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Showing 281 to 300 of 1456 Records
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2024 (1) TMI 1176
Validity of Notice issued u/s 143(2) - Period of limitation - Defective return - Removal of defect beyond 15 days u/s 139(9) - AO took up the original ROI filed for processing after the defects were removed - HELD THAT:- AO should have treated the return as non-est when the assessee has not removed the defect within prescribed time of 15 days from the date of issue of the notice. The Assessing Officer has no leverage to extend the time and drag it till the limitation of time to issue notice u/s. 143(2) expires. The notice issued in this case got time barred and the assessment is treated as nullity. Decided in favour of assessee.
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2024 (1) TMI 1175
Valuation - Oil in the Bunker Tanks of the Engine Room/outside the Engine Room of the vessels sent for being broken up, are to be assessed separately or as part of the vessels to be scrapped? - HELD THAT:- The impugned order (sic) cannot be sustained in view of the order of this Court in M/S MAHALAXMI SHIP BREAKING CORP. ETC. VERSUS COMMISSIONER OF CUSTOMS BHAVNAGAR [2023 (4) TMI 1250 - SC ORDER] where it was held that In the appeals preferred by the Revenue, which are directed against the orders of the CESTAT in NAVYUG SHIP BREAKING CO., DHAN STEELS PRIVATE LIMITED. AND OTHERS VERSUS C.C., JAMNAGAR (PREV) [2022 (12) TMI 100 - CESTAT AHMEDABAD], the CESTAT ruled that the oil is to be assessed as part of the Ship.
Appeal dismissed.
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2024 (1) TMI 1174
Refund claim - principles of unjust enrichment - Proper appreciation of provision of Section 28D of the Customs Act, 1962 or not - verification of contents of provision of Section 28D of the Customs Act, 1962 - HELD THAT:- The appellate authority took note of the certificate issued by the Chartered Accountant dated 11.06.2015 wherein the Chartered Accountant again certified that all the goods brought under the cover of the three Bills of entries are still in use by the Dredging Corporation of India. The Director (Operations and Technical) of the assessee vide a letter dated 11.06.2015 certified that the vessel is in operation and has not been sold. Therefore, the appellate authority held that when the goods are still in use the question of passing the burden of duty does not arise and the question of unjust enrichment will not be applicable.
While on this issue, it will be beneficial to refer to the decision in the case of COMMISSIONER OF C. EX., CHENNAI-I VERSUS SUPERINTENDING ENGINEER, TNEB [2011 (3) TMI 1500 - MADRAS HIGH COURT] wherein the Hon’ble Division Bench after taking note of the findings of the Hon’ble Supreme Court in paragraph 99 of the judgment in Mafatlal Industries held that there was no unjust enrichment even as regards the Government undertakings and following the same it was held that unjust enrichment is not applicable as far as the state undertakings are concerned.
The learned tribunal after taking note of the factual position has conclusively held that the bar of unjust enrichment would not apply as the vessel in question is still in use and has not been sold or disposed of. Furthermore, the certificate issued by the Chartered Accountant was also taken note of which was not shown to be factually incorrect by the department.
The appeal is dismissed and the substantial questions of law are answered against the appellant revenue.
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2024 (1) TMI 1173
Violation of principles of natural justice - Detention of goods purchased by the petitioner which was imported palmolein oil without passing any order - HELD THAT:- On perusal of the facts stated in the memo of the petition, it appears that the petition is filed only on the basis of oral information given to the petitioner by the custodian of the goods M/s Deepak Estate Agency. The petitioner has not produced on record the letter dated 03.11.2023 received by M/s Deepak Estate Agency from the respondent authority to put on hold the consignment lying with it. It appears that the petition is filed only to avoid the compliance of the summons issued by the respondent authority to the directors of the petitioner company and to stall the investigation proceedings without disclosing the true and correct facts.
In absence of the pleadings and the documents on record, the petition is not entertained and is accordingly dismissed.
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2024 (1) TMI 1172
Classification of imported goods - Gas chromatograph used for monitoring dissolved gas in Mineral Oil - classifiable under CTSH 9027 20 00 or not - HELD THAT:- As is evident from the literature produced on behalf of the appellants, the word Gas in Gas Chromatograph refers not to the sample being analysed, but to the carrier gas which carries the vaporised sample (Mobile Phase) from the Inlet to the Column. It would be contrary to the HSN explanatory notes to classify Gas Chromatograph as Gas Analyser under CTSH 9027 10 00 instead of classifying the same as Chromatograph under CTSH 9027 20 00 which is more specific description. The HSN Notes while explaining the scope of “Chromatograph” has referred to all kinds of Chromatographs, whether Gas, Liquid, Ion or thin Layer Chromatographs and have not excluded Gas Chromatographs from Chromatographs. The US Customs Tariff, gives 10-digit sub-classification and as per which Gas Chromatograph appears at Sub-heading 9027. 20.50.50. Foreign manufacturer-supplier’s Invoice also mentions the said Sub-heading 9027.20.50.50.
The Appellant’s claim for classification of Gas Chromatograph for monitoring of Dissolved gases in mineral oil, under CTSH 9027 20 00, is also supported by the decision of the HS Committee taken at its 64th Session. The product considered by the HS Committee in the said decision is “Online Dissolved Gas Analysis (DGA) Apparatus” used for monitoring dissolved gases in transformer oil, which consisted of Gas Chromatography System.
The Hon’able High Court of Delhi has in the case of MANISHA PHARMA PLASTO PVT. LTD. VERSUS UNION OF INDIA [1999 (5) TMI 33 - HIGH COURT OF DELHI] held that the opinion of the HS Committee has a lot of pervasive value and should ordinarily be taken as binding.
The subject goods imported by the Appellants are held to be classifiable as Gas Chromatograph under CTSH 9027 20 00. The impugned order is therefore set aside - Appeal allowed.
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2024 (1) TMI 1171
Classification of imported goods - Tower Flanges - Benefit of exemption from customs duty - to be classified under Customs Tariff Heading 8503 0010 as Parts of Wind Operated Electricity Generator or not - Notification No. 12/2012--CE (Sl.No. 332) dated 17.03.2012 - HELD THAT:- The issue is no more res integra as flanges imported are design specific and are meant only for use in erection of Wind Mill Towers and are treated as parts of Wind Operated Electricity Generator falling under CTH 8503 and not general purpose flanges falling under 7307. Even, a perusal of the HSN explanatory notes to Heading 7307 indicates that the said heading excludes constructions clearly identifiable as machine parts.
The Respondent has relied upon the decisions of the Hon’ble Tribunal in the cases of BHEL [1999 (4) TMI 149 - CEGAT, NEW DELHI], COMMISSIONER OF C. EX., CALCUTTA-II VERSUS TECHNO FAB MANUFACTURING LTD. [2003 (9) TMI 180 - CESTAT, KOLKATA] and Hyundai Unitech Electrical Transmission [2005 (7) TMI 129 - CESTAT, MUMBAI] which held that Wind Mill Tower is a part of WOEG.
This Tribunal in the case of Commissioner of Customs (Port--Import) Vs. Gamesa Wind--Turbines [2024 (1) TMI 736 - CESTAT CHENNAI] has held that the imported flanges with specific part numbers are the parts required for Wind Operated Electric Generators (WOEG) classifying them under CTH 85030010 and to be eligible for the benefit of Notification No. 12/2012--CE (Sl.No. 332).
The appeal filed by the Department is without merits and as such cannot be sustained - Appeal of Revenue dismissed.
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2024 (1) TMI 1170
Classification of imported goods - Sensor Bag Assembly - to be classified under CTI 90328910 or under CTI 87089500? - HELD THAT:- The original authority after considering the submissions of the respondent came to the conclusion that the subject goods did not merit classification under CTH 9032 as claimed by the respondent because in order merit classification under Heading 9032, the instrument or automatic regulator must maintain a factor at a desired value by measuring it constantly or periodically. No such function is performed in the present case. Rather, the original authority held that the subject goods would merit classification under Heading 8537.
It is found that the appellate authority has also upheld the Order-in-Original classifying the said goods under Heading 8537. Further, it is found that the subject goods are not classifiable under CTI 87089500 as “Safety airbags with inflator system; parts thereof” because there is an exclusion in HSN Explanatory Notes to Heading 8708 where electronic controllers are excluded from Heading 8708.
In view of the settled position of law as held in various decisions, the subject goods are not classifiable under CTI 87089500 as “Safety airbags with inflator system; parts thereof”, as claimed by the Department. Further, it is settled position of law that the burden of proving the correct classification is on the Department as held in various cases relied upon by the respondent. It is a settled law that when the classification proposed by the department cannot be sustained, then irrespective of the fact as to whether or not the classification of the assessee is proper, the same would prevail.
The Hon’ble Apex Court in the case of Warner Hindustan Ltd. [1999 (8) TMI 75 - SUPREME COURT] has held The Tribunal also noted that “both sides have not adduced any detailed arguments as to why these tablets can be considered as confectionery item or otherwise although a plea is there from the Collector in the grounds of appeal that the goods are assessable under Tariff 17.04". In our opinion, the Tribunal was quite wrong in these circumstances in allowing the appeal of the Excise authorities and classifying the mint tablets as items of confectionery under Heading 17.04. The correct course for the Tribunal to have followed was to have dismissed the appeal of the Excise authorities making it clear that it was open to the Excise authorities to issue a fresh show cause notice to the appellant on the basis that the tablets were classifiable under Heading 17.04 as items of confectionery.
There is no infirmity in the impugned order - Appeal of Revenue dismissed.
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2024 (1) TMI 1169
Refusal of Renewal of Customs Broker’s Licence - no supporting documents have been filed - Regulation 9 of the CBLR, 2013 - HELD THAT:- The appellant-firm was not having any Customs authorized signatory from 2012 onwards and hence, their Customs Broker Licence could not be operated, but the appellant, knowing fully well, had operated the Licence without the Customs authorized signatory continuously for three years i.e., 2013, 2014 and 2015 and cleared various consignments, which could be seen from their business volume details. The above observations are quite serious, having known that the other party had with him the original licence, the appellant appears to have filed a false complaint with the police alleging about the loss of the original licence, a copy of which was also filed with the Revenue authorities requesting for a duplicate of the same on the very same ground of loss/misplacement. There was also an allegation of forgery.
The other crucial misconduct which is highlighted in the impugned order is that the appellant had operated the licence without the Customs Authorized Signatory for three years, which fact also shakes the bona fides of the appellant. Instead of offering plausible explanation for the said misconduct, the appellant has only questioned the authority of the Commissioner as going beyond the issue.
There are no irregularity or illegality committed by the Commissioner, Regulations of the CBLR authorize the Commissioner to check if there is anything adverse against a firm or company seeking fresh licence and to grant renewal of the same if there are no instances of any complaints of misconduct.
There are no merit in the appeal filed by the appellant, for which reason the appeal is dismissed.
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2024 (1) TMI 1168
Initiation of Contempt proceeding against the concerned Commissioner - tendering unconditional apology for delay in implementing the Final Order dated 12.09.2019 of this Hon’ble Tribunal - HELD THAT:- The statement made by the revenue is not convincing, in the miscellaneous application that they did not implement the order of CESTAT for the reason of the legal opinion given to them. In our view the issue is well settled by the decision of Hon’ble Supreme Court in the case of Krishna Sales (P) Ltd., [1993 (9) TMI 124 - SUPREME COURT] wherein it is held that If the authorities are of the opinion that the goods ought not to be released pending the Appeal, the straight forward course for them is to obtain an Order of Stay or other appropriate direction from the Tribunal or the Supreme Court, as the case may be. Without obtaining such an Order they cannot refuse to implement the Order under Appeal. As is well-known, mere filing of an Appeal does not operate as a Stay or suspension of the Order appealed against.
The basic contention raised by the Revenue in their miscellaneous application is in respect of the cost imposed and the initiation of proceedings of contempt against the concerned Commissioner. Commissioner’s have by way of the present miscellaneous applications rendered an unconditional apology for the delay in implementing the Final Order dated 12.09.2019.
The Government procedure takes time and courts have to take a balanced view in the matter while taking harsh views in the matter. There are number of clearances by various agencies which cause delay though such delay cannot be justified and we express unhappiness for the delay of 04 (Four) years in the matter but taking note of all the facts and circumstances stated in the application specifically the unconditional apology tendered by the concerned commissioners we are of the view that end of justice will be met for which the concerned officers are warned to be careful in dealing with the matters like this one. In similar situation Hon’ble Bombay High Court has in case of S.J. Enterprises [2022 (8) TMI 508 - BOMBAY HIGH COURT] after taken note of the unconditional apologies tendered discharged the notice for contempt.
In view of the unconditional apologies tendered, except the part whereby we have passed direction for implementation of Final Order No 71733-71742/2019 dated 12.09.2019 read with Misc Order No 70019/2021 dated 21.06.2021, all other parts of our order like imposition of cost and reference of the matter to the Hon’ble High Court for initiating contempt proceedings are reconsidered and set aside.
Application disposed off.
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2024 (1) TMI 1167
Classification of goods sought to be imported - Interactive Large Format Display - to be classified under Heading 8528 or under Heading 8471? - HELD THAT:- On perusal of the comments of the concerned Commissionerate on the application for advance ruling, it is observed that word ‘Display’ in the description of item ‘Interactive Large Format Display’ has caught their attention and same has been made basis to arrive at essential/principal function of the subject goods however, it appears that importance of the word ‘Interactive’ in the description of the subject goods, has not been discussed much. The word ‘Interactive’ in the description of the subject goods immediately brings to the front various capabilities of the subject goods and on closer examination, the capabilities of the subject goods meet the requirement under Chapter Note 6(A) of Chapter 84 for a machine to mean as ‘automatic data processing machine’. Moreover, once an item has inbuilt input unit, output unit along with processing unit then it is obvious that the item is capable of performing multiple functions - the issue of classification, in the instant application gets settled in terms of Rule 1 and Rule 6 of General Rules for Interpretation of Import Tariff (GRI) without inviting reference to Rule 3 of GRI.
It is also noted that a number of rulings and judgments have been quoted by the concerned Commissioner to justify classification under Heading 8528. However, it is felt that judgment of CESTAT, New Delhi in the case of M/s. Ingram Micro India Private Limited [2022 (2) TMI 308 - CESTAT NEW DELHI] is the most appropriate, giving detailed explanation for classification of goods similar to the subject goods under Heading 8471. It is also noted that the Customs Authority for Advance Rulings, Mumbai examined the question of classification of similar goods and ruled for classification of such goods similar to the subject goods in sub-heading 8471 41 90, while referring to the Final Order of Hon’ble CESTAT, New Delhi in an appeal filed by M/s. Ingram Micro India Private Limited.
The proposed items of import namely, “Interactive Large Format Display-Model Think Vision T86, T7S, T65 (with camera) & T65 (without camera)” merit classification under sub-heading 8471 41 90 of the First Schedule to the Customs Tariff Act, 1975.
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2024 (1) TMI 1166
Undervalued/Preferential/wrongful transaction - exclusion of rights in the Trade Mark “Gloster" from the assets of the corporate Debtor - it is argued that the dispute is in regard to the title over the registered trademark for which the jurisdiction vests with the District Court in terms of Section 134 of the Act, 1999 and the Adjudicating Authority cannot take a decision under Section 60(5) of the Code - HELD THAT:- It is found that the legislature has used the different language in Section 43 and 45 of the Code because in Section 43, the RP or the liquidator has to form an opinion whereas in Section 45 the RP or the liquidator has to examine and then determine that the transaction in question were undervalued during the relevant period. In the case of Anuj Jain [2020 (2) TMI 1259 - SUPREME COURT] the Hon’ble Supreme Court has also held that specific material facts are required to be pleaded if a transaction is sought to be brought under the mischief sought to be remedied by Sections 45/46/47 or Section 66 of the Code. It further said that it is expected of any resolution professional to keep such requirements in view while making a motion to the Adjudicating Authoritybut in any case the action could not have been taken under Section 43 and 45 without there being an application moved by the RP.
In the present case, the CoC was apprised in its 5th meeting that the forensic audit report found no preferential, undervalued, fraudulent or wrongful trading transactions nor it has found any related party preferential or fraudulent transaction whatsoever, therefore, only on the basis that the trademark was hypothecated for a bigger amount and has been assigned for lesser amount would not be a criteria for the purpose of declaring it to be undervalued transaction without there being sufficient material before the Adjudicating Authority to pass such an order, therefore, the finding recorded in this regard is not in accordance with law and thus reversed.
The present appeal is hereby allowed and the impugned order is set aside.
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2024 (1) TMI 1165
Seeking withdrawal of CIRP - dismissal merely on the ground of commercial wisdom of the CoC without looking into spirit of the Code, which is meant for revival of the Corporate Debtor and not for recovery mechanism for the bankers - Section 12A r/w Regulation 30 A for CIRP Regulation 2016 - HELD THAT:- In view of provisions laid down under Section 12A of IBC, it is crystal clear that, once CoC is constituted, there is a mandatory requirement of 90% of the voting shares of the CoC in favour of the resolution for withdrawal of the CIRP of the Corporate Debtor and if the voting of the CoC is below 90% then the application of withdrawal cannot be allowed and hence it need to be dismissed. In the present case the Respondent No. 1 with 19.94% voting did not support 12A Application filed by the Corporate Debtor, hence the Adjudicating Authority rightly gave its verdict.
Section 12A of the Code is very clear that any withdrawal of CIRP by the Appellant need to have minimum voting support of 90% of the CoC and in the present case never met this threshold. Thus, the Adjudicating Authority could not direct for settlement to the HDFC in contravention of the Code.
On taking into consideration the various judgments where it has been held by the Hon’ble Supreme Court of India that commercial wisdom is non judiciable and there is extremely limited scope for judicial intervention.
There are no merit in the appeal - appeal dismissed.
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2024 (1) TMI 1164
CIRP - Rejection of Application seeking intervention - Locus to file application - infringement of rights - Approval of resolution plan (offer) of another party - HELD THAT:- The impugned order of the Adjudicating Authority clearly indicates that Adjudicating Authority proceeded to consider the objections raised by the Appellant to the process under which RP and CoC has approved the offer submitted by Respondent No.2. The Adjudicating Authority proceeded to examine the said contention on merits and has rejected the same by the impugned order. The fact that Adjudicating Authority proceeded to examine the contentions raised by the Appellant on merits itself indicate that objections raised by the Appellant required consideration. The Adjudicating Authority proceeding to examine the objections on merits and thereafter saying that Appellant has no locus is a contradiction in itself.
On looking into the facts and sequence of events, the Appellant has submitted offer after receipt of EOI and RFRP for Resolution Plan. The Appellant also revised its offer and had negotiation with CoC and RP, which is a fact established from the record. The RP and CoC interacted with the Appellant in respect of its offer and it appears that on the basis of the offer submitted by the Appellant Right of First Refusal was exercised by Respondent No.2 and consequently offer was received Company Appeal (AT) (Insolvency) No.1650 of 2023 10 from Respondent No.2, which find favour by the CoC. The Appellant, who participated in the process cannot be said to be a person having no locus to object the Application filed by the RP for approval of offer submitted by Respondent No.2.
Appeal disposed off.
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2024 (1) TMI 1163
Failure to discharge Service Tax liability - Works Contract service - Bus Shelters for construction BRTS, Ahmedabad and other for construction of a Conventional Centre, Auditorium and Exhibition Hall for Gujarat University - contravention of provision of Section 68 read with Rule 6 of the Service Tax Rules, 1994 - failure to apply for registration with service tax department - failure to assess the tax due on the services provided and failure to furnish ST 3 returns - failure to pay the interest leviable on the service tax not paid - Recovery alongwith interest and penalty - extended period of limitation - HELD THAT:- On going through the order in original, it is found that the learned commissioner of the view the services are covered under works contract service but no elaboration was given as regards the exemption, valuation and ingredients of the service i.e. works contract service. In the said service, the main ingredients are that of construction BRTS, Ahmedabad and other for construction of a Conventional Centre, Auditorium and Exhibition Hall for Gujarat University. However, the learned Commissioner has not given clear findings why the services are not exempted on basis of valuation. These are the main factor which decide whether the service is taxable or not. Therefore, this aspect needs to be reconsidered.
It is found that although the show cause notice refer to the charge of “intention to evade payment of tax” on the part of the appellant, no concrete evidence is forthcoming to substantiate this charge against the appellant. This aspect has not been fully examined and discussed in any of the orders passed by the authorities below. It is, therefore, necessary that in the interest of justice, the matter needs to be remanded to the Commissioner (Appeals) keeping all the issues open.
Appeal allowed by way of remand.
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2024 (1) TMI 1162
Club or association service - appellant is a Member society of the Members, who are the owners of various commercial units in a commercial complex - appellant collect amounts from its members, which is used for maintenance of the commercial complex - HELD THAT:- The issue involved in the present case is prima facie covered by the cited judgment of Apex Court in the case of State of West Bengal [2019 (10) TMI 160 - SUPREME COURT]. However, at the time of passing of adjudicating order the said judgment was not available being passed subsequently. It is also observed that the judgment is based on certain facts such as the status of the association and the fact and the nature of the charges collected by the association from the members. In this position entire matter needs to be reconsidered in the light of the Hon'ble Supreme Court judgment in the West Bengal case vis-a-vis facts in the present case whether the same are similar to the fact of the said Apex Court Judgment.
Accordingly, the adjudicating authority should reconsider the matter in the light of the facts of the present case as well as applicability of the various judgments including the judgment of Apex Court cited by the appellant.
The appeals are allowed by way of remanded to the adjudicating authority.
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2024 (1) TMI 1161
Duty demand on the basis of differential figures available in Service Tax-3 Returns and Income Tax Returns for the period between October 2013 and March 2014 - reliance mainly on the certificate issued by the Chartered Accountant - HELD THAT:- At the outset it is to be noted that certificate issued by the Chartered Accountant is alone a valid piece of evidence without corroboration in view of several decisions of this Tribunal in the case of Rajashree Polyfil Vs. Commissioner of Central Excise & Service Tax, Surat-II [2023 (6) TMI 456 - CESTAT AHMEDABAD]. It can be treated as expert’s evidence for the reason that Institute of Chartered Accountants of India, a statutory body instituted by the Government of India has recognized them to be competent to issue certificates on Financial Statements and Auditor General of India has been accepting the Financial Statement of registered Companies, when endorsed by Chartered Accountants with their signatures and seals, apart from the fact that Section 32(2) of the Indian Evidence Act, 1872 permits acceptance of such document without a formal proof, in their absence under certain contingences.
In view of irregularity in the Show cause and the non-sustainability of demand purely on the basis of difference between ST- 3 return and Income Tax returns of any other period, without any further examination to establish that the difference is on account of consideration received towards discharge of services, the order passed by the Commissioner is hereby confirmed.
Appeal dismissed.
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2024 (1) TMI 1160
Erection, Commissioning and Installation service - whether the demand raised for the period earlier to 01.06.2007 and sustained in the impugned order is justified? - period from July 2003 to April 2006 - HELD THAT:- The Show Cause Notice, which is the starting point, clearly reveals that the period was from July 2003 to April 2006. At paragraph 3 of the Show Cause Notice, the issuing authority has worked out the total Service Tax after allowing abatement of 67% at Rs.3,98,763/-, which was proposed to be demanded and thereafter, vide Order-in-Original No. 95/2010 dated 31.12.2010, came to be confirmed.
It is clear that the Revenue has accepted that the service carried out by the appellant was in terms of the works contract and admittedly, the period is also prior to 01.06.2007 and hence, it is agreed that the issue involved in the above case is no more res integra as the same stands covered in favour of the taxpayer by the above ruling of the Hon’ble Apex Court in COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT].
There are no merit in the demand raised and upheld in the impugned order - appeal allowed.
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2024 (1) TMI 1159
Recovery of short payment of Service Tax - stand of the Appellant is that Service Tax in advance was paid but had not been shown in the ST-3 Return as advances and not been adjusted subsequently in the returns filed for subsequent period - HELD THAT:- Section 68 commands for payment of Service Tax by the person providing taxable service and Rule 6 provides the manner in which payment of Service Tax can be effected. Rule 6 Sub Rule 1A, Sub Rule 4A and Sub Rule 4B deal with payment of Service Tax made in advance that can be adjusted against subsequent Service Tax dues for the succeeding fact that quarter or subsequent period and while Sub Rule A is conditional to the intimation of advance tax paid is to be given within 15 days to the Jurisdictional Superintendent of Central Excise, Sub Rule 4A has not stipulated any such condition and, therefore, such excess amount paid by the Appellant against his Service Tax liability could have been adjusted for the subsequent period, which Appellant failed to do may be due to inadequate knowledge/understanding of law till it was put to notice for recovery but that cannot be the sole ground to conform the demand when duty liability for the consideration amount received in advance was discharged, though without a proper intimation.
This being the fact on record and having regard to the rules that enable adjustment of advance payment of tax against subsequent dues, there are no hesitation to hold that Appellant had discharged the duty liability but only failed to record the same in the ST-3 Returns, apparently for the reason that it had filled the returns subsequently upon payment of late fee of Rs.20,000/-, which was also confirmed by the Commissioner and that remained unchallenged in this appeal.
The appeal is allowed in part.
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2024 (1) TMI 1158
Levy of Cess under Clean Energy Cess’ 2010 which has been repealed by the GST Compensation Cess under the Goods & Services (Compensation to States) Act, 2017 - Revenue can take recourse of first proviso to section 11A(1)/ section 11A(4) on the ground of suppression, fraud etc. - liability to pay interest & penalty over the Cess amount.
Whether the Revenue is entitled to levy Cess under Clean Energy Cess’ 2010 which has been repealed by the GST Compensation Cess under the Goods & Services (Compensation to States) Act, 2017? - HELD THAT:- Section 83(3) of Chapter VII of Finance Act, 2010 itself provides for “Levy”, “Collection” and “Rates of Tax” at Tenth Schedule. As per Section 83, the levy of duty is on the production of Coal. The taxable event is production of coal and not its removal. Further, the Finance Act, 2010 itself provides for “Collection” and “Rates of Tax”. Rules 4 & Rule 6 of Cess Rules specifies the procedure that the Cess is payable by 5th of the second month. The Rule does not specify that the Cess is to be paid at the rate applicable at the time of removal. Therefore, prima-facie it appears that respondent had the power to levy and collect Clean Energy Cess on the coal already produced and lying in stock as on 30.06.2017 - respondent had the power to levy and collect Clean Energy Cess on the coal lying in stock as on 30.06.2017 at the specified rates which were produced when the said cess was in force.
It is reiterated that liability to pay cess only accrues at the time of production and its payment is scheduled when the coal is removed in view of Rule 4 and 6 of Cess Rules since, as per section 83(3) of Finance Act, 2010 levy is on production of coal. Rule 4 and 6 deals only with time and manner of payment/discharge of cess and not the rate. In this regard, reference may be placed on the dictionary meanings of the words 'accrued' and 'acquired'.
The Revenue is right is demanding the tax on production which was lying on stock as on the date of amendment and repeal of Clean Energy Cess for the sole reason that the taxable event was production and only the payment was deferred at the time of Removal - by virtue of Section 83(3) playability is created; and only the payment is deferred to be done in the manner provided in Rule 4 & 6 - issue decided in favour of Revenue.
If the Revenue is entitled to levy Cess under Clean Energy Cess’ 2010 then as to whether in the facts and circumstance of this case the Revenue can take recourse of first proviso to section 11A(1)/ section 11A(4) on the ground of suppression, fraud etc.? - If the Assessee is liable to pay Cess under Clean Energy Cess’ 2010 then as to whether he is also liable to pay interest & penalty over the Cess amount? - HELD THAT:- Since, the present case is an interpretational issue and petitioner was paying GST Compensation Cess with a bona-fide belief that Clean Energy Cess was not payable. Further, the petitioner has been filing regular returns under GST law for all the supplies of coal made after introduction of GST. Petitioner was not filing returns under Clean Energy Cess Rules with a bona fide belief that Clean Energy Cess was not payable. Further, these facts were in the knowledge of the respondents; however, despite said facts being in the knowledge of the respondents, show cause notice was issued almost after two years from the date Clean Energy Cess was repealed. Thus, as aforesaid, since the instant case involves an interpretational issue, therefore in such circumstances, no penalty under Section 11AC can be levied as demand of Cess under the extended period of limitation is unsustainable.
As the allegation of suppression and wilful intent to evade tax is baseless and incorrect, penalty under Section 11AC(1)(c) of the Central Excise Act, 1944 cannot be imposed - inasmuch as, no penalty under Section 11AC can be levied as demand of Cess and further extended period of limitation can not be invoked. However, the Assessee is liable to pay Cess for the normal period including interest over the same.
The matter is remitted back to the adjudicating authority: respondent no. 3 to recalculate the amount of clean environment cess confirming the demand to normal period of limitation - The instant writ application stands partly allowed.
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2024 (1) TMI 1157
CENVAT Credit - input services or not - services related to effluent treatment of the waste generated at the appellant’ s factory and such effluent treatment service availed from the third party agency i.e. Bharuch Enviro Infrastructure Ltd., Ankhleshwar (BEIL) - HELD THAT:- As per the pollution control act, it is mandatory for every industrial unit to treat the effluent waste generated during the manufacture of final product, therefore, the industrial unit cannot carry out the production without compliance of pollution control norms which includes effluent treatment of waste generated during the manufacturing activity. Therefore, the effluent treatment of waste is necessary for overall manufacturing activity of the industrial unit.
This issue has been considered in the various judgments - reliance can be placed in INDIAN FARMERS FERTILISER COOP. LTD. VERSUS CCE., AHMEDABAD [1996 (7) TMI 141 - SUPREME COURT] where it was held that The apparatus used for such treatment of effluents in a plant manufacturing a particular end-product is part and parcel of the manufacturing process of that end-product. The ammonia used in the treatment of effluents from the urea plant of the appellants has, therefore, to be held to be used in the manufacture of urea and the raw naphtha used in the manufacture of such ammonia to be entitled to the said exemption.
The revenue’s claim that since the service was availed beyond the place of removal, credit is not admissible completely fails and, on that ground, credit cannot be denied.
The appellant is legally entitled for availment of Cenvat credit in respect of effluent treatment service - the impugned order is set aside - Appeals are allowed.
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9911796707
