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2023-TIOL-1676-HC-PATNA-GST
Flipkart Internet Pvt Ltd Vs State of Bihar
GST - Sub-Section 6(b) of Section 107 of the Act, 2017 - Petitioners, while availing the remedy of appeal under Section 107 of the Central Goods and Services Tax (CGST) Act/Bihar Goods and Services Tax (BGST) Act, have resorted to debiting of their respective electronic credit ledger (ECRL) for an amount equal to 10 percent of the remaining amount of tax in dispute arising from the assessment order in relation to which the appeal has been filed - Appellate Authority has rejected the appeal as being defective for non-payment of the pre- deposit - According to the Appellate Authority, the 10 percent pre-deposit could only be paid by utilizing the Electronic cash ledger (ECL) as per Section 49(3) of the CGST/BGST Act read with Rule 85(4) of the Central Goods and Services Tax Rules/Bihar Goods and Services Tax Rules (CGST/BGST Rules), 2017 - Hence the present writ petitions.
Held: Court is of the unambiguous conclusion that the pre-deposit (10 percent) for maintaining appeal under Section 107 (6)(b) of the CGST/BGST Act can be done by utilizing amounts in the ECL only - The conclusions are based on the provisions contained in Section 49(3) of the CGST/BGST Act read with Rule 85 (4) of the CGST/BGST Rules - Plain reading of these provisions make it clear that the pre-deposit (10 percent) is not covered by Section 49(4) of the CGST/BGST Act - Section 49 (4) of the CGST/BGST Act is exhaustive and only permits for making payments towards output tax under the CGST/BGST Act or under the Integrated Goods and Services Tax Act, in such manner and subject to conditions as may be prescribed - The court, therefore, in exercise of jurisdiction under Article 226 of the Constitution of India, would not add to the legislation so as to enlarge the scope of utilization of amounts in ECRL, for any other purpose -Statute has used the expression " a sum equal to " with specific purpose - Pre-deposit (10 percent) is NOT part of the tax liability - If there was such intention of the legislature, surely, the provision would have incorporated such an expression - The pre-deposit is not 10 percent of the remaining amount of tax - In such circumstances, pre-deposit, in the opinion of this court, can only be covered by the expression "any other amount" occurring in Section 49(3) of the CGST/BGST Act, as also Rule 85(4) of the CGST/BGST Rules - The irresistible conclusions from simple reading of Section 49 of the Act, therefore, is that amount in ECRL cannot be utilized for the purposes of paying the pre-deposit (10 percent) under Section 107 (6) of the CGST/BGST Act as this amount is neither an output tax under the BGST/SGST Act, nor is this amount due under the Integrated Goods and Services Tax Act - It is clear that actual deposits are made in the ECL through internet banking, credit or debit cards or any FD or RTGS settlement or by such other mode - The balance in ECRL, however, is a self- assessed input tax credit of the registered person and the amounts are credited on a provisional basis in the Electronic Credit Ledger, which is apparent from Section 41 of the BGST/SGST Act and are subject to an assessment proceedings to determine the amount of credit eligible for being utilized by the registered person - It is trite law that the right to appeal is a statutory right and not an absolute right - Such statutory right is capable of being circumscribed by statutory conditions - Court is of the opinion that the appeals filed by the instant petitioners under Section 107 of the CGST/BGST Act were not maintainable as the pre-deposit (10 percent) as per Section 107 (6)(b) of the Act, was not complied with by the petitioners - Conclusion of the Appellate Authority that payment of pre-deposit (10 percent) can only be made through ECL, requires no interference - Petitions dismissed: High Court [para 71, 72, 73, 76, 77, 78]
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Petitions dismissed: PATNA HIGH COURT 2023-TIOL-1094-CESTAT-MUM
Lear Automotive India Pvt Ltd Vs CCE & C
CX - The issue at hand pertains to the tax demand raised for recovery of Cenvat Credit, as per Rule 14 of the Cenvat Credit Rules 2004 - Interest was demanded as well, and equivalent penalty under Rule 15 of the Rules came to be imposed as well - The demand relates to removal of Epoxy Moulds to the manufacturer of 'parts of automobile seats' that were returned to the appellant for final assembly into the finished products to be supplied to M/s Mahindra & Mahindra Ltd during the relevant period - The case of the jurisdictional Central Excise authorities is that the 'moulds' had been removed 'as such' and, therefore, rendered the credit taken to be ineligible in terms of rule 3(5) of CENVAT Credit Rules, 2004.
Held - The order passed by the lower-authority is silent on the final disposal of the Moulds after completion of the contract - To the extent that 'moulds' had been transferred to the vendors, even if not to the 'job-worker', and it is not the contention of central excise authorities that these are removals envisaged in Rule 3(5) of CENVAT Credit Rules, 2004, recovery of ineligible credit under rule 14 of CENVAT Credit Rules, 2004 without such ascertainment would not be appropriate - Accordingly, the order is set aside and the matter is remanded back to the original authority for fresh determination on ascertainment of facts relating to the transactions: CESTAT
+ Rule 4(5)(b) of CENVAT Credit Rules, 2004 permits transfers to 'job-worker' for production of goods on behalf of 'principal manufacturer' and according to such specification as set out in such arrangement. The definition of 'job-worker' is specific and restricting it to such persons as undertake processing or working upon of raw material or semi-finished goods supplied to the job-worker is intended to relieve them of liability that would, otherwise, devolve on them as 'manufacturer' of excisable goods. On the other hand, enablement of transfers on 'principal-to-principal' basis was specifically incorporated in CENVAT Credit Rules, 2004 with effect from 27th March 2010. The issue, therefore, is permissibility of such transfers without reversal of CENVAT credit prior to such incorporation. CENVAT Credit Rules, 2004 were notified in succession to rules for availment and utilization of MODVAT credit in Central Excise Rules, 1944. We see from several decisions cited before us that MODVAT credit concerned was sought to be denied on the ground that 'raw materials' had not been furnished to 'job-worker' but we take note that definition of 'job-work' has been incorporated in CENVAT Credit Rules, 2004 unlike in the predecessor framework and the cases before the Tribunal had been disposed off on the finding that it was inappropriate to draw upon 'definition' in a procedural notification for an entirely different purpose for determination of eligibility to MODVAT credit;
+ Rule 9(3) of CENVAT Credit Rules, 2004, relating to inputs or capital goods removed 'as such' requires issue of invoice referred to in rule 9 of CENVAT Credit Rules, 2004 which does not apply to the present facts inasmuch as 'moulds' are not sold to the vendors. The removal of such moulds to 'job-worker' admittedly governed by rule 4(5) of CENVAT Credit Rules, 2004, permits retention of credit for a time and reversal upon completion of deadline till such time when the goods are not returned to the principal manufacturer. We cannot accept the submission that the incorporation of 2010 to cover removal to another manufacturer or job-worker is not clarificatory in nature especially as rule 4(5)(a) of CENVAT Credit Rules, 2004, intended for such clearance to the job-worker, finds mention again in rule 4(5)(b) to cover situations of such not being returned to the principal manufacturer.
- Case remanded: MUMBAI CESTAT
2023-TIOL-1093-CESTAT-CHD
CCE Vs Metaltech Motor Bodies Pvt Ltd
CX - The Assessee-company is engaged in building bodies of the vehicles, known as Riot Control Vehicles (Vajra Vahan) on the Chasis received from M/s Tata Motors and classified the same under CETH 8707 1000 availing exemption contained under Sl No.39 of Notification No.6/2006 - Officers of Central Excise visited the premises and found certain discrepancies in addition to the alleged mis-classification - Statements of Shri C.S. Mudgal, General Manager of the respondents and Shri J.B. Sherawat, Director, were recorded and some documents were withdrawn - On conclusion of the investigation, a Show-Cause Notice dated 31.12.2010 was issued seeking to re-classify the Vajra Vahan under CETH 8703 3392 & demanding differential duty of Rs.2,99,89,527/- along with interest and penalties - The Commissioner vide O-I-O dated 29.03.2012 discharged the Show-Cause-Notice as far as the classification of the impugned vehicles are concerned & confirmed the demand of duty of Rs. 36,691/- along with equal penalty on the company on the scrap alleged to have been clandestinely removed - He also imposed a penalty of Rs.5000/- each on Shri J.B. Sehrawat, Director and Shri C.S. Mudgal, General Manager of the respondents under Rule 26 of Central Excise Rules, 2002 - Thereafter, the Committee of Chief Commissioners have reviewed the O-I-O vide Order dated 18.06.2012 and directed the Commissioner to file an appeal against the impugned order - Hence the Departmental appeal.
Held - The issue, whether the Tata-207 Vajra Vahan built by the Assessee, merit classification as a specially designed vehicle falling under CETH 8705 are a vehicle principally designed for transport of passengers falling under CETH 8703 - The Commissioner observed that Vajra Vahan, a multi role riot control vehicle, which is specially constructed and fitted with equipment to enable to perform specified functions, was classifiable under CETH 8705 - It was not principally designed for transport of passengers or personnel, is correctly classifiable under CETH 8705 and eligible for the exemption contained under Notification No.06/2006-CE dated 01.03.2006 - The Commissioner vide the order also considers also the fact that similar vehicles manufactured by BAT-BEIT Alfa Technologies Ltd, Israel are classified under CETH 8705 as per the information available in website and the registration of the vehicle, as a special purpose vehicle, by transport authorities should be a guide for classification as held in Hindustan Steel Industries; Scooter India Ltd. and Bajaj Auto Ltd. - Moroever, the Commissioner having gone through the different fittings in the vehicle comes to the conclusion that the vehicle is specially designed by DRDO for riot control and the experts in the field calling it a special vehicle, their opinion cannot be discarded - He also placed reliance on the fact that the Transport Commissioner, U.P. has registered the same as a special purpose motor vehicle - Having gone through the photographs of the exteriors and interiors of the vehicles, it is found that the vehicle is not principally designed for the transportation of persons - At this juncture, it is borne in mind that HSN notes indicate that the vehicles under CETH 8703 are marked by absence of a permanent panel or barrier between the area for the driver and front passengers and the rear area that may be used for the transport of both persons and goods - Therefore, it is found that the vehicle is specially conceptualized, designed and built to deal with the situation arising during the riots and transportation of police personnel is only incidental to such use - Hence, no case has been made by the Revenue so as to interfere with the order as far as the classification of the special purpose vehicle (multi role riot control vehicle) is concerned: CESTAT
+ As per HSN Explanatory Notes, heading 8705 covers a range of motor vehicles specially constructed or adopted, equipped with various devices that enables them to perform certain non-transport functions i.e. the primary purpose of a vehicle of this heading is not the transport of persons or goods. We also find that the heading includes Motor breakdown lorries (trucks), motor pump vehicles, Lorries (trucks) fitted with ladders or elevator platforms, lorries used for cleaning streets, gutters, airfield runways etc., Snowploughs and snow-blowers, spraying lorries, crane lorries, mobile drilling derricks, lorries fitted with stacking mechanisms, concrete-mixer lorries, mobile electric generator sets, mobile radiological units, mobile clinics, searchlight lorries, telegraphy, radio-telegraphy or radio-telephony transmitting and receiving vans, etc. The Department argues on the point that the impugned vehicle does not fall under the above group going by the principles of ejusdem generis and for these reasons, the impugned vehicle should be categorized along with vehicles falling under CETH 8703 3392 along with vehicles like ambulances, prison vans etc. Interestingly, learned Commissioner in the impugned order relies on the same principle to classify the goods under CETH 8705;
+ From the material available on record, we find that the vehicle is specially adopted, equipped and designed for riot control. It is not the case of the Revenue that the vehicle is utilized for transportation of police personnel alone. A distinction has to be made between the basic manufacture of the vehicle and the body build upon it. An undisputed fact in the case is that the chassis supplied by M/s Tata Motors is similar to all the vehicles in the series 207 or others. It is the body-builders like the appellants give shape to the vehicle depending on the requirement. The design of the impugned vehicle has been conceptualized by VRDE and DRDO to suit special requirements. Understandably, in the impugned case, the vehicle is made to have so many features that help the police personnel in controlling riots. It could be that the vehicle may be helpful to carry the police personnel to a place where the riots are taking place. However, for that reason, the vehicle does not cease to be special purpose vehicle. If it is meant for only transportation of police personnel, the means of transportation could be anything by jeep, car, van, bus etc; there is no need to use the specialized vehicle for transportation. We find that the impugned vehicle is not meant for normal transportation and transportation of police personnel in the vehicle is incidental to the functioning of the vehicle. Most of the vehicles classifiable under CETH 8705 do also require personnel to man the vehicle and use the equipment provided. Such personnel also need to be transported and for that reason, such vehicles cannot be held to be primarily designed for transportation of personnel;
+ Moreover, we have perused the certificate, for compliance to the Central Motor Vehicles Rules, issued by VRDE, Ahmednagar has classified the vehicle as special purpose vehicle (multi role riot control vehicle). We also find that; accordingly, the Transport Commissioner of Uttar Pradesh has also certified the same. We find that the Larger Bench of the Tribunal in the case of Mahindra & Mahindra held that Motor Vehicles Act, 1988 and chapter 87 of Central Excise Tariff Act are pari materia Statutes for the purpose of determining the classification of motor vehicles. We find that the certificates issued by VRDE and the Transport Commissioner cannot be ignored unless the same are proved to be wrong or inconsistent with the provisions of the Statute. We find that no argument to the effect that the impugned certificates are wrong has been put forth by the Revenue. We find that as held in the impugned order that as the vehicle is seen to be a special purpose vehicle in the trade parlance, there is no reason as to why the classification should be done differently for the purpose of charging Central Excise duty. The opinion of DRDO which is under Government of India cannot also be ignored for the above cited reasons. The Department also argued that the appellants have classified the impugned vehicles earlier under CETH 8707 and have changed the classification to avail the benefit of notification. We find that there is no estoppel in revenue matters; no party can be expected to continue the mistake, if any, which occurred in the past and that the appellants have a legal right to change the classification.
- Appeal dismissed: CHANDIGARH CESTAT
2023-TIOL-1092-CESTAT-MAD
Ajanta Soya Ltd Vs CC
Cus - The Appellant-companies imported goods declared as "Bakery Shortening" under Bill-of-Entry No. 882999 dated 28.09.2005 and Bill-of-Entry No. 951898 dated 25.01.2006 classifying the same under Customs Tariff Heading (CTH) 1517 9010 - The Appellants had claimed nil rate of Basic Customs Duty (BCD) under Customs Notification No. 26/2000 (List 5) and Countervailing Duty (CVD) under Central Excise Notification No. 4/2005 (Sl. No. 2) or Sl. No. 246 of Central Excise Notification No. 6/2002 - The assessable value of the goods was Rs.6,84,970/- and Rs.60,69,278/- in respect of Bill-of-Entry No. 882999 dated 28.09.2005 and Bill-of-Entry No. 951898 dated 25.01.2006 respectively and the imported goods were cleared under 'nil' duty - The Revenue, entertaining a doubt that the benefit of Notification No. 4/2005 (Sl. No. 2) was applicable only for those goods falling under CTH 1516, Demand Notices were issued to the Appellants proposing to demand the differential duty under Section 28(1) of the Customs Act, 1962 - The Appellants replied, claiming that the benefit was wrongly claimed under Notification No. 04/2005 as against Notification No. 6/2002 - The original authority appears to have considered the explanation of the Appellants, also afforded opportunity of being heard and then vide Order-in-Original No. 18364/2012 dated 23.02.2012 and Order-in-Original No. 18424/2012 dated 02.03.2012, however, held that the imported goods were ineligible for the benefit of exemption under Notification No. 4/2005 as claimed by the Appellants on the ground that the aforesaid Notification was applicable only for those goods falling under Customs Tariff Heading 1516 whereas the goods imported by the appellant were falling under Customs Tariff Heading 1517, and consequently confirmed the demand of differential duty of Rs.54,798/- and Rs.4,95,253/- as proposed in the Demand Notices - With regard to the claim of benefit of Notification No. 6/2002, he has held that the same was only applicable to goods falling under sub-heading 150890 - On appeal, the Commr.(A) rejected the refund claims of the Appellants.
Held - It is found from the perusal of the orders of lower authorities that there is lack of discussion, specifically on the entry at Sl. No. 246 in the Central Excise Notification No. 6/2002 in the context of change in the statue book up to 28.02.2005, especially when 8 digit codes were not incorporated in the Central Excise Tariff - Further, Sl. No. 246 of the said Notification as it existed prior to 28.02.2005, undoubtedly covered all goods other than Margarine. The amended position as per Notification No. 5/2005 in reference to sub-heading 150890 specifically covers Margarine and prior to the amendment, the tariff for sub-heading 150890 was at 8% - This leaves no doubt that in Sl. No. 246 of Notification No. 6/2002 (supra), heading 1517 was required to be substituted for 1508.90. This is also clear when we look at the sub-heading in CETH 1508 prior to amendment, which was only for "Linoxyn" and "Other" and after amendment, the sub-heading for "Other" was spread over to cover all tariff items except 1517 10 22 (Linoxyn) - Further, the interpretation of the above Notification would be clear when Notification No. 5/2005-C.E.(N.T.) is read together with the note underneath the same wherein, it has been explained that the said Notification is intended to take care of technical changes adopted in the Central Excise Tariff numbering scheme - This crucial aspect appears to have been clearly missed by both the lower authorities - When Sl. No. 246 was inserted, the Central Excise Tariff Heading 150890 was based on 6 digit code, but the corresponding Customs Tariff was based on 8 digit code; Chapter 15 of the Central Excise Tariff contained Headings up to 1508 as against the revised Central Excise Tariff with 8 digit code having Headings up to 1522 00 90 - Hence, CTH 150890 at Sl. No. 246 of Notification No. 06/2002 is to be considered in the light of the 6 digit code as per the old tariff heading alone - The adjudicating authority having held that heading 150890 refers to "Ground Nut oils", etc., it only reflects that he has not applied the new alignment of classification of Central Excise Tariff, which came to be upheld in the impugned order - Having regard to the change in the scenario in the light of the amendment and the change from 6 digit level to 8 digit level, we are of the view that the appellants were entitled to 'nil' rate of BCD since its claim was correct in classifying "Bakery Shortening" under heading 1517 - The denial by the lower authorities is, therefore, not justified and hence, the impugned order which is liable for setting aside, is set aside: CESTAT
- Appeals allowed: CHENNAI CESTAT
2023-TIOL-1091-CESTAT-DEL
Holyland Marketing Pvt Ltd Vs CC
Cus - In the relevant period, an intelligence was received that the Appellant-company imported "Canned Pineapple Slices" from Philippines & Thailand and claiming exemption from Basic Customs Duty available to imports from ASEAN countries in terms of Customs Notification No. 46/2011-Cus dated 01.06.2011, as amended - However, it was alleged that the said 'Canned Pineapple Slices' are classifiable under Customs Tariff Heading No. 0804 3000 and consequently the benefits of Exemption Notification No. 46/2011- Cus dated 01.06.2011, as amended, are not available - Thereafter, the premises of the appellant was searched on 17.03.2021, in the presence of independent witnesses and the Director of the Appellant-company - Statements of the director were recorded, wherein he stated that the Appellant-company traded and manufactured processed fruits, vegetables and food additives and that they had been importing pineapple for over 2 years and he also submitted the import data for the past 2 years - The director also recounted the process of canning the sliced pineapples - Show Cause Notice was issued to the Appellant and on adjudication, Order-in-Original came to be passed, holding that Canned Pineapple Slices were classifiable under Customs Tariff Heading No. 0804 3000 - Tax demands were raised in respect of the five Bills of Entry filed, along with demands for interest and penalty under Section 114A of the Customs Act 1962.
Held - The fresh pineapple slices are sterilized by passing under steam which is followed by adding boiling Hot Sugar syrup to balance the natural sugar content of the fruit and prevent it from draining out - This Hot syrup (water+ sugar pre mixed) is heated till boiling point to kill any ambient bacteria and to create vacuum in the cans thus completing the preservation process - Thereafter, such cans are merely cooled, and not frozen to enable them to be released for sale - Thus, it is very clear from the facts of this case, the canned pineapple slices are akin to fresh pineapples and are liable to be classified under CTH 0804, and not under CTH 0811, as claimed by the Appellant - It is important to note that the process of canning the slices as indicated above is the same as explained by the Director of the Appellant: CESTAT
Held - Importance of HSN - the Supreme Court in its judgment in the case of M/s Thermax Ltd Vs Commissioner of Central Excise, Pune 2022 has highlighted the persuasive value of the HSN - It is important to note here that in the aforesaid judgment, the Supreme Court has reiterated the view that the HSN code is ‘the bedrock of custom controls and procedures' - Therefore, in the instant case, the classification of the canned pineapple slices would have to be decided as per the HSN explanatory notes and would therefore be appropriately classifiable under CTH 0804 only - It is also noted that in the impugned order, it is recorded that the Appellant had themselves quoted that it was their CHA who filed their Bills of Entry under the wrong CTH 20082000 without taking instructions from the regarding the correct classification, which would be CTH 08119010 - As per the discussions above, it is already opined that the appropriate classification would have to be arrived at by going through the tariff headings, the chapter notes, the HSN explanatory notes therein - In view of the same, we hold that the most appropriate classification of canned pineapple slices would have to be CTH 0804 only: CESTAT
Held - It has been brought on record by the Appellant that there was confusion in the Department itself regarding the classification of canned sliced pineapples - It has been submitted that there is a ruling dated 17.09.2018 by the AAAR in their own group firm M/s Bharat Agro wherein it was held that canned pineapple slices are classifiable under CTH 0811 - Thereafter, the Deputy Commissioner passed an order of reassessment on 31.01.2019 wherein the canned pineapple slices were reclassified from CTH 20082000 to CTH 0811 - There is merit in the contention that the Department themselves have classified the said goods under different headings - In view of the prevailing circumstances, the extended period cannot be invoked in the instant case - Hence the classification of the canned pineapple slices would be CTH 0804 - However, the demand for differential tax is limited to the normal period only - The interest would be reduced proportionately - The penalty imposed u/s 114A is set aside: CESTAT
- Appeal partly allowed: DELHI CESTAT
2023-TIOL-1090-CESTAT-MAD
State Bank of India Vs CGST & CE
ST - Appellant is engaged in providing Banking and Other Financial Services - On intelligence that appellant is not paying service tax on commission amount received from Employees Provident Fund Organisation (EPF), revenue initiated investigations - SCN was issued to appellant - The appellant both before Original Authority and Tribunal have not contested the taxability of commission amount received from Employees Provident Fund Organization - The appeal was filed due to non-consideration by Original Authority of Audited Final Accounts in arriving at final tax liability - Their change in stand is occasioned by judgement of a Coordinate Bench of Tribunal in case of 'Canara Bank' 2012-TIOL-790-CESTAT-AHM which came to be delivered after issue of impugned order - Tribunal deems it proper to remand the matter back to Original Authority to examine all the issues involved on facts and law and pass a speaking order afresh - The Commissioner shall follow principles of natural justice and afford a reasonable and time bound opportunity to appellant to state their case both orally and in writing if they so wish, before issuing a speaking order in matter - The appellant should also co-operate with Original Authority and submit facts/ law to show that they were acting as a statutory agent of Reserve Bank of India in the matter and that their principal, if it performed this activity, was exempt from paying service tax - Since the matter is long pending the process should be completed expeditiously and orders issued in any case within ninety days of receipt of this order - Accordingly, impugned order is set aside and appeal is restored before Commissioner for a decision on merits: CESTAT
- Matter remanded: CHENNAI CESTAT
2023-TIOL-1089-CESTAT-MUM
Schindler India Pvt Ltd Vs CCGST
ST - The Assessee Company manufactures elevators and also provides service, installation and commissioning of elevators - For both the purposes of manufacturing and installation, it had obtained Excise and Service Tax registration respectively - Under the service category registration was done for 'installation and commissioning and works contract services' - It adapts two business modules namely manufacturing elevators alone and for manufacturing as well as installation of elevators - For the second module it discharges appropriate VAT liability on supply of equipments and paid Service Tax on the component of installation and commission services - The Department disputed payment of Service Tax on installation and commissioning after deducting the amount paid towards supply of equipments/parts on which VAT was discharged and issue show cause for recovery of Service Tax on the gross amount charged towards the entire process of supply of equipment as well as installation and commissioning on the ground that bifurcation of both the components were not apparently noticeable - The first show cause notice was issued on 22.10.2013 under Sec 73 (1) of the Finance Act, 1994 for the Financial Years from 2008 to 2013 - The matter was adjudicated upon and demand was conformed along with interest and penalties - Being agrived, the Assessee challenged the legality of the order before this Tribunal which had disposed of the appeal on 01.07.2014 by way of remand to the adjudicating authority with specific direction to examine the records of the Assessee and to differentiate both supply of goods and rendering of services - De novo adjudication was initiated in pursuant to the order of the Tribunal but the same had not yielded any fruitful result since the Commissioner had conformed the entire demand in its totality along with interest etc. in the said de novo adjudication order and also adjudicated SCN dated 10.03.2015 for Financial Year 2013-14 that was also disposed of by way of conformation of demand etc - In the second round of litigation initiated by the Assessee before this Tribunal, the said adjudication order was set aside on 15.03.2023 - In the mean while three other periodic demand notices, as stated in the first paragraph were issued under Sec 73 (1A) and adjudicated by way of conformation of demand through three other separate adjudication orders which are assailed here in these appeals.
Held - Needless to mention here that the same person as Commissioner has passed these three orders and they paraphrased each other - In all 3 appeals, she has also referred to the certificates issued by the Chartered Accountant (CA), extracted its paragraph and ultimately concluded that the same certificates were issued in mechanical manner after obtaining computer generated printouts from the Appellant Company's system despite the fact that the starting word of the extracted portion of the certificate clearly indicates that those were issued on the basis of verification made by the Chartered Accountant (CA) - It would be worthwhile, to have a look at paragraph 8 of the order passed by this Tribunal in which it was clearly mentioned that the Assessee were maintaining proper and adequate accounting records to demonstrate that there was segregation of the price towards supply of material and for installation and commissioning of equipment and, therefore, denial of the value declared by the appellants without proper substantiation by the adjudicating authority, could not stand Judicial scrutiny - This being the observation of this Tribunal we are of the considered view that the findings of the Commissioner in her three orders under challenge herein that segregation is not possible is apparently based on her observation made at para 5.4 of the order which appears to be prejudiced against the Assessee for the reason that in the earlier de novo adjudication, the entire demand was re-conformed by the Commissioner which was accepted like a precedent by her and she took up the rest of the processes only to quantify the demand - The sole basis of conformation of demand made in these three appeals was that in the de novo proceeding the demand in its entity was conformed with interest and penalties but having regard to the fact that the said de novo adjudication order has been set aside by this Tribunal and the subsequent demands raised through Section 73(1A) as well as its conformation having based on the previous conformation orders, the same is liable to be set aside - Therefore, in order to maintain consistency and predictability of the order of this Tribunal and in obedience to judicial precedent set by it, all the three Orders in question are set aside: CESTAT
- Appeals allowed: MUMBAI CESTAT |
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