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Showing 121 to 140 of 1292 Records

• 2024 (1) TMI 1172 - CESTAT AHMEDABAD
  

  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 - CESTAT CHENNAI
  

  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 - CESTAT CHENNAI
  

  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 - CESTAT CHENNAI
  

  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 - CESTAT ALLAHABAD
  

  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 - AUTHORITY FOR ADVANCE RULINGS CUSTOMS, MUMBAI
  

  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 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
  

  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 1700 - 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 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
  

  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 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI - LB
  

  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 - CESTAT AHMEDABAD
  

  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 - CESTAT AHMEDABAD
  

  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 - CESTAT MUMBAI
  

  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 - CESTAT CHENNAI
  

  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 - CESTAT MUMBAI
  

  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 - JHARKHAND HIGH COURT
  

  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 - CESTAT AHMEDABAD
  

  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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• 2024 (1) TMI 1156 - CESTAT AHMEDABAD
  

  Levy of penalty u/r 26 of Central Excise Rules, 2002 - appellant being Director of M/s. Senor Metal Pvt Ltd Supplied the raw material clandestinely to M/s. Silver Techno cast who inturn manufactured and cleared their final products clandestinely - witnesses were not cross-examined - violation of principles of natural justice - HELD THAT:- From the statement of partner of M/s. Silver Techno Cast it is clear that though the appellant companies M/s. Senor Metal Pvt Ltd has been stated as supplier of the goods but as regards the supplies made without payment of duty the name of M/s. Senor Metal Pvt Ltd is not appearing which shows that all the supply is made by appellant’s company is under invoice and no clandestine removal was made. It is found that though the employee of the appellant company admitted to supply the goods but no quantity, value or payment thereof was brought on record as evidence. Therefore, mere verbal admission will not help the revenue.

  The appellant’s company M/s. Senor Metal Pvt Ltd is an excisable unit liable to pay excise duty it is worth to note that despite making charge that the appellant company has supplied the goods without issuing invoice which means without payment of duty no action was taken by the department for payment of duty from M/s. Senor Metal Pvt Ltd This also strengthen the case of the appellant that no clandestine goods removal of the M/s. Senor Metal Pvt Ltd was established.

  It is further found that when the appellant has seriously objected the charge of supply of goods by M/s. Senor Metals without issuing invoice to M/s. Silver Techno cast the adjudicating authority was duty bound to cross examine the employee of the M/s. Senor Metal Pvt Ltd to admit his statement as evidence which is required under Section 9 (d) of Central Excise Act, 1944 without cross examine the witness his statement cannot be relied - the department could not establish case of removal of goods by M/s. Senor Metal Pvt Ltd Without issuing invoices to M/s. Silver techno cast. Accordingly, there is no case of abetment of evasion of duty by the present appellant. Hence, the penalty is not sustainable.

  Appeal allowed.

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• 2024 (1) TMI 1155 - CESTAT KOLKATA
  

  Clandestine removal - suppression of production, under valuation and clandestine clearance of sponge iron - demand confirmed on the basis of computer printouts seized from the Appellant’s premises - under valuation - difference between RG-1, Daily Production and Consumption of Material Report and Daily Stock Tally Report - penalties.

  Demand of Rs.32,36,758/- has been confirmed on the basis of the details available in the computer print-out - HELD THAT:- The Appellant stated that the computer print-out recovered from their office does not belong to them. It belonged to one Mr.Sanjay Bhalotia, a trader having business relationship with the Appellant. It is found that the said Sanjay Bhalotia through an affidavit dated 24.01.2008 claimed that those papers belonged to him and he had inadvertently left those papers on the table of Nimananda Pradhan on 19.05.2006 when he had visited the Appellant’s Office about an hour before the search by DGCEI - the statement dated 18.02.2009 has no evidentiary value as the Appellant has not been informed about the contents of the statement. Without sharing it with the Appellant, it cannot be used against him. Accordingly, the statement dated 18.02.2009 cannot be taken to into cognizance.

  Demands of Rs.32,36,758/- and Rs 3,37,080/- have been worked out on the basis of the details available in the computer sheets recovered from the office of the Appellant - HELD THAT:- The department has not followed the mandate under section 36B and the author of the entries made in the computer printout has not been identified. Accordingly, it is observed that the computer sheets recovered cannot be relied upon to work out the duty liability on the allegation of clandestine removal. As the demands mentioned at Sl. no (i) and (ii) of para 2 has been confirmed solely based on the data available in the computer print outs, the demand of Rs. 32,36,758/- and Rs 3,37,080/-confirmed only on the basis of computer print-outs seized from the Appellant’s premises is not sustainable and accordingly, the same is set aside.

  Demand of Rs. 18,37,986/- confirmed on the basis of difference between RG-1, Daily Production and Consumption of Material Report and Daily Stock Tally Report - HELD THAT:- In this case, the shortages have been arrived at on the basis of the registers maintained by the Appellant themselves. The reasons for the discrepancies have to be explained by the Appellant only, as they are the authors of the entries made in the Registers. However, the Appellant could not give any valid explanation for the shortages. Thus, the discrepancies in the registers itself is sufficient to corroborate the clandestine clearance. Accordingly, the demand of Rs. 18,37,986/-confirmed on the basis of difference between RG-1, Daily Production and Consumption of Material Report and Daily Stock Tally Report, is sustainable. The Appellant is liable to pay this duty along with applicable interest. As the Appellant has suppressed the actual production with an intention to evade payment of duty, they are liable for penalty equivalent to the duty evaded under Section 11AC of the Central Excise Act, 1944 read with Rule 25 of the Central Excise Rules, 2002.

  Penalty on the Director, Sh.C.S.Grewal - HELD THAT:- It is observed that only part of the demand confirmed in the impugned order is held to be sustainable. Hence, the penalty can be imposed only in proportion to the demand confirmed. Accordingly, the penalty imposed on the Director Shri. C.S. Grewal from Rs. 10,00,000/- reduced to Rs. 2,00,000/-.

  Penalty imposed on Mr. Nimananda Pradhan, Manager - HELD THAT:- The incriminating documents recovered have been found to be not reliable and the demand confirmed based on the document has been held as not sustainable. Hence, the penalty imposed on the Manager on that basis of these documents also will not survive. Accordingly, the penalty imposed on Shri. Nimananda Pradhan is set aside.

  Penalty imposed on Sh. R.S. Pandey, DGM, as the head of production - HELD THAT:- It is observed that he is an employee of the company. His duty is to carry out the work as ordered by the management. He has accounted the production as advised by the Director of the company. In a family based private limited company, the Director is the ultimate beneficiary of the illegal activities. The Director has already been held responsible for the short accountal of sponge iron and penalty has been imposed on him. Thus, Mr. R.S.Pandey, DGM being employee of the company is not liable for penalty and accordingly the penalty imposed on him is set aside.

  Appeal disposed off.

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• 2024 (1) TMI 1154 - GUJARAT HIGH COURT
  

  Maintainability of Revision application GVAT Tribunal - Cancellation of registration of the petitioner with retrospective effect - whether the Revision Application filed by the petitioner under Section 75(1)(b) of the VAT Act would be maintainable before the Tribunal when the order for cancellation of registration is passed by the Deputy Commissioner under Section 27(5)(i) of the VAT Act? - HELD THAT:- It is also not in dispute that the Deputy Commissioner passed the order under Section 75(1)(a) of the VAT Act under the delegated powers of the Commissioner. That means, the Deputy Commissioner has exercised the powers of Commissioner under Section 75(1)(a) of the VAT Act. Therefore, considering the provision of Section 75(1)(b) of the VAT Act, any application made to the Tribunal against an order of the Commissioner is to be treated as Revision and would be maintainable before the Tribunal only.

  The Tribunal was not justified in holding that the Revision Application filed by the petitioner against the order passed by the Deputy Commissioner under Section 27(5)(i) read with Section 75(1)(b) of the VAT Act is not maintainable in view of provision of Section 73 of the Act because, as per Section 73, an Appeal of every original order not being an order mentioned in Section 74 passed under the Act is maintainable - In the facts of the case, the order passed by the Deputy Commissioner is not an original order but is a revisional order under Section 75(1)(a) of the VAT Act and therefore, Appeal under Section 73 would not be maintainable, but only Revision before the Tribunal under Section 75(1)(b) of the VAT Act would be maintainable.

  The impugned order passed by the Tribunal is hereby quashed and set aside and the matter is remanded back to the Tribunal for considering the Revision Application No. 59 of 2021 on merits - Petition allowed by way of remand.

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• 2024 (1) TMI 1153 - SUPREME COURT
  

  Grant of default bail under Section 167(2) Cr.P.C. - criminal conspiracy to cheat the consortium of 17 banks led by Union Bank of India - induced the consortium banks to sanction huge loans - siphoning off of the funds - investigation qua some of the accused named in the FIR was pending, though the report under sub-section (2) of Section 173 (Chargesheet) against respondents along with the other accused was filed within the prescribed time limit - cognizance of the offence was taken by the special court before the consideration of the application of the respondents seeking default bail under Section 167 (2) Cr.P.C.

  HELD THAT:- There cannot be any disagreement with the well settled legal position that the right of default bail under Section 167(2) Cr.P.C. is not only a statutory right but is a right that flows from Article 21 of the Constitution of India. It is an indefeasible right, nonetheless it is enforceable only prior to the filing of the challan or the chargesheet, and does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to the accused after the filing of the challan.

  In SURESH KUMAR BHIKAMCHAND JAIN VERSUS STATE OF MAHARASHTRA & ANR. [2013 (2) TMI 821 - SUPREME COURT] the appellant-accused had sought default bail under Section 167(2) on the ground that though the chargesheet was filed within the stipulated time, the cognizance was not taken by the court, for want of sanction to prosecute the accused. The court dispelling the claim of the accused held an investigating authority fails to file the charge-sheet within the stipulated period, the accused is entitled to be released on statutory bail. In such a situation, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court trying the offence, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Section 309 CrPC. The two stages are different, but one follows the other so as to maintain a continuity of the custody of the accused with a court.

  There remains no shadow of doubt that the statutory requirement of the report under Section 173 (2) would be complied with if the various details prescribed therein are included in the report. The report under Section 173 is an intimation to the court that upon investigation into the cognizable offence, the investigating officer has been able to procure sufficient evidence for the court to inquire into the offence and the necessary information is being sent to the court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175 (5). As settled in the afore-stated case, it is not necessary that all the details of the offence must be stated.

  The benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to the offender only when a chargesheet is not filed and the investigation is kept pending against him. Once however, a chargesheet is filed, the said right ceases. It may be noted that the right of the investigating officer to pray for further investigation in terms of sub-section (8) of Section 173 is not taken away only because a chargesheet is filed under sub-section (2) thereof against the accused - Once from the material produced along with the chargesheet, the court is satisfied about the commission of an offence and takes cognizance of the offence allegedly committed by the accused, it is immaterial whether the further investigation in terms of Section 173(8) is pending or not. The pendency of the further investigation qua the other accused or for production of some documents not available at the time of filing of chargesheet would neither vitiate the chargesheet, nor would it entitle the accused to claim right to get default bail on the ground that the chargesheet was an incomplete chargesheet or that the chargesheet was not filed in terms of Section 173(2) of Cr.P.C.

  There are no hesitation in holding that the chargesheet having been filed against the respondents-accused within the prescribed time limit and the cognizance having been taken by the Special Court of the offences allegedly committed by them, the respondents could not have claimed the statutory right of default bail under Section 167(2) on the ground that the investigation qua other accused was pending. Both, the Special Court as well as the High Court having committed serious error of law in disregarding the legal position enunciated and settled by this Court, the impugned orders deserve to be set aside and are accordingly set aside.

  Appeal allowed.

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