Case Law (15823)

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI

COURT No. I

APPEAL Nos. C/830-833,835/2009,E/922,923,925-927/2009
(Arising out of Order-in-Original No. 64/CEX/COMMR/2008 dated 19.12.2008 passed by Commissioner of Central Excise, Customs & Service Tax, Aurangabad)

Loomfcraft Fabrics Pvt. Ltd.
Vatan Textiles Ltd. Rafeeq
Ahmed Khan
Shafeeq Ahmed Khan
Zaheer Ansari
Loomcraft Fabrics Pvt. Ltd.
Zaheer Ansari
Vatan Textiles Ltd.
Rafeeq Ahmed Khan
Shafeeq Ahmed Khan
Appellant

Vs.

Commissioner of Central Excise, Aurangabad
Respondent

 

Appearance:
None for appellant
Shri Ajay Kumar, Additional Commissioner (AR), for respondent

CORAM:
Hon’ble Dr. D.M. Misra, Member (Judicial)
Hon’ble Mr. P. Anjani Kumar, Member (Technical)

Date of Hearing: 25.02.2019
Date of Decision: 25.02.2019

ORDER No. A/85370-85379/2019

Per: Dr. D.M. Misra

These are all listed as mention matters.

2. Learned AR for the Revenue submitted a date chart wherein he has indicated that by order dated 29th July 2015, this Tribunal directed the appellant M/s. Vatan Textiles Ltd. to make pre-deposit of 25% of the duties confirmed; M/s. Loomcraft Fabrics Pvt. Ltd. and M/s. Fabrikart to deposit 10% of the penalties imposed upon them; also directed compliance of the pre-deposit by 5th October 2015. Aggrieved by the said order, the appellants filed a Writ Petition No.1346 of 2016 before the Hon’ble High Court and also they have approached this Tribunal for modification of the order of the Tribunal directing pre-deposit. The modification application was rejected by this Tribunal. In the meantime, the Hon’ble Bombay High Court (Aurangabad Bench) by order dated 3rd February 2016, issued a direction observing that the Tribunal shall not pass order of dismissal pending disposal of the appeal before the Hon’ble High Court. The learned AR for the Revenue submits that the Hon’ble High Court by its order dated 24th November 2018, dismissed the Writ Petition filed by the appellant. The learned AR submits that since the appellants have not complied with the direction of pre-deposit and their Writ Petition before the Hon’ble Bombay High Court (Aurangabad Bench) has been dismissed, the appeals before this Tribunal are not maintainable. We agree with the contention of the learned AR for the Revenue. Consequently, all these appeals are not maintainable and accordingly, dismissed.


(Pronounced in court)


(P. Anjani Kumar)
Member (Technical)

(Dr. D.M. Misra)
Member (Judicial)

tvu

Additional Info

  • Date Range (yyyy-mm-dd) Monday, 25 February 2019
  • Court/Authority CESTAT
  • Tax Type Customs duty
  • Subject Loomfcraft Fabrics Pvt. Ltd. Vatan Textiles Ltd. Rafeeq Ahmed Khan Shafeeq Ahmed Khan Zaheer Ansari Vs Commissioner of Central Excise, Aurangabad, Mumbai : APPEAL Nos. C/830-833,835/2009,E/922,923,925-927/2009
  • Petitioner/Appellant Loomfcraft Fabrics Pvt. Ltd. Vatan Textiles Ltd. Rafeeq Ahmed Khan Shafeeq Ahmed Khan Zaheer Ansari Vs Commissioner of Central Excise, Aurangabad
  • Respondent Loomfcraft Fabrics Pvt. Ltd. Vatan Textiles Ltd. Rafeeq Ahmed Khan Shafeeq Ahmed Khan Zaheer Ansari Vs Commissioner of Central Excise, Aurangabad
  • Appl no. or Appl year APPEAL Nos. C/830-833,835/2009,E/922,923,925-927/2009
  • Supreme Court Location Delhi
  • CESTAT Location Mumbai
  • AAR Location Delhi
  • Authority Supreme Court
  • AAR GST State Location Kerala

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
SOUTH REGIONAL BENCH AT HYDERABAD
BENCH - DB

COURT - I

Appeal(s) Involved: E/972/2011-DB
(Arising out of Order-in-Appeal No. 12-2011 (H-IV) CE dated 27/01/2011 passed by Commissioner of Customs Central Excise & Service Tax (Appeals), Hyderabad)

N.R. POLYMERS PVT LTD
Appellant(s)

Versus

Commissioner of Customs, Central Excise and Service Tax HYDERABAD-IV
Respondent(s)

Appearance:
None for the Appellant.
Mr Guna Ranjan, A.R. for the Respondent.

CORAM:
HON'BLE Mr. M.V.Ravindran, MEMBER (JUDICIAL)
HON'BLE Mr. P. Venkata Subba Rao, MEMBER (TECHNICAL)

Date of Hearing: 18/02/2019
Date of Decision: 18/02/2019

Final Order No. A/ 30217 / 2019

[Order per: M.V.Ravindran. ] .

This appeal is directed against order-in-appeal No. 12-2011 (H-IV) CE dated 27/01/2011.

2. The relevant facts that arise for consideration after filtering out unnecessary details are, appellant herein has a manufacturing activity, put up units in the zone wherein the State Govt had given deferred sales tax scheme. Appellant was manufacturing polythelene films and polythelene bags on which sales tax is payable. As per the scheme offered by the State Govt, he was entitled to retain sales tax amount collected with him for 14 years. In the interregnum period State Govt came up with a different scheme of prepayment of the sales tax collected with an option to make payment of only 50% of the amount of sales tax collected during the period in question. The appellant took advantage of the scheme and discharged the sales tax dues as per Scheme. During the course of audit, it was pointed out by the audit department that such amount of sales tax which has been retained by the appellant is liable to duty as it is a consideration received in respect of the goods sold by them. Appellant did not agree with the audit contention, hence a show-cause notice dated 09.06.2010 demanding duty, interest and for imposition of penalty was issued. Adjudicating authority after following due process of law confirmed the demands so raised with interest and imposed equivalent penalties. On an appeal, the 1st Appellate Authority also concurred with the view of the adjudicating authority and rejected the appeal, hence this appeal. None appeared on behalf of the appellant despite notice. Since the appeal is of 2011, we take up the same for disposal even in the absence of any representation from the appellant’s side.

3. Heard learned A.R. and perused the records.

4. We find that the facts are not much disputed. We find that the issue is whether the appellant is required to discharge central excise duty on the amount of sales tax retained by them after availing benefit extended by the State Govt for prepayment of such sales tax, which was collected by the appellants or otherwise.

5. In our view, the issue is more resintegra and is now finally decided by the Hon’ble Supreme Court in the case of CCE Jaipur II Vs Super Synotex (India) Ltd [2014(301)ELT 273 (S.C.)] and followed by the Tribunal in the case of Honda Motorcycles & Scooters India Pvt Ltd Vs CCE Delhi-III [2017(357) ELT 828(Tri-Che).

6. In view of the fact that the issue is now squarely covered by the judgement of the Apex Court, we find no merits in the appeal filed by the appellant. Appeal stands rejected and we hold that the impugned order is correct and legal and does not require any interference.


(Operative portion of the order pronounced in open court on conclusion of the hearing)


P. Venkata Subba Rao
MEMBER (TECHNICAL)

M.V.Ravindran
MEMBER (JUDICIAL)

Neela Reddy

Additional Info

  • Date Range (yyyy-mm-dd) Monday, 18 February 2019
  • Court/Authority CESTAT
  • Tax Type Central Excise
  • Subject N.R. POLYMERS PVT LTD Vs Commissioner of Customs, Central Excise and Service Tax HYDERABAD-IV, Hyderabad : Appeal(s) Involved: E/972/2011-DB
  • Petitioner/Appellant N.R. POLYMERS PVT LTD Vs Commissioner of Customs, Central Excise and Service Tax HYDERABAD-IV
  • Respondent N.R. POLYMERS PVT LTD Vs Commissioner of Customs, Central Excise and Service Tax HYDERABAD-IV
  • Appl no. or Appl year Appeal(s) Involved: E/972/2011-DB
  • Supreme Court Location Delhi
  • CESTAT Location Hyderabad
  • AAR Location Delhi
  • Authority Supreme Court
  • AAR GST State Location Kerala

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI

COURT No. I

APPLICATION No. E/EH/85079/2018,E/Misc/92002/2017, APPEAL Nos. E/396,397,1405,1406/2009, 1933,1934/2010
(Arising out of Orders-in-Original No. 27-29/2008/C dated 31.12.2008, 41/2010/C dated 7.6.2010, 09/2009/C dated 28.8.2009 passed by Commissioner of Central Excise, Nagpur)

Indoworth India Ltd.
S.N. Maheshwari
Indoworth India Ltd.
S.N. Maheshwari
Indoworth India Ltd.
S.N. Maheshwari
Appellant

Vs.

Commissioner of Central Excise, Nagpur
Respondent

Appearance:
Shri Gajendra Jain, Advocate, for appellant
Shri Bidhan Chandra, Additional Commissioner (AR), for respondent

CORAM:
Hon’ble Dr. D.M. Misra, Member (Judicial)
Hon’ble Mr. P. Anjani Kumar, Member (Technical)

Date of Hearing: 25.02.2019
Date of Decision: 25.02.2019

ORDER No. A/85386-85391/2019

Per: Dr. D.M. Misra

Heard both sides.

2. These appeals are filed assailing respective impugned orders by the appellants, since involve common issue are taken up together for disposal.

3. Learned Advocate, Shri Gajendra Jain, for the appellants submits that in principle, the appeals revolve around two issues, viz., (i) demands on finished goods alleged to have been cleared into DTA in excess of the permission for DTA sale allowed by the Development Commissioner, and (ii) admissibility of the benefit of Notification No.23/2003-CE dated 31.3.2003. He submits that in relation to issue No. (i), initially, the Development Commissioner has allowed DTA sale permission considering the valuation of clearances to their sister concern, also a 100% EOU, as deemed export. Subsequently, the Development Commissioner took the view that deemed export cannot be considered being not physical export, therefore, cannot be part of the DTA entitlement. The appellant challenged the same before the Hon’ble Bombay High Court. On similar issue, whether the Development Commissioner can review his own order relating to DTA sale permission, Revenue has filed an appeal before the Hon’ble Supreme Court against the order of the Hon’ble Bombay High Court in the case of Arvind Cotspin vs. UOI – 2017 (350) ELT 181 (Bom.). The Hon’ble Bombay High Court (Nagpur Bench), thus while considering their Writ Petition No.1299 of 2012 filed by the appellant, adjourned the matter sine die, awaiting the outcome of the issues pending before Hon’ble Supreme Court. The learned Advocate submits that since one of the issues is pending before the Hon’ble Apex Court, therefore, the matter may be remanded to the adjudicating authority to decide the issue on the basis of the outcome of the issues pending before the Hon’ble Apex Court.

4. Learned AR for the Revenue has no objection.

5. We find that since one of the issues raised by the appellant in the present appeal is pending before the Hon’ble Supreme Court and on the same, the Hon’ble Bombay High Court has adjourned the matter sine die observing that interim orders granted earlier to continue, therefore, at this stage, it is prudent to remand the matter to the adjudicating authority to decide all issues including the one pending before the Hon’ble Supreme Court on the basis of the outcome of the pending case before the Hon’ble Supreme Court. All issues are kept open. Appeals are allowed by way of remand. MAs disposed of.


(Pronounced in court)


(P. Anjani Kumar)
Member (Technical)

(Dr. D.M. Misra)
Member (Judicial)

tvu

Additional Info

  • Date Range (yyyy-mm-dd) Monday, 25 February 2019
  • Court/Authority CESTAT
  • Tax Type Central Excise
  • Subject Indoworth India Ltd. S.N. Maheshwari Vs Commissioner of Central Excise, Nagpur, Mumbai : APPEAL Nos. E/396,397,1405,1406/2009, 1933,1934/2010 APPEAL Nos. E/396,397,1405,1406/2009, 1933,1934/2010 APPEAL Nos. E/396,397,1405,1406/2009, 1933,1934/2010
  • Petitioner/Appellant Indoworth India Ltd. S.N. Maheshwari Vs Commissioner of Central Excise, Nagpur
  • Respondent Indoworth India Ltd. S.N. Maheshwari Vs Commissioner of Central Excise, Nagpur
  • Appl no. or Appl year APPEAL Nos. E/396,397,1405,1406/2009, 1933,1934/2010 APPEAL Nos. E/396,397,1405,1406/2009, 1933,1934/2010 APPEAL Nos. E/396,397,1405,1406/2009, 1933,1934/2010
  • Supreme Court Location Delhi
  • CESTAT Location Mumbai
  • AAR Location Delhi
  • Authority Supreme Court
  • AAR GST State Location Kerala

IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI

Appeal No. C/170/2011
(Arising out Order-in-Appeal No. 49 (Gr.IV)/2011 (JNCH)/IMP-33 dated 31.01.2011 passed by the Commissioner of Customs (Appeals), Nhava Sheva)


M/s. Metal Link Alloys Ltd.
Appellant

Vs.

Commissioner of Customs (Import), Nhava Sheva
Respondent

Appearance:
None for the appellant
Shri Bhushan Kamble, AC (AR) for the respondent

CORAM:
Hon’ble Mr C J Mathew, Member (Technical)
Hon’ble Dr. Suvendu Kumar Pati, Member (Judicial)

Date of hearing : 06-02-2019
Date of decision : 25-02-2019

O R D E R No: A/85364 / 2019

Per: C J Mathew

This appeal lies against order-in-appeal no. 49(Gr.IV)/2011 (JNCH)/IMP-33 dated 31st January 2011 of Commissioner of Customs (Appeals), Nhava Sheva which has upheld the order of the original authority confiscating goods valued at Rs.40,88,720/- under section 111(m) and 111(d) of the Customs Act, 1962 with option to redeem on payment of fine of Rs.8,50,000/- besides imposing penalty of Rs.3,50,000/- under section 112(a) of Customs Act, 1962.

2. The issue, in brief, is that the goods entered, vide bill of entry no. 956566/24.03.2010, for import as 'brass scrap engel' was found to comprise of 2 nos. ‘pipes of over 19 feet length and thickness of 22 inches’ which, according to the original authority, being old and used other than capital goods, was importable, as per paragraph 2.17, only against a specific licence issued in exercise of powers under the Foreign Trade Policy.

3. We have heard the Learned Authorised Representative. Though none appeared for the appellant, we find that this matter can be disposed off without detailed arguments at the bar.

4. The goods were declared as ‘scrap’ and it is on record that this is not in dispute. It has been held by the lower authorities that the ultimate usage is of no relevance to assessment. ‘Scrap,’ by its definition, cannot but be old and used and, therefore, the provisions of Foreign Trade Policy pertaining to licensing will not apply. The restrictive provisions in the Policy would be applicable to goods, other than ‘scrap’, identifiable as such. It was, therefore, incumbent on the lower authorities to first reclassify the goods under the appropriate heading on the First Schedule to the Customs Tariff Act, 1975. In the absence of such an exercise, the goods cannot be anything other than ‘scrap’ which is a separate heading in the First Schedule to the Customs Tariff Act, 1975. There cannot be two distinct determination of classification for the purpose of recourse to the general restrictions in the Foreign Trade Policy. Accordingly, there is no option but to consider the goods as ‘scrap’ and import of scrap requires no licence. Consequently, the finding of liability to confiscation, under section 111(d) and 111(m) of Customs Act, 1962, fails. The impugned order is set aside and appeal allowed.


(Pronounced in Court on 25.02.2019)


(Dr. Suvendu Kumar Pati)
Member (Judicial)


(C J Mathew)
Member (Technical)

//SR0702120219022102

Additional Info

  • Date Range (yyyy-mm-dd) Monday, 25 February 2019
  • Court/Authority CESTAT
  • Tax Type Customs duty
  • Subject M/s. Metal Link Alloys Ltd. Vs Commissioner of Customs (Import), Nhava Sheva, Mumbai : Appeal No. C/170/2011
  • Petitioner/Appellant M/s. Metal Link Alloys Ltd. Vs Commissioner of Customs (Import), Nhava Sheva
  • Respondent M/s. Metal Link Alloys Ltd. Vs Commissioner of Customs (Import), Nhava Sheva
  • Appl no. or Appl year Appeal No. C/170/2011
  • Supreme Court Location Delhi
  • CESTAT Location Mumbai
  • AAR Location Delhi
  • Authority Supreme Court
  • AAR GST State Location Kerala

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
WEST ZONAL BENCH AT MUMBAI

APPEAL NO. ST/85573/2014
(Arising out of Order-in-Appeal No. PUN-EXCUS-003-APP-289-13-14 dated 21.10.2013 passed by the Commissioner of Central Excise (Appeals), Pune-III.)

M/s Blue Boys
Appellant

Vs.

Commissioner of Service Tax, Pune-III
Respondent

Appearance:
Ms. Shamita Patel, Advocate with
Shri J. C. Patel, Advocate for Appellant
Shri M.P. Damle, Assistant Commissioner (AR) for Respondent

CORAM:
HON’BLE DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL)

Date of Hearing: 27.08.2018
Date of Decision: 26.02.2019

ORDER NO. A/85397/2019

Rejection of refund application filed in 2013 under Section 11B  of the Central Excise Act, 1944 pertaining to excess payment made in 2009 for the quarter January, 2009 to March, 2009 is being challenged in this appeal.

2. Factual backdrop of the case is that appellant paid Service Tax in excess amounting to Rs. 3,77,584/- for the quarter January, 2009 to March, 2009 inadvertently and part excess payment of Rs. 66,930/-and Rs. 8,755/- for the subsequent two quarters were adjusted but rest amount of Rs. 3,01,899/- could not be adjusted after 31.03.2010 apparently because of closer of factory, for which appellant filed a refund claim before the Deputy Commissioner of Service Tax, Pune on 04.01.2013, that was met with refusal by way of passing of Order-in-Original against which appellant filed appeal before the Commissioner of Central Excise (Appeals), Pune-III, that yielded no fruitful result as the same refund claim was made after the period of limitation was over.

3. In his memo of appeal and during the course of hearing of the appeal, learned Counsel for the appellant in citing judicial decisions reported in [1983 (13) ELT 1273] in the case of South India Corporation (Agencies) P. Ltd. Vs. CC, [2014 (300) ELT 255] in the case of Kansai Nerolac Paints Ltd. Vs. CC, [2005 (190) ELT 106] in the case of Jay Shree Tea & Industries Ltd. Vs. CCE, [2007 (215) ELT 63] in the case of Bijalimoni Tea Estate Vs. CCE etc. submitted that double payment made inadvertently cannot be treated as duty for which limitation of one year from the relevant date of payment would be applicable. For which appellant entitled to get refund as if factory has been closed w.e.f. 2012 and excess payment could not be adjusted as per provision of Central Excise Act and Rules.

4. In response to such submissions, learned Authorised Representative for the respondent-department supported the reasoning and rationality of the order passed by the Commissioner (Appeals) and in citing the decision of Hon'ble Bombay High Court reported in [2014 (34) STR 562 (Bom.)] in the case of Commissioner of Central Excise, Goa Vs. Andrews Telecommunication India P. Ltd. He further submitted that Section 11B of the Central Excise Act, 1944 can override in Service Tax matters as the same is held to be applicable vide Section 83 of the Finance Act, 1994, for which decision of the Hon'ble Supreme Court in Mafatlal Industries Ltd. [1997 (89) ELT 247 (SC)] would still hold good and therefore, the order passed by the Commissioner (Appeals) is rejecting such refund needs no interference by the Tribunal.

5. Heard from both sides at length and perused the case record. During the course of hearing, it has also been brought to the notice of this Bench that such refund application was filed even after surrender of licence in 2012. As has been held by Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. cited (supra) all claims of refund, except those which arise as a result of declaration of unconstitutionality of provision whereunder the levy was created, have to be preferred and adjudicated only under the provision of respective enactment, which in the instant case is Section 11B of the Central Excise Act and Salt Act. In view of such pronunciation of the nine judges Bench of the Hon'ble Supreme Court and having regard to the fact that Section 11B provides a stipulation of one year to claim refund, applicability of case laws cited by learned Counsel for the appellant is of no help to grant the necessary relief to the appellant. Hence the order.

ORDER

6. The appeal is dismissed and the order of the Commissioner of Central Excise (Appeals), Pune-III vide Order-in-Appeal No. PUN- EXCUS-003-APP-289-13-14 dated 21.10.2013 is hereby confirmed.


(Pronounced in court on 26.02.2019)


(Dr. Suvendu Kumar Pati)
Member (Judicial)

Prasad

Additional Info

  • Date Range (yyyy-mm-dd) Tuesday, 26 February 2019
  • Court/Authority CESTAT
  • Tax Type Service Tax
  • Subject M/s Blue Boys Vs Commissioner of Service Tax, Pune-III, Mumbai : APPEAL NO. ST/85573/2014
  • Petitioner/Appellant M/s Blue Boys Vs Commissioner of Service Tax, Pune-III
  • Respondent M/s Blue Boys Vs Commissioner of Service Tax, Pune-III
  • Supreme Court Location Delhi
  • CESTAT Location Mumbai
  • AAR Location Delhi
  • Authority Supreme Court
  • AAR GST State Location Kerala

CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH AT HYDERABAD
Division Bench

Court – I


Appeal No.    Appellant    Respondent    Impugned Order No. &Date
E/1212/2011    Cubex Tubings Ltd.    CCE,  C&ST,Hyderabad-I    O-I-O No. 04/2011 (CE)-Commr. Dated 31.01.2011 passed by CCCE, Hyderabad-I.
E/1238/2011    P.H. Bhandari, Managing Director, Cubex Tubings Ltd.    .do.    .do.
E/1239/2011    Virendra Bhandari, Cubex Tubings Ltd.    .do.    .do.
E/1240/2011    U.M. Bhandari, Cubex Tubings Ltd.    .do.    .do.
E/1241/2011    Surendra Bhandari, Cubex Tubings Ltd.    .do.    .do.
E/1245/2011    Satish Agarwal,Partner, Time & Space Haulers    .do.    .do.

Appearance
S/Shri S. Ravi, Sr. Advocate and V.J. Shankaram, Advocate for appellant
Shri Arun Kumar, Jt. Commissioner/AR for the Respondent.

Coram:
Hon’ble Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL)
Hon’ble Mr. P.V. SUBBA RAO, MEMBER (TECHNICAL)

Date of Hearing: 18.02.2019
Date of Decision: 28.02.2019

FINAL ORDER No. A/30291 – 30296/2019

[Order per: Mr. M.V. Ravindran)

1. All these appeals are directed against Order-in-Original No. 04/2011 (CE)-Commr. Dated 31.01.2011.

2. On perusal of records, it transpires that the issue is regarding confirmation of demands against the main appellant M/s Cubex Tubings Limited for availing CENVAT credit of certain bills of entry which according to the Revenue were never received by the appellant in their factory premises. Show cause notice was issued for reversal of such an amount. Appellants contested the show cause notice on merits and also sought for cross examination of various persons on whose statement a reliance was placed in the show cause notice to allege that appellant had not received the inputs on which CENVAT Credit was availed. The adjudicating authority in the impugned order recorded that three persons were called for cross examination but they did not turn up and did not give cross examination of others and pass the orders confirming the demands and imposed penalties on all the appellants.

3. Ld. Sr. Counsel draws our attention to the O-I-O and various records and submits that the entire case made up by the Revenue is based on the statements recorded by various individuals who were either employees, partners of the transport company of Time & Space Haulers. It is his statement that in order to bring out the truth that they had received the material on which CENVAT Credit was availed, they sought cross examination of the persons, which is not granted to them. He submits that the law is now well settled by the decision of Hon’ble High Court of Punjab & Haryana in the case of Ambika International [2016-TIOL-1238-HC-P&H- CX] and by HI Tech Abrasives Ltd. [2018(352)ELT 961 (Chattisgarh)].

4. Ld. DR reiterated the findings of the lower authorities.

5. On careful consideration, we find that the appellant herein was seeking for the cross examination of various persons as indicated in their appeal memorandum in order to defend the allegation raised in the show cause notice. The adjudicating authority did not grant the said cross examination. In our view, the entire case needs reconsideration by the adjudicating authority, as Hon’ble High Court of Punjab & Haryana in the case of Ambika International and Hon’ble High Court of Chattisgarh in the case of HiTech Abrasives Limited have laid down the law that provisions of Section 9D of Central Excise Act, 1944 has to be followed scrupulously before deciding the issue in adjudicating proceedings. The said ratio is binding on the adjudicating authority also.

6. In view of the foregoing, without expressing any opinion on the merits of the case, leaving all the issues open, the impugned order is set aside and the matters are remitted back to the adjudicating authority to reconsider the issue afresh after following the provisions of Section 9D of Central Excise Act, 1944 as has been held by Hon’ble High Courts of Punjab & Haryana and Chattisgarh, before coming to the conclusion on the matter and following the principles of natural justice.

7. All the appeals are disposed of by way of remand to the adjudicating authority.


(Pronounced in open court on 28.02.2019)


(P.VENKATA SUBBA RAO)                   
Member (TECHNICAL)                        

(M.V. RAVINDRAN)                                                                                                                                                                               MEMBER (JUDICIAL)
vrg

Additional Info

  • Date Range (yyyy-mm-dd) Thursday, 28 February 2019
  • Court/Authority CESTAT
  • Tax Type Central Excise
  • Subject Cubex Tubings Ltd. Vs CCE, C&ST,Hyderabad-I, Hyderabad : Appeal No. E/1212/2011
  • Petitioner/Appellant Cubex Tubings Ltd. Vs CCE, C&ST,Hyderabad-I
  • Respondent Cubex Tubings Ltd. Vs CCE, C&ST,Hyderabad-I
  • Supreme Court Location Delhi
  • CESTAT Location Hyderabad
  • AAR Location Delhi
  • Authority Supreme Court
  • AAR GST State Location Kerala

IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI

APPEAL NO: E/87658/2019
Arising out of: Order-in-Appeal No. NSK/CEX/000/APPL/310/2017-18 dated 12/03/2018
Passed by: Commissioner (Appeals), Central Tax & CentralExcise, Nasik.

Tirupati Pipe & Allied India Pvt. Ltd.
Appellants

versus

CCGST, Nasik 
Respondent

Appellants – Represented by: Shri Mayur Shroff, Advocate
Respondent – Represented by: Shri A.B. Kulgod, Assistant Commissioner (AR)

Date of hearing: 05/12/2018
Date of pronouncement: 13/02/2019

CORAM
HON’BLE Shri Ajay Sharma, Member (Judicial)

ORDER NO: A/85278 / 2019

The issue to be decided in this Appeal is whether the Appellant is required to reverse/pay back the amount equivalent to the Cenvat Credit contained in respect of inputs received for use in the manufacture of final product, which are lying in stock as on 1.4.20007, as per the proviso of Rule 11(2) & 11(3) of the Cenvat Credit Rules, 2004, before exercising the option for exemption of Excise duty, under notification No.8/2003-CE dated 1.3.2003?

2. The facts of the matter are that the appellant are availing the benefit of Notification No.8/2003-CE dated 1.3.2003 as amended. During the Financial Year 2006-07, the appellant procured/purchased the duty paid raw materials and availed the benefit of Cenvat credit facility under the Cenvat Credit Rules, 2004 on the raw materials procured for manufacturing of M.S. Pipes and paying central excise duty at the appropriate rate on the clearances of final products namely M.S. Pipes as well as raw materials after crossing the exemption limit. The appellant vide its letter dated 1.4.2007 informed that during the year 2006-07, the aggregate value of all excisable goods cleared by them for home consumption comes to Rs.3,84,64,932/-. Therefore during the ensuing financial year 2007-08, they are entitled to avail full exemption from central excise duty, on their clearances upto an aggregate value of Rs.1,50,00,000/- and have therefore opted out of Cenvat/Modvat facility w.e.f. 1.4.2007. They also informed the department about the position of Cenvat credit account as on the date of opting out of Cenvat and balance of inputs and finished goods containing the Cenvat credit lying with them as on 31.3.2007.

3. As per the department, the appellant after given the option letter to the competent authority, have cleared the excisable goods so manufactured at nil rate of duty of central excise including Ed. Cess & H.S. Ed. Cess from their factory by availing the benefit of aforesaid notification, even though they did not fulfill the condition laid down under Rule 11(2) & (3) ibid. The appellant is thus ineligible for benefit of exemption under the aforesaid notification. Accordingly a show cause notice dated 29/30.4.2008 was issued to the Appellant as to why:-

(i)Central excise duty on the excisable goods cleared without payment of duty from the factory by the assessee valued at Rs.1,50,00,000/- on which central excise duty Rs.24,62,478/- including Ed.& H.S.Ed Cess should not be demanded and recovered under Section 11A of Central Excise Act, 1944.

(ii)interest should not be charged/ demanded and recovered under the provisions of section 11AB of Central Excise Act, 1944, and

(iii) penalty should not be imposed upon them under the Sec 11AC of Central Excise Act, 1944 read with rule 25 of Central Excise Rules, 2002 for the contravention of Rule 4,5,6 & 8 of Central Excise Rules, 2002 as they have removed the excisable goods without payment of duty from their factory and do not followed the provisions of rules made thereunder,

The Adjudicating authority dropped the proceedings vide Order-in- Original dated 2.2.2017 while relying upon the decision of this Tribunal vide order No. A/797/09/SMB/C-IV, dated 15.12.2009 in appellant’s own case, on the identical issue, for earlier financial year. The Adjudicating authority also relied upon the decision of the Hon’ble Supreme Court The Adjudicating authority dropped the proceedings vide Order-in-in the matter of CCE, Pune vs. Dai Ichi Karkaria; reported in 1999(112) ELT 353 (SC) while dropping the proceeding initiated by the revenue against the Appellant. On Appeal filed by the Revenue, the Commissioner (Appeals), Central Tax and Central Excise, Nasik vide impugned order dated 27.3.2018 partly allowed the Appeal filed by Revenue and reduced the demand to Rs.8,26,078/- alongwith interest.

4. I have heard ld. Counsel for the appellant and ld. Authorised Representative for the Revenue and perused the records. Ld. Counsel for the Appellant submitted that although on identical issue for the earlier financial year this Tribunal has held in favour of the Appellant but still the ld. Commissioner did not rely upon the same only on the ground that in view of Section 35R (1) & (2) of the Central Excise Act, 1944 the appeal filed by the department against the said order before the Hon’ble High Court of Judicature at Bombay was withdrawn and therefore the said decision of this Tribunal is not binding. He also submitted that the conduct of the ld. Commissioner, amounts to judicial indiscipline. He further submitted that although the issue involved in this matter is also covered in favour of the appellant in view of the law laid down by the Hon’ble Supreme Court in the matter of Dai Ichi Karkaria (supra) and also of the Hon’ble High Court of Punjab & Haryana in the matter of CCE, Chandigarh vs. CNC Commercial Ltd.; 2008 (224) ELT 239 (P&H) but still the ld. Commissioner did not rely upon the same and rather tried to distinguish them on some flimsy ground. The ld. Authorised Representative appearing on behalf of Revenue defended the findings recorded in the impugned order and after reiterating the same, prayed for dismissal of Appeal.

5. From the tenor of the order passed by the Commissioner (Appeals), I am of the view that the course adopted by him is not justified. Judicial propriety demands that when there is an order of higher forum available, that too in assessee’s own case, the same has to be followed by the lower authority unless certain distinguishing features are pointed out by such lower authority or the order of the higher authority is reversed or suspended. Nothing of this sort has happened in the present case. It is true that the department has preferred an Appeal before the Hon’ble High Court against the order of this Tribunal. However, the Appeal was dismissed as withdrawn due to monetary limits. This fact itself is not sufficient to empower the Commissioner to take different view and not to follow the order passed by this Tribunal. The ld. Commissioner was bound to follow the decision of the Tribunal as per the demands of judicial propriety and the impugned order is nothing but the breach of doctrine of judicial discipline and judicial propriety. I am surprised to notice the reasoning given by the ld. Commissioner for not following the decision of this Tribunal in Appellant’s own case on identical issue for the earlier financial year. Otherwise also, the Hon’ble Supreme Court in the matter of Dai Ichi Karkaria (supra) has laid down that the Cenvat credit is indefeasible and there is no one to one correlation between the input credit and final product (duty paid). On the similar issue, a co-ordinate Bench of the Tribunal in the matter of CCE, Chandigarh vs. CNC Commercial Ltd.; 2006(206) ELT 874 (Tri-Del) while dismissing the Appeal filed by Revenue, observed as under:-

“10. Coming to the submission of the learned DR that assessee opting for exemption must fulfil the terms of the exemption, it is to be noted that exemption is in terms of notification issued from year to year and not in terms of Rule 9(2) of Cenvat Credit Rules. There is no reference or incorporation of the condition of Rule 9(2) in those notifications. That apart, Rule 9(2) cannot be interpreted in a manner as to undermine the indefeasibility of Modvat credit. A reading of the said rule would make it clear that what is required in terms of the rule is to determine the Cenvat credit taken on the inputs in stock and debit it from the credit balance, "if any”, lying in assessee’s credit, and further credit balance, "if any”, lapsing and not recall of Modvat credit already utilised correctly. If the Rule contemplated additional cash payment on account of balance in Cenvat credit being insufficient, the Rule would not have qualified the credit balance as balance ”if any”. The addition of those words make it clear that Cenvat credit balance alone is contemplated and no additional payment. An interpretation that requires additional payment if the balance in the credit account is not sufficient to meet debit of Cenvat credit on inputs in stock etc. would be to permit recall of Modvat credit correctly utilised. Such an interpretation goes against the scheme of Cenvat credit and the language of Rule 9(2).”

The aforesaid order of the Tribunal was affirmed by the Hon’ble Punjab & Haryana High Court in the Appeal filled by Revenue in the matter of CNC Commercial Ltd.(supra) and while following the law laid down by the Hon’ble Supreme Court in Dai Ichi Karkaria case (supra), the Hon’ble High Court held as under:-

“5. We have heard the learned Counsel for the appellant-revenue of a considerable length and find that no question of law warranting admission of the appeal would arise. There are findings of fact recorded by the Commissioner (Appeals) as upheld by the Tribunal to the effect that the assessee-respondent had correctly availed and utilized the credit of duty paid by them on those inputs when these final products were chargeable to excise duty. It has further been found that there was no one to one relationship of the inputs used and the final products manufactured and cleared from the factory. It has rightly been held that the credit of duty paid on inputs cannot be confined to a particular raw material to which the credit is related and out of which a final product is manufactured. Therefore, it has been rightly held that the assessee-respondent were not required to reverse the Cenvat credit of Rs. 88,731/- The judgment of the Hon’ble Supreme Court in Dai Ichi Karkaria case has been correctly applied. There is thus no merit in these appeals which are accordingly dismissed.”

6. This Tribunal also while deciding the appeal filed by the appellant for the earlier financial year, vide order No.A/797/09/SMB/C-IV, dated 15.12.2009, relied upon the decision of the Hon’ble High Court in the matter of CNC Commercial Ltd.(supra) and held as under:-

“5. I have gone through the submissions made by both the parties and find that the case of the respondent is squarely covered by the decision of Punjab & Haryana High Court in Commissioner of Central Excise, Chandigarh vs. CNC Commercial Ltd.-2008 (224) ELT 239 (P&H), wherein the Hon’ble High Court has held that in these facts and circumstances, while opting for SSI exemption the assessee is not required to reverse the CENVAT Credit. Following the same ratio, I do not find any merits in the Appeal filed by the Revenue. Accordingly, the impugned order is upheld and the appeal is rejected.”

7. Although the Revenue filed the Appeal against the aforesaid order of this Tribunal, but the same was withdrawn, for whatever reason. The decision passed by this Tribunal or any co-ordinate bench of the Tribunal has binding value and any lower authority is bound by the said decision, unless it is disagreed and referred to a Larger Bench.

8. Therefore in the light of the above mentioned facts and the judicial decisions cited as above, I am of the view that the earlier decision of this Tribunal in Appellant’s own case is perfectly valid and is as per law and there is no reason to differ with the same and the ld. Commissioner has committed an error in not following the same and passing the impugned order. The impugned order is therefore set aside and the Appeal filed by the Appellant is allowed.


(Pronounced in Court on 13/02/2019)


(Ajay Sharma)
Member (Judicial)

arch

Additional Info

  • Date Range (yyyy-mm-dd) Wednesday, 13 February 2019
  • Court/Authority CESTAT
  • Tax Type Central Excise
  • Subject Tirupati Pipe & Allied India Pvt. Ltd. Vs CCGST, Nasik, Mumbai : APPEAL NO: E/87658/2019
  • Petitioner/Appellant Tirupati Pipe & Allied India Pvt. Ltd. Vs CCGST, Nasik
  • Respondent Tirupati Pipe & Allied India Pvt. Ltd. Vs CCGST, Nasik
  • Appl no. or Appl year APPEAL NO: E/87658/2019
  • Supreme Court Location Delhi
  • CESTAT Location Mumbai
  • AAR Location Delhi
  • Authority Supreme Court
  • AAR GST State Location Kerala




IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI

APPEAL NO: ST/87577/2018
Arising out of: Order-in-Appeal No. SM/CGST/CX/Bhiwandi/ APP-68/17-18 dated 04/04/2018
Passed by: Commissioner (Appeals), CGST & CX, Mumbai.


ABM Knowledge Ltd.
Appellants

versus

CC, Mumbai Appeal-III
Respondent

Appellants – Represented by: Shri Mahesh Raichandani, Advocate
Respondent – Represented by: Shri O.M. Shivdikar, Assistant Commissioner (A.R.)

Date of hearing: 15/11/2018
Date of pronouncement: 12/02/2019

CORAM
HON’BLE Shri Ajay Sharma, Member (Judicial)

ORDER NO: A/85280 / 2019

The instant Appeal has been filed from the order dated04/04/2018 passed by Commissioner (Appeals), CGST & CX, Mumbai.

2. The issue involved in this matter is whether the appellant is entitled to avail the input credit on the invoices which are issued in the name of the premises other then the registered premises of the Appellant.

3. I have heard ld. Counsel for the appellant and ld. Authorised Representative for the revenue and perused the records. The Appellants are engaged in providing information technology service and the registered address of the Appellant is at Bandra and they are registered with the Service Tax Department. They availed Cenvat credit on inputs, input services and capital goods during the period 2010-11 to 2013-14 under the provision of Cenvat Credit Rules, 2004. The authorities below have disallowed the Cenvat Credit availed by the Appellant for the input service i.e. renting of immovable property service, on the ground that the invoices were issued in the name of the unregistered premises of the Appellant at Andheri and New Delhi. According to learned counsel appearing for the Appellant, not registering their office at Delhi or Andheri is a procedural lapse and substantive benefit cannot be denied on such procedural lapse and in support of his submission, the ld. Counsel relied upon the decision of the Hon’ble Karnataka High Court in the matter of mPortal India Wireless Solutions (P) Ltd. Vs. Commissioner; reported in 2012(27) STR 134 (Kar.). He submitted that although the appellant has cited the same decision before the ld. Commissioner, which has been recorded in the impugned order, but there is no finding on the same. He further submitted that both the authorities below, while rejecting the claim of the Appellant, have gone beyond the scope of show cause notice and erred in holding that if the Appellant does not opt for centralized registration, they were required to register the premises as “Input Service Distributor” under the provisions of the Service Tax (Registration of Special Category of Persons) Rules, 2005. According to the ld. Counsel, in the facts of the present case no penalty can be levied on the Appellant either under Rule 15(3) of Cenvat Credit Rules, 2004 or under Section 76/78 of the Finance Act, 1994. The ld. Authorised Representative reiterated the findings recorded in the impugned order and submitted that since the Appellant had availed input credit on such services of Renting in respect of unregistered premises, therefore the credit availed on such invoices deserved to be disallowed in view of Rule 9 of Cenvat Credit Rules, 2004.

4. It is not disputed that the appellants are having Service Tax Registration for a single premises i.e. their office at Bandra. However, they availed cenvat credit on input services viz., renting of immovable property service, pertaining to premises other than the registered premises i.e. for the premises at Andheri and New Delhi. It is also not the case of the Revenue that those two premises do not belong to the Appellant. The show cause notice issued to the Appellant did not dispute that the service in question is an input service which has been received, consumed and utilised by the appellants for providing taxable output service. It is the case of the Appellant that the service provider has paid the service tax to the credit of the central government after collecting it from the appellants. Therefore, according to appellant the essential requirements for availment of input credit were satisfied. I have to decide whether the requirement of the registered premises is mandatory or otherwise.

5. I am surprise to find that on the aforesaid issue, although the decision of the Hon’ble Karnataka High Court in the matter of mPortal India Wireless Solutions (P) Ltd. (supra) has been referred by the ld. Commissioner in the impugned order as the submission of the Appellant, but there is no finding on that. The Adjudicating Authority or the Appellate Authority, as the case may be, are suppose to deal with each and every submission raised by the Appellant and when it comes to the decision of the Hon’ble Supreme Court/ High Court or of the Tribunal, they are bound to deal with the same. In the matter of mPortal India Wireless Solutions (P) Ltd. (supra) the question that arises for consideration of the Hon’ble High Court was whether the authorities were justified in refusing to grant Cenvat credit to which the assessee was legally entitled to, only on the ground that he is not registered with the department and the Hon’ble High Court while answering the question in favour of assessee, held as under:-

“7. Insofar as requirement of registration with the department as a condition precedent for claiming Cenvat credit is concerned, learned counsel appearing for both parties were unable to point out any provision in the Cenvat Credit Rules which impose such restriction. In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground  which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside.”

6. The aforementioned decision of the Hon’ble High Court has been followed by the Tribunal from time to time . The rejection of refund claim on the ground of non-registration had come up before a co-ordinate Bench of the Tribunal in the matter of Commr. Of S.T., Chennai vs. Scioinspire Consulting Services (I) P. Ltd.; 2017 (47) S.T.R. 188 (Tri.Chennai) in which the Tribunal while relying upon the decision of the Hon’ble Karnataka High Court in the matter of mPortal India Wireless Solutions (P) Ltd. (supra) answered the issue in favour of the assessee and the relevant extract of the said order is as under:-

5. Heard both sides and perused the appeal records. Let me first take up the issue of denial of credit on the ground of non- registration of premises. I find that this issue has already been settled by the Hon’ble High Court of Karnataka in the case law relied upon by learned counsel in the case of mPortal India Wireless Solutions (P) Ltd. v. CST, Bangalore - 2012 (27) S.T.R. 134. The said Karnataka High Court’s decision was followed by this very Bench vide Final Order Nos. 40917-40922/2016 [ST/40887 to 40892/2015], dated 9-6-2016 [2016 (45) S.T.R. 242 (Tribunal)] in the case of KLA Tencor Software India Private Ltd. v. CST, Chennai-III. The relevant paragraph of this Bench order is reproduced as under :-

“7. With regard to issue (i), the contention of the appellant is that under Section 69 of the Finance Act, 1994 read with Rule 4 of Service Tax Rules, 1994 registration under service tax legislation is required only for service providers who are liable to pay service tax and the appellant herein is predominantly engaged in the provision of export of service and therefore they are not liable to pay service tax and consequently not required to register with the department. The appellant has placed reliance on the judgment of Karnataka High Court in the case of mPortal India Wireless Solutions Pvt. Ltd. v. ST -2012 (27) S.T.R. 134. The Hon’ble High Court at para-7 of its order has held as follows :-

“7. Insofar as requirement of registration with the department as a condition precedent for claiming Cenvat credit is concerned, learned counsel appearing for both parties were unable to point out any provision in the Cenvat Credit Rules which impose such restriction. In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside.”

The above ruling of Hon’ble High Court is squarely applicable to the facts of this case.
Another ruling that has been relied on by the appellant is that of Dorling Kindersley (I) Pvt. Ltd. v. CCE & ST, Noida (supra) which is also on the aspect of denial of refund claim on the ground of non-registration and the same was held to be unsustainable. Following these judicial precedents, the first issue is answered in favour of the appellant holding that even though they were not registered prior to 16-6-2008, they are eligible for refund of the unutilized credit which was accumulated prior to registration.”

xxx         xxx         xxx

8. As regards denial of refund on renting of immovable property service on account of non-registration of the premises, I find that the law is well settled. In the case of KLA Tencor Software Private Limited v. CST, Chennai (Final Order Nos. 40917-40922/2016, dated 9-6-2016), it was held that registration is not a mandatory condition to avail refund under the Notifications prescribed by placing reliance on the ruling of mPortal Wireless Solutions Private Limited v. CST, Bangalore - 2012 (27) S.T.R. 134 (Kar.). The ruling of CCE v. Sutham Nylocots- 2014 (306) E.L.T. 255, relied upon by the Revenue, is not applicable to the facts of the present case in as much as it was a case of classification/clandestine removal and credit based on registration is not a prescribed condition in terms of the exemption notification would not automatically entitle Cenvat credit. Since, the ruling of the Madras High Court is not applicable to the facts of the present case and that the ruling of the Karnataka High Court is more akin to the facts of the present case, the refund of Cenvat credit on renting of immovable property is allowed, follow the ruling of the Karnataka High Court.

9. Accordingly, I pass the following order:
(a) xxx
(b) As regards denial of refund on account of non- registration, department appeal is rejected.”

7. The aforementioned decision of the Tribunal was affirmed by the Hon’ble High Court of Judicature at Madras in the matter of Commr. of S.T.-III, Chennai vs. CESTAT, Chennai; 2017 (3) G.S.T.L. 45 (Mad.).

8. The learned Authorised Representative for the Revenue failed to point out any provision in the Cenvat Credit Rules which prescribes that registration of premises is a condition precedent for claiming Cenvat credit and in its absence the claim has to be rejected. There is no such restriction in the Cenvat Credit Rules and in particular Rule 9 which has been relied upon by the Revenue. In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitle to the benefit of refund, both the authorities below have committed an error in rejecting the claim for refund on the ground which is not existence in law. There is no doubt that it is a beneficial provision and it is settled legal principle that any beneficial provision should be interpreted liberally. The Hon’ble Supreme Court in the matter of Mangalore Chemicals & Fertilizers Ltd. Vs. Dy. Commissioner; 1991(55) ELT 437 (SC) has laid down that “there are conditions and conditions. Some may be substantive, mandatory and based on considerations of policy and some others may merely belong to the area of procedure. It will be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purposes they were intended to serve.” There is no dispute that lapse is there on the part of the Appellant but it is merely procedural lapse and due to that substantive benefit of Cenvat Credit cannot be denied to the Appellant. Rule 14 of the Cenvat Credit Rules, 2004 provides for recovery of Cenvat credit wrongly taken. Since in view of the decisions cited above, I am of the view that the Appellant is entitle for input credit, therefore the said Rule 14 is not applicable on the facts of the case. So far as the finding of the ld. Commissioner in the were required to register the premises as “Input Service Distributor” (ISD) under the provisions of the Service Tax (Registration of Special Category of Persons) Rules, 2005, the same is undoubtedly beyond the scope of show cause notice, since there was no allegation regarding the violation of not taking registration as ISD either in the audit report or in the show cause notice.

9. In view of the above, the order passed by the ld. Commissioner (Appeals) is set aside and the Appeal filed by the Appellant is allowed.

(Pronounced in Court on 12/02/2019)


(Ajay Sharma)
Member (Judicial)

arch





Additional Info

  • Date Range (yyyy-mm-dd) Tuesday, 12 February 2019
  • Court/Authority CESTAT
  • Tax Type Service Tax
  • Subject ABM Knowledge Ltd. Vs CC, Mumbai Appeal-III, Mumbai : APPEAL NO: ST/87577/2018
  • Petitioner/Appellant ABM Knowledge Ltd. Vs CC, Mumbai Appeal-III
  • Respondent ABM Knowledge Ltd. Vs CC, Mumbai Appeal-III
  • Appl no. or Appl year APPEAL NO: ST/87577/2018
  • Supreme Court Location Delhi
  • CESTAT Location Mumbai
  • AAR Location Delhi
  • Authority Supreme Court
  • AAR GST State Location Kerala

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
REGIONAL BENCH : ALLAHABAD

COURT NO. I

C/Stay/70518 & 70517/2018 In APPEAL Nos.C/71388 & 71389/2018 With APPEAL Nos.C/71403-71405/2018-CU[SM]
(Arising out of Order-in-Appeal No. 440, 441 & 442-Cus/APPL/LKO/2018 dated 27/08/2018 passed by Commissioner of Customs, GST & Central Excise (Appeals), Lucknow)

[IN APPEAL Nos.C/71388 & 71389/2018]

Commissioner of Customs, Lucknow Preventive,
Appellants

Vs.

Rajesh Jhamatmal Bhat &
Rajesh Chetandas Vaswani,
Respondents

[IN APPEAL Nos.C/71403-71405/2018]
Shri Rajesh Vaswani,
Rajesh Jhamatmal Bhat &
Murli Asandas Chandiramani
Appellants

Vs.

Commissioner of Customs, Lucknow Preventive
Respondents

Appearance:
Shri Shiv Pratap Singh, Deputy Commissioner (AR) &
Shri Gyanendra Kr. Tripathi, Deputy Commissioner (AR) for Revenue
Shri Kartikeya Narain, Advocate for Assessee

CORAM:
HON’BLE Mr. Anil G. Shakkarwar, Member (Technical)

Date of Hearing : 25/01/2019
Date of Pronouncement : 13/02/2019

FINAL ORDER NOs- 70261-70265 / 2019

Per: Anil G. Shakkarwar

The above stated 5 appeals are arising out of common impugned Order-in-Appeal No. 440, 441 & 442-Cus/APPL/LKO/2018 dated 27/08/2018 passed by Commissioner of Customs, GST & Central Excise (Appeals), Lucknow. Appeal Nos.C/71388 & 71389/2018 were filed by revenue with stay applications. The remaining three appeals have been filed by individuals on whom personal penalties were imposed. Further, impugned gold was allowed to be redeemed on payment of fine.

2. Brief facts of the case as recorded by learned Commissioner (Appeals) are that the officers of Directorate of Revenue Intelligence, Varanasi recovered 2050gm foreign origin gold and foreign origin currency of 17620 Thai Baht from appellant Shri Rajesh Jhamatmal Bhat. Similarly, 2000gm foreign origin gold was recovered from appellant Shri Rajesh Chetandas Vaswani. On the basis of information given by above two appellants DRI Officers intercepted Shri Murli Asandas Chandiramani. The investigations revealed that impugned gold was brought by Shri Shri Rajesh Chetandas Vaswani and Shri Rajesh Jhamatmal Bhat from Bangkok at Gaya International Airport without declaring the same to the Customs under Section 77 of the Customs Act, 1962. From Gaya, the above stated two appellants traveled to Mughalsarai Railway junction and board Sanghmitra Express for Nagpur. The appellant Shri Murli Asandas Chandiramani was alleged to help the other two appellants in alleged smuggling of the impugned gold. Therefore, impugned gold was confiscated and above stated three appellants were imposed with penalties through Order-in-Original dated 30.12.2015. On appeal before learned Commissioner (Appeals), the learned Commissioner (Appeals) took into consideration the provisions of Section 125 of Customs, Act, 1962, ruling by Hon’ble Bombay High Court in the case of Commissioner of Customs Airport, Mumbai Vs Alfred Menezes reported at 2009 (242) ELT 334 (Bom.), decision of this Tribunal in the case of Yakub Ibrahim Yusuf Vs Commissioner of Customs, Mumbai reported at 2011 (263) ELT 685 (Tri.-Mumbai), Union of India Vs Dhanak M. Ramji reported at 2009 (248) ELT 127 (Bom.) ruled by Hon’ble Bombay High Court and this Tribunal’s Order in the case of Commissioner of Customs (Preventive), Lucknow Vs Mazaharul Haq reported at 2016 (341) ELT 450 (Tri.-All.) and held that there was no sufficient ground for absolute confiscation of gold. Therefore, learned Commissioner (Appeals) through the impugned order gave option to redeem the confiscated gold on payment of redemption fine of Rs.25 lakhs to appellant Shri Rajesh Chetandas Vaswani and Shri Rajesh Jhamatmal Bhat. He further ordered payment of applicable duty on the said gold. However, he did not interfere with the penalties imposed on Shri Rajesh Jhamatmal Bhat, Shri Rajesh Chetandas Vaswani and Shri Murli Asandas Chandiramani to the tune of Rs.10 lakhs each under Section 112 of the Customs Act, 1962. Aggrieved by the said order, above stated appellants are before this Tribunal.

3. Revenue is also in appeal before this Tribunal, challenging the order of learned Commissioner (Appeals) which allowed redemption of confiscated gold on payment of redemption fine. The contention of revenue is that the impugned gold should be confiscated absolutely.

4. The remaining three appellants are before this Tribunal contending that the redemption fine is too high and personal penalties are also too high on the appellants. Further, in case of Shri Murli Asandas Chandiramani the contention in the appeal is that the penalty on him was not at all called for.

5. Heard both the sides. Revenue has also filed stay applications, requesting for stay of operation of order of learned Commissioner (Appeals) order. They were also taken up together with the main appeals. Both the sides were allowed to submit written submissions.

6. Written submissions were submitted on behalf of Shri Rajesh Jhamatmal Bhat, Shri Rajesh Chetandas Vaswani and Shri Murli Asandas Chandiramani by learned Counsel Shri Kartikeya Narain. It was stated in the said submission that Shri Rajesh Chetandas Vaswani and Shri Rajesh Jhamatmal Bhat had come out from Gaya International Airport the day before arrest but it did not confirm that they came through Thai Airways with gold bars and it was contended that there was a very tight security and there were so many check points existed at International Airport that it was not possible for the passengers to come out of such tight security with gold bars. He further contended that margin of profit in trade of gold is very less and therefore, for gold valued ot around Rs.1 crore redemption fine of around Rs.25 lakhs was too high. Further, he has contended that there was no finding for imposition of penalty on the above stated three appellants. He has further relied on Final Order No.72932-72934/2018 dated 27.12.2018 passed by this Tribunal in respect of Shri Sanjeeb Kumar @ Pappu Kumar, Shri Ajay Kumar & Shri Umesh Kumar Vs Joint Commissioner, Customs, Lucknow wherein it was held that margin of profit in the trade of gold is very less. He has prayed to wave the penalty on Shri Murli Asandas Chandiramani and prayed to reduce redemption fine and penalty on Shri Rajesh Chetandas Vaswani & Shri Rajesh Jhamatmal Bhat.

7. In their written submissions Revenue has submitted that Shri Rajesh Chetandas Vaswani & Shri Rajesh Jhamatmal Bhat did not declare gold to Customs and with full knowledge brought gold into India. Therefore, the same is liable for absolute confiscation. They further stated that the gold as such is not prohibited under the act but import of the same may be allowed subject to certain restrictions and conditions as envisaged under Notification No.12/2012-Cus dated 17.03.2012 as amended. Revenue further placed reliance on the decision of this Tribunal reported at 2006 (204) ELT 300 (Tri.-Mumbai) and ruling by Hon’ble High Court of Kerala in the case of Abdul Razak Vs Union of India reported at 2012 (275) ELT 300 (Ker.).

8. I have carefully gone through the records of the case and submissions made by both the sides, I understand from the fact of the case as recorded by learned Commissioner (Appeals) through impugned order that two of the appellants in the present matter brought impugned gold from Bangkok to Gaya International Airport without declaring the same to Customs authorities. I cannot find from the whole proceedings as to how the Customs authorities posted at Gaya International Airport could not detect such huge quantity of gold being removed from Gaya International Airport by passengers on their arrival. I am not able to find any submission from the individual appellants explaining as to how they removed gold on arrival from Bangkok or how they procured gold before they were intercepted at Mugalsarai Railway Station. Therefore, I find that none of the case laws relied upon by revenue are applicable in the present case. I, therefore, dismiss both the appeals filed by revenue. Both the stay applications filed by revenue are also dismissed as infructuous.

9. In so far as the appeals filed by the individual appellants are concern, I find that the individual appellants are not in a position to explain how they procured such quantity of gold. Further, they do not have any document to establish licit acquisition of the same. I, therefore, do not interfere with the order of confiscation of impugned gold and imposition of penalty. However, I find that this Tribunal in the above stated case of Shri Sanjeeb Kumar @ Pappu Kumar and others have held that margin of profit in trade of gold is very less. Taking the same into consideration, I reduce redemption fine from Rs.25 lakhs to Rs.15 lakhs. I, further, reduce penalty on Shri Murli Asandas Chandiramani, Shri Rajesh Chetandas Vaswani & Shri Rajesh Jhamatmal Bhat from Rs.10 lakhs each to Rs.5 lakhs each. The impugned order is modified accordingly. Applicable Customs duty on impugned gold shall be paid.

10. In above terms, appeals filed by Shri Murli Asandas Chandiramani, Shri Rajesh Chetandas Vaswani & Shri Rajesh Jhamatmal Bhat are partially allowed.


(Pronounced in Court on-13/02/2019)

Sd/-
(Anil G. Shakkarwar)
Member (Technical)

akp

Additional Info

  • Date Range (yyyy-mm-dd) Wednesday, 13 February 2019
  • Court/Authority CESTAT
  • Tax Type Customs duty
  • Subject Commissioner of Customs, Lucknow Preventive Vs Rajesh Jhamatmal Bhat & Rajesh Chetandas Vaswani, Murli Asandas Chandiramani Vs Commissioner of Customs, Lucknow Preventive, Allahabad : C/Stay/70518 & 70517-71388 & 71389-71403-71405/2018-CU[SM]
  • Petitioner/Appellant Commissioner of Customs, Lucknow Preventive Vs Rajesh Jhamatmal Bhat & Rajesh Chetandas Vaswani, Murli Asandas Chandiramani Vs Commissioner of Customs, Lucknow Preventive
  • Respondent Commissioner of Customs, Lucknow Preventive Vs Rajesh Jhamatmal Bhat & Rajesh Chetandas Vaswani, Murli Asandas Chandiramani Vs Commissioner of Customs, Lucknow Preventive
  • Appl no. or Appl year C/Stay/70518 & 70517-71388 & 71389-71403-71405/2018-CU[SM]
  • Supreme Court Location Delhi
  • CESTAT Location Allahabad
  • AAR Location Delhi
  • Authority Supreme Court
  • AAR GST State Location Kerala

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
REGIONAL BENCH : ALLAHABAD

COURT NO. I

APPEAL Nos. E/70021 & 70566/2016-EX[DB]
(Arising out of Order-in-Appeal No. GZB-EXCUS-000-APP-0085-15-16 dated 28/09/2015 and Order-in-Appeal No. GZB-EXCUS-000-APP-0305-15-16 dated 09/02/2016 passed by Commissioner (Appeals), Central Excise & Customs, Noida)

M/s Kiwi Foods India Pvt. Ltd.
Appellants

Vs.

Commissioner (Appeals) Central Excise, Noida
Respondents

Appearance:
Shri Nishant Mishra (Advocate) for Appellant
Shri Gyanendra Kumar Tripathi (Asstt. Commr.) AR & Shri Pawan Kumar Singh (Suptd.) AR for Respondent

CORAM:
HON’BLE Mrs. Archana Wadhwa, Member (Judicial)
Hon’ble Mr. Anil G. Shakkarwar, Member (Technical)

Date of Hearing : 30/11/2018
Date of Decision : 30/11/2018

FINAL ORDER NOs. - 72768-72769/2018

Per: Archana Wadhwa

After hearing both the sides, we find that the short issue is involved in the present appeal is as to whether Wafer Biscuits manufactured by the appellants would qualify for exemption in terms of Notification No.11/2011-CE.

2. Learned advocate submits that the periods involved in the present appeals are January to June, 2013 and August, 2013 to March, 2014. He further submits that identical proceedings were initiated against them for subsequent period which stands decided in their favour by Commissioner (Appeals) vide his Order-in-Appeal No. GZB/SVTAX/000/APPL-MRT/370-371/2017-18 dated 22/03/2018.

3. In view of the above developments, it is a common prayer by both the sides to remand the matter to Commissioner (Appeals) for fresh decision in the light of above referred order.

4. Accordingly, we set aside the impugned orders and remand the matter to Commissioner (Appeals) for de novo decision in the light of view taken by him in the said order passed by the same Authority. Appeals are thus disposed of by way of remand.


(Dictated & Pronounced in Court)


Sd/-
(Anil G. Shakkarwar)
Member (Technical)

Sd/-
(Archana Wadhwa)
Member (Judicial)

Lks

Additional Info

  • Date Range (yyyy-mm-dd) Friday, 30 November 2018
  • Court/Authority CESTAT
  • Tax Type Central Excise
  • Subject M/s Kiwi Foods India Pvt. Ltd. Vs Commissioner (Appeals) Central Excise, Noida, Allahabad : APPEAL Nos. E/70021 & 70566/2016-EX[DB]
  • Petitioner/Appellant M/s Kiwi Foods India Pvt. Ltd. Vs Commissioner (Appeals) Central Excise, Noida
  • Respondent M/s Kiwi Foods India Pvt. Ltd. Vs Commissioner (Appeals) Central Excise, Noida
  • Appl no. or Appl year APPEAL Nos. E/70021 & 70566/2016-EX[DB]
  • Supreme Court Location Delhi
  • CESTAT Location Allahabad
  • AAR Location Delhi
  • Authority Supreme Court
  • AAR GST State Location Kerala
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