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Showing 161 to 180 of 18392 Records
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2024 (12) TMI 1414
Refund of customs duty claimed by the appellants in respect of goods which are not unloaded at the port of import - Requirement to examine the element of unjust enrichment - proper examination on the basis of documentary evidences submitted by the appellants and as required under Section 18/27 of the Customs Act, 1962 or not.
Whether the refund of customs duty claimed by the appellants in respect of goods which are not unloaded at the port of import is admissible? - HELD THAT:- The issue of refund of customs duty is arising on account of excess duty collected on the total quantity of goods/LNG proposed to be imported by the appellants as per Bill of Lading, as against the actual quantity of imported goods/LNG discharged by the vessel. The facts of the case are not disputed by Revenue that as against the quantity estimated to be discharged at the time of initial filing of B/L and B/E for which total duty was paid them on provisional basis, the actual quantity discharged was less by 311837.03 MMBTU - Goods not unloaded and exported back do not qualify as 'imported goods' under the Customs Act, 1962.
Whether the element of unjust enrichment is required to be examined, and if so, whether these have been properly examined based on documentary evidence submitted by the appellants as required under Section 18/27 of the Customs Act, 1962? - HELD THAT:- The appellants have submitted the complete details of Annual accounts with suitable explanation in terms of Note 12 and 18 to state that amount of refund claim on account of various issues have been duly shown in the balance-sheet under the head “Assets (non-current assets and current assets)” and further, they have not passed on the duty burden to any other person, on the quantity of LNG which was not unloaded and the duty was initially paid provisionally for total quantity - the various details including ledger accounts, Chartered Accountant’s certificate dated 18.06.2013, 06.07.2013 & 08.04.2014 have to be read together with complete financial records submitted, in order to arrive at whether the elements of unjust enrichment have been fulfilled or not.
The refund of duty arising on account of the present case as decided by the original authority in his order dated 26.11.2013 is arising on account of short landing of the goods / quantity not unloaded, as against the proposed quantity of import of LNG by the appellants. It is also a fact not disputed by the Revenue, that the entire quantity of the goods 1960086.950 MMBTU [85,000 cubic meters] of LNG proposed for import by the appellants RGPPL, in actual terms only 311837 MMBTU [12844.651 cubic meters] were unloaded at the port of import - the question of applicability of Section 12 ibid on the goods which were not at all unloaded and eventually exported back should have been examined by the authorities below at the time of final assessment of customs duty under Section 17(5) ibid or at the time of first appeal before the learned Commissioner (Appeals) - principle of unjust enrichment does not apply to goods that have not been unloaded and were exported back.
There is force in argument made by the learned Advocate for the appellants that in respect of provisional assessment of duty, pending discharge of the imported goods, and when the entire quantity has not been actually discharged, the claim of unjust enrichment does not apply to such cases of goods not unloaded/short landed.
Conclusion - Goods not unloaded and exported back do not qualify as 'imported goods' under the Customs Act, 1962. Principle of unjust enrichment does not apply to goods that have not been unloaded and were exported back. The issue needs to be examined in detail.
The impugned order is set aside and the appeal is allowed by way of remand for fresh adjudication of the case by the learned Commissioner (Appeals).
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2024 (12) TMI 1413
Fraudulent availing Duty Free Credit Entitlement Certificates from DGFT - valid import of goods against the DFCE Licences or not - mis-using the DFCE scheme by way of wrongly obtaining the licences, resorting to Circular trading of CPDs.
Whether the respondents had validly imported the goods against the DFCE Licences? - whether respondent had resorted to Circular trading of CPDs and thereby mis-used the DFCE scheme by way of wrongly obtaining the licences? - HELD THAT:- The allegations and charges levelled under the said show cause notice dated 30.03.2007 as well as in the present disputed show cause notice dtd.19.12.2012 are similar in nature. The adjudication order passed in respect of the SCN dated 30.03.2008 was carried in Appeal to the CESTAT and decided in respondent’s favour in CC (II) AIRPORT SPECIAL CARGO, MUMBAI AND OTHERS VERSUS SHRI SAMIR VORA AND OTHERS [2015 (9) TMI 1370 - CESTAT MUMBAI] by holding that there was neither any mis-declaration of value /product nor there was circular trading. The CESTAT inter-alia held that all the transaction of Cut and Polished Diamonds (CPD) were genuine and there was no circular trading - the disputed matter is well settled in favour of the respondents by the above decision. Since the issue is no longer res integra, the instant demand cannot be sustained.
In the present matter the department’s appeal does not allege that the licences had been cancelled by the DGFT in the instant case. Clearly, the facts are on record that the DGFT has not cancelled the DFCE Licence issued to the respondent and same were valid in the eyes of law. The DGFT has still not cancelled or modified the DFCE licences already granted. So it is clear that DGFT does not agree with the contention of the department. The allegation of the revenue cannot be agreed that the exports have been misdeclared and DFCE licenses have been sought for and obtained fraudulently and imports have been made using invalid DFCE licenses.
Conclusion - The contention of the department that the DFCE licences are invalid cannot be agreed. As valid DFCE licences have been used for import of the goods by the respondents, hence, there are no reason for demand of duty or confiscation of the goods, or imposition of penalties. In the light of this, there are no valid grounds have been brought out to interfere with findings of the Ld. Adjudicating authority.
There is no infirmity in the impugned orders and they need to be upheld - Appeal of Revenue dismissed.
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2024 (12) TMI 1412
Conversion of shipping bills filed under Advance Authorisation scheme into Duty Drawback Scheme - applicability of time bar stipulated by Circular No. 36/2010-Cus dated 23.09.2010 - appellant contended that the impugned Order is vitiated by law as it is passed without issuance of any Show Cause Notice - violation of principles of natural justice - HELD THAT:- It is found that in this case, the amendment of 164 shipping bills for conversion from Advance Authorisation Scheme to Duty Drawback Scheme was disallowed only on the grounds of time bar, i.e., within 3(three) months from the date of Let Export Order (LEO).
It is found that duty on crude oil was exempted on 25.06.2011 and the shipping bills which were filed before the withdrawal of duty on crude oil were permitted for amendment. However, certain shipping bills during the period 01.03.2011 to 26.03.2011 (period before the withdrawal of duty on crude oil) and 27.06.2011 to 30.07.2011 (period after the withdrawal of duty on crude oil) were not allowed for amendment/conversion.
In the case of CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, THE COMMISSIONER OF CUSTOMS, THE DEPUTY COMMISSIONER OF CUSTOMS (EXPORTS) VERSUS PARAYIL FOOD PRODUCTS PVT. LTD., THE UNION OF INDIA, JOINT DIRECTOR GENERAL OF FOREIGN TRADE [2023 (1) TMI 1061 - KERALA HIGH COURT], Hon’ble High of Kerala held that 'The power and scope of Section 149 are wide and have serious ramifications both for the revenue and the importer/exporter. Therefore, it is in the realm or jurisdiction of respondents herein to make Section 149 operable as prescribed by regulations subject to such terms and conditions as may be stipulated by the competent authority.'
The denial of amendment of 164 Shipping bills from Advance Authorisation Scheme to Duty Drawback Scheme was solely on the basis of time bar i.e., not seeking such amendment within 3(three) months of the Let Export Order (LEO) - there are catena of decisions, wherein the co-ordinate benches of the Tribunal and the Hon'ble High Courts have held that the limitation of 3(three) months prescribed in Circular No.36/2010-Cus dated 23.09.2010 is not legally tenable, since the relevant Section 149 of the Customs Act, 1962 states that by way of regulation issued under that section the time limit could be prescribed. However, the Circular No.36/2010-Cus dated 23.09.2010 are not regulations made under Rule 149 of the Customs Act, 1962.
Vide Notification No. 11/2022-Cus (NT) dated 22.02.2022 the Shipping Bill (Post Export Conversion in relation to Instrument based Scheme) Regulations, 2022 were introduced, which provides for a total of 2(two) years time period for filing for conversion of shipping bills. Hence, the rejection of conversion of the impugned shipping bills on time bar is untenable.
It is found in this case that the conversion sought by the Appellant was from Advance Authorisation scheme shipping bills involving more rigorous examination to a Duty Drawback scheme shipping bills involving less rigorous examination.
Conclusion - The limitation of 3(three) months prescribed in Circular No.36/2010-Cus dated 23.09.2010 is not legally tenable, since the relevant Section 149 of the Customs Act, 1962 states that by way of regulation issued under that section the time limit could be prescribed.
The impugned order rejecting the request for conversion of shipping bills filed under Advance Authorisation scheme into Duty Drawback Scheme is unsustainable and needs to be set aside - appeal allowed.
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2024 (12) TMI 1411
Conversion of export shipments under Advance Authorization scheme to Duty Drawback scheme for realisation of export benefits - time limitation - rejection of conversion of shipping bills from Advance Authorisation Scheme to Duty Drawback Scheme only on the grounds of time bar, i.e., not within 3(three) months from the date of Let Export Order (LEO).
HELD THAT:- In the case of CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, THE COMMISSIONER OF CUSTOMS, THE DEPUTY COMMISSIONER OF CUSTOMS (EXPORTS) VERSUS PARAYIL FOOD PRODUCTS PVT. LTD., THE UNION OF INDIA, JOINT DIRECTOR GENERAL OF FOREIGN TRADE [2023 (1) TMI 1061 - KERALA HIGH COURT], Hon’ble High of Kerala held that 'The power and scope of Section 149 are wide and have serious ramifications both for the revenue and the importer/exporter. Therefore, it is in the realm or jurisdiction of respondents herein to make Section 149 operable as prescribed by regulations subject to such terms and conditions as may be stipulated by the competent authority subject to the above observations, the Writ Appeal fails and stands dismissed'.
The denial of amendment of 4( four) Shipping bills from Advance Authorisation Scheme to Duty Drawback Scheme was solely on the basis of time bar i.e., not seeking such amendment within 3(three) months of the Let Export Order (LEO) - there are catena of decisions, wherein the co-ordinate benches of the Tribunal and the Hon'ble High Courts have held that the limitation of 3(three) months prescribed in Circular No.36/2010-Cus dated 23.09.2010 is not legally tenable, since the relevant Section 149 of the Customs Act, 1962 states that by way of regulation issued under that section the time limit could be prescribed.
Also, vide Notification No. 11/2022-Cus (NT) dated 22.02.2022 the Shipping Bill (Post Export Conversion in relation to Instrument based Scheme) Regulations, 2022 were introduced, which provides for a total of 2(two) years time period for filing for conversion of shipping bills. Hence, the rejection of conversion of the impugned shipping bills on time bar is untenable.
It is found that in this case the conversion sought by the Appellant was from Advance Authorisation scheme shipping bills involving more rigorous examination to a Duty Drawback scheme shipping bills involving less rigorous examination.
Conclusion - The limitation of 3(three) months prescribed in Circular No.36/2010-Cus dated 23.09.2010 is not legally tenable, since the relevant Section 149 of the Customs Act, 1962 states that by way of regulation issued under that section the time limit could be prescribed.
The impugned order rejecting the request for conversion of shipping bills filed under Advance Authorisation scheme into Duty Drawback Scheme is unsustainable and needs to be set aside - appeal allowed.
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2024 (12) TMI 1410
Validity of Look out circular - seeking permission to travel abroad to Dubai and Europe - whether respondent has always cooperated with the investigating authorities in pursuance to the notices/summons received by him? - HELD THAT:- It is undisputed that the investigation in the present case has been pending since 06.06.2022 and with respect to the FIR registered by EOW on 13.04.2021, no Charge Sheet has been filed till date. Further, the petitioner has been involved in the investigation whenever he has been summoned by the Investigating Agencies and has disclosed the required information.
The learned senior counsel on 24.12.2024, on instructions, had undertaken before the learned Single Judge that ‘should the appellant require the respondent’s presence, the respondent will return to the country within five days of receiving such intimation, subject to flight availability’. Moreso, the appellant has further failed to disclose the time frame within which the pending investigations shall be concluded. Needless to say, that in such circumstances, the respondent cannot be deprived of his right to travel abroad.
There are no infirmity in the order passed by the learned Single Judge, which has imposed various conditions upon the respondent while granting him the permission to travel aboard.
LPA dismissed.
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2024 (12) TMI 1409
Money Laundering - proceeds of crime - time limitation - Failure to abide by procedural compliance u/s 17 of PMLA - reasons to believe - Seeking retention of records/documents, cash, gold and precious stones, metal jewellery, electronic items/digital devices seized during the search - section 26 of Prevention of Money Laundering Act, 2002 - Whether appellant can be proceeded against under PMLA, 2002, since it is not named as accused in any FIR or chargesheet, also there being no nexus of it with the ECIR case and CBI case?
Time limitation - HELD THAT:- The first contention of the appellant is that the OA No. 757 of 2002 was passed on 22.08.2023 which is beyond the period of 180 days from the date of search and seizure, dt. 17.10.2022 and thus, sub section (3) of section 5 of PMLA will not come into play. However, since the period for which stay was granted in CRLP No. 431 of 2023 would be excluded from the period of limitation of 180 days, as is also stated in the Proviso 3 of Sub-section 5 that, “ Provided also that for that for the purposes of computing the period of one hundred and eighty days, the period during which the proceedings under this Section is stayed by the High Court, shall be excluded and a further period not exceeding thirty days from the date of order of vacation of such stay order shall be counted.” - Hence, the OA is passed well within time, as is duly explained by the Respondent ED in para 4 and also in the OC and thus, sub-section 3 of section 5 of PMLA will be applicable in the present case and the contention of the appellant holds no ground thereby.
Whether appellant can be proceeded against under PMLA, 2002, since it is not named as accused in any FIR or chargesheet, also there being no nexus of it with the ECIR case and CBI case? - HELD THAT:-The offence of money laundering is an independent offence and once a scheduled offence is committed, then the investigation of PMLA offence can be initiated even against the person not named in the scheduled offence, if he is found to be in possession of proceeds of crime and such proceeds of crime are dealt with in any manner which may result in frustration of proceedings under this Act and the same has been cited further in Vijay Madanlal Choudhary v. Union of India [2022 (7) TMI 1316 - SUPREME COURT (LB)] and supported by Section 5 of PMLA - in this case at hand, it is evident from the investigation and submissions of the ED in Para 4 that the appellant company, M/s Musaddilal Gems and Jewellers Pvt. Ltd., received its capital from the tainted money of Mr. Anurag Gupta, in fact the sole purpose of establishing the appellant company was to hide that tainted money. The directors of this company are the wife and son of Mr. Anurag Gupta, who claimed to have invested in the company but could not explain the sources of their income and resultant investment.
Failure to abide by procedural compliance u/s 17 of PMLA - reasons to believe - HELD THAT:- The respondent has properly recorded the reasons to believe so mandated u/s 17(1) of PMLA and the same has been produced before the Adjudicating Authority, PMLA vide letter dated 21.10.2022. Further, as per sub-section 4 of Section 20 of PMLA, 2002, the Adjudicating Authority before authorizing the retention of such property beyond the period specified in Sub- section 1, shall satisfy itself that the property is prima-facie involved in money laundering and that the property is required for the purposes of adjudication under Section 8, which is aptly made in present case as is evident from the material evidences found in the investigation.
Conclusion - The appellant company is nothing, but a sham company of Anurag Gupta to hide the proceeds of crime and present them as untainted money, as the appellant did not explain the source of its capital, unsecured loan and also how it discharged its loan liability. Hence, the order of retention of the properties seized in the present case is rightfully passed and the same does not need to be set aside - the appeal is liable to be dismissed.
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2024 (12) TMI 1408
Maintainability of appeal - appropriate forum - Invocation of provisions of section 73 (1) of the Finance Act for suppression of facts - Applicability of Service Tax on Excess Baggage Charges collected - Availability of Cenvat Credit - Extended period of limitation.
HELD THAT:- In view of Sections 35G and 35L of the Central Excise Act, 1944 which applies in respect of Service Tax, whenever issues of determining taxability are involved, the appeal would lie to the Supreme Court. The same has been also been settled in a series of decisions. In COMMISSIONER OF SERVICE TAX VERSUS ERNST & YOUNG PVT. LTD. AND OTHERS [2014 (2) TMI 1133 - DELHI HIGH COURT] the Coordinate Bench of this Court had observed and held 'if the order relates to several issues or questions but when one of the questions raised relates to “rate of tax” or valuation in the order in the original, the appeal is maintainable before the Supreme Court and no appeal lies before the High Court under Section 35G of the CE Act.'
Even in the present case, though CESTAT has only considered the issue of limitation and the said issue was framed for consideration vide order dated 23rd January, 2024, the nature of the order, which is appealed, has to be considered. The original order passed by the Commissioner considered the question as to whether CENVAT credit was allowable or not, and whether penalty was imposable or not in terms of the applicable law. It also considered the leviability of service tax on excess baggage charges. Merely because CESTAT has only considered the issue of limitation, the present appeal cannot be filed in the High Court.
Conclusion - An appeal against the said impugned order would lie, in terms of Section 35L of the Central Excise Act, 1944, to the Hon’ble Supreme Court.
The present appeal is dismissed as not maintainable.
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2024 (12) TMI 1407
Classification of service - construction of complex service or works contract services? - Appellant owns the land which is being developed by them for residential purposes - Extended period of limitation - penalty.
Classification of service - HELD THAT:- The similar question arose before the Principal Bench of this Tribunal at New Delhi in case of M/S KRISHNA HOMES VERSUS CCE, BHOPAL AND CCE, BHOPAL VERSUS M/S RAJ HOMES [2014 (3) TMI 694 - CESTAT AHMEDABAD] wherein it is observed that 'the agreements entered into by a builder/promoter/developer with prospective buyers for construction of residential units in a residential complex against payments being made by the prospective buyers in instalments during construction and in terms of which the possession of the residential unit, is to be handed over to the customers on completion of the residential complex and full payment having been made, are to be treated as works contracts, it has to be held that during the period of dispute, there was no intention of the Government to tax the activity in terms of such contracts a builder/developer with prospective customers for construction of residential units in a residential complex. Such works contracts involving transfer of immovable property were brought within the purview of taxable service by adding explanation to Section 65(105)(zzzh) w.e.f. 1-7-2010, and therefore, it has to be held that such contracts were not covered by Section 65(105)(zzzh) during the period prior to 1-7-2010.'
Further, if the activity of the Appellant is classified under the taxable category of “construction of complex” service then abatement from the value of services is applicable. This itself demonstrates that the contracts are composite in nature and it would be classifiable as “works contract services” appropriately.
It is also pertinent to note that if the activity of the Appellant is classifiable under the taxable category of “works contract” services then the question would arose that in absence of any mechanism for deduction of the value of land whether service tax is leviable or not. This question was raised before Hon’ble Delhi High Court in case of SURESH KUMAR BANSAL & ANUJ GOYAL & ORS. VERSUS UNION OF INDIA & ORS. [2016 (6) TMI 192 - DELHI HIGH COURT] wherein it is observed 'we accept the petitioners contention that no service tax under Section 66 of the Act read with Section 65(105)(zzzh) of the Act could be charged in respect of composite contracts such as the ones entered into by the petitioners with the builder. The impugned explanation to the extent that it seeks to include composite contracts for purchase of units in a complex within the scope of taxable service is set aside.'
Thus, even if the category of service is held as “construction of complex” services as alleged by the revenue department in the show cause notice dated 29.09.2015 then also the demand of service tax is not sustainable in the facts of the present case - the demand of service tax in the present case is not sustainable.
Time limitation - HELD THAT:- The issue involved in the present case is classification of services. The very same issue has come up before this Tribunal and higher judicial forums and the issues involved are pure interpretation of complex legal provisions. Therefore, the demand of service tax would be hit by limitation as well. The extended period of limitation is also not invocable in the facts of the present case.
Penalty imposed on the partner of the Appellant firm under Section 78A of the Finance Act, 1994 - HELD THAT:- The main Appellant in the present case is a partnership firm and therefore, the provisions of Section 78A of the Finance Act, 1994 is not applicable and therefore, the penalty under Section 78A of the Finance Act, 1994 on partner of main Appellant firm is also not sustainable - since the demand of service tax on the main Appellant firm itself has been set aside there is no question of penalty on the partner of the Appellant firm.
Conclusion - The contracts are composite in nature and it would be classifiable as “works contract services” appropriately. The demand of service tax would be hit by limitation as well. Since the demand of service tax on the main Appellant firm itself has been set aside there is no question of penalty on the partner of the Appellant firm.
The impugned order is set aside - appeal allowed.
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2024 (12) TMI 1406
Refund of unutilised CENVAT credit - ‘exports’ under the Rule 6A of the Service Tax Rules, 1994 (Export Rules) - export of service without payment of service tax - rejection on the ground of being barred by limitation as per N/N. 14/2016-CE(NT) dated 01.03.2016 - whether the time limit of one year for filing the refund claim under Rule 5 of the Cenvat Credit Rules, 2004 is to be counted from (i) the date of receipt of foreign exchange, or (ii) the end of the quarter in which the foreign exchange is received, in cases where the refund claims are filed on a quarterly basis?
HELD THAT:- The Adjudicating Authority was satisfied with respect to the conditions required to be fulfilled under Rule 5 of Notification No. 14/2016-CE(N.T) except the condition of filing of the refund claim before the proper officer within one year from the date of receipt of payment in convertible foreign exchange. The only ground on which the Adjudicating Authority has rejected the refund claim is that the filing of the refund claim was not within one year from the date of receipt of the payment in convertible foreign exchange. The foreign convertible exchange is received by the appellant for the period January 2017 to March 2017 between 10.01.2017 to 09.03.2017, therefore, the last payment for the quarter was received on 09.03.2017.
It is found that for the exports of January 2017, FIRC was received on 10.01.2017, for exports in February 2017, FIRC was received on 10.02.2017, and for the exports in March, the FIRC was received on 09.03.2017, so for the quarter January to March 2017, the refund claim has to be filed before 31 March 2018, in the subject case appellant has filed refund claim on 28.03.2018, which is within one year from the quarter ending January-March 2017.
Conclusion - The one-year period for filing of the refund would commence from the end of the quarter January 2017 to March 2017, since the refund claims are filed on quarterly basis. The refund claim has been filed within one year from the end of the quarter January 2017 to March 2017 on 28.03.2018.
The rejection of the refund of Rs. 93,39,310/- is not tenable, and hence the appeal needs to be allowed - Appeal allowed.
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2024 (12) TMI 1405
Classification of services - Commercial or Industrial Construction Services or Works Contract Service - non-payment of service tax - recovery of service tax with interest and penalty - whether the appellant is required to discharge service tax during the period 16.05.2008 to 31.03.2008 in rendering services of the nature of interior works such as construction of partitions, false ceilings, plastering, tiling of floor and wall involved both material as well as service component?
HELD THAT:- The issue of levy of service tax on composite contracts for the period prior to 01.06.2007 involving both material as well as service, which is in the nature of ‘Works Contract Service’ is no more res integra and covered by the judgment of the Hon’ble Supreme Court in the case of Total Environment Building Systems Pvt. Ltd. Vs. Deputy Commissioner of Commercial Taxes [2022 (8) TMI 168 - SUPREME COURT] where it was held that 'The definition of Works contract inserted for the first time by virtue of Section 65(105)(zzzza) under the Finance Act, 2007 assumes significance and has to be applied w.e.f. 1st June, 2007. Thus, on and from the enforcement of the amendment in the Financial Year 2007, i.e. 1st June, 2007 the tax on the service component of works contract became leviable. Therefore, till then it was not so leviable as there was no concept of works contract under the said Act.'
Conclusion - There are force in the contention of the learned advocate for the appellant that for the period prior to 01.06.2007, Works Contract Service cannot be subjected to service tax levy. However, for the period after 01.06.2007, the services rendered by the appellant attracts service tax under Works Contract Service. Both sides fairly admit that to ascertain the liability for the period 01.06.2007 to 31.03.2008, the matter needs to be remanded to the adjudicating authority.
Appeal is allowed by way of remand.
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2024 (12) TMI 1404
Relevant date for calculation of interest on the refund of the deposit made under protest - to be calculated from the date of deposit or from the date specified under Section 11BB of the Central Excise Act, 1944? - applicability of provisions of Section 11B and 11BB of the Central Excise Act, 1944.
HELD THAT:- Merely because the petitioner was compelled to pay the amount of Rs. 22,93,439/-by the respondent prior to issuance of show-cause notice or adjudication, the principle of restitution would not be attracted in view of the subsequent event which has taken place of passing Order-in-original determining the demand of central excise duty with interest and penalty which had subsisted up to the order passed by the CESTAT allowing the appeal of the petitioner. Therefore, the contention raised on behalf of the petitioner that date of amount deposited by the petitioner under protest would have to be considered for claim of interest payable to the petitioner to consider the amount deposited as “deposit” as the said amount has thereafter been adjusted against outstanding demand which was quantified by the respondent-authority while passing the Order-in-original. Even the Commissioner (Appeals) upheld the Order-in-original and only after the CESTAT allowed the appeal of the petitioner, the petitioner was entitled to the refund of the amount duty which was adjusted form the amount deposited by the petitioner under protest.
This Court, in case of KAMAKSHI TRADEXIM (INDIA) PVT. LTD. AND 1 VERSUS UNION OF INDIA AND 1 [2017 (4) TMI 223 - GUJARAT HIGH COURT] following the decision of Ranbaxy Laboratories (Ltd) (supra), has held that from a bare reading of Section 11B (2) and 11BB of the Act, it is clear that if the concerned authority was satisfied on the claim of the applicant of refund, then the refund was to be paid within three months from the date of the receipt of the application for refund and if it was not so paid then interest had to be paid on it under Section 11BB of the Act.
The contentions raised on behalf of the petitioner that the petitioner is entitled to interest from that date of deposit made under protest in the year 2005 is incorrect as the refund was granted to the petitioner under section 11B of the Act and accordingly interest is rightly awarded under section 11BB of the Act.
Conclusion - Interest under Section 11BB of the Act becomes payable on the expiry of a period of three months from the date of receipt of the application under Sub-section (1) of Section 11B of the Act.
Thus, no interference is called for in the impugned orders passed by the Commissioner (Appeals) which is upheld by the CESTAT granting interest on refund as per section 11BB of the Act - petition dismissed.
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2024 (12) TMI 1403
Interest on delayed refund - whether the late reversal of Cenvat Credit attributes to the goods destroyed in fire and remission has been granted, the interest is chargeable for the delayed period in terms of Rule 14 of Cenvat Credit Rules, 2004? - HELD THAT:- From the plain reading of Rule 14, it can be seen that the interest was chargeable as per Clause 2 of Rule 14(1)(ii) only when the assessee not alone takes the credit but also utilize the same - In the present case as per the claim of the appellant they have maintained the accumulated Cenvat Credit, which is more than the Cenvat Credit which was required to be reversed. Therefore in terms of the above rule, the appellant are not required to pay the interest. This factual aspects needs to be verified by the original authority however, it is held that if it is found for the appellant have not utilized the Cenvat credit and maintained balance equal and above the Cenvat Credit reversed, they are not required to pay the interest.
Conclusion - The appellant is not required to pay interest on the late reversal of Cenvat Credit if it is verified that the credit was not utilized and the balance was maintained. Matter remanded for verification of the facts.
Appeal allowed by way of remand to adjudicating authority.
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2024 (12) TMI 1402
100% EOU - refund of unutilized CENVAT credit for High-Speed Diesel (HSD) used as fuel in their manufacturing activities - refund of the credit of Service Tax paid on Security Services utilized by the EOU.
Refund of unutilized CENVAT credit for High-Speed Diesel (HSD) used as fuel in their manufacturing activities - HELD THAT:- The issue regarding eligibility of the appellant in claiming refund of Rs. 25,80,768 paid by appellant while procuring HSD for their EOU is covered in favour of the appellant in their own case M/S. GEM GRANITES VERSUS COMMISSIONER OF CENTRAL EXCISE, BELGAUM [2016 (10) TMI 34 - CESTAT BANGALORE] where it was held that 'the Revenue's contention that in terms of definition of input given in Rule 2(k) of CENVAT Credit Rules, 2004 the appellants are not entitled to claim CENVAT credit, cannot be accepted, when the Notification No.22/2003 dated 31.3.2003 makes an EOU entitled to claim CENVAT credit on the procurement of HSD used as fuel.' - refund allowed.
Refund of the credit of Service Tax paid on Security Services utilized by the EOU - HELD THAT:- As held in large number of cases including in the case of THE COMMISSIONER, CUSTOMS AND CENTRAL EXCISE, HYDERABAD-IV VERSUS M/S. QUALCOMM INDIA PVT. LTD. [2021 (11) TMI 72 - TELANGANA HIGH COURT], once it is admitted as eligible credit and if the respondent has reason to believe that, it is wrongly availed, Respondent could have proceeded against the appellant under Rule 14 Cenvat Credit Rules, 2004 for the recovery of irregular CENVAT credit and not to adjudicate the same while processing the refund claim - refund allowed.
Conclusion - EOUs are entitled to claim CENVAT credit on HSD used as fuel and Service Tax on Security Services.
Appeal allowed.
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2024 (12) TMI 1401
Recovery of excess ITC - Seeking issuance of a writ in the nature of mandamus directing waiver from payment of the mandatory statutory pre-deposit of 10% of the disputed tax amount under Section 107 of the Central Goods & Services Tax Act, 2017 in order to enable the Petitioner to file an appeal - HELD THAT:- This Court has not examined the legislative scheme. However, at this stage, the Petitioner now prays that he may be given four weeks’ additional time to file the appeal.
Considering the fact that the issue as to whether any exemption, waiver or any reduction can be granted qua GST demands or not is yet to be adjudicated by this Court, it is deemed appropriate to permit the Petitioner, as a unique case, to file the appeal challenging both impugned orders, within a period of four weeks from today.
Petition disposed off.
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2024 (12) TMI 1400
Service of SCN - Challenge to impugned order on the ground that the said order has been passed pursuant to the Show Cause Notice which was not received by the Petitioner - Violation of principles of natural justice - HELD THAT:- In the present case, the affidavit dated 19th December, 2024 has been filed to the effect that the Show Cause Notice and the order dated 21st February, 2024 were not received on the registered email ID or physically - After having perused the said affidavit, this Court is of the view that following the earlier decisions passed by this Court, the Petitioner herein also deserves to be given an opportunity to reply to the Show Cause Notice.
The impugned order dated 21st February, 2024 is set aside - the matter is remanded back to the concerned Department for fresh consideration after providing an opportunity of hearing to the Petitioner - petition disposed off by way of remand.
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2024 (12) TMI 1399
Input tax credit - rectification of an inadvertent error in the GSTR-3B returns for the period 2018-19 - invocation of doctrine of necessity - HELD THAT:- It would be in the interest of justice to remand the matter back to the respondent-Authority so as to enable the petitioner to file appropriate application for entitlement to take Input Tax Credit in the returns filed under Section 39 of the GST Act as the returns are already filed by the petitioner within the prescribed time limit of 30th November, 2021.
The impugned Order-in-Original dated 04.04.2024 passed in Form GSTR DRC-07 is hereby quashed and set aside and the matter is remanded back to the respondent-Assessing Officer to pass afresh de-novo order after considering the application to be filed by the petitioner as per the provisions of Sections 16 (5) and 16 (6) of the GST Act in accordance with law - Petition disposed off by way of remand.
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2024 (12) TMI 1398
Challenge to order u/s 73 of the Central Goods and Services Tax Act, 2017 - statutory obligation of adjudicating authority u/s 73 (9) of the CGST Act to determine the tax - principle argument of the petitioner is that the procedure adopted by the ‘Proper Officer’ is unknown to law - HELD THAT:- The petitioner has different registration in the State of Telangana. Thus, the ‘Proper Officer’ of Telangana is an independent statutory authority and was under no obligation to wait for the outcome of the decision taken by the Maharashtra State GST Department. In the absence of determining the tax as per sub-Section 9 of Section 73, the impugned order is bad in law and ultra vires Section 73 (9) of the CGST Act.
Revenue submits that the impugned order, on this ground, may be set aside and the matter may be remitted back to the proper officer to decide it a fresh.
The impugned order dated 31.08.2024 is set aside and the matter is remanded back - Petition disposed off by way of remand.
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2024 (12) TMI 1397
Grant of statutory interest in terms of Section 56 of the Central Goods and Services Tax Act, 2017 on delayed refunds - refund application was originally rejected - applicability of Section 56 of the Act - HELD THAT:- The authority appears to harbour the view that since the refund application had come to be originally rejected, the provisions of Section 56 would not apply. The said view is clearly rendered untenable and appears to have been rendered in ignorance of the order dated 15 March 2023 pursuant to which the writ petition had itself come to be allowed and the orders passed by the respondent authorities quashed and set aside.
The mere fact that the order dated 15 March 2023 did not specifically allude to the provisions contained in Section 56 of the Act would also not detract from the right of the writ petitioner to claim interest which must be paid in terms of the statute itself. While allowing the writ petition, it is also observed that the application for refund would be examined and disposed of “in accordance with law”.
Conclusion - The petitioner is entitled to interest on the delayed refund as per Section 56 of the CGST Act, notwithstanding the initial rejection of the application.
Petition allowed.
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2024 (12) TMI 1396
Rejection of application for revocation of the Goods and Services Tax cancellation order - non-conducting of business at the declared place and issuing invoices without corresponding supply of goods or services - the appellate authority was convinced to dismiss the appeal solely on the ground that the GSTI had also alleged in its report that the address particulars which were mentioned were different from those which existed on their record - no proper reason for dismissal of application - violation of principles of natural justice - HELD THAT:- Once the site which was inspected and which was stated to be the place from where business was being carried on was found to be in conformity with the disclosures made in the original registration certificate, the order of the appellate authority is clearly rendered unsustainable.
It is ex facie apparent that apart from using the phrase “any supporting documents” and “others”, no further reason was assigned as to why the said application merited dismissal - The order of 29 February 2024 cannot be sustained.
Conclusion - In view of the fact that proper reason was not assigned as to why the said application merited dismissal, the order of the appellate authority dated 30 May 2024 as well as the order dated 29 February 2024 pursuant to which the revocation application came to be dismissed, are quashed.
Petition allowed.
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2024 (12) TMI 1395
Seeking to quash the impugned order - provisional attachment orders - no oral hearing in the matter was afforded to the petitioner - violation of principles of natural justice - HELD THAT:- It is evident that the respondent – Adjudicating Authority has failed to provide any opportunity of hearing to the petitioner though he has prayed in the written submissions - there is a breach of the principles of natural justice as held by the Hon’ble Apex Court in the case of WHIRLPOOL CORPORATION VERSUS REGISTRAR OF TRADE MARKS, MUMBAI & ORS. [1998 (10) TMI 510 - SUPREME COURT].
Conclusion - The impugned order is required to be quashed and set aside only on the ground of violation of the principles of natural justice by not providing opportunity of hearing as contemplated in Section 75 (4) of the CGST Act, more particularly, when the petitioner has prayed for such opportunity of hearing in the reply.
Petition disposed off by way of remand.
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