More Judgements

2023-VIL-84-CESTAT-MUM-ST  | CESTAT SERVICE TAX

Service Tax – Section 11B of Central Excise Act, 1944 - Refund of excess/erroneously paid service tax - Whether the refund of excess service tax can be denied on the ground of limitation when the limitation period has expired after the introduction of CGST Act – HELD – The excess payment has been made by the appellants in the month of August, 2017 for the period April, 2017 to June, 2017 and the refund claim has been filed in the month of October, 2018 - CGST Act was introduced w.e.f. 1.7.2017 and Section 142(5) of the new Act makes the assessee eligible to file refund claim and to get the refund of the amount of ser... [Read more]

Service Tax – Section 11B of Central Excise Act, 1944 - Refund of excess/erroneously paid service tax - Whether the refund of excess service tax can be denied on the ground of limitation when the limitation period has expired after the introduction of CGST Act – HELD – The excess payment has been made by the appellants in the month of August, 2017 for the period April, 2017 to June, 2017 and the refund claim has been filed in the month of October, 2018 - CGST Act was introduced w.e.f. 1.7.2017 and Section 142(5) of the new Act makes the assessee eligible to file refund claim and to get the refund of the amount of service tax paid by them in cash notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of Section 11B of the Central Excise Act, 1944 - The said provision of the new law expressly prescribed that the limitation provided in sub-section (1) of Section 11B is not applicable - refund claim filed by the appellants were within time and the authorities below erred in rejecting the claims on this ground – since the refund claim filed by the appellants are within limitation therefore for the purpose of verification of documents and also for calculating the eligible refund claim, matter remanded back to the Adjudicating Authority – appeal is allowed by remand [Read less]

2023-VIL-86-CESTAT-DEL-ST  | CESTAT SERVICE TAX

Service Tax - Dropping of demand – Refund claim of service tax paid at the investigation stage pursuant to audit objection - Assessee appeal against credit of refund amount to Consumer Welfare Fund on the ground of unjust enrichment – HELD - Only for the reason that the appellant have debited such amount paid under protest, in profit and loss account, does not amount to passing on the duty liability to any other person – appellant have not charged service tax under dispute in their invoices. Further, these amounts were paid under protest at the investigation stage and thereafter, the show cause notice was issued - on... [Read more]

Service Tax - Dropping of demand – Refund claim of service tax paid at the investigation stage pursuant to audit objection - Assessee appeal against credit of refund amount to Consumer Welfare Fund on the ground of unjust enrichment – HELD - Only for the reason that the appellant have debited such amount paid under protest, in profit and loss account, does not amount to passing on the duty liability to any other person – appellant have not charged service tax under dispute in their invoices. Further, these amounts were paid under protest at the investigation stage and thereafter, the show cause notice was issued - only by way of debit in profit and loss account, it does not amount to passing of the burden to a third person or the customer indirectly. An assessee is always at liberty to write back the expenditure debited in profit and loss account by way of adjustment in their capital account – assessee appeal is allowed - Cost on Authorised Representative-Chartered Accountant - Ld. Chartered Accountant, has appeared before this Tribunal without being properly dressed. Accordingly, cost of Rs. 2,000/- is imposed. He is directed to deposited Rs. 2000/- in ‘Prime Minister Cares Fund’ [Read less]

2023-VIL-85-CESTAT-DEL-CU  | CESTAT Case CUSTOMS

Customs – Classification - principal function test - appellant imported goods described as “Portable Solar Home Electric Light – HANS 300 and HANS 150” classifying them under CTH 85131010 – Dept rejected the classification of imported goods and held them to be classifiable under CTH 85076000 – Demand of differential duty and levy of penalty – whether subject goods are classifiable under CTH 85131010 as torch as claimed by the appellant in the bills of entry or under CTH 85076000 as accumulator as held in the impugned order or under 85013120 as now claimed by the appellant – HELD – as per the original clas... [Read more]

Customs – Classification - principal function test - appellant imported goods described as “Portable Solar Home Electric Light – HANS 300 and HANS 150” classifying them under CTH 85131010 – Dept rejected the classification of imported goods and held them to be classifiable under CTH 85076000 – Demand of differential duty and levy of penalty – whether subject goods are classifiable under CTH 85131010 as torch as claimed by the appellant in the bills of entry or under CTH 85076000 as accumulator as held in the impugned order or under 85013120 as now claimed by the appellant – HELD – as per the original classification in the bills of entry etc., the imported goods in question are solar lamps. If Revenue’s contention is accepted, they are accumulators and if the submission by the appellant is accepted, they are DC generators. Each of these three features i.e. the lamp, the accumulator and the generator-explains part of the imported goods - The imported goods can be used regardless of which input source is used or what the output purposes are but they cannot be used without the accumulator. Therefore, they deserve to be classified as accumulators under CTH 8507 - S. No. 234 of Schedule I of the IGST Notification 1/2017 does not place any restriction of the Customs Tariff Heading and it applies so long as such devices fall under Chapter 84 or 85 of the Customs Tariff. Evidently, the goods falling under 8507 would also be entitled to classification under Schedule I at S. No. 234 if they are solar power based - the adjudicating authority has erred in his conclusion because the Notification does not say “devices based solely on solar power” but says “solar based devices”. It does not in any way forbid the alternative sources of power to support them - merely because there are four other alternative means through which they can be charged, it does not mean that the imported goods are not solar power-based devices. Therefore, the imported goods merit classification under 234 of Schedule I of Notification 1/2017. Consequently, the demand for IGST differential duty along with interest cannot be sustained - the appellant’s contention that they should be classified under CTH 85013120 as DC generators cannot be accepted and consequently no refund of customs duty is admissible to the appellant - the impugned order confirming the demand for differential IGST along with interest is set aside – appeal is partly allowed [Read less]

2023-VIL-83-CESTAT-DEL-ST  | CESTAT SERVICE TAX

Service Tax - Non-discharge of tax liability for Point of Projection charges (PoP charges) – Levy of penalty under Section 78 – HELD – although there is default on the part of the appellant in depositing the tax as service tax was payable during the relevant period, on receipt basis and the appellant have received the payment for service in September, 2007 but there is no deliberate default as the appellant - on being advised had raised supplementary invoice for the tax amount, they could collect the service tax payment only on 26th September, 2009 and after receiving the payment, they immediately deposited the tax a... [Read more]

Service Tax - Non-discharge of tax liability for Point of Projection charges (PoP charges) – Levy of penalty under Section 78 – HELD – although there is default on the part of the appellant in depositing the tax as service tax was payable during the relevant period, on receipt basis and the appellant have received the payment for service in September, 2007 but there is no deliberate default as the appellant - on being advised had raised supplementary invoice for the tax amount, they could collect the service tax payment only on 26th September, 2009 and after receiving the payment, they immediately deposited the tax amount - all the transactions are recorded in the books of accounts maintained in the ordinary course of business. Thus, the issue is more of correct interpretation of the Statute, and no case of deliberate default is made out – appeal is allowed by set aside the penalty under Section 78 imposed on the appellant [Read less]

2023-VIL-64-ORI-ST  | High Court SERVICE TAX

SVLDRS, 2019 - Section 124 (1) (a) (ii) of the Finance Act, 1994 - interpretation of the expression ‘tax dues’ occurring in Section 124 (2) of the FA – whether total amount of duty includes both the duty component as well as interest component – HELD - When the legislature usages two different expressions viz., ‘duty’ and ‘tax dues’, it is obviously done with a purpose. If the intention was that these expressions are interchangeable then the wording of Section 124(1) (a) FA would read differently - The tax dues in the present case referred to not just the duty amount, but duty plus interest or to put differ... [Read more]

SVLDRS, 2019 - Section 124 (1) (a) (ii) of the Finance Act, 1994 - interpretation of the expression ‘tax dues’ occurring in Section 124 (2) of the FA – whether total amount of duty includes both the duty component as well as interest component – HELD - When the legislature usages two different expressions viz., ‘duty’ and ‘tax dues’, it is obviously done with a purpose. If the intention was that these expressions are interchangeable then the wording of Section 124(1) (a) FA would read differently - The tax dues in the present case referred to not just the duty amount, but duty plus interest or to put differently the total amount of duty payable which would include the main duty component and the interest component - This explains why under Section 123(a)(i) FA while defining the expression ‘tax dues’, the legislature has referred to “the total amount of duty which has been disputed” – Court is unable to agree the stand taken by the Department that notwithstanding the Petitioners having deposited the amount as ‘tax dues’ as defined under Section 123(a) of the FA i.e., duty plus interest, it has still to pay a further sum for its application under the SVLDR Scheme – impugned order is set aside and direction is issued to the Department to now take up for consideration the Petitioners’ application under the SVLDR Scheme without insisting on any further amount to be deposited by the Petitioners – writ petition is disposed of [Read less]

2023-VIL-29-AAR  | Advance Ruling Authority SGST

GST – Karnataka AAR - Trading of both taxable and exempted goods – Determination of percentage of input tax credit that can be claimed in the business of trading of both taxable and exempted goods – HELD - Since the applicant is involved in the supply of both taxable and exempted supplies, the applicant can avail the input tax credit proportionately in terms of section 16, 17 of CGST Act 2017 read with Rule 42 of CGST Rules 2017 – Ordered accordingly

2023-VIL-28-AAR  | Advance Ruling Authority SGST

GST – Karnataka AAR - Applicable rate of GST on jaggery – Whether jaggery of all types including Cane Jaggery (gur), Palmyra Jaggery, pre-packaged and labelled, are covered under the Notification No. 6/2022-Central Tax (Rate) dated 13.07.2022 – Entry 91A to Notification No.1/2017-Central Tax (Rate) - HELD – As per entry 91A to Notification No.1/2017-Central Tax (Rate), as amended vide Notification No. 6/2022-Central Tax (Rate) dated 13.07.2022, jaggery of all types including Cane Jaggery (gur), Palmyra Jaggery, pre-packaged and labelled; Khandsari Sugar, pre-packaged and labeled is exigible to 5% GST - All types of... [Read more]

GST – Karnataka AAR - Applicable rate of GST on jaggery – Whether jaggery of all types including Cane Jaggery (gur), Palmyra Jaggery, pre-packaged and labelled, are covered under the Notification No. 6/2022-Central Tax (Rate) dated 13.07.2022 – Entry 91A to Notification No.1/2017-Central Tax (Rate) - HELD – As per entry 91A to Notification No.1/2017-Central Tax (Rate), as amended vide Notification No. 6/2022-Central Tax (Rate) dated 13.07.2022, jaggery of all types including Cane Jaggery (gur), Palmyra Jaggery, pre-packaged and labelled; Khandsari Sugar, pre-packaged and labeled is exigible to 5% GST - All types of jaggery, pre-packaged and labeled are covered under S. No. 91A of Notification No. 1/2017 Central Tax (Rate) dated 28.06.2017 as amended vide Notification No. 6/2022 dated 13.07.2022 and chargeable to 5% GST – Ordered accordingly [Read less]

2023-VIL-25-AAR  | Advance Ruling Authority SGST

GST – Karnataka AAR - Exemption to supply of manpower services - Taxability of supply of manpower services for tissue culture production and for handling the process of research on flowers, planting and growing process to Horticulture department, Government of Karnataka – HELD - tissue culture activity is not same as agriculture and it has no direct nexus to the items mentioned in eleventh or twelfth schedule of the Constitution - supply of manpower for tissue culture production and for handling the process of research on flowers, planting and growing to Horticulture Department, Government of Karnataka are not provided... [Read more]

GST – Karnataka AAR - Exemption to supply of manpower services - Taxability of supply of manpower services for tissue culture production and for handling the process of research on flowers, planting and growing process to Horticulture department, Government of Karnataka – HELD - tissue culture activity is not same as agriculture and it has no direct nexus to the items mentioned in eleventh or twelfth schedule of the Constitution - supply of manpower for tissue culture production and for handling the process of research on flowers, planting and growing to Horticulture Department, Government of Karnataka are not provided by way of any activity in relation to any function entrusted to a Panchayat under Article 243G of the Constitution or in relation to any function entrusted to a Municipality under article 243W of the Constitution. Hence provision of such manpower services is liable to tax at 18% GST – Further, the Works contract service provided to Bio Centers, Department of Horticulture and Center of Excellence, GoK and supply of Materials like fertilisers, soil and sand supplied for use of bio centers are also not exempted under GST – Ordered accordingly [Read less]

2023-VIL-26-AAR  | Advance Ruling Authority SGST

GST – Karnataka AAR – Rendering of catering services to Educational Institutions - Whether providing catering services to Educational Institutions from 1st standard to 2nd PUC is liable to GST under entry No.66 of Notification No. 12/2017-Central Tax (Rate) – HELD – as per entry No.66 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 as amended vide Notification No. 02/2018-Central Tax (Rate) dated 25.01.2018 Catering Services provided to an educational institution, which is providing services by way of pre-school education and education upto higher secondary school is exempted from GST – in the pre... [Read more]

GST – Karnataka AAR – Rendering of catering services to Educational Institutions - Whether providing catering services to Educational Institutions from 1st standard to 2nd PUC is liable to GST under entry No.66 of Notification No. 12/2017-Central Tax (Rate) – HELD – as per entry No.66 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 as amended vide Notification No. 02/2018-Central Tax (Rate) dated 25.01.2018 Catering Services provided to an educational institution, which is providing services by way of pre-school education and education upto higher secondary school is exempted from GST – in the present case, since the recipient of service is an institution providing education up to higher secondary school, it is covered under the definition of “educational institution” for the purposes of Notification No. 12/2017- Central Tax (Rate) dated 28.06.2017 – Applicant’s supply of ready to eat food by way of catering service to a Pre-University College is covered under entry No.66 of Notification No. 12/2017-Central Tax (Rate) dated: 28.06.2017 as amended and exempted from GST – Ordered accordingly [Read less]

2023-VIL-27-AAR  | Advance Ruling Authority SGST

GST – Karnataka AAR - Section 2(119) of the CGST Act, 2017 - Supply of Works Contract Services to Indian Railways - Taxability of supply of Works Contract executed to Indian Railways such as construction of Rail under bridge, construction of tunnels, execution of Earth Works Contract, supply and stacking of ballast and sub-contract of the abovesaid works - entry No. 3 of Notification No. 11/2017 Central Tax (Rate) dated 28.06.2017 – HELD - Construction of Railway Under Bridge and Construction of Tunnels for Indian Railways by the applicant is exigible to 18% GST if the applicant is providing the services either as a ma... [Read more]

GST – Karnataka AAR - Section 2(119) of the CGST Act, 2017 - Supply of Works Contract Services to Indian Railways - Taxability of supply of Works Contract executed to Indian Railways such as construction of Rail under bridge, construction of tunnels, execution of Earth Works Contract, supply and stacking of ballast and sub-contract of the abovesaid works - entry No. 3 of Notification No. 11/2017 Central Tax (Rate) dated 28.06.2017 – HELD - Construction of Railway Under Bridge and Construction of Tunnels for Indian Railways by the applicant is exigible to 18% GST if the applicant is providing the services either as a main contractor or as a sub-contractor to main contractor - Works contract services involving predominantly earth work i.e. constituting more than 75 per cent of the value of the works contract, executed to Indian Railways (Central Government) by the applicant is exigible to GST at 12% GST if the Applicant is providing the services either as a main contractor or as a sub-contractor to main contractor - Supply of ballast to Indian Railways is exigible to 5% GST under HSN 2517, as per entry No. 126 of Schedule I of Notification No. 1/2017-Central Tax (Rate), dated 28.06.2017 – Ordered accordingly [Read less]

2023-VIL-65-DEL  | High Court VAT

Delhi Sales Tax Act, 1975 - Section 30(4) – entitlement of interest on refund of pre-deposit amount – petitioner having succeeded in its appeal claimed refund of pre-deposit amount with interest - Petitioner case that the amount deposited as pre-deposit could not be considered as deposit of tax when the same was deposited as a pre-condition to exercise the right of appeal – HELD - Even if the contentions of the respondents are accepted, that the amount deposited is required to be construed as deposit of tax, the petitioner is entitled to interest on the said amount, in terms of Section 30(4) of the Act, as the same w... [Read more]

Delhi Sales Tax Act, 1975 - Section 30(4) – entitlement of interest on refund of pre-deposit amount – petitioner having succeeded in its appeal claimed refund of pre-deposit amount with interest - Petitioner case that the amount deposited as pre-deposit could not be considered as deposit of tax when the same was deposited as a pre-condition to exercise the right of appeal – HELD - Even if the contentions of the respondents are accepted, that the amount deposited is required to be construed as deposit of tax, the petitioner is entitled to interest on the said amount, in terms of Section 30(4) of the Act, as the same was not refunded within a period of 90 days - Once the petitioner had filed the application for seeking refund of the amount along with interest, it was incumbent upon the respondents to either allow or reject the same as per law - Dept ought to have refunded the amount as it was deposited to avail of the remedy of appeal without awaiting filing of any form - the respondents are directed to pay interest at the rates as specified under Section 30(4) of the Act – writ petition is allowed [Read less]

2023-VIL-68-RAJ  | High Court SGST

GST - Initiation of proceedings under the Insolvency and Bankruptcy Code, 2016 – petitioner-company became sick and applied for Corporate Insolvency Resolution Plan, which attained finality after receiving approval from the NCLT – Respondent issued demand order imposing tax, interest and penalty despite approval of the Resolution Plan – assessee challenge the demand order – HELD - Law is well-settled that with the finalization of insolvency resolution plan and the approval thereof by the NCLT, all dues of creditors, Corporate, Statutory and others stand extinguished and no demand can be raised for the period prior ... [Read more]

GST - Initiation of proceedings under the Insolvency and Bankruptcy Code, 2016 – petitioner-company became sick and applied for Corporate Insolvency Resolution Plan, which attained finality after receiving approval from the NCLT – Respondent issued demand order imposing tax, interest and penalty despite approval of the Resolution Plan – assessee challenge the demand order – HELD - Law is well-settled that with the finalization of insolvency resolution plan and the approval thereof by the NCLT, all dues of creditors, Corporate, Statutory and others stand extinguished and no demand can be raised for the period prior to the specified date - The Deputy Commissioner, State GST Department exercises quasi-judicial functions while acting under the provisions of the GST Act and thus, it is expected from such officer to act judiciously, consider the reply of the party, apply mind to the facts and law and pass a reasoned order - from bare perusal of the impugned orders it is clear that the officer concerned acted in gross defiance of the settled legal position as expounded by Hon'ble Apex Court and this Court - Such laconic approach of the authority exercising quasi judicial powers reflects sheer incompetency and pedantic approach and adds to the ever growing dockets of cases in the courts - While passing the impugned orders, the Deputy Commissioner failed to consider the replies of the party and acted with sheer non-application of mind. His conduct deserves to be deprecated - The impugned orders are declared to be invalid and quashed - A copy of this order shall be placed before the Commissioner, State Goods and Service Tax for information and appropriate action - the writ petitions are allowed [Read less]

2023-VIL-66-GUJ  | High Court SGST

GST - Detention of goods on ground of expiry of e-Way Bill during the transit – Validity of demand of tax and penalty under Section 129(3) of the CGST Act, 2017 – HELD - there does not appear to be any ill-intent on the part of the petitioner to use the expired e-Way bill - as there is expiry of e-Way bill on transit, the seizure of vehicle and the goods is not permissible under the law – petitioner case appears to be bonafide and not with any fraudulent intent - The order of detention as well as the further notice for demand of tax and penalty is quashed and set aside – the petition is allowed

High Court Judgement  | High Court SGST

Vouchers are mere instruments accepted as consideration for supply of goods or services; vouchers do not fall under the category of goods and services and therefore not liable to GST. Order passed by AAR and as affirmed by the AAAR are quashed.

2023-VIL-76-CESTAT-CHE-CU  | CESTAT Case CUSTOMS

Customs – Section 27 of Customs Act, 1962 – Security deposit – Rejection of refund on ground of limitation – Applicability of provisions – Appellant had imported goods separately vide Bills of Entry – Appellant sought for refund of cash security deposit – Deputy Commissioner rejected refund on ground that Appellant’s claim was barred by limitation in terms of Section 27(1) of the Act – Commissioner (Appeals) affirmed order of Adjudicating Authority – Whether refund claim of security deposit is governed by provisions of Section 27 of the Act – HELD – Provisions of Section 27 of the Act would apply to... [Read more]

Customs – Section 27 of Customs Act, 1962 – Security deposit – Rejection of refund on ground of limitation – Applicability of provisions – Appellant had imported goods separately vide Bills of Entry – Appellant sought for refund of cash security deposit – Deputy Commissioner rejected refund on ground that Appellant’s claim was barred by limitation in terms of Section 27(1) of the Act – Commissioner (Appeals) affirmed order of Adjudicating Authority – Whether refund claim of security deposit is governed by provisions of Section 27 of the Act – HELD – Provisions of Section 27 of the Act would apply to refund of duty – It is not the case of the Revenue that Appellant claimed refund of duty paid – There is also no dispute to fact that Appellant claimed refund of security deposit – Refund claim of security deposit is not governed by provisions of Section 27 of the Act – Lower authorities have clearly erred in rejecting refund of security deposit by invoking provisions of Section 27(1) of the Act – Impugned order is set aside appeal is allowed [Read less]

2023-VIL-81-CESTAT-AHM-CE  | CESTAT CENTRAL EXCISE

Central Excise – Rule 173Q of Central Excise Rules, 1944 – Demand of duty – Imposition of composite penalty – Appellants are engaged in manufacture of various varieties of yarn – Central Excise Officers visited Appellant’s factory and seized unaccounted yarn – Adjudicating authority confirmed demand of duty along with penalties – Tribunal remanded matter back to Adjudicating Authority for re-quantification of penalties – Adjudicating Authority imposed penalty under Section 11AC of the Act read with 173Q of the Rules – Whether penalties under provisions of Section 11AC of the Act read with 173Q of the R... [Read more]

Central Excise – Rule 173Q of Central Excise Rules, 1944 – Demand of duty – Imposition of composite penalty – Appellants are engaged in manufacture of various varieties of yarn – Central Excise Officers visited Appellant’s factory and seized unaccounted yarn – Adjudicating authority confirmed demand of duty along with penalties – Tribunal remanded matter back to Adjudicating Authority for re-quantification of penalties – Adjudicating Authority imposed penalty under Section 11AC of the Act read with 173Q of the Rules – Whether penalties under provisions of Section 11AC of the Act read with 173Q of the Rules can be imposed jointly – HELD – Appeals are against imposition of penalties – Penalties have been imposed jointly under provisions of Section 11AC of the Act read with Rule 173Q of the Rules – Matter was remanded by Tribunal solely for purpose of quantification of penalties – There was no finding by Tribunal that penalty imposed was unreasonable – It is not possible to apportion quantum of penalty between contraventions found – There is no error in imposition of composite penalty under Rule 173Q of the Rules read with Section 11AC of the Act, as all charges have been confirmed and charges pertains to both period prior to introduction of Section 11AC of the Act and thereafter – Penalty under said provisions have been rightly imposed – Appeal is dismissed [Read less]

2023-VIL-79-CESTAT-AHM-ST  | CESTAT SERVICE TAX

Service Tax – Export of goods – Availment of services – Denial of refund – Appellant availed service of Foreign Commission Agent and Banking and Financial Services in respect of export of goods and paid Service Tax for said services – Appeal has been filed against order of lower authorities denying refund of Service Tax paid under Notification No.17/2009-ST – HELD – There is no dispute to fact that goods have been exported and service tax liability has been discharged under reverse charge mechanism for commission paid by Appellant to Foreign Commission Agent – Lower authorities have not mentioned as to whic... [Read more]

Service Tax – Export of goods – Availment of services – Denial of refund – Appellant availed service of Foreign Commission Agent and Banking and Financial Services in respect of export of goods and paid Service Tax for said services – Appeal has been filed against order of lower authorities denying refund of Service Tax paid under Notification No.17/2009-ST – HELD – There is no dispute to fact that goods have been exported and service tax liability has been discharged under reverse charge mechanism for commission paid by Appellant to Foreign Commission Agent – Lower authorities have not mentioned as to which conditions mentioned in Notification No.17/2009 have not been satisfied by Appellant in order to deny him benefit of said Notification which entitles Appellant to claim refund – Since fact of export has been established, refund is not to be denied on merely technical interpretation of procedure – Refund of Service Tax on Foreign Agent Commission cannot be denied – Refund of Service Tax paid on Banking and Financial Services has been rejected on ground that Appellant has failed to correlate services availed with exports of goods – Business of Appellant was export of goods, therefore, no co-relation was necessary, as all services were availed for export of goods – If said assertion is correct, then no co-relation may be required for claiming refund – Since this fact has not been examined by lower authority, order on this count set aside and remanded matter to Adjudicating authority – Appeal is partly allowed [Read less]

2023-VIL-82-CESTAT-DEL-CE  | CESTAT CENTRAL EXCISE

Central Excise – Section 11AC of Central Excise Act, 1944 – Rule 25 of Central Excise Rules, 2002 – Seizure of goods – Demand of duty – Imposition of penalty – Appellant is engaged in trading and manufacture of aluminium circles – Department conducted search at factory premises of Appellant and seized finished goods and raw materials – Department issued show cause notices proposing demand of duty along with interest and penalty – Adjudicating Authority confirmed demand proposed in show cause notices – Commissioner (Appeals) confirmed duty demand only for period July, 2010 to October, 2010 – Whether de... [Read more]

Central Excise – Section 11AC of Central Excise Act, 1944 – Rule 25 of Central Excise Rules, 2002 – Seizure of goods – Demand of duty – Imposition of penalty – Appellant is engaged in trading and manufacture of aluminium circles – Department conducted search at factory premises of Appellant and seized finished goods and raw materials – Department issued show cause notices proposing demand of duty along with interest and penalty – Adjudicating Authority confirmed demand proposed in show cause notices – Commissioner (Appeals) confirmed duty demand only for period July, 2010 to October, 2010 – Whether demand of duty have been rightly made for period July, 2010 to October, 2010 with penalty under Section 11AC of the CEA, 1944 Act read with Rule 25 of the Rules – HELD – Perusal of material on record make it clear that Appellant has done only test production prior to 11-11-2010 and they have been doing mainly trading of finished goods, as factory was not fully set up at testing stage – In first show cause notice, it is admitted that assessee has started commercial production from November, 2010, but in second show cause notice, duty have been demanded from July, 2010 – Revenue has taken contrary stand in show cause notices – Quantum of finished goods liable to duty for period 1-7-2010 to 31-10-2010 shall be NIL – As duty demand from July, 2010 to October, 2010 have been set aside, penalty under Section 11AC of the Act read with Rule 25 of the Rules set aside – Appeal is allowed [Read less]

2023-VIL-77-CESTAT-AHM-CE  | CESTAT CENTRAL EXCISE

Central Excise – Sections 4A, 4(1)(a) and 4(3)(b) of Central Excise Act, 1944 – Rules 9 and 11 of Central Excise Valuation (Determination of Price of Excisable goods) Rules, 2000 – Valuation of manufactured goods – Demand of differential duty – Appellant No.1/Leamak Healthcare P Ltd (LHL) are engaged in manufacture of confectionary items on behalf of Appellant No.2/ITC Ltd on job work basis – As per agreement entered between LHL and ITC, ITC supplied packing material to LHL and LHL manufactured goods and handed over it to ITC at factory gate – LHL was discharging Central excise duty on MRP basis under Section... [Read more]

Central Excise – Sections 4A, 4(1)(a) and 4(3)(b) of Central Excise Act, 1944 – Rules 9 and 11 of Central Excise Valuation (Determination of Price of Excisable goods) Rules, 2000 – Valuation of manufactured goods – Demand of differential duty – Appellant No.1/Leamak Healthcare P Ltd (LHL) are engaged in manufacture of confectionary items on behalf of Appellant No.2/ITC Ltd on job work basis – As per agreement entered between LHL and ITC, ITC supplied packing material to LHL and LHL manufactured goods and handed over it to ITC at factory gate – LHL was discharging Central excise duty on MRP basis under Section 4A of the Act – Revenue issued show cause notice by alleging that ITC and LHL were related in terms of Section 4(3)(b) of the Act, therefore, assessable value should be governed by Rule 9 of the Rules – Commissioner confirmed demand of differential duty against LHL and imposed penalty on LHL and ITC – Tribunal remanded matter back to Commissioner with certain directions – Commissioner in remand proceeding again confirmed proposed demand along with interest and penalty – HELD – Original proceedings started on line that LHL and ITC are related persons, but said assertion was not supported by earlier decision of Tribunal – Tribunal remanded matter with specific directions to do valuation under Rule 11 of the Rules – Rule 11 of the Rules clearly lays down that value is required to be determined using reasonable means consistent with principles and general provisions of these rules and Section 4(1) of the Act – Goods are handed over by LHL to transporter designated by ITC at factory gate – Any expenses incurred after clearance from factory cannot form part of assessable value in terms of Section 4(1)(a) of the Act – Inclusion of marketing costs in assessable value is beyond scope of Section 4(1)(a) of the Act, as such costs are incurred by buyer after clearance from factory – Fixed cost of ITC cannot be added to assessable value for reason that these costs are incurred beyond place of removal – Staff deputed only for purpose of supervision and quality control cannot be part of assessable value of goods – No excise duty needs to be paid on outward freight from LHL to ITC, marketing spends by ITC and fixed costs of ITC relating to activities of ITC other than provision of moulds at concessional cost – Impugned order passed by Commissioner set aside – Matter remanded to Commissioner for fresh adjudication – appeal allowed by remand [Read less]

2023-VIL-80-CESTAT-DEL-CU  | CESTAT Case CUSTOMS

Customs – Sections 111 and 112 of Customs Act, 1962 – Rejection of exported goods – Confiscation of re-imported goods – Imposition of penalty – Appellant filed Bill of Entry for clearance of re-imported Calcined Petroleum Coke – Adjudicating authority ordered for confiscation of re-imported goods under Section 111 of the Act and imposed penalty for improper importation of prohibited goods under Section 112 of the Act – Commissioner (Appeals) affirmed order passed by Adjudicating Authority – Whether re-imported petroleum coke have been rightly confiscated along with imposition of penalty under Section 112 of... [Read more]

Customs – Sections 111 and 112 of Customs Act, 1962 – Rejection of exported goods – Confiscation of re-imported goods – Imposition of penalty – Appellant filed Bill of Entry for clearance of re-imported Calcined Petroleum Coke – Adjudicating authority ordered for confiscation of re-imported goods under Section 111 of the Act and imposed penalty for improper importation of prohibited goods under Section 112 of the Act – Commissioner (Appeals) affirmed order passed by Adjudicating Authority – Whether re-imported petroleum coke have been rightly confiscated along with imposition of penalty under Section 112 of the Act – HELD – It is a case of re-import by Appellant who had genuinely exported goods to user buyer in Saudi Arabia – On rejection of goods by buyer, Appellant was obligated to re-import goods to mitigate his loss – Admittedly, Appellant have not availed any export benefit on impugned goods – Minor variation in weight is normal variation in weight of goods due to normal loss in transit – Since Calcined Petroleum Coke was free for export/import on day of export, re-import of rejected goods by Appellant has to be treated as freely importable under Foreign Trade Policy – Impugned order passed by Commissioner (Appeals) set aside – Appeal is allowed [Read less]

2023-VIL-78-CESTAT-MUM-CE  | CESTAT CENTRAL EXCISE

Central Excise – Section 35C(1A) of Central Excise Act, 1944 – Rule 20 of CESTAT Procedure Rules, 1982 – Non-prosecution – Dismissal of appeal – Appeals have been listed for hearing on many occasions earlier – On these occasions, either Appellants have sought adjournment or none appeared – HELD – Today, judiciary and justice delivery system is facing acute problem of delay which ultimately affects right of litigant to access to justice and speedy trial – Repeated adjournments break the back of litigants – Courts shall not grant adjournments in routine manner and mechanically and shall not be a party to ... [Read more]

Central Excise – Section 35C(1A) of Central Excise Act, 1944 – Rule 20 of CESTAT Procedure Rules, 1982 – Non-prosecution – Dismissal of appeal – Appeals have been listed for hearing on many occasions earlier – On these occasions, either Appellants have sought adjournment or none appeared – HELD – Today, judiciary and justice delivery system is facing acute problem of delay which ultimately affects right of litigant to access to justice and speedy trial – Repeated adjournments break the back of litigants – Courts shall not grant adjournments in routine manner and mechanically and shall not be a party to cause for delay in dispensing the justice – In view of provisions of Section 35C(1A) of the Act, matter cannot be adjourned any further and counsel of Appellant was asked to argue the matter, but he has expressed his inability to do so – On consideration of above facts and also taking note of Rule 20 of the Rules, appeals are liable to be dismissed for non-prosecution – Appeal is dismissed [Read less]

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