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2023-TIOL-1015-CESTAT-KOL
Jai Balaji Industries Ltd Vs CCE
ST - The Assessee, a mini integrated steel plant, is engaged in the manufacture of TMT Bars, Sponge Iron, Pig Iron, Billets, Silico Manganese and Ferro Manganese - The Assessee is required the inputs to manufacture the final products and the input procured by the Assessee for different modes of transportation and as Goods Transport Agency, has been brought into the service tax net w.e.f.13.12.2004 and the person who has received the transport agency service is requied to pay service tax under reverse charge mechanism - On scrutiny of service tax related documents for the period 2006- 07 to 2007-08, it was found that there was a variation of transportation charges for carriage inward and outward as per the value shown in their ST-3 Returns - Thereafter, it is alleged that the Assessee paid less service tax as there is a difference in transportation charges paid by the appellant corresponding to ST-3 Returns - Therefore, an SCN was issued to the Assessee to demand service tax of Rs. 72,75,885/- - On adjudication, the adjudicating authority dropped the demand of Rs. 44,28,375/- but to confirm Rs.28,47,510/- along with interest and an equivalent amount of penalty was also imposed - Hence the present appeal.
Held - In the subject order, the total demand of Rs. 28,47,510/- has been confirmed against the Assessee - After verification of records, for demand of Rs. 12,99,559/-, the Assessee produced two challans - The above two challans were not considered by the adjudicating authority and at the time of hearing of the Stay Petition filed by the Assessee, the same were sent for verification but the Revenue neither denied the said payment made by the Assessee nor verified the same from their records - Therefore, it was concluded by the Tribunal while considering the Stay Petition that the appellant has paid the said amount - Therefore, to that extent, the demand of service tax of Rs. 12,99,559/- is not sustainable - It is evident from the records that the transporter, who has transported the goods at the premises of the Assessee, has paid the service tax on the transportation service and the same is made evident from the invoices - In that circumstances, the demand of Rs. 3,29,320/- is not sustainable against the Assessee - For the demand of Rs. 3,40,377/-, it is evident from the record that the service received by the Assessee for transportation of goods on sale to their various buyers - Therefore, the said service is not a service received by the Assessee, in fact, the Assessee has paid the transportation charges for the railways of transportation of goods outward from their factory - In that circumstances, the Assessee is not liable to pay service tax thereof - Therefore, the demand of Rs. 3,40,377/- is not sustainable - The demand of Rs. 4,33,537/- has been confirmed wherein the Assessee has made the provision (liabilities for expenses) for payment to M/s Container Corporation of India and the freight has been paid on sale as this amount has been confirmed on the basis of book entries, but the said transportation charges are for sale of goods - Therefore, the said demand is also not sustainable - It is held that whole of the demand by way of impugned order is not sustainable against the Assessee: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-1014-CESTAT-KOL
A R Stanchem Pvt Ltd Vs CCE
CX - The Appellant is a 100% Export Oriented Unit (EOU) and is manufacturing Linear Alkyl Benzene Sulphuric Acid (LABSA) falling under Central Excise Tariff No.34029091 and Spent Sulphuric Acid emerging as a by-product by Heading No.28070010 out of the inputs i.e. Liner Alkyl Benzene Sulphuric Acid and Spent Sulphuric Acid - In terms of Notification No.2/2008 dated 01.03.2008, the appellant was paying 14% duty ADV - They are clearing Spent Sulphuric Acid to the fertilizer companies, which are exempted from payment of duty in terms of Notification No. 4/2006-CE dated 01.03.2006 as amended - The Revenue was of the view that the said Notifications were issued under Section 5A (1) of the Central Excise Act, 1944 - The proviso to the said Section provides that under exemption of Section 5A shall not apply to excisable goods, which are produced or manufactured by a 100% EOU and brought to any place in India - Therefore, the Appellant is not eligible for those exemption Notifications - The proceedings were initiated against the Appellants by issuing show-cause notices to demand differential duty along with interest and to impose penalties on the Appellants.
Held - For the subsequent period, the Appellant's own case, the proceeding has been dropped by the adjudicating authority and the said order has been confirmed by the Commissioner (Appeals) - In view of the above decision, which is applicable to the facts of this case, the charging section for duty on DTA clearance is under the provisions of Section 3(1)(b)(ii) of the Central Excise Act, 1944 and as per the said provisions, the duty is to be levied and collected from a 100% EOU, would be the duty of Customs payable if the goods produced and manufactured outside India and the same have been imported into India - This is the basic charging section of duty leviable on a 100% EOU when clearing the goods to DTA. As per the said provisions, the duty of excise shall be levied and collected on any excisable goods, which are produced and manufactured by a 100% EOU and brought to any other place in India, shall be an amount equal to the aggregate of duties of customs which would be leviable under the Customs Act, 1962 or any other law for the time being in force, on like goods produced and manufactured outside India if imported into India and where the said duties of excise are chargeable with reference to their value, the value of such excisable goods shall, notwithstanding anything contained in any other provisions of this Act, be determined in accordance with the provisions of the Customs Act, 1962 and the Customs Tariff Act, 1975: CESTAT
Held - On this issue, the Notification No.23/2003-CE dated 31.03.2003 was issued - At Sl.No.2 of the said Notification, it is specifically mentioned that in respect of all goods under any Chapter, the Central Government exempts goods from so much of duty of excise leviable thereon is in excess of the amount equal to 50% of the duty leviable under Section 3 of the Central Excise Act, 1944, provided that the duty payable with this Notification in respect of the said goods shall not be less than the duty of excise leviable on the like goods produced and manufactured outside EOU, which is specified in the said schedule read with any other relevant Notification issued under Section 5A(1) of the Central Excise Act, 1944 - Therefore, the duty payable in accordance with this Notification in respect of the said goods shall not be less than the duty of excise leviable on the like goods produced or manufactured outside EOU Unit, which is specified in the said Schedule read with the any other relevant Notification issued under Section 5A(1) of the Central Excise Act, 1944 - Hence the Appellant is entitled to pay the duty in terms of Notification No.2/2008-CE dated 01.03.2008 and Notification No.04/2006-CE dated 01.03.2006: CESTAT
- Assessee's appeals allowed: KOLKATA CESTAT
2023-TIOL-1013-CESTAT-DEL
Avinash Sumerchand Jindal Vs CC
Cus - The (DRI) gathered intelligence that importer imported timber undervaluing it - During investigation, DRI found that various importers had similarly undervalued timber imported from various countries the details of which were available with middle man/supplier based in India- the appellant - Copies of e-mails were submitted by appellant and his accounts clerk Shri Shivprasad Attal - A SCN was issued to importer proposing to reject transaction value declared in their Bills of entry and re-assess the duty and recover differential duty along with interest and impose penalties - Appellant and two others Shri Ravinder Kumar and Shri Shivprasad Attal were called upon to explain as to why penalties under section 112 (a) and section 114AA of Customs Act, 1962 should not be imposed upon them - The importer approached Settlement Commission and by Final order, Settlement Commission settled the proceedings insofar as importer and its partners were concerned - Therefore, Additional Commissioner only confirmed the duty and interest as per Settlement Commission's order as far as importer was concerned and dropped the other proceedings as against importer and its partner - However, he imposed a penalty of Rs. 2,00,000/- each on appellant and Shri Shivprasad Attal under section 112(a) - The only point of dispute is penalty of Rs. 2,00,000/- imposed on appellant - This order of Adjudicating Authority was affirmed by impugned order - The question was referred to larger bench in two cases by members - The reason for referring the matter is that there are conflicting views expressed by different benches - Both views were taken by different single member benches, division benches and also in cases where the two members of bench differed and difference was settled by a third member - In view of these legal precedents, it founds appropriate to direct Registry to relist the matter after decision of larger bench - Both sides are free to mention as and when the decision of the larger bench is available: CESTAT
- Appeal disposed of: DELHI CESTAT |
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