CIRCULAR

cuscir03_017

Import of point of sale (PoS) terminal devices, its cells & batteries and labelling requirements thereof - reg.

CASE LAWS

2017-TIOL-125-HC-AHM-ST

NEW INDUSTRIAL SECURITY SERVICES Vs CESTAT: GUJARAT HIGH COURT (Dated: January 12, 2017)

ST - Appellants seek permission to withdraw the appeals on the ground that the two questions involved, including the question with respect of reimbursement of expenses shall be related to rate of duty/valuation and, therefore, appeals are maintainable before the Supreme Court.

Held: High Court has doubts on the above submission, however, without expressing any opinion, appellants are simply permitted to withdraw both appeals - Appeals disposed: High Court [para 2, 3]

Appeals disposed of

2017-TIOL-124-HC-MAD-CX

CCE Vs SUNDARAM FASTENERS LTD: MADRAS HIGH COURT (Dated: December 2, 2016)

Central Excise - CENVAT Credit - Admissibility of Cenvat Credit of Service Tax paid on (1) Car Insurance Policy (2) Outstation Travel Service (3) Group Mediclaim Policy, Director's and Officers' Liability Policy, Public Liability Policy (4) Canteen Equipment and Building Repairs (5) Cab services (6) Cars and Vehicle Repair Service is in question in this appeal.

Held: Though substantial question of law does arise for consideration, however, the value involved in the appeal is far-too insignificant particularly viewed in the backdrop of the Board Instructions on monetary limits for filing appeal and hence, both the appeals stand dismissed as not pressed, preserving the substantial question of law for determination in an appropriate case [Para 4, 5]

Appeals dismissed

2017-TIOL-123-HC-AHM-CX

CCE Vs COSMOS DENIM: GUJARAT HIGH COURT (Dated: January 11, 2017)

CX - Penalty, interest - Supreme Court in the case of Shree Bhagwati Steel Rolling Mills - 2015-TIOL-283-SC-CX has held that since Section 3A of CEA, 1944 which provides for a separate scheme for availing facilities under a compound levy scheme does not itself provide for the levying of interest, Rules 96 ZO, 96 ZP and 96 ZQ cannot do so and, therefore, on this ground the appellant has to succeed - Therefore, the present Tax Appeal deserves to be dismissed by answering the questions against the Revenue and in favour of the assessee: High Court [para 3.1, 4, 5]

Appeal disposed of

2017-TIOL-122-HC-MUM-CUS

ARVIND WADILAL MOHTASHA Vs ADDL DGFT: BOMBAY HIGH COURT (Dated: January 9, 2017)

Cus/DGFT - Petitioner was granted Value based Advance licence with an obligation to export PVC leather cloth - Petitioners claiming Export Obligation Discharge Certificate - since the credit of the sale proceeds of the export in the bank records was not furnished, penalty imposed - Writ Petition before High Court. Held: Order passed is based on non-compliance and that has been established and proved - It is not for the authorities to go on waiting for the petitioners to produce the relevant proof - Since the petitioners relied upon the factum of export obligation being fulfilled, they were called upon to submit the bank realisation certificate - The doctrine of substantial compliance also cannot be, therefore, invoked by the petitioners - no merit in petition, hence dismissed: High Court [para 4 to 6]

Petition dismissed

 

2017-TIOL-121-HC-MAD-CUS

WELCOME FISHERIES LTD Vs CC: MADRAS HIGH COURT (Dated: December 8, 2016)

Customs - Departmental Review - the assessee is an exporter of Prawns/ Shrimps through Chennai Seaport and were paying Cess under the provisions of the Agricultural Produce Cess Act, 1940, which was agitated in W.P. No.13884 to 13887 of 1998 - vide order dated 16.12.2006, the Court directed the assessee to file an appeal under Section 5A of the Customs Act, 1962 before the Appellate Authority, with a further direction to the Commissioner (Appeals) not to raise any objections including those of limitation and maintainability of the appeal and to dispose of the same on merits - the Commissioner (Appeals) passed an order on 28.02.2007, holding that cess is not leviable on export of Prawns/Shrimps and that the cess paid by the assessee needs to be refunded, subject to its passing the test of unjust enrichment - the department challenged the order of the Commissioner (Appeals), with the Tribunal which was dismissed on 02.08.2007; and further agitated by the department in C.M.A Nos. 13486 to 13493 of 2008, currently pending without stay - meanwhile, the assessee filed a refund claim, seeking refund of cess paid during material period; which was sanctioned, excluding the claim towards the goods exported other than prawns/ shrimps - the department filed an appeal before the Commissioner (Appeals) and issued a Show cause cum Demand notice for recovery of the refunded amount, which latter was stayed in W.P. No.10737/2012 - The Commissioner (Appeals) passed an order dated 31.10.2014, holding that in terms of limitation and unjust enrichment, the refund is erroneous and ordered for recovery of the refunded amount against which the assessee filed the Writ Petition No.149/2015 before the Court, who directed the writ petitioner/ assessee to approach the Tribunal as against the order of Commissioner, culminating in the instant Writ Appeal.

Held: Section 129D (3) provides to make an order within a period of six months but not beyond a period of one year, from the date of the decision or the order of the adjudicating authority - the review petition has not been filed within the time limit; and factually, on the point of limitation to file a review, the Single Judge has not applied his mind whether such a review can be entertained, after the expiry of the limitation period - on the ground of time barred claim of the assessee, the department seeks to review the order, which of course have been entertained by the department, after an expiry of the limitation period of 90 days - Under such circumstances, without looking into the merits of the case, the Single Judge directed the appellant herein to approach the Appellate Tribunal - no grounds have been raised in the proceedings either before the Commissioner (Appeals) or before the Single Judge that the impugned proceedings are barred by limitation; however, since the question of limitation is raised as a question of law, it can be raised at any point of time - Therefore, in consideration of the provisions under Section 129D (2) and the admitted dates that has been cited in the writ petition, the review is barred by limitation and hence the same is liable to be quashed. [Para 10-12]

The assessee was right in approaching this Court to interfere with the said order as the order of the Single Judge to approach the Tribunal in this regard, is totally unnecessary - When there is violation of principles of natural justice and the question of maintainability, the same can be questioned under Articles 226 and 227 of the Constitution - the order of the Single Judge and the order dated 31.10.2014 of the Commissioner (Appeals) is set aside, as barred by limitation [Para 10-14]

Writ Appeal allowed