in the present case are not edible but merely used to impart cheese flavour - Moreover, the subject goods were tested by Central Food Technology Research Institute, Mysore which has reported that the impugned goods are meant for industrial use - As such what is imported may be of animal origin i.e., Cheese, but, having components of synthetic aromatics, their appropriate classification is under CTH 3302 1090 of the Customs Tariff Act and there is no merit in the appeal filed by the Department: CESTAT
- Appeal rejected: CHENNAI CESTAT
2023-TIOL-992-CESTAT-MUM
Dirk India Pvt Ltd Vs CCE & C
CX - The Assessee is a manufacturing unit that, with effect from August 2009, was approved for conversion into 'hundred per cent export oriented unit (EOU)' under the eponymous scheme in the Foreign Trade Policy (FTP) of the relevant period and declared ' commencement of commercial production ' from 7th August 2009 - The benefit of 'duty free' procurement of indigenous goods and imported goods were covered under notification 22/2003-CE dated 1st March 2003, no. 23/2003-CE dated 1st March 2003 and no. 52/2003- CE dated 1st March 2003 incorporating conditions that were required to be fulfilled which pertained to clearance of goods into 'domestic tariff area (DTA)' at concessional rate of duty as provided for in paragraph 6.8 (a) of Foreign Trade Policy (FTP) (2009-2014) - The Assessee had been clearing 'processed fly ash' into the domestic market both at concessional rate of duty and, on full payment of duty, on clearances beyond the permissible limit - Demand of Rs 7,82,337 arose from alleged short levy on 'clearances' effected on full payment of duty, owing to difference in value of Rs. 70,86,390 reported in excise returns and that filed with the jurisdictional Development Commissioner which the lower authorities held as unacceptable, and holding that the higher of the two should have been the basis for discharge of liability - The demand of Rs. 36,18,965 pertains to clearance of goods on concessional rate of duty for which the entitlement, instead of prescribed 'rests', was computed at monthly intervals; it is on record that liability of Rs. 31,56,929 has been conceded by the Assessee as due with the dispute, thus, limited to Rs. 4,61,766 which the lower authorities have held as remaining unreconciled in the submission of the appellant in proceedings before them. Held - It is seen from the grounds of appeal that the statutory requirement of monthly removals mandated by the Maharashtra State Pollution Control Board (MSPCB) precluded any other option and any detriment arising from computation of entitlement to monthly computation of entitlement for domestic clearance would be inequitable - That certain classes of units are entitled to such periodicity of clearance rules out rigidity of approach in computing entitlements. There is no reason to deny such computation to the appellant herein - As far as the demand relating to 'domestic clearance' at full rate of duty is concerned, on the dispute limited to Rs. 7,82,337, it would appear that the justification offered by appellant for the appropriate value of clearances has not been appreciated by the lower authorities - This submission came to be dismissed in a casual manner - The veracity of the entitlement for clearance at concessional rate of duty, as submitted by the appellant, needs to be carried out and the submissions of the Assessee on the value of the clearances effected at 'full rate of duty' need consideration - These are to be undertaken by the original authority - Hence the matter is remanded to the original authority: CESTAT
- Case remanded: MUMBAI CESTAT |
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