CIRCULAR

cuscir34_2017

Continuation of pre-GST rates of Rebate of State Levies (RoSL) for transition period of three months i.e. 1.7.2017 to 30.9.2017 for Export of Garments and textile made-up articles

CASE LAWS

2017-TIOL-2877-CESTAT-DEL + Story

GAIL INDIA LTD Vs CCE: DELHI CESTAT (Dated: July 24, 2017)

ST - Appellants paid VAT on the full consideration of their invoice value - there is no service element attributable to the consideration received as marketing margin - marketing margin is considered as part of sales transaction value and subject to VAT - marketing margin is not relatable to the activity of transportation of gas - any services or activity prior to actual sale of gas has no two persons identifiable as service provider and service recipient - The activities and services by the appellants prior to actual sale, are for self - in respect of the appellant, in others jurisdiction, the jurisdictional authorities after examining the sale agreement, categorically held that the charges received by the appellant are part of sale of gas and cannot be subject to Service Tax - impugned order set aside and appeal allowed: CESTAT [para 7, 8]

Appeal allowed

2017-TIOL-1532-HC-AHM-CUS

FTP - Petitioner no.1 is an association of ceramic glaze and glass frit (mixture) manufacturers - petitioner nos.2 to 9 are its members - the petitioners have challenged a notification dated 7.4.2006 under which by amending the ScheduleI (Imports) of the ITC(HS) Classifications of Export and Import Items, 2004-2009, the import of boric acid for non insecticidal purposes was allowed subject to import permit issued by the Central Insecticide Board and Registration Committee [the Committee] under the Ministry of Agriculture - Petition filed.

HELD - It must be appreciated that regulation has not been imposed by exercising power under the Insecticides Act, 1968 but in exercise of powers under theForeign Trade (Development and Regulation) Act, 1992[Act of 1992] - it is in exercise of such powers that while amending the Import Export policy by the said notification dated 7.4.2006, it was provided that the import of boric acid may be subject to the condition that same would be imported on a permit issued by the Central Insecticide Board and Registration Committee under the Ministry of Agriculture -it is, therefore, a misconception to argue that the Ministry of Agriculture is seeking to regulate the import of boric acid in exercise of powers under the Insecticides Act, 1968 -there is nothing either unreasonable in this Act or impermissible in the statute for the Government of India so to do -looked from any angle, the impugned notification issued by the Government of India does not lack the authority nor specifications of Central Insecticide Board and Registration Committee under the Ministry of Agriculture as the permitting authority, is impermissible under the law -if the Government of India in its wisdom found that certain substance which is otherwise toxic in nature, the import thereof is required to be subjected to certain regulations and regulatory measures even for the non insecticidal purposes where it is likely to cause damage to plants, animals or human beings, such policy decision cannot be faulted - such policy decision has been given shape of statutory provisions albeit in exercise of powers of subordinate legislation -the Court does not find that the policy of the Government of India to ensure that imports of boric acid for non insecticidal purposes also needs to be regulated, is in any manner unreasonable, arbitrary or discriminatory -in any case, policy formation through subordinate legislation is entirely different from its implementation -the former may be perfectly valid whereas the later may be defective - in the result, the petition is dismissed : HIGH COURT [para 20, 21, 23, 24, 28, 29, 30]

Special Civil Application dismissed

2017-TIOL-1531-HC-DEL-CUS

Cus - Whether the petitioner is permitted to re-export its consignment of health products without payment of demurrage/rent charges owed to the cargo handling company.

HELD - It is not in dispute that the consignment consisted of health products, which at the relevant time were prohibited goods as per section 22 of the Food Safety and Standards Act, 2006[FSSA] - under section 111 (d) of the Customs Act, 1962[CA],goods which are prohibited under any law for the time being in force, are liable to be confiscated -such goods fall in the category of 'prohibited goods' under section 2 (33) of the CA and any import entails confiscation -the ACC (Imports), having confiscated the goods, could not have permitted the re-export of the same, as per law, without the imposition of fine or penalty - the petitioner being the owner of the goods, has to take the responsibility for the same - the petitioner has failed to make out a case of bonafide mistake and the findings of the ACC (Imports) to the said effect are unsustainable in law -the ACC (Imports) had no discretion not to impose fine - the imposition of fine under section 125 was a logical and mandatory consequence once the goods were confiscated -once the fine is imposed, the owner of goods is liable to any duty and charges payable in respect of the said goods under section 125 (2) of the CA - the issue regarding waiver of demurrage/rent charges is no longer res integra -the Handling of Cargo in Customs Area Regulations, 2009[Regulations] relied upon by the petitioner do not come to the petitioner's rescue as the same do not apply in the case of goods which are confiscated and Regulation 6 (1) (l) is itself " subject to any other law for the time being enforced " -thus, the Regulations are subject to the provisions of the CA -the consignment having contained 'prohibited goods', which were confiscated in terms of section 111 (d) of the CA, the petitioner is not entitled for re-export of the same without payment of demurrage/ground rent - Writ petition disposed of: HIGH COURT [para 21, 22, 23, 24, 25, 26, 27, 28, 29, 29A, 30, 31]

Writ Petition disposed of