2023-TIOL-1057-CESTAT-MAD
CGST & CE Vs Indo Tech Transformers Ltd
CX - The Assessee-company manufactures transformers and parts thereof, falling under Chapter Heading 8504 of the Central Excise Tariff Act 1985 - The Assessee is also registeted with the Excise Department and availed Cenvat credit on various inputs, including transformer oil - On perusal of the input invoices, it was noticed by the department that the respondent had paid duty at 14% advolerem on transformer oil and had taken cenvat credit of the same - The Assessee had cleared the transformer oil 'as such' in barrels separately under different invoices while clearing the final product "transformer" - Thus, the Assessee had cleared the final product viz. transformer and paid duty on the final product as if the transformer oil has formed part of the value of transformer oil - The Department was of the view that such transformer oil is cleared 'as such' and the Assessee ought to have reversed the credit availed on the transformer oil as under Rule 3 (5) of Cenvat Credit Rules, 2004 - Show cause notice dt. 29.11.2013 was issued for the period 2008-09 to 2012-13 (upto December 2012) alleging that the Assessee has to reverse the credit availed on transformer oil and proposing to demand the wrongly availed credit along with interest and for imposing penalties - After due process of law, the original authority dropped the proceedings and held that the transformer oil is not cleared 'as such' by respondent as alleged in the SCN - Hence the Department's appeal.
Held - It is also required to be stated that the respondent has included the value of the transformer oil in the assessable value for payment of excise duty - The A.R has vehemently argued that the adjudicating authority has erred in holding that as the value of the transformer oil has been included in the assessable value, it cannot be said that the credit availed on transformer oil cleared 'as such' need not be reversed - On perusal of the impugned order, it is seen that the reason for holding that the credit need not be reversed is not merely because the value of inputs (transformer oil) has been included in the assessable value but also upon the fact that the transformer oil is used in the process of manufacture for inspection and testing of transformers and not cleared 'as such' - From the materials placed on record, the Bench is convinced that the transformer oil purchased by the Assessee was used inside the factory in the process of manufacture and only for convenience has been transported in barrels along with finished product - The transformer oil is not cleared 'as such' - Hence, there are no grounds to interfere with the impugned order - The same is sustained - The appeal filed by the Department is dismissed: CESTAT
- Appeal dismissed: CHENNAI CESTAT
2023-TIOL-1056-CESTAT-MUM
Axis My India Ltd Vs CCGST & ST
ST - Appeal filed against impugned order by which Commissioner rejected the appeal on the ground that since possibility of having provided exempted excise duty activities from premises in issue cannot be ruled out the impugned credit would be ineligible to appellant and in such situation under Rule 9(6) of CENVAT Credit Rules, 2004 the burden to prove admissibility of said CENVAT Credit shall lie upon manufacturer or provider of output services taking such credit - While deciding the issue raised in SCN about 'nexus' and 'non-registration of premises at Delhi', in favour of appellant the said 1st appellate authority denied the CENVAT credit to the appellant by taking recourse to provision of Rule 9(6) ibid merely on the basis of assumption and presumption by recording the finding that 'the possibility of having provided exempted Excise duty activities only from the said cannot be ruled out and therefore in such situation, the impugned credit would be ineligible to the appellant' which is not sufficient to deny the credit to the appellant - Although Commissioner has denied CENVAT credit to the appellant for not discharging burden of proof as laid down u/r. 9(6) ibid - There is no mention about rule 9(6) ibid anywhere in SCN - Time and again it has been laid down through various decisions that SCN is foundation and judicial principles do not permit the adjudicating authority or the 1st appellate authority to travel beyond SCN - The Supreme Court in Toyo Engineering India Ltd. 2006-TIOL-111-SC-CUS and Gas Authority of India Ltd. 2007-TIOL-250-SC-CX has laid down that authorities under the Act cannot travel beyond SCN - Since the impugned order has travelled beyond SCN and has been passed on a new ground, same is not sustainable and is set aside - Accordingly, the impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2023-TIOL-1055-CESTAT-ALL
Sarvendra Kumar Mishra Vs CC
Cus - This is a case of town seizure wherein, the gold was initially taken possession of by officer of GRP and then handed over to the Customs - The place where seizure took place is not Customs Area - Supreme Court in the case of Gian Chand & Ors , wherein in case of seizure by the Police and thereafter the possession was shifted to the Customs Officer held that the pre-requisite of seizure is not satisfied - Accordingly, it is held that the circumstances as required under the Customs Act are not satisfied and consequentially the whole burden or onus to establish the smuggled nature of gold is on the Revenue - Other than the statement of Shri Kishan Kumar Dhuria, no evidence is brought forth by Revenue to conclude that the impugned gold has been smuggled - It is not open for the department to draw conclusions from a general statement to particularise about the impugned goods - The onus was not discharged - Moreover, provisions of Section 138B of Customs Act, 1962 have not been complied with and therefore, the sanctity of statement recorded under section 108 has been lost and consequently, it cannot be conclusively relied upon - The Adjudicating authority has come to the conclusion that the Gold seized is of 2Kg - Evidence produced by appellants pertained to one piece of gold, whereas Shri Dhuria was carrying 2 pieces totally weighing around 2kg; Shri Dhuria and Shri Ram Bol together were carrying more than two pieces - The appellant Shri Sarvendra Kumar Mishra, who claimed the ownership of impugned Gold, submitted that Shri Dhuria was accompanied by his another employee i.e. Shri Ram Bol and that while Shri Dhuria carried the Gold, Shri Ram Bol was having documents - Shri Ram Bol was not examined by officers so as to contradict the claim of appellants, claiming that he did not present himself before officers - Considering the seriousness of charge, it was incumbent upon the department to falsify the claim of appellants - Examination of these two was crucial to investigation - The conclusions drawn by department are mere conjectures and an allegation of grave nature such as smuggling cannot be established on the basis of conclusions drawn on insufficient investigation - Neither foreign origin of gold nor the nature of the same being smuggled is conclusively established other than merely relying on the conclusions drawn from statement of Shri Dhuria - In the absence of action under Section 138B of Customs Act, 1962 by Revenue, statement of Shri Dhuria alone cannot be relied upon for sustaining the allegation of smuggling of gold, under the provisions of the Customs Act - No reasonable belief has been established that the impugned Gold is liable for confiscation - Penalty can not be imposed under Section 112 of Customs Act, 1962 - The revenue is directed to return the gold seized forthwith and/or if the gold has been disposed, to return the sale proceeds along with interest as per rules, within six weeks - Application filed by the Appellant under Rule 41 of CESTAT Procedure Rules 1982 for implementation of Final Order passed by the CESTAT.
Held - Application was listed on 18.10.2023 and a detailed order was passed, including imposition of personal penalty of Rs.50,000/- on the Commissioner concerned - Hence, Miscellaneous Application is allowed: CESTAT
- Miscellaneous Application allowed: ALLAHABAD CESTAT |
