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2023-TIOL-1168-CESTAT-MUM
Maharashtra State Power Generation Company Ltd Vs CCE & C
CX - The short point challenging denial of refund claim is the requirement of furnishing TR-6 challan in original as evidence of discharge of duty liability for being sanctioned with their entitled reimbursement of taxes - Assessee had been directed to pay said duty on allegation of having manufactured excisable goods and it was consequent to settlement of disputes in their favour that refund claim was filed - Original authority rejected claim for refund solely on the ground that TR6 challan, evincing payment of duty, had not been furnished - First appellate authority upheld the finding of original authority to dismiss the appeal of assessee - Issue of documentation prescribed under section 11B of CEA, 1944 for claiming of refunds came before Tribunal in Maharashtra State Electricity Board and it was held therein that it is unjust to burden the assessee with production of further evidence of payment of duty - Proof of payment of duty is well reflected in department's records - The issue is the same as that in dispute of assessee for similar refund - Lower authorities had erred in insisting upon original document as proof of discharge of duty liability even though available with central excise authorities - Impugned order is set aside and the application restored to original authority for fresh determination of application for sanction in consequence of judicial determination of non-excisability: CESTAT
- Matter remanded: MUMBAI CESTAT
2023-TIOL-1167-CESTAT-KOL
Utkal Builders Ltd Vs CCE, C & ST
ST - Assessee is in appeal against impugned order whereby the demand of service tax has been confirmed against them for period from 01.06.2007 to 31.03.2010 under category of "renting of immovable property" service - It is not in dispute that assessee is providing renting immovable property service w.e.f. 01.06.2007 and at that time, the vires of levy of service tax was challenged before Delhi High Court in Home Solution Retail = 2009-TIOL-196-HC-DEL-ST and it was held that levy of service tax under renting of immovable property is ultra vires - Thereafter, by way of Section 77 of Finance Act, 2010, amendment was brought in and levy of service tax became on renting of immovable property and came retrospectively w.e.f. 01.06.2007 - The SCN issued to appellant by invoking extended period limitation is not sustainable as held by Tribunal in case of Jindal Vegetable Products Limited = 2013-TIOL-315-CESTAT-DEL - Therefore, no demand is sustainable against appellant - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-1166-CESTAT-ALL
CCE Vs Clean Plast
ST - Assessee is engaged in process of procuring PET Bottles received from M/s Reliance Industries Ltd. and after flaking/washing/grinding used bottles, same were return back to M/s Reliance Industries Ltd. for being further use in manufacture of finished goods - It was alleged that processes of flaking/grinding of used PET bottles and washing of flakes do not amount to manufacture as defined under Section 2(f) of Central Excise Act and was also not one of the declared product as manufactured under Section 2(f) of Central Excise Act - Revenue was of the opinion that the process amounting to manufacture and were subjected to nil rate of duty and finished products were subjected to nil rate of duty as per Notfn 24/2012-CE - Accordingly, a SCN was issued to assessee - The period in dispute is from October 2011 to March 2013 and the grounds stated for subjecting to levy the activities undertaken by assessee to service tax under category of business auxiliary service and as noted in appeal filed by revenue - The conclusion reached by Commissioner in impugned order to the effect that if processes undertaken by assessee amount to manufacture then they are exempt from payment of duty as per Sl No 78 of Notfn 4/2006- CE finds support from decision of Chennai Bench in case of Sree Ranga Polymers = 2019-TIOL-306-CESTAT-MAD - Tribunal has held that the processes under taken by assessee do amount to manufacture and leads to emergence of finished goods which are exempted from payment of Central Excise duty as per Notfn 4/2006-CE - In view of the specific decision holding that finished goods of assessee are exempt from payment of duty, issue of manufacture is settled in favour of assessee and activities undertaken by appellant cannot be classified under taxable category of Business Auxiliary Service - Revenue in its appeal has not challenged this conclusion arrived by Commissioner in impugned order - Appeal filed by revenue can be dismissed on this account itself - To set all the issues at rest in respect of classification of Polyester Staple Fibre obtained from waste PET Bottles, by Section 142 of Finance Act, 2012, Chapter Note 1 A was introduced in Chapter 54 of First Schedule to Central Excise Tariff Act, 1985 with effect from date of 37 B order - Simultaneously vide Notfn 24/2012-CE, Notfn 17/2012-CE was amended granting exemption to Polyester Staple Fibre obtained from waste pet bottles - By Section 110 of Finance Act, 2014 exemption to polyester staple fibre manufactured out of waste PET Bottles was given with retrospective effect for period from 29.06.2010 to 17.03.2012 - Thus, it is seen that Polyester staple fibre or polyester filament yarn manufactured from plastic scrap or plastic waste including waste polyethylene terephthalate bottles was throughout exempted from payment of duty or attracted nil rate of duty - There could not have been any reason for limiting applicability of Notfn 8/2005-ST from 08.05.2012 the date of Notfn 24/2012-CE amending notfn 17/2012-CE - Revenue has in its appeal restricted the demand of service tax from 08.05.2012 - Further in its circular, Board has clarified multifarious uses of Polyester Staple Fibre - No evidence has been produced by revenue in appeal or at any stage of proceedings to show that finished goods of M/s Reliance Industries Limited were cleared under exemption - The contention of revenue in appeal with regards to non admissibility of exemption under these notifications is supported by any evidence, to show that M/s Reliance Industries Limited was clearing Polyester Staple Fibre by availing exemption under Notfns referred in the appeal - In fact it is not even shown that M/s Reliance was clearing Polyester Staple Fibre or was clearing product referred in board circular of 2010 on payment of appropriate duty - No merits found in appeal filed by revenue: CESTAT
- Appeal dismissed: ALLAHABAD CESTAT
2023-TIOL-1165-CESTAT-CHD
A B Network Development Pvt Ltd Vs CC
ST - Appellant was a distributor of M/s Amway India Enterprises, a direct selling company engaged in business of selling products through its distributors - In direct selling, instead of middlemen, sale was made directly to customer through a network of people by involving many people who sold a small amount of volumes each, which results in a huge volume for entire network - On the allegation that appellants are liable to pay service tax under business auxiliary service on commission received from Amway for period July, 2003 to March, 2005, a SCN was issued to appellant and after following due process, original authority confirmed the demand against noticee; A B Network Development Pvt. Ltd. and Smt. Bindu Narang and Sh. Anil Narang under Section 75 of the Act - Appellant submitted that impugned order is not sustainable in law and said order has been passed without considering their submissions - On identical issue, a bunch of appeals were decided by Principal Bench of CESTAT, New Delhi vide disposing of 83 appeals by a common order against various persons from whom department demanded service tax under business auxiliary service - By following the ratio of decision in case of Paramjit Kaur & others and other appeals, matter remanded to original authority for de-novo adjudication on same lines as was given in bunch of appeals - The original authority is directed to decide the matter within period of 3 months: CESTAT
- Matter remanded: CHANDIGARH CESTAT
2023-TIOL-1164-CESTAT-DEL
Kabir Oldtex Vs CC
Cus - The Appellant was issued EPCG License No. 0530137818 dated 11.01.2005 for import of Needle Detector Machine by the Additional Director General of Foreign Trade (DGFT) - The said machine was imported vide Bill of Entry No. 869747 dated 02.02.2005 on payment of concessional rate of duty @ 5% in terms of Notification No. 97/2004 dated 17.09.2004 - That one of the conditions of the EPCG License dated 11.01.2005 was that the importer was required to fulfil obligation by exporting all types of cotton made ups worth US$ 25,379 i.e. eight times the duty saved on capital goods on FOB basis within the period of eight years - As per the said notification, the export obligation was required to be fulfilled in block periods 1 to 6 years to the extent of the 50% and the remaining obligation was required to be fulfilled in second block period, i.e. 7 and 8 years - The Appellant had exported the goods from JNPT, Nava Sheva and submitted the details of the export to DGFT on 01.10.2011, i.e. within the period of eight years for issuance of Export Obligation Discharge Certificate (EODC) - The said document has been placed on record by the appellant alongwith written submissions filed on 08.06.2023 - It appears that after the expiry of the period of eight years on 10.01.2013, the Customs Department issued the show cause notice dated 04.06.2014, which according to the Appellant was not received by him and consequently when the show cause notice was being adjudicated by the Deputy Commissioner of Customs and notice of personal hearing was sent for 15.10.2014, 21.10.2014 and 28.10.2014 as recorded in the adjudication order dated 24.11.2014, the appellant neither appeared in person nor replied to the show cause notice - The Adjudicating Authority in a very cursory manner confirmed the Show Cause Notice holding that the noticee failed to submit requisite documents regarding export obligation as well as installation certificate - That pursuant to the Order-in-original, the Department called upon the Appellant vide letter dated 25.05.2015 to deposit the dues - Subsequently, again on 16.02.2016, another communication was made to the Appellant for recovery of Government dues, which was personally handed over to one of the employee of the appellant and accordingly vide letter dated 05.10.2016, a request for supply of certified copy of the Order-in-original was made so that further action can be taken by them - The Appellant again repeated his request for supply of certified copy of the order-in-original vide letter dated 07.11.2016 which was forwarded by the Office of Commissioner of Customs to the Deputy Commissioner vide communication dated 08.11.2016 - All these communications are placed on record alongwith written submissions by the appellant - Thereafter the Appellant challenged the Order-in-original in an appeal filed on 01.05.2017 before the Commissioner of Customs (Appeals) and pleaded the non-receipt of the show cause notice and also the Order- in-original. Held - The short question involved in the present appeal is whether the appellant is required to fulfil the export obligation within the time prescribed under the notification or the same is subject to the EODC Certificate issued by the DGFT - the responsibility and liability of the importer is to fulfil the export obligations and submit the requisite documents to the concerned authorities and the issuance of the EODC was on the concerned authority - From the records, it is found that the export obligations were fulfilled by the Appellant and communication in that regard was made by him on 01.10.2011, which was much prior to the block period, i.e., 10.01.2013 - Both the Adjudicating Authority and the Appellate Authority are aware that the authority issuing the EODC is DGFT and therefore while adjudicating the show cause notice which was issued by the customs authority, it was incumbent to have verified the status of the issuance of the EODC by the competent authority - Moreover, when the appeal was filed by the Appellant, he has submitted the EODC which was issued on 26.05.2015, instead of taking note of the same which evidently proved that the appellant had fulfilled the export obligations within the prescribed time, the Appellate Authority ignored the same on the ground that it was belated - We do not agree with the same and are therefore of the opinion that the impugned order deserves to be set aside - In the present case the Appellant had fulfilled the export obligations and submitted the requisite papers to DGFT for issuance of EODC well in time - However, the non co-operation of the two Departments, i.e. the Customs and the DGFT, the instant Show Cause Notice and the impugned orders have resulted in denying the benefit to the Appellant and imposing the liability to pay the custom duty, which prima-facie is unsustainable - The delay, if any, in issuance of the EODC was on the part of the DGFT and for which the Appellant cannot be penalised - In any event when the same was produced before the Commissioner (Appeals), he should have taken that into account and had decided the issue in view of the law laid down by the higher forums in that regard - Hence the order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT |
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