CASE LAWS
2017-TIOL-384-HC-DEL-CUS
63 MOONS TECHNOLOGIES LTD Vs DEPUTY DIRECTOR DIRECTORATE OF ENFORCEMENT: DELHI HIGH COURT (Dated: February 17, 2017)
Cus - Enforcement - Attachment of properties of petitioner - Since the matter of marking and distributing of complaints to different adjudicating officer is an administrative function, within the discretionary powers of the Chairperson, who would in exercise of his discretion, distribute the complaints keeping in view the administrative convenience, no mandamus would normally be issued by High court, interfering in the exercise of the discretionary power of the Chairperson - However, in view of the request made that hearing of the O.C. No. 663/2016 by the same adjudicating officer who has heard the arguments in O.C. No. 645/2016, would be expedient and would save judicial time, the Chairperson, adjudicating authority is directed to take a fresh view in the matter - It is clarified that in case the Chairperson is still of the view that circumstances and administrative exigencies do not warrant that O.C. No. 663/2016 be heard by the same adjudicating authority, who has heard arguments in O.C. No. 645/2016, then the Complaint would be proceeded with by the same adjudicating authority before whom it is already placed - Chairperson is directed to examine the matter before the scheduled date of hearing on 21.02.2017 and before the statutory period for disposing of the complaint expires on 23.02.2017 – Petition disposed of: High Court [para 8 to 11]
Petition disposed of
2017-TIOL-383-HC-AHM-CUS
ANIL SHARMA Vs UoI : GUJARAT HIGH COURT (Dated: January 09, 2017)
Customs – Export: Amendment of SB - the Petitioner no.2 is a sugar refinery, whose Director is Petitioner no.1; engaged in refining raw sugar and by that manufacturing white refined sugar for export - the petitioner submitted an application for Advance Authorization before the respondent no.2; under the said license, the petitioner no.2 was permitted to import raw sugar for manufacture and export of white refined sugar within a period of 18 months from the date import - after receiving the said Advance Authorization, the petitioner imported raw sugar from Brazil, against which the petitioner manufactured white refined sugar therefrom, and exported it under 14 different shipping bills during the material period - the petitioner requested respondent no.2 for invalidation of the authorization to the extent 2650.00 MTs of raw sugar may be allowed to be sourced locally; the request was obliged - subsequently petitioner after sourcing the aforesaid raw sugar domestically, refined the same and exported it, under the impugned SB, inadvertently keying in "Drawback scheme" instead of "Advance Authorization" in respect of that consignment - immediately on realizing their mistake the petitioner paid back the drawback amount along with interest to the credit of the Central Government and then requested the Custom Authority at Kandla to amend the said shipping bill from drawback scheme to Advance Authorization scheme - The request was denied by the respondent no.3 on the ground that no conversion of shipping bill from one scheme to another scheme beyond three years from the date of Let Export Order (LEO), which is the requirement as per the Board Circular No. 36 of 2010; culminating in the instant WP.
Held: It is the case of the petitioner that though they imported the goods under the shipping bill under the Advance Authorization Scheme, through oversight and by mistake it was punched as duty drawback; that subsequently when they requested to amend the bill of entry, the case would fall under Section 149 of the Customs Act 1962, which does not provide any limitation to make application to amend the shipping bill - Identical question came to be considered by the Madras High Court in the case of Suzlon Energy Ltd., wherein it was held that such goods would not fall under Section 149 of the Customs Act, but shall be governed by Board Circular No. 36 of 2010 - In the case of Terra Films Pvt Ltd., the Delhi High Court has considered the scope of Section 149 of the Customs Act and held that the amendment could be allowed only if it was based on the documentary evidence in existence at the time the goods were exported - the request of the petitioner which has been rejected by the respondent cannot be said to be a mere amendment in the shipping bill as contemplated under Section 149 of the Customs Act, but it will be case of conversion of one scheme to another scheme, for which, proper officer is required to verify whether the very manufactured final product which has been manufactured from the raw material has been exported or not - what is considered at the time of DECC, the appropriate inquiry would be limited to the extent to satisfy the authority whether raw material which was imported has been used in manufacturing final product or not - So far as Advance Authorization Scheme is concerned, the appropriate authority is required to consider after holding appropriate inquiry that the raw material which was imported has only been used in the manufacture of final product and that final product has been actually exported - the decision of the Bombay High Court in the case of Man Industries (I) Ltd., distinguished on facts - it cannot be said that the respondents have committed any error and / or illegality in rejecting the application of the petitioner considering the Board Circular No. 36 of 2010. [Para 6, 6.1, 7-9]
WP dismissed
2017-TIOL-382-HC-KERALA-CUS
ADDL CC Vs TERUMO PENPOL LTD: KERALA HIGH COURT (Dated: January 16, 2017)
Customs - CBEC Circular 19/2013 set aside by single Judge - Whether dialysis machines can be classified as 'filtering and purifying machinery' under entry 8421(II)(A) of Customs Tariff Act - Dialysis does not involve merely separation of liquid from colloidal particles to bring it under the purview of entry 8421 - The process of hemodialysis or renal dialysis is not something which can be treated merely as passing of a liquid through a semi-permeable membrane leading to separation of liquids by diffusion and separation from colloidal particles: High Court
Writ petition dismissed
2017-TIOL-381-HC-MAD-ST
SUNDARAM MOTORS Vs JCCE: MADRAS HIGH COURT (Dated: January 5, 2017)
ST - Recovery of Cenvat Credit along with penalty and interest imposed under several provisions of CCR, 2004 and FA, 1994 - Whether SCN illegal - Any view expressed in the SCN or opinion formed therein against petitioner, is only a prima facie view or opinion of the authority and not the final conclusion itself - No prejudice would be caused to Petitioner by replying to SCN - Writ Petition cannot challenge a SCN which is not prima facie erroneous or illegal - Court cannot get into the shoes of Adjudicating authority and find out whether or not particulars furnished in SCN would warrant petitioner to show cause or not - Writ petition cannot be entertained by way of short-circuiting the procedures, especially when a statutory remedy is available: HC
Writ Petition Dismissed
2017-TIOL-380-HC-ALL-CX
CCE Vs KM SUGAR MILLS LTD: ALLAHABAD HIGH COURT (Dated: February 9, 2017)
CX - Limitation - Tribunal in a small but cursory order has not at all looked into the aspect of limitation and simply treating as if ex facie demand was beyond time has decided appeal filed by Assessee holding that entire demand is barred by limitation - Tribunal has not at all looked into the question, whether it was a case of extended period of limitation in respect whereto a finding was already recorded by Commissioner against Assessee - judgment of Tribunal set aside - Matter is remanded to Tribunal to consider the question, whether there was a suppression of material fact by Assessee and if that is so, when period of limitation would commence and whether demand is within the period of limitation - Revenue Appeal allowed: High Court [para 5, 6]
Matter remanded
