CASE LAWS
2017-TIOL-437-HC-ALL-ST
CCE, C & ST Vs SUVIDHA ENGINEERS INDIA LTD: ALLAHABAD HIGH COURT (Dated: February 8, 2017)
ST - Erection, Commissioning or Installation services - Limitation - Assessee applied for registration with effect from 16.6.2005 as it understood that it became liable to pay service tax under the amended provision with effect from 16.6.2005 - The department took a view that even prior to the amendment, the assessee was liable to pay tax - It has come on record that the department gained knowledge of this fact that the assessee was liable to pay tax on 5.9.2005 - Nevertheless they did not give notice until 30.10.2007 which was much beyond a period of one year under the said proviso for availing the benefits of extended period of five years of limitation - Once the details of the value of taxable services were available to the department on 5.9.2005, the tribunal came to the conclusion that there was no reason to invoke the extended period under the proviso to section 73 (1) of the FA, 1994 - Tribunal has, therefore, rightly rejected the plea of the department for extension of limitation and application of the proviso to section 73 (1) of the Finance Act, 1994 - Revenue appeal dismissed: High Court [para 11, 15, 16]
Appeal dismissed
2017-TIOL-436-HC-DEL-CX
CCE Vs USHA VAISH: DELHI HIGH COURT (Dated: February 20, 2017)
CX - Appellants/defendants have assailed the judgment and decree dated 10.12.2015 passed by the trial court in favour of the respondents/plaintiffs in a suit for possession, permanent injunction, arrears of rent and mesne profit etc. in respect of flat No. 312A, 8, Deep Shikha Building, Rajendra Place, New Delhi-110008 – As the decretal amount had already been paid to the respondents/plaintiffs, appeal is disposed of as infructuous, alongwith the pending applications - as the appeal is disposed of as infructuous at the stage of admission itself, refund sought of the court fees affixed – High Court directing Registry to issue a certificate in favour of the appellant for refund of court fee to the extent of Rs.16,000/-: High Court [para 7 to 9]
Appeal disposed of
2017-TIOL-434-HC-MUM-CX
ITL TOURS AND TRAVELS PVT LTD Vs CST: BOMBAY HIGH COURT (Dated: February 27, 2017)
CX - Appellants are raising contentions about the approach of the Tribunal in not dealing with two propositions stated to have been canvassed. Held: It is well settled that it is not for this Court to guess as to how the assessee proceeded, what points the assessee's representative pressed and what was given up and whether at all the Tribunal failed to take any of them into consideration or omitted to make a reference to them - Remedy of the aggrieved litigants lies in the appellant moving the Tribunal and seeking a rectification of the alleged mistake occurring in the order of the Tribunal - If such an application is made, it shall be disposed of by the Tribunal on its merits and in accordance with law - To enable the assessee to move such an application, the Revenue should not initiate any steps to recover the taxes by coercive means - Appeal disposed of: High Court [para 3, 5]
Appeal disposed of
2017-TIOL-433-HC-MUM-CX
SWAN MILLS LTD Vs CCE: BOMBAY HIGH COURT (Dated: February 13, 2017)
CX - Refund - Section 11B of the CEA, 1944 - During the period April, 1994 to March, 1995 it is contended that the assessable value approved by the Assistant Director (Cost) was found to be less than the value, on which, the appellants were paying duty on the said yarn cleared by them for captive consumption and sale during the said period - Refund Application was filed on 22.06.1996 in respect of the CE duty allegedly paid in excess - claim rejected on ground of unjust enrichment - Commissioner(A) remanding matter and department filing appeal before CESTAT - meanwhile orders passed in remand by original authority rejecting refund claim on ground of unjust enrichment were appealed before Commissioner(A) by Revenue on the assumption that the two Orders-in-Original grant partial relief - O-in-owas set aside and the Appellate Authority granted refund by this Order but he also held that the Departmental objection on the point of limitation deserves to be upheld - appeals filed by assessee before Tribunal - in the meanwhile the Revenue appeals filed earlier were found ripe for hearing - all appeals heard together and Tribunal concentrated itself on the plea of limitation and held that the refund claims are barred by limitation - ROM applications also rejected by Tribunal - appeal by assessee before High Court. Held: Tribunal committed serious errors of law apparent on the face of the record - The Tribunal did not elaborate as to how, in this case, the question of limitation can be said to be a pure legal issue - From a reading of the Tribunal's Order it is difficult to make out as to what prevailed upon the Tribunal to pass a cryptic order and by holding that there is substance in the Departmental objection on the point of limitation - High Court unhappy at the manner in which the Tribunal has dealt with the Appeals - no alternative but to remand the Appeals back to the Tribunal - Appeals restored to the file of the Tribunal for a decision afresh on merits and in accordance with law: High Court [para 8 to 10]
Appeal allowed
2017-TIOL-432-HC-DEL-CUS
YUKTI EXPORT Vs UoI: DELHI HIGH COURT (Dated: February 13, 2017)
Cus – Directions sought to the respondent to issue duty credit scrips to the petitioner for the 19 applications made by them - respondents in their counter affidavit have indicated that the duty credit scrips were held up on account of a letter received from the DRI Ahmedabad; that clarification has now been received that there was no direction to withhold issuance of duty credit scrips; that respondents have started processing the applications; that 11 applications have been found to be defective and deficiency letter has been issued and rest are under examination. Held: In view of the submissions of the respondents, petition is disposed of directing the petitioner to remove the deficiency as pointed out who shall thereafter process the application of the petitioner and if found eligible, issue the duty credit scrips – direction issued to process the remaining applications within ten days and upon removal of deficiencies to issue duty credit scrips within four weeks – petition disposed of: High Court [para 5 to 7]
Petition disposed of
2017-TIOL-431-HC-MUM-CUS
VICKY SHARMA Vs UoI: BOMBAY HIGH COURT (Dated: February 6, 2017)
Cus - Petitioner, sole proprietor, carrying on business in the name and style of M/s Maa Tara Enterprises questions the legality and validity of a show cause notice issued by Respondent - Counsel for Revenue submitted that Goods were seized on 23rd March, 2016 and the show cause notice was issued on 22nd September, 2016 i.e. within six months as provided under sub-section-2 of Section 110 of the Customs Act - Customs House Agent M/s. D. V. Shipping representing the Petitioner addressed a letter dated 22nd September, 2016 stating that it was duly authorized by the Petitioner to accept the show cause notice - One Mr. Abhishek Dave was deputed to receive the show cause notice on behalf of the Petitioner and the SCN was collected on 22nd September, 2016; it was also displayed on the Notice Board at the JNPT Nhava Sheva on 22nd September, 2016; dispatch section posted the same by Speed Post on 23rd September, 2016; that the show cause notice was issued within the statutory period. Held: There is suppression from this Court of the crucial fact that M/s DV Shipping authorized one Abhishek Dave to collect the packet containing the show cause notice / receive the show cause notice and that on 22nd September, 2016 there is a letter addressed by the said M/s DV Shipping to the competent authority - It is unfortunate that parties like the Petitioner seek to derive an advantage or benefit and by contending that the issue raised is pure legal but at the same time suppressing a very vital and material fact - This material fact having been suppressed by the Petitioner ordinarily, High Court would have been justified in dismissing the Writ Petition on this ground alone - SCN is validly issued - no ground to entertain the Writ Petition, hence dismissed: High Court [para 14, 16, 17]
Petition dismissed
2017-TIOL-430-HC-ALL-CUS
CC & CE Vs SURYA FOOD AND AGRO LTD: ALLAHABAD HIGH COURT (Dated: February 9, 2017)
Cus - Import of Bakery Shortening from Sri Lanka - Whether import of Bakery Shortening in question is eligible for exemption under Notification No. 26/2000-CUS despite the undisputed fact that the goods in question were not imported by NAFED - whether the DGFT Notification No. 22 (RE-2006/2004-2009) dated 24.7.2006 with regard to concession/exemption is applicable on the imports under the aforesaid bill of entry dated 22.06.2006 - Revenue in appeal. Held: Under a notification dated 24.7.2006 and 11.9.2006 under which relief would be given to the parties who were issued the letter of credit prior to 2.6.2006, even other than NAFED, the department itself allowed relief to the parties who have made import by way of making bill of lading before 2.6.2006 - Tribunal had rightly allowed the relief to the assessee by relying upon the P&H HC decision in Krishna Udyog Vs. Union of India - questions of law is answered in favour of assessee and against the department - Revenue appeal dismissed: High Court [para 7 to 9]
Appeal dismissed
2017-TIOL-429-HC-MAD-CUS
PATRIOT FREIGHT LOGISTICS SYSTEMS Vs CC: MADRAS HIGH COURT (Dated: February 3, 2017)
Cus – CHA licence – CHALR, 2004 - Two importers namely, M/s.Brightway Network Imports and exports, Vadapalani, Chennai and M/s.Bobby Enterprises, Ghaziabad, had used the services of the petitioner for importing certain goods - However, the declaration made in the Bills of Entries was found to be incorrect – Inasmuch as the declaration made therein was that the goods in issue were flower pot stands, whereas, they were infact, electronic items – Commissioner of Customs (Imports) issued a show cause notice to the petitioner under Regulation 22 of the 2004 Regulations seeking revocation of CHA licence and forfeiture of security deposit – no reply was filed to the SCN - In pursuance of the show cause notice dated 15.12.2011, an Enquiry Officer was appointed who submitted his report on 25.02.2013 - no reply was filed by the petitioner to the findings contained in the Enquiry Report and also the petitioner did not appear for the personal hearing except on 07.11.2014 when they requested the Commissioner to pass an order taking into account the submissions made in the letter dated 04.06.2011 - Commissioner of Customs proceeded to pass an order dated 09.02.2015, by which, not only the petitioner's licence was revoked, but also, the security deposit was forfeited – Petitioner challenging the SCN dated 15.12.2011 and the order dated 09.02.2015 on the sole ground that on the date when the show cause notice was issued, the same could not have been issued as the time frame provided in Regulation 22 had already expired; that the Commissioner of Customs (Imports) had no jurisdiction to issue the show cause notice. Held: Petitioner has approached this Court, apparently, at his own leisure, however, the aspect which stares the respondent in the face is that after the expiry of the period of ninety days from the date of the offence Report, as stipulated in Regulation 22 of the 2004 Regulation, the first respondent/ the Commissioner of Customs (Imports) had no jurisdiction to issue a show cause notice - the mere fact that the petitioner approached this Court not too early in the point of time would not disentitle him from claiming reliefs sought in the instant writ petitions, delay having been explained satisfactorily - Division Bench of the Delhi High Court, both in Impexnet Logistics - 2016-TIOL-1069-HC-DEL-CUS and Overseas Air Cargo Services - 2016-TIOL-1531-HC-DEL-CUS , have held that the period of 90 days, provided for issuance of SCN for revocation of Customs Brokers Licence is sacrosanct - having regard to the state of law, the writ petitions have to be allowed - Consequently, the show cause notice dated 15.12.2011 and the order dated 09.02.2015 are quashed: High Court [para 11, 12, 13]
Petitions allowed
