CESTAT Weekly Round-Up

This weekly round-up analytically summarizes the key stories related to the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) reported at Taxscan.in during the previous week from September 11 to September 16, 2022. Commissioner of Customs-Nhava Sheva-III vs Granite India - 2022 TAXSCAN (CESTAT) 470 The Customs, Excise, and Service Tax Appellate Tribunal (CESTAT), Mumbai granted relief to Granite India and held that antecedents cannot be evidence for alleged undervaluation of goods. The Bench consisting of S K Mohanty, Judicial Member and P Anjani Kumar, Technical Member observed that “We find that the investigation has not taken in to account the volume of the imports made by the appellant; their relation with the supplier and the discounts offered. The submissions of the appellants were brushed aside stating that the discounts were not reflected in the invoice and that there were inconsistencies in the statements recorded. M/s Apcotex Industries Limited vs . Union of India - 2022 TAXSCAN (CESTAT) 471 While considering a bunch of appeals, the Principal Bench of New Delhi Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that decision not to impose anti-dumping duty is not sustainable when not following the recommendation made by the designated authority. A Coram presided by Justice Dilip Gupta, Mr P V Subba Rao, member (technical) and Ms Rachana Gupta, member (judicial) observed that the decision taken by the Central Government not to impose anti-dumping duty despite a recommendation having been made by the designated authority for imposition of anti-dumping duty, cannot be sustained and remitted the matter to the Central Government for taking a fresh decision on the recommendation made by the designated authority. M/s. Future Brands vs Commissioner of Service Tax - 2022 TAXSCAN (CESTAT) 472 The Delhi bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that service tax is not leviable on the right to use of trademark under the Trademark License Agreement as the same would clearly fall within the meaning of the phrase “transfer of right to use the goods” and would be covered by article 366 (29A) (d) of the Constitution. Quashing the service tax demand, the Tribunal held that “However, in the case of the Trademark License Agreement an exclusive license to use the trademark in any manner during the term of the agreement was granted. Such a license could not be granted to any other person during the period of the agreement. This would clearly fall within the meaning of the phrase “transfer of right to use the goods” and would be covered by article 366 (29A) (d) of the Constitution. Service Tax would, therefore, not be payable.” Commissioner of Customs vs Shri Joginder Kumar - 2022 TAXSCAN (CESTAT) 476 The Principal Bench of New Delhi Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that documents stating the name of the importer become valid when the statement u/s 138 B of the Customs Act, 1962 turns irrelevant. The Tribunal viewed that the term “beneficial owner” has been defined in the Customs Act and the term “importer” was enlarged to include “beneficial owner” only from 2017 and not during the relevant period and found that even the confiscation is not sustainable as the allegation of under-valuation itself is not sustainable. Indian Oil Corporation Limited vs Commissioner of CGST & CX - 2022 TAXSCAN (CESTAT) 477 The Customs, Excise, and Service Tax Appellate Tribunal (CESTAT), Kolkata bench granted relief to M/s. Indian Oil Corporation Limited, Refinery Division (IOC), and held that Cenvat credit is available on duty paid treating the activity as manufacturing activity. P K Choudhary, Judicial Member held that “It is an undisputed position that the final product is treated as dutiable and duty is paid by the assessee. When once duty is paid by the assessee treating the activity as manufacturing activity by the Department, Cenvat credit is available and there is no question of denial of Cenvat credit.” Uniglobal Paper Private Limited vs Commissioner of CGST & CX - 2022 TAXSCAN (CESTAT) 475 The Single Member Bench of Kolkata Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that cess on paper is not a duty of excise and refund rejected on limitation under section 11B of the Central Excise Act, 1944 will not sustain. In light of the case of Joshi Technologies International v. Union of India,Shri P K Choudhary, Member (Judicial) has held that“since Cess on Paper is not a duty of excise, the of Section 11B of the Central Excise Act would not apply.” The Tribunal allowed the Appeal filed by the Appellant with consequential relief. M/s. Wipro Enterprises Pvt. Ltd. vs Commissioner, Central Goods & Services Tax Commissionerate- 2022 TAXSCAN (CESTAT) 474 In the case of M/s. Wipro Enterprises Pvt. Ltd, the Chandigarh Bench of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) ruled that the denial of exemption benefit is not sustainable if only the diversification was made to production by adding new machines in the old unit. A Coram comprising of Mr Justice Dilip Gupta, president and Mr P Anjani Kumar, member (technical) observed that the investment for the new products was very large and the percentage of production of the new product was also very large cannot be made a ground to deny the benefit of the Exemption Notification to the appellant. Commissioner, Central Excise, Udaipur Vs J.K. Tyres & Industries - 2022 TAXSCAN (CESTAT) 473 The Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Delhi bench has allowed a provisional assessment requested by the assessee in order to claim excise duty deduction towards discount provided to dealers at the time of clearance of goods from depot. Relying on the above orders, the Tribunal held that “the two decision of the Tribunal, on which reliance has been placed by learned authorized representative appearing for the department, would not be applicable in the present case as they do not deal with discounts which though known at the time of clearance of the goods cannot be quantified at that stage and are quantified later.” Shalimar Precision Enterprises P. Ltd. vs Commissioner of Customs - 2022 TAXSCAN (CESTAT) 479 The Customs, Excise and Service Tax Appellate Tribunal (CESTAT), New Delhi ruled that Duty Free Import Authorization (DFIA) Licence available to import of Melamine. A Coram consisting of Justice Dilip Gupta President and P V Subba Rao, Technical Member held that “To sum up, the lower authorities have confirmed the demand ignoring the order of this Tribunal in Dimple Overseas Ltd., ignoring all the technical literature which state that Melamine can be used directly for tanning leather, relying on the opinion of CLRI contrary to the published literature and without even allowing cross-examination of that expert, on the ground that Melamine was not used in the export products.” M/s. Selling Simplified India Private Limited vs Commissioner of CGST - 2022 TAXSCAN (CESTAT) 478 The Customs, Excise and Service Tax Appellate Tribunal (CESTAT), New Delhi Bench set aside rejection of claim of refund holding that there has been wrong interpretation of relevant provisions and notifications. The Single Bench consisting of Dr Rachna Gupta, Judicial Member observed that “It is held that Adjudicating Authority while rejecting the claim on the ground of jurisdiction has definitely travelled beyond the scope of show cause notice. The appellant since admittedly has centralized registration in terms of sub clause (2) and (3) of Rule 4 hence Noida unit was not required to be registered. Refund claim should not have been rejected on this ground. The services provided by the appellant amounts to export of service as were received by the company located outside the taxable territory irrespective those were the group companies of the appellant.” Support our journalism by subscribing to Taxscan premium. Follow us on Telegram for quick updates.

CESTAT Weekly Round-Up

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