OFFICE ORDERS
CBEC issues transfer order of three Commissioners
Period of probation of 24 IRS probationers extended
CASE LAWS
2017-TIOL-292-CESTAT-MUM + Story
CCE Vs DOMINO'S PIZZA INDIA LTD: MUMBAI CESTAT(Dated: January 5, 2017)
CX - A remand order does not imply acceptance of the contention of assessee but is a direction to pass an order after taking into consideration various aspects pointed out by the appellate authority - interest of Revenue is not jeopardized – Propriety of the remand is not excluded from applicability of the new litigation policy contained in the instruction of 17th December 2015 issued in F No 390/Misc/163/2010-JC and as made applicable to pending appeals by letter dated 1 st January 2016 - Revenue Appeal dismissed: CESTAT [para 5, 8, 9]
Appeal dismissed
2017-TIOL-220-HC-ALL-CX
CCE Vs OUDH SUGAR MILLS LTD : ALLAHABAD
HIGH COURT
(Dated: January 10, 2017)
CX - CENVAT credit - Whether ‘Welding Electrodes' would fall within the category of 'Capital Goods' - Revenue in appeal against order of Tribunal holding that ‘welding electrode' is eligible for CENVAT credit. Held: 'Capital goods' as defined under Rule 2(b) of Rules, 2002 and 2(a) of Rules 2004, in substance, are pari materia with the 'capital goods' specified in Rule 57Q of Rules, 1944 and there is no substantial difference therein - In the context of Rule 57Q of Rules, 1944, as it stood in 1999, similar question and submissions were already considered by the High Court recently in Central Excise Appeal No. 135 of 2005 (M/s Upper Ganges Sugar & Industries Ltd. Vs. Commissioner Customs & Central Excise) decided on 25.2.2015 - 2015-TIOL-2984-HC-ALL-CX holding that credit is not admissible - Tribunal order quashed and Revenue appeal allowed: High Court [para 5 to 7]
Appeal allowed
2017-TIOL-290-CESTAT-MUM + Story
JSW ISPAT STEEL LTD Vs CCE: MUMBAI CESTAT (Dated: September 14, 2016)
CX - Restoration of credit, or re-credit, is not a refund but a procedural step that is to be accorded without ado – Such re-credit cannot fail to cross the hurdle of 'unjust enrichment' and must be allowed as a right of the appellant - Impugned order set aside and appeal allowed: CESTAT [para 4, 11, 14]
Appeal allowed
2017-TIOL-218-HC-KAR-NDPS
REUBI WALTER VS SUPERINTENDENT OF CUSTOMS : KARNATAKA HIGH COURT (Dated: January 4, 2017)
NDPS - Suspension of sentence and bail - appellant who was one of the accused along with two others whose appeals have been entertained by the Court, allowed and they have been acquitted - the very evidence that is ranged against this appellant that the prosecution would seek to rely upon in so far as the present appellant is concerned has been considered at length by this Court and after analysis of the evidence and reasoning of the court below that the impugned judgment has been set aside - Plea opposed by prosecution on the ground that the appeal was inordinately delayed; that the judgment of this Court is not final and hence the benefit being extended to the present appellant may be premature; and that the trial court rendered an independent judgment on this appellant.
Held: The evidence and findings are identical as all the three accused including the present appellant were accused of carrying narcotic substance and were intercepted on their way out of India at the airport and it is on the common evidence that was gathered against the appellant separate case was registered against the accused - The other accused who stood on the same footing as the present appellant, were acquitted in terms of the judgment of this Court in Crl.A. No.508/2014 c/w Crl.A. No.308/2014 dated 16.12.2016 -Appellant herein merits treatment on same footing; the judgment of the court below in Spl.C.C. No.136/2010 on the file the XXXIII Additional City Civil and Sessions Judge and Special Judge for N.D.P.S. Cases (CCH-33), Bangalore, is set aside; The appellant shall be set at liberty forthwith and is acquitted - A copy of this order shall be communicated to the jail authorities for immediate compliance; and his passport shall be returned.
Appeal allowed
ST - Refund - Between June, 2006 and July 2008 appellant paid various amounts as Service Tax "under the pressure of the Department” and filed a refund claim on 05.09.2008 - Tribunal held that the petitioner made the payments under protest and, therefore, the bar of limitation u/s 11B of CEA, 1944 as applicable to Service Tax, will not apply - Revenue appeal before High Court. Held: No reason to take a different view - A conjoint reading of the letters establishes that the payments were made under protest - If the payments were made voluntarily and without reservation the assessee would not have addressed either of the letters dated 07.06.2006 - The fact that by the letters the assessee contended that it was not liable to pay the tax, sought a clarification and protested about it being required to pay the amount under pressure from the Department indicates that the assessee made the payments under protest - nature of the contents of the letter further establishes the same - In that view of the matter, it cannot be said that the payments were made voluntarily and without protest - finding that service tax is not payable by the assessee, is not challenged - Revenue appeal dismissed: High Court [para 11, 14]
Appeal dismissed
2017-TIOL-216-HC-P&H-CUS
MALWA INDUSTRIES LTD Vs UoI: PUNJAB AND HARYANA HIGH COURT (Dated: January 27, 2017)
Cus - Petitioner claiming Refund on the ground that it has succeeded on merits by the order of the Supreme Court dated 12.02.2009 2009-TIOL-17-SC-CX - however, claim rejected in respect of three Bills of Entry by Dy. Commissioner of Customs on ground of limitation whereas in respect of five other B/E refund allowed - Petition filed before High Court on the ground that since payments were made under protest, bar of limitation will not apply.
Held: Petitioner has already paid the entire duty and seeks a refund thereof - On merits, the petitioner has succeeded right up to the Supreme Court - The only issue is one of limitation and petitioner seeks to rely upon the records lying with the Department itself in this regard - impugned order quashed and set aside - Dy. Commr. to pass fresh order after hearing the petitioners - hearing to be held on 09.02.2017 - Petition disposed of: High Court [para 5, 6]
Petition disposed of
2017-TIOL-215-HC-KOL-CUS
PANCHANAN HALDER Vs CC: CALCUTTA HIGH COURT (Dated: January 18, 2017)
Cus - Penalty imposed u/s 112 of Customs Act, 1962 - Petitioner relies upon the decision in Gopal Saha - 2016-TIOL-925-HC-KOL-CUS where it is held that when a provision provides for punishment it has to be strictly construed; that expression "goods in respect of which any prohibition is in force" in the context of Section 112 of the Act would imply goods which are prohibited from being imported and not goods which have been smuggled into the country in contravention of the procedure established by law for the import thereof Held: Issues raised in the writ petition are such that an opportunity should be afforded to the respondents to file affidavits - affidavit-in-opposition be filed within three weeks from date; reply thereto, if any, be filed within a week thereafter - Writ petition to be listed four weeks hence for hearing - it would be appropriate to direct that, no steps shall be taken for realization of the penalty from the petitioner without obtaining the leave of the Court till April 30, 2017 or until further order, whichever is earlier: High Court [para 2, 6]
Stay granted
2017-TIOL-214-HC-MAD-CUS
SILVER SPRING SPINNERS INDIA PVT LTD Vs CC : MADRAS HIGH COURT Vs CC (Dated: December 22, 2016)
Customs - Writ jurisdiction - petition herein is filed challenging the order in original passed by the third respondent, for a direction to the third respondent to rehear and dispose of the matter once again on merits after affording an opportunity of personal hearing and considering the EODC already furnished by the petitioner.
Held: The Court has taken a consistent view in several matters that when the statute provides for filing an appeal against the order in original, the same cannot be challenged by filing a writ petition, by way of short circuiting the procedures - the appellate authority being a fact finding authority as well, will have to consider all aspects and decide the appeal; therefore, the petitioner should go only before the appellate authority and raise all the contentions, including the reference to the events which had taken place subsequent to the passing of the impugned order - the impugned order came to be passed on 30.03.2013 and the present writ petition is filed only in December 2016, however, the OIO shows that the personal hearing notice sent to the petitioner was affixed and intimation letters were returned as undelivered - It is stated by the petitioner that they have changed the address and hence, they were not in a position to appear before the respondent for personal hearing - All these contentions can be raised before the appellate authority, while filing the appeal against the order in original - liberty granted to the petitioner to file an appeal before the appellate authority by raising all the points, within a period of four weeks from the date of receipt of a copy of this order - If any such appeal is filed within the time stipulated supra, the appellate authority shall consider the appeal on merits and pass orders in accordance with law, without reference to the delay in filing such appeal - dismissal of this writ petition only on the ground of maintainability cannot stand in the way of the respondent in considering the matter on its own merits and in accordance with law. [Para 5, 6]
WP dismissed
2017-TIOL-213-HC-KAR-CX
ACCE Vs SHELLY DIMAC POLYMERS PVT LTD: KARNATAKA HIGH COURT (Dated: December 13, 2016)
Central Excise - Appeal - the appellant's case is that the respondent had used H-100 EY Grade granules in the production of plastic woven sacks; and whether the company had used such material in their production or not was the main question.
Held: The court below on a detailed examination of the evidence tendered, has noticed that the date of investigation was 29.07.1998 and the mahazar of seizures made was also of the same date, whereas the offences related to a period between December 1996 and February 1998; that therefore, there was total disconnect as regards the material that could be seized and the investigation that could have been made in respect of an event which had occurred much earlier - Hence, the date on which the investigation was said to have been commenced itself being inconsistent and not reconcilable, the court below on a detailed discussion of the evidence which has again not supported the case of the prosecution having acquitted the accused, cannot be faulted - the investigation and prosecution was apparently after a belated period of time, much like barn doors being closed after the horse has bolted - there is no substance in the petition and the question of granting special leave does not arise. [Para 3, 4]
Application rejected
2017-TIOL-212-HC-ALL-CX
CCE Vs NANDGANJ SIHORI SUGAR COMPANY LTD : ALLAHABAD HIGH COURT (Dated: January 10, 2017)
CX - CENVAT credit - Whether ‘Welding Electrodes' would fall within the category of 'Capital Goods' - Revenue in appeal against order of Tribunal holding that ‘welding electrode' is eligible for CENVAT credit. Held: 'Capital goods' as defined under Rule 2(b) of Rules, 2002 and 2(a) of Rules 2004, in substance, are pari materia with the 'capital goods' specified in Rule 57Q of Rules, 1944 and there is no substantial difference therein - In the context of Rule 57Q of Rules, 1944, as it stood in 1999, similar question and submissions were already considered by the High Court recently in Central Excise Appeal No. 135 of 2005 (M/s Upper Ganges Sugar & Industries Ltd. Vs. Commissioner Customs & Central Excise) decided on 25.2.2015 = 2015-TIOL-2984-HC-ALL-CX holding that credit is not admissible - Tribunal order quashed and Revenue appeal allowed: High Court [para 7 to 9]
Appeal allowed
BALRAMPUR CHINI MILLS LTD Vs CCE: ALLAHABAD HIGH COURT (Dated: January 11, 2017)
CX - Remission of duty - Molasses - There is no allegation made by respondents that there is an abrupt removal of molasses from storage tank so as not to justify remission of aforesaid loss - In absence of any such allegation as also any statutory provision providing that the period of "a year" will not include part of year, if loss is less than two per cent, which was caused due to natural reasons, remission could not have been disallowed allowed to assessee - Rule 8(4) of of U.P. Sheera Niyantran Niyamwali, 1974, for its application, does not require that "year" would mean the entire period of 12 months, and not a smaller part thereof - In absence of any law otherwise taking a different view, High Court is of the view that plain and simple interpretation should be given to Rule 8(4) of Rules, 1974 which permits remission in case loss is less than 2 per cent within the period of a year which includes ‘part of a year' also - Tribunal order taking an otherwise view is set aside - appeal allowed: High Court [para 4, 5]
Appeal allowed
SOUTHERN COOLING TOWERS PVT LTD Vs CESTAT: CALCUTTA HIGH COURT (Dated: January 20, 2017)
CX - Pre-deposit - section 35F of the CEA, 1944 - prior to and after amendment by FA, 2014 w.e.f 06.08.2014 - Petitioner erected cooling towers - Sub-structure is embedded in the ground and claimed by petitioner to be immovable property and not exigible to excise duty; other components for erecting the cooling towers are procured and affixed on this substructure; undoubtedly, excise duty is payable on these movable items - Excise department was of the view in the assessment orders in question that the cost of erecting the immovable sub-structure would be exigible to excise duty and that the petitioner had made short payment of this duty - Demands confirmed and in respect of an appeal/application filed before the Tribunal for stay u/s 35F of CEA, 1944, Tribunal vide order dated 23.09.2013 ordered a pre-deposit of 50% of duty amount - In relation to two more similar matters, the tribunal by its order dated 28th October, 2015 and 8th December, 2015 directed 7.5% pre-deposit of duty - Petitioner before High Court submitting that the order dated 23rd September, 2013 passed by the tribunal in respect of the first assessment to be made compatible with the second and third orders for pre-deposit. Held: It is nobody's case that the amended Act applied to the second and third assessment orders - The Act before amendment applied but what is very important is that whilst applying the old Act the tribunal adopted the formulae of the new Act to order pre-deposit of 7.5% only - This was done after consideration of the prima facie case - anomaly which is brought about is that in respect of the first assessment order the petitioner had to deposit Rs.2.5 crores on application of the 50% deposit principle with some variation in it made by this Court and in respect of the other two assessments orders, it had to make deposit of 7.5% of the duty - There cannot be different rates of pre-deposit, identical facts and identical findings with regard to it, the applicable law remaining the same - In those circumstances, the order of the tribunal dated 23rd September, 2013 and this Court's order dated 26th November, 2013 is set aside with a direction upon the tribunal to reconsider the question of pre-deposit of the impugned assessment order in the light of the standard followed by the tribunal in the latter assessment orders - The tribunal is to make a decision on the question of pre-deposit within three months after giving an opportunity of hearing to the writ petitioner - petitioner will retain Rs.2.5 crores in a fixed deposit subject to such orders as may be passed by the tribunal - Petition disposed of: High Court [para 12 to 15]
Petition disposed of
