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Showing 481 to 500 of 1740 Records
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2024 (9) TMI 1262
Classification of imported goods - whether the goods imported fall under category of silver jewellery which is freely importable or under restricted category of ITC (HS) Code 71069210? - HELD THAT:- Respondent rely upon an examination report dated 5th June 2024 to suggest that the goods are crude rounded structure made of embossed silver strips which are joined together to make it look like a bangle. It is noted that the author of the report has even put a disclaimer in the report because the author says “as per our best knowledge” Therefore, prima facie this report is not reliable because it has been prepared on the basis of visual examination and if it is based on visual examination, the author could not have used the expression “as per our best knowledge.” Moreover, he does not even explain from where so called knowledge was generated. Hence prima facie, this is not satisfying.
Seizure memo, a copy whereof at Exhibit-H to the petition being Seizure Memo No. 06/2024-25 dated 7th May 2024 states that the declared value is Rs. 7,70,80,299.47. Mr. Shah states 50% of that would be Rs. 3,85,40,149.73. We shall round it off to Rs. 1,40,00,000/-. Upon petitioner giving a bank guarantee of a nationalised bank for Rs. 1,40,00,000/-, respondent shall permit petitioner to provisionally clear the goods.
Petition disposed off.
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2024 (9) TMI 1261
Imposition of a condition of furnishing bank guarantee to the extent of 10% of the value of Platinum Ingots imported by petitioner - HELD THAT:- The respondents do not seem to have any objection insofar as description of the goods is concerned. Respondents also do not seem to have any issue so far as it relates to change at CTH level in the final product. According to respondents, the goods imported meets the CTH criteria. The problem seems to be only as regards 3% value addition for non-originating goods. It is respondents’ case that the value addition of 3% shown to have been achieved appears to be very high and therefore, to check the genuinity of the value addition claim, department has decided to call for verification of the details claimed in the country of origin certificate.
Upon furnishing the bank guarantee, respondents shall forthwith permit re-export of the Platinum Ingots to the extent of value of bank guarantee given covered under 19 bills of entry filed by petitioner - Respondents are directed to complete the verification/ investigation at the earliest on or before 31st October 2024.
Petition disposed off.
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2024 (9) TMI 1260
Refund claim - time limit of one year from the date of payment of duty prescribed under N/N. 102/2007-Custom dated 14.09.2007 read with N/N. 93/2008-Customs dated 01.08.2008 - HELD THAT:- The CESTAT by considering the provisions of Section 27 (1B) (C) of the Act has rightly come to the conclusion that what is the date of payment to be taken when the provisional assessment has been resorted to as prescribed in the aforesaid provisions and relevant Notification has no clause providing otherwise and the CESTAT has therefore rightly interpreted the same as harmoniously with the statutory provisions and came to the conclusion that the Board Circular has ignored this fact.
The Tribunal has also relied upon the decision of the Delhi High Court in case of Pioneer India Electronics Pvt Ltd Vs. Union of India [2013 (9) TMI 705 - DELHI HIGH COURT] which was followed by the Tribunal in case of SUZUKI MOTORCYCLE INDIA P. LTD VS C.C., NEW DELHI (IMPORT & GENERAL) [2017 (1) TMI 526 - CESTAT NEW DELHI] where it was held that 'Since the petitioner has filed the claims within the period stipulated by section 27 of the Act, in view of the construction given by us, the same could not have been rejected on the ground of limitation.'
Thus, the date of making the refund application would be required to be considered from the date of final assessment and not from the date of payment of provisional duty as per the provisions of Section 27 (1B) (C) of the Act and the reliance placed by the Revenue on the interpretations of the impugned Notification No. 93/2008 cannot be applied contrary to the statutory provisions.
Thus, no questions of law, much less any substantial question of law arises from the impugned order of the Tribunal and the Appeal therefore, being devoid of any merit is accordingly dismissed.
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2024 (9) TMI 1259
Rejection of refund claim on the ground of time limitation - Bills of Entry and TR-6 Challans were not endorsed as ‘Under Protest’ - HELD THAT:- It is an undisputed fact that the appellant is a Custom Broker and filed Bills of Entry during October 2012 to April 2013 on behalf of the importers M/s Jute Pack India and M/s Haryana Trading Company and availed the benefit of exemption of CVD under Notification No. 30/2004-CE dated 09.07.2004. After the expiry of more than one year, the department took a view that benefit of exemption from payment of CVD under the said notification was not available and recovered the same from the appellant along with interest. In the meantime, the appellant lodged the protest in the form of a letter dated 06.06.2014 stating that they are not liable to pay the duty and in case, the matter is decided in favour of the Assessee, the refund should be granted to the appellant.
Thereafter, the Hon’ble Apex 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] held that the benefit of CVD exemption is available to the importer of final product and after the decision of Hon’ble Apex Court, the appellant filed refund claim on 07.01.2016, which was rejected by both the authorities below as time barred.
It is found that the appellant vide letter dated 06.06.2014 have lodged protest, though the word ‘Under Protest’ was not specifically written in the said letter, but the spirit of the contents of the letter shows that it was the protest because in the Customs Act as well as in the Central Excise Act, no format is prescribed for lodging the protest.
In the present case, no show cause notice was issued and no adjudication took place. It is also found that the amount was deposited by the appellant on the insistence of the department and not voluntarily and it was not the duty, it was merely a deposit. Therefore, the appellant is entitled to get the refund of the amount deposited under protest and denial of refund as time-bar is not sustainable. The judgments relied upon by the learned AR are not applicable in the facts and circumstances of the present case and are distinguishable on facts.
The impugned order is not sustainable in law and therefore, set aside - the appellant is entitled to refund of the amount deposited along with interest on delayed refund as per rules - appeal allowed.
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2024 (9) TMI 1258
Imposition of penalty under section 112 (a) of the Customs Act 1962 - misdeclaration of the goods - Vicarious responsibility - HELD THAT:- For imposing penalty under Section 112(a) of the Customs Act, there must be a positive act or omission on the part of the appellant which should render the goods liable for confiscation. In the present case, it is found that the misdeclaration of the goods is mainly due to the offence committed by the importer for which the CHA cannot be held responsible. Accordingly, the vicarious responsibility cannot be cast on the appellant and hence the penalty imposed on the appellant on this ground is not sustainable.
The decision of the Tribunal in the case of RAJESH MAIKHURI, CUSTOM BROKER, RAJESH KUMAR TIWARI, EMPLOYEE VERSUS CC, NEW DELHI [2017 (9) TMI 1015 - CESTAT NEW DELHI] supports the above view where it was held that 'In the present case, the appellants, being authorized employees of the CHA, are apparently penalized for their act of abetting such violations by the importer. As already noted, we find that the evidences available in this case do not indicate to any such illegal act on the part of the CHA.'
The penalty imposed on the appellant is not sustainable and accordingly, the penalty imposed is set aside - Appeal allowed.
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2024 (9) TMI 1257
Misdeclaration of goods in respect of value and quantity - goods though were declared as ‘unbranded’, however branded caps of different non-popular as well as reputed brands like Puma, Nike, Adidas etc. were found - infringement of Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 - reliability of electronic evidence retrieved from the appellant’s e-mail - extended period of limitation - HELD THAT:- This provision is arising out of Section 65B of the Indian Evidence Act (the model provision for the admissibility of electronic evidence in judicial proceedings). This section has been dealt with by Hon’ble Apex Court in a recent decision in the case of Arjun Panditrao Khotkar v. Kailash Kishanrao Goratyal [2020 (7) TMI 740 - SUPREME COURT]. The Hon’ble Supreme Court has clarified that the interpretation of Section 65B - Under Section 65B(1), any information contained in an electronic record, which has been stored, recorded or copied as a computer output, shall also be deemed as a ‘document’ – and shall be admissible as evidence without further proof or production of the originals, if the conditions mentioned are satisfied. Section 65B(2) lays down the criteria that must be satisfied for the information to be categorized as a ‘computer output.’
In the present case, the original electronic record would be the computer of the Election Commission in which the video footage is first stored. The CDs where the content of the video recording is copied shall constitute the secondary copies of the electronic record. It was held that a certificate under Section 65B(4) shall have to be obtained only when the secondary copies of the electronic record are produced before the Court. Production of a certificate shall not be necessary when the original electronic record is produced. The original electronic record can be adduced directly as evidence if the owner of the computer/tablet/mobile phone steps into the witness box and establishes that the device where the information is first stored is owned/operated by him. If the “computer” where the electronic record was first stored happens to be part of a “computer network” or “computer system” (as defined under the Information Technology Act, 2000), and it is not possible to bring such a network/system physically to the Court, then secondary copies can be produced along with the certificate stipulated by Section 65B(4).
The allegations against the appellant as made out in the show cause notice is that the importer had suppressed/under declared the value of the goods pertaining to 22 past Bill of Entry and the basis of the said allegation is retrieval of some excel sheets from the email of the appellant through his mobile phone. The said excel sheets have been alleged as parallel invoices showing much higher value of the imported goods than what has been declared by the appellant in the Bills of Entry filed during the period from 16.09.2013 to 27.09.2017. Differential duty demand has been confirmed based on re-determinate of value by the department. This entire investigation got initiated based on the live consignment of Bills of Entry No. 3819893 dated 31.10.2017 being intercepted by SIIB and 1009 examined noticing undervaluation, mis-declaratiion and even violation of Intellectual Property Rights (IPR). Though a separate Show Cause Notice was issued about said Bills of Entry.
There are no proof from appellant to falsify invoices retrieved showing item details, deposits adjusted and also the actual cartons loaded compared with cartons shown in BL and to prove that there invoices have no relation to the invoices filed by the appellant-importer with Bills of Entry. It has already been observed as admitted fact that details of both set of invoices (retrieved and those filed with Bills of Entry) have absolute similarity vis-à-vis all details of the impugned imported goods except the values have been reduced and goods are declared as unbranded - the excel sheets/invoices retrieved to not need certificate of authenticity. Hence the argument of appellant for setting aside the demand for want of said certificate is not sustainable.
It is also found that it cannot be a mere coincidence that the invoice number, date, container number, description of goods, number of carton and quantity of goods mentioned in the invoices/documents recovered through e-mail matches with the invoices attached by the importer with Bills of Entry filed for customs clearance. Hence, there is sufficient evidence against appellant that the actual invoices have been altered by the appellant to undervalue and mis-declared the imported goods. The act amounts to committing fraud and fraud vitiates everything. Resultantly there is no infirmity in the findings to this effect in order under challenge.
Invocation of extended period of limitation - HELD THAT:- It is established that the importer has manipulated the invoice presented for clearance of goods and mis declared the value in the Bill of entry by suppressing the actual invoice, which could only be unearthed during investigation. The mis-declaration of value of imported goods is thus apparent and has been done with clear intent to evade customs duty. The importer has violated provisions of Section 17(1) and Section 46 of the Customs Act, 1962 by not filing truthful declarations in Bills of Entry and proper self-assessment. Therefore, for the aforesaid acts of suppression of facts and mis- statement, the extended period of five years for demand of customs duty under sub-section 4 of Section 28 of the Customs Act, 1962 is invokable in this case.
The importer is liable to pay differential duty of Rs.2,54,09,167/- under Section 28(4) along with applicable interest under section 28AA of the Customs Act, 1962. The contention of importer that BEs once assessed cannot be re- assessed is not tenable as demand of duty short paid can always be made under section 28 within the period of limitation prescribed therein.
The data retrieved from the appellant’s proprietor’s own mobile is the document admissible into evidence. The requirement of certificate under Section 138C, as is impressed upon by the appellant, is held not applicable - No infirmity has been found in the manner of redetermining the value and the quantum thereof.
Appeal dismissed.
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2024 (9) TMI 1256
Oppression and mismanagement - Tribunal's authority to order the purchase of shares under Section 242(2)(b) of the Companies Act, 2013 - Section 421 of the Companies Act, 2013 - HELD THAT:- Under Section 242(2)(b) of the Act, the Tribunal has a power to direct the purchase of shares of any member by the Company and per impugned order the Tribunal has exercised such power.
In MSDC RADHARAMANAN VERSUS M. SD CHANDRASEKARA RAJA [2008 (3) TMI 471 - SUPREME COURT], the Hon’ble Supreme Court referred to Samgramsinh P. Gaekwad vs. Shantadevi P. Gaekwad [2005 (1) TMI 409 - SUPREME COURT], wherein the Hon’ble Supreme Court held in a given case the court despite holding that no case of oppression has been made out may grant such relief so as to do substantial justice between parties.
Though the appellant has contended the Impugned Judgement does not give reasons for passing the order but a perusal of the Impugned Judgement would reveal the submissions of both the parties and the case law(s) cited by them were considered by the Ld. NCLT and only thereafter the impugned order was passed under Section 242(2)(b) of the Act.
Admittedly the respondent cannot sell his shares in open market, it being a private company and not a listed one, hence the path chosen by the Ld. NCLT to end controversy amongst directors/shareholders is not prejudicial to anyone and would rather be helpful for smooth running of the company.
There are no illegality in the impugned order and accordingly appeal is dismissed.
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2024 (9) TMI 1255
Approval of the Resolution Plan - Section 30(6) and Section 31 of the IBC - HELD THAT:- The statutory protection granted to the operational creditor in Section 30(2)(b) is that they shall not be paid any amount less than as mentioned in (i) and (ii). Appellant case in the Appeal is not that the Appellant was entitled for any payment as per Section 30(2)(b) which has been denied in the Resolution Plan.
The issue raised by the Appellant is fully covered by the recent judgment of this Tribunal in Rajat Metaal Polychem Pvt. Ltd. vs. Mr. Neeraj Bhatia and Anr. [2024 (9) TMI 411 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI - LB] where this Tribunal while dealing with the similar claim of the operational creditors has laid down that 'It is true that Operational Creditors as the law stands now are denied any payment when the amount payable to them in the event of Liquidation is NIL, but till the Legislature comes to the aid of the claim of Operational Creditor by amending the Legislative Scheme hands of the Courts are tied to take any other view in the matter.'
Appeal dismissed.
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2024 (9) TMI 1254
Approval of Resolution Plan - HELD THAT:- The jurisdiction of Adjudicating Authority and the Appellate Tribunal to interfere with the Resolution Plan approved by the CoC, in exercise of its commercial wisdom, are well settled. The limited jurisdiction as has been recognized by the precedents of the Hon’ble Supreme Court is when the Resolution Plan is in not conformity with statutory requirements of Section 30, sub-section (2) of the IBC. Thus, the jurisdiction with NCLT and Appellate Tribunal is limited to examine as to whether the Resolution Plan is in compliance with Section 30, sub-section (2), sub-clause (e) of the IBC.
The part of the Resolution Plan being not in accordance with law, which has been approved by the Adjudicating Authority, the course open for this Tribunal is to either set aside the Resolution Plan or to delete the clauses, which are not in accordance with law to make the Resolution Plan compliant. The second course need to be adopted, by deleting the clauses in the Resolution Plan, which are contrary to the law, as per Section 30, sub-section (2), sub-clause (e), so as not to interfere with the other part of the Resolution Plan, which have been approved.
The resolution plan modified partially.
Application disposed off.
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2024 (9) TMI 1253
Violation of principles of natural justice - cryptic and non-speaking order - HELD THAT:- After perusing the judgment passed in COMMISSIONER CUSTOMS AND CENTRAL EXCISE VERSUS M/S. JP. TRANSFORMERS [2014 (9) TMI 307 - ALLAHABAD HIGH COURT], and having noticed the basic facts of the present case it is found that the judgment in J.P. Transformers may not be applicable in all aspects/issues, yet the CESTAT has concluded the appeals by simply applying the same.
The impugned order is set aside - matter remanded back to CESTAT for a fresh decision after affording due opportunity to the parties concerned - appeal disposed off by way of remand.
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2024 (9) TMI 1252
Taxability of services provided by the appellant in Jammu & Kashmir - non-inclusion of cost of planning, scheduling etc which happens prior the customers approaching the appellant - place of provision of services outside India - time limitation.
HELD THAT:- In the instance case, it is seen that the service provider is located in the taxable territory. The service recipient is also located in the taxable territory. It is the claim of the appellant that the service is performed partly within India but partly in territory excluded from the jurisdiction of Finance Act, 1994 by virtue of Section 64. According to the appellant place of the performance of Service is relevant.
The learned Counsel has heavily relied on the decision of Larger Bench in the case of M/S COX & KINGS LIMITED (FORMERLY KNOWN AS COX AND KINGS (INDIA) LIMITED) VERSUS COMMISSIONER (TAR) -MUMBAI [2023 (10) TMI 1388 - CESTAT MUMBAI - LB] - The decision of Larger Bench related to outbound tours to locations outside India. In the instant case, the issue relates to conducting of tours within territory India. The decision in the case of M/s. Cox & Kings India Ltd. related to service provided in respect of clients who would travel outside India. Thus, the ratio of this decision is not relevant for the instant case where the destination of tours is within India. In the said decision great reliance has been placed on the provision in Export of Services Rules, 2005. The said Rules relate to the services where either the client or the location of performance or immovable property is located outside India. In the instance Case, the entire services are provided within the territory of India and therefore, the provisions of the Export of Services Rules, cannot be applied to the instant case.
The claim of the appellants that in case of Pre-Planned Package Tours activities of Planning, Scheduling, Organizing and Arranging are already completed before the customer approaches the appellants. In that sense, the only an offer is prepared before the customer approaches and all activities of Planning, Scheduling, Organizing and Arranging happen after the approach of customer. These, facts are however no evidence is available on record to show that the appellant complete the activity of Planning, Scheduling, Organizing and Arranging prior to customer approaching and therefore the said claim remains unsubstantiated and not tenable.
The entire activity of PLANNING, Scheduling, Organizing And Arranging is undertaken in the taxable territory in the instant case. The taxable service is activity of Planning, Scheduling, Organizing and Arranging. In these circumstances, even if the client tours a non taxable territory, while the service of Planning, Scheduling, Organizing and Arranging is provided in taxable territory, the service will remain taxable as provided in taxable territory. The tax has therefore been rightly demanded.
Time Limitation - HELD THAT:- The issue involved in the instant case, Section 64 of the Finance Act, 1994 which specifically excludes the State of Jammu and Kashmir from levy of Service Tax provision. The definition of ‘tour operator’ and “tour” itself was a contested issue which was considered in detail by the Larger Bench in the case of M/S COX & KINGS LIMITED (FORMERLY KNOWN AS COX AND KINGS (INDIA) LIMITED) VERSUS COMMISSIONER (TAR) -MUMBAI [2023 (10) TMI 1388 - CESTAT MUMBAI - LB]. In these circumstances, it is opined that they may not have been any intent to evade payment of duty as a person might hold bonafide belief in the instant case that he is not liable to levy of service tax. No specific act of mis-declaration or suppression has been pointed out in the earlier proceedings. Consequently, the extended period of limitation cannot be invoked for recovery of taxes.
The appeal is therefore allowed partly in so far as the issue of limitation is concerned - The matter is remanded to the original adjudicating authority for determination of duty liability if any within the period of limitation.
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2024 (9) TMI 1251
Taxability of erection, commissioning and installation activity of the machine - Inclusion of service charges within the sale value - HELD THAT:- The appellant have manufactured and supplied the textile machines as per the contract and sale invoice issued to the customers. The appellant is supposed to undertake the supply and also the erection, commissioning and installation of the machine at the customer’s site. The sale value includes all the elements and there is no separate consideration received by the appellant on account of the service related to erection, commissioning and installation. In such case there is no amount available for charging service tax.
The issue has been considered by this Tribunal in the case of C.C.E & S.T. -SILVASA VERSUS AALIDHRA TEXTOOL ENGINEERS PVT LTD [2022 (12) TMI 11 - CESTAT AHMEDABAD] wherein this Tribunal has 'In such position the entire value of the goods has to be taken as sale value, consequently, no service value is involved separately. In the identical set of transaction, this tribunal has consistently taken a view that when there is a manufacturing and sale of the goods on a particular sale price which involves incidental service such as in the present case, no service tax can be demanded once the entire value is towards sale and has suffered the central excise duty.'
From the above decision which has relied upon other decisions of the Tribunal, it is observed that the facts in the aforesaid decision and facts of the present case are identical. Therefore, the ratio of the above judgment is directly applicable.
The demand in the present case is not sustainable. Accordingly the impugned order is upheld - appeal dismissed.
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2024 (9) TMI 1250
CENVAT Credit - input services or not - services availed for proposed expansion of port infrastructure and additional berths - deletion of the phrase "setting up" from the definition of "input service" with effect from 01.04.2011 - HELD THAT:- The case is no longer res integra and relied upon the CESTAT decision in the case of KAKINADA SEAPORTS LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, SERVICE TAX AND CUSTOMS VISAKHAPATNAM-II [2015 (11) TMI 51 - CESTAT BANGALORE]. The Tribunal has inter-alia held that 'If 7th berth does not become operational, naturally the issue as to whether Cenvat credit is admissible when the project is dropped would arise.'
There are no reason to hold a different view taken in the impugned order - The appeal filed by the Revenue is accordingly dismissed.
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2024 (9) TMI 1249
Short-payment of service tax - failure to declare the gross amount received as per the invoices - period from 16.06.2005 to 31.03.2007 - Whether reimbursement expenses incurred by the appellant viz. basic salary, advance, overtime allowance, PF administration and other charges, ESIS, HRA, ex-gratia, medical etc. paid to the employees and recovered from the customers, be includable in the gross taxable value under Section 67 of the Finance Act, 1994 read with Service Tax Valuation Rules in providing ‘Manpower Recruitment and Supply Agency Services’ during the period 16.06.2005 to 31.03.2012?
HELD THAT:- The said issue is no more res integra and covered by the judgement of the Tribunal in the case of M.P Security Force Vs. CCE&ST [2019 (8) TMI 211 - CESTAT NEW DELHI]. In the said case, the appellant M.P. Security Force provided security services and manpower supply service during the relevant period. The question before the Tribunal was whether the component of salary, EPF, ESI and uniform allowances etc. be included in the gross amount charged to their clients. Following the judgment of the Hon’ble Supreme in UOI Vs. Intercontinental Consultants and Technocrats Ltd.’s case [2018 (3) TMI 357 - SUPREME COURT] interpreting the expression “such services” under Section 67(1) of the Finance Act, 1994, the Tribunal held 'the appellant is entitled for the abatement towards the payment made on account of contribution towards ESI, EPF and PF and also towards wages and salaries while computing the assessable value in terms of Section 67 of the Act for the payment of service tax.'
Thus, the administrative charges collected in providing Manpower Recruitment and Supply Agency Service, is only to be part of the gross taxable value and all reimbursable expenses, salary, bonus, etc. paid to the employee by the appellant and collected from their clients cannot be included within the scope of gross taxable value under Section 67(1)(i) of the Finance Act, 1994 during the relevant period from October 2007 to March 2012.
The impugned order is set aside - Appeal allowed.
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2024 (9) TMI 1248
CENVAT Credit - exempt service or not - Requirment to pay service tax under Rule 6(3) of Cenvat Credit Rules, 2004 - non-maintenance of cenvat credit account for inputs and input services used for providing exempted output services - investment of surplus cash in mutual funds - trading of securities - HELD THAT:- Considering the fact that the similar issue came up before this Tribunal in the case of M/S. COGNIZANT TECHNOLOGY SOLUTIONS INDIA PRIVATE LIMITED VERSUS THE COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI [2024 (9) TMI 922 - CESTAT CHENNAI] decided in favour of the appellant wherein it has been held 'the authorities below have grossly erred in demanding the tax on the ‘investment’ made, by treating the same as ‘service’ although exempted.'
As this Tribunal in the case of Cognizant Technology Solutions India Pvt.Ltd has dealt with investment of surplus cash in mutual fund which does not amount to trading activity, there are no merit found in the impugned order and the same is set aside - appeal allowed.
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2024 (9) TMI 1247
Applicability of the N/N. 33/99-CE dated 08.07.1999 as amended - DIC certificate issued dated 10.05.1993 could form the basis for determination of installed capacity during pre-expansion period or not - cut off date was to be treated on or after 24.12.1997 or not - HELD THAT:- The show cause notice, in relation to the period running from July, 1999 to May, 2002, was issued on 03.10.2002, whereas the show cause notice relevant for the present appeal was issued on 05.09.2003, which was in relation to the period July, 1999 to November, 2002. Admittedly, the subsequent show cause notice dated 05.09.2003 includes the period July, 1999 to May, 2002, for which the CESTAT has already passed an order in favour of the respondent, which has attained finality and, therefore, it is not open for the Revenue to again -agitate the said issue by way of issuing a fresh show cause notice. The action on the part of the Revenue of not challenging the decision of the CESTAT in relation to the period July, 1999 to May, 2002, which is included in the subsequent show cause notice dated 05.09.2003, disentitles it from challenging the same.
The Hon’ble Supreme Court has disallowed the Revenue to take different stand in the same situation in BIRLA CORPORATION LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE [2005 (7) TMI 104 - SUPREME COURT]. The Hon’ble Supreme Court has observed 'assessee is held to be entitled to MODVAT Credit'.
Taking into consideration the fact that the issue regarding availment of benefit by the respondent of the Notification dated 08.07.1999 has already been settled in favour of it by CESTAT, vide order dated 20.01.2005, in relation to the period running from July, 1999 to May, 2002 and the same has attained finality because the Revenue has accepted the said decision and has not challenged it further in appeal or other proceedings, there are no case for interference.
The present Central Excise Appeal is dismissed.
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2024 (9) TMI 1246
Entitlement to interest on excess duty paid during provisional assessment period - whether the appellant is entitled to interest of Rs.1,15,23,115/- on finalisation of provisional assessment for the period 2002-03 to 2009-10 on the amount of excess duty paid by the appellant? - HELD THAT:- It is found that pursuant to the finalisation of provisional assessment, after adjustment of the duty paid, the liability has been calculated in the respective orders. However, since the method for calculation of interest i.e. whether interest be calculated after expiry of one month from the due date of payment of duty or the date on finalisation of the provisional assessment of the duty liability be taken into consideration, was in dispute and pending before the honourable High Court of Karnataka in COMMISSIONER OF C. EX., MYSORE-I VERSUS JK. INDUSTRIES LIMITED [2011 (3) TMI 373 - KARNATAKA HIGH COURT], the quantum of interest on the excess duty paid by the appellant and also interest due on the duty short paid could not be calculated and kept pending.
On finalisation of the pending issue by the aforesaid judgement, the applicant approached the Department informing the amount of interest on the excess duty paid during the period 2002-03 to 2009-10 applying the said formula is Rs.1,15,84,533/- and the interest payable to the Government on duty short paid is Rs.63,71,217/-. The appellant requested to adjust the interest due to the Government against interest payable to the appellant, and to refund balance amount after adjustment. The authorities below had rejected the said claim on the ground that the final order computing the duty has not been challenged and therefore the interest cannot be released to them after the order of the Hon’ble High Court.
Since the appellant had paid the interest due to the Government amounting to Rs.63,71,217/- for the said period in absence of any demand notice to them, there is no valid reason not to release/refund the interest amount of Rs.1,15,84,553/-to the appellant on the excess duty paid during the period in question when the issue of relevant date for computing interest amount on finalisation of provisional assessment settled by the Hon’ble Karnataka High Court.
The impugned order is set aside and appeal is allowed.
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2024 (9) TMI 1245
Liability of appellant, principal manufacturer, to pay Excise Duty on waste and scrap arising at the job worker’s factory and cleared by the job 2 worker without payment of duty for the disputed period - raw materials sent to job workers for conversion in terms of N/N. 214/86--CE dated 25.03.1986 - HELD THAT:- The Tribunal in M/S. GREAVES COTTON LTD. VERSUS COMMISSIONER OF GST & CENTRAL EXCISE CHENNAI [2024 (6) TMI 1398 - CESTAT CHENNAI] had considered the very same issue in the appellant’s own case, where it was held that 'The said issue stands decided by the Tribunal in the appellant’s own case in M/S. GREAVES COTTON LTD. VERSUS COMMISSIONER OF GST & CENTRAL EXCISE CHENNAI [2024 (5) TMI 1470 - CESTAT CHENNAI] has held that 'the appellant is not the manufacturer of the waste and scrap and therefore, there is no liability on the appellant to pay the duty on the waste and scrap manufactured at the job worker’s end. Further, the provision of Rule 4(5)(a) of the CENVAT Credit Rules, 2004 nowhere states that the waste and scrap generated at the job worker’s end makes the principal manufacturer liable to payment of duty on such waste and scrap.'
The impugned order cannot sustain. The same is set aside. The appeal is allowed.
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2024 (9) TMI 1244
Denial of benefit of exemption notification dated 01.03.2002, as amended - recovery of central excise duty in terms of the proviso to sub-section (1) of section 11A of the Central Excise Act, 1944 - demand of interest and penalty - invocation of extended period of limitation.
Extended period of Limitation - whether the appellant had suppressed facts from the department with an intent to evade payment of central excise duty? - HELD THAT:- When the records were duly maintained by the appellant and intimation was also given in form D-3 to the jurisdictional division and range offices, it was for the Officers to put the appellant to notice if there was any discrepancy in the information contained in these forms. There is, however, nothing on the record to indicate that the appellant was ever put to notice about any discrepancy. This apart, audits were regularly conducted for the period from December 2003 to March 2006 and April 2003 to April 2004, but no discrepancy was noticed by the officers conducting the audit. The appellant had also maintained a register for fly-ash stock on monthly basis for use of fly-ash above 25% by weight and the appellant had claimed exemption from payment of central excise duty under the notification dated 01.03.2002 since fly-ash of over 25% by weight was used in the manufacture of AC Pressure Pipes.
The appellant had not suppressed facts relating to use of fly-ash by more than 25% by weight in the manufacture of AC Pressure Pipes. This is for the reason that information as contemplated under the Trade Notice was provided by the appellant to the department, and most importantly information contained in Form D-3 relating to receipt of fly-ash. The show cause notice nor the impugned order have denied the providing of such information by the appellant to the department. The show cause notice merely alleges that subsequent investigation revealed that the appellant had manipulated the records regarding the actual receipts of fly-ash - There is no reason given in the show cause notice to conclude that the appellant had suppressed facts with an intent to evade payment of central excise duty nor the impugned order passed by the Commissioner gives any reason as to why the appellant had suppressed facts with an intent to evade payment of central excise duty. In fact, the order passed by the Commissioner states that suppression means failure to disclose full information with intent to evade payment of duty. It is not so. The department has to establish that not only the assessee suppressed facts but also that such suppression was with an intent to evade payment of duty.
The provisions of section 11A (4) of the Central Excise Act, which are as similar to the provisions of section 11A (1) of the Central Excise Act, came up for interpretation before the Supreme Court in PUSHPAM PHARMACEUTICALS COMPANY VERSUS COLLECTOR OF C. EX., BOMBAY [1995 (3) TMI 100 - SUPREME COURT]. The Supreme Court observed that section 11A (4) empowers the Department to reopen the proceedings if levy has been short levied or not levied within six months from the relevant date but the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts.
In EASLAND COMBINES VERSUS COLLECTOR OF C. EX., COIMBATORE [2003 (1) TMI 107 - SUPREME COURT] the Supreme Court observed that for invoking the extended period of limitation, duty should not have been paid because of fraud, collusion, wilful statement, suppression of fact or contravention of any provision. These ingredients postulate a positive act and, therefore, mere failure to pay duty which is not due to fraud, collusion or wilful misstatement or suppression of facts is not sufficient to attract the extended period of limitation.
It is, therefore, clear that the suppression of facts should be deliberate and in taxation laws it can have only one meaning, namely that the correct information was not disclosed deliberately to escape payment of duty.
In THE COMMISSIONER, CENTRAL EXCISE AND CUSTOMS AND ANOTHER VERSUS M/S RELIANCE INDUSTRIES LTD. AND COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX VERSUS M/S RELIANCE INDUSTRIES LTD. [2023 (7) TMI 196 - SUPREME COURT] the Supreme Court held that if an assessee bona-fide believes that it was correctly discharging duty, then merely because the belief is ultimately found to be wrong by a judgment would not render such a belief of the assessee to be mala fide. If a dispute relates to interpretation of legal provisions, it would be totally unjustified to invoke the extended period of limitation. The Supreme Court further held that in any scheme of self-assessment, it is the responsibility of the assessee to determine the liability correctly and this determination is required to be made on the basis of his own judgment and in a bona-fide manner.
What, therefore, transpires from the aforesaid decisions is that there can be a difference of opinion between the department and an assessee. An assessee may genuinely believe that duty is not leviable, while the department may believe that duty is leviable. The assessee may, therefore, not pay duty in the self-assessment carried out by the assessee, but this would not mean that the assessee has wilfully suppressed facts. To invoke the extended period of limitation, atleast one of the five necessary elements must be established and their existence cannot be presumed merely because the assessee is operating under self-assessment.
In the present case, the appellant had not suppressed any facts from the department, much less with an intent to evade payment of central excise duty. The extended period of limitation could not, in view of the aforesaid decisions, have been invoked in the present case even if the returns were self-assessed.
Thus, as the extended period of limitation contemplated under the proviso to section 11A (1) of the Central Excise Act could not have been invoked, the impugned order dated 31.03.2021 passed by the Commissioner deserves to be set aside as the entire demand is covered under the extended period of limitation.
The impugned order dated 31.03.2021 passed by the Commissioner is, accordingly, set aside - Appeal allowed.
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2024 (9) TMI 1243
Payment of illegal gratification - Conspiracy - offences punishable under Section 120 B of the Indian Penal Code and Sections 7,12 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 - HELD THAT:- A perusal of the charge sheet shows that the allegation is about payment of illegal gratification of Rs.58,000/-, Rs.3,50,000/- and Rs.1,50,000/- respectively, on behalf of the said company to officials of the customs department to procure benefits to its customers. As regards the allegation regarding the payment of Rs.58,000/-, the case is that accused no.1- Mehul Jhaveri paid the said amount to another accused, Chandubhai Kalal. The charge sheet contains no allegation against the respondent to connect him with the payment. The allegations of being part of a criminal conspiracy are made against the respondent. As regards payment of illegal gratification of Rs.3,50,000/- and Rs.1,50,000/- respectively paid to Anand Singh Mall, in the charge sheet, the allegation against the respondent is that the respondent in conspiracy with Mehul Jhaveri abetted the offence of bribery and arranged for payment of illegal gratification of Rs.3,50,000/- to Anand Singh Mall at Delhi through one Kishan Rajwar, who happens to be the respondent's nephew. Further allegation is that Mehul Jhaveri, in conspiracy with the respondent and one Dushyant Mulani, arranged to deliver illegal gratification of Rs.1,50,000/- to Anand Singh Mall in Mumbai.
The prosecution is not relying upon any telephonic conversation between the respondent and any of the coaccused or the person to whom illegal gratification was allegedly paid.
The High Court has examined the statements of the witnesses and documents which were a part of the charge sheet. The High Court has observed that in the diary entries made by accused no.1, the word “Dilipbhai” has been mentioned at the top. Against the entries of the amounts of Rs.3,50,000/- and Rs.1,50,000/-, the letters DM have been mentioned. However, no witness stated that the letters DM meant the respondent, not Dushyant Mulani. As pointed out earlier, in reply to the discharge application, the appellant admitted that letters DM refer to Dushyant Mulani and not the respondent.
Therefore, except for the bald allegation of participation in the alleged conspiracy without giving any details of the conspiracy, the respondent has been roped in the charge sheet. His name did not appear in the First Information Report. Taking the material forming part of the charge sheet as true, it cannot be said that a prima facie case of involvement of the respondent was made out. In the circumstances, we find no error in the view taken by the High Court when it discharged the respondent.
Appeal dismissed.
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