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Showing 301 to 320 of 1658 Records
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2024 (10) TMI 1358
Refund of SAD paid by them at the time of the import in terms of the Notification No. 102/2007-Cus. dated 17.09.2007 - Time Limitation - rejection of claim of the appellant only on this ground that the period of one year from the date of the payment of the SAD have not been followed by the appellant - HELD THAT:- The matter is no longer resintegra, as the Larger Bench of this Tribunal in case of M/S. AMBEY SALES VERSUS COMMISSIONER OF CUSTOMS, GRFL, SAHNEWAL, LUDHIANA [2024 (6) TMI 257 - CESTAT CHANDIGARH-LB] has decided the issue and it was held that 'The limitation of one year for filing a claim for refund of additional duty of customs paid on import of goods from the date of payment of additional duty would, therefore, not be applicable.'
The impugned Orders-In- Appeals are legally not sustainable and are set aside - appeal allowed.
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2024 (10) TMI 1357
Import of goods at concessional rate of duty - Process amounting to manufacture - assembly from the semi -knockdown condition to full TV - argument of the revenue is that the goods imported by the appellants are in semiknockdown condition - HELD THAT:- It is seen that what is being imported are not goods in semi -knockdown condition. All the goods imported are individual items separately classifiable under different headings. Learned counsel pointed out that they are buying many products from local market. However, even if that is not the case, assembly of Television from individual components to a full T.V is a process of manufacture. In fact, there are no evidence whatsoever of any imports under semi-knockdown condition as can be seen from the list declared by the respondents in their applicable.
There are no merit in the appeal filed by the revenue, and the same is dismissed.
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2024 (10) TMI 1356
Levy of penalty u/s 112(b)(ii) of the Customs Act, 1962 - Primary Gold of foreign origin from a secret cabinet - admissibility of the statement recorded under Section 107 of the Customs Act, 1962 - HELD THAT:- In this case, the statement of Shri Suman Chandra Paul, one of the Appellants, has been heavily relied upon by the ld. adjudicating authority in the impugned order to impose penalty on both the Appellants. Admittedly, the statement of Shri Suman Chandra Paul was recorded under Section 107 of the Customs Act, 1962 which is not an admissible piece of evidence as held by the Tribunal in the case of COMMISSIONER OF CUSTOMS (PREV.), LUCKNOW VERSUS SHEO SHANKER JAISWAL [2010 (2) TMI 1018 - CESTAT NEW DELHI] wherein it was observed 'The presence of injuries found on the driver during his medical examination on 9-6-07 also indicates that the statement of the driver had been recorded under duress. Moreover other than the statement of the driver, there is no corroborative evidence indicating that the sugar loaded in the truck was going to the smuggled into Nepal.'
Admittedly, in this case, the statement of Shri Suman Chandra Paul is not recorded on the authorization given by any officer of Customs in this behalf, by General or Special Order from the Principal Commissioner of Customs or Commissioner of Customs, to examine any person during the course of enquiry in connection with the smuggling of any goods. Therefore, the statement recorded from Shri Suman Chandra Paul is not an admissible evidence to implicate the Appellants in this case - the penalties imposed on both the Appellants are set aside.
Appeal allowed.
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2024 (10) TMI 1355
Classification of imported goods- Pran Lassi Drink (Yoghurt Flavoured) - to be classified under the CTH 22029030 or under CTH 04039090? - HELD THAT:- From the letter issued by the supplier, it is evident that the said goods imported by the appellant is internationally classified under the H.S. Code 0403.9090. It is observed that there is no finding in the impugned order against this submission made by the appellant. Accordingly, there are no reason to disagree with the classification adopted internationally for the said goods.
The classification of the said goods is no more res integra as the Hon'ble Madras High Court has examined the issue in the case of M/S. PARLE AGRO PVT. LTD., REPRESENTED BY ITS MANAGER, G. MADHAVAN VERSUS UNION OF INDIA, COMMISSIONER OF COMMERCIAL TAXES, GST COUNCIL [2023 (11) TMI 601 - MADRAS HIGH COURT] wherein it has been held that the appropriate classification of the goods would be under the Chapter Heading 04 and not under the Chapter Heading 22.
The Hon’ble Madras High Court has held that the goods, namely, “Flavoured Milk” do not fall under Chapter Heading 22 of the Customs Tariff Act, 1975 but would fall under the Chapter Heading 04. Therefore, relying on the decision of the Hon'ble Madras High Court, it is held that the appropriate classification of the goods namely, ‘Pran Lassi Drink’ imported by the appellant is under the Chapter Heading 04 and not under Chapter Heading 22. Thus, the demand of customs duty along with interest and penalty confirmed in the impugned order, by classifying the said goods under the Chapter Heading 22 is not sustainable and accordingly, the same is set aside.
The impugned order is set aside - appeal allowed.
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2024 (10) TMI 1354
Levy of composite penalty under Section 112(a) and 112 (b) and Section 114 AA of the Customs Act, 1962 - importation of old and used car by mis declaring the same as new car and it is a case of under valuation also - HELD THAT:- Admittedly in this case, it is a case of importation and penalty under Section 114 AA of the Customs Act can be imposed on account of fraudulent exports of the goods. In that circumstances, we hold that penalty under Section 114AA of the Customs Act cannot be imposed but in the impugned order penalty under Section 114 AA of the Act as proposed in the Show Cause Notice was also imposed but quantum penalty is not known.
As the quantum of penalty imposed on under Section 112(a) and 112(b) are not known and penalty under Section 114AA is not imposable on the appellant therefore, it is held that composite penalties imposed on the appellant are not sustainable. Accordingly, penalties imposed in both the cases are set aside.
The impugned orders qua imposing penalties under various provisions of the Customs Act, 1962 are set aside - Appeal allowed.
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2024 (10) TMI 1353
Maintainability of section 7 application - initiation of CIRP - existence of ‘debt’ and ‘default’ on the part of the Corporate Debtor - HELD THAT:- There is a disbursement against the consideration for time value of money and there is a clause for payment of interest. Further, the documents furnished show that it is receivables discounting with recourse basis. Thus, receivables sold under recourse basis will constitute a financial debt as per Section 5 (8)(e) of IBC Act.
It has been held by the Hon’ble Supreme Court in M/S. INNOVENTIVE INDUSTRIES LTD. VERSUS ICICI BANK & ANR. [2017 (9) TMI 58 - SUPREME COURT] as well as in MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT] after going through the Scheme of IBC, 2016 in depth in relation to an Application under Section 7 filed by a Financial Creditor as compared to the one filed under Section 9 by an Operational Creditor, that in relation to a Section 7 Application where there is an existence of a ‘financial debt’ and the default in excess of Rs. 1,00,00,000/-, this Tribunal is bound to admit the Application and as a consequence trigger the Corporate Insolvency Resolution Process (CIRP) and in relation to a Section 7 Application defence of set off or counter claim put forth by the Corporate Debtor cannot be considered as a dispute in relation to the Financial debt and default in relation to it. In the present case, it is clear that there is a default on the part of the Corporate Debtor for a sum exceeding Rs. 1 Crore.
The Applicant / Financial Creditor has proved that there is a ‘debt’ and ‘default’ on the part of the Corporate Debtor and hence in term of Section 7(5) of IBC, 2016, the present application is required to be admitted and Corporate Insolvency Resolution Process as against the Corporate Debtor is required to be initiated.
Application admitted - moratorium declared.
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2024 (10) TMI 1352
Grant of regular bail - Money Laundering - proceeds of crime - scheduled offence - offence of cheating and criminal conspiracy - It was held by High Court that 'It is an organized crime having various facets of its complexion, therefore, further considering the provisions of Section 45 of the PMLA, 2002 this Court is satisfied that there are reasonable grounds for believing that the applicant is involved in the offence and he is likely to commit any other offence while on bail, it is not required to grant bail to the applicant.' - HELD THAT:- Applications for exemption from filing c/c of the impugned judgment, official translation and permission to file additional documents/facts/annexures are allowed.
Issue notice returnable on 29th November, 2024.
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2024 (10) TMI 1351
Seeking grant of Regular bail - creating fraudulent documents for availing LC facility from the banks - manipulating accounts to inflate stock-in-transit and create bogus debtors - Section 447 of Companies Act, 2013 and Sections 409, 467, 468, 471, 120B IPC - HELD THAT:- It is noted that the investigation was initiated in the year 2019 and the prosecution has named 156 accused persons and cited 82 witnesses. There are 2.5 lac pages of documents which need to be analysed. Learned Special Judge took cognizance of the supplementary chargesheet vide order dated 26.07.2024. It is also observed that in the supplementary complaint dated 08.03.2024, permission was taken by the ED under Section 173 (8) Cr.P.C. for further investigation into the matter. As such, the Trial is yet to commence.
When there are multiple accused persons, lacs of pages of evidence to assess, scores of witnesses to be examined, the trial is not expected to end anytime in the near future. Importantly, the delay being not attributable to accused, keeping the accused in custody by using Section 45 PMLA as a tool for incarceration is not permissible. Flow of liberty cannot be dammed by Section 45 without taking all other germane considerations into account. It is the duty of Constitutional Courts to champion the constitutional cause of Liberty and uphold the majesty of Article 21.
Moreover, as repeatedly held, Constitutional Courts can always exercise their powers to grant bail on the grounds of violation of Part III of the Constitution of India and stringent provisions for the grant of bail such as those provided in Section 45 of the PMLA do not take away the power of Constitutional Courts to do so. The right of liberty and speedy trial guaranteed under Article 21 is a sacrosanct right which needs to be protected and duly enforced even in cases where stringent provisions have been made applicable by way of special legislation. The stringent provisions would have to be interpreted with due regard to Article 21 and in case of a conflict, the stringent provisions, such as section 45 of the PMLA in the instant case, would have to give way.
In the present cases, both the applicants were arrested on 11.01.2024. They have been in custody since more than 9 months. Moreover, the trial in the predicate as well as the present complaint is yet to commence and would take some time to conclude. It is also pertinent to note that the main accused and other similarly placed co-accused persons have been enlarged on bail - No evidence has been led to show that the present applicants are a flight risk. In fact, records would show that both the applicants have joined investigation on multiple occasions. There is no incident alleged by the respondent wherein the applicants have tried to tamper with evidence or influence witnesses.
Considering the totality of the facts and circumstances, the fact that the main accused are out on bail, the period of custody undergone and that the trial is yet to commence, it is directed that both the applicants be released on regular bail subject to them furnishing a personal bond in the sum of Rs. 1,00,000/- with one surety of the like amount each to the satisfaction of the concerned Jail Superintendent/concerned Court/Duty J.M. and subject to fulfilment of conditions imposed - bail application allowed.
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2024 (10) TMI 1350
Challenge to Notification Nos. 14/2017-ST, 15/2017-ST and 16/2017-ST all dated 13 April 2017 issued by respondent no. 1 and Circular No. 206/4/2017-ST dated 13 April 2017 issued respondent no. 2 - liability to pay Service-tax under the Reverse Charge Mechanism on Ocean Freight paid by the petitioner on import of the goods - HELD THAT:- The challenge to these very notifications and circular had come up for consideration before the Gujarat High Court in case of MESSRS SAL STEEL LTD. & 1 OTHER (S) VERSUS UNION OF INDIA [2019 (9) TMI 1315 - GUJARAT HIGH COURT], and by a detailed judgment, in paragraph 58, the said notifications and the circular were quashed.
In view of thereof, the impugned Notification Nos. 14/2017-ST, 15/2017-ST and 16/2017-ST all dated 13 April 2017 issued by respondent no. 1 and Circular No. 206/4/2017-ST dated 13 April 2017 issued respondent no. 2 are hereby quashed and set aside.
Petition disposed off.
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2024 (10) TMI 1349
Liability of appellant to discharge the service tax under reverse charge mechanism - transportation of imported goods by a vessel (Ocean Freight) from the place outside India to custom station in India - HELD THAT:- This issue is no longer res-integra as the same is settled by the Hon’ble Gujarat High court in the case of MESSRS SAL STEEL LTD. & 1 OTHER (S) VERSUS UNION OF INDIA [2019 (9) TMI 1315 - GUJARAT HIGH COURT] wherein the Hon’ble high court has held that 'The Notification Nos. 15/2017- ST and 16/2017-ST making Rule 2(1)(d) (EEC) and Rule 6(7CA) of the Service Tax Rules and inserting Explanation-V to reverse charge Notification No.30/2012-ST is struck down as ultra vires Sections 64, 66B, 67 and 94 of the Finance Act, 1994; and consequently the proceedings initiated against the writ applicants by way of show cause notice and enquiries for collecting service tax from them as importers on sea transportation service in CIF contracts are hereby quashed and set aside.'
Following the above judgment, in another case of COMMISSIONER OF SERVICE TAX, AHMEDABAD VERSUS KIRI DYES AND CHEMICAL LIMITED [2023 (3) TMI 1400 - CESTAT AHMEDABAD], this Tribunal held that ocean freight is not taxable.
In the present case the demand on ocean freight is not sustainable. Hence, the impugned order is set aside - Appeal allowed.
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2024 (10) TMI 1348
Short payment of service tax - interest for the delayed payment of service tax - Penalty - Maintenance & Repair Service - Man Power Recruitment & Supply Agency Service - extended period of limitation - non-application of mind - violation of principles of natural justice - HELD THAT:- The Original Authority has determined the tax due from the appellant to be less than the amount claimed to be payable by the appellant as per the calculation chart submitted by the appellant, and paid by them. Having noted so he went on to invoke the extended period of limitation, demanded interest and also imposed penalties under Section 77 and 78 of the Act. The order in original only shows non application of the mind by the adjudicating authority. It seems that adjudicating authority has recorded all the finding in the matter just to justify imposition of penalty.
Both the authorities below have misdirected themselves as there was no contest by the appellant to the invocation of the extended period or the demand of service tax. Appellant has suo motto computed the service tax due and has paid the said amount. He made the submission to this effect before the original authority and also before the appellate authority. He also deposited the interest due as has been noted by the First Appellate authority. He also pleaded his lack of knowledge and status as petty contractor not having means to understand the complexity of taxation of services. Both the authority agreed to these submissions and have still gone on to impose heavy penalties under Section 77 and 78 of the Finance Act, 1994.
Taking note of undisputed findings with regards to status of appellant and his compliance even before the adjudication/ appellate proceeding has been concluded there are no justification for not having considered extending the benefit of Section 80 of the Finance Act, 1994 and waiving of all the penalties imposable on the appellant.
There are no merits in the impugned order to the extent it is in relation to the penalties imposed on the appellant. This is a fit case where penalties imposable under Section 77 and 78 should have been waived in terms of provisions of Section 80 of the Finance Act, 1994 - appeal allowed in part.
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2024 (10) TMI 1347
Recovery of service tax with interest and penalty - quantification of service tax liability and deductions claimed by the appellant - suppression of taxable value - HELD THAT:- Interestingly, appellant in the present case even before the Original Authority also did not contested anything in the show cause notice except for certain computations.
The appellant do not dispute the liability to pay the service tax and has in fact admitted the liability to pay the service tax. In view of the admission of liability to pay the service tax as per show cause notice, we are left with only one issue. Appellant has before the original authority submitted a calculation chart computing the tax liability. However no supporting document were produced before the adjudicating authority. When the said chart was sent for verification to the range office, appellant had failed to produce any of the supporting documents and the said chart could not be verified for its correctness.
As appellant has not produced any document to establish their claim for further deduction of Rs 40,896.45/- paid a service tax by Hindalco, the said deduction has not be allowed by the authorities below. No such document evidencing payment of this amount as service tax by Hindalco to appellant has been produced before us, hence we do not find any merits in this claim also. In view of the specific admissions made by the appellant, there are no infirmities in the impugned order.
There are no merits in this appeal - appeal dismissed.
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2024 (10) TMI 1346
Levy of service tax on Business Support Service - Denial of CENVAT Credit on club membership renewal fees in terms of Rule 2(l) of the CENVAT Credit Rules, 2004 - Suo-Moto recredit to the CENVAT account taken on account of service tax paid twice or in excess of the service tax liability done without documentary evidence as prescribed under Rule 9 of the CENVAT Credit Rules, 2004 - Imposition of penalty for non-payment of Service Tax under the category of “Intellectual Propery Service other than copyright” - time limitation.
Levy of service tax on Business Support Service - HELD THAT:- The appellant and EPML were operating in two completely different products and were catering to two completely different sets of customers. As such, EPML could not have outsourced the activities of evaluation of prospective customers, processing of purchase orders and fulfilment of services to the Appellant, as alleged in the impugned Show Cause Notice. Moreover, the exports were not being made by the appellant to its own goods and accounting of the same was made in the books of the appellant only. It is an admitted position in the impugned order that none of the parties were undertaking the export of goods manufactured by the other. Therefore, by exporting its own goods, the appellant has not provided any kind of support service to EPML, but the same is to themselves only.
The appellant was not undertaking the activity of evaluation of prospective customers, processing of purchase orders or fulfilment of service as the Appellant and EPML were dealing in varied products and were catering to varied customers - the activity of export of goods by the appellant through their group company viz. EPML cannot be termed as “business support service”. Therefore, on merit, the appellant is not liable to pay Service Tax under the said category. Accordingly, the demand of Rs.1,54,77,549/- under the category of ‘Business Support Service’, is dropped.
Denial of CENVAT Credit on club membership renewal fees in terms of Rule 2(l) of the CENVAT Credit Rules, 2004 - HELD THAT:- In this case, the charges paid by the Appellant were towards corporate club membership which were used for organising meeting with various stakeholders viz., promoters, distributors and vendors in order to carry out sales promotion activities - the appellant is entitled to avail CENVAT Credit on club membership renewal fees. Hence, the CENVAT Credit of Rs.82,400/- cannot be denied to the appellant.
Suo-moto recredit to the CENVAT account without documentary evidence - HELD THAT:- The the appellant is entitled to avail CENVAT Credit on club membership renewal fees. Hence, the CENVAT Credit of Rs.82,400/- cannot be denied to the appellant.
Imposition of penalty for non-payment of Service Tax - HELD THAT:- The appellant has paid the entire amount of tax along with interest before issuance of the Show Cause Notice upon being pointed out by the audit. In these circumstances, no penalty is imposable on the appellant. Accordingly, the penalty of Rs.1,49,822/- imposed against the appellant is dropped.
Time limitation - HELD THAT:- The fact is noted that periodical audits took place from time to time, at the premises of the appellant. Therefore, the Show Cause Notice issued on 15.12.2016 for the period 2011-12 is barred by limitation. Hence, the appellant also succeeds on the ground of limitation.
The impugned order is set aside - appeal allowed.
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2024 (10) TMI 1345
Extended period of limitation - suppression of facts or not - liability of sub-contractor - to pay Service Tax on supply of labour services - manpower recruitment or supply agency service - revenue neutarlity - HELD THAT:- The Circular No.96/7/2007-S.T. dated 23.08.2007 has been issued clarifying that sub-contractors are required to pay Service Tax even when the main contractor has paid Service Tax on the entire amount, since the sub-contractor will be eligible to take CENVAT Credit thereon. Accordingly, it is observed that after 23.08.2007, sub-contractors are liable to pay Service Tax even if the main contractor pays the Service Tax on the entire amount.
There was confusion prevalent on this issue. The Board had also issued a clarification dated 14.09.1997 wherein it had been clarified that sub-contractors were not liable to pay Service Tax when the main-contractor had paid Service Tax on the entire amount as the issue involved is revenue neutral. Only after issue of the Circular dated 23.08.2007 by the Board, the doubt about the liability to Service Tax of the sub-contractor has been clarified. However, may service providers continue to adopt the old practice of non-payment of service tax treating the issue as revenue neutral.
In the present case, it is observed that the Appellant had entered into the agreement in the year 2004 and the main contractor had been paying Service Tax. The Appellant has not paid service tax on the amount received by them as a sub-contractor and no objection was raised at any point of time - the suppression of facts with intention to evade the tax has not been established in this case. For the same reason, the penalty under Section 78 of the Finance Act, 1994 is not imposable on the Appellant.
The demand of Service Tax by invoking the extended period of limitation is not sustainable. Accordingly, the impugned order is set aside and the matter remanded back to the adjudicating authority for the purpose of calculating the Service Tax liability for the normal period of limitation, if any. The Appellant is liable to pay service tax along with interest for the normal period of limitation.
The demand raised by invoking the extended period of limitation is not sustainable. The demand of service tax, if any, along with interest is upheld for the normal period of limitation - matter is remanded back to the adjudicating authority for calculating the Service Tax liability for the normal period of limitation, if any - appeal allowed by way of remand.
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2024 (10) TMI 1344
Payment of differential service tax - Cleaning Services - allegation in the SCN and the impugned order is general in nature and there is no specific allegation which warrants levy of Service Tax - HELD THAT:- The case at hand shows that the SCN was issued on assumptions and presumptions and hence cannot be sustained. A similar matter was examined by a Division Bench of this Tribunal, in Balaji Insulations India Pvt. Ltd. [2024 (6) TMI 771 - CESTAT MUMBAI] which covers the legal issues involved in this case, where it was held that 'while determining value of taxable service under Section 67 ibid, such aspect as to the activities which are covered by negative list and activities which are mentioned in the definition of service as those which are not covered by such definition becomes important'.
It is a well-accepted norm of judicial discipline that a Bench of lesser quorum / strength should follow the view taken by Bench of larger quorum / strength, in a case whose ratio covers the legal issue involved in the impugned lis, more so when it is based on the precedence of earlier judgments on the matter. Having found the impugned order to be based on assumptions and presumptions without examining the books of accounts etc. and is liable to be set aside, the question of extended period, penalty etc. does not arise.
The impugned order is set aside - appeal allowed.
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2024 (10) TMI 1343
Non-payment of differential tax - short reporting of taxable services - whether in the facts of the case, the credit claimed to have been adjusted against the service tax liability by the appellant can be allowed or otherwise? - HELD THAT:- In the facts of the case, it is obvious that they are not disputing the liability as such and infact they have paid certain amount through challan way back in 2016 itself i.e. much before the detection of non-payment by the Audit Team. Therefore, there was no intention as such not to pay the service tax liability on the said unreflected amount of provision of services. Apparently, they were under the impression that the Cenvat Credit accrued to them would automatically get adjusted against the total liability and they have to discharge only on the net liability by way of challan payments. Admittedly, they made such adjustment during relevant period without reflecting all these transactions in the ST-3.
Since, the factual matrix is not very clear and the appellant will be required to demonstrate the actual availability of credit and its adjustment in their books of accounts, this requires to be remanded back to the Original Jurisdictional Authority, who shall go through the books of accounts, IT Returns and any other relevant documents which the appellants may like to produce in support of their legitimate Cenvat Credit and its adjustment. However, it is made clear that non-mentioning of the said credit in the ST-3 would not debar them from off setting or adjusting the said credit towards total liability - Adjudicating Authority should also see whether this credit has been otherwise not been used in discharge of liability for any other services during the relevant period or got transited to GST Regime with effect from approved date. Subject to such verification available credit would be admissible for adjustment towards outstanding liability.
The order of the Commissioner (Appeals) is set aside and the matter is remanded back to the Original Jurisdictional Authority for fresh adjudication - Appeal allowed by way of remand.
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2024 (10) TMI 1342
Levy of service tax - Director’s remuneration in the form of commission as per percentage of total profit of the company - reverse charge mechanism - HELD THAT:- There is no dispute that director was paid the commission amount as a part of director’s remuneration and the amounts paid as salary and on such amount the TDS was also deducted under the salary head. Therefore, any amount paid to the director in the form of director’s remuneration which is commission of company’s profit, the same is not chargeable to service tax under reverse charge basis as held in the case of ALCHEMIE ORGANICS VERSUS C.C.E & S.T. -VALSAD [2024 (6) TMI 1413 - CESTAT AHMEDABAD] where it was held that 'it is clarified that remunerations paid to Managing Directors/Directors of companies whether whole-time or independent when being compensated for their performance as Managing Directors/Directors would not be liable to service tax.'
Thus, it is settled law that any commission from the profit of the company paid to the director as director remuneration is not liable to the service tax under reverse charge basis.
The impugned order is not sustainable, hence, the same is set aside, appeals are allowed.
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2024 (10) TMI 1341
Appropriate interest for the delay of rebate to the petitioner - Section 11BB of the Central Excise Act, 1944 - HELD THAT:- In the light of the undisputed fact that the respondent did not grant refund in favour of the petitioner within the maximum prescribed period of three months from the date of the petitioner submitting the refund claim in relation to the amount rejected in the first instance by the respondent which was allowed/granted in favour of the petitioner - the respondent would be liable to pay interest on the refund allowed vide order dated 06.02.2023 in revision order No.46/2023 – CX.
The respondent is directed to grant interest in terms of Section 11BB of the Central Excise Act, 1944 in favour of the petitioner on the amount of refund as directed in revision order No.46/2023 – CX dated 06.02.2023 from 09.02.2017 till the date of payment within a period of eight weeks from the date of receipt of a copy of this order - Petition allowed.
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2024 (10) TMI 1340
CENVAT credit of the duty paid on the materials and capital goods used for fabrication, erection and commissioning of both the paint shops on turn key basis - immovable property embedded to earth and ceiling are not excisable goods - scooter and motorcycle plants was wrongly taken and irregularly utilized by them - interest at the appropriate rate leviable on the amount availed wrongly and utilized irregularly - penal action for the act of omission and commission under the provision of the Central Excise Act, 1944.
HELD THAT:- The proposed questions of law, however, stand finally adjudicated and decided in favour of the assessee by this Court vide judgment dated 12.01.2024, in COMMISSIONER, CENTRAL EXCISE COMMISSIONERATE, SONEPAT (DELHI-III) VERSUS M/S. ULTRATECH CEMENT LTD. [2024 (1) TMI 959 - PUNJAB AND HARYANA HIGH COURT] wherein, this Court has held 'The view taken as such was that the amendment could only operate prospectively which was made in the Cenvat Credit Rules, 2004 which came into force from 07.07.2009 and in such circumstances the benefit had been granted regarding the issue of the structures which are embedded to the earth and whether the structures were to be treated as inputs used in final products as input for capital goods.'
This Court has rejected the appeal on limitation. However, since the delay is condoned, the appeal on limitation is not dismissed. As no substantial question of law worth examining left in the present appeal, the same is accordingly dismissed.
Appeal dismissed.
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2024 (10) TMI 1339
CENVAT Credit - construction, consultancy, repair, and maintenance services - nexus with manufacturing activity - for what purpose and in connection with which plant/factory, the Appellant had availed those credits? - HELD THAT:- There is no denial of the fact that Appellant had replied back to the show-cause notice almost after a year on dated 10.09.2015 when physical hearing was last scheduled to 22.09.2015. On going through the reply to the show-cause notice but no reference is made in the said reply that the new plant is located away from the present factory of the Appellant, though a distinction between ‘plant’ and ‘factory’ was attempted therein. It is apparently for this reason that learned Commissioner, after conclusion of physical hearing had issued a letter to the Appellant on dated 09.10.2015 seeking its response on the location where services were provided and the place where setting of new plant was progressing and the activities to be undertaken in the same plant. The reply though receipt after passing of the order by the Commissioner, going by its content as available in page 25 to 28 of the appeal memo, it can be considered as a cryptic reply for the reason that para 2.3 of its reply letter reveals that the plant was still in proposal stage which can be considered as forward integration.
Further, it is also noticed that Appellant has indicated that they were in the process of expanding their existing sponge iron plant capacities in village Salav but there is nothing mentioned about proposed plants in other two villages namely Nidhi and Mithekhar Village. This being fact on record and when annexure 8 i.e. copy of the letter received from the Ministry of Environment & Forest issued on dated 27.01.2011 speaks about conditionalities for setting of the plant and the reply letter in response to Commissioner’s query issued in November, 2015 indicates that new proposed plant was not completed by that time, which could be treated as forward integration of their existing plant, availment of credits on those inputs by the end of 2012 claimed to have been used in the proposed plant and not in a functional plant without proof of forward integration of the existing plant covering three villages is irregular and not in conformity to the CENVAT Credit Rules, 2004.
The order passed by the Principal Commissioner of Central Excise, Customs & Service Tax, Raigad is hereby confirmed - Appeal dismissed.
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9911796707
