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Showing 421 to 440 of 1903 Records
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2015 (11) TMI 1483
Refund claim - C&F Agents’ Service - Held that:- The appellant has entered into an agreement with its principal for rendering services of C&F Agents. As per the said agreement, the appellant is paid consideration of an amount as commission/ remuneration for rendering services and is also reimbursed amounts of actual expenses incurred by them for rendering such service. There is no dispute that the appellant has discharged the service tax liability under ‘C&F Agent’s Service’ on the amount received as remuneration/commission. The dispute is regarding service tax liability on the amount received by the appellant as reimbursable expenses. It is undisputed that the amounts on which service tax is sought to be demanded are reimbursable expenses. If that be so, the judgment of the Honble High Court of Delhi in the case of Intercontinental Consultants and Technocrats Pvt. Ltd. vs. Union of India [2012 (12) TMI 150 - DELHI HIGH COURT] will cover the issue in favour of the appellant-assessee. - If the appellant has taken the credit for such an amount the said amount cannot be included in the refund claim. The lower authority to pass an order after disallowing the amount of ₹ 44,957/-. It is also to be noted that the appellant has reversed an amount of ₹ 44,957/- along with interest and the said amount need not be considered by the lower authority while granting the refund - Decided in favour of assessee.
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2015 (11) TMI 1482
Demand of service tax - Commercial training or coaching service - Bar of limitation - Held that:- Regarding the contention of Revenue that the Respondent did not include the advance received in the month of May and June, 2003 in its ST-3 returns for April ,2003 to September 2003 which proved suppression on its part, it needs to be mentioned that service became taxable from 1.7.2003 and so it is rather unreasonable to require (or expect from) the respondent to file ST-3 return from April, 2003 onwards. We find that the Commissioner (Appeals) has discussed the issue at length. We are in agreement with Commissioner (Appeals) regarding non invokability of extended period of limitation in this case, As the show cause notice was issued on 2.7.2006, the entire demand is beyond the normal period of one year and is therefore fatally hit by time-bar - impugned demand sustainable - Decided against Revenue.
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2015 (11) TMI 1481
Demand of service tax - Goods Transport Agency service - Held that:- There is no dispute as to the fact that in this case the trucks/tractors which were used for transportation of sugarcane from the farmers fields to the sugar factory were of individuals. We find that the first appellate authority as well as the adjudicating authority have nowhere relied upon any contrary evidence to come to a conclusion to state that the trucks/tractors were not of individuals. On this factual matrix we find that the judgement of this Tribunal in the case of Laxmi Narayana Mining (2009 (9) TMI 71 - CESTAT, BANGALORE) which has been upheld by the Hon’ble High Court of Karnataka as reported in [2012 (8) TMI 651 - KARNATAKA HIGH COURT] could have directly applicable in this case. - Impugned order is set aside - Decided in favour of assessee.
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2015 (11) TMI 1480
Waiver of pre deposit - "Commercial or Industrial Construction Service" (CICS) and "Construction of Complex Service" (CCS) - Held that:- Substantial amount of demand amounting to more than ₹ 55 lakhs pertains to construction of houses under JNNURM which prima facie was not liable to service tax in view of the CBEC circular cited by the appellant. There is also force in the contention of the appellant that the value of goods was not includible in the assessable value. The taxability of the other services rendered requires a careful examination. We do note that in the case of BG Shirke Construction vs CCE, Pune [2013 (2) TMI 584 - CESTAT MUMBAI] CESTAT granted stay in respect of construction of the sports stadium stating that this prima facie would not be covered under the scope of CICS. We also notice that the appellant has deposited ₹ 26,45,334/- towards the impugned service tax liability. - amount already deposited meets the requirement of section 35F of the Central Excise Act, 1944 read with section 83 of the Finance Act, 1994 and accordingly we waive the requirement of any further pre-deposit and stay recovery of the remaining impugned liability during pendency of the appeal. - Stay granted.
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2015 (11) TMI 1479
Penalty u/s 76 & 77 & 78 - Enhancement of penalty - Held that:- Issue relating to applicability of service tax on MICR services was under dispute and this issue was taken up by the Indian Banks Association with the Ministry of Finance. CBEC vide its letter No.137/1/2005-CXA, dated 25.02.2005 replied that Indian Banks Association's representation had been rejected and that IBA should advise all the member Banks to pay service tax with interest at the earliest. It is seen that on receipt of the advice of the IBA, the respondent paid service tax and also the interest thereon. In the circumstances, we are of the clear view that there was no wilful misstatement or suppression of facts in this case and there was reasonable cause for failure to deposit the service tax initially. Indeed, as noted above, having regard to the facts and circumstances, CESTAT vide its order dated 12.01.2009 set aside the penalty under Section 76 ibid and for the reasons alike, the Commissioner (Appeals) was fully justified in invoking Section 80 for waiving penalty under Section 78 ibid. Further, when the facts and circumstances do not indicate any wilful mis-statement or suppression, penalty under Section 78 ibid is not attracted. - Decided against Revenue.
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2015 (11) TMI 1478
Waiver of pre deposit - area based exemption - Refund under notification no. 56/02-CE - The allegation against VKM is that during the period from December 2004 to November 2006, they did not manufacture any goods in their factory and only showed production in their records and thus have wrongly claimed the refund under notification no. 56/02-CE by the way of credit entries in PLA - Held that:- It is also seen that while the present Show Cause Notice dated 05.01.2010 alleges that during the period from December 2004 to November 2006 there was no manufacturing activity and on this basis seeks to recover the refund of ₹ 42,37,24,491/- from the appellant, for subsequent months, that is, for the period from December 2006 to August 2008, the Department has sanctioned the refund by different orders and for that period no Show Cause Notice has been issued. We are of the prima facie view, that Department cannot take contradictory stand for the period from December 2009 to November 2006 and for period from December 2006 to August 2008 when the machinery installed and the staff employed was the same.
Even if statement of Sh. Atul Sharma, Manager of the Ahmadabad Branch of M/s Single Road Carriers, Delhi is believed, it would prove only the non transport of copper ingots of VKM from Delhi to Gujarat. By itself, this statement cannot lead to inference that there was no manufacture of copper ingots by Jammu unit of VKM and there was no transportation of copper ingots from Jammu to Delhi. - The allegation against VKM is showing bogus receipt of copper scrap and bogus manufacture and clearances of copper ingots without manufacturing and clearing any goods. This is the allegation which has been upheld against VKM in the impugned order. If this is so, there would be no duty liability against VKM and since VKM have paid the duty and have taken its refund under notification no. 56/02-CE, it amounts to non-payment of duty. Hence, in our prima facie view, there cannot be any fault recovery of duty from there as refund under notification no. 56/02-CE given to VKM is of the duty which was paid by them, while the same were not required to be paid.
The real allegation against VKM would be the issue of bogus invoices of copper ingots and thereby enabling his customers to avail wrong Cenvat Credit, but neither the SCN sought imposition of penalty on VKM on this count nor the Commissioner has imposed penalty on VKM on this ground. - appellant have prima facie case in their favour. Therefore, the requirement of pre-deposit of duty demand, interest and penalty by VKM and the requirement of pre-deposit of penalty by Shri Shankar Lal Gupta, Authorized Signatory of VKM, Shri DK Jain of M/s Vikash Traders and the transporter KKR is, waived for hearing of their appeals and recovery thereof is stayed - Stay granted.
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2015 (11) TMI 1477
Waiver of pre deposit - Duty demand - Clandestine removal of goods - Shortage of goods found - violation of the principles of natural justice - copies of all the RUDs and NRUDs had not been supplied with the SCN - Held that:- As regards the supply of RUDs and NRUDs, there is no dispute that the same are very large in number and probably for this reason only, the appellants were asked to collect the same from the office of Delhi Zonal Unit of DGCEI, as such a large number of documents cannot be sent by post along with show cause notice. The show cause notice had been issued on 5/5/2008 and the show cause notice itself requested the appellants to collect all the RUDs and NRUDs from DGCEI’s office. The show cause notice also had an Annexure –‘R’ which gave a complete list of the RUDs. From the records it is seen that the appellant took their own time in receiving the RUDs and NRUDs and only vide their letter dated 22/8/2008 addressed to ADG, DGCEI Delhi Zonal Unit informed DGCEI office that they have deputed their employee Shri Shyam Narayan to receive the RUDs and NRUDs. In the records of the case, there is an acknowledgement dated 25/8/2008 of Shri Shyam Narayan acknowledging that he has received and taken delivery of photocopies of all the RUDs as detailed in Annexure ‘R’ to the show cause notice dated 5/5/2008 issued to M/s. RIL and its Director and that two sets of the records RUDs have been received.
Since they, in spite of the receipt of all the RUDs and NRUDs did not submit reply to the show cause notice they cannot insist on cross-examination. In view of this the appellant s plea that the order suffers from gross violation of principles of natural justice is prima facie not acceptable.
It appears that the goods purchased from the five traders have been sold to them at the higher price. Thus, from the very nature of these transactions, the same do not appear to be genuine.
In respect of the service transactions also, the service recipient have denied they had any dealing with the appellants. In view of this, burden of proof proving that the income shown from trading in iron and steel items, share trading and service transactions had actually been received from such transactions would be on the appellant, but the appellant have failed to produce any evidence in this regard. We are, therefore of the prima facie view that on this point, the appellant have not able to establish prima facie case in their favour. When the appellant company has shown substantial income from trading in iron and steel items, share trading and service transactions and on enquiry these transactions were found to be bogus, it will have to be presumed that this income is from manufacturing activity.
Stock taking had been conducted in presence of the appellant's representative and at that time no complaint had been made by him that the weight had been determined by the eye estimation without actual payment. Therefore, at this point, the appellant do not have prima facie case in their favour. - it is seen that in a number of cases the goods had been supplied by the appellant through Shri Ravinder Jian to certain persons and those persons also have admitted the receipt of the consignment while in respect of those sales, goods no Central Excise invoices had been issued by the appellant company. Therefore, at this stage it is difficult to say whether confirmation of this duty demand is vitiated by not permitting the cross-examination of Shri Ravinder Jain. - this is not the case for total waiver from the requirement of pre-deposit. - Partial stay granted.
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2015 (11) TMI 1476
Waiver of pre deposit - Exemption under Notification No. 6/02-CE - Use of fly ash more than 25% - The Department's contention is that the pipes in respect of which the exemption under Notification No. 6/02-CE dated 1/3/02 (Sl. No. 158) has been availed either do not contain fly ash or the fly ash content is much less than 25% and, hence, the same do not qualify for exemption - retraction of statements - Held that:- Though, the appellant plead that under the law, the appellant could use fly ash upto 40% in manufacture of AC Pressure Pipes and since the fly ash is free, while cement is much costlier, there was absolutely no incentive for the appellant company to use cement instead of fly ash. But fly ash is free only for those users who are located in close vicinity of the source of fly ash. For the appellant company, whose factory located at Bhilwara is at considerable distance of about 200 k.m. from the Kota and Suratgarh Thermal Power Plants, there would be transportation cost involved, besides the cost of loading at the Thermal Power Plants and also the cost of storage in the appellant company's factory which may involve constant spraying of water. In absence of data regarding transportation cost, loading cost and unloading and storage cost, the plea that fly ash is absolutely free and therefore there would be no incentive not to use it to the extent permitted, cannot be examined.
Undue hardship to the assessee would exist only when on the basis of the evidence on record there is absolutely no case of the duty evasion/non-payment of duty against the assessee, while in this case this is not so. Therefore, on the basis of the twin consideration of undue hardship and safeguarding the interest of Revenue, this is not the case which would merit total waiver from compliance with the provision of Section 35F. - Partial stay granted.
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2015 (11) TMI 1475
Waiver of pre deposit - Duty demand - Clandestine removal of goods - Shortage of finished goods - Recovery of kachcha parchis - Held that:- The copies of few Kachcha parchis which have been placed on record as well as the photocopies of the same have been reproduced in the impugned order, do show the supply having been made from ‘Saidpur’ indicating that under those Kachcha parchis, the goods mentioned therein have been supplied from the factory premises of HRE/HVRI located at Saidpur Village in Distt. Sonepat. The appellant have also not disputed the department s contention that in respect of the Kachcha parchis mentioned in Annexure B to the show cause notice, the details mentioned therein tally with the duty paid invoices issued by HRE/HVRI. Similarly, the fact that in respect of the Kachcha parchis mentioned in Annexure ‘C’ to the show cause notice, the details of the parchis tally with the invoices issued by HRE/HVRI except for the quantity mentioned in Kachcha parchis being higher than the quantity mentioned in the invoices, has also not been disputed. Therefore, there is some substance in the Department’s allegation that the Kachcha parchis whose details are given in Annexure A, B & C to the show cause notice pertaine to the clearances made from HRE/HVRI.
Besides this, we also find in respect of some of the entries mentioned under the head stock out in the loose papers/registers recovered from the residential premises of Bansal Brothers, the details of the clearances tally with the details of the duty paid invoices and Kachcha parchis and therefore, prima facie, the entries under stock out heading also pertains to clearance from HRE/HVRI. In view of this factual matrix, notwithstanding the fact that all the Kachcha parchis and the documents on the basis of which the duty demand has been quantified have not been supplied to the appellant and the cross-examination of the customers whose statement has been relied upon has not been allowed and as such there appears to be violation of the principles of the natural justice, the order as such cannot be said to be totally unsustainable, and in any case there would be some duty demand against the appellant.
Even though, there appears to be violation of the principles of principles of natural justice, in our view, still there would be some duty demand which ultimately would be confirmed against the assessee, and therefore, to that extent the interest of the Revenue has to be safeguarded. We also take note of the fact that while the appellant s Counsel plead that all the Kachcha parchis do not have the remarks indicating supplies having been made from Saidpur factory, they have not disputed the fact that the details of the Kachcha parchis detailed in annexure B to the show cause notice fully tally with the corresponding details of the duty paid invoices issued by HRE/HVRI and similarly, the derails of the Kachcha parchis mentioned in Annexure C to the Show cause notice tally with the details of invoices issued by HRE/HVRI except for the difference in the quantity. In view of this, we hold that this is not the case for total and unconditional waiver from the requirement of pre-deposit. - Partial stay granted.
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2015 (11) TMI 1474
Waive of pre deposit - Valuation of goods - Section 4(1)(a) - Determination of assessable value - Demand of differential duty - Held that:- In terms of the provisions of Section 4(1)(a) of the Act, where the duty of excise is chargeable on any excisable good with reference to their value, then, on each removal of the goods, such value of the goods shall, in a case where the goods are sold by the assessee for delivery at the time and place of removal, the assessee and the buyers of the goods are not related and the price is sole consideration for sale, be the transaction value. According to clause (b) of Section 4(1), in any other case, including the case where the goods are not sold, the transaction value is to be determined in such manner as prescribed. In this regard, the Central Government has framed Central Excise Valuation (Determination of price of excisable goods) Rules, 2000. Thus, Section 4(1)(b) read with the Valuation Rules becomes applicable only when the transaction value under clause(a) of Section 4(1) is not available.
The loss making price cannot be accepted as the normal price of the goods and that too when it is spread over a period of more than five years i.e. w.e.f. January, 2008 and it has to be inferred that the consideration could only be to compete with other manufacturers who are also engaged in the manufacture of the similar goods falling under the same Chapter Heading of CETA, 1985, the existence of extra commercial consideration while fixing the price would not be the ‘normal price’. No prudent businessman would continuously suffer huge loss only to compete market. - there is neither admission by Appellant that they lowered the price to level below the cost of production to penetrate the market nor there any evidence on record to support this allegation. If the Department’s stand is that lower price below the cost of product was to compete with the other manufacturer of comparable cars, that price as discussed above, cannot be held to be influenced by any extra commercial consideration. When the price is fixed keeping in mind the factors of the supply and demand, and also the price on which the competitors are selling the comparable product, the price determined may sometimes be more than the manufacturing cost and profit and sometimes may be less than the manufacturing cost and in the latter cases, it cannot be said that the price is influenced by the extra commercial considerations.
Directing the appellant to pre-deposit the entire duty demand confirmed along with interest for compliance with the provisions of Section 35 F would certainly cause undue hardship. Therefore, the requirement of pre-deposit of duty demand, and the interest thereon is, therefore, waived for hearing of the appeal and recovery thereof stayed. - Stay granted.
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2015 (11) TMI 1473
Waiver of pre deposit - Duty demand - Clandestine removal of goods - Parallel invoices - Held that:- Department mainly relies upon the statement dated 27/7/2010 of Shri Subodh Gupta and the documents recovered from his premises. However, besides this, there is also a lot of other evidence which indicates that SMS-Ghaziabad was receiving unaccounted copper ingots from Shivam, Mayank and Vasudev. On the day of search, i.e., on 27/7/2010, Investigating Officers intercepted a motor cycle driven by Shri Mohd. Ishraf at Swea Dham Mandoli Industrial Area and while his questioning was going on, a Tata 407 Vehicle with registration no. DL-1LM4572 was also intercepted by the officers. This vehicle was driven by one Shri Anil Kumar and another person named Shri Arvind Kumar, labourer of SMS-Ghaziabad was also sitting in the vehicle. It was loaded with copper ingots which according to the driver and Shri Arvind Kumar had been loaded from the premises of Maynak Metals, Binni Ki Bhatti, Mandoli Industrial Area, Sewa Dham, Shahdara.
All these evidences indicate that SBU was firm floated by Shri Sandeep Gupta in the name of his employee Shri Subodh Gupta. It is also seen that while goods manufactured by SMS-Ghaziabad were being cleared under parallel invoices without payment of duty to M/s. Sandeep Metal Supply, Chawari Bazar, M/s. Sandeep Metal Supply were showing purchase of the same goods from a number of suppliers namely, M/s. Sai Enterprises, JMD Trading, M/s. Mahalaxmi Agency, M/s. M.K. Traders, M/s. First International Business Limited, Tirupati Marketing Sales India, Delhi, M/s. Shivam Traders-Delhi, M/s. Pacific Sales (India), Delhi, M/s. Aadhar Technology Private Limited-Dariyaganj, New Delhi and M/s. Apurva Enterprises-Ajmeri Gate, Delhi and on enquiry either these firms were found to be closed since long or were not existing or they denied having supplied copper strips or copper wires to M/s. Sandeep Metal Supply, Chawri Bazar.
There is a lot of evidence on record against SMS-Ghaziabad and the copper ingots suppliers Shivam, Mayank and Vasudev and as such it cannot be said that entire case of the department against SMS-Ghaziabad, Shivam, Mayank and Vasudev is based only on the statement of Shri Subodh Gupta and on the basis of the documents recovered from his premises. - prima facie view that criminal complaint filed by Shri Sandeep Gupta against Shri Subodh Gupta before ACJM, Ghaziabad is only a strategy to dissociate himself from the documents recovered from the premises of Shri Subodh Gupta - this is not the case for total waiver from the requirement of pre-deposit and while granting dispensation from the provisions of section 35F of the Central Excise Act, 1944, the appellants, namely, SMS-Ghaziabad, Mayank, Shivam and Vasudev must be put to some conditions of pre-deposit to safeguard the interests of the Revenue. - Partial Stay grated.
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2015 (11) TMI 1472
Duty demand - Estimation of production of production of goods used as Captive consumption - Non accounting of goods - assumptions and presumptions - Invocation of extended period of limitation - Held that:- Duty demand is based on that - (a) chromium content of SS billets/flats manufactured during the period of dispute, (b) chromium content of Ferro chrome used for manufacture of stainless steel billets, and (c) recovery percentage chromium content from Ferro chrome. It is seen that show cause notice dated 21.3.2000 demanding duty for the period 1.4.97 to December, 1999 had also been issued on the same basis, though chromium content of SS billets and percentage recovery of chromium from ferro chrome were different. In view of this, we hold that Prima facie the judgement of apex court in the case of Nizam Sugar Factory (supra) would be applicable to the facts of the present case and therefore, the extended period would not be applicable and hence, the duty demand would be sustainable confined only to normal limitation period.
Prima facie view is that the duty demand is based on estimated production of SS billets/flats which has been determined on the basis of a series of assumptions. There does not appear to be any cogent basis for these assumptions. The apex court in the case of Oudh Sugar Mills Ltd. vs .Union of India- [1962 (3) TMI 75 - SUPREME COURT OF INDIA] has held that allegation of under reporting of production of clandestine removal of sugar on the basis of average percentage sugar recovery from sugar cane is not sustainable without tangible evidence of clandestine removal. In our view, the ratio of this judgement is squarely applicable to the facts of the present case. In this regard, we also find that no chemical test has been conducted to ascertain chromium content of SS billets or chromium content of Ferro chrome. There is also no basis for taking the recovery percentage of chromium from ferro chrome as 91.33% while in the earlier show cause notice dt.21/3/2000 recovery percentage of chromium from ferro chrome had been taken as 75%. Prima facie, the duty demand based on such arbitrary assumptions would not be sustainable. - Stay granted.
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2015 (11) TMI 1471
100% EOU - duty demand on the stock of finished goods and work in progress on the date of in principle approval for debonding - extended period of limitation - Held that:- no central excise duty was payable on the stock of the finished goods on the date of in principle approval for debonding as a 100% EOU, even after in principle approval for debonding would continue to be treated as 100% EOU till the date of final debonding order.
Duty demand on the Catylist, which had been imported free of customs duty and had been used as first charge - Held that:- Commissioner has confirmed this demand by going beyond the allegation made in the show cause notice and moreover, there is no evidence in support of his finding that the imported Catylist had not been used at all for first charge.
Clearance of the pyridine residue consisting mainly of mixture of Lutadine Isomers to their DTA Unit - Held that:- even if the Pyridine Residue is treated as residue of chemical industry classifiable under Heading No.38256010, which is restricted for import, its DTA clearances cannot be treated as not in accordance with the restrictions in the Exim Policy, as the restriction on the import of certain items in the Foreign Trade Policy cannot be treated as restrictions on the DTA clearances of the same items manufactured by a 100% EOU.
The duty demand is prima facie not sustainable either on merits or not on limitation and as such - Stay granted.
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2015 (11) TMI 1470
Denial of refund claim - Unjust enrichment - returned of excess duty through debit / credit Notes - claimant has not been able to prove that the burden of excise duty had not been passed on to the buyers - Held that:- appellant, though initially charged duty in the sale invoice, who on clarification that they have paid the excess duty, issued credit notes and against the said credit notes, the buyer of the goods has returned the excess charged excise duty. The appellant accounted for the said amount in their balance sheet as receivable under the head loan and advances. The lower authority verifying these facts and following the direction of the Commissioner (Appeals) given in the earlier order dated 5.2.2008 applying the ratio of the ONGC case (2003 (10) TMI 108 - CESTAT, NEW DELHI), sanctioned the refund.
It is not open for the Revenue to challenge the finding of the Commissioner (Appeals)’s order dated 5.2.2008 without filing any appeal against the same. Therefore, the impugned order of the Commissioner (Appeals) cannot be sustained. - it is settled that even if the excess duty for which refund is sought for is collected but subsequently returned by way of credit note, it cannot be said that the incidence of refund amount has been passed on. It is also observed that since the appellant admittedly accounted for the said amount as ‘receivable’ in the balance sheet, it is a sufficient evidence to hold that incidence of duty has not been passed on, otherwise the amount cannot be accounted for as receivable. - appellant is entitled for the refund and the learned lower adjudicating authority has rightly sanctioned the refund claim - Decided in favour of assessee.
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2015 (11) TMI 1469
Duty demand - Discrepancy in stock - Clandestine clearances - reliance on retracted statements - Imposition of penalty - Held that:- Respondents were engaged in the manufacture of Man Made Fabrics on job work basis. According to the Revenue, the Respondent cleared clandestinely a quantity of 1107428 L.Mtrs. fabrics within 17/18 dates. The entire case was made out on the basis of one chit recovered from the pocket of Excise Supervisor of the Respondent Company. - On perusal of the impugned order, it is seen that the Central Excise Supervisor and the Respondent No.2 had retracted the statements. - very next day the Central Excise Officers visited the factory premises and conducted stock verification and no shortage/excess of goods was available from the stocks in the event of clandestine removal of the goods. The entire case was made on the basis of one chit recovered from the pocket of Excise Supervisor. It is noticed that the Excise Supervisor had retracted his statement. In this situation, it is difficult to accept the clandestine removal of the goods on the basis of the said chit, without any corroborative evidence. The Commissioner (Appeals) has also examined the case in the context of that no statement was recorded of the Dyeing Master or Printing Master. - there was a shortage of goods worth ₹ 1 Crore. - No reason to interfere the order of the Commissioner (Appeals) - Decided against Revenue.
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2015 (11) TMI 1468
Restoration of appeal - Waiver of pre deposit - Appeal dismissed for non compliance with pre deposit order - Section 35F - Held that:- entries in the documents recovered from Sh. Gopal Krishan Agarwal also mentioned the vehicle number in which the goods had been transported and also the names of the customers but admittedly neither any inquiry had been conducted with the transporters nor any inquiry had been conducted with the consignees/customers. In follow up action, the factories of the appellant company had also not been searched and except for calling for the certain documents and recording of statements of their employees no other inquiries have been conducted. Statements of the Directors of the appellant companies have also not been recorded. - The most important part of section 9D which is relevant for the adjudication proceedings is sub section 2 according to which the provisions of sub section 1 shall, so far as may be, apply in relation to any proceedings under this act, other than proceedings before a court, as they apply in relation to a proceedings before a court. Thus the provisions of sub section (1) of section 9D which are applicable for prosecution proceedings before a court, by virtue of sub section 2 of section 9D, have to be applied as far as possible in respect of adjudication proceedings also. The word ‘so far as may be’ used in sub section 2 indicate that while the provisions of sub section 1 may not be mandatorily applied to adjudication proceedings but the same have to be applied as far as possible. In our view, when the case against an assessee is based only on the statements of a third party or the documents recovered from him, his cross examination would be necessary.
There is gross violation of the principles of natural justice and hence, the appellants would have prima facie case in their favour. In view of this, the requirement of pre-deposit of duty demand, interest and penalty by the appellant company is waived for hearing of their appeals and recovery thereof is stayed - Stay granted.
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2015 (11) TMI 1467
Job Work - claim of full exemption under notification no. 214/86CE whereas the principal manufacturer availing the area based exemption from duty under notification no. 50/03 - extended period of limitation - Held that:- M/s. Divya Pharmacy (principal) is not the manufacturer of dutiable and exempted final product but he is manufacturing exempted final products only. Therefore, in our prima facie view, the exemption notification no. 214/86CE would not be available.
Principal manufacturer-M/s. Divya Pharmacy under their letter dated 6/5/2008 addressed to Assistant Commissioner of Central Excise, Bhiwadi District Alwar under whose jurisdiction, the appellant unit had intimated that they wish to remove the raw material without availing of CENVAT Credit to the appellant unit under notification no. 214/86CE; that the goods manufactured on job work basis would be returned to their factory for manufacture of final product which is exempted from duty under notification no. 50/03CE. Thus, the department was aware of the fact that the goods manufactured by the appellant on job work basis for M/s. Diya Pharmacy would be used by M/s. Divya Pharmacy for manufacture of finished goods in respect of which they are availing fully duty exemption under notification no. 50/03CE. - even if, the appellant in their ER-1 Returns filed by them, were not separately mentioning the clearances of job work goods to M/s. Divya Pharmacy by availing full duty exemption under notification no. 214/86CE, we are of the prima facie view that the extended limitation period under proviso to section 11A(1) would not be invokable and the duty demand would be sustainable only for the normal limitation period and according to the appellant the duty demand for normal limitation period is only about ₹ 18.5 lakhs. - Partial stay granted.
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2015 (11) TMI 1466
Levy of customs duty on goods cleared from SEZ to DTA and non-processing area of the SEZ - retrospective levy - Challenge the constitutionality and legality of Government Notification No.25/2010-Customs dated 27.2.2010 - levy of customs duty at the rate of 16% advalorem has been levied on electrical energy removed from Special Economic Zone - The power supply from the power plant which is inside the SEZ area from where the power is supplied outside the SEZ area is in dispute in this petition. - Held that:- Petitioner should not be made liable to suffer double taxation, and the petitioner is made to pay the custom duty for the energy supplied then payment on duty of raw materials or any other duty on inputs should not be levied on the petitioner, and the duty paid by the petitioner on raw materials is liable to be refunded, as otherwise, the levy of duty on the power supplied to DTA from SEZ amounts to double taxation and it would be in violation of Article 265 of the Constitution of India.
Custom duty at the rate of 16% advalorem levied by Notification dated 27.2.2010 could not be imposed retrospectively w.e.f. 26.6.2009 and, therefore, retrospective amendment is illegal and arbitrary and deserves to be set aside.
Petitioner is entitled for exemption from payment of custom duty for the period 26.6.2009 to 15.9.2010 on the electricity cleared to DTA from SEZ. We are further of the considered opinion that the entire proviso to Government Notification No.25/2010-Customs dated 27.2.2010 is violative of Section 25(1) of the Customs Act, 1962 read with Section 30(a) of the SEZ Act, arbitrary and liable to be quashed. In view of the above, the said Notification No.25/2010-Customs dated 27.2.2010 as well as Notification No.21/2002-Customs as amended by Clause 60 of the Finance Bill, 2010 (Second Schedule thereto) are ultra vires Entry 83 of List I of Seventh Schedule of the Constitution of India, Section 12 of Customs Act, 1962 and Section 30 of SEZ Act, 2005 as well as Articles 14 and 265 of the Constitution of India and consequently deserves to be quashed and set aside. - Decided in favour of assessee.
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2015 (11) TMI 1465
Levy of anti dumping duty - whether the respondents are justified in issuing demand notice seeking to recover anti-dumping duty on the sheet glass imported by the petitioner falling under CTH 70049099 - Held that:- designated authority in its final findings has below the table put a note stating that the subject goods were also being imported under other tariff headings as detailed thereunder and that the customs notification is indicative only and is not binding on the scope of that investigation. However, the Central Government, after considering the recommendations made by the designated authority, has not thought it fit to include the said note in the notification dated 13.3.2015. Insofar as the notification dated 13.3.2015 is concerned, the definitive anti-dumping duty is imposed only on sheet glass bearing Tariff Item No.70042011 and 70042019.
Insofar as the goods in question bearing Tariff Item No.70049099 are concerned, no notification under rules 18 and 20 of the rules has been issued levying definitive anti-dumping duty on such goods. It follows as a necessary corollary that in the absence of any anti-dumping duty being levied under rules 13 and 19 of the rules, the respondent authorities do not have any authority in law to demand or collect any anti-dumping duty in relation to the goods not covered by the notification. Under the circumstances, the impugned demand notice as well as the communication dated 30.3.2015 are without any authority of law and therefore, cannot be sustained.
The very premise on which the respondents seek to recover anti-dumping in respect of sheet glass falling under Tariff Item 70049099 viz. to safeguard the interest of the revenue, is itself fallacious, having regard to the fact that anti-dumping duty is levied for the protection of domestic industry and not to safeguard the interest of the revenue. - Decided in favour of assessee.
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2015 (11) TMI 1464
Waiver of pre-deposit - Confiscation of exported goods - Classification of machined rigs - Classification under Chapter Sub-heading 84829900 or under Drawback tariff item No. 848221 - Held that:- Appellate Tribunal had thought it fit to direct pre-deposit of ₹ 48,03,301/- as against the demand of excess drawback of ₹ 2,71,78,810/-, whereas the Commissioner (Appeals) has thought it fit to direct the petitioners to pre-deposit ₹ 24,00,000/- and ₹ 10,00,000/- in relation to demand of excess drawback of ₹ 48,03,301/-. Evidently therefore, the amount of pre-deposit as directed by the Appellate Tribunal and the Commissioner (Appeals) in more or less similar circumstances is highly disproportionate. Under the circumstances, the case of the petitioners would fall within the ambit of “undue hardship” as held by the Supreme Court in the case of Benara Valves Ltd. v. Commissioner of Central Excise (2006 (11) TMI 6 - SUPREME COURT OF INDIA). Besides, apart from the merits of the order of the Commissioner (Appeals), as pointed out by the learned counsel for the petitioners, the classification issue which is involved in the appeal before the Commissioner (Appeals) stands concluded by an order dated 29.10.2015 of the Appellate Tribunal in favour of the petitioners. Under the circumstances, the petitioners have a prima facie case for waiver of pre-deposit.
When the court has found merit in the case of the petitioners and the matter does not involve any disputed question of fact, there is no bar against this court exercising powers under Article 226 of the Constitution of India merely because of the existence of an alternative statutory remedy. Under the circumstances, this court, having already applied its mind to the merits of the case and the scope of the controversy being narrow, does not deem it fit to relegate the petitioners to avail of the alternative remedy under the statute. - relief granted - Decided in favour of assessee.
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