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Showing 401 to 420 of 1687 Records
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2023 (9) TMI 1287
Eligibility to claim benefit of SVDRS - Valuation under SVLDR Scheme - quantification of the demand on/or before 30th June, 2019, being the cut-off date specified in the SVLDR Scheme - HELD THAT:- Clause (e) of Section 125(1) of the SVLDR Scheme provides for disqualification of a person who has been subjected to an enquiry or investigation or audit and the amount of duty involved in the said enquiry or investigation or audit has been quantified on/or before 30th June, 2019. In the present case, the Petitioner was subjected to audit vide letter dated 10th July, 2018 issued by Respondent No. 4. However, the amount of duty involved in the said audit was not quantified on/or before 30th June, 2019.
There is no quantification of duty by the Petitioner in the letter dated 27th May, 2019. This is fortified by a letter dated 24th October, 2019 addressed by the Additional Commissioner to the Petitioner wherein there is further reference to letter dated 3rd October, 2019 and it is stated that the Petitioner has not agreed to the payment of tax/duty along with interest and penalty. These two letters of 3rd October, 2019 and 24th October, 2019 are addressed much after the cutoff date of 30th June, 2019. The quantification of duty happened only on the issuance of the show cause notice dated 14th January, 2020 which also falls after the cut-off date of 30th June, 2019.
The Petitioner was thus disqualified as per clause (e) of Section 125(1) of SVLDR Scheme to make a declaration since in the Petitioner’s case there has not been a quantification before the cut-off date. Section 121(r) defines “quantified” to mean a written communication of the amount of duty payable under the indirect tax enactment. In the instant case, the letter of the Petitioner dated 27th May, 2019 cannot be read to mean a communication of the amount of duty payable since there is no such statement in the said letter or its annexure.
Bombay High Court in the case of Thought Blurb V/s. Union of India [2020 (10) TMI 1135 - BOMBAY HIGH COURT]on the issue of opportunity of being heard. In the said case inspite of there being quantification of demand, the declaration under SVLDR Scheme was rejected without giving an opportunity of hearing. It was on these facts that the High Court observed that summary rejection of an application without affording any opportunity of hearing would be in violation of the principles of natural justice. The facts of the Petitioner before us are different. There is no quantification at all before the cut-off date and therefore even if an opportunity of hearing was given to the Petitioner, it would not have made any difference as to the eligibility under the SVLDR Scheme - It is settled position that a decision has to be read in the context of facts of that case and one cannot read the same dehors the facts. Therefore, for more than one reason the decision in the case of Thought Blurb is not applicable.
SVLDR Scheme is a scheme aimed at liquidating legacy cases locked up in litigation at various forums. However, it does mean that the scheme should be interpreted in a way to make a disqualified person qualified to avail the benefits of the scheme, though such a scheme is in public interest inasmuch as the government can collect taxes immediately, pendency in courts gets reduced and the assessee gets relieved from uncertainty, penalties, etc. The entry into the scheme is to be interpreted strictly without doing any violence to the scheme. Any other interpretation in the garb of beneficial legislation would amount to giving the benefit of the scheme to those who are expressly not qualified.
Petition dismissed.
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2023 (9) TMI 1286
Validity of SCN - Details called by petitioner not furnished - Invocation of extended period of limitation - HELD THAT:- The respondent was duty bound to inform the petitioner about the fate of Order in Appeal No.63 of 2010 (M-ST) dated 26.03.2010 as to whether the said order was appealed before the appellate Tribunal and whether the order of the Appellate Commissioner in Order in Appeal No.63 of 2010 (M-ST) dated 26.03.2010 which remanded back to the original authority was disturbed or not.
The impugned order appears has to be passed in a hurried manner without furnishing the details called for by the petitioner, as is evident from reading of the impugned order.
This Court is of the view that the impugned Order in Original was passed in hurried manner without furnishing the details to the petitioner and without hearing the petitioner. Considering the above, the impugned order is set aside and the matter is remanded back to the respondent/Additional Commissioner herein to pass fresh orders on merits, after hearing the petitioner within a period of three months from the date of receipt of a copy of this Order.
Petition allowed by way of remand.
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2023 (9) TMI 1285
SCN issued by invoking extended period of limitation - time limitation - levy of service tax on renting immovable property came into effect by way of amendment in the Finance Act, 2010 retrospectively w.e.f. 01.06.2007 - HELD THAT:- The facts are not in dispute that the appellant is providing renting immovable property service w.e.f. 01.06.2007 and at that time, the wires of levy of service tax was challenged before the Hon’ble Delhi High Court and it was held that the levy of service tax under renting of immovable property is ultra vires. Thereafter, by way of Section 77 of the Finance Act, 2010, the amendment was brought in and the levy of service tax became on renting of immovable property and came retrospectively w.e.f. 01.06.2007.
In that circumstances, the show-cause notice issued to the appellant by invoking extended period limitation is not sustainable as held by this Tribunal in the case of JINDAL VEGETABLE PRODUCTS LTD. VERSUS CCE [2013 (3) TMI 56 - CESTAT, NEW DELHI].
The show-cause notice issued to the appellant is barred by limitation as the same has been issued by extended period of limitation. Therefore, no demand is sustainable against the appellant - Appeal allowed.
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2023 (9) TMI 1284
Levy of Service Tax - Management, Maintenance or Repair Service - amounts collected by the Appellant towards electricity, diesel charges for DG sets, water and parking charges - non-inclusion of parking charges in the value of taxable services - HELD THAT:- Having regard to the Order passed by this Tribunal in the case of VITP Pvt Ltd [2022 (7) TMI 1030 - CESTAT HYDERABAD], wherein the reliance has also been placed on Hon’ble Supreme Court’s judgment in the case of Intercontinental Consultants & Technocrats Ltd [2018 (3) TMI 357 - SUPREME COURT], as also factual matrix brought out in the SCNs as well as in the OIOs, the amount collected towards water, electricity and diesel are in the nature of reimbursable expenses and therefore, not liable for inclusion in the taxable value towards provision of Management, Maintenance or Repair services by the Appellant. There is nothing in the SCNs or impugned orders, which states that they have been collecting anything over and above the amount incurred towards payment of electricity bill and water bill or diesel consumption or that there was any profit involved therein - The fact that the reimbursable expenses, have been specifically brought under the coverage of gross value w.e.f. 14.05.2015, further supports the Appellant’s argument that the amounts collected on reimbursable basis were not liable for inclusion before that. In fact they have stated that in their own case itself for the subsequent period, Commissioner (Appeals) has also set aside the demand for the period 01.10.2014 to 14.05.2015 on “diesel charges”.
Thus, the demand on these three charges viz., electricity, water and diesel cannot sustain - for parking charges, the amount collected also needs to be included in the gross value in Management, Maintenance or Repair services - appeal allowed in part.
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2023 (9) TMI 1283
Levy of service tax - Renting of immovable property service - Amount relatable to Copy Right Services - Amount already paid and not adjusted - Short Claim of Property Tax - Amount already paid but not adjusted - HELD THAT:- There was no service tax demand on 'Copy Right Service'. Copy Rights Service as defined under Section 65(zzzzt) of the Finance Act 1994, specifically excludes the right covered under sub-clause(a) of clause(1) of Section 13 of the said Act, which deals with copy rights related to 'Original literary, dramatic, musical and artistic works' - it is found that the Copy Rights service rendered by the Appellant are related to 'Original Artistic Works' which are excluded from payment of service tax. Accordingly, the demand of service tax amounting to Rs.8,41,684/- is not sustainable. Even otherwise, there was no demand of service tax under the category of 'Copy Right Service' in the Notice. Hence, the demand of service tax of Rs.8,41,684/- confirmed in the impugned order is not sustainable on this count also.
Regarding the remaining demand confirmed in the impugned order, the Appellant stated that as per the direction of the Hon'ble Supreme Court, the Lessees paid Rs.1,91,121/- which has not been taken into account by the adjudicating authority. They further stated that the adjudicating authority has excluded Property Tax amounting to Rs.56,83,647/-. However, actual property tax paid was Rs. 57,66,009/- Thus, an additional amount of Rs 82,362/- has also to be excluded on account of property tax. They also stated that there was a short adjustment of Rs.40,087/-paid by them which has not been appropriated - the claim of the Appellant on these counts needs to be verified by the adjudicating authority. For that purpose, the matter needs to be remanded back to the adjudicating authority.
Appeal allowed by way of remand.
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2023 (9) TMI 1282
Classification of services - cargo handling services or Goods transport agency services? - bundled services or not - demand computed on the basis of TDS Certificates in form 26AS issued by the Income tax department - Board Circular No. 104/07/2008-S.T. dated 6-8-2008 - extended period of limitation - suppression of facts or not - HELD THAT:- During the period April 2012 to December 2014, the appellant was engaged by M/s. SSTAPL as a subcontractor to provide transportation service to M/s. JSL and for the period January 2015 to March 2017, the Appellant started providing Goods transport agency services directly to M/s. JSL. During both the periods, M/s JSL has paid service tax under GTA service as recipient of service. The contention of the department is that service tax is liable to be paid under 'Cargo handling service' by the Appellant and not by M/s JSL under GTA service. Thus, the Work Orders received by the Appellant from M/s SSTAPL and M/s JSL has to be analysed separately to determine the nature of the service rendered by the Appellant during these periods.
After successful completion of the job and necessary certification by M/s. JSL, the Appellant raised invoices on M/s. SSTAPL for “Transportation and Unloading of Coal from Sukinda Railway Siding to JSL, KNIC”. The Appellant did not issue any 'Consignment Note' in the name of the consignee M/s. JSL. After loading of the goods into the Rakes, 'Consignment notes' were issued by M/s SSATPL to M/s. JSL, the consignee. Service tax as applicable was duly discharged under reverse charge by M/s. JSL on the GTA Service. It is evident from the clauses in each of the Work order issued to the Appellant by SSTAPL that the services fall under the category of Goods transportation and not Cargo handling service. However, since the consignment note in the present case has been issued by SSTAPL on JSL and not the Appellant, the said service qualifies as services of transportation falling under the negative list entry – Section 66D(p) “services by way of transportation of goods (i) by road except the services of – (A) a goods transportation agency”.
The said service rendered by the Appellant to SSTAPL duly qualifies under the negative list and lies outside the ambit of Service tax. Accordingly, appropriate service tax in this case has been rightly paid by the consignee under GTA service as recipient of service. Hence the demand raised on the Appellant under 'Cargo handling service' during the period April 2012 to December 2014 is not sustainable.
The service provided by the Appellant during the period January 2015 to March 2017, directly to M/s. JSL w.e.f. January, 2015, was GTA service and not 'Cargo Handling service'. Accordingly, the Appellant is not liable to pay service tax under the category of 'Cargo handling service' and service tax on the said GTA service has been rightly paid by the recipient M/s. JSL. Hence, the demand confirmed against the Appellant for this period is not sustainable.
Extended period of limitation - Suppression of facts or not - HELD THAT:- It is a settled position of law that the authorities subsequently cannot adopt a different view once a view has already been accepted during the audit proceedings. Thus, there is no suppression of fact involved in this case and hence the demand confirmed by invoking extended period of limitation is not sustainable - the demand confirmed in the impugned order is liable to be set aside on the ground of limitation also.
The service rendered by the Appellant to M/s SSTAPL as a sub-contractor as well as M/s JSL directly, was transportation of goods service and not cargo handling service - the demand confirmed in the impugned order under 'cargo handling service' set aside on merit as well as on limitation - appeal allowed.
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2023 (9) TMI 1281
Exemption from Service Tax - Construction of Complex service for the service related to construction of houses under Jawaharlal Nehru National Urban Renewal Mission (JnNURM for short) and for Safai Kamdar to Ahmedabad Municipal Corporation - HELD THAT:- In the present appeal the fact is not under dispute that the construction of Complex is made for JnNURM scheme and construction of houses for Safai Kamdar for the Ahmedabad Municipal Corporation. In these facts, the houses are made under a particular scheme for the poor people for residential purpose and not for other commercial activity. The construction activity under the same JnNURM scheme, this Tribunal on same issue in the case of MS KHURANA ENGINEERING LIMITED VERSUS COMMISSIONER OF SERVICE TAX, AHMEDABAD [2022 (12) TMI 1053 - CESTAT AHMEDABAD] where it was held that In the present case, the quarters/residential complexes were got constructed by the AMC and AUDA for urban poor people for their residential use, the same amounts to “personal use‟. The confirmation of demand qua these services by the Commissioner is therefore not sustainable.
Thus, the construction of Complex under the same scheme has been considered by this Tribunal and viewed that such construction of Complex is not liable to service tax. Therefore, following the above decision of this Tribunal, in the present case also the impugned order is not sustainable hence the same is set-aside.
Appeal allowed.
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2023 (9) TMI 1280
Adjudication of SCN - HELD THAT:- The SLP disposed holding that Considering the fact that both the show cause notices - one dated 1-3-2016 issue by the Directorate General of Central Excise Intelligence, Delhi Zonal Unit and the subsequent show cause notice dated 23-10-2017 issued by the Commissioner, Central Goods and Services Tax Commissionerate, Alwar were on the same subject-matter, the High Court is justified in passing the impugned judgment and order and directing that both the notices to be adjudicated and heard together by one authority.
The present special leave petition is disposed of.
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2023 (9) TMI 1279
Levy of Excise Duty - Process amounting to manufacture or not - addition or blending of Multi-Functional Additives with Motor Spirit (MS) and duty paid High Speed Diesel (HSD) - HELD THAT:- The Tribunal had followed its previous rulings as well as this Court’s judgments on such issue, which had broadly held that unless the essential characteristic of the article of emerging product changed, the mere blending or addition of something in such articles leading to negligible or inconsequential changes, would not result in manufacture of or the emergence of a new product, as long as its usage remains the same. It is also a matter of record that the product emerging after blending confirms to the same specifications as in the case of old one. It is also pointed out that this issue has been decided against the revenue recently in Commissioner of Trade Tax v. M/s. Kumar Paints and Mill Stores Through its Proprietor [2023 (3) TMI 943 - SUPREME COURT].
This Court is of the opinion that the appeals have to fail - Appeal dismissed.
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2023 (9) TMI 1278
Valuation of physician samples - replica of dutiable goods are removed from factory for free distribution to medical practitioners with the cost thereof implicitly included in the valuation of the goods or not - HELD THAT:- The findings are not tenable for its lack of clarity on the transactions that were sought to be brought within the tax net. It also cannot be seen how goods cleared to principal manufacturer from raw materials supplied by them can take recourse to rule 4 of Central Excise (Determination of Price of Excisable Goods) Rules, 2000, as held by the first appellate authority, when rule 8 is specific to such a situation. It would also appear to us that rule 4 of Central Excise (Determination of Price of Excisable Goods) Rules, 2000 is applicable when, as held in CADILA PHARMACEUTICALS LTD. VERSUS COMMR. OF C. EX., AHMEDABAD-II [2008 (9) TMI 98 - CESTAT AHEMDABAD], no sale occurs at the time of removal warranting recourse to price at which goods are sold at the nearest time of removal.
The facts and circumstances of each removal and the nature of the transaction with the recipient of such clearances will determine the specific provision in Central Excise (Determination of Price of Excisable Goods) Rules, 2000 that must be applied. It would be in the fitness of things for such detailed scrutiny to be undertaken by the original authority.
The impugned order is modified and the terms of remand to the original authority altered accordingly.
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2023 (9) TMI 1277
CENVAT Credit - iron ore pellets purchased by the appellant - availment of cenvat credit on the iron ore pellets and utilization of such credit for payment of duty on its final product - HELD THAT:- Although the appellant has taken cenvat credit on iron ore pellets, it has been held that the product of iron ore pellets is exempted from payment of duty and the said goods were used by the appellant for manufacturing process and the manufactured goods have been sold on payment of duty . Therefore, the demand of duty on such iron ore pellets shall be demanded reversal of cenvat credit as held by this Tribunal in the case of AJINKYA ENTERPRISES VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-III [2013 (6) TMI 610 - CESTAT MUMBAI], which has been affirmed by the Hon’ble Bombay High Court in THE COMMISSIONER OF CENTRAL EXCISE, PUNE VERSUS AJINKYA ENTERPRISES [2012 (7) TMI 141 - BOMBAY HIGH COURT], wherein the Hon’ble High Court of Bombay has held in the present case, the assessment on decoiled HR/CR coils cleared from the factory of the assessee on payment of duty has neither been reversed nor it is held that the assessee is entitled to refund of duty paid at the time of clearing the decoiled HR/CR coils.
Further, the supplier of the goods has paid the duty on iron ore pellets and the same has been accepted by the respondent, therefore, being a manufacturer of excisable goods, the appellant is entitled to cenvat credit of duty paid by the appellant and it has not been questioned to the supplier of the goods that the product is exempted from payment of duty and the Revenue has accepted the duty payment. In that circumstances, the appellant is entitled to take cenvat credit as held by the Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE & CUSTOMS VERSUS MDS SWITCHGEAR LTD. [2008 (8) TMI 37 - SUPREME COURT].
The appellant has correctly taken the cenvat credit - the impugned order is not sustainable on the eyes of law and the same is set aside - Appeal allowed.
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2023 (9) TMI 1276
Seeking refund of the amount paid in excess in view of the TDS deducted from the State bills of the petitioner and paid to the State Government - rejected in view of non-passing of the order of assessment orders for the assessment years 2010-11 to 2015-16, within the provisions of Section 29 of the Tripura Value Added Tax Act, 2004 - HELD THAT:- The impugned order dated 31-8-2021 is hereby set aside. The case for the assessment year of 2010-11 to 2015-16 under the Tripura Value Added Tax Act, 2004 is remanded back to the Respondent No. 3 for passing the order under Sections 29 and 43 of the Tripura Value Added Tax Act, 2004 after giving the petitioner a reasonable opportunity of being heard.
Petition disposed off.
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2023 (9) TMI 1275
Execution of the Will in favour of the Plaintiffs - Will being a forged document or not? - whether there are sufficient grounds that warrant interference with the concurrent findings of the fact, upholding validity of a Will? - Second marriage and bigamy - HELD THAT:- A Will is an instrument of testamentary disposition of property. It is a legally acknowledged mode of bequeathing a testator’s property during his lifetime to be acted upon on his/her death and carries with it an element of sanctity. It speaks from the death of the testator. Since the testator/testatrix, at the time of testing the document for its validity, would not be available for deposing as to the circumstances in which the Will came to be executed, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation.
Coming to the facts of the case, a careful perusal of the relevant material on record and applying the provisions and the case laws it is evident that the Will was duly executed by the testator in the presence of witnesses out of his free Will in a sound disposing state of mind and the same stands proven through the testimony of one of the attesting witnesses, namely, Suraj Bahadur Limboo who was examined as PW2 by the Civil Court. This witness categorically states that the testator executed the Will in question and, both he and the testator signed the Will in the presence of each other.
There is no evidence on record to conclude that the deceased was not in a fit or stable mental condition at the time of execution of a Will, or that a Will was executed under suspicious circumstances, or the presence of any element of undue influence - both the courts below have rightly noted that the relevant provisions were complied with, and given the well reasoned order upholding the validity of the Will, the same does not warrant interference of this court.
Second marriage and bigamy - HELD THAT:- Such submissions are not entertained as the same is not a relevant factor in deciding the main lis, which is confined to the validity of the Will.
Since the validity of the Will stands proven according to settled principles of law, consequential benefits be disbursed accordingly - appeal dismissed.
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2023 (9) TMI 1274
Large scale under valuation in the import of luxury cars - Matter placed at the bottom of the Board and, thus, could not be taken up - locus standi - HELD THAT:- The impugned order passed is surprising which directs that the matter be placed at the bottom of the Board. Without commenting upon the same any further, it is opined that interest of justice would stand served by requesting the Hon’ble Chief Justice of the High Court to nominate Bench for disposal of the said writ petition expeditiously preferably within a period of three months since the issue involved has lot of cascading effect on the revenue.
In so far as locus is concerned, having gone through the record and also the fact that this Court had entertained the Writ Petition filed by the petitioner under Article 32 of the Constitution of India and passed an order dated 15-7-2016, the petitioner has locus to approach the High Court for the reliefs claimed in the writ petition filed by him. Thus, the High Court shall proceed to consider and decide the writ petition in accordance with law on its own merits without entering into the question of locus of the petitioner to maintain the writ petition.
SLP disposed off.
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2023 (9) TMI 1273
Maintainability of SLP - when this batch of matters are taken up for further hearing, it was pointed out that in the year 2017, the goods in question have been released on payment of penalty - HELD THAT:- In that view of the matter, when the goods in question are already released by the Department on recovery of the penalty, we dismiss all these Special Leave Petitions and Appeals, keeping the question of law open.
SLP and appeal dismissed.
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2023 (9) TMI 1272
Delay of 14 years in adjudication of SCN - Assessee was not knowing that matter was put in the call book - constitutional validity of Section 97 of the Finance Act, 2022 - provision authorising an officer of the Directorate of Revenue Intelligence (DRI) to act as a proper officer under the Customs Act, 1962 can have any retrospective operation or not.
Whether the time period for adjudicating the show cause notices in terms of Section 28(9) of the Customs Act, as in force prior to 29.03.2018, has lapsed? - Whether it is permissible for the Commissioner (Adjudicating) to now resume adjudication of the impugned show cause notice?
HELD THAT:- During the prolonged period of 03.04.2009 to 21.07.2016, no effective steps were taken for adjudication of the impugned show cause notice. It is not disputed that during this period there was no impediment for the concerned officers to proceed with the adjudication. The fact that various communications were sent by the Adjudicating Authority to the concerned officers of the DRI for supply of the RUDs is clearly no ground to justify that it was not possible to adjudicate the impugned show cause notice during the said period. In view of the above, it cannot be accepted that it was not feasible or possible for the Adjudicating Authority to adjudicate the impugned show cause notice till 06.02.2017.
It is stated that the impugned show cause notice was retrieved from the Call Book on 06.02.2017 in view of the instructions dated 06.01.2017. However, the Board opined that it was not feasible to adjudicate the notices issued prior to 08.07.2011 and therefore the said impugned show cause notice was not adjudicated. It is stated that it was re-entered in the Call Book and was retrieved from the Call Book on 23.01.2023 - Admittedly, the petitioners were not informed that the impugned show cause notice was put in the Call Book.
It is at once clear that the period within which the impugned show cause notice was required to be adjudicated has long since elapsed. The controversy raised is squarely covered by the recent decision of this Court in SWATCH GROUP INDIA PVT LTD & ORS. VERSUS UNION OF INDIA & ORS. [2023 (8) TMI 864 - DELHI HIGH COURT]. In view of the above, it is no longer open for the respondents to proceed with the adjudication of the impugned show cause notice. Accordingly, the impugned letters recommencing the adjudication proceedings are set aside. Since the period for adjudication of the impugned show cause notice has elapsed, the same cannot be adjudicated.
Petition allowed.
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2023 (9) TMI 1271
Amendment in the shipping bill - interpretation of statute - Section 149 ands the Notification dated 29 June 2012 - Allowing the amendment of documents filed with the Commissioner of Customs at the time of export of Gold Jewellery and Gold Medallions, purportedly in exercise of powers under Section 149 of Drawback Act - HELD THAT:- There is no gainsaying that Section 149 of the Act has to be read in conjunction with the requirement spelt out in the above Notification dated 29 June 2012. A careful perusal of Section 149 of the Act shows that firstly, it provides no period of limitation for filing of an application for amendment of relevant documents in order to seek rebate or any other benefit. Secondly, it does not provide for any reasons that may enable an exporter to claim amendments in the shipping documents. Thirdly, the proposed amendment in the shipping bills can be allowed by the Proper Officer subject to the only rider that same is based on documentary evidence that must be shown to be in existence at the time the goods were exported.
Before alluding to the Notification dated 29 June 2012, it is pertinent to mention that admittedly, the goods already stood exported from time to time and the respondents were otherwise entitled to claim STR paid on input services, which had been prescribed at a fixed rate of 0.06% of the FOB value of exported goods falling under CTH 71 vide serial No. 162 of the schedule to the notification. Further, no dispute was raised by the appellant to the assertion/declaration by the respondents in their request letter dated 14 March 2017 that the sales remittances had already been received on each of the export consignments as per the RBI guidelines.
It is borne out from the record that the respondents in their appeal before the learned CESTAT had specifically made a categorical assertion in ground (R) that they had suffered Service Tax on the input services and apparently had annexed relevant details, although the same were not alluded to while passing the impugned order dated 24 February 2020. We observe that learned counsel for the appellant was all at sea to indicate which document was amiss, or as to which information or declaration was lacking that were not filed along with the shipping bills/orders at the time of making the exports.
Thus, apparently all the relevant documents which could have been filed at the time of exports, were available as it is in original form and format without any change as such and were submitted along with the application for amendment of the shipping bills etc. on 14 March 2017. The respondents specifically stated in the application that no claim would be made by them under Paragraph (3) of the Relevant Notification - there was no reason to hold otherwise and nothing more was required to be done on the part of the respondents. Therefore, there are no legal infirmity, perversity or incorrect approach adopted by the learned CESTAT in passing the impugned orders dated 24 February 2020 thereby allowing the respondents the benefit of STR based on the exports made during the relevant period.
Appeal dismissed.
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2023 (9) TMI 1270
Refund of Export duty paid - rejection of refund claim of the respondent-assessee saying that claimant was neither the party in the case of proceedings before the Supreme Court nor the assessment order of the concerned bills of export was challenged - HELD THAT:- The learned Commissioner (Appeals) has already considered all the submissions which have been made by the appellant-department in their appeals here. It is opined that only review petition being pending before the Hon’ble Apex Court cannot be the reason to set-aside the impugned order-in-appeal.
In view of the fact that the jurisdictional High Court’s order has neither been set-aside nor stayed by the Hon’ble Apex Court and since the Hon’ble Gujarat High Court’s order as of today holds good.
There is no illegality in the impugned order-in-appeal passed by the Commissioner (Appeals) and therefore, appeals are without any merit - Appeal dismissed.
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2023 (9) TMI 1269
Valuation of imported goods - old and used worn clothing - restricted goods or not - enhancement of value - confiscation - redemption fine - penalty - HELD THAT:- This issue came up before this Tribunal in the case of VENUS TRADERS, RAINBOW INTERNATIONAL, AL-YASEEN ENTERPRISES, GLOBE INTERNATIONAL, KRISHNA EXPORT CORPORATION, PRECISION IMPEX, BMC SPINNERS PVT. LTD., SHIVAM TRADERS, LEELA WOOLEN MILLS, M.U. TEXTILES VERSUS COMMISSIONER OF CUSTOMS (IMPORTS) MUMBAI [2018 (11) TMI 625 - CESTAT MUMBAI], wherein this Tribunal has observed The failure of the original authority to comply with the direction in remand to disclose the margin of profit that prompted the fine and penalty, the matter would normally have to be remitted back by another remand order. However, the paucity of evidence and the negligible scope for ascertainment at this stage deters us from doing so.
Against the confirmed duties and the penalties the Redemption Fine imposed by the Adjudicating Authority, the Respondent has not filed any appeals - the redemption fine and penalty imposed on the respondents by the adjudicating authority is sufficient to meet the end of justice. Therefore, the redemption fine and penalty confirmed by the adjudicating authority are upheld.
There are no infirmity in the impugned order and the same are upheld - appeal filed by the Revenue is dismissed.
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2023 (9) TMI 1268
Valuation of imported goods - mixed lot of 100% polyester knitted fabric rolls of different colours and weight - rejection of declared value on the basis of contemporary import value as per the provisions of Section 14 of Customs Act, 1962 read with Rule 5 and Rule 12 of Customs Valuation Rules - eligibility for exemption from counter-veiling duty under Notification No. 30/2004-CE dated 09.07.2004 - inadvertent failure to claim the benefit of the notification at the time of import of the consignments of the 100% polyester knitted fabrics.
HELD THAT:- While determining a particular import to be considered as a contemporaneous import for enhancement of the declared value, it is necessary to match all the relevant details such as quality, quantity, physical characteristics of the products, brand, country of origin, time of import, time of placement of order, stock sales etc. We are of the opinion that consideration of these factors is a necessary and legal requirement.
Merely giving the details of only Bills of Entry may be of identical or similar goods would not be sufficient for legally rejecting the transaction value declared by the importer under Section 14 of the Customs Rules, 1962 - Merely by providing NIDB data where it is not clear whether the NIDB data value is declared or assessed (enhanced) value, the onus of providing reasonable evidence by the Revenue is not discharged, the Revenue has failed to discharge the onus of providing reliable evidence which rejecting the declared transaction value.
Availability of Notification No. 30/2004-CE dated 09.07.2004 - HELD THAT:- The Hon’ble Supreme Court in the case of M/S SRF LTD., M/S ITC LTD VERSUS COMMISSIONER OF CUSTOMS, CHENNAI, COMMISSIONER OF CUSTOMS (IMPORT AND GENERAL) , NEW DELHI [2015 (4) TMI 561 - SUPREME COURT] has held that the condition of non-availment of Cenvat credit on input/ capital goods need not be satisfied by the importer of such goods and therefore, we are of the view that appellant was entitled for exemption from CVD at the time of clearance of imported goods.
The matter is no longer res-integra as this Tribunal in the case of SEDNA IMPEX INDIA P LTD, GARG IMPEX AND SOIR INTERNATIONAL VERSUS C.C. -MUNDRA [2023 (3) TMI 1080 - CESTAT AHMEDABAD] has already decided both the matters holding that In the present case, the adjudicating authority enhanced the value as the declared value appears to be low compared to value available in NIDB data, otherwise, there is no material available. The Tribunal consistently observed that the declared value cannot be enhanced merely on the basis of NIDB data.
Further it was also held in the said case that An identical issue has been decided by this tribunal in the appellant’s own matter of SEDNA IMPEX INDIA PVT LTD. VERSUS C.C. MUNDRA [2022 (2) TMI 1355 - CESTAT AHMEDABAD] where it has been held that the appellant are clearly entitled for the exemption Notification No. 30/2004-CE dated 09.07.2004 for exemption from CVD on the imported goods - it is settled that the appellants are entitled for the exemption from payment of CVD under notification No.30/2004-CE.
The enhancement of transaction value in present appeals is without any legal backing therefore the same is rejected and declared value need to be adopted for the purpose of assessment - the benefit of Notification No. 30/2004-CE dated 09.07.2004 shall be available to the appellants.
Appeal allowed.
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