CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRBUNAL WEST ZONAL BENCH, MUMBAI

APPELLANT: BHARATH PETRLEUM CORPORATION LTD

RESPONDENT: CCEX, NASHIK

CORAM : HONBLE S/SHRI P.G. CHACKO, MEMBER [JUDICIAL] &
S.K. GAULE, MEMBER [TECH.] 

FINAL ORDER No. : A/177/2010/EB/C II DATED : 19.05.3020

PER SHRI P.G. CHACKO, MEMBER [J] :-

This appeal was filed by M/s. BHARAT PETROLEUM CORPORATION LTD., a Central PSU, which has obtained the requisite clearance from the ‘Committee on Disputes”.

Against order-in-original No. 43/2004 dated 19.08.2004 passed by the Dy. Commissioner of Central Excise, Nasik III Division, the appellant filed an appeal with the Commissiner of Central Excise (Appeals) on 02/02/2005. In that appeal, they also filed an application for condonation of delay. In that application, they submitted that they had not received the order in original on 23.08.2004 as claimed by the department. They submitted that they received the order for the first time on 20.122004 and, therefore, the appeal filed by them was within the period of limitation prescribed under Section 35 of the Central Excise Act. The appellate authority rejected the above plea and, after a perusal of the records, found that the order in original had been actually delivered to the party on 23/08/2004 itself. Learned Commissioner (Appeals) found that the delay of the appeal filed by the party was in excess of the period of delay (30 days) condonable by her under the proviso to Section 35 ibid. In the result, the appeal filed by BPCL came to be dismissed as time-barred. Hence the present appeal of BPCL.

The following records, some of them filed by the appellants counsel and others by the JCDR, are before us : -

Letter dated 22/12/2004 of BPCL addressed to the Sr. Superintendent of Post Offices, Nashik Division. By this letter the appellant requested for a confirmation as to delivery of the registered postal article No. 5090 dated 20.08.2004.

Lettter dated 23/12/2004 of the appellant addressed to the Post Master, Manmad. In this lette also, the appellant sought similar information.

Xerox copy of postal receipt of registered article no. 5090 dated 20/08/2004 issued by Manmad Post Office.

Reply given by the Sr. Superindent of Post Offices of Nashik Division to the appellants letter cited at serial no. (i) . This reply reads thus : -

” with reference to your application, inquiries made revealed that the regstered letter was delivered to the addressee on 20.08.2004.

Xerox copy of an excerpt from Manmad Post offices delivery regster. This document indcated that the registered postal article No. 5090 dated 20/08/2004 addressed to BPCL was delivered to them on 23/08/2004.

Xerox copy of page 1 of order in original no. 43/2004 dated 19/08/2004 ith BPCL dated seal indicating receipt of the order on 20/12/2004.

Copy of letter dated 20/12/2004 of the Superintendent of Central Excise to BPCL, which is the covering letter for a copy of the order in original supplied to the company.

On a perusl of the above records, it has become crustal clear that a copy of the order in original was duly delivered to BPCL, Manmad on 23/08/2004. The objections raised by the Counsel for the appellant with reference to the documents filed by the JCDR are not tenable. Delivery of the order in original to the appellant on 23/08/2004 is a proven fact. As rightly pointed out by the Commissioner (Appeals) the appeal filed by the Company against the order in original ws too belated for the appellate authoirty for cndnation of delay. The appellate authority was competent to condone delay of upto 30 days only under the proviso to Section 35 of the Act. It was not  competent to  condone any delay in excess of that, as held by the High Court in the case of DELTA IMPEX vs CMMISSIONER OF CUSTOMS
[2004-173-ELT-449-DEL].

In the result the appelate Commissioners order is sustained and this appeal is dismissed.
[DICTATED IN COURT]

[the full text of this judgement can be viewed in http://www.taesinindia.com  and the citation is taxind_2010_wzb_eb_A177]

EDITOR’s OBSERVATIONS: -

After reading this judgement of the CESTAT, Mumbai Bench, any reader is lkely to raise the following questions within hmself: -

whether all the records taken as evidences are not clear enough for the appellant company to conclude , even before deciding to file an appeal, that their appeal would be squarely hit by the time-bar factor?

whether all these records could not be brought on record by the adjudicating authority, while passing the order in original [the first quasi-judicial order] to squarely settle the issue, without any further grounds available for the appellant company to appeal to the next authority?

Whether the appellant company could produce any additional documentary evidences before the Committee of Disputes, the High powered committee appointed by the Cabinet Secretariat, to disprove that the Commissioner [Apeals] erred in dismissing their appeal as time-barred?

It is obvious from the Tribunal order that the appellant company could not produce such records, ecept protesting / raising objections with reference to the documents filed by the JCDR, which the Tribunal found as UNTENABLE.

Whether the appellant companywas justified to take away, in this manner, the valuable time of the Tribunal, especially when they had no solid grounds to appeal?

Perhaps the time is fast approachng for the Cabinet Secretariat to review the guidelines provided to the PSU companies earlier, with further directions that their appeals should be scrutinised at the highest level in their organisation, befoe deciding even to seek the valuable time of the High Powered Committee, in order to get the due clearance for an appeal before the Tribunal.

CESTAT ORDER

VENKATRAMAN RAGGHUPATHY, Web admin.

[SOURCE : PAGES BOOKSTORES.COM]

CESTAT ORDERS CONDONATION OF DELAY, SECTION 35F

CESTAT BANGALORE BENCH vide final order no.1439 & 1440/09 dt. 01.12.09 in re: AMERICAN POWER CONVERSION (INDIA) PVT LTD. vs CCEX BANGALORE observed as follows:-

QUOTE: We find that the impugned goods were assessed at the time of import for warehousing in terms of Notification Nos. 96/03 or 52/03 -Cus and 22/2003-CE. This assessment ic claimed to have been supported by the essentiality certificate issued by the licensing authority. We find that this assessment cannot be revised by the authorities denying the exemption benefit without following due process of law. The revenue has no case that the rate of duty or tariff description of the warehoued goods had changed to warrant a revision of assessment. In any case question of assessment arises only when the goods are removed from the warehouse. In the instant case the impugned goods were not held to be imporperly removed for the reason that warehousing period had expired and proper officer had not granted exension of warehousing period. Moreover the goods involved in Order No.23/08 were found by the original authoirty to be prototype / technical sample. Such goods undisputedly are entitled to exemption…………

The order no. 24/08 is passed on the basis that APC could not show certain warehoused goods for verification before the officers. Demand is on the basis that the impugned goods had been removed from the warehouse, clandestinely. The lower authorities did not rely on any evidence for finding of such removal from the warehouse. The assessee all along maintained that the impugned goods were available in stock in the warehouse. We find that the impugned demand of duty cannot be sustained under Section 72(a) of the Act without evidence of their removal as envisaged in the said section. UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_szb_b_11439_1440]

CESTAT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS CLANDESTINE, REMOVAL, WAREHOUSED

CESTAT KOLKATA BENCH, while passing the final order no.A718 on 04.12.09 in re: IOCL HALDIA REFY vs CCEX HALDIA observed as follows: -

QUOTE: The Honble Supreme Court in the case of UOI vs RAJASTHAN SPINNING & WEAVING MILLS [2009-238-ELT-3 (SC) held that the application of Section 11AC would depend upon the existence or otherwise the conditions expressly stated in the Section, once the Section is applicable in a case the concerned authority would have no discretion in quantifying the amount of penalty. In the present case I find that even in the show cause notice there is no whisper of fraud, collusion or any willful misstatement or suppression of facts with intent to evade payment of duty. In order to attract the provisions of Section 11AC of the Act it must be alleged in the show cause notice that the duty had not been levied or paid by reason of fraud, collusion or willful misstatement or suppression of facts or by reason of contravention of any provision of Act or Rules with intent to evade payment of duty. In the present case the excess duty paid and adjustment of the same was reflected in the monthly returns. In these circumstances I find merit in the contention of Appellant and in view of the above decision of Honble Supreme Court the penalty imposed under Section 11AC is not sustainable hence set aside. Appeal is allowed. UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_ezb_A718]

CESTAT ORDER

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS INTENT TO EVADE DUTY, PENALTY, SECTION 11AC OF C.EX. ACT

CESTAT BANGALORE DECIDED AS FOLLOWS IN THE LATEST JUDGEMENTS:-

F.O. No.1389/09 dt 17.11.09 : KEDIA OVERSEAS LTD vs CC VISHAKAPATNAM — we find that the Bills of Entry involved have to finally assessed after hearing the submissions of the appellant also on the test report of the Chemical Examiner. In the circumstances, we remand the matter to the jurisdictional Assistant Commissioner / Dy. Commissioner for finalization of provisional assessment of the subject Bills of Entry in accordance with law after complying with principles of natural justice.

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_szb_b_1389]

F.O. No. 1387/09 dt 13.11.09 in re: CC HYDERABAD vs. VANI GRAPHICS:- On perusal of the records, we find that the issue to be decided in this case is whether the ld. Commissioner [Appeals] order which has restricted the redemption fine and penalty to 10% and 5% respectively of the value as certified by the Chartered Engineer, is correct or not. We find that the issue is now no more RES INTEGRA as this Bench in the case of OFFICE DEVICES [2000-235-ELT-376] held that the redemption fine and penalty to the extent of 10% and 5% respectively of the value as has been certified by the Chartered Engineer is enough in cases where identical issue arose. This order of the Tribunal was not accepted by the Revenue, and they preferred an Customs appeal to Honble High Court of Kerala and Honble High Court in their judgement as reported at 2009(24)ELT 336(KER.) dismissed the appeal and upheld the order of the Tribunal.

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_szb_b_1387]

CESTAT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS provisional assessment, res integra, shipping bills

SOUTH ZONAL BENCH OF THE CESTAT AT BANGALORE, while disposing of the stay application filed by HINDUSTAN PETROLEUM CORPORATION LTD vs CST BANGALORE, vide stay order no. 1622 dt 9.11.09 observed as follows:-

QUOTE : On careful consideration of the submissions made by both sides and perusal of the records, we find that pieplines and tanks which are installed in the premises of M/s. Nagarjuna Fertilisers and Chemicals Ltd. are owned by the appellant. The sales of the goods has taken place from the tanks and the ownership of such goods in tanks and pipelines lies with the appellant. If that be so, we find that there is no service provided by the appellant to fall under the category of “transportation of goods through pipeline”. We find that the applicant has made out a prima-facie case for waiver of pre-deposit of amounts involved. Application for waiver of pre-deposit of amounts involved is allowed and recovery thereof stayed till disposal of the appeal. UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_szb_b_stay_1622]

TRIBUNAL ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS GOODS, PIPELINE, SERVICE TAX, TRANSPORTATION

CESTAT WEST ZONAL BENCH [SINGLE MEMBER] while deciding on 27.10.09 under Final order No. A642-644/09 in re: RAJARANI STEEL CASTING P. LTD vs CCEX NASIK, observed as follows:-

QUOTE: any person who aquires possession of or is in any way concerned in physically dealing with any excisable goods which, he knows of has reason to believe, are liable to confiscation under the Act or the Rules shall be liable to a penalty. For application of this rule, there must be a finding that certain excisable goods are liable to confiscation under the Central Excise Act or the Central Excise Rules and there must be a further finding that the person who is sought to be penalised has acquired possession of such goods or has otherwise physically dealt with the goods, knowing or believing that the goods are liable to confiscation. No finding of this sort is forthcoming in this case against the appellant. Even the show-cause notice did not allege that Shri Agarwal had removed the goods with the knowledge or belief that such goods were liable to confiscation under the Central Excise Act or the Central Excise Rules. In this scenario, the penalty imposed on the appellant under Rule 26 cannot be sustained. UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation: taxind_2009_wzb_sm_A642_644]

CESTAT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS CENTRAL EXCISE ACT, CENTRAL EXCISE RULES, RULE 26

CESTAT BANGALORE BENCH reiterated the following, while passing the final order no. 1324 to 1328/09 dt 30.10.09 in re: SAINT GOBAIN VETROTEX INDIA LTD and ors. vs. COMMR. OF SERVICE TAX, BBANGALORE and ors.:-

QUOTE: Heard both sides and perused the records. The issue involved in all these appeals are regarding denial of CENVAT credit on Service Tax paid on GOODS TRANSPORT AGENCY. We find that the issue is no more res integra as the issue came up before the Larger Bench of the Tribunal in the case of ABB Ltd. & ors vs. CCE&ST, Bangalore & ors. [2009-92-RLT-665.

Accordingly, we find that the issue is now settled in favour of the assessee.UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com  and click on the citation taxind_2009_szb_b_1324_1328]

CESTAT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS CENVAT CREDIT, Goods Transport Agency, SERVICE TAX

CESTAT BANGALORE BENCH while pronouncing the final order no. 1289/09 dt 28.10.09 in re: INDIAN OIL CORPORATION LTD vs CCE HYDERABAD observed as follows: -

QUOTE: We have carefully considered the submissions made by both sides and perused the records. We find that the issue involved is regarding discharge of duty liability as per valuation adopted by the appellant on the goods cleared at COCO. We find that an identical issue has been decided by this Bench in the case of BHARAT PETROLEUM CORPORATION LTD.[2007-218-ELT-585]

Following ratio of the above decision, we set aside the impugned order and the appeal is allowed with consequential relief if any. UNQUOTE

[for full text of the final order please visit http://www.taxesinindia.com and click on the citation taxind_2009_szb_b_1289]

CESTAT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS ADMINISTERED PRICING MECHANISM], PETROLEUM, PRICING

CESTAT BANGALORE BENCH while pronouncing the final order no. 1330/09 dt 3.11.09 in re: CC&CE VISHAKAPATNAM vs NIIT HYDERABAD observed as follows: -

QUOTE: On a careful consideration of the case records and the submissions by both sides, we find that contrary to the argument of the Revenue in the appeal, the Trade Notices relied on by the lower appellate authority had clarified that notices for demand of service tax on specified services including consulting engineer services invoking Section 73(a) of the Act could be issued only by the Commissioner. The point of limitation being a question of law, the respondents had validly raised this issue for the first time before the Commissioner [Appeals]. As the issue involved is interpretation of statutory provisions, the Commissioner held that no penalty was imposable on the respondents. We find no infirmity in the impugned order. As the original authority had not considered the point of limitation, as well as the Trade Notices on the subject issue of notices invoking Section 73(a) of the Act., the Commissioner had rightly remanded the matter to the original authoirty for a fresh adjudication. In the circumstances, we do not find any merit in the appeal filed by the Revenue. Revenue’s appeal is dismissed. UNQUOTE.

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_szb_b_1330]

CESTAT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS FINANCE ACT 1994, SEC 76

CESTAT CHENNAI BENCH vide final order no. 949/09 dt 11/08/09 in re: RAJSHREE SUGARS & CHEMICALS LTD. vs CCE (ST) PONDICHERRY held as follows: -

QUOTE: The issue in dispute in the present appeal is as to whethr utilisation of CENVAT credit account for discharging service tax liability on goods transport agency service by the appellants herein who is a manufacturer of sugar and molasses is legally permissible.

On hearing both sides I find that the issue stands settled in favour of the assessee by the Tribunal’s decision in INDIA CEMENTS vs CCE – 2007-7-STR- 569 and R.R.D. TEX PVT. LTD. vs CCE – 2007-8-STR-186 wherein the Tribunal held that GTA service for which the assessee paid service tax was output service and accordingly CENVAT credit could be used for discharging GTA service availed by them. The period in dispute in the present case is January 2005 to September 2005 which is prior to the amendment by which the Explanation to Rule 2(p) of the CENVAT Credit Rules was deleted. Therefore, during the relevant period the assessee was entitled to utilize CENVAT credit paying duty on final productsor output service. Following the ratio of the above orders, I set aside the impugned order holding to the contrary and allow the appeal. UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on citation taxind_2009_szb_c_949]

CESTAT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS CENVAT, credit, GTA service, LIABILITY, SERVICE TAX