Court: CESTAT Ahmedabad Date of Order: 2019-09-18
I have carefully considered the submissions made by both the sides and perused the records. I find that the Commissioner (Appeals) should have decided the matter only on the aspect of unjust enrichment as all other issues were either not raised at the first stage of SCN or settled in favour of the appellant. As regard the unjust enrichment, I find that though the appellant claimed that they have submitted various records however there is no particular records which show that incidence of service tax initially borne by the appellant was not passed on any other person. The fact remains that the sub contractor has charged the service tax and the same was reimbursed by the appellant to the sub contractor. The provision of the service tax was clearly made as expenditure in the books of the appellant. Even though I agree that merely because the service tax amount was shown as expenses that alone cannot establish that the incidence was passed on. However once the service tax amount is booked as expenditure then the burden to prove that the same was not passed on become heavy on the assessee. In this case no any document clearly show that the incidence was not passed on. Moreover, the appellant is a main contractor and for the entire project they are raising the bills including the service charge to the extent of service provided by the sub contractor to their main client. Therefore, it is clear that the incidence of unjust enrichment has been passed on to the service recipient. The service provided by sub contractor including the service tax is the total value which is part and parcel of the value of the service which was charged by the appellant to their client. In this position though the service tax paid by the sub contactor though initially borne by the appellant and reimbursed the same to the sub contractor the treatment of the service charge as well as the service tax is same and the total value of service including service tax stand merged with the overall contract value of the appellant which was charged to their client. Therefore, in absence of any direct evidence it was not established that the incidence of service tax for which the refund was sought for has not been passed on to any other person. Accordingly, the refund is clearly hit by unjust enrichment.
Court: CESTAT Ahmedabad Date of Order: 2019-09-16
As a result the impugned order-in-appeal dated 28-1-1999 passed by the Central Excise is set aside and the appeal of Franco Italian Company (supra) is allowed subject to the conditions that Modvat credit taken of the duty paid on the inputs which were utilised in the manufacture of duty free goods, is reversed.”
Court: CESTAT Bangalore Date of Order: 2019-09-12
Learned Counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without giving any specific finding on each of the reimbursable expenses. He further submitted that the only question in this appeal is whether the expenses viz.
Court: CESTAT Bangalore Date of Order: 2019-09-04
After considering the submissions of both the parties and perusal of the material on record, I find that in the present case the appellant got the copy of the impugned order only on 29.03.2019 and thereafter filed the appeal on 03.04.2019 which is within period of limitation. Further, I find that the Department has not been able to establish the proof of delivery of the impugned order and therefore I am of the view that there is no delay in filing the present appeal which is in time and therefore I hold that the COD becomes redundant as the appeal is in time. List it on 09.10.2019 for final disposal.
Court: CESTAT New Delhi Date of Order: 2019-09-03
When the matter came up before the Tribunal on 18 April, 2019, the order passed by the Delhi High Court on 4 February, 2019 was taken note of, but time was granted to the Appellant to obtain appropriate modification of the order passed by the Delhi High Court.
Court: CESTAT Mumbai Date of Order: 2019-08-26
The dispute before the Tribunal pertained to compliance with conditions for duty-free clearance to Indian Navy which was denied owing to documents of receipt being found to have been signed by a person who was neither authorised to nor occupying a duly designated office in the competent branch of the Indian Navy. We find that the Tribunal has examined the various evidences and, in paragraph no. 5, has come to a clear conclusion that the facts on record bear out the allegation of diversion of goods that were claimed to have been supplied to the Indian Navy. In the light of the conclusive finding of diversion based on facts and circumstances on record, the plea of eligibility for alternative exemption or of benefit of exemption extended to supply of ship stores or any lacuna in the findings of the original authority would not have had any bearing on the outcome except with evidence of delivery to the procurement office of Indian Navy.
Court: CESTAT Bangalore Date of Order: 2019-08-23
We find that in the Final Order No. 692/2007 dated 07.06.2007, the Bench had categorically held that Section 114A of the Customs Act 1962 does not apply in this case and no penalty can be imposed upon the appellant. We are not aware of any order of a higher judicial forum setting aside this finding of this Bench. The imposition of penalty by the Commissioner in the impugned order is a clear violation of this direction by this Bench and therefore, the same needs to be set aside. We also find that the issue of freight of daughter vessels was unclear to everyone including the CBEC themselves and it was only discussed, deliberated and clarified by the CBEC vide their Circular dated No. 04/2006 dated 12.01.2006. Under such circumstances to allege that the appellant has not paid duty correctly with an intention to evade is not correct.
Court: CESTAT New Delhi Date of Order: 2019-08-22
Per contra, learned Departmental Representative has submitted that the facts of each case are different. The decision relied upon is not applicable for the present facts and circumstances where the cenvat credit has been denied on the invoices which were more than six months old. Justifying the impugned Order and submitting that the mistake pointed out is not obvious and that the Final Order has clearly distinguished the case of Micro Marbles (supra), application accordingly is prayed to be dismissed.
Court: CESTAT New Delhi Date of Order: 2019-08-20
Since the observations in the impugned final order are opined to be based on wrong interpretation, the order imposing the penalty being subjective to the findings for the alleged clandestine removal are also hereby recalled.
Court: CESTAT Chennai Date of Order: 2019-08-16
After perusing the records as well as considering the submissions made by both sides, it is seen that delay was caused as the staff did not bring to the notice of the proprietrix the receipt of the order, so as to file the appeal within time. Taking these facts into consideration, I am of the view that the appellant has to be put to terms for condoning the delay. The appellant shall pay a cost of Rs.6,000/- (Rupees six thousand only) to Revenue on or before 16.09.2019. Failure to pay the cost, the COD application along with appeal will stand dismissed without any further notice. For compliance, call on 16.09.2019.