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Showing 361 to 380 of 1430 Records
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2023 (12) TMI 1070
Refund of service tax - Principles of unjust enrichment - incidence of duty - it is alleged that appellant had not passed on the burden of service tax to its client departments.
According to the Revenue, unjust enrichment would apply to this case because the contracts were for an all inclusive price (including duties and taxes) and therefore, the appellant must have had reckoned the service tax into the total cost while bidding and at the time of bidding, there was no exemption from service tax and therefore, the appellant must have included in its invoice price, the service tax element.
HELD THAT:- This finding because section 102 provides for refunds only if the contracts were signed prior to 1 March 2015. During that period, no service tax was payable because of exemption notification no. 25/2012-ST. cannot be agreed - it is found inconceivable that the appellant would have anticipated that the exemption from service tax would be withdrawn even before submitting its bids and would have included the service tax element in the bills.
It is found impermissible to hold that the appellant had indirectly passed on the burden of the service tax to its client government departments. Once this anomalous and baseless presumption that the service tax would have been indirectly passed on by the appellant to its client government departments is removed, no basis remains for rejecting the refund claim or crediting it to the Consumer Welfare Fund.
What distinguishes the present case from UNION OF INDIA VERSUS SOLAR PESTICIDE PVT. LTD. [2000 (2) TMI 237 - SUPREME COURT] is the fact that no service tax was paid when the appellant submitted its bids to the clients. Therefore, there is no scope for passing on the burden of any service tax at that stage. After the service was rendered, it was only entitled to the amounts which it bid and which were accepted in the contract and not to any additional amount as service tax. The contracts specifically exclude any additional payments towards service tax - The Commissioner’s reasoning in the impugned order is based on the presumption as to how the appellant would have decided to bid an amount and we find no room in law to speculate as to how the bids would have been made by the appellant. It is their business decision and there is no presumption in law that whenever bids are made, elements X, Y or Z have been reckoned. Based on this presumption as to how the appellant would have made its bids and further, based on the factually incorrect assumption that at the time of making the bids, service tax was not exempted and hence would have been reckoned by the appellant while preparing its bids, the Commissioner held that unjust enrichment would apply.
The impugned order deserves to be set aside and is set aside - Appeal allowed.
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2023 (12) TMI 1069
Recovery of service tax alongwith interest and penalty - Business auxiliary services - spares and parts - incentive received from the Atlantic Lubricants and Specialities Pvt. Ltd. for buying minimum quantity of goods - amount received on account of colour difference charges of vehicles - rent received for providing table space to banking and financial institutions - HELD THAT:- It is found that neither in the show cause notices, nor in the impugned order, the Ld. Commissioner has mentioned any specific clause of Section 65 (19) of Business Auxiliary Service (BAS) under which service tax demand is sought to be made - it is also found that the Tribunal has consistently taken the view that specific clause of ‘Business Auxiliary Service’ is required to be mentioned and if not mentioned, the entire demand is liable to be set-aside.
Reference made to the decision of the Tribunal in the case of SYNIVERSE MOBILE SOLUTIONS PVT LTD., (EARLIER TRANSCIBERNET INDIA PVT LTD.) VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX, HYDERABAD – IV [2023 (6) TMI 463 - CESTAT HYDERABAD] where it was held that On this issue it is seen that Tribunals have been consistently holding that it is essential for the Show Cause Notice issuing authority to clearly indicate the sub-clause under which the service tax in question would fall.
Demand of Service Tax on spares and parts - HELD THAT:- It is found from the documents placed on record at Page No. 116 to 124 of the Appeal Paper book that services and spares are charged separately from the manufacturer for the warranty period and service tax was paid on the value of services and on the value of spare parts, VAT/Sale Tax was paid as the sale of spare parts is considered to be sale of goods and liable to VAT. Therefore, the service tax is not leviable on the sale of spare parts - reference made to Department Circular No. 699/15/2003-CX dated 05.03.2003 which specifically clarifies that the sale of parts, accessories and consumables are not includible in the value of taxable services provided the value of such consumables are shown separately and in the present case, we find that the assessee has shown the value of service and value of spare parts separately.
Service tax on amount of incentive received from the Atlantic Lubricants and Specialities Pvt. Ltd. for buying minimum quantity of goods - HELD THAT:- It is found that such receipt of incentives/trade discount is not towards provision of any service which fact is clear from the perusal of the agreement dated 01.10.2009 entered into between the parties which is placed at Page No. 195 to 200 of the Appeal Paper Book - it has been held in many case by the Tribunal has held that the demand of service tax is not sustainable on incentives and trade discounts received on the buying minimum quantity of goods.
Demand of service tax under Business Auxiliary Service on the amount received on account of colour difference charges of vehicles - HELD THAT:- Such charges are in relation to sale of car and is related to the value of car sold and not a consideration for any service, let along BAS. To this effect, the appellant has produced the certificate of the Chartered Accountant alongwith ledger which is on record of the appeal paper book - in the appellant’s own case, for the previous period, the Ld. Commissioner (Appeals), Chandigarh set-aside the demand on this issue on the ground that there is no provisions of service involved in this case.
Demand of service tax on rent received for providing table space to banking and financial institutions - HELD THAT:- It is found that the amount received by the appellant is for providing space and not for promoting the business of banks/financial institutions. The provisions of space cannot be considered as promotion of business of the person to whom the space has been provided as held in various decisions.
The impugned order confirming the demand amounting to Rs. 18,11,691/- under Section 73 of the Finance Act, 1994 is not sustainable in law, and therefore, the same is set aside - once the demand is set aside, the question of interest and penalty does not arise - appeal of assessee allowed.
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2023 (12) TMI 1068
Non-payment of Service Tax - Cargo Handling Services - evacuation of Ash and Nuisance Free Disposal at the abandoned mines of CCL/BBCL - Mining Services - transportation of Coal - Supply of Tangible Goods Service - GTA Service - services availed for hire of trucks from various persons for transportation of coal - Violation of CCR '04 by not paying 6% on the value of exempted services.
Demand of Service Tax under Cargo Handling Service - HELD THAT:- It is observed that the Appellant has rendered the service to Tenughat Vidyut Nigham Limited, Damodar valley Corporation and Mejia Thermal Power Corporation, for evacuation of ash from different Ash Ponds located at the power stations. The ash was transported to the abandoned mines of CCL, ECL, BCCL for the disposal of ash - the ash was transported in automatic dippers/dumpers/trucks and unloaded the same into the abandoned mines, by automatically sliding down the ash in the core of such mines - A perusal of the work order reveal that the primary service in this case is transportation and the loading and unloading work is ancillary to the transportation service - the Appellant has rendered transportation service. In terms of Rule 2(1)(d)(v) of the Service Tax Rules, 1994, the recipients are liable to pay service tax for the GTA services received by them - the demand of service tax from the Appellant under the category of 'Cargo Handling Service' is not sustainable.
Demand of Service Tax under the category of 'Mining Services' - HELD THAT:- The services rendered by the Appellant was transportation of coal. They have not received any contract for actual mining of coal - A perusal of the work order received by them would reveal that it is a composite contract involving transportation as the primary service. All other services are incidental or ancillary to transportation service - the adjudicating authority has not brought in any evidence to substantiate the allegation that the appellant has rendered 'Mining Service' - the service rendered by the Appellant is transportation service. As the receiver has already paid service tax in terms of Rule 2(1)(d)(v) of the Service Tax Rules, 1994, the demand confirmed in the impugned order under 'Mining Service' against the Appellant is not sustainable.
Demand of Service Tax on the transportation services rendered by other transporters as sub-contractors - HELD THAT:- The transporters have not issued any 'Consignment Notes'. In respect of this transportation service, the Appellant has raised invoice for the full value to their clients CCL/BCCL and the receiver has paid service tax on the full value of the contract. As the sub-contractors who provided the transportation service has not issued any 'consignment note', it is observed that the Appellant are not liable to pay service tax under the category of GTA service on reverse charge - Since the sub-contractor who rendered the transportation service to the Appellant has not issued any 'consignment note' for the transportation service, it is held that the Appellant is not liable to pay service tax as recipient of GTA Service. As the Appellant has raised the invoice on the full value and the recipient has paid service tax under GTA on the full value, demanding Service Tax again from the sub-contractor for the transportation service would amount to 'double-taxation' - the demand of service tax from the Appellant on reverse charge basis under GTA service is not sustainable.
Extended period of limitation - penalty - HELD THAT:- It is observed that the issue involved in the Work Orders covered by earlier Notices were also related to the issue whether Evacuation of Ash from the ponds and transporting it out side ti fill the abandoned mines. Earlier Notice demanded service tax under the category of ,Cleaning Service, for the same work. Thus, it is evident that even though the Work Orders are different, the issue involved is the same - the department has not brought in any evidence to substantiate the allegation of suppression in this case, to invoke extended period - the adjudicating authority has rightly dropped the demands on the ground of limitation and not imposed penaltied under Section 78 of the Finance Act, 1994 and Rule 15 of the CCR ’04 - the department’s appeal is not sustainable and it is liable for rejection.
The impugned order set aside - appeal allowed.
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2023 (12) TMI 1067
Levy of service tax - Business Auxiliary service or not - Appellant only receives distributor’s profit margin - BSNL pays service tax on the wholesale price including the distributor’s profit margin, thus appellant were not paying service tax on this income received - exemption under Sl. No.29(f) of the mega Exemption Notification No. 25/2012 – ST dated 20-06-2012 - dispute in the instant case relates to the period 2015-16 whereas the Show Cause Notice was issued on 30-12-2020 - invocation of extended period of limitation - HELD THAT:- The Appellant submits that they are distributors of BSNL Prepaid/Post-paid SIM, Vouchers and are engaged for sale and distribution of BSNL products. The relation between them and BSNL is that of buyer and seller. There is no service provider/service receiver relationship. The Appellant does not provide any service and does not receive any service charges from BSNL. They only receive distributor’s profit margin. BSNL supplies these cards etc. with fixed Maximum Retail Price (MRP) to them which is inclusive of Service Tax reduced by distributor’s profit margin which is sold by them to end users at MRP. The difference is the distributor profit margin. BSNL pays service tax on the wholesale price including the distributor's profit margin.
The issue is no longer res integra as the Tribunal Kolkata has decided the issue in Appellant's own case M/S KEDIA COMPUTER SERVICES VERSUS CCEX., CUS. & S. TAX, BHUBANESWAR [2020 (7) TMI 183 - CESTAT KOLKATA] for the period July’2003 to November’2004 and December’’2004 to July’2005 while dealing with identical facts has held that there is no agency service or sales promotion service provided in such transactions, but it is a case of sale/purchase of item from BSNL on principle to principle basis which is pure trading activity and on the cellular products, the BSNL has already discharged Service Tax, hence, demanding service tax again from the trader would amount to double taxation.
Thus, the demand confirmed in the impugned order is not sustainable on merits. Since the demand itself is not sustainable the question of demanding interest or imposing penalty does not arise.
Extended period of limitation - HELD THAT:- The dispute in the instant case relates to the period from 2015-16 whereas the Show Cause Notice was issued on 30-12-2020 i.e. beyond the normal period of limitation under Section 73(1) of the Act. The normal period of limitation under Section 73(1) is 30 month from the relevant date while the Show Cause Notice is issued after lapse of 4 year 9 months. Accordingly, the demand is liable to be set aside on the ground of limitation also.
The impugned order set aside - appeal allowed.
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2023 (12) TMI 1066
Non-payment of service tax - Business Auxiliary Service - providing services of 'Sizing of coal' to their customers - Appellant while invoicing the sale of coal has included all the components of its sale price of coal which includes the sizing charges and paid applicable VAT on such assessable value as per the State Laws - HELD THAT:- The issue is no longer res integra, as the Tribunal Kolkata Bench has decided the issue in favour of the Appellant in the case of M/s Integrated Coal Mining Ltd. Vs Commissioner of Central Excise and Service Tax, Bolpur [2021 (1) TMI 179 - CESTAT KOLKATA] where it was held that Sizing of coal is an incidental and ancillary process to make coal marketable and thus complete “manufacture” of coal and to make it into “excisable goods” as per Section 2(d) of the Central Excise Act. The process of sizing of coal is also therefore outside Section 65(19) of the Act since it is a process in the manufacture of the final product, sized coal.
The demands confirmed in the impugned order is not liable to service tax under the category of 'Business Auxiliary Service' - the demands of service tax, interest and penalty confirmed in the impugned order set aside - appeal allowed.
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2023 (12) TMI 1065
Penalty u/s 78 of the Finance Act, 1994 - Service Tax along with the interest is paid by the assessee on commission income before issuance of SCN - Classification of services - income booked as godown rent - Renting of Immovable Property Service (RIPS) or not.
Whether penalty is imposable under Section 78 of the Finance Act, 1994 when service tax along with interest thereon has been paid before issue of the SCN and whether further penalty of Rs.5,000/- imposable under Section 77 of the Finance Act, 1994? - HELD THAT:- The Appellant has deposited the Service Tax of Rs.4,05,205/- along with interest of Rs.1,30,876/- on 25.02.2009 without raising any dispute. In terms of Section 73(3) of the Finance Act, 1994, where the Service Tax along with the interest is paid by the assessee on the basis of tax ascertained by the Central Excise Officer, no SCN is required to be served - this view has been held by this Tribunal in the case of M/S. NATIONAL POWER ENGINEERING COMPANY VERSUS COMMISSIONER OF CGST & CENTRAL EXCISE, SILIGURI COMMISSIONERATE [2023 (7) TMI 361 - CESTAT KOLKATA] - imposition of penalty under Section 78 of the Finance Act, 1994 is not warranted in this case - the penalty imposed under Section 78 is set aside.
Whether Service Tax of Rs.34,865/- is payable under the category of Renting Immovable Property Services (RIPS) during the period 2007-08 & 2008-09 for the amount shown as 'godown rent' in the balance sheet? - HELD THAT:- From the rate payable by ICICI bank as per the agreement mentioned above, it is evident that the land has been used for parking of the vehicles by ICICI bank. Accordingly, the Appellant are entitled for the exemption provided under Clause (c) of Explanation 1 to Section 65(105) (zzzz) of the Finance Act, which specifically excludes the land used for parking purposes from levy of service tax under the category of RIPS. Accordingly, the demand of Rs.34,865/- confirmed along with interest and penalty in the impugned order is not sustainable and the same is set aside.
Penalty imposed under section 77 of the Finance Act - HELD THAT:- It is observed that the penalty was imposed for non registration and not filing the returns and non-payment of the tax in time - the Appellant has been filing returns regularly. The demand confirmed in the impugned order has been held as not sustainable. In view of the above, the penalty under Section 77 is not imposable and accordingly the same is set aside.
The impugned order set aside - appeal allowed.
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2023 (12) TMI 1064
Denial of benefit under N/N. 29/2004-CE and N/N. 30/2004-CE both dated 09.07.2004 - Denial on the ground of availment of CENVAT Credit - whether the appellants can avail both the notifications and as to whether CENVAT credit is available under such circumstances? - HELD THAT:- The very same issues have been deliberated by the Tribunal in number of cases - it is found that this Bench in the case of SHRIJEE LIFESTYLE PVT. LTD. VERSUS COMMISSIONER OF C. EX., THANE [2013 (9) TMI 998 - CESTAT MUMBAI] has held it is not a situation where the duty credit on inputs were availed in respect of exempted goods and dutiable goods simultaneously. Hence the provisions of Rule 6(3) of the Cenvat Credit Rules, 2004 is not applicable in the facts of the case.
The Tribunal in the case of Winsome Yarns Ltd. [2015 (9) TMI 459 - CESTAT NEW DELHI] has held When an assessee does not avail of input duty credit, he has option to pay 4% duty under Notification No. 29/2004-C.E. and also the option to clear his goods at nil rate of duty under Notification No. 30/2004-C.E. and when two exemption Notifications are available to an assessee, he can always opt for the Notification which is most beneficial for him and in this regard the Department cannot force the assessee to avail a particular exemption Notification. Looked at from this point of view, the Department’s stand is incorrect.
There are no infirmity in the simultaneous availment of benefit under both the Notifications No. 29/2004 and 30/2004 and the credit on capital goods by the appellants - appeal allowed.
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2023 (12) TMI 1063
Disallowance of CENVAT Credit alongwith interest and penalties - denial of credit on the sole ground that no service has been rendered by the contractors to the Appellant and the amount paid by the Appellant is in the nature of reimbursement of capital investment and not towards the provision of any service - extended period of limitation - HELD THAT:- The ground under which the Cenvat credit availed by the Appellant was denied, cannot be agreed upon - It is a settled proposition of law that Cenvat credit cannot be denied to service recipient when payment of service tax is not disputed by the department at the service provider’s end.
In the case of M/S. HINDALCO INDUSTRIES LIMITED VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX, ROURKELA [2023 (12) TMI 117 - CESTAT KOLKATA], this Tribunal has held that Without challenging the assessment, the department cannot question the Cenvat credit passed on by ABMCPL to the Appellant - By relying on the decision, it is held that the denial of Cenvat credit amounting to Rs. 183,36,81,368/-in this case vide the impugned order is not sustainable. Since the demand of recovery of Cenvat credit is not sustainable, the question of demanding interest and imposing penalty does not arise.
Extended period of Limitation - HELD THAT:- The impugned order has confirmed the demand without any conclusive evidence towards any suppression, misstatement, fraud, collusion, etc. with the intent to evade payment of service tax on part of the Appellant. Further, the Appellant being a PSU, there exists a presumption of bona fide and no allegation of suppression of facts with intent to evade payment of tax can be levelled against them without any concrete evidence - It is also observed that the factum of availment of CENVAT credit was duly reflected in the periodical returns filed by the Appellant. Therefore, the demand confirmed vide the impugned O-I-O by invoking the extended period of limitation cannot be sustained - the demands confirmed in the impugned order are liable to be set aside on the ground of limitation also.
The impugned order is set aside on merit as well as on limitation - the appeal filed by the Appellant is allowed.
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2023 (12) TMI 1062
CENVAT Credit - eligibility to avail credit on input services relating to captive mines, which is distributed to the Appellant vide ISD invoices - HELD THAT:- It is found that both the mines as well as the manufacturing unit belongs to one legal entity i.e. SAIL, which is engaged in manufacture of Steel. The subject mines are set up primarily to serve as captive mines to manufacturing units of SAIL and thus bears an integral link to steel plants - it is observed that the input services like security service, mining service, transportation etc used by the captive mines bears a direct nexus with Appellant’s units manufacturing final products i.e. Steel. Hence, such services are very well covered within the scope of the definition of ‘input services’. Rule 3 of CCR does not mandate that for the purpose of availment of credit on input services, such services should be received within the premises where manufacture of final product takes places but only provides that services should be used in or in relation to the manufacture of final products.
Thus, the Appellant is entitled to avail credit of service tax paid on input services received at the mines, which serves as an intermediate product for manufacture of final product i.e. steel items.
Thus, the Appellant is eligible to avail CENVAT Credit of input services relating to captive mines, which is distributed to the Appellant vide ISD invoices - the demand of reversal of Cenvat credit along with interest and penalty confirmed vide the impugned order dated 30.09.2019, is not sustainable - appeal allowed.
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2023 (12) TMI 1061
Reversal of CENVAT Credit - Appellants have availed Cenvat Credit both for dutiable and exempted goods - separate Cenvat Credit records and status were not maintained - with effect from 01/03/2011, the supplies to Railways brought under the concessional rate of 1%/2% Excise Duty subject to the condition that no Cenvat Credit is availed - Extended period of Limitation - HELD THAT:- The Supreme Court in the case of CHANDRAPUR MAGNET WIRES (P) LTD. VERSUS COLLECTOR OF C. EXCISE, NAGPUR [1995 (12) TMI 72 - SUPREME COURT] has held that if the Cenvat Credit taken is reversed, the same would amount to non-availment of Cenvat Credit.
As per the factual details available and seen from the records, it is found that the Department itself does not dispute after proper verification by the Superintendent that the Appellant has maintained separate accounts and has not availed the Cenvat Credit to the extent of Rs. 2,69,26,825/- and they have availed Cenvat of Rs. 54,46,566/- only in respect of three or four common inputs - there are no justification for confirmed demand of Rs. 35,39,80,370/- for the period 2009-10 to 28/02/2011. For the same reason, the confirmed demand of Rs. 49,43,41,259/- for the period 01/03/2011 to May 2013 is not legally sustainable.
However, verification is required to be done about the Cenvat Credit taken for the common inputs to the extent of Rs. 54,46,566/-, a figure which is being agreed to by the both sides - it is directed that the Adjudicating Authority to apply the procedure prescribed under Rule 6 of CCR, 2004, for proportionate reversal of Cenvat Credit. For arriving at this figure, Gross Total Credit available, total credit taken, credit taken for common inputs, total turnover, exempted turnover etc. are required to be considered as per the CCR Rules, 2004.
Extended period of limitation - Appellant submits that there is total absence of suppression on their part and prays that the confirmed demand towards the extended period is required to be set aside - HELD THAT:- There are considerable force in this argument since the Appellants have been filing the Returns regularly and non-availment of Cenvat of over Rs. 2.69 Crores as claimed was found to be correct by the Superintendent on 18.06.2018, after the Show Cause Notice was issued. Therefore, it is held that the any confirmed demand for the extended period is not sustainable and such demand on account of time bar is set aside.
Matter remanded to the Adjudicating Authority for the limited purpose of quantifying the Cenvat Credit to be reversed on account of common inputs for the normal period only after excluding the demand for the extended period - appeal allowed by way of remand.
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2023 (12) TMI 1060
Irregular availment of CENVAT Credit - imported goods - cleared as such as the said tools neither inputs nor capital goods used in or in relation to the manufacture of their final products - process not amounting to manufacture - HELD THAT:- In the present case, the appellants are engaged in the manufacture of various high precision tools, and also import certain parts used as inputs. The tools were customised and sold by the appellant on payment of appropriate duty of excise on its transaction value, which was more than the credit availed on the inputs. The Revenue disputed the processes undertaken on the imported items alleging the same do not result into manufacture of a new item different from the inputs; hence the activity undertaken by the appellant is purely in the nature of trading; therefore, cenvat credit availed on the inputs cannot be admissible.
This issue is no more res integra as it has already been settled by various decisions as cited by the learned counsel for the appellant. In THE COMMISSIONER OF CENTRAL EXCISE, PUNE VERSUS AJINKYA ENTERPRISES [2012 (7) TMI 141 - BOMBAY HIGH COURT], the Bombay High Court taking note of the arguments of the Revenue, more or less in the same line observed once the duty on final products has been accepted by the department, CENVAT credit availed need not be reversed even if the activity docs not amount to manufacture.
There are no merit in the impugned order. Consequently, the impugned order is set aside - appeal allowed.
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2023 (12) TMI 1059
Valuation - addition of scrap value to the assessable value, at which Appellant job worker had cleared the intermediate product to the input supplier cum Principal manufacturer - demand alongwith interest and penalty - HELD THAT:- Order already passed in the Appellant’s own case for its earlier period VISHNU KUMAR RATANLALJI OZA VERSUS COMMISSIONER OF CENTRAL EXCISE, NAGPUR AND M/S. VINAR ISPAT LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NAGPUR [2023 (2) TMI 1232 - CESTAT MUMBAI] holding that money value of the scrap retained by the Appellant does not represent additional consideration for the Appellant and it is not liable to be included in the assessable value of the job worked goods, being cleared on payment of duty to the manufacturer. There is no substantial change of law in the meantime except inclusion of Rule 10(A) which CBEC have clarified vide its Circular dated 31.03.2010 that once goods manufactured by job workers are not sold by the Principal Manufacturer but are consumed by the Principal manufacturer, Provision of Rule 8 of Valuation Rules, 2000 that provides for determination of value on the basis of 110% of the cost of production is required to be adopted, besides the facts that ever since the judgment of P.R. Rolling Mills passed way back in 2010 [2009 (3) TMI 444 - CESTAT, BANGALORE], it has been consistently held by the Judicial Authorities that additional scrap value would not determine the final assessable value.
The order passed by the Commissioner (Appeals) is set aside - appeal allowed.
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2023 (12) TMI 1058
Levy of Central Excise Duty - resin powder reflected in the monthly returns of Allied Resins - resin powder clandestinely cleared - under valuation of stock transferred goods - penalty under Section 11AC of the Central Excise Act, 1944 - penalty under rule 26 Of Central Excise Rules, 2002 read with Section 9(1) of the Central Excise Act, 1944.
Confirmation of duty demand of Rs.61,24,002/- including Education Cess and SHE Cess, relating to unaccounted manufacture and clearance of U F Resin Powder, to Rampur Unit of Allied Resins - HELD THAT:- There is no evidence to substantiate the allegation of clandestine clearance and there is no question of the Appellant being required to pay any duty in respect of the said quantity. Thus, we hold that the demand of duty from the Appellant on the said quantity again is not sustainable. Accordingly, the demand confirmed in the impugned order on this count is liable to be set aside.
Confirmation of duty demand of Rs.22,99,672/- including Education Cess and SHE Cess, relating to clandestinely cleared goods not accounted for in physical stock verification - HELD THAT:- On going through the reconciliation statement submitted by the Appellant, the net shortage of 36.13 MT arrived at by the Appellant is satisfied. Accordingly, the Appellant is liable to pay duty of Rs. 3,02,176/- along with interest on the shortage of 36.13 MT, as worked out by them.
Confirmation of duty demand of Rs. 1,50,540/- relating to under valuation of stock transferred goods - HELD THAT:- The Appellant has not disputed this liability. Accordingly, the confirmation of this demand is upheld.
Levy of penalty of Rs.85,74,214/- on the Appellant under Section 11AC, of the Central Excise Act, 1944 - HELD THAT:- The duty of Rs. 3,02,176/- along with interest has been confirmed on the shortage of 36.13 MT, which the Appellant agrees to pay. It is observed that this shortage has been arrived at by taking the yield of UF Resin Powder produced as 55% of the weight of liquid resin consumed. As there is no evidence available on record to establish clandestine clearance of this quantity of U F Resin Powder, penalty under Section 11AC not imposable on this demand. Also, the demand of duty Rs. 1,50,540/- is related to under valuation of stock transferred goods. The Appellant has not disputed this liability. However, the issue being technical in nature, the intention to evade payment of duty cannot be attributed to this demand. Accordingly, no penalty imposable on this demand.
Levy of penalty of Rs.1,00,000/- on Shri. R K Vijay, CEO under rule 26 Of Central Excise Rules, 2002 read with Section 9(1) of the Central Excise Act, 1944 - HELD THAT:- The allegation of suppression with intent to evade payment of duty has not been substantiated in this case. Also, the department has not brought in any evidence to highlight the role of Appellant No.2 in the commission of the alleged offence. Accordingly, the penalty imposed on him under rule 26 read with section 9(1) of the Central excise act, is not sustainable.
Appeal disposed off.
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2023 (12) TMI 1057
Clandestine removal - demand of differential duty based on difference in the quantity mentioned on the railway receipts and central excise invoices prepared by the Respondent - HELD THAT;- It is observed that there is no evidence brought on record by the department to allege that there has been excess production. There is no evidence available on record regarding excess receipt of corresponding raw materials or there has been excess electricity consumption or other similar variations to establish clandestine manufacture and removal of goods. Thus, it is observed that the demand raised by the department is based merely on assumptions only.
It is observed that the department has not brought in any evidence on record to substantiate the allegation of clandestine clearance. Accordingly, the demand of duty calculated by the department only on the basis of the excess quantity mentioned in the railway receipts, is not sustainable. Thus, there are no infirmity in the OIO passed by the Ld. Commissioner. Accordingly the OIO dated 28.03.2013 passed by the Ld. Commissioner is upheld.
The impugned order passed by the adjudicating authority upheld - appeal of Revenue dismissed.
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2023 (12) TMI 1056
Dishonour of Cheque - punishment to accused with jail sentence which may be extended to two years or with fine which may extend to twice the amount of the cheque or with both - HELD THAT:- It appears that under section 138 of Negotiable Instruments Act, there is a specific provision that court has empowered to punish the accused with jail sentence which may be extended to two years or with fine which may extend to twice the amount of the cheque or with both.
In view of the law laid down by the Hon'ble Apex court in Surinder Singh Deswal [2019 (5) TMI 1626 - SUPREME COURT], the first appellate court is conferred with the power to direct the applicant to deposit such amount pending appeal which shall be minimum 20% of fine or compensation awarded by the trial court.
The impugned order dated 19.1.2023 passed by the first appellate court appears to be just and proper which does not suffer from any illegality or irregularity - this criminal revision petition is accordingly dismissed by affirming the order passed by the first appellate court. The applicant is directed to deposit the said amount before the trial court within a period of one month from the date of receipt of certified copy of this order.
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2023 (12) TMI 1055
Dishonour of Cheque - compounding of offence - CIRP proceedings have been initiated against the Accused company and its directors - whether the present case is an appropriate case where the consent of non-applicant no.2 for compounding the offence, could be ignored? - HELD THAT:- In the present case, the complaint has been filed on 29.03.2018, the summons is said to have been issued in April, 2018. Advocates appeared through counsel. On 11.12.2018 the applicants have filed an application seeking compounding of offence. Demand draft of the entire amount of cheque was also annexed. Strictly speaking, the applicants have not filed the application on 1st or 2nd hearing of the case but have filed the same on third hearing of the case which can be said to be an initial stage. This application has been filed in response to the summons issued by the Court making it clear that if the applicants would make an application for compounding of offence at the first or second hearing of the case, the compounding may be allowed.
The non-applicant no.2, thus, appears to have raised his claim for recovery of the amount on 03.01.2018 before the IRP. Admissible recovery, whether of Rs.3 crores or otherwise, will be considered before the IRP and in terms of the provisions of the IBC Code, 2016. In the circumstances, to not offer consent on the ground that the applicants owe dues to the non-applicant no.2 to the tune of Rs. 3 crores is, in my considered opinion, an abuse of process of law and, therefore, by invoking the jurisdiction u/s 482 of the Code, this attempt will have to be and stands nipped down.
Whether it will be permissible for six accused (the present applicants) out of twelve, to seek compounding of offence? - HELD THAT:- The applicants have referred to the judgment of the Allahabad High Court, in the case of GAGAN PAL SINGH AHUJA AND ORS VERSUS STATE OF U.P. AND ORS. [2023 (5) TMI 1280 - ALLAHABAD HIGH COURT], which was required to consider whether piecemeal compromise and compounding thereof is permissible and it was held that the scope and ambit of Section 482 Cr.P.C. is in much wider than that of Section 320 of Cr.P.C.
The non-applicant is getting adequate compensation. In the circumstances, having given my thoughtful consideration to the attending circumstances, the request to compound the offence will have to be allowed.
The present case appears to be a fit case where powers under Section 482 of the Code must be exercised, considering the peculiar facts and circumstances of the case - criminal application allowed.
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2023 (12) TMI 1054
Provisional attachment of the Bank account u/s 83 of the CGST Act, 2017 - challenge to attachment order on the ground that the condition precedent to initiate proceeding under Chapter XII, XIV and XV of the GST Act is absent in the present case - HELD THAT:- So far as objection of the respondents with regard to maintainability of the writ petition before this Court on the ground of lack of territorial jurisdiction is concerned, is not sustainable since cause of action is a bundle of fact and in the facts and circumstances of the present case, the part of cause of action arose within the territorial jurisdiction of this Court since petitioner’s bank account in Kolkata was attached though may it be by an authority in Guwahati and in view of the fact that petitioner is a registered person in Kolkata and as such writ petition before this Court against the impugned order passed by the authority at Guwahati is maintainable.
So far as challenge by the petitioner the legality and validity of the impugned order of provisional attachment under Section 83 of the Act on the ground of non pendency or initiation of any proceeding against the petitioner is concerned, on reading conjointly Section 1(2), Section 6(1), Section 83, Section 122(1) and Section 122 (1A), Clause (i), (ii), (vii) and (ix) thereunder and judgments, relevant circulars and notification and taking into consideration materials found against the petitioners during investigation, CGST Guwahati authority’s action of attaching the bank account of the petitioner provisionally and the impugned order to this effect is very much legal, valid and within jurisdiction and is not liable to be interfered by this writ Court.
This Writ Petition is dismissed.
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2023 (12) TMI 1053
Rejection of appeal on the ground of being delayed - appeal was beyond even the one month period provided under Section 107 of the BGST Act - HELD THAT:- Aan appeal against an order under Section 73 or 74 has to be filed on or before 31.01.2024, and any appeal filed which is pending before the authority could also be considered as properly filed, even if there is delay in such filing.
In the present case, the appeal was filed and was dismissed by the first Appellate Authority. In such circumstances, it is only proper that the appeal be restored to the files of the Authority subject to the conditions under paragraph no. 3 being satisfied - Hence the petitioner would be entitled to satisfy paragraph no. 3 of the N/N. 53 of 2023- Central Tax, dated 02.11.2023 (S.O. 4767(E)) by paying up the deficient amounts as would be required to maintain the appeal under the notification - The Central Board of Indirect Taxes and Customs has by Notification No. 53 of 2023- Central Tax, dated 02.11.2023 (S.O. 4767(E)) extended the time for filing appeal against an order passed by the Proper Officer on or before 31.03.2023 under Sections 73 and 74 of the BGST Act. This in fact extends the period for filing a delayed appeal beyond the one month period as provided under Section 107(4) of the BGST Act, on following the special procedure prescribed under the said Notification.
The impugned order set aside - petition allowed.
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2023 (12) TMI 1052
Validity of show cause cum demand notices issued under Section 74 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The Respondents are duty-bound to comply with the requirement of Section 67 (5). This Section provides that the person from whose custody any documents are seized shall be entitled to make copies thereof or take extracts therefrom in the presence of an authorised officer at such place and time as such officer may indicate in this behalf except where making such copies or taking such extracts may, in the opinion of the proper officer, prejudicially affect the investigation.
The concerned Respondents are directed to dispose of the Petitioners' representations dated 03.05.2023, and and further representations as request in terms of Section 67 (5) of the said Act. This is because there is prima facie merit in Mr Agni's contention that they should have access to such documents for filing an effective reply/ response to the impugned notices which are now to be treated as show cause notices.
Petition disposed off.
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2023 (12) TMI 1051
Belated claim of Input Tax Credit (ITC) - purchase of Petroleum product - contention of the petitioner is that as per Section 38 of the GST Act read with Rule 60 of the TNGST Rules, the ITC shall be claimed through GSTR-2, GSTN had not provided the facility of GSTR-2 till now.
HELD THAT:- The respondents without giving any opportunity to file the returns by notifying the Form GSTR-2, cannot expect the taxable person to file returns. In fact, the petitioner has no intension to violate the provisions of the Act. In order to show his bonafide, he has filed physically. Moreover, all tax liability is paid and there is no loss to the department. Moreover, the petitioner has also claimed financial crisis. Even though the financial crisis cannot be a ground for not filing the returns in time, not notifying of Form GSTR-2 is clearly a ground to consider the petitioner's claim of belated returns.
The next contention of the petitioner is that the ITC can be claimed through GSTR-3B, but GSTN has not permitted to file GSTR-3B in online if the dealers had not paid taxes on the outward supply / sales. In other words, if the dealer is not enabled to pay output tax, he is not permitted to file GSTR-3B return in online and it is indirectly obstructing the dealer to claim ITC. In the present case the petitioner was unable to pay output taxes and so the GSTN not permitted to file GSTR-3B in the departmental web portal it is constructed that the petitioner had not filed GSTR-3B online, that resulted the dealer unable to claim his ITC in that particular year in which he paid taxes in his purchases. Hence if the GSTN provided option for filing GSTN without payment of tax or incomplete GSTR-3B, the dealer would be eligible for claiming of input tax credit - The petitioner had expressed real practical difficulty. The GST Council may be the appropriate authority but the respondents ought to take steps to rectify the same. Until then the respondents ought to allow the dealers to file returns manually.
This Court is inclined to quash the impugned orders and accordingly the impugned orders are quashed. The respondents shall permit the petitioner to file manual returns whenever the petitioner is claiming ITC on the outward supply / sales without paying taxes - the matter is remitted back to the authorities for reconsideration - Petition allowed.
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