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2023-TIOL-1102-CESTAT-HYD
HSBC Electronic Data Processing India Pvt Ltd Vs CCT
ST - The Assessee-company is engaged in providing services falling under the heading 'Information Technology services' & 'Information Technology Enables services' (IT & ITES) - The Assessee claimed Cenvat credit in respect of inputs utilised for providing these output services - However, the credit came to be denied as per Rule 14 of Cenvat Credit Rules 2004 - Hence this appeal.
Held - The Bench agrees with the Assessee's contention that proceedings under Rule 14 and Rule 5 of CCR 2004 are similar in nature - There is agreement with the Assessee's contention of there being similarity in proceedings under Rule 14 pertaining to recovery of Cenvat credit wrongly taken or erroneously refunded, and under Rule 5 of CCR pertaining to refund of Cenvat credit - Moreover, the issue at hand already stands settled in favor of the Assessee - Hence the orders in question merit being set aside: CESTAT
- Appeal allowed: HYDERABAD CESTAT
2023-TIOL-1101-CESTAT-ALL
ICRA Management Consulting Services Ltd Vs CCE
ST - The present appeal is directed against an order passed by the Commissioner Appeals in sustaining an Order-in-Original passed by the jurisdictional Commissioner, wherein tax demand had been confirmed in respect of services provided by the Assessee to an IFC, on grounds that the recipient was not a part of the World Bank per se but was a member of the World Bank Group, and in which case, the services provided were not exempt from taxation - The Order-in-Original had also held that the exemption under reference would be available on services provided to the IFC with effect from 13.07.2016 and not before that as there was no mention of any retrospective applicability of such exemption - The Commissioner (Appeals) went on to hold that the settled position of law with regard to notifications granting any exemption or benefit is that they should be construed strictly and on the basis of the language used therein. Hence, in the absence of any specific provision for retrospective applicability, it can only have prospective effect. Since the period involved in the instant case is from January 2015 to March 2016, it is unambiguous that the said exemption was not available as the name of IFC was inserted in the said list only on 13.07.2016. Therefore, the demand of service tax amounting to Rs.30,09,742/- on the services provided by the party to the IFC during the above period had been rightly confirmed under Section 73 of the Act along with interest under Section 75 of the Act - Hence the present appeal.
Held - The Miscellaneous Application filed by the Appellant for early hearing was allowed taking note of the fact that for the previous period appeal filed by the appellant in respect of the demand made on the same grounds has been allowed by the Final Order No 70376/2019 dated 21.02.2019 - Though the order is dated much after this order of CESTAT it appears that Commissioner (Appeal) has decided the appeal filed by the Appellant before him in total ignorance of this order - The Show Cause Notice dated 30.09.2015 for the earlier period was adjudicated and finally the matter was taken up before this Tribunal - In the above order demand upholding the reversal of credit of Rs 2,12,309 the penalty imposed equal to this amount has been set aside - The Appellant vide his letter dated 07/11/2023 informs that they has reversed the Cenvat credit amounting to Rs.2,65,723/- in terms of provisions of Rule 6 of the Cenvat Credit Rules, 2004 - Further, it is informed that the said reversal of credit had already been intimated to the Service Tax Department vide letter(s) dated 29.06.2015 and 23.06.2016 - However we also note that taking note of the above Revenue has not given any demand in respect of this amount in the present statement of demand, nor any penalty has been imposed corresponding to this amount - There is no reason to differ from the above order, as the Show Cause Notice also do not give any ground except that it was an statement of demand on the basis of earlier show cause notice - Hence the subject order is set aside: CESTAT
- Appeal allowed: ALLAHABAD CESTAT
2023-TIOL-1100-CESTAT-MUM
Husain Kasam Mukadam and Sons Vs Pr.CIT
Cus - The Appellant was issued with a Customs Broker (CB) license granted by jurisdictional Principal Commissioner of Customs (General) under Regulation 7(1) of CBLR 2018 - An offence report was received from Special Intelligence & Investigation Branch (SIIB) of Jawaharlal Nehru Custom House, Nhava Sheva (JNCH) stating that the Customs authorities at Pune had initiated an enquiry against an importer namely M/s K.K. Traders, Satara for having illegally imported cashew kernel broken/whole into India by mis-declaration of the description and value of the goods, with intention to evade the legitimate Customs duty and to circumvent the prohibition in force - The Appellant, on behalf of the importer M/s K.K. Traders, had filed the Bill of Entry (B/E) No.7580019 dated 21.02.2022, in which the customs examination order was given as "open and examine (100% at item level) and look for concealment"; the appellants CB had got the mis-declared imported goods cleared from JNCH, Customs by mis- representation during examination - However, during transit, the said imported goods transported in the container No.WHLU5762951 was intercepted by Pune Customs (Preventive) and during its detailed examination, it was found that as against the declared goods 'Raw Cashew Nuts in shell', the imported goods were actually found to be "Processed Cashew Kernels" - Based on the above, the jurisdictional Principal Commissioner of Customs (General), Mumbai had immediately suspended the Appellant's CB license vide Order No. No.01/2022-23 dated 01.04.2022 - After giving post decisional hearing the suspension of the CB license of the Appellants was continued vide Order No.08/2022-23 dated 23.05.2022 - Subsequently, Show Cause Notice was issued for the act of omission and commission of Appellants, leading to contravention of Regulations 10(e), 10(n), 10(q), 13(3), 13(4), 13(7) and 13(12) of the Customs Brokers Licensing Regulations, 2018 (CBLR) - The enquiry report was submitted on 30.09.2023, concluding that the Customs Broker had contravened Regulations 10(e), 10(n), 13(3), 13(4) and 13(12) of CBLR, 2018 and other charges under Regulations 10(q) and 13(7) as having been not proved - Accordingly, the Commissioner of Customs (General) had revoked the the Customs Broker's license which had been issued to the Appellants for acting as a Customs Broker under CBLR, besides imposition of penalty and forfeiture of entire security deposit furnished by the Appellants vide the order dated 30.12.2022.
Held - From the factual matrix, it is seen that the importer M/s KK Traders, Satara, , had violated the conditions prescribed in the FTP by import of cashew kernels below the threshold MIP, and the Appellants had no role in the said violations of MIP - Rather, the appellants had performed their duties as customs broker in filing the declarations by properly filing the B/E and in clearance of the goods from Customs control as the mis-declaration of goods is only to the extent of MIP, and the same was not identified by the Customs examination by JNCH, Nhava Sheva - Such mis- declaration came to the fore only on the basis of examination of goods enroute by Pune Customs on the basis of specific information and the same details being shared with SIIB of JNCH, Nhava Sheva for further action to be taken in the next similar consignment of import cargo at JNCH, Nhava Sheva - It is true that as an individual person Shri Chetan Yadav, of M/s Ninai Shipping Agency who assisted the importers in the violation, and the appellants as a Customs Broker associated with such imports may be responsible for the omission and commission which had led to import of prohibited goods in violation of the Customs Act, 1962 read with relevant Rules and Regulations - Also, separate Show Cause Notice had been issued to Shri Chetan Yadav, along with notices being issued to the Appellant and to M/s Shiv Kumar Gupta, M/s MRB Logistics under the Customs Act, 1962 for their individual role played in omission and commission in the illegal import of goods - Hence, the Appellant has not been involved as a customs broker in the violation of mis-declaration of description and MIP of imported goods in the aforesaid transaction - Thus, there cannot be a case for taking action against violations of CBLR - Hence the order imposing penalty on the Appellant and forfeiting the Appellant's security deposit, does not sustain on factual grounds: CESTAT
Held - From the factual matrix, it appears that the Appellant has not handled any Customs documentation or any process involving importation of goods where such mis-declaration of MIP or description of goods can be attributable to the Appellants - Even the examination of goods before the JNCH, Customs officers has been done and the department did not find anything contrary to the declarations made by the importer - Nowhere have the Appellant been indicated as being responsible for the omission and commission in illegal import by Shri Krishnat Shankar Kadam, proprietor of the importer. He had in fact stated that as per his knowledge, Shri Chetan Yadav of M/s Ninai Shipping Agency is the customs house agent/ customs broker and he is not aware of M/s Husain Mukadam & Sons - Moreover, regarding the allegation of the Appellant having contravened the provisions of Regulation 10(e) of the CBLR 2018, it is seen that the Appellant filed the Bill of Entry based on the data given to the Appellant and such details entered by the Appellant were verified during Customs examination and there was no mis-declaration in these documents - It is the case of concealment of undeclared goods which could not be identified during 100% examination by customs, but could be detected only on the basis of specific information received by another Customs authority at Pune, who, on examination conducted subsequent to customs clearance at JNCH, Nhava Sheva, had identified the mis-declaration - The modus operandi identified in this case brings out clearly the role of importer, and Shri Chetan Yadav as the key players in such mis-declaration - Besides, the Appellant was unaware of the fraud committed by the importer and other persons - Hence the Appellant cannot be said to have violated the provisions of Regulation 10(e) of the CBLR 2018: CESTAT
Held - Circular No. 9/2010-Customs dated 08.04.2010 - The CBIC circular clearly explains the provision of CBLR/CHA Regulations which require the Customs Brokers to verify the antecedents, correctness of Import Export Court (IEC) Number, identity of his client and the functioning of his client in the declared address by using reliable, independent, authentic documents, data and information - The said guidelines provide for the list of documents that is required to be verified and that are to be obtained from the client importer/exporter - it is also provided that any two documents of among such specified documents is sufficient for fulfilling the obligation prescribed under Regulation 10(n) of CBLR, 2018 - In the present case, the Appellant had obtained the KYC documents and submitted the same to the Customs Department - Hence in light of the factual matrix, the relevant CBIC Circular and judicial precedents cited, it is factually incorrect to state that the appellants had for their acts of omission and commission in dealing with importer in mis-declaration of imported goods have failed to adhere to the responsibilities expected in terms of Regulations 10(e), 10(n), 13(3) and 13(4) of CBLR, 2018 - Hence, the conclusions arrived at by the Principal Commissioner in the impugned order are contrary to the factual position and thus are not legally sustainable - Therefore, the order is modified to the extent that the revocation of the Appellant's Customs Broker's license, and the forfeiture of security deposit are set aside, inasmuch as there is no violation of Regulations 10(e), 10(n), 13(3) and 13(4) of CBLR, 2018 - Nevertheless, a penalty of Rs 10000/- is imposed on the Appellant under Regulation 18 of the CBLR 2018, for failure to supervise it's employees for compliance with the law in examination of goods as per provisions of Regulation 13(12): CESTAT
- Appeal partly allowed: MUMBAI CESTAT
2023-TIOL-1099-CESTAT-DEL
CC Vs Air Logix Solutions
Cus - Assessee is licensed courier vides registration issued by Ministry of Finance - They were required to strictly adhere to provisions laid in Notfn 07/98-Customs (NT) - An information was received that assessee was using one Aadhar No. repeatedly with different Bills of Entry (BOE) for import of parcels through courier and it was found to have used 22433 times during the period from November 2017 to March 2018 - Pursuant to said information, proceedings were initiated - There is no denial of assessee to the fact that same GSTIN number/Aadhar No has repeatedly been used for several Bills of entry filed during said period - There is also no denial to the fact that consignees were different for these Bills of Entry and even consignors were different - The adjudicating authority did not revoke courier's registration nor forfeited the amount of security, except that the penalty of Rs.50,000/- has been imposed - Assessee has failed to verify correctness of IEC code and even identity of its clients - They were aware of use of same Aadhaar Number for all BOEs still Authorized Courier nor to verify said Aadhaar Number or did not verify the antecedent, correctness of Import Export Code (IEC) number, identity of its client - Further, assessee during the time of uploading of Bill of Entry failed to take note that the data entered was not correct - They did not inform Custom Department that KYC details filed in Bill of Entry was not the same which was received via email in respect of any given import - G.card holder of assessee, Shri Tikaram has also admitted in his statement that KYCs of consignee were not properly maintained in company office - Accordingly, assessee has contravened the provisions of Regulation 12(1) (v) of Courier Imports and Exports Regulations, 2010 - To ascertain as to whether imported goods indeed reached declared importers, a verification of genuineness of PODs (Proof of Deliveries), submitted by authorized courier and KYC was carried out by the Commissioner through jurisdictional Commissionerate(s) - The Joint Commissioner provided the verification report in respect of 19 addresses out of 24 addresses pertaining to M/s. Air Logix Solutions and other authorized courier companies - Failure of delivery of consignment to the consignee or denial of receipt of consignment by consignee that the addresses were found bogus during verification of genuineness of PODs, proves that the imported goods were never destined to consignees named in BOEs and have been intentionally diverted - It is known to reasonable prudence that such diversion was not possible without indulgence of authorized courier, the assessee - Thus, assessee was knowingly involved in diversion of imported goods and he intentionally and knowingly misused ID's of consignees in whose name the goods were shown imported, consignees being the relatives of NRI consignees - The goods otherwise meant for some one else - Assessee has facilitated imports and attempted to obtain clearance of goods in the name of many consignees whose IEC did not match with respective KYC - Thus, they has violated Regulation 12(1)(iv) of CIER, 2010 - Assessee has intentionally filed documents (BOEs) to clear goods by mis-declaring the names of consignees and consignors and by knowingly using same GSTIN for all BOEs meant for different consignees, without informing the same to proper officer and contravened the provisions of Regulation 12(1) (v) - Since the alleged act is proved to be intentional act of assessee, mere imposition of penalty is disproportionate punishment - Hence, Courier registration of assessee revoked for committing intentional fraud while importing several goods in name of those being gifts from Non Resident Indian (NRI) to their family member residing in India, which otherwise were not imported by them nor were meant for them: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-1098-CESTAT-MUM
CCE & ST Vs Reliance Industries Ltd
CX - Appeal of Revenue has been caused by in success of appeal of assessee before first appellate authority in relation to recovery of CENVAT credit, ordered by original authority for the period from January 2005 to March 2008 while adjudicating five SCNs for different establishments of assessee on the charge that CENVAT credit, being tax paid towards utilization of 'goods transport agency service', was ineligible - The sole contention in grounds of appeal is that conditions prescribed for eligibility to avail such credit, in circular of Central Board of Excise and Customs (CBEC) no. 97/8/2007-ST had not been evidenced as having been complied with - Appellant placed reliance on decision of Larger Bench of Tribunal in ABB Ltd 2009-TIOL-830-CESTAT-BANG-LB which was upheld by High Court of ABB Limited 2011-TIOL-395-HC-KAR-ST and considered in decision of Supreme Court in Vasavadatta Cements Ltd 2018-TIOL-90-SC-CX affirming the eligibility of such credit for period prior to 1st April 2008 - The issue arose in contest of definition of 'input service' in rule 2(l) of CCR, 2004, prior to amendment effected in 2008, wherein outward transportation from 'place of removal' was included - It was incumbent upon central excise authorities to establish that relevant conditions in said circular had not been complied with - It is not open to SCN issuing authority or adjudicating authority to level allegation without evidence in support of ineligibility for shifting the onus of establishing fulfilment of conditions on assessee - Appeal of Revenue lacks merits and is dismissed: CESTAT
- Appeal dismissed: MUMBAI CESTAT
2023-TIOL-1097-CESTAT-MUM
CCE Vs 3M Electro And Communication India Pvt Ltd
CX - The issue arises is empowerment vested in jurisdictional central excise authority to order 'provisional assessment' under rule 7 of Central Excise Rules, 2002 in relation to clearance of goods effected by M/s Finolex Cables Ltd. - The assessee is a manufacturer of 'cable joining kits' which is assembly of several components that were either 'bought out' or manufactured in their factory - As 'cable joining kits' were not liable to duties of central excise, liability was being discharged on components so manufactured on value corresponding to cost of production, as per CAS-4 norms prescribed by Institute of Cost and Works Accountants of India, made applicable by circular 692/8/2003-CX - Upon submission of CAS-4 at the end of each financial year, differential duty was also being discharged by assessee - Issue stands squarely decided in their own case in Finolex Cables Ltd = 2014-TIOL-1993-CESTAT-MUM holding that Rule 7 of Central Excise Rules, 2002 and instructions issued thereon provides for assessment of duty finally in a case where assessee is unable to determine the correct amount of duty or correct rate of duty and also does not opt for provisional assessment - In view of said decision, no merit found in appeal of Revenue: CESTAT
- Appeal dismissed: MUMBAI CESTAT |
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