Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

Comments

Print   |    |  Comment

PJ/Case Laws/2011-12/1326

Benefit under Notification No. 26/2000-Cus on Import of polished Marbles slabs

Case: ORIENTAL TILES LTD v/s COMMISSIONER OF CUSTOMS (PORT), KOLKATA
 
Citation: 2011 (270) E.L.T. 664 (Tri. - Kolkata)
 
Issue:- Denial of benefit Under Notification No. 26/2000-Cus on import of polished Marble slabs.
 
Brief Facts:- Appellant made import of marble slabs declaring the same as polished marble slabs from Sri Lanka from their subsidiary company and claimed the benefit of Notification No. 26/2000 read with Notification No. 19/2000-Cus. The goods were provisionally released as the import was made from subsidiary company and the issue of valuation was finalized. Subsequently customs officers visited the premises of the Appellant and on visual examination found that the marble slabs which were imported un­der 21 bills of entries were not completely polished. Thereafter, Show Cause Notice was issued and impugned order was passed denying the benefit of exemption Notification and confiscated the goods and imposed penalties. The goods were reclassified the goods under chapter heading 25151220 of Customs Tariff as rough marbles.
 
Appeal is in appeal before the Tribunal.
 
Appellant’s Contention:- Appellant contended that the rough marble slabs were im­ported from

 

Omanto Sri Lank by declaring the value at US Dollar 11.39 per square metre where the same had undergone the process of polishing. Thereafter these marble slabs were imported into India by declaring the price between US Dollar 16 to18 per square meter. It is also submitted that the CVD (countervailing Duty) as applicable was also paid at the time of import. Revenue is deny­ing the benefit of Notification only on the ground that the final process of manu­facture is not performed within the territory of exporting country. The Applicant has sufficient machinery/equipment at their unit in Sri Lanka to convert the marble slabs to polished marble slabs and after import the polished marble slabs were sold in the market. There is no factory or equipment in India where the imported slabs further worked upon. The buyers of the marble slabs at the time of fixing may have taken some finishing touches to remove the dust etc. The contention is also that the Revenue is not relying upon any expert opinion or trade opinion whether the stabs in question were polished or not. It is also submitted that the dispute in respect of payment of CVD duly in respect of polished marble slabs imported by the applicant was settled by the Calcutta High Court vide Order dated 18-5-2006 held that polished marble which has been imported by the Appellant into India cannot be termed as manufacture of that goods in India.
 
Respondent’s Contention:- Revenue contended that the premises of the Appellant was visited and it was found some slabs were lying which were not termed as polished marble slabs. The statement of the employee also shows that the slabs require polishing for use. The Revenue relied upon the conditions of the Notification No. 19/2000-Cus. (N.T.) whereby it has been provided that the final processes of manufacture is to be performed within the territory of exporting country as the final process i.e. polishing has not been completely performed at the importing country i.e. Sri Lanka hence the benefit was rightly denied.
 
Reasoning of Judgment:- The Tribunal noted that Revenue is denying benefit of Notification on the ground that as the marble slabs were not completely polished at the country therefore benefit is not available to the appellant. The Director of the importing firm in his statement gave the details of the equipment/machinery available at their factory in Sri Lanka and also the processes undertaken including polishing on the rough marble imported into Sri Lanka. The Revenue is only relying on the statement of employee where he simply stated that some polishing is required for use.
 
The Tribunal held that allegation in the Show Cause Notice is not that the goods found at the premises are rough marble, allegation is that the marble is not completely polished. There is no evidence to show that Appellant had undertaken any process which can be termed as polishing after import. The goods were sold after import and the customers may have undertaken finishing touches after fixing the mar­ble. The issue whether the marble slabs imported by the Appel­lants are liable to pay CVD (Countervailing duty) and finally decided by the Calcutta High Court vide order dated 18-5-2006 and the High Court treated the goods as polished marble which has been imported by the Ap­pellant into India and held that the activity undertaken by the Appellant does not amount to manufacture of goods in India.
 
There is no technical or trade opinion obtained by the Revenue re­garding the conditions of the slabs found at the premises of the Appellant and visual examination is only to the extent that the same is not completely polished.  
 
Decision:- Appeal allowed.
 
Comment:- The allegation by the department has to be supported by expert opinion and not based on employee of the company. Everyone knows that the department uses pressure for obtaining such statements. This verdict is very important for consultants.

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com