This weekly round-up analytically summarises the key stories of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) reported at taxscan.in during the previous week from December 11 to December 17, 2022.
The Customs, Excise and Service Tax Appellate Tribunal (CESTAT), New Delhi Bench held that Onus is on Revenue to prove smuggled nature when goods are notified under Section 123 of The Customs Act. Anil Choudhary, Judicial Member observed that “Under the facts and circumstances, the goods being not notified goods under Section 123 of the Customs Act, it was onus on the Revenue to establish the smuggled nature of the goods, which the Revenue have miserably failed. Not a single evidence was produced by Revenue in support of allegation of smuggling save and except bald allegation.”
The Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) ruled that Penalty or conviction cannot be based merely on speculation. The authorities below have imposed the combined penalty on the appellant without specifically mentioning the quantum of penalty imposed under each provision separately. Penalty under each of the sections of the Customs Act has to be imposed separately” the Tribunal said.
A Single Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), ruled that Section 11B of Central Excise Act is not applicable when payment of service tax is by mistake. The Tribunal of Ajay Sharma, Judicial Member observed that “Since as per the settled law the appellant was not liable to pay any tax therefore whatever has been paid by them was due to mistake of law. If that is so then the limitation as prescribed by section 11B of Central Excise Act is not applicable at all.
The New Delhi Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) deleted the penalty on the ground that there was a bonafide belief of Area based exemption from Central Excise duty. A Coram consisting of Anil Choudhary, Judicial Member, and P V Subba Rao, Technical Member observed that “We hold that the appellant is entitled to the benefit of recalculation of demand on cum duty basis in accordance with explanation to Section 4(1)(b) of the Central Excise Act.”
The Ahmedabad Bench of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that no Service Tax demandable under ‘Manpower Recruitment and Supply Agency Services’ for Expenses of Harvesting and Transportation of Sugarcane. Considering the various decisions referred above including judgment of Bombay High Court, a Coram of Mr. Ramesh Nair, Member (Judicial) Mr. Raju, Member (Technical) held that the demand under Manpower Recruitment and Supply Agency Services is not sustainable.
The New Delhi Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), granted relief to Singtel India, thereby dismissing service tax appeals holding M/s. SingTel Global India Private Limited (SGIPL), the appellant is not intermediary. Dismissing the three service tax appeals filed by the department a Bench consisting of Justice Dilip Gupta, President and P V Subba Rao, Technical Member held that “The Commissioner (Appeals) correctly appreciated the position in the orders in holding that SGIPL was not intermediary and had provided export of service to SingTel.”
The New Delhi Bench of the Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ), held that Freight charges not includable in assessable value of liquid carbon dioxide (CO2) being separately charged in invoices and sale was at time of clearance from the factory.
The Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Mumbai Bench quashed recovery on the ground that there was failure to consider evidence relating to availment of depreciation under Income Tax Act, 1961. Quashing the recovery the Tribunal observed that “The impugned order is, thus, bereft of findings based on law, as enacted and judicially determined, applied to the facts put forth by the assessee and requires re-determination.”
The Delhi Bench of the Customs, Excise and Service Tax Appellate Tribunal, ruled that Charging of Costs Plus would make an intermediary, thereby granting Cenvat Credit to Blackberry India Private Limited. A Coram consisting of Justice Dilip Gupta, President and PV Subba Rao, Technical Member observed that “The appellant is not privy to the Agreement entered into between Blackberry Singapore and its end customers” and held that Refund under Rule 5 of CCR could not be rejected.
In a major setback to Rosy Blue India Pvt Ltd, the Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ), confirmed rejection of Cenvat Credit of Rupees 51 lakhs.
A Coram consisting of C J Mathew, Technical Member and Ajay Sharma, Judicial Member observed that “The appellant is, squarely and singularly, responsible for failure to furnish proof of the required availability of credit till the date of write off and, in the absence of any such evidence even at this stage of appeal or even assurance of being ready and willing to do so, there is no scope for further ascertainment.”
The Delhi Bench of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT)has held that interest can’t be allowed on Seized Currency notes on the release. The Coram of Dr Rachna Gupta, member(judicial) observed that since the amount in question was not the amount of pre-deposit as required under section 35F of the Central Excise Act, Section 35FF has been wrongly invoked by Commissioner (Appeals).
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